Technigroup Far East Pte Ltd v Jaswinderpal Singh s/o Bachint Singh

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 31 January 2017
• Court: High Court (Singapore)
• Docket Number: Suit No 727 of 2013 (Summons No 4071 of 2016)
• Date: 31 January 2017

Technigroup Far East Pte Ltd and another

and

Jaswinderpal Singh s/o Bachint Singh and others

[2017] SGHC 68

Steven Chong J

Suit No 727 of 2013 (Summons No 4071 of 2016)

High Court

Contempt of Court — Civil contempt — Alleged contemnor failing to disclose documents sought under discovery order — Alleged contemnor claiming that documents did not exist — Whether in breach of specific discovery order

Contempt of Court — Sentencing — Principles — Defendants found in contempt by deliberately failing to comply with discovery orders — Factors affecting sentence for contempt by disobedience in commercial contexts — Factors affecting sentence for contempt by disobedience to discovery order

Evidence — Proof of evidence — Onus of proof — Civil contempt — Contempt by disobedience — Whether party seeking committal had to prove breach to prima facie standard or beyond reasonable doubt

Res Judicata — Issue estoppel — Discovery orders premised on findings of corporate existence of companies — Defendants claiming nothing to disclose because companies did not exist — Whether defendants estopped from denying corporate existence of companies and possession, custody and power over companies' documents

Held, committing the first and second defendants to a suspended sentence of four months' imprisonment and the fourth defendant to a fine of $5,000 (or three days' imprisonment in default):

(1) The statement filed by the plaintiffs pursuant to O 52 r 2(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) was of sufficient particularity to provide the alleged contemnors with adequate information to enable them to meet the charges against them: at [21] and [22].

(2) The defendants were not precluded by issue estoppel from denying that related entities of OFS Singapore existed; that the defendants owned and/or controlled these entities; and the documents covered by the 6 May Discovery Order were in the defendants' possession, custody or power. Issue estoppel had to be examined in the light of the nature of the order and the particular issues which are said to be the subject of issue estoppel. A discovery order could not preclude an alleged contemnor from denying possession, custody and power over the documents he had been ordered to disclose. A discovery order was made on the basis of prima facie findings that the documents were in his possession, custody and power – findings which might be displaced by cogent evidence and explanations: at [48], [50], [52] and [53].

(3) Where the alleged breach was of a discovery order, the evidential burden lay on the applicant seeking committal to prove beyond reasonable doubt that the alleged contemnor had documents within his possession, custody or power that had not been disclosed: at [61] and [65].

(4) The first, second and fourth defendants breached the 6 May Discovery Order by deliberately failing to disclose the Related Party Documents and Project Documents. The court found beyond reasonable doubt that OFS China existed and was controlled by the first and second defendants through OFS Singapore; and that Related Party Documents and Project Documents in relation to OFS China existed, were in the first and second defendants' possession, custody and power, and remained undisclosed by the defendants. However, there was insufficient evidence that there existed Related Party Documents and/or Project Documents in relation to OFS India: at [96], [98] and [103].

(5) In sentencing for contempt by disobedience in the context of commercial cases, the following factors were relevant: (a) a degree of continuity in the contemptuous conduct, taking into account the past conduct of the contemnor; (b) the impact of the contemptuous conduct on the other party; (c) the nature of the non-compliance, in particular whether it was intentional or fraudulent on the part of the contemnor; and (d) whether the alleged contemnor made any genuine attempts to comply with the judgment or order. Where the contemptuous act consisted of breaches of discovery or disclosure obligations, it would be pertinent to bear in mind the extent of the non-disclosure and whether any positively misleading disclosure had been made: at [106], [107] and [109].

(6) The first and second defendants had acted in contumelious disregard of their discovery obligations on multiple occasions and maintained false assertions about OFS China despite having had numerous opportunities to come clean. Their non-disclosure handicapped the assessment of the plaintiffs' damages. The appropriate sentence for the first and second defendants was four months' imprisonment, suspended for four weeks to grant them a final opportunity to fully comply with their discovery obligations. As the fourth defendant was substantially less culpable, she was fined $5,000 (or three days' imprisonment in default): at [114] to [117].

Case(s) referred to

Alliance Management SA v Pendleton Lane P [2008] 4 SLR(R) 1; [2008] 4 SLR 1 (refd)

BMP v BMQ [2014] 1 SLR 1140 (refd)

Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67; [1971] 2 WLR 361 (refd)

Cost Engineers (SEA) Pte Ltd v Chan Siew Lun [2016] 1 SLR 137 (refd)

Crystal Mews Ltd v Metterick [2006] EWHC 3087 (Ch) (refd)

Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453; [2007] 1 SLR 453 (refd)

Ip Pui Lam Arthur v Alan Chung Wah Tang [2017] HKCU 472 (refd)

JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350 (refd)

Lee Tat Development Pte Ltd v MCST Plan No 301 [2005] 3 SLR(R) 157; [2005] 3 SLR 157 (refd)

Lexi Holdings plc v Shaid Luqman [2007] EWHC 1508 (Ch) (refd)

Lexi Holdings plc v Shaid Luqman [2007] EWHC 2355 (Ch) (refd)

Maruti Shipping Pte Ltd v Tay Sien Djim [2014] SGHC 227 (refd)

McIlkenny v Chief Constable of the West Midlands [1980] QB 283 (refd)

MCST Plan No 689, The v DTZ Debenham Tie Leung (SEA) Pte Ltd [2008] SGHC 98 (refd)

Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 (folld)

Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd [2012] 4 SLR 1169 (refd)

OCM Opportunities Fund II, LP v Burhan Uray [2005] 3 SLR(R) 60; [2005] 3 SLR 60 (refd)

Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR(R) 518; [2007] 2 SLR 518 (refd)

PP v Nur Ellesha Shahidah Bte Abdul Rahman @ Sasha Binte Abdul Rahman [2016] SGDC 11 (refd)

Soh Lup Chee v Seow Boon Cheng [2002] 1 SLR(R) 604; [2002] 2 SLR 267 (refd)

STX Corp v Jason Surjana Tanuwidjaja [2014] 2 SLR 1261 (refd)

Summit Holdings Ltd v Business Software Alliance [1999] 2 SLR(R) 592; [1999] 3 SLR 197 (refd)

Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 (distd)

VIS Trading Co Ltd v Nazarov [2016] 4 WLR 1; [2015] EWHC 3327 (QB) (refd)

Wee Soon Kim Anthony v UBS AG [2003] 2 SLR(R) 91; [2003] 2 SLR 91 (refd)

Facts

The first and second defendants were respectively a director and a manager of the plaintiff-companies. The plaintiffs sued the first and second defendants for breaching their employment contracts and fiduciary duties by setting up a rival business, the fifth defendant (“OFS Singapore”). Shareholdings and directorships in OFS Singapore were held by their respective wives, the third and fourth defendants. The plaintiffs also sued the third to fifth defendants in conspiracy.

On 7 February 2014, the defendants were ordered to disclose documents relating to OFS Singapore's accounts, transactions, customer lists and internal correspondence (“1st Discovery Order”). On 29 May 2014, the defendants were ordered to disclose all documents evidencing transactions between OFS Singapore and its related entities and the plaintiff-companies (“2nd Discovery Order”). As the defendants failed to fully comply with the 1st Discovery Order, an unless order was subsequently granted. As the unless order was breached, the defence was struck off and interlocutory judgment was entered. In striking out the defence, the assistant registrar observed that the 2nd Discovery Order had also been breached.

On 6 May 2016, a discovery order (“6 May Discovery Order”) was made for the purpose of assessing damages, requiring the defendants to provide a list of (a) their bank account statements; (b) all documents evidencing transactions of OFS Singapore's related entities (“Related Party Documents”); and (c) documents evidencing the value of contracts entered into by OFS Singapore and/or its related entities with the plaintiffs' customers or potential customers (“Project Documents”). The 6 May Discovery Order was endorsed with penal notices.

The defendants disclosed some bank statements but did not disclose any Related Party Documents or Project Documents. With the leave of court, the plaintiffs filed the present summons on 22 August 2016 for the first, second and fourth defendants to be committed to prison for contempt of court by breaching the 6 May Discovery Order.

The defendants argued that they had complied with the 6 May Discovery Order because they were not in a position to disclose any Related Party Documents or Project Documents because they did not own or control any related entities of OFS Singapore outside Singapore. The plaintiffs countered this factual assertion with evidence pointing to the existence of related entities in China (“OFS China”) and India (“OFS India”) that were owned and/or controlled by the first and second defendants. The question of whether the defendants were in contumelious breach of their discovery obligations turned on whether these related entities were found to exist.

Legislation referred to

Evidence Act (Cap 97, 1997 Rev Ed) s 175

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 24 r 5, O 38 r 2(2), O 45 r 5, O 45 r 7(4), O 52, O 52 r 2(2), O 52 r 3

Benedict Teo and Daryl Yong (Drew & Napier LLC) for the plaintiffs;

Jordan Tan and Keith Han (instructed counsel) (Cavenagh Law LLP) for the first defendant;

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