PT Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others

Tan Lee Meng J:

[1] The present dispute between the parties arose as a result of misleading advertisements placed by both parties in Indonesian newspapers with respect to orders made by the Singapore High Court more than six years ago in February 2004. The applicant, PT Makindo, an Indonesian investment bank, applied for an order that the 1 respondent, Aperchance Co Ltd, a Hong Kong company, be fined for contempt of court. It also sought an order that the 2 respondent, Mr Otto Rodusek, and the 3 respondent, Mr Toh Keng Siong, who are the 1 respondent’s only directors be fined or committed to prison for aiding the said contempt.

[2] On 22 November 2003, the 1 respondent commenced Suit No 1149 of 2003/H (“Suit 1149”) against the applicant and three other defendants for, inter alia, the repayment of approximately US$126m. The three other defendants in that action were the applicant’s officers, Rachmiwaty Jusuf, Gunawan Jusuf and Claudine Jusuf (collectively referred to as the “Jusuf defendants”).

[3] On 24 November 2003, pursuant to an ex parte application, the 1 respondent obtained a worldwide Mareva injunction against the applicant and the Jusuf defendants (the “Mareva injunction”).

[4] On 23 December 2003, the Jusuf defendants filed two applications. The first application, Summons No 7795 of 2003/Q, was to set aside the Mareva injunction. In the second application, Summons No 7802 of 2003/K, the Jusuf defendants sought the following:

[7] Advised by its Singapore counsel that Lai J’s orders did not affect its right to pursue its claim in Indonesia, the 1 respondent instructed its Indonesian lawyers, M/s Lucas SH & Partners, to make representations to various Indonesian government agencies with respect to the said claim. The 3 respondent said that on 11 April 2008, he was informed that the applicant’s representatives had been called for an interview by the authorities. Hence, the respondents asserted that the applicant and the Jusuf defendants were clearly aware that the 1 respondent intended to pursue its claim for the recovery from them of its monies in Indonesia.

[8] According to the respondents, the applicant and the Jusuf defendants embarked on a scheme to discredit, embarrass, intimidate and pressure the 1 respondent into dropping its claim against them and that this plan involved the starting of a media war against the 1 respondent to prejudice it in the eyes of the relevant Indonesian authorities. Whether or not this accusation is true, the applicant published a number of misleading advertisements in Bahasa Indonesia in several Indonesian newspapers including Bisnis Indonesia, Kompas and Kontan in December 2009 and January 2010. The English translation of part of the applicant’s advertisements is as follows:

[9] The applicant’s claim in its advertisements that the 1 respondent’s claim in Suit 1149 had been dismissed by the Singapore courts following a trial in 2004 was clearly untrue as Lai J had only considered the issue of jurisdiction and not the merits of the case. As for the applicant’s claim that it no longer owed any obligation to repay the monies claimed in that suit to the 1 respondent, this was regarded as untrue by the respondents.

[10] The 1 respondent retaliated by placing Bahasa Indonesia advertisements, mostly in the same Indonesian newspapers that carried the applicant’s earlier advertisements, between 7 and 11 January 2010. The English translation of part of the 1 respondent’s advertisements is as follows:

[11] Like the applicant’s advertisements, the 1 respondent’s advertisements were also misleading as the Mareva injunction in question had been discharged by Lai J on 27 February 2004.

[12] The applicant, who had fired the first salvo in what the respondents termed as “the media war”, claimed that it was “shocked” by the 1 respondent’s advertisements. On 20 January 2010, the applicant’s lawyers, Rajah & Tann wrote to the 2 respondent to state that the 1 respondent’s advertisements were calculated to cause serious harm and damage to their client, who would be seeking to “recover substantial damages and reliefs … against [the 1 respondent] and its directors.”

[13] Subsequently, on 18 February 2010, the applicant filed Originating Summons No 190 of 2010/D (“OS 190”) on an ex parte basis for leave to make an application for an order of committal for contempt of court against the respondents. The applicant did not disclose its own earlier misleading advertisements to the court. The requisite leave was granted to the applicants on 2 March 2010 and the application was heard on 24 May 2010.

[14] Section 7(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) and O 52 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) give the High Court power to punish for contempt of court. The rationale for punishing such contempt has been explained on numerous occasions. In Attorney-General v Times Newspapers Ltd [1974] 1 AC 273, Lord Morris of Borth-y-Gest stated at 302:

The views of Lord Morris were endorsed by the Singapore Court of Appeal in Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518 (“Pertamina”) at [22].

[15] Contempt of court must be proven beyond reasonable doubt: see Pertamina at [35]. Lord Denning MR explained why this is so in In re Bramblevale Ltd [1970] 1 Ch 128 at 137 as follows:

[16] As the court’s jurisdiction to punish for contempt is draconian in nature, it must be exercised sparingly. In Parashuram Detaram Shamdasani v King- Emperor [1945] 1 AC 264, Lord Goddard observed at 270:

[17] In attempting to prove contempt of court on the part of the respondents, the applicant must confine its case for an order of committal to the grounds raised in its Statement filed under O 52 r 2(2) of the Rules of Court (“Statement”) because O 52 r 5(3) provides:

[18] In its Statement filed pursuant to O 52 r 2(2), the applicant alleged at paras 18 and 19 as follows:

[19] According to the applicant’s Statement, the 1 respondent had, by placing the said advertisements, failed and/or refused to comply with the 27 February 2004 Order and had thwarted and frustrated the very purpose of the said Order.

[20] The relevant part of the 27 February 2004 Order is as follows:

[21] Mr Davinder Singh SC, the 1 respondent’s counsel, pointed out that his client did not breach the above-mentioned terms of the Order. He explained in his written submission at para 16(b):

[22] Mr Singh is correct because the 1 respondent’s then solicitors, M/s Yeo Wee Kiong Law Corporation (“YWK”), had delivered copies of the said Order to Credit Suisse/Credit Suisse First Boston, UBS AG and HSBC Singapore on 5 March 2004. These were the parties in Singapore on whom the Mareva injunction had been served.

[23] Although contempt of court has been described as the Proteus of the legal world and assumes an almost infinite diversity of forms (see the oft-cited article by Joseph Moskovitz, "Contempt of Injunctions, Civil and Criminal" (1943) 43 Colum L Rev 780 at p 780), acts of contempt are generally classified as acts that scandalise the courts or interfere with the course of justice.

[24] In the present case, the 1 respondent did not scandalise the court as it did not impugn the impartiality, integrity or independence of the judiciary. Neither did it interfere with the administration of justice. The misreporting of continuing proceedings may, depending on circumstances, be a contempt of court if further proceedings are likely to be prejudiced or if this effect was intended by the misreporting but different considerations arise when the proceedings in question have already ended. If a judgment is misrepresented in a way that injures the reputation of one of the parties to the action, the remedy open to the injured party is, without more, to sue for defamation. In Dunn v Bevan; Brodie v Bevan [1922] 1 Ch 276, Sargant J explained at 285:

[25] The facts in Dunn v Bevan bear some resemblance to the present proceedings before this court. In that case, the plaintiffs, who were members of a trade union, instituted proceedings against the defendants, the Executive Council of the union, to prevent them from proceeding on the result of certain ballots which had been improperly conducted. Sargant J, who restrained the defendants from acting on the result of the ballots, absolved the defendants from the charges of fraud brought against them. The Executive Council sent to its members a circular letter which was not in every respect accurate. It was erroneously stated that the charges brought by the plaintiffs had been withdrawn when there had been no such withdrawal. There were other inaccuracies. In response to this circular, the plaintiffs issued their own circular and suggested in it that the defendants had not been cleared of fraud. The defendants sought an injunction to restrain the issuance of the circular on the basis that it was a contempt of court. In making it clear that the issue of contempt of court did not arise, Sargant J pointed out (at 287) that if the court was “to be burdened with examining statements of this kind between rival parties as to what exactly took place in proceedings in an action which has come to an end and has been terminated by a formal judgment, the Court might for many a long day be occupied with such applications, and have its burdens very considerably increased without any good result” (emphasis added). Sargant J added (at 284) that as he had already given judgment in the action, the Court ought not to trouble itself with the matter unless it was absolutely compelled to do so, as would be the case if the report scandalised the court by making attacks on the judge who presided at the trial.

[26] In the present case, the proceedings in Suit 1149 ended more than six years ago on 27 February 2004. As such, the court should not trouble itself with the misleading advertisements of both parties, and especially so when the applicant can sue the respondents for defamation. After all, an order of committal is regarded as a measure of last resort and such an order should not be sought when there are other reasonable alternatives: see Danchevsky v Danchevsky [1975] Fam 17. This is also set out in Singapore Civil Procedure 2007 (G P Selvam chief ed) (Sweet & Maxwell Asia, 2007) at para 52/1/6:

[27] At this juncture, two cases relied on by the applicant will be considered. To begin with, the applicant relied on Pertamina for its assertion that the 1 respondent thwarted and frustrated the purpose of the Mareva injunction in February 2004. In that case, X obtained a Mareva injunction in Singapore against Y. Exception 2 of this injunction did "not prohibit [Y] from dealing with or disposing of any of [its] assets in the ordinary and proper course of business" but Y was required to "account to [X] weekly for the amount of money spent in that regard". X’s Singapore lawyers were informed on 26 January 2005 that funds intended for Y’s course of business in Hong Kong would be transferred from a Singapore bank to Dah Sing Bank in Hong Kong. Y made it clear that the disclosure was pursuant to Exception 2 of the Singapore injunction and itemised the payments that will be made out of the funds transferred to Hong Kong. X’s Singapore lawyers forwarded the information to X’s Hong Kong solicitor, who quickly applied for and was granted an order to garnish the money transferred by Y to Dah Sing Bank. Y applied for an order of committal against X and its Hong Kong solicitors for contempt of court on, inter alia, the ground that X had thwarted and frustrated the operation of Exception 2 of the Singapore injunction by directly preventing X from dealing with its assets in the ordinary and proper course of business. The Court of Appeal held that X was in contempt of court and that its Hong Kong solicitor had aided and abetted in that contempt.

[28] The facts in Pertamina are quite different from those in the present case. In Pertamina, the Mareva injunction was still in force when X tried to undermine it by garnishing money that Y had forwarded to Hong Kong in accordance with Exception 2 of the injunction. This thwarted and frustrated Exception 2 of the injunction. In the present case, the Mareva injunction was lifted six years ago and the applicant’s money has not been siphoned to the 1 respondent in breach of the court order that lifted the Mareva injunction. As such, Pertamina is not relevant to the present proceedings.

[29] Another case relied on by the applicant is Re Bineet Kumar Singh [2003] 3 LRI 375. In that case, an Indian sports college’s petition to the court to allow its students to sit for an examination conducted by the appropriate authority was dismissed. The college forged a court order directing the State Government of Maharashtra to conduct the examination for its students. In holding that those college officers responsible for transmitting the fabricated court order to the State Government had acted in contempt of court, the Court held at [6]:

[30] The facts in Bineet are very different from those in the present case. The 1 respondent did not fabricate a Mareva Injunction and he did not cause banks holding the applicant’s money to freeze the latter’s accounts. As such, Bineet is irrelevant to the present case.

[31] Thus far, I have found that the 1 respondent had complied with the 27 February 2004 Order and that if the applicant believed that its reputation has been injured as a result of the 1 respondent’s advertisements, it should sue the latter for defamation.

[32] The respondents relied on yet another ground for dismissing the present application. This concerns the failure of the applicant to serve a copy of the Order of Court dated 27 February 2004 or an order endorsed with the requisite penal notice personally on the 2 and 3 respondents. The requirement for a penal notice to be personally served is provided for by O 45 r 7 of the Rules of Court. The position is explained in Singapore Court Practice 2009 (Jeffrey Pinsler SC gen ed) Lexis Nexis at para 45/7/2:

[33] The significance of a penal notice was elucidated in Allport Alfred James v Wong Soon Lan [1988] 2 SLR(R) 520 by Chao Hick Tin JC, who stated at [8]:

[34] As the applicant had failed to effect personal service of the 27 February 2004 Order and the requisite penal notice on the 2 and 3 respondents, its application against them cannot succeed.

[35] Finally, it ought to be noted that the respondents also pointed out that the application should be dismissed because the 27 February 2004 Order did not specify a time frame for compliance. As I have held that the 1 respondent did not breach the 27 February 2004 Order, this point need not be considered further.