Case Details
- Title: PT Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others
- Citation: [2010] SGHC 221
- Court: High Court of the Republic of Singapore
- Date of Decision: 05 August 2010
- Coram: Tan Lee Meng J
- Case Number: Originating Summons No 190 of 2010 (Summons No 1001 of 2010/F)
- Related Appeal: Appeal to this decision in Civil Appeal No 137 of 2010 dismissed by the Court of Appeal on 10 February 2011 (see [2011] SGCA 19)
- Plaintiff/Applicant: PT Makindo (formerly known as PT Makindo TBK)
- Defendants/Respondents: Aperchance Co Ltd and others
- Parties (key individuals): 2nd respondent, Mr Otto Rodusek; 3rd respondent, Mr Toh Keng Siong (the 1st respondent’s only directors)
- Legal Area: Contempt of Court – Civil Contempt
- Decision Type: Determination of liability for contempt and (where applicable) whether committal/fines should be imposed
- Judgment Length: 8 pages, 4,278 words
- Counsel for Applicant: Chandra Mohan / Mabelle Tay (Rajah & Tann LLP)
- Counsel for Respondents: Davinder Singh SC / Cheryl Tay / Alecia Quah (Drew & Napier LLC)
- Statutes Referenced: Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed); Rules of Court (Cap 322, R 5, 2006 Rev Ed)
- Cases Cited (as provided): [2010] SGHC 221; [2011] SGCA 19
Summary
This High Court decision concerns an application for committal for contempt of court arising from a “media war” conducted through misleading advertisements placed in Indonesian newspapers. The applicant, PT Makindo, sought to punish the respondents—Aperchance Co Ltd and its directors—for allegedly misleading the Indonesian public and authorities about the status and effect of Singapore High Court proceedings, including a worldwide Mareva injunction and related orders made in February 2004.
The court accepted that contempt proceedings are serious and must be proved to a high standard. It emphasised that contempt is of a criminal character, requiring proof beyond reasonable doubt, and that the court’s power to punish for contempt is draconian and must be exercised sparingly. The court also stressed procedural discipline: in an application for committal, the applicant must confine its case to the grounds set out in the statement filed under the relevant Rules of Court.
On the facts, the court examined whether the respondents’ advertisements amounted to willful disobedience of court orders or otherwise constituted contempt within the pleaded grounds. The decision ultimately determined that the applicant did not establish contempt to the requisite standard on the relevant grounds, and the application for committal/fines against the respondents was dismissed (with the Court of Appeal later dismissing the appeal in [2011] SGCA 19).
What Were the Facts of This Case?
The dispute traces back to Singapore High Court proceedings commenced in late 2003. On 22 November 2003, Aperchance Co Ltd (the 1st respondent) commenced Suit No 1149 of 2003/H against PT Makindo (the applicant) and three other defendants, including officers of the applicant: Rachmiwaty Jusuf, Gunawan Jusuf, and Claudine Jusuf (collectively, the “Jusuf defendants”). The suit sought, among other things, repayment of approximately US$126 million.
Shortly thereafter, on 24 November 2003, the 1st respondent obtained an ex parte worldwide Mareva injunction against the applicant and the Jusuf defendants. This type of injunction is designed to restrain a defendant from dealing with assets pending the outcome of litigation, thereby preserving the claimant’s ability to satisfy any judgment.
In December 2003, the Jusuf defendants challenged the Mareva injunction and the service of the writ. They filed two applications: one to set aside the Mareva injunction (Summons No 7795 of 2003/Q) and another seeking declarations and orders relating to service and jurisdiction (Summons No 7802 of 2003/K). After these applications were heard in February 2004, Lai Kew Chai J set aside both the Mareva injunction and the order for service on 27 February 2004 on the basis that the Singapore court lacked jurisdiction over the defendants. Lai J did not consider the merits of the underlying claim, and ordered costs against the 1st respondent.
The 1st respondent did not appeal Lai J’s jurisdiction decision. Costs were subsequently taxed, and on 3 September 2004, the 1st respondent was ordered to pay costs of $122,557.48 to the Jusuf defendants. Despite the jurisdiction ruling, the 1st respondent continued to pursue recovery in Indonesia, instructing Indonesian lawyers to make representations to relevant Indonesian government agencies.
Against this background, the parties engaged in competing public messaging in Indonesia. The respondents alleged that the applicant and the Jusuf defendants embarked on a scheme to discredit, embarrass, intimidate, and pressure the 1st respondent into dropping its Indonesian claim. Whether or not that allegation was true, the court record shows that the applicant published multiple advertisements in Bahasa Indonesia in December 2009 and January 2010 in newspapers including Bisnis Indonesia, Kompas, and Kontan.
The applicant’s advertisements claimed, in substance, that the Singapore High Court had dismissed the 1st respondent’s claim following a trial on 27 February 2004 and that the court had ordered the 1st respondent to pay compensation costs. The advertisements further asserted that the 1st respondent had not filed any legal appeal and that the “verdict becomes binding and has permanent legal force.” The applicant also suggested that it had no obligation to repay the monies claimed by the 1st respondent.
The respondents considered these statements misleading. They pointed out that Lai J had set aside the Mareva injunction and the order for service on jurisdiction grounds only, without considering the merits of the claim. They also contended that the applicant’s assertion that the 1st respondent’s claim had been dismissed after a trial was untrue.
In response, the 1st respondent placed its own Bahasa Indonesia advertisements between 7 and 11 January 2010, again in newspapers such as Bisnis Indonesia, Kompas, and Kontan. The advertisements included statements suggesting that the respondents’ assets/capital were “impeded and blocked” worldwide pursuant to the Singapore High Court judgment/order in Suit 1149/2003/H dated 24 November 2003. The respondents’ advertisements also did not reflect that the worldwide Mareva injunction had been discharged on 27 February 2004.
PT Makindo then sought to escalate the dispute into Singapore contempt proceedings. On 18 February 2010, it filed Originating Summons No 190 of 2010 on an ex parte basis for leave to apply for an order of committal for contempt against the respondents. The leave was granted on 2 March 2010, and the application was heard on 24 May 2010.
Notably, the applicant did not disclose its own earlier misleading advertisements in the ex parte application. The applicant sought fines and/or imprisonment for the respondents and their directors, alleging that the respondents’ advertisements were calculated to cause serious harm and damage and to interfere with the administration of justice by misrepresenting the status of Singapore court orders.
What Were the Key Legal Issues?
The principal legal issue was whether the respondents’ conduct—placing misleading advertisements in Indonesia—constituted civil contempt of court in Singapore. In particular, the court had to determine whether the advertisements amounted to willful disobedience of the Singapore High Court’s orders, or otherwise interfered with the authority of the court in a manner that warranted punishment through committal.
A second key issue concerned the standard and scope of proof in contempt proceedings. The court reiterated that contempt must be proven beyond reasonable doubt because it is criminal in character and may result in imprisonment. This raised the question whether the applicant had adduced sufficient evidence to meet that stringent threshold.
A third issue was procedural: the applicant had to confine its case to the grounds pleaded in its statement under the relevant Rules of Court. The court needed to consider whether the applicant’s arguments at the hearing stayed within the pleaded grounds, and whether any attempt to rely on additional or different grounds was impermissible.
How Did the Court Analyse the Issues?
The court began by setting out the legal framework for contempt. It referred to s 7(1) of the Supreme Court of Judicature Act (Cap 322) and O 52 r 1 of the Rules of Court (Cap 322, R 5). These provisions confer the High Court with power to punish for contempt. The court also explained the rationale for contempt jurisdiction: courts exist to settle disputes peacefully and maintain law and order, and their authority must not be undermined by unjustifiable interference. The court cited the House of Lords’ articulation in Attorney-General v Times Newspapers Ltd, endorsed by the Singapore Court of Appeal in Pertamina Energy Trading Ltd v Karaha Bodas Co LLC.
Having established the purpose of contempt law, the court turned to the evidential and procedural safeguards. It emphasised that contempt must be proven beyond reasonable doubt. This requirement is rooted in the fact that contempt is an offence of a criminal character and may lead to imprisonment. The court also stressed that the contempt jurisdiction is draconian and should be used sparingly and only in serious cases, echoing the caution in Parashuram Detaram Shamdasani v King-Emperor.
Crucially, the court addressed the procedural constraint in committal applications. Under O 52 r 5(3), except with leave of the court, no grounds may be relied upon at the hearing except those set out in the statement under O 52 r 2(2). The court therefore required the applicant to “confine its case” to the grounds raised in its statement. This is a significant point for practitioners: contempt applications are not open-ended; they are tightly bounded by the pleaded case, and the court will not allow a party to shift the theory of contempt midstream.
On the substantive allegations, the applicant’s statement focused on the respondents’ advertisements failing to mention that the worldwide Mareva injunction had been set aside on 27 February 2004, and failing to mention that service of the writ and statement of claim had been set aside. The applicant characterised this as a blatant disregard for and willful disobedience of the order of 27 February 2004. It also alleged breach of an order requiring the 1st respondent to serve copies of the orders dated 27 February 2004 on parties notified of the worldwide Mareva injunction.
Although the judgment extract provided is truncated, the reasoning visible in the portion reproduced shows the court’s approach: it treated the applicant’s allegations as requiring careful scrutiny against the actual orders made on 27 February 2004 and the precise content of the advertisements. The court would have needed to assess whether the advertisements were indeed inconsistent with the discharged Mareva injunction and whether that inconsistency amounted to willful disobedience rather than, for example, a misunderstanding or an exaggeration that did not meet the criminal standard.
The court also had to consider the applicant’s own conduct. The record indicates that the applicant had published misleading advertisements earlier, and it did not disclose those advertisements in its ex parte application seeking leave for committal. While the court’s analysis in contempt cases does not necessarily excuse the respondents’ conduct, the applicant’s lack of candour could affect how the court views the overall equities and the credibility of the applicant’s case. In contempt proceedings, where the court is asked to impose punitive sanctions, the applicant’s conduct and the fairness of the process are relevant to the court’s willingness to grant relief.
In addition, the court would have considered the causal and contextual aspects of contempt. The advertisements were placed in Indonesia, and the applicant’s case was that the advertisements were designed to prejudice the respondents’ position with Indonesian authorities and the public. The court would have needed to decide whether such conduct, even if misleading, constituted contempt of the Singapore court’s authority, or whether it was more properly characterised as a dispute about factual accuracy and public statements rather than a direct interference with the administration of justice.
Finally, the court’s analysis would have been guided by the requirement of proof beyond reasonable doubt. Even where the court finds that advertisements were misleading, it must still be satisfied that the respondents’ conduct met the legal threshold for contempt as pleaded. This is often where contempt applications fail: the court may be uncomfortable with the conduct but cannot convict it as contempt without the necessary level of certainty.
What Was the Outcome?
The High Court dismissed the applicant’s application for committal for contempt against the respondents. The court was not satisfied that the applicant had proved contempt to the requisite standard on the grounds pleaded.
As noted in the LawNet editorial note, the applicant’s appeal was dismissed by the Court of Appeal on 10 February 2011 in Civil Appeal No 137 of 2010, reported at [2011] SGCA 19. The appellate dismissal confirms that the High Court’s approach to the stringent standard of proof, the sparing use of contempt powers, and the procedural confinement to pleaded grounds was upheld.
Why Does This Case Matter?
This case is instructive for lawyers dealing with contempt applications in Singapore, particularly those arising from media statements or conduct outside the courtroom. It demonstrates that contempt jurisdiction is not a general remedy for misleading publicity. Instead, it is a narrow, punitive mechanism tied to protecting the authority of the courts and requiring strict proof of the pleaded contempt.
First, the decision reinforces the evidential burden: contempt must be proven beyond reasonable doubt. Practitioners should therefore treat contempt as akin to a quasi-criminal proceeding, requiring clear evidence that the respondent willfully disobeyed a court order or otherwise engaged in conduct that squarely falls within the legal definition of contempt.
Second, the case highlights procedural discipline. Under O 52 r 5(3), the applicant must confine its case to the grounds in the statement. Lawyers should ensure that the statement is comprehensive and carefully drafted, because the court will not permit a party to rely on new or alternative grounds at the hearing without leave.
Third, the case is a cautionary tale about candour in ex parte applications. Where a party seeks leave to pursue committal, the court expects full and fair disclosure. Failure to disclose relevant facts—especially where the applicant itself engaged in similar conduct—may undermine the applicant’s credibility and the court’s confidence in the application.
Legislation Referenced
- Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), s 7(1) [CDN] [SSO]
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), O 52 r 1
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), O 52 r 2(2)
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), O 52 r 5(3)
Cases Cited
- Attorney-General v Times Newspapers Ltd [1974] 1 AC 273
- Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518
- In re Bramblevale Ltd [1970] 1 Ch 128
- Parashuram Detaram Shamdasani v King-Emperor [1945] 1 AC 264
- PT Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others [2010] SGHC 221
- PT Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others [2011] SGCA 19
Source Documents
This article analyses [2010] SGHC 221 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.