20 December 2014
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Unscrupulous lawyers targeting migrant workers, say NGOs

TODAY
19 Dec 2014
Yvonne Lim

Up to worker to decide whether to pursue claim in court: law society spokesperson

SINGAPORE — Migrant worker groups here have raised concerns about lawyers who take advantage of ignorant and illiterate workers seeking to claim compensation for workplace injuries, alleging the costly services provided by these lawyers are unnecessary and not always in the workers’ best interests.

But the Law Society has disputed the assertion, saying that the decision whether to make a claim through the Ministry of Manpower (MOM) based on the Work Injury Compensation Act — which can be done without legal representation — or pursue a claim in court “may be one of the hardest decisions an injured worker may ever make in his life”.

“This choice must be a legally informed one, and thus the worker may require the advice of a lawyer,” a Law Society spokesperson said. “It is also fair to say that a foreign worker is likely to be relatively vulnerable — lacking in education and facility in English — and so needs help more than most.”

She explained that a claim made through MOM is based on “no-fault” principles: The employer pays full compensation regardless of whether the worker was at fault. “But the amount received is generally lower than what a court may award if the employer is at fault,” the spokesperson said.

Noting that some insurers or employers may pressurise workers to make claims through the MOM without using lawyers, she added: “If there was negligence and the worker simply accepts the MOM compensation, the worker will have lost out on a substantial amount of compensation.”

Bangladeshi construction worker Sohel Rana told TODAY that when he was injured at his work site earlier this year, the first thing he did was to engage a lawyer, believing that without one he would not be compensated fairly. Later, he decided to discharge the lawyer’s services after realising that the lawyer was “doing nothing”. “He just filled out forms and asked me to go to MOM (to make the claim),” said Mr Sohel, adding that the lawyer said his fees would be 10 per cent of whatever the compensation amounted to.

Mr Sohel then filed a claim at the MOM with help from a volunteer at Transient Workers Count Too (TWC2). The non-governmental organisation said that in the first six months of the year, 939 workers are known to have engaged lawyer services from 21 legal firms to seek compensation claims. Among this group, most of them were making claims through MOM, TWC2 added.

Mr Jolovan Wham of Humanitarian Organization for Migration Economics (HOME) said injured workers may sometimes need a lawyer’s assistance. However, he was concerned about lawyers who take advantage of a worker’s inability to assert their rights. Common complaints from workers include lawyers who did not follow up on cases and charged high fees, and those who withheld a worker’s compensation when it has been paid. There have also been complaints that workers were not informed of how much they had to pay the lawyer and were faced with a huge bill, he said.

TWC2 executive member Debbie Fordyce said lawyers often send their legal assistants to hospitals, the MOM building or areas where foreign workers congregate such as Little India and Farrer Park to solicit clients. “The lawyers will tell the workers, who are obviously unable to afford the lawyers’ fees, that they will be charged a percentage of the compensation amount,” she said.

Both HOME and TWC2 said they have raised their concerns to the Law Society. However, the society insisted it had not received any complaints by NGOs. In fact, its spokesperson pointed out that both the Legal Profession Act and the Legal Profession (Professional Conduct) Rules currently prohibit contingency fees — or payments for legal services contingent upon there being some recovery or award in the cases. “It is currently impermissible for a lawyer’s remuneration to be based on an amount proportionate to the sum recoverable by the client,” she added.

She also noted that Law Society has worked with HOME and the Migrant Workers’ Centre to set up legal clinics providing free legal advice to needy migrant workers. “If the NGOs have concerns, they are free to raise these concerns with the Society or to make a complaint so that the investigation process can begin,” the spokesperson said. “The Society does not want blanket allegations to be made... when there is an established statutory mode of complaint, which has not been used.”

yvonnelimsy@mediacorp.com.sg

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Legal Profession Act - Legal Profession (Continuing Professional Development) (Amendment) Rules 2014 (S 784 of 2014)

Income Tax (Amendment) Bill 2014 passed in Parliament: Implementing tax changes in 2014 Budget Statement

Legislation
12 Dec 2014

Woman wins asset claim as one of late businessman's 3 wives

Straits Times
19 Dec 2014
K.C. Vijayan

1957 customary wedding accepted as legal marriage

AN 84-YEAR-OLD woman won the right to half of a late businessman's assets worth $2 million after the High Court recognised her claim that she was one of his three wives during Singapore's pre-Women's Charter days. Madam Wong Swee Hor married Mr Tan Bung Thee in 1957 under Chinese customary rites. He had also married two other women in 1942 and 1947 under Chinese customary rites.

Mr Tan had humble beginnings selling pork. He later operated petrol stations in Singapore and had a tin ore business in Malaysia. He had 11 children with his three wives. One of them is the daughter of Madam Wong. The first and second wives, who died in 1988 and 1987, had five children each.

The patriarch, who received the Public Service Star award, died in 2011 at age 91, without a will.

Under the law, as there is no will, Madam Wong, as the surviving wife, would get 50 per cent of the assets - believed to be worth about $2 million and currently being assessed. The 11 children will get to share the remaining half.

Traditional Chinese wedding ceremonies held before the Women's Charter took effect in 1961 are recognised as legal marriages. This meant a man could have a principal wife, or tsai, and, at the same time, any number of other women known as "secondary wives", or tsips, noted Justice Woo Bih Li in judgment grounds released yesterday.

However, nine of the patriarch's children, defended by lawyers Sean Lim and Gong Chin Nam, denied that Madam Wong was ever his lawful wife. They argued that she and her daughter were not entitled to any share of Mr Tan's assets.

They claimed Mr Tan was having an affair with Madam Wong. They said, among other things, that she was hired as a maid to look after Mr Tan's mother, Madam Phua Siew Mei, in the late 1950s until she died in 1962.

But Madam Wong, represented by lawyers See Tow Soo Ling and Edwin Chia, relied on a photograph of Madam Phua's tombstone to assert that her name was inscribed there as a daughter-in-law of Madam Phua. This was in addition to other testimony she had offered about the customary rites undergone to formalise the wedding.

Justice Woo, who found the tombstone inscriptions as "more important evidence", ruled that while they could not be treated as direct evidence of her spousal status with Mr Tan, "the conduct of Mr Tan and Mr Tan's family in response to the inscriptions on the tombstone could be admissible on the question of her relationship with Mr Tan".

The judge added that the defendants' conduct in relation to Mr Tan's obituary when he died in 2011 was also telling. "Madam Wong was described as a wife of Mr Tan. If the defendants did not question or object to such a description without a satisfactory explanation, then their silence spoke volumes."

Separately, the judge also allowed the first five children's counterclaim that their mother, Madam Du Chao Wan, was also the lawful wife of Mr Tan. The status of the second wife, Madam Ow Yang Wan, and her children was not in dispute.

Justice Woo made clear that Madam Wong would not be an appropriate person to be named as administrator of the estate because of her age and capabilities, and advised all parties to "be realistic" and to resolve the issue amicably.

vijayan@sph.com.sg

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To view the judgment, click <here>.

Copyright (Amendment) Act 2014 (Act 22 of 2014)

[INT] Adjudication heads east

Business
12 Dec 2014

NSFs don't need to obey illegal orders, says judge

Straits Times
19 Dec 2014
Elena Chong

A FORMER full-time national serviceman (NSF) who was driving a military jeep without a licence when it crashed and killed his close friend was sentenced to a 10-day short detention order (SDO) yesterday.

Cavin Tan, 22, had no Class 3 driving licence when he caused the death of NSF Tan Mou Sheng and caused hurt to NSFs Ow Yong Wei Long and Dickson Hong, who were all 20 then, at the Singapore Armed Forces (SAF) Marsiling training area in Mandai 2 1/2 years ago. He pleaded guilty to both charges.

It also emerged that he had been ordered to drive the jeep.

District Judge Low Wee Ping said: "Perhaps one positive outcome of this case is that national servicemen now know that they do not need to obey a manifestly illegal or unlawful order."

He asked Tan's lawyer Laurence Goh, a senior officer in the SAF, to get the message out that national servicemen need not obey any such order.

Deputy Public Prosecutor Tang Shangjun said the four men - all instructors - were involved in a training exercise led by Master Sergeant Lee Kong Kean. The 33-year-old has been charged and his case is pending.

The Defence Ministry said that it does "not condone our commanders giving unlawful orders, and those who do so will be seriously disciplined".

Tan was told by Lee to drive one of the jeeps in the exercise even though he had no Class 3 military licence and had not been trained to drive one.

On the morning of the accident, Tan lost control of his jeep while negotiating a downward slope with a left bend.

DPP Tang said Tan misjudged the bend and made a sudden, sharp turn. The jeep tilted, rotated around and overturned several times before landing on its side.

NSF Hong and NSF Ow Yong, who had not been wearing seat belts or helmets, were thrown out and injured. Tan unbuckled himself and found NSF Tan Mou Sheng pinned under the jeep at his left hip. He was bleeding from his nose and mouth and soon lapsed into unconsciousness. The soldiers managed to lift the jeep and pull him out. He died later from severe pelvic crush injuries.

Mr Goh said in mitigation that Tan, now an undergraduate, obeyed the order to drive even when Lee had been told that he did not have a Class 3 licence. Tan, he said, was truly sorry for having caused the death of his college mate.

He urged the court to give his client a second chance by imposing the SDO, a community-based sentence which came into place in 2011. These can last up to 14 days and are less disruptive and stigmatising than a jail sentence.

Said Mr Goh: "The accused's decision to drive the jeep not only went against good sense, but also constituted serious breaches of SAF military training safety protocols."

Judge Low urged Tan to put this behind him and look forward.

NSF Tan Mou Sheng's father told Tan and his parents that Tan was not at fault because he was just obeying orders. Both fathers shook hands outside the court.

elena@sph.com.sg

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Goods and Services Tax (Amendment) Act 2014 (Act 31 of 2014)

Companies Act – Amendments relating to directors

Legislation
11 Dec 2014

SMC panels, courts apply same standard: Forum

Straits Times
19 Dec 2014

MRS Charis Mun raised several misconceptions that need to be addressed ("Standard applied by SMC, courts should be uniform"; Tuesday).

She has conflated two issues: the burden of proof in a Singapore Medical Council (SMC) hearing, and the difference between ethical standards and legal or contractual obligations.

SMC disciplinary proceedings are, as the courts had previously stated, "quasi-criminal" in nature. The burden of proof has always been "beyond reasonable doubt". In other words, a doctor is presumed innocent until proven by the SMC to be guilty beyond reasonable doubt.

Contrary to what Mrs Mun suggests, the same standard is applied whether in an SMC proceeding or an appeal before the court.

The outcome in the case in which obstetrician and gynaecologist Lawrence Ang saw his conviction overturned by the court did not occur because different standards in burden of proof were applied. He was found innocent by the court because it was not proven beyond reasonable doubt that he was guilty of professional misconduct. A key point is that five out of seven expert witnesses were of the view that he was not negligent, and the SMC disciplinary panel had not provided adequate justification for disregarding those opinions.

Ethical considerations that are more demanding than legal or contractual obligations are not peculiar to the SMC or the medical profession. This concept is common to all traditional major professions, including the legal and accounting professions.

The courts are in agreement with this concept. The court said as much in the Susan Lim case: There is an "ethical limit" to charging, which prevails over "caveat emptor" principles of contract law.

Mrs Mun asked how such a framework would be in the public interest.

This is most eloquently answered by the negative example of unscrupulous retailers in Sim Lim Square ripping off customers. The Sim Lim Square environment is one where professional ethics largely do not exist. Only the strict terms of commercial contracts and the provisions of legislation are in force there. The result is that short-changed customers find it hard to seek justice and unscrupulous retailers often get away scot-free.

Even now, government officials, political leaders and the Consumers Association of Singapore, having engaged the management council and shop owners of Sim Lim Square repeatedly, have not found a firm and definitive way forward to ensure that retailers do not engage in unscrupulous practices.

Wong Chiang Yin (Dr)

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Goods and Services Tax Act - Goods and Services Tax (General) (Amendment) Regulations 2014 (S 783 of 2014)

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Legislation
11 Dec 2014

Ex-tour guide slapped with another 15 charges

Straits Times
19 Dec 2014
Carolyn Khew

Charges against Yang Yin include 2 counts of criminal breach of trust

FORMER China tour guide Yang Yin has been charged with two counts of criminal breach of trust for misappropriating $1.1 million from widow Chung Khin Chun.

These were among the 15 additional charges read to the 40-year-old in court yesterday. The new allegations include five counts of cheating, and eight of breaking Companies Act laws.

They bring the total number of charges he faces to 349 - most of which relate to alleged fake receipts issued by his music and dance studio, which the prosecution believes was a sham. The most serious ones are for criminal breach of trust. If convicted, he faces jail of up to seven years and/or a fine, for each offence.

Madam Chung's niece Hedy Mokhas accused Yang of taking advantage of her aunt, whom he met in 2008 while acting as her guide during a tour of Beijing.

The next year, he moved into her $30 million bungalow in Gerald Crescent, and in 2012, was given a lasting power of attorney (LPA) by the widow to manage her welfare and financial affairs.

While in the dock yesterday, Yang, who was handcuffed and in a white T-shirt, looked tense as the charges were read out to him in Mandarin. He was told that he allegedly misappropriated $500,000 belonging to Madam Chung in 2010. Two years later, he allegedly misappropriated another $600,000 belonging to the widow, who was diagnosed with dementia this year.

The cheating charges, for which he faces a fine and/or a jail term of three years on each count, involve presenting fake company receipts to a Ms Ong Sok Hun, believed to be an accountant. This was to induce her into preparing financial statements for his firm.

The eight charges under the Companies Act relate to the failure to provide balance sheets and profit and loss accounts from 2009 to last year which give a "true and fair view" of his firm. Each count carries a fine of up to $100,000 and/or three years' jail.

Deputy Public Prosecutor Nicholas Tan said yesterday there will be no further charges against Yang, who has been in remand since Oct 31, after he was charged with faking company receipts.

Madam Mok, a 60-year-old tour agency owner, is suing Yang for damages, and his wife and parents, all of whom are in China, for allegedly receiving money taken from the widow's estate, which is believed to be worth $40 million.

The LPA granted to the former tour guide was revoked on Nov 25, after the Family Court decided that the 87-year-old widow had the mental capacity to do so.

Last week, Madam Chung made a new will, leaving almost all her fortune to charity. This replaces a 2010 will, in which she gave all her assets to Yang.

kcarolyn@sph.com.sg

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Related headlines

Ex-guide's parents, former bailor sued, ST, 16 Dec

Widow makes new will, leaves fortune to charity, ST, 15 Dec

Ex-guide seeks to retain some control over widow's fortune, ST, 11 Dec

Ex-tour guide not filing appeal over LPA, ST, 09 Dec

Ex-tour guide faces three more charges of lying to ICA, ST, 05 Dec

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Judgments
10 Dec 2014

Virtues can't be defined by the law: Forum

Straits Times
19 Dec 2014

RECENT Forum writers have argued for or against the distinction between legal standards and aspirational ethical standards in medicine.

I concede to Mrs Charis Mun's point that the standard applied by Singapore Medical Council disciplinary panels and the courts should be uniform, to avoid unnecessary court appeals ("Standard applied by SMC, courts should be uniform"; Tuesday).

The virtues expressed in oaths or ethical codes, however, should remain in the upper echelons of ethical standards, as it would be reductionist to believe that virtues should be and can be defined by the law.

Virtues should not be defined by the law because the stick should penalise only those who have behaved badly, and not those who did not behave in an outstanding manner.

To draw an analogy, just because those who litter are fined does not mean that those who fail to pick up others' litter should also be fined.

The practice of virtues is complex and contextual. Any attempt to define virtues by the law would trivialise them and be unproductive.

The promotion of commendable behaviour in medicine, such as that displayed by our Sars heroes, should instead come from the strength of ethical arguments and inspiration from the preceding generation of health-care professionals who earned the trust of the public.

Lavisha S. Punjabi (Ms)

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Parliamentary Pensions (Abolition) Act 2012 (Act 21 of 2012)

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Legislation
10 Dec 2014

Right of appeal a boon for patients' families: Forum

Straits Times
19 Dec 2014

AS A patient advocate, I read Mr Peter Chen's letter ("No-win situation for all"; Dec 10) with sadness.

It is unfair to say that "in cases of medical disputes, it is often emotions and not hard facts that influence the complainant's decision".

Medical injuries are seldom acknowledged to patients and their families. Very often, the families go through very difficult times while trying to seek redress and obtain a proper closure when their loved ones die of medical injuries in public hospitals. The avenues for them to seek redress are fraught with challenges.

Fortunately, some family members have managed to exercise their right of appeal under the Medical Registration Act.

Groundless complaints will not be entertained by the Ministry of Health. I reckon many families of subsidised patients hope only that the doctors will learn from their mistakes and improve patient safety.

Lee Soh Hong (Miss)

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Companies (Amendment) Act 2014 (Act 36 of 2014)

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Business
10 Dec 2014

City Harvest sues former fund manager

Straits Times
18 Dec 2014
Ian Poh

Chew and his firm sued for $21m in investments, including $4.6m interest

CITY Harvest Church (CHC) is suing its former fund manager and his firm for almost $21 million in unreturned investments, including $4.6 million in interest.

But Chew Eng Han, the sole director of Amac Capital Partners, insists the church had used his firm as a vehicle to lend out money.

He also claims that a personal guarantee he signed for the investments was just to "comfort" the CHC board, and he was promised that it would not be enforced.

Chew, who left CHC in June last year after 17 years, is one of six people who have been accused in a separate criminal case of misusing church funds and/or falsifying accounts.

They include the church's founder Kong Hee and former finance manager Serina Wee.

Chew, who is defending himself in the long-running criminal trial, will take the stand when it resumes on Jan 26.

On Oct 10, the megachurch filed court papers claiming that Amac, its investment manager, had "solicited" it to participate in its special opportunities fund on March 17, 2009.

But Amac requested more time to pay back money given in four tranches beginning between November 2009 and May 2010, along with the promised interest, the church added.

The church agreed, but also increased the interest rates.

It said that even though Amac returned some of the money, it was still owed $20.99 million.

Chew rejected the claims in his written defence filed on Nov 18.

According to him, the church had set up the special opportunities fund in 2009 so it could lend "surplus funds" to Mr Akihiko Matsumura of biotech firm Transcu Group, which has since changed its name to OLS Enterprise.

Chew also claimed that $350,000 was lent to former CHC investment committee member Charlie Lay on the instructions of the church's deputy senior pastor Tan Ye Peng - who is also one of those facing criminal charges.

Documents provided by Amac stating the firm's debt to CHC were merely "letters of comfort" to appease the church, Chew claimed.

The church's written reply to Chew's defence, filed on Dec 9, states it was never in the business of moneylending.

Instead, the investments were commercial transactions with guaranteed returns.

CHC also denied having any contact with Mr Matsumura and said it was not aware that money would be lent to him.

Mr Nichol Yeo Lai Hock of JLC Advisors, which is representing the church, declined to comment.

Chew is represented by Mr A. Rajandran for the civil suit, while Amac does not have a lawyer.

A pre-trial conference has been fixed for next Tuesday.

pohian@sph.com.sg

Additional reporting by Melody Zaccheus

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[AUS] High Court of Australia Judgment Summaries: Cantarella Bros v Modena Trading [2014] HCA 48 (whether trade marks inherently adapted to distinguish goods for which they were registered from goods of other persons)

Commonwealth
10 Dec 2014

Feedback sought on proposed tie-up: Boeing and SIA Engineering

Straits Times
18 Dec 2014
Wong Wei Han

Watchdog wants public views on SIAEC-Boeing venture on fleet care

THE competition watchdog wants public feedback on the proposed joint venture between the Boeing Company and SIA Engineering Company (SIAEC) in Singapore.

The tie-up would form a one-stop fleet care service provider targeting Boeing aircraft operated by regional carriers.

The entity, which will be based here, will be 51 per cent owned by Boeing.

It would seek to combine Boeing's expertise as the original equipment manufacturer with SIAEC's maintenance skills, providing engineering, materials management and fleet support solutions for Boeing 737s, 747s, 777s and 787s.

The new venture, which was announced in July, will also take over Boeing's contract to service its aircraft operated by Singapore Airlines and Scoot.

SIAEC chief executive William Tan called the collaboration a "game changer" back then, adding: "It will make fleet management solutions far more accessible, customisable and affordable for airlines. Aircraft ownership will be made much simpler."

The tie-up could help SIAEC strengthen its position in the maintenance, repair and overhaul market at a time when intense competition has hit its recent performance.

The firm recorded a 3 per cent drop in revenue from $293.9 million to $285.2 million in the three months to Sept 30, while net profit slipped from $71 million to $42.1 million.

The company said in its results report: "Pressure on margins has not abated with rising business costs and intense competition... The group stays the course in its pursuit of value-added collaborations with strategic partners. This will position us well to take advantage of long-term growth opportunities in the region."

SIAEC already has 26 ventures with original equipment manufacturers, providing services at 34 airports in seven countries.

The public can access the related consultation documents on the Competition Commission of Singapore's website and submit opinions on the jont venture proposal by Dec 31.

whwong@sph.com.sg


Background Story

COMBINED BENEFITS

It will make fleet management solutions far more accessible, customisable and affordable for airlines. Aircraft ownership will be made much simpler.

SIA Engineering Company chief executive William Tan on the collaboration with Boeing

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Public Transport Council - Public Transport Council (Bus Service Licence) (Amendment) Regulations 2014 (S 781 of 2014)

New tripartite guidelines on extending the scope of union representation for executives

Business
09 Dec 2014

Shiny shopfronts, shady car dealerships

Straits Times
18 Dec 2014
Christopher Tan

THE story this week of more than 20 people who paid good money to a parallel importer for cars they will probably never get is a familiar one.

Drawn by advertised prices that were about $10,000 lower than prevailing rates, they had each paid $20,000 to $30,000 in down payments to Volks Auto.

The company is now closed, and going by past cases, the car buyers will likely have to write off their losses.

Several similar episodes have been reported by The Straits Times in recent years. Last year, a group of buyers were conned by a used car firm called Galaxy Carz. The now defunct company had apparently sold them cars it did not have rightful possession to. The cars were eventually repossessed, leaving the new buyers poorer and car-less.

The same year, another used car firm, called KS Automobile, cheated customers in the same manner as Galaxy.

In 2010, a firm called SQ Carz collected payments but failed to deliver cars. That same year, a group of buyers discovered that Mirage Motor was not what it seemed when the company simply ceased to exist overnight.

Industry watchers said it is not uncommon for some small-time car firms to come and go, changing names and shareholders in the process to shake off debtors or customers with unfulfilled orders.

But the modus operandi of choice seems to be this: Set up a $2 company (so-called for the low fee to register a company), advertise cars with unrealistically low prices, collect deposits from eager buyers who think they have found a bargain, close shop, set up another $2 company with a new name, and repeat.

Although police reports have been filed, no one in recent memory has been taken to task.

Some victims were told by police to seek civil recourse. It is not known why the law had taken such a stance in those cases, but it could have been because it was hard to prove intent.

Nevertheless, it is understood that police are viewing the latest case involving Volks Auto as criminal. Beyond obvious cheating cases, the motor trade is rife with less overt but equally dubious practices. Cases of protracted delays in delivering a car are common. Cases of buyers being asked to pay more after a price has been agreed on are common. Cases of cars severely damaged in accidents, fires or floods being repaired and resold are also not uncommon.

Ditto instances of cars delivered without advertised features, with warranty agreements that are not honoured and, of course, with serious defects. After all, when just about anyone can set up a motor company without being screened for financial capability or track record, you can expect more than a few black sheep in a field of more than 400 players.

It was for some of these reasons that the Singapore Vehicle Traders Association - a body made up largely of used car traders and parallel importers - teamed up with the Consumers Association of Singapore to set up a CaseTrust accreditation programme in 2009.

Businesses that joined the programme had to first prove, among other things, that they were in good financial health and had transparent and fair trade practices in place. They also had to furnish an insurance bond of $50,000, which would help to settle any customer disputes that might arise. Members' shopfronts display the CaseTrust decal.

Of course, consumers are not always aware of this programme (well-publicised as it may be). Or even if they are, they are often blinded by cheaper prices elsewhere. And they may well be lulled into a false sense of security that this is safe and well-regulated Singapore - not exactly a place associated with shady businesses.

Yet, shady businesses in the motor trade exist, often with shiny shopfronts.

Perhaps it has to do with the fact that cars are such big-ticket items here, and that perpetrators know that they need only fleece a dozen people and they stand to walk away with millions.

If that were true, why is the real estate market not faced with the same scourge?

Yes, there have been cases of real estate agents embezzling money, just as there are car salesmen who pocket deposits paid by buyers. But there have not been cases of property companies set up to sell homes or offices that they had no intention or ability to deliver. Not here, anyway.

Could it be that a property purchase is done through lawyers?

It is worth thinking about. After all, a car here costs as much as a house in most other countries.

Shouldn't consumers invest in checks by professionals who can determine if the vehicle for sale is free from encumbrances, that the seller has the right to sell it, or that the motor company has, in fact, invoices for cars in its premises? Barring this course of action, consumers should simply have their wits about them. That includes not buying from sellers with no established track record, and not buying from so-called $2 companies.

Also, as the old adage goes, if something seems too good to be true, it usually is.

christan@sph.com.sg

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Legislation
09 Dec 2014

South China Sea legal battle hots up

Straits Times
18 Dec 2014
Richard Javad Heydarian

THE historic legal battle between the Philippines and China over disputed territories in the South China Sea has entered a new phase. There are renewed risks of escalation. In recent days, China, the United States and Vietnam have all expressed their position on the legal aspects of the maritime spats in the Western Pacific.

China reiterated its outright opposition to any form of third party arbitration vis-a-vis sovereignty disputes in the South China Sea by releasing a position paper on Dec 7, which contains three major arguments.

First, Beijing contends that the special arbitral tribunal at The Hague, where the Philippines filed a memorial earlier this year, has no jurisdiction over the issue, since the United Nations Convention on the Law of the Sea (Unclos) does not accord it the mandate to address what are essentially sovereignty-related issues. Although China is a signatory to Unclos, it has exercised its right (under Article 298) to absolve itself of any compulsory arbitration (under Article 287 and Annex VII) over territorial delimitation issues, among other things.

Second, China maintains that, based on supposed "historical rights", it exercises "inherent and indisputable" sovereignty over the disputed features, including those that fall well within the Philippines' 200 nautical miles Exclusive Economic Zone (EEZ).

Third, Beijing asserts that the Philippines violated prior bilateral and multilateral agreements (that is, the 2002 Declaration on the Conduct of Parties in the South China Sea, known as the DoC) by initiating a compulsory arbitration procedure under Unclos.

Interestingly, the position paper was released a week before the Monday deadline for China to submit its formal position, or defence, to the arbitral tribunal.

The Philippines, in response, maintains that it is China that has violated the DoC by unilaterally altering the status quo through expansive construction activities, widening paramilitary patrols and coercive behaviour within the South-east Asian country's EEZ, specifically in the Scarborough Shoal in 2012 and, more recently, in the Second Thomas Shoal.

The Philippines also maintains that the arbitral tribunal has the mandate to interpret the parameters of China's right to opt out of compulsory arbitration procedures. For the Philippines, its legal case is perfectly consistent with the mandate of the arbitration body, since its memorial focuses on whether China's notorious "nine-dashed-line" claim is consistent with international law, and the determination of the nature of disputed features (under Article 121) - specifically, whether they can be appropriated or occupied and generate their own respective territorial waters.

While the US does not take a position on the sovereignty claims in the South China Sea, it has indirectly supported the Philippines by supporting the resolution of the disputes in accordance with international law as well as questioning the validity of China's claims.

The US State Department's position paper, released on Dec 5, has raised issues with the "nine-dashed-line" doctrine, arguing that China's expansive claims lack precision and consistency. After all, China has not unambiguously specified the exact coordinates of its territorial claims. It is not clear whether China claims much of the South China Sea, treating it as a virtual internal lake, or simply claims the land features in the area and their surrounding waters per se.

The US, similar to most independent legal experts, also maintains that China's claim to historical rights over the South China Sea waters is not consistent with international law. China has neither exercised continuous and uncontested sovereignty over the area, nor does the South China Sea - an artery of global trade, connecting the Pacific and Indian Oceans - constitute a bay or any form of near-coastal water that can be appropriated based on historical rights-related claims.

In short, China's claims far exceed - if not entirely contradict - modern international law, specifically Unclos. Although the US is not a signatory to Unclos, it has observed the international convention in its naval operations.

To the surprise of many observers, Vietnam joined the fray by submitting a position paper to the arbitral tribunal in The Hague last Friday, which contains three main points: It expressed its support for the Philippines' case; questioned the "nine-dashed-line" doctrine; and asked the arbitral tribunal to give due regard to Vietnam's rights and interests.

Vietnam's manoeuvre will most likely have no significant impact on the pending legal case between the Philippines and China, but it carries significant political implications. In recent months, Vietnam has been engaged in a sustained diplomatic effort to normalise relations with China and prevent another crisis in the disputed areas, especially in the light of the oil rig crisis in the South China Sea this year, which sparked huge protests in Vietnam and placed the two countries on the verge of armed confrontation.

Vietnam's bold threat to join the Philippines' legal efforts against China carries the risk of renewed tensions in the South China Sea and of undermining tenuous, but critical, diplomatic channels between Hanoi and Beijing. It seems, however, that Vietnam is hedging its bets by dangling the threat of joining a common legal front against China as a form of deterrence against further provocations in the future.

With both the Philippines and the US explicitly questioning China's expansive claims in recent months, Vietnam perhaps felt compelled to reiterate its position on the issue and underline its right to resort to existing international legal instruments to address potentially explosive territorial disputes.

Nonetheless, despite the unanimity of opinion and statements by Filipino, Vietnamese and American officials on the legal dimensions of China's claims in the South China Sea, it is far from clear whether Beijing will re-consider its policy in adjacent waters.

Ultimately, China could respond to growing international pressure by hardening its position. It can accelerate efforts at consolidating its claims on the ground, vehemently reject any unfavourable arbitration outcome as an affront to its national integrity, and impose sanctions on and/or diplomatically isolate the Philippines as a form of reprisal. After all, there are no existing compliance-enforcement mechanisms to compel China to act contrary to its position and interests.

stopinion@sph.com.sg

The writer is a political science professor at De La Salle University in the Philippines.

S.E.A. View is a weekly column on South-east Asian affairs.

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

Related headlines

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Judgments
09 Dec 2014

Man entitled to part of sum lent to friend found hanged: Court

TODAY
17 Dec 2014
Neo Chai Chin

He also gets 65% of profits from sale of flat in deceased's name

SINGAPORE — Restaurant owner Tan Soy Tee, 64, had allowed his friend to live rent-free with him for 20 years and had paid for the bulk of a five-room flat in Hougang that was under the friend Yeo Hung Song’s name.

However, Yeo, 48, was found hanged at a gay sex club in Boat Quay on Nov 19, 2012.

Last year, his brother, Mr Yeo Hang Ming, became the administrator of his estate and Mr Tan sued Mr Yeo to reclaim the money he had lent or advanced to the deceased.

Yesterday, Judicial Commissioner Lee Kim Shin ruled in an oral judgment partially held behind closed doors that Mr Tan was entitled to about S$228,000, as well as 65 per cent of the profits from the sale of the Housing and Development Board (HDB) flat in Hougang.

Although Mr Tan had claimed a sum of about S$310,000 and a share of the profits from the sale of the flat, some of his loans could not be substantiated.

According to court documents tendered, Mr Tan and Mr Yeo gave differing accounts of the deceased’s life.

In his defence, Mr Yeo said his brother had worked as an electrician and operated a cooked-food stall in Paya Lebar. His brother got to know Mr Tan at the pharmacy where the latter worked when he was buying medicine there, said Mr Yeo.

In his statement of claim, Mr Tan said he had employed Yeo as a kitchen helper from 1993 and that the latter had begun living with him because he had little money.

In 2007, Yeo decided he wanted to buy a flat for himself and sought financial help from Mr Tan. However, Yeo was still unable to raise enough funds.

In 2009, Yeo bought the HDB flat in Hougang for about S$345,000, with at least S$231,000 from Mr Tan. Yeo paid for the balance with his Central Provident Fund savings and a housing loan he took from the HDB.

Besides the payment for the flat, Mr Tan also claimed he had forked out money for the purchase of a car that was in Yeo’s name. However, Mr Yeo said his brother had never mentioned working as a kitchen helper or living with Mr Tan. He said the deceased had led a simple life and that he would have accumulated enough savings to purchase the Hougang flat and car.

Mr Tan, a bespectacled divorcee, told reporters yesterday that he had wanted to will his CPF savings and the flat to Yeo as the former had no family. He also found Yeo “pitiful” when he first got to know the deceased.

Mr Yeo was not in court yesterday.

With Yeo’s death, Mr Tan said he has willed his money to another employee. When asked about the judgment, Mr Tan said: “It’s not really about money, I just want to prove the money belongs to me.”

chaichin@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

Civil Aviation Authority of Singapore Act - Civil Aviation Authority of Singapore (Price Control of Aeronautical Charges) (Amendment) Rules 2014 (S 778 of 2014)

[GBR] Constructive knowledge and unsophisticated investors - A matter of common sense?

Commonwealth
09 Dec 2014

S’pore Medical Council sets record straight on disciplinary process

TODAY
17 Dec 2014
Amanda Lee

Newspaper commentary ‘failed to highlight unsuccessful appeals against convictions’

SINGAPORE — The Singapore Medical Council (SMC) has stepped forward to defend its disciplinary process, following a commentary criticising its processes in The Straits Times earlier this month.

In a letter to medical practitioners that was also issued to the media yesterday, SMC president Tan Ser Kiat said the commentary had centred on the case of Dr Lawrence Ang, a obstetrician and gynaecologist who had been found guilty by the SMC, but whose verdict was recently overturned by the Court of Appeal. The council had also been ordered to foot Dr Ang’s legal costs.

The SMC has processed more than 1,000 cases lodged against doctors since 2008. To date, about 110 formal disciplinary inquiries have been conducted before disciplinary committees or tribunals. Of these, four outcomes were reversed by the courts.

“This is not a phenomenon unique to the SMC disciplinary process as all of us would be aware that such reversals occur occasionally in civil as well as criminal matters adjudicated before the courts,” he said.

The commentary, Paying the Price when Rulings are Overturned, was published on Dec 6 and argued that mistakes in the proceedings could prove costly to doctors and taxpayers.

In 2009, Dr Ang delivered a baby who had an infection and congenital pneumonia that required five months of hospitalisation. An SMC disciplinary committee said the baby’s condition was not the doctor’s fault, but suspended him for three months for not having a neonatologist present or on standby for the delivery.

In his letter, Prof Tan said the commentary had chosen to focus on the first conviction by the SMC to be overturned in more than two years. “It does so while failing to highlight the fact that, in the course of that time, more than 20 convictions were recorded and three appeals by doctors against their convictions were unsuccessful.”

Prof Tan also pointed out that, while the article had suggested the SMC did not want to divulge the source of its income, the council informed all its doctors in January last year that the fees collected from them are not expected to manage all of its costs and that it receives “considerable government financial assistance”.

As for the article’s suggestion to amend the Medical Registration Act so SMC disciplinary tribunals include a legally trained person, Prof Tan said the council has such a person on or assisting in all disciplinary tribunals.

In July, the SMC responded to wide-ranging recommendations made by a committee formed in December 2012 to improve the disciplinary process of doctors. The medical watchdog said then that some measures, such as the secondment of a legal service officer to the SMC, had been rolled out.

The committee was formed after the Court of Appeal dismissed charges against aesthetic doctor Low Chai Ling in September 2012. Referring to the case, Prof Tan said: “The article suggests the High Court made ‘scathing comments about the SMC’s biased and slipshod disciplinary inquiry’ (in the case) ... While there are significant learning points to be gleaned from the court’s comments in that case, it is clear from the court’s Grounds of Decision ... that no suggestion is made whatsoever of alleged ‘biasness’ or ‘slipshod’ behaviour on the part of the SMC.”

Doctors whom TODAY spoke to said they generally had no issues with the SMC’s disciplinary processes. Still, some felt the SMC could be more proactive in explaining the processes and providing more information on them. Dr Lee Yik Voon, a private general practitioner, said: “It’s good information (to know), it’s just that we (doctors) probably won’t bother (finding out about the processes) unless you’re involved.”

leeguiping@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

Arms and Explosives Act - Arms and Explosives (Exemption) Order 2014 (S 777 of 2014)

ACRA to streamline regulatory fee structure

Business
08 Dec 2014

Bid by divorcee for more money denied

Straits Times
17 Dec 2014
K.C. Vijayan

She had consented to lump-sum maintenance but gambled it all away

A WOMAN who gambled away a A$200,000 divorce payout has lost a bid to make her former spouse pay her more money.

District Judge Suzanne Chin said she was not convinced by Madam Nora Ali's claims that she had been pressured by her former husband into accepting the lump-sum maintenance awarded in 2010.

Lump-sum payouts instead of regular monthly maintenance payments are generally approved by the courts if both parties consent. The option allows the couple to make a clean break.

"(Madam Nora) appears to have received the monies agreed upon in the consent order and very unfortunately had, through gambling, lost all of it shortly thereafter," noted District Judge Chin in judgment grounds released last week.

Madam Nora, a Singaporean, married Swiss-born investment executive Hans Goetti in Zurich in 1991 and the couple moved here two years later. She then left for Australia to take care of their Singaporean daughter's education. The marriage broke down over time and Mr Goetti sought a divorce in 2010 that she did not contest. Both parties agreed to an order in relation to ancillary matters, which included her maintenance.

Lawyer Lucy Netto, representing Madam Nora, said her client had applied in September last year to set aside the order. She argued that her former husband had agreed at the time to give her A$200,000 with a balance of A$350,000 once his "business picked up". She claimed that under the consent order, Mr Goetti promised to provide for her for the rest of her life and give her money whenever she needed.

Madam Nora also told the court that she was drinking heavily at the time of the divorce and was heavily medicated, leaving her in an unfit state "to rely on her consent".

Mr Goetti denied her claims. His lawyer Gulab Sobhraj told the court in June that her "massive and reckless spending habit" was one of the reasons that led to the divorce, adding that huge sums of money were "whittled away on her gambling sprees".

District Judge Chin found that Madam Nora's allegations that her spouse had taken advantage of her were "not substantiated", including her claim that she was then under heavy medication.

The judge also noted that Madam Nora had signed the consent order before a notary public who would have asked her if she understood what she was signing. She added that Madam Nora had done nothing for three years to address her concerns after the order was made while Mr Goetti had "remarried and moved on with his life".

"If this application to set aside the Consent were to be allowed, (Mr Goetti) would be unfairly prejudiced," added District Judge Chin.

vijayan@sph.com.sg

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

Endangered Species (Import and Export) Act - Endangered Species (Import and Export) Act (Amendment of Schedule) (No. 4) Notification 2014 (S 776 of 2014)

SHC: Reflecting commercial reality in enforcing personal guarantees

Judgments
08 Dec 2014

Employers get a guide on spelling out employment terms in writing

Business Times
17 Dec 2014
Chuang Peck Ming

They will be required by law to do so by the first half of 2016, along with itemised payslips

[Singapore] GUIDELINES were unveiled on Tuesday to help employers, especially those in small and medium firms, to be ready for the day when it's compulsory to spell out employment terms in writing to workers.

The Tripartite Guidelines On The Issuance Of Key Employment Terms (KETs), drawn up by the government, employers and unions, "aim to prepare businesses to progressively change their HR practices before they are required by law to issue KETs in writing".

The Ministry of Manpower (MOM) has said in April that employers will be required by law to put the KETs in writing by the first half of 2016, in tandem with the mandating of itemised payslips.

The Tripartite guidelines unveiled on Tuesday spelt out who should receive the KETs in writing, when should the KETs in writing be given, what are the KETs to be provided in writing and where to seek further help.

MOM, which announced the guidelines, said they were drawn with the SMEs very much in mind as some have indicated they may find the issuance of KETs in writing challenging.

Responding to the release of the guidelines on Tuesday, the labour movement said in a media statement that the guidelines would translate into greater transparency for workers. "Providing workers with proper written terms will go some way to help them better understand their employment terms, salary and benefits components as well as provide a means of proper documentation," the National Trades Union Congress (NTUC) added.

The labour movement has been pushing for changes to ensure that workers are better protected under the Employment Act. One change it's been lobbying for since November 2012 was to include in the Act a provision for proper employment contracts and payslips.

According to the Tripartite guidelines, drawn by MOM, the Singapore National Employers Federation (SNEF) and NTUC, all workers employed continuously for at least 14 days should be provided with KETs in writing. Bosses are encouraged to provide the KETs in writing before the worker starts work. If not, they should provide the terms no later than 14 days after the start of employment.

The KETs should include the name of employer; name of employee; job title and main duties and responsibilities; starting date of employment; duration of employment for those on fixed contract; daily working hours, number of working days per week and rest days; salary period; basic salary per salary period; fixed allowances per salary period; fixed deductions per salary period; overtime payment period if different from salary period; overtime rate of pay; other salary-related components; leave entitlements; other medical perks; probation period; and notice period for termination of employment.

The guidelines say employers could provide the written KETs in hard or soft copy, or both. For Work Permit holders, some of the KETs should be included in the In-Principle Approval letter as part of the Work Permit application process.

"Employers are encouraged to provide the key employment terms in a language that the employees understand," the guidelines say. "If this is not possible, employers are encouraged to verbally communicate the key employment terms in a language that the employee understands."

Employers who require further help can approach the SNEF (Tel: 6327 9297) or the SME Centres in various parts of Singapore.

peckming@sph.com.sg

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

Related headlines

Re-hiring up to age 67 to be made law by 2017, BT, 15 Dec

Protecting PMEs against whimsical dismissals, BT, 02 Dec

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Business
08 Dec 2014

Lawyer charged with molesting woman

Straits Times
17 Dec 2014
Elena Chong

A LAWYER has been charged with molesting a woman in a hotel room in the Balmoral area.

Ismail Atan, 43, a lawyer of 17 years' standing, was brought to court last month for allegedly using criminal force on the woman - by forcefully grabbing the 28-year-old by her arms and trying to kiss and hug her.

The alleged incident occurred in the hotel room at about 12.45pm on July 4 last year.

The alleged victim cannot be named due to a gag order.

Yesterday, Ismail's lawyer Mohan Das Naidu told District Judge Ronald Gwee that he would be making representations.

Ismail, who graduated from the National University of Singapore in 1996, has been with a number of law firms over the years.

Ismail, whose $5,000 police bail has been extended, will return to court on Jan 13.

He was told not to approach the alleged victim.

If convicted, he could be jailed for up to two years, fined, or receive any combined punishment.

ELENA CHONG

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

Public Transport Council Act - Public Transport Council (Ticket Payment Service Licence) (Exemption) (Amendment No. 5) Order 2014 (S 774 of 2014)

Behavioural and divestiture commitments – a new era for CCS? Acquisition of JobStreet Singapore by SEEK Asia Investments Pte Ltd

Judgments
03 Dec 2014

Singapore, Indonesia on track to curb cross-border tax evasion

Straits Times
17 Dec 2014
Wong Wei Han

AN AGREEMENT to help crack down on cross-border tax evasion is being worked on by Singapore and Indonesia.

The two nations are working on implementing the framework for the automatic exchange of information (AEOI) on tax matters, as they look to keep improving trade and investment ties.

The move was highlighted during a meeting between Deputy Prime Minister and Finance Minister Tharman Shanmugaratnam and Indonesian Finance Minister Bambang Brodjonegoro on Monday.

The AEOI is a new standard developed by the Organisation for Economic Cooperation and Development. It entails periodic and systemic transmission of taxpayer information in bulk to enable more timely action against tax evasion. The existing international standard exchanges information only upon request.

Indonesia will implement AEOI by 2017, followed by Singapore a year later, but Singapore wants to make sure there is ample protection for confidentiality as well as reciprocity in data swop, Singapore's Ministry of Finance (MOF) said in a statement yesterday.

"AEOI needs to be done within a robust framework of law to protect taxpayer confidentiality and ensure that the information is used properly," MOF said. "There must also be reciprocity with any future AEOI partners in terms of information exchange."

Ahead of AEOI, both nations will work on updating the Avoidance of Double Taxation Agreement to incorporate the current standard on information exchange upon request, MOF added.

Meanwhile, Singapore's immediate priority is to implement the Foreign Account Tax Compliance Act (Fatca) agreement with the United States, MOF stressed.

The US enacted Fatca in 2010 to crack down on non-compliance with US tax laws by citizens using foreign accounts.

Singapore and the US formalised their agreement to implement Fatca on Dec 9 this year after negotiations since last year.

whwong@sph.com.sg

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

Related headlines

S'pore, US sign deal to fight tax evasion, ST, 10 Dec

 

Planning Act - Planning (Covered Pedestrian Linkways Authorisation) Notification 2014 (S 773 of 2014)

Les Laboratoires Servier v Apotex Inc [2014] UKSC 55 (Public policy, Ex turpi causa): commentary

Commonwealth
03 Dec 2014

Property agent jailed for forgery, embezzling $38k

Straits Times
17 Dec 2014
Elena Chong

A PROPERTY agent misappropriated almost $38,000 in rental payments from one of his clients after forging his signature on a letter.

Fong Wai Loon, 37, was jailed for a year yesterday after pleading guilty to forgery and criminal breach of trust.

He had got to know the client, Mr Rocky Bastiaan, in 2006 and, three years later, was asked by him to help rent out an apartment in Scotts Road.

Deputy Public Prosecutor Tow Chew Chi told the court that Fong agreed and managed to rent the flat to law firm Ince & Co. The tenancy agreement was signed on March 1, 2009.

Subsequently, Fong experienced financial difficulties. He decided to draft a letter directing Ince to set up a Giro payment arrangement to pay the monthly rent of $6,300 directly into his United Overseas Bank account.

He drafted the letter at his Zion Road home on April 20 that year and forged the victim's signature.

Ince was deceived into paying the rent via cheque and electronic bank transfer into Fong's account on six occasions between April 30 and Oct 1 that year. The total sum came to $37,800.

Fong would withdraw various amounts of money for his personal expenses. He spent the entire sum by Oct 31 that year.

After the forgery was discovered in 2010, Ince stopped making payments to Fong.

Mr Bastiaan made a police report on May 17, 2010.

DPP Tow said Fong had deprived the victim of $37,800 over five years.

Fong, who is making arrangements to pay back the amount, could have been jailed for up to 10 years and fined for forgery.

For criminal breach of trust, he could have been jailed for up to seven years and/or fined.

elena@sph.com.sg

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

Income Tax Act - Income Tax (Exemption of Interest and Other Payments on Economic and Technological Development Loans) (No. 9) Notification 2014 (S 772 of 2014)

Protection from Harassment Act 2014 comes into effect

Legislation
28 Nov 2014

TWG Tea loses HK trademark tussle

Straits Times
16 Dec 2014
K.C. Vijayan

Appeals court affirms that TWG abbreviation infringes rival's sign

LUXURY brand TWG Tea has failed in its appeal against an earlier Hong Kong court ruling that it infringed the trademark of Hong Kong rival supplier Tsit Wing - which also uses the TWG abbreviation.

A three-judge Hong Kong Court of Appeal has held that for the average customer, there is a "high degree of similarity" between Tsit Wing's marks and the goods for which they were registered, and the signs used by its Singapore-based rival TWG Tea and the goods and services it offers at its tea salon in Hong Kong.

"The likelihood of confusion can be cross-checked in this way: If (Tsit Wing) were to open another tea salon in the vicinity and use its marks in connection with that, is the average consumer likely to get confused? In our judgment, the answer is affirmative," said appeals court vice-president M.H. Lam in decision grounds released earlier this month.

The ambit of the judgment is limited solely to Hong Kong and does not apply in Singapore or anywhere else in the world.

The row over the three letters became more than a storm in a teacup when Tsit Wing sued its rival in 2011. It also sought to restrain TWG Tea from using the abbreviation in Hong Kong.

TWG Tea had planned to enter the Hong Kong market and started a tea salon in December 2011 at Hong Kong's International Finance Centre (IFC) Mall.

The Tsit Wing Group registered gross sales of HK$393 million (S$66 million) in 2011 - of which HK$111 million was from tea. It has used the letters TWG in its logo since 2006. The group's holding company has been listed on the Singapore stock exchange since 2001.

Meanwhile, The Wellness Group, incorporated in Singapore in 2001, has used its independently created TWG Tea logo since 2008. The firm has displayed it in tea salons, boutiques and on products, building "immense" goodwill in over 40 countries.

It has launched 42 TWG Tea Salons and Boutiques in 14 countries and products are supplied to the food services industry, hotels and Singapore Airlines.

TWG's lawyers had argued that Tsit Wing's marks were neither identical nor similar to its signs, pointing to other features of its signs such as the year "1837" at its tea salon in the IFC Mall.

But the court found these features "did not have much trademark significance", pointing to the "compelling" conclusion that TWG is the dominant feature of both mark and sign.

" It is most unlikely that a consumer would identify (TWG Tea)'s tea salon as the '1837' teahouse when he or she made an afternoon appointment with a friend," wrote appeals court vice-president Lam.

When contacted, TWG Tea spokesman Maranda Barnes said: "TWG Tea respects Hong Kong law and the laws of each country where it is implanted. As the Hong Kong Court of Appeal judgment has just been released, TWG Tea is consulting legal counsel and reserves all comments on the matter."

She added: "We will continue our aggressive expansion of our foothold with luxury tea salons and boutiques in key international locations, as well as an extensive wholesale business to luxury five-star hotels, fine dining establishments and airlines in 2015."

vijayan@sph.com.sg

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 82) Notification 2014 (S 771 of 2014)

Latest developments: real estate; tort

Judgments
28 Nov 2014

Ex-guide's parents, former bailor sued

Straits Times
16 Dec 2014
Carolyn Khew

THE parents and former bailor of China national Yang Yin have been accused of receiving money he misappropriated from wealthy widow Chung Khin Chun's estimated $40 million in assets.

Lawyer Peter Doraisamy, who represents Madam Chung's niece Hedy Mok, has accused them of knowingly receiving "funds misappropriated by Mr Yang Yin from the estate of Madam Chung".

He was explaining the grounds for Madam Mok's application to add them as defendants in an ongoing civil suit, which was granted yesterday.

After a closed-door session, the High Court granted Madam Mok, 60, permission to add Yang's parents - Mr Yang Sannan, 71, and Madam He Xianglan, 67 - as parties to the suit. Both are retired and live in China.

Singaporean Ong Gek Lie, who earlier paid $15,000 to bail out 40-year-old Yang after his arrest in September, is also being sued.

Ms Ong, believed to be in her 40s, hosted Yang in her home after he had been evicted from Madam Chung's bungalow in September. She is believed to have previously worked as a tour guide.

An amended statement of claims will be filed at a later date as there is "new evidence coming to light", said Mr Doraisamy.

Yesterday's developments are the latest in the legal tussle between Madam Mok and Yang over her aunt's assets.

Both Yang and his wife Weng Yandan, 34, are alleged to have neglected their duties in caring for Madam Chung after he was given legal control of her assets. In October, Madam Mok received court approval to add his wife as second defendant in the civil suit.

The next step will be to serve Yang's wife and parents the writ once the statement of claims has been finalised.

Yang's lawyer Joseph Liow, who was at the court session yesterday, said he is not acting for Yang's parents, wife and previous bailor, and that no submissions were made on their behalf.

Separately, Yang faces 334 charges over immigration offences and falsifying receipts made to his company. The case will be mentioned in court on Thursday.

kcarolyn@sph.com.sg

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

Related headlines

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FHR European Ventures v Cedar Capital Partners [2014] UKSC 45 (Fiduciary relationship, Breach): commentary

Commonwealth
28 Nov 2014

Sim Lim Square council now 'open' to Case suggestion

Straits Times
16 Dec 2014
Amir Hussain

THE management of Sim Lim Square yesterday changed tack and said it was open to the consumer watchdog's suggestion for shop owners to enforce stricter rental agreements.

Its management council said it will consider this approach, after consulting its legal counsel.

When contacted two weeks ago after the Consumers Association of Singapore (Case) had made the suggestion, the council merely said it was seeking legal advice.

It had also said earlier that it was unable to compel landlords to kick out tenants that run dishonest businesses or to force them to sell their units.

The change in position comes as Minister of State for Trade and Industry Teo Ser Luck and Case representatives yesterday met the council to discuss measures to deal with errant retailers.

When contacted, a Sim Lim Square spokesman directed The Straits Times to its managing agent, but he could not be contacted by press time to comment.

Case had sent letters late last month to the managements of Sim Lim Square and People's Park Complex, also known to have shops with unethical practices, asking them to change their rules and by-laws to make it mandatory for landlords to ensure retailers run their businesses fairly.

In particular, it said rental agreements should state that retailers must conduct their business according to fair practices under the Consumer Protection (Fair Trading) Act (CPFTA). Under this, unfair practices include taking advantage of a consumer by exerting undue pressure and making false claims about goods.

Case's suggestions follow reports about the unsavoury tactics of retailers at Sim Lim Square.

In one case, Vietnamese tourist Pham Van Thoai begged for a refund after he was allegedly overcharged for an iPhone by a shop owner in Sim Lim Square.

The shop, Mobile Air, has since closed down. Following up on reports lodged against it, the police last month carried out investigations at the shop.

Overall, 106 complaints were made against stores in Sim Lim Square from January to last month. Over the same period, 156 complaints were made against shops in People's Park Complex, the highest for a mall here.

At the meeting yesterday, Sim Lim's management council also shared plans to raise the service standards of its retailers.

On the cards is a training and accreditation programme for more retailers to qualify under its STARetailer scheme, which involves a code of conduct for retailers to promote honest and fair sales practices.

Mr Teo said at the meeting that the Government is studying ways to enhance the CPFTA.

"I am glad that Case and Sim Lim Square management council are coming together to take a strong stand against errant retailers, and to share ideas and explore possible actions that can be taken to deter such retailers from engaging in unfair business practices," he said in a statement after the meeting.

amirh@sph.com.sg

 

*****************Background Story *****************

 

TAKING A STAND

I am glad that Case and Sim Lim Square management council are coming together to take a strong stand against errant retailers, and to share ideas and explore possible actions that can be taken to deter such retailers from engaging in unfair business practices.

- Minister of State for Trade and Industry Teo Ser Luck

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

Income Tax (Amendment) Act 2014 (Act 37 of 2014)

SDC: Assessing the degree of knowledge for dishonestly receiving stolen property

Judgments
27 Nov 2014

Standard applied by SMC, courts should be uniform: Forum

Straits Times
16 Dec 2014

THE letters by Dr Yik Keng Yeong ("Why lawyers not on SMC disciplinary panels"; last Wednesday) and Dr Chong Yeh Woei ("Medical ethics not about legality or illegality"; last Friday) suggest that the Singapore Medical Council judges doctors based on a framework of medical ethics that may be different from, and often more stringent than, that applied by the courts. Both feel this will help foster a higher standard of medical ethics, which is in the public interest.

If doctors have the right to appeal against the SMC's decisions, and the court's decision prevails, surely the applicable standard has to be that applied by the courts.

There should be a uniform standard applied by both the SMC and the courts. Applying different standards at different stages of the process will inevitably lead to unnecessary appeals, which result in wastage of resources.

This will not change the fact that the standard doctors are held to is the "legalistic" standard set by the courts on appeal.

The only result is higher cost, with patients bearing the costs of such unnecessary appeals indirectly via increased charges.

How is that in the public interest?

Charis Mun (Mrs)

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

Tobacco (Control of Advertisements and Sale) Act - Tobacco (Control of Advertisements and Sale) (Prohibited Tobacco Products) Regulations 2014 (S 769 of 2014)

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26 Nov 2014

Companies Act reform - impact on directors

Business Times
15 Dec 2014
Marcus Chow

A number of amendments affect the appointment, scope and disqualification of directors.

IN LAST week's article on the Companies Act reform, I covered the key amendments made by the Companies (Amendment) Act 2014 - passed by Parliament in October - that remove regulatory burdens and promote business flexibility.

Another aim of the amendments is to improve corporate governance. In this article, I examine how these provisions impact directors, particularly on their life cycle, duties and financial dealings.

A number of amendments affect the appointment, scope and disqualification of directors.

Where there were no previous specific provisions for the appointment and resignation of a director, the amendments now allow for appointments to be made by ordinary resolution at a general meeting. In addition, a director may resign with written notice; the resignation is not conditional upon acceptance (unless no Singapore resident director remains on the board).

The new provisions specifically seek to cover "shadow directors" (though there is no explicit mention of the term) as persons upon whose direction directors or a majority of directors are accustomed to act. However, the amendment clarifies that professional advisers who advise the board would not necessarily be caught.

The good news is that ageism has been removed with the repeal of the requirement for approval of shareholders to be appointed or re-elected to a public company or its subsidiaries.

Some CEOs are executive directors, others are not. The amendments recognise the role and power of the CEO by extending the obligation to disclose interests in transactions (which was previously required only of directors) to CEOs - regardless of whether he is a director. Such disclosure will include any interests of the CEO and his family members in the company's securities and any conflicts of interest in transactions with the company.

The Accounting and Corporate Regulatory Authority (Acra) will now have enhanced powers to debar any director or company secretary of a company who fails to lodge documents within three months of the statutory deadline. Debarred persons will not be allowed to take on new appointments as director or company secretary. Several of the amendments have an impact on the duties and powers of directors, circumscribing or expanding them in different situations.

Defective accounts

Nominee directors, for instance, are now allowed to disclose to their nominating shareholders information they acquired through their board seats as long as the disclosure is authorised by the board and such disclosure will not likely prejudice the company. This concession makes management of groups with listed subsidiaries more efficient.

Directors may also now voluntarily revise defective accounts which do not comply with the Companies Act or the applicable accounting standards before the accounts for the next financial period are prepared. The purpose is to encourage diligent directors to take action before they are penalised.

To streamline annual reporting, a separate directors' report is no longer required. Instead, the financial statements together with a statement containing information required in the Twelfth Schedule of the Act signed by two directors will be adequate.

Reflecting a greater respect for individual privacy, individuals are now allowed to reflect alternate addresses instead of residential addresses in Acra's public records provided that the residential address is still provided to Acra, and the alternate address is in the same jurisdiction as the residential address.

A number of amendments seek to define the parameters in financial dealing with the directors.

Before the amendments, companies were restricted from making loans or providing any guarantees or security for loans to its directors. The amendments extend the scope of these prohibitions to cover "quasi-loans" and "credit transactions" in order to check any creative financial arrangements.

An example of a quasi-loan and credit transaction is a situation where the company pays the personal expenses of its directors which are charged to a corporate credit card with the understanding that director will later repay the amount. Another example could be where a company purchases a car for its director and the director pays a monthly instalment to the company to defray the cost of the car.

At the same time, these transactions are allowed if shareholders specifically approve of them before they occur and the interested parties refrain from voting.

Companies will also now be expressly allowed to indemnify directors against claims brought by third parties, save for certain specified liabilities.

Similarly, companies are allowed to lend money to a director to meet expenditure incurred in defending any criminal or civil proceedings for negligence, default or breach of duty by the director, as well as in connection with an application for relief of the charge.

In summary, these amendments, besides providing greater clarity on the scope, duties and limits of directors, also enhance transparency and accountability. It will be incumbent on directors to stay abreast of the law, the better to properly discharge their duties.

The writer is a member of the Advocacy & Research Committee of the Singapore Institute of Directors

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Related headlines

Less regulatory burden, more flexibility in Companies Act reform, BT, 08 Dec

 

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Widow makes new will, leaves fortune to charity

Straits Times
15 Dec 2014
Toh Yong Chuan & Carolyn Khew

Charitable trust will be set up in late husband's name, to be run by niece

THE wealthy widow fighting to retake control of her estimated $40 million assets has cut former China tour guide Yang Yin out of her will.

Madam Chung Khin Chun, 87, has made a new will which leaves nearly all her fortune to charity.

She has cancelled one made in 2010 in which Yang was set to inherit all her assets, including a $30 million bungalow off Yio Chu Kang Road.

The new will, made last Saturday, came three weeks after the Family Court ruled that the widow was mentally capable of deciding who should take care of her finances and personal welfare.

The court had allowed her to cancel a Lasting Power of Attorney (LPA) she granted Yang in 2012 which gave the former tour guide control over her assets.

In the new will, seen by The Straits Times, Madam Chung stipulated that $500,000 be given to Madam Chang Phie Chin, whom she calls her "dear friend". The retired teacher, 84, has known Madam Chung for more than 50 years and lived with her in her bungalow from 2005 to 2011.

Madam Chung's only sister Doris will get $500,000.

The rest will go into setting up a charitable trust named the Dr Chou Sip King Trust, in honour of her late husband - a general practitioner who died in 2007.

The couple did not have any children.

In the will, the widow appointed her niece, Madam Hedy Mok, a tour agency owner, to run the trust for 30 years and make annual donations to beneficiaries in four fields: education, children's charity, animal welfare and medical research.

"He has no more interest in my aunt's assets," said Madam Mok of Yang, adding: "He gets nothing. If he wants to challenge the will, he has to go to court."

Madam Mok added that her aunt's lawyer will be filing the new will in court soon.

The Chinese national had met the widow in 2008 while acting as her private tour guide when she visited Beijing with Madam Chang.

A year later, he moved into the widow's bungalow, claiming that she had adopted him as a grandson and asked him to look after her.

He set up a music and dance school and obtained an Employment Pass in 2009. He obtained permanent residency in 2011 and brought his wife and two young children to Singapore last year as his dependants.

The 40-year-old has since been arrested by police and charged in court. He faces 334 charges for allegedly lying to the Immigration and Checkpoints Authority and falsifying receipts made to his company, Young Music and Dance Studio.

He has been denied bail and has remained behind bars since Oct 31. He is due back in court for a pre-trial conference on Thursday.

Separately, Yang is also being sued by Madam Mok in the High Court for allegedly manipulating her aunt into handing over her assets.

Madam Mok is seeking damages and trying to add his wife, parents and previous bailor as defendants in the suit. The suit will be heard today.

tohyc@sph.com.sg

kcarolyn@sph.com.sg


Background Story

'HE GETS NOTHING'

He has no more interest in my aunt's assets. He gets nothing. If he wants to challenge the will, he has to go to court.

- Madam Hedy Mok, on Yang Yin

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Related headlines

Ex-guide seeks to retain some control over widow's fortune, ST, 11 Dec

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Re-hiring up to age 67 to be made law by 2017

Business Times
15 Dec 2014

[Singapore] LEGISLATION on the re-employment of older workers up to the age of 67 will be introduced by 2017, said Minister of Manpower Tan Chuan-Jin, as reported by Channel News Asia.

He also highlighted that it would get harder for businesses to find the required manpower from 2020, when the local labour force participation rate starts to plateau due to demographic factors.

The local labour force participation rate has increased, thanks to more older workers and women back at work. However, this may have negated efforts to increase productivity, the minister said.

He also said that the possiblity of having different Minimum Sums for different groups, depending on their needs, is one of the ideas being looked at for the Central Provident Fund (CPF) system.

The Minimum Sum is the amount a CPF member has to set aside upon reaching 55 years to ensure some regular income upon retirement at 65. The figure, which currently stands at S$155,000, will be raised to S$161,000 in July 2015.

On the transition time of 2-3 years before the new retirement age becomes law, Mr Tan said that this was to allow for markets and businesses to adjust.

Talks are underway with the unions and employers to get them ready. Incentives will be given to support companies that voluntarily re-employ their older workers up to the age of 67, although Mr Tan did not elaborate.

On the labour front, he said that it had been a relatively good year for Singapore, with positive business sentiments and an employment rate close to 80 per cent. The tight labour market and efforts to improve wages have also meant pay increases for those in the bottom 20th percentile.

However, he noted that "ironically, while it's a positive sign having a better labour force participation, high employment numbers overall may actually negate some of that push towards that drive to productivity".

The pool of local workers will start to shrink in time.

"The baby boomer generation are going to begin to retire," he said. "Even with the extension of the retirement age and the Re-employment Act kicking in and so on, you will begin to see more of them leaving the workforce. Correspondingly, because of lower birth rates, the workforce entering the job market is also beginning to decline.

"So what you will see in the next few years is these numbers declining. So even with Labour Force Participation measures still being in place, still being positive, that pool of labour force coming back will actually begin to reduce. So in the Population White Paper, we actually talk about how when you hit 2020 onwards, you will begin to see the labour force plateauing."

Hence, the critical need to embrace productivity measures such as automation, re-engineering processes and re-skilling the workforce. "The time to change is now," said Mr Tan.

On the idea of having different Minimum Sums for different groups, Mr Tan noted that even under the current system, "if you are able to accept a smaller payout, you do a property pledge and so on, you re-use the amount that you keep, then obviously the amount being streamed out is less". "So I think we are looking at various options available and then tied to these options would be differing amounts that you would need to accumulate.

"We are also looking at the possibility of extending the amount, because there are also a number of people who want to top up their CPF but could not because there are limits. Actually, many also do realise that keeping monies in the CPF makes a fair degree of sense for them as well, both in terms of the savings and the interest that's being provided."

Another possibility being studied is a stream of payouts that get higher as the years go by to combat the effects of inflation. The CPF Advisory Panel is expected to submit its preliminary recommendations to the government by February 2015.

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

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25 Nov 2014

Hearing on South China Sea dispute to begin

Straits Times
15 Dec 2014
Raul Dancel

Philippines' case against China at UN tribunal boosted by Vietnam's entry

NINE months after giving Beijing the opportunity to air its views, a United Nations tribunal can now begin hearing a case filed by the Philippines contesting China's claims to the resource-rich and commercially vital South China Sea.

The court gave China until today to present its case. It declined to do so.

Much is at stake. A ruling later this year or early next year against the Philippines will be nothing short of catastrophic, as it will effectively lose half its maritime territories.

In March this year, the Philippines filed a 4,000-page case that disputes China's claims based on a "nine-dash line", a map first published in the 1940s that draws a U-shaped line spanning 90 per cent of the South China Sea.

Filing the complaint had largely been a solitary journey for Manila. But on Dec 5, Vietnam weighed in.

Hanoi asked the Permanent Court of Arbitration in The Hague to consider its legal interests and rights in the disputed region when hearing the Philippines' case. It also contested the nine-dash line.

That has changed the game, analysts say.

Beijing can no longer brush aside the Philippines' case as a fool's errand, they say.

For Vietnam, it is an opportunity to contain China's expansion in the Paracels, an island chain in the northern part of the South China Sea.

Brunei, Malaysia and Taiwan also claim part of the sea, through which about US$5 trillion (S$6.5 trillion) worth of ship-borne goods pass every year.

"The number of states supporting us only indicates that our position is correct," Professor Harry Roque, director of the University of the Philippines Law Centre Institute of International Legal Studies, told The Straits Times.

Vietnam's submission "raises the stature of the case in the eyes of the arbitration tribunal", Emeritus Professor Carlyle Thayer of the Australian Defence Force Academy in Canberra told Bloom- berg.

In May, China parked a US$1 billion (S$1.3 billion) mobile oil rig owned by state-run CNOOC oil company 240km off Vietnam's coast, sparking anti-Chinese violence in Hanoi.

China towed the rig back in July, and had since sought to make amends with Vietnam.

New reports, however, suggest tensions are simmering anew between the two socialist neighbours.

A report by IHS Jane's Defence said China is building an artificial island 3km long and up to 200m wide on Fiery Cross reef in the Paracels, large enough for an airstrip and a harbour that can resupply fighter aircraft and warships.

The Want China Times reported last Saturday that a Chinese guided-missile frigate was involved in a stand-off with a Vietnamese Gepard-class stealth frigate and its sister ship near Johnson South Reef, where China is building a 2,000m-long runway.

The Philippines has been toning down its rhetoric against China, even as it pursues its case with the UN tribunal.

In an exclusive interview with The Straits Times last month, President Benigno Aquino said arbitration would not have been necessary had there been a "code of conduct" that would prevent conflicts at sea.

Yesterday, the Philippine Foreign Ministry said in a statement that Vietnam's submission to the UN tribunal "is helpful in terms of promoting the rule of law and in finding peaceful and non-violent solutions to the South China Sea claims based on international law".

China has dismissed Vietnam's sovereignty claim in the South China Sea, saying it is "illegal and invalid".

In a scathing commentary, the Chinese state news agency Xinhua said "the Philippines has been acting like a crying baby by seeking international arbitration".

The UN court is expected to rule as soon as late next year or early 2016.

China has repeatedly said it will not accept the tribunal's ruling, but a verdict against it will have repercussions that will affect its dealings with other, more powerful nations.

Mr Jose Antonio Custodio, a security and defence consultant who has worked for the US Pacific Command, said ceding territories in the South China Sea by diplomacy will never be on the cards.

"Everyone knows that China doesn't care at all and will continue in its activities despite the arbitration. It's the Middle Kingdom mentality and it's alive and well in Beijing," he said.

rdancel@sph.com.sg


Background Story

So what happens now?

THE Permanent Court of Arbitration in The Hague has given China until today to present its response to a case lodged by the Philippines over the South China Sea.

China has said it will not be a party to the case, which disputes Beijing's claims to the sea.

Here is what will likely happen next.

Early 2015: The Philippines expects the tribunal to send written questions regarding its case.

With China's non-participation, the court may take into account China's recent position paper and a book about Beijing's stance on the issue, The South China Sea Arbitration: A Chinese Perspective.

Mid-2015: The court may then ask the Philippines to present oral arguments.

During 2015: Members of the arbitration court will inspect the contested islets, reefs, shoals and rocky outcrops, although China might not allow access to areas it controls.

Late 2015 or early 2016: A ruling is expected.

RAUL DANCEL

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Business Names Registration Act 2014 (Act 29 of 2014)

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Business
21 Nov 2014

Club, member fail to reclaim costs in defamation case

Straits Times
13 Dec 2014
K.C. Vijayan

Ex-president used $1.5m to defend himself, has to pay damages

THE Singapore Swimming Club yesterday failed to recover its $1.5 million from former president Freddie Koh that was used to defend a defamation suit against him.

But Judicial Commissioner Lee Kim Shin also ruled that Mr Koh will not be allowed to be reimbursed by the club for the more than $300,000 in damages and costs he could end up paying, after losing the defamation suits against him in 2011 and last year.

It is understood that Judicial Commissioner Lee will issue the grounds for his decision later.

The case where both sides lost and were ordered to bear their own legal costs is expected to be instructive to other clubs in relation to the extent that club funds should be used to bear the legal bills in civil suits involving club office bearers.

Mr Koh, 68, became club president in 2008 but was voted out at an extraordinary general meeting (EGM) in March 2012.

While in office, he made defamatory remarks during two management committee meetings about a previous committee's decision to purchase a water filtration package for two Olympic-size swimming pools.

Four of the affected committee members sued him in 2009 and were subsequently awarded $50,000 in damages each by the Court of Appeal. Two other members who also separately sued Mr Koh were awarded $50,000 each in damages earlier this year.

Mr Koh had used about $1.5 million in club funds to defend the 2009 defamation suit brought by Mr Bernard Chan, Mr Robin Tan, Mr Nicholas Chong and Mr Michael Ho, which he lost.

Key to the whole episode before Judicial Commissioner Lee was the club's 2012 EGM which resolved that he not be allowed to use club funds to settle his losses. Club members had voted at the meeting, resolving that Mr Koh foot all the legal expenses he incurred while defending the case.

Mr Koh sued the club to be reimbursed for monies paid in damages to the club members who won the suit against him.

The club opposed the move and counterclaimed for about $1.5 million used to defend him in the defamation suit.

His lawyer, Mr Paul Seah from Tan Kok Quan Partnership, argued that club members cannot retrospectively invalidate at the EGM an earlier decision by the management committee to fund his legal fees and pay whatever he incurred in the form of damages paid to the members who had sued him.

Mr Seah added that Mr Koh was acting in the course of his duties and had a common understanding with the club, based on committee meetings, that it would pay his legal costs. He had hired lawyers to defend him in the defamation suits on this understanding.

The move to indemnify office bearers was affirmed several times before the 2012 EGM.

But WongPartnership Senior Counsel Tan Chee Meng countered for the club that payments were made for Mr Koh's legal costs under a mistake of fact.

He argued that the Court of Appeal had found in clear terms in the defamation case that Mr Koh had acted with malice, and this meant his actions could not be counted as done in the proper discharge of his duties as club president.

The club yesterday, through its lawyers, said it would "review the full grounds of decision before deciding on the next course of action".

vijayan@sph.com.sg

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Merchant Shipping Act - Merchant Shipping (Registration of Ships) (Amendment) Regulations 2014 (S 765 of 2014)

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Business
21 Nov 2014

Keppel Club looking into 'phantom memberships'

Straits Times
13 Dec 2014
Hoe Pei Shan

KEPPEL Club is looking into whether it must honour memberships purchased by unwitting buyers under an alleged fraudulent scheme.

The 110-year-old golf and social club's management filed a police report in August, alleging fraud potentially involving some 1,200 memberships worth millions of dollars.

Keppel has not issued any new memberships in the past decade, but has allowed members to transfer their memberships, typically through club brokers, for a transfer fee of $12,000 per transaction paid to the club.

It is understood that a long-time club employee in charge of memberships is suspected of having issued some 1,200 membership cards - possibly creating phantom members to do so - without crediting any transfer fees to the club. This could have been carried out over the last 10 years, prompting several who got memberships in that time to worry that their membership may be terminated.

"Even if mine ends up being among the affected few, the fact remains that it was not my wrongdoing," said one member, a 60-year-old engineer and club member of five years, who declined to give his name.

Mr Mervyn Foo, one of the lawyers from Lee & Lee representing Keppel Club, told The Straits Times yesterday: "The matter of whether the club is bound to honour potentially phantom memberships is an issue that the club will have to, and is, considering."

The club declined to comment as investigations are ongoing. The senior management's decision to keep mum has frustrated several club members.

Mr Victor Lim, 59, a retiree and club member for over 20 years, said he is still waiting for answers after writing to the club two weeks ago: "Keeping quiet only makes it seem like they are trying to cover up something."

hpeishan@sph.com.sg

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

Related headlines

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20 Nov 2014

Man fined for taking $50,000 bribe

Straits Times
13 Dec 2014
Elena Chong

Ex-manager of developer helped agent get into early-bird condo launch

A SENIOR manager of a developer was given $50,000 twice by a property agent for slipping him into an early-bird condominium sale, where he managed to get options to purchase 11 units at The Rochester in North Buona Vista, a district court heard yesterday.

Yesterday, United Engineers Developments' (UED) former senior manager Suhaimi Amin, 52, was fined $60,000 for corruptly receiving a $50,000 bribe from Mr Goh Chan Chong by providing invitation cards and listings under the "VVIP" (very very important people) status for the launch in 2007. A second similar charge was taken into consideration

Before The Rochester's official launch on July 16, 2007, UED held an exclusive preview for those classified as "Special Very Important Persons". One level down, VIP invitation cards for the soft launch, to be held that day, would be mailed to VVIPs such as consultants and contractors.

Sometime in June 2007, Suhaimi received a call from Mr Goh who claimed to be an experienced property investor and asked for VIP invitation cards to the soft launch. When Mr Goh persisted, Suhaimi gave him a few of the invitations.

Deputy Public Prosecutor Sanjiv Vaswani said investigations revealed that on July 16, 2007, Mr Goh - together with his mother, wife, mother-in-law, two brothers and their former girlfriends, his mistress and her friend, as well as a staff of UED - obtained options to purchase a total of 11 units that cost $1.1 million to $2.2 million each. The total booking price for the 11 units came up to $17 million. But two options were not exercised.

Shortly afterwards, Mr Goh met Suhaimi twice and handed him $50,000 each time as a token of appreciation. Suhaimi returned the $100,000 to Mr Goh in May 2008.

District Judge Michelle Yap agreed with Suhaimi's lawyer P.E. Ashokan that there were strong mitigating factors, particularly the fact that his client kept the money in its original state, and ultimately, returned it to the giver.

"It appears to me this is a one-off thing, which he had succumbed to temptation, and he is remorseful," she said.

Suhaimi could have been fined up to $100,000 and/or jailed for up to five years for corruption.

elena@sph.com.sg

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Legislation
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Former president of ST Marine charged, along with two ex-employees

Business Times
12 Dec 2014
Claire Huang

[Singapore] BLUECHIP engineering giant Singapore Technologies Engineering (ST Engineering) has been hit by a corruption scandal that has implicated six former senior executives including two ex-presidents of its wholly owned subsidiary, Singapore Technologies Marine Ltd (ST Marine).

On Thursday, three of the six - Chang Cheow Teck, 54, Ong Tek Liam, 58, and Mok Kim Whang, 64, - were charged in court.

Chang, who was president of ST Marine from March 2008 to April 2010 and president of ST Aerospace from May 2010 till June this year, allegedly conspired with two subordinates - Ong and Teh Yew Shyan - to offer bribes in return for shiprepair contracts between 2004 and 2010.

Court documents said that a bribe of more than S$234,000 was given to Hyundai Engineering and Construction Limited's employee, Seo Tae Kyu, in March 2009.

The charges stated that Chang conspired to bribe two unnamed staff of Myanma Five Star Line between February and April 2010, with payments totalling more than S$39,000. It is unclear if the two unnamed staff are separate individuals or the same person.

Chang's lawyer, Hamidul Haq, said that Mr Teh, who was a senior vice-president at ST Marine from 2004 to 2010, is deceased.

Ong, who was the company's group financial controller and senior vice-president of finance from April 2007 to December 2012, faces 118 counts of conspiring with Mr Teh and ex-president See Leong Teck, to defraud the company between 2004 and 2010.

She allegedly abetted false entries in petty cash vouchers for bogus entertainment expenses amounting to more than S$521,000.

Mr See was president of ST Marine from December 1997. He retired in February 2008.

Mok, the former senior vice-president (Tuas Yard) of ST Marine from June 2000 to July 2004, has been accused of one count of conspiring with Mr See and Patrick Lee Swee Ching, to bribe another Hyundai staff Pyo Sei Jin in return for shiprepair contracts. He allegedly paid Mr Pyo more than S$43,700 in May 2004. Mr Lee had served as ST Marine's group financial controller from January 2001 to October 2006 before he left to join VT Systems. He retired in October 2012.

Asked if more individuals will be charged, an Attorney-General's Chambers spokeswoman declined comment as further investigations are ongoing.

The pre-trial conference for the three accused has been fixed on Jan 9. The maximum penalty under Section 6(b) of the Prevention of Corruption Act is a fine of S$100,000 and a jail term of five years.

For falsifying entries with intent to defraud, the maximum punishment is 10 years in jail and a fine.

Singapore investment firm Temasek Holdings has a majority stake in ST Engineering, a solutions and services provider in the aerospace, electronics, land systems and marine sectors.

In a statement to the Singapore Exchange on Thursday, ST Engineering said that it had first announced in September 2011 that the Corrupt Practices Investigation Bureau (CPIB) was investigating certain transactions "involving former and current employees of ST Marine".

It added that the charges against the three ST Marine former employees "are not expected to have any material impact on the consolidated net tangible assets or consolidated earnings per share of the ST Engineering Group for the financial year ending Dec 31, 2014".

ST Engineering's shares closed down three Singapore cents at S$3.39.

huangjy@sph.com.sg

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Medical Registration Act - Medical Registration (Certifying Authority) Regulations 2014 (S 762 of 2014)

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Legislation
20 Nov 2014

Japanese freight firms fined $7m

Straits Times
12 Dec 2014
Grace Leong

Competition watchdog penalises 10 for price fixing

THE competition watchdog has imposed penalties totalling $7.15 million on 10 Japanese freight forwarders, including some of the sector's biggest names, and their local subsidiaries for price fixing.

Another company, DHL Global Forwarding, escaped the fine by being the first to blow the whistle and provide evidence to the Competition Commission of Singapore (CCS).

The 10 companies fined were Hankyu Hanshin Express, "K" Line Logistics, Kintetsu World Express, MOL Logistics, Nippon Express, Nishi-Nippon Railroad, Nissin Corp, Vantec Corp, Yamato Holdings and Yusen Logistics.

CCS found that the firms and their local units or affiliates infringed Section 34 of the Competition Act by collectively fixing certain fees and surcharges and by exchanging client and price information for shipments on the Japan-Singapore route.

Together, they control an estimated 40 per cent to 60 per cent of the market for air shipments from Japan to Singapore.

In the early 2000s, airlines started levying a fuel surcharge on freight forwarders as fuel prices rose. CCS found that, from September 2002, the parties, which were supposedly competitors, began discussing at meetings in Japan how to deal with the additional costs.

They also discussed costs arising from new security requirements mandated by Japan's Ministry of Land, Infrastructure, Transport and Tourism from 2006.

At the meetings, they exchanged information, and decided how much to charge clients for fees and surcharges related to airfreight forwarding services involving the Japan-Singapore route.

CCS found evidence pointing to a "significant mark-up in some instances", and that the parties discussed how much they were actually charging customers and how successful they were in collecting the fees and surcharges.

Although DHL Global was involved, it escaped penalty and qualified for full immunity under the watchdog's leniency programme because it was the first to notify CCS and provide evidence of cartel activity. The leniency initiative gives cartel members an incentive to blow the whistle.

Nippon Express and Yusen received the highest penalties of $2.07 million and $2.04 million respectively. They did not apply for leniency and the penalties would have been higher but were mitigated by the fact that they both cooperated with CCS in its investigation.

Others such as Hankyu Hanshin, Kintetsu, Nishi-Nippon and Vantec received a discount for leniency.

This is the second international cartel case here to result in multimillion-dollar fines against foreign-registered firms and their local units. In May this year, four Japanese ball-bearing manufacturers and their Singapore subsidiaries were slapped with a record $9.3 million penalty for engaging in cartel activities to fix prices.

These are the largest penalties imposed by CCS to date.

CCS chief Toh Han Li said at a briefing yesterday: "Price fixing between competitors is considered one of the most harmful types of anti-competitive conduct. It distorts terms of trade between cartellists and their customers, so the latter are not able to enjoy competitively determined rates."

Said Mr Gerald Singham, a partner at Rodyk & Davidson's corporate practice group who represented "K" Line and MOL Logistics: "This decision reflects strict enforcement by CCS against anti-competitive conduct. As Singapore is an open economy, businesses here are vulnerable to such international cartels."

gleong@sph.com.sg

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

Electricity Act - Electricity (Electricity Transmission Licence) (Exemption) (No. 2) Order 2014 (S 761 of 2014)

Latest developments in IP: opposition to trade mark registration;abetting in counterfeiting; changes to IP laws

Business
19 Nov 2014

Medical ethics not about legality or illegality: Forum

Straits Times
12 Dec 2014

I THANK Dr Yik Keng Yeong for his letter ("Why lawyers not on SMC disciplinary panels"; Wednesday) addressing the concerns of Mr Heng Cho Choon ("Worrying lack of legal expertise on SMC panels"; Tuesday).

As I understand it, there are at least three lawyers present in a disciplinary tribunal hearing. There is a lawyer each for the prosecution and the defendant, along with a legal assessor that advises the panel of three doctors on matters of points of law.

The practice of medicine is complex with outcomes that can be unpredictable. It is within this complexity that medical ethics has evolved over the centuries.

The bedrock of medical ethics recognises the following:

• Patients have autonomy or control over their choice of treatment;
• Doctors must put the interest of the patient first;
• Doctors must, first and foremost, ensure that their treatments do not harm the patient; and
• There must be social justice in allocating scarce health-care resources to the public at large.

It is within this framework that a tribunal of doctors must assess their fellow colleagues for professional misconduct.

Take the case of a patient with respiratory tract infection who is treated with antibiotics. He has the right to refuse the treatment; the doctor must ensure that the antibiotics are necessary for the condition; the patient should not be allergic to the antibiotics; and the consultation fee and cost of the antibiotics must be reasonable.

If one approaches the issue from the legal aspect of breaking the law, it is almost impossible for a policeman to decide what is "right" or "wrong" if the outcome is bad for the patient.

Medical ethics is not about legality or illegality, and going down the legalistic route does not solve the problem, as seen in the case of Dr Lawrence Ang ("Doctor succeeds in appeal against suspension"; Nov 22).

Finally, we want to see that the Singapore Medical Council continues to judge doctors based on the framework of medical ethics.

In reinforcing this framework, doctors and patients will continue to embrace this enduring social contract based on the goodwill and reciprocal responsibility that have been built, shaped and forged over the last century.

Chong Yeh Woei (Dr)

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 79) Notification 2014 (S 760 of 2014)

Land Acquisition Act amended: Changes relating to betterment levy and acquisition of common property

Legislation
19 Nov 2014

Yet to pay up Malaysian traffic fine? Foreigners face arrest soon

Straits Times
12 Dec 2014
Shannon Teoh

MALAYSIAN police have warned they will soon arrest foreigners who have not paid up their traffic fines, as the government takes a harder stance against those who have piled up a total of 838,510 summonses in the past 14 years.

But drivers from Singapore, who contributed 37.4 per cent of this total, need not fret just yet about entering Malaysia for the year-end holidays, as the authorities have to finalise details with government agencies on setting up an electronic system to spot the errant motorists.

Vehicles from Singapore and southern Thailand are regularly driven into Peninsular Malaysia, while those from Brunei and Kalimantan in Indonesia make trips into Sarawak and Sabah.

Malaysian traffic police chief Fuad Abdul Latiff said at a press conference on Wednesday that "police will conduct operations soon at various road entry points to detect these errant motorists".

He told The Straits Times later that plans to nab foreigners with unpaid fines and warrants of arrest "are not happening" until a new system at entry points to Malaysia has been agreed upon with other agencies, including the Immigration Department.

"Setting up operations (for arrests) will be the next step after the system has been finalised," he said yesterday.

A Nov 9 crash, involving a Porsche 911 Turbo from Singapore that killed the nephew of Hong Leong chairman Kwek Leng Beng, sparked an outcry against Singaporean drivers, who are accused of speeding recklessly on Malaysian roads.

In December last year, three Lamborghinis from Singapore crashed and burned near Seremban town along the North-South Expressway.

Apart from the 313,661 summonses for Singapore-registered vehicles still outstanding, there are 4,621 arrest warrants issued against repeat offenders from Singapore.

Malaysian traffic summonses - which cost between RM150 (S$57) and RM300 for speeding and parking offences - can be paid online or at Malaysian post offices and police stations. But many Singaporeans appear to have ignored them as there is little legal repercussion.

There are currently no checks on the records of vehicles entering Malaysia. Drivers who are stopped for new offences do not routinely have their records checked, which allows them to accumulate unsettled summonses and get away scot-free.

Malaysia is working to set up a blacklist of repeat traffic offenders to block them from driving in.

The new electronic system is aimed at reining in drivers who flout rules with no fear of punishment, said Road Safety Department chief Tam Keng Wah.

He said the new electronic mechanism will work in tandem with the Vehicle Entry Permit (VEP) system which Malaysia wants to introduce for Singapore- registered vehicles entering Johor Baru.

The VEP system was reported as being planned to be put in place by the year end, but implementation details have not been revealed.

Mr Fuad also said Malaysian police have received approval to install what is called Automated Number Plate Recognition equipment, which will help track foreign vehicles.

According to last year's Auditor-General's Report, Singaporeans paid 12,000 summonses between 2011 and last year. This works out to less than 15 per cent of the 84,000 summonses issued.

Malaysians, on the other hand, face graver consequences for ignoring their fines, such as having their licences revoked. They settled 6.7 million out of 16.2 million fines - about 40 per cent - during the same period.

shannont@sph.com.sg

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

Education Endowment and Savings Schemes Act - Education Endowment and Savings Schemes (Scholarships, Bursaries and Awards) (Amendment) Regulations 2014 (S 759 of 2014)

SHC registrar considers discoverability of inventor’s notes in patent suits

Judgments
19 Nov 2014

Global cross-border M&A volumes at seven-year high: report

Business Times
12 Dec 2014
Kenneth Lim

[Singapore] COMPANIES struck more cross-border mergers and acquisitions (M&A) in 2014 than in any of the past seven years amid a surge in megadeals, according to a report by Baker & McKenzie.

Global cross-border deals stood at US$1.2 trillion as at the start of December, the law firm said, citing data compiled by Thomson Reuters. Except for 2007, when cross-border transactions hit US$1.9 trillion, the year-to-date volume has already surpassed every year since 1998, the earliest year for which data was available.

Large deals played a big part. Transactions worth more than US$5 billion contributed 38 per cent of year-to-date cross-border volume, the most since 1999, when 49 per cent of volume came from deals about that threshold.

US companies were a particularly popular target for out-of-country investors.

Asian buyers into US targets rose 67 per cent to US$61 billion, while inound deals from Europe into the United States hit US$244 billion, the highest level since 2000.

The healthcare sector was especially vibrant, accounting for US$257 billion of global cross-border volumes. Of that contribution, about 77 per cent came from deals larger than US$5 billion.

Tim Gee, Baker & McKenzie global head of M&A, attributed the cross-border volumes to companies seeking growth markets.

"We see how high-value deals are the result of long-term strategic planning and not just reactions to favourable market conditions," Mr Gee said. "In this year, inversions unlocked some strategic moves that might otherwise have been out of reach. But changes in tax policy are not going to put a lid on cross-border M&A, which will remain a highly effective tool for implementing strategy. Many companies are planning cross-border transactions in the next few years."

The surge in cross-market dealmaking reflected a strong year for M&A in general, with global volumes at the highest levels since the Global Financial Crisis.

The region remained dominated by China, although India has seen renewed interest as well, Baker & McKenzie Wong & Leow head of corporate and securities Andrew Martin said. South-east Asia is up and coming.

"Of particular note is South-east Asia, which is emerging as a strong player in attracting investors' interest," Mr Martin said. "This has been further stimulated by the promise of integration through the Asean Economic Community, for which 2015 should be a landmark year and the opportunities offered by the rapid development of Myanmar."

A recent EY confidence poll of 120 South-east Asian companies showed that 53 per cent of respondents wanted to acquire in the next year, more than the 24 per cent just six months earlier. That was a two-year high.

The companies had also become more confident of closing deals, with 42 expecting success versus 25 per cent half a year earlier. M&A sentiment in Singapore was particularly robust, with 84 per cent saying that they expected the local M&A market to improve. That was the highest among South-east Asian countries.

kenlim@sph.com.sg

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

Public Transport Council Act - Public Transport Council (Bus Service Operator’s Licence) (Exemption) (Amendment No. 2) Order 2014 (S 758 of 2014)

Strata Titles Board holds that s 47 of the BMSMA cannot be used to obtain documents for use in other proceedings

Judgments
18 Nov 2014

ADV: SMU's new LLM programme

Singapore Law Watch
12 Dec 2014
Singapore Management University

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 78) Notification 2014 (S 757 of 2014)

European Patent Office and IPOS to launch PPH pilot programme

Business
18 Nov 2014

Time Inc loses S’pore trademark case against Chinese magazine

TODAY
11 Dec 2014
Kelly Ng

Fortune Times’ mark ruled as ‘more dissimilar than similar’ to those of TIME and FORTUNE

SINGAPORE — Publishing giant Time Inc has failed in its bid to invalidate the Singapore trademark of Fortune Times, a bimonthly Chinese financial magazine.

The New York-based company publishes more than 90 magazines, including TIME and FORTUNE, which were founded in 1923 and 1930, respectively. Fortune Times Pte Ltd, owned by Mr Li San Zhong, a sole proprietor in China, published the first issue of its namesake here in March 2004 and was assigned its trademark in March last year.

Time Inc argued that the Fortune Times mark infringed upon the trademarks of its TIME and FORTUNE magazines, confusing customers and damaging its interests.

Fortune Times utilised the same dominant components as its marks and there was a high likelihood that the competing marks would be seen as economically linked even though they were not, argued Time Inc.

However, the principal assistant registrar of trademarks ruled that Time Inc’s application had failed on all grounds. In a 31-page judgment made public yesterday, Ms See Tho Sok Yee held that although all three marks were used for similar goods and Fortune Times had marginal conceptual similarities with FORTUNE magazine’s mark, the competing marks were “more dissimilar than similar when observed in their totality”.

She noted that while the memorable components of the TIME and FORTUNE marks are the words themselves, Fortune Times’ mark is distinguished by four large Chinese characters positioned to the left of the words “FORTUNE TIMES”.

Ms See Tho added that prospective consumers have the opportunity to browse through periodicals before deciding whether to purchase them. And since content would be the paramount consideration for consumers of periodicals — who were likely to exercise a relatively high degree of care in selecting reading material of interest to them — there was no reasonable likelihood of confusion between the goods.

She also found no grounds to assert that Fortune Times would damage Time Inc’s interests or dilute the distinctive character of its TIME and FORTUNE marks. She also remained unpersuaded by Time Inc’s “bare assertion” that Fortune Times’ mark had been chosen in bad faith to confuse customers into thinking there was a connection between the entities.

Time Inc was ordered to pay costs to Mr Li for the case.

kellyng@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

To view the judgment, click <here>.

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Protected Areas and Protected Places Act - Protected Places (Consolidation) (Amendment No. 6) Order 2014 (S 756 of 2014)

IPOS appointed as ASEAN’s first International Authority in Patent Search and Examination under the Patent Cooperation Treaty

Business
18 Nov 2014

Law would have been on airline's side, says SMU prof: SIA ticket price mix-up

Straits Times
11 Dec 2014
K.C. Vijayan

He cites Act, similar case where court ruled against online buyers

WHEN Singapore Airlines (SIA) said on Monday that it would honour hundreds of business class fares mistakenly sold at economy rates, this was probably out of goodwill rather than any legal obligation, a law academic has argued.

Singapore Management University Associate Professor Goh Yihan believes SIA would have had the law on its side on two counts: A similar previous case in which the court ruled against the buyers, and the Electronic Transactions Act governing online purchases.

The apparent mix-up led to tickets being sold online for as much as A$5,000 (S$5,500) cheaper than they should have been for flights between Australia and Asia and Europe.

Prof Goh wrote in the Singapore Law Blog on Tuesday that "assuming that domestic contract law applied to the facts, SIA's eventual decision to honour the cheaper rates was probably not legally mandated, but a move to preserve goodwill among its passengers".

The blog, supported by the Singapore Academy of Law, is dedicated to discussion of legal issues and reviews.

Prof Goh points to a 2004 High Court case in which buyers snapped up 1,606 commercial laser printers online mistakenly priced at $66 each, when the actual price was $3,854. In sum, printers worth $6.2 million were sold for about $106,000.

The court ruled that the seller had made a mistake in posting the wrong price online and that the great price disparity should have been obvious to the buyer.

The contract between the two was therefore void because of the seller's unilateral mistake.

Prof Goh also points to the 2011 Electronic Transactions Act, which provides another level of protection to online retailers.

The Act makes clear that a price offered online is not an offer to be accepted by the buyer, but is, instead, an invitation to the consumer to make the offer to buy, which, in turn, is left to the seller to accept.

"This means that pricing errors would not be legal offers capable of forming a contract immediately upon a customer's acceptance," says Prof Goh.

Therefore, if the Electronic Transactions Act or its Australian equivalent were applied, SIA would not be legally bound.

"In the end, the SIA episode reminds us of the importance of reading agreements carefully," Prof Goh adds.

The law, in general, clamps down on the "snapping up" conduct by consumers who are out to take advantage of mistaken pricings, when the consumer knew or should have known about the pricing error, he says.

Lawyer Choo Zheng Xi said he was on the same page as Prof Goh in relation to the mistake, but said the issue may be "considered afresh" here and the previous case could be distinguished from the present.

"It would be difficult for SIA to rely on their mistake, as the price discrepancy was not too great," he said.

Rodyk & Davidson lawyer Yew Woon Chooi noted, however, that if SIA's system transmitted an automatic message to accept the customer's offer to buy the business-class ticket, then a binding contract is in place under the 2011 Act to be honoured by SIA unless it can be cancelled on the grounds of mistake.

"On the whole, the law is likely to favour the customers," she said.

But Prof Goh points out that for online retailers, the "greatest concern is probably in maintaining their reputation".

"Especially when the price discrepancy is not that great, such that the consumer cannot be accused of 'snapping up', the sway of public opinion, rather than the law, may be what compels the retailer who made a mistake to bear the consequences of its error. That, it seems, is exactly what happened in the SIA episode."

vijayan@sph.com.sg


Background Story

PRESERVING GOODWILL

When the price discrepancy is not that great, such that the consumer cannot be accused of 'snapping up', the sway of public opinion, rather than the law, may be what compels the retailer who made a mistake to bear the consequences of its error. That, it seems, is exactly what happened in the SIA episode.

- Singapore Management University (SMU) Associate Professor Goh Yihan

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Stamp Duties (Amendment) Act 2014 (Act 30 of 2014)

New guidelines and proposed regulations for the healthcare sector

Legislation
17 Nov 2014

Ex-guide seeks to retain some control over widow's fortune

Straits Times
11 Dec 2014
Carolyn Khew

FORMER China tour guide Yang Yin yesterday applied to the court to maintain some control over a widow's estimated $40 million assets after his Lasting Power of Attorney (LPA) was revoked last month.

The 40-year-old, who is also a beneficiary in Madam Chung Khin Chun's will, filed to become a defendant in the case brought by Madam Chung's niece, Madam Hedy Mok, who is applying for full deputy powers to manage her assets and daily matters.

As the 87-year-old suffers from dementia, this would allow Madam Mok to manage her aunt's assets on her behalf.

Yang's lawyer Joseph Liow said that being a defendant in the case would mean that Yang could object to Madam Mok's application or ask the court to set limits on her powers.

Earlier, the court had granted Madam Mok only limited deputy powers to commence legal proceedings on behalf of her aunt to preserve or recover her assets.

Mr Liow added that Yang has "the right to object" to her application as he has an interest in Madam Chung's estate.

In 2010, the wealthy widow changed her will to appoint Yang as the sole executor and beneficiary of her estate.

"All options are open at this time," Mr Liow said.

The next court session will take place on Jan 15.

Yang, a Chinese national, separately faces 334 charges for immigration offences and falsifying receipts made to his company, Young Music and Dance Studio.

He met the widow in 2008 while acting as her personal tour guide on a trip to Beijing. A year later, he moved in with the widow, who has no children, at her Gerald Crescent bungalow - estimated to be worth $30 million.

Yang is also involved in a separate lawsuit brought by Madam Mok, who is trying to add his wife, parents and previous bailor as defendants.

She has alleged that Yang manipulated her aunt into handing over her assets.

kcarolyn@sph.com.sg

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

Immigration Act - Immigration (Amendment No. 2) Regulations 2014 (S 755 of 2014)

Singapore Tourism Board Act amended to tighten regulation of tourist guides

Legislation
17 Nov 2014

Wife of S'porean held in Batam selling flat to pay for lawyers' fees

Straits Times
11 Dec 2014
Joyce Lim

THE wife of a Singaporean man who has been detained in Batam for over 50 days has resorted to selling her flat in a last-ditch attempt to get her husband back.

Mrs May Lim, 40, told The Straits Times that she has spent all her savings on legal fees to try to bring her husband Lim Yong Nam, 40, back to Singapore.

She plans to use the funds from selling her three-bedroom apartment to pay for lawyers' fees in Indonesia.

Mr Lim was arrested at Batam Centre ferry terminal when he sought to enter Indonesia on Oct 23 to attend a trade exhibition to source for business. He has been detained in Batam since, even though he has not committed an offence in Indonesia.

The businessman, who is on an Interpol list, is wanted by the United States for breaching a US trade embargo against Iran.

The US had accused Mr Lim of acquiring 6,000 radio frequency modules for export to Iran and had asked for his extradition in 2011. But he was not extradited, as Singapore's High Court found that the wrongdoing he was accused of was not an offence here.

"This is the second time my daughters' father has been taken away from them," said Mrs Lim, recalling her earlier ordeal when her husband was first arrested from their home in 2011. "My children ask me for their father every day. I can only tell them that their dad will be back soon."

Mrs Lim said she has been struggling to support the family since her husband fell into depression in 2011 after his arrest.

He did not know he was on the Interpol notice when he travelled to Batam, she added.

She and their two daughters, aged two and five, have since moved out to live with her parents. She has been travelling to the police headquarters in Batam twice a week to visit Mr Lim.

The Straits Times understands that Mr Lim has been on Interpol's list since September last year, even though he did not encounter any problems when he travelled to Jakarta that month.

After his arrest this October, the US Attorney-General made a request to the Indonesian government to extradite him last month, even though Indonesia does not have an extradition treaty with the US. As a result, Mr Lim's detention in Batam was extended by another 30 days.

Mr Lim's lawyer has written to Indonesian President Joko Widodo, appealing for Mr Lim to be deported to Singapore as he had been found by the Singapore courts to have not committed an offence.

Mr Lim's fate remains unclear. When contacted, a Ministry of Foreign Affairs spokesman said she did not have any updates on his case. Indonesian National Police spokesman Boy Rafli Amar told The Straits Times last week that they are "still coordinating with Interpol".

Mrs Lim is still clinging to the hope that her husband can make it back to Singapore for their daughter's Kindergarten 1 graduation ceremony on Saturday, as his 30-day detention will be up tomorrow.

"I wish the Singapore Government can do more to help us. My husband has already been tried and has proven his innocence here. Please do not abandon us."

joycel@sph.com.sg

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

Constitution of the Republic of Singapore - Public Service (Special and Senior Personnel Boards) (Amendment No. 9) Order 2014 (S 754 of 2014)

United Nations (Sanctions - Iran) Regulations 2014: Update on sanctions against Iran

Legislation
17 Nov 2014

Making laws: Keep watch at every stage of process

Straits Times
11 Dec 2014
Tham Yuen-C

An amendment that made the House sit up and listen puts the Bill scrutiny process under the spotlight

TUESDAY, Nov 3, seemed another typical day in Parliament. A Bill was being put to the House for passing. Just as politicians wrapped up the regular debate that precedes a Bill's passing, the Speaker of the House addressed a woman sitting by the front benches, asking about an amendment she wanted to make.

Somewhat curious, elected Members of Parliament turned to check that they were not hearing things - for the woman who wanted the change was not of their ranks, but Nominated MP Chia Yong Yong.

She sought a last-minute amendment to a clause in the much-heralded Pioneer Generation Fund Bill to create a $9 billion fund for the health-care needs of first-generation Singaporeans.

Ms Chia said the clause suggested that the pioneers could be subjected to means-testing, and she wanted it replaced.

A qualified lawyer, she was using an aspect of the British Westminster-style parliamentary process - which is the basis of today's Singapore system - to propose a change to a Bill be made during the committee stage of lawmaking.

No Member of Parliament had done so for 10 years.

Under Westminster-based systems in other countries, Bills go on to an intense committee stage after being debated, during which MPs can propose amendment clauses, and omit, substitute or add words. But in Singapore, the committee end of things has become somewhat of a formality.

No wonder, then, that Ms Chia's move met surprise and some confusion. Indeed, MPs went on to vote against the amendment. But the next day, Senior Minister of State for Finance Josephine Teo agreed to the change and thanked Ms Chia for the proposal.

The last time an MP suggested a change was in 2005, when then Non-Constituency MP Steve Chia moved a motion to amend the Income Tax (Amendment) Bill on behalf of then NMP Ivan Png, who was away in Geneva. Mr Png asked for a reduction in the length of time tax records must be kept, but his amendment was rejected.

Before that, the two MPs who proposed the most amendments this way were former NMP and National University of Singapore law don Walter Woon, and former Workers' Party MP J. B. Jeyaretnam. With the latter, it was to protest against laws that he did not agree with.

During Prof Woon's three terms as NMP from 1992 to 1996, he suggested amendments on at least four occasions, many related to clauses that he felt were too widely drafted.

One memorable example was in 1996, to the Miscellaneous Offences (Public Order and Nuisance) (Amendment) Bill. He proposed that some clauses criminalising nudity be more specific - so it would not include those nude in their own homes and, without intending to be, spotted by people outside. This was rejected.

Besides amending a Bill, MPs who disagree with it can also vote against it entirely. This means they do not want the law to be passed, and would not accept it with just the kind of minor changes that can be allowed at the committee stage.

Former NMP and Singapore Management University constitutional law professor Eugene Tan says: "When MPs object to a Bill, they are saying that the Bill is fundamentally flawed, and no amendment can actually deal with the defect."

Why not more often?

IN SINGAPORE, this committee stage is typically over in minutes. More often than not, the committee goes through clauses in batches, instead of line by line.

In some other countries with Parliaments based on the Westminster system, it can take hours or multiple sittings. For example, the UK House of Commons Public Bill Committee considering the Pension Schemes Bill sat 10 times this year on it.

Prof Tan notes: "In a way, it is a formality (here) when the Parliament is in committee stage." Part of the reason is that Bills here are generally well drafted, and MPs may feel the Bills are fit for the purpose and do not require much amendment, he says.

Between the time when a Bill is first tabled and its second reading in the House, the ministries responsible for it, as well as the Attorney-General's Chambers that help draft it, would also have gone through it.

This is when they may discover minor errors, which will be amended in an order paper supplement tabled before Parliament sittings, says Prof Tan.

Deputy Speaker of the House Seah Kian Peng says that with the Government consulting widely before Bills are tabled, any issues would have been ironed out at an earlier stage. "Therefore, the likelihood of it missing something or needing to amend it during the committee stage is less," he says.

It is also difficult to amend Bills "on the fly" since changing the words in one part may affect other parts, says MP and lawyer Vikram Nair.

"Quite often they are drafted very precisely and if you amend the words in one part without thinking through the other parts, that might be problematic," says Mr Nair.

Besides, says MP and lawyer Hri Kumar Nair, there are other ways to contribute to the process of scrutinising Bills. "You ask for an amendment when you think that what's in the Act is clearly wrong. Most of the time it's not the case, and it's more about language that is unclear. But laws have to be broad to cater to many situations," he says.

Mr Hri Kumar Nair, who often asks questions about specific clauses in Bills, says clarifying these points during the debate can help people understand the laws better. During the debate on the Road Traffic (Amendment) Bill in September, he was among several MPs who asked for clarification on whether the law, which prohibits using mobile phones while driving, would cover all electronic devices that could prove a distraction for drivers.

Parliamentary transcripts, or Hansard, can be referred to by the courts to help in interpreting statutes later, says Mr Hri Kumar Nair.

What about PAP MPs?

ACCORDING to parliamentary records, only NMPs and opposition MPs have made use of the committee stage to suggest amendments. No PAP MP has ever done so.

Mr Hri Kumar Nair and Mr Vikram Nair say it is because ruling party MPs have other informal channels to moot changes, and would have already given their feedback earlier.

Those from the relevant Government Parliamentary Committees, for instance, are often consulted by the Government before the Bills are even introduced in Parliament. "That's where a lot of discussion takes place and it makes sense because that way the drafters can go back and consider the proposals," says Mr Vikram Nair.

Sometimes, MPs are also invited to sit on special committees formed to look into proposed legislation. Says Mr Hri Kumar Nair: "We would've given our inputs beforehand. We are involved upstream as well as downstream. It makes sense, since MPs are the representatives of the people, and you wouldn't want the Government to table a Bill without first talking to people."

And while there is a party whip - Health Minister Gan Kim Yong - who is supposed to ensure MPs vote according to the party line, it is not enforced for amendments in Bills during the committee stage, says Mr Seah. This means PAP MPs are free to moot such amendments, or vote to accept those proposed by other MPs.

As for opposition MPs, Prof Tan reckons they may have preferred to register their disapproval more strongly by voting against Bills they fundamentally cannot agree with.

Another reason could be that the MPs may feel their proposed amendment would be voted down anyway, since the PAP controls a majority in Parliament, says Prof Tan.

Mr Seah acknowledges that the "numbers are stacked up in that sense".

Efficiency v public process

AN UPSIDE of this Singapore style of making laws is that Parliament makes efficient use of time. The House sat for 33 days this year and has passed 40 pieces of legislation so far.

And 29 went through the second reading, committee stage and third reading in a day.

Says Mr Seah: "The way our Parliament has been functioning serves us quite well - it's a balance between efficiency and ensuring there's enough space and time for Bills to be aired, considered and debated robustly."

But the downside of providing feedback behind the scenes - as opposed to in Parliament - is that the public is not privy to the process of discussion and debate that goes into writing the laws.

Mr Vikram Nair, however, notes that the public is often brought into the process through public consultations started by the ministries in charge of the Bill. "I don't think the public keeps up with the detailed discussions in Parliament. I suspect having public consultations is much better so they can give their feedback if they have any concerns," he says.

As to why the Government accepted Ms Chia's amendment, albeit after some to-ing and fro-ing and a day later, Mr Vikram Nair says it could be because the amendment was "very much in the spirit of the Bill anyway".

Indeed, the move by Ms Chia shows that giving pause to reflect can yield benefits.

It suggests that in Singapore, where the executive takes the lead in lawmaking, Parliament as a partner of the process can afford to be more assertive in monitoring the quality of legislation.

This requires parliamentarians to not just care about legislative standards, but also use existing processes effectively.

The Government, on its part, could also show, as it did in Ms Chia's case, that it is willing to consider amendments made in good faith and that will make legislation better.

Mr Hri Kumar Nair says that the process exists for MPs to scrutinise Bills, and the onus is on them to do so. There is nothing to stop MPs from approaching their contacts outside for advice when the Bills are complicated and technical, he says.

"You do see MPs putting in quite a lot of effort in some cases because it is a matter that's close to their heart. It's up to the MPs how far they want to go," he says.

yuenc@sph.com.sg

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

Public Entertainments and Meetings (Amendment) Act 2014 (Act 32 of 2014)

Singapore International Mediation Centre spearheads mediation of international commercial disputes and use of innovative Arb-Med-Arb procedure

Business
14 Nov 2014

Keppel Club hit by shock discovery of 1,000 "phantom" members

Business Times
11 Dec 2014
Anita Gabriel

Case is said to be under investigation by police, CAD; details remain sketchy

[Singapore] THE over 100-year-old Keppel Club has been rocked by a recent shocking discovery of "phantom" memberships involving over 1,000 accounts at the grand club.

The Business Times understands that the case, which allegedly involved a staff, is under investigation by Singapore's police and the Commercial Affairs Department (CAD) and that the club is "providing their cooperation" in the "extensive investigations".

This latest development could be disconcerting for members of the club which was hit earlier this year by news that the lease on the 44 hectares of land it occupies, which includes its club house and an 18-hole course, has been slated for housing development and will not be renewed when it runs out in seven years.

When contacted, a senior member of the club's management team declined to provide details on the probe, but confirmed that the matter was under investigation.

The details of how a club employee is involved are not clear, but there is talk that it has been taking place for several years and may involve membership transfers, each of which involves a S$12,000 fee.

The uncertainty is keeping the rumour mill in overdrive and is making some club members very nervous.

Keppel Club has over 5,000 members and counts passionate golf players and senior citizens among them.

"We don't know how we will be affected or if we are affected at all and if our names are under that so-called fictitious list," said an executive who has been a Keppel Club member for seven years.

The club's management has not issued a notice to inform the members about the ongoing probe, possibly because it is awaiting more clarity itself.

"If a notice is issued to members at this point, it will only lead to more questions, which the management of the club does not readily have (answers to) at this point. That's why they have been silent. They will be notified appropriately in due course," said an insider.

It is also unclear if the "fake" membership accounts are linked in any way to existing memberships, but so far, club brokers contacted by BT say they have not received any complaints.

"None of my clients have so far called me to complain that they paid for the membership but haven't received their cards or can't use the facilities. It's business as usual," said one broker.

Keppel Club's membership prices have fallen drastically to S$14,000 on the back of the non-renewal of its lease, which expires in 2021. It used to change hands at more than double this price a decade ago. The family-oriented club, deemed a "Singapore heritage", has yet to find an alternative site, and the prospect that it will be a "club with no real estate" has further kept a lid on its value.

anitag@sph.com.sg

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Supreme Court of Judicature Act - Rules of Court (Amendment No. 5) Rules 2014 (S 753 of 2014)

MAS requires dealers in precious stones and precious metals to report cash transaction and conduct customer due diligence

Business
14 Nov 2014

ADV: SMU's new LLM programme

Singapore Law Watch
11 Dec 2014
Singapore Management University

Interpretation Act - Interpretation (Temporary Reduction of Electronic Road Pricing System Charges) (No. 2) Order 2014 (S 752 of 2014)

[GBR] Equitable constraints imposed on the powers of a mortgagee

Commonwealth
14 Nov 2014

S'pore, US sign deal to fight tax evasion

Straits Times
10 Dec 2014

SINGAPORE has signed an information-sharing deal with the US aimed at fighting tax evasion by Americans using overseas accounts.

Deputy Secretary for Finance Ng Wai Choong and US Ambassador to Singapore Kirk Wagar signed an intergovernmental agreement to implement the Foreign Account Tax Compliance Act (Fatca) yesterday.

Fatca requires all financial institutions outside the US to regularly submit information on financial accounts held by US persons to the US Internal Revenue Service (IRS).

Financial institutions here will report the information to the Singapore government, which will in turn relay it to the IRS. This will help to ease the compliance burden for financial institutions here as their obligations will be deemed to have been met once they pass the information to the Singapore authority, in this case the Inland Revenue Authority of Singapore.

The financial institutions will also have to perform due diligence checks to identify financial accounts held by US persons.

Fatca will not affect Singapore citizens who have no US tax liabilities.

Failure to comply with the reporting requirements will result in the US government imposing a 30 per cent withholding tax on US payments made to the banks that breach the American rules.

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Protection from Harassment Act 2014 - Protection from Harassment (Exempt Class of Persons) Order 2014 (S 751 of 2014)

Latest developments in IP: Plant varieties; registered designs; GUI guidelines; International Searching Authority

Business
13 Nov 2014

Man with schizophrenia who stabbed dad acquitted

Straits Times
10 Dec 2014

A 26-YEAR-OLD man who was mentally unsound when he stabbed his father with a pair of scissors was acquitted yesterday.

Instead, Mr Lee Jun Hong will be kept at the Institute of Mental Health (IMH) to be treated.

Mr Lee, who has paranoid schizophrenia, was alone at home with his father, Mr Lee Kok Keong, 56, on Sept 24 last year when he stabbed the older man in the back.

Deputy Public Prosecutor Kelly Ho said in an agreed statement of facts that the duo were watching a television show about a man who had killed someone and pretended to be suffering from a psychiatric illness.

The older Mr Lee was going to the kitchen when the younger man, who had been talking to himself, dashed towards his father.

Mr Lee Jun Hong took a pair of scissors from a kitchen drawer and charged at his father, who turned and ran towards the kitchen toilet to hide.

He caught up with his father and stabbed him in the back before throwing the scissors on the floor.

He then followed his father into the toilet and punched him randomly. One of the punches landed near his father's right eye.

The older man, however, managed to push his son aside and sought refuge at their neighbour's home. The police were called.

An IMH report stated that the younger Mr Lee was of unsound mind at the time.

Therefore, he was incapable of knowing that the nature of the act was wrong or contrary to law, the DPP said.

Lawyer Favian Kang told District Judge Ng Peng Hong that the IMH was a more suitable place to confine his client than prison.

He said that when the younger Mr Lee committed the offence, he thought his father was a "devil in disguise".

While in remand, the younger man heard and saw more things and his condition worsened, said Mr Kang.

After he was sent to IMH, he was certified fit to plead seven months later.

The lawyer said his client's parents support their son's stay at IMH as it would enhance his recovery and the treatment was better than in prison.

The maximum penalty for the offence is seven years' jail, a fine, caning or any combined punishment.

ELENA CHONG

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Protection from Harassment Act 2014 - Protection from Harassment (Public Service Worker) Order 2014 (S 750 of 2014)

Government accepts Tricom recommendation to promote extension of re-employment age ceiling from 65 to 67 years

Business
13 Nov 2014

Patent law and the secret to success

Straits Times
10 Dec 2014
Ivan Png

What's the connection between intellectual property and innovation?

OUR leaders repeatedly stress that we need to raise productivity. There are three ways to increase productivity. Two are costly - giving workers more education and raising their skills, and investing in more and better equipment and machinery. The third - working smarter - may be more cost-effective.

The key to working smarter is innovation - better products, better processes, and better management and organisation. So how do we get businesses to innovate? Businesses innovate to increase profit (or, in some industries, such as restaurants and movies, businesses innovate just to sustain demand). Policymakers and scholars widely believe that society can stimulate innovation by strengthening intellectual property rights.

Intellectual property rights - patents for inventions, copyrights for expression and trademarks for distinctive identifiers - give the owner exclusivity. The thinking is that, during the period of exclusivity, the owner will be legally protected from competition and can earn more from the innovation. The increase in earnings will stimulate businesses to invest more in innovation.

Singapore has been busy reforming intellectual property law. In February, our patent system changed from one of "self-assessment" to one of "positive grant". Under the new system, the Intellectual Property Office will issue a patent only if the invention is examined and determined to meet the requirements of novelty, inventive step and industrial applicability. Under the previous system, the applicants for a patent made these determinations themselves.

But will stronger patent law increase innovation? The answer is not clear. While the stronger patents may increase the innovator's profit, they might frustrate others trying to build on earlier innovations. Consider the fashion and food industries: one designer inspires another, one chef's recipe prompts others to create similar dishes.

So, whether stronger patent law will increase innovation may depend on the circumstances - the industry, overall stage of economic development, and the distribution of resources, particularly knowledge workers.

A recent survey commissioned by the IP Academy of Singapore provides some insight. Eighty-seven companies of different sizes and spread across multiple industries responded. They were asked to evaluate various ways of protecting their innovations.

On a scale of one (not effective) to seven (very effective), businesses rated secrecy as the most effective, with an average rating of 5.43 for product innovation and 5.44 for process innovation.

What about patents?

For product innovations, the companies rated patents least effective, behind trademark, copyright and design. For process innovations, the firms rated patents a distant second after secrecy.

This finding - that secrecy is more effective than patents in protecting innovations - is not unique to Singapore. Surveys of businesses in Australia, Europe and the United States have found similar results.

The reported effectiveness of secrecy was not significantly related to either employment or the number of patents. Apparently, among larger businesses and those with more patents, the effectiveness of secrecy was not lower than that among smaller businesses and those with fewer patents.

What do these findings mean for innovation? I should qualify that the survey reveals the average effectiveness of each way of protecting innovation. Strictly, the survey does not inform the marginal effectiveness, or how businesses would respond to changes in the relevant law.

Subject to that proviso, the IP Academy survey suggests that a relatively more effective way to stimulate innovation is to strengthen laws to protect trade secrets rather than patent and copyright laws. Indeed, in a study using US data, I find that stronger trade secret laws were associated with more research and development spending.

stopinion@sph.com.sg

The writer is a Distinguished Professor at the NUS Business School and departments of economics and information systems, National University of Singapore


Background Story

This is a monthly series by the NUS Economics Department. Each month, a panel will address a topical issue. If you have a burning question on economics, write to stopinion@sph.com.sg with "Ask NUS" in the subject field.

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Protection from Harassment Act 2014 - Protection from Harassment Act 2014 (Commencement) Notification 2014 (S 749 of 2014)

Singapore International Commercial Court: Bills introduced in Parliament to establish court

Legislation
13 Nov 2014

ADV: A STEP closer to understanding Estate Planning

Singapore Law Watch
10 Dec 2014

Newspaper and Printing Presses Act - Newspaper and Printing Presses (Exemption from Part III of Act) (Amendment No. 5) Order 2014 (S 748 of 2014)

SHC: Reserve powers of management may devolve to shareholders when board is deadlocked

Judgments
12 Nov 2014

ADV: SMU's new LLM programme

Singapore Law Watch
10 Dec 2014

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 77) Notification 2014 (S 747 of 2014)

SHC grants leave to bring derivative action under s 216A Companies Act

Judgments
12 Nov 2014

No-win situation for all: Lack of legal expertise on SMC panels - Forum

Straits Times
10 Dec 2014

IT IS interesting to read about the various gaffes by the Singapore Medical Council, but also distressing to see some of the conclusions drawn from the latest saga ("Worrying lack of legal expertise on SMC panels" by Mr Heng Cho Choon; yesterday).

To blame the whole problem on not having passed a regulation to have a lawyer chair the disciplinary panel is missing the forest for the trees.

Current regulations already allow for a lawyer to sit on the panel. Of course, one is seldom requested as the cost is significant. Also, there are lawyers sitting in attendance at all such proceedings to advise the SMC. It would seem, however, that they are not advising the SMC correctly, so it suggests that the presence of a lawyer makes little difference.

What I find intriguing is the role of the Ministry of Health (MOH). In the recent case of a woman who made a complaint against her gynaecologist, it would seem that the SMC had made the correct call initially in dismissing it.

On what grounds did MOH direct the SMC to hold a disciplinary hearing, and was the council pressured to return a guilty verdict? Many of my doctor friends have hinted as much, as they often gripe that the odds are stacked against the doctor if MOH is the complainant.

The question of the SMC's finances is also a cause for concern. Why is the system so opaque? It is only fair that doctors and the public get a clear indication of how money is being spent.

Lastly, it cost the person who made the groundless complaint hardly anything.

In cases of medical disputes, it is often emotions and not hard facts that influence the complainant's decision. What safeguards do the institutions have to ensure that groundless complaints are not persistently lodged, wasting everyone's time and money?

Let us not forget that such costs are invariably passed on to patients, so it is a no-win situation for all.

Peter Chen

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Women’s Charter - Women’s Charter (Places of Safety) Order 2014 (S 746 of 2014)

Business Names Registration Bill 2014: Simplifying the registration process

Legislation
12 Nov 2014

Why lawyers not on SMC disciplinary panels: Forum

Straits Times
10 Dec 2014

MR HENG Cho Choon harbours some misconceptions about the Singapore Medical Council in its conduct of disciplinary tribunals ("Worrying lack of legal expertise on SMC panels"; yesterday).

Doctors know well enough that they are dilettantes when dabbling with the law, so legal counsel is always present for both the SMC and the defendant doctor in all proceedings of the disciplinary tribunal.

When doctors appeal to the law courts, more often than not, it is a guilty verdict by the disciplinary tribunal that is overturned. It implicitly suggests that the courts are less stringent in the interpretation of medical standards than the doctors who make up the disciplinary tribunal.

Dr Chong Yeh Woei, then president of the Singapore Medical Association, addressed this concern in the letter ("Disciplinary tribunals are not law courts"; June 24, 2009). He pointed out that, while lawyers are present at SMC disciplinary hearings to ensure that "procedural matters pertaining to principles of fairness and natural justice are not overlooked", whatever is not necessarily illegal or impermissible may not be medically ethical.

He added that the role of the disciplinary tribunal is to determine if there is professional misconduct in areas which the law is silent on. As mentioned earlier, this is distinct from illegality. Dr Chong's concern then, as should be everybody's concern now, is that allowing lawyers to chair disciplinary tribunals will make proceedings more legalistic, with "a slow deterioration in the higher standards of medical ethics, which is against public interest".

Appropriately, he also noted that it is by the same reasoning that lawyers do not sit on the disciplinary tribunals of other professions in Singapore.

Laymen should be careful what they wish for - they may get it, much to their detriment.

Yik Keng Yeong (Dr)

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Requisition of Resources Act - Requisition of Resources (No. 4) Order 2014 (S 745 of 2014)

PP v Teo Chu Ha: Ex-Seagate director's acquittal in question following SCA's decision

Judgments
11 Nov 2014

Boy awarded S$1.25m after accident leaves him a quadriplegic

TODAY
09 Dec 2014
Kelly Ng

Driver who ran red light has to pay for boy’s loss of future earnings, pain, medical bills

SINGAPORE — A nine-year-old boy, who suffered irreparable brain damage and became a quadriplegic after being knocked down by a driver who ran a red light in the middle of the day, has been awarded more than S$1.25 million in damages by the High Court.

The sum the driver has to pay includes damages for the boy’s pain and suffering, his loss of future earnings and medical expenses in the years ahead. Both the boy and the car driver have filed appeals against the court’s decision, which will be heard in February.

The accident, which took place at a signalised pedestrian crossing along Jurong East Avenue 1 on July 6, 2011, left the boy, who is now 12, with the intellectual ability of a 12-month-old baby, said a judgment delivered on Nov 21, which was made public yesterday. Once active in sports, he is now bedridden, requires around-the-clock care and has to be fed a liquid diet through a tube.

Yesterday, the boy’s lawyer Michael Han said an eyewitness said the boy was “flung up high and continuously hit several times” by the car that had beat a red light.

He sustained severe traumatic brain injury and was warded in intensive care for more than five weeks.

Five medical experts who testified at the civil suit estimated that the boy would live up to 38 years old, adding that surgery, rehabilitation and physiotherapy sessions will be a mainstay for the rest of his life. For instance, he will have to undergo tendon-lengthening operations and Botox infusions to reduce muscle spasticity.

The court also heard that the boy has a higher chance of contracting pneumonia and respiratory infections, such as the common cold, compared with a normal child.

“Clearly, the accident had adversely affected the plaintiff and the lives of his family members,” said Assistant Registrar Jean Chan, who heard the case.

She ordered the driver to pay S$1,252,825.86 in damages in total, including S$190,000 for the boy’s pain and suffering, S$233,878.14 for his loss of future earnings and S$317,380.75 for future medical expenses.

Damages were also awarded for the loss of future earnings for the boy’s mother, who had to quit her job as a receptionist in a law firm to care for him full-time. She is now being assisted by a domestic helper.

Ms Chan also made an order that the boy may apply for future damages within three years from the judgment date if he requires a permanent tracheostomy — an operation that creates an opening through the neck to bypass an obstructed airway — as a result of contracting pneumonia.

kellyng@mediacorp.com.sg

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To view the judgment, click <here>.

Housing and Development Act - Housing and Development (Design-Build-And-Sell Scheme - Vesting) (No. 4) Notification 2014 (S 744 of 2014)

[GBR] Standard of proof for fraud exception to bank’s obligation to pay under letter of credit

Commonwealth
11 Nov 2014

SIA passenger's psychological injury claim fails

Straits Times
09 Dec 2014
K.C. Vijayan

Aussie judge rules airline liable only for bodily injuries

A SYDNEY court, in a suit by a passenger against Singapore Airlines (SIA), has affirmed the standing rule that no damages can be claimed against an airline for psychological injuries caused on a flight.

Justice Michael Adams of the New South Wales Supreme Court said he was bound by the Warsaw Convention, which deals with injuries caused to air passengers and limits such impairments to bodily and not psychological injuries.

Australia is a signatory to the Warsaw Convention, as are many other countries, including Singapore.

Mr Emile Halime had sued for the psychological injury he claimed to have suffered on an SIA flight 22 years ago.

He alleged seeing an engine on fire on a flight from Athens to Singapore on May 28, 1992.

"It may be readily accepted that he was terrified of what he thought would or might happen, and for present purposes, I accept that he has significant psychological effects from the experience," said Justice Adams, in judgment grounds released last week.

The judge noted that a similar suit was made against SIA in 1996 by a passenger on the same flight.

In that earlier suit, a passenger named Ms Kotsambasis, who was seated on the left side of the plane when facing the front, said she saw smoke coming from an engine on the starboard, or opposite, side.

There was then an announcement in the cabin that there was an engine problem, the plane would be returning to Athens and fuel had to be jettisoned. The plane landed an hour after take-off, at 3.23am.

The judge in that case had also accepted her evidence that she was distressed, anxious and had suffered a severe fright.

But the New South Wales Court of Appeal held that she could not claim for the psychological injury suffered, based on its interpretation of the Warsaw Convention.

Justice Adams said the appeals court's decision was binding on him, and a litigant's sole right to compensation is defined by the convention and not any other law. He added that the claim should have been brought within two years of the incident unless the court granted approval for a time extension.

Rodyk & Davidson lawyer Edric Pan pointed out that the Warsaw Convention states the carrier is liable for death, wounding or "any other bodily injury" suffered by passengers.

"It should be noted that the convention does not specifically exclude liability for psychological injury, but case law over the years has largely held that pure psychological injury in the absence of any physical injury is not a 'bodily injury' under the convention."

He clarified that the Warsaw Convention has now been superseded by the Montreal Convention of 1999, which has been ratified by many countries, including Singapore and Australia.

The newer convention "still provides that the air carrier shall be liable for death or 'bodily injury' of passengers", he noted.

"In view of the prevailing case law interpreting the words 'bodily injury' under the conventions, it would appear that a passenger who has suffered purely psychological injury would not have any recourse against the airline," he added.

vijayan@sph.com.sg

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Trade Marks Act - Trade Marks (Amendment) Rules 2014 (S 743 of 2014)

SGX welcomes Bank of China as SGX’s first Chinese settlement bank for derivatives market

Business
11 Nov 2014

Lying to civil servant: Bid to clarify sentencing law

Straits Times
09 Dec 2014
Ian Poh

A FORMER National Parks Board (NParks) officer was fined for telling a falsehood to government auditors, and now the prosecution has asked Singapore's apex court to clarify when the more severe punishment of a jail term is warranted for lying to a public servant.

Mr Bernard Lim Yong Soon was fined the maximum $5,000 in June after he was found guilty by a district court of lying to the auditors about his friendship with a bicycle shop owner, whom he had tipped off about a government tender.

A criminal reference has been filed with the Court of Appeal, under which only points of law, not issues concerning the evidence, are to be decided.

"The Attorney-General is of the view that it is in the public interest to clarify certain issues of sentencing law," a spokesman for the Attorney-General's Chambers said yesterday.

This was in the light of "important questions of law" that had arisen, on appeal, following Mr Lim's convictionafter a nine-day trial. He could have been jailed for up to a year and fined $5,000.

On Nov 21, the High Court dismissed both the prosecution's appeal that Mr Lim should be jailed for three to four months, and Mr Lim's appeal against his conviction.

In late 2011, he had tipped off the boss of Bikehop about an upcoming NParks tender for foldable bikes. Bikehop entered a bid to sell 26 Brompton bikes to NParks in January 2012. It was the sole bidder and it won the tender.

In June 2012, the deal came under intense public scrutiny over the $2,200 price tag of each bicycle.

When questioned by Ministry of National Development auditors about his relationship with Bikehop director Lawrence Lim, Mr Lim lied that they had met for the first time only in March 2012, after the tender was awarded. But the truth was that the two first met at a night cycling event in September 2011, before NParks invited bids for the bikes.

In May this year, Mr Lim was convicted of lying to the auditors but acquitted of a second charge of instigating the Bikehop boss to lie.

In the criminal reference, the prosecution also wants the court to make clear whether a sentencing court can justify not imposing a jail term - even if imprisonment is warranted - if there are mitigating factors that favour the accused.

pohian@sph.com.sg

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Registered Designs Act - Registered Designs (Amendment) Rules 2014 (S 742 of 2014)

SHC: Are provisional arbitration awards enforceable before the Singapore courts?

Judgments
07 Nov 2014

Ex-tour guide not filing appeal over LPA

Straits Times
09 Dec 2014
Carolyn Khew

FORMER China tour guide Yang Yin will not appeal against a court ruling that led to the authorities revoking his power over a wealthy widow's welfare and finances.

The Family Court had ruled two weeks ago that Madam Chung Khin Chun has the mental capacity to revoke the Lasting Power of Attorney (LPA) she granted Yang in 2012.

The Office of the Public Guardian (OPG) proceeded to revoke the LPA on Nov 25 - a day after the Family Court's decision.

Yang's lawyer Joseph Liow told The Straits Times yesterday that his client will not be appealing against the decision. When asked why, Mr Liow declined to reveal details, citing confidentiality reasons. He added that the deadline for appeal was yesterday.

In September, the OPG had requested the Family Court appoint a medical expert to independently assess Madam Chung's mental capacity shortly after she applied to revoke the LPA.

The 87-year-old, who has assets estimated at $40 million, was diagnosed with dementia this year.

Yang's lawyers will return to court tomorrow for a closed-door session to hear an application by Madam Chung's niece Hedy Mok, who is asking for full legal rights to care for her aunt.

At present, the limited deputy powers that the court granted Madam Mok in August allow her only to commence court proceedings on behalf of her aunt to preserve or recover her assets.

Having full deputy rights, however, would mean that she can legally have a greater say in caring for her aunt's personal welfare.

Yang, 40, met Madam Chung in 2008 when he was hired as her personal tour guide on a holiday to Beijing. A year later, he moved to Singapore to live with the widow, who has no children, in her Gerald Crescent bungalow estimated to be worth $30 million.

Madam Mok has alleged, in a civil suit, that Yang manipulated her aunt into handing over her assets estimated to be worth $40 million.

She is now trying to add Yang's wife, Madam Weng Yandan, 34, his parents and his previous bailor as defendants.

Apart from that ongoing civil suit, Yang is facing 334 charges for allegedly falsifying receipts made to his company Young Music and Dance Studio, as well as immigration offences.

kcarolyn@sph.com.sg

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Registered Designs Act - Registered Designs (International Registration) (Amendment) Rules 2014 (S 741 of 2014)

[HKG] Hong Kong Competition Commission publishes draft guidelines - a key step toward bringing the Competition Ordinance into full force

Commonwealth
07 Nov 2014

Worrying lack of legal expertise on SMC panels: Forum

Straits Times
09 Dec 2014

IT IS too bad that then Health Minister Khaw Boon Wan's proposal in 2009 to amend the Medical Registration Act, such that Singapore Medical Council (SMC) disciplinary tribunals include a legally trained person, was derailed ("Paying the price when rulings are overturned"; last Saturday).

If this had not been the case, SMC's case against obstetrician and gynaecologist Lawrence Ang would likely not have seen the light of day ("Doctor succeeds in appeal against suspension"; Nov 22).

If the SMC chooses to discipline doctors through a tribunal void of legal knowledge, then appeals against its rulings are likely to crop up again and again.

Doctors may be specialists in their respective fields, but they are not experts in legal issues.

When the SMC convenes a tribunal, panel or committee to make decisions that affect the livelihoods of doctors, it behooves the council to apply the rules of natural justice.

It should bear in mind that people have a right to be heard, and the ruling must be made by someone free of bias, and must be based on evidence, and not on speculation or suspicion.

Lastly, decisions must be communicated clearly, to explain what evidence was considered in the decision-making process.

Heng Cho Choon

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Trade Marks Act - Trade Marks (International Registration) (Amendment) Rules 2014 (S 740 of 2014)

MAS revises lodgement fees for prospectuses

Business
07 Nov 2014

Case needs landlords' support to deal with errant retailers: Forum

Straits Times
09 Dec 2014

WE THANK Mr Cheang Peng Wah for his letter ("Why get landlords to enforce fair trading law?"; last Thursday).

Consumer protection requires the cooperation of all parties. While the Consumers Association of Singapore (Case) can speak up for consumers, we also need retailers to have fair trading policies.

Malls and landlords can work with Case by exerting pressure on retailers or tenants not to behave dishonestly in their business activities.

The law already gives landlords some powers. Under the Building Maintenance (Strata Management) Regulations 2005, there is an existing by-law which states that "a subsidiary proprietor or an occupier of a lot shall not use his lot for any purpose (illegal or otherwise) which may be injurious to the reputation of the subdivided building".

Case had suggested to the landlords of Sim Lim Square and People's Park Complex that they consider incorporating a term in their tenancy agreements that the tenants must comply with the by-laws not to injure the reputation of the mall.

In fact, at a press conference held by the Management Corporation Strata Title of Sim Lim Square on Nov 7, at least one landlord raised a similar suggestion of passing a by-law to terminate the tenancy agreements of unscrupulous retailers.

Also, many tenancy agreements already have similar clauses that tenants must comply with the laws of Singapore. For example, most landlords in residential premises would terminate the tenancy if a tenant was found to be operating an illegal gambling den.

There is no reason why similar practices cannot be extended to commercial properties.

Such a move will protect not only consumers but also the reputation of the malls involved.

Ultimately, if the unpleasant incidents at Sim Lim Square continue unabated, the retail shops at the mall will also suffer.

Lim Biow Chuan

President

Consumers Association of Singapore

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Patents Act - Patents (Amendment No. 3) Rules 2014 (S 739 of 2014)

Health Products Act: Public consultation on proposed changes

Legislation
06 Nov 2014

ADV: SMU's new LLM programme

Singapore Law Watch
09 Dec 2014
Singapore Management University

Intellectual Property (Miscellaneous Amendments) Act 2012 - Intellectual Property (Miscellaneous Amendments) Act 2012 (Commencement) (No. 3) Notification 2014 (S 738 of 2014)

ASIC and MAS sign world-first MOU on authorities’ access to OTC derivatives trade repository data

Business
06 Nov 2014

Less regulatory burden, more flexibility in Companies Act reform

Business Times
08 Dec 2014
Marcus Chow

Structural flaws in the Act that had been created by piecemeal amendments over the years have also been dealt with

AFTER seven years of review, the most extensive amendments to the Companies Act since its enactment in 1967 have finally been passed.

In October 2007, the finance minister appointed a steering committee, chaired by SID honorary fellow professor Walter Woon, to review the Act. Its brief: provide an effective and efficient regulatory framework that's conducive to setting up and doing business in Singapore.

The committee sought to remove regulatory burdens, promote business flexibility, and clarify the scope and extent of directors' duties. At the same time, it took the opportunity to deal with structural flaws in the Act that had been created by piecemeal amendments over the years.

Several rounds of public consultation followed the committee's proposed amendments, before the Companies Act (Amendment) Bill was passed this October. Here are some of the key changes that promote the twin objectives of removing regulatory burdens and promoting business flexibility.

The costs of compliance are being reduced for small companies. A private company that meets two of three criteria (annual revenue or total assets not more than S$10 million, or number of employees not more than 50) for two consecutive financial years is exempt from audit. In addition, all companies (and not just listed companies previously) may send summary financial statements to members. A dormant non-listed company is exempt from preparing accounts if its total assets are not more than S$500,000.

The administration of company registers is streamlined. Private companies no longer need to keep a register of members. Instead, the Accounting and Corporate Regulatory Authority (Acra) will maintain electronic records including registers of directors, secretaries, auditors and CEOs. This will allow for real- time registration of share ownership and transfers of shares, while allowing the public greater access to records.

The Act now also allows for an auditor of a company to resign in situations where the company refuses to hold a general meeting or to appoint a director. However, if the company is listed on the Singapore Exchange, Acra's consent is required.

Electronic communications

The Act allows for notices or documents to be given to members by way of electronic communications with the consent of members. A member is implied to have consented if the company's constitution specifies the manner in which electronic communications is to be used, and provides that the member shall not have the right to elect to receive physical copies of such documents.

The striking-off process for companies has also been streamlined. The period for showing cause has been reduced from three months to 60 days, while the period of time for appeal to the court by an aggrieved person to the striking-off has been reduced from 15 years to six years.

The Act also merges the memorandum and articles of associations of companies into a single constitution. The new regulations further provide model constitutions which companies can choose to adopt wholesale (in which case there will be no need to file the constitution with Acra), or to adopt partially and adapt provisions as needed.

The Act provides for greater flexibility in corporate fund-raising and a wider range of investment opportunities.

Public non-listed companies can now issue shares with different voting rights, though this right is subject to certain conditions - such as the requirement to seek shareholders' approval to issue such shares, and for the company's constitution to specify the rights of the different classes of shares. Holders of non-voting shares will, however, have equal voting rights on resolutions to wind up the company.

A multiple proxy regime has been introduced to enfranchise indirect investors. Several intermediaries can now appoint more than two proxies (which was the former limit). These intermediaries are essentially the CPF Board, and banks and other companies licensed to provide custodial services. There is a longer cut-off period of 72 hours (versus the previous 48 hours) for the submission of proxies. Proxy holders can also vote in a show of hands instead of voting only by poll.

The previous prohibition on private companies providing financial assistance for the acquisition of its own or its holding company's shares has been removed - the rationale being that private companies are closely held and shareholders have greater control over such a decision. Public companies remain subject to the existing prohibition, but there is an exception where the assistance does not materially prejudice the interests of the company or its shareholders, or the company's ability to pay its creditors.

Impact on directors

The above amendments are of interest to directors as they increase the efficiency and flexibility of companies to meet modern business demands. However, a number of amendments will have a direct impact on directors and their duties and liabilities. These will be the subject of another article.

The writer is a member of the Advocacy & Research Committee of the Singapore Institute of Directors

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

Education Endowment and Savings Schemes (Amendment) Act 2014 (Act 33 of 2014)

The application of the modified Spiliada approach to non-exclusive jurisdiction clauses: Abdul Rashid bin Abdul Manaf v Hii Yii Ann [2014] SGHC 194

SLW Commentary
06 Nov 2014

Protect rights but don't overcomplicate research: Forum

Straits Times
08 Dec 2014

SENIOR writer Andy Ho's commentary on protecting owners' rights to tissue samples offers valuable insights into a topic generally overlooked ("Tissue samples: A need to protect owners' rights"; last Friday).

He cited many reasons supporting the Human Biomedical Research Bill.

As science and technology continue to advance, such research involving human tissues and cells will become more common.

One concern I have, however, is that requiring "researchers to obtain

specific informed consent" may bring about additional administrative workload and cost.

This may act as a disincentive for researchers in small-scale studies to start their scientific endeavours, thus limiting the overall number of successful studies.

Such a requirement may also slow down the overall process of research - for example, it may take a longer time to obtain a sizeable pool of samples as resources have to be diverted to implement the new administrative procedures.

The law on Human Biomedical Research, when enacted, should ensure it does not overcomplicate and slow down the current flow and process of biomedical research.

Aaron Tay Shu Ming

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

Education Endowment and Savings Schemes Act - Education Endowment and Savings Schemes (Amount of Edusave Contribution for 2014) Order 2014 (S 737 of 2014)

MAS consults on draft legislative provisions and amendments to implement FAIR recommendations

Business
05 Nov 2014

Judge dismisses claim to recover $2.5m in losses

Straits Times
06 Dec 2014
Grace Leong

Investor appeals against ruling, alleging that Citibank made unauthorised transactions

AN INDONESIAN investor is appealing against a ruling that threw out his claim to recover US$1.9 million (S$2.5 million) in losses over alleged unauthorised transactions from Citibank.

High Court Justice Vinodh Coomaraswamy found that Mr Chandra Winata Lie's "entire claim for unauthorised trading is an abuse of process".

The judge, in a ruling this week, found Mr Winata was unable to "properly plead his cause of action, particularise it or to point to some proof that is rationally connected to each essential element".

Between May 2007 and October 2008, Mr Winata's accounts at Citibank's private banking division in Singapore saw significant activity in sophisticated derivatives transactions in foreign exchange and equities, the judge said.

These transactions entailed substantial potential liability for Mr Winata, a high net worth individual residing in Indonesia.

He had three investment accounts, two of which were in his own name, and a third in the name of his offshore personal investment trust company.

The liability became a reality when, as a result of the financial crisis of 2008 and 2009, his accounts recorded significant losses on transactions entered into after March 2008.

Mr Winata brought a suit against the bank in April last year on three causes of action: its failure to advise, negligent misrepresentation and unauthorised trading.

His statement of claim alleges that Citibank engaged in unauthorised transactions on his accounts, and is obligated to compensate him for losses that he claims the bank "wrongly held him to be liable".

But in his suit, he stopped short of asserting that he did not authorise the bank's act. He claims he cannot remember if the bank acted without his authority.

Instead, he asked the court to "draw from the surrounding circumstances the inference that the (bank) acted without his authority".

But Justice Coomaraswamy ruled that "failure of memory doesn't relieve the plaintiff of his burdens" to "properly plead, particularise or point to proof of its claim" against the bank.

"A lawsuit is not a boundless and roving commission of inquiry into suspicions or broad allegations about a defendant's overall conduct. It is a focused forensic process whose purpose is to determine whether a plaintiff has established... a reasonably specific claim of a reasonably specific breach of duty which he asserts against a defendant," the judge wrote.

This rule of pleading "deters speculative litigation and suppresses litigiousness", he said. "This in turn leads to savings of costs and time."

Requiring a plaintiff to plead assertions of fact to establish his case also ensures he has "an incentive to take the necessary care to be accurate in his assertions".

But Justice Coomaraswamy noted that Mr Winata "cannot even plead his case in the straightforward way I have suggested... an unqualified, positive assertion in active voice" that he did not authorise the transactions.

Thus, he found Mr Winata's suit to be "an abuse of process for being too speculative".

Mr Winata has appealed against the ruling to the Court of Appeal.

gleong@sph.com.sg

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To view the judgment, click <here>.

Education Endowment and Savings Schemes Act - Education Endowment and Savings Schemes (Post-Secondary Education Scheme) (Amendment) Regulations 2014 (S 736 of 2014)

Transfer of property by way of gift

Business
05 Nov 2014

Court orders woman to return $200k to mother

Straits Times
06 Dec 2014
K.C. Vijayan

It rejects daughter's claim that the money was a gift and rules that it was a loan

A WOMAN who claimed that a sum of $200,000 was a gift to her from her 79-year-old mother was ordered to return the money after a judge ruled that this was a loan.

Ms M. Ranuga Devi, who had used the cash to invest in shares, had argued that her mother, Madam R. Parvathi, had meant to give her the money in a will.

District Judge Seah Chi-ling was not convinced, noting that the will was drawn up in 2004, four years before the money was advanced to Ms Ranuga.

The judge said the fact that Madam Parvathi wanted to leave her assets to her daughter "upon her death" did not mean she wanted to give her the $200,000 "while she was alive".

"We are dealing with (the) disposal of properties under totally different circumstances," he said in judgment grounds released on Thursday.

"Needless to say, the donor's motivations and considerations would be significantly different in both contexts," he added.

The key issue in the case was whether Madam Parvathi had presumably given the money on the strength of their parent-daughter relationship, said the judge.

But he found the strength of this presumption weak, based on the facts of the case.

Among other things, he found that Ms Ranuga was not financially dependent on her mother as she was a working adult whereas her mother had no source of income.

"Against this backdrop, it was the daughter who had a moral or equitable obligation to support the (mother) and not the other way round," said the judge.

The $200,000 came from the family flat that was sold in 2008, six years after Madam Parvathi became a widow.

Ms Ranuga and her two siblings had transferred their share in the flat to her in 2004.

Madam Parvathi had lived with Ms Ranuga for 30 years and helped look after the latter's son from the time of his birth.

Three months after she sold the flat in 2008, Madam Parvathi handed the $200,000 to her daughter, who used the money progressively to invest in shares.

There was evidence that Madam Parvathi knew and was updated on her daughter's investments.

The relationship between both of them was cordial but began to deteriorate in 2011 when Ms Ranuga became involved in charitable works at a Hindu temple.

Her mother was unhappy about the time she spent there and her association with the temple treasurer.

Ms Ranuga claimed her mother embarrassed her by complaining to the temple management committee and seeking to exclude her from temple activities.

Mother sued daughter last year for the return of the $200,000.

The judge found Madam Parvathi to be an "extremely strong-willed individual".

He ruled that it was unlikely that she would have given away nearly all the proceeds from the sale of the flat to her daughter while alive, thus making herself financially dependent on her daughter.

"It was more probable that she allowed the defendant to use the monies because of their close relationship, but at all times expected the monies to be repaid," said District Judge Seah.

Ms Ranuga, defended by lawyer K. Sureshan, is appealing against the decision. Madam Parvathi, who was represented by legal aid-assigned lawyer G. Ramakrishnan, is currently living with her older daughter, Madam M. Gomathy.

vijayan@sph.com.sg

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Education Endowment and Savings Schemes Act - Education Endowment and Savings Schemes (Edusave Pupils Fund) (Amendment) Regulations 2014 (S 735 of 2014)

Singapore Freeport

Business
05 Nov 2014

Paying the price when rulings are overturned

Straits Times
06 Dec 2014
Salma Khalik

AN UNUSUAL thing happened when obstetrician and gynaecologist Lawrence Ang appealed against the Singapore Medical Council's (SMC) decision that he was guilty of not acting in his patient's best interest and should be suspended for three months.

First, the Court of Appeal, comprising Chief Justice Sundaresh Menon and Justices Andrew Phang and Judith Prakash, overturned the guilty verdict last month.

Second, and this is the unusual part, the medical watchdog was ordered to pay Dr Ang's legal costs for the disciplinary hearing as well as the appeal.

That ruling was a first, and sets a possible precedent for future cases. Up until Dr Ang's case, doctors always had to pay for their own legal costs even if they were cleared of wrongdoing by the courts. Those found guilty had to pay both their own as well as the SMC's costs.

The reason for this was spelt out in 2010 by then Chief Justice Chan Sek Keong and Justices Andrew Phang and V. K. Rajah when they overturned another SMC guilty verdict against a doctor.

They explained that when it came to legal costs, "we have decided that in all the circumstances, we will not order the SMC to pay the costs of the proceedings as we are prepared to give it the benefit of the doubt that it had acted in good faith and in the public interest in trying to stop what it believed to be an inappropriate treatment for a particular medical condition".

So even if the SMC was ultimately proven wrong, it would be spared paying legal costs.

But when Dr Ang's case turned up, the apex court decided quite differently, sparking discussion in medical and legal circles.

In 2009, Dr Ang delivered a baby who had an infection and congenital pneumonia that required five months of hospitalisation.

The disciplinary committee made clear that the baby's condition was not the doctor's fault, but suspended him for three months for not having a neonatologist, a specialist in the care of newborn infants, present or on standby for the delivery, given signs that it may not be well.

Of the seven expert witnesses called, five saw no need for a specialist to have been on standby. The Court of Appeal criticised the committee for accepting the opinions of two experts who thought the specialist ought to have been present, without explaining why it ignored the majority who felt otherwise.

Several lawyers told The Straits Times Dr Ang was awarded costs most likely because the SMC was not only clearly wrong in finding him guilty, but also because the way it had done so appeared highly questionable.

They pointed to the judges saying the committee's findings were "contrary to the evidence" as an indication of how badly the committee had erred.

The irony is that if the SMC had cleared Dr Ang, he would have had to pay his own costs.

Costs for such hearings easily run into tens, often hundreds, of thousands of dollars, as doctors normally appear before disciplinary committees with legal counsel, usually paid for by the Medical Protection Society (MPS).

The not-for-profit organisation for health-care professionals offers help with legal and ethical problems that arise from their professional practice. Doctors pay subscription rates according to the risk of their practice, from $1,765 a year for a general practitioner to $36,370 for a doctor offering cosmetic or aesthetic surgery.

MPS told The Straits Times: "In the last few years, the cost and frequency of regulatory cases have risen. These are due to a number of factors, including the increase in number of complaints, number and complexity of SMC inquiries, and associated increase in SMC and defence legal costs."

As a result, the annual subscriptions paid by doctors have soared. Obstetricians like Dr Ang now pay $36,000 a year, up from $25,695 just three years ago.

The London-based MPS looks after the interests of almost 300,000 health-care professionals in more than eight countries and covers almost all the 11,000 doctors here.

Commenting on the outcome of Dr Ang's appeal, Dr Ming Teoh, head of MPS' Medical Services in Asia, said it was unusual for costs to be awarded against medical regulators, but he felt it was too early to say if the ruling would affect future cases to the extent that doctors' subscriptions might come down.

But Dr Myint Soe, a lawyer well-versed in medical litigation, said: "Of course, we'll all ask for costs now when a doctor wins."

This is not the first time mistakes by an SMC disciplinary committee have proven costly.

In 2012, the SMC changed the guilty verdict it delivered against Dr Georgia Lee for aesthetic practice, after the High Court dismissed a similar guilty verdict against Dr Low Chai Ling with scathing comments about the SMC's biased and slipshod disciplinary inquiry.

Many doctors were offering the aesthetic procedure, but the SMC chose to take only some to task. Also, Dr Low was accused of doing those procedures before the SMC had declared them to be not evidence-based.

Two years down the road in Dr Ang's case, the SMC disciplinary hearing has been taken to task for relying "on facts that it should not have considered".

Doctors are understandably concerned that such mistakes by the SMC could prove costly for them in terms of the fees they pay the SMC for their practising licence. This was raised to $400 a year in 2012.

The SMC has refused to divulge if its income comes entirely from its 11,000 members, or if it has separate government funding for the large sums it needs for such disciplinary hearings.

Unlike the Singapore Dental Council, the SMC does not list its income or disbursements in its annual reports. The dental council does receive a government grant on top of the fees it collects from dentists.

In the case of the SMC, it is a matter of equal concern if the costs are borne by doctors or taxpayers, especially in cases that prove costly because of a lack of understanding of how disciplinary cases should be heard.

Perhaps doctors should stick to what they know best - medicine - and leave the intricacies of disciplinary hearings to those trained in the law.

It is a pity the 2009 proposal by then Health Minister Khaw Boon Wan to amend the Medical Registration Act so that SMC disciplinary tribunals include a legally trained person was derailed.

That might have saved time and money wasted on appeals against decisions that turn out wrong.

It might also have gone some way in assuring doctors and patients that they will get a fair hearing, and avoid the need for costly appeals to the High Court.

salma@sph.com.sg

www.facebook.com/ST.Salma


Background Story

Perhaps doctors should stick to what they know best - medicine - and leave the intricacies of disciplinary hearings to those trained in the law.

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Education Endowment and Savings Schemes (Amendment) Act 2014 - Education Endowment and Savings Schemes (Amendment) Act 2014 (Commencement) Notification 2014 (S 734 of 2014)

SHC: Can related companies be treated as a “single economic entity” at law?

Judgments
04 Nov 2014

Lawyers brush off concerns over foreign jurists on international commercial court

TODAY
05 Dec 2014
Kelly Ng

SINGAPORE — Concerns that the presence of foreign jurists on the upcoming Singapore International Commercial Court (SICC) may undermine the standing of local judges and hamper the development of the legal system here — expressed in a Law Gazette commentary — have been dismissed by lawyers.

In his article, The Singapore International Commercial Court: The Brave New World of International Commercial Litigation, RTHLaw Taylor Wessing senior consultant Sim Yong Chan argued that having foreign judges on the bench might “stunt the growth of a confident judiciary”. His article was submitted to the Law Society magazine on Oct 13.

The setting up of the SICC was among several legislative changes approved by Parliament on Nov 4. The SICC, slated to open next year, will be established as a division of the High Court to hear international commercial disputes governed by Singapore and foreign laws. International judges can also be appointed to hear specific cases at the SICC or appeals on its judgments.

In his article, Mr Sim also said the presence of foreign judges could threaten the development of a homegrown legal system — something towards which Singapore should be working, instead of, in the words of Judge of Appeal Andrew Phang, “voluntarily embrac(ing) the fetters of our colonial heritage”.

Mr Sim added: “For what good is it if we gain the whole world of international commercial litigation, but forfeit forever the possibility of an autochthonous legal system?”

He was also concerned that SICC cases might take up a large proportion of High Court judges’ time, leaving them with little time for local cases. This, he said, may deprive Singaporeans from judicial resources meant to serve the local public.

Lawyers and academics whom TODAY spoke to noted that the specialist court handles international commercial disputes that have little or no connection to Singapore. Hence, they added, any impact on local jurisprudence will be minimal.

In response to TODAY’s queries about the concerns raised by Mr Sim, the Law Ministry said that while the SICC needs international jurists who have the expertise to hear disputes governed by foreign laws, it does not compromise the development of a homegrown legal system.

“There is no reason to suppose that the development of an autochthonous legal system cannot occur alongside the existence of an international commercial court with international judges. Singapore judges will also be appointed to hear SICC cases, whether governed by Singapore or foreign law,” said the ministry.

The Supreme Court told TODAY that the presence of international judges in a coram of local judges will promote “cross pollination” and is beneficial to the development of case law and jurisprudence.

Other lawyers and academics felt that given the international nature of the SICC’s cases, its judgments should not influence jurisprudence in local cases. “Even if they do, it is good for us to derive guidance from how other jurisdictions have dealt with similar matters,” said WongPartnership senior counsel Alvin Yeo, who is also a Member of Parliament.

On concerns that High Court judges may end up having too much on their plate, Singapore Management University’s associate professor of law Goh Yihan said manpower issues could be addressed by tapping the pool of retired High Court judges or appointing new ones.

In any case, it will take some time for the SICC to see an increase in case load, as is the case for international arbitration here, said Mr Paul Wong of Rodyk & Davidson’s litigation and arbitration group.

kellyng@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

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Court removes caveat on debtor's HDB flat

Straits Times
05 Dec 2014
K.C. Vijayan

Moneylender fails in bid to block its sale or transfer

MONEYLENDER'S bid to recover a loan by blocking the sale or transfer of a debtor's HDB flat has been overruled by the High Court.

The lender, Micro Credit, had placed a notice on a flat owned by Madam Salbiah Adnan and her then husband Zam Zam Muhammad Kassim, both in their 40s, requiring the lender to be informed if someone seeks to sell or transfer the flat.

Moneylenders use such notices, called a caveat, with the Singapore Land Authority, to ensure that borrowers repay a loan before they proceed to remove the notice.

In judgment grounds released on Monday, the court explained that a caveat is not meant to be a kind of mortgage for an unsecured debt.

"If a moneylender wishes to take security over a borrower's property, he should take a mortgage or a charge," said Judicial Commissioner Edmund Leow.

Mr Zam, a senior technician, had borrowed $2,000 in two tranches from the firm in September and October 2009.

Micro Credit had obtained two caveats on the flat owned by the couple in the same year. The first was authorised jointly by the couple.

The second was signed by Mr Zam alone and filed by Micro Credit in November 2009.

Mr Zam repaid the first loan but defaulted on the second after he was jailed for drug offences and the debt owed with interest rose to $28,334 as of January this year.

Madam Salbiah divorced Mr Zam in 2012 in the Syariah Court, which ordered him to transfer the flat to her. But the transfer could not be carried out by HDB because of the notice lodged by Micro Credit.

Madam Salbiah, through lawyer Mohamed Hashim Abdul Rasheed, applied to the court for the caveat to be removed. But Micro Credit's lawyer S.R. Shanmugam argued that the couple's signatures on the loan documents meant the firm had a valid interest in the sale proceeds of the flat.

But the judge found that the loan documents did not grant Micro Credit any interest in the flat or in the sale proceeds when sold.

He said that "even if (his) analysis is incorrect" Micro Credit's interest in the sale proceeds vanished with the Syariah Court order handing ownership of the unit to Madam Salbiah.

This meant Mr Zam had no share in the flat even if it were sold and Micro Credit could not recover its money.

The judge ordered the caveat removed.

He noted that the notice was lodged before new HDB rules took effect in 2010, forbidding the use of an HDB flat as security for loans.

The relevant 2010 provision was "enacted precisely to address cases like the present where a home owner uses the sale proceeds of his HDB flat as security or collateral for a loan", he said.

Citing a speech in Parliament by then National Development Minister Mah Bow Tan, the judge noted that in 2009, there were 546 caveats lodged by moneylenders on HDB flats to claim an interest in the sale proceeds of the flats.

vijayan@sph.com.sg

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

To view the judgment, click <here>.

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 76) Notification 2014 (S 732 of 2014)

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04 Nov 2014

Ex-tour guide faces three more charges of lying to ICA

Straits Times
05 Dec 2014
Carolyn Khew

FORMER China tour guide Yang Yin had three more charges added to an already long list yesterday, this time for allegedly lying to the immigration authorities.

Yang, who is in a legal tussle over the $40 million assets of a wealthy old widow, faces 334 charges in total. Most involve faking receipts amounting to about $450,000, so he could stay here.

The first charge yesterday concerned making false statements in his permanent resident (PR) application in 2010. He had allegedly lied that he was drawing a monthly salary of $7,000 for being the managing director of his company Young Music and Dance Studio, and said his duties were to "oversee operations, giving training and instructor (sic) for students".

In his second PR application in 2011, he allegedly lied that he drew a monthly salary of $7,000 and that his firm had a turnover of $75,080 in 2009, and $135,952 the year later. He obtained his PR that year. While attempting to apply for a long-term visit pass for his wife Weng Yandan, 34, last year, Yang allegedly lied again that he drew a monthly salary of $6,000.

If found guilty, Yang faces up to a year in jail and a $4,000 fine, for each of the three offences.

Yesterday, Deputy Public Prosecutor Ang Feng Qian said the Commercial Affairs Department, Accounting and Corporate Regulatory Authority, and Immigration and Checkpoints Authority (ICA) have completed investigations into Yang's case, although there may be additional cheating charges against him.

District Judge May Mesenas yesterday urged the matter to be expedited so that parties can discuss how to move the case forward, and arrange for a pre-trial conference soon after the next mention on Dec 18.

The request for bail by Yang's lawyer Wee Pan Lee was dismissed, and Yang, deemed a flight risk and remanded since Oct 31, remains behind bars.

This is the latest development following the fight between the China national and Madam Chung Khin Chun's niece Hedy Mok, 61, over her aunt's assets.

An ICA spokesman told The Straits Times anyone who provides false information in applying for immigration facilities such as PR will be dealt with firmly under the law, and may have such facilities cancelled or revoked.

kcarolyn@sph.com.sg

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 75) Notification 2014 (S 731 of 2014)

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Business
31 Oct 2014

Ex-MBS man fined in 'false rating' case

Straits Times
05 Dec 2014
Ian Poh

Dealer supervisor illegally awarded reward points to his friend

A FORMER dealer supervisor with the Marina Bay Sands (MBS) casino was fined $16,000 yesterday for illegally awarding membership points to a friend, in the first "false rating" case to be dealt with here.

The term refers to the act of dishonestly "rating" members with points although they have not turned up and patronised the casino.

Between Sept 20, 2010 and May 27, 2012, Tan Guan Xi repeatedly keyed his friend's membership number into the casino's system. This caused the equivalent of $7,676.75 in reward points to accrue to the account.

Tan, 38, did this 460 times.

His friend, Yap Kah Hsiang, 57, used the reward points to redeem some $5,605.83 in products and services at the casino's affiliated stores.

He also had his membership status upgraded from "Gold" to "Diamond" as a result of Tan's acts.

Yesterday, the court heard that the points system can be accessed from each game table in the MBS casino by either a dealer supervisor or pit manager.

Normally, patrons' cards are swiped in a reader so that their playing time and bets can be tracked.

Tan committed the offences by manually keying in his friend's membership number - a method that should be used only when a card is faulty, or when the system is unable to detect it.

According to Tan, Yap had approached him some time in early 2010 and requested his help to "add points to his membership card" while he was not at the casino. Tan agreed.

Deputy Public Prosecutor Kumaresan Gohulabalan said Tan had abused the trust placed in him, over more than a year.

The prosecutor noted, however, that the amount involved was not particularly large.

He added that restitution had been made.

Tan pleaded guilty to eight of 460 charges of computer misuse. For each of the charges proceeded on, he could have been jailed for up to three years and fined up to $10,000.

The case against Yap is still at the pre-trial conference stage.

pohian@sph.com.sg

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 58) (Amendment) Notification 2014 (S 730 of 2014)

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Legislation
31 Oct 2014

Match-fixing suspect claimed he was set up

Straits Times
05 Dec 2014
Joyce Lim

SINGAPOREAN Dan Tan Seet Eng, an alleged global match-fixing syndicate kingpin who has been behind bars for over a year, has in turn accused his former buddy - match-fixer Wilson Raj Perumal - of setting him up so as to shoulder less blame.

Last month, the 50-year-old, currently detained under the Criminal Law (Temporary Provisions) Act, failed in his contest against being detained without trial, and has had his detention order extended by another year.

Tan, who is married with a 10-year-old son, was among 14 people arrested during an islandwide raid in September last year. He is suspected of fixing more than 150 soccer matches globally, and is wanted in Italy and Hungary.

In documents submitted to the High Court for the closed-door judicial review of his detention, Tan claimed Wilson Raj, 49, had framed him after the two fell out. Tan also claimed Wilson Raj held a grudge against him as he probably thought Tan was responsible for his arrest in Finland.

Wilson Raj, who has since fled Singapore, is now in Hungary, where he is under police protection, to help in match-fixing investigations.

The Attorney-General's Chambers (AGC) submitted that Tan's claims of being framed were speculations which had not been backed up with evidence.

"Tan's allegations undermine his application. At worst, they are afterthoughts which undermine Tan's credibility and are a thinly veiled ploy to bring the court into a dispute between himself and Wilson Raj," said the AGC.

It also said Tan was recruiting runners in Singapore, and directed match-fixing agents and runners from Singapore for soccer match-fixing activities between 2009 and last year.

Tan denied heading or funding any syndicate.

"I ran errands for Wilson Raj and gave loans that he had requested primarily because of the betting tips he gave me," he said. "I enjoyed betting and, over time, Wilson Raj showed me that he had reliable betting tips."

Tan also claimed that two sums of money - €150,000 (S$242,000) and €240,000 - which were sent to Vienna were meant for betting and as winnings to his friends, and were not for corruption activities.

"In fact, out of the sum of €240,000, the amount of €60,000 was meant to be used to purchase Hermes leather handbags for my wife," he said.

Said an AGC spokesman: "In his Order for Review of Detention application, the court heard and considered detailed oral as well as written arguments from both AGC and Tan's counsel, including Tan's 'no evidence' claim, but dismissed the application and further ordered costs against Tan."

joycel@sph.com.sg

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

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Tissue samples: A need to protect owners' rights

Straits Times
05 Dec 2014
Andy Ho

A PUBLIC consultation on the Human Biomedical Research Bill is ongoing online until Dec 18. To be enacted next year, the new law will, among other things, establish a regulatory framework for how human tissue will be sourced for and used in research.

Scientific discoveries come from studying cancer tissue, blood and so on, but patients who supply them have no say in how their tissue samples are used and no share in the ensuing profits, if any.

Currently, if there are leftovers, tissue samples collected in the course of diagnostic or therapeutic procedures may be used for research without requiring specific consent from the patient.

The Bill will, however, require researchers to obtain specific informed consent. This means they will have to tell patients what research is planned for their tissue samples. This is a laudable move that accords respect to the patient's autonomy to decide, based on his moral convictions, whether he wants his tissue sample used in a specific kind of research.

A second issue is that researchers currently procure tissue without disclosing that it may have commercial value down the line. Sadly, the Bill brushes this aside in proposing to "protect patient welfare" by prohibiting "the commercial trading of human tissue".

It mandates that human tissue used in biomedical research be "obtained only through altruistic donations". Infractions attract fines of up to $100,000 and/or jail time of up to 10 years.

Conversely, researchers and firms may freely exploit their market value by using these tissue samples in potentially lucrative research. So it will be enshrined in law that it is unacceptable for the person providing tissue to make any money from it.

But researchers, their employers and commercial entities (Big Pharma) may benefit financially from any product that might be derived from these tissue samples. That is, when the research enterprise takes possession of my tissue samples as a gift, they become its property. This provision seems to have been drafted to avoid the kind of legal disputes seen overseas where patients sue doctors and researchers who benefit commercially from their tissue samples.

The landmark case was a controversial 1990 state-level decision called Moore v Regents of the University of California. In 1976, doctors treated Mr John Moore for hairy cell leukaemia. But they continued to subject him to unnecessary procedures over the next seven years to extract his tissue to make a blockbuster product without telling him so. Widely used in research, the "Mo" cell line derived from his tissue has raked in billions of dollars for its makers.

The case was not appealed any higher as it was settled for an undisclosed sum after the court ruled controversially that Mr Moore no longer owned the tissue removed from his body. It did rule that his consent for the commercialisation of his tissue should have been obtained first.

But how could it be that I don't own my tissue after its removal from me? If I lose a toe in a freak accident, I have the right to ask doctors to re-attach it as it is mine.

You might argue that we only own body parts that can be re-attached, but you would be resorting to legal gymnastics to draw up various rules just to argue that my tissue is not mine.

Better to accept that tissue samples taken from me are physical assets that did belong to me in the first place. There is no reason why the researcher should own them just because he took them from me. They did not materialise out of thin air: They came from me, so I was the initial owner.

My tissue forms the first link in a chain of events that involves research adding value to it, so that, eventually, a private firm can make billions from them.

Save for those tissue samples, the process that leads to such profits can't even begin. So they clearly have a market value from the get-go.

One might argue that recognising property rights may endanger the poor, who might be tempted into selling their tissue samples for money, thus endangering their health. But, first, removing tissue, unlike organs, is usually not life-threatening.

Second, if protecting the poor were the real aim, then compelling everyone to donate altruistically is not only a blunt but also paternalistic instrument to wield. The Bill would then be saying I don't own my removed tissue because I must be protected from parties who will exploit me by offering to buy it. But it is fine that these parties go on to profit handsomely from those tissue samples they take from me for free.

If protecting the poor were the real aim, the Bill should just forbid the selling of tissue when it harms one's health, or permit only tissue removed in medical treatment to be sold.

Finally, you might also object that the commodification in allowing human tissue to be sold is an insult to human dignity. That is, people might come to be seen as merely the sum of their parts, each with a specific dollar value.

All this might be true if there were actual bedside bargaining over tissue prices, which would also bog down research badly.

But this won't happen if the law establishes, as a neutral third party, a tribunal that sets fair compensation and applies it to individual cases that it adjudicates.

While researchers would be free to use the tissue once there is informed consent, firms would be able to use them only if they agree to pay tissue providers reasonable royalties as set by the tribunal when it ascertains, at a later date, that the tissue samples indeed proved commercially profitable.

In fact, similar compensation schedules already exist for the loss of body parts in, say, death and disability insurance. Even as early as the seventh century, Anglo-Saxon laws had laid down specific financial compensation for personal injury to various body parts. This well-established, collective process for determining the value of body parts can easily be extended to tissue, so no bedside bargaining would be needed.

Such an arrangement would, in fact, encourage people to give consent for research on their tissue.

Our commitment to business friendliness and bioscience research must not blind us to the inequity and unfairness of legislating away a patient's ownership rights in his own tissue samples, which could be a lucrative proposition.

andyho@sph.com.sg


Background Story

Scientific discoveries come from studying cancer tissue, blood and so on, but patients who supply them have no say in how their tissue samples are used and no share in the ensuing profits, if any.

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Related headlines

Protect rights but don't overcomplicate research: Forum, ST, 08 Dec

 

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SHC: Choice of forum - Negotiating a non-exclusive jurisdiction clause

Judgments
28 Oct 2014

Ex-law prof fails in bid for PR status review

Straits Times
04 Dec 2014
K.C. Vijayan

Judge throws out his appeal, saying case is an abuse of court process

FORMER law professor Tey Tsun Hang, whose Singapore permanent resident (PR) status was revoked last year when he left the country without a re-entry permit (REP), has failed in his bid to have it reviewed.

Calling the case an abuse of the court process, the High Court yesterday threw out Mr Tey's appeal to get the Immigration and Checkpoints Authority (ICA) to reconsider his PR status, and process his application to renew his REP.

Justice Quentin Loh, in his judgment grounds, pointed to Mr Tey's lengthy delay in filing the court application, and how he had skipped appealing to the Home Affairs Minister - the normal process when PR status is revoked.

He also noted Mr Tey's drastic change of position at the eleventh hour - at the hearing last month.

Mr Tey had made a turnaround and claimed he was unaware of any ICA decision regarding the earlier cancellation of his REP.

This was because, he argued, cancellations were not "decisions" that could have been appealed against.

In matters relating to national policy like immigration, the judge stressed, there were good and self-evident reasons why they were best left to the executive arm and not the courts, "which are ill-equipped to make such decisions".

He said ICA's policy, among other things, was not to grant REPs automatically and that a PR who is under probe or has been charged, convicted or is appealing against the conviction is generally not granted an REP unless the case is concluded.

In February, the 43-year-old was acquitted in a High Court appeal, of corruptly accepting gifts and sex from a student in exchange for better grades.

Mr Tey, a Malaysian and former district judge here, had been a PR since 1997, but left Singapore in October last year through the Tuas checkpoint without a re-entry permit.

ICA officers had reminded him then that he would lose his PR status if he left without the REP.

His lawyer M. Ravi applied to the court to get ICA to review his PR status.

The Attorney-General's Chambers, represented by Senior Counsel David Chong, sought to strike out the application last month.

Justice Loh noted that the day before he left Singapore, Mr Tey had failed to visit ICA headquarters to get a one-month extension of his REP, even though he had agreed to do so.

"It was Tey's unexplained refusal to visit (ICA) on Oct 14, pay the very modest fee and obtain the REP that led him to be without the REP," he said. Justice Loh also rejected Mr Tey's "highly unorthodox" call for the court to order ICA to consider and process his application for the REP.

"Tey is presently in no position to apply for an REP, given that he is not even a permanent resident," said Justice Loh.

"In the face of Tey's refusal to appeal to the minister and his vacillating conduct particularly on Oct 14, 2013, it is odd that he chose to take this matter directly to the court and to pitch his case this high," he added.

Asked if he would appeal against the decision, Mr Tey said yesterday via e-mail that the costs of appeal were prohibitive, and that he was "extremely disappointed" at the outcome of the case.

A decision is still pending on whether the court should give him permission to apply for judicial review of his sacking from the National University of Singapore last year.

vijayan@sph.com.sg

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Building Control Act - Building Control (Buildability) (Amendment) Regulations 2014 (S 729 of 2014)

An overview of procedural innovations in international commercial arbitration

Business
28 Oct 2014

Widow loses fight over husband's CPF bequest to another woman

Straits Times
04 Dec 2014
Aw Cheng Wei

HE REFUSED to get a job after his timber business failed in the 1980s, so Mr Saw's wife and three children supported him for 30 years.

But after he killed himself in June last year, the 63-year-old left all $37,000 in his Central Provident Fund (CPF) savings to a woman from China he met in a bar, something his family found out only while clearing out his belongings. His widow, 61, tried to appeal in court, which cost her $30,000 in legal fees. Not only did she lose the suit, but she also has to pay $7,000 in court fees.

His son, 43, who is in the finance industry, started working when he turned 18 to provide for his family. "We were so angry and helpless," he said. "Growing up, my motherpaid for us out of her $1,000 salary as a childcare assistant." The family asked that their full names not be published.

They had written to the CPF Board which said that it had to follow the man's wishes. They then tried to file an injunction against the statutory board in June last year to stop it from disbursing the funds to a Ms Liu, who works as a customer service staff member at Marina Bay Sands, according to Chinese evening daily Lianhe Wanbao. She could not be reached for comment.

But the court ruled in Ms Liu's favour last month, saying that she and Mr Saw had a good relationship - regardless of whether the woman was his "goddaughter" or mistress. There was also not enough evidence to pass judgment on Mr Saw's mental state.

The family says it is considering appealing to the High Court, and has until Monday to do so.

The younger Mr Saw claims the nominee form had a cancellation on it which makes it invalid. In addition, he said, his father was suffering from depression and had tried to overdose on pills three times since March last year.

Besides the CPF money, the late Mr Saw also apparently left behind a will, stating that his executive maisonette in Bukit Panjang, of which he is the sole owner, is to be sold three months after his death, according to a copy of the will. The family cannot find the original document.

The lion's share of the proceeds - $150,000 - is to go to Ms Liu, while an additional $50,000 will be given to Ms Ye, another Chinese national. The dead man's brother, one Ms Ng, an old folks' home and a temple will get between $30,000 and $50,000. What is left, if any, will go to his son, two daughters and wife.

Meanwhile, his widow, who is now living with his youngest sister, has applied for a studio apartment with the Housing Board. She does not want to continue living in the now-empty flat because she was traumatised after discovering Mr Saw's body there.

Her new home will be ready next year and will cost $150,000. Her son said: "We are trying to raise money... to pay for the flat."

awcw@sph.com.sg

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Road Traffic Act - Road Traffic (Electronic Road Pricing System) (Amendment No. 6) Rules 2014 (S 728 of 2014)

SHC: Playing nice in international arbitration

Judgments
27 Oct 2014

Shipping firms face tax, accounting challenges

Business Times
04 Dec 2014
Shekaran Krishnan & Goh Siow Hui

THE seas are turning into a high-stakes battle for market share as container ship carriers enter into marriages of convenience to harness economies of scale. Over the past few years, the world's largest container lines have forged shipping alliances, sharing port facilities in key transportation hubs and pooling services in the world's busiest trade routes.

In 2011, six of the world's leading carriers formed the G6 alliance to provide faster transit times and greater port coverage in the Far East-to-Europe and Far East-to-Mediterranean routes. In 2014, the two-carrier 2M alliance was established after clearing regulatory hurdles. This alliance will pool together 185 ships on the European, trans-Atlantic and trans-Pacific routes in 2015.

Meanwhile, the Ocean Three pact is pending regulatory approval. Formed by three of the world's largest container shipping lines, the Ocean Three's entry will heat up the battleground for major trade lanes between Asia, Europe and the US.

Overcapacity has plagued the container shipping industry in recent years. Amidst a slow global recovery, freight rates have remained depressed, despite a decrease in idle capacity. As a recovery is not expected until 2016, the immediate focus for carriers is cost containment rather than revenue generation. Participating in vessel sharing alliances has therefore become a crucial strategy to tide over the current challenging environment.

Entering into a ship-pooling alliance enables container-ship operators to achieve costs savings by better utilising ships and controlling costs per container shipped. Carriers are also able to offer more frequent services and serve more ports. Technology will be critical to improve processes and delivery.

Other niche carriers have also entered into ship pooling agreements to manage capacity and costs, albeit on a smaller scale. To some, this is survival.

One of the world's busiest ports, Singapore has built on its advantageous geographical location as a vital node connecting East Asia with Europe, Africa, the Middle East and South Asia. It offers links to more than 600 ports in over 120 countries. Singapore's maritime ecosystem comprises over 5,000 companies, employs over 170,000 people and contributes about 7 per cent to the economy. More than 130,000 ships call at Singapore every year.

Singapore's success as a choice port of call is not by accident. Over the years, the tax legislation has been refined to keep up with market conditions and changing business needs to help anchor a vibrant maritime cluster. For example, the Singapore Maritime Sector Incentive (MSI) scheme offers tax concessions for companies involved in international shipping operations, maritime leasing and shipping support services.

Still, challenging conditions remain and carriers need to find creative ways to move containers yet satisfy demanding customers. While ship pooling agreements offer advantages, notably in the area of cost efficiencies, carriers also need to be aware of tax and accounting considerations.

NAVIGATING TAXES

A key tax consideration for parties that are entering ship pooling arrangements is whether a permanent establishment has been created in Singapore's shores. For example, foreign shipping companies that wish to enter into ship pooling agreements managed by a pool entity or commercial manager in Singapore would have to consider if these agreements could create a taxable presence in Singapore.

Another issue is the taxation of income derived from ship pooling arrangements. How will the income be split among the parties and how will it be taxed? Will the income also qualify for tax exemption? While the tax exemption under the MSI covers a wide range of shipping operations, generally, it does not cover finance income (eg. interest income) or share of partnership profits.

There have been minimal tax changes in Singapore's maritime industry in recent years. Perhaps, it's a reflection of the confidence in the country's shipping sector.

As ship pooling arrangements become more common, Singapore's tax legislation may need to evolve. As collaboration in the industry intensifies, more tax certainty is welcomed to further anchor Singapore as a leading international maritime centre.

Besides tax considerations, new accounting standards are on the horizon for players in the shipping industry. The most significant development is the new lease accounting standard, which is now at an exposure draft stage and is likely to be formalised within the next two years.

This new standard will require companies to bring operating leases onto their balance sheet. Operating leases have traditionally been kept off the balance sheet and this new standard will have implications on financial ratios and bank covenants as assets and liabilities will be inflated. Companies will need to renegotiate with their lenders and consider how the new standard will impact their income and balance sheet position.

Asset intensive companies such as ship owners may have to re-evaluate their lease and buy strategies. This standard may also result in tax implications in some jurisdictions. Ship carriers will need to navigate these new uncharted waters carefully.

The writers are Assurance Partner and Tax Partner respectively, at EY in Singapore.
The views here are their own
.

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Securities and Futures Act - Securities and Futures (Reporting of Derivatives Contracts) (Amendment No. 2) Regulations 2014 (S 727 of 2014)

MAS proposes enhancements to the regulatory regime governing REITs and REIT managers

Business
27 Oct 2014

Man jailed under California 'revenge porn' law: Such offences covered under Singapore Penal Code

Straits Times
04 Dec 2014

LOS ANGELES - A Los Angeles man who posted topless photos of his former girlfriend online to get back at her became the first person sentenced under California's new "revenge porn" law.

The term revenge porn refers to the posting of nude photos of a person on the Internet for the purpose of getting even or causing emotional harm, The Washington Post reported.

Enacted last year, the California law makes it illegal to distribute private, sexually explicit photos or videos online without the consent of the person who appears in them, the Post said. Originally the law covered only photos and videos taken by someone else, but in August it was expanded to include selfies, it added.

A jury found Noe Iniguez, 36, guilty early this week of violating two restraining orders and the state's revenge porn law after deliberating for seven days.

Prosecutors told the court that Iniguez's former girlfriend of four years got the first restraining order in November 2011 after they broke up and he started sending harassing text messages to her.

Iniguez followed up a month later by posting, using a fake name, insulting comments about the woman on her employer's website. In March, he posted a topless photo of her, labelling her "drunk" and a "slut" and encouraging her employer to fire her.

Besides sentencing Iniguez to a year's jail, the judge ordered him to serve 36 months' probation, attend domestic violence counselling and stay away from his former girlfriend.

"California's new revenge porn law gives prosecutors a valuable tool to protect victims whose lives and reputations have been upended by a person they once trusted," Los Angeles City Attorney Mike Feuer said in a statement.

"This conviction sends a strong message that this type of malicious behaviour will not be tolerated."

California is one of 13 states to have enacted a revenge porn law since last year. Such laws vary from state to state.

In Arizona, one of only two states where posting revenge porn is a felony on the first offence, a federal district court judge blocked enforcement of the law last week after the American Civil Liberties Union sued, the Post said.

The civil rights group argued that Arizona's law is so broad that it criminalises artists, historians, booksellers and others who may publish nude images for reasons other than revenge. An example cited is the Pulitzer Prize-winning photo of a nude Vietnamese child, who had been severely burned, fleeing her bombed village.


How Singapore tackles such offences

For posting nude and compromising photos of other people, one can be charged under a few laws in Singapore.

These cover electronically transmitting obscene objects, which carries a jail term of up to three months and/or a fine; insulting a woman's modesty, which incurs a maximum penalty of a one-year jail term and fine; as well as criminal intimidation if a threat was made. The punishment for criminal intimidation is up to two years' jail and/or a fine.

Criminal lawyer Josephus Tan said: "Such an offence is not uncommon in Singapore and we have seen successful prosecution of such cases. A handful of cases here also involve the extortion element, where it's more of doing it for money instead of revenge.

"I think it's well-covered in our Penal Code, and it's fine as it is, falling short of giving it a specific category."

Last month, a 36-year-old man was arrested for extorting money from his former girlfriend in exchange for not posting compromising photos of her online.

In April, a 52-year-old who posted six nude photos of his former girlfriend online was sentenced to six weeks' jail.

LIM YI HAN

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Telecommunications Act - Telecommunications (Exemption from sections 33, 34(1)(b) and 35) (Amendment No. 2) Notification 2014 (S 726 of 2014)

A grain of civil law – Some (not so) new chords for the international arbitration jazz

Business
24 Oct 2014

Fostering a culture of transparency

Business Times
04 Dec 2014
Francis Kan

CORPORATE governance rules and standards by themselves are not able to prevent crises of the kind that occurred during the great financial crisis of 2008, but require stakeholders to ensure that company boards comply with them.

This was one of the hot-button topics at a panel discussion held last month to discuss the key findings of the ACCA-KPMG report, Balancing corporate governance rules and flexibility: A study of requirements across 25 markets.

The moderator of the session, Chiew Chun Wee, ACCA's Asia-Pacific head for policy, said the report found the corporate governance (CG) framework in the US among the strongest, having been beefed up following a spate of devastating corporate and accounting scandals. He asked the panellists whether they thought the current framework, if applied during those scandals, could have averted them.

'It's like democracy'

Elizabeth Kong, a director at Stamford Law Corporation, said: "I think rules and principles in themselves are dead. It is the people who give it life. If our attitude to the code is just a gleeful ticking of boxes at best, or at worst, indifference, then I think the code has very little value."

She added that it was not just the attitude of the directors that was important, but also how actively shareholders were holding directors to account. "Like democracy, it only works if shareholders exercise their rights."

Irving Low, head of risk consulting at KPMG in Singapore, who spearheaded the study, said that no governance code was full proof. He noted that the UK had one of the world's most regulated financial sectors, and yet recent scandals such as the rigging of the benchmark Libor interest rate among banks still happened.

He argued that while CG requirements may not be able to stop errant action, it could incentivise good behaviour. More importantly, the "tone from the top" regarding transparency and good CG was critical.

"If your best salesman defrauded on a travel claim, what would you do about it? The proof of the pudding is in the eating," he said.

Ms Kong said that new legislation in the US such as the Sarbanes-Oxley Act of 2002 emerged directly as a result of the corporate scandal that led to the collapse of American energy company Enron in 2001, and that of telecommunications firm WorldCom the following year. The act set new standards or enhanced existing ones for all US public company boards, management and public accounting firms.

"Because these changes were context-specific, drawn up with the scandals in mind, I think the current framework would to a large extent mitigate the chances of a specific scandal like WorldCom and Enron happening," she said.

"But does it mean the current framework is strong enough to avert all scandals? I don't think anyone can look into the crystal ball far enough to say for sure, because new challenges are being posed all the time."

The debate then turned to whether having too many rules would hamper the performance of companies and the jurisdictions in which they operated.

Associate professor Lawrence Loh from the National University of Singapore (NUS) said that the Hong Kong stock exchange missed out on the listing of Chinese company Alibaba because it did not allow a dual-tier listing, which was what the e-commerce giant had wanted.

Alibaba ended up floating on the New York Stock Exchange, in the world's biggest initial public offer (IPO) earlier this year.

"It doesn't mean that more rules means that it is better for a jurisdiction. You want more contextual rules that are relevant to the jurisdiction," said Prof Loh, who is from NUS's Centre for Governance, Institutions and Organisations.

KPMG's Mr Low said that there had to be a balance between rules and flexibility. "Things happened and that's why we have rules. I am a great proponent of not having too many rules, but to have a balance. The code is a general-principle type of framework. Take it in spirit and try to follow it."

He added that the priority was for shareholders to be protected; he proposed identifying principles in the code that were the most important and making them mandatory.

Carrot or stick?

Paul Yuen, executive director of the market conduct department at the Monetary Authority of Singapore (MAS), advocated promoting a culture of transparency before deciding between a more principles-based approach or a prescriptive regulatory one.

For instance, awards rewarding transparency and good governance were one way to foster good corporate behaviour.

In cases where non-compliance of governance standards can affect shareholders, regulators such as the MAS have a wide range of actions at their disposal to deal with errant companies, he revealed.

Mr Yuen said that Singapore's CG code allows market participants to get involved in holding directors accountable for their actions, such as when a board's explanation for non-compliance is found to be unsatisfactory.

"Stakeholders can ask questions at the AGM (annual general meeting)," he said; the goal of this is to better align a company's performance with the interest of stakeholders.

The report had noted that recent revisions to Singapore's CG code and the Singapore Exchange (SGX) Listing Rules, particularly in the areas of assurance, audit committees, disclosures and risk governance, had enhanced the CG landscape in the Republic.

The code was first issued in 2001 and after several revisions, the MAS released the latest version of the code in May 2012. Notably, the revised code introduced changes concerning director independence, board composition, multiple directorships, alternate directors, remuneration practices and disclosures, risk management as well as shareholder rights and roles.

Singapore adopts principles-based standards that do not require mandatory compliance with requirements. Instead, companies follow a "comply or explain" system, which requires them to explain why they have not complied with certain requirements.

Board diversity

The panellists also touched on the topic of board diversity, an issue that has gained in prominence in recent years, and its impact on good CG.

Ms Kong said that the strongest argument for diversity among corporate boards in Singapore lies in the prevention of "group-think". "The reason for diversity is that it promotes more effective decision-making and more well-considered decisions."

She added: "The thornier issue is how we can go about changing the status quo."

Prof Loh noted that the discussions around diversity had now gone beyond gender to also encompass diversity in age, ethnicity and background.

The recently released Singapore Diversity Report, for instance, found that companies with boards of directors who were diverse not only in gender, but also in ethnicity and age performed on average almost five times better than more-uniform boards.

"Any good board must go beyond gender diversity, and include people with experiences that might enrich decision-making," he said.


About the report

The joint study, Balancing Rules and Flexibility, by ACCA and KPMG in Singapore was prepared over 14 months to examine the similarities and differences of CG requirements across a selection of global markets.

The report was unveiled in Singapore last month (Nov 20).

Specifically the report sought to:

• examine corporate governance (CG) requirements in terms of clarity and completeness of content, degree of enforceability and prevalence;
• identify common/basic CG requirements and emerging trends;
• raise awareness of the similarities and differences in CG requirements across markets, geographic regions, economic zones and pillars/themes of CG; and
• inform other industry research, such as the Organisation for Economic Co-operation and Development (OECD) Principles Review.

This study focuses on the governance requirements only and has not reviewed levels of compliance or outcomes by companies with respect to the various requirements.

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Telecommunications Act - Telecommunications (Dealers) (Amendment No. 2) Regulations 2014 (S 725 of 2014)

SCA grants arbitral anti-suit injunction

Judgments
24 Oct 2014

Bogus marriage, fake birth certificate

Straits Times
04 Dec 2014
Ian Poh

Married man 'wed' lover, forged their baby's papers

SHE was carrying her lover's child and wanted to get hitched.

But Ms Zhao Dan, 30, did not know her lover Ong Tiong San, 43, was married with children, and would not be able to register their union.

To get around this, Ong paid someone $120 to stage a solemnisation ceremony at his home, and created a fake marriage certificate by modifying a scanned copy of his real one.

He repeated the trick after Ms Zhao gave birth to a girl in February this year, this time using his son's birth certificate as the template for a bogus one.

Ms Zhao, a Chinese national, remained none the wiser. But the deception finally fell apart when the retail supervisor returned to work in May, and submitted the false documents to claim maternity leave benefits from her employer.

Yesterday, Ong was fined $10,000 after pleading guilty to two counts of forgery.

It is understood the couple met while working at NTUC FairPrice, where he was a division manager. Ong stopped working for FairPrice in August.

The court heard that on Jan 25, he used PowerPoint software to produce the bogus marriage certificate. This stated that his purported union with Ms Zhao had been solemnised by an assistant registrar of marriages.

Sometime between late February and early March, he made the fake birth certificate, which said their newborn girl was a Singapore citizen.

Ong later paid NTUC FairPrice $4,067.30, for the 48 days of maternity leave benefits Ms Zhao was not eligible for, after his forgeries were discovered.

Ong also admitted making a false statement in March at the Immigration and Checkpoints Authority. In a form to register their child's birth, he stated the couple had been married in Singapore on Jan 25.

Calling for the $10,000 fine, Deputy Public Prosecutor Eunice Lim said the documents forged were of a serious nature.

District Judge Carrie Chan said the offences were "shocking", noting Ong's previous convictions in 1992 and 1999 - for criminal breach of trust and cheating - both involved dishonesty.

She said Ong had planned the forgeries and deceived his lover for a long time.

The judge