Wee Shuo Woon v HT S.R.L.

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Tay Yong Kwang JA
• Judgment Date: 30 March 2017
• Neutral Citation: [2017] SGCA 23
• Citation: [2017] SGCA 23
• Date: 30 March 2017
• Docket Number: Civil Appeal No 40 of 2016
• Plaintiff Counsel: Nicholas Philip Lazarus and Elizabeth Toh (Justicius Law Corporation)
• Subject Matter: Obligation of confidentiality,Civil Procedure,Equity,Privilege,Legal professional privilege
• Hearing Date: 18 November 2016
• Published date: 04 April 2017
• Defendant Counsel: Adrian Tan Gim Hai, Yeoh Jean Wern and Hari Veluri (Morgan Lewis Stamford LLC)

Tay Yong Kwang JA (delivering the judgment of the court):

The appellant, Wee Shuo Woon (“Wee”), is the defendant in an action brought by the respondent, HT S.R.L. (“HT”). Wee applied to strike out certain portions of HT’s Statement of Claim and filed an affidavit referring to and exhibiting copies of certain emails (“the Emails”). The judicial commissioner (“the JC”) in HT S.R.L. v Wee Shuo Woon [2016] SGHC 15 (“the GD”) expunged all references to and copies of the Emails. Wee appealed against the JC’s decision. After hearing the parties, we dismissed the appeal. We now give our detailed reasons.

Facts

HT is an Italian company specialising in security technology which it supplied to law enforcement and intelligence agencies. Wee was employed as HT’s Security Specialist on 17 August 2012. On 20 January 2015, Wee tendered his notice of resignation, giving the two-month notice required under his employment contract. Accordingly, on 20 March 2015, his employment with HT came to an end.

Two months later, on 20 May 2015, HT commenced Suit No 489 of 2015 (“S 489”) against Wee for breaches of his employment contract and/or of his duties owed to HT. HT alleged that Wee had, since early 2015 or earlier, breached his duties to HT by, among other things, engaging in the business of a competitor company, ReaQta Ltd (“ReaQta”), without HT’s knowledge or prior written consent.¹ HT alleged further that Wee had been holding himself out to be ReaQta’s “Asia Pacific representative” and its “co-founder”.² HT claimed the following relief: (a) an injunction to restrain Wee from seeking employment with any of HT’s competitors and from soliciting business from HT’s clients; and (b) damages for breach of Wee’s employment contract and fiduciary duties.³

On 15 June 2015, Wee filed his defence and counterclaim. He denied breaching his employment contract and/or his fiduciary duties. He also counterclaimed for unpaid salary amounting to $23,545.45.⁴ HT denied Wee’s counterclaim and pleaded the defence of set-off.

These were the background facts leading to the present dispute. On or about 7 July 2015, HT’s computer systems were hacked by an unknown party (“the Hacking”). There was no evidence that Wee was involved in the hacking. About 500 gigabytes (“GB”) of data were extracted from HT’s systems. The data was then uploaded onto a website known as “WikiLeaks”. Amongst the uploaded information were certain email communications between HT and their lawyers, M/s Morgan Lewis Stamford LLC, ie, the Emails. The Emails contained legal advice, as well as specific information and materials pertaining to S 489. They also included express reservations and warnings of privilege and confidentiality. We set out one such reservation:⁵

This email may contain privileged and confidential information. If you are not the intended recipient of this message, please delete all copies from your computer system and do not circulate or reply to it. Please notify us immediately by return e-mail or at the above telephone or fax number.

Wee subsequently accessed WikiLeaks and located the Emails. He then filed Summons No 3852 of 2015 (“SUM 3852”) under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) to strike out the bulk of HT’s statement of claim in S 489 on the ground of abuse of process and for liberty to enter judgment on his counterclaim under O 14 r 5 of the Rules of Court. Wee alleged that S 489 was initiated for the collateral purpose of obtaining documents and evidence to support other proceedings that HT had commenced or was about to commence. In support of his application, Wee filed an affidavit (“Wee’s Affidavit”) which made references to and exhibited the Emails.⁶

In response, HT filed Summons No 3990 of 2015 (“SUM 3990”) seeking, among other matters, the following relief:⁷ An order pursuant to O 41 r 6 of the Rules of Court to expunge all references to the Emails in Wee’s Affidavit as well as copies of the Emails that were exhibited in the affidavit (“the prayer to expunge”); and An injunction to restrain Wee from further use of the Emails and all other correspondence between HT and its solicitors (“the prayer for an injunction”). The JC found that should the prayer to expunge be allowed, Wee’s striking out application would not be sustainable because it was largely premised on the contents of the Emails (GD at [4]).

SUM 3990 was heard prior to SUM 3852. At the hearing for SUM 3990 before the Assistant Registrar (“the AR”), counsel for HT, Mr Adrian Tan Gim Hai, indicated that HT was content to proceed only with the prayer to expunge (and not with the prayer for an injunction although HT reserved its right to apply afresh for an injunction at a later stage). The AR granted the prayer to expunge. Dissatisfied with the AR’s decision, Wee appealed in Registrar’s Appeal No 339 of 2015, which was heard and dismissed by the JC.

The decision of the JC

Before the JC, the parties did not dispute that prior to being uploaded onto the Internet, the Emails attracted legal professional privilege and that such privilege had not been waived by HT. Further, the parties agreed that the Emails were originally confidential in nature (GD at [6]).

The JC framed the issues before her as follows(GD at [12]): Was the matter governed exclusively by the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”)? If it was, then the bulk of HT’s submissions, based on the common law, need not be considered. Did the common law provide HT any basis to seek the prayer to expunge? The underlying question was whether the matter should be governed by the admissibility of evidence, privilege or confidentiality, or a combination of two or all three. Did the fact that the Emails had been uploaded onto the Internet and were generally accessible pose a barrier to the grant of the prayer to expunge? In considering this issue, the JC examined HT’s “public domain” arguments.

Firstly, the JC found that the matter was not governed by the EA. Section 2(1) of the EA stated that the EA did not apply to affidavits presented to any court. Further, confidentiality was a potential legal basis for relief and the law of confidence fell outside the law of evidence and was not affected by the EA (GD at [15]–[18]).

Secondly, the JC sought to clarify the distinction between the concepts of legal professional privilege, admissibility of evidence and the law of confidentiality. She surveyed the cases of Calcraft v Guest [1898] 1 QB 759 (“Calcraft”), Lord Ashburton v Pape [1913] 2 Ch 469 (“Lord Ashburton”), Webster v James Chapman & Co [1989] 3 All ER 939, Goddard and another v Nationwide Building Society [1986] 3 WLR 734 (“Goddard”), Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42 (“Tentat”) and Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd [2010] 1 SLR 883. Having done so, she came to the following propositions (GD at [40]): the fact that a document is privileged does not preclude the admissibility of copies of the same into evidence; the court may, in the exercise of its equitable jurisdiction to restrain breach of confidence, restrict the disclosure and use of privileged documents which have been disclosed to third parties in order to protect their confidential character; the court may restrain the use of the privileged documents by way of an order to expunge offending portions of pleadings or affidavits; and an application to expunge such offending portions of pleadings or affidavits must be filed before the privileged documents have been formally admitted into evidence.

Thirdly, the JC found that on the facts, the Emails had not been used in S 489. They had been referred to and exhibited in Wee’s Affidavit which was filed in support of SUM 3852 which had yet to be heard. Hence, the Emails had yet to enter into evidence and the court retained the jurisdiction to grant the prayer to expunge to restrain a breach of confidence (GD at [44]).

The JC added that the fact that documents were publicly accessible (even on the Internet) would not necessarily stifle an action in confidence. In each case, the court was concerned with whether the degree of accessibility to the information was such that, in all the circumstances, it would not be just to require the party against whom a duty of confidentiality is asserted to treat the information as confidential (GD at [47]). The JC held that despite the availability of the Emails on the Internet, it remained just and reasonable to impose an obligation of confidentiality on Wee in respect of the Emails. She reasoned as follows (GD at [51]–[54]): the Emails contained discussions between HT and its lawyers regarding S 489 and remained privileged against disclosure; the Emails were being used against HT in respect of S 489, the very proceedings for which they had been prepared, and HT had a compelling interest in restraining their use in S 489; HT was the victim of a cybercrime and Wee was well aware of that fact; and the Emails contained express provisos of privilege and confidentiality which clearly put Wee on notice of their privileged and confidential nature.

The JC took the view that it was not open to her to refuse relief on the ground that it would increase the amount of relevant material available to the court. In her view, the balance between the competing policy imperatives of truth and privilege had already been struck in favour of the preservation of legal professional privilege (GD at [60]).

The parties’ respective arguments Wee

Wee submitted that the Emails revealed that HT had been acting in a dishonest and deceitful manner and abused the legal process.⁸ He alleged that in the Emails, HT admitted owing him his unpaid salary (which he was claiming in his counterclaim) but yet intentionally withheld payment of the same.⁹ Further, HT abused the process of the court by using it to delay rightful payment...