High Court Clarifies Marital Communications Privilege

Executive Summary

In Systematic Airconditioning Pte Ltd v Ho Seng Ken and others [2023] SGHC 10 ( “Systematic Airconditioning”), the General Division of the High Court clarified the scope of the marital communications privilege under s. 124 of the Evidence Act 1893 (“EA”).

In Systematic Airconditioning, the issue in dispute was whether certain communications made between husband and wife were disclosable. The Plaintiff, Systematic Airconditioning Pte Ltd (“SAPL”) applied for specific discovery of various correspondence between Mr Ho Seng Ken (“Ho”) and Mdm Zheng Xiangxi (“Zheng”), who were husband and wife. It appears from the Judgment that the said correspondence were relevant to the claims by SAPL against Ho and Zheng. In particular:

• The claim that Ho had breached his fiduciary duties to SAPL by giving undue preferential treatment to, and by diverting business away from SAPL to, companies which Ho had interests in; and
• The claim that Zheng had dishonestly assisted Ho in his breaches of fiduciary duties.

This application for specific discovery was first decided by the the Learned Assistant Registrar (“Learned AR”).

The Learned AR accepted Ho’s and Zheng’s submissions that s 124(1) of the EA covers communications made by and made to an individual during marriage. The Learned AR’s decision appears to be grounded on practical considerations (at [14] of the Judgment): “[…] 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. It is virtually impossible and impractical to “slice and dice” […] 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”.

Dissatisfied by the Learned AR’s decision, SAPL appealed. On appeal, the High Court Judge reversed the AR’s decision. The Honourable Judge was of the view that s 124(1) of the EA only protected communication made to a party by his/her spouse during marriage. In other words, s 124(1) of the EA does not protect communications made by a party to his/her spouse during their marriage.

Background

In Systematic Airconditioning, SAPL claimed that Ho had breached his fiduciary duties to SAPL by, amongst other things, diverting business to other entities of which Ho had interests in. SAPL also claimed that Zheng (who is Ho’s current wife) had dishonestly assisted Ho in his alleged breaches of fiduciary duties. Various other entities (referred as “Defendant Companies” in the Judgment) were also included as parties to the claim. In particular, SAPL claims that “Ho and/or Zheng and/or the Defendant Companies conspired to injure SAPL”.

SAPL sought specific discovery of various correspondence between Ho and Zheng relating to the “Disclosure Matters” i.e., as defined in paragraph 8 of the Judgment. Broadly, it appears that the documents sought (which include correspondence between Ho and Zheng) relate to the business of the Defendant Companies (of which Ho and/or Zheng had interests in) as well as transactions entered in breach of Ho’s fiduciary duties to SAPL.

Ho and Zheng resisted SAPL’s specific discovery application on the basis that any communications between them were protected by s 124(1) of the EA. The Learned AR agreed and held that all correspondence between Ho and Zheng throughout the course of their marriage are subject to marital privilege under s 124(1) of the EA. Pertinently, the Learned AR found it “quite indefensible for [SAPL] to take the position that it can obtain from [Ho] what he said to [Zheng], regardless of whether he consents, when [SAPL] cannot obtain from [Zheng] what [Ho] said to her without his consent”.

SAPL appealed against the Learned AR’s decision.

The High Court Judge allowed SAPL’s in part, and held that s 124(1) of the EA only covers communications made to a party by his/her spouse during the marriage.

High Court Judge Allowed SAPL’s Appeal In Part

The Honourable Judge disagreed with the AR’s findings and in fact found it “unarguable” that  s 124(1) of the EA only protected a person from being compelled to disclose communications made to him by his/her spouse during the marriage.

The Honourable Judge’s decision may be summarised as follows:

1. Firstly, the Honourable Judge was of the view that the “only possible interpretation” of s 124(1) of the EA (i.e., by applying the framework for purposive interpretation of legislation set out in Tan Cheng Bock v Attorney General [2017] 2 SLR 850) is that marital privilege only covers communications made to a party by his/her spouse during the marriage. The Honourable Judge also drew references from UK legislation which was similar to s 124(1) of the EA and considered various UK cases discussing the same. In particular, the UK Courts observed that the relevant UK legislations only “protected communications made to the witness and did not protect those made by the witness”.
2. Secondly, the Honourable Judge was of the view that decision in EQ Capital Investments Ltd v Sunbreeze Group Investments Ltd and others [2017] SGHCR 15 (“EQ Capital”) e., which the Learned AR relied on in reaching his decision (at first instance), had to be “read in its context”. In particular, EQ Capital concerns the issue of whether confidential communications between spouses are subject to marital privilege under s 124(1) of the EA. It was in that context that the Court in EQ Capital found 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”. Therefore, EQ Capital, in the Honourable Judge’s view, does not go so far to suggest that s 124(1) of EA covers communications made by and made to an individual during marriage.

Finally, the Honourable Judge also addressed the practicalities of separating spousal communications (which appeared to be central to the Learned AR’s decision). In the initial decision, the Learned AR held that communications between married couples are two-way communications and it would difficult to “slice and dice” such communications and only disallow a person from disclosing communications made to him by his spouse but allow communications made by him. On appeal, the Honourable Judge disagreed with the Learned AR and found that any difficulty in “slicing and dicing” communications between spouses (to fit the interpretation of s 124(1) of EA) was “not insurmountable” and was “insufficient to override what s 124(1) of the EA clearly and expressly spelt out to be the law.”

Conclusion

The High Court decision in Systematic Airconditioning provides a helpful clarification of the scope and ambit of s 124(1) of the EA. However, the practical considerations and difficulties flowing from such a narrow interpretation of s 124(1) of EA remain. For one, if the purpose of section 124(1) of the EA is to protect marital communications from disclosure, then practically speaking, this decision may thwart that purpose. Simply put, a party to litigation (A) may overcome section 124(1) EA by compelling disclosure from the counterparty (B) who made the communication to his spouse (C) instead of compelling (C), who received the communication to disclose the same. The second practical issue is, as the Learned AR observed, it may be difficult to “slice and dice” the communications made between spouses.

The writers are grateful for the contribution of our firm’s intern Ms Claire Teo