3 This was an appeal against the District Judge’s decision granting an injunction against the appellant, Mr Alex Bellingham (“Bellingham”), in civil proceedings commenced by IP Investment Management Pte Ltd (“IPIM”) and IP Real Estate Investments Pte Ltd (“IP Real Estate”) under s 32(1) PDPA. The respondent, Mr Michael Reed (“Reed”), was subsequently added as a plaintiff in those proceedings. As the scope of s 32(1) PDPA was being decided for the first time, Mr Liu Zhao Xiang Daniel (“Mr Liu”) was appointed as young amicus curiae to assist the Court in this appeal.

4 I concluded that Reed did not have a right of private action under s 32(1) PDPA because he had not suffered any loss or damage within the meaning of that provision. Accordingly, I allowed the appeal and set aside the order made by the District Judge.

5 As the issue was decided for the first time, I subsequently granted Reed leave to appeal against my decision. Reed filed his appeal pursuant to the leave granted.

6 IPIM is a fund management business that creates real estate private equity funds. It is a part of the IP Investment Management group of companies (“IPIM Group”). IP Investment Management (HK) Ltd (“IPIM HK”) is another company in the IPIM Group.

7 IP Real Estate is a company within the IP Global group of companies (“IP Global Group”), an international group of companies which engages in property investment and advisory services and is headquartered in Hong Kong. The IPIM Group is related to the IP Global Group.

8 Bellingham was employed by IP Real Estate on 1 June 2010 as a marketing consultant. He subsequently rose to the position of Director. On 1 March 2016, IP Real Estate seconded Bellingham to IPIM HK. Among other things, Bellingham’s role involved taking charge of and managing an investment fund known as the “Edinburgh Fund”.

9 The Edinburgh Fund was an investment fund that was set up in 2015 by IPIM and IPIM HK to acquire, develop and manage a student property. The Edinburgh Fund was an Accredited Investors only, single asset, close-ended fund.

10 All the investors in the Edinburgh Fund were customers of IPIM and IP Real Estate (the “Customers”). The Customers disclosed their personal data in confidence to IPIM and/or IPIM HK, which managed their investments. The Edinburgh Fund was scheduled to be terminated in the second half of 2018, with the Customers exiting from the fund in that period.

11 On 31 January 2017, Bellingham left his employment with IP Real Estate; consequently, his secondment with IPIM HK also ended. Bellingham joined a competitor of IPIM known as Q Investment Partners Pte Ltd (“QIP”) as its “Head of Fund Raising”.

12 Bellingham contacted some of the Customers, including Reed. On 15 August 2018, Bellingham sent the following email to Reed at his personal email address: ¹

13 On 21 August 2018, Reed sent the following email to Mr Mark Ferguson (“Ferguson”), IPIM’s Director, Investor Relations & Business Development, querying the fact that QIP had information about his investment in the Edinburgh Fund: ²

24 Section 32 PDPA provides as follows:

25 Part IV of the PDPA deals with the general requirement for consent to the collection, use and disclosure of personal data. Part V deals with the individual’s right to access and correct his personal data that is in the possession or under the control of an organisation. Part VI deals with organisations’ obligations as to the accuracy of personal data, the protection of personal data, the retention of personal data and the transfer of personal data outside of Singapore.

26 Therefore, a plaintiff bringing an action pursuant to s 32(1) PDPA has to show (a) contravention of one or more provisions in Parts IV, V or VI, and (b) that he suffered loss or damage directly as a result of such contravention.

27 Reed’s case was that Bellingham had contravened ss 13 and 18 PDPA (which fall under Part IV PDPA) and that he had suffered loss and damage directly as a result thereof. Bellingham disputed Reed’s case.

28 The issues before me were:

Section 20 PDPA was not applicable in the present case.

40 The PDPA does not define “loss or damage”. It is not clear from the GD what the DJ’s interpretation of the term “loss or damage” was. Reed submitted that “loss or damage” under s 32(1) PDPA includes distress and loss of control over personal data. Bellingham contended that it does not. The scope of “loss or damage” is unclear.

41 Section 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) mandates the purposive approach in the interpretation of a provision of a written law – an interpretation that would promote the purpose or object underlying the written law shall be preferred to an interpretation that would not promote that purpose or object.

42 The purposive interpretation of a legislative provision involves three steps. The court must start by ascertaining the possible interpretations of the provision, having regard to the text of the provision as well as the context of the provision within the written law as a whole. The court must then ascertain the legislative purpose or object of the specific provision and the part of the statute in which the provision is situated. The court then compares the possible interpretations of the provision against the purpose of the relevant part of the statute. The interpretation which furthers the purpose of the written text is to be preferred to one which does not. See Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”) at [54(b) and (c)].

76 The interpretation which furthers the purpose of the written text should be preferred to the interpretation which does not. As stated in [49] above, s 32(1) created a statutory tort. It seemed to me that interpreting the term “loss or damage” in s 32(1) PDPA narrowly to refer to the heads of loss or damage applicable to torts under common law (eg, pecuniary loss, damage to property, personal injury including psychiatric illness) would further the specific purpose of s 32(1) PDPA as a statutory tort. There was nothing in the PDPA that indicated otherwise.

77 That Parliament’s intention was for common law principles to apply in determining the scope of “loss or damage” under s 32(1) PDPA, is supported by Parliament’s expressed intention in respect of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“POHA”). Section 11 POHA provides that the victim of harassment may bring civil proceedings in a court against the respondent and the court may award “such damages … as the court may, having regard to all the circumstances of the case, think just and equitable”. In answer to questions raised in Parliament as to whether damages for emotional distress will be available under the civil remedies provision, the Minister for Law said that the issue of damages would be left to the courts to decide by applying common law principles. ¹⁵ It seemed to me that it would be strange that Parliament would have had a different intention with respect to the PDPA when it had decided not to make any express reference to distress or loss of control over personal data in s 32(1) PDPA.

78 In addition, the narrow interpretation of “loss or damage” would also further the intention ascertained from a consideration of the extraneous material, ie, that Parliament’s intention was to exclude emotional harm and loss of control over personal data from s 32(1) PDPA (see [56] above).

79 Finally, the intention ascertained from a consideration of the extraneous material also confirmed the interpretation that “loss or damage” in s 32(1) PDPA excludes loss of control over personal data.

80 Reed submitted that since MICA had studied the data protection frameworks in Canada, New Zealand, Hong Kong and the EU (of which the UK was then a member), to develop the most suitable model for Singapore, the authorities from these jurisdictions were relevant in the interpretation of “loss or damage” in s 32(1) PDPA. I disagreed with Reed for the reasons set out earlier in [56]–[75].

90 It was not disputed that Reed had not suffered any financial loss, psychiatric injury or nervous shock as a result of Bellingham’s contraventions of ss 13 and 18 PDPA. Before me, Reed submitted that he suffered emotional distress and loss of control over his personal data directly as a result of Bellingham’s contraventions of ss 13 and 18 PDPA.

96 Reed subsequently sought leave to appeal against my decision allowing Bellingham’s appeal. It is well established that leave to appeal may be granted if there is (a) a prima facie case of error, (b) a question of general principle decided for the first time, and (c) a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage: Lee Kuan Yew v Tang Liang Hong and another [1997] 2 SLR(R) 862 at [16]. Whilst these three grounds are not exhaustive, they are usually the grounds relied upon by an applicant seeking leave to appeal.

97 In the present case, Reed’s application for leave to appeal was based on all three grounds. Bellingham agreed that the present case involves a question of general principle decided for the first time, and that the question is one of importance upon which a decision of the Court of Appeal would be to the public advantage. I agreed that these two grounds were satisfied and I granted leave on these two grounds.

98 As for the ground of prima facie case of error, Reed relied on Essar Steel Ltd v Bayerische Landesbank and others [2004] 3 SLR(R) 25 (“Essar Steel”) for the proposition that the error may be one of fact or of law. In Abdul Rahman bin Shariff v Abdul Salim bin Syed [1999] 3 SLR(R) 138 (“Abdul Rahman”), the High Court held (at [30]–[32]) that the error must be one of law because if facts have to be examined in detail to demonstrate the error, the court hearing the leave application might as well hear the appeal proper.

99 The High Court in Essar Steel acknowledged the concern expressed in Abdul Rahman and decided that an error of fact can be relied on to seek leave to appeal if it has been demonstrated that the error of fact is clear beyond reasonable argument and has contributed or led to a judgment.

100 I respectfully agree with Essar Steel. Leave to appeal ought to be granted if it is shown that a decision has been made in error, be it an error of fact or of law. However, bearing in mind the concern expressed in Abdul Rahman, an error of fact must be one that is clear beyond reasonable argument (Essar Steel at [26]); the court should not have to delve into the facts in detail. An applicant for leave to appeal who alleges a prima facie error must demonstrate something more than just his disagreement with the decision. Otherwise, this ground would be satisfied in every case in which leave to appeal is sought. As for error of law, an applicant seeking leave to appeal on the ground of prima facie error of law must show something more than just disagreement with the court’s decision on the law.