03 September 2015
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Humanity brought to the fore in Subhas Anandan's new book

Straits Times
02 Sep 2015
K.C. Vijayan

Late criminal lawyer wrote It's Easy To Cry while he was undergoing dialysis treatment

Subhas Anandan would spend three days a week hooked up to a dialysis machine before his death in January but used the time to dictate chapters for his second book.

His first, The Best I Could, was released in 2009 and went on to be reprinted seven times. The follow-up, It's Easy To Cry, is due to hit bookstores next month.

Regarded by many as Singapore's greatest criminal lawyer, he died of heart failure in January, aged 67.

He had spent the preceding year undergoing kidney treatment with each session lasting four hours.

It altered his lifestyle "significantly" and spurred him to start dictating his thoughts for his second book while undergoing treatment, which he described in a new 2015 edition of his first book as "not as easy as I thought".

" You are with other patients, and nurses are walking up and down...," he wrote. "Suddenly you realise you are totally dependent on the dialysis machine for life."

 

The late Subhas Anandan's second book will hit bookstores next month.
The late Subhas Anandan's second book will hit bookstores next month. PHOTO: COURTESY OF MARSHALL CAVENDISH

 

It's Easy To Cry is about cases he handled which brought "humanity and emotions to the forefront".

One high-profile case featured is the story of Wu Yun Yun - the China-born wife of Singapore opposition politician Tan Lead Shake.

Wu, then 27, was jailed in 2009 for killing her 33-year-old brother-in-law Tan Lead Sane and the attempted manslaughter of his wife, Madam Huang Mei Zhe. They were stabbed while sleeping at the Tan family's Paya Lebar house in 2008.

In a chapter titled Slipper Man's China Bride, Mr Subhas wrote of his experience defending Wu. He explained how she was driven to attack the couple after being treated unfairly in the family home.

In 2001, Wu came to Singapore reluctantly at the age of 19 to marry Lead Shake - an arrangement made on the strength of a dowry collected by her parents from his father.

But she had to live in an extended household which included her husband's parents, an unmarried older brother-in-law, Lead Sane and his China-born wife.

Mr Subhas explained how Lead Sane and Huang had a closer relationship than Wu and Lead Shake, and were closer to her mother-in-law, Madam Ng Bee Hion, who treated Huang more favourably.

This made Wu resent Huang and Madam Ng. But there was also an absence of understanding from her own family in China which triggered a depression in her.

"She felt mentally alone in both homes," wrote Subhas. "This case brings out how human beings can react when they feel that they are unfairly treated. Jealousy can lead to violence."

He took up her defence and mitigation in the High Court where she was jailed for 16 years instead of receiving life imprisonment, which the prosecution had sought.

"People wonder why I took up this case. Like with all my cases, I believe that Wu should be given the best defence. The fact that she was poor or that she's from China did not in any way affect my conviction to help.

"I felt especially for her family, who were desperate to seek assistance. It made me feel even more for Wu's family and the consequences that drove her to this state."

Mr Subhas said that writing the book while on dialysis was part of the "silver lining" that he gleaned from those depressing days.

"My illness made me a more realistic person, one who realises that in the past, I got all my priorities wrong," he added. "It was my career first, my career second and my career third. I didn't make time for (my wife, son and others)."

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Education Endowment and Savings Schemes Act - Education Endowment and Savings Schemes (Grant to Edusave Pupils Fund) Regulations 2015 (S 510 of 2015)

IPOS Case Summary: Lonza Biologics Tuas Pte Ltd v Genpharm International Inc [2015] SGIPOS 13 (whether there was insufficient disclosure and lack of inventiveness)

Judgments
30 Jul 2015

Lawyers go head to head in rematch

Straits Times
02 Sep 2015
Lydia Lim

The People's Action Party-held Mountbatten single seat will once again be contested by two lawyers.

Mr Lim Biow Chuan, who is hoping to make it three wins in a row at the Sept 11 polls, will need to stave off the challenge from Mrs Jeannette Chong-Aruldoss.

The 52-year-old mother of four, who had contested under the National Solidarity Party (NSP) banner previously, had a credible showing at GE2011, taking 41.4 per cent of the vote to Mr Lim's 58.6 per cent.

Yesterday, she filed her nomination papers at Kong Hwa School to contest in the ward as a candidate for Singapore People's Party (SPP).

Although her party colours have changed, she asked voters yesterday to judge her on the grassroots work she has been doing over the last four years despite her loss.

"I'm ready to be judged on my merits and my capabilities, but the final outcome will be determined by the majority," she said.

Accompanied on stage by her husband James Aruldoss, 56, and 22-year-old daughter Elisabelle, she said her desire to serve Mountbatten voters has grown only more "intense and more urgent" over the last four years.

"I will be your tireless MP in Mountbatten and your fearless fighter in Parliament," she said.

She had unveiled her manifesto for the ward on Monday, pledging to keep rental prices affordable for food stallholders; establish a social mobility bursary for students making the transition from the Institute of Technical Education to polytechnic, and from polytechnic to university; as well as push for Dakota Crescent to be conserved.

Her opponent, Mr Lim, who is also 52, has said that national issues, such as housing, transport and population, will be his focus if he is elected to Parliament.

Speaking at Kong Hwa School in both Mandarin and English, the PAP candidate said: "United, you and I can do a part for the country and the people...

"We have worked very hard for the past four years and we will continue to work hard to win the support of Mountbatten residents. "

He declined to reveal more details about his campaign rally plans when asked, but said his team was "ready to fight".

Both candidates in this widely expected match-up had their share of backers at the nomination centre.

One of Mr Lim's supporters, engineer Daniel Tan, 43, said he always "made sure needy people who required help for education funds got it quickly".

Businessman Robert Ong, 59, who supports Mrs Chong-Aruldoss, said Singaporeans need more people like her.

He added: "We need people in Parliament to represent Singaporeans, not just toe their party line."

• Additional reporting by Olivia Ho


SERVING THE RESIDENTS

We have worked very hard for the past four years and we will continue to work hard to win the support of Mountbatten residents.

MR LIM BIOW CHUAN, PAP candidate for Mountbatten

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Civil Aviation Authority of Singapore (Amendment) Act 2015 - Civil Aviation Authority of Singapore (Amendment) Act 2015 (Commencement) Notification 2015 (S 509 of 2015)

Tougher work pass controls for foreign PMEs and proposed amendments to the Employment Act

Business
30 Jul 2015

70 Justices of the Peace appointed

Straits Times
02 Sep 2015
Ng Huiwen

More than 10 years ago, Associate Professor Teng Su Ching volunteered at Changi Women's Prison, and kept in touch with the women she met.

What was most inspiring for her was the chance to solemnise some of their weddings, after she was first appointed a Justice of the Peace (JP) in 2005.

"I saw how they'd really put in a lot of effort to get themselves back onto their feet," said the 67-year-old.

Yesterday, Dr Teng was one of 70 JPs appointed - or reappointed - by President Tony Tan Keng Yam.

JPs serve as Visiting Justices of the Prisons, mediators in the State Courts or marriage solemnisers in the Registry of Marriages. They may also perform the duties of the magistrate conferred on them by any written law.

There are currently a total of 178 JPs. Of these, 33 are women.

"To be reappointed allows me to be part of this rewarding process of helping offenders and ex-offenders better themselves," said Dr Teng, who will be serving her third term as JP. Each term lasts five years.

Beyond her day job as director of the Centre for Continuing and Professional Education at SIM University, Prof Teng volunteers at the Singapore Children's Society and Singapore After-Care Association.

Among factors considered in picking JPs are their contributions to the public service, social services, community and professional fields.

For first-term JP, Mr Rajan Krishnan, 64, the appointment is an extension of his work within the Hindu community for the last 30 years.

Said the CEO of civil engineering company KTC Group and chairman of the Hindu Advisory Board: "I've been familiar with volunteer work but, as a JP, I'm aware of the social responsibility (I) will carry with this role... I hope to contribute to a more just and even society."

Such sentiments are familiar to Mr Choo Si Sen, one of the longest- serving JPs, who was reappointed for a fourth term.

Over his last 15 years as a JP, the practising lawyer has mediated neighbourly and family disputes in the Subordinate Courts - now called the State Courts - at least once a month. "It's very meaningful to be able to help them settle their disputes so that they don't have to go to court," the 74-year-old added.

Mr Choo's duties as a marriage solemniser have taken him to locations all over Singapore, from the Singapore Flyer to HDB flats.

"I feel very happy because it helps to bring our population up," said Mr Choo, with a laugh.

Smiling, Prof Teng added: "It's a happy job. It's always nice to see young people get married, right?"

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

Bankruptcy (Amendment) Act 2015 (Act 21 of 2015)

Financial institutions in Singapore to draw up “living wills”

Business
29 Jul 2015

Senja Rd death: Wife charged with murder

Straits Times
02 Sep 2015
Elena Chong

A civil servant was charged in court yesterday with the murder of her husband at their Bukit Panjang home.

No plea was taken from Vivien Teoh Yi Wen, 26, a senior human resource executive with the Ministry of Social and Family Development.

Mr Gordon Yeo Han Tong, 33, was apparently found with slash and stab wounds at their four-room Housing Board flat in Senja Road between 11.30pm on Sunday and 12.50am on Monday.

The couple married almost two years ago and have a one-year-old daughter.

Teoh, who was clad in a red polo shirt and dark slacks, is accused of the capital charge which is punishable by death upon conviction.

While sitting in a corner of the dock, Teoh, whose hair was tied in a ponytail, looked around the public gallery before her case was mentioned.

Mr Yeo, who owned a consultancy firm, was pronounced dead at 1.19am on Monday.

A neighbour was reported to have heard quarrelling from the couple's unit at around midnight on Sunday. The argument stopped after 10 minutes.

At about 12.30am, the neighbour heard the couple's door opening and the shouting resumed.

The neighbour told The New Paper he heard a loud banging sound before everything fell silent again.

Teoh is believed to have fled to her mother's place nearby after the attack.

Her mother called the police.

Yesterday, the prosecution successfully applied for Teoh to be remanded for a week at Central division with permission to be taken out for investigations.

The court heard that the weapon used has yet to be recovered.

Lawyer Yusfiyanto Yatiman, who did not object to the application, told District Judge Eddy Tham that he had been instructed by a family member to act for Teoh.

He said he had obtained clearance from a senior Deputy Public Prosecutor to speak to his client and to ask her about a domestic issue. He undertook not to discuss any aspect of the case with her.

After the session, Mr Yusfiyanto was seen talking to a male family member outside the courtroom. The man was accompanied by another man and two women.

Teoh will be back in court on Sept 8.

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 45) Notification 2015 (S 508 of 2015)

Employment Act: Proposed amendments

Legislation
29 Jul 2015

ADV: LexisNexis - SG50 Book Fair @ State Courts, 15-16 Sept 2015!

Singapore Law Watch
02 Sep 2015
LexisNexis

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 44) Notification 2015 (S 507 of 2015)

Employment (Amendment) Bill: Tougher rules to ensure that employers comply with good employment practices

Legislation
28 Jul 2015

S'pore becomes venue for settling sea disputes

Straits Times
01 Sep 2015
Zhaki Abdullah

Singapore has become a venue in Asia to settle disputes arising from the Law of the Sea.

It signed a joint declaration yesterday to allow the International Tribunal for the Law of the Sea (Itlos) to hear such proceedings here. The tribunal is an independent judicial body established by the 1982 United Nations Convention on the Law of the Sea. Singapore became a party to the Convention on Nov 17, 1994.

Under the declaration, signed by Ministry of Law Permanent Secretary Ng How Yue and tribunal president Vladimir Golitsyn, the Government would provide facilities to the tribunal or a special chamber of the tribunal, for it to hold proceedings or exercise its other functions here.

In a statement, Minister for Foreign Affairs and Law K. Shanmugam said: "The Joint Declaration is a clear endorsement of Singapore as a neutral venue for the effective settlement of international disputes.

"It also demonstrates Singapore's commitment to the international rule of law by facilitating access to Itlos in order to serve the needs of the states of this region, with a view to promoting the peaceful settlement of disputes relating to the Law of the Sea."

Said Judge Golitsyn: "I am extremely grateful to the Government of Singapore for its willingness to assist the tribunal in the provision of appropriate facilities whenever the tribunal considers it desirable for a special chamber of the tribunal or the tribunal to sit or exercise its functions in Singapore."

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Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 43) Notification 2015 (S 506 of 2015)

SCA: Anti-suit injunction in aid of arbitration proceedings: Principles and practice

Judgments
28 Jul 2015

The fine line between duty of care and duty to report

Straits Times
01 Sep 2015
Chong Siow Ann

In late July, a ceremony took place in the French Alps for the families of the passengers and crew in an air crash. In March, Andreas Lubitz, the co-pilot of a Germanwings Airbus A-320, killed himself and everyone on board by crashing the plane into the craggy mountainside. The remembrance came amid the families' great unhappiness over the "deeply insulting" compensation offered to them by the airline.

Subsequent investigations revealed that Lubitz had a history of depression and had searched the Internet for suicide methods before that final flight. It was reported that he had consulted more than 40 doctors, including psychiatrists.

Some of the doctors felt he was psychologically unstable and unfit to fly, but did not divulge this because of medical privacy laws in Germany, where doctors risk fines and even imprisonment if they disclose information about patients to anyone, unless there is evidence of an intent to commit a serious crime or harm themselves.

BREAKING PATIENT CONFIDENTIALITY

At the heart of medical privacy laws is the principle of confidentiality, which is vital to the preservation of trust between doctors and patients.

Patients share personal information with their doctors with the understanding that it will be safeguarded and used in their best interest. If that confidentiality is breached, trust in the physician-patient relationship would be broken.

Patients would be less likely to share sensitive information, which could affect their care, and it would make them less willing to seek help.

It would also erode public trust in the medical profession and diminish its healing role.

It is thus important that there are laws to protect this confidentiality.

However, this is not absolutely sacrosanct. There are occasions when there is a need to break this otherwise-ironclad confidentiality.

A landmark case occurred in 1969 when Prosenjit Poddar, a graduate student at the University of California in Berkeley, disclosed to his psychotherapist in the student health facility that he wanted to kill a young woman named Tatiana Tarasoff whom he had met at a folk dancing class. He was smitten by her, but she rebuffed him.

The therapist believed that Poddar would carry out his threat and duly reported him to the university campus police.

However, the police thought otherwise after interviewing Poddar, who then refused further treatment. Two months later, he went to Ms Tarasoff's house armed with a kitchen knife and stabbed her to death. Her parents sued the University of California, which ran the healthcare facility and employed the campus police.

The case went before the Supreme Court of California, which ruled that "when a doctor... determines or should determine, that a warning is essential to avert danger arising from the medical or psychological condition of his patient, he incurs a legal obligation to give that warning... Thus, it may call for him to warn the intended victim, to notify the police, or to take whatever steps are reasonably necessary under the circumstances".

The corollary of this case, which has established its place in the annals of psychiatry, is that doctors and psychotherapists have a duty to protect identifiable individuals from any danger if they have information that could prevent harm. In this sort of situation, the duty to protect the community trumps the duty to protect patient confidentiality.

THE DANGER OF PREDICTING DANGEROUSNESS

But the assessment of dangerousness in a person is invariably fraught with difficulty, the prediction of which is a matter of probability and never a certainty.

Violence often has a contextual element and takes place within a set of shifting circumstances which could change with time.

The assessment requires the gathering and sieving of considerable information from as many sources as possible.

Then there must be a comprehensive appraisal of the person's past and present, taking into consideration the frequency, intensity and severity of past dangerous behaviour and identification of an array of possible triggers such as substance abuse, losses, interpersonal conflicts and financial problems.

The assessment of the likelihood of someone committing both murder and suicide is even more complex and treacherous.

This is confounded by the dearth of research on these rare events and the impossibility of extracting the most needed and relevant information from the perpetrator.

The last scholarly review of the rate of murder-suicide was published in 1992 in the Journal Of The American Medical Association, which reported the annual incidence of murder-suicide was 0.2 to 0.3 per 100,000 people in the United States. Getting the assessment wrong either way has serious consequences for both the patient and the doctor.

In the book Seminars In Practical Forensic Psychiatry, British psychiatrist Derek Chiswick cautioned doctors not to underestimate the implications of an assessment of imminent dangerousness as this often leads to incarceration of the patient.

"If he errs by detaining 20 patients for 10 years longer than was necessary, the fact is hardly likely to come to light or cause him professional harm, even though he is responsible for 200 years of unnecessary detention," wrote Dr Chiswick, who also noted the dilemma intrinsic in such assessment. "Conversely, if he releases one patient who subsequently commits a violent crime... he will experience intense public opprobrium and professional scrutiny. He is likely to face an inquiry and even disciplinary proceedings or civil action for professional negligence."

Two years ago, a psychiatrist in France was found guilty of involuntary homicide after her patient killed someone. The subsequent sentence handed out was for the "grave error" of not recognising the public danger posed by her patient.

DANGEROUSNESS AND MENTAL ILLNESS

There is another troubling issue which has arisen from Lubitz's deliberate act of mass destruction: the implied and operative presumption of the general public that dangerousness is intimately, and often, if not invariably, associated with mental illness.

Often when mental illness is cited in the context of a heinous act, it is as if that alone could explain the otherwise-inexplicability of the act.

The former head of the department of aviation psychology in Lufthansa (which owns Germanwings) was reported to have said of Lubitz: "If I had known about his medical problems with depression before starting his flying career and during his primary training, I probably would not have accepted him."

In grim retrospection, most people would agree with this obvious regret. But the presence of depression, which is a treatable condition, should never be equated with impairment, incompetence or danger. In an interview with the BBC, Sir Simon Wessely, president of the Royal College of Psychiatrists, said there are millions in Britain with depression, and this includes pilots who "resume flying, perfectly safely, for maybe tens of years afterwards".

The overwhelming majority of violent acts are committed by people without mental illness, and most mentally ill people are neither violent, disruptive nor bizarre.

It has been a Sisyphean task to get people to know or remember this statistical fact. Most continue to harbour a broad and deep-seated fear (and prejudice) of people with mental illness.

German investigators have found torn-up sick notes from doctors indicating that Lubitz did not stay away from work when certified sick, including on the day of that final flight - evidence that, in the words of the investigators, supports "the current preliminary assessment that the deceased hid his illness from his employer and his colleagues". It would seem that he had feared being discriminated against and losing his job.

We may never know if Lubitz's mind was so horribly distorted by depression or any other illness that he did what he did. If it were the case, one wonders: If there had been no shame in admitting to a mental health problem and seeking help, if there were no fear of the stigmatisation of mental illness, might he not have been driven to crashing the plane, and might those lives not have been extinguished?

Depending on what else would emerge from the ongoing investigation and how we would subsequently look at it, the victim count in this crash might not be just 149. It might be 150, if you include 27-year-old Andreas Lubitz.

• The writer is vice-chairman of the medical board (research) at the Institute of Mental Health.

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Public Transport Council (Amendment) Act 2015 (Act 31 of 2015)

Housing Developers (Control and Licensing) (Amendment) Act 2013: Developing greater confidence in the private residential property market

Legislation
28 Jul 2015

AHPETC confirms $3.5m legal demand from agent

Straits Times
01 Sep 2015
Tham Yuen-C

Claims are for fees related to projects and won't affect bottom line, says Sylvia Lim

Workers' Party (WP) chairman Sylvia Lim yesterday confirmed that the party's town council had received a legal demand for $3.5 million from its former managing agent, but insisted this would not hit its bottom line.

She said the amount demanded was for fees related to projects handled by the managing agent, and linked to the town council's sinking fund expenditure. But she declined to give further details, citing confidentiality agreements.

The New Paper reported yesterday that FM Solutions and Services (FMSS) sent a letter of demand to Aljunied-Hougang-Punggol East Town Council (AHPETC) to say the latter owed it more than $3.5 million for services provided between April and July 14. The letter was dated July 20, six days after the managing agent's contract with the town council ended on July 14.

After receiving the letter, AHPETC then did its own checks and withheld payment as it had "some questions about those claims", Ms Lim said.

The town council had also reportedly tried earlier to recoup $250,000 from FMSS, a sum it then raised to $450,000.

Yesterday, WP chairman Sylvia Lim downplayed the matter - which will go before mediators in October - saying it will not affect AHPETC's bottom line.

"We can confirm that we received this letter but this is actually quite old news because it has been overtaken by events... Most of the claims are related to the current financial year 2015/2016, and a substantial portion is related to sinking fund payments. So they do not actually impact on the routine funds," she said. Money in a town council's sinking fund is earmarked for long- term and cyclical projects, such as upgrading works.

Ms Lim also said that the town council had since paid off a substantial part of the $3.5 million amount and that the disputed sum will "not actually affect the bottom line in terms of surplus and deficit of the accounts".

News of the dispute broke two days after the Ministry of National Development (MND) released figures to show that there had been, in its words, "gross profiteering" on the part of FMSS from its only client, AHPETC.

Asked yesterday if her town council felt it had overpaid FMSS, Ms Lim replied: "A large part of the disputed claims is actually concerning projects which are a different kind of claim as compared to a claim for managing agent monthly rates. It is not connected with us looking (at) or reviewing the managing agent rates. It's not the case at all."

FMSS had been authorised to act as a project manager for the town council. When the firm handled projects, it was allowed to claim a percentage of the project value as additional fees, above and beyond its managing agent fees, said Ms Lim, adding that that was also the case at other town councils.

For now, both parties are headed for mediation in October to resolve the issue, said Ms Lim, adding that the case will not go to court.

On whether the WP had briefed its new candidates on the issue, Ms Lim said: "This is one of the matters that we're sorting out with our contractors under a process that's already been agreed, so we do not see why this should concern the new candidates because everything is according to our agreement."

She was also asked why AHPETC had not made public the matter earlier, given the large amount involved. She cited the confidentiality agreement, adding: "It's just a letter of demand. People can demand things, but whether they are legitimate or not and to what extent, that is another question altogether."

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

Bus Services Industry Act 2015 (Act 30 of 2015)

SHC considers different types of extrinsic evidence in construing lease pursuant to variation

Judgments
28 Jul 2015

Drone laws should protect recreational users, privacy: Voices

TODAY
01 Sep 2015

French mathematician Blaise Pascal once said of flies: They win battles, paralyse our minds and eat up our bodies. Today, we see the immense potential of non-military drone use as recreational drone use becomes more commonplace.

But the recently enacted Unmanned Aircraft (Public Safety and Security) Act and the amendments to the Air Navigation Order fail to allay potential privacy and security concerns for residential property owners (“Govt to regulate drones amid safety incidents”; May 12).

First, the Act does not cover situations where drones are used to criminally trespass upon residential property. The present provision that seems most relevant, section 442 of the Penal Code, is limited in that it covers trespass by a person’s body, rather than a remotely operated drone. Similarly, section 21 of the Miscellaneous Offences (Public Order and Nuisance) Act prohibits wilful trespass on property by persons, but not by drones.

While the recreational applications of drones are aplenty, these nifty little machines raise concerns over their possible criminal applications, such as the retrieval of house keys, unwanted filming in private places and so forth.

What makes the situation worse is that the drone operator often remains hidden or anonymous, which means they would be next to impossible to track down in the event of illegal drone usage. A more robust, carefully crafted regulatory response is needed to pre-emptively counter illegal drone use that violates privacy, while recognising the amenity drones afford to the majority of recreational users.

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Human Biomedical Research Act 2015 (Act 29 of 2015)

MAS paves the way for FinTech Innovation with SGD 225 million scheme

Business
27 Jul 2015

Fake goods seller seeks fine instead of jail term

Straits Times
01 Sep 2015
Selina Lum

Lee Kok Leong ran a business selling clothing, footwear and bags - most of them fake.

He hired a professional Web designer to set up an online store for the goods sold by his firm, M Mall.

He also had a walk-in showroom in Ubi Crescent where customers could browse "Marc by Marc Jacobs" bags, try on "Crocs" sandals and "Polo by Ralph Lauren" clothes, collect their goods and exchange faulty items.

When the police raided the place two years ago, they found only 30 per cent of the goods to be authentic. The bulk - 1,531 items in all - were found to be counterfeit.

Lee is out on bail as he waits for the hearing of his appeal against a four-month jail term handed down by a district court after he pleaded guilty to selling counterfeit goods.

He had sought a fine, arguing that his only fault lay in his failure to conduct sufficient checks to verify the authenticity of the goods.

In a written judgment explaining Lee's sentence, District Judge Wong Choon Ning noted that he had "actively sourced and procured the infringing items from abroad".

While Lee initially checked the authenticity of some goods by making sample purchases first, Judge Wong said she could not disregard his subsequent failure to do so.

Investigations revealed that Lee and his wife ordered the goods from China, packed them and arranged for delivery or collection. The business, which operated for 15 months before the raid, made a net profit of $4,000 to $5,000 a month.

The fake goods seized by police included 13 "Marc by Marc Jacobs" bags in which the badge inside was positioned upside down. Lee had paid $20 per bag and sold it for $35.

The goods included 628 pairs of "Fitflop" sandals and 49 pieces of clothing bearing characters from the popular Angry Birds game.

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Silver Support Scheme Act 2015 (Act 28 of 2015)

Singapore Medical Council disciplinary process – A study of a recent case

Judgments
27 Jul 2015

Jail, caning for abusing daughter

Straits Times
01 Sep 2015
Selina Lum

From age of 10 to 14, girl was sexually violated by her divorced father during weekend visits

A divorced 46-year-old man who sexually abused his biological daughter when she went over to his place on weekends was yesterday jailed 19 years and ordered to be caned the maximum 24 strokes.

The bus driver, who had been granted weekend access to his two daughters after his divorce from their mother, started abusing the younger girl when she was 10.

He continued to sexually exploit her until she was 14. On some occasions, he would tell her that he missed and loved her.

The abuse came to light when the girl was 14 after the victim's teacher asked why she was skipping school and going home late.

Yesterday, the man pleaded guilty to two charges of sexual assault, one charge of aggravated molestation and two charges of molestation. Six other similar charges were taken into consideration. He is not named to protect the identity of the victim, who is now 17.

In sentencing, High Court judge Woo Bih Li agreed with prosecutors that the man's actions were "heinous". Justice Woo said that any sexual assault is to be "condemned in the strongest terms" and in this case, the offences are aggravated by the fact that the victim was the man's young biological daughter.

"She trusted you. You were supposed to protect her. Instead, you violated her," said the judge.

The court heard that the man and his former wife divorced when the victim was two years old.

The girls lived with their mother but, as a result of custody arrangements, spent time with their father at his home every Saturday.

On one such Saturday afternoon visit in 2007, while the girl was sleeping, the accused entered the room, lay next to her and sexually violated the 10-year-old.

This was the start of a series of sexual abuse which has left the girl "sad and disgusted" with her father's actions, the court heard.

Deputy Public Prosecutor Allison Phua sought a deterrent jail term of 18 to 20 years, noting that the man had exploited his position of authority over the vulnerable victim. By telling the girl how much he loved and missed her while abusing her, he was causing her to feel emotionally disturbed and helpless, she said.

The man's lawyer, Mr Kertar Singh, said 12 to 14 years was sufficient. He argued that his client was not a serial rapist and is unlikely to repeat the offences.

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Employment (Amendment) Act 2015 (Act 27 of 2015)

Personal Data Protection Commission issues new advisory guidelines and helpful guides

Business
27 Jul 2015

Crowdlending sector seeks clearer rules

Business Times
31 Aug 2015
Jacquelyn Cheok

Industry's call prompted by lack of regulatory framework and comes after 'diverse interpretations' of the Securities and Futures Act

[Singapore] CROWDLENDING platforms, which allow individual investors to lend directly to businesses for a fixed return, are calling for clearer regulations to grow this nascent industry, one they say will offer small and medium enterprises (SMEs) and startups wider funding access and options.

The call has come in the absence of a regulatory framework for crowdlending and after what appears to be diverse interpretations of the Securities and Futures Act (SFA) - a few clauses of which the Monetary Authority of Singapore (MAS) says may apply to crowdlending platforms here, depending on their fund-raising methods.

"Clear regulations and compliance are critical as they help to boost investor confidence and avoid the mismanagement of any platform that could threaten the reputation and credibility of this very young industry. Therefore, we are eager to have MAS regulate this industry to ensure its continuous growth," said Kelvin Teo, co-founder of Funding Societies, the newest of crowdlending platforms here, having launched just last month.

The others are New Union (launched in February 2014), MoolahSense (November 2014), Capital Match (April 2015) and FundedHere (yet to be launched).

With no dedicated framework in place, operators of these platforms have largely referred to the SFA to ensure compliance. According to MAS, there are two applicable requirements under the SFA that are relevant to crowdlending activities: the Capital Markets Services (CMS) licensing and the prospectus requirements.

But each requirement features a unique definition of the term "securities" and this seems to have led to diverse interpretations of the act and disparate fund-raising methods by platform operators to circumvent both requirements. This has led at least one operator to be disturbed over what he said is now an unlevel playing field.

For instance, under Section 80 of the SFA, crowdlending platforms deemed to be dealing in securities are required to hold a CMS licence. Here, "securities" is defined as (among others) stocks issued by a corporation but excludes (among others) any promissory note, which contains a written promise by one party to pay another party a fixed sum of money on demand at a specified future date.

Under Section 239, the SFA says borrowers raising funds on a crowdlending platform via the "public offer of securities" to Singapore investors must register a prospectus with MAS. Here, "securities" is defined to include "debentures", which are (among others) debenture stock and bonds issued by a corporation but exclude (among others) promissory notes having a face value of not less than S$100,000 and having a maturity period of not more than 12 months.

Asked how these regulations have influenced their operations, MoolahSense said it has from day one been "fully compliant" with the latter promissory note exclusion, ensuring that all notes issued by its borrowers have a face value of at least S$100,000 and a maturity period of not more than 12 months, so as to overcome the prospectus requirement. It added it had obtained written confirmation from MAS that its crowdlending model also does not "deal in securities" and hence no CMS license is needed.

"(In the first place), the definition of 'securities' applied in each instance is incongruous," said MoolahSense chief executive Lawrence Yong. "It becomes the responsibility of platform operators to ensure that they don't structure crowdlending formats that may subject participants to potential illegality, as this poses risks to borrowers and may also lead to the loan contracts becoming unenforceable."

He added: "As most borrowers on crowdlending platforms do not lodge prospectus, it is necessary for responsible operators to guide them to issue instruments that wouldn't be otherwise construed as 'securities' under the SFA. This would safeguard investors from the risk of entering into contracts that may be deemed illegal and hence unenforceable."

For all that, it is a different scenario at the other platforms, which facilitate a wider - and, according to Mr Yong, more attractive - range of financing options. These include loans under S$100,000 - with some as low as S$10,000 and having a maturity period of up to 24 months - as advertised on their websites. They too do not own a CMS licence.

Capital Match CEO Pawel Kuznicki said: "We offer both loan facilities via promissory notes and invoice discounting facilities. If the amount falls below S$100,000, we would only facilitate such transactions under invoice discounting. In future, we may extend our services to include a broader definition of promissory notes in which case we would prepare a prospectus for each borrower."

Funding Societies, which accepts loan applications of S$10,000 to S$200,000, said it does not fall under the purview of any authority as it does not deal in securities, provide financial advice or engage in fund management. Said its co-founder Mr Teo: "If a platform acts mainly as a marketplace lending platform with no ancillary services provided, it would not need to comply with the SFA."

Nonetheless, Funding Societies is believed to be the first here to engage a MAS-registered trustee agency (Orangefield Trust) to hold and handle crowdlending monies - a move Mr Teo said is costly but necessary to comply with the government's anti-money laundering efforts.

The disparity in interpretations of the SFA and priorities among the platform operators is clear. Said MoolahSense's Mr Yong: "The crowdfunding industry should be given clear directions. It will prevent rogue players from operating under the veil of ambiguity to arbitrage services that unfairly penalises the responsible and compliant ones, and materially relax the constraints that have been imposed on our operations."

MAS has been reviewing the feedback received since the close of its public consultation on facilitating securities-based crowdfunding in March. As part of the ongoing policy review to ensure that the SFA remains relevant and effective, MAS also does review the scope of "securities" and "debentures". It targets to complete its review in 2015, BT has learnt.

To-date, Capital Match has funded over S$950,000, New Union S$21 million and MoolahSense S$1.99 million to SMEs. Said New Union co-founder Eddie Lee: "Crowdlending is a viable industry as even the more established companies look for alternative financing sources to grow their businesses. As a financial hub in Asia, Singapore is in a good position to build up its crowdlending credibility."

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

Organised Crime Act 2015 (Act 26 of 2015)

Legitimate expectations and good administration

Business
27 Jul 2015

Biz ethics: beyond compliance to competitive advantage

Business Times
31 Aug 2015
Neo Sing Hwee

It must be seen to be ingrained into the very fabric of the company's culture

A RECENT Asia-Pacific survey on fraud by EY found that, over the past two years, more and more organisations have stepped up their efforts to prevent fraud and combat bribery and corruption.

That's the good news.

The not-so-good news is that the survey suggests that while Singapore companies have put in place structured frameworks and procedures for dealing with unethical conduct, bribery and corruption, these measures do not work that well in practice.

The prevalent feeling among survey respondents is that compliance violations are not dealt with promptly and appropriately. More critically, the survey revealed that near 80 per cent said they would be unwilling to work for organisations involved in bribery and corruption.

A new talent perspective

These findings provide an important perspective for viewing compliance, especially as it relates to business ethics. If the survey is correct in its assertions that, for the younger workforce (25 years and below), an organisation's reputation for ethical behaviour is a key factor in their career decisions, companies now have a new imperative for managing fraud, bribery and corruption, by going beyond the basic compliance indices set by regulators.

As the survey points out, a failure to do so could see the loss of promising talent, higher attrition rates and expensive recruitment campaigns. In markets where it is already difficult to recruit and retain staff, the consequences could be severe.

High standards of ethical conduct and practices, in other words, have become a competitive business advantage in attracting and retaining top talent. And if it is not already, it needs to become central to the growth strategy of any company.

Tone from the top

Achieving a sustainable ethical culture takes a commitment of resources and effort. To begin with, it is fundamental that the board, together with senior management, sets the appropriate top-down tone by establishing a corporate culture that promotes ethical behaviour.

A detailed framework of policies should clearly and consistently articulate the organisation's values. Ethics and integrity must be seen to be ingrained into the very fabric of the company's culture, so that it is part of the ordinary and usual course of business.

In the board's and management's communication with staff through meetings, employee discussions, town halls, memos, emails and presentations, the importance of integrity and ethics should be stressed.

At the next level, employees need to understand and appreciate the moral legitimacy of their actions, whether they involve spending time during working hours on personal social media, falsifying expense claims, receiving gifts from customers or suppliers, or leading or grooming favoured vendors towards the award of a contract.

Very often, such behaviour is exacerbated by the absence of internal controls (or the presence of weak controls). It is therefore essential that regular ethics training be an integral component of the business. Comprehensive anti-fraud and bribery programmes will also help ensure key stakeholders such as employees, customers and vendors are looped in.

Experience has shown that one such effective programme is a whistleblowing mechanism and ethical hotline for the reporting of suspicious or fraudulent activities. Yet, the EY survey found that whistleblower programmes are either missing or underused in most companies.

Of particular concern is that the percentage of respondents prepared to use their company's whistleblower hotline has dropped dramatically over the past two years. Companies need to find out the reasons for this fall and redress them.

Don't confuse with legality

Of course, the ethical basis of a particular action should not be confused with its legality, and it is here that the board should lead by example.

Take a vendor who has set up several subsidiaries to participate in the same competitive tender process. Let us say that one of its bids ends up winning the contract. Now, it is debatable whether the company was under any legal obligation to declare its relationships with those subsidiaries.

However, it behooves the board to take a firm stand against this vendor on the basis that the making of multiple bids without full and fair disclosure was neither moral nor ethical. It might even consider drastic action such as blacklisting and stopping future business dealings with the vendor.

As the EY survey shows, business ethics is no longer just an issue of compliance with regulations and enforcement. There are broader implications, not the least of which are talent recruitment and talent retention; honest people want to work with other honest people.

And in a hyper-competitive world in which good human resources are increasingly difficult to come by, the value of embracing integrity as a fundamental feature of a company's DNA becomes very much self-evident.

Also clear is the resulting commercial advantage to be had over a competitor. Instead of continuing to pursue success and profitability, a company that actively practices ethical business as a strategy will drive and create shareholder value.

In turn, it is not inconceivable that such behaviour may well be viewed as an intangible asset in ensuring the company's long-term sustainability.

  • The writer is a member of the CG Guidebooks Committee of the Singapore Institute of Directors

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

Civil Aviation Authority of Singapore (Amendment) Act 2015 (Act 25 of 2015)

IDA’s second consultation on allocation of spectrum for International Mobile Telecommunications services and enhancement of competition in mobile market

Business
24 Jul 2015

Crowd-funding to raise funds for elections allowed

Straits Times
30 Aug 2015
Danson Cheong

Candidates are allowed to use crowd-funding to raise money for the coming polls, said the Elections Department (ELD), even as several groups started canvassing for donations online.

Responding to queries from the media yesterday, the ELD said that crowd-funding was permitted as long as candidates comply with the restrictions outlined in the Political Donations Act.

"Under the Political Donations Act, each candidate can accept only donations from permissible donors. Additionally, anonymous donations (for each candidate) must not exceed $5,000," said an ELD spokesman.

The law also prohibits donations from foreign sources or individuals below the age of 21, and requires that cumulative donations of $10,000 or more from a single individual also be declared.

Yesterday morning, Mr Roy Ngerng, 34, a member of the Reform Party's six-member team for Ang Mo Kio GRC, put up a post on his blog calling for donations.

The post said the team hopes to raise $50,000 before Nomination Day on Sept 1. Donors were asked to transfer money to a DBS bank account under the names of Mr Ngerng and his GRC team colleague, activist Gilbert Goh, 54.

"We do have existing funds, but if we want to hold a campaign that would be impactful and meaningful, and create greater reach, we need more money," Mr Ngerng told The Straits Times .

Mr Goh added that the team already has about 90 per cent of their election deposits but needs the extra cash to hold rallies, which can cost about $10,000 each. As of last night, Mr Goh said they had raised less than $2,000.

For the Sept 11 election, each candidate had to place an election deposit of $14,500.

Separately, blogger Han Hui Hui, who has indicated her interest in running as an independent in Radin Mas SMC, has also begun to ask for donations online.

Mr Ngerng, Mr Goh and Ms Han are all no strangers to the process, having conducted previous crowd-funding campaigns for various causes, including protests they organised in Speakers' Corner.

Last year, Mr Ngerng raised some $110,000 online to help pay for legal costs after he was sued for defamation by Prime Minister Lee Hsien Loong.

Online fund-raising for elections and political causes has been around since the last election, and parties, like the Singapore Democratic Party(SDP), have long had a section on its website calling for donations.

SDP treasurer Chong Wai Fung said the party receives about half of its funding online but adds that all parties are very cautious about anonymous donations, as they could come from foreign sources.

"That's why we always ask them to indicate who they are. So far, I think we don't have any transfers where we don't know who the donors are," she said.

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

Asian Infrastructure Investment Bank Act 2015 (Act 24 of 2015)

Scheme of arrangements – A tool for restructuring?

Business
24 Jul 2015

The extent of Yang Yin's manipulation

Straits Times
30 Aug 2015
K.C. Vijayan

Account of how ex-tour guide offered maid money for her help detailed in judgment

An Indonesian maid who works for a wealthy widow alleged that she was promised "a lot of money" by former China tour guide Yang Yin if she would say good things about him and his family.

She said no to the bribe, and instead described to a court how he treated her employer, 88-year-old Madam Chung Khin Chun, when he lived with her.

This was one of the more startling revelations that emerged from the decision grounds of District Judge Shobha G. Nair released last Thursday. In it, she explained why she threw out a will which left Madam Chung's $35 million fortune to Yang.

The judge replaced it with one in which he gets nothing, with most of the money going to charity. Yang, who is 41, is contesting the decision.

The Family Court hearing in May, held behind closed doors, involved documentary evidence from Madam Chung's neighbours, friends, a former driver and her maid against Yang, which described how he allegedly took control of the woman's life and money, and drove away those close to her.

THE CLOSE FRIEND

  • The case so far

  • Former China tour guide Yang Yin, 41, met widow Chung Khin Chun, 88, in 2008 when he acted as her personal tour guide during her trip to China.

    In 2009, he came to Singapore, started a music and dance school, and obtained an Employment Pass to work here. He also moved into her Gerald Crescent bungalow.

    In 2012, the widow granted him a Lasting Power of Attorney (LPA), giving him control of her assets.

    Madam Chung's niece, Madam Hedy Mok, a 61-year-old tour agency owner, found out about the LPA after her aunt was diagnosed with dementia last year.

    She took her aunt to live with her, evicted Yang and his family from the bungalow and sued him for allegedly manipulating her aunt into giving him control of her assets. Yang, however, claims that Madam Chung wanted him as a "grandson".

    The LPA was revoked last year by the Family Court.

    This year, the Family Court also accepted a new will made by the widow, which leaves most of her assets to charity, cutting Yang off and leaving him with nothing. Yang is appealing the decision.

    Apart from the civil court cases, Yang faces more than 300 criminal charges for falsifying receipts at his company. He also faces two criminal breach of trust charges for allegedly misappropriating $1.1 million.

    He has been in remand since Oct 31 last year after his bail application was denied.

    Toh Yong Chuan

One of the key witnesses was an unmarried 84-year-old retired teacher who was invited to live with Madam Chung and her husband at their Gerald Crescent bungalow in 2004.

She said that at the time, Madam Chung's husband, Dr Chou Sip King, was in poor health and wanted someone to look after his wife, who had begun to show signs of forgetfulness and mental deterioration.

She met Yang in 2005, when he was her tour guide on trip to China.

He kept in touch after that, even meeting her during his trips here.

In 2008, a year after Dr Chou's death, she and Madam Chung planned a trip to China. She asked Yang to be their guide.

But after the trip, she said that she found it strange that he continued to contact Madam Chung and have long conversations with her - given that he was a recently married man.

In 2009, Yang moved in with Madam Chung, set up a company with her, and went on to receive permanent residency. According to the close friend, he asked Madam Chung to sponsor his stay in Singapore on the pretext of wanting to learn English here.

His course fees of $4,000 were paid for by the widow, she said.

That same year, she said that she put in $200,000 into a new OCBC Bank joint account with Madam Chung. The money was to be used by either one should anything happen to the other. Sometime later, when the friend wanted to use the funds, she was told there was nothing left.

The friend said that when Madam Chung tried to put in money from another account with DBS, the cheque bounced. Yang was told to take the women to OCBC. There, she said that Yang carried out a transfer to return the money to her.

That was when she realised Yang had control over Madam Chung's money, without the widow's knowledge, the friend alleged. She considered going to the police, but moved out in 2011 instead.

Another close friend of Madam Chung and her husband said she was puzzled by the distance Yang kept from the widow's acquaintances.

For instance, he would drop the widow off at her house, but never came in or spoke to the friend.

She said that in 2012, she observed Madam Chung becoming less talkative and cheerful, and linked it to Yang's influence. The judge, however, said this could be due to the widow's deteriorating health.

A neighbour, who would often drop by to speak to the retired teacher living with Madam Chung, gave evidence as to the discomfort Yang's presence was causing.

She said the retired teacher told her how Yang would ask for sums of money, ranging from $4,000 to $40,000. She was also told that Yang asked for money to buy university qualification papers from China so that he could apply for permanent residency.

THE LAWYERS

In 2004, a lawyer described in the grounds of judgment as Mr C, was approached to act for Dr Chou in a real-estate matter. But the relationship turned into a personal one - with Mr C often visiting the couple .

After Dr Chou's death, he continued to visit Madam Chung. In 2008, she asked for his help in updating a will she made in 1989.

In that will, she left much of her assets to a trust fund to benefit various charities, including the Community Chest, the Society for the Prevention of Cruelty to Animals, the Nursing Foundation of Singapore, the Singapore Zoo and the Cultural Foundation of Singapore.

She wanted to add provisions that would provide her close friend, her driver and her maid with food and medical expenses. She also wanted to let her close friend live at her house for as long as she wanted.

In addition, she asked for a charitable trust fund to be set up in her husband's name.

Mr C, who not familiar with probate practice, roped in a colleague, Mr D, to help make the new will. In June 2009, they presented her with a draft at her home. Not wanting to rush her, the will was not signed.

In March 2010, Madam Chung, in a departure from the norm, arranged to meet the lawyers at their office. Yang, who went with her, was introduced as her nephew.

According to Mr D, Yang claimed that he was a Chinese Embassy staff member. He declined to exchange name cards saying it was not appropriate for embassy staff to do so.

In subsequent meetings, Mr C observed that Yang "became her mouthpiece" even though Madam Chung had no problems communicating. He did not probe further as "it was not my place to do so".

In their last meeting in December 2010, Madam Chung was asked if she wanted sign the draft will. According to Mr D, Yang said Madam Chung did not, and that she no longer needed their services.

THE DRIVER

A 79-year-old man, who had been working as a driver for Madam Chung and her husband since 1979 before being fired in 2009, also gave evidence in the case.

He described the couple as kind, and said they gave him groceries every week to take home. He claimed that this was an arrangement which Yang was not happy with.

He said Yang often asked Madam Chung for money and luxury items. He said he warned his employer that Yang was a "gold digger" and that she would one day be cast aside. He also told her he wanted to quit as he did not like how Yang would "boss" and intimidate him.

Sometime in 2009, he argued with Yang over why the latter fixed "blind spot mirrors" onto Madam Chung's car. The driver said the mirrors made it difficult for him to drive. Yang gave evidence that the driver was rude and attacked him.

That very day, Madam Chung handed the driver a letter of termination and a $50,000 cheque. According to the driver, she told him to accept the gift as he would get nothing on her death.

THE MAIDS

Before Yang entered Madam Chung's life, she had two Indonesian maids working for her. They, too, gave their versions of events.

The one who had worked at the bungalow earlier described her employer's generosity. She said the widow paid for her medical expenses and gave bonuses to her helpers during the festive seasons.

She also described how Madam Chung's daily routine involved meeting friends, adding that the gate to her house was "never locked".

But everything changed with Yang's arrival. In 2012, she was fired for no apparent reason, she added.

The maid who was kept on said she was ordered not to allow Madam Chung's friends to come by. When Yang's wife and children moved in, she was told to serve them.

She said that when Yang's family went out in the car, Madam Chung was always left alone in the house.

She claimed that the family also went travelling nearly every month.

She described how before leaving, Yang would lock Madam Chung's art galleries and keep the key with him.

She also said Yang was disrespectful to the widow and recalled an incident when he shouted at his benefactor in the gallery. She claimed that paintings and items in the house started to disappear.

Before his family joined him in Singapore, she claimed that Yang would smoke in the house, and drink red wine. She described Yang as "lazy", only waking up at 11.30am.

She said he would talk to Madam Chung only during meal times. He would kiss and hug her - acts the maid described as insincere, and which were meant to make Madam Chung think that he cared for her.

The maid who was fired added that Yang even entertained female visitors at night.

The maid who was allowed to continue working also testified how Yang stopped Madam Chung from visiting her regular doctor and changed her medication. She said she observed the widow's health getting worse.

When the widow's niece Hedy Mok started legal proceedings against Yang, the maid said in her affidavit how Yang accused her of leaking information about the goings-on in the house. He then "tried to bribe me into helping his case", she said .

"He told me that he would not hurt me and would give me a lot of money if I say good things about him and his family.

"I did not accept his offer. I wish to say that during that interrogation, Madam was translating everything. She had a look of fear on her face."

JUDGE'S SCATHING REMARKS

The district judge said the evidence showed Yang had put together a "carefully knitted plan to have Madam Chung believe that he cared for her and that the quickly formed relationship could be trusted.

"The plan was in fact a web of deceit and (Madam Chung) was caught in it. The unfortunate reality is that (Madam Chung's) money and assets were (Yang's) sole interest and he pursued it with unconscionable drive," said the judge.

She highlighted how Yang declined to question the witnesses who gave evidence against him. She criticised Yang for raising the suggestion that the friend who lived with Madam Chung had an improper relationship with her husband, without providing any evidence.

Yang's main defence was the fact that before Madam Chung executed her new wills of 2009 and 2010, she was seen by a doctor who gave the opinion she had the mental capacity to do so. But the judge said the issue was whether she was under the undue influence of Yang at the time - an influence which was stronger than her true will.

She questioned Yang's motivation given that the wills were surreptitiously and hurriedly made soon after he came to live with Madam Chung, who was diagnosed with dementia in 2014, and without any independent advice.

She said his price for caring for Madam Chung was holidays with his family, money and expensive purchases, including a private property which was subsequently sold for a significant profit that found its way into Yang's personal bank account.

She also asked why, if the only motivation was to care for a woman he saw as his grandmother, Yang continues to insist he should benefit from the estate. She called this an unjust request, considering that a "tidy sum" of Madam Chung's money had already been given to him.

The judge hoped that by replacing the will which gave everything to Yang with one that restores Madam Chung's original intentions to give most of her money to charity, would bring back some balance in the widow's life. "Rather ironically," the judge added, "the yin and the yang".

Mr Ramachandran Doraisamy Raghunath served as Madam Mok's lawyer at the hearing, while Yang was represented by lawyer Joseph Liow. Madam Chung's lawyer is Mr Eugene Thuraisingam.

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

Employment (Amendment) Act 2015 - Employment (Amendment) Act 2015 (Commencement) Notification 2015 (S 505 of 2015)

Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act: Amendments to the Act

Legislation
24 Jul 2015

Ex-tour guide crafted 'web of deceit': Judge

Straits Times
28 Aug 2015
K.C. Vijayan

Claims by former China tour guide Yang Yin that he moved in with rich widow Madam Chung Khin Chun to take care of her was nothing but a lie. It was instead part of a carefully crafted "web of deceit" to get his hands on the 88-year-old's $35 million fortune.

This is how District Judge Shobha G. Nair described a chain of events, in which Yang cut Madam Chung off from friends and neighbours, fired her maid and driver, and through undue influence, made him the sole beneficiary of her will.

Three months ago, the district judge threw out that will in a closed-door hearing and replaced it with a new one in which nearly all her assets will go to charitable causes - a decision which Yang is appealing. Yesterday, her grounds of judgment was released, and they revealed shocking testimony from Madam Chung's friends and former employees on Yang's behaviour.

Madam Chung met Yang during a China tour in 2008. She went with a 84-year-old woman, who was a close friend and had known Yang since 2005. He was their tour guide.

In 2009, he moved into Madam Chung's bungalow in Gerald Crescent, set up a company with her, and received permanent residency.

The close friend, who had been living with Madam Chung since 2004, decided to move out in 2011 and said it had become apparent Yang had control over the widow's money.

The court also heard how in 1989, Madam Chung executed a will in which much of her assets would go to a trust fund that would benefit various charities, including the Community Chest and Society for the Prevention of Cruelty to Animals.

In 2008, a year after the death of her husband Dr Chou Sip King, she told lawyers, one of whom was a family friend, that she wanted to update the will, to leave her close friend and long-time employees with enough living expenses.

She also wanted to set up a trust fund in her late husband's name to benefit charity.

But in 2010, she arrived at the lawyers' office with Yang, and introduced him as her nephew. He claimed that he was working at the Chinese Embassy, and declined to hand over his name card, saying that it was inappropriate to do so.

In subsequent meetings, Yang became her mouthpiece and told the lawyers their services were no longer needed. In 2009, and then 2010, Madam Chung, who was diagnosed with dementia last year, changed her will through another lawyer, leaving everything to Yang.

Witness affidavits presented by lawyers for the plaintiff, Madam Chung's niece Madam Hedy Mok, described Yang as a gold-digger who frequently asked the widow for money and luxury items.

An Indonesian maid who worked for Madam Chung said that before Yang brought his wife and children to live with him, he would entertain woman visitors at night. She testified that he stopped Madam Chung from visiting her regular doctor and changed her medication. She observed Madam Chung's health getting worse. She was also told by Yang not to allow Madam Chung's friends to come by.

Yang's defence did little to counter these allegations.

The judge, who did not name the parties involved, questioned why Yang would leave his own parents in China to take care of a woman he was not related to. "His benevolence had a price," she said. "The unfortunate reality is that (Madam Chung's) money and assets were (Yang's) sole interest and he pursued it with unconscionable drive."

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

Asian Infrastructure Investment Bank Act 2015 - Asian Infrastructure Investment Bank Act 2015 (Commencement) Notification 2015 (S 504 of 2015)

The SICC: Competitor, companion or captain?

Business
23 Jul 2015

Ex-director of defunct travel agency sued over photocopiers

Straits Times
28 Aug 2015
Selina Lum

Orix claims $770,000 over lease; defendant says he signed document without reading it

A founding director of a travel agency that folded last year is facing a lawsuit for more than $770,000 over the lease of nine photocopying machines.

Mr Johnny Lim Cheng Onn, 48, had agreed to be a guarantor for Five Stars Tours when it leased the photocopiers from Orix Leasing in 2011. Under the terms of the lease, Five Stars was supposed to pay monthly instalments amounting to $970,120 over a period of six years.

After the company defaulted on payment, Orix sued it and the two directors who had signed personal guarantees for the lease - Mr Lim and his older brother, Mr Ken Lim Cheng Chuan, the agency's managing director.

Orix obtained judgment against Five Stars and Mr Ken Lim in March last year. The company was later wound up and Mr Ken Lim was made a bankrupt.

Mr Johnny Lim, however, is resisting the claim against him in a two-day trial that started yesterday in the High Court.

His lawyer, Mr Lim Chee San, contended that the former director had not known the "absurd sum" Five Stars had to pay under the agreement, until he got a letter of demand from Orix's lawyers in January last year. If he had known, he would not have signed the guarantee, said the lawyer.

The sum was not only for the lease but also included a $526,403 loan from Orix for Five Stars to pay off its previous lease with the photocopier supplier and a six-year maintenance contract.

Taking the stand, Mr Johnny Lim said that as far as he knew, he had signed a guarantee purely for the lease of the machines.

He said he had signed the document "in a rush"; an employee had handed him a stack of papers, telling him that it was for the photocopiers. "I only know it was for nine copy machines, I didn't read everything," he said.

When Mr Lim added that he had not read the document to date, Orix's lawyer, Mr Ting Chi Yen, expressed surprise.

Mr Lim responded: "Every company is about the same. They make it so small, the words. How to read? Testing my eyesight."

While he did not know the price of the machines in 2011, he said he "had an idea" that it would not be a "sky-high price". He said after he received the lawyer's letter, he called the supplier and found out that the purchase price was $152,000. He is arguing that the guarantee should, at best, be limited to this amount.

Mr Ting said that, as a savvy businessman who held major stakes in Five Stars, Mr Lim could not claim to be inexperienced.

Mr Lim said he did not hold even an O-level certificate. After his older brother was made a director in 2005, he was no longer involved in the day-to-day running of the business, he said, and resigned in 2013 because of "family issues".

Five Stars Tours was a popular travel and coach company that closed down suddenly in January last year, leaving thousands who had planned to travel during the Chinese New Year holiday scrambling for alternatives.

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

Singapore Armed Forces Act - Singapore Armed Forces (Central Welfare Fund) (Amendment) Regulations 2015 (S 503 of 2015)

CCS investigations lead to voluntary removal of exclusive arrangements in cord blood bank industry

Judgments
23 Jul 2015

Republic won't pay tax on its Johor waterworks

Straits Times
28 Aug 2015
Charissa Yong

Singapore will not pay the raised land assessment tax on its Johor waterworks as a matter of principle, said Minister for Foreign Affairs and Law K. Shanmugam yesterday.

The authorities of Kota Tinggi district had sought late last year to double the tax on the Johor River Waterworks, which is owned by national water agency PUB.

The revised rate was more than double that of the next highest rate in the entire Kota Tinggi district, and this new rate was applied to a tax category created solely for the PUB.

At a dialogue yesterday, Mr Shanmugam explained why he chose to lay out Singapore's stance on the issue in Parliament last week, a decision he had thought hard about.

"The water agreement doesn't allow for these sorts of treatments. If I keep quiet about doubling it, tomorrow they might quadruple it," he told media professionals at the event organised by the Singapore Press Club.

In Parliament, he had said PUB is not obliged to pay the tax under the 1962 Water Agreement, which governs the PUB's operations in Johor.The agreement gives Singapore the right to draw water from Johor River up to 250 million gallons daily, or 1.14 million cubic m a day, with Johor entitled to a daily supply of treated water in return.

Underscoring the gravity of the issue, Mr Shanmugam said: "They've issued us further notice saying we are late in payment. If one is bloody-minded about it, I suppose they can seek to levy execution on our waterworks, and then things will get really interesting."

He said: "In a normal legal case, if you don't pay tax, somebody goes and attaches and tries to take over the property. We'll have to see whether they want to treat this as a normal case of non-payment and then we'll have to say what our response will be."

The agreement is valid till 2061 and is guaranteed by the governments of Singapore and Malaysia in the 1965 Separation Agreement.

On Sunday, Prime Minister Lee Hsien Loong highlighted how vulnerable newly independent Singapore had been, with nearly all its water coming from Johor back then.

Mr Lee said at the National Day Rally: "Every now and again, when an issue arose with Malaysia, some crazy politicians would threaten to turn off the tap, to get us in line."

In fact, said Mr Shanmugam, Malaysian opposition Parti Keadilan Rakyat's deputy chairman in Johor, Mr Jimmy Puah, had criticised the water agreement just last week.

Mr Puah had said Singapore continues to draw 250 million gallons of raw water a day from Johor despite water rationing in the state, Mr Shanmugam said.

"The implication of his statement is obvious... It's powerful rhetoric. They don't care whether we suffer," he added.

The PUB said in a statement last week that it has been supplying an extra five to six million gallons of potable water a day to Johor during its dry spell, since Aug 14.

But should Mr Puah's rhetoric and criticism of the Malaysian government take hold, Mr Shanmugam said, "then you will expect the Barisan Nasional government to have to react to it". "How will they react? We don't know."

He reiterated Singapore's position that both countries have to comply with the treaty, but added: "Treaties are only useful to the extent that you can make them work."

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

Professional Engineers Act - Professional Engineers (Approved Qualifications) (Amendment) Notification 2015 (S 502 of 2015)

[CHN] Supreme People's Court issues long-awaited clarification on CIETAC split

Commonwealth
23 Jul 2015

Definition of death based on stringent criteria: Forum

Straits Times
28 Aug 2015

Dr Andy Ho ("Do not leave definition of death just to doctors"; last Saturday) cast doubts on the validity of brain death as a diagnosis of death and the practice of organ donation by brain-dead donors.

In Singapore, the criteria for determining death are set out in the Interpretation Act (Section 2A).

This provides the context in which organ donation in Singapore is permitted under the Human Organ Transplant Act and the Medical (Therapy, Education and Research) Act.

Brain death is diagnosed only when there is catastrophic irreversible brain injury and is determined according to strict clinical criteria, similar to those adopted in the United Kingdom and Australia.

When brain death has occurred, blood flow and oxygen delivery to the brain ceases irreversibly and all brain functions (including capacity for consciousness and ability to breathe spontaneously) are lost and will never return.

Dr Ho argued that "the (brain-dead) person on the ventilator is still warm... " but the bodily functions are artificially supported through the support machines in the intensive care unit (ICU), which will stop once the organ support is withdrawn.

Dr Ho quoted a study in which 80 brain-dead persons were supported for between two weeks and more than a year, but failed to mention that none of them eventually woke up or recovered.

Circulatory death is defined by the permanent cessation of the body's circulation leading to death of the brain, not by the absence of a heartbeat or the death of the heart.

When a person undergoes coronary artery bypass surgery, the heart and breathing are stopped for at least 30 minutes, yet such a person is not declared dead.

Therefore, in both circulatory death and brain death, there is a permanent loss of brain functions.

In circulatory death, the permanent cessation of circulation leads to death of the brain, while in brain death, brain function is lost first with the circulation maintained by support machines.

Events leading to death always occur suddenly and unexpectedly. The next of kin are often in a state of shock and struggling to deal with their loved one's illness and uncertainties.

In this difficult situation, communication with the next of kin, by the medical team in the ICU and early involvement of the medical social worker, needs to be conducted honestly and sensitively, providing information at a pace they can cope with and understand.

Kwek Tong Kiat (Associate Professor)
Senior Consultant
Hospital Services Division
Ministry of Health
Senior Consultant
Department of Anaesthesiology, Intensive Care and Pain Medicine
Tan Tock Seng Hospital

Jason Phua (Dr)
President
Society of Intensive Care Medicine (Singapore)
Head and Senior Consultant
Division of Respiratory and Critical Care Medicine
University Medicine Cluster
National University Hospital

Lee Heow Yong (Dr)
Director/Hospital Services Division, Health Services Group
Ministry of Health

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

Civil Aviation Authority of Singapore Act - Civil Aviation Authority of Singapore (Service Charge) (Amendment) Order 2015 (S 501 of 2015)

Supreme Court Note: PP v Sivanantha Danabala [2015] SGHC 154 (backdating of sentence where “break” in custody)

Supreme Court Note
22 Jul 2015

Can a sentence of imprisonment be backdated to the date of arrest even though the offender was not continuously in custody up to his conviction? This question was answered in the affirmative by the High Court in this case.

The accused in this case was arrested on 2 February 2013. He faced a single charge of drug trafficking and to this he claimed trial in the District Court. On 18 September 2014, he was acquitted by the District Court and released from custody. He had been in remand throughout the period from his arrest to his acquittal, which was of some 19 months’ duration. The prosecution appealed against the acquittal and on 22 April 2015 the High Court allowed the appeal, convicting the accused on the trafficking charge and ordering that he be taken into custody that very day.

Thus the accused had been a free man from 18 September 2014 to 21 April 2015; in this sense there had been a “break” in custody since he was arrested on 2 February 2013. In sentencing the accused, a question that arose for the High Court’s consideration was whether the sentence ought to commence on the date of the accused’s conviction, or whether it ought to be backdated to the date of his arrest, notwithstanding the “break” in custody, in order to take into account the 19 months that the accused had spent in remand.

The High Court accepted that, as a general rule, the period in which a convicted person was out on bail should not be taken into account in backdating a sentence. The High Court added that, if the convicted person had spent any time in remand prior to his release on bail, that period of remand might be taken into account by making an appropriate reduction to the sentence to be imposed. In the present case, the 19 months that the accused had spent in remand following his arrest and prior to his acquittal ought to be taken into account in imposing sentence. However, there were limits to the appropriate reduction that could be made because a mandatory minimum imprisonment term of five years was prescribed for the offence for which the accused was convicted.

The High Court held that, in these circumstances, the sentence could and should be backdated to the date of arrest, except that the “break” in custody should not be included in the computation of sentence. The High Court noted that there were previous unreported cases in which this had been done. Accordingly, the High Court ordered that the accused’s imprisonment term of five years and six months be backdated to 2 February 2013 in order to include the period of remand from 2 February 2013 to 17 September 2014, with the period from 18 September 2014 to 21 April 2015, during which the accused was not in custody, to be excluded from the computation of sentence.

At Public Prosecutor v Sivanantha a/l Danabala [2015] SGHC 154, paras 31 to 44. To view the judgment, click <here>.

Disclaimer: The above is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. The full judgment of the Court is the only authoritative document.

Jailed 11 months for pocketing over $100k

Straits Times
28 Aug 2015
Elena Chong

Some six months after befriending a person with the moniker, "Laura Smith", on the Internet, Lim Sim Hong allowed her to transfer $109,160 to his bank account.

Laura told the 56-year-old cleaner that she intended to set up an art gallery in Singapore, and the funds were for buying property space to set up the gallery.

After the money was transferred to his OCBC Bank account in December 2012, Laura subsequently told Lim to move the money to another bank account in Hong Kong.

Despite several requests from Laura, Lim refused. He told Laura that if she was not coming to Singapore, he would use the money for his own investments, and added that her company could sue him.

When Lim was called up for investigation on Feb 1, 2013, he told the Commercial Affairs Department (CAD) that he had spent the entire $109,160, and even produced an Excel spreadsheet setting out how the money had been used.

On the way to his home, however, Lim admitted that the spreadsheet was false, and he was still holding on to $85,500.

He also told CAD that he wanted to invest the remaining sum in a business in Thailand.

The CAD raided his house that afternoon and seized the $85,500.

Investigations subsequently revealed that Laura had obtained the money through bank fraud in the US, and that the money was fraudulently transferred from a bank account with Charles Schwab & Co.

Yesterday, Lim, alias Lim Fu-Ming, was jailed 11 months for criminal breach of trust.

Two other charges - one each for using the proceeds of $13,450 to pay for his personal expenses, and for giving false information to a public servant - were considered during his sentencing.

His lawyer from the Criminal Legal Aid Scheme, Ms Alice Tan Chor Hoon, said in her mitigation plea that Lim was infatuated with Laura, and had looked forward to her visit in December 2012.

When that did not happen, he was devastated. He soon grew increasingly furious, and began to doubt her intentions.

Lim could have been jailed for up to seven years and/or fined.

Elena Chong

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

Parliamentary Elections Act - Parliamentary Elections (Election Advertising) (Amendment) Regulations 2015 (S 500 of 2015)

SHC interprets s 194 Companies Act and dismisses attempt to remove member from company share register

Judgments
22 Jul 2015

Negligence suit over girl's death settled out of court

Straits Times
27 Aug 2015
K.C. Vijayan

Girl being treated for skin rash was later found to be bleeding in the brain

The parents of a girl who died from alleged negligent treatment have settled their suit against the National Skin Centre, Healthway Medical Corporation and two doctors.

Mr S. Kamalakannan, the girl's father, agreed on settlement terms - which are being kept private and confidential - and a notice to discontinue the suit was filed in the High Court last week.

His 10-year-old daughter Leela Ruba Kamalakannan had sought treatment at a Tampines clinic in March 2011 for what the family thought was a skin rash. It was continued at the National Skin Centre, but the problem did not get better.

About four weeks later, Leela collapsed suddenly at home and was rushed to KK Women's and Children's Hospital where she was found to be bleeding in the brain. She died three days later despite undergoing surgery.

When the family sued the defendants last year alleging negligence, the parties denied the claims, making clear the procedures in dealing with the girl's case were proper and within accepted norms of medical practice.

At issue in the case then was whether a timely blood test would have detected her condition - a fall in blood platelet count - earlier and averted the tragedy.

Healthway, through its lawyer, Mr Charles Lin, declined to comment on the settlement.

The parents' lawyer, Mr Naresh Mahtani, said they "would like closure on this episode and move on with their life".

Lawyers say parties are generally driven to settle civil suits when costs, uncertainty and other issues such as publicity are factored into the equation. " More than seven out of 10 medical negligence suits are settled out of court, " said Khattar Wong lawyer K. Anparasan. "There firstly has to be a reasonable offer on the table for parties to consider settling a case."

He added that insurers behind the defendants in any of the cases also weigh in on factors such as the trade-off between opting to contest a case all the way and the cost-benefits in wanting to sustain or settle a suit.

But it does not follow that insurers are moved to settle all cases instead of fighting the case in court, as this may open the floodgates to medical claims.

For instance, in May, the High Court dismissed a $1 million suit by a 54-year-old patient against Singapore General Hospital and a surgeon. In the suit filed in 2012, Mr Andrew Chua sought damages for negligence after a 2007 operation failed to reverse his paraplegia.

Global Law Alliance senior director Niru Pillai pointed out that a settlement will normally include a "no admission of liability" clause as part of the terms.

"This is because a settlement outcome has nothing to do with the merits of the case as presented by either party," he said.

"Lawyers do well to remember the adage, 'A bad settlement is always better than a good lawsuit', given the vagaries of litigation."

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

Parliamentary Elections Act - Parliamentary Elections Act (Amendment of Third Schedule) Order 2015 (S 499 of 2015)

[EU] Most-favoured nation clauses and anti-competitive rebates

Commonwealth
22 Jul 2015

Elections Dept sets out rules for civic, professional, business groups

Straits Times
27 Aug 2015
Walter Sim

Civic, business or professional groups taking part in political activities in the lead-up to the polls must ensure they are allowed to do so under their Constitutions, the Elections Department (ELD) said yesterday.

Such activities include using its own funds or premises for political purposes, endorsing candidates, and publishing advertisements or press statements in support of any candidate, the ELD said in a statement.

Civic, business or professional groups include registered businesses, chambers of commerce, and voluntary welfare organisations such as the Sunshine Welfare Action Mission (Swami) Home.

While such groups can discuss among its members the merits of supporting a candidate, it must not influence how votes are cast at the ballot box, the ELD added.

"It remains each individual's right as a voter, regardless of membership of any organisation, to freely decide whom to support, and how to cast his vote," it said.

The ELD also said anyone who conducts activities to "promote or procure the election of a candidate" must be authorised in writing by the candidate or election agent on, and from, Nomination Day. Foreigners, it added, are banned from taking part in any form of election activity.

Earlier this month, a complaint was made against the Swami Home, saying it had breached its constitution when the home hosted the People's Action Party when it introduced its candidates for Sembawang GRC on Aug 14.

The home was advised by the Registry of Societies a few days later to "ensure strict adherence to its constitution" because, as a registered society, it is "governed by its constitution on what activities are permissible and what are not".

The latest advisory from the ELD comes a day after Parliament was dissolved, and the Writ of Election issued. Sept 1 is Nomination Day, while Polling Day is on Sept 11.

The ELD has put up an e-booklet on its website containing, among other things, information on Nomination Day proceedings, and guidelines for supporters of candidates.

For instance, supporters are not allowed to display any placards, flags, or banners of candidates or parties before proceedings end on Nomination Day.

Black-and-white photos of candidates will be included on ballot papers for the first time at this election, to make it easier for voters to identify their choice, ELD said.

Candidates have to hand in their photos by 2pm on Nomination Day for them to be printed on ballot papers or the words "no photo" will be printed over where the photo should appear.

Walter Sim

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

Parliamentary Elections Act - Parliamentary Elections Act (Amendment of First Schedule) Regulations 2015 (S 498 of 2015)

Companies Act: Amendments that impact financing transactions

Legislation
21 Jul 2015

No sharing of rallies under new rules

Straits Times
27 Aug 2015
Walter Sim

Candidates and central executive committee members of political parties are barred from going on stage or speaking at election rallies other than their own.

Another rule the police set is that speakers at rallies, which will begin next Wednesday, cannot hide their faces. This is to ensure they can be held accountable for what they say.

"There shall be no sharing of rallies nor rally sites amongst different contesting political parties or independent candidates," said the Elections Department (ELD) in an advisory released on Tuesday.

These were among the new conditions set by the police for political parties contesting the Sept 11 General Election.

As many as 10 political parties - nine of which are from the opposition - and at least one independent candidate are expected to contest the coming polls.

Election rallies will be held over eight days, ending Sept 9, the eve of Cooling-off Day, before voters head to the polls on Sept 11.

The Straits Times understands that the rule was prompted by public safety concerns. Having supporters from different camps at rally sites runs the risk of overcrowding and possibly violence breaking out.

This rule does not apply to ordinary members of political parties, or to individuals without political affiliations who are not contesting the election as independents.

Political watchers say restricting candidates and party leaders from speaking at each other's rallies will likely affect the opposition more.

In the past, there were instances where opposition party members would speak at each other's rallies as a show of support and solidarity against the ruling party, said law professor Eugene Tan.

"If not for the rule, we will see smaller parties inviting speakers of other parties, and in a way there are concerns as to whether there may be people with an inordinate amount of air time," added the former Nominated MP.

Political analyst Derek da Cunha said the rule will affect the Democratic Progressive Party (DPP) if it continues to contest Bishan-Toa Payoh GRC under the banner of the Singapore People's Party (SPP).

DPP chief Benjamin Pwee declined to comment yesterday, while the SPP could not be reached.

People's Power Party secretary-general Goh Meng Seng said last night that he will challenge the new rule but declined to elaborate on how he plans to do so.

And while Singapore Democratic Party chief Chee Soon Juan has no plans to speak at the rallies of other parties, he said the ban "does not make sense".

He added that it was natural that different opposition parties may want to appear at their comrades' rallies to show support.

The ELD yesterday also asked contesting candidates to refrain from "negative campaigning practices" based on hate and denigration of their opponents.

They should also not make libelous statements, or say anything that may "cause racial or religious tensions or affect social cohesion".

Such behaviour, the ELD said, would be in breach of the law.

These rules, however, may just blunt the opposition's campaign on hot button issues such as immigration, said Dr da Cunha.

"Minor parties will simply have to curb their rhetoric on the immigration issue, for instance," he said.

Prof Tan disagrees, saying he does not expect it to stop opposition parties from criticising government policies so long as they do not denigrate anyone in aspects of race, language or religion.

Mr Tan Jee Say of the Singaporeans First Party said he was not overly concerned as he has "always behaved in a decent way, attacking policies rather than people".

The ELD also reminded candidates that films they plan to distribute or publicly exhibit must be submitted to the Media Development Authority for classification.

A ban on party political films still applies, while the use of aerial drones at nomination and assembly centres, rallies and other meetings is also not allowed.

• Additional reporting by Lim Yan Liang, Pearl Lee and Danson Cheong

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

Housing and Development Act - Housing and Development (Precincts for Upgrading Works) (Home Improvement Programme) (No. 5) Order 2015 (S 497 of 2015)

The Fair Consideration Framework – ignore at your own peril

Business
21 Jul 2015

Managing partner gets maximum S$10,000 fine, ordered to pay penalty of S$18,000

TODAY
27 Aug 2015

Managing partner gets maximum S$10,000 fine, ordered to pay penalty of S$18,000

SINGAPORE — The managing partner of an email marketing firm has been fined the maximum S$10,000 for submitting false information in order to obtain a Productivity and Innovation Credit (PIC) cash payout.

Neo Leong Kiat, 38, was also ordered by the court yesterday to pay a penalty of S$18,000 — three times the amount of the cash payout that would have been wrongfully obtained.

Neo is the managing partner of Mailcarp, an email marketing and software consultancy.

In April 2013, he submitted a claim PIC cash payout for the purchase of automation equipment. In his application form, he listed the details of three local employees.

One of the conditions for obtaining a PIC cash payout is that a firm must have three local employees. Investigations by the Inland Revenue Authority of Singapore (IRAS) found that two of the three local employees listed by Neo in the application form did not in fact work for Mailcarp.

To make his claim appear legitimate, Neo had made Central Provident Fund (CPF) contributions to two individuals a day before the date of the cash-payout application, so it would look like they were among Mailcarp’s local employees.

IRAS found that the two did not work for Mailcarp and had not been paid any salary.

The authority has reportedly taken action against 245 fraudulent claims under the PIC scheme, which was introduced in 2010 to help companies in efforts to improve productivity. The amount of monies clawed back — or not paid out — from these claims totalled about S$10 million as of May 31, including penalties and fines.

Last August, digital-printing firm Media Grafix, which was convicted of abusing the PIC scheme to illegally obtain a higher cash payout, was ordered to pay a fine of S$5,000 and a penalty of S$48,704. The company had inflated its claims, using a fake tax invoice.

In February that year, a director of Exel Mitsui Technologies was fined and sentenced to five weeks’ jail for the same offence.

IRAS reiterated that it takes a serious view of any attempt by claimants, vendors or consultants to defraud the Government. In Neo’s case, the penalty is three times the amount of cash payout that was claimed, and a maximum fine of S$10,000 or up to three years’ jail or both.

Those convicted of abusing the PIC scheme will have to pay a penalty of up to four times the amount of cash payout fraudulently obtained, and a fine of up to S$50,000 or be jailed up to five years, or both.

Those who wish to report malpractices or potential abuses of the scheme can write to IRAS at ifd@iras.gov.sg.

Copyright 2015 MediaCorp Pte Ltd | All Rights Reserved

Government Contracts Act - Government Contracts (Authorisation) (Amendment No. 2) Notification 2015 (S 496 of 2015)

CCS issues first proposed infringement decision in financial industry against 10 financial advisory companies

Judgments
21 Jul 2015

Governance in group entities still a potential weak spot

Business Times
27 Aug 2015
Melvin Yong

Parent boards must be aware of the financial and reputational damage a problem at a subsidiary can cause and take proactive steps

COMPANIES still have a long way to go to improve corporate governance standards at their subsidiaries, according to governance experts.

Some large multinational corporations have recognised that the governance of group entities or subsidiaries can be a significant problem and have started to take action to improve their internal processes and procedures to address the issues.

"But it seems it is still only a minority of companies that accept that theirs is a problem," said Chris Bennett, director at BPA Australasia, a South-east Asian enterprise that promotes improvements in corporate governance through research, professional education and advocacy in boards and senior management.

Experts note that corporate governance regulation and much of the commentary often focus on the listed entity of a holding company.

But most corporate governance failures occur within group entities other than the ultimate listed parent company.

"In reality, the ultimate parent is almost always financially liable for the 'sins' of the group entities and also faces significant reputational damage. Walking away from a group entity is rarely a practical proposition for a holding company," said Mr Bennett.

The problem is not just confined to individual countries.

In a report entitled "Governance of Company Groups" published by CPA Australia late last year, Mr Bennett and Mak Yuen Teen, associate professor of the NUS Business School, studied 150 of the largest companies listed in Australia, Malaysia and Singapore.

It found that most of the largest listed companies in the three countries consisted of many group entities and these entities held most of the assets and liabilities rather than their parent firms.

In all three countries, group entities contributed significantly to the financial performance and financial position of company groups.

"Clearly, the performance and risks of group entities which are legally separate from, but often managerially integrated with, the listed entity will have a significant impact on the performance and risk of the listed entity," said Prof Mak, a well-known commentator on corporate governance issues.

One year on from the report, awareness of the importance of the issue to listed organisations and their entities is rising but there is still some way to go.

"Besides financial institutions, where regulators have imposed clear governance responsibilities on subsidiary boards, awareness is still low and change is slow," observed Prof Mak.

He cites the example of OW Bunker, one of the world's largest traders of marine fuel oil, which went bankrupt earlier this year. Problems at its Singapore subsidiary essentially brought down the listed parent in Denmark.

"One may ask why no one is looking at the directors of the subsidiary here and whether they discharged their duties adequately," said Prof Mak.

"Or do the regulators accept that the subsidiary boards are mere ornaments within the group and, therefore, directors on these boards should not be held accountable?" he added.

Observers say more will clearly have to be done to enhance the oversight of companies with group entities.

"The group board must take responsibility for, and be very careful about, what is being reported to them by the boards and management of the subsidiaries," said Rob Elliott, executive director at the Centre for Governance Excellence and Innovation (CGEI), set up by the Australian Institute of Company Directors.

A big push may need to come from regulators, who can play a major role in changing mindsets and driving behaviours among listed companies with group entities.

"Directors of subsidiary boards often still feel that they are just there rubber-stamping decisions imposed on them by their parent boards, if they are informed or consulted at all," said Prof Mak.

"As long as regulators are not going after them when things go wrong in the subsidiaries, they may feel comfortable with this state of affairs," he added.

Meanwhile, parent boards may feel they are sufficiently protected from a legal standpoint if things go wrong in the subsidiaries because, legally in most countries, the duties of directors of parent companies are owed only to the parent organisations.

"There is moral hazard, with things falling between the cracks," noted Prof Mak.

Experts say the lack of regulatory attention to governance of group entities may sometimes mean that parent companies will not give priority to group governance.

There could be several reasons, such as group entities being separate legal entities with their own boards making their own decisions; parent companies of groups may view governance of group entities as irrelevant; and where the financial investments in group entities are not large, parent firms may view these entities as being insignificant risk to the group.

Observers say the risk of reputational damage if something goes awry should also spur companies and boards into considering the priorities of what they need to do to improve the situation.

A way forward to minimise the risk of governance failures in group entities and causing significant financial and reputational harm to the entire group is to have a proactive approach.

"The best things companies can do are to discuss the implications in a board meeting, review the discussion issues with their company secretary and members of the subsidiary boards, and then come up with a plan of action," said Mr Bennett.

Appropriate training for directors may also help but the catalyst for change will have to come from all stakeholders - regulators, boards, management and perhaps even investors, experts say.

Recommendations

According to the "Governance of Company Groups" report by Prof Mak and Mr Bennett published by CPA Australia, the following are the recommended steps to boost governance at the subsidiary level.

• Regulators should review laws and regulations relating to the fiduciary duty of directors in company groups, and consider the need to clarify it for directors of parent companies, subsidiaries and other group entities.
• Regulators should review corporate governance rules and guidelines to ensure that boards of parent companies recognise the importance of providing adequate oversight and guidance for entities throughout the group, while respecting the duties and responsibilities of boards of group entities to safeguard the interests of the group entity.
• Regulators should recognise the need for laws and regulations imposing duties and responsibilities on boards of both parent companies and group entities to be accompanied by adequate guidance to assist these boards to interpret these laws and regulations, thereby minimising inter-board conflicts.
• Boards of the ultimate parent company should ensure that the issue of governance of group entities is discussed and well-communicated throughout the group.
• Company groups should utilise the framework presented in the report for discussing and evaluating the approach and specific measures to be used for governance of group entities.
• Company groups should improve their disclosures of key measures they have put in place to ensure good governance of the entire group.

This series is brought to you by CPA Australia, as part of a thought leadership series in corporate governance and developing business trends.

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

Maritime Offences (Amendment) Act 2015 (Act 22 of 2015)

The crowdfunding landscape in Singapore

Business
20 Jul 2015

Asia's legal framework has to be trade-ready

Business Times
26 Aug 2015
Lee Suet Fern & Sriram Chakravarthi

Small but key steps are being taken to harmonise the widely varying laws on competition, consumer protection and intellectual property

THE launch of the Asian Infrastructure Investment Bank next year and the growing number of Asian nations signing on as its members is to be welcomed - not just for the reason that it will help address the immense infrastructure investment needs of Asia, but for the fact that a number of Asian governments are coming together, displaying a deepened spirit of collaboration and commitment towards a shared Asian growth agenda.

Such coordinated action will be essential to address a number of pan-Asian challenges. Over the next few decades, as Asia becomes an even more important engine of world growth and intra-Asian trade assumes significant proportions, one such challenge will be to significantly upgrade the legal infrastructure that supports and facilitates Asian cross-border trade and investment flows.

Asian legal diversity

It is common knowledge that there exists considerable diversity among Asian legal systems. There are countries whose legal systems are civil-law based (influenced by Roman-Dutch, German or French traditions) and those that are based on the common law (influenced by English traditions). Asian business laws vary considerably, with some countries having modern business laws compatible with commercial practices of the 21st century, and others still relying on colonial-era legislation.

To the business community, this diversity represents business risks arising from unfamiliarity with the laws, uncertain legal processes, unknown legal exposure and, most importantly, unpredictable legal outcomes.

To illustrate, a survey by The Economist of nearly 150 large multinationals operating in South-east Asia identified legal uncertainty as the most serious operational challenge to growing a regional business in the Asean region.

Another survey of nearly 500 business leaders with operations across the Asia-Pacific elicited a similar response; respondents cited regulatory and legal regimes in many economies as a barrier holding back private investors.

Top-down harmonisation

To a certain degree, there is an implicit recognition among many Asian nations that harmonisation of business laws is desirable. Harmonisation provides an opportunity not only to introduce uniform business laws that will be applicable to Asian countries, but to modernise the existing laws and create legal certainty and predictability.

Many Asian countries are therefore active in the work of UNCITRAL, the United Nations body that seeks to harmonise international business law through conventions and model laws. Closer to home, harmonisation efforts have been initiated within Asean through the putting in place of legal structures on competition, consumer protection and intellectual property.

But these efforts at harmonisation have remained ad hoc at best. In the absence of an overarching governmental or pan-Asian institution like the European Union or even Asean, any attempt to drive a top-down legislative harmonisation process takes considerable time to yield significant results.

Ground-up convergence

Ad hoc harmonisation approaches alone are unlikely to serve Asian interests. Given the imperatives of a sound business law infrastructure to Asia's growth, what is now required is a coordinated, ground-up approach that fosters region-wide participation, acceptance and implementation.

It is in this context that Singapore's Chief Justice Sundaresh Menon, in his address at the opening of the Singapore Legal Year 2015, issued a clarion call for meaningful convergence by observing that "diversity between legal systems, especially in Asia, can inhibit transnational commerce at a time when the boundaries continue to become increasingly porous in matters of trade and commerce. The legal fraternity must respond to this reality by proffering solutions that reduce avoidable legal diversity".

Chief Justice Menon's statement in this regard is timely. It is time for Asia to move away from debates over whether or not effort should be expended in promoting the convergence of business laws. Instead, it should focus on discussions as to how such convergence can be achieved. In such discussions, the legal fraternity, along with the business community, has a critical role to play by developing new and meaningful solutions that are market-driven and yet balance Asian sensitivities. Such solutions could take many forms:

One could be the development and drafting of Asian standard form contracts for specific sectors and industries, which could then become part of customary business usage.

Yet another solution could be to produce authoritative statements of what the major currents or trends of business law are as they exist in the Asian region. For example, in American jurisprudence, Restatements of the Law serve as model laws that are designed to clarify specific legal issues. Such authoritative statements or descriptions need not necessarily involve the endorsement of governments nor be binding instruments. Their acceptability will largely depend upon their persuasive scholarly authority and market relevance.

Judiciaries around the region can then contribute to the convergence of business laws by considering these authoritative statements carefully in arriving at their own decisions in accordance with their own laws. Such a process at a judicial level can help reduce legal uncertainty and be extremely beneficial for businesses, especially in a cross-border setting. Further, judicial convergence in the form of procedural harmonisation leading to structured, timely and orderly frameworks for resolving cross-border commercial disputes and enforcing contracts will go a long way in fostering cross-border business.

An Asian Business Law Institute

To accelerate the legal convergence process, two steps must be taken urgently. First, a forum should be created for relevant Asian stakeholders, including regional policy makers, representatives of the business community and members of the legal fraternity to participate and extend pragmatic solutions. Second, an institution must be set up to fortify these solutions and translate them into a set of model laws and practical legal guidelines that will appeal to Asian stakeholders.

To this end, an international conference titled "Doing Business Across Asia - Legal Convergence in an Asian Century" will be held in Singapore in January 2016, bringing together key stakeholders in the regional and international spheres to commence discussions on possible legal convergence solutions. In conjunction with the conference, the Asian Business Law Institute, aimed at promoting the convergence of Asian business laws, will be launched.

These are small but necessary steps. Any meaningful contribution in the construction of a credible Asian business law infrastructure will go a long way in unlocking the potential of the Asian region and bring with it greater trade and investment flows, which can only benefit our countries and communities.

Ms Lee is the managing partner of Morgan Lewis Stamford and a Senate member of the Singapore Academy of Law. Mr Chakravarthi is a senior director and chief legal counsel at the Singapore Academy of Law

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Maritime Offences (Amendment) Act 2015 - Maritime Offences (Amendment) Act 2015 (Commencement) Notification 2015 (S 495 of 2015)

SHC: The criteria for amendments to patents

Judgments
20 Jul 2015

Call to mandate reporting of data breaches

Straits Times
26 Aug 2015
Irene Tham

Countries that legally require companies and organisations to report data breaches to the authorities are doing the right thing and the rest of the world should do the same, reporters were told yesterday.

Singapore has yet to follow the lead of mature jurisdictions such as the United States and Canada that make it compulsory to notify customers and privacy commissions when personal information is compromised.

Mr Mikko Hypponen, chief research officer at Finnish security software maker F-Secure, said it was just pragmatism.

"If your credit-card number had been stolen, you would want to know... to look out for (unauthorised) transactions. Similarly, if your password had been stolen, you would want to change it .

"The United States and Canada are doing the right thing and should be followed by the rest of the world," Mr Hypponen noted.

He was speaking at the opening of the inaugural Data Privacy Asia conference in Singapore.

More than 100 data privacy and cyber-security experts attended the first day of the three-day conference at the Grand Hyatt Hotel.

Privacy advocate and engineer Ngiam Shih Tung, 44, supported the notion, saying that the Singapore authorities should define the parameters for organisations to report a breach so consumers affected can take precautions.

Singapore's Personal Data Protection Act came fully into force only in July last year and does not require companies to report their data breaches.

Mr Wong Yu Han, director of strategy at Singapore's high-level Cyber Security Agency, said measures to counter data leaks are complex. "We are looking at... revising our laws," he told reporters at the event.

In his opening address, Mr Leong Keng Thai, chairman of Singapore privacy watchdog Personal Data Protection Commission, said: "The Act is still in the early phase of implementation and organisations require more guidance in achieving compliance."

But lawyer Gilbert Leong, a partner at Rodyk & Davidson, told The Straits Times: "It is only a natural, logical progression to mandate data breach reporting here."

The requirement may not be immediate as it would be "too much" for local organisations to get used to so soon.

Also in his keynote address, Mr Hypponen called for greater transparency among governments in law enforcement actions.

He added: "Governments should let citizens know how successful the (snooping) tools (they use on citizens) are in cracking crimes."


ACHIEVING COMPLIANCE

The Act is still in the early phase of implementation and organisations require more guidance in achieving compliance.

MR LEONG KENG THAI, chairman of Personal Data Protection Commission

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Currency Act - Currency (Denominations and Characteristics of Currency Notes) Notification 2015 (S 494 of 2015)

MAS issues revised MAS Notice 648 giving Singapore incorporated banks more operational flexibility in issuing covered bonds

Business
20 Jul 2015

'Jakarta law forbids disclosing info on plantation concessions': Transboundary haze

Straits Times
26 Aug 2015
Wahyudi Soeriaatmadja & Zubaidah Nazeer

Indonesia cannot disclose any plantation concession information even on a government-to-government basis as doing so would breach the law, a top environment official reiterated yesterday.

"Disclosing whose concession a certain hot spot is in would amount to disclosing a concession map," Dr Nur Masripatin, director-general of climate change at the Ministry of Environment and Forestry, told The Straits Times.

"That is classified information. The government cannot do that," said Dr Nur, who is in charge of overseeing efforts to contain forest and land fire and reports to Environment and Forestry Minister Siti Nurbaya Bakar.

Asean previously agreed to create a regional haze-monitoring system, with a computer system developed by Singapore that uses satellite images and hot-spot data to pinpoint fires that lead to haze.

Last year, Indonesia finally ratified the 2002 Asean Agreement on Transboundary Haze Pollution, and Singapore passed a transboundary haze law that can convict individuals or companies that cause haze.

Progress on the haze-monitoring system has been slow as it awaits the concession maps from Indonesia and Malaysia to identify which companies are responsible for the land plots where fires occur.

One problem is that these companies generally do not share concession boundary data and the Indonesian government has struggled to create accurate concession maps.

Another issue is that Indonesian laws ban the government from sharing concession maps, according to Indonesian officials.

Dr Nur's comments echoed those of her minister, who, in a Batam Pos article on Aug 10, said Indonesia cannot accept other countries prosecuting its people.

In that article, Ms Siti Nurbaya was quoted as saying: "Clearly, we reject their request. Because the country must protect its citizens and people. Would we allow our people to be judged by another country?"

Ms Siti Nurbaya suggested instead a channel between countries with inter- country consensus.

On her country's position, she said: "I said that Indonesia has its own laws, especially laws about the transparency of public information. Not all information can be disclosed, what more be passed on to another country."

Ms Siti Nurbaya's comments are perceived to have deviated from a recent agreement among Asean environment ministers to share information on a government-to-government basis so as to help identify plantation companies responsible for causing haze.

But Dr Nur said the ministers' meeting late last month did not say or agree that the Ministerial Steering Committee (MSC) countries would have to disclose any information related to the concession maps. However, she argued that Indonesia was not backtracking on its commitments, saying that the ministers had agreed to share information related to hot spots.

"It is not mandatory. We are encouraged to share information on hot spots, which could be hot spots where we have verified on the ground that (there is indeed fire). The MSC will work and come up with a format on how information can be shared," she said.

When asked how a hot spot is identified if there is no information on the concession or where it is located, she said: "We could use coordinates. We will have a format on how information can be shared."

Dr Nur stressed that Indonesia is committed to imposing deterrent sentences on those responsible for illegal burning. "Each time there is fire, we look into it and see if there is any law being breached. We will then prosecute," she said.

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

Town Councils Act - Town Councils (Disbursement of Moneys from Sinking Fund) (Amendment No. 2) Rules 2015 (S 493 of 2015)

Banking (Credit Card and Charge Card) Regulations 2015 amended: Refinements to credit card and unsecured credit rules

Legislation
16 Jul 2015

$1m boost for IP technology sector here

Straits Times
26 Aug 2015
Jose Hong

The Government will invest $1 million to groom up and certify to 500 science, engineering and technology professionals in the next three years to meet the needs of the intellectual property (IP) technology sector.

Also, from Sept 1, the Intellectual Property Office of Singapore (Ipos) will serve as a Patent Cooperation Treaty (PCT) International Authority, thus speeding up and strengthening IP protection for Singapore firms overseas.

A PCT International Authority is a body that can search and examine patent applications filed through the patent authority, an international system.

Foreign Affairs Minister K. Shanmugam unveiled these plans yesterday at the fifth Global Forum on Intellectual Property, which was also the official opening of IP Week @ SG 2015.

Speaking at Marina Bay Sands Convention Centre, he highlighted the importance of this industry, noting how jobs in the IP-intensive sector paid 29 per cent more than positions elsewhere.

So it was of paramount importance to support and protect IP to ensure that people had confidence about it in Singapore.

"This is the way in which the future is being shaped," Mr Shanmugam said.

Besides the $1 million investment, other measures to support IP in Singapore were also announced yesterday, such as the launch of a new IP Technology Consultant Registry.

The Singapore Institute of Technology's Enterprise and Innovation Hub is also working with the IP Academy to offer training to create value through IP.

The World Intellectual Property Organisation (Wipo), together with Ipos, also honoured four Singapore firms for their excellence in innovation and creativity.

Technology firm Stratech Systems won the Wipo-Ipos award for technology patent and was the overall champion.

Education firm MindChamps Holdings won the Ipos award for trade mark portfolio, and Hawaii Furnishing won the Ipos award for design innovation.

Creative Technology won the Wipo users' trophy.

Mr Shanmugam also presented the inaugural SG50 Trade Mark Awards, which honours brands that have been registered in Singapore for more than 50 years and have grown alongside the nation.

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

Legal Profession Act - Legal Profession (Qualified Persons) (Amendment) Rules 2015 (S 492 of 2015)

SHC determines proprietary interests of customers of insolvent brokerage firm, MF Global Singapore Pte Ltd

Judgments
16 Jul 2015

Law ‘to keep up with, anticipate’ tech changes

TODAY
26 Aug 2015
Tan Weizhen

SINGAPORE — The Government will keep pace with, as well as anticipate changes in, technology to establish a legal and security framework and foster a nurturing environment for entrepreneurs, said Law and Foreign Affairs Minister K Shanmugam at a dialogue with start-ups yesterday.

Asked whether the Government tries to anticipate changes or is reactive to developments when making laws that cover technological disruptions, Mr Shanmugam said: “I would say it’s a bit of both. It’s our task to try to keep track of the changes and potential changes, and predict where the world is going. Would the Government identify the industries that would succeed, then invest and make sure it works?”

“I think that’s a loser’s game. You educate the population, you expose them, make sure they are able to be well-equipped to look at the latest trends and challenges, and seize opportunities. If you know what the latest technology and disruptions are, then you try and keep … pace with that, and try to anticipate a few of the changes, and create a helpful environment for them.”

At the dialogue, which took place at the opening of a new collaborative working space by start-up community The Hub Singapore, Mr Shanmugam also stressed that Singapore needs to protect intellectual property (IP), “rather than (take) an easier route, which is to allow people in the name of creativity to do what they like, and not protect IP so much, which is a route other countries have taken”.

He also urged companies to use Singapore as a base to seize opportunities in the huge ASEAN market with its population of 600 million.

“Closer economic cooperation, one economic community … not as integrated as people would like, but happening. Then we look at the bigger market, and when we talk about the disruptive technologies, all around you, it’s possible, (with the) huge market, growing middle class, within five years ... there is scope. And there is only one place to do it, and it is Singapore,” he said.

On whether the Government and politics here are ready for disruption, he said rules and laws have to adapt to the changing landscape. He stressed, however, that the country has to be successful, and there has to be peace and security.

The Hub Singapore, founded in 2012, opened its new 8,000 sq ft collaborative working space at 128 Prinsep Street yesterday. The area offers start-ups up to 160 co-working and permanent desks, eight team rooms and six meeting rooms, among other event spaces and facilities. This is 60 per cent more space than its previous co-working space at Orchard Road.

Ms Grace Sai, CEO of The Hub, said a new fund will also be launched by the fourth quarter to finance start-ups. It has garnered S$300,000 in pledges to date and is expected to grow close to S$1 million by year-end.

“This next phase will see us focusing more on collaborations across the ecosystem, especially with corporates who want to connect with startups, the government, venture capitalists, investors and media partners,” she said.

Copyright 2015 MediaCorp Pte Ltd | All Rights Reserved

Street Works Act - Street Works (Creation of Rights) (No. 16) Notification 2015 (S 491 of 2015)

Latest developments: Bankruptcy; capital markets; IP; sentencing; real estate; digital goods and services

Business
16 Jul 2015

ADV: Director, ICC Arbitration and ADR, Asia

Singapore Law Watch
26 Aug 2015
International Chamber of Commerce

Street Works Act - Street Works (Creation of Rights) (No. 15) Notification 2015 (S 490 of 2015)

SHC: What is the “security” that is required to be specified in a statutory demand under the Bankruptcy Rules?

Judgments
15 Jul 2015

ADV: Thomson Reuters - 50% off our Legal Products!

Singapore Law Watch
26 Aug 2015
Thomson Reuters

Street Works Act - Street Works (Creation of Rights) (No. 14) Notification 2015 (S 489 of 2015)

London Roundtable on “The Future of Dispute Resolution in Asia”

Business
15 Jul 2015

S'pore Law Society raps Canadian lawyers

Straits Times
25 Aug 2015
K.C. Vijayan

Letter expresses concern group trying to influence M. Ravi's disciplinary hearing

The Law Society has criticised a Canadian lawyers' group for trying to influence a pending disciplinary matter involving human rights activist lawyer M. Ravi.

In a strongly worded letter sent yesterday to the Lawyers' Rights Watch Canada (LRWC), the society also expressed concern the group had gained access to confidential data about Mr Ravi's medical condition and disciplinary charges.

"We consider it highly inappropriate for you to... intervene in this matter, especially in view of the fact that you do not appear to be in possession of all the facts and have given a false and misleading impression on various matters," wrote Law Society president Thio Shen Yi.

The LRWC, a group of Canadian lawyers promoting human rights and the rule of law, had posted a letter on its website earlier this month, urging the society to drop disciplinary charges against Mr Ravi and support his application to renew his practising certificate.

The group disclosed that he faced four misconduct charges before a disciplinary tribunal in relation to incidents over four days in February. It claimed that a medical report by psychiatrist Munidasa Winslow had indicated Mr Ravi was suffering from a bipolar disorder and had experienced a "hypomanic episode" at the time, which explained his behaviour.

Among other things, it cited a letter attributed to Dr Winslow which claimed Mr Ravi's condition had stabilised and both were working towards avoiding a relapse.

In the society's response, Senior Counsel Thio said: "You are essentially asking the Law Society to intervene in disciplinary proceedings involving Mr Ravi that have been convened in full compliance with our laws. This is not only highly inappropriate, but appears to be based on a lack of understanding of our statutory laws."

He added that disciplinary tribunals are independent of the Law Society, which was in "no position" to direct them on how they should deal with matters before them.

He also said LRWC's various references to Mr Ravi's medical condition and the confidential reports issued by his doctor which were published on the website were a "serious breach" of Mr Ravi's medical confidentiality and Singapore's Personal Data Protection laws.

Noting there was no indication that either man had consented to the publication of the LRWC letter, Mr Thio asked the group to clarify the circumstances in which they had obtained the confidential information, and if consent had indeed been given.

He added it was unclear if LRWC's assurance that Mr Ravi's behaviour was not likely to recur had been provided by the group or a qualified medical practitioner who had examined and evaluated him. "Please identify who you are referring to, as we are not aware that any qualified medical practitioner has provided such 'assurance'," said Mr Thio.

A second letter by the LRWC, similar in content to the letter addressed to the Law Society, was sent last week to the Disciplinary Tribunal. Both letters were signed by LRWC executive director Gail Davidson and lawyer Kimberley Hawkins. Lawyer Eugene Thuraisingam, who is defending Mr Ravi at the tribunal hearing later this week, said the main issue will "be his mental condition at that time".

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Constitution of the Republic of Singapore (Amendment) Act 2015 (Act 20 of 2015)

Singapore Government further tightens the rules with respect to hiring foreigners: How would these changes affect employers?

Business
15 Jul 2015

Ruling on Yang's life policies next week

Straits Times
25 Aug 2015
Toh Yong Chuan

Ex-tour guide to find out then if he could pay legal fees with 2 policies frozen by High Court

The former tour guide embroiled in a high-profile court tussle over the control of a rich widow's assets must wait longer to find out if he can dip into two life insurance policies to pay for his legal fees for his ongoing court battles.

The State Courts will sit on Sept 2 on whether to release two insurance policies in Yang Yin's name, which are worth about $98,000 and currently frozen by the High Court.

The court will decide whether to hold a separate session on the fate of the policies, Yang's lawyer Joseph Liow said after a closed-door hearing yesterday. "The question is whether or not the court should hold a disposal inquiry," he added. If the court decides that the inquiry need not be held, the policies will stay frozen.

In April, the High Court allowed Yang to liquidate both life insurance policies to pay for his legal fees.

The policies will help cover his legal bill in a high-profile High Court suit brought against him by Madam Chung Khin Chun, 88, through her niece Hedy Mok. Madam Mok, 61, has accused Yang of manipulating her auntie into handing over assets worth an estimated $40 million.

The policies were among Yang's assets for which Madam Mok obtained a High Court order to freeze last year. The High Court suit is set to be heard in March next year.

Madam Mok is also appealing against the High Court decision to release the insurance policies.

Even though the High Court has released the policies to Yang, he is unable to touch them yet because they were separately seized by the Commercial Affairs Department (CAD) last year for criminal investigations.

The closed-door hearing at the State Courts yesterday was to hear arguments from the Attorney-General's Chambers, which is representing the CAD, and lawyers representing Yang and Madam Mok on whether the CAD can release the insurance policies while the High Court suit is still pending.

Yang, 41, had met Madam Chung in 2008 while acting as her private tour guide in Beijing.

He moved into her bungalow a year later and claimed the widow treated him as her "grandson".

Yang also faces more than 300 criminal charges, including two criminal breach of trust charges for allegedly misappropriating $1.1 million. He has been remanded since Oct 31 last year.

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

Insurance (Amendment) Act 2015 (Act 19 of 2015)

Case comment on Li Siu Lun v Looi Kok Poh [2015] SGHC 149

Judgments
14 Jul 2015

Deputy powers: Extend legal help to seniors with dementia: Forum

Straits Times
25 Aug 2015

I was delighted to read that help is being offered to parents with special needs children to apply for deputy powers ("Just $250 to seek deputy powers / Deputy powers: Law students help to fill in forms"; Aug 10).

I hope this assistance can be extended to the low-income elderly who are diagnosed with dementia and who lack the capacity to make a Lasting Power of Attorney (LPA) and appoint someone to make decisions on their behalf.

Working as a senior counsellor in the social service field serving mainly elderly clients, I have seen too many elderly folk suffering from dementia who need access to their money in their Central Provident Fund and bank accounts, or wish to sell their flats, but are unable to do so owing to the loss of mental capacity.

I encourage my clients and their families to make an LPA. However, as the Mental Capacity Act came into place only in 2008, many seniors with dementia did not have the opportunity to make an LPA before they lost their mental capacity.

Families can spend more than $10,000 in a long-drawn process of appointing deputyship for their elderly loved ones with dementia.

Needless to say, those from the low-income group cannot afford such high legal fees, yet they are the ones who will benefit most from having access to their money.

The process of applying for an LPA has been streamlined and made easier. It is also prudent to make the application for deputy powers just as easy for families.

Hence, I urge the Ministry of Social and Family Development to extend this pilot project to caregivers of seniors with dementia as soon as possible.

I applaud the ministry for getting undergraduate law students involved in the project.

This will help law students work with people with special needs and their caregivers, hence preparing them to become more compassionate and to support social justice as they become full-fledged lawyers.

Chew Yat Peng (Dr)

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Financial Advisers (Amendment) Act 2015 (Act 18 of 2015)

MAS confirms changes to be made to the regulatory regime for REITs and REIT managers

Business
14 Jul 2015

Performance bonus spat may be just the tip of an iceberg

Business Times
25 Aug 2015
Mak Yuen Teen

The Lian Beng case raises many issues relating to executive remuneration and corporate governance challenges in family-controlled and family-run firms

ON July 10, the two independent directors (IDs) of Lian Beng - Sitoh Yih Pin and Wan Soon Bee - resigned, citing "differences in opinion from the management over certain company affairs". Both had been on the board since the company's initial public offering in 1999.

The Singapore Exchange (SGX) queried Lian Beng twice following the resignation announcements. The company's first response on July 14 disclosed that the differences in opinion were about the computation of the performance bonus of the three executive directors (EDs) - the chairman and managing director (MD), Ong Pang Aik, and his siblings, Ong Lay Huan and Ong Lay Koon.

According to the company, service agreements signed with the EDs since the company's listing in 1999 stipulated that the performance bonus is based on "net profits of the group before tax and before extraordinary items as reflected in the audited accounts of the group". This has been interpreted as group net profit before tax and before minority interest over the years.

The two IDs had felt that the performance bonus for the financial year ended May 31, 2014 should instead be based on group net profit before tax and after minority interest. They also wanted the re-computation of all past performance bonuses of the EDs since the company was listed on the same basis.

On July 16, the company responded to four further questions from SGX and disclosed that if the performance bonus for all the three executive directors had been based on "after minority interest", it would have been S$64,000 and S$2.025 million lower for FY2013 and FY2014 respectively.

The two IDs presumably became concerned with the performance bonus computation because of the big increase in the remuneration of the EDs between FY2013 and FY2014. Over those two years, the total remuneration of the chairman and MD moved from the S$2.75-3 million band to the S$5.25-5.5 million band, while those for the other two EDs moved from the S$1.5-1.75 million and S$1-1.25 million bands to the S$2.75-3 million and S$2-2.25 million bands respectively. The total remuneration for the three EDs increased from S$5.4 million to just under S$10 million.

The company's financial statements over the years show that "minority interest" became significant in FY2014, when it was S$39.9 million in the income statement, or about 28 per cent of net profit before tax.

BEFORE OR AFTER MINORITY INTEREST?

I can understand why minority interest has not been taken into account in computing the performance bonus, since this item appears below the net profit before tax item in the income statement and the service agreements were silent on it. Not surprisingly, the outsourced internal auditor, RSM Ethos, and the external auditor, Ernst & Young, both supported this interpretation, according to the company.

However, in principle, I agree with the IDs that the profit number used to calculate the performance bonus should take into account minority interest because the EDs should be rewarded for profits attributable to shareholders of the group and not to minority interests outside of the group. In fact, I would argue that it should be after-tax profit, rather than before-tax profit, as you would expect the EDs to consider corporate tax implications when they make decisions. After all, we are not talking about divisional or subsidiary executives, but the top executives of the group.

The original service agreement for the MD included the term "extraordinary items". Clearly, this is outdated because extraordinary items no longer appear in today's income statements and the concept of "comprehensive income" has now been introduced. If the terms used in service agreements are not reviewed and updated to reflect changes in accounting standards, disagreements over interpretation may arise.

One lesson from this episode is the importance of having clear definitions in service agreements, employment contracts and bonus plans, and to review them periodically and update them if necessary. It is too late to debate the interpretation of terms after agreements or contracts have been signed or after the performance period. To do so could be perceived to be a shifting of the "goalposts" and unfair to the executives.

However, there are bigger issues in Lian Beng.

SERVICE AGREEMENTS

The company said that computation of the performance bonus was in line with service agreements signed with the EDs since 1999, when it was listed. However, the company's IPO prospectus disclosed that service agreements had been signed only with Mr Ong Pang Aik and Tan Swee Hong. Mr Ong was then MD (and his father was the chairman), while Mr Tan was general manager. There was no mention of service agreements with the other two EDs.

Mr Ong's service agreement stipulated "an annual bonus of three months' salary and a performance bonus amounting to 1.5 per cent of the net profits of the group before tax and before extraordinary items as reflected in the audited accounts of the group". For Mr Tan, who is not related to the Ong family, his performance bonus was discretionary and is "based on the performance of the group and his own performance and subject to the approval of the board of directors".

Lian Beng entered into service agreements with the other two current EDs only in FY2009, based on disclosures in the company's annual reports. In other words, although the company's response to SGX's query mentioned that the computation of the performance bonus was in line with service agreements signed with the EDs since 1999, there were no service agreements in existence for these two EDs until FY2009.

The problem with service agreements at the time of an IPO is that they are typically put in place before a remuneration committee (RC) has been established. The IDs usually have no input into these agreements at the IPO stage. It is therefore important that these service agreements are for a limited period and subject to review by the RC after the IPO.

Lian Beng's annual reports disclosed that service agreements with the EDs are valid for an initial three-year period and subject to automatic renewal every three years. How involved was the RC in reviewing these agreements, including how the performance bonus was to be calculated, when these agreements were put in place or renewed? Did the RC seek any independent advice from suitably qualified experts, especially given that neither of the IDs appears to have technical expertise in such matters?

Service agreements and employment contracts should also not embed totally formulaic approaches for the award of bonuses and other incentives, with no discretion available to the remuneration committee.

BONUS AND PROFIT-SHARING PERCENTAGE

According to the initial service agreement for Mr Ong, he was entitled to an annual bonus of three months' salary and a performance bonus based on a profit sharing percentage of 1.5 per cent - there was no mention of any other bonus component. The company disclosed four components of remuneration in percentage terms in its annual reports - salary and CPF, bonus and profit sharing, other benefits and allowances, and directors' fees. If the "bonus" in the annual reports refers to the annual bonus of three months' salary, one may question why the EDs should continue to be paid a fixed bonus until today, which makes it effectively a part of the basic salary rather than being "performance-related".

Using the band disclosures of remuneration for the three EDs in the annual reports, I estimated that Mr Ong Pang Aik's bonus and profit share was actually between 4.2 and 4.5 per cent of net profit before tax since FY2009. For Ms Ong Lay Huan, it was between 2.1 and 2.4 per cent and for Ms Ong Lay Koon, between 1.5 and 1.8 per cent.

The bonus and profit-sharing percentage for the three EDs has skyrocketed over the years. In FY2006, it made up 18 per cent of the MD's total remuneration. It was 86 per cent in FY2014, which was 8.6 times his base salary. For the other two EDs, it increased from 15 per cent in FY2006 to 80 per cent or more in FY2014.

Of course, a major reason for the increase in the bonus and profit-sharing percentage is the strong financial performance of Lian Beng. Nevertheless, there is the question of whether the bases for the bonus and profit sharing were periodically reviewed by the RC to ensure that they are appropriate and are well aligned with the long-term interest of the company and its shareholders.

PERFORMANCE MEASURES

It appears that the performance bonus is based solely or largely on profit sharing. If profit measures are to be used for determining performance bonuses, measures that relate profit to the level of investment are more appropriate - such as return on equity. It may also be useful to incorporate a shareholder return measure. Non-financial measures of performance should also be considered.

One of the EDs, Ms Ong Lay Koon, is the head of finance and human resources. I think it is especially inappropriate to pay bonuses largely on a profit-sharing basis to someone holding such roles.

BOARD GOVERNANCE AND OWNERSHIP

According to the terms of reference of the RC, it has the following responsibilities:

• recommending to the board the framework of remuneration policies for directors and senior management;
• reviewing and approving specific remuneration packages for each director and the chairman, including director's fees, salaries, allowances, bonuses, options and benefits-in- kind; and
• reviewing the remuneration of senior management.

The RC's recommendations are submitted for endorsement by the entire board.

Lian Beng's board has a majority of EDs, with three EDs and two IDs, including an MD who is also the chairman. Any decisions requiring board approval or endorsement will be difficult to implement if the EDs do not agree. Clearly, the EDs are conflicted in approving remuneration policies that apply to them. In Lian Beng's case, there are also several other family members who are key executives and who are affected by remuneration policies approved by the board. It is difficult to see how this is different from interested persons approving their own interested person transactions.

In addition, Ms Ong Lay Koon is a member of the RC - and also of the audit and nominating committees. Remarkably, the board, including the IDs, seems to have been perfectly happy with this state of affairs, which in the case of the audit and remuneration committees are not in line with the Code of Corporate Governance.

In Lian Beng's case, where the chairman is also the MD, it should in due course have at least half the board being made up of IDs under the 2012 Code. However, even if it adds a third ID to comply with the Code, it will make no difference if the chairman has a casting vote in board decision-making, which is not uncommon.

Not only do the three Ong siblings make up a majority of the board, Ong family members own more than 30 per cent of the total shares of Lian Beng. This gives them considerable influence, if not outright control, over the appointment and removal of IDs. Therefore, if they are dissatisfied with the actions of the IDs, they could quite easily remove the IDs.

The Lian Beng case raises many issues relating to executive remuneration and corporate governance challenges in family-controlled and family-run companies. The spat over how the performance bonus should be calculated may be just the tip of the iceberg of the issues surrounding the company.

The writer is an associate professor of accounting in the NUS Business School where he teaches corporate governance and ethics. His 2007 report for the Monetary Authority of Singapore and SGX on improving the implementation of corporate governance practices includes a discussion of issues relating to service agreements, short-term incentives and profit-sharing plans for companies going public

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 42) Notification 2015 (S 488 of 2015)

King v Philcox [2015] HCA 19 (Tort, Negligence): catchwords

Commonwealth
14 Jul 2015

Surge in online scams in first half of year

Straits Times
25 Aug 2015
Lim Yi Han

Credit-for-sex cases, e-commerce cheating and Internet love scams reasons for spike

Commercial crime cases are on the rise in Singapore, with a surge in "credit-for-sex" offences.

Mid-year statistics released by the police yesterday show overall crime went up by 6.7 per cent in the first six months of this year, compared with the same period last year. From January to June, there were 16,575 cases, up from 15,531 for that period last year.

Some 627 credit-for-sex cases - a trend which emerged in the second half of last year - were recorded in the first six months of this year, with victims cheated of about $1.6 million. The scams involve men being asked by seemingly attractive women on social media platforms to buy gift cards and online credits for sexual services, which the men do not get.

There were also 402 more cases of cheating involving e-commerce in the first half of the year, a rise of almost two-thirds from the same period last year.

Internet love scams also went up by over 50 per cent, with victims handing over some $3.8 million.

Experts said that the rise in such crimes could be due to more online transactions. Mr Aloysius Cheang, Asia-Pacific managing director of global computing security association Cloud Security Alliance, said: "People are embracing e-commerce, but many may not have the necessary knowledge of how to protect themselves."

National University of Singapore sociologist Paulin Straughan said finding love on the Internet is an "attractive option for time-stressed adults", but there are a lot of opportunities for fraudsters to make empty promises. She added: "If you go to an accredited dating agency, you can be more assured that you will not be cheated.

"Perhaps we need to encourage more of such social networking services online and accredit the platforms, so members can be assured that people they get to know are not going to take advantage of them."

Police noted that the rising trend of online crime is a cause for concern and said it will step up on outreach efforts.

It also urged the public to be alert and "exercise due diligence".

Commercial Affairs Department director David Chew said: "While the police will do all it can to investigate, deter and disrupt the activities of these criminals, the public has an important role to play."

National Crime Prevention Council chairman Tan Kian Hoon said: "Remind (friends and loved ones) to take a step back and think through what is being proposed to them online.

"If something is too good to be true, it probably is."

Violent or serious property crimes were down by 44.4 per cent in the first half of this year, while unlicensed moneylending and harassment was down by a quarter.

Cyber-extortion cases plunged by about 73 per cent and outrage of modesty cases dipped by about 5 per cent. Youth crime figures also fell. Police public affairs department covering director Senior Assistant Commissioner Tan Hung Hooi said: "The police will work hand in hand with the community and key stakeholders to ensure that Singapore continues to be a safe home for everyone."

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Constitution of the Republic of Singapore - Public Service (Special and Senior Personnel Boards) (Amendment No. 3) Order 2015 (S 487 of 2015)

Strata Titles Board finds management corporation’s refusal to allow subsidiary proprietor’s electrical upgrade improper and unreasonable, orders it to consent

Judgments
10 Jul 2015

Parking fee of $957 turns into $20,000 legal bill

Straits Times
24 Aug 2015
K.C. Vijayan

Condo resident's bid to be refunded fee for parking in unused space dismissed by court

A resident challenged the management of her condominium over a $957 parking fee - and now faces a $20,000 legal costs bill after the dispute escalated.

Ms Hazel Tan paid the sum for parking in another resident's unused space under a by-law at Casa Jervois in River Valley.

She claimed the by-law was unauthorised and wrongful and sought a court order for the money to be refunded - but this was dismissed by district judge Loo Ngan Chor.

Each of the 31 units at the condominium had been allotted a parking space under the proviso that parking fees were payable for second cars parked in other spaces. The resolution was passed at two resident meetings in 2010 and 2011.

A car belonging to Ms Tan's father counted as their unit's first vehicle. She had lived with her parents in the fourth-level unit since May 2009.

The case presented an unusual issue in that she opted to sue the condominium's management committee in the State Courts over an issue that would normally have been handled by the Strata Titles Board (STB).

The statutory body convenes three-member panels to mediate and hear applications related to the disputes and issues that arise out of strata title property and en bloc sales.

Lawyers say the court's acceptance of Ms Tan's suit suggests that disgruntled residents can take their spats to court instead of the STB - even though costs at the latter are lower.

District judge Loo found that the court had the powers to hear the case, noting that the relevant governing Act did not vest the STB with the exclusive jurisdiction to hear such cases. However, he added: "I am left to wonder why (Ms Tan) has chosen to come to a district court when the panoply of powers is there with the STB."

Ms Tan, represented by lawyer Michael Chia, argued that the resolutions which became the relevant by-laws did not apply to her as she had never applied to use council carpark spaces and had parked in one not used by its owner.

Mr Loo said this argument "was astounding because it ignored the common sense of the resolutions that, if you wish to park a second car you have to apply to use a council lot, the 31 lots being only for first cars, and pay for its use".

The judge was also unmoved by her claim that the four council spaces - designated for additional cars - were illegal as they had not been approved by the Land Transport Authority.

He found that she had marshalled no proof to support this "drastic allegation". "Even if true, this was no basis for her to refuse to pay parking charges," he said.

The management council, defended by lawyer Edmund Nathan, disputed her claims and sought payment of $752 in charges due from her, after offsetting payments she made.

The judge rejected Ms Tan's claims, pointing out the "insidious character of some of the allegations... cannot be over-emphasised".

In decision grounds released earlier this month, he dismissed her claim in view of her "total failure" to support her allegations.

Ms Tan was ordered to pay the $15,000 indemnity costs plus disbursements understood to have added about another $5,000 to the bill.

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Rapid Transit Systems Act - Rapid Transit Systems (Creation of Rights) (No. 2) Notification 2015 (S 486 of 2015)

The relevance of age disparity in sexual offences relating to minors: AQW v PP [2015] SGHC 134

SLW Commentary
10 Jul 2015

Judicial conduct: Guidance needed on how to give feedback - Forum

Straits Times
24 Aug 2015

I welcome the appointment of the Office of Public Affairs (OPA) of the Supreme Court to serve as a single point of contact between the Supreme Court and the public on matters of judicial conduct, among other things ("System in place to handle feedback on judicial conduct" by the Office of the Chief Justice, Supreme Court; Aug 9).

Unfortunately, unlike the courts in other common law jurisdictions, hardly any information about such an initiative is available publicly.

I suggest the OPA take immediate steps to enhance the websites of the Supreme Court, Family Justice Courts and the State Courts, and include guidance sections on providing feedback to the Chief Justice about judicial conduct. Similarly, guidance material can be made available at the courts.

Such guidance can go some way towards reducing complaints from litigants on the unfavourable outcome of their court proceedings, for which I agree the appropriate recourse is the appellate process.

Perhaps, the role of the OPA can be expanded to receive feedback on similar matters in the Family Justice Courts and State Courts.

After all, it is the OPA that now administratively supports the Chief Justice in exercising his ultimate responsibility for judicial conduct and standards in Singapore.

This is better than the current modus operandi of leaving such critical matters to these lower courts to deal with, for which little information exists.

In time, I am hopeful that such guidance can help procure feedback on judicial conduct, and it will help enhance the public perception that the Chief Justice takes such feedback on judicial conduct seriously.

Dharmendra Yadav

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Institute of Southeast Asian Studies (Amendment) Act 2015 (Act 23 of 2015)

Consultation on amendments to the Singapore Code on Take-Overs and Mergers

Business
10 Jul 2015

Fraud case: Art dealer's assets unfrozen by court

Straits Times
23 Aug 2015
Selina Lum

The Court of Appeal has unfrozen the assets of a Swiss businessman and art dealer accused of fraud by a Russian billionaire over US$1 billion (S$1.4 billion) worth of alleged mark-ups on masterpieces by the likes of Picasso and Van Gogh.

In lifting the worldwide Mareva injunction against Singapore permanent resident Yves Bouvier, the court found there was no real risk of him dissipating his assets.

The court also held that the injunction obtained against him by two companies linked to Mr Dmitry Rybolovlev was an abuse of the court's process.

The court concluded this based on factors that included the companies' failure to follow procedure to give Mr Bouvier notice of the application and informing the international media shortly after the injunction was obtained.

"We are satisfied that it was deployed as an instrument of oppression to inflict commercial prejudice on Mr Bouvier," said Chief Justice Sundaresh Menon, in an 89-page written judgment on Friday .

Two similar injunctions against Mrs Tania Rappo, who plays a subsidiary role in the dispute, and Mr Bouvier's corporate vehicle, MEI Invest, were also quashed.

The fight between Mr Bouvier and Mr Rybolovlev revolves around the Russian's acquisition of 38 masterpieces, which include the Da Vinci painting Salvator Mundi.

The deals were arranged by Mr Bouvier, 51, who bought the artworks through MEI Invest. He runs a business that ships and stores art and has majority stakes in freeports - vaults for the rich to store art and other valuables, free of tax - in Singapore and Luxembourg.

Mr Rybolovlev, 48, purchased the pieces using the companies Accent Delight International and Xitrans Finance, owned by his family trusts.

Their relationship, which dates back to 2003 when they were introduced through Mrs Rappo, a family friend of the Rybolovlevs, broke down late last year. Mr Rybolovlev accused Mr Bouvier of inflating the prices of the works. He claimed that a Modigliani obtained through Mr Bouvier for US$118 million had been sold by the original seller for US$93.5 million.

Mr Bouvier's version of events is that Mr Rybolovlev was upset when the Swiss dealer failed to deliver a €140 million (S$222 million) Rothko painting.

His stand is that he was entitled to mark up the prices as an independent seller. Mr Rybolovlev's companies contend that he had breached his duties as their agent.

In January, the companies filed criminal complaints in Monaco against Mr Bouvier and Mrs Rappo.

In March, the companies filed a civil suit in Singapore and obtained injunctions to prevent Mr Bouvier and MEI Invest from moving assets of US$500 million each and Ms Rappo of US$100 million. Mr Bouvier and Mrs Rappo appealed.

On Friday, the Court of Appeal ruled in their favour and set aside the Mareva injunctions.

The court said that the central question was whether there was a real risk that Mr Bouvier and Mrs Rappo would dissipate their assets.

Although it was argued that they had acted dishonestly, the court said these allegations did not have a real and material bearing on the risk of dissipation.

Mr Bouvier and Mrs Rappo have applied for the Singapore suit to be suspended on grounds that a legal action on the same dispute is pending in another country. The applications have been fixed for hearing in the High Court.

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

Bouvier, Yves Charles Edgar and another v Accent Delight International Ltd and another and another appeal [2015] SGCA 45

Institute of Southeast Asian Studies (Amendment) Act 2015 - Institute of Southeast Asian Studies (Amendment) Act (Commencement) Notification 2015 (S 485 of 2015)

Securities and Futures (Clearing of Derivatives Contracts) Regulations: Draft regulations for mandatory clearing of derivatives contracts

Legislation
09 Jul 2015

MBS sues Canadian over $11m debt

Straits Times
23 Aug 2015
K.C. Vijayan

Ontario judge raps debtor for bid to move case to S'pore, as MBS seeks to seize his property

A Canadian gambler being pursued by Marina Bay Sands (MBS) over an $11 million debt has been ticked off by a court in his home country for trying to have the case transferred to Singapore.

Canadian permanent resident Jian Tu was told by Ontario Superior Court Justice Sean Dunphy that the court was "not a sandbox playground where do-overs can be expected on demand".

In an unusual case, MBS has zeroed in on a foreign debtor in his home country rather than take the traditional route of securing a judgment in a Singapore court.

It is seeking a court order in Canada to seize Mr Tu's property to settle an $11.13 million debt arising from advances to support his bets at the casino.

"The stakes are high and this is no time to keep the powder dry," Justice Dunphy wrote in his judgment grounds earlier this month.

"There is nothing before me to suggest that (the) defendant has any reason (other than delay) in seeking to require the plaintiff to re-commence proceedings in Singapore. Given the credit history obtained by (MBS), it would appear MBS is not the only casino from whom (Mr Tu) has obtained credit.

"A long list of other casinos, both in Ontario and abroad, appears upon it." MBS obtained a default judgment in Canada in June last year for $11.13 million after Mr Tu failed to defend the suit.

But he eventually surfaced and tried to set aside the judgment after MBS sought to seize his Toronto property in Ontario to settle the debt. Mr Tu argued the deal with MBS contained a clause that any spat had to be settled exclusively in a Singapore court, so the Canadian claim should be struck off .

But the judge ruled Mr Tu's argument "puts the jurisdictional cart before the default judgment horse", making clear the claim was not void despite such a clause.

He declined to give effect to the clause and move the case to Singapore, given that there was a nine-month "unexplained delay" by Mr Tu in reacting to MBS' claim.

He also rejected a claim by Mr Tu's wife, Madam Li Kang, that her husband did not get the statement of claim delivered to their Canada address as he was travelling between Hong Kong, Macau and Australia at the time.

The judge was not convinced by her explanations, noting that Mr Tu had not explained his defence for the suit, given the claim is a "fairly simple one" and the number of defences are not difficult to envisage.

"I can only infer... that (he) has no serious defence on the merits and is merely seeking delay for delay's sake. He has provided me with no evidence whatsoever to dispel this fairly obvious inference."

Justice Dunphy noted that MBS has not been paid by Mr Tu for almost three years, had to hire lawyers to track him down and has found the property he owns and secured a judgment.

He added: "Mr Tu has given this court nothing to weigh on his side of the balance beyond the inference that he seeks to buy time with a procedural argument."

The Canadian judgment obtained is expected to enable MBS to seize his Toronto property to help settle his debts.

It is understood that MBS has also started proceedings against Mr Tu in the High Court in Singapore in a bid to confirm his liabilities.

The case here is ongoing.


UNCONVINCED

I can only infer... that (Mr Jian Tu) has no serious defence on the merits and is merely seeking delay for delay's sake.

JUSTICE SEAN DUNPHY

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Marina Bay Sands Pte Ltd v Jian Tu aka Tu Jian, 2015 ONSC 5011

Terrorism (Suppression of Financing) Act - Terrorism (Suppression of Financing) Act (Amendment of First Schedule) (No. 3) Order 2015 (S 484 of 2015)

SHC: Adjudication application filed before the expiry of the dispute settlement period held to be valid

Judgments
08 Jul 2015

535 called to the Bar

Straits Times
23 Aug 2015
Lim Yi Han

Record number this year, but CJ says legal opportunities are increasing

A record 535 lawyers were called to the Singapore Bar yesterday.

And while Chief Justice Sundaresh Menon told the new batch they are not immune to competition for jobs, he gave an assurance that there are plenty of reasons to be optimistic, given the increasing legal opportunities here and abroad.

Worries have been raised recently over an oversupply of lawyers and law graduates, especially from universities in Britain and Australia. It appears to be an employer's market, with firms reportedly cutting starting salaries.

Last year, nearly 650 graduates competed for about 490 practice training contracts, a requirement for entry to the Bar.

Earlier this year, in a bid to ensure the quality of local lawyers, the Ministry of Law cut the number of British universities whose graduates are accepted for legal practice from 19 to 11.

Last year, there were 430 newly appointed advocates and solicitors, up from 410 the previous year and 363 the year before. In 2011, the number was just 257. Of the new batch, about four in 10 obtained their law degrees overseas.

Acknowledging the shortage of training contracts, the Chief Justice said in his speech at the mass call held at the Singapore Expo that "we should not see ourselves as a special breed entitled to be insulated from job competition, long working hours, and struggles between work and family".

"These very challenges afflict almost every other professional vocation," he said.

And while new lawyers might lack some of the opportunities enjoyed by their predecessors, such as the chance to argue a case in the Court of Appeal within months of being called, other opportunities have emerged.

There is no shortage of commercial work, he said, and increasing globalisation has allowed "Singapore lawyers to offer their services in places far away from home".

"As more foreign companies set up regional headquarters in Singapore, and more local com-panies expand into the region and beyond, the demand for in-house counsel will only grow."

As for young lawyers looking to build their advocacy skills, the Chief Justice said there are platforms available, such as being part of the expanding legal aid schemes. He added that criminal law and family law are becoming more appealing practice options for lawyers.

Mr Xiao Hongyu, 26, one of those called to the Bar yesterday, admits that the market may be tougher for new lawyers like him, but this is only motivation for him to work even harder.

"Those in my batch may lose out in terms of opportunities and pay compared with our seniors, but there is also pressure to do better - which is not entirely a bad thing," he said.


MOTIVATION TO DO BETTER

Those in my batch may lose out in terms of opportunities and pay compared with our seniors, but there is also pressure to do better - which is not entirely a bad thing.

MR XIAO HONGYU, 26, who was called to the Bar yesterday

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Medicines Act - Medicines (Exemption for FINA Junior Swimming Teams) Order 2015 (S 483 of 2015)

Latest developments: Financial services

Business
07 Jul 2015

Rise in sexual crimes over last four years

Straits Times
23 Aug 2015
Danson Cheong & Lim Yi Han

272 cases filed and 169 convictions last year, about 60% more than the 164 cases filed and 105 convictions in 2011

The number of sexual crimes has been rising over the last four years.

And given that minors may find it harder than adults to pick up the pieces, experts are urging parents to build open relationships with their children so they will feel safe in opening up about possible wrongdoing.

Last year, there were 272 cases filed in the State Courts involving either sexual assault by penetration, sexual grooming of a minor under 16, outrage of modesty or rape. Another 169 cases involving these crimes led to convictions.

This is an overall increase of about 60 per cent from 164 cases filed and 105 convictions in 2011.

In the High Court, 13 rape cases were filed last year, up from four the year before and six in 2012. Eight people were convicted of rape last year compared to four in 2013 and six in 2012.

The Association of Women for Action and Research (Aware) also said that 234 people sought help at its Sexual Assault Care Centre last year, up from 192 in 2013.

While the rise could be due to an increased willingness to come forward, it could be only the "tip of the iceberg", said Aware's programmes and communications senior manager Jolene Tan, pointing out that a majority of cases also go unreported.

"If children feel they can confide without facing judgment or shaming... parents and caregivers are more likely to be in a position to know about situations that involve sexual violence and provide assistance," she said.

It is especially critical to catch abuse of minors early because "children might carry the trauma for the rest of their lives", said Dr Carol Balhetchet, senior director for youth services at the Singapore Children's Society. "At least with adults, they have some experience to help them process what happened. Children are a blank slate."

Girls might suffer from depression and inflict self-injury by cutting themselves in an attempt to deal with the stress, said the clinical psychologist. Boys, on the other hand, tend get angry and aggressive, becoming defiant and getting into fights, she said.

Consultant psychologist and traumatologist Elizabeth Ho from mental health practice the Resilienz Clinic, said boys may also struggle with their sexual orientation, after finding themselves sexually aroused during the abuse.

"Arousal in males is a biological thing, it's not something they can effectively control," said Ms Ho. The problem is exacerbated if the abuse occurs during adolescence when sexual identity is formed.

Experts also told The Sunday Times that the impact on victims is even worse if the offender is "known to the child's family".

The Ministry of Social and Family Development (MSF) handled 38 cases of sexual abuse involving minors last year. In 2013, there were 40 cases. In most cases, the perpetrator was a family member.

Such victims tend to suffer deeper emotional trauma, said Dr Joy Low, senior clinical psychologist with MSF's Clinical and Forensic Psychology Service. "Many victims may be unwilling to disclose or even engage in treatment due to feelings of guilt which comes from implicating their loved ones."

For years, "Nick's" stepfather would "massage" him at night before he went to sleep. It involved the man fondling the boy's privates.

The abuse began when he was in primary school. It stopped only earlier this year after counsellors in school found out and reported the case to the police.

The Secondary 3 student continues to struggle with feelings of guilt and shame, said Ms Lena Teo, assistant director of counselling at the Children-at-Risk Empowerment Association (Care). "He also has so much anger because an adult he trusted and was supposed to respect abused him sexually."

Therapy to help survivors lead normal lives again can take from six months to a year on average, but can stretch up to 18 months, said Dr Low. It typically involves getting survivors to talk about the experience in order to help them process the hurt, and adapt psychologically.

It is also crucial that victims be in an environment in which they feel safe to share their experience.

Mrs Kim Lang Khalil, director of DaySpring Residential Treatment Centre, which helps abused teenage girls, said: "Those who are abused tend to be hyper-vigilant. They are always concerned about possible attacks on them, they get startled easily, and do not trust adults as most of the time they were abused by one."

DaySpring can take up to 22 girls, who are mostly referred by MSF and typically stay for a year at its Turf Club compound. Each girl has a care team - a counsellor and a coach to help her get over her trauma. When the girls are well enough to leave, there is a "graduation" ceremony where they share with other girls their experience.

Said Mrs Khalil: "By being willing to share, they show that they have made peace with their past, and are no longer ashamed."


Rehabilitation for sex offenders

For four psychologists at the Ministry of Social and Family Development (MSF), treating and rehabilitating molesters, peeping-Toms and other sex offenders is part of their day job.

They are from the Clinical and Forensic Psychology Service (CFPS), and in 2013, they received about 100 referrals to assess and treat perpetrators of sexual crimes, according to latest statistics from MSF.

These referrals come from MSF and community homes, and include sex offenders who have committed their crimes with victims both within and outside their families.

The CFPS submits assessment reports to the courts, and the offenders may subsequently be placed in a treatment programme.

These perpertrators are usually men or male adolescents, said Dr Janice Tan, a senior clinical psychologist and assistant director of CFPS.

"The majority of the cases involved peeping, exposing, taking of upskirt photos and molest offences," said Dr Tan.

There are four different programmes, depending on the type of offence and age of the offender, said Dr Tan, adding that these can last between nine and 18 months, and consist of weekly therapy sessions.

"Psychologists delivering treatment will assist the perpetrators with restructuring their thinking, attitudes, beliefs, and feelings which have led to their offending behaviour," said Dr Tan.

She added that they would also work with family members to put in place "safety plans" to prevent recurrence of the offence.

Offence-specific treatment can cut reoffending rates by up to 10 per cent, noted Dr Tan.

When offenders are sentenced and jailed, the Singapore Prison Service (SPS) takes over.

There, offenders are screened and assessed by specialists to "address their different criminogenic risks and rehabilitation needs", said a SPS spokesman.

Psychological interventions and programmes while behind bars can help correct their negative behaviour and criminal thinking, he added.

Lim Yi Han and Danson Cheong

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Health Products Act - Health Products (Medical Devices for FINA Junior Swimming Teams) (Exemption) Order 2015 (S 482 of 2015)

Latest developments: OECD BEPS; bribery; insolvency; real estate ownership in Vietnam; choice of court agreement

Business
03 Jul 2015

Landmark laws, fiery exchanges mark second session of 12th Parliament

TODAY
22 Aug 2015
Kelly Ng

Focus on healthcare, retirement adequacy, while debate on AHPETC saga stands out

SINGAPORE — It has only been 15 months, but should the Parliamentary sitting earlier this week turn out to be the last before the polls are called, the second half of the 12th Parliament would not have been short on style or substance.

A total of 58 Bills were passed, including several landmark legislations and there were plenty of fireworks between the People’s Action Party (PAP) Members of Parliament (MPs) and their opposition counterparts — particularly over the Aljunied-Hougang-Punggol East Town Council (AHPETC) saga, which saw PAP and Workers’ Party (WP) MPs cross swords several times.

Among the Bills passed, several centred on public order, such as laws to combat human trafficking and organised crime. The Liquor Control Act, aimed to regulate alcohol supply and consumption in public places and minimise disamenities arising from drinking in public, was also passed in January, more than two years after the review of liquor-control measures first started.

Since Parliament reconvened in May last year, healthcare and retirement-adequacy issues took centre stage in the legislature, with the MediShield Life Scheme, aimed to provide universal healthcare coverage for Singaporeans for life, written into law in January.

A Bill on the new Silver Support Scheme, which disburses between S$300 and S$750 each quarter to needy elderly people, was among the slew of legislations passed at the two-day sitting earlier this week, as the 12th Parliament drew to a busy close. The only unfinished business — should the polls be called soon — is the review of the Town Councils Act, which has taken more than two years and counting.

Associate Professor Reuben Wong, a political scientist at the National University of Singapore, noted that, in particular, several “productive” debates centred on healthcare, such as on medical bills, the Central Provident Fund and whether Singaporeans should get support from the state in their old age. He added: “It is about time that we use more of our reserves and Budget to alleviate the burden on older Singaporeans and their families. So I think it makes a lot of sense, now with more aged ... Singaporeans.”

Singapore Management University (SMU) law don Eugene Tan said the past year or so saw diverse views on policy issues involving single mothers, people with special needs and victims of human trafficking, for example.
As the WP’s management of AHPETC continues to draw rigorous debates in Parliament — right up to the most recent sitting and beyond, political observers and analysts were split over whether the AHPETC tinderbox sparked more heat than light.

Nevertheless, they agreed on one thing: The debates on the topic, which were at times acrimonious, stood out in the second half of the 12th Parliament, which began with a fiery exchange between Senior Minister of State (Education and Law) Indranee Rajah and WP chief Low Thia Khiang over what constitutes “constructive politics”. Assoc Prof Tan said: “Too often, the debates on AHPETC took on the flavour of verbal wars, where scoring political points seemed to be the order of the day.”

Assoc Prof Wong felt too much airtime had been given to the issue. “I thought that was a lot of hot air, and Parliament time could have been better spent debating issues that would affect Singaporeans’ quality of life.”
But former Nominated MP Calvin Cheng disagreed as he felt the AHPETC debates were very important. “Because MPs have two responsibilities — one is to manage the town council and the other is their performance in Parliament. So if an opposition party can’t even manage a town council properly, how can it manage a country? There are no jibes, I see those as very important questions.”

QUALITY OF DEBATE

The analysts and observers whom TODAY spoke to were also divided on whether the record number of opposition MPs had raised the quality of parliamentary debates.

Assoc Prof Tan felt the stronger presence of the Opposition had added a sharper edge to the debates. “That meant that the front bench and MPs had to come better prepared for sittings. As a consequence, the quality of debates was generally high.”

Political scientist Alan Chong of the S. Rajaratnam School of International Studies noted that several MPs who had made strong interventions came from the Opposition, including the WP’s Mr Low, Ms Sylvia Lim and Mr Gerald Giam. “Perhaps, if the number of opposition MPs is doubled, the quality of debate will also be enhanced,” he said.

Assoc Prof Wong also singled out Mr Giam for his performance. Describing the Non-Constituency MP as the WP’s designated “transport man”, he said: “He speaks up a lot and gets air time in the papers, so the public gets to understand the alternatives proposed to alleviate public transport issues.”

However, other analysts criticised the WP MPs for not living up to its billing. Mr Cheng, for instance, felt their performance was “tame”. “I was surprised that for a party that campaigned for a First World Parliament, they did not put in a single full parliamentary motion for debate,” he said.

For the PAP, the analysts and observers were impressed by the officeholders — in particular, Social and Family Development Minister Tan Chuan-Jin, Ms Indranee and Minister of State (Health) Lam Pin Min. However, they felt the first-term MPs could do better. Assoc Prof Wong said: “I’m afraid I didn’t notice any of the first-term backbenchers.”

The first half of the 12th Parliament, which lasted 30 months, between October 2011 and April last year, was marked by spirited debates on the Government’s White Papers on Ministerial Salaries and Population, and scandals that forced two MPs — PAP’s Michael Palmer and WP’s Yaw Shin Leong — to vacate their seats.

A total of 89 Bills were passed before the House took a mid-term break. The laws covered a range of areas and sought to address hot-button issues such as public transport and imported labour, which came to the fore during the 2011 General Election hustings.

As Singapore gears up for the coming GE, there has been some discussion on an MP’s dual roles — looking after his or her constituents and their estate, and being a voice for them in Parliament by raising their concerns and contributing to policy debates.

Assoc Prof Tan said: “Neither should take priority over the other. While most MPs get elected or re-elected on the basis of their role in the constituencies and town councils … their contributions to the law-making and policy-making process should not be shortchanged.”

Copyright 2015 MediaCorp Pte Ltd | All Rights Reserved

Preservation of Monuments Act - Preservation of Monuments (No. 2) Order 2015 (S 481 of 2015)

SHC upholds mandatory injunctions granted to Beauty World Plaza against subsidiary proprietor for unauthorised alterations

Judgments
02 Jul 2015

Do not leave definition of death just to doctors

Straits Times
22 Aug 2015
Andy Ho

It was reported earlier this year that local surgeons had noted a drop in the transplantation of organs taken from the brain dead. One reason they suggested was doubt among family members that the brain-dead patient is really biologically dead.

After all, the person on the ventilator is still warm, makes spontaneous movements, digests food, urinates and defecates. He bleeds, his wounds heal, he can grow a beard and become feverish with an infection.

Live babies have been born to brain-dead mothers. So while doctors euphemistically call them "cadaveric" donors, these patients do not look or behave like cadavers at all. They appear alive, just asleep. It may be time to review the harvesting of organs from the brain dead.

Although doctors have been telling us about brain death since the 1970s, most ordinary people may not be clued in to the debate that has been ongoing.

Doctors cannot just brush aside the very human reaction when families struggle to accept that brain death means "as good as dead" and that it is all right to start removing organs.

Grief-stricken families will ask: "Is he really dead?"

Actually, the law in Singapore does not explicitly legalise organ harvesting from the brain dead because it is silent as to when death has occurred. Specifically, Section 3 of the Human Organ Transplant Act (Hota) previously titled "When death occurs" is left blank, with only these very words: "(Repealed by Act 22 of 1998)". This is probably the law acknowledging how contentious it is to claim that the brain dead is dead.

But how did we get here?

In 1968, explicitly to free up intensive care unit beds and increase the supply of organs for transplantation, the Harvard Medical School introduced a new category of death wholly in terms of brain function.

Calling it brain death, this is now diagnosed when the brain stem has stopped functioning.

The brain stem is the brain's lower part that connects the cerebral hemispheres in the skull to the spinal cord in the backbone.

It controls breathing, digestion, heart rate, blood pressure, human alertness and arousal from sleep.

The brain stem relays information between the spinal cord and the upper parts of the brain. So when it stops working, the brain cannot transmit data to the body to control the heart and lungs, say.

Also, it cannot receive data from the body. So the patient shows no reaction to stimuli, no evidence of thought or consciousness, and no ability to breathe on his own.

Specific criteria are used to establish brain death.

But to this day, no one can show why brain death, when thus diagnosed, is really equal to death in a biological sense.

While the law does not explicitly legalise brain death as permitting organ harvesting, doctors here do so. The "living dead" patient is then maintained on life support to keep the organs perfused by blood with oxygen up to the moment the organs are harvested.

Such a "living corpse" can be kept going with life-support for months before the heart also stops.

A study of 155 brain-dead persons found survival times ranging from two weeks for 80 of them to longer than a year for four patients. At least 22 pregnant brain-dead women kept on life support to save their foetuses, from as early as 15 weeks, delivered live babies.

Moreover, no one knows if the cerebral hemispheres or the parts of the brain higher up in those with brain-stem death are also completely dead. In fact, even after brain-stem failure has been correctly diagnosed, today's neuroscience tests can show that some brain cells in the cerebral hemispheres are still functional. So not even all of the brain is dead in the brain-dead, at least occasionally.

If the higher brain where consciousness resides is not completely dead, we cannot know if the content of the patient's consciousness is also permanently gone. That includes his private thoughts, memories, plans, attitudes, values and norms. Since they are subjectively experienced, we cannot know that these are now absent, such that the patient is as good as dead, as the Harvard report claimed.

Four decades after that report changed the meaning of death worldwide, the United States President's Council on Bioethics issued a study in 2008 acknowledging that the question why brain-dead patients are to be considered really dead had never been satisfactorily answered anywhere.

It admitted that some brain function continues even when brain death is correctly diagnosed. Nevertheless, it decided that brain death was to be considered death because the patient would no longer be able "to act upon the world" in ways that he must if he is to fulfil his own needs. It then reiterated the Harvard idea that the brain-death diagnosis was sufficient to justify organ harvesting. That is, the end justifies the means, even if the brain-dead person is not really biologically dead.

Proponents basically depend on the idea that brain death entails the loss of personhood, which they say means that you're as good as dead.

While death has a commonsense biological meaning, it also has non-biological - or moral and legal - ones. But physicians whose expertise lies in the biological, physical or medical cannot rule on the non-biological in which they have no particular expertise.

They make a value judgment when they say that the loss of personhood in brain death makes it really death.

I may not agree with your values.

So what is a moral issue involving life and death has been surreptitiously changed into one about a biological fact to be discovered medically.

If so, doctors have obscured what is a moral decision, thereby usurping from kin the power to decide when to pull the plug.

Under the law, the corneas, kidneys, liver and heart of hospitalised citizens or permanent residents aged 18 to 60 whom doctors have declared dead may be harvested by default in Singapore's opt-out system.

This is why, if you have not proactively opted out, you have already been opted-in by law, even if you disagree, so your family cannot say no to organ removal.

If you cannot cure cancer by just changing the definition of the biological condition called cancer, then you also cannot say that death has occurred when the person is still biologically alive just by simply altering what the word means. Yet this is what doctors have done.

So the current public policy permitting organ harvesting from the brain dead may be resting on shaky moral grounds.

If families are resisting organ harvesting from the brain dead, it is a sign that this issue remains fraught with doubt.

It deserves being reopened for debate by all.

It should not be left to doctors who have no particular expertise in philosophical endeavours.

Doctors must not respond to this by simply reasserting their diagnostic considerations as they are wont to do when challenged on brain death. They must not dismiss such doubts just because there are queues of patients waiting for life-saving organs.

One outcome might be to change Hota into an opt-in system where people proactively agree to be cadaveric donors.

This might see more organs becoming available if more are persuaded. Above all, transplant surgeons would have real prior consent from the brain dead, putting the system on a more morally sound basis.


•This is the last of a six-part series by Andy Ho on new scientific findings about the brain.

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

Pioneer Generation Fund Act 2014 - Pioneer Generation Fund (Pioneer Generation Benefits) (Amendment) Regulations 2015 (S 480 of 2015)

SHC: Derivative actions and the requirement of good faith

Judgments
02 Jul 2015

S'porean on probe team to be deported

Straits Times
22 Aug 2015
Shannon Teoh

A Singaporean legal officer who was part of a high-level government probe into the debt-laden 1Malaysia Development Bhd (1MDB) is facing deportation, a week after she was sacked from Malaysia's Attorney-General's Chambers (AGC).

Ms Jessica Gurmeet Kaur Sidhu, a senior member of the AGC's anti-fraud and tax evasion department, had her Malaysian permanent resident status revoked, a family member said yesterday.

Ms Sidhu is married to a Malaysian. Their three children's residency permits have also been cancelled, according to local reports.

Singapore's Ministry of Foreign Affairs (MFA) said last night in a statement that its High Commission in Kuala Lumpur met Ms Sidhu recently and is rendering consular assistance. MFA is also in contact with her next-of-kin and will continue to provide them with the necessary consular assistance, it added.

The family member, who declined to be named, told The Straits Times that Ms Sidhu had accepted her termination "without question" but was troubled by the deportation order. "Some of us are born in Malaysia. It is very upsetting because our relatives are in Malaysia," she said.

The Malaysian Home Ministry did not respond to The Straits Times' queries yesterday.

Ms Sidhu, who has lived in Malaysia for 20 years, was head of administration and finance for the AGC-led special task force that was investigating 1MDB. However, the task force, which included the central bank, anti-graft agency and police, was disbanded by Mr Mohamad Apandi Ali, who replaced Tan Sri Abdul Gani Patail as Attorney-General on July 28. The same day, Prime Minister Najib Razak reshuffled his Cabinet, and sacked critics of 1MDB from the government.

The task force last month raided several offices, including 1MDB's headquarters, and arrested several people. This was after media reports on July 3 alleged that nearly US$700 million (S$984 million) linked to 1MDB was deposited into Datuk Seri Najib's private bank accounts.

After a purported charge sheet accusing Mr Najib of corruption surfaced, Ms Sidhu was arrested on Aug 1 - along with former Malaysian Anti-Corruption Commission adviser Rashpal Singh - in connection with the alleged leaks of documents in the 1MDB probe.

Mr Najib is the chairman of 1MDB's advisory board.

The family member said Ms Sidhu, who worked for the AGC for more than three years, plans to challenge the revocation of her PR status. "She was just doing her job on the instruction of her bosses. If at all, the bosses should be taken to task," the relative said.

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

Income Tax Act - Income Tax (Exemption from section 19B(10A)) Order 2015 (S 479 of 2015)

Supreme Court Note: Timothy Nicholas Goldring v PP [2015] SGHC 158 (effect of liability exclusion clauses in cheating)

Supreme Court Note
01 Jul 2015

The Court held that liability exclusion clauses cannot relieve an accused person of criminal liability in a cheating charge if he acted dishonestly. First, courts do not interpret such clauses to mean that parties intended to cover fraud, in the absence of clear language. Second, such a construction would in any event be void in law both under s 11 of the Unfair Contract Terms Act (Cap 396, 1994 Rev Ed) and for being contrary to public policy. In this case, the appellants relied, unsuccessfully, on a non-reliance clause in a contract which the investor-victims had signed. However, such clauses may be characterised a liability exclusion clauses if the subject-matter of the exclusion is within the parties’ knowledge or control; the distinction is one of substance and not form. Since liability exclusion clauses do not protect an accused person, the issue of when the contract is signed becomes irrelevant.

The Court also held that any cooling-off periods do not affect the time when property is delivered. Cheating is an offence concerning the custody of property (ie, delivery), and not ownership or possession, of property. This element of delivery of property is completed once physical custody passes; transfer of title is unnecessary. That an investor can ask for a “refund” during this period only presupposes that delivery of property took place.

Timothy Nicholas Goldring v Public Prosecutor and other appeals [2015] SGHC 158, paras 55 to 64, 66 and 69. To view the judgment, click <here>.

Disclaimer: The above is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. The full judgment of the Court is the only authoritative document.

Judge reduces sentence of repeat drug trafficker

TODAY
21 Aug 2015

Good reason needed to impose sentence that exceeds mandatory minimum punishment, says judge

SINGAPORE — A High Court judge yesterday reduced the sentence of a convicted repeat drug trafficker on appeal, ruling that the only aggravating factor in his case was the fact that the offence was committed while he was out on bail.

The district judge who sentenced Alan Loo Pei Xiang had levied additional punishment on the mandatory minimum sentence for repeat traffickers because of the amount and type of drugs involved in the present case, the punishment imposed for his previous offence, the profits he stood to gain, and that he was out on bail when he reoffended.

But Judge of Appeal Chao Hick Tin ruled yesterday that given the small quantity of methamphetamine Loo trafficked, there has to be “good reason” to impose a sentence that exceeds the mandatory minimum punishment by a “significant” six years’ imprisonment and five strokes of the cane. Under the law, the court has to sentence a repeat offender to at least 10 years’ jail and 10 strokes’ caning.

The fact that Loo is a repeat offender is already factored in under the sentencing regime and to add on penalties based on that would constitute double-counting, said Justice Chao.

While the district judge held it against Loo that the drug involved was a Class A drug, Justice Chao said it was wrong to do so since the laws already stipulate different punishments for different types of drugs.

Loo was arrested on June 12, 2013, for having three packets of methamphetamine, one of which had 11.64g of the drug and is the subject of the trafficking offence. He was out on bail after being arrested the previous month.

On the district judge’s finding that the penalties Loo should face for the present offences ought to be more severe than that for his previous trafficking charges in 1997, which was 14 years’ imprisonment and 12 strokes of the cane on each charge, Justice Chao said this was a wrong principle to take.

“The specific circumstances of the charges cannot be disregarded, and it is not difficult to envisage situations in which an offender would be less culpable on the subsequent occasion than on the earlier one,” he said, noting that Loo’s offences in 1997 involved a substantially higher amount of drugs. The S$1,350 price Loo had agreed with a buyer for the drugs also does not form his profit since the cost of the drugs has not been considered in the equation, said Justice Chao.

Besides, financial profit is not a significant aggravating factor per se since most repeat traffickers are motivated by financial gain, the judge said. Financial profit would become an issue, however, if the transaction was “unusually lucrative” or if the offender is particularly experienced or established in the drug trade, he added.

“In my judgment, there is only one good reason for elevating the appellant’s sentence beyond the indicative starting point ... that he committed the offences while out on bail. It demonstrates a disregard for the law and a recalcitrance that calls for an increased sentence on principles of specific deterrence and prevention.

“But I do not think that this factor alone warrants a sharp increase of six years’ imprisonment and five strokes of the cane from the minimum.”

Copyright 2015 MediaCorp Pte Ltd | All Rights Reserved

Income Tax Act - Income Tax (PIC Automation Equipment) (Amendment) Rules 2015 (S 478 of 2015)

Singapore and the relevance of sub judice contempt of court

Judgments
01 Jul 2015

Civil justice in S'pore: 50 and going strong

Business Times
21 Aug 2015
Chan Leng Sun

Singapore has had a headstart due to the strong commitment of its leaders in enhancing both its legal infrastructure and the quality of its stakeholders

CIVIL society rests on the foundation that its members will conduct themselves justly. Aristotle described justice as the "bond of men in states". He believed that "the administration of justice, which is the determination of what is just, is the principle of order in political society".

AS Singapore celebrates its Golden Jubilee, it is opportune to track how its administration of justice has evolved, and cast an eye on the horizon ahead. When it gained independence in 1965, Singapore did not even have its own legislation governing the constitution and operation of its judiciary. Today, Singapore has a well-regarded judiciary and a leading arbitration centre, complemented by sophisticated mediation options. This comprehensive suite of dispute resolution services is sought after not only by the local population but also businesses worldwide. Both place faith in the ability of the civil justice system in Singapore to "right the wrongs" occasioned to them in their commercial dealings. This did not happen by chance but by planning and foresight.

In 1963, when Singapore became part of Malaysia, the High Court in Singapore was a branch of the Malaysian High Court. Appeals lay to the Federal Court of Malaysia, with further appeals in certain cases to the Judicial Committee of the Privy Council (JCPC) which sat in London and was the highest court of appeal for the British Empire.

When Singapore became independent in 1965, its High Court curiously remained part of the Federal system of Malaysia as a result of the problems that the leaders of the day had to prioritise upon leaving Malaysia. Singapore enacted its own Supreme Court of Judicature Act in 1969, setting up its own Court of Appeal independent of the Malaysian judiciary. Subsequently, it removed appeals to the JCPC in 1994, making the Court of Appeal the supreme appellate court of Singapore.

Through the years, the courts were re-organised to improve the administration of justice. For example, the Technology Court was launched in 1995 to make use of technology in the presentation of cases. The strength of the bench was also reinforced with the appointment of specialist judges. The Intellectual Property Court and the Admiralty Court were established in 2002 so that specialist disputes are assigned to judges with the right expertise.

In late 2014, the Singapore International Mediation Centre (SIMC) was launched. With its focus on cross-border disputes, the SIMC complements the Singapore Mediation Centre (SMC), which largely serves disputants within Singapore and has mediated over 2,300 cases since it was established in 1997.

Early this year, another development from the Singapore disputes scene set the global legal community abuzz - the launch of the Singapore International Commercial Court (SICC). Despite being a division of the Singapore High Court, the SICC incorporates ideas from international arbitration to make it a unique judicial institution customised to hear international commercial disputes. Unlike a conventional court, the SICC panel of judges includes both serving Supreme Court judges as well as international judges from both common law and civil law jurisdictions. The eminence of the first batch of international judges who have agreed to serve on the SICC panel attests to as well as reinforces the stature of the Singapore court system.

It is not only the judiciary which has come a long way since independence. Arbitration was virtually unknown to businesses in Singapore in the first few decades of the nation. In 1990, the Singapore International Arbitration Centre (SIAC) was incorporated following a recommendation by a Working Party that Singapore should aspire to be a regional arbitration centre. Over the years, the SIAC has seen its case load grow significantly with the growing appeal of Singapore as a seat for international arbitration. A specialist maritime arbitration institution - the Singapore Chamber of Maritime Arbitration (SCMA) - was set up in 2004 and has steadily gained popularity with the maritime sector.

In a move that was both symbolic and practical, the world's first integrated dispute resolution complex named Maxwell Chambers was built to bring leading institutions and service providers related to alternative dispute resolution (ADR) under one roof. Maxwell Chambers has since become an iconic manifestation of Singapore arbitration.

Legislation on arbitration was constantly updated to ensure that it meets the expectations of the international community on arbitral policies. Singapore now stands in the top tier of renowned arbitration centres with cities such as London, Paris and Geneva.

One can say that the geography of Singapore - in the heart of South-east Asia - has helped. Like Hong Kong, Singapore has benefited from the rise of the Asian economy as Asian companies gain more bargaining power in shifting the seats of arbitration from the US or Europe to somewhere closer to home. On their part, companies in Europe and the Americas are prepared to accept a forum which they know to be neutral and competent. Infrastructure, the use of English as the lingua franca, transparency, the rule of law and a respected judiciary give comfort to those that seek justice from its legal system.

Looking ahead, what would the next 50 years hold for Singapore's bid to be a dispute resolution hub? In the foreseeable future at least, the shift towards Asia is inexorable. So is the trend towards resolution of disputes in Asia. Other Asian centres - such as Kuala Lumpur, Seoul and Tokyo - will gain in experience and expertise. However, Singapore has had a headstart due to the strong commitment of its leaders in enhancing both its legal infrastructure and the quality of its stakeholders. The constant review of the system and legislation show that Singapore is determined to stay ahead of the curve. It will thrive as long as it is run by people who are committed to the service of justice.

Institutions and legislation are only hardware. They are important in providing the framework within which disputes can be brought for resolution. The structure must be accessible and efficient, like a well-run train station that serves a myriad of travellers on their way to a destination - in this case, an outcome to their dispute. However, a cathedral does not make saints. It is easier to build an edifice of justice than to populate it with just people.

The success of Singapore in attracting disputants to its shores to seek a fair and just outcome depends not just on its efficient machinery. It depends on the reputation of its judges, arbitrators and all who serve a quasi-judicial function. Confidence in its judiciary, in particular, is key, whether in the direct determination of a dispute brought to the Courts, or in the supervisory role played by the judiciary in relation to arbitration.

The formidable intellect of the Singapore judiciary is widely acknowledged. There is another fundamental quality that must remain immutable if Singapore is to remain a trusted forum for dispute resolution. It is apt to end with the emphatic exposition of this value by Chief Justice Sundaresh Menon.

"Society accepts our judgments because they trust us and because they expect and believe that we will be the incorruptible guardians of the law; ultimately that we are men and women of integrity. On this analysis, judicial integrity is the basis upon which our legitimacy as an institution is founded in the eyes of the community and it is the condition for public acceptance of our authority."

The writer is head of dispute resolution at Baker & McKenzie.Wong & Leow and will be Baker & McKenzie's global head of international arbitration with effect from October 2015. He is a member of the Committee on the Singapore International Commercial Court

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 41) Notification 2015 (S 477 of 2015)

[GBR] Contractual interpretation: Shades of grey

Commonwealth
01 Jul 2015

Elections Department sets rules for coming polls

Straits Times
21 Aug 2015
Charissa Yong

Spending cap raised; photos on ballot paper; committees for minority candidates named

The Elections Department (ELD) yesterday announced several changes to election regulations, the strongest signal that a general election (GE) could be weeks away.

The changes will raise the maximum spending limit for a candidate from $3.50 to $4 for every voter, and introduce photos of candidates on ballot papers to be used at the polls.

Campaign banners can also be displayed closer to polling stations than they could before. Members of two committees that certify minority candidates contesting a GRC are from those ethnic groups, have also been appointed.

Political observers say the changes are signs of an imminent GE.

Said National University of Singapore sociologist Tan Ern Ser: "The announcements deal with the nitty-gritty details of election campaigning and the ballot design."

The law imposes a ceiling on a candidate's election expenses to ensure a level playing field, and ELD said the spending ceiling was raised to account for inflation.

The spending limit was last raised from $3 to $3.50 per voter in 2011.

A total of $5.5 million was spent by all parties during the 2011 GE, up from $2.6 million in 2006, when the expense limit per voter was $3.

As for the inclusion of candidates' photos, ELD said it will make it easier for voters, especially seniors, to identify their choice of candidate.

Candidates' photos on ballot papers were first introduced at the 2011 Presidential Election, and the public gave "generally positive" feedback on this move, ELD added.

Political scientist Derek da Cunha sees it as a significant change from the ballot paper's traditional focus on parties rather than candidates.

Singapore Management University Associate Professor Eugene Tan said the move benefits candidates of any party who have consistently worked the ground and are therefore more visible and recognisable.

"It would nudge parties to walk the ground between elections and not move from constituency to constituency on a whim," the law don said. "The People's Action Party's lightning bolt symbol and the Workers' Party's hammer symbol are easily remembered. But if voters see the party symbol but do not recognise the candidate's face, there might well be an element of doubt."

The new ballot papers will also be larger to accommodate the photos.

Other changes to the format of the ballot paper include white boxes against a darkened background, and wider gaps between the boxes where voters mark their vote with an "X" to prevent them from checking multiple rows of boxes at once.

Associate Professor Tan Ern Ser said this could help prevent unintentionally spoilt votes.

The ELD also announced the maximum number of posters and banners for each candidate, or group of candidates, in an electoral division.

In a key change, candidates can also place their posters and banners beyond a 50m radius of a polling station, down from 200m. But a designated radius remains so as to minimise undue influence on voters.

"As there has been a significant increase in the number of polling stations to improve voter accessibility, the current 200m prohibition zone has resulted in limited areas for the legitimate display of posters and banners, especially in built-up residential estates," it added.

An ELD spokesman told The Straits Times the number of polling stations will go up by less than 10 per cent, from the 781 polling stations in 2011, in line with the growth of the voter population.

Additional reporting by Walter Sim

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

Public Entertainments and Meetings Act - Public Entertainments and Meetings (Specified Arts Entertainment) (Exemption) (Amendment) Order 2015 (S 476 of 2015)

Latest developments: Pharmaceuticals and healthcare

Business
30 Jun 2015

ADV : Academy Publishing - Latest Publication: Asia-Pacific Arbitration Reporter

Singapore Law Watch
21 Aug 2015
Academy Publishing

Dangerous Fireworks Act - Dangerous Fireworks (Annual Exemption) (Amendment) Notification 2015 (S 475 of 2015)

MERS: Potential charterparty implications

Business
30 Jun 2015

IVF mix-up case now before Court of Appeal

Straits Times
20 Aug 2015
Selina Lum

Woman who had baby girl with stranger's sperm appealing to be awarded upkeep costs

The "difficult" issue of whether the mother of a baby conceived in an in-vitro fertilisation (IVF) sperm mix-up can claim damages for the upkeep of the child was debated before a five-judge Court of Appeal yesterday.

The case, the first of its kind - and "hopefully... the last", in the words of Judge of Appeal Andrew Phang - was adjourned to a later date for further arguments.

It arose from a lawsuit filed in 2012 by a woman, now 39, against Thomson Medical, its fertility centre and two embryologists over a mix-up in sperm samples.

The mistake resulted in her having a baby girl, now four years old, with a stranger's sperm instead of her husband's.

She sought damages for various categories of claims, including for the upkeep of the child, known as Baby P in court proceedings.

They included expenses for basic necessities, education up to the tertiary level and holidays.

Last year, the defendants admitted liability for the 2010 incident.

However, ahead of the assessment of damages, the defendants asked the High Court to give a ruling on the preliminary question of whether Singapore law allows damages to be awarded for the upkeep of a healthy child.

Earlier this year, Justice Choo Han Teck disallowed the claim, noting that there were "cogent policy considerations" against finding liability for upkeep.

"Baby P should not ever have to grow up thinking that her very existence was a mistake," he said.

The woman appealed.

At the appeal yesterday, Chief Justice Sundaresh Menon emphasised that the case had nothing to do with the value of the child, but the "unanticipated consequence that the parents have to deal with, without choice".

Senior Counsel N. Sreenivasan, representing the woman, argued that her loss was the unwanted pregnancy in which she gave birth to a child with a stranger's DNA, when she and her husband had contemplated raising only a child who was biologically their own.

Senior Counsel Lok Vi Ming, representing the defendants, argued that the cost of raising the child was not a loss arising from the defendants' conduct; the woman had wanted a child and contemplated incurring expenses to raise one.

Mr Lok noted that the courts do not recognise damages for the ordinary upkeep of a child, on the basis that the birth of a healthy child was "a blessing".

CJ Menon, however, noted that, at the outset, if the woman was asked if she wanted to raise a child without her husband's genes, she could say "no". But by the time the child was born, she had no choice.

Associate Professor Goh Yihan from the Singapore Management University, who was appointed to give an independent view, said upkeep costs should be awarded in the present case.

He said the defendants owed the woman a duty of care in performing the IVF procedure to fertilise her eggs with her husband's sperm.

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

Public Order Act - Public Order (Exempt Assemblies and Processions) (Amendment) Order 2015 (S 474 of 2015)

MAS Notices revised to facilitate sale of investment funds that make limited use of derivatives

Business
30 Jun 2015

Ex-tour guide has 'arguable case' of gift

Straits Times
20 Aug 2015
K.C. Vijayan

The former tour guide facing a civil lawsuit over his alleged control of a widow's $40 million assets has an "arguable case", a High Court judge has ruled.

Justice Judith Prakash said this in judgment grounds released yesterday, which explain why she ordered the release of Mr Yang Yin's $98,000 insurance policies to help him pay his legal bills."Looking at the events that occurred from 2008 until the end of 2010, I was satisfied that Mr Yang had an arguable case of gift in response to (the rich widow's) claim," she wrote.

But the judge stressed she was not examining the merits of his case or Madam Chung's, adding that "at this stage I am simply looking at the circumstances in the round to ascertain if Mr Yang can put forward an argument.

"Whether this argument succeeds will depend on how the evidence develops at the trial, including in relation to the undue influence contention."

Mr Yang, 44, is being sued for damages by Madam Chung Khin Chun, 88, through her niece Hedy Mok, 61, for allegedly manipulating the former into handing over assets worth an estimated $40 million.

Mr Yang, who met Madam Chung in 2008 while acting as her private tour guide in Beijing, moved into her bungalow the following year and claimed the widow treated him as her "grandson".

In the run-up to the civil suit,the court barred him last August from removing any of his assets or diminishing the value of any of his assets owned or jointly held, either here or abroad. Among these were two life insurance policies worth a total of $98,000.

The freeze meant he was unable to access his bank accounts and in April, Mr Yang, through his lawyer Joseph Liow, proposed to the court to liquidate the insurance policies to pay for his legal costs to fight the case. He had exhausted all means to borrow from family or friends.

Lawyer Peter Doraisamy, representing Madam Mok, opposed the move, arguing that Mr Yang had to show he had no funds of his own to draw and that he had an arguable case to show that the insurance funds, like any of the other assets, belonged to him as they had been paid for by Madam Chung.

Justice Prakash found that Mr Yang's external resources had all dried up and he had no access to funds to conduct his defence.

Mr Yang, currently on remand for criminal charges, had no prospect of "generous lenders" willing to advance money, she noted.

Mr Liow said there was an arguable case that Madam Chung had paid for the insurance policies as a gift to Mr Yang as a symbol of her "love and affection" for him.

Justice Prakash ruled the requirement was for Mr Yang to show he had an arguable case and not that his defence would succeed at trial.

"The strength of his defence that they were gifts to him could conceivably vary from asset to asset," she said, adding that the claim of undue influence on his part might also have to be established in relation to each gift.

The judge added that the case to draw the funds from the insurance policies was stronger compared to other assets, as it was less likely that Madam Chung wanted him to use the cash to look after her. Madam Mok is appealing against the decision.

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

Chung Khin Chun K (by her deputy Mok Chiu Ling Hedy) v Yang Yin and others [2015] SGHC 215

Public Entertainments and Meetings Act - Public Entertainments and Meetings (Exemptions) (Amendment) Order 2015 (S 473 of 2015)

Credit Bureau Regulatory Framework and Credit Bureau Bill: MAS issues response to feedback from consultation paper

Legislation
30 Jun 2015

Lawyers want CPIB included in video-recording pilot programme

Business Times
20 Aug 2015
Claire Huang

[Singapore] CRIMINAL lawyers have called for the Corrupt Practices Investigation Bureau (CPIB) to be included in the pilot programme where investigators will record videos of interviews with suspects when taking statements.

The call follows the Ministry of Home Affairs' (MHA) announcement in late July that the police and the Central Narcotics Bureau (CNB) will test the use of video recordings during investigations in the first quarter of 2016.

The ministry had said it would "involve a limited set of offences and allow for an assessment of the impact on investigations, its effectiveness in different situations and the resources required", before a further decision is made.

Lawyers said the push for such a possibility was mooted several years ago but CPIB has been conspicuously left out of the pilot.

While many have welcomed the move by MHA describing it as a breakthrough, they pointed to high-profile corruption cases involving former CNB chief Ng Boon Gay and ex-law professor Tey Tsun Hang - both of whom were acquitted - where their CPIB statements came under the spotlight.

Sunil Sudheesan, acting president of the Association of Criminal Lawyers Singapore (ACLS), said: "The simple fact remains there have been a large number of cases where the battle in court revolves around the contents of the statements, the method of the recording of the statements, and whether the statements were properly recorded or not to begin with . . . so the general consensus is that video recording will go a long way in trying to stamp out the disputes that arise from the statement recording process."

Wendell Wong, chairman of the Law Society's criminal practice committee (CPC), echoed similar sentiments, pointing out the move will reduce the time spent on unmeritorious challenges to statements that are taken properly.

He added that the CPC would welcome CPIB's inclusion in the pilot project, as statements recorded from suspects or accused persons should be only one component of the body of investigative tools used.

"There should not be an over-reliance on statements from suspects or accused persons alone in any investigation. Video recording of statements will provide an additional safeguard in the due process of investigations and make our system more robust."

In its reply, CPIB said it is "monitoring the developments on the video recording of interviews initiative and will assess if it is suitable for our investigation process after the pilot phase".

Besides wanting to see CPIB in the upcoming pilot programme, the lawyers also want it included in the current criminal case discovery system - meant to help both the prosecution and defence in preparing their cases.

"Corruption cases can be complex and involve numerous documents," said Mr Wong. "Timely disclosure of information and documents by CPIB in trial cases will also allow defence lawyers to examine relevant information and documents to advise their clients whether to proceed with the trial. This can result in considerable time and costs savings for CPIB, the prosecution and the courts."

Mr Sunil said a large percentage of cases now qualify for the criminal case disclosure conference regime and it is only logical that CPIB cases are included as well.

In response, CPIB said: "Under Part IX of the Criminal Procedure Code, certain listed offences are subjected to the criminal case disclosure regime. Offences under the Prevention of Corruption Act are not within this list of offences. The CPIB is currently monitoring how the disclosure procedures operate in respect of those offences investigated by the CPIB that are within the list of offences subjected to criminal case disclosure. The government is also monitoring how well the criminal case disclosure regime works before expanding it to deal with additional offences or categories of offences, such as those in the Prevention of Corruption Act."

In July, MHA said it had been studying the viability of introducing video recording of interviews, together with the Attorney-General's Chambers and the Ministry of Law.

Videos in the pilot programme would "allow the courts to take the interviewee's demeanour into account in determining the admissibility or weight to be accorded to the interviewee's statement", MHA said, adding that this is "part of continuing efforts to uphold" the standards of an effective and fair criminal justice system.

Video recording has been adopted in various territories including Hong Kong, Australia, the United States and the United Kingdom.

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

Public Order Act - Public Order (Unrestricted Area) (Amendment) Order 2015 (S 472 of 2015)

[CHN] China’s tightened control on domain name registration services market

Commonwealth
30 Jun 2015

Mediation: an ideal alternative in healthcare disputes

Business Times
20 Aug 2015
Ronald Ng

IT is a common misconception that patients who sue for medical malpractice are out to punish the doctor, get their money back, or both. While there are certainly a few patients who have financial considerations, studies in the UK and the US suggest that money is often not the main goal. In New Zealand, only 25.6 per cent of complainants filed a compensation claim, according to the journal article "Accountability sought by patients following adverse events from medical care: the New Zealand experience" published in the Canadian Medical Association Journal in 2006.

In fact, many patients just want to have matters explained clearly and to be treated with respect and empathy. In a case I mediated three years ago, all the patient wanted was a simple "sorry" from the doctor to bring closure to the dispute.

Sorry can often be the hardest word to say, however, especially for doctors who are afraid that it will be used against them in court as an admission of guilt. In such cases, doctors and patients should consider mediation, a confidential and informal process where open communication is encouraged and misunderstandings can be put to rest.

Mediation is conducted on a "without prejudice" basis, meaning that anything said in mediation cannot be used as evidence in court. Therefore, both parties are free to express their sincere apologies for any hurt caused without worrying about appearing weak or guilty. This is an important advantage over litigation (a court lawsuit), where parties do not have the luxury of being empathetic towards their opponent, because they need to maintain an adversarial rights-based mindset to defend their case.

Patients who win their lawsuit may remain unsatisfied because they feel that the doctors did not learn their lesson, and that the same thing could happen to other patients.

I once heard an interesting analogy where the medical profession was compared to the aircraft industry. While aircraft safety has improved tremendously in the past 50 years, medical mishaps are still not uncommon. One reason for this is that when an aircraft crashes, or experiences a near miss, there will be an enquiry right away to find out what went wrong. Improving the system to prevent further incidents is their top priority. They have diligently contained the "shame and blame" culture - a culture which often hinders open discussion and investigation - both of which are vital if one wants to find out the cause of the problem.

But in medical mishaps, the "shame and blame" culture is still very much alive. Trying to find a scapegoat is often the top priority. Finding out what actually went wrong in order to prevent future mishaps is unfortunately a secondary goal. Perhaps an increased use of mediation in care disputes will reduce the pressure of finger-pointing and free up doctors and the health system to review their operating procedure.

Lawsuits can be extremely stressful for both patient and doctor. After receiving the lawyer's letter, doctors will start to have self-doubt about their capability and conduct extra tests on their next patient to be doubly sure. With their mind on meetings with lawyers, court submissions and so on, their performance will be affected.

Even if the doctor wins the lawsuit, he or she may suffer reputation damage due to negative media publicity. There are doctors who have gone into depression and given up the profession or even committed suicide.

Mediation is the ideal alternative because it can be arranged within a matter of days, and saves both parties from the extended stress of litigation that could last a year or more. In mediation, doctors learn to communicate better, acknowledge patients' concerns and ensure that patients understand any technical terms that are used. Patients are also more likely to benefit from a frank and open dialogue and get the explanation or apology that they seek.

Medical mediation is slowly picking up and has doubled between 2013 and 2014. Since 2011, the Singapore Mediation Centre has mediated 22 cases with a success rate of 86 per cent. Both doctors and patients can apply for mediation.

More information is available at mediation.com.sg
The writer is a practising haemotologist and a director of Haematology Oncology Pte Ltd. He is also a principal mediator accredited with the Singapore Mediation Centre, as well as an accredited mediator of Regent University, London, and has mediated more than 50 disputes over the past seven years

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


 

Public Entertainments and Meetings Act - Public Entertainments and Meetings (Speakers’ Corner) (Exemption) (Amendment) Order 2015 (S 471 of 2015)

New Singapore custom requirement for keeping & maintaining records in image systems

Business
26 Jun 2015

Don't get so fresh with customers, BreadTalk

Straits Times
20 Aug 2015
Jessica Lim

Singaporeans were horrified by an online photograph that went viral earlier this month, showing a BreadTalk employee filling plastic bottles with Yeo's brand soya milk - and then selling them as "freshly prepared" soya milk for $1.80 a pop.

The drink, sold in sealed 350ml bottles, gave the impression that the drink was homemade, said irate consumers who felt cheated.

Many wondered if BreadTalk, a home-grown bakery chain, had flouted food safety and labelling laws.

Others accused the chain of profiteering: The soya drink came out of one-litre Yeo's cartons they could get at FairPrice for $1.50.

Amid the consumer backlash, the 46-outlet bakery chain pulled the bottled drink off its shelves on the evening of Aug 3, the same day the photograph went viral.

By the next day, it had admitted to The Straits Times that the soya drink was indeed Yeo's and had issued an apology to customers on its Facebook page .

By Aug 5, it came out to defend the quality of its main products - bread and cakes - after consumers started questioning their freshness as well.

The Consumers Association of Singapore (Case) issued BreadTalk a stern warning and is now investigating the chain.

Did BreadTalk do something wrong? And how widespread is such repackaging in the food and beverage industry ?

We spoke with experts to find out.

What exactly did BreadTalk do wrong?

It didn't do anything explicitly unlawful, it seems.

Food regulations here only require pre-packaged food sold to be labelled. This refers to food that is packed in a wrapper or container at a place other than at point of sale.

When such food is repackaged at the point of sale, as in the case of the Yeo's soya milk, they need not be labelled.

It is also not unlawful for the eatery repackaging a food item to rebrand the product as their own.

This might seem shocking to consumers, but is actually common in the food industry.

Seah's Spices, known for its pre-mixed spices for the preparation of bak kut teh (pork rib soup), says it supplies its concoction to an estimated six in 10 major eateries here selling the dish, said its 59-year-old owner Seah Seow Khiang.

Some of his customers, he claims, are famous bak kut teh chains and five-star hotels.

All they need to do is to add 1.5 litres of water per sachet, garlic and pork ribs, he said.

His customers sell the dish as their own, and Seah's Spices agrees to keep mum that they are in fact using Seah's package spices.

It is the same with JR Vending, which prepares frozen meals like hor fun (rice noodles in gravy) and fried rice for vending machines around the island. Their meal boxes from vending machines are priced at up to $5 each, and they also supply them to eateries.

Amongst its customers are high-end hotels that reheat the meals for late-night room service.

JR Vending's chief executive Jocelyn Chng said that their meals are replated, re-heated, garnished, then sold for about four times the price. She declined to name any of her customers.

But as Singapore Polytechnic senior retail lecturer Sarah Lim said, there is nothing wrong with charging a premium for outsourced products as eateries are faced with other costs, including those for rent and labour.

"It depends on demand. If people are willing to buy it at that higher price, that's what eateries will charge them," she said.

BreadTalk's blatant rebottling does not flout food safety laws either. The National Environment Agency typically takes action only if there has been a lapse in hygiene.

No reports have surfaced of anyone falling sick after drinking repackaged BreadTalk soy milk.

The rebottling also took place in a licensed food outlet and was done by Breadtalk staff - licensed food handlers - so no issue there.

Did BreadTalk make a false claim that the drink was "freshly prepared"?

Case's executive director Seah Seng Choon described BreadTalk's claim that the drink was "freshly prepared" as "unacceptable".

"By indicating the words 'freshly prepared' on the bottles, consumers may reasonably be deceived or misled to believe that the soya bean milk was freshly brewed in-house and therefore commands a higher value than Yeo's pre-packed soya bean milk," he told The Straits Times.

This flouted the Consumer Protection (Fair Trading) Act, but Case's hands are tied: It is powerless to do anything now that BreadTalk has stopped the unfair practice.

This is due to the way the consumer watchdog operates. To stop a business from engaging in an unfair practice, it typically issues a Voluntary Compliance Agreement (VCA) on the firm. This would require it to commit to stop the act.

If it persists, Case will then take up an injunction against them.

The company would then be slapped with a court judgment to order them to stop the unfair practice. Ignoring the order would mean acting in contempt of court.

Under the Sale of Food Act, food labelled in a manner that is false or "likely to create an erroneous impression regarding its value, merit or safety" is also not allowed.

Could BreadTalk be taken to task under this Act by the Agri-Food and Veterinary Authority (AVA)?

But then, if the Government chooses to penalise BreadTalk, where does it draw the line?

For example, there are no clear guidelines on how and when to label a food product as "fresh". Many food products in stores are labelled "fresh" but may not be.

It would be hard to justify why BreadTalk should be penalised and not other outlets.

How fresh is fresh?

Look around the local supermarket and the word "fresh" can be seen on items that no layman would typically consider as fresh - that is, newly harvested or just-produced.

Take UHT (Ultra High Treatment) milk. This can be "fresh" as long as the letters UHT are also present somewhere on the carton.

This is despite the fact that the shelf-life for such milk can be as long as 10 months from its manufacturing date.

Sliced canned peaches in syrup are labelled as "fresh cut". Instant udon in plastic packets is also marketed as "fresh" at supermarkets here.

That nasi lemak seller round the corner may also be selling his wares as "fresh" even though he may have bought it from a supplier.

And that "homemade barley" at the local coffee shop is most likely not.

A check with the AVA found that there are no standards for the use of the term "fresh" in food regulations here. There is simply no official definition or guideline.

Other countries pay more attention to detail.

The Food Standards Agency in the United Kingdom, for instance, has a set of best practices for retailers. UHT milk there should not carry the term "fresh".

The US Food and Drug Administration also stipulates that the term "fresh" means that the food is in a raw state and has not been frozen or subjected to any form of thermal processing or preservation.

In Singapore, by contrast, there is no official definition for the word "fresh". But the AVA said that it is generally intended to suggest that the food product is not processed or preserved, or was recently prepared. It might also refer to products that look and smell fresh.

Marketers overseas routinely capitalise on consumers' desire for "fresh" food produce.

What is marketed in stores as "baby carrots" are not young, fresh carrots. They are actually made from deformed and crooked big carrots. These ugly carrots are then cut to remove unwieldy parts, then put through a machine to smoothen them out.

And that blueberry pancake mix? Chances are, it does not contain even a trace of blueberry, but

rather palm oil, cellulose gum and blue dye.

The way forward

When news broke about BreadTalk's soya bean drink, consumers called for a tightening of labelling laws here.

In general, it is true that neither Case nor the Government can be expected to constantly ferret out unethical behaviour.

Marketers will always find loopholes to exploit.

Guidelines should be provided on how the word "fresh" should be used on food products here.

There should be regulations for the use of the word on food packaging. The Government can then apply the law with a light touch.

Ultimately, the onus should be on food operators to conduct an honest business. The law may allow the purchase of soya milk from one vendor and its repackaging, rebranding and sale at a higher price by another. And currently, the word "fresh" may be free for all.

The issue is not whether such actions are legal, but whether they are ethical. Consumers want to give their custom to companies that value them, not exploit them.

An ethical business does not look at ways to mislead customers to raise profits. It asks: Will my decision be considered fair by my customers and others affected?

If BreadTalk had asked itself that question before trying to get fresh with customers over soya milk, its answer, one hopes, would have been "No".

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

Public Order Act - Public Order (National Day Parade 2015) Notification 2015 (S 470 of 2015)

Companies (Amendment) Act 2014: Summary of amendments

Legislation
26 Jun 2015

Advertisers must be able to back up claims: Forum

Straits Times
20 Aug 2015

As pointed out by Dr Michael Loh Toon Seng ("Look into 'fast money' ads"; last Saturday), under the Singapore Code of Advertising Practice (Scap), all advertisements should be legal, decent, truthful and honest.

In addition, all claims made in advertisements should be capable of substantiation.

Upon receiving feedback about a misleading advertisement, the Advertising Standards Authority of Singapore (ASAS) may call upon the advertiser to provide documentary evidence for its claims. If it fails to do so, it will be required to modify or withdraw its advertisement.

Should the advertiser fail to comply with ASAS' requirements, it may have advertising space withheld by media owners and have its trading and business privileges revoked. In addition, it risks the sanction of negative publicity.

ASAS has observed an increase in the type of advertisements seen by Dr Loh.

Hence, we have updated Appendix J of Scap, which pertains to the advertising of investments, properties and investment-related services.

The new guidelines took effect on Aug 12, and they minimise the scope for advertisers to make claims that are speculative, misleading or incapable of substantiation.

We thank Dr Loh for his feedback and invite him to write to us with more details about the advertisements that he encountered.

Tan Sze Wee (Dr)

Chairman

Advertising Standards Authority of Singapore

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

Public Order Act - Public Order (National Day Parade 2015) Declaration 2015 (S 469 of 2015)

MAS proposes to exempt Remote Clearing Members of Singapore-based central clearing counterparties from requirement to hold CMS licence

Business
26 Jun 2015

ADV: Kaplan - Obtain a mostly assignment-based top-up business with law degree in 8 month

Singapore Law Watch
20 Aug 2015
Kaplan

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 40) Notification 2015 (S 468 of 2015)

Financial Advisers (Amendment) Bill 2015 and Insurance (Amendment) Bill 2015: Implementing FAIR recommendations and inspections by foreign regulatory authorities

Legislation
25 Jun 2015

'Not all cases need written grounds for judgment'

Straits Times
19 Aug 2015
K.C. Vijayan

A woman's bid to have written grounds issued for an interim judgment in her lawsuit was dismissed by the apex court, which said the court did not have a duty to issue written judgments in every case.

"There is no duty to provide reasons, let alone written judgments in all cases," wrote Judge of Appeal Chao Hick Tin, citing routine pre-trial applications such as Ms Jeanne-Marie Ten's as prime examples where the general duty to provide reasons does not apply.

Ms Ten, 44, had sued the National University of Singapore (NUS), alleging it had wrongfully terminated her candidature for the degree of Master of Arts in Architecture in 2006, a claim NUS is contesting.

In pursuit of her case, she had applied to the High Court for access to certain documents between NUS and MOE - known as a discovery application - to support her case.

An assistant registrar (AR) ruled in 2013 that most of the documents she sought were unnecessary or irrelevant, while others were privileged. She then appealed last year to a High Court judge, who dismissed her move and refused her leave to appeal further.

So she filed a fresh suit seeking a court order for the judge to issue the grounds on why he had refused her discovery appeal. When the judge dismissed her suit, she appealed to the apex court - the first reported case of a litigant seeking a court order for written judgment grounds to be issued.

Drew & Napier lawyer Chia Voon Jiet defending NUS opposed her, arguing that Ms Ten was using the appeal to seek a complete rehearing of the discovery application, among other things.

The Court of Appeal, comprising Judges of Appeal Chao and Andrew Phang and Justice Quentin Loh, ruled the answer to her appeal must be "an emphatic 'no'".

It said Ms Ten's application involved neither complex nor novel concepts and, as such, the duty to provide reasons did not apply here.

Justice Chao said the "operative concern" was whether she had been apprised of the reasons for which her discovery application had failed. The court noted that the assistant registrar had gone through each category of the documents she sought, detailing his reasons before dismissing her application.

Her dissatisfaction related to the merits of the proceedings - "not that she did not know why the judge had ruled the way he did".

The court said she should have focused her efforts on the main case instead of this side issue. She was ordered to pay $6,000 costs.

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

Ten Leu Jiun Jeanne-Marie v National University of Singapore [2015] SGCA 41

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 39) Notification 2015 (S 467 of 2015)

The point at which the right to access counsel arises

Legislation
25 Jun 2015

Rajah & Tann to offer 'insourcing service'

Straits Times
19 Aug 2015
Rachel Boon

Law firm Rajah & Tann Singapore yesterday launched a service matching experienced lawyers with firms needing in-house freelancers. The firm calls it a "flexible insourcing service" helping firms that need in-house counsel on short-term contracts and project-specific work.

R&T Asia Resources, a unit of Rajah & Tann Singapore, will get professionals with relevant legal qualifications and experience on board.

These lawyers, including Rajah & Tann alumni, are those who "can work during high demand periods or on projects where specialist skills are needed". They will work in clients' offices for a set period.

R&T Asia Resources wants to bank on a growing trend among Singaporeans working part-time.

Its director Ryan Loh noted an increasing trend of lawyers who want to work fewer than five days a week, specified hours during the workday, or at home.

The Manpower Ministry labour force report last year showed 10.5 per cent of the resident workforce, or 220,200 people, were part-time workers. This was well up from 2008 when 6.8 per cent, or 126,800, were part-timers.

Mr Loh said some lawyers prefer to work full-time for fixed periods, and pursue non-work interests in between those stints.

R&T Asia Resources will help manage these assignments and be the direct contact point for the clients. The clients' lawyers can also tap a full suite of legal services of legal alliance Rajah & Tann Asia's offices across South-east Asia.

Rajah & Tann Singapore managing partner Lee Eng Beng added: "This service will help our clients contain legal costs and control headcount when they need additional in-house legal support during peak periods or when there is an ongoing complex project."

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 38) Notification 2015 (S 466 of 2015)

[SWE] Dual-institution provision in arbitration agreements and the principle of effective interpretation

Commonwealth
25 Jun 2015

Bill to regulate human biomedical research passed

Straits Times
19 Aug 2015
Salma Khalik

A Bill to protect people whose body tissues are used for research was given the nod in Parliament yesterday. It sets out what researchers can and must do, and the penalties for failing to adhere to the rules. The fines are of up to $100,000 and the maximum jail term is 10 years.

The Human Biomedical Research Bill, however, did not get the support of the Workers' Party (WP). Seven of its nine MPs abstained from voting. The remaining two - Aljunied GRC's Ms Sylvia Lim and Mr Chen Show Mao - were absent during the vote.

The WP's reason is that its call for a Select Committee to "holistically scrutinise the clauses that confer significant powers to various entities" was not taken up.

Mr Pritam Singh (Aljunied GRC), one of six MPs who spoke on the Bill, had made the call during the debate. He argued that the Bill "gives complete latitude to the minister to change the parameters and scope of biomedical research" without further debate in Parliament.

He said this makes "Parliament little more than a mere rubber stamp with regard to human biomedical research in Singapore".

Replying, Minister of State for Health Lam Pin Min said the Bill's purpose is to "ensure the safety and welfare of research subjects whilst not stifling sound, ethical research". But the regulations may be calibrated according to the level of risks of the research, with additional restrictions imposed if it is sensitive or controversial, he added.

He also said the Health Minister can impose more controls, but cannot "expand the scope of what is regulated under the Bill, which can only be done by Parliament".

Dr Lam also addressed concerns raised by three doctor-MPs involved in research. Associate Professor Fatimah Lateef (Marine Parade GRC) wanted paperwork to be kept to a minimum. Dr Lam promised that where possible, "electronic or other innovative solutions" would be used.

Dr Chia Shi-Lu (Tanjong Pagar GRC) asked if donors could share in the profits if the research results were commercialised. No, said Dr Lam, as all donations must be voluntary and altruistic.

Nominated MP Benedict Tan asked if leftover specimens from treating a patient can be used for research. Yes, Dr Lam said, if these were no longer needed and the patient gave consent.

Non-constituency MP Lina Chiam asked about the use of "great apes'' in such research. Dr Lam said the Health Ministry consulted widely on the Bill and "recognised that the greater the possibility of 'humanisation' of the animal, the greater the need for restrictions".

Dr Lam thanked Ms Ellen Lee (Sembawang GRC) who, speaking in Mandarin, said "the goal of human biomedical research is ultimately to help all of us achieve healthier and happier lives".

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

Road Traffic Act - Road Traffic (Motor Vehicles, Quota System) (Amendment) Rules 2015 (S 465 of 2015)

SCA affirms the principle of temporary finality in construction arbitrations

Judgments
24 Jun 2015

Time to consider good Samaritan law: Forum

Straits Times
19 Aug 2015

Mr Ho Hoe Theng has called for more comprehensive legislation to protect good Samaritans ("Do more to protect good Samaritans"; yesterday).

In common law, a good Samaritan doctrine is a legal principle that prevents a rescuer who has voluntarily helped a victim in distress from being successfully sued for wrongdoing.

Its purpose is to keep people from being reluctant to help a stranger in need for fear of legal repercussions should they make some mistake in rescue or treatment.

In 2008 and 2012, MP Fatimah Lateef raised the issue of introducing a good Samaritan law, but was turned down each time.

In Singapore, there are usually no major liability concerns for good Samaritans. Civil liability will not attach to a good Samaritan who acts out of necessity and with the care that can reasonably be expected of a person having his skill and experience. As for criminal liability, this requires malign intent and will not attach to a good Samaritan who acts in good faith.

A few years ago, two joggers rescued a man from a suicide attempt at Bedok Reservoir.

Should one of the rescuers have died in his effort, could his wife have sued the latter for putting her husband in a precarious situation that resulted in his death?

Good Samaritan legislation was initially directed towards doctors who came upon an ailing victim outside of the hospital setting. In such a setting, medical equipment would be severely limited and sanitary conditions not on a par with those found in a hospital.

Thus, the purpose underlying good Samaritan legislation was to encourage providers to render medical treatment to those who otherwise would not receive it.

California passed its good Samaritan law in 1959 and the rest of the US states eventually followed.

I hope the Government will review the need for a good Samaritan law here, to encourage would-be rescuers who would otherwise choose not to help for fear of being sued should something unexpected happen.

Heng Cho Choon

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

Pension Fund Act - Pension Fund (Prescribed Superannuation Schemes) (Amendment) Regulations 2015 (S 464 of 2015)

MAS publishes framework for domestic systemically important banks (D-SIBs) in Singapore

Business
24 Jun 2015

Doctor ‘couldn’t have molested patient with others present’

TODAY
19 Aug 2015

Alleged victim’s girlfriend among the people present during a liposuction procedure, says lawyer

SINGAPORE — A lawyer argued yesterday that his client, a medical doctor, could not have molested a patient during a liposuction procedure because there were several others, including the patient’s girlfriend, present at that time.

Mr Edmond Pereira said this on the first day of Tan Kok Leong’s trial at the State Courts.

Tan, 49, faces five charges of drugging and molesting a patient, who is also a doctor. Three charges are for using criminal force in outrage of the victim’s modesty and two are for drugging the patient.

The alleged victim cannot be named to protect his identity.

The court heard that Tan, a specialist in aesthetic medicine and a partner at Life Source Medical Practice in Sinaran Drive, had performed liposuction procedures on the alleged victim on two occasions in 2013.

Tan is accused of using criminal force in outrage of the patient’s modesty during the first procedure on June 6 that year.

A second procedure was carried out on July 5 the same year, after which Tan allegedly told the same patient that he could recuperate in a room at the Oasia Hotel, a few minutes away from the clinic, that had been booked.

At 11pm that evening, Tan allegedly administered a painkiller, Rosiden, and sleeping pill, Dormicum, to the victim intravenously.

He then allegedly pulled down the patient’s shorts and took lewd photos of him.

During the pair’s overnight stay at the hotel, Tan allegedly administered the same drugs to the patient again.

The doctor is said to have taken photos of the victim’s private parts once more.

On July 7, the men spent a day in Johor Baru together, then checked out of Oasia Hotel the following day, court documents said.

Tan did not show his alleged victim any photographs he is said to have taken.

Yesterday, Tan’s lawyer argued that it was impossible that his client had molested the victim during the first liposuction procedure because several other doctors — including the victim’s girlfriend, who is also a doctor — were present.

During the hearing, the investigating officer testified that he had gone to Tan’s clinic to inform him of a report made against him by the patient.

While Tan was giving his statement at the police station, the patient repeatedly called and sent messages to Tan asking for a lunch date, said the officer.

He added that he did not allow the doctor to respond to the patient’s attempts to contact him, in accordance with procedures.

The officer also said Tan’s phone was seized after the interview.

The trial continues. The maximum penalty for molestation is two years’ jail, a fine and caning.

The maximum punishment for administering a stupefying drug is 10 years’ jail, a fine or caning.

Copyright 2015 MediaCorp Pte Ltd | All Rights Reserved

Pawnbrokers Act 2015 - Pawnbrokers (Class Waivers) Rules 2015 (S 463 of 2015)

IRAS updates on FATCA filing deadline for Reporting Year 2014

Business
23 Jun 2015

ADV: LexisNexis - Comprehensive update on the law and practice of GST in Singapore

Singapore Law Watch
19 Aug 2015
LexisNexis

Medical and Elderly Care Endowment Schemes Act - Medical and Elderly Care Endowment Schemes (Medifund Committees) (Amendment No. 10) Order 2015 (S 462 of 2015)

SHC: Clarity in effecting service outside of jurisdiction

Judgments
23 Jun 2015

ADV: LexisNexis - Evidence and the Litigation Process

Singapore Law Watch
19 Aug 2015
LexisNexis

Medical and Elderly Care Endowment Schemes Act - Medical and Elderly Care Endowment Schemes (Approved Institutions) (Amendment No. 3) Notification 2015 (S 461 of 2015)

Transfer of intellectual property — some quick tips

Business
23 Jun 2015

Changes to regulate payslips and employment terms

Straits Times
18 Aug 2015
Joanna Seow

Workers here will now have more safeguards in place should disputes about their pay or job scope crop up. Employers who do not issue itemised payslips or spell out key employment terms in writing for their workers can be fined under changes to a law which were passed yesterday.

The amendments by the Ministry of Manpower (MOM) to the Employment Act - Singapore's main labour law - come into effect on April 1 next year.

Besides making employment terms more transparent, the changes include treating less severe infringements of the law as civil offences, which may attract a financial penalty but not a criminal record. "This process is more appropriate for these types of administrative breaches, and prevents companies from being penalised too heavily, especially SMEs," said Manpower Minister Lim Swee Say, referring to small and medium-sized enterprises, which employ more than two-thirds of the workforce.

Four areas will be covered:

• Failure to issue itemised payslips;
• Failure to issue key employment terms, such as working arrangements, main duties and fixed salary deductions, in writing;
• Failure to maintain detailed employment records; and
• Provision of inaccurate information to the Commissioner for Labour or inspecting officers without intending to defraud and mislead.

Employers can be fined from $100 to $200 an employee or occurrence, and asked to rectify breaches. Failure to comply will become a criminal offence.

The amendments will "prevent misunderstandings and minimise disputes" between employers and employees, said Mr Lim.

MOM had announced the changes last year to give employers time to adjust, and there will also be a one-year grace period from April next year to end-March 2017.

Under the amendments, MOM also clarified that the employer will have to pay staff holiday rates or give them a day-off if they have to work on non-scheduled public holidays declared by the Government. Labour MP Patrick Tay (Nee Soon GRC), one of six MPs who spoke in support of the changes, said well-kept employee records would minimise long legal tussles and money spent, while Mr Zainudin Nordin (Bishan-Toa Payoh GRC) said that without proper employment contracts, employers may take advantage of this situation in disputes.

Labour MP Zainal Sapari (Pasir Ris-Punggol GRC) said the amendments would help low-wage workers who may not know that they should request payslips and employment terms for their protection. "The likelihood of these workers being short-changed by their employers is very high," he said.

Non-Constituency MP Lina Chiam raised the concern that while the payslip rule "is one step forward towards accountability, it may not be sufficient enough to stem out abuses". Unscrupulous employers may simply ask workers for cashbacks for mistakes made, she said. Nominated MP Thomas Chua said small businesses often need employees to help out in other areas. Mr Lim replied that employers can set a broad job scope at the start of employment but should reach an agreement with staff on any changes later on.

NMP Randolph Tan, a labour economist, said the amendments are good for business, too - they improve human resource management standards so that the country's economic advances are not held back.

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

Medical and Elderly Care Endowment Schemes Act - Medical and Elderly Care Endowment Schemes (Approved Institutions) (Amendment No. 2) Notification 2015 (S 460 of 2015)

State Lands Act and Land Acquisition Act amended: Facilitating use and development of underground space

Legislation
23 Jun 2015

Society should be more forgiving of bankrupts

Straits Times
18 Aug 2015
Simon Chesterman

Bankruptcy may be a financial failure, but recent changes to the law show that it need not be regarded as a moral failure also.

Not long ago, a staff member at an organisation in Singapore told her boss that she was resigning. As she was a productive employee and had seemed happy, her supervisor inquired as to her reasons: Was it a better job; problems at work?

Eventually, she disclosed that the reason was that her husband had just been declared bankrupt and she did not want to bring the organisation into disrepute.

Last month saw amendments to Singapore's Bankruptcy Act that raise the threshold for entering bankruptcy and make it easier for those declared bankrupt to discharge their obligations.

The changes to the law are a sensible rebalancing of the interests of debtors, creditors and society as a whole. But whether they will alter the moral stigma associated with bankruptcy is another question entirely.

When I lived in New York, one of the things that struck me while riding on the subway was the number of people talking about "Chapter 11".

At first, I thought it was a literary reference - frustrated writers working on a particularly difficult part of their first novel, perhaps.

But in the United States Bankruptcy Code, Chapter 11 offers individuals or businesses that cannot pay their debts protection so that they can reorganise themselves. In the aftermath of the dot.com bubble, it was reasonably common for companies and individuals to avail themselves of such protection.

The US has always had a more forgiving attitude towards debt than many other countries. Though it inherited debtors' prisons from England, the notion of a bankruptcy regime that was more forgiving soon came to be identified as a political as much as a financial cause. Indeed, some historians have argued that the American Revolution was itself essentially a form of debt relief, freeing the new country from its debts to the old.

By the mid-19th century, the French historian Alexis de Tocqueville remarked on the "strange indulgence which is shown to bankrupts" in the US.

But he linked it to the boldness of enterprise that he also documented, in which fortunes were lost and regained while the state continued to prosper. Such an appetite for risk can lead, of course, to the excesses of Wall Street and the global financial crisis. But at the individual level, we should consider whether bankruptcy is a financial failure as well as a moral one.

CURBING THE LENDERS, NOT JUST BORROWERS

The purpose of bankruptcy is, in part, to allow for the orderly resolution of debts. That means holding debtors accountable - but not at all costs.

In ancient Greece, people who could not pay their debts could be forced into debt bondage or slavery, to work off their debts through labour. Their families often joined them.

Such practices are now prohibited by international law, in particular the 1956 Supplementary Convention on the Abolition of Slavery. Nevertheless, an estimated 21 million people are still engaged in forced labour, according to the International Labour Organisation.

As for debtors' prisons, today they are known to most people only through the novels of Charles Dickens, whose father spent time in the Marshalsea in South London, providing the setting for his novel, Little Dorrit.

They remain a reality in countries such as the United Arab Emirates, though even there the laws were relaxed somewhat last year.

Bankruptcy is a disincentive against borrowing more than you ought to, or paying back less than you can. But it need not ruin your life. As Senior Minister of State for Law Indranee Rajah said during her second reading speech of the recent amendments, it should be possible for a bankrupt to make a fresh start after a reasonable period of time.

This is not simply a question of forgiveness. Moderating the cost of bankruptcy is also intended to encourage entrepreneurship and risk-taking. In this way, it is similar to the idea of limited liability in corporate law. Unless individuals can manage their exposure, or pick themselves up after a failure, they may be less likely to launch a new start-up - or if they do and it does not succeed, it will be their last.

As Professor John Armour and Professor Douglas Cumming have shown in their paper Bankruptcy Law And Entrepreneurship, there is a statistically and economically significant link between the relative forgivingness of personal bankruptcy laws and self-employment rates across 15 countries in Europe and North America. Not all risk-taking is socially useful, of course. A recent paper by colleagues at the National University of Singapore Business School suggests that men are more likely than women to file for bankruptcy. But they found that both men and women who have filed for bankruptcy are also more likely to have motor accidents. Risk-taking entrepreneurs are a net positive; reckless debtors are not.

For that reason, the changes to the legislation are also intended to deter over-extension of credit by banks and other lenders. This is an area in which the US still has much to learn. The housing bubble that played a key role in the 2007 global financial crisis was encouraged by lenders offering credit to high-risk borrowers at ever more generous terms. In 2006, almost half of first-time home buyers purchased their homes with "no-money-down" loans - requiring no initial payment, but risking their home being worth less than the money they owed on it.

Simplifying bankruptcy puts at least some of the onus on creditors, forcing them to be more prudent when making loans in the first place.

OPTION OF LAST RESORT

Bankruptcy is and should remain an option of last resort. It brings with it significant restrictions on one's ability to travel, obtain credit, or manage a business. As the Ministry of Law website warns, it may also cause "difficulties in looking for a job". In Singapore, it also precludes one from holding or taking up public office.

But it should not be a torment without end. The new law allows first-time bankrupts to be discharged in three to seven years, providing more certainty than the prior regime - though this is still far longer than the automatic discharge regime in England and Wales, which kicks in at 12 months.

In addition, those who pay their target contributions in full can have their names expunged from the record five years later.

In this way, the law now provides the opportunity for a fresh start. But it remains to be seen whether the social stigma of bankruptcy will be as forgiving.

As for the woman who had offered to resign to insulate the organisation from the shame of her bankrupt husband, she was persuaded to stay.

• The writer is Dean of the National University of Singapore Faculty of Law.


Background Story

Those who pay their target contributions in full can have their names expunged from the record five years later. In this way, the law now provides the opportunity for a fresh start. But it remains to be seen whether the social stigma of bankruptcy will be as forgiving.

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

Medical and Elderly Care Endowment Schemes Act - Medical and Elderly Care Endowment Schemes (Approved Institutions) (No. 12) Notification 2015 (S 459 of 2015)

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Judgments
19 Jun 2015

Bill to fight organised crime passed

Straits Times
18 Aug 2015
Danson Cheong

Law allows for syndicates' ill-gotten gains to be confiscated without criminal conviction

The courts will soon have the power to confiscate ill-gotten gains of criminal syndicates - even without a criminal conviction - after a Bill to combat organised crime was passed yesterday.

Second Minister for Home Affairs S. Iswaran said in Parliament that the Organised Crime Bill gives law enforcement "additional levers" to act against the masterminds of organised criminal groups (OCGs).

"They are the ones who instruct and intimidate others into criminal acts, yet are most shielded from enforcement," said Mr Iswaran during the Bill's second reading.

An OCG is defined as three or more people involved in serious crimes - such as drug trafficking and money laundering - for the purpose of material or financial benefit. One of the key "levers" of the Bill is a civil confiscation regime, which allows the public prosecutor to apply to the High Court for confiscation of material gains from activities of these OCGs - even without a criminal conviction.

The public prosecutor has to prove on a "balance of probabilities" that an individual has committed the crimes. This means that if it can be shown that the crime most probably took place, the courts can confiscate the benefits.

Such a move requires a lower burden of proof than a criminal conviction, where guilt must be proven beyond reasonable doubt.

This confiscation regime is similar to one already in place for serious offences such as drug trafficking and corruption.

Mr Iswaran said this would "diminish the incentive and the resources for persons to carry out organised crime activities. This is the ultimate objective of the civil confiscation regime".

The public prosecutor would also be able to apply for three different preventive orders - concerning organised crime prevention, financial reporting and disqualification.

An Organised Crime Prevention Order will allow the court to restrict the activities and electronically monitor the movements of a suspect for up to five years. A Financial Reporting Order will require a suspect to furnish the authorities with financial reports, which can last for his term of imprisonment plus five years. Both can be issued without a conviction.

A Disqualification Order can only be issued following a conviction, and bars the accused from acting as a director of a company.

Yesterday, two MPs - Mr Hri Kumar Nair (Bishan-Toa Payoh GRC) and Mr Alvin Yeo (Chua Chu Kang GRC) - rose in support of the Bill, but questioned if there were sufficient safeguards to ensure the non-conviction orders would not unfairly penalise suspects who were in fact innocent. "There is a higher chance that a mistake may be made under a non-conviction regime because of the lower standard of proof," said Mr Nair.

Mr Yeo noted that the civil confiscation provisions in fact reversed the burden of proof, requiring a subject to "prove the legitimacy of his property". "In other words, any property which is disproportionate to the subject's known sources of income, and which he cannot explain to the court's satisfaction is presumed to be the benefits of organised crime," he said.

In response to Mr Nair, Mr Iswaran said that subjects would be able to defend themselves in court against the issuance of such orders.

"There is also provision for appeals to the Court of Appeal," the minister said.

Mr Iswaran assured Mr Yeo that the civil confiscation would be used "judiciously", adding that "a confiscation order is therefore not made simply on the grounds that defendant cannot explain the origins of his wealth. We first have to establish the predicate offence on the balance of probabilities".

He emphasised that the new provisions were modelled after those in other jurisdictions including the United Kingdom and New Zealand, and have been shown to be effective. "The experiences of these countries have shown that such tools are effective and necessary to prevent and disrupt organised crime."


NO MORE HIDING

They are the ones who instruct and intimidate others into criminal acts, yet are most shielded from enforcement.

SECOND MINISTER FOR HOME AFFAIRS S. ISWARAN, on organised crime outfits

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

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'Membership fee' riles online shopper

Straits Times
17 Aug 2015
Jessica Lim

Customer charged additional $88 for set of drumsticks on sale for $16.40

A few days after avid online shopper Smith Leong bought a set of drumsticks - priced at $16.40 - from e-commerce site StreetDeal, he was shocked to see a separate $88 charge on his credit card bill.

"I thought I might have accidentally bought something else so I quickly logged on to my StreetDeal account, and checked all my invoices and e-mail. Nothing in the history showed that I had made any other purchase," said the self-employed 31-year-old, who bought the drumsticks last month.

When he contacted the homegrown firm, he was told the extra charge was a premium membership fee, and that it had been outlined clearly during the purchasing process and in the terms and conditions.

"I felt cheated," said Mr Leong, adding that he was refunded the $88 in credit for future purchases after numerous angry e-mail messages back and forth with the firm. "But I would rather just have my money back."

The Consumers Association of Singapore (Case) has received 49 complaints against StreetDeal since January last year, more than double the 24 in 2012 and 2013.

Most of the cases are about hidden membership fees - either a one-time charge or in instalments.

Case is investigating the matter. It said the firm could be flouting the Consumer Protection (Fair Trading) Act (CPFTA). Under this Act, it is an unfair practice to use small print to conceal a material fact from a consumer, said Case executive director Seah Seng Choon.

"We feel that it is unfair for StreetDeal to charge consumers for premium membership fees if the consumers did not explicitly state that they want to sign up for this membership, and this could be a misleading claim under the CPFTA," he said.

When contacted, Mr Gregory Costamagna, StreetDeal's chief executive, said the company has received some complaints from customers who claimed it was unclear that they were signing up for a membership. However, they made up only 1 to 2 per cent of its premium members here, he said.

At the checkout page, shoppers need to agree to be charged the membership fee, said Mr Costamagna. When they make payment, they are shown only the amount for the items purchased. The membership fee is excluded because shoppers are given a two-day free premium membership trial before they are charged, he said.

"If they want to cancel before the free trial, they can do so. And once we charge customers two days later, we send them another e-mail to tell them about the charge," said Mr Costamagna, adding that customers will get a refund in credit if they want one.

Launched in 2010, StreetDeal has as many as 10,000 premium members in Singapore. Premium members return to the site to shop three times more than regular members, said Mr Costamagna.

StreetDeal also operates in countries such as Malaysia, Thailand, the Philippines and Australia.

But Mr Leong thinks that there is a need for more clarity.

"Yes, I did miss the part where I was told I was going to have to pay $88. But it should be reflected as part of charges and I should receive an invoice," he said.

Mr Een Yuan Long, 27, also missed the part where he was told to pay the membership fee. He bought a $7 dust cover for clothes and was charged the $88 fee too.

"It's very cheeky," said the corporate trainer. "I was so angry about it because it wasn't obvious that I was being signed up for any membership. It was only apparent to me when the bill came."

Ms Vera Ong, 29, was charged $9.90 a month for three months on her credit card for membership. She called StreetDeal and the charges were halted, but she did not receive any refund, she said.

"Sure, it is my responsibility to read the terms and conditions but surely they should have proper forms for us to sign and fill out for subscriptions," said Ms Ong, who is self-employed. "If not, any business can make us pay subscription fees without our knowing."


NEED FOR CLARITY

We feel that it is unfair for StreetDeal to charge consumers for premium membership fees if the consumers did not explicitly state that they want to sign up for this membership...

MR SEAH SENG CHOON, executive director of Case

FREE TRIAL

If they want to cancel before the free trial, they can do so. And once we charge customers two days later, we send them another e-mail to tell them about the charge.

MR GREGORY COSTAMAGNA, StreetDeal's chief executive, adding that customers will get a refund in credit if they want one


 

Case gets fewer complaints against hair salons

Complaints against hair salons have fallen significantly, but some customers are still getting burnt.

In the first six months of this year, the Consumers Association of Singapore (Case) received 24 complaints, fewer than a quarter of the 115 complaints filed in the whole of last year. The