Summit Holdings Ltd and Another v Business Software Alliance

JurisdictionSingapore
JudgeYong Pung How CJ
Judgment Date31 May 1999
Neutral Citation[1999] SGHC 147
Docket NumberCriminal Motion No 21 of 1998
Date31 May 1999
Published date19 September 2003
Year1999
Plaintiff CounselManjit Singh and Samuel Chacko (Manjit Samuel & Partners)
Citation[1999] SGHC 147
Defendant CounselHarry Elias SC (Harry Elias Partnership), VK Rajah SC and Lionel Tan (Rajah & Tann)
CourtHigh Court (Singapore)
Subject MatterDocuments to be returned entering public domain,Whether documents or copies to be returned by order of court in criminal revision can be used in civil proceedings,Non-compliance,Whether motive of disobedience relevant,O 52 r 2 Rules of Court,Rules of court,Civil Procedure,Application for committal,Whether applicant can rely on acts of contempt not pleaded in statement of claim,Whether strict compliance necessary,Judgments and orders,O 52 r2 Rules of Court,Order of court to return documents,Rules of Court Production of Documents,Appropriate penalty for technical contempts which do not prejudice substantially the applicant or due administration of justice
Judgment:

YONG PUNG HOW CJ

This was a notice of motion brought by the applicants, Summit Holdings Ltd (`Summit Holdings`) and Summit CD Manufacture (`Summit CD`) to commit the respondent, Business Software Alliance (`BSA`), for contempt of court for failure to return certain documents which were ordered to be returned in Crim Rev 15/97 (`the Criminal Revision`). At the outset of the hearing, counsel for the respondent raised a preliminary issue as to whether the applicants should be allowed to rely on grounds not set out in the statement filed pursuant to O 52 r 2 of the Rules of Court in their application for an order of committal against the respondent. I reserved judgment on the preliminary issue. At the adjourned hearing, I answered the preliminary issue in the negative, and counsel for the parties proceeded to argue the substantive issue of whether the applicants have made out a case of contempt on the part of the respondent. At the end of the hearing, I found that the applicants have established beyond reasonable doubt that the respondent committed contempt in its failure to take steps to return certain documents, as well as the manner in which the same documents were used in Suit No 1596 of 1997, and sentenced the respondent to a fine of $5,000. I now give my reasons.

2. Background

This matter has its origins in Crim Rev 15/97 which came up before me in September 1997. Summit Holdings is a holding company listed on the SESDAQ. Summit CD is a wholly owned subsidiary of Summit Holdings. Summit CD carries on the business of manufacturing and replicating compact discs (CDs), including audio CDs, video CDs and CD-ROMs. Business Software Alliance is a tax-exempt corporation organised under the United States Revenue Code. It is an international software anti-piracy watchdog body. Its members include companies engaged in publishing and distributing computer software. On 8 August 1997, representatives of BSA applied before a magistrate and were granted two search warrants, search warrant no 132/97 and search warrant no 236A/97, to search the premises of Summit Holdings in respect of copyright and trademark offences respectively. On 12 August 1997, the representatives of BSA, police officers and solicitors from Alban Tay Mahtani & de Silva conducted a raid on the premises. On the same day, at about 11pm, they obtained a third search warrant from a High Court judge at his residence. Five CD-ROMs, a stamper, two glass masters and a large quantity of documents allegedly containing incriminating evidence were seized.

3.Summit Holdings and Summit CD applied promptly in Crim Rev 15/97 to quash all the three search warrants. On 29 August 1997, the Attorney General`s Chambers granted a fiat to counsel for BSA, Mr VK Rajah SC and Mr Kenneth Tan SC, to defend the proceedings brought in the criminal revision.

4.On 29 September 1997, at the conclusion of the criminal revision, I directed that the two search warrants issued by the magistrate would stand and the third search warrant granted by the learned judge should be quashed. All the items seized pursuant to the third warrant were ordered to be returned. In addition, all the items which were seized outside the scope of the first two warrants were ordered to be returned. In the result, the respondent was ordered to return all the documents (and copies) seized pursuant to the two warrants, namely: (i). the two production log-books for incoming master recordings;

(ii). the log book on process for polishing;

(iii). invoices;

(iv). glass master order sheets;

(v). mastering log sheets work orders;

(vi). glass mastering log sheets;

(vii). seven empty stamper boxes;

(viii). checking report book;

(ix). list of Summit CD`s customers allegedly downloaded from the computer server.

5.All the above items were ordered to be returned within 24 hours from the making of the order. The result was that BSA could only keep the stamper, the CD master seized under the trade marks warrant, the five CD-ROMs seized pursuant to the copyright warrant, and the two glass masters seized pursuant to the two warrants.

6.I now come to the subject-matter of this application. On 30 September 1997, Alban Tay Mahtani & de Silva, the solicitors for BSA, handed to the solicitors for the applicants, a letter dated the same date with a schedule of items that were returned. The applicants were not satisfied with the format in which the schedule was prepared or that all the documents were in fact returned. What followed were numerous exchanges of correspondence between the solicitors on the issue of compliance of the court order. Still dissatisfied, the applicants applied for leave to commit BSA under O 52 of the Rules of Court. That application was supported by the statement setting out the grounds of committal and an affidavit verifying the statement pursuant to O 52 r 2. Leave was granted on 13 August 1998, and the motion for committal came up for hearing on 14 October 1998.

7.The statement set out the following acts of contempt:

(1) BSA has not obeyed the order.

Particulars

a Some of the documents returned by BSA to the applicants pursuant to the Order were incomplete, ie pages were missing. These were as follows:

i Original `Server List`

Information was downloaded from the applicants` computer server and allegedly reproduced in a computer printout (`Server List`). Pages 17, 18 and 19 of the computer printout have not been returned.

ii Photocopied `Server List`

Pages 1 to 19 and pages 70-78 of the photocopied version of the Server List have not been returned.

b Some of the documents (which were the subject of the Order) have not been returned.

i Minutes of Meeting (`SO-14`)

BSA`s representatives read the minutes of the applicants` sales meeting into a tape recorder, and then transcribed the tape recording. A cassette tape has been returned, but the original transcripts (and copies thereof) have not been returned. The said transcript was exhibited as `SO-14` in the affidavit of Stuart Ong filed in CM 17/97.

ii Sales charts (`SO-25`)

Information was downloaded from the applicants` computer server and allegedly printed out. The printout was exhibited as SO-25 to the affidavit of Stuart Ong filed on 1 September 1997 in Crim Rev 15/97.

iii Extracts from Log Book (`WM-3`)

Extracts from the applicants` production log book were read by BSA`s representative into a cassette tape, and the contents thereafter transcribed in full by BSA. The transcript and copies thereof have not been returned. They were exhibited as `WM-3` to the affidavit of William Maguire filed on 3 September 1997.

iv Extracts of facsimile transmissions and sales orders (`WM-4`)

Seized facsimile transmissions and sales orders were examined and excerpts were copied out by BSA onto a document. This document has not been returned. They were exhibited as `WM-4` to the affidavit of William Maguire filed on 3 September 1997.

(2) Further BSA has sought to, or has procured or abetted others to, reproduce and openly exhibit copies of documents which should have been returned.

Particulars

By an affidavit dated 14 January 1998 filed by Stuart Ong in Suit 1596 of 1997, Stuart Ong reproduced and exhibited the extracts of the Log Book and the extracts of facsimile transmissions and sales orders referred to in para 8 of the statement.

(3) BSA is in contempt of court.

Particulars

a BSA has failed to obey the Order in that BSA has failed to return documents and copies thereof, as particularised in para 3 of the statement.

b Further, instead of returning the aforesaid documents and copies thereof, BSA has sought to misuse them by exhibiting them or by procuring them to be exhibited in an affidavit.

8. The preliminary issue

On the first day of the hearing, Mr Harry Elias objected to certain parts of the affidavits filed on behalf of the applicants, and parts of the written submissions of the applicants, which he argued went beyond the scope of the statement filed pursuant to O 52 r 2. Mr Elias raised the preliminary issue for determination by the court, namely, whether the applicants should be allowed to rely on grounds not set out in the statement filed pursuant to O 52 r 2 of the Rules of Court in their application for an order of committal against the respondent.

9.From the statement, the grounds of committal relied on by the applicants were: (1). failure to return all the pages in the two documents:

(i). transcript of minutes of meeting; and

(ii). the photocopied server list;

(2). failure to return the following documents:

(i). transcripts of minutes of meeting;

(ii). sales charts;

(iii). extracts from log book;

(iv). extracts of facsimile transmissions and sales orders; and

(3). BSA has sought to or has procured or abetted others to reproduce and exhibit the documents in (2) in the affidavit of Stuart Ong.

10.However, in the affidavits of Lee Hong Thiam filed for the purpose of the criminal revision, he alleged that there were other acts of contempt of court: (1). representing to the court that all commercially sensitive information was deleted;

(2). breaches of the order of the (then) Magistrate Lim Kwee Huat made on 22 August 1997; and

(3). tampering with and shredding of evidence by BSA and/or their solicitors.

11.The second and third allegations were in Lee Hong Thiam`s affidavit made in support of the ex parte summons for leave to issue committal proceedings. The first allegation was raised for the first time in the reply to the respondent`s submissions as well as in Lee Hong Thiam`s sixth affidavit. Mr Manjit Singh conceded that these three allegations of contempt of court went beyond the statement, but urged the court to invoke the inherent jurisdiction of the court to grant leave for them to be included.

12.Order 52 r 2(2) provides that:

An application for such leave must be made ex parte to a Judge and must be supported by a statement setting out the name and description of the applicant, the name, description and address of
...

To continue reading

Request your trial
30 cases
  • Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and Others
    • Singapore
    • Court of Appeal (Singapore)
    • 1 March 2007
    ...been clearly endorsed in the Singapore context in the Singapore High Court decision of Summit Holdings Ltd v Business Software Alliance [1999] 3 SLR 197 (“Summit Holdings”) at [25]. We take the present opportunity to confirm that the criminal standard of proof applies in all contempt The im......
  • OCM Opportunities Fund II, LP and Others v Burhan Uray (alias Wong Ming Kiong) and Others (No 2)
    • Singapore
    • High Court (Singapore)
    • 26 April 2005
    ...there are any mitigating circumstances for the purposes of sentencing for contempt: see Summit Holdings Ltd v Business Software Alliance [1999] 3 SLR 197 at [52] and 28 The starting point is this. The correct and only course, short of obedience to the orders in question, was to seek, throug......
  • Microsoft Corp and Others v SM Summit Holdings Ltd and another and other appeals
    • Singapore
    • Court of Appeal (Singapore)
    • 21 September 1999
    ... ... Pte Ltd, a wholly owned subsidiary of the first plaintiffs and are engaged in the business of, inter alia, manufacture of CDs and CD-ROMs. Their business operations are carried out at the ... and are engaged in the business of, inter alia, publishing and distributing computer software. The fourth defendant, Business Software Alliance (`BSA`), is a software anti-piracy watchdog body ... ...
  • Attorney-General v Hertzberg Daniel and Others
    • Singapore
    • High Court (Singapore)
    • 25 November 2008
    ...i.e., proof beyond a reasonable doubt (Pertamina Energy Trading Ltd at [31]-[35]; Summit Holdings Ltd v Business Software Alliance [1999] 3 SLR 197 at [25]; In re Bramblevale Ltd [1970] Ch 128 at 137). Indeed, the Court of Appeal in Pertamina Energy Trading Ltd took the opportunity in that ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT