24 February 2018
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An olive branch in lower-than-expected carbon tax

Business Times
23 Feb 2018
Andrea Soh

No differentiated benchmarks, but firms will have ample lead time to adapt

The Singapore government surprised many on Monday when the price for carbon tax was finally unveiled: S$5 for each tonne of carbon emissions in the first five years - far lower than the potential S$10-20 range announced last year.

The lower-than-expected carbon tax from 2019 to 2023 could be seen as an olive branch extended by the government to affected industries, even as it rejects their request for the tax to be varied depending on industry benchmarks.

The guidance given for the carbon tax after that - it is expected to be raised to S$10-15 a tonne by 2030 - also gives these industries, all capital-intensive ones that often plan investments to last for decades, more lead time to shift gears.

The carbon tax is expected to affect some 40 companies in the power generation, petrochemical and semiconductor sectors. They account for about 80 per cent of Singapore's national greenhouse gas emissions.

When the carbon tax proposal was first put forth last year, these companies were cautiously supportive.

After all, global sentiment towards climate change, and the action required to mitigate its effects, has changed significantly since the Paris Agreement made in end-2015, with many global oil companies also voicing support for a carbon price.

Their reactions to Monday's announcement of the price and the way it will be imposed were, however, less positive.

So what changed? While industries are supportive of a carbon tax, the devil is in the details.

Companies across various sectors had suggested that the government consider using industry benchmark targets, with companies which are more energy efficient than these benchmarks paying less or no tax, and those less efficient paying a heavier tax.

In spite of this, Mr Heng, in his Budget speech on Monday, said the tax will be imposed uniformly on every unit of carbon emission.

The National Climate Change Secretariat (NCCS) explained that determining the level of benchmarks for each sector and ensuring that they are equitable across sectors will be a "highly complicated and contentious" process, going by the experience of other jurisdictions.

Industry observers generally agree that benchmarking is a complicated and controversial process. Though practised in jurisdictions such as South Korea and Europe, these places have economies far larger than Singapore's that might also make such processes more feasible.

Melissa Low, research fellow at the Energy Studies Institute at National University of Singapore, noted that there are currently very few internationally established benchmarks, especially for downstream specialty chemical sectors.

Developing and implementing these benchmarks will be extremely data-intensive and imposes additional reporting and verification requirements on companies.

Concurring, Subodh Mhaisalkar, executive director of the Energy Research Institute at the Nanyang Technological University, said every company has different preferences and suggestions on how to establish such a benchmark, depending on their efficiency.

The diverse range of industries and processes in Singapore would also require a large number of benchmarks, said Edwin Khew, chairman of Sustainable Energy Association of Singapore.

Mr Mhaisalkar pointed out that the uniform carbon tax is similar to how Singapore has approached the goods and services tax. "The simplicity of the tax will undoubtedly be a virtue in its implementation and also in assessing its efficacy," he said.

The burden of the tax will fall differently on power generation companies, compared to those that manufacture for exports such as petrochemical and semiconductor firms.

Power generation companies have said they will pass on the additional costs to consumers. Firms producing petrochemicals and semiconductors - which made up 53 of Singapore's manufacturing output in 2017 - however, don't have this option.

For refineries, which contribute to 11 per cent of the country's manufacturing output, the S$5-a-tonne carbon tax will impose additional cost of 10-15 US cents for each barrel of crude oil processed, said Wood Mackenzie senior manager Suresh Sivanandam.

By his estimate, this would reduce their profit margin by 3 per cent in 2020 - the first year that companies are required to pay the taxes. Coming at a time when refining margins are expected to be stronger, thanks to a sulphur cap imposed by the International Marine Organisation on marine fuel from 2020, the impact on refineries will be marginal.

The eventual price of S$10-15 will, however, probably affect the competitiveness of Singapore's refineries, he added.

Notably, the country's economic competitiveness, however, is one factor - alongside others like international climate change developments and the progress of emissions mitigation efforts - which Mr Heng said the government will take into account when conducting a review of the tax in 2023.

With the government having given some five to six years of lead time on the future carbon price, the onus is now on companies to undertake the necessary spending to improve their energy efficiency and lower their carbon emissions, or pay a higher amount of carbon tax.

In sum, the low starting rate for Singapore's carbon tax has given companies more time to adjust to a world with higher carbon prices - an inevitable reality that all around the world will face.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Sewerage and Drainage Act - Sewerage and Drainage (Composition of Offences) (Amendment) Regulations 2018 (S 059 of 2018)

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Commonwealth
21 Feb 2018

Ex-City Harvest leader charged with leaving S'pore unlawfully

Straits Times
23 Feb 2018
Elena Chong

Boatman charged with abetting attempted escape; prosecution applies for $1m bail to be forfeited

The day after he was caught allegedly trying to escape to Malaysia on a motorised boat, former City Harvest Church (CHC) leader Chew Eng Han found himself back in the dock, facing a charge of leaving Singapore unlawfully.

The former church fund manager, who was to have started his jail sentence of three years and four months yesterday for his role in the CHC saga, was arrested at 8.47am on Wednesday at sea off Pulau Ubin by the Police Coast Guard.

Boatman Tan Poh Teck, 53, was also charged yesterday with abetting Chew.

He had conveyed Chew on a motorised boat from Pulau Ubin Jetty - which is a not an authorised place of embarkation, departing point or point of departure - with the intention of taking him to Malaysia.

Deputy Public Prosecutor Tan Zhongshan said Chew and Tan each faced a holding charge under the Immigration Act. He asked that the duo be remanded at Central Police Division for investigation.

DPP Tan also applied for Chew's bail to be revoked, and a mention for the bailor to show cause as to why the bail sum should not be forfeited. He told District Judge Christopher Goh that the prosecution had written to the Court of Appeal for a fresh date for Chew to start his sentence.

Judge Goh did not make any order on the "show cause", but ordered the duo to be remanded with permission to take them out for investigations. He turned down the application of Chew's lawyer Jonathan Phipps for his client's wife to speak to her husband.

Chew, who was wearing glasses and clad in a blue polo shirt and dark shorts, was expressionless in the dock. Tan, in a grey T-shirt and shorts, had no lawyer.

Chew's wife, his two daughters and several others attended the court mention yesterday.

Mr Phipps later told reporters that he was briefed by Mrs Chew on Wednesday evening. He said Chew's family members learnt about his arrest from the media, and were quite upset about that.

The case will be mentioned on March 1.

If convicted, Chew faces a fine of up to $2,000 and/or a jail term of up to six months.

The maximum penalty for abetting in the offence is two years in jail and a $6,000 fine.

The duo were caught in Singapore waters after they were intercepted by three Police Coast Guard vessels about 2.4km east of the jetty. Chew was found with about $5,000 in cash and fishing equipment.

Three mobile phones were also seized.

The Straits Times understands that when questioned, Chew and Tan claimed they were fishing.

But based on earlier information received, the police established that the duo were trying to leave Singapore illegally for Malaysia.

Police also arrested Chew Eng Soon, 61, on Wednesday for abetting the offence. The two Chews are believed to be brothers.

Five other CHC leaders - including founder-pastor Kong Hee - who were also convicted of mis-using church funds, began serving their sentences last April. However, Chew, who was out on $1 million bail, had secured multiple deferments.

After his jail term - which was reduced from six years by the High Court in April last year - was upheld by the Court of Appeal on Feb 1, Chew had asked to defer his sentence until after Chinese New Year.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Public Utilities Act - Public Utilities (Composition of Offences) (Amendment) Regulations 2018 (S 058 of 2018)

Journals Online: Sentencing Reform in Singapore: Are the Guidelines in England and Wales a Useful Model?

Commonwealth
21 Feb 2018

Ex-bank clerk gets 131/2 years' jail over $11.4m swindle

Straits Times
23 Feb 2018
Elena Chong

For three years, a former bank clerk ran a Ponzi scheme based on foreign currency exchanges.

Even after police started investigating in 2015, Ariffin Chewing continued to deceive his victims. In all, Ariffin swindled 18 people of $11.4 million in a scheme that ran from 2012 to 2015.

Yesterday, the 48-year-old was sentenced to a total of 131/2 years' jail after admitting to 21 charges, including one of converting the benefits of his criminal conduct - $137,400 - to partially pay for his Housing Board flat.

He told his victims he could get advantageous rates for foreign currencies as an HSBC employee. He would even show them his HSBC staff card to lure them in.

In fact, his services at the bank had actually been terminated earlier, in January 2012.

But people were convinced. His victims included a 70-year-old businessman who was cheated of $4.1 million and the man's nephew who was duped into handing over $1 million.

Deputy Public Prosecutor Alexander Woon told the court that Ariffin's victims would deliver Singapore dollars to him in cash after he told them that he could return their capital, and the profit made from the exchange into foreign currencies, in a month or two.

Initially, the victims received the full amounts they were promised, as Ariffin was able to route them money received from other victims.

At some point, he convinced some to leave their returns with him to roll over into new investments. He then told them that he was maintaining accounts on their behalf, and their investments were earning further profits.

DPP Woon said these profits were entirely fictitious, and Ariffin had used some of the money for personal expenses, including the purchase and renovation of his HDB flat.

In 2014, things started to fall apart and Ariffin could no longer repay his victims fully. But he continued to deceive the victims, said DPP Woon. Between July 7, 2015 and April 12, 2016, 14 police reports were lodged against him.

Seeking a sentence of at least 14 years' jail to be imposed, DPP Woon said the harm caused by Ariffin was serious and his culpability was high. He also showed little remorse.

Of the $11.4 million Ariffin took, $4.3 million had been returned to the victims. The amount unaccounted for is about $7.1 million.

Ariffin could have been jailed for up to 10 years and fined for each charge of cheating. The maximum penalty for the other offence under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act is a $500,000 fine and 10 years' jail.


$4.3m

Amount returned to victims.

$7.1m

Amount unaccounted for.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Income Tax Act - Income Tax (Exemption of Interest and Other Payments for Economic and Technological Development) Notification 2018 (S 057 of 2018)

MAS consults on proposed changes to anti-money laundering and countering of financing of terrorism requirements for money-changing and remittance businesses

Business
21 Feb 2018

DMX files police report in Singapore, alleges wrongdoing by former management

Business Times
23 Feb 2018
Wong Kai Yi

IT solutions provider DMX Technologies Group said that it has filed a police report in Singapore alleging the involvement of Singapore entities, individuals and bank accounts in certain suspicious transactions.

DMX announced through the Singapore Exchange (SGX) in a statement that those suspicions arose from further analysis of certain documents and records that had been released in Hong Kong for further investigations.

In April 2016, DMX announced that its unit had filed a writ of summons against its former management and one of its subsidiaries for irregular accounting practices in Hong Kong's High Court.

Four former executives were sued together with DMX Hong Kong and two other companies: Mozart Management, and Tacoma Associates.

According to DMX's investigations, unauthorised payments were made to Mozart by DMX Hong Kong's clients, while DMX Hong Kong had also made unauthorised payments meant to be made to its contracting parties to Tacoma between 2008 and 2012.

The group is also currently suing former auditor Deloitte & Touche LLP in the Singapore High Court over accounting irregularities discovered in 2015, the company announced in October last year. DMX is pursuing Deloitte for a claim of "loss and damage suffered as a result of the professional negligence of Deloitte" and will be seeking "unliquidated damages to be assessed".

In the SGX statement, the company added it has been granted an order from the Hong Kong High Court on Jan 12, 2018 to release documents and records to the Hong Kong police, among other parties, to aid further investigations.

DMX said that the documents "provide evidence in support of allegations against former management for their wrongdoings".

The company added it intends to pursue to the "fullest extent possible" all its rights against the relevant parties, and will work closely with legal counsels and regulatory authorities in jurisdictions related to any of the investigations.

Shareholders are advised to exercise caution when dealing in the company's securities, DMX said. Its stock has been suspended from trading since March 20, 2015.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Road Traffic Act - Road Traffic (Motor Vehicles, Construction and Use) (Amendment) Rules 2018 (S 056 of 2018)

Parliament passes Bill to amend Payment and Settlement Systems (Finality and Netting) Act to improve protection of payment and settlement systems

Legislation
20 Feb 2018

Mentally ill man who beat adoptive father to death jailed 15 years

Straits Times
23 Feb 2018
Selina Lum

A mentally ill man who went on a savage rampage on New Year's Eve in 2015, beating his adoptive father to death and assaulting his adoptive mother and his girlfriend, was jailed for more than 15 years yesterday.

Su Caizhi, 30, has a history of schizophrenia, but often did not take his medication.

Justice Kannan Ramesh said Su had launched an unprovoked and savage assault against his defenceless 72-year-old father Pang Tee Lin. Three days after he was discharged from the Institute of Mental Health (IMH) on Dec 9, 2015, Su went off his medication and started experiencing psychotic symptoms and hearing voices.

Su did not resume his medication, and made matters worse by sniffing glue and consuming alcohol on the day of the assault, said the judge. A long jail term will ensure that Su is treated in a structured environment and instil in him the need and the discipline to take his medication, he added.

Su was jailed for 14 years on a charge of culpable homicide. He was handed 12 months in jail for causing grievous hurt to his adoptive mother Wong Ah Boey, 69, and 15 months in jail for causing grievous hurt to his girlfriend Melissa Foo Fern Yin, 34.

Su was also given six weeks in jail on a charge of wrongful confinement for a separate incident when he locked Ms Foo and her former husband inside their flat.

The 12-month jail term will run concurrently with the 14 years' jail sentence. The other jail terms will run consecutively, totalling 15 years, three months and six weeks.

Madam Wong was in court yesterday, but left after the verdict without talking to Su or the media.

Su was adopted from China by the childless couple when he was five.

He has been admitted to IMH at least seven times since 2012, with symptoms of hallucinations, delusions, aggressive behaviour and disorganised thought.

When the couple retired, they gave him $70,000 out of the $100,000 from the sale of their curry rice stall. Su lost part of the money in forex trading and two failed businesses, and also paid for an accounting course which he did not complete.

On New Year's Eve in 2015, when Ms Foo went to the family's Bedok Reservoir flat, Su was angered when she refused to engage in an unnatural sex act with him.

He assaulted her and she fainted, but he continued to punch and kick her.

He then turned his anger on his father after voices in his head told him that Mr Pang had hidden his medicine. Su punched his father in the face and when the latter fell to the floor, Su stomped on his face and kicked him in the chest.

He grabbed Madam Wong's head and banged it against the wall. He also slapped and punched her face, and kneed her in the stomach.

When Ms Foo regained consciousness, she called the police.

Mr Pang suffered severe brain injury and fractures to his face, ribs and spine. He was taken off life support nine days later.

When The Straits Times visited Madam Wong's flat yesterday, nobody appeared to be home.

Neighbour Bob Khan said Mr Pang had always been the more cheerful one. "Madam Wong kept to herself. Even after the incident, she is still the same."

•Additional reporting by Rachel Au-Yong

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Bankruptcy Act - Bankruptcy (Debt Repayment Scheme) (Amendment) Rules 2018 (S 055 of 2018)

MAS issues revised Code on Collective Investment Schemes setting out rules for precious metals funds, new disclosure requirements for funds, operational changes for REITs

Business
20 Feb 2018

Video interviews for suspects, victims of sex crimes targeted to start mid-2018

TODAY
23 Feb 2018
Louisa Tang

By the middle of this year, suspects in certain offences will be required to have their interviews recorded on video if the long-awaited amendments to the Criminal Procedure Code (CPC) are passed.

The Ministry of Law will table the CPC amendments in Parliament next week, Law and Home Affairs Minister K Shanmugam revealed on Thursday (Feb 22), at the sidelines of a visit to the Police Cantonment Complex.

“The second reading will be thereafter, so it will be fairly quickly done,” he said. “Of course, there has been a long period of consultation. It will be groundbreaking… this will be very substantive.”

For a start, video recording of interviews will involve suspects in non-consensual rape offences who are investigated by the Criminal Investigation Division (CID), as well as suspects with mental disabilities investigated by the Bedok and Central Divisions of the police force.

Three video-recording facilities at the CID and the Central and Bedok Divisions will be ready by that time.

Sweeping changes to the CPC, which was last overhauled in 2010, were first mooted in July last year. The CPC is the framework that guides criminal investigations and the procedures for criminal hearings, such as trials and appeals.

Video recording will be rolled out in phases and made compulsory for suspects in certain offences, such as serious sexual crimes. This will allow the courts to better determine whether their statements were made voluntarily and how much weight should be placed on them.

Vulnerable witnesses, such as alleged victims of sexual offences, may also record their interviews on video to save them the trauma of repeatedly recounting their ordeal during a trial. Their identities will be protected immediately when an offence is reported to the police.

When court procedures begin, defence lawyers will be given a transcript of the video recordings, and can view the footage at approved locations. They will not be given copies of the footage to protect the interviewee’s privacy and prevent unauthorised circulation.

The testimonies of these witnesses will be heard behind closed doors, and defence lawyers will need permission from the courts to ask them questions about their sexual history and behaviour that have no relevance to the charge.

The Ministry of Home Affairs will assess the impact of video-recording on investigations, its effectiveness in different situations and the resources required. They will then refine the infrastructure, processes, procedures and training.

For years, criminal lawyers have pushed for the use of video recording during investigations, suggesting that it could deter police officers from questionable practices. The 2016 case involving teenager Benjamin Lim, who committed suicide after being questioned by the police over an alleged case of molest, sparked a public debate on how police interviews with young people should be handled.

MORE TRAINED DOCTORS ON CALL

By May, trained doctors from the National University Hospital, KK Women’s and Children’s Hospital (KKH), and Singapore General Hospital (SGH) will be available almost 24/7 at the One-Stop Abuse Forensic Examination (OneSafe) Centre housed in the Police Cantonment Complex.

Previously, only doctors from SGH were involved to conduct forensic and medical examinations on victims of sexual crimes, and they were available about 25 per cent of the time.

The centre serves adult rape victims whose cases are reported within 72 hours of the assault and who do not require other medical attention. Since it began operations last January, 10 sexual crime victims have been to the centre.

Mr Shanmugam said that last year, all but one of the 191 rape cases reported to the police were solved, while all 149 rape cases in 2016 were solved.

“In terms of dealing with the issue, finding out what happened, solving the case, the police are doing very well,” he added. “But we want to go further… there are three aspects we want to look at. Firstly, the experience of recounting what happened — you want to make it as painless as possible. Secondly, what happens in court, and third, what sort of penalties should a person who is convicted of sexual assault face.”


HELP FOR CHILD VICTIMS, MORE TRAINING FOR POLICE

Children sexually abused by their family members stand to benefit from a multi-disciplinary interview model, to be piloted at KKH from June; separate interviews by various parties such as child protection officers or doctors will be integrated into a coordinated interview led by the police.

Victims of sexual crimes may learn about investigation and court processes, which will be printed on pamphlets and made available at all police stations and online platforms from June.

All police officers will be required to undergo new training courses, so as to respond to incidents of sexual crime in a way that is more sensitive to the victim’s trauma. Training courses will include a video developed in collaboration with the Association of Women for Action and Research.

The training of a select pool of investigation officers from the police, to interview and manage victims of sexual crimes, began in January and is ongoing.

 

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Bankruptcy Act - Bankruptcy (Amendment) Rules 2018 (S 054 of 2018)

MAS issues circular on new implementation date of 1 January 2019 for insurance returns

Business
19 Feb 2018

Police did 'exceptionally well' in Chew's case

Straits Times
23 Feb 2018
Aw Cheng Wei and Tan Tam Mei

The police did "exceptionally well" in the case of former City Harvest Church leader Chew Eng Han, who allegedly tried to leave Singapore illegally, though it should not be the force's primary role to prevent people from jumping bail, said Law and Home Affairs Minister K. Shanmugam.

It is "too much of a burden" to expect the police to keep track of the "thousands of persons" on bail, monitor their day-to-day activities and ensure that they stay in Singapore, he told reporters yesterday.

"That is not the best use of police resources. Police should be focused on counter-terrorism and solving crimes," Mr Shanmugam said on a visit to the One-Stop Abuse Forensic Examination (OneSafe) Centre at Police Cantonment Complex.

Chew, 57, was arrested on Wednesday morning - a day before he was due to start his jail sentence for the misuse of church funds - for attempting to flee Singapore for Malaysia in a motorised sampan. He was on bail of $1 million when he was caught in waters off Pulau Ubin.

Adding that the matter of people jumping bail had been on his mind even before Chew's case, Mr Shanmugam said the bail regime will be changed to make it an offence to jump bail.

"It will come as a surprise to many that jumping bail is not in itself an offence. Because you have put up bail, and you lose your bail, but we are going to make that an offence," he added.

The proposed amendments to the Criminal Procedure Code and Evidence Act, which were announced last year and will be presented in Parliament next week, include tightening of provisions and criteria relating to bail. Electronic tagging to monitor those on bail is also being considered.

But a balance should be struck between allowing people to lead their lives outside - until their case is disposed of and a verdict is given - and preventing others from taking advantage of the bail system, said Mr Shanmugam.

Citing Chew's case, where he had expressed the desire to spend the Chinese New Year with his family before serving his sentence, the minister said it would seem "exceptionally harsh" for the prosecution to not have granted the request.

"But then there are people who will take advantage of that. I said to my people, the police did exceptionally well in this case.

"Like I said, there are thousands around," said Mr Shanmugam.

Aw Cheng Wei and Tan Tam Mei

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Companies Act - Companies (Winding Up) (Amendment) Rules 2018 (S 053 of 2018)

In the matter of C (Children) [2018] UKSC 8 (on appeal from [2017] EWCA Civ 980)

Judgments
19 Feb 2018

No-caning assurance meant StanChart robbery suspect could be brought back to face trial: Shanmugam

TODAY
23 Feb 2018
Louisa Tang

It was a “fairly obvious” decision between letting Standard Chartered (StanChart) bank robbery suspect David Roach “go off scot-free”, or extraditing him back to Singapore to face trial on the condition that he would not be caned as requested by United Kingdom authorities, said Law and Home Affairs Minister K Shanmugam on Thursday (Feb 22).

Speaking to reporters on the sidelines of a visit to Police Cantonment Complex, Mr Shanmugam said he felt that the “vast majority of people understand what’s been happening in the case”.

There are certain punishments imposed by different countries — such as caning and the death penalty — which extraditing countries may not agree with or do not exist in their jurisdictions, he noted.

“In the UK, there’s no corporal punishment, so they will not extradite to a country that has corporal punishment… So then you have a choice: you can either say, ‘Okay I will not give the undertaking’, in which case he will not be extradited and he will go off to lead his life in Canada or wherever else,” said Mr Shanmugam. “Or we can say we will give the undertaking not to cane, but he will come back to face all the other punishments if he is convicted.”

On Tuesday, the Ministry of Home Affairs said the Singapore Government has assured its UK counterparts that Roach, a Canadian national, will not be caned if he is extradited to Singapore and found guilty of his crimes. “The Singapore Government has agreed to the UK authorities’ request. UK extradition laws prohibit UK from extraditing Roach to Singapore in the absence of such an assurance,” the ministry said.

On July 7, 2016, Roach, 28, allegedly made off with S$30,000 from StanChart’s Holland Village branch. The Canadian fled to Bangkok, Thailand on the same day and was arrested in a backpackers’ hostel three days later for smuggling his loot into Thailand.

Thai authorities rejected Singapore’s request to extradite Roach to face charges here, and decided to deport him to Canada in January after his release from jail.

On Jan 11, Roach was arrested at London’s Heathrow Airport by British police, following a request from Singapore authorities. The Republic has an extradition treaty with Britain, but not with Thailand.

Singapore is seeking the extradition of Roach — who told a court in London earlier this month that he is contesting the proceedings — on one count of robbery and another count of money laundering. Both offences carry maximum imprisonment terms of 10 years, said the MHA. Under Section 392 of Singapore’s Penal Code, a person convicted of robbery can be jailed up to 10 years and faces at least six strokes of the cane.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Immigration Act - Immigration (Temporary Authorised Place of Entry and Departure) Notification 2018 (S 052 of 2018)

MAS issues revised Notice 652 on Net Stable Funding Ratio to delay implementation of required stable funding add-on for derivative liabilities

Business
19 Feb 2018

Close watch by banks and developers on imported services GST

Business Times
22 Feb 2018
Jamie Lee

BANKS with operations here are likely to be watching their expenses on imported services a little closer than before, as a small portion of goods and services tax (GST) will be levied on them in two years' time.

This will not just hit the three Singapore banks buying services from abroad, but will also affect Singapore subsidiaries of global banks that use offshore call centres, or incur shared expenses spent on group-wide costs such as IT systems, tax experts told The Business Times. Other financial firms such as insurance companies and credit finance firms will feel some impact as well.

Residential property developers too, will soon be charged for GST for such services sourced from abroad, tax experts said. So home buyers may want to watch the price of name-dropping when it comes to residential properties. "They (developers) do hire brilliant architects," quipped Lam Kok Shang, head of global indirect tax services, Singapore, at KPMG.

The government has set a 2020 deadline in charging the goods and services tax (GST) on imported services, according to the Budget announcement made this week by Finance Minister Heng Swee Keat.

The Inland Revenue Authority of Singapore (IRAS) is still seeking feedback until March 20, 2018.

But what is clear is that in the business arena, the actual pinch should mainly be felt on financial services firms and property developers. Charities, as well as restructured hospitals, will also be affected, tax experts said.

This GST move only hits specific sectors because most other businesses buying imported services are eligible for a GST refund as long as the imported service is regarded as an input that is used to make taxable supplies of goods and services. So the government levies GST on the final product or service sold here.

But banks, insurers, and residential property developers are part of the minority that sell goods and services that are exempted from GST. The taxman does not collect GST on bank loans sold to customers, on life insurance, or on homes sold.

That means these businesses cannot claim a GST refund for imported services. And only businesses that get no GST refund or a partial refund, will have to apply a reverse charge to account for this new tax on imported services. A reverse charge means a business would pay to the tax collector the GST on imported services, and then claim back the amount paid.

Singapore's GST is now at 7 per cent, but this will rise to 9 per cent in the earlier part of 2021 to 2025.

To be clear, banks should not be charged the headline GST figure, because they can claim a significant amount back from the taxman under a rule specific to finance firms, tax experts said. The current recovery rate for banks, which is set annually, is 72 per cent, tax experts said. Based on today's rate, banks could effectively be charged about 2 per cent for qualifying services bought from aboard.

The applied rate differs across the industry, and reflects how much of financing has gone to consumers versus corporates, tax experts said.

Banks that outsource to overseas vendors the processing of documents and customer service calls, or buy IT services from abroad, should see a higher tax bill.

The consultation draft from IRAS this week added that fees of directors who do not reside in Singapore can be taxed. So will legal and professional services related to overseas collaterals, among other things.

BT understands that there was lobbying from banks on excluding salaries as an expense that would incur GST, with salaries typically being the largest expense for most organisations. In the current IRAS consultation draft, IRAS said the wage component of inter-branch transactions is excluded from GST accounting.

The move will inevitably erode some cost competitiveness, said Koh Soo How, Asia-Pacific indirect tax leader, PwC Singapore. He pointed out that Hong Kong is unlikely to take the same path. Hong Kong does not charge GST.

The affected industries are taking a wait-and-see approach, noting that the changes only take effect in 2020.

OCBC's head of group tax Jane Lim said the new tax measure is not likely to result in a major shift in the bank's procurement decisions.

"We are unable to ascertain the new measure's full impact on our bank at this point as the implementation details have yet to be finalised. But based on our preliminary assessment, we do not expect the expenses arising from this change to be significant," she told The Business Times.

"Also, cost is just one criteria in our assessment of services overseas. We take into consideration a number of other factors including the nature and availability of the service."

A DBS spokesman said: "We are reviewing the guidance and will provide feedback to the relevant authorities to ensure that the new rules can be implemented effectively and efficiently. DBS reviews our operations and procurement policies regularly and will take into account the new GST requirements once IRAS has issued their confirmed guidance."

UOB, CapitaLand and City Developments declined comment, saying it is premature to comment at this point.

There are meanwhile signs that Singapore's financial services firms have been taking some operations onshore. Anecdotally, banks here have offices at Changi Business Park.

A survey by recruitment firm Robert Half in October 2017 showed that 44 per cent of Singapore's chief financial officers (CFOs) within financial services have increased their level of onshoring in the last two years.

About 60 per cent of CFOs within financial services refer to the rising costs and skills shortage in offshore regions as reasons for returning onshore. Just under half also said they were motivated to move back given the complaints about service, and poor efficiency. Almost half of those who have returned business activities to Singapore say it has resulted in increased productivity, higher service quality, and better cost efficiency.

Still, banks - like many organisations - are constrained in hiring more foreign labour due to ongoing curbs. This is why they have also been using technology to boost productivity.

The Robert Half survey further showed that if there are specialised skills available here, 43 per cent of the CFOs polled would consider shutting down offshore activities.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Supreme Court of Judicature Act - Rules of Court (Amendment) Rules 2018 (S 051 of 2018)

MAS consults on proposal to widen scope of eligible collateral relating to commodities and equity securities in MAS Notice 637

Business
19 Feb 2018

GST walls for e-commerce without borders

Business Times
22 Feb 2018
Jamie Lee

NETFLIX has an office in Singapore, but it does not collect goods and services tax (GST) for its subscriptions now.

Ordinarily, a company that sets up shop in Singapore, and sells services to consumers here, would be charging GST on behalf of the government once they make S$1 million in sales. This consumption tax bill is usually passed on to customers.

But tax experts point out that streaming services and other digital-services providers do not fall neatly into this state of play, because the subscriptions to the digital content are likely booked in the global headquarters of these companies, not at the local offices of subscribers.

The loophole is soon to close here. The Singapore government plans to set a 2020 deadline in charging GST on imported services, which would include digital media such as movies, e-books, and apps. This is often known as the "Netflix tax", and was announced in Budget 2018.

Lam Kok Shang, KPMG's head of global indirect tax services Singapore, observed that Netflix's Asia-Pacific headquarters is not likely where revenues are being booked. What several of these companies that sell digital content likely have in Singapore is an office that offers supporting services such as marketing.

Likewise, Koh Soo How, Asia-Pacific indirect tax leader, PwC Singapore, noted that e-commerce companies would not get away with collecting GST even if they have an office here. What counts more for these global digital media firms is the nature of the Singapore business.

Firms that qualify are due to be charged Singapore's GST by 2020. GST here is now at 7 per cent, but will rise to 9 per cent in the earlier part of 2021 to 2025, Finance Minister Heng Swee Keat has said.

KPMG's Mr Lam noted that digital services firms due to be charged the GST are expected to pass on the cost to consumers, but added that consumers are unlikely to stop paying altogether for such digital services, given the wider choices that they offer.

For consumers, a basic Netflix subscription now will cost about 77 Singapore cents more per month, if GST kicks in, and by 2025, just under a dollar when GST hits 9 per cent.

The tax move comes as Singapore has signed onto OECD's Base Erosion and Profit Shifting (BEPS) project, an expansive set of strategies meant to promote greater fairness in taxation policies globally. BEPS calls for, among other things, signatories to create greater tax parity to close loopholes in a digital economy.

Singapore will follow jurisdictions such as Australia, the European Union, Japan and Korea in taxing services sourced from abroad.

This will make Singapore the first country in South-east Asia to introduce a tax on the digital economy. But Thailand, Malaysia and Indonesia are already considering such a tax as well, said PwC's Mr Koh.

For businesses selling imported services to consumers, such as media streaming platforms, they will need to be registered with the taxman here, and collect GST.

This will only apply to overseas vendors whose annual global turnover exceeds S$1 million, and whose sale of digital services to consumers in Singapore is more than S$100,000.

Netflix, which globally raked in US$3.3 billion in revenue in the last three months of 2017 alone, has not published its numbers on its subscriber base in Singapore. But Netflix subscribers here are devoted to their TV, devouring a TV series in an average of three days, a full day faster than the global average.

Netflix declined comment on the GST announcement this week, noting that the rules only come into effect in 2020.

Another popular media streaming service here is Spotify, which is loss-making, but clocked about US$3 billion in revenue globally in 2016.

App store operators such as Apple and Google are also set to be held responsible for accounting for GST on behalf of the app developers, tax experts said.

The Inland Revenue Authority of Singapore has called for feedback, with the public consultation to close on March 20.

Singapore is still reviewing the decision on taxing low-value imported goods, given the ongoing international discussions on how GST can apply, said Mr Heng. Currently, only goods bought from overseas that are worth more than S$400 attract GST. Australia is set to be the first in the world to tax low-value imported goods this year, having already postponed the implementation by a year.

PwC's Mr Koh noted that at this point, there is no example as yet of an effective means to collect GST from goods being shipped to consumers.

It is unclear how effective it would be to have overseas vendors register for GST in Singapore. It also remains unclear if Singapore should set a sales threshold that would qualify certain overseas vendors to charge GST.

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Community Disputes Resolution Act 2015 - Community Disputes Resolution Tribunals (Amendment) Rules 2018 (S 050 of 2018)

MAS issues new and revised Notices to implement requirements for Singapore-incorporated banks in line with revised standards on Pillar 3 disclosures under Basel III framework

Business
19 Feb 2018

How 'Netflix Tax' would work and what would be affected

Straits Times
22 Feb 2018
Irene Tham

In two years, Singapore will require digital purchases, which are now exempt, to be subject to the goods and services tax (GST).

Finance Minister Heng Swee Keat announced the move on Monday when he unveiled Budget 2018.

The Inland Revenue Authority of Singapore has proposed an overseas vendor registration regime to implement the GST for digital purchases.

Foreign suppliers that have a global turnover of more $1 million, and which sell digital services to Singapore consumers that exceed $100,000, will need to register to pay the GST.

Some organisations may absorb the GST, but many will pass the cost on to consumers.

The Straits Times tackles five frequently asked questions.

1. Who else has implemented a similar so-called "Netflix Tax"?

In the last two years, Australia, the European Union, South Korea, Japan and New Zealand have laid down similar rules requiring overseas online suppliers selling to their domestic markets to register for VAT (value-added tax) or GST.

Australia, for instance, implemented its "Netflix Tax" in July last year. It applies to all intangible supplies, such as digital content, games and software.

Similarly, the tax extends to consultancy and professional services done overseas for customers in Australia.

The offshore service provider must register for GST, which is 10 per cent in Australia.

Australia impose penalties on those who fail to register for GST.

Experts here say it is not clear how foreign companies with no presence in Singapore will be punished.

"The Australian authorities have the power to block websites that fail to comply with the new rules," said Mr Vikna Rajah, head of tax, trust and private client at law firm Rajah & Tann Singapore. "The draconian measure should be used only as a last resort if Singapore were to implement it."

2. What digital products and services will most likely fall under Singapore's new regime?

• Mobile apps.

• Electronic book downloads.

• Software downloads, such as games, as well as firewall security and drivers.

• Online newspapers and journals.

• E-learning courses.

• Web-hosting and data management services such as Amazon Web Services.

• Online professional profile management services such as LinkedIn.

• Customised search-engine services such as Google.

• Online market or auction house services such as Alibaba and Craigslist.

• Content streaming services such as Netflix and Spotify.

• Websites that charge fees to facilitate the booking of accommodation, such as Airbnb.

3. What digital goods and services are not taxable?

• Internet telephony, audio conferencing and conference bridging services (as formal licensing is required by the local regulator).

• Professional services such as legal advice and consultancy, even if they are provided by electronic means.

4. When will the online purchases of goods costing below $400 be subject to GST?

A decision has yet to be made, said Mr Edmund Leow, senior partner of tax at law firm Dentons Rodyk & Davidson.

There are several challenges in this segment.

By removing the relief or lowering the threshold for paying GST, many more parcels must be checked to determine whether they qualify. The responsibility of checking and collecting the tax is likely to fall on the shipping or courier service provider, which could pass on the cost to the consumer through an administrative fee.

Also, not all shipping and courier firms in Singapore have the capability to sort parcels for the purpose of GST. They would have to put in place new systems, the cost of which may again be passed on to consumers.

One forerunner is South Korea, where transactions are tracked automatically for the purposes of tax collection. Inbound logistics firms run computer systems that are linked to the tax authority.

E-marketplace Qoo10 Singapore's country manager Hyun Wook Cho said the firm links its systems to that of the South Korean tax authority for sales made to Korean consumers.

5. What is the revenue gain from taxing digital goods and services?

In the burgeoning digital economy, revenue collected from taxing e-transactions outweighs the cost of ensuring that firms and consumers comply with the law.

GST accounted for about a quarter - or $11.1 billion - of Singapore's $47 billion tax revenue in the 2017 fiscal year. It is the second-largest contributor after corporate income tax.

No one has estimated the extra revenue that the Government would get from taxing digital goods and services.

Germany-based market research firm Statista estimated that e-commerce spending in Singapore was US$2.9 billion (S$3.8 billion) in 2016, and probably US$3.3 billion last year. By 2022, online spending here would exceed US$5 billion.

This data excludes digital downloads, content-streaming services and transactions on e-marketplaces such as Alibaba and Craigslist, all of which would be taxed from 2020.

The Australian government, however, estimated that its new tax regime would add about A$350 million (S$363 million) to its coffers in two years.

For more Budget coverage, visit the ST microsite at str.sg/budget2018

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Mutual Assistance in Criminal Matters Act - Mutual Assistance in Criminal Matters Act (Amendment of Second Schedule) Notification 2018 (S 049 of 2018)

MAS revises MAS Notice 637 on Risk Based Capital Adequacy Requirements for Banks Incorporated in Singapore to introduce a minimum leverage ratio requirement of 3% from 1 January 2018

Business
15 Feb 2018

Trading of OTC derivatives on organised markets: MAS seeks views

Business Times
22 Feb 2018
Chia Yan Min

SINGAPORE'S financial sector regulator is proposing new rules which will require over-the-counter (OTC) derivatives to be traded on organised markets, in order to improve market transparency.

The Monetary Authority of Singapore (MAS) has issued a consultation paper on these regulations.

The MAS proposes to impose obligations for the most globally-traded OTC derivatives, namely interest rate swaps denominated in US dollars, euros and pounds to be traded on organised markets - exchanges or other centralised trading facilities.

These obligations will apply to banks whose gross notional outstanding OTC derivatives exceed S$20 billion.

The MAS expects that about 80 per cent of Singapore's market in these products would have to be executed on organised markets following the commencement of the proposed trading obligations.

While smaller counter-parties in Singapore are not subject to the MAS' proposed trading obligations as they do not exceed the threshold, they can still choose to trade these mandated products on organised markets if they wish to access this liquidity pool.

These rules are part of moves to implement the Group of 20 (G20) OTC derivatives reforms.

The US and the EU regulatory authorities have already implemented similar trading obligations for the same OTC derivatives products, the MAS said in a statement on Wednesday.

The Singapore regulator said it plans to seek equivalence determinations from the US and EU for exchanges and other centralised trading facilities in Singapore.

This will allow these markets in Singapore to be used by US and EU market participants to fulfil their trading obligations.

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Extradition Act - Extradition Act (Amendment of First Schedule) Notification 2018 (S 048 of 2018)

MAS seeks feedback on proposed revisions to regulatory framework for large exposures of Singapore-incorporated banks

Business
15 Feb 2018

Man charged in Brazil for alleged illegal payments linked to SembMarine's drillship contracts

Business Times
22 Feb 2018
Tan Hwee Hwee

SEMBCORP Marine confirmed at the release of its full-year results that the Brazilian authorities have charged an individual arrested due to alleged illegal payments connected to drillship awards to the yard group.

President and CEO Wong Weng Sun said at the results briefing on Wednesday that Guilherme Esteves de Jesus, has been charged with various offences by the Brazilian authorities. These charges are connected to drillship contracts entered into by the group's subsidiaries.

He added that the company is not aware of any of its employees being implicated by any authorities.

Mr Wong declined comment when probed on the nature of the relationship between de Jesus and SembMarine and its subsidiaries.

SembMarine had in a March 2015 disclosure pertaining to de Jesus's arrest, described the man as "connected to companies" engaged by the yard group's subsidiaries. These said companies served as consultants in connection to the Sete Brasil drillship contracts awarded to these subsidiaries.

Mr Wong said de Jesus is defending the charges against him and the date of the court hearing of the charges against him is not yet known.

SembMarine had initiated an internal investigation into the allegations raised in the March 2015 disclosure, but this ongoing investigation remains legally privileged, he said.

The SembMarine CEO also maintained that the S$329 million provision made for the Sete Brasil drillship contracts remains adequate.

SembMarine's US$5.5 billion worth of drillship contracts with Sete Brasil have come under renewed spotlight after Keppel Offshore & Marine (KOM) announced some US$422 million in fines for corrupt payments made to win contracts in Brazil. The Sete Brasil contracts worth some US$10 billion that were awarded to SembMarine and KOM have also come under review in a US Department of Justice probe into the said corrupt payments.

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Road Traffic Act - Road Traffic (Singapore Airshow 2018) (Exemption) Order 2018 (S 047 of 2018)

MAS revises Notices to banks, merchant banks and finance companies to incorporate changes in recognition and measurement of allowance of credit losses

Business
14 Feb 2018

More regular Medisave payments, injury insurance among moves for self-employed

Business Times
22 Feb 2018
Janice Heng

SELF-EMPLOYED persons should make Medisave contributions as they earn, instead of annually. Corporate service-buyers and intermediaries that link the self-employed with clients - such as ride-hailing platform Grab - should also be required to help deduct and transmit these Medisave contributions.

These are among several recommendations by a tripartite workgroup that the government has accepted, with details to come in next month's Committee of Supply debate.

Grab Singapore head Lim Kell Jay said the company is "extremely supportive of the recommendations". Grab already makes contributions to its drivers' Medisave accounts.

"With the proposed recommendations, we look forward to working closely with the tripartite workgroup to discuss how best to implement any additional requirements that will further support our driver-partners," he added.

One in 10 workers in Singapore is self-employed. Almost half of these 200,100 workers hold traditional occupations: taxi drivers, real estate agents, insurance agents and working proprietors. The group is otherwise diverse, with only seven occupations numbering over 10,000 each.

Formed in March 2017, the Tripartite Workgroup on Self-Employed Persons identified four challenges after consulting about 200 self-employed persons as well as associations, businesses and government agencies.

First, payment-related disputes. Noting that these often arise from the absence or inadequacy of written contracts, the workgroup proposed a tripartite standard for engaging the services of the self-employed.

Such standards do not have the force of law but businesses which commit to them must uphold them.

The tripartite standard would require adopters to provide written contracts covering key items such as the payment schedule and amount, and parties' obligations.

More sector agencies should help in mediation, added the workgroup. The Tripartite Alliance for Dispute Management's voluntary mediation services - available to employees and employers - could also be extended to the self-employed.

Second, freelancers lack protection against loss of income from prolonged illness or injury. Some insurance policies include such a rider, but there is no standalone product.

Tripartite partners should work with the insurance industry to make such a product available, said the workgroup. This could pay a daily cash benefit for hospitalisation episodes exceeding one to three days, or outpatient medical leave exceeding seven to 14 days.

Such insurance should not be mandatory but could be promoted in higher-risk occupations, said the workgroup. This could take the form of licensing controls for jobs such as taxi drivers or private-hire drivers.

Where the government is a service-buyer, such as with sports coaches, it could use that role to push for adoption.

Third, freelancers have a relative lack of Central Provident Fund (CPF) savings. And while it is already mandatory for the self-employed to contribute to their Medisave accounts annually, cash-flow issues mean one in four have not met this obligation.

To improve compliance, a contribute-as-you-earn Medisave model could be adopted. Intermediaries and corporate service buyers could be required to deduct and transmit the Medisave contribution at point of payment.

The workgroup also recommended that the government further study how such a model could work when intermediaries are not involved in service payment - such as with taxi operators and taxi drivers.

Yeo Wan Ling, chief executive officer of online caregiving services platform Caregiver Asia, said: "We will definitely be keen to work with the CPF Board, if available, to seamlessly connect with their system to make it easier for freelancers to contribute to their Medisave directly from our platform." The platform has some 2,000 active caregivers.

Finally, noting that freelancers lack occupation-specific competency frameworks, the workgroup called on tripartite partners to support self-employed persons' associations in developing such frameworks.

Accepting the recommendations, Second Minister for Manpower Josephine Teo said she would provide a fuller response in next month's Committee of Supply, including "an outline of measures to implement the recommendations and the expected timelines".

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Income Tax Act - Income Tax (Substituted Rate for Withholding of Tax for Aircraft Charter Payments) Rules 2018 (S 046 of 2018)

When is a deposit refundable? Express terms are important

Judgments
14 Feb 2018

Ex-City Harvest leader nabbed trying to leave S'pore

Straits Times
22 Feb 2018
Tan Tam Mei & Selina Lum

In the latest twist to the City Harvest Church (CHC) saga, its former fund manager Chew Eng Han, 57, was nabbed at sea yesterday morning while trying to leave Singapore illegally by boat.

Chew was due to begin his jail term of three years and four months today for his role in the largest case of misuse of charitable funds in Singapore's history.

But he was arrested along with another man, Tan Poh Teck, at 8.47am on board a motorised sampan, said police. Tan, 53, was piloting the sampan that had picked Chew up from the main jetty on Pulau Ubin, north-east of mainland Singapore.

The duo were caught in Singapore waters after they were intercepted by three Police Coast Guard vessels about 2.4km eastwards of the jetty. Chew was found with about $5,000 in cash and fishing equipment.

The Straits Times understands that when questioned, Chew and Tan claimed they were fishing.

But based on earlier information received, the police established that the duo were trying to leave Singapore illegally for Malaysia. They were arrested for "attempting to leave Singapore unlawfully at unauthorised point of departure" under the Immigration Act.

Those found guilty of this offence can face a jail term of up to six months and a $2,000 fine.

Police also arrested Chew Eng Soon, 61, yesterday for abetting the offence. Both Chews are believed to be brothers. The trio were held in lock-up at the Police Cantonment Complex. Tan and the younger Chew will be charged today.

Five other CHC leaders - including founder-pastor Kong Hee - who were also convicted of misusing church funds, began serving their sentences last April. But Chew, who was out on $1 million bail, had secured multiple deferments.

After his jail term - which was reduced from six years by the High Court in April last year - was upheld by the Court of Appeal on Feb 1, Chew asked to defer his sentence until after Chinese New Year.

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Securities and Futures Act - Securities and Futures (Prescribed Futures Contracts) (Amendment) Regulations 2018 (S 045 of 2018)

Recent developments in traditional and non-traditional funding options for SMEs

Business
14 Feb 2018

Court rules against sale of Beauty World Food Centre

Straits Times
21 Feb 2018
Selina Lum and Gracia Lee

Judge says three trustees have fallen short in their duty to obtain best price for stallholders

A potential $17.5 million collective sale of the Beauty World Food Centre has stalled, after the High Court yesterday declined to give three of its trustees the power to go ahead with the deal.

In a decision delivered in chambers, Justice Hoo Sheau Peng said that in the process leading to the deal, the three trustees had fallen short in their duty to obtain the best price for the stallholders.

Highlighting key problems with the deal, the judge noted that no valuation on the property was done before the sale, nor was there an open call for interest to buy the property.

In addition, the stallholders were not given timely updates on critical issues such as how the proceeds would be apportioned, or proper time to consent to the sale.

She noted "there was no awareness that the trustees had no power to sell and no advice was sought from lawyers". The trustees' lawyer, who came on board later, tried to address some of these issues, she said, but these "do not close the prior gaps in the process".

However, this decision does not preclude the trustees from going back to court to ask for the power for another collective sale, their lawyer Jimmy Yap told The Straits Times yesterday. He said he will discuss the options with his clients.

The trustees were also ordered to pay legal costs of $7,000 to the dissenting stall owners, who were represented by Mr Gregory Vijayendran.

The food centre, which occupies the fourth floor of the strata-titled Beauty World Centre in Bukit Timah, comprises 41 food stalls, but the title of the property is contained in a single strata certificate. This means that all the stall owners must agree before the food centre can be sold.

In 2016, a potential buyer expressed interest to buy the centre, built in the 1980s, for $17.5 million.

The potential buyer paid an option fee of $175,000 to the stall owners. But seven individuals, who own six different stalls between them, rejected the money because they were against the sale.

The transaction was held off until the court decided whether the three trustees had the power to sell the food centre.

The trustees - Mr Lai Chong Lee, Mr Tan Kock Meng and Mr Tan Han Soong, who are also stall operators - had asked the court to enable them to proceed with the intended sale though the trust documents neither spell out nor imply that they have the power to sell the property.

They said most of the owners are in their late 60s or 70s and wish to retire from the business, which is becoming increasingly stressful.

They said that in the past few years, most of the stall owners have been in favour of a collective sale, as the only financially feasible way to retire is by converting their investment into cash.

Madam Wu, 71, who owns a drinks stall at the centre, is among stall owners hoping for a sale. "I'm old already and want to retire."

She said she would continue operating her stall for now, but possibly rent it out in future. Like others The Straits Times spoke to, she declined to reveal her full name, citing sensitivity over the sale of the centre.

Madam Lao, in her 50s, opposes the sale. She said: "It is not fair because they were selling it way below the market price." She declined to reveal the price at which she would have agreed to sell her stall.

But a 48-year-old hawker who is renting a fish soup stall at the food centre is happy about not having to move, though the stall owner had agreed to the sale of the centre.

The hawker, who gave his name only as Mr Xie, said: "We have a lot of regular customers...If we move elsewhere, we will have to start from scratch."

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Securities and Futures Act - Securities and Futures (Markets) (Amendment) Regulations 2018 (S 044 of 2018)

IMDA consults on proposed Telecommunication and Subscription TV Mediation-Adjudication Scheme

Business
14 Feb 2018

StanChart bank robbery suspect won't be caned if convicted: MHA

Straits Times
21 Feb 2018
Tan Tam Mei

The man suspected of robbing a Standard Chartered Bank branch here in 2016 will not be caned even if he is convicted. Singapore is willing to give this assurance to pave the way for the extradition of Canadian David James Roach, 28, from Britain, where he was arrested last month.

The Ministry of Home Affairs (MHA), which is working with the British authorities, said in a statement yesterday: "As part of the extradition proceedings, the UK government has requested an assurance that if Roach were to be found guilty by a Singapore court of robbery, the sentence of corporal punishment will not be carried out."

Singapore has an extradition treaty with Britain, but British laws prohibit the authorities from extraditing Roach without such an assurance. Britain abolished caning as a punishment for criminals in 1948.

"The provision of the assurance is being done to try and ensure that Roach does not escape justice, and does not affect the general position taken by Singapore on corporal punishment," added the MHA.

Roach is accused of robbing StanChart Bank's Holland Village branch of $30,000 on July 7, 2016. He allegedly handed a teller a note with demands. He then fled to Bangkok but was arrested three days later.

He was sentenced to 14 months' jail in Thailand last June for violating money laundering and customs laws. He had carried more than US$20,000 (S$26,000) - believed to be proceeds from the robbery - when he entered Thailand.

Media reports said Roach was being deported from Bangkok to Canada and was in transit in London when he was arrested on Jan 11.

His extradition is being sought on one count of robbery under Section 392 of the Penal Code, which can carry a maximum of 10 years' jail and at least six strokes of the cane.

Another count of money laundering is also being sought under Section 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act. It carries a maximum sentence of a $500,000 fine or 10 years' jail.

Roach, whose case was heard in a London court last Thursday, said he would contest his extradition. When contacted, Roach's lawyer Sundeep Pankhania declined comment.

Cases where such assurance on punishment is given are "exceptional", and occur when it is "the only means" to secure an extradition, said National University of Singapore law professor A. Kumaralingam. For example, Briton Michael McCrea, wanted for double murder in 2002, was extradited from Australia in 2005 only after Singapore agreed he would not be hanged.The murder charges were downgraded to culpable homicide.

In cases where caning is mandatory, such as robbery, the punishment can be avoided only if the charge is amended to one that does not require such a sentence, said Prof Kumaralingam.

The Constitution also gives the President the power to remit part of the sentence, said Singapore Management University assistant professor of law Eunice Chua.

The Straits Times understands this would mean that even if Roach is to be punished with caning, that part of his sentence can be remitted by the President.

This provision was used in the 1994 case of American teenager Michael Fay, who was caned for vandalising cars and public property. His caning sentence was reduced from six to four strokesin consideration of a request from then United States President Bill Clinton.


Previous extradition case

• Former financial adviser Michael McCrea was extradited to Singapore in 2005 after the authorities promised Australia that the Briton would not face death if convicted of murder.

• He was wanted for the murder of his chauffeur Kho Nai Guan and Mr Kho's girlfriend, Chinese national Lan Ya Ming, in January 2002.McCrea, who was then 44, got three people to clean up the evidence in his Balmoral Park apartment. The bodies were left in his car at the Orchard Towers carpark.

• McCrea fled to London and later to Melbourne, where he was arrested in June 2002. He spent the next three years contesting his extradition to Singapore, which Australia eventually allowed.

• In Singapore, McCrea was charged with two counts of murder. But these were later reduced to culpable homicide, and he was jailed for 24 years.

• The punishment for murder is death or life imprisonment, while that for culpable homicide is life imprisonment and caning, or up to 20 years' jail, with caning or a fine.

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Medical and Elderly Care Endowment Schemes Act - Medical and Elderly Care Endowment Schemes (Medifund Committees) (Amendment) Order 2018 (S 043 of 2018)

Parliament introduces Cybersecurity Bill to protect critical information infrastructure against cybersecurity threats

Legislation
13 Feb 2018

Borrowing plan will help fund higher infrastructure spending

Straits Times
21 Feb 2018
Yasmine Yahya

Govt looking at using reserves to guarantee borrowings to keep financing costs low

Some statutory boards already borrow to fund their projects but the Government is looking at getting them to do it on a bigger scale as Singapore ramps up its spending on infrastructure.

The Government is also considering using the country's national reserves to guarantee such borrowings. But this would be done on a case-by-case basis.

Elaborating on an announcement that he made in his Budget speech on Monday, Finance Minister Heng Swee Keat said in an interview with The Straits Times yesterday that the proposed move comes as Singapore's upcoming infrastructure spending needs are at levels not seen in more than 50 years.

"In the earlier years of our development, we borrowed from a variety of sources, including multilateral development banks such as the World Bank, Asian Development Bank and so on, to fund some of these major long-term infrastructure developments," he said.

"But as our economy grew and the tax collection was strong, we stopped borrowing some time in the mid-60s for our major infrastructure projects. Now, we are coming back to another major spike in our infrastructure needs."

These include projects such as Changi Airport Terminal 5, the Kuala Lumpur-Singapore High Speed Rail and the Cross Island Line, said Mr Heng.

What is new this time is that the Government is also looking at using the national reserves to guarantee such borrowings to keep the financing costs low, he said.

Any such use requires the Government to seek the approval of the President and the Council of Presidential Advisers, and it is discussing with them what safeguards are needed, he added.

But projects will be judged on a case-by-case basis before the Government decides whether it can guarantee the developer's borrowings. "There has to be certain safeguards that need to be built in, but the specific approval must depend on the details of each project. It has to be scrutinised very carefully. Any project that is put up for this has to be meritorious," he said.

The move to tap financial markets to help pay for infrastructure developments is significant as it opens a new source of funding for these costly projects, rather than relying on tax revenues or dipping into the reserves.

Mr Heng had noted in his Budget speech that infrastructure investments tend to be "lumpy", requiring hefty upfront investments for benefits that will be enjoyed only many years later.

To reduce the burden of such investments on future budgets, he announced the setting up of a new Rail Infrastructure Fund.

It will receive an initial $5 billion injection from the Government for the building of major rail lines in the future. "I'm putting it for a future use which we know is coming soon... and in fact the expenditure will be very significant," said Mr Heng.

The Government would not be "very credible" if it does not have a significant amount to invest upfront in the development of major infrastructure projects - whether it is to build a new airport terminal or to set up a rail infrastructure fund - so it would need a combination of savings and borrowings, he added.

Mr Heng had also said on Monday that the Government must manage its expenditure growth carefully as this would help to ease the tax burden on citizens.

During discussions on the goods and services tax hike with the ministries, all were prepared to review their own books, he said. Some came back, saying "we can think of how to slash this bit of cost and that bit of cost from what was earlier planned", he added.

From next year, Mr Heng would moderate the pace of ministries' annual budget growth from 0.4 times of gross domestic product growth to 0.3 times, he had told Parliament on Monday.

Yesterday, he said: "I'm squeezing all our ministries very hard by limiting their budget growth factor. Some ministries, especially the smaller ones, are complaining it's getting harder and harder to manage.

"But I hope the message gets across to all, that we have to learn to do more with less and it applies right across the public sector as well as the private sector."

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Planning Act - Planning (Fees) (Amendment) Rules 2018 (S 042 of 2018)

SIAC announces proposal on cross-institution consolidation protocol

Business
13 Feb 2018

Buyer's stamp duty hike a preferred tool to wealth taxes

Business Times
21 Feb 2018
Janice Heng

Consultants say it won't hurt Singapore's wealth management hub; it also sends message on en bloc fever

While some sort of tax on the wealthy had been expected in Monday's Budget, few thought it would take the form of a hike in buyer's stamp duty (BSD).

The move however, has received praise from tax consultants and other experts. They say it's less disruptive and easier to implement than alternatives such as capital gains tax or estate duty, which could hurt Singapore's reputation for wealth management and its competitiveness as a financial hub.

"The introduction of any wealth tax - gift tax, inheritance tax - would run contrary to the initiatives that Singapore has rolled out over the years in successfully developing the wealth management industry," said Goh Siow Hui, tax services partner at Ernst & Young Solutions.

Effective Feb 20, the top marginal BSD rate was raised from 3 per cent to 4 per cent, applying to the portion of residential property value in excess of S$1 million.

In the Budget speech, Finance Minister Heng Swee Keat framed the move as one aimed at making Singapore's tax system more progressive.

He added: "We will continue to study options to ensure that our tax system remains progressive."

While there may be other measures that also fall under a progressive tax system, experts say these are less appealing for various reasons.

A rise in personal income tax would have a larger political cost and be especially hard to digest alongside the future increase in goods and services tax, said Maybank Kim Eng economist Chua Hak Bin.

It could also affect Singapore's ability to attract top talent, said Shantini Ramachandra, tax partner and Deloitte private (tax) leader at Deloitte Singapore and Southeast Asia.

Wealth taxes such as estate duty or capital gains tax, too, would likely hurt Singapore's ambition to be one of the world's leading private wealth centres, she added.

KPMG Singapore principal tax consultant Leung Yew Kwong noted that the government's reasons for abolishing estate duty in 2008 remain valid today: encouraging wealthy individuals to bring their assets here; letting ordinary Singaporeans pass their income and assets to their family without being taxed again; and making Singapore an attractive place where wealth is invested and built up, by foreigners and Singaporeans alike.

As for capital gains tax, EY's Ms Goh said its absence keeps Singapore's tax system simple and is arguably a main factor that attracts foreign investors.

She noted that out of the S$2.7 trillion of assets under management (AUM) here, more than three-quarters of the funds were sourced outside Singapore, according to a 2016 Monetary Authority of Singapore survey.

"The risk is that such AUM may as easily leave Singapore if the country is no longer the straightforward and efficient jurisdiction it is currently known to be," she said.

In contrast, the BSD hike signals a commitment to progressivity "without introducing any new taxes that could be viewed as a direct wealth tax", as Baker McKenzie Wong & Leow head of tax Allen Tan put it.

Such perceptions matter. In the longer term, investors may be discouraged from accumulating wealth here if they fear some future measure may hit their savings, said Dr Chua.

"The government will have to manage the external perception (so it is seen) as pursuing 'socially inclusive' and not 'anti-wealth' policies."

Demerits of other taxes aside, the BSD hike has its own advantages.

It is easier to implement than the introduction of a new tax, as the mechanism for collecting BSD is already in place.

Unlike taxes on the holding or appreciation of wealth, BSD is tied to property transactions and is relatively easy to monitor, noted Ms Goh.

In addition, the BSD hike is also seen as a response to the current en bloc fever, said DBS economist Irvin Seah: "It's a gentle reminder to property market players." The message was not lost on investors, with several property blue chips taking a beating on Tuesday.

"This is almost like killing two birds with one stone," he said. "You achieve two outcomes with one policy measure."

KPMG's Mr Leung notes, though, that the hike is not meant as a property cooling measure, as the higher burden is "not so heavy to deter purchases", whether by individuals or by developers.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Jurong Town Corporation Act - Jurong Town Corporation (Assignment of Functions) Notification 2018 (S 041 of 2018)

Academic Publications Digest: August-December 2017

Business
13 Feb 2018

Iras releases consultation papers on e-commerce transactions

Business Times
21 Feb 2018
Yunita Ong

The Inland Revenue Authority Of Singapore (Iras) published two consultation papers on Feb 20 regarding taxing e-commerce transactions for businesses and individuals buying digital services from overseas providers.

This follows the announcement by Minister of Finance Heng Swee Keat during his Budget speech on Feb 19 that Singapore would implement GST on imported services with effect from Jan 1, 2020. Mr Heng said that this was meant to "make sure that our tax system remains fair and resilient in a digital economy".

In the case of business-to-consumer (B2C) transactions, a consumer subscribing to cable TV from a local provider would be charged GST, whereas a foreign one providing the same channels would not under current rules, for example.

However, Iras said in its paper that it would launch an overseas vendor registration regime that would require foreign suppliers with a global turnover exceeding S$1 million, supplying digital services to consumers here exceeding S$100,000 to register, charge and account for GST.

Under certain conditions, "a local or overseas operator of electronic marketplaces" could also be considered a supplier as well for services rendered on these platforms. For instance, this could include an e-book supplier established in the United Kingdom that allows customers to download materials from its website, or a Germany-established accommodation-booking website that charges service and booking fees to facilitate the booking of accommodation.

Iras also wants to implement a reverse charge mechanism for business-to-business (B2B) transactions. Businesses would then have to account for GST for services obtained from overseas suppliers, and allow them to make input tax claims. This would apply to those GST-registered and not entitled to full input tax credit or belonging to GST groups that are not entitled to full input tax credit.

It would also apply to those non-GST registered if their services purchased from suppliers abroad exceeds S$1 million in a 12-month period and would not be entitled to full input tax credit even if GST-registered.

The consultation papers are available on Iras' website. Iras is accepting submission of responses till March 20, and will provide a summary of responses to the feedback by May 31.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Common Gaming Houses Act - Common Gaming Houses (Exemption) (Amendment) Notification 2018 (S 040 of 2018)

Case Summary: Clarins Fragrance Group f.k.a. Thierry Mugler Parfums S.A.S. v BenQ Materials Corp. [2018] SGIPOS 2

Judgments
12 Feb 2018

Govt can't comment on CPIB probe; Keppel board accountable to shareholders: Indranee

Business Times
20 Feb 2018
Marissa Lee

This is to ensure investigative work of agencies not jeopardised, and affected parties not prejudiced

The government cannot comment on investigations undertaken by its agencies, but if there is "good reason to do so", the authorities will investigate, Senior Minister of State for Law Indranee Rajah told Parliament on Monday.

She was responding to a question from Workers' Party Non-Constituency MP Dennis Tan, who asked the Law Ministry whether the Corrupt Practices Investigation Bureau (CPIB) would "conduct a thorough investigation" into the business affairs of Keppel Offshore & Marine (KOM) to ascertain if the company had also used bribes to secure contracts elsewhere in the world, outside of Brazil.

This was after the company revealed late last year that it had been slapped with fines amounting to US$422 million as part of a global settlement with authorities in the US, Brazil and Singapore, relating to corrupt payments made by a former Keppel agent in Brazil.

Ms Indranee said: "The government does not as a general rule comment on the existence or non-existence of investigations by our investigative agencies, including CPIB.

"This is to ensure that the investigative work of these agencies are not jeopardised, and that affected individuals or entities are not prejudiced if, at the end of investigations, no offence is disclosed.

"If there is good reason to do so, or a basis for investigation, the authorities will investigate." She added that the board of Keppel Corp remains accountable to its shareholders: "The boards and management of Keppel Corp and its subsidiaries, including Keppel O&M, are responsible for the proper conduct of their businesses.

"This would include detecting, reporting and preventing corrupt behaviour. Under the US Deferred Prosecution Agreement, Keppel O&M is also under a legal obligation to implement rigorous compliance and internal controls to prevent and detect corrupt practices."

Mr Indranee also noted that Keppel's current management has asserted zero tolerance for corruption.

"Keppel Corp's shareholders, including Temasek Holdings, expect these statements to be fully observed, and will hold them to account should they fail to do so," Ms Indranee said.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 4) Notification 2018 (S 039 of 2018)

SGX releases consultation paper on proposed enhancements to continuous disclosures

Business
12 Feb 2018

Uber-ComfortDelGro tie-up: Watchdog identifies several issues that could affect competition

TODAY
20 Feb 2018
Kenneth Cheng

The proposed tie-up between taxi giant ComfortDelGro and ride-sharing firm Uber still hangs in the balance, with the competition watchdog saying the first phase of its review could not “conclusively determine” competition issues would not arise.

In a statement on Monday (Feb 19), the Competition Commission of Singapore (CCS) said it has pinned down several issues that may affect competition in the market. They require further assessment.

The issues include whether the UberFlash service launched last month involved coordination on pricing between competitors and whether ComfortDelGro’s flat-fare option without surge pricing will continue to be available to commuters.

Other issues include whether the availability of street hails and phone bookings will be affected by the tie-up, and if taxi and private-hire car drivers can accept bookings from multiple ride-sharing platforms if they wish to.

The CCS has requested that the parties submit further information by Mar 5, unless they can address the concerns identified.

The CCS will then conduct an “in-depth assessment” that includes canvassing public feedback and views.

It will also determine whether the proposed tie-up would restrict or reduce competition, or abuse a dominant position.

The second phase of this review could take up to 120 working days from the time the additional information is received, the CCS said.

Under the Competition Act, in cases where agreements are eventually found to prevent, distort or restrict competition, firms are given immunity from a financial penalty from the time they notify the CCS of a proposed partnership, until the commission reaches a decision.

Such immunity, however, does not apply to agreements that abuse a dominant position or mergers that result in or may cause a substantial reduction in competition.

“Therefore, if (UberFlash) is subsequently found to infringe (these), the parties must terminate the service or they may be liable to financial penalties imposed by the CCS,” the watchdog told TODAY last month.

When contacted, Uber and ComfortDelGro said they intend to file all relevant documents and address the CCS’s concerns and questions.

Both said they remain committed to the partnership.

Launched on Jan 19, the UberFlash service combines cars from the low-cost UberX service with ComfortDelGro taxis on Uber’s app. It is subject to surge pricing, where fares rise when demand goes up.

Both companies had said the service would offer fares up to 10 per cent cheaper than the regular price on the UberX service.

A week after the service was launched, TODAY reported that many taxi drivers from ComfortDelGro were not participating in it after complaining that their earnings have been hit by low fares.

About 30 per cent of ComfortDelGro drivers who signed up for the service were not using it then, Uber’s figures showed.

The launch of UberFlash came more than a month after the two companies announced a S$642 million tie-up that will see ComfortDelGro acquiring a 51 per cent stake in Uber’s car-rental arm here.

Dogged by stiff competition from private-hire car firms, ComfortDelGro announced last week that its full-year operating profit sank by 11.5 per cent to S$409.2 million in 2017. The company ascribed the weaker performance to a drop in its taxi business.

At the end of last year, its fleet of Comfort and CityCab taxis stood at 13,244, about 21 per cent smaller than a year ago.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Road Traffic Act - Road Traffic (Motor Vehicles, Registration and Licensing) (Amendment No. 7) Rules 2017 - Corrigenda (S 038 of 2018)

Singapore Court of Appeal holds valid payment claim under SOPA due “on” Sunday but served on Friday and explains waiver and estoppel in the context of a respondent’s jurisdictional objections

Judgments
12 Feb 2018

Judge rules against financial director who wanted quick divorce

Straits Times
20 Feb 2018
K.C. Vijayan

A financial director's attempt at a quick divorce was rebuffed in court despite claims that his wife of more than three decades had behaved unreasonably.

The 59-year-old man had blamed his wife for the breakdown in their marriage, saying she had less time for him after becoming a devout Buddhist and strict vegetarian.

But in judgment grounds earlier this month, District Judge Cheryl Koh told him he has to wait out the mandatory separation period to obtain the formal split.

She said at issue in the case was whether her conduct "should be construed as unreasonable when it is the husband who has impregnated a younger woman and wished to extricate himself out of the marriage immediately".

The man did not deny his affair with the woman, who is from Shanghai, but said the relationship started in 2010, after his marriage with his 57-year-old financial controller wife had deteriorated.

Judge Koh ruled there was to be no quick divorce.

"The husband ultimately owed it to his wife of 35 years and mother of his three adult children to wait out the three or four years' separation required by law for a divorce on a no-fault basis, instead of blaming her for the breakdown of the marriage," she said.

The man had filed for divorce in December 2016 on grounds that his wife had become "overly engrossed with practising her Buddhist religion to the extent that she has neglected the husband's feelings and needs", among other things.

The wife, defended by lawyer N. Vijay Kumar, countered that she and her husband were both Buddhists, and the religious sessions for her and her children were beneficial and positive.

The wife added that he was hardly at home and returned home late most of the time, especially after 2014, when she said he became involved with his mistress.

The couple have known each other since childhood and pursued their university education in New Zealand. They were married there in May 1982.

Judge Koh was not convinced by the husband's claims, ruling that it was not unreasonable for a spouse to continue to practise religious beliefs just because "the other spouse did not believe or practise to the same extent". The husband had participated in the activities with the family at a religious centre in 2006, but stopped in 2010.

Judge Koh noted that the Shanghai woman had come to Singapore with her own spouse and child, but when she later became pregnant with the plaintiff's child, the hospital called her husband by mistake.

Judge Koh said it must be "extremely trying" for the husband to start a new family again with his expectant girlfriend and is "yet unable to extricate himself from the perceived shackles of his unwanted marriage".

But she stressed that divorce laws are meant to safeguard the sanctity of the institution of marriage as a cornerstone of Singapore society.

"If a spouse decided one day that he wished to move on with a third party, it did not mean that the spouse could abuse the court system by suddenly recalling all the alleged instances of unreasonable behaviour by the other spouse... just so that he could immediately extricate himself out of his marriage."

The husband, represented by lawyer Low Jin Liang, is appealing the case.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Road Traffic Act - Road Traffic (International Circulation) (Amendment) Rules 2018 (S 037 of 2018)

SGX reviews quarterly reporting framework

Business
09 Feb 2018

More support for firms to innovate and go international Companies

Straits Times
20 Feb 2018
Lester Hio

Firms will get more government support to help them devise innovative solutions to business challenges.

The support will come in the form of tax relief for firms that buy solutions and for those that develop their own innovations or team up with partners.

To compensate for the expiry of the Productivity and Innovation Credit scheme this year, existing grant schemes that cover off-the-shelf products will be integrated into a Productivity Solutions Grant, which will provide funding for up to 70 per cent of qualifying costs.

Firms will also enjoy greater tax breaks. Tax deductions on licensing payments for commercial use of intellectual property (IP) will be raised from 100 per cent to 200 per cent, capped at $100,000, from next year to 2025.

Registering new IPs will also be cheaper: Tax deduction for IP registration fees will rise from 100 per cent to 200 per cent, capped at $100,000, also from 2019 to 2025.

Businesses building their own innovations and solutions will get tax deductions for research and development done in Singapore increased from 150 per cent to 250 per cent, over the same time period.

"We must make innovation pervasive throughout our economy," said Finance Minister Heng Swee Keat.

The Government will help businesses find partners to collaborate and co-create new ideas with. It is piloting an Open Innovation Platform that will allow companies to crowdsource solutions online by posting challenges that can be addressed through digital solutions. The service will be ready in the second quarter of this year.

More efforts will be thrown into commercialising work generated by public sector research. The Government, along with Temasek Holdings, will put $100 million into a joint venture to grow companies that are developing IPs from publicly-funded research.

New transformation programmes for both the aviation and maritime sectors were announced.

"Our airport and seaport will become platforms for companies to develop, test and use new technologies," said Mr Heng.

The Government will provide support of up to $500 million for both programmes, with additional matching investment from industry partners.

Plans to build the capabilities of local firms and workers to be more productive, international and digitally equipped are in the works.

The TechSkills Accelerator (TeSa) programme, which trains infocomm technology professionals, will be expanded to new areas like manufacturing and professional services that are increasingly making use of digital services.

An additional $145 million will be set aside for TeSa over the next three years. It will be expanded to let people learn emerging digital skills, such as data analytics, artificial intelligence and cyber security.

Following the upcoming merger of Spring and IE Singapore in April, a new integrated Enterprise Development Grant will be formed.

This will combine the existing Global Partnership and Capability Development grants. It will provide companies with up to 70 per cent co-funding to build capabilities in scaling up and going international.

The double-tax deduction for internationalism will rise next year from $100,000 to $150,000 to help companies expand internationally.

There will be some adjustments to tax schemes for start-ups as well.

Starting from 2020, exemptions under the start-up tax exemption and partial tax exemption schemes will be restricted to the first $200,000 of chargeable income.

Start-ups will have only 75 per cent tax exemption, rather than the current 100 per cent, of their first $100,000 of chargeable income from corporate tax.

"Even with these adjustments, corporate tax will remain low for start-ups and smaller firms," said Mr Heng.


OPPORTUNITIES WELCOME

If the Infrastructure Office can open roads and bring about opportunities for our member firms, that's something we definitely welcome.

SINGAPORE CONTRACTORS ASSOCIATION PRESIDENT KENNETH LOO


AT A GLANCE

• Pay rises for eligible employees will continue to be subsidised under the Wage Credit Scheme, which will be extended for another three years.
• The corporate tax rebate for companies will be doubled this year to 40 per cent of tax payable, capped at $15,000, up from $10,000.
• The corporate tax rebate will also be extended to the 2019 year of assessment, though at a lower rate of 20 per cent and capped at $10,000.
• The Asean Leadership Programme, to help business leaders build networks and expand their companies into South-east Asia, will be set up this year.
• An Infrastructure Office will be set up to bring local and overseas companies together to develop, finance and carry out infrastructure projects in the region.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Energy Conservation Act - Energy Conservation (Motor Vehicles Subject to Fuel Economy Requirements) (Amendment) Order 2018 (S 036 of 2018)

CCS consults on Guidance Note for Competition Assessment of Airline Alliance Agreements

Business
09 Feb 2018

Businesses to get S$1.8b boost over next 3 years

Business Times
20 Feb 2018
Vivien Shiao

Wage Credit Scheme, where govt co-funds wage increases of Singapore workers, extended for 3 more years to help firms cope with near-term costs

The Wage Credit Scheme (WCS) will be extended for an additional three years till 2020, but with gradually reduced levels of co-funding by the government, said Finance Minister Heng Swee Keat at his Singapore Budget 2018 speech.

It will provide 20 per cent co-funding for 2018, 15 per cent for 2019, and 10 per cent for 2020.

The scheme, which aims to encourage employers to share productivity gains with staff, will cost the government about S$1.8 billion over the next three years.

Under the current scheme, the government co-funds 20 per cent of qualifying wage increases for Singaporean workers earning a gross monthly wage of up to S$4,000.

In his speech, Mr Heng said: "Though our economy picked up last year, some firms remain concerned about business costs. A key driver of this is wage growth - but wage growth is good for Singaporeans."

The extension of the WCS scheme is to help firms cope with near-term cost pressures, he added.

The scheme was introduced in 2013, where the government co-funded 40 per cent of wage increases for Singaporean employees. This was extended in 2015, following which government co-funding dropped to 20 per cent for 2016-2017.

For 2017, the government is expected to pay out more than S$800 million to more than 90,000 firms, for wage increases given to more than 600,000 employees, said Mr Heng.

Charles Liaw, managing director of local SME Times Software, said that the extension is a "good call" by the government.

"It will definitely mean big savings for many companies, and it will encourage companies to hire Singaporeans," he said, adding that it could lead to a reduction in the unemployment rate of locals.

However, he was unperturbed by the tapering of the government's co-funding as he believes that no government funding can last forever.

"Its objective was to help companies to get over the tough times in the last few years and gradually reduce company dependency of government subsidies," he said.

Apart from wage credit, the government will be enhancing and extending the corporate income tax rebate to help firms manage immediate cost challenges.

The corporate income tax (CIT) rebate for the Year of Assessment 2018 will be raised to 40 per cent of tax payable, capped at S$15,000.

Currently, companies can qualify for CIT rebate of 20 per cent of tax payable, capped at S$10,000 for YA 2018.

Mr Heng also announced that the CIT rebate will also be extended to YA 2019, at a rate of 20 per cent of tax payable, capped at S$10,000.

These changes are projected to cost an additional S$475 million over the next two years.

"The enhancement and extension will benefit all tax-paying companies, especially smaller ones," he said.

Anis Mohamed, creative director of PictureMatters, said that the extension is welcome news to businesses which are struggling to manage costs.

"This also helps small businesses especially, who are still reeling from the economic slump of the years pre-2017, before there was a boost in economic growth," he said.

Times Software's Mr Liaw concurred that the rebate "definitely will be helpful" for SMEs and corporations which turn smaller profits.

But while the enhanced tax rebate is an encouraging step for businesses to manage their costs, some industry watchers say that it is still not enough.

Alan Lau, Tax Partner at KPMG in Singapore, said: "The low rebate cap of S$15,000 is disappointing and implies that practical business savings here would be limited."

In his Budget speech, Mr Heng also addressed near-term measures specific to certain sectors.

For firms in the marine shipyard and process sectors struggling to recover from the oil and gas crisis, some relief is in sight as the government will defer earlier announced increases in foreign worker levy rates for another year.

Employment support for lower to middle income workers is also set to be boosted this year, said Mr Heng.

"This includes upgrading the current Work Trial scheme into a Career Trial programme, with higher funding support for workers to try out new careers," he told Parliament.

He added that this will be elaborated on by the Minister for Manpower at the Committee of Supply debates, slated to take place in March.


HIGHLIGHTS

• The Wage Credit Scheme (WCS) will be extended for an additional three more years till 2020
• The corporate income tax (CIT) rebate for the Year of Assessment 2018 will be raised to 40 per cent of tax payable, capped at S$15,000
• The CIT rebate will also be extended to YA 2019, at a rate of 20 per cent of tax payable, capped at S$10,000

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Energy Conservation Act - Energy Conservation (Composition of Offences under Part IV) (Amendment) Regulations 2018 (S 035 of 2018)

Singapore’s Court of Appeal clarifies key issues of jurisdiction, parties’ obligations under payment disputes law

Judgments
09 Feb 2018

New Infrastructure Office for projects in Asia

Business Times
20 Feb 2018
Janice Heng

It reflects the Singapore government's consistent message to its people and businesses to embrace technology and continuously upskill to remain relevant

To help firms tap infrastructure opportunities in Asia, such as those created by China's Belt and Road Initiative, Singapore will set up an Infrastructure Office this year.

It will bring together local and international firms across the value chain - from developers and institutional investors to legal, accounting and financial services providers - to develop, finance and execute projects.

"As Asia's growth will raise infrastructure demand, we seek to forge stronger partnerships in infrastructure development and enhance connectivity in the region," said Finance Minister Heng Swee Keat.

This is one of several moves in Budget 2018 to encourage firms to forge partnerships at home and abroad, with Mr Heng stressing the importance of cooperation for Singapore's economic development.

The Infrastructure Office - to be set up by Enterprise Singapore (ESG) and the Monetary Authority of Singapore - will provide a platform for information exchange and facilitate infrastructure investments and financing. More details are to come in the Ministry of Trade and Industry (MTI) and Ministry of Law's Committee of Supply.

"This is a welcome opportunity," said Nina Yang, chief executive officer of sustainable urban development at urban solutions provider Ascendas-Singbridge. Mrs Yang added that her business unit will look further into the Office's support initiatives.

Satya Ramamurthy, partner and head of infrastructure, government and healthcare at KPMG in Singapore, said the Office represents "an ecosystem approach" in enabling Singapore to be a meaningful player in Asian infrastructure projects.

In another move to encourage collaboration, existing grants to support partnerships will be merged into a single Pact (Partnerships for Capability Transformation) scheme.

The grants to be combined are: the Economic Development Board (EDB) and Spring Singapore's separate Pact schemes; Spring's Collaborative Industry Projects scheme; and IE Singapore's Global Company Partnership Grant. Spring and IES are currently being merged to form Enterprise Singapore.

Similar to the existing grants, the new Pact will fund up to 70 per cent of qualifying costs for projects undertaken in partnership with other firms.

It will be administered by EDB and ESG, and will support collaborations between firms in areas such as capability upgrading, business development and internationalisation.

More details will be provided at MTI's Committee of Supply.

Singapore also seeks to build overseas partnerships in technology, innovation and enterprise. As Asean chairman this year, Singapore will develop an Asean Innovation Network.

"We hope this will strengthen the linkages among the innovation ecosystems in the region, and spark new collaborations and solutions," said Mr Heng. More of Singapore's Asean plans will be revealed in MTI's Committee of Supply, he added.

The minister also reiterated the importance of trade associations and chambers in encouraging collaboration and leading transformation.

The government will continue to support such efforts through the Local Enterprise and Association Development programme, he said. In the last two years, about S$45 million has been committed to some 50 projects under the scheme.


HIGHLIGHTS

• New Infrastructure Office to help firms tap opportunities in Asia
• Partnership grants to be combined under single Pact scheme
• New Asean Innovation Network

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 3) Notification 2018 (S 034 of 2018)

CCS concludes second market inquiry into retail petrol market in Singapore and recommends steps to improve price transparency

Business
08 Feb 2018

Reit ETFs to enjoy tax transparency

Business Times
20 Feb 2018
Lynette Khoo

Other shots in the arm for funds sector include upcoming S-VACC framework, extension of tax incentive schemes

Tax transparency treatment for Singapore-listed real estate investment trusts (S-Reits) will soon be extended to exchange traded funds (ETFs) invested in these Reits - a long-awaited move cheered by market watchers.

Taking effect on or after July 1, the tax concessions for Reit ETFs will ensure parity in tax treatments between investing in individual S-Reits and Reit ETFs.

Industry players noted that the much-lobbied move is positive for the growth of the Reits sector and will strengthen Singapore's status as a Reits listing hub.

PwC real estate and hospitality tax leader Teo Wee Hwee reckoned that this will encourage the growth of more Singapore listings of Reit ETFs.

Vijay Natarajan, property and Reits analyst at RHB Research Institute Singapore, also said he expects more Reit ETF-based products to hit the market in the near term. "The move will also help broaden the investor base for S-Reits as more international institutional investors will be able to invest in S-Reits via the ETFs in a tax-efficient manner," he added.

Tax leakage in the Reit ETF structure has been the chief gripe among investors and issuers of Reit ETFs, with the relevant authorities said to be in discussions to address this since 2016.

Without tax transparency treatment, distributions from S-Reits to ETFs are subject to a withholding tax of 17 per cent even though they are distributed tax-free to the ETF investors.

The tax leakage in Reit ETFs leaves individual investors and foreign corporate investors worse-off investing in Reit ETFs than investing directly in Reits, since individuals are tax-exempted on distributions from Reits while foreign corporate investors pay a lower 10 per cent tax on Reits' distributions.

So far, three Reit ETFs have been listed here have a combined S$250 million in assets under management and yield above 4 per cent per annum after management fees. S-Reits, however, are yielding 6 per cent on average.

Jeffrey Lee, managing director and chief investment officer at Phillip Capital Management, posited that the extension of tax transparency to Reit ETFs could significantly enhance the ETFs' yields.

Besides extending tax transparency treatment to Reit ETFs, the government is also introducing a 10 per cent concessionary tax rate on Reit ETFs' distributions received by qualifying foreign corporate individuals. This brings the tax rate they pay on the distributions they receive from Reit ETFs on par with the tax rate they pay on Reits' distributions.

Further details will be released by the Monetary Authority of Singapore and the Inland Revenue Authority of Singapore by March.

The government is working on a tax framework for Singapore Variable Capital Companies (S-VACCs), aimed at encouraging asset managers to consolidate their operations in Singapore by domiciling more of their funds here. More details on S-VACCs will be released by October. The structure was first proposed last year as a new structure for collective investment schemes when the government sought industry feedback during a public consultation exercise.

An S-VACC will be treated as a company and a single entity for tax purposes. It can accommodate a variety of traditional and alternative asset classes and investment strategies.

The existing tax exemptions on qualifying funds, the 10 per cent concessionary tax rate for fund managers under the Financial Sector Incentive (FSI) scheme, and the existing GST remission for funds will also be extended to S-VACCs.

KPMG Singapore tax partner Leonard Ong noted that these extensions will be a welcome cheer to the funds and fund management industry. "This will enable the industries to be more comprehensive in the funds space, and more competitive in attracting foreign funds to be managed here in Singapore," he said. "However, as the S-VACC is new, we look forward to further details on the tax framework that MAS will be releasing in October."

Mr Teo said he is hoping the government will consider S-VACC as a viable structure for listed Reits too, as he believes this could result in greater tax efficiency for Reits with overseas investment properties.

To cater for more diverse fund structures, the government said that tax exemption under the Enhanced-Tier Fund scheme for companies, trusts and limited partnerships will also be extended to fund vehicles of all forms, if they meet all qualifying conditions. Further details of the change will be out by May.

Other "carrots" for the fund management sector announced in the Budget include the extension of tax incentive schemes for fund managers under the FSI and for approved special purpose vehicle (ASPV) engaged in asset securitisations.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

International Organisations (Immunities and Privileges) Act - International Organisations (Immunities and Privileges) (Permanent Court of Arbitration) (Amendment) Order 2018 (S 033 of 2018)

Restructured Competition Commission of Singapore to also oversee consumer protection

Legislation
08 Feb 2018

A fiscally sound but politically risky Budget

Straits Times
20 Feb 2018
Chua Mui Hoong

This could have been a pure sugar Budget with its huge surplus and SG Bonus for all adult Singaporeans. Instead, Finance Minister Heng Swee Keat coated the sugar with a strong lacing of lemon.

The goods and services tax (GST) will be raised from 7 per cent to 9 per cent "sometime in the future from 2021 to 2025". Some analysts had forecast a hike to 10 per cent over two years, so the impending hike is gentler and slower than expected. But it still carries quite a sting.

The delay in introducing the GST hike might be due to the unexpected injection of $4.9 billion from the Monetary Authority of Singapore's (MAS) net profit, propelling the Budget into a healthy surplus of $9.6 billion when $1.91 billion was forecast.

The headline figures will cause many Singaporeans to ask: Why raise GST when Singapore's Budget nearly always ends with a surplus?

The short answer is that long-term spending will go up, and more tax revenue sources need to be found.

The extra funds from MAS or the higher-than-expected revenue from stamp duties this year cannot be relied on always. A more permanent way to raise taxes has to be found - and the GST, currently at a relatively low 7 per cent, is a natural target.

Meanwhile, Singapore's people and infrastructure are both ageing, and spending needs are rising. Healthcare spending will overtake education in the next decade. It has already more than doubled since FY2011, to $10.2 billion in FY2018.

Singapore aims to spend an extra $3.6 billion a year to raise healthcare spending from 2.2 per cent to 3 per cent of gross domestic product over the next decade. Where will that extra $3.6 billion or 0.8 percentage points of GDP come from? In part from the GST hike, expected to raise revenue by 0.7 per cent of GDP.

In fact, budgeting 3 per cent of GDP on healthcare is low by global standards. I think it is conservative, if Singaporeans want to pay less out of pocket and demand that a bigger share come from the state. Spending may go beyond 3 per cent of GDP - and that money has to be allocated for.

Already, Singapore is spending more than it collects in operating tax revenue each year. The books are balanced by adding half of investment income from past reserves, which raised about $14 billion in recent years. That is more than the contribution from either corporate or personal income taxes or the GST.

Raising the GST to 9 per cent will add about $3 billion to the coffers each year.

Every little bit will help.

The 2018 Budget is fiscally sound, putting the nation on a stronger footing for the future. But it is also politically risky.

Mr Heng, who delivered the Budget with aplomb, is tipped as first among equals in the next 4G, or fourth generation, of political leaders. He has ensured some political wiggle room by having a window for the GST hike.

Still, it takes a confident political leader to announce a major tax hike that may come in three years' time - which will be just after the next election, expected around 2020. People will forget good news three years after an announcement, but the anticipation of pain tends to intensify as the dreaded start date approaches.

On the other hand, in committing to a hike to 9 per cent, the Government is also trying to make things more palatable. It is hard to predict the full political impact, but for now, it is a no-brainer that a GST hike will have a political cost.

That Mr Heng and his colleagues proceeded with the announcement anyway suggests they have confidence in their ability to explain why the move is necessary, as well as fiscal armour to cushion the impact via the usual vouchers and offsets.

Whether voters will buy the sugar-lemon pill remains to be seen. The GST hike will be a litmus test of the bond between the people and a future generation of leaders in the next few years.

The clear commitment to raise the GST suggests a continuation of two aspects of the Singapore political leadership. The first is that the future team of leaders will continue the fiscal prudence of the past, in case anyone doubted it.

The second is that the new team will not duck from unpopular decisions. Some may see the early announcement as indicative of the 4G leaders piggy-backing on the popularity of the current Prime Minister and his Cabinet, and relying on today's leaders to win the ground.

But as Mr Heng is the one to announce the hikes, it is clear that it is a decision he and the future team of leaders will have to carry, not the current Cabinet. By announcing the hikes now, they have guaranteed that the GST will be a dominant issue in the next election.

But the GST hikes and Budget 2018 should not be viewed only through the political lens. More important is the fiscal viewpoint.

As Mr Heng took pains to stress, this year's Budget aims to lay the foundation for the next decade. Raising the GST is part of that move.

The other important innovation also aims to put future Budgets on a firm, and more sustainable, footing. This is the move for statutory boards and government-owned companies to borrow for critical national infrastructure projects and for the Government to guarantee some of those loans.

Statutory boards like HDB have long borrowed or issued bonds for projects, so that alone is not novel. What is different is to guarantee the loans. This will require the concurrence of the elected president and his advisers, as it means committing the Government to use its reserves to guarantee loans that may stretch into decades.

This is a practical measure to smoothen cash flow. An infrastructure project like an airport terminal requires huge sums to be spent upfront, but can generate revenue later.

Rather than spend huge sums to build it and draw down on today's surpluses, the Government allows the agency to borrow from the market, and uses its reserves to guarantee the loan to get lower interest rates. Future revenue from the project, such as an airport terminal, can then be used for interest payments on the loan.

As Mr Heng notes, such a borrowing arrangement will "help distribute the share of funding more equitably across generations". You do not use up today's money to pay for something that will generate revenue in 20 years' time. You borrow today for that long-term project, and use future revenue to pay off the loan.

As Singapore ages, issues of equity and fairness - across income and social groups, and across generations - will become potential causes of conflict. This Budget tries to prepare for that more uncertain future by putting in place two major planks in the fiscal system: A GST hike, and a way to use reserves to facilitate borrowing for long-term infrastructure projects.


The headline figures will cause many Singaporeans to ask: Why raise GST when Singapore's Budget nearly always ends with a surplus? The short answer is that long-term spending will go up, and more tax revenue sources need to be found. The extra funds from MAS or the higher-than-expected revenue from stamp duties this year cannot be relied on always. A more permanent way to raise taxes has to be found - and the GST, currently at a relatively low 7 per cent, is a natural target.

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Diplomatic and Consular Relations Act - Diplomatic and Consular Relations (Permanent Court of Arbitration) (Amendment) Order 2018 (S 032 of 2018)

CCS imposes financial penalty of over S$19 million, highest to-date for international capacitor manufacturers cartel; highlights international cooperation on cartel investigations

Business
07 Feb 2018

Who should the core provisions of the Employment Act protect?

Business Times
19 Feb 2018
Tan Chong Huat and Vernon Voon

Including all PMEs, not just those earning up to S$4,500 a month, is the way forward

Fifty years ago, a newly independent Singapore enacted the Employment Act in 1968 partly as a bulwark against concerns of mass unemployment following the planned British withdrawal from Singapore in 1971.

As part of a survival strategy to attract local and foreign investments, the Employment Act was intended to promote worker productivity and economic expansion by outlawing malpractices by both employers and employees.

Today, after decades of strong economic growth, while Singapore's survival remains a constant concern, the changing employment landscape and workforce profile have been the driving force behind recent amendments to the Employment Act.

For example, in an effort to raise labour standards, the Act was amended in 2015 to require employers to issue itemised pay slips and key employment terms to their employees written clearly.

The latest review of the Employment Act is no exception.

Core provisions

In January, the Ministry of Manpower (MOM) initiated a public consultation exercise to seek feedback on, among other things, whether core provisions in the Act - namely, public holiday and sick leave entitlements, timely payment of salary and allowable deductions, as well as redress for unfair dismissal - should be extended to all employees.

Currently, these core provisions do not apply to professionals, managers and executives (PMEs) earning a monthly salary of more than S$4,500.

Historically, they also do not apply to domestic workers, public servants and seafarers.

The impetus for the current review is likely to have arisen from the significant structural changes in Singapore's employment landscape.

PMEs currently comprise about 34 per cent of Singapore's workforce, up from about 26 per cent back in 2001. This upward trajectory is also mirrored in the broader category of PMEs and technicians (PMETs).

According to the MOM's Labour Force in Singapore 2017 report released on Jan 26 this year, PMETs now form 56 per cent of the country's workforce. This is up from 49 per cent in 2007.

Two reasons

There are two reasons why the core provisions in the Employment Act should extend to all PMEs irrespective of their basic monthly salary.

Firstly, given the global technological disruption of industries and Singapore's push towards becoming a digital economy, it is conceivable that more employees may be categorised as PMEs with the creation of new positions that do not fit neatly into the traditional blue collar/white collar construct.

Secondly, as the number of PMEs continues to rise, it is likely that the number of PMEs who earn more than S$4,500 per month will also increase.

In this regard, one indicator is that the median gross monthly salary of the broader category of PMETs in 2016 was already S$5,910, based on a written answer given by Manpower Minister Lim Swee Say in Parliament.

If the core provisions of the Employment Act do not apply to such a significant segment of Singapore's workforce, the utility of the statute to provide basic terms and working conditions for employees may be questioned.

Moreover, although employment contracts may give employees not covered by the Employment Act access to many of these core provisions, the employment relationship is not inherently equal and the effect of contractual provisions may be disputed.

Statutory intervention

Statutory intervention would therefore more efficiently ensure that the basic entitlements in the core provisions are available to all employees.

One particular area of concern is the entitlement to redress for unfair dismissal under section 14 of the Employment Act.

Currently, PMEs who earn a monthly salary of more than S$4,500 do not have the right to make representations to the Minister for Manpower to be reinstated to their former employment, if they have been dismissed "without just cause or excuse".

For PMEs who earn a monthly salary of up to S$4,500, they can have recourse to section 14 only if they were unfairly dismissed without notice or salary in lieu of notice, or unfairly dismissed with notice or salary in lieu of notice after having served their employer for at least one year.

In practice, we have observed that PMEs earning more than S$4,500 per month do not have any recourse where the employer has relied on a provision in the employment contract to terminate the PME's employment, either with notice, or with salary in lieu of notice.

In such terminations, the employer does not typically provide any reason as it is contractually entitled to do so.

However, as the workforce becomes increasingly well-educated, and more and more positions require professional or managerial skills, it is unlikely that the monthly salary threshold of S$4,500 can offer a rational basis as to why some PMEs can have statutory redress for unfair dismissal, while others cannot.

Extending the protection under section 14 of the Employment Act to all PMEs will also ensure that employers need just cause or excuse (for example, bad performance, business downturn or a restructuring) before terminating any employee, whether the employee is a PME or not.

Step in the right direction

The review of the Employment Act is a welcome and refreshing step in the right direction in seeking to extend basic employment protections to all PMEs.

The distinction between PMEs and other employees in terms of basic employment protections should be narrowed, if not eradicated completely, in light of the future digital economy requiring more employees to exercise some professional or managerial ability.

Employers should not see this development as adding to their business costs of compliance.

Rather, they should see that protected and cared-for employees will be motivated from a greater sense of job security to do even better in their jobs, resulting in greater profitability for their employers, and greater job satisfaction for themselves.


The writers are Partners at RHTLaw Taylor Wessing LLP.

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Housing and Development Act - Housing and Development (Precincts for Lift Upgrading Works) Order 2018 (S 031 of 2018)

Singapore High Court delivers first decision on the recognition of foreign insolvency proceedings under the newly adopted UNCITRAL Model Law on Cross-Border Insolvency

Judgments
07 Feb 2018

AHTC must settle its outstanding issues: HDB

Straits Times
18 Feb 2018
Yasmine Yahya

The Housing Board has called on the Workers' Party-run Aljunied-Hougang Town Council (AHTC) to settle outstanding issues related to financial and governance lapses.

These include getting an external auditor to verify the opening balances for its financial statements, said the HDB on Friday.

The town council also has yet to make transfers totalling $13.9 million to make up for the shortfall in past transfers to AHTC's sinking fund, it added.

"HDB urges AHTC to take follow-up actions to resolve all these issues fully and without further delay," it said.

Just a day earlier, independent auditor KPMG had submitted a report to HDB saying it had found AHTC to have resolved all financial and governance lapses.

KPMG, which was appointed in 2016 to look into AHTC's books, said in its February report that it was reasonably satisfied that all 17 audit points have been resolved.

This 23rd and final KPMG monthly report brings the nearly two-year review to a close, said the WP in a statement on Thursday.

But a day later, HDB said that KPMG had deemed these outstanding matters as being "resolved" on the basis that recommendations had been given to AHTC, or AHTC had informed KPMG of the intended follow-up actions.

HDB also noted that AHTC, through an independent panel, has filed claims in the High Court against several of its town councillors, its former managing agent and some former officers.

The Pasir Ris-Punggol Town Council (PRPTC) is also seeking compensation for money due to Punggol East, which the WP managed from 2013 to 2015.

HDB said it "will continue to monitor the developments related to AHTC's and PRPTC's recovery actions against the defendants".

KPMG was appointed in March 2016 to look into AHTC's books after the Auditor-General's Office found significant governance lapses in a special audit.

The Court of Appeal had directed AHTC to appoint a Big Four accounting firm to help fix its lapses, and ensure compliance with the laws.

The town council has since adopted various measures to address these issues, including promising to transfer close to $14 million to its sinking fund this year to make up for the shortfall.

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Building Maintenance and Strata Management Act - Building Maintenance and Strata Management (Strata Titles Boards) (Amendment) Regulations 2018 (S 030 of 2018)

CCS consults on proposed changes to Competition Act following a record year of enforcement

Legislation
06 Feb 2018

Partner's shares in firm worth $15k, court rules

Straits Times
16 Feb 2018
Selina Lum

Two businessmen started a company making aircraft engine parts but fell out and agreed to go their separate ways, with the majority shareholder buying out the minority shareholder.

But there was a gulf of millions of dollars between how much each felt the shares were worth.

Mr Abhilash Kunchian Krishnan, who owned 13.91 per cent of JCS-Vanetec, wanted to sell his stake for between $4.96 million and $9.48 million. Mr Jason Yeo, who held the remainder of the company, valued Mr Abhilash's shares at just over $15,200.

Months before their dispute went to trial, Mr Yeo offered Mr Abhilash $18,300, but was snubbed.

The High Court came down on the side of Mr Yeo yesterday, accepting the valuation of his expert witness that Mr Abhilash's shares were worth only $15,242.83.

The case turned on the valuation method to be used.

Mr Abhilash's expert witness had valued his stake based on three intangible assets - the company's contract with a Chinese aircraft engine manufacturer, the company's vendor certification with various aircraft engine manufacturers and the company's patent application for a specialised industrial process.

Mr Yeo, who was represented by Mr Suresh Divyanathan of Oon & Bazul, argued that these assets had no proven value.

Justice Valerie Thean agreed, saying that Mr Abhilash had failed to show that these assets could be sources of future revenue.

The judge noted that the contract was for a prototype only and there was no certainty of any future sales.

She accepted Mr Yeo's testimony that vendor certification did not necessarily lead to sales. The judge noted that the patent was pending and she could not put a value on it without expert evidence.

She ordered the buyout to take place in 21 days and ordered Mr Abhilash to pay Mr Yeo's legal costs of $99,000 plus expenses. Mr Abhilash's lawyer, Mr Liew Teck Huat of Niru & Co, told the court that his client wishes to appeal.

According to court documents, Mr Abhilash and Mr Yeo started the company in 2004. In 2015, Mr Yeo, an engineer and entrepreneur, got a Chinese company interested in purchasing JCS-Vanetec.

The deal fell through because Mr Yeo and Mr Abhilash could not agree and their relationship soured.

When the trial started last year, Mr Abhilash dropped his claim of minority oppression, while Mr Yeo agreed to buy him out "at fair market value".

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Income Tax Act - Income Tax (International Tax Compliance Agreements) (Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information) Order 2018 (S 029 of 2018)

Key Legislative and Regulatory Developments in Singapore for 2017

Legislation
06 Feb 2018

EIG accuses Keppel unit of planning to pay bribes till 2019

Straits Times
16 Feb 2018
Grace Leong

A US fund manager has accused Keppel Offshore & Marine of planning to pay bribes until 2019 but for the Brazilian government's investigation, according to US court papers seen by The Straits Times.

Several funds managed by EIG Management have filed a lawsuit in New York against the Keppel Corp unit under the Racketeer Influenced and Corrupt Organisations Act (Rico).

EIG is suing Keppel O&M in a second attempt to recover US$221 million (S$292 million) in investments in Sete Brasil - a unit of Brazilian oil giant Petrobras - that were rendered "worthless" after the massive corruption scandal exposed through Brazil's Operation Car Wash in 2014 led to Sete's bankruptcy.

Shortly after EIG funded its first investment in Sete, Keppel issued a press release on Aug 7, 2012, stating it had "firmed up contracts" with Sete for the construction of five drillships for about US$4.1 billion.

The drillships were "scheduled for delivery (until the third quarter of) 2019", EIG said in the court papers, citing the press release.

"Given that Keppel's bribes and kickbacks were funded by Sete's construction payments, Keppel would be paying bribes and kickbacks through... 2019," it alleged in court papers filed on Feb 6.

Keppel told the Singapore Exchange on Tuesday that it has been served with a summons in the new suit, but said "the reported cause of action is without merit and Keppel O&M will vigorously defend itself".

When contacted, Keppel said that it was "unable to add anything further".

EIG first sued Keppel, Keppel O&M, Sembcorp Marine and two others in 2016, alleging that US$9.5 million in bribes had been paid by agents of Keppel and SembMarine to officials of Petrobras, its unit Sete Brasil and Brazil's Workers' Party to procure contracts.

The suit was dismissed last April. But EIG got a break when Keppel O&M in late December reached a US$422 million global settlement with the United States, Brazil and Singapore over violations of the Foreign Corrupt Practices Act (FCPA).

This related to US$55 million in bribes paid by Keppel O&M from 2001 to 2014 to officials at Petrobras and the then ruling Workers' Party in Brazil to secure 13 contracts with Petrobras and Sete.

In its new suit, EIG is seeking at least US$663 million, triple the damages under Rico.

It said: "Keppel's admission in the DPA (deferred prosecution agreement) that it committed violations of the FCPA constitutes an admission that it conspired to commit... the Rico predicate acts of money laundering."

EIG said Keppel "admitted that it drafted and executed agreements with consulting companies controlled by (former Keppel agent Zwi Skornicki)... to facilitate the bribe payments".

"Under the guise of these agreements and instructions by Keppel, Skornicki made payments to bank accounts in the US and elsewhere in the name of shell companies he controlled," said the US firm.

"Skornicki then wired the money from those bank accounts in the US to bank accounts outside the country... for the benefit of executives at Petrobras, Sete and members of the Workers' Party."

EIG also alleged that Keppel O&M, from 2001 to 2011, had authorised bribes of about US$40 million to Petrobras and the Workers' Party to secure seven contracts worth US$4 billion.

From 2012 to 2014, Keppel allegedly authorised US$14.4 million of bribes to secure six drillship contracts with Sete, EIG added.

The court documents also spotlighted the role played by former senior Petrobras executives Pedro Jose Barusco Filho and Joao Carlos de Medeiros Ferraz.

As part of a plea agreement, Barusco had testified to the Brazilian Congress that he and Ferraz had opened accounts in the names of "phantom offshore companies for the purpose of laundering the Sete-related bribes including that from Keppel".

Barusco was originally sentenced to 18 years' jail in 2014 but that was reduced to two years of alternative confinement because of his cooperation with the authorities.

"When Barusco requested a bribe, Skornicki 'reported that to Singapore directly', and Skornicki 'ended up going to Singapore five times a year' and 'they authorised' him to pay bribes," EIG alleged, citing Skornicki's testimony.

Ferraz, Barusco and a Sete executive have subsequently agreed to disgorge nearly US$100 million of the bribes that they received from Keppel and secreted into Swiss bank accounts opened in the names of phantom entities, EIG alleged.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Professional Engineers Act - Professional Engineers (Approved Qualifications) (Amendment) Notification 2018 (S 028 of 2018)

Deferred Prosecution Agreements: The move toward corporate criminal liability in Singapore

Legislation
05 Feb 2018

Singapore's digital tax agenda: A matter of time

Business Times
16 Feb 2018
Barbara Voskamp and Kees van Raad

Most corporate tax systems are based on the presumption that businesses operate in close proximity to their customers. These days, however, the reality is not so. Many businesses operate on a regional or even worldwide level. The Internet, more than anything else, has enabled businesses to supply markets without the need for a local presence.

These developments are putting pressure on the way taxes are currently levied and have prompted the question of whether existing tax systems are sufficiently equipped to operate effectively.

Because the digital component is often an integral part of the business, the material difference between tech and traditional businesses is quickly diminishing. Therefore, it is also becoming more difficult to separate the tech and non-tech components of a business. Considering that, it may not be sensible to seek such separation for tax purposes.

The lack of global consensus on how to respond to the direct tax challenges associated with digitalisation presents an ongoing challenge. An increasing number of countries have started taking steps to implement unilateral and uncoordinated measures aimed at taxing digitalised activities and business models. A number of countries have even already implemented unilateral measures such as diverted profit taxes and equalisation levies.

On a global and European level, the following trends can be noted: the OECD, as part of its Base Erosion Profit Shifting (BEPS) project, has formulated a number of tax policy options in its report Tax challenges of digital economy and announced that an update of this report will be released in April 2018.

EQUALISATION

The European Union is also looking into these issues and is seriously contemplating the introduction of a new form of taxation for the tech sector, such as an equalisation tax, outside the existing corporate income tax frame work. This type of tax would be levied on digital companies as a percentage of their turnover in a respective market.

At the World Economic Forum in Davos, Pierre Moscovici, the European commissioner for tax matters, announced that, while looking forward to the forthcoming OECD proposals, he will push ahead and propose a package on digital taxation in early March.

Although some propose that Singapore, with its ambition to become the regional tech hub in Asia, should be a front runner in leading harmonisation of the Asian digital tax treatment, we appreciate the call of Singapore not to include in its 2018 Budget an easy short-term solution. Rather we believe Singapore should use its position as a participant in the BEPS project to reach a global consensus in that forum first.

Once those discussions have fully evolved and lead to a coordinated approach to tax the digital economy, Singapore, as the chair of Asean, in 2018 would be perfectly positioned to lead a similar harmonisation process in this region.


The writers work for the law firm Loyens & Loeff. Barbara Voskamp is a Tax Partner Asean and Kees van Raad is Professor of International Tax Law.

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Professional Engineers Act - Professional Engineers (Code of Professional Conduct and Ethics) (Amendment) Rules 2018 (S 027 of 2018)

Illegality and contracts: State of the law in Singapore

Judgments
05 Feb 2018

More legal eagles starting own niche practices

Straits Times
15 Feb 2018
Grace Leong

Veterans see opportunity for independent and focused growth in dispute resolution

A number of dispute resolution legal eagles have taken flight and started their own independent boutique practices in recent years.

Mr K. Anparasan, who was Withers KhattarWong's regional leader for dispute resolution in Asia, left the firm on Jan 31 after 17 years of service to launch his litigation and dispute resolution firm, WhiteFern LLC.

He is joined by his former Withers team - partner Grace Tan and senior associates Sumyutha Sivamani and Audrey Wong. WhiteFern specialises in dispute resolution, including insurance and reinsurance litigation, and commercial litigation and arbitration.

Another veteran, Senior Counsel Lok Vi Ming of Dentons Rodyk, left in December 2016 after 30 years there to start his own dispute resolution practice, LVM Law Chambers, which now has 16 lawyers.

Corporate restructuring and insolvency lawyer Ashok Kumar left TSMP Law in March 2016 after nearly five years there, to start his own practice, BlackOak LLC, which now has 10 lawyers. Mr Ashok was also a partner at Allen & Gledhill for 13 years.

"We felt there is a space for restructuring and insolvency lawyers who are independent, conflict-free and able to represent anyone against parties such as institutions and banks, which firms may have difficulty acting against," said Mr Ashok, BlackOak's co-founder and director.

SC Lok, LVM Law's managing director, believes there is "room for more conflict-free, independent, disputes-focused law firms here.

"But due to the growing complexity of disputes, as well as the emphasis on speed and responsiveness required for litigation and arbitration, such firms will need to have considerable bench strength. Single practitioners and small practices will find coping with high-value and high-tempo disputes challenging.

"Bench strength should be fortified not just in terms of number of practitioners, but also in having a more expansive suite of subject matter expertise. That can be obtained only by assembling a team of senior practitioners, each an expert in a particular field," he said.

WhiteFern managing director Anparasan said having his own niche firm means he has "the independence to grow his practice in the direction he envisages while staying adaptable to clients' needs".

"Another advantage is that we are able to provide quality legal services for clients at competitive rates. I think the market certainly has room for both niche firms and collaborations with global outfits to cater to clients' different needs," he added.

In addition to referrals and instructions from mid-sized and small law firms, a good number of LVM Law's cases last year came from big local firms that were unable to take these cases on because of business or legal professional conflict, SC Lok said.

International firms have also instructed his firm to give advice on local law in cases that they are involved in, which their local tie-up or joint venture partners are unable to handle because of conflict issues.

"We have also been busy with appointments as mediators or arbitrators in matters handled by some of these international firms. The conflicts issue, both real and perceived, is particularly challenging for senior lawyers accepting arbitration appointments," he said.

These issues can affect the independence of the arbitrator, who assumes the position of a "private judge", added SC Lok.

"There is zero tolerance for conflict, or any perceived conflict, in the appointment of arbitrators. This same demand for independence is not so strong in litigation cases, where the practitioner appears as counsel, taking one of the parties' side," he said.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Professional Engineers Act - Professional Engineers (Amendment) Rules 2018 (S 026 of 2018)

Developments in Restructuring & Insolvency in 2017

Business
02 Feb 2018

Criminal appeal: Strict terms for fresh prosecution evidence

Straits Times
15 Feb 2018
Selina Lum

Court of Appeal makes clear its stand while rejecting prosecution witness' testimony

The prosecution will be allowed to introduce fresh evidence in a criminal appeal only if it meets strict conditions, even if these might be relaxed for the accused.

This was made clear by the Court of Appeal when it rejected a prosecution witness' testimony submitted as part of the State's attempt to overturn a not-guilty verdict for a 57-year-old man accused of raping his lover's teenage daughter.

The apex court - comprising Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang and Judith Prakash - held in judgment grounds yesterday that the "new" evidence could have been presented during the trial.

They also justified why courts are "more accommodating" towards fresh evidence put forward by the accused, highlighting the need to prevent wrongful convictions and the disparity in resources between the State and the defence.

"The law strains against and works doubly hard to prevent any erroneous deprivation of liberty," said the court.

In April last year, the accused was cleared of all sexual offences against his lover's daughter, who claimed that he drove her to a forested area in Punggol in a prime mover and raped her when she was between 15 and 16 years old. The man said he had never driven the vehicle, and his employer testified that the prime mover was driven by someone named Idris, who died before the trial.

The trial judge also found that there were no reasons for the girl's failure to promptly tell her family and boyfriend about the alleged assaults, and when she eventually broke her silence, her accounts were "contradictory and inconsistent".

The alleged offences were said to have taken place between 2009 and 2011 but came to light only towards the end of 2012.

The prosecution appealed, and also applied to introduce two sets of evidence - a sworn statement from Idris' son to rebut the employer's testimony, and an expert report from a senior government psychologist to address the trial judge's "misconception of what is typical rape victim behaviour".

Defence counsel Abraham Vergis of Providence Law Asia resisted the prosecution's bid.

Yesterday, the apex court rejected the rebuttal evidence but allowed the psychologist's report for the appeal, which will be heard at a later date.

Ordinarily, an appeal court will not consider new evidence unless three conditions are met: it was not available during the trial; it is relevant; and it is reliable. These criteria were laid down in the seminal English Court of Appeal case of Ladd v Marshall in 1954, which has been adopted by courts here - although a more liberal approach has been favoured in cases where the accused is appealing against conviction. In the current case, the question was whether the prosecution should be given the same leniency.

The court concluded that while a "more accommodating attitude" towards applications by accused people is justified, the conditions set out in Ladd v Marshall should continue to apply "in an unattenuated manner" to applications by the prosecution.

The court said that there is a need to avoid the prejudice that an accused person would suffer if he is wrongfully convicted or receives a disproportionate sentence. There is also a disparity of resources - the prosecution works with law enforcement agencies, including the police, which have wide-ranging powers to collect evidence, the court noted.

Finally, the court recognised that the "harrowing" experience of defending criminal charges is likely to have an effect on the accused's ability to "fully and soundly consider the nature of the evidence he will need at trial".

In the current case, the court found that the evidence of Idris' son failed to meet the condition of non-availability. The court noted that the prosecution became aware of Idris' existence during the trial, but chose not to seek an adjournment for further investigations.

As for the psychologist's report, the court found that it satisfied all three conditions.


PREVENTING WRONGFUL CONVICTIONS

The law strains against and works doubly hard to prevent any erroneous deprivation of liberty.

THE COURT OF APPEAL

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Professional Engineers Act - Professional Engineers (Prescribed Branches of Professional Engineering) (Revocation) Rules 2018 (S 025 of 2018)

Public consultation on revisions to the Code of Corporate Governance and SGX Listing Rules

Business
02 Feb 2018

Singapore's new cyber law, one step in many to make online safe

Business Times
15 Feb 2018
Amit Roy Choudhury

The passage of the landmark Cybersecurity Bill in Parliament early this month marks an important milestone in Singapore's fight against cyber threats which range from petty criminal activities to the spectre of cyber espionage and terrorism.

Despite the obvious plus points of the new Act, it is important to keep in mind that it will not, by itself, deter future attacks on Singapore. What the Act does, commendably so, is provide a comprehensive mechanism to mitigate the damage caused by such attacks. Going after the perpetrators requires a global effort which is still a work in progress.

The Cybersecurity Act covers organisations that operate critical information infrastructure (CII). These include energy, telecoms, water, health, banking, transport and media sectors, among others. Each of these sectors is at potential risk due to automation and an attack on them could have serious impact on Singapore.

There is a provision for a new commissioner of cybersecurity, who will be the CEO of the Cyber Security Agency (CSA), David Koh. The commissioner is tasked with selecting the specific organisations to designate as CII owners and apply provision of the Act as and when required.

The new Act complements the Computer Misuse and Cybersecurity Act (CMCA) by providing a regulatory framework for routine and proactive protection of CIIs.

It is important to remember that cyberattacks are like any other criminal activity - the motive is either money or information. With data, much of it stored online, considered as the new oil of the global economy, being a cybercriminal is a lucrative profession.

Criminals in one country can target victims in a distant part of the globe. This makes persecution difficult even when the criminals are identified.

The anonymity and reach of the Internet, which makes it such an attractive platform for criminal activities, is also something that has not escaped the attention of intelligence agencies as well as terrorist organisations. Cyber is potentially a new theatre of war and this complicates matters even further.

According to a new piece of research released by AT Kearney in January, Asean companies face US$750 billion in exposure from cyberattacks, as they spend only about 0.07 per cent of their GDP on cybersecurity on average, while the global spending average is 0.13 per cent.

However the good news is that Singapore is an outlier in the Asean region as it invests 0.22 per cent of its GDP on cybersecurity (2017 figures) and is ranked third globally. Singapore is a global leader in cybersecurity and has much to offer in terms of expertise.

Given the nature of the beast, the only lasting solution to cybercrime is international cooperation in dealing with the problem.

Despite a number of international efforts over the past decade, not much progress has been made. Recently, at the World Economic Forum (WEF) meeting in Davos, the Global Centre for Cybersecurity (GCC) was launched. The GCC claims to be the first global platform for cybersecurity, bringing together governments, businesses and law enforcement agencies.

ALIGNING NATIONAL LAWS

There have been similar such efforts in the past with mixed results. For example, the Budapest Convention on Cybercrime was launched in 2001 by the Council of Europe with the aim of aligning national laws to enable admissibility of digital evidence across jurisdictions.

Another such effort is the North Atlantic Treaty Organisation's Cooperative Cyber Defence Centre of Excellence based in Tallinn, Estonia. It has published the highly-regarded Tallinn Manual, a comprehensive collection of existing international treaties for cyber laws. However it remains an academic study rather than a binding piece of policy.

Closer to home, Singapore has taken the lead in signing partnerships with several countries, such as the US, for cooperation in cybersecurity. It has also reached out to help in building cyber capacity and coordination in the Asean region both with money and expertise.

While bilateral and in many cases multilateral cooperation pacts are in place, these are not going to be effective till these efforts can overcome political fault lines. That remains the biggest challenge as can be seen from the controversy that has been raging for more than a year on alleged Russian interference in the US election process.

The way forward could be to wipe the slate clean and frame a new set of universal cybersecurity laws under the auspices of the UN or any of its affiliated bodies. One could even consider setting up a global cybersecurity watchdog.

All this will require hard work and skilful negotiations. Asia - given its fast growing digital economy, high number of digital users, and economic heft - will have to take the lead.

Singapore is ideally positioned to lend both its expertise as well as international credibility in building up a global consensus. It has already, on the latter, been taking the lead. It will be a long-drawn affair but worth the effort. Only when such a setup is in place will Singapore be truly safe from harmful cyberattacks.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Professional Engineers (Amendment) Act 2017 - Professional Engineers (Amendment) Act 2017 (Commencement) Notification 2018 (S 024 of 2018)

MOM Consults on Review of the Employment Act

Legislation
01 Feb 2018

Looking ahead to Budget 2018

Straits Times
15 Feb 2018
Vikram Khanna

Time to look at new sources of revenue and areas to cut spending as big bills loom

Raising taxes "is not a question of whether but when", said Prime Minister Lee Hsien Loong at the PAP Convention last November. This not only raises the issue of which taxes need to be raised - but also of which new ones can be introduced, and which, if any, can be cut. Some issues on the expenditure side of the ledger are worth examining as well.

The need to raise taxes stems from the fact that the government has some huge bills to pay.

Mr Lee mentioned some of the big ticket items that remain to be funded, including the high-speed rail to Kuala Lumpur, the rail terminus in Jurong, surrounded by a new lake district, and a doubling of air and sea-port capacity.

Then there are expensive ongoing projects, including the $4.5 billion industry transformation programme, the building of the Jurong Innovation District, the upgrading of the MRT, the expansion of the medical infrastructure through the building of 17 new healthcare facilities and enhanced spending on security, which Finance Minister Heng Swee Keat has indicated will be a "major spending item" in this year's Budget. Spending on healthcare, education and training also needs to go up.

When it comes to choosing which taxes to raise, let's focus on the big three which collectively contribute 75 per cent of total tax revenue. They are corporate tax (which accounts for about 29 per cent), GST (24 per cent) and individual income tax (22 per cent).

Raising corporate tax is a tempting option. At 17 per cent, Singapore's corporate tax is the lowest in Asean and among the lowest in the world. Economists estimate that even a 1 per cent rise would yield an extra $800 million.

But especially after the US tax reform passed in December, which will slash US corporate tax rates from 35 per cent to 21 per cent this year and which other countries might emulate, there is increased pressure on economies like Singapore, which need foreign investment, to maintain a competitive corporate tax rate. Raising it at this stage would amount to swimming against the tide. It would also send the wrong signal.

Hiking personal income tax rates - especially for the top bracket - is barely a better option. It would make the tax system more progressive, but would not yield much additional revenue. The 2015 Budget raised income tax rates for the top 5 per cent of taxpayers. But income tax collections rose by just $260 million in 2017 or less than 0.07 per cent of GDP. So raising personal income tax rates further seems hardly worth the trouble - except as a symbolic gesture aimed at inequality.

While cutting personal income tax would cause revenue losses, there is a case for enhancing earned income tax reliefs, which for taxpayers below 55 have remained stuck at $1,000 for several years. Significantly enhancing this relief - which is only available to those who work - will not only boost consumption but also incentivise more people to join the workforce and thus help raise the workforce participation rate, particularly for women. Higher reliefs for older workers may also help them stay in the workforce longer.

RAISING THE GST

As a revenue-raising move, hiking the GST is the best bet. Even a one percentage point hike would raise tax revenue of about $1.6 billion, equivalent to about 0.4 per cent of GDP.

Several economists have recommended raising GST by 2 percentage points over two years. This sounds reasonable. Our current GST rate at 7 per cent is among the lowest in the world and has not been raised since 2007. Even at 9 per cent, it would be much lower than most other countries. The average rate in developed countries is close to 20 per cent. The government could raise even more revenue if it lowers the threshold for GST registration from the current $1 million in taxable turnover to $500,000. In most countries the threshold is even lower than that.

The GST is, however, a regressive tax which penalises lower-income groups disproportionately. But the regressive effects can be mitigated by providing GST offsets to low-income groups as in the past, and zero rating essential items like basic foods and medicines.

Among other potential sources of revenue, much has been said about possible wealth taxes - that is, taxes on property and capital gains as well as estate duties.

As revenue earners they will not be significant compared to GST. For example, property tax (which was already raised with effect from 2015) accounts for only 9 per cent of total tax revenue. A capital gains tax would be a big negative for the financial services industry as well as the property market, which is already subject to cooling measures, including additional buyer's stamp duty (which is not included in property tax), and is faced with interest rate hikes.

Nor have estate duties been high revenue earners. During the period 2000 to 2008 (when estate duties were scrapped), they yielded an average of $136.8 million a year. Re-introducing estate duty would simply lead to more creative tax planning on the part of the wealthy, some of whom might also choose to move their family offices and tax residence out of Singapore. In short, raising wealth taxes aimed at soaking the rich, while high on symbolism, is likely to bring little joy in terms of revenue.

SUGAR AND E-COMMERCE

Finally, on new taxes, the case for a sugar tax is as compelling as the case for a tobacco tax. Singapore has the second highest incidence of diabetes in the developed world, according to the International Diabetes Federation, with one in 9 residents already afflicted.

The government has declared war on diabetes but has taken no fiscal measures to combat the disease. This needs to change. With several countries having introduced sugar taxes in recent years, there is now evidence that it has been effective in reducing consumption of sugary drinks - for example, in France, Mexico and several cities in California.

A sugar tax would also help reduce the costs of treating diabetes. If it is to move the needle on consumption, it should be hefty - just as it is on cigarettes. A good role model is the UAE, which has a 50 per cent tax on sugared soft drinks.

A tax on e-commerce transactions has also been much discussed. There is a clear case for this - brick-and-mortar merchants have to pay GST, but overseas online vendors do not. However, there are major practical problems with implementing such a tax, including the fact that many online merchants do not have a local presence, difficulties with verifying taxable transactions and collecting the tax. These issues would need to be resolved before an e-commerce tax can be imposed.

THE EXPENDITURE SIDE

On the expenditure side, besides the big-ticket infrastructure related items, there are a few ideas worth flagging. One relates to defence spending, which at more than $14 billion last year is the highest expenditure item in the Budget - and also the least transparent in terms of how the money is spent.

While it goes without saying that defence is critical to national security, the security challenges facing Singapore have changed in recent years. The key threats are terrorism, cyber attacks, piracy at sea and violent extremism - all of which require expenditures of a different type than conventional defence spending on big weapon systems.

Moreover, while Mindef would continue to play a key role to protect against such threats, the spending needs to be spread across several ministries. In light of this change of emphasis, a case can be made that defence spending needs to be capped at a lower level or even reduced in real terms. This would free up resources for social expenditure, where the needs are pressing.

Within social expenditure, health and education get the biggest share. While health spending will automatically go up with the expansion of insurance coverage, there is need for more tightly enforced limits on medical fees and charges, which are often arbitrary and excessive.

If price controls are unworkable, the government must find other ways - for example, higher deductibles on insurance - to prevent overconsumption of health services. To reduce the burden on the state, some health spending can be shifted to firms by enhancing tax deductions for medical expenses that they incur. Individuals can also be encouraged to take up private health insurance by making premium payments tax deductible.

SPUR TO INNOVATION

In education, there needs to be a shift of emphasis from funding formal, institution-based learning to more vocational education, including through short courses that will enable workers to more quickly retrain for new jobs. Higher tax deductions for training expenditure by companies will help. But this would only apply to company-sponsored training. One problem holding back the life-long learning programme is that companies do not give enough time off for self education, especially in a tight labour market.

While we have leave for maternity, paternity, sickness, childcare and even adoption, not many companies grant education leave. This should be mandated for at least some approved courses.

When it comes to incentives for innovation, a key challenge for the government will be to address the gap created by the expiration this year of the Productivity and Innovation Credit (PIC) scheme which provides generous tax deductions and cash payouts for activities that spur innovation and has had a good take-up rate.

Among the options proposed are to limit to PIC to only R&D spending, or enhance tax deductions for R&D and other desired activities. Another measure is to provide tax incentives to encourage companies to create "sandboxes" for innovation in fields other than the financial sector - where the Monetary Authority of Singapore has already created such a facility.

But perhaps the most important step the government can take to boost both innovation and growth would be to relax curbs on skilled foreign workers. Many companies have pointed out that the biggest obstacle to innovation that they face is not the lack of incentives or capital but the shortage of skilled workers. In some areas, such as data science, cyber security and artificial intelligence, the shortages are acute.

With the working-age population projected to decline from 2020, relaxing curbs on the import of, at least, skilled workers would also be the most effective way to deal with our demographic challenge in the short to medium term.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Active Mobility Act 2017 - Active Mobility Act 2017 (Commencement) Notification 2018 (S 023 of 2018)

Singapore Court admits foreign Senior Counsel to argue Issues of foreign law

Judgments
01 Feb 2018

Keppel O&M unit served summons in new law suit by EIG

Business Times
14 Feb 2018
Tan Hwee Hwee

Keppel Corporation's offshore and marine (O&M) unit has been served with a summons in a new law suit filed by EIG Global Energy Partners and some of its managed funds in the United States.

The conglomerate maintained in a disclosure about the summons and the law suit after Tuesday's trading close, that "the reported cause of action is without merit" and that its O&M unit "will vigorously defend itself".

An article published on Feb 8 on the Law360 website said that the EIG funds had launched a US$660 million racketeering suit in New York's federal court against Keppel O&M (KOM) pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO).

The civil suit concerns KOM's role in a Brazilian bribery scheme connected to a failed drill ship venture, for which Keppel recently reached a US$422 million settlement between KOM and the prosecutors in the US, the article said.

In 2016, Keppel Corp, KOM, Sembcorp Marine and Jurong Shipyard were added as defendants along with other shipyards and entities in the lawsuit filed by EIG and its eight managed funds with a district court in the US.

EIG had alleged in the 2016 law suit that it was misled by Petrobras, along with other named yards and entities to invest over US$221 million of equity in Sete Brasil, a rig-building business unit of Petrobras.

Sete Brasil went on to award rig-building contracts valued at about US$10 billion to business units of KOM and SembMarine.

The US District Court, District of Columbia, subsequently ruled in 2017 in favour of Keppel Corp, KOM, SembMarine and Jurong Shipyard and dismissed the law suit filed by the EIG funds.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 2) Notification 2018 (S 022 of 2018)

Key highlights of the 2017 Singapore employment landscape

Business
31 Jan 2018

Doctored headline: 5 in Facebook group apologise

Straits Times
14 Feb 2018
Seow Bei Yi

Five administrators of a Facebook group have apologised for the posting of a doctored article on its page on Feb 2, the Attorney-General's Chambers (AGC) said yesterday.

The post, made by delivery driver Neo Aik Chau, 38, involved a newspaper report with an amended headline. It claimed a lawyer - who is an MP from the People's Action Party (PAP) - had saved the people who misused City Harvest Church funds from harsher sentences.

"The Facebook post made false and baseless allegations, and, in doing so, had impugned the impartiality and integrity of the Court of Appeal," said the AGC, adding that it wrote to the five last Friday.

Among them was Madam Ng Kwee Lay, who approved Mr Neo's post for publication on the page of the Chinese-language Facebook group, whose name translates to "Policy discussion forum".

"By omitting to remove the Facebook post from the Facebook group between Feb 2 and 5 despite being aware of its publication, Mr Ong Sooi Eng, Mr Lee Leng Kok, Madam Tan Siew Tee and Mr Yap Tze Kiat, as the other administrators of the Facebook group, had also caused publication of the Facebook post," the AGC added.

Mr Neo's post was of Chinese-language daily Lianhe Wanbao's Page 1 report, but with a false headline.

The original headline said an outdated law saved church founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them, referring to Mr Edwin Tong, an MP for Marine Parade GRC who was Kong's lawyer in the criminal trial.

The AGC stressed in its latest statement that administrators of Facebook groups or other similar online platforms are responsible for the content published.

"They are not immune from liability even though they are not the authors of the offending content," the AGC said, adding that the five administrators had committed contempt of court under Section 3(1)(a) of the Administration of Justice (Protection) Act 2016.

The five complied with the AGC's requirements to post an apology and undertake not to allow any posts amounting to contempt of court to be published on the Facebook group, or to commit any other act with the same effect.

The apology posted on the group's page read: "We, as administrators and moderators of the Facebook group, unreservedly apologise for scandalising the Court of Appeal by causing publication of the 2 February 2018 Facebook post through Ng approving Neo's post for publication, and all of us thereafter allowing it to remain on the Facebook group."

Written in both English and Chinese, it added that the Feb 2 post had been removed from the group, the administrators' Facebook accounts and all their other social media accounts and platforms.

The AGC did not say in its statement if the apology meant no further action would be taken against the administrators.

Last Thursday, Mr Neo apologised on his personal Facebook page for posting the doctored article, saying: "I unreservedly apologise for scandalising the Court of Appeal by publishing the post. I have removed the post from the Facebook group, my Facebook accounts and all my other social media accounts and platforms."

Seow Bei Yi


Administrators of Facebook groups or other similar online platforms are responsible for the content published. "They are not immune from liability even though they are not the authors of the offending content," the AGC said.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Requisition of Resources Act - Requisition of Resources Order 2018 (S 021 of 2018)

IPOS Case Summary: Guccio Gucci S.p.A. v Guccitech Industries (Private Ltd) - [2018] SGIPOS 1

Judgments
31 Jan 2018

MAS sets out e-payment guidelines for banks, consumers

Business Times
14 Feb 2018
Jamie Lee

Regulator outlines customers' liabilities in the event of unauthorised transactions, banks' responsibilities in notifying customers of transactions

Major retail banks offering mobile payments options here will effectively have about six months to ensure proper notification of e-payment transactions by their customers, as the regulator moves to set standards for consumer rights in this space.

To spur a wider adoption of e-payments in Singapore, the Monetary Authority of Singapore (MAS) on Tuesday outlined the liabilities held by these customers in the event of unauthorised transactions, and set out the banks' responsibilities in notifying customers of e-payment transactions so that account holders can keep track of digital fund flows.

MAS said banks should offer transaction notifications so that account holders can monitor their accounts.

At the minimum, the banks should send account holders an SMS or e-mail of all e-payments in and out of either their bank accounts or mobile wallets holding credit cards, once a day. The information should identify the recipient, and each transaction's amount, date, and time.

It plans to publish the guidelines in the first half of this year. The proposed guidelines came after Singapore launched PayNow, a free service offered by seven retail banks that enables mobile fund transfers through the recipient's mobile phone number or NRIC number. Since the launch in July, more than a million users have registered with PayNow.

Banks have also offered their own version of mobile payments. But broadly, the standards on notification have differed. BT understands that some retail banks have flagged the cost constraints and the necessity in sending multiple SMSes.

The proposed guidelines would apply to both individuals and small business owners, defined as "micro-enterprises" that either hire fewer than 10 staff, or make less than S$1 million in annual turnover.

Account holders who were careful in protecting their accounts would not be liable for any unauthorised transactions, MAS said. This would typically mean such customers used strong passwords and tucked them away, as well as updated IT security patches regularly.

Consumers or small businesses found to be careless but not reckless in contributing to unauthorised transactions that are being disputed, would be liable for up to S$100. Such account users might have misplaced a mobile phone or have accidentally given away passwords.

But if banks can prove that reckless behaviour by customers led to the unauthorised transactions, consumers would then be liable for the actual loss.

When a "fat finger" transaction has occurred - that is, when a payment is made to a wrong person by accident - customers can work with the sending and receiving banks to have the funds returned in about a week's time.

A DBS spokesman said the bank is supportive of these new measures as the protection guidelines will provide more clarity and assurance to consumers using e-payment options. DBS PayLah! is used by some 800,000 users. Since 2010, Singapore's largest bank has also offered a "Money Safe Guarantee" that protects against unauthorised transactions. DBS will repay the money taken from customers' account due to an unauthorised transaction. But similar to the terms of the MAS proposal, the guarantee is only applicable if customers have been vigilant about their digital security.

The proposed guidelines mainly apply to e-payment options offered by banks and NETS now. Once the new Payment Services Bill is passed into law, mobile wallets operators that have an average daily e-money float of more than S$5 million a year would have to be licensed by MAS, and would have to adhere to these new guidelines. Other mobile wallets out in the market include GrabPay.

The proposed guidelines are not mandatory, but MAS can turn them into law in future if necessary.

The guidelines would not apply to scams such as phishing. Such cases would be referred to the police, with the fraudsters prosecuted under law.

MAS is seeking public feedback on the guidelines until March 16.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Maritime and Port Authority of Singapore Act - Maritime and Port Authority of Singapore (Designated Equity Interest Holder) Notification 2018 (020 of 2018)

Taking stock on Dual Class Shares discussions in Singapore

Business
30 Jan 2018

Three new judicial commissioners of High Court appointed

Straits Times
13 Feb 2018
Ng Huiwen

President Halimah Yacob has appointed Mr Tan Puay Boon, Ms Mavis Chionh and Mr Ang Cheng Hock as judicial commissioners of the High Court.

Mr Tan, 62, and Ms Chionh, 48, will begin their new roles on March 12 for a three-year term. The appointment of Mr Ang, 47, will take effect on May 14 for a period of 18 months, the Prime Minister's Office said in a statement yesterday.

Mr Tan and Ms Chionh will be sworn in at the Istana on March 16, and Mr Ang on May 17.

Mr Tan has served as the principal district judge of the State Courts' civil justice division for close to three years.

He was appointed director of the Ministry of Law's Legal Aid Bureau in January 2007 and became the ministry's chief information officer from June 2013 to April 2015.

He has over 30 years of experience in the Singapore Legal Service, having first joined the Attorney-General's Chambers (AGC) as State Counsel in 1987.

Ms Chionh, who is currently the AGC's Second Solicitor-General, joined the legal service in 1991. She graduated from the University of Oxford and has a Master of Laws (Chinese Law) from the National University of Singapore.

In 2011, she became the chief prosecutor in the AGC's financial and technology crime division, which was previously known as the economic crimes and governance division.

She also took on the role of chief prosecutor in the criminal justice division in 2015.

That year, she was appointed senior counsel and also awarded the Public Administration Medal (Gold).

In a statement yesterday, Attorney-General Lucien Wong described Ms Chionh as a "veteran in the public legal service sector".

He said: "Mavis was the lead prosecutor in some of the most high-profile court cases in Singapore, including stewarding the prosecution of Kong Hee and others from City Harvest Church and securing their eventual convictions."

He commended her knowledge, stamina and commitment to excellence and said that these qualities have served the AGC and the public well.

During her time at the AGC, Ms Chionh also spearheaded a number of changes, including organising the criminal justice division into specialist groups, re-organising the Crime Registry and establishing more effective prosecution guidelines, he added.

Mr Ang is currently a partner at law firm Allen & Gledhill, where he is a member of its litigation and dispute resolution department.

He joined Allen & Gledhill in 1999 and became a partner the following year.

In 2009, he became one of the youngest lawyers to be appointed senior counsel at age 38.

His main areas of practice include civil and commercial litigation, international arbitration and corporate-related disputes.

He has also appeared as counsel in insolvency-related litigation, shipping disputes and intellectual property disputes.

Allen & Gledhill co-chairman and senior partner Penny Goh congratulated Mr Ang on his new appointment in a statement yesterday.

She said: "We will certainly miss Cheng Hock, but he will be pleased that he leaves behind a very strong litigation team.

"We would like to take this opportunity to thank him for his numerous contributions over the years."

With the new appointments, the Supreme Court will have a total of 21 judges, seven judicial commissioners, four senior judges and 15 international judges.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Maritime and Port Authority of Singapore Act - Maritime and Port Authority of Singapore (Designated Public Licensee) Notification 2018 (S 019 of 2018)

MAS Proposes Changes to AML/CFT Requirements for Licensed Money-Changers and Remittance Businesses

Business
29 Jan 2018

Apex court sets out when traffickers who divide and pack drugs may be considered couriers

TODAY
13 Feb 2018

A drug trafficker who divided and repacked drugs may still be considered merely a courier and stand a chance of escaping the gallows, said the Court of Appeal on Monday (Feb 12).

But the division and repacking must be for the purpose of transporting, sending or delivery of the drugs, the three-judge panel ruled as it upheld the death penalty for a 44-year old Singaporean heroin trafficker.

The acts must be incidental to, or necessary for transporting, sending or delivering the drugs, said Judge of Appeal Steven Chong, who ruled together with Chief Justice Sundaresh Menon and Judge of Appeal Tay Yong Kwang.

For instance, an offender who wraps a packet of drugs to make the bundle more compact and easily transported could be said to be ensuring the success of its delivery.

Likewise, if the division or repacking was to prevent “inadvertent leakage or to allow for the placement of the drugs into confined spaces within the transporting vehicle”, said JA Chong.

However, “breaking bulk” to enable the original quantity of drugs to be transmitted to more than one recipient is “not a preparatory step to delivery but is an antecedent step that is involved in facilitating distribution to more than one recipient”, he said.

The offender has to provide evidence that he had a permissible reason or purpose for dividing and packing the drugs, he added.

Since 2013 when changes to the Misuse of Drugs Act kicked in, offenders determined to be couriers, and who are issued certificates of substantive assistance by the Public Prosecutor, may be sentenced to life imprisonment instead of the gallows.

The apex court was ruling in the case of Zainudin Mohamed, who was convicted in 2016 of possessing not less than 22.73g of heroin — or diamorphine — for the purposes of trafficking.

Zainudin got into the trade in 2014 after he fell into dire financial straits and was unable to service his home loan. A friend called “Boy Ahmad” suggested heroin trafficking to make “fast cash”.

On May 13, 2014, Zainudin received S$8,200 in cash and was paid S$300 by Boy Ahmad. He exchanged the cash for two “batu” (about 1kg) of drugs from a woman called Shanti Krishnan, who has been given a life sentence.

Zainudin was beginning to cut open one of the packets with a pair of scissors to divide and repack the contents, when Central Narcotics Bureau officers tried entering his flat.

In his appeal, defence lawyer Eugene Thuraisingam argued Zainudin was a courier who was dividing the drugs on Boy Ahmad’s instructions and was not exercising his own decision-making powers.

But JA Chong said: “If an offender is following instructions to sell and/or distribute the drugs, his role remains no less than that of a seller or distributor.”

The apex court added: “One might argue that the court’s decision as to whether an offender can be regarded as a courier ought not to turn on something so arbitrary as whether the drugs handed to him comes in an undivided whole or in already divided portions. But this argument entirely misses the significance of the act of division and packing for the purposes of distribution.”


MAN ON DEATH ROW ACQUITTED OF IMPORTING HEROIN BY COURT OF APPEAL

A Malaysian heroin importer on death row was acquitted on Monday (Feb 12) by the Court of Appeal in a 2-1 split decision.

Gopu Jaya Raman, now 31, had proved, on a balance of probabilities, he did not know drugs had been placed in the motorcycle he rode into Singapore through Woodlands Checkpoint on March 24, 2014, ruled Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash, the majority judges.

Gopu was caught by Immigration and Checkpoints Authority officers with three black bundles, containing not less than 46g of diamorphine, that were concealed in the space enclosed by the fenders of the motorcycle. He appeared confused and lost when confronted.

The unemployed man had done drug deliveries previously but maintained the drugs had been planted there that day without his knowledge, when he had entered Singapore to visit his girlfriend and another friend to celebrate his birthday.

On previous occasions, drugs had been packed in green bundles and covered with a scarf, then placed over the seat compartment lid which was covered by the seat.

Gopu had met with a traffic accident the day before, on March 23, 2014, and sustained injuries to his chest and leg. He asked his boss, who was only identified as Ganesh, for a RM150 (S$50) loan to see a doctor but Ganesh refused and asked him to see his friend, who was only identified as “Ah Boy”.

Gopu refused Ah Boy’s request to deliver drugs and Ah Boy had a discussion with Ganesh before passing the money to Gopu to see a doctor. Ah Boy told him Ganesh would call him later.

After he was caught, Gopu claimed he drafted a text message to Ganesh under the direction of a Central Narcotics Bureau officer, complaining Ganesh had not previously told him about the drugs.

According to Gopu, this showed the officer had believed he did not know about the drugs.

“There was no doubt in this case that Ganesh and Ah Boy wanted to transport the drugs into Singapore. The only question was whether (Gopu) was part of this plan,” said CJ Menon and JA Prakash, who found no objective evidence linking Gopu to the drugs.

JA Tay Yong Kwang was the dissenting judge. He found Gopu’s explanation for wanting to enter Singapore on March 24, 2014, not to be credible.

There was “absolutely no reason” for Ganesh and Ah Boy to resort to trickery to get Gopu to bring the drugs into Singapore, especially when Gopu still owed Ganesh half of an RM4,000 loan and needed a further loan for medical attention, JA Tay said.

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Maritime and Port Authority of Singapore Act - Maritime and Port Authority of Singapore (Disregarded Interests) Regulations 2018 (S 018 of 2018)

Impending Overhaul of Singapore’s Healthcare Legislation

Legislation
26 Jan 2018

Man on death row on drug charges set free

Straits Times
13 Feb 2018
Aw Cheng Wei

Apex court rules he proved he did not know of hidden drugs in motorcycle he was riding

In a rare 2-1 decision, the apex court acquitted a man on death row for drug possession.

According to a judgment released yesterday, Mr Gopu Jaya Raman successfully proved that he did not know that controlled drugs were hidden in the motorcycle he was riding into Singapore.

He contested the High Court's judgment for not giving "due weight to evidence" showing that he did not know about the drugs.

On March 24, 2014, Mr Gopu, a Malaysian, was found trying to enter Singapore through Woodlands Checkpoint with three black bundles of diamorphine hidden in his motorcycle's fender.

When immigration officers stopped him and found the drugs, he said he did not know the drugs were hidden in the motorcycle.

Mr Gopu, 28 then, also said the motorcycle was not his.

While he was crossing the Causeway earlier, Mr Gopu said he had a call from the man who helped him borrow the motorcycle, asking him to call after he entered Singapore.

Mr Gopu then suspected that the motorcycle carried drugs as he had brought drugs into Singapore on two other occasions before he was arrested that evening.

He was trying to pay back a loan of RM4,000 (S$1,340) to the man who had got him the motorcycle. The man had threatened to hurt his family if he did not traffic the drugs.

After the call, Mr Gopu then checked the compartment where the drugs were hidden previously but he did not find anything.

After the authorities found the drugs, they got Mr Gopu's help to try to nab the others in the ring who might turn up to collect the drugs, the judgment stated. The operation, however, was called off when no one turned up.

Authorities monitored his conversation with the man who had helped to get him the motorcycle.

After listening to a number of exchanges, officers told Mr Gopu to send a message, indicating that he had no knowledge of the drugs.

In yesterday's judgment, Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash found that the High Court judge had not considered what the man had said in the monitored conversation when he responded to Mr Gopu's allegations that he did not know about the drugs.

According to the judgment, the man had responded to Mr Gopu, asking him to forgive him and to take the motorcycle back to Malaysia.

The judges also found that Mr Gopu would have missed the drugs when he was checking for them, given the bundles' "size and dark colour".

As it is "inherently difficult to prove a negative... the burden on Mr Gopu should not be so onerous that it becomes virtually impossible to discharge", the judgment stated.

The sole dissenting judge was Judge of Appeal Tay Yong Kwang. He was not convinced by Mr Gopu's reasons for entering Singapore or how he came to possess the motorcycle. He said Mr Gopu's admission to trafficking drugs into Singapore on the same motorcycle on two other occasions did not bolster his credibility.

He said the "evidence pointed clearly to the conclusion that this was (Mr Gopu's) third drug delivery or import into Singapore to repay the loan that he had taken". "Unlike the previous two occasions, the third delivery was unsuccessful."


NOT CONVINCED

Evidence pointed clearly to the conclusion that this was (Mr Gopu's) third drug delivery or import into Singapore to repay the loan that he had taken.

JUDGE OF APPEAL TAY YONG KWANG, the sole dissenting judge in yesterday's judgment. Mr Gopu had trafficked drugs into Singapore on two other occasions before he was found out on March 24, 2014. He had been trying to repay a RM4,000 loan.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Maritime and Port Authority of Singapore (Amendment) Act 2017 - Maritime and Port Authority of Singapore (Amendment) Act 2017 (Commencement) Notification 2018 (S 017 of 2018)

Setting aside an SOP Act adjudication determination: The right of all parties to be heard

Judgments
26 Jan 2018

Man who beat adoptive father to death pleads guilty

Straits Times
13 Feb 2018
Selina Lum

A jobless man with a history of schizophrenia and alcohol abuse went on a violent New Year's Eve rampage in 2015, beating his adoptive father to death and assaulting his adoptive mother and his girlfriend.

Su Caizhi, 30, was taken in by the couple at the age of five and later received $70,000 from their family business, but "repaid their kindness with savagery" after hearing voices in his head, a court heard.

He pleaded guilty to four charges yesterday, including culpable homicide for killing his father Pang Tee Lin, 72, causing grievous hurt to his mother, Madam Wong Ah Boey, 69, and causing grievous hurt to his girlfriend, Ms Melissa Foo Fern Yin, 34.

The High Court heard that Mr Pang and Madam Wong, who were childless, adopted Su from Hainan province, China, in 1992.

They changed his name to "Pang Kee Hiang" but he changed it back in September 2015, a few months before the tragedy.

Su, who has been admitted to the Institute of Mental Health at least seven times since 2012, has been unemployed since 2014. He spent most of his time on his computer.

He showed symptoms of hallucinations, delusions, aggressive behaviour and disorganised thought, but often did not take his prescribed medication. He also had a history of alcohol abuse.

Despite this, the couple, who were hawkers, gave him $70,000 out of the $100,000 they received from selling their curry rice stall when they retired in August 2014.

He lost part of the money in forex trading and two failed businesses, paid for an accounting course which he did not complete, and spent some on himself and Ms Foo.

On the morning of New Year's Eve 2015, when Ms Foo went over to the family's Bedok Reservoir flat, Su was angered when she refused to engage in a sex act with him.

He began assaulting her and she passed out, but he continued to punch and kick her.

After attacking Ms Foo, he turned his anger on his father after voices in his head told him that Mr Pang had hidden his medicine.

Su stormed into the master bedroom and punched his father in the face. When the elderly man fell to the floor, Su stomped on his face and kicked him in the chest before returning to his room.

Madam Wong went to Su's room to ask what had happened but he grabbed her by her head and banged it against the wall.

He slapped her, rained punches on her face and kneed her in the stomach.

Ms Foo, who had regained consciousness, called the police after finding Mr Pang on the floor.

The police arrested Su for causing grievous hurt and found four packets of glue and two empty beer cans in his room.

Mr Pang suffered severe brain injury and fractures to his face, ribs and spine. He was taken off life support nine days later.

Deputy Public Prosecutor Sarah Ong urged the court to impose at least 18 years' jail.

Su's assigned lawyer, Mr Nakoorsha A. K., sought a sentence of not more than 12 years, saying Su's actions were not premeditated.

Su will be sentenced at a later date.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Revised Edition of the Laws Act - Revised Edition of the Laws (Rectification) Order 2018 (S 016 of 2018)

Sentencing Guide for Offences of Cheating at Play

Judgments
25 Jan 2018

Syndicate behind series of sham marriages busted

Straits Times
13 Feb 2018
Tan Tam Mei

A Singaporean "groom" would be flown to Vietnam for a wedding photo shoot with his Vietnamese "bride" as part of a ruse to make their "marriage" look genuine.

In some instances, the "groom" would be told to meet the "bride" at the Singapore airport in case immigration issues cropped up. The "grooms" also changed their NRIC addresses to reflect that of the residences of the "brides".

Some couples lived together in the same unit for short periods of time to keep up the ruse. This was to allow the "grooms" to familiarise themselves with the place and prove the marriage was genuine if questioned.

These were the tactics used by a syndicate to cover up an elaborate web of sham marriages involving six couples and two masterminds. It took investigators from the Immigration and Checkpoints Authority (ICA) six months to crack the case.

Syndicate members were among 53 people convicted last year of sham marriages - a 23.3 per cent rise from 43 in 2016.

The increase, however, comes after a downward trend that followed an amendment to the Immigration Act in 2012 to criminalise such marriages. In 2013, there were 284 people caught for sham marriages.

Typically, sham marriages are discovered in isolation and involve a "straightforward" transaction between the "couple" and sometimes a marriage broker.

This looked to be the case when a "groom" in the syndicate appealed against his "wife's" repatriation.

But investigations led officers to discover five more marriages of convenience and eventually uncover one of the biggest sham marriage syndicates here, said Superintendent Maran Subrahmaniyan, 47, who is deputy director of ICA's enforcement division.

"We had to connect the dots to find out the exact narrative and that led us to discover that there was more than one couple," Supt Maran told The Straits Times.

A total of 14 people were part of the syndicate, though only 12 - six men and six women - were arrested as one "bride" had been repatriated for other offences and anotherleft Singapore before ICA investigations began in July last year.

The men from Singapore, aged between 24 and 57, entered into the sham unions for monetary rewards, while the Vietnamese women, aged between 23 and 34, wanted to prolong their stay here to work in vice-related jobs, said ICA officers who helped crack the case.

Ten of the syndicate members - including the masterminds, Singaporean Adrian Kin Zheng Keat, 37, and Vietnamese national Ho Thi Be Ba, 31 - have been jailed for terms ranging from six to 18 months. Court proceedings for the remaining two - Chua Rui Xiang and Tran Thi Ngoc Thu, 23 - are ongoing.

Kin, who was unemployed, was involved in the brokering of all six sham unions and played a part in facilitating the marriages.

Ho, a beautician who took part in three of the unions, was sentenced for harbouring three couples in a Balestier apartment. Two of the "grooms" in the sham marriages - Chua and Alex Wong Kean Mun, 32 - helped broker other sham unions.

The men from Singapore were promised between $3,000 and $5,000 for each union, and $100 to $300 for each successful extension of the women's visit passes. The foreign spouses each paid about $20,000 to the brokers.

As the complicated web differed from traditional marriage of convenience cases, piecing the information together was a challenge, said Deputy Superintendent Liew Shi Xiong, 32, a lead investigation officer. "With most immigration offences, you might have evidence like travel documents or passports. With other kinds of offences, you might have witnesses (to testify). But for (marriage of convenience) cases, we do not have such evidence."

Officers interviewed family members of those accused, and the families were sometimes shocked to hear they were married.

It was also no mean feat seeing through the cover stories of the "couples", said Assistant Superintendent Muhammad Izzat Abdul Rahman, 29, another lead investigator.

He said Singaporean "spouses" in sham marriages come from all age groups, and do it for the money. "The Singaporean 'spouse' is normally in financial difficulty, and this is something the arranger (of the sham marriage) picks up on."


Syndicate members were among 53 people convicted last year of sham marriages - a 23.3 per cent rise from 43 in 2016. The increase, however, comes after a downward trend that followed an amendment to the Immigration Act in 2012 to criminalise such marriages.

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Standards, Productivity and Innovation Board Act - Standards, Productivity and Innovation Board (Conformity Assessment) (Amendment) Regulations 2018 (S 015 of 2018)

Manufacturers of capacitors incapacitated by record financial penalty

Business
25 Jan 2018

Book on old buildings tells story of S'pore legal system

Straits Times
13 Feb 2018
K.C. Vijayan

In 1826, Scottish merchant John Argyle Maxwell had a home built between High Street and the Singapore River in an area designated for government buildings.

But he never got to use it as a residential building. Instead, he rented it out in June 1827 as Singapore's first courthouse, and served as a magistrate as well. That first courthouse still stands today, and now serves as The Arts House.

These historical facts are told in a new book that links the legacy of Singapore's legal system with the historical buildings here.

Published by Academy Publishing of the Singapore Academy of Law, the book includes pictures of court buildings, police stations and prisons of early Singapore, including the now-defunct Pulau Senang settlement for secret society gangsters.

Legal Legacies: The Storeys Of Singapore Law, which can be bought on the Singapore Academy of Law's online store for $35, also includes rare architectural drawings of key structures.

The authors, in introductory remarks, say the book, the second in a series, is more than just about bricks and mortar. "These buildings record the development of Singapore's legal system from a colony to a city state."

The buildings include the former Parliament House in Empress Place and old Caldwell House, where Chijmes in Victoria Street is located today.

A spokesman added: "We are probably not aware of its history. The book takes the reader back into the history of these buildings and places, providing glimpses of some of the original building plans, archival photos from private and public collections in Singapore and overseas, and stories of what it was like to live and work there."

The first volume, titled Legal Legacies: The Story Of Singapore Law, was published in 2011.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Consumer Protection (Trade Descriptions and Safety Requirements) Act - Consumer Protection (Safety Requirements) (Amendment) Regulations 2018 (S 014 of 2018)

Protecting against foreseen risks – is a boilerplate indemnity clause sufficient?

Judgments
24 Jan 2018

Keppel says it has not been served court papers over latest civil action by EIG

Business Times
12 Feb 2018
Marissa Lee

Keppel Corp said on Sunday that it has not been served with court papers relating to a new civil action brought against Keppel Offshore & Marine by certain funds managed by EIG Global Energy Partners in the United States.

Keppel's statement came in response to an article published on the Law360 website on Feb 8, titled "EIG hits Keppel with US$660m RICO suit over Brazil bribery". The article referred to a lawsuit filed by the EIG funds in a district court in New York against Keppel Offshore & Marine under the Racketeer Influenced and Corrupt Organizations Act (RICO).

The lawsuit concerns Keppel O&M's role in a Brazilian bribery scheme, for which the Keppel unit recently reached a US$422 million global settlement with US prosecutors.

In its statement to the Singapore Exchange, Keppel said it believes that "the reported cause of action is without merit", and that it would "vigorously defend itself if and when the relevant papers are served".

In 2016, funds managed by EIG Management Co commenced a civil action against Keppel O&M, Sembcorp Marine, Jurong Shipyard and other firms for allegedly participating in an unlawful conspiracy further to which EIG was induced to invest over US$221 million in Sete Brasil Participacoes SA. Last year, the US district court for the District of Columbia ruled in favour of Keppel O&M and dismissed the action.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Massage Establishments Act 2017 (Act 45 of 2017)

Latest IP Developments: The Polo/Lauren Company L.P. v Royal County of Berkshire Polo Club Ltd [2017] SGIPOS 19

Judgments
24 Jan 2018

Consumers can seek recourse under Lemon Law

Straits Times
10 Feb 2018

We thank Mr Samuel Tan Kian Huat and Mr Jason Chua Dong Wei for their letters (Lemon law no protection if warranty isn't in contract; Jan 30, and Disappointed buyers can also turn to Sale of Goods Act; Feb 1, respectively).

Part III of the Consumer Protection (Fair Trading) Act, commonly known as the "Lemon Law", provides remedies for consumers against goods that are not of satisfactory quality at the time of delivery.

If a defect is found within six months of delivery, it is presumed that the defect existed at the time of delivery, unless the business can prove otherwise.

Under the law, retailers are obligated to repair or replace the defective item within a reasonable period of time; failing which, they are to give a reduction in price or refund for the defective product.

Business-to-consumer transactions are covered under the Lemon Law and the retailers cannot contract out of their obligations under the law.

On the other hand, a warranty is a written promise, usually offered by the retailer or manufacturer to make good any defects in accordance to the terms and conditions.

Consumers should be mindful of their rights under the warranty provided.

The Lemon Law applies even if businesses do not explicitly provide warranties for the goods they sell.

For the case mentioned by Mr Tan, despite the lack of a warranty and a term of the contract stating that the car is sold "as is", consumers are still eligible for protection under the Lemon Law provisions, provided that they fall within the coverage of the Act.

This would, in turn, depend on the defect complained about, the age of the second-hand car and its mileage.

Mr Tan's godbrother had sought the assistance of the Consumers Association of Singapore (Case) to negotiate for an amicable settlement with the car dealer.

Unfortunately, a settlement could not be reached and the case was subsequently filed at the Small Claims Tribunals.

We encourage consumers to exercise due care and diligence when purchasing second-hand cars.

One way is to send the car for evaluation at a professional evaluation centre to uncover any inherent defects at the point of purchase and minimise their chances of purchasing a "lemon".

Consumers can download a copy of the Standard and Functional Evaluation Checklist from the Case website.

Lim Biow Chuan

President

Consumers Association of Singapore


The Lemon Law applies even if businesses do not explicitly provide warranties for the goods they sell.

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Administration of Muslim Law Act - Administration of Muslim Law (Halal Certificates) (Amendment) Rules 2018 (S 013 of 2018)

Committee to study the regulation of fake news in Singapore

Legislation
23 Jan 2018

Enhancing access to family justice

Straits Times
10 Feb 2018

We thank Ms Rebecca Tan Choi Li for her letter (Make family court processes more user-friendly; Feb 4).

Since the formation of the Family Justice Courts (FJC), the most impactful change it has introduced has been a simplified route for uncontested divorce cases.

Based on our records, 49 per cent of all divorce cases were filed under the simplified track in 2017. Of these, 83 per cent have been resolved as at the end of last year. Cases on average took less than a month to resolve.

In July, FJC opened a one-stop Family Protection Centre providing parties a safe and private setting to lodge their complaints and seek guidance.

It also launched iFAMS, which allows parties seeking protection orders to submit their complaints at any of the three designated Family Violence Specialist Centres, without having to come personally to FJC to commence the proceedings.

FJC handles a large number of calls daily. It has a system to log in calls and to follow up on them.

Ms Tan also asked about statistics and outcomes of past cases. FJC's caseload statistics are available in the annual report on its website, while Supreme Court judgments are published on the Singapore Law Watch website.

As FJC is a neutral adjudicating body, its officers cannot give legal advice to parties. Hence, it has the Community Justice Centre HELP centre at its premises to offer help and referral service to litigants-in-person who cannot afford legal representation.

We are mindful that self-represented litigants make up a significant proportion of our family court users and constantly strive to make processes more transparent and user-friendly. Given the nature and complexity of family disputes, it may not be possible to simplify.

To help us better understand the problems experienced by Ms Tan's friends, we would like to invite her to contact Mr Yeo Seow Aik at YEO_Seow_Aik@fjcourts.gov.sg to see how FJC can further improve its services.

Chia Wee Kiat

Registrar

Family Justice Courts

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Gas Act - Gas (Gas Importer’s Licence) (Exemption) Order 2018 (S 012 of 2018)

Singapore International Commercial Court to have jurisdiction over litigation related to international commercial arbitration

Legislation
23 Jan 2018

PAP MPs told not to write to courts

Straits Times
10 Feb 2018
Yasmine Yahya

The ruling People's Action Party (PAP) has told its MPs not to write to the courts on behalf of their constituents so as to "avoid any doubt or public misperception" about the separation of powers between the different branches of government.

In an internal memo yesterday, party whip Chan Chun Sing said PAP MPs have, as a norm, refrained from writing to the courts on behalf of their constituents.

"When approached by constituents over matters that come before the courts, PAP MPs may write to MinLaw (on procedural issues) and Attorney-General's Chambers (on prosecutorial issues)," he wrote. "This has been the general practice, and will remain so."

Should the MPs need assistance on exceptional cases or further advice on the matter, Mr Chan said they should approach the party whip and the Ministry of Law. The memo was released to the media.

The question of when MPs should write to the courts arose after a judge took issue with a letter by Sengkang West MP Lam Pin Min to the State Courts, which downplayed a motorist's culpability in a traffic accident.

In judgment grounds released two weeks ago, Justice See Kee Oon highlighted the misrepresentation of facts as "somewhat troubling".

Last week, in response to queries from The Straits Times, Mr Chan said MPs should write letters of appeal directly to the courts on behalf of residents only in "urgent cases".

"In urgent cases, such as if the court hearing is in the next few days, MPs may sometimes use their discretion to give letters by hand to residents to be used in court," he had said.

The discussion prompted a retired district judge, Mr Low Wee Ping, to write in to The Straits Times Forum page on the matter.

In the letter published on Tuesday, he said that when he was the Subordinate Courts' registrar in the 1980s, he was instructed by then Chief Justice Wee Chong Jin to ignore such MP letters and not send them to the judges, and to return them to the PAP whip.

He wrote: "The reason, I was told, was that founding Prime Minister Lee Kuan Yew had instructed all MPs (in writing) that they should not be writing such letters to the courts."

Mr Lee's view was that such practices would blur the separation of powers between the legislative, executive and judicial branches of government, added Mr Low.

In his letter yesterday, Mr Chan said the separation of powers has never been in question, even when the courts have received a letter from an MP, directly or indirectly.

Mr Chan also stressed: "The courts are in the best position to evaluate, holistically and impartially, the evidence presented and the merits of a case as well as have clear and strict procedures to uphold the independence and integrity of the judicial process."

Several PAP MPs said the memo made the party's position on the matter very clear.

Mountbatten MP Lim Biow Chuan said if residents were to ask MPs to write to the courts directly on their behalf, the MPs would have to explain that they are not in a position to do so.

Tampines GRC MP Baey Yam Keng said: "That is the way we have built our system, and it is our responsibility to uphold that."

Dr Lam could not be reached for comment.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Planning Act - Planning (Exemption under Section 53) Notification 2018 (S 011 of 2018)

Singapore Expected to Introduce Deferred Prosecution Agreement Regime

Legislation
22 Jan 2018

Lawyer rapped in Saudi envoy's failed Court of Appeal bid

Straits Times
09 Feb 2018
Selina Lum

'Self-evident' that questions not those of law of public interest; lawyer ordered to pay costs of $5k

A Saudi Arabian diplomat, who is in jail for groping a hotel intern, yesterday failed to take his case to the Court of Appeal, while his lawyer was ordered to personally pay costs of $5,000 for an "improper and unreasonable" application.

Bander Yahya A. Alzahrani, 40, was sentenced to 26 months and a week's jail and four strokes of the cane in February last year for molesting a 20-year-old employee at a Sentosa hotel while he was here on holiday with his family.

His appeal against his conviction and sentence was dismissed by the High Court in July. He started serving his jail term on Aug 11.

Despite exhausting his avenues of appeal, he filed an application for leave to refer three questions to the Court of Appeal, in a procedure reserved for questions of law of public interest. The first question related to the issue of a lawyer who acts contrary to his client's instructions. The second and third dealt with whether expert opinion was necessary to determine the state of mind of an alleged victim of molestation.

Yesterday, a three-judge Court of Appeal dismissed his application, saying it was "self-evident" that all his questions were questions of fact, and not questions of law of public interest.

Alzahrani's lawyer Peter Pang was also rebuked for proceeding with the case just because his client and the Saudi Arabian Embassy had insisted on doing so. Mr Pang had argued that his client was not given a fair trial because his previous lawyer had "made an error".

But Chief Justice Sundaresh Menon said: "If counsel didn't do his job properly, the remedy lies elsewhere. You can't come here and say this is a question of law."

Deputy public prosecutors Hay Hung Chun and Kenny Yang argued that the application was a blatant abuse of process and "back-door appeal" under the guise of referring questions of law of public interest to the apex court.

The prosecutors sought costs of $5,000 against Mr Pang personally, saying that he had filed a "frivolous" application even though it was clear that it was "devoid of merit". The sum will be forwarded to the Law Society, they said.

Chief Justice Menon pointed out to Mr Pang that last November, when Alzahrani tried to ask the High Court to release him from jail pending the Court of Appeal hearing, the judge had already cautioned him that these were not questions of law. Mr Pang replied that he proceeded "because of the way I had been instructed".

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Women’s Charter - Women’s Charter (Parenting Programme) (Amendment) Rules 2018 (S 010 of 2018)

Cybersecurity Bill Tabled in Parliament – Key Amendments Made to Earlier Draft Bill

Legislation
22 Jan 2018

City Harvest case and the separation of powers

Straits Times
09 Feb 2018
Goh Yihan

Verdict provides important example of how the courts and Parliament play different roles in Singapore's legal system

The Court of Appeal last week upheld the reduced sentences passed in the City Harvest Church (CHC) case.

Six former church leaders were charged with having conspired to commit the aggravated offence of criminal breach of trust (CBT) as an "agent" under Section 409 of the Penal Code.

Departing from the earlier interpretation that had stood for the past 40 years, the court decided that Section 409 applied only to professional agents, which the former church leaders were not. The charges were reduced to Section 406, which provided for shorter terms of imprisonment.

This decision has triggered a review of our CBT laws. It is clear that Section 409, which was enacted some 150 years ago, is no longer adequate to deal with the CBT cases in the 21st century.

So, the Attorney-General's Chambers has stated that it will work with the relevant ministries on appropriate reform.

Earlier this week, the Minister for Law, Mr K. Shanmugam, reiterated the Government's intention to amend the law together, with other wide-ranging amendments to the Penal Code. Even the Court of Appeal itself acknowledged that such a reform is long overdue.

However, why couldn't the court have reformed the law itself, instead of leaving it to Parliament?

DIFFERENT ROLES

The answer is that the courts are separate from Parliament. Each exercises a different power.

As the Court of Appeal explained in a 2014 case, the courts cannot exercise legislative power - that is, the power to enact legislation - because they do not have the mandate to do so. The mandate to promulgate laws belongs to the duly elected Members of Parliament. So, the courts have declined to reform existing legislation, even when it is clear that such laws are outdated.

For example, the Court of Appeal decided in 2009 that an illegitimate child could not claim support under the Inheritance (Family Provision) Act. This Act introduced English law as it stood in 1938.

The court reasoned that when Parliament passed the Act in 1966, there was no indication that it disagreed with the prevailing English law, which denied support to illegitimate children. The court had to give effect to Parliament's intention even as it urged for reform.

Another example is when the High Court in 2005 dealt with the presumption of death under Section 110 of the Evidence Act. The applicant urged that her estranged father be presumed dead as he had been uncontactable for years.

The court dismissed the application as the applicant could not satisfy the requirement that her father had not been heard of by those who were not estranged from him. The court commented that Section 110, being enacted over 100 years ago, was in need of reform. It may be unfair to place the burden on estranged family members to show that someone else, who should have heard about the missing person, did not.

It is for good reasons that the courts do not exercise legislative powers.

For one, legislation is usually wide-ranging in scope and effect. Courts, which deal only with the cases before them, may not be well equipped to carry out such wide-ranging reforms.

Furthermore, whereas Parliament has the resources to consult with various stakeholders on the effect of legislation, the courts cannot do so as they are constrained to resolving the immediate dispute between the parties before them.

The courts are also not accountable to the electorate in the same way that Parliament is.

DIFFERENT INTERPRETATIONS

More importantly, it would affect the courts' legitimacy if they were to exercise legislative power, and compromise their role to administer the rule of law objectively.

It is therefore entirely legitimate for the Court of Appeal in the CHC case to leave the reform of Section 409 to Parliament. In not exercising the legislative power, all it could do - and did - was to interpret the law according to the prevailing intention of Parliament, as discerned from materials at the time of Section 409's enactment.

However, this is not to say that the courts do not develop the law.

Instead of legislative power, the courts exercise judicial power. By this, the courts are tasked with interpreting legislation. The courts are here concerned with giving effect to Parliament's intent at the time the legislation was enacted. Thus, developments after the legislation was enacted are generally irrelevant.

In the CHC case, it was argued by the prosecution before the High Court that since Parliament had left Section 409 untouched until now, it must have agreed with the courts' earlier interpretation that stood for over 40 years.

A majority of the High Court in the CHC case dismissed this fact as irrelevant. The Court of Appeal did not disagree with the High Court's conclusion. Indeed, it would be speculative to rely on inaction by Parliament as indicative of any overt intention.

Through interpreting legislation, the courts may sometimes advance the law. This was such in the CHC case, where a majority of the High Court and the Court of Appeal departed from the earlier interpretation of Section 409 that originated in a High Court decision some 40 years ago.

It is noteworthy that the proper interpretation of Section 409 had come before the Court of Appeal for the first time in the CHC case. It never had the opportunity to examine the meaning of Section 409 in detail before.

Being the highest court of the land, the Court of Appeal is duty-bound to give its view on the proper interpretation of Section 409. It is in this context, and after a thorough analysis that included references to the relevant legal principles, historical material and foreign case law, that the Court of Appeal disagreed with the earlier interpretation of Section 409 that had stood for over 40 years.

COMMON LAW

Indeed, courts sometimes do depart from longstanding legal positions. The Court of Appeal has the power to depart from even its own decisions, as its 1994 Practice Statement on Judicial Precedent spells out.

The courts may disagree as to what Parliament's intention is, but that does not hide the fact that they are ultimately concerned with giving effect to Parliament's intention, and not with reforming the law.

The courts also advance the law by developing the "common law". The common law, so-called because it was "common" to all of England in the past, is made by judges based on precedent.

By this process, judges develop the common law one case at a time, building on earlier cases to advance legal principles. An example is the development of the "tort of harassment" in a 2001 High Court case. The court acknowledged that the existing common law did not cater for harassing conduct outside of a person's residence. So, the court developed the common law to include a new tort of harassment, which covered wider harassing conduct.

However, the common law can be superseded by Parliament. Such was the case when Parliament enacted the Protection from Harassment Act in 2014, which codified the tort of harassment.

The CHC case may have highlighted the inadequacy of our CBT laws, but it also provides an important example of how the legislative and judicial powers are separate under our system. It is a demonstration of how our system, founded on the separation of powers, works in practice.


The CHC case may have highlighted the inadequacy of our CBT laws, but it also provides an important example of how the legislative and judicial powers are separate under our system. It is a demonstration of how our system, founded on the separation of powers, works in practice.


• The writer is dean of the School of Law at the Singapore Management University.

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Civil Aviation Authority of Singapore Act - Civil Aviation Authority of Singapore (Price Control of Aeronautical Charges) (Amendment) Rules 2018 (S 009 of 2018)

Data Protection Quarterly Update

Commonwealth
19 Jan 2018

Singapore must help shape international law: Indranee

Straits Times
09 Feb 2018
Charissa Yong

Lawyers, legal scholars can play their part as global statutes affect society, economy here

Singapore must actively help to shape international law, Senior Minister of State for Finance and Law Indranee Rajah said yesterday.

She explained that international norms and statutes increasingly determine what states can and cannot do within their borders, and therefore have a deep impact on Singapore's society and its economy.

"The impact of international law on Singapore's domestic economic and social life will continue to grow," she told 200 lawyers, diplomats and officials at the International Law Year in Review conference.

"Singapore must ensure that not only our national interests, but also our values, traditions and perspectives are brought to the table."

At the conference, organised by the National University of Singapore's Centre for International Law, the legal community discussed trends, including recent cross-border legal disputes and domestic courts dealing with more foreign and international law issues.

In her opening speech at the Mandarin Orchard Singapore Hotel, Ms Indranee made the case for why "now more than ever", Singapore lawyers need to step up to help shape international law.

She highlighted the trend of international law governing how states behave within their own borders.

For instance, international trade law allows or bans the tariffs and regulatory barriers which states may impose on goods and services.

These rules affect areas such as national development, livelihoods, domestic innovation and the ability of people to access affordable medicine, she said.

Another trend is how states are cooperating more closely when it comes to international civil law.

She cited the example of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which helps parents whose children are taken from them to another country in breach of their custody rights.

"If that country is a party to this convention, like Singapore is, the country must give the parent the right to apply to them for assistance in securing the child's return," she said.

"Today, virtually all ministries deal with international conventions, and have to consider international norms and standards in policy-making."

While the Government is actively involved in shaping international law through negotiating global legal conventions, private practitioners and academics can also play their part, said Ms Indranee.

For instance, legal scholars can influence mainstream legal thinking.

Lawyers can also contest legal norms and have them defined in courtrooms, she said.

Ms Indranee cited Singapore and Malaysia's dispute over Pedra Branca island, which the International Court of Justice in 2008 ruled belonged to Singapore.

Malaysia recently applied to revisit this decision, and "they continue to act in a manner consistent with international law", she said.

"For the Pedra Branca case, Singapore's legal team includes not only our established legal luminaries, but it also includes our next generation of legal talent.

"I look forward to seeing the next generation of movers and shakers... bring international law forward."


IMPACT OF INTERNATIONAL NORMS

Today, virtually all ministries deal with international conventions, and have to consider international norms and standards in policy-making.

MS INDRANEE RAJAH, Senior Minister of State for Finance and Law

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Common Gaming Houses Act - Common Gaming Houses (Exemption) Notification 2018 (S 008 of 2018)

Taking and documenting informed consent: When is it not enough?

Judgments
19 Jan 2018

Money courier who carried nearly S$12m into S’pore jailed for false declarations

TODAY
08 Feb 2018
Faris Mokhtar

Largest amount of cash to be moved into Singapore by an individual, court told

Over eight months in 2013 and 2014, a 47-year-old Malaysian man worked as a cash courier, carting up to hundreds of thousands of dollars into Singapore from across the Causeway each time.

Abdul Jalil Sulaiman would falsely declare the amount of money he was carrying.

By the time his ruse was up, he had couriered close to S$12 million – the largest amount of cash to be moved to Singapore.

Abdul Jalil was sentenced to 36 months’ imprisonment on Wednesday (Feb 7) for 30 counts of failing to accurately report the movements of money. Another 70 similar charges were taken into consideration.

The court heard that Abdul Jalil first couriered cash into Singapore on Sept 4, 2013, carrying S$79,000. The largest amount he brought in was S$310,165, on Jan 21, 2014.

Abdul Jalil said he worked for an Indian national and Malaysian permanent resident called Mohd Salim, who owned four or five money-changing shops in Malaysia. The authorities have not been able to verify Mohd Salim’s identity or locate him so far.

They met in 2010 and reconnected in 2013, when Mr Mohd Salim instructed Abdul Jalil to register two companies – which had no business dealings – and open four bank accounts for the firms.

Money was later deposited into those accounts, which Abdul Jalil would withdraw in order to courier the cash to Singapore. He was instructed to hand over the money to a few unnamed individuals at Serangoon Road.

Under the Corruption, Drug Trafficking and Other Serious Crimes Act, individuals who bring in money exceeding the prescribed amount of S$20,000 have to fill up a cash movement report, stating the intended recipient of the cash and the amount being moved into Singapore.

However, during each of his 100 visits to Singapore, Abdul Jalil made false declarations, under-reporting the amount of money he had.

On the afternoon of April 16, 2014, he declared he had RM150,000 in a cash movement report, but an immigration officer at the Woodlands checkpoint checked his motorcycle and found an additional RM99,400 in his backpack.

The total amount of RM249,400 (S$96,163) was seized by the Commercial Affairs Department and Abdul Jalil was arrested.

In his mitigation, Abdul Jalil, who did not have a lawyer, said Mohd Salim had paid him about RM2,500 a month and told him he would not encounter any problems.

Deputy Public Prosecutor Stacey Anne Fernandez called for a 36-month jail term and said a deterrent sentence is warranted as Abdul Jalil’s premeditated actions were carried out over a prolonged period.

He was unable to prove the money couriered was obtained through legitimate business, and had allowed money launderers to abuse Singapore’s financial system, she said.

“While the prosecution recognises that this is also not a case where the cash moved is proven to be tainted by any underlying crime, the harm where funds appear to be obtained in suspicious circumstances must be distinguished from cases where cash was obtained in legitimate forms,” said Ms Fernandez.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Conveyancing and Law of Property Act - Conveyancing and Law of Property (Conveyancing) (Amendment) Rules 2018 (S 007 of 2018)

Journals Online: Emphatic Plea for the Emphatic Judge

Business
21 Feb 2018

WP MPs’ assertions on law allowing detention without trial untrue and absurd: Shanmugam

TODAY
08 Feb 2018

Law and Home Affairs Minister K Shanmugam has taken issue with “curious” assertions made by Workers’ Party (WP) Members of Parliament during a debate earlier this week on amendments to the Criminal Law (Temporary Provisions) Act.

The WP MPs had argued that the changes not only take away the power of judicial review, but also expand the Minister’s powers — comments that Mr Shanmugam described as “untrue” and “absurd”.

Writing on Facebook a day after the lengthy debate which lasted almost four hours, Mr Shanmugam said on Wednesday (Feb 7) that some parts of the debate were “pure theatrics with no substance, calculated to mislead”.

The Act, which has to be renewed every five years, allows some criminal suspects to be detained without trial, and it was extended by Parliament for the 14th time. Amendments specifying the scope of criminal activities covered under the Act were also passed, with 77 out of 89 MPs voting “yes”. The addition of a finality clause — which states that the Home Affairs Minister’s decision on matters such as detention is final — was a concern for many MPs, who asked if this would crimp the judiciary’s powers to interfere with the Government’s decisions.

During the debate, WP chairman and Aljunied GRC MP Sylvia Lim, who is a lawyer, called the move to define the scope of criminal activities an “attempt to make the Minister all-powerful”. “This expansion of the kind of activities subject to the Act in effect makes the Minister a global policeman with no equal in the world. This is a position too arrogant for the House to support,” she said.

Mr Shanmugam responded to Ms Lim in the House by pointing out that it was not the case that a suspect can automatically be detained if the activity is listed in the Fourth Schedule. “So how does it increase the powers (of the Minister)?” he said. “Rhetoric has got to match reality, and it’s useful to read clauses carefully before making speeches.”

Mr Shanmugam added on Facebook on Wednesday: “In fact, (the move) does the opposite, by now specifying what activities are covered. There could have been no reasonable belief that it increases the Minister’s power.”

On the finality clause, Mr Shanmugam said the assertion by WP MPs that this will remove the power of judicial review was not true. “The amendments simply put into the Act, what the Court of Appeal has already said… The Minister’s decision on the facts is final, and cannot be appealed from,” he said. “And, as I repeated many times (on Tuesday), the amendments do not take away the power of judicial review set out in the Dan Tan case. That power of judicial review continues.”

He added: “Despite the clear legal position, the assertions continued. Anyone who actually read the Dan Tan case, and knew some law, will know that.”

He was referring to the case of alleged match-fixer Dan Tan Seet Eng, whose detention under the Act was ruled unlawful by the courts in Nov 2015. Tan was subsequently re-arrested and detained, but this time with the MHA establishing in detail the relevant threat in Singapore posed by him.

Still, Mr Shanmugam said he had a “good exchange” with WP MPs Pritam Singh and Dennis Tan, both of whom are also lawyers. “(A) couple of the WP MPs made points which were good to clarify,” he said.

On Tuesday, Nominated MPs (NMPs) Kok Heng Leun and Azmoon Ahmad as well as eight WP MPs — excluding Mr Chen Show Mao, who was absent from the sitting — voted against the amendments, while NMPs Mahdev Mohan and Kuik Shiao-Yin abstained from the vote.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Constitution of the Republic of Singapore - Public Service (Special and Senior Personnel Boards) (Amendment) Order 2018 (S 006 of 2018)

Competition Bites – South-East Asia & Beyond

Commonwealth
18 Jan 2018

Shaking up Singapore's transfer pricing regime

Business Times
08 Feb 2018
See Jee Chang and Lee Siew Ying

The IRAS has sent a clear signal that it is moving away from a guidance-based approach to a formal transfer pricing regime

When the Inland Revenue Authority of Singapore (IRAS) published the first edition of the Singapore Transfer Pricing (TP) Guidelines in 2006, it was a concise circular of just 42 pages. The overall messaging of the circular was friendly - it laid out the key transfer pricing concepts and guiding principles, recommending (but not mandating) taxpayers to prepare transfer pricing documentation to reduce the risk of double taxation.

Although the business community took notice - it was, after all, a major announcement from the IRAS - not many taxpayers viewed transfer pricing as a critical issue at the time, and did not see a pressing need to prepare the documentation since it was not mandatory.

A decade later, the Singapore TP Guidelines' fourth edition has 113 pages - almost three times the number of pages compared to the first edition. In 2017, the IRAS also introduced significant legislative amendments to the Income Tax (Amendment) Act to make transfer pricing documentation mandatory and impose penalties for non-compliance with effect from the Year of Assessment 2019. Through these actions, the IRAS has sent a clear signal that it is moving away from a guidance-based approach to a formal transfer pricing regime.

This time, it was not just the businesses that sat up. The recent changes to the Singapore transfer pricing regime have surprisingly also attracted comments from outside the business community.

In developed countries, transfer pricing has been particularly marked by tax authorities as the key modus operandi for multinational companies (MNCs) to shift substantial profits from high-tax jurisdictions to low-tax ones.

The numerous changes made by the IRAS to enhance the Singapore TP Guidelines over the years, and the recent legislative changes are part of IRAS's continued efforts and focus on transfer pricing compliance in Singapore. These changes also help Singapore achieve greater alignment with the transfer pricing action items under the Organisation for Economic Cooperation and Development's (OECD) Base Erosion and Profit Shifting (BEPS) initiative.

Businesses have mixed reactions to the step-up in compliance requirement for transfer pricing documentation. On the one hand, businesses generally understand that the documentation serves as robust and useful evidence to demonstrate to tax authorities that related-party transactions are conducted at arm's length. Now that the documentation is mandatory, businesses will be more mindful to prepare and maintain them, which ultimately benefits the businesses since the documentation could help in cross-border tax disputes that may arise as they expand overseas.

On the other hand, there is an additional compliance cost that could be a concern, especially for smaller businesses. In this regard, the IRAS has provided additional thresholds to reduce the compliance burden for smaller businesses; that is, only businesses with gross revenue exceeding S$10 million and significant related-party transactions are required to prepare transfer pricing documentation.

Businesses that are required to prepare the documentation will need to continue with it indefinitely unless specifically exempted from doing so. The current Singapore TP Guidelines and legislation do not offer further guidance on this but it is understood that the IRAS will be providing updated guidelines with examples to illustrate in due course. This means that businesses will need to keep abreast of these developments, not only to ensure that they comply with the latest regulations but also to avail themselves to relevant exemption thresholds so as to minimise their compliance cost.

GROWING PUBLIC INTEREST

In the past, news on changes to the transfer pricing regime in Singapore did not attract much public opinion. This is not surprising as most viewed such changes as impacting only corporate businesses and not the man on the street. However, the increased media attention and activist groups' interest in BEPS globally have resulted in political interest in tax reform, and the waves have also been hitting Singapore's shores.

For example, when the recent Income Tax (Amendment) Bill 2017 was read and debated in Parliament on Oct 2, 2017, Louis Ng Kok Kwang, Member of Parliament for Nee Soon, singled out the changes to the transfer pricing legislation. He asked if the IRAS will be providing reasons for determining that a transaction was not conducted at arm's length, and sought the Minister for Finance to also consider introducing a safe harbour margin for intercompany guarantees in addition to the existing indicative loan margin for related-party loans. Indranee Rajah, Senior Minister of State for Finance, responded that the IRAS will take this into account in its periodic review of the transfer pricing guidelines.

Mr Ng also called for the imposition of personal liability on the officers of the company who fail to comply with transfer pricing documentation requirements, as he deemed this to be a more effective method to ensure compliance. He also proposed that higher penalties be imposed for companies that provide false or misleading transfer pricing documentation, to reflect the higher degree of culpability. In response, Ms Rajah said that IRAS will monitor businesses' behaviours after the implementation of the TP Guidelines and evaluate the effectiveness of the penalties. If need be, the IRAS will strengthen them.

One thing is certain - transfer pricing documentation is now a necessity for both businesses and the general public. A robust and contemporaneous transfer pricing documentation serves to demonstrate, to the tax authorities and the general public alike, that businesses have been above board in their related-party transactions. The general public can then be assured that businesses contribute their responsible share of taxes, helping to fund the delivery of public services and support the country's development.

As expectations from the general public for tax transparency evolves, MNCs that are perceived as not paying their fair share of taxes are increasingly put into the spotlight. "Tax shaming" has become very real, and businesses would need to monitor their reputational risk arising from the potential impact.

As the scrutiny on transfer pricing practices is not likely to go away any time soon, businesses should put in place measures - beginning with preparing transfer pricing documentation - to proactively deal with this new environment.

  • The writers are respectively transfer pricing leader and tax senior manager at Deloitte Singapore. The views expressed are their own.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Military Manoeuvres Act - Military Manoeuvres (Firing Ground) Proclamation 2018 (S 005 of 2018)

Technology, Media and Telecommunications Regional Update: A Recap from May 2017 to December 2017

Commonwealth
18 Jan 2018

Law on criminal detention without trial extended

Straits Times
07 Feb 2018
Tan Tam Mei

A law that allows the detention of criminal suspects without trial has been extended for another five years from Oct 21 next year - but not without a heated debate in Parliament.

Over four hours yesterday, 11 MPs spoke on the Criminal Law (Temporary Provisions) (Amendment) Bill, raising concerns over issues such as the powers it now gives the Home Affairs Minister.

While this is the 14th time the law has been extended, the latest version includes changes such as giving the minister the final say on whether detention is necessary for reasons of public safety, peace and good order.

Of the 89 MPs present, 10 voted against the Bill, and two abstained.

Those who voted "no" included all eight MPs of the Workers' Party who were present. The party had supported the Bill during previous extensions. The remaining two dissenters were Nominated MPs Kok Heng Leun and Azmoon Ahmad. NMPs Mahdev Mohan and Kuik Shiao-Yin abstained.

There was some drama over the voting itself, with the electronic system mixing up Workers' Party MP Muhamad Faisal Manap - who had voted no - and People's Action Party MP Muhammad Faishal Ibrahim - who had voted yes. The second time, Deputy Prime Minister Tharman Shanmugaratnam's "yes" vote was not registered.

The debate began with Home Affairs and Law Minister K. Shanmugam seeking to explain the proposed amendments to the Bill. They included prescribing a list of offences that will come under the Act: secret society activities, unlicensed moneylending, drug trafficking, kidnapping and organised crime.

"We decided to list the types of criminal activities. There is more certainty and clarity in such an approach," said Mr Shanmugam.

The move to amend the 63-year-old Act follows the Court of Appeal's decision in 2015 to free alleged match-fixing kingpin Dan Tan. The court had said it did not accept that the Act "has a loose or open-ended remit". It noted that while Tan may have run an international match-fixing syndicate from Singapore, his activities did not pose a threat to public safety, peace and good order here.

The Act is traditionally used in situations where it is not possible to prosecute because witnesses, for instance former secret society members, are fearful or unwilling to testify for fear of reprisal.

Other changes to the Act include a clause that now makes the minister's decision on the facts of the case under the Act final. It cannot be appealed or substituted.

A number of MPs rose to query Mr Shanmugam about this, with Mr Louis Ng (Nee Soon GRC) and NMP Kok asking if this meant judicial review is now excluded.

The minister said the provision was not new and has always been accepted by the courts. "It does not oust judicial review," he stressed.

He said the courts can still review the decisions based on the traditional tests of illegality, irrationality and procedural impropriety.

Mr Shanmugam also tackled questions over whether listing the offences under the Act would increase the powers of the minister and reduce pressure to explain and justify each detention.

He said the minister would now have to fulfil two criteria: that requirements under an existing Section 30, that lays out the grounds for detention, are satisfied, and that the offence is listed.

"So, the detainees are no worse off, the minister is no better off. The same requirements continue. In addition, the minister has got to show that it is listed in the schedule. So, how does it increase the powers (of the minister)?"

Other changes included appointing sitting Supreme Court judges as chairmen of independent advisory committees that review police supervision and criminal detention orders, from March this year.

Mr Shanmugam said: "Having judges who are independent adds considerably to the robustness of the process."

Mr Murali Pillai (Bukit Batok) queried why the Ministry of Home Affairs was seeking an early extension of the Act which would only expire in Oct 20 next year. To this, Mr Shanmugam said they had decided to include the extension along with the proposed amendments.

"The sooner, the better we move in line with everything else... So, we put it all together and because we are coming to Parliament for the amendments, we said let's ask for another five years at the same time."

Mr Shanmugam said the Act helps to maintain public safety and order. "The Act is an essential tool in our arsenal," he added. "The path we have taken is good for society."


MORE CLARITY

We decided to list the types of criminal activities. There is more certainty and clarity in such an approach.

HOME AFFAIRS AND LAW MINISTER K. SHANMUGAM


KEEPING PUBLIC SAFE

The Act is an essential tool in our arsenal. The path we have taken is good for society.

MR SHANMUGAM

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Military Manoeuvres Act - Military Manoeuvres (Cessation of Firing Ground) Proclamation 2018 (S 004 of 2018)

Opportunities for Venture Capital Investments in Singapore in 2018

Business
17 Jan 2018

Changes to Act troubling and premature, says WP

Straits Times
07 Feb 2018
Ng Jun Sen

The Workers' Party (WP) yesterday opposed changes to a law that allows the Minister for Home Affairs to detain and supervise criminal suspects without trial, calling the move troubling and premature.

Aljunied GRC MPs Sylvia Lim and Pritam Singh and Non-Constituency MP Dennis Tan - all lawyers - voiced the party's dissent during a four-hour-long debate over the Bill to amend the Criminal Law (Temporary Provisions) Act (CLTPA).

They contended that the amendments would curtail judicial oversight, increase the minister's powers and expand the reach of the Act beyond its original intention of protecting Singapore's safety - contrary to Law and Home Affairs Minister K. Shanmugam's assertion that the changes would define and limit the minister's powers.

Ms Lim said: "During past renewals of this Act, the WP has accepted the uncomfortable compromise that this law entails on the constitutional right to freedom. We did not delight in taking this position, but did so with a heavy heart. This time, however, our view is that the Government has gone too far."

The party's five MPs and three NCMPs voted against the Bill. Mr Chen Show Mao (Aljunied GRC) was not present during the vote.

WP MPs took issue with a new clause stating that the minister's decision to detain or supervise a person - in the interest of public safety, peace and good order - is final. Mr Singh said this "finality clause" limits judicial review as it stops judges from probing into the facts of the case.

He added: "The evolution of the law on judicial review has required judges to make more, not less, inquiries on the facts and circumstances of a matter at hand... It would appear intuitively logical for judges to have maximum access to the minister's or executive's thought processes, even if they cannot replace it with their own."

Mr Tan said the clause removes the right of detainees to ask if the "minister was right" in deciding to associate them with the offences under the Act, and to detain or subject them to police supervision.

Ms Lim pointed out that no minister has sought a finality clause for the Act since its inception 60 years ago. "We find this very troubling," she said of the change in approach. During the debate, Mr Shanmugam reiterated multiple times that the clause does not "oust" judicial review.

Ms Lim also objected to the addition of a Fourth Schedule, which prescribed a list of offences under the Act's ambit to include those covered by the Organised Crime Act (OCA). She disagreed with Mr Shanmugam that the schedule limited the minister's powers, arguing that it achieves the opposite effect instead. The OCA covers offences such as fraud and illegal gambling, which should not require detention without trial, she noted.

As the OCA also includes offences committed overseas, she said the CLTPA would thus cover transnational crimes as well - which goes against the Act's intention to target offences that threaten public safety, peace and order within Singapore.

Ms Lim said: "In effect, the Bill makes the minister a global policeman, with no equal in the world. This is a position too arrogant for this House to support."

She also said it is "premature" to renew the CLTPA now, given that the previous two renewals in 2009 and 2014 were debated between one and eight months before their expiry dates. In the current five-year cycle, the Act expires in 20 months' time, in October 2019. "WP would have been prepared to support the renewal if not for these changes (to the Act)," Ms Lim said.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Jurong Town Corporation Act - Jurong Town Corporation (Composition of Offences) Regulations 2018 (S 003 of 2018)

Beware the Boiler-Plate Indemnity

Judgments
17 Jan 2018

MPs question premature extension and whether Singapore could rely less on detention without trial

Straits Times
07 Feb 2018
Tan Tam Mei

Premature extension

Mr Murali Pillai (Bukit Batok) and Ms Sylvia Lim (Aljunied GRC) raised concerns that Parliament was being asked to extend the Act prematurely when it was only due to expire on Oct 20 next year.

Mr Murali said the sunset clause was a safeguard to ensure periodic scrutiny by Parliament before approving an extension that lapses every five years.

"Seeking an extension too early before expiry of the Act thus reduces the effect of the safeguard, as Parliament would not have benefit of being apprised of the most current security situation in Singapore close to the expiry of the Act, to decide whether to extend it," he said.

What Mr Shanmugam said: The Government decided to include the extension along with the proposed amendments.

Listing offences may reduce pressure for full justification

Mr Louis Ng (Nee Soon GRC) asked whether the listing of offences in the Act would reduce the pressure for explanations and justifications for criminal detention.

"The minister may simply be tempted to point at the list of offences as the basis for the decision," he said.

Mr Murali also asked if spe-cifying the list of the type of criminal activities under the Act would "unduly tie down the minister's hands" and make the authorities "less nimble in tackling the evolving types of cri-minal activities".

What Mr Shanmugam said: The minister would now have to fulfil two criteria: Existing criteria for detention, and that the offence is listed on the schedule.

Relying less on detention without trial

NMP Kok Heng Leun and Mr Ng both asked if there was room to re-evaluate the necessity of the Act.

Mr Kok said there have been proposed amendments to the Evidence Act and the Criminal Procedure Code to enhance protection of witnesses. The recent Cybersecurity Bill also contained provision to protect informants, he said.

Mr Kok said: "(We should) consider tweaking witness protection methods to better protect witnesses to offences for which the Act is applicable, rather than continue relying on detaining individuals without trial as part of the overall security strategy."

Mr Ng also asked if there was a need for the Act to list offences that were already dealt with under their respective legislation. Instead he asked whether it was possible that other legislation be amended instead to address the difficulty in securing witness testimony in open court and lessen the need to rely on the powers of the Act.

What Mr Shanmugam said: Suggestions to amend other legislation to secure witness testimony had been considered but were found to be "not workable".

Tan Tam Mei

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Jurong Town Corporation Act - Jurong Town Corporation (Common Property) Rules 2018 (S 002 of 2018)

SICC to Hear Applications under the International Arbitration Act

Legislation
16 Jan 2018

Man says 'sorry' for posting doctored news on Facebook

Straits Times
07 Feb 2018
Seow Bei Yi

He uploaded City Harvest article with false headline; apology follows AGC letter to him

A man who uploaded a doctored newspaper report on Facebook, suggesting a lawyer - who is an MP from the People's Action Party (PAP) - saved the six people accused in the City Harvest Church case from harsher sentences, has apologised on social media.

Mr Neo Aik Chau, 38, a delivery driver, posted the apology on his personal Facebook page yesterday, saying he was wrong to have made the post. He also apologised in at least two other Facebook groups, but not on the public page where he had uploaded the report with a doctored headline.

Mr Neo's social media apologies came a day after the Attorney-General's Chambers (AGC) wrote to him about the false report.

Writing in Chinese on his personal Facebook page, Mr Neo said he "truly made a mistake".

"I spoke frankly without thinking," he wrote. "I swear not to post anything like this again! Please forgive me!" In a separate post in a Facebook group, he said he was not scandalising the court.

On Monday, Home Affairs and Law Minister K. Shanmugam said the AGC considers the Facebook post of the doctored article a case of contempt by scandalising the courts. Later the same day, the AGC said that contempt of court in its various forms harms the proper administration of justice in Singapore, and that it would take firm action against such instances.

Originally posted on a public Facebook group whose name in Chinese translates to "Policy discussion forum", Mr Neo's post was of Chinese-language daily Lianhe Wanbao's Page 1 report but with a false headline.

The original headline said an outdated law saved church founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them, referring to Mr Edwin Tong, an MP for Marine Parade GRC who was Kong's lawyer in the criminal trial.

Shin Min Daily News, a Chinese newspaper, reported yesterday that Mr Neo said he was intrigued by coffee-shop chatter over the City Harvest verdict. "I was feeling inspired. Using a mobile application, I wrote a new headline," he told the newspaper. "I'd only meant to put it on the Facebook group as a talking point, and did not have malicious intent. I didn't think it would be reposted."

Lianhe Wanbao editor Goh Sin Teck said on Monday that the paper handles news in a serious and responsible manner. "However, our news headline was spoofed by others," he added. "This is definitely not creativity and is a type of behaviour with malicious intent, attempting to mislead the public. It should be condemned."

The false Wanbao headline (left), saying a PAP lawyer "saved" the six accused, and the actual headline (right). PHOTO: SCREENGRAB FROM FACEBOOK/LIANHE WANBAO

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Jurong Town Corporation Act - Jurong Town Corporation (Transfer Date) Order 2018 (S 001 of 2018)

New Healthcare Services Act in 2018

Legislation
15 Jan 2018

Law will be amended to plug gap in criminal breach of trust penalties: Shanmugam

Business Times
06 Feb 2018

The Government will amend the law soon to ensure that legislation provides for higher penalties for directors and other senior officers who commit criminal breach of trust (CBT), said Minister for Home Affairs K Shanmugam, in the wake of a court ruling which resulted in lower sentences in the high-profile City Harvest Church case.

"We hope to make the amendment together with the other wide-ranging amendments to the Penal Code," he told Parliament on Monday.

Last Thursday, the Court of Appeal upheld a ruling made by the High Court in April last year that Section 409 of the Penal Code, which provides for heavier punishments for certain classes of people who commit CBT, cannot be applied to City Harvest founder Kong Hee and five others who misused millions of church funds.

On Monday, Mr Shanmugam told the House that the apex court's ruling was contrary to the legal position that has been applied by the courts in Singapore for the past 40 years, following a 1976 High Court decision that company directors are liable for aggravated liability under Section 409.

There are at least 16 reported court decisions, and many other unreported decisions, reflecting this principle, said Mr Shanmugam.

The apex court's decision means that there is now a lacuna, or a gap, in the law, he added.

As the law now stands, company directors or key officers of charities can no longer be charged under Section 409, which carries the maximum of life imprisonment.

They can only be charged under Section 406, which is punishable by up to seven years' jail.

However, ordinary employees are covered under Section 408, which provides for up to 15 years' jail.

Mr Shanmugam highlighted that the Court of Appeal acknowledged this gap in the law in its judgment, saying that there was no "good policy reason" to ignore the "heightened culpability" of directors and key officers of charities and societies.

Describing it as "common sense", Mr Shanmugam said the Government's policy is clear: A senior officer or director in the organisation who is in a position of greater trust should be more culpable if that trust is abused.

Although the Government believes that the sentences are too low, Mr Shanmugam said the court's decision should be respected and that judges should not be personally attacked.

Mr Shanmugam stressed he was aware that many have expressed their dissatisfaction with the outcome. Netizens have said that the judges let off the rich, or that some judges were lenient because they were Christians.

He said comments should not "sink to the level of abuse, insult and contempt".

"That is not right. Judges should not be personally attacked... just because people do not agree with their decisions," he said.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Income Tax Act - Income Tax (Singapore — Sri Lanka) (Avoidance of Double Taxation Agreement) Order 2017 (S 808 of 2017)

False Salary Declaration Offences Under the Employment of Foreign Manpower Act

Legislation
15 Jan 2018

Business costs, privacy concerns raised as Parliament passes landmark Cybersecurity Bill

TODAY
06 Feb 2018
Kenneth Cheng

A landmark Bill to fortify Singapore’s essential services against cyber attacks was passed into law on Monday (Feb 5), but not before Members of Parliament raised some concerns. These included compliance costs for businesses that could be passed on to consumers, and whether the measures would infringe on personal data.

Under the Cybersecurity Bill, owners of critical information infrastructure in 11 key sectors that provide essential services must report cyber-security incidents and provide information to the Commissioner of Cybersecurity. This is so that the authorities may assess the impact or potential effects of an incident, and prevent other incidents from happening, for instance.

Industries with critical information infrastructure are those dealing with energy, water, banking and finance, healthcare, transport (including land, maritime and aviation), infocomm, media, security and emergency services, and government.

The Commissioner — who is the chief executive of the Cyber Security Agency of Singapore (CSA) — is also given powers to investigate cyber-security incidents, categorised according to the seriousness of the threat and the responses needed.

Owing to the interconnectedness of computer systems, the CSA will also have the authority to investigate threats relating to systems in Singapore, including those that are not deemed critical information infrastructure.

COMPLIANCE COSTS

On Monday, 19 MPs rose to speak during the three-hour debate on the Bill.

A number among them touched on the costs that businesses — including small and medium-sized enterprises (SMEs) — may have to bear in enhancing cyber-security measures.

Talking about the “exorbitant” costs of audits, reporting and risk assessments, Nominated MP Mahdev Mohan asked if the Government had plans to minimise added compliance costs borne by firms.

Pointing to data revealed during a recent proposal to amend the United States Homeland Security Acquisition Regulation, he said that putting in place cyber-security rules includes having independent assessments that could cost a company more than US$150,000 (close to S$200,000), and up to US$350,000 in equipment costs to carry out continuous monitoring.

“If these processes are not properly managed in Singapore, considerable sums could be unproductively spent,” Assistant Professor Mohan said.

Mr Zaqy Mohamad (Chua Chu Kang GRC), said that consumers would be concerned if these costs trickle down to them.

In response, Communications and Information Minister Yaacob Ibrahim said that the Government bears much of the cost to burnish cyber-security and strengthen responses to threats at the national level, including regular cyber-security exercises and deploying national cyber-incident response teams to counter threats.

Many critical information infrastructure owners already have cyber-security measures in place as a result of regulations in sectors such as banking and finance, he noted, adding that the requirements under the Bill were “carefully scoped and are considered not too onerous”.

Acknowledging that the Bill would have cost implications for some owners of critical information infrastructure, Dr Yaacob said that the authorities would work with the sector regulators to streamline the cyber-security and incident-reporting processes, so as to minimise regulatory costs where possible.

He urged owners and their vendors to consider not only the costs of putting the measures in place, but also the cost of potential breaches, which could dent their reputations. “If organisations follow security-by-design practices, they will spend less overall in the long run to fix cyber-security issues,” he said.

MPs also raised concerns that requirements under the Bill and investigations into systems could encroach on the privacy of individuals, especially when they contain sensitive personal data, such as health records held by insurance firms.

Dr Yaacob assured the House that the measures and requirements under the Bill are mainly technical, operational or procedural in nature and are “non-intrusive with respect to personal privacy”. Any information required to deal with threats would also be “primarily technical and not personal”, he added.

ACCOUNTABILITY FOR OVERSEAS SYSTEMS

Aljunied GRC MP Pritam Singh from the Workers’ Party noted that some entities hosting critical information infrastructure have parts of their systems located overseas, and asked how the Bill ensures that this does not render such infrastructure susceptible to cyber attacks.

Ms Sun Xueling (Pasir Ris-Punggol GRC) asked how owners of critical information infrastructure that have systems housed away from Singapore would be held accountable for their cyber-security responsibilities.

Dr Yaacob said that a significant majority of critical information infrastructure is based wholly or partly in Singapore, and owners of systems that are partly based here would still have to comply with the laws.

While some systems serving important functions here may be located outside Singapore completely or operated by organisations based abroad, Dr Yaacob said that the Government cannot control such systems as they fall outside the country’s jurisdiction. There could also be potential conflicts with regulatory regimes in other countries.

The authorities have, however, forged strong global partnerships and links with overseas computer emergency response teams to aid in investigations into incidents.

Non-Constituency MP Daniel Goh and Nee Soon GRC MP Louis Ng suggested that the Bill mandate the reporting of all cyber-security breaches, but Dr Yaacob said that this would be resource-intensive for the CSA and firms, especially SMEs.

Other features of the Bill include a licensing framework for providers of penetration testing and managed security operations centre monitoring services.

A public consultation exercise on the draft Bill, held between July and August last year, drew 92 submissions. Of these, 61 were from companies and 13 from associations.

After the exercise, the authorities dropped plans to license individual cyber-security practitioners as part of the Bill. Instead, the CSA will work with the industry to establish voluntary accreditation and certification regimes to raise the quality of cyber-security services.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Securities and Futures Act - Securities and Futures (Offers of Investments) (Business Trusts) (No. 2) (Amendment) Regulations 2017 (S 807 of 2017)

Rule against penalties: State of the law in Singapore

Judgments
12 Jan 2018

AGC probing doctored news on Facebook

Straits Times
06 Feb 2018
Seow Bei Yi

The Attorney-General's Chambers (AGC) is looking into a doctored newspaper report on Facebook that claims a lawyer, who is an MP from the People's Action Party (PAP), saved the people accused in the City Harvest case from harsher sentences.

Home Affairs and Law Minister K. Shanmugam said yesterday that the AGC considers this a case of contempt by scandalising the courts.

The AGC said separately that it had written to Mr Neo Aik Chau about the post he published last Friday on a public Facebook group, whose Chinese name translates to "Policy discussion forum".

It added: "Contempt of court in its various forms harms the proper administration of justice in Singapore. AGC will take firm action against contempt of court, including institution of committal proceedings in appropriate instances."

Mr Shanmugam had brought up the matter when replying to Mr Gan Thiam Poh (Ang Mo Kio GRC). The MP had asked for the Government's response to people's comments on the case, which involved the misuse of millions of dollars of City Harvest Church funds for the pop music career of Sun Ho, or Ms Ho Yeow Sun, wife of senior pastor Kong Hee.

Some claimed the court had let the rich off lightly while others said the lawyer, Mr Edwin Tong, a PAP MP, got them lighter sentences.

Mr Shanmugam said he has asked the police to take a serious view of those who scandalise the court.

He stressed that people who do not agree with a court decision should not make personal attacks on the judges or challenge their integrity. He warned that those who do face the possibility of prosecution.

The newspaper report posted by Mr Neo was taken from Chinese evening daily Lianhe Wanbao. The original headline of the Page 1 article said an outdated law saved the church's founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them from heavier sentences.

The Wanbao report was on the Court of Appeal's decision to uphold a High Court ruling that Section 409 of the Penal Code cannot be applied to the six accused. The section provides for heavier punishments for certain groups of people who commit criminal breach of trust.

Mr Shanmugam said the Facebook post was made to look as if a mass circulation paper had written it, "probably to give more credence to the headline".

When contacted, an administrator of the Chinese-language Facebook group said it had nothing to do with the doctored post and declined to comment. The group, which has more than 4,500 members, carries posts on current affairs, with screengrabs and links to articles from media outlets, including Channel NewsAsia and Lianhe Zaobao.

Comments accompanying the doctored report, which has been posted more than once, include one with a photograph of Prime Minister Lee Hsien Loong with Chinese words slapped on it, which read: "The judges have to give face to our party's lawyer."

Mr Shanmugam said: "AGC takes the view that the suggestion from the fake title is that, the PAP MP was responsible for an unfair, unjust outcome and the courts had let off the defendants lightly because of him."

He also said "the matter is with AGC, and it will be dealt with in accordance with the law". In deciding whether to prosecute, he said, factors considered include who came up with the statement, how seriously people will take it, and how widely it is distributed.

The doctored post has been removed from the Facebook group.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Securities and Futures Act - Securities and Futures (Offers of Investments) (Shares and Debentures) (Amendment) Regulations 2017 (S 806 of 2017)

Amendments to the Regulatory Regime for Venture Capital Managers

Business
12 Jan 2018

MPs quiz Shanmugam on City Harvest case

Straits Times
06 Feb 2018
Selina Lum

MS CHENG LI HUI (Tampines GRC) asked why the Government had not amended the law earlier, noting that the Court of Appeal had said that a review is long overdue.

Mr Shanmugam replied that since the High Court's decision in a 1976 case, the position has been "settled, clear law", with at least 16 decisions reported in the law books confirming that decision over the years.

The position had been consistently applied by the courts over 40 years, with no doubts or uncertainty expressed.

"Prosecution, defence, everyone proceeded on that basis. And there was no suggestion that the law was in need of any review. There was, therefore, no reason for Parliament to review the position or amend the law. Parliament does not legislate in vain," he said.

MR GAN THIAM POH (Ang Mo Kio GRC) asked about comments questioning why the courts had changed their position, given that the precedent had been in place for so long. Mr Shanmugam quipped that he will send Mr Gan a copy of the court judgment online, as it is more than 150 pages.

He noted that the judges felt that when Section 409 of the Penal Code was drafted, it could not have been the intention of the drafters to deal with directors because company law at the time had not developed to the extent that it has now.

Section 409 provides for harsher penalties for certain classes of people who commit criminal breach of trust, including "agents". For the past 40 years, it has been used to charge directors after the 1976 High Court decision that directors fall under the scope of "agents".

But the court has now ruled that "agents" referred to professional agents in the 19th century, and as such, the provision does not cover directors and key officers in the modern context.

"There are different approaches to interpretation. The other approach is to say, well, you take those words and you apply it as circumstances evolve," said Mr Shanmugam.

He added that the court had also explained why it did not want to do that. In its judgment, the judges concluded that the task of law reform should be left to Parliament as the courts are "ill-suited, and lack the institutional legitimacy, to undertake the kind of wide-ranging policy review of the various classes of persons who deserve more or less punishment for committing CBT in the 21st century".

The court highlighted problems with the definition of "agents" proposed by the prosecution, noting that it would penalise low-level workers while excluding many categories of people deserving of greater punishment, such as trustees.

MR YEE CHIA HSING (Chua Chu Kang GRC) noted that CHC founder Kong Hee's wife Ho Yeow Sun was a "key beneficiary" but had not been charged. He asked if penalties will be introduced such that the beneficiary of proceeds from a CBT case can also be charged.

Mr Shanmugam noted that a beneficiary who receives proceeds without the appropriate knowledge does not automatically become a criminal. "Supposing the person took the money and donated it to a charity, another charity. Does the recipient commit a criminal offence? I think we need to be careful," he said.

He said that the law is currently broad enough to deal with people who act with criminal intention.

MR VIKRAM NAIR (Sembawang GRC) asked if this case will have a big impact on future cases.

Mr Shanmugam said that for cases involving directors or senior officers that are already before the courts, the law as determined by the Court of Appeal will apply to them.

For the cases which are being investigated, the Attorney-General's Chambers will have to take into account the decision in considering the appropriate charges to be brought, he said.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Administration of Muslim Law Act - Administration of Muslim Law (Muslim Converts) (Amendment) Rules 2017 (S 805 of 2017)

Supreme Court Note: Re: Attilan Group Ltd [2017] SGHC 283 (the applicable test for grant of super-priority for rescue financing under s 211E of the Companies Act (Cap 50, 2006 Rev Ed)

Supreme Court Note
12 Jan 2018

The applicant, a locally incorporated company listed on the main board of the Singapore Exchange, sought the Court’s leave to convene a meeting of its creditors to consider a scheme of arrangement under s 210(1) of the Companies Act (Cap 50, 2006 Rev Ed) (“CA”), as well as for super priority to be granted under the recently introduced s 211E of the CA.

Given that this is the first decision on s 211E, the High Court judgment is of particular note for the requirements to be met for super priority to be granted for rescue financing. The Court noted that for an application for super priority to be granted: (1) the proposed financing must constitute “rescue financing” under s 211E(9) of the CA; (2) the applicant must meet the condition(s) under one of the limbs specified in s 211E(1); and (3) it must be a case where the court decides to exercise its discretion to grant super priority: see [53] of the judgment.

The funds for which rescue financing was sought concerned the issue of unsecured equity-linked redeemable structured convertible notes to an intended subscriber (“the Subscriber”) under a subscription agreement (“the Subscription Agreement”). As a result of the applicant’s failure to meet the condition precedent in the Subscription Agreement, the Subscriber was contractually entitled to terminate the agreement. Notwithstanding that, the Subscriber indicated its willingness to subscribe further under the Subscription Agreement if amongst others, super priority was granted to its funds. The applicant accordingly sought for subsequent sums disbursed by the Subscriber to be treated as “rescue financing” and be given super priority.

One threshold issue that was discussed in the judgment was whether “rescue financing” can be in the form of a proposed financing by an existing creditor with an erstwhile obligation to provide financing which no longer subsists. Drawing support from parliamentary debates, the Court decided the question in the affirmative and reasoned that it was not necessary for the proposed financing to be entirely new – as long as the injection of funds was at the option of the creditor, the funds will qualify as “rescue financing”: see [77] of the judgment.

In its super priority application, the applicant relied on the limbs of either ss 211E(1)(a) or 211E(1)(b) of the CA. Given Parliament’s indication that the rescue financing provisions in Singapore were adapted from the Bankruptcy Code 11 USC (US) in the US, the Court analysed several decisions from the United States in ascertaining the ambit of these two limbs. Preliminarily, the Court made it clear that the decision to grant super priority under any of the limbs in s 211E(1) is in the full discretion of the courts: see [59] of the judgment.

For s 211E(1)(a), the Court noted that whilst it is not a condition for the applicant to show unavailability of other funds in order to obtain super priority, it is prudent for an applicant to nevertheless adduce some evidence of reasonable attempts at trying to secure financing on a normal basis, ie, without any super priority. This would be a relevant consideration in the exercise of the court’s discretion to grant super priority. The Court stated that this is justified in policy. Since super priority disrupts the expected order of priority of the creditors, it is only where there is some evidence that the company cannot otherwise get financing that it would be fair and reasonable to reorder the priorities on winding up: [61] of the judgment.

For s 211E(1)(b), the Court noted that the US cases interpreting a similar provision have identified a list of factors that are relevant to the court’s exercise of discretion to grant super priority. Whilst noting the relevance of these factors, the Court did not have to go further given that the applicant’s application failed for non-satisfaction of the material condition under s 211E(1)(b) of unavailability of financing without such super priority. The Court noted that this material condition will be satisfied where the applicant can demonstrate that he has expended reasonable efforts to source for other types of financing that did not entail such a priority, ie, financing that did not entail priority over all preferential debts specified in the CA and all other unsecured debts. The inquiry of whether reasonable efforts had been undertaken is a fact-sensitive one: see [69] and [70] of the judgment.

The Court eventually declined to grant the super priority application under either ss 211E(1)(a) or 211E(1)(b) of the CA for the primary reason that there was insufficient evidence of reasonable efforts expended by the applicant to secure financing without any super priority: see [62] and [72] of the judgment.

To view the judgment, please click <here>.

Disclaimer: The above is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. 

Lee Kuan Yew's view on the matter: Forum

Straits Times
06 Feb 2018

I am a retired district judge. I was also the Registrar of the Subordinate Courts and Supreme Court in the 1980s.

I refer to the report (MPs write appeal letters to court only in 'urgent cases'; Feb 4) as well as to letters in The Straits Times' Forum on MPs sending letters to the courts.

When I was the Subordinate Courts' Registrar, I was instructed by then Chief Justice Wee Chong Jin to ignore such MP letters, to not send them to the judges, and to return them to the PAP Whip.

The reason, I was told, was that founding prime minister Lee Kuan Yew had instructed all MPs (in writing) that they should not be writing such letters to the courts.

There was a file containing such letters in the court registry.

The late Mr Lee's views were exactly as stated by Mr Cheng Choon Fei (Unusual for MP to intervene in court case; Feb 3) and Ms Agnes Sng Hwee Lee (Make clear the boundaries on MP petition letters): MPs writing to the courts would blur the separation of powers between the legislative, executive and judicial branches of government.

Mr Lee was also of the view that if the MP's constituent resident perceived his sentence imposed by the court as lenient, he might attribute it solely to the MP's letter, and, therefore, feel obligated or grateful to vote for the MP in an election.

Low Wee Ping

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Administration of Muslim Law Act - Muslim Marriage and Divorce (Amendment) Rules 2017 (S 804 of 2017)

CCS Issues Record Fine Against Capacitor Manufacturers; Says Only Compliance Programme Pre-Existing Investigation Aids

Business
11 Jan 2018

'Everyone has right to choose a lawyer'

Straits Times
06 Feb 2018
Seow Bei Yi

Accused persons have the right to get a lawyer of their choice, and lawyers should not be made to feel that they will be hounded online for taking up certain cases, said Home Affairs and Law Minister K. Shanmugam yesterday.

He stressed that the rule of law depends, among other things, on lawyers being able to act for defendants regardless of the offences they are accused of.

"Even a child rapist is entitled to his day in court and to be defended. It doesn't mean that we or the lawyer defending the person approves of child rape," he said.

Mr Shanmugam was replying in Parliament to a question from Mr Gan Thiam Poh (Ang Mo Kio GRC), who had asked about the minister's stand on people's comments on the City Harvest Church case, which involved the misuse of church funds.

Some claimed that Mr Edwin Tong, a People's Action Party MP who acted as the defence lawyer for church founder Kong Hee, had helped Kong and the other accused get off with light sentences.

Last week, the Court of Appeal dismissed a bid by the prosecution to reinstate the original convictions of Kong and five other City Harvest leaders. They had been given between 21 months and eight years in jail in 2015 for criminal breach of trust and falsification of accounts. But their sentences were cut after the High Court reduced their criminal breach of trust charge to a less serious one last April.

Mr Shanmugam also shared his personal experience yesterday to make the point that defendants have the right to choose a lawyer. He said he had acted both for and against the three prime ministers of Singapore as a practising lawyer.

In 1995, the International Herald Tribune (IHT) was sued for libel by Singapore's top three political leaders at the time - Senior Minister Lee Kuan Yew, Prime Minister Goh Chok Tong and Deputy Prime Minister Lee Hsien Loong.

The newspaper asked Mr Shanmugam to represent it even though he was a PAP MP.

Senior Minister Lee, who pointed out Mr Shanmugam had been close to the three leaders, said then that IHT's choice of lawyer was "the highest tribute to the integrity of the counsel" and "possibly reflected also on the integrity of the Government".

Over the years, Mr Shanmugam said he had acted for people "whose conduct will not be approved of by the general public".

He said the "mob mentality" to hound lawyers and intimidate them into not taking on cases that others disapprove of was "shameful".

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Housing and Development Act - Housing and Development (Agreements for Sale and Purchase) (Amendment) Rules 2017 (S 803 of 2017)

Landlord Tenant Dispute: Application of Contra Proferentum Rule, Adverse Inference, Right of Peaceful Re-Entry and Right to Appeal to the Court of Appeal for Case Commenced in the District Court

Judgments
10 Jan 2018

Deferred prosecution agreements - Justice delayed or justice denied?

Business Times
06 Feb 2018
Wilson Ang, Paul Sumilas and Jeremy Lua

More pieces of the puzzle must fall into place to create a holistic, coherent regime to fight corporate crime

In recent years, there has been an emerging trend of jurisdictions introducing or considering DPAs, drawing upon the largely positive experience of the US and UK.

Singapore is considering introducing deferred prosecution agreements (DPAs) as a prosecutorial tool in forthcoming amendments to its Criminal Procedure Code and Evidence Act. The move, announced in mid-January, represents a significant shift in Singapore's approach towards corporate wrongdoing, aligning the country more closely with current global trends.

FEATURES OF DPAS

DPAs are used in various jurisdictions and have the following common features:

DPAs are generally used as a means to resolve allegations of corporate wrongdoing in an attempt to avoid collateral consequences resulting from a company pleading guilty to a crime.

When used in a corporate context, the DPAs do not absolve individuals of liability. Rather, DPAs are often the first step in an enforcement action. Once allegations against the corporate entity have been resolved, the authorities will then prosecute individuals.

DPAs generally require the defendant corporation to agree to certain terms, often including the creation or enhancement of a corporate compliance programme.

In certain cases, regulators will require that there be an independent monitor as part of a DPA. The monitor, who is generally chosen by the regulators and for some defined period of time, will serve as the ears and eyes of the regulators while ensuring that the defendant company is abiding by the DPA terms.

AN EMERGING TREND?

In the US, the use of DPAs in a corporate criminal case is completely within the discretion of federal prosecutors. Most of the process occurs only between the putative defendant and the prosecutors in an extra-judicial way. Although the final agreement requires judicial approval, recent cases indicate that judges have little leeway to deny such approval.

As a result, some commentators have criticised the use of DPAs in the US as largely bypassing the formal legal system, raising a number of constitutional and public policy considerations. In particular, there are also fears that prosecutors hold an undue advantage throughout the process because the emphasis on cooperation and negotiation masks disproportionate prosecutorial leverage.

The increased use of DPAs has also led to a limited judicial review and oversight of the prosecution of certain laws, such as the US Foreign Corrupt Practices Act (FCPA).

Additionally, the facts set forth in a DPA are negotiated by the parties and do not necessarily provide the full extent of the conduct at issue. As a result, key issues, such as the extent of the law's extraterritorial jurisdiction, remain open.

Meanwhile, the UK, in February 2014, introduced a DPA framework in response to perceived deficiencies in the existing prosecution framework involving economic crime, including:

·         investigations and trials for offences of economic crime becoming "forbiddingly long, expensive and complicated";

·         difficulties in proving that the "directing mind and will" of an organisation was at fault, thereby founding criminal liability; and

·         existing criminal penalties having "unintended detrimental consequences", such as a disproportionate impact on a company's share price, or collapse of a business.

Under a DPA in the UK, a prosecutor charges a company with a criminal offence but proceedings are automatically suspended if the DPA is approved by the judge. Pursuant to the UK Serious Fraud Office's policy, a company would only be invited to enter DPA negotiations if there was full cooperation with the SFO's investigations. Under such agreements, penalties could include: (1) a financial penalty; (2) compensation to aggrieved parties; and (3) continuing cooperation with respect to prosecutions of individuals.

In recent years, we have observed an emerging trend of jurisdictions introducing or considering DPAs, drawing upon the largely positive experience of the US and UK. Such countries include France, Australia, Argentina and Canada.

FORMAL DPA REGIME IN SINGAPORE AND OTHER ISSUES

The move to consider introducing DPAs in Singapore is a positive step and reflects the authorities' awareness of the value of DPAs and the need to formalise the process by which such corporate resolutions are reached.

While there is currently little information publicly available about what Singapore's DPA regime could look like, Law and Home Affairs Minister K Shanmugam has stated that if DPAs were introduced here the terms of each DPA would have to be approved by the Singapore High Court, which would consider the fairness and proportionality of such resolutions. He also added that DPAs must be published once approved, which addresses a significant shortcoming of using "conditional warnings" to enter into such resolutions. In all likelihood, the DPA regime in Singapore if introduced, would be aligned with the US approach, and potentially draw on lessons from the UK.

Thus far, the proposal to introduce DPAs in Singapore has largely been well received. Nevertheless, there have been concerns that DPAs may embolden companies to behave irresponsibly or that prosecutors may in the future shy away from fearlessly prosecuting companies for egregious corporate misconduct. Such criticism, however, is unfounded and largely represents a misunderstanding of DPAs.

Contrary to concerns that DPAs may encourage reckless corporate behaviour, DPAs are likely to encourage companies to put in place sound governance procedures and compliance programmes. To avail itself of a DPA, a company must first show that it is a worthy candidate for the exercise of such prosecutorial discretion. Factors such as self-reporting, the existence of a working compliance programme, commitment to reform are among the many factors to be considered when the authorities consider whether to grant a DPA. Duplicitous conduct, such as acting irresponsibly and appearing contrite when caught, is unlikely to be seen favourably by the authorities.

Furthermore, under DPAs, the benefits of misconduct are often disgorged, providing little incentive for a company to act irresponsibly. As for prosecutors shying away from taking action, experience has shown that Singapore's prosecutors do not avoid taking on "difficult" cases. Finally, it must also be noted that DPAs also benefit the public, in that it provides a company genuinely seeking to rehabilitate with an opportunity to do so, and minimises the potential fallout from the collapse of major public companies caught up in corporate wrongdoing (such as insolvency and layoffs to innocent rank and file employees).

The DPA regime, however, is only one piece of the puzzle if Singapore wants to make good on its commitment to ensure that Singapore companies comply with the laws of Singapore and the laws of the jurisdictions in which they operate. To achieve such aims, Singapore's anti-bribery laws need to keep pace with international developments and business reality. In this regard, a review of Singapore's Prevention of Corruption Act (PCA) has been ongoing since January 2015. Areas of potential reform could include:

Corporate liability - Singapore should update its laws on the attribution of corporate criminal liability, and lower the evidential threshold, so that such liability can be established through the state of mind as well as the conduct of any "director, employee or agent" who was acting within the scope of his or her actual or apparent authority. This should replace the current "identification doctrine" where the prosecution needs to show that the individual who committed the crime can be regarded as the "embodiment of the company".

Increased penalties - there should be a distinction in the PCA in financial penalties that could be imposed on natural persons and companies. Singapore should consider revising corporate penalties so that they are higher than the strict monetary limit of S$100,000 or based on a formula that could take into account factors, such as the amount of bribes paid and benefit received.

Compliance defence - if the threshold for corporate liability is lowered, balance can be restored by introducing a compliance defence. A corporation found liable for bribes paid by its "director, employee or agent" can be absolved of liability if it can show that it took reasonable steps to prevent such corrupt practices from taking place. Such a compliance defence provides a legal impetus for companies to adopt prudent business practices and foster ethical corporate cultures through the implementation of anti-corruption compliance programmes.

Extraterritorial effect - the PCA currently provides for limited extraterritorial effect in respect of the acts of bribery of Singapore citizens abroad. Non-citizens such as Singapore permanent residents and corporations are not subject to the extraterritorial scope of the law. The PCA should be expanded to address this discrepancy.

Whistleblowing protection - the PCA currently provides for the right to anonymity and protects informers' identities. However, given that there is no overarching whistleblower law in Singapore, there is no statutory protection afforded to employees of companies who may lodge complaints and face retaliation as a consequence. Protective measures ought to be legislatively introduced.

Senior personnel liability - while individuals directly involved in corporate misconduct ought to be held liable, there should also be scrutiny on the behaviour of senior personnel, such as the C-suite or board of directors, for neglect or failure to take steps to prevent such misconduct. Senior personnel are responsible for setting the right tone and fostering ethical corporate culture, so they should naturally bear the responsibility for creating toxic cultures that incentivise illegal behaviour.

In short, while the introduction of DPAs is a step in the right direction, other pieces of the puzzle need to fall into place to create a holistic, coherent regime to combat corporate crime. Only then will Singapore's reputation for incorruptibility align with the state of its anti-bribery laws.

Wilson Ang, Paul Sumilas and Jeremy Lua are regulatory investigations lawyers in global law firm Norton Rose Fulbright.

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Third-Party Taxi Booking Service Providers Act 2015 - Third-Party Taxi Booking Service Providers (Registration of Registered Providers) (Amendment) Regulations 2017 (S 802 of 2017)

Securities and Futures (Amendment) Act 2017 – Changes to the Accredited Investor Class and the Introduction of an Opt-in Regime