Youprint Productions Pte Ltd v Mak Sook Ling

• Jurisdiction: Singapore
• Judge: Ng Tee Tze Allen
• Judgment Date: 22 June 2022
• Neutral Citation: [2022] SGDC 131
• Court: District Court (Singapore)
• Hearing Date: 06 December 2021,21 February 2022,17 March 2022
• Docket Number: District Court Suit No 688 of 2020, District Court Appeal No 20 of 2022
• Plaintiff Counsel: Roche Eng Keng Loon (R.E. Law LLC)
• Defendant Counsel: Wong Jieh (Circular Law Chambers LLP)
• Subject Matter: Employment Law,Contract of service,Breach,Pay,Damages,Special damages
• Published date: 29 June 2022

District Judge Ng Tee Tze Allen:

The plaintiff is a company which provided printing solutions and services.¹ It engaged the defendant as a Sales Executive pursuant to a Letter of Appointment dated 13 January 2016 (“Employment Contract”). The defendant worked for the plaintiff for approximately three years. She tendered her resignation on 30 April 2019. Her last day of service with the plaintiff was on 2 May 2019.²

About 5 months after the defendant’s departure, the plaintiff was informed by one of its customers, AA Translink Pte Ltd, that the defendant had contacted them for business. This led to the plaintiff commencing this suit. It alleged that the defendant used its customer list to approach its customers for work in breach of her obligations under the Employment Contract. It claimed that it suffered loss as a result.

The defendant accepted that she had contacted the plaintiff’s customers. However, she denied that she breached of her obligations to the plaintiff or that the plaintiff suffered any loss. The defendant also made a counterclaim for various sums which she alleged was due to her.

Having heard the evidence and considered the parties’ submissions, I dismissed the plaintiff’s claim and allowed the defendant’s counterclaim to the sum of S$2,684.24. The plaintiff has appealed against my decision vis-à-vis its claim. As such, I set out my reasons below.

The plaintiff’s claim Whether the defendant breached her duties to the plaintiff

In the main, the plaintiff’s case was that the defendant had breached various express and implied duties under her Employment Contract by making use of its confidential information to solicit the business of the plaintiff’s customers.³

I was prepared to accept that this was the case on the evidence before me. First, the terms of the Employment Contract indicated that the defendant owed the plaintiff a contractual duty of confidence in respect of the customer information. Clause 10 of the Employment Contract is titled “Confidentiality Clause” and it contained, inter alia, the following sub-clauses: Clause 10.2 which provided that the defendant “shall be the custodian of any proprietary or confidential information which [she] may have obtained during [her] employment” and that she “shall not either during the continuance of the [Employment Contract] or thereafter … divulge or allow to be divulged to any person, whomsoever such confidential information.” ⁴ Clause 10.3 which makes clear that customer information is confidential information. In Clause 10.3 the defendant agreed that “all documents (including but not limited to … list of clients or customers …) made or compiled by or delivered to you … shall at all times be vested in the [plaintiff] and shall remain its sole property.”⁵

Second, the defendant accepted that she had obtained the plaintiff’s customer’s contact details in the course of the parties’ employment relationship. In her AEIC, she stated that she stored plaintiff’s customers contact details in her handphone because “the [p]laintiff did not provide [her] with a handphone for work” which led to her using her personal handphone as her work handphone.⁶

Under these circumstances, I was prepared to find that the plaintiff’s customer information was confidential and that the defendant was duty bound not to use it for the benefit of the plaintiff’s competitors. Indeed, the defendant did not seriously contest this point in her Closing Submissions or Reply Submissions. Instead, she focused on: whether she had used the plaintiff’s customer information to persuade the plaintiff’s clients to give business to its competitors (which I consider at [9] below); and whether the plaintiff suffered any loss (which I consider at [12]-[13] below).

In respect of the first issue, I find that the defendant had used the customer information to contact the plaintiff’s customers for business and this was to persuade them to give her business. In her AEIC, she explained that she started working as a self-employed freelancer doing printing work after leaving the plaintiff. To that end, she registered as a sole proprietor under the name Inkgraphic Print and started outsourcing work to Superlink Holdings Pte Ltd.⁷ In this context, the defendant sent the following messages: On 25 October 2019,⁸ the defendant sent the following text message to AA Translink’s Mr Ong Swee Beng:⁹

Hi Monkey Meng, Jocelyn here, i hav left Youprint since May n I now work outdoor sales at Superlink Holdings Pte Ltd, if u got any printing or installation job can look for me to quote yea [emoticon]

My email address: …

www.superlink.com.sg

Thank u very much [emoticon]

A similar message was sent to one Jerry in 2019. In this respect, there was some confusion as to whether this message was sent in August 2019¹⁰ or October 2019.¹¹ However, little turned on the timing of this message. It was undisputed that Jerry was one of the plaintiff’s customers and it seemed clear that the defendant was looking for work when she sent him the following message:¹²

Hi Jerry, Jocelyn here, do let me know if you need any large format printing or installation, digital printing such as flyer, brochure, etc …

Email address: …

Website: www.superlink.com.sg

Thank you and wish you have a nice day!! [emoticon]

For completeness, I note also that Clause 12.1.2 of the Employment Contract prohibited the defendant from “solicit[ing] or entic[ing] away from [the plaintiff] the custom of any person … who shall at the time of solicitation or enticement have been a customer [or] client … of the [plaintiff] … in any time within the preceding 24 months” for a period of one year from the termination of her employment.¹³ However, as this provision was not relied on by the plaintiff, I make no comment on the same.

Remedies sought by the plaintiff

In its Statement of Claim, the plaintiff sought damages for the alleged loss and damage that it suffered.¹⁴

It is trite that generic pleas for damages relate to normal compensatory damages, and the plaintiff bears the burden of proving its case. However, the plaintiff did not discharge its burden. Even though it called two witnesses to testify on its behalf, neither advanced the plaintiff’s case: The first witness was the director of customer AA Translink Pte Ltd, Mr Ong Swee Beng. Mr Ong testified that the plaintiff did not suffer any loss of business from AA Translink Pte Ltd. He explained that he continued to give business to the plaintiff because he had worked with the plaintiff for “quite a long time”.¹⁵ The second witness was its director Mr Lim Zhongming Lionel. Mr Lim confirmed Mr Ong’s evidence that the plaintiff did not lose any business from AA Translink Pte Ltd.¹⁶ Mr Lim also admitted that he was unsure whether the defendant’s actions had led to the plaintiff suffering any loss,¹⁷ and that he had not adduced any “evidence or documents” which showed a “drop in sales”.¹⁸

Under these circumstances, the plaintiff would have been awarded nominal damages at the most. Indeed, the defendant argued strongly that that the plaintiff had suffered no loss.¹⁹

Possibly due to this, the plaintiff did not pursue its claim for normal compensatory damages in its Reply Submissions. No attempt was made at rebutting the defendant’s submission that the plaintiff suffered no loss. Instead, the plaintiff sought an account of profits. In support, the plaintiff made the bare assertion “that the Defendant had indeed gained benefit from the breach”,²⁰ referred to the House of Lords decision in Attorney General v Blake [2001] 1 AC 268 (“AG v Blake”),²¹ and submitted that “the Defendant ought not to receive any benefits from the alleged wrongdoing and that a financial award be granted to the Plaintiffs in their claim against the Defendant”.²²

In my judgment, the plaintiff’s claim for an account of profits must fail for want of pleading. There was little doubt that an account of profits for breach of contract is a form of “special damages” which needs to be expressly pleaded: That “special damages”, unlike “general damages”, are not presumed and need to be specifically pleaded is trite: Phua Seng Hua v Kwee Seng Chio Peter [2002] SGHC(A) 11 at [41]. The rationale was explained by the Court of Appeal in Noor Azlinbte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] SGCA 111 at [258]:

First, facts warranting the grant of special damages are not those that the law will presume to be the natural, direct or probable consequences of the action complained of. They do not follow from the action complained of in the ordinary course. Second, and as a corollary to the first reason, they are exceptional character.

(emphasis mine)

In this respect, it is clear that an account of profits is a form of special damages. It is not ordinarily awarded and is relevant only in exceptional circumstances. This is apparent from the very paragraph of AG v Blake that the plaintiff relied on in its Reply Submissions:²³

Remedies are the law’s response to a wrong (or, more precisely, to a cause of action). When, exceptionally, a just response to a breach of contract so requires, the court should be able to grant the discretionary remedy of requiring a defendant to account to the plaintiff for the benefits he has received from his breach of contract.

(emphasis mine)

I am fortified in my decision above by the recent decision in Koh Chew Chee v Liu Shu Ming [2022] SGHC 25. After observing at [151]-[172] that it has not been determined whether AG v Blake formed part of Singapore law of contract, the Court held at [171] that “ordinary compensatory remedies should at least be unavailable before a gain-based remedy is even considered”.

Pleading issues aside, it was also not clear why the plaintiff could not obtain ordinary compensatory damages save that it had not adduced sufficient evidence. It stated the following at [21] of its Reply...