IN THE GENERAL DIVISION OF

THE HIGH COURT OF THE REPUBLIC OF SINGAPORE

[2023] SGHC 10

Suit No 874 of 2021 (Registrar’s Appeals Nos 245, 246 and 247 of 2022)

Between

Systematic Airconditioning Pte

Ltd
… Plaintiff
And

(1) Ho Seng Ken

(2) Zheng Xiangxi
(3) CTE Automobile Pte Ltd
(4) United SG Automobile Pte Ltd
(5) Alpha Refrigeration
Engineering Pte Ltd
(6) Central Automotive Pte Ltd
… Defendants

GROUNDS OF DECISION

[Evidence — Witnesses — Privilege — Marital privilege]

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 TABLE OF CONTENTS

INTRODUCTION............................................................................................1

BACKGROUND FACTS ................................................................................2

ISSUES ..............................................................................................................5

WHETHER S 124(1) OF THE EA PROTECTED A PERSON

FROM DISCLOSING COMMUNICATIONS MADE BY HIM TO
HIS SPOUSE DURING MARRIAGE ...........................................................6

THE SCOPE OF COMMUNICATIONS BETWEEN SPOUSES

THAT FELL WITHIN S 124(1) OF THE EA.............................................12

WHETHER THE PROTECTION UNDER S 124(1) OF THE EA

COULD BE WAIVED ...................................................................................17

WHETHER ONE COULD RELY ON S 133 OF THE EA TO

REFUSE TO DISCLOSE COMMUNICATIONS BETWEEN
SPOUSES ........................................................................................................17
WHETHER S 133 OF THE EA APPLIED ONLY TO DOCUMENTS HELD ON
BEHALF OF THE OWNER OF THE DOCUMENT ...................................................19

WHETHER A SPOUSE COULD RELY ON S 133 OF THE EA TO REFUSE

PRODUCTION OF COMMUNICATIONS MADE BY HIM TO HIS SPOUSE.................21

WHETHER A THIRD PARTY COULD RELY ON S 133 OF THE EA TO

REFUSE PRODUCTION OF COMMUNICATIONS MADE BETWEEN SPOUSES .........22

CONCLUSION...............................................................................................23

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 This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.

Systematic Airconditioning Pte Ltd

v
Ho Seng Ken and others

[2023] SGHC 10

General Division of the High Court — Suit No 874 of 2021 (Registrar’s

Appeals Nos 245, 246 and 247 of 2022)
Chua Lee Ming J
2, 15 September, 11 October 2022

16 January 2023

Chua Lee Ming J:

Introduction

1 HC/RA 245/2022, HC/RA 246/2022 and HC/RA 247/2022 were

appeals against the Assistant Registrar’s decisions on two applications for
discovery. HC/RA 245/2022 raised questions relating to the scope of:

(a) s 124(1) of the Evidence Act 1893 (2020 Rev Ed) (“EA”), which
protects communications made during marriage against
disclosure; and

(b) s 133 of the EA, which protects documents from production in

circumstances in which another person having possession could
refuse to produce the same.

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Systematic Airconditioning Pte Ltd v Ho Seng Ken [2023] SGHC 10

Background facts

2 The plaintiff, Systematic Airconditioning Pte Ltd (“SAPL”), has as its

primary business the commercial rental of refrigerated trucks, the
manufacturing and installation of refrigerated boxes on trucks and the repair and
servicing of trucks and refrigerator systems. The first defendant, Mr Ho Seng
Ken (“Ho”) is a director of SAPL; the other directors are Ho’s ex-wife, Mdm
Ng Ah Geok (“Ng”) and their son, Mr Shawn Ho Meng Cher.

3 Ng and Ho divorced in 2010, but Ho remained a director of the plaintiff;

he was also employed as its Managing Director until June 2020. The second
defendant, Mdm Zheng Xiangxi (“Zheng”) is Ho’s current wife. Ho and Zheng
were married on 20 April 2015. Zheng was employed by the plaintiff from 2002
to 2003.

4 There were four other defendants:

(a) The third defendant, CTE Automobile Pte Ltd (“CTE

Automobile”), was incorporated in 2016 and, according to the plaintiff,
is in the business of retail sale, installation and maintenance of
refrigerated trucks.

(b) The fourth defendant, United SG Automobile Pte Ltd (“United

SG”), was incorporated in 2017 and, according to the plaintiff, is in the
business of installation, repair, and maintenance of trucks and
refrigerator boxes.

(c) The fifth defendant, Alpha Refrigeration Engineering Pte Ltd

(“Alpha Refrigeration”), was incorporated in 2019 and is in the business
of the sale, installation, maintenance and repairs of refrigerated trucks
and refrigerator boxes.

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Systematic Airconditioning Pte Ltd v Ho Seng Ken [2023] SGHC 10

(d) The sixth defendant, Central Automotive Pte Ltd (“Central

Automotive”), was also incorporated in 2019 and, according to the
plaintiff, is in the business of the repair and servicing of refrigerated
trucks and refrigerator systems on trucks.

In these grounds, I shall refer to these four companies collectively as the

“Defendant Companies”.

5 At all material times:

(a) Zheng was the sole director and shareholder of CTE Automobile,
Alpha Refrigeration and Central Automotive; and

(b) Ho was a director and 60% shareholder of United SG.

6 Two other entities, both sole proprietorships, were relevant although

they were not parties to this action:

(a) CTE Auto – Zheng was its Sales Manager from 2014 to
sometime in 2015, and became its sole proprietor in 2015.
According to the plaintiff, Ho was its Technical Consultant at all
material times.

(b) Wellux Enterprise (“Wellux”) – Zheng was the sole proprietor.

7 In summary, SAPL’s claims were that:

(a) Ho breached his fiduciary duties that were owed to SAPL by:

(i) giving undue preferential treatment to CTE Auto and/or

CTE Automobile;

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Systematic Airconditioning Pte Ltd v Ho Seng Ken [2023] SGHC 10

(ii) diverting SAPL’s customers and corporate opportunities

to CTE Auto and/or the Defendant Companies and/or
Wellux;

(iii) soliciting SAPL’s employees to join Alpha Refrigeration

and Central Automotive; and

(iv) using Wellux to collect payment of monies from third-

party customers which were due and owing to SAPL.

(b) Zheng acted dishonestly in assisting Ho in his breaches of

fiduciary duties.

(c) The Defendant Companies acted dishonestly in assisting Ho in

his breaches of fiduciary duties.

(d) Ho and/or Zheng and/or the Defendant Companies conspired to

injure SAPL.

8 For the purposes of these grounds, the relevant disclosures that the
plaintiff sought may be broadly categorised as follows:

(a) As against Ho – correspondence exchanged between Ho and

Zheng in relation to the following matters (the “Disclosure
Matters”):

(i) the businesses of CTE Automobile, CTE Auto, Alpha

Refrigeration, Central Automotive and Wellux;

(ii) specific transactions pleaded in the Statement of Claim;

and

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Systematic Airconditioning Pte Ltd v Ho Seng Ken [2023] SGHC 10

(iii) the decision by two employees to leave the employ of the

plaintiff to join Alpha Refrigeration and Central
Automotive.

(b) As against Zheng – correspondence exchanged between Zheng

and Ho in relation to the Disclosure Matters.

(c) As against the Defendant Companies – correspondence between

Ho and Zheng in relation to the Disclosure Matters.

9 The Assistant Registrar (“AR”) disallowed the plaintiff’s application for

the above disclosures in so far as they pertained to communications made
between Ho and Zheng during the subsistence of their marriage (ie, from
20 April 2015 onwards). The AR held that all correspondence between Ho and
Zheng during the subsistence of their marriage was protected against disclosure
under s 124(1) of the EA. HC/RA 245/2022 was the plaintiff’s appeal against
the AR’s decision. I allowed the appeal in part and dismissed it in part.

10 HC/RA 246/2022 and HC/RA 247/2022 were appeals by Zheng, CTE

Automobile, Alpha Refrigeration and Central Automotive. The issues in these
two appeals did not have anything to do with ss 124(1) and 133 of the EA and I
shall not deal with them in these grounds.

Issues

11 The main issues before me in relation to ss 124(1) and 133 of the EA

were:

(a) Whether s 124(1) of the EA protected a person from having to

disclose communications made by him to his spouse during

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Systematic Airconditioning Pte Ltd v Ho Seng Ken [2023] SGHC 10

marriage (in contrast to communications made to him by his

spouse)?

(b) What was the scope of communications between spouses that

fell within s 124(1) of the EA?

(c) Whether the protection under s 124(1) of the EA could be

waived?

(d) Whether one could rely on s 133 of the EA to refuse to disclose

communications between spouses?

Whether s 124(1) of the EA protected a person from disclosing

communications made by him to his spouse during marriage

12 Section 124(1) of the EA provides as follows:

Communications during marriage

124.—(1) No person who is or has been married may be
compelled to disclose any communication made to him or her
during marriage by any person to whom he or she is or has been
married; nor may he or she be permitted to disclose any such
communication unless the person who made it or his or her
representative in interest consents, except in suits between
married persons or proceedings in which one married person is
prosecuted for any crime committed against the other.

13 It was not disputed that s 124(1) of the EA protected a person from

having to disclose communications made to him by his spouse during marriage.
The defendants submitted that s 124(1) also protected a person from having to
disclose communications made by him to his spouse during marriage.

14 The AR agreed with the defendants that:

… it [was] quite indefensible for the Plaintiff to take the position

that it can obtain from [Ho] what he said to [Zheng], regardless
of whether he consents, when the Plaintiff cannot obtain from
[Zheng] what [Ho] said to her without his consent.

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Communications between two persons are mostly two-way

communications where there could be a lot of repetition and
paraphrasing of what one said to another and vice versa. [I]t is
virtually impossible and impractical to ‘slice and dice’, as
counsel submitted, the communications between two persons
to distil the communications from A to B, without also retaining
some of what B might have said to A which A paraphrased or
repeated to B.
[emphasis in original]

15 The AR also relied on EQ Capital Investments Ltd v Sunbreeze Group

Investments Ltd and others [2017] SGHCR 15 (“EQ Capital”) in which a
different AR said that “s 124 embraces all communications, ranging from the
most quotidian of daily banalities to the deepest intimacies, and must include
matters relating to the ordinary business affairs of the spouses” [emphasis in
original] (at [34]).

16 Before me, the plaintiff submitted that the language in s 124(1) was
clear; it expressly referred to communications made to the person who had to
give disclosure. The defendants, understandably, supported the AR’s decision.
The defendants submitted that Parliament does not legislate in vain (Tan Cheng
Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”) at [38]) and
argued that the plaintiff’s interpretation would render s 124(1) otiose if an
applicant sought disclosure against both spouses.

17 I disagreed with the AR and the defendants. In my view, it was

unarguable that s 124(1) of the EA only protected a person from being
compelled to disclose communications made to him by his spouse during
marriage; it did not protect communications made by him to his spouse during
marriage.

18 First, the ordinary meaning of the language in s 124(1) of the EA was

clear. The first step in a purposive interpretation of a legislative provision is to

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ascertain all the possible interpretations of the provision (Tan Cheng Bock at
[37]). In my view, the plaintiff’s interpretation was the only possible
interpretation. Section 124(1) referred expressly and specifically to
communications made to the person who had to give evidence or disclosure.
The defendants’ interpretation could not be supported without reading
additional words into s 124(1) and it was not the court’s role to re-write
legislative provisions.

19 Second, the plaintiff’s interpretation that s 124(1) protected only marital

communications made to the person against whom disclosure was sought, was
well-supported by authorities. The history of s 124 was discussed in EQ Capital
at [16]–[22]; in summary, it is as follows:

(a) At common law, a person was not a competent witness either for
or against his or her spouse.

(b) The Second Report of the Commissioners for Inquiring into the
Process, Practice and System of Pleading in the Superior Courts of
Common Law (1852) recommended that spouses should be competent
and compellable to give evidence for and against each other but there
should be a rule of privilege that safeguarded marital communications.

(c) The recommendations were accepted. The Evidence

Amendment Act 1853 (c 83) (UK) (“UK Amendment Act 1853”)
abolished the common law rule and made husbands and wives
competent and compellable witnesses in civil proceedings. Section 3 of
the UK Amendment Act 1853 provided for marital communications
privilege as follows:

III Husbands and Wives not compelled to

disclose Communications.

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No Husband shall be compellable to disclose any

Communication made to him by his Wife during the
Marriage, and no Wife shall be compellable to disclose
any Communication made to her by the Husband
during the Marriage.

(d) The legislative developments in the UK led to similar reforms in

India in 1853, which formed the basis for s 122 of the Indian Evidence
Act, 1872 (Act No 1 of 1872) (“Indian Evidence Act”). Section 122 of
the Indian Evidence Act provided as follows:

122. Communications during marriage

No person who is or has been married shall be
compelled to disclose any communication made to him
during marriage by any person to whom he is or has
been married; nor shall he be permitted to disclose any
such communication, unless the person who made it, or
his representative in interest, consents, except in suits
between married persons, or proceedings in which one
married person is prosecuted for any crime committed
against the other.

(e) Section 124(1) of the EA is based on s 122 of the Indian

Evidence Act.

20 Both s 3 of the UK Amendment Act 1853 and s 122 of the Indian

Evidence Act protected a witness from being compelled to disclose
communications made to him by his spouse during marriage.

21 UK courts have observed that s 3 of the UK Amendment Act 1853

protected communications made to the witness and did not protect those made
by the witness: Shenton v Tyler [1939] Ch 620 (“Shenton”) at 628–629;
Rumping v Director of Public Prosecutions [1964] AC 814 (“Rumping”) at 859.
A similar observation was made by the Criminal Law Revision Committee in
England in its Eleventh Report: Evidence (General) (Cmnd 4991, 1972) at
para 173 (cited in Lim Lye Hock v Public Prosecutor [1994] 3 SLR(R) 649 at

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[42]). The plaintiff’s interpretation of s 124(1) was consistent with the

interpretation that has been given to s 3 of the UK Amendment Act 1853.

22 The plaintiff’s interpretation was also supported by the view expressed

in Ho Hock Lai, “Spousal Testimony on Marital Communication as
Incriminating Evidence: Lim Lye Hock v PP” [1995] SJLS 236 at 240, that
“section 124 applies only to communication made to the witness and not to
communication made by the witness” [emphasis in original].

23 There was a distinction between the provisions in the UK Amendment

Act 1853 and the Indian Evidence Act. Section 3 of the UK Amendment Act
1853 merely provided that no spouse could be compelled to disclose any
communication made to him/her by the other spouse during marriage. This
meant that the spouse giving evidence could disclose communications made to
him by his spouse if he so wished, whether or not the other spouse objected; the
marital communications privilege belonged to the recipient-spouse, not the
communicator-spouse (see Rumping at 833 and 858). Lord Reid (at 833) found
it “a mystery” why this privilege was given to the recipient-spouse, observing
that a loyal spouse could use the privilege to help the other spouse, whilst an
unfriendly spouse could use the privilege to the detriment of the other spouse.

24 The Indian Evidence Act took a different, and perhaps more coherent,
approach. Section 122 of the Indian Evidence Act also provided that a spouse
could not be compelled to disclose communications made to him/her during
marriage by the other spouse. However, it went further to provide that a spouse
was not permitted to disclose such communications without the other spouse’s
consent. Thus, under the Indian Evidence Act, the marital communications
privilege belonged to the communicator-spouse.

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25 Ho and United SG submitted that this distinction meant that Rumping

was not helpful in interpreting s 124(1) of the EA. I disagreed. The observation
in Rumping (at 859) that s 3 of the UK Amendment Act 1853 did not protect a
communication made by a witness to his/her spouse was not related to the
observation that the witness could waive the protection without the other
spouse’s consent. There was also nothing in Shenton to suggest that the
observation (that the statutory privilege did not protect communications made
by the witness) was based on anything other than the fact that that was what the
provision stated.

26 Third, I agreed with the plaintiff that the statement in EQ Capital that
s 124 embraced all communications (which the AR relied on) had to be read in
context. The issue in that case was whether the scope of s 124(1) was limited to
confidential communications between spouses. EQ Capital decided that
s 124(1) of the EA was not confined to confidential communications but
“embrace[d] all communications” (at [34]). Nothing in EQ Capital dealt with
the question of whether a person could rely on s 124(1) to refuse disclosure of
communications made by him to his spouse; this was not the issue in that case.

27 Fourth, the defendants’ submission that the plaintiff’s interpretation of

s 124(1) would render it otiose assumed that both spouses would be available
as witnesses in court or that disclosure of documents could be sought against
both spouses. Obviously, this assumption did not necessarily hold true in every
case.

28 As for the argument that it may be virtually impossible and impractical

to “slice and dice” communications between two spouses, in my view, the
difficulty was not insurmountable and any difficulty in doing so was insufficient
to override what s 124(1) of the EA clearly and expressly spelt out to be the law.

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29 I therefore found that Ho was not protected by s 124(1) of the EA from

being compelled to disclose communications made by him to Zheng during their
marriage, and Zheng was not protected from being compelled to disclose
communications made by her to Ho.

The scope of communications between spouses that fell within s 124(1) of

the EA

30 As stated earlier, s 124(1) of the EA protected a person from being

compelled to disclose communications made to him by his spouse during
marriage. The plaintiff submitted that this applied only to communications made
by the spouse as principal and that communications made by the spouse as agent
for a third party were not protected under s 124(1).

31 The plaintiff relied on Enjin Pte Ltd v Pritchard Lilia [2022] SGHC 201
(“Enjin”), in which the High Court held at [41] that communications between
spouses fell within s 124 of the EA only if they were made between them in
their capacities as spouses as principals. The High Court explained as follows
(at [41]):

… thus, where a spouse communicated with a spouse on behalf

of another person, the section would not apply. In such cases,
the communication would be by the spouse’s principal, rather
than by the spouse. Section 124 EA would not apply because it
only applies to communications ‘by any person to whom [the
spouse] is or has been married.’ One example of such a case
may arise where two spouses work for different companies that
do business with each other. If the wife acting for her employer
offers to purchase something from the husband’s employer, and
conveys this offer to her husband, the conveyance of that offer
to her husband is not a marital communication. It is a
communication between the spouses’ respective employers that
happens to take place via the spouses. Another example arises
where two spouses work for, or are officers of, the same
company. They may communicate with each other in
circumstances where the communication is part of the
company’s business and forms part of the company’s record.
Take the case where the two spouses are the only directors of

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that company. The minute kept by one of them of a board

meeting held between them without others present, or a
communication between them approving the entry by one of
them into a contract with a third party on behalf of the
company, would not be protected by marital communications
privilege. Those would be records of the company or
communications between the company and either spouse.

32 Ho and United SG submitted that the interpretation in Enjin should not

be adopted because (a) it read additional words into s 124(1) of the EA; and (b)
it resulted in an unworkable or impracticable result in that it would be difficult
to separate communications between Ho and Zheng in their capacities as
spouses, from communications between them made on behalf of other entities.
I disagreed with the submissions by Ho and United SG.

33 First, in Enjin, the court was interpreting the words “by any person to
whom he or she is or has been married” in s 124(1) of the EA (see Enjin at [41]).
The court held that where a spouse communicated on behalf of another person,
that communication would be by the spouse’s principal rather than by the
spouse. Such a communication did not fall within s 124(1) of the EA since
s 124(1) only applied to communications by a spouse. The decision in Enjin did
not involve reading additional words into s 124(1) of the EA.

34 Second, I accepted that difficulties may arise in separating

communications made between spouses in their capacities as spouses from
communications that are made as agents for third parties. However, in my view,
any such difficulty was not insurmountable and was not good enough reason
not to apply Enjin. In this regard, a similar difficulty exists in the case of legal
professional privilege. Documents may contain information that is protected by
legal professional privilege as well as information that is not so protected. That
difficulty has not stopped the courts from allowing disclosure of the information
that is not protected by legal professional privilege.

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35 The remaining defendants (Zheng, CTE Automobile, Alpha

Refrigeration and Central Automotive) accepted that the interpretation in Enjin
appeared consistent with the rationale behind s 124(1) of the EA as explained
in EQ Capital at [23], in that it would not jeopardise the frankness and candour
in marital communications nor lead to domestic dissension and unhappiness.
However, they submitted that Enjin applied only where the communicator-
spouse intended to communicate with the recipient-spouse as an agent on behalf
of a third party and the recipient-spouse understood the communicator-spouse
to be so communicating.

36 Enjin excluded spousal communications from s 124(1) of the EA where

it could be said that the communication was made as an agent of a third party. I
agreed with the submission that for Enjin to apply, the communicator-spouse
must have intended to make the communication as an agent on behalf of the
third party. In almost all cases, this intent would likely have to be inferred. In
my judgment, such an inference may be drawn where, for example:

(a) both spouses were employees, officers or agents of the same

company and the communication was on matters relating to the
company’s business;

(b) both spouses were employees, officers or agents of different

companies and the communication was on matters relating to the
business between the companies; or

(c) the communication had been copied to others in the company or

companies that the spouses were employees, officers or agents of;
however, the mere fact that a copy of an e-mail may have been kept in
the server(s) did not mean that it had been copied to others in the
company or companies.

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37 I agreed with Enjin (at [41]) that records kept by companies (eg, minutes
of meetings) fell outside the scope of s 124(1) of the EA. Clearly, such records
could not be regarded as spousal communications within the meaning of
s 124(1) of the EA.

38 However, in my view, it was irrelevant for purposes of s 124(1) of the

EA whether the recipient-spouse understood the communicator-spouse to be
communicating as an agent. The question with respect to s 124(1) of the EA was
simply whether the communication was made by “any person to whom [the
recipient-spouse] is or has been married”. In other words, the question was
whether the communicator-spouse was communicating as a spouse or as an
agent.

39 I now turn to EQ Capital. As seen earlier, the argument in that case was
that s 124(1) of the EA applied only to confidential communications between
spouses. It was submitted that confidential communications were those which
were induced by the marital relationship, and which would not have taken place
but for the existence of the marital relationship between the spouses. On this
interpretation, s 124(1) of the EA excluded communications which flowed from
the business relationship, as opposed to the spousal relationship, between a
husband and wife (the “business transaction exception”). The argument relied
on three American cases, which the AR distinguished (at [27]–[28]) on the
ground that the relevant provisions on marital communications privilege
considered in those cases protected the disclosure of “a confidential
communication made by one [spouse] to the other during marriage” [emphasis
in original].

40 The AR in EQ Capital noted (at [28]) that commentators who had

considered the English, Indian and Singapore provisions were of the view that

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the expression “any communication” (in the English and Indian provisions and
in s 124(1) of the EA) was wide enough to cover all communications between
spouses during the marriage and not just those which were expressed to be
confidential. He emphasised (at [30]) that he could not “ignore the determiner
‘any’ in s 124”.

41 I heard the appeal against the AR’s decision in EQ Capital. I was

troubled that communications between two directors (who were spouses)
regarding the affairs of the company should be protected by marital privilege.
Nevertheless, I agreed with the AR’s decision that the business transaction
exception did not apply to s 124(1) of the EA and that any reform in that regard
had to come from Parliament.

42 As can be seen from the above discussion, the approach taken in Enjin
was somewhat different from the argument made in EQ Capital. Having
considered the decision in Enjin and the parties’ submissions in the present case,
I concluded that the interpretation of s 124(1) of the EA in Enjin was sound.
There was no rule of law or requirement of public policy which precluded the
reception in evidence of communications between spouses (Rumping at 835,
861 and 865). Marital communications privilege existed only to the extent
provided for in s 124(1) of the EA, which existed to secure complete privacy in
conjugal communications (EQ Capital at [31]). I saw no reason why
communications between spouses who work for (or are officers of) the same
company or different companies, on matters pertaining to the
business/businesses of the company/companies, deserved any protection under
s 124(1) of the EA.

43 Accordingly, I decided to adopt the interpretation of s 124(1) of the EA

in Enjin and concluded that s 124(1) of the EA did not apply to communications

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between spouses if the communications were made as agents on behalf of a third

party. I agreed with the plaintiff that it was entitled to compel disclosure of
communications received by Ho and Zheng, in so far as these communications
were made by the communicator-spouse in his/her capacity as an agent rather
than as a spouse.

Whether the protection under s 124(1) of the EA could be waived

44 Under s 124(1) of the EA, the recipient-spouse could not disclose marital
communications made to him without the communicator-spouse’s consent.
Clearly, the privilege under s 124(1) of the EA belonged to the communicator-
spouse. I agreed with the plaintiff that the protection afforded by s 124(1) of the
EA could be waived by the communicator-spouse, such that the recipient-
spouse would then be compellable to disclose the communication. Waiver of
privilege may be inferred from the communicator-spouse’s conduct, for
example, where the communicator-spouse voluntarily made, copied or
disclosed the communication to a third party. However, I agreed with the
defendants that the mere fact that a copy of an e-mail may have been kept in a
third-party’s server, or given to a third party such as a secretary to perform the
administrative task of filing, would not amount to waiver of the protection under
s 124(1) of the EA.

Whether one could rely on s 133 of the EA to refuse to disclose

communications between spouses

45 Section 133 of the EA states:

Production of documents which another person having

possession could refuse to produce
133. No one may be compelled to produce documents in his or
her possession which any other person would be entitled to
refuse to produce if they were in his or her possession, except
for the purpose of identification, unless such last mentioned

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person consents to their production, nor may anyone who is

entitled to refuse to produce a document be compelled to give
oral evidence of its contents.

46 It is not necessary to resort to s 133 of the EA unless the party against

whom production of documents is sought has no other ground on which he can
refuse production. In addition, s 133 applies only to the production of
documents and oral evidence as to the contents of such documents whereas
s 124(1) is not so limited.

47 As stated earlier, s 124(1) of the EA did not protect Ho from being

compelled to disclose communications made by him to Zheng. Similarly, it did
not protect Zheng from being compelled to disclose communications made by
her to Ho. It was not disputed that Ho or Zheng may still have had copies of
his/her communications to the other. This was not surprising especially with the
prevalent use of e-mails and instant messaging (eg, text messages and
WhatsApp).

48 The defendants submitted that pursuant to s 133 of the EA:

(a) Ho could not be compelled to produce communications made by

him to Zheng since Zheng would be entitled under s 124(1) of
the EA to refuse to produce the same if they were in her
possession.

(b) Zheng could not be compelled to produce communications made

by her to Ho since Ho would be entitled under s 124(1) of the EA
to refuse to produce the same if they were in his possession.

(c) The Defendant Companies could not be compelled to produce

communications between Ho and Zheng since each of them
would be entitled under s 124(1) of the EA to refuse to produce

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communications made to him/her by the other, if they were in

his/her possession.

49 The plaintiff submitted that with respect to communications by Ho to

Zheng, Ho could not rely on s 133 of the EA unless:

(a) Zheng was the owner of the document in Ho’s possession; and

(b) Zheng had an independent basis to refuse production of the

document.

The plaintiff made similar submissions with respect to Zheng’s reliance on

s 133.

50 The parties’ submissions raised the following questions:

(a) Whether s 133 of the EA applied only to a situation where the

person, against whom production was sought, held a privileged
document on behalf of the owner of the document?

(b) Whether a spouse could rely on s 133 of the EA to refuse

production of communications made by him to his spouse, which
were in his possession?

(c) Whether a third party could rely on s 133 of the EA to refuse to

produce communications made between spouses, which were in
its possession?

Whether s 133 of the EA applied only to documents held on behalf of the

owner of the document

51 The plaintiff submitted that s 133 of the EA applied only where the
person (against whom production of documents was sought) held the documents

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as agent for the owner of the documents. The plaintiff relied on the following
passage in Sudipto Sarkar and VR Manohar, Sarkar on Evidence (In India,
Pakistan, Bangladesh, Burma, Ceylon, Malaysia and Singapore) vol 2
(Wadhwa and Company, 15th Ed, 1999) (“Sarkar on Evidence”) at p 2056:

… s 131 [of the Indian Evidence Act] refers to documents of

another person in the possession of the witness, ie, documents
which though physically in the possession of the witness are
the property of another person who has a right to object to their
production. It extends to the agent, ie, the possessor of the
document, the same privilege which is enjoyed by the person
whose property it is. This section is introduced for the
protection of person whose title-deeds and other documents
happened to be in possession of his attorney, mookhtear,
agents or servants, trustees and mortgagees, etc. …

52 Section 131 of the Indian Evidence Act is similar to s 133 of the EA and
provides as follows:

131. Production of documents or electronic records which

another person, having possession, could refuse to produce.
No one shall be compelled to produce documents in his
possession or electronic records under his control, which any
other person would be entitled to refuse to produce if they were
in his possession or control, unless such last-mentioned person
consents to their production.

53 In Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 6th

Ed, 2017) (“Evidence and the Litigation Process”), the learned author expressed
a similar view at para 15.062:

Section 133 of the EA provides that no person can be compelled

to produce documents in his possession ‘which any other
person would be entitled to refuse to produce if they were in his
possession, except for the purpose of identification’. An
exception applies when the ‘other person’ consents to the
production of the document(s). The section also provides that a
person who is entitled to refuse to produce a document under
this rule cannot be compelled to give oral evidence of its
contents. The scope of this section is considered to be limited
to the situation in which a person officially holds a privileged
document on behalf of another person; for example, a trustee,

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a solicitor and a mortgagee. The effect of the provision is that

while the person in possession of a document is not obliged to
disclose it, he is not prohibited from revealing it if this is his
intention. Section 133 is also considered in the context of
privileged documents which fall into the hands of third parties.

54 However, in Asplenium Land Pte Ltd v Lam Chye Shing and others
[2019] 5 SLR 130 (“Asplenium”) at [130], the High Court expressed
reservations about the statement in Evidence and the Litigation Process that
s 133 applied only to a situation where a person officially held a privileged
document on behalf of another person. The court observed that no authority was
cited for this proposition and reasoned that the opening words of s 133 (“No one
…”) were broad and unqualified. The court applied s 133 even though there was
no official entrustment of documents to the person against whom production of
the documents was sought. It should be noted however that in that case, the
parties did not argue that s 133 was not applicable by virtue of the absence of
official entrustment.

55 I agreed with Asplenium. Neither Sarkar on Evidence nor Evidence and

the Litigation Process cited any authority for the proposition expressed in those
publications. As stated in Asplenium, the language in s 133 of the EA was broad
and unqualified. Limiting it to situations involving entrustment of documents
required reading additional words into the provision.

Whether a spouse could rely on s 133 of the EA to refuse production of

communications made by him to his spouse

56 As stated earlier, a communicator-spouse could not rely on s 124(1) of

the EA to refuse to disclose communications made by him to the recipient-
spouse. I was of the view that a communicator-spouse also could not rely on
s 133 of the EA to refuse disclosure of such communications based on the
argument that the recipient-spouse would be entitled under s 124(1) to refuse

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disclosure of such communications. Allowing the communicator-spouse to do

so was inconsistent with s 124(1) itself. In effect, it would allow the
communicator-spouse to rely on s 124(1) indirectly to refuse disclosure of
communications that he could not have refused to disclose under s 124(1). In
my view, s 133 of the EA had to be interpreted in a manner that was consistent
with s 124(1).

57 Accordingly, Ho could not rely on s 133 of the EA to refuse to produce

communications made by him to Zheng, on the ground that Zheng could refuse
to disclose such communications under s 124(1). Similarly, Zheng could not
rely on s 133 of the EA to refuse to produce communications made by her to
Ho, on the ground that Ho could refuse to disclose such communications under
s 124(1).

Whether a third party could rely on s 133 of the EA to refuse production of

communications made between spouses

58 The need to interpret s 133 of the EA in a manner that was consistent

with s 124(1) (see [56] above) did not arise in the case of production of
documents by third parties. Thus, the Defendant Companies were entitled to
rely on s 133 of the EA to refuse to produce communications between Ho and
Zheng provided that Ho/Zheng could refuse disclosure of the same under
s 124(1).

59 It followed from the interpretation that I had given to s 124(1) of the EA

that the Defendant Companies were not entitled to rely on s 133 if the
communications between Ho and Zheng were made by them to the other spouse,
or in their capacities as agents for third parties, or if the protection under
s 124(1) had been waived.

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Conclusion

60 I allowed HC/RA 245/2022 in part and made orders for the disclosure
of documents in line with my interpretation of ss 124(1) and 133 of the EA.

Chua Lee Ming

Judge of the High Court

Lua Wei Liang Wilbur and Lau Chung Kit Darryl (Covenant
Chambers LLC) for the plaintiff;
Loo Chieh Ling Kate, Lee Junyi Morgan and Jerelyn Tay Yee Ying
(Ling Law Corporation) for the first and fourth defendants;
Khoo Ching Shin Shem, Teo Jia Hui Veronica and Genesa Tan Yun
Ru (Focus Law Asia LLC) for the second, third, fifth and sixth
defendants.

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