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CASE COMMENTARY: [2020] SGCA 76

Updated: Oct 8, 2020

Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] SGCA 76 (“Priscilla Lim”)


In Priscilla Lim, the Plaintiffs, namely, Amber Compounding Pharmacy Pte Ltd and Amber Laboratories Pte Ltd (collectively, “Amber”) sought to overturn the High Court’s dismissal of Amber’s application for a release of the ‘Riddick undertaking[1] in relation to documents obtained as a result of a search order against the defendants, namely Lim Suk Ling Priscilla and UrbanRX Compounding Pharmacy Pte Ltd, (collectively the “Defendants”).

While Priscilla Lim touched on a wide range of legal issues, this commentary will focus on how the Court of Appeal’s comments potentially affect a party’s reliance on the privilege against self-incrimination to set aside an ‘Anton Piller order’[2].

Before examining Priscilla Lim itself, it is important to briefly recap how the privilege against self-incrimination is relevant when a party seeks to set aside an Anton Piller order.

In Riedel de Haen AG v. Liew Keng Peng [1989] 1 SLR(R) 417 (“Riedel), the High Court unequivocally held at [12] that the privilege against self-incrimination was a principle of English law received in Singapore by virtue of the Charter of Justice 1826. The High Court in Riedel also held that in civil proceedings, the privilege extends to discovery of documents which will tend to criminate or subject the defendant to a penalty or forfeiture.

The High Court in Riedel held that defendant could rely on the privilege against self-incrimination to discharge the orders against him which related to the provision of information and documents. In deciding as such, the High Court highlighted the authority of the House of Lords decision in Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76 (“Rank Film). At [4] of Riedel, the High Court noted that in Rank Film, the House of Lords held that there was no way in which the court could compel disclosure and protect the respondents from the consequences of self-incrimination since (a) an express restriction imposed by the court on the use of any information disclosed would be binding on the appellants and not on anyone else who brought a criminal prosecution and (b) the restriction would in any event would not bind a criminal court to exclude the information as inadmissible evidence.

As of date of this commentary, it appears settled[3] that the privilege against self-incrimination can be invoked by respondents subject to an Anton Piller order in relation to the parts of the order requiring disclosure of information and documents if there was a real risk that the incriminating answer or answers would expose the respondent to arrest or prosecution for any criminal offence. To this extent, the position has not changed since Riedel.

What is less clear, is:

(a) Whether an applicant can rely on its Riddick undertaking to argue against the the respondent’s application to discharge an Anton Piller order by asserting the respondent’s privilege against self-incrimination; and

(b) Whether, as opposed to the parts of the Anton Piller order concerned with the provision of information and documents, the privilege against self-incrimination even applied to ‘search or seizure’ orders at all.

After the Court of Appeal’s comments in Priscilla Lim, these issues now appear to be ripe for argument.

At [69] of Priscilla Lim, Steven Chong JA (delivering the judgment of the Court), said that in determining whether the circumstances are such as to justify lifting the Riddick undertaking, the general tenor of the authorities demonstrates that a balancing exercise is to be conducted. The Honourable Judge of Appeal then proceeded at [71] to [76] to set out non-exhaustive factors relevant in the balancing exercise and also to provide observations on the appropriate weight to be given to privileges in the balancing exercise.

In applying the balancing exercise to the present case, the Court of Appeal stated that the “weightiest factor[4]” against the release of the Riddick undertaking was the defendants’ privilege against self-incrimination. In the High Court, the Judge below had found that the appropriate time for the defendants to assert the privilege against self incrimination was after they had engaged lawyers to set aside the search orders. According to the Judge below, by asserting the privilege on 11 March 2019, which was almost a year after the search orders were executed, the defendants waived their privilege against self-incrimination. The Court of appeal disagreed with this position[5].

The Court of Appeal then went on to cite several reasons as to why the right to assert the privilege only arose after Amber had applied to remove its undertaking. However, what the Court gave particular attention to was the fact that in support of its application for the Anton Piller orders, Amber had given express assurances acknowledging their Riddick undertakings. As this comment by the Court of Appeal is critical, we reproduce the paragraph in its entirety for reference:

Had the [Defendants] attempted to assert their privilege against self-incrimination at the time of the searches, such an assertion would have been dismissed as “fanciful”, rather than “reasonable”, as they would have had to assert their privilege in a vacuum, vis-à-vis all the documents, which were in excess of 100,000 in number. Given the expansive volume of documents and the common understanding between the parties on the scope and purpose of the search orders, it would be entirely unreasonable to expect the defendants to identify the specific documents over which the privilege was to be asserted. After all, it was both the direction of the Judge and the common understanding of the parties that the defendants’ documents would be returned to the defendants. Apart from being a blanket and untargetted assertion, any assertion of the privilege would have been particularly fanciful as Amber had, prior to obtaining the search orders, given assurances to the court that the seized documents would be utilised “purely and solely for the purpose of obtaining further evidence that is necessary to [Amber’s] case without risking the [defendants’] destruction of the said evidence” [emphasis added]. Under those circumstances, there was simply no occasion for the defendants to entertain the necessity of asserting their privilege against self-incrimination writ large, much less for the Documents which Amber is seeking leave to disclose to the authorities.[6]” [emphasis added]

Given these reasons, the Court found that at the time at which they were served with the search orders, the Defendants were not in a position to object on the basis of the privilege against self-incrimination.

These comments from the Court of Appeal provide litigants ammunition to argue against the authority of Riedel and Rank Film. In other words, when a respondent applies to discharge an Anton Piller order and asserts the privilege against self incrimination, the applicant can argue that the assertion is fanciful because the applicant has given an Riddick undertaking and/or has even given express assurances of the same. Conversely, respondents seeking to counter this argument may attempt to argue that the Court of Appeal in Priscilla Lim had made its finding based on several factors, and that the privilege against self incrimination cannot simply be deemed fanciful solely on the basis that a Riddick undertaking is given.

A further point which does not appear settled is whether the privilege against self incrimination applies to search orders at all.

In Rank Film the House of Lords held, though without much elaboration as the issue was not seriously considered, that the privilege against self-incrimination did not apply to the order stating that the plaintiffs were to be given access to the defendants premises to seize any illicit copy films, i.e the search and seizure order[7]. According to the House of Lords, the privilege only applied to orders relating to the disclosure of information and documents. Likewise in Riedel, the Singapore High Court was only concerned with the application of the privilege against self-incrimination in relation to orders relating to the disclosure of information and documents.

In Priscilla Lim, the Court of Appeal held that the privilege against self-incrimination was the ‘weightiest factor’ in considering whether to lift a Riddick undertaking in relation to documents and items which had been obtained by Amber from the Defendants through a search and seizure of the Defendants premises and the Defendants computers[8]. By extension, if the privilege applied to an application to lift the Riddick undertaking, it must also then be relevant when a respondent applies to set aside an Anton Piller order.

It is respectfully submitted that where relevant, the respondent should be allowed to assert the privilege against self-incrimination in relation to search and seizure orders. There does not appear to be any discernible reason why the privilege only applies to orders for the provision of information and documents and not to search and seizure orders since, as the case of Priscilla Lim itself shows, the documents could very well be distributed to third parties once seized, thus incriminating the defendants subject to the orders[9]. The Court should then consider, as it would with an order for provision of documents and information, how much weight is to be given to that objection in light of all other relevant considerations, including the prejudice suffered by the plaintiff if the search and seizure orders were discharged.

Moving Forward

The issues discussed above show a conflict between the varying interests of parties that the Court seeks to protect. In granting Anton Piller orders, the Courts seek to rely on their inherent jurisdiction to preserve crucial evidence for a plaintiff’s case so that a defendant cannot frustrate the process of justice. At the same time, the extensive and intrusive orders against the respondents must be balanced against the respondents rights, including the right to assert the privilege against self-incrimination. The tug of war between these conflicting interests are particularly relevant in cases involving infringements of intellectual property rights, as was the case in Riedel and Rank Film. Given Singapore’s goal of being an Intellectual Property Hub in Asia[10], the abovementioned issues deserve judicial clarification.

[1] The implied undertaking not to use disclosed documents for any collateral purpose as described in Riddick v. Thames Board Mills Ltd. [1977] Q.B 881 is known as a ‘Riddick undertaking’. A brief summary of the Riddick undertaking can be found at Singapore Civil Procedure (Sweet & Maxwell, 2019, Volume 1) (the “White Book”) at paragraph 24/1/6. Express undertakings similar to a Riddick undertaking are often enclosed with Anton Piller orders (see the Supreme Court Practice Directions, Appendix A, Form 6, Paragraph 8, Schedule 3, paragraph 6 which reads: "[The Applicant undertakes] [n]ot, 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 carrying out this order except for the purposes of these proceedings or to inform anyone else of these proceedings until the trial or further order." [2] The ‘Anton Piller’ order gets its name from the English Court of Appeal case of Anton Piller KC v. Manufacturing Processes Ltd. [1976] Ch. 55. As described at 29/1/6 of the White Book, in that case “the English Court of Appeal confirmed that the English court has jurisdiction for the purpose of preserving the subject-matter of a cause and of documents relating thereto, to grant a mandatory injunction requiring the defendant to permit the plaintiff to enter upon the defendant’s premises to enable him to inspect such material and to seize and to remove it into safe custody”. Anton Piller orders also typically include supplementary orders for the provision of information or production of documents (see Riedel at [1] and [2]). As will be explained in this commentary, there appears to be a distinction drawn between search orders as against orders for discovery and inspection when deciding whether the privilege against self-incrimination applies. Although ‘Anton Piller’ orders are now commonly known as ‘search orders’, this commentary will refer to them as Anton Piller orders to avoid any confusion between ‘search/seizure’ orders and orders for production of discovery and inspection. [3] See Jeffrey Pinsler,SC Evidence and the Litigation Process (Lexis Nexis, Seventh Edition) at paragraphs 15.056 and 15.057. [4] [78] of Priscilla Lim [5] [82] of Priscilla Lim [6] Paragraph [87] of Priscilla Lim [7] Rank Film at pg. 441 [8] In other words, the Court of Appeal was concerned with ‘search and seizure orders’, not orders for the production for provision of documents and information. See paragraphs [9] – [13] of Priscilla Lim. [9] At [83] of Priscilla Lim, the Court of Appeal also cited Nikkoman as it was relied upon by the Judge below in finding that the privilege was waived. The Court of Appeal referred to the orders in Nikkoman as ‘search orders’ although in Nikkoman these orders were orders for disclosure of information and documents. It appears that the Court of Appeal in Priscilla Lim may also not see any distinction between the two for the purposes of deciding whether the privilege of self incrimination were to apply. [10] See ‘Final Report: Review of Singapore’s IP Dispute Resolution Framework’ at 1.1, available at the following link: https://www.mlaw.gov.sg/files/Annex_B_IPDR_Final_Report.pdf







You can find the complete judgement at the following link:

https://www.singaporelawwatch.sg/Portals/0/Docs/Judgments/2020/[2020]%20SGCA%2076.pdf ____________________________________________________________________________


This article is not professional legal advice. If you have further enquiries, please reach out to us.

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