AMBER COMPOUNDING PHARMACY PTE LTD & ANOR V PRISCILLA LIM SUK LING & 5 ORS [2019] SGHC 269
Can documents obtained by a party pursuant to a search order be disclosed to the authorities for the purposes of reporting and investigating possible commission of an offence? This issue arose in the High Court decision of Amber Compounding Pharmacy Pte Ltd & Anor v Priscilla Lim Suk Ling & 5 Ors [2019] SGHC 269 (“Amber v Priscilla”).
Salient facts. In brief, the plaintiffs in Amber v Priscilla had obtained search orders against the defendants, and executed the orders to seize certain documents. The search orders contained the following paragraph ([3] Amber v Priscilla):
“Not, without the leave of the Court, to inform anyone else of this Order or the carrying out of this Order or to use any information or documents obtained as a result of the carrying out of this Order except for the purposes of these proceedings or to inform anyone else of these proceedings until the trial or further order.”
The plaintiffs opined that certain of the documents obtained revealed that the defendants had committed various offences, and disclosed some of the documents to the authorities ([5] Amber v Priscilla).
The Riddick principle. The High Court analysed the issue by first referring to the well-known Riddick principle: that where a party to litigation has been ordered to give discovery, the discovery party may not use the discovered document (or information obtained therefrom) for any purpose other than pursuing the action in which the discovery is obtained ([13] Amber v Priscilla).
Noting that Riddick concerned an application for disclosure of documents for use in other civil matters ([15] Amber v Priscilla), the High Court observed that nonetheless, courts have generally proceeded on the basis that leave of court is required before the documents can be disclosed even to further criminal investigation or prosecution ([18] Amber v Priscilla).
After analysing authorities from various jurisdictions, the High Court held that the conditions set out in Beckkett Pte Ltd v Deutsche Bank AG [2005] 3 SLR(R) 555 (the “Beckkett conditions”) must be satisfied: i.e., “… where cogent and persuasive reasons have been furnished for the request, and the release would not give rise to any injustice or prejudice to the party who had given discovery…” ([14] and [31] Amber v Priscilla).
However, the High Court held that the second of the Beckkett conditions must be modified: this is because “… the mere exposure to investigation for possible commission of offences does not without more amount to injustice or prejudice under the second Beckkett condition… the prospect of criminal investigation or prosecution that is occasioned by such disclosure should not on its own constitute relevant prejudice…” ([32] Amber v Priscilla).
Observation. In summary, the High Court in Amber v Priscilla has sought to strike a balance between the public interest in prosecution against the public interest in ensuring the integrity of the discovery process. The result is a very fact-centric analysis, as can be seen from [34] – [56] Amber v Priscilla.
Nonetheless, it is clear that as a starting point, and as emphasized in the concluding paragraph of Amber v Priscilla, the “overarching principle remains that documents obtained via discovery or by a search order should not be used for a purpose other than pursuing the action in respect of which the discovery is obtained.”
Tags: Civil litigation; Discovery; Riddick principles; Beckkett conditions; Disclosure for purposes of criminal investigation; Release of undertaking for criminal investigation purposes
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