Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 20 August 2008
• Neutral Citation: [2008] SGHC 136
• Docket Number: Originating Summons No 1414 of 2007
• Date: 20 August 2008
• Year: 2008
• Published date: 21 August 2008
• Plaintiff Counsel: Tan Tian Luh (Chancery Law Corporation)
• Citation: [2008] SGHC 136
• Defendant Counsel: Kelvin Tan (Gabriel Law Corporation),Sim Chee Siang (Rajah & Tann)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Whether privilege waived,Whether e-mail sent under a duty of confidentiality,E-mail message from plaintiff's solicitors to plaintiff mentioned in affidavit deposed on behalf of defendant in action by plaintiff's related company against defendant,Privileges,Legal advice privilege,Whether that e-mail was privileged communication

20 August 2008 Judgment reserved.

Kan Ting Chiu J:

The application

1 This matter started with a claim by Tentat Holdings Pte Ltd (“Tentat Holdings”) against Multiple Granite Pte Ltd (“Multiple Granite”) in Suit No. 215 of 2007 (“the suit”) for the recovery of two loans for the total sum of $755,000.

2 In its defence, Multiple Granite denied that it had borrowed the sum from Tentat Holdings, and claimed that it was a shareholders’ loan from Tentat Singapore Pte Ltd (“Tentat Singapore”), a related company of Tentat Holdings.

3 When Tentat Holdings applied for summary judgment against Multiple Granite, an affidavit was filed by Tan Hong Huat (“THH”) in support of Multiple Granite’s defence. THH referred in his affidavit to an email message from solicitors Rajah & Tann to Tentat Singapore dated 13 December 2005 which referred to the preparation of an agreement for Tentat Singapore in respect of a loan of $755,000 from Tentat Singapore to Multiple Granite (“the email”).

4 THH’s affidavit which referred to a loan agreement and a shareholders’ agreement read:

17. Further to this, Sim Chee Siong of Rajah & Tann was in fact instructed by Lee Teng Hong to prepare a shareholders agreement to reflect his intention to acquire the interest in RDC and Imex through Multiple Granite. This agreement was enclosed in an email dated 13 December 2003 [sic] by Sim Chee Siong to Karen Lim, the assistant to Lee Teng Hong. In this email, Sim Chee Siong expressly records the fact that he was instructed to prepare a loan agreement for Tentat Singapore to lend the sum of $755,000.00 to Multiple Granite for the purpose of acquiring RDC and Imex’s interest in shares in P T Bukit Granite and Samwoh. Sim Chee Siong also enclosed a draft agreement for consideration. This agreement was subsequently prepared and forwarded on 20 December 2005. As the Chief Investment officer for the Plaintiff, these emails and the agreement were forwarded to me on 21 December 2005. A copy of these emails and the agreement is annexed hereto and marked as “THH-1”.

[emphasis added]

18. This loan of $755,000.00 was meant to be a loan in the form of equity. It was a long term investment. I was clearly informed as the representative of Lee Teng Hong and as a Director of Tentat Holdings by T M Tarah of this fact. i.e. long term investment. It was in my mind entered as a loan because it would be easier legally and accounting wise to obtain the distribution of profits or capital appreciation by repaying the loan. In the case of direct equity investment ie. By shares, a reduction in capital would entail complicated legal steps for example, winding up the company or obtaining the Court’s approval.

19. Whilst the agreement was never signed, the fact is that that the emails it record the contemporaneous instructions and understanding of the parties at the time that the loans were actually disbursed. The position that is set out by the Plaintiff’s solicitors themselves in the email wholly corroborates the position taken by the Defendants in these proceedings i.e. that this was to be a loan by Tentat Singapore / Lee Teng Hong for the purpose of investment. The fact that the cheques were issued by Tentat Holdings does not detract from this fact.

5 Tentat Singapore intervened in the suit and applied for a declaration that the email is legally privileged communication and that all references by Multiple Granite to the email be expunged and that THH and Multiple Granite were to deliver up or destroy all copies of the email in their possession.

6 When Tentat Singapore’s application came on for hearing, issues were raised as to whether it was appropriate for Tentat Singapore to intervene in the suit and I directed that it should be brought up in separate proceedings. Pursuant to the direction, the present originating summons was filed by Tentat Singapore against Multiple Granite, THH and Tentat Holdings, seeking principally a declaration:

that the legal advices rendered to the Plaintiffs by their solicitors [Rajah & Tann] and communicated to the Plaintiffs by way of an email dated 13 December 2005 9.29 pm, and references thereto, as referred to in the affidavit of Tan Hong Huat affirmed on 5 June 2007 (in particular at paragraphs 17 to 19 and exhibit “THH-1”) and filed in Suit 215/2007/C, are legally privileged communications between the Plaintiffs and their solicitors.

with other prayers for Multiple Granite and THH to be restrained from further use of the email, the references of the email be struck out, and copies of the email be delivered up or destroyed.

7 There are two main persons involved in the communication of the emails, namely Lee Teng Hong and Tan Hong Huat:-

(a) Lee Teng Hong (“LTH”) is a substantial businessman. He is a director and majority shareholder of Tentat Holdings and Tentat Singapore. Tentat Singapore is, in turn, a shareholder of Multiple Granite. LTH’s confidential secretary was Karen Lim (“KL”). The email was sent by Rajah & Tann to KL, and she forwarded it to THH on 21 December 2005.

(b) Tan Hong Huat is a person of considerable corporate experience. He has been involved with 29 companies including listed companies, and is:-

(i) a director of Tentat Holdings from 6 June 2005 to 5 May 2006;[note: 1]

(ii) Chief Investment Officer of Tentat Holdings from 6 June 2005 to 5 May 2007;[note: 2]

(iii) an adviser to Tentat Singapore on fund raising issues until May 2005;[note: 3] and

(iv) a shareholder and director of Multiple Granite.

The email

8 The email in question was an attachment to an email from LTH’s secretary KL to THH on 21 December 2005 in which she stated:

As per Mr Lee’s [LTH’s] instruction, I forward e-mail and attachments from our lawyer, Mr Sim Chee Siong [of Rajah & Tann] for perusal and comments.

9 Two email messages were forwarded on 21 December 2005. One was dated 20 December 2005 from Rajah & Tann to KL enclosing a draft shareholders’ agreement of Multiple Granite for LTH’s consideration. No issue arises with regard to this email in this application.

10 The other email forwarded is the subject-matter of this application. This is a message dated 13 December 2005 from Rajah & Tann to KL:

Subject: Multiple Granite Pte Ltd

…

We refer to the above matter and the discussion with Mr Lee [LTH] this morning.

We are instructed to prepare a loan agreement for Tentat Singapore Pte Ltd to lend the sum of $755,000.00 to Multiple Granite Pte Ltd …

and followed by Rajah & Tann’s advice on the proposed loan. The draft loan agreement mentioned by Rajah & Tann was not sent to THH with the email of 21 December 2005. As all three emails were sent in 2005, they will be referred to by date and month.

11 It is quite clear that legal advice privilege applies to this email of 13 December. It was advice rendered by Rajah & Tann on the instructions of LTH, the majority shareholder of Tentat Singapore, to prepare a loan agreement for Tentat Singapore’s use. Rajah & Tann regarded the email as privileged and confidential, and added to the email a notice that:

This message is intended for the recipient(s) addressed above. It contains privileged and confidential information. If you are not the intended recipient, kindly notify the sender or Rajah & Tann …. You must not read, copy, use, or disseminate this communication in any form …

The circumstances of THH’s receipt of the emails

12 It is apparent on the face of the email of 21 December that the two emails from Rajah & Tann were not forwarded to THH for his own use, but for him to provide his comments to LTH. Initially, THH acknowledged this. In his affidavit filed in the suit on 5 June 2007, he deposed at [17] that:

As the Chief Investment officer for the Plaintiff [Tentat Holdings], these emails … were forwarded to me.

However, in a subsequent affidavit filed on 30 July 2007, he changed his position and explained that:

10. [T]he agreement that was enclosed relates directly to the sums for which the Plaintiffs are claiming for in this suit. This was a draft agreement that was prepared by Rajah & Tann, the parties for which were T M Tarah Pte Ltd, Lee Teng Hong, Multiple Granite Pte Ltd and myself. I received this agreement on the following basis:-

a. I was named as a party in this Agreement and therefore would have needed to approve it in my personal capacity.

b. I was also a Director of Multiple Granite at the time, and therefore would have had to approve this agreement on behalf of Multiple Granite.

c. Finally, I also received this in my capacity as the Chief Investment Officer for Tentat Holdings.

[Emphasis added]

11. In my earlier affidavit filed on 5 June 2007, I had only mentioned that I had received this as the Chief Investment Officer of Tentat Holdings. The reason why I had stated this was only to make it clear that this email had been properly and officially received. At that time, this issue of privilege had not been raised and therefore it was not necessary to go into this amount of detail as the facts of the email and the document that was enclosed speak for themselves.

13 The plaintiff rejected his explanation, with reason. THH had evidently given thought to the circumstances in which he received the email, and had described it correctly and fully in his first affidavit. There was no reason for him to hold back on a full disclosure of the circumstances when the receipt of the email was already in issue at that time. The reason offered, that the original description was given to make clear that the email was properly and officially received, is curious in that there was no allegation to the contrary. Furthermore, the agreement THH referred to in [10] of his affidavit was not the shareholders agreement; it could not be the loan agreement because Tentat Singapore, the alleged lender, was not named as a party to it.

14 THH is not the only one to succumb to equivocation. LTH had also resorted to it. In his affidavit of 5 July 2007 filed in the suit[note: 4], he deposed that the legal advice...