01 June 2016
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Cache dragged into C&P's dispute with Schenker

Business Times
01 Jun 2016
Cai Haoxiang

[Singapore] WAREHOUSE owner Cache Logistics Trust has been dragged into a dispute between a master-lessee and its tenant at a megahub logistics property over lease renewal at a pre-agreed rental rate.

The property at 51 Alps Avenue was master-leased to C&P Land under a master lease agreement expiring on Aug 31, 2016.

ARA-CWT Trust Management (Cache), the trust manager of Cache, said that Schenker Singapore is the end-user occupying the property under a June 2005 lease agreement between Bax Global and C&P, which was subsequently novated to Schenker in November 2009. This anchor lease agreement also expires on Aug 31.

The property - Schenker Megahub - is the largest freight and logistics property located at the Airport Logistics Park of Singapore beside Changi Airport. It was valued at S$116.8 million at end-2015.

The crux of the spat is that Schenker, a German logistics company, wants to exercise its option to renew its anchor lease for another five years, at a rental rate pre-agreed between C&P and Schenker when the original anchor lease agreement was entered into on June 8, 2005. The pre-agreed rental rate is understood to be below the current market rental rate. But C&P said Schenker does not have a valid option to renew.

The manager of Cache said it has received a summons from Schenker seeking a declaration that the anchor lease agreement is binding upon itself and Cache trustee HSBC Institutional Trust Services (Singapore).

Schenker is also seeking an order that the trustee and the manager seek consent from national industrial landlord JTC Corporation on the anchor lease renewal, or alternatively an order that C&P, the trustee and the manager jointly seek consent from JTC for the lease renewal.

Cache said it "intends to vigorously defend itself in this action" on the basis that it is not a party to the anchor lease agreement, and the dispute is between C&P and Schenker.

Cache said it is prepared to renew C&P's master lease, but C&P has not responded on the renewal.

If C&P does not renew, or deliver vacant possession of the property after the lease expires at end-August, Cache plans to claim against C&P for double the amount of the rent payable under the master lease agreement for the period C&P is still holding on to the property after the lease expires, or damages arising from Schenker remaining on the property.

Property consultant Knight Frank has been appointed to value the property based on the rental in Schenker's renewal of its anchor lease.

If the court rules that Schenker's anchor lease is binding on Cache and Schenker has validly exercised its option to renew its lease, among other things, the pro forma net tangible asset value of Cache would be S$0.83 instead of S$0.88. Distribution per unit for the first quarter ended March 31 would have also dropped to 1.89 cents, from 2.039 cents.

Cache last traded at S$0.865 on Tuesday, up half a cent.

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Quek Kwee Kee Victoria (executrix of the estate of Quek Kiat Siong, deceased) and another v American International Assurance Co Ltd and another - [2016] SGHC 47

Public Entertainments and Meetings (Amendment) Act 2014 - Public Entertainments and Meetings (Amendment) Act 2014 (Commencement) Notification 2016 (s 87 of 2016)

Technics files for judicial management

Straits Times
01 Jun 2016
Rachel Boon

Offshore solution provider Technics Oil & Gas and a key subsidiary filed for judicial management yesterday, in a move that will hit minority shareholders hard.

The firm and its unit, Technics Offshore Engineering, announced through a filing on the Singapore Exchange (SGX) that they have each applied to the High Court of Singapore for the order.

The firm also asked for a trading halt yesterday, at seven cents per share.

They have nominated Mr Chia Soo Hien and Mr Leow Quek Shiong of audit firm BDO as the judicial managers to manage their affairs, business and property.

This is necessary for "the survival of the company and the said subsidiary", said the firm, and "a more advantageous realisation" of their assets than it would be winding up.

Earlier last month, Technics Oil & Gas said Technics Offshore Engineering had received two writs of summons, from former director Ting Tiong Ching and Hup Seng Offshore Engineering.

Mr Ting is seeking the repayment of loans of about $1.933 million, and interest accrued and legal costs from the unit.

Hup Seng Offshore Engineering, a firm controlled by Mr Ting's relatives, is demanding repayment of loans of $3 million plus interest and legal costs.

Technics Oil & Gas had previously said it has been advised that its subsidiary "has a good defence", and has engaged its legal counsel to "vigorously defend the action".

The firm has been caught up in legal woes recently. Last week, it was reported that landlord Soilbuild Reit called on an $11.8 million bank guarantee - about 18 months' rent for the second-year lease of Technics Oil & Gas' premises at 72, Loyang Way - and it failed to restrain the call.

The firm had also filed a writ of summons and injunction against the Reit, after legal action claiming rent and other charges, plus late interest payment up to May.

Last Friday, shares of Technics Oil & Gas slumped 17.6 per cent to seven cents, and earlier plunged to 5.8 cents in morning trade, which triggered a trading query from the SGX.

The firm replied that it was not aware of any other possible explanation for the trading.

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Lee Mui Yeng v Ng Tong Yoo - [2016] SGHC 46

Public Transport Council Act - Public Transport Council (Ticket Payment Service Licence) (Exemption) (Amendment) Order 2016 (S 86 of 2016)

Former China tour guide convicted of 120 charges

Straits Times
01 Jun 2016
Carolyn Khew

The former China tour guide at the centre of a dispute over the assets of a wealthy widow was yesterday convicted of 120 charges, mainly for falsifying receipts to his company and immigration offences.

Yang Yin, 42, pleaded guilty after an interpreter read out the charges to him in Mandarin. With his head slightly bowed, he looked expressionless as all 120 charges were read out in court.

A total of 110 charges were for the falsification of receipts made to his company, Young Music and Dance Studio. The firm was formed so he could move here. The rest were for immigration and cheating offences, as well as for breaking Companies Act laws.

Deputy Public Prosecutor Nicholas Tan asked the court yesterday for the rest of the 227 charges to be taken into consideration for sentencing.

Yang, who has been in remand since October 2014, will appear in court again at the end of this month for two criminal breach of trust charges brought against him.

The prosecution has alleged that he misappropriated $1.1 million from wealthy widow Chung Khin Chun, 89. The widow, who has no children, was diagnosed with dementia in 2014.

The mitigation and submissions for sentencing over the 120 charges have been adjourned to July 11, after Yang's lawyer made the request so that this would not prejudice the later hearing.

Carolyn Khew


Yang Yin weaved web of lies to secure S'pore PR: DPP

It was in 2009 when former China tour guide Yang Yin moved in to live with wealthy widow Chung Khin Chun that he wanted to obtain permanent residency and, ultimately, Singapore citizenship.

But this was not because he desired to look after Madam Chung, who had no children. He did so only to benefit himself and his family, Deputy Public Prosecutor Nicholas Tan told the court yesterday.

"The accused told CAD (Commercial Affairs Department) that he did this because he desired to look after Madam Chung. This was not borne out by investigations," he said.

Yang, 42, yesterday pleaded guilty to a total of 120 charges, mostly of falsifying receipts made to his company. The other charges were for cheating, immigration offences and breaking Companies Act laws.

He admitted to falsifying 110 receipts amounting to $186,900 from October 2009 to July 2014. Another 227 charges would be taken into consideration for sentencing.

Yang met Madam Chung, now 89, in 2008 while acting as her private tour guide during a Beijing trip. A year later, he moved in to live with her in her Gerald Crescent bungalow here, which is worth an estimated $30 million.

To get an Employment Pass (EP) and permanent resident (PR) status, Yang set up Young Music and Dance Studio (YMDS) in 2009, with the help of Rikvin, a corporate service provider. The Chinese national was told he had to earn around $5,000 a month for a higher chance of getting PR status here.

As setting up the company required at least one director who is a resident in Singapore, he approached his acquaintance, Ms Brenda Yeo, a Singaporean who was musically trained. Yang lied and told her that he could liaise with music schools in China and bring students to Singapore for the business.

After months of not hearing from Yang, Ms Yeo decided she did not want to be part of the firm anymore. At Yang's request, Rikvin then arranged for Madam Chung to replace her as a director.

"The accused's plan all along was to create the false appearance that... (he) was earning a substantial income from YMDS, to support his application for an EP, and subsequently PR status in Singapore," said DPP Tan. "It was never his plan that YMDS would operate a real business. Neither Rikvin nor Brenda were aware of this at the time."

By lying to the authorities that he was working and drawing a monthly salary of $7,000 for being the firm's managing director, among other things, Yang managed to obtain his PR status in 2011. He built upon this to get a long-term visit pass for his wife Weng Yandan in October 2013.

"ICA (Immigration and Checkpoints Authority) has confirmed that the accused would not have been granted PR status if it had known that any of the abovementioned statements were false," said DPP Tan. If Yang had not been working or not earning any pay at the time, he would not even have satisfied the minimum eligibility criteria for an S Pass or EP, let alone for PR status, he added.

Yang also had plans to fraudulently obtain Singapore citizenship by making similar false statements to the immigration authorities.

He still faces two criminal breach of trust charges for allegedly misappropriating $1.1 million from Madam Chung. Yesterday, Yang's lawyer, Mr Wee Pan Lee, asked for sentencing to be pushed back until after the criminal breach of trust charges are heard this month. Deciding on the sentence before that may cause prejudice in the later hearing, he said.

Deputy Presiding Judge of the State Courts Jennifer Marie granted the application yesterday, and said the mitigation and submissions for sentencing will be heard on July 11.

Madam Hedy Mok, Madam Chung's niece, was at yesterday's hearing with a friend, but Madam Chung did not attend. Speaking to reporters after Yang was convicted, Madam Mok said: "Of course I'm happy. We'll see what happens later."

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Caesarstone Sdot-Yam Ltd v Ceramiche Caesar SpA - [2016] SGHC 45

Immigration Act - Immigration (Exemption from Singapore Visa) (Amendment) Order 2016 (S 85 of 2016)

Ex-property agent jailed, fined $100k over bribery

Straits Times
01 Jun 2016
Elena Chong

A former property agent who gave a total of $100,000 in bribes to a senior manager of a development firm, to get priority access to a property launch, was sentenced to 12 weeks' jail and fined a total of $100,000 yesterday.

Goh Chan Chong, 40, was convicted in February of giving two sums of $50,000 to United Engineers Developments' then senior manager Suhaimi Amin for invitation cards to the launch of The Rochester in North Buona Vista in 2007.

Goh, now unemployed, is appealing against both conviction and sentence, and is on $45,000 bail. He has an outstanding third charge scheduled for a pre-trial conference.

Mr Suhaimi, 53, had been fined $60,000 after he admitted to one of two counts of corruptly receiving $50,000 from Goh. He repaid Goh in May 2008 even before he made a police report.

The court was told that Goh asked Mr Suhaimi for invitation cards. Besides giving him VIP cards, Mr Suhaimi added Goh's name and those of his associates to the VVIP guest list.

On July 16, 2007, Goh and his nine associates, including his mother, brothers, wife and mother-in-law, obtained options to purchase for 10 units. They later bought eight, six of which were sold at higher prices.

A few weeks later, to reward Mr Suhaimi, Goh gave him $50,000 at a roti prata shop. He later gave him another $50,000 at the same shop.

Yesterday, Deputy Public Prosecutor Kelvin Kow noted the large amount of criminal benefits - from $1.1 million to $1.69 million - realised, and the fact that Goh and his girlfriend still retain two units.

Goh, who was initially defended by Mr Peter Low, denied giving bribes to Mr Suhaimi. He suggested that Mr Suhaimi lied as he wanted to "exact revenge". But the prosecution argued that Mr Suhaimi had no reason to implicate himself.

Defence lawyer Raymond Lye, who took over Goh's case after conviction and mitigated on his behalf, urged District Judge Luke Tan to impose a fine while DPP Kow argued for five to six months' jail plus a $100,000 fine. The maximum penalty for corruption is a $100,000 fine and five years' jail.

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The “Bunga Melati 5” - [2016] SGCA 20

Law Soc: Rules of Court (Amendment) Rules 2016

Law Society

Certain documents mentioned in this notice are accessible only by Law Society Members with their user ID and password via The Law Society of Singapore website.

Rules of Court (Amendment) Rules 2016

The Rules Committee has approved a set of amendments to the Rules of Court ('amendment Rules'). The amendment Rules have been gazetted electronically on 25 May 2016 at 5pm. Rule 8 of the amendment Rules is deemed to have taken effect on 18 November 2015 while the remaining amendment Rules will take effect on 1 June 2016.

A summary of the amendment Rules is provided below:

a. Order 69A, rule 2(4) is amended to track the language in Article 34(3) of the Model Law more closely.

b. Order 70 is amended to clarify that the Court has the power to award non-contractual pre-judgment interest to plaintiffs applying for judgment in default of appearance in an admiralty in rem action.

c. Consequential amendments are made to Order 89A relating to the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A), Order 89B relating to the Mutual Assistance in Criminal Matters Act (Cap. 190A), Order 89E relating to the Terrorism (Suppression of Financing Act) (Cap. 325) and Form 210 in Appendix A to the Rules of Court entitled 'Search Warrant under Section 34 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A)'.

d. Order 94 is amended to widen the scope of the Monetary Authority of Singapore’s obligations in the discovery of documents relating to civil penalty claims under the Securities and Futures Act (Cap. 289).

e. Consequential amendments are made to Order 110 in light of the repeal of section 130N of the Legal Profession Act (Cap. 161) and insertion of a new section 36E into the same Act, with effect from 18 November 2015.

f. Forms 251 and 252 in Appendix A to the Rules of Court entitled 'Notice of Counsel' and 'Notice of Change/Appointment of Counsel' respectively are amended to require the notices to specify (a) whether an advocate and solicitor appointed as counsel for proceedings in the Singapore International Commercial Court, or in an appeal from that Court, is or is not registered under section 36E of the Legal Profession Act; and (b) the type of law practice in which the advocate and solicitor practises.

Please click here to view the Rules of Court (Amendment) Rules 2016.

Maid gets 18 years' jail for killing employer

Straits Times
01 Jun 2016
Rachel Chia

She claims she was hit by boss and retaliated by attacking and drowning her in bungalow's pool

An Indonesian domestic helper who said she was hit by her employer retaliated by swinging the 69-year-old woman's head against a wall and then drowning her in the bungalow's swimming pool.

Indonesian Dewi Sukowati, 20, pleaded guilty and was sentenced to 18 years' jail yesterday for culpable homicide not amounting to murder.

The court heard that at about 7.30am on March 19, 2014, Dewi - then 18 - had taken a glass of water on a tray to socialite and porcelain artist Nancy Gan Wan Geok at her home in Victoria Park Road. It was her sixth day at work.

According to the statement of facts of the case, Madam Gan was upset that the glass was served on the wrong type of tray. She then splashed the water on Dewi's face and threw the tray on the floor.

When Dewi bent down to pick up the tray, Madam Gan snatched it from her and hit her on the head with it.

She also scolded the teenager - whose age at the time of the arrest was reported as 23, the minimum age for foreign domestic workers to work in Singapore - and threatened to cut her salary to $200.

Dewi snapped, grabbing Madam Gan's hair and swinging her head against the wall with all her strength. The back of Madam Gan's head hit the wall and she lost consciousness, bleeding profusely from her wound.

Frightened, Dewi stayed where she was and spent 10 minutes collecting her thoughts.

She then placed her ear on Madam Gan's chest to check if she was still breathing, and heard a weak heartbeat.

Worried that Madam Gan would call the police if she woke up, Dewi decided to drown her employer. She dragged Madam Gan by the hair towards the swimming pool.

Along the way, she recalled Madam Gan's daily scoldings and felt angry again. She slammed Madam Gan's head on the edge of a ceramic-tiled step, causing more blood to flow out.

She then grabbed Madam Gan by her pyjamas and dragged her across more steps, causing the older woman's head to hit multiple steps on the way down.

On reaching the pool, Dewi pushed Madam Gan in face down.

She returned to Madam Gan's room and took a pair of her sandals, which she threw into the pool to create the impression that Madam Gan had committed suicide.

After cleaning all the blood in the house and changing into a fresh set of clothes, Dewi went to the neighbour's house to ring the doorbell. On the way, she met a dispatch rider riding past and asked him to help her, saying her employer was in the swimming pool. The man called the police.

Madam Gan, a mother of two who was formerly married to former Hong Kong Legislative Council politician Hilton Cheong-leen, was an accomplished pianist and a well-known porcelain painter who regularly donated her works to raise funds for charity.

The autopsy report certified the cause of her death as "drowning contributed by contused brain due to a fractured skull".

The pathologist also said the injuries "were sufficient" to cause death. If Madam Gan had not been thrown into the pool, she "would have died from her head injuries".

In the first of four psychiatric reports, dated May 2014, Dr Kenneth Koh from the Institute of Mental Health assessed Dewi to be "not of unsound mind at the time of the offence and fit to plead".

In a later report, in January last year, Dr Koh found that Dewi suffered from abnormality of the mind at the time of the offence, which "significantly impaired her judgment, impulse control and mental responsibility".

Then, in a report less than three months later, he diagnosed her with acute stress reaction, "which arose from a disease of mind". In his last report last month, he said she was likely to be free from any mental disorder, and that her psychiatric prognosis was good.

He said her "dangerousness" would be best assessed after observation over a few years.

Deputy Public Prosecutor Chee Min Ping said Dewi had committed the offence with deliberation and tried to cover her tracks.

For her offence, Dewi could have been jailed for life and fined.


The autopsy report certified the cause of Madam Gan's death as "drowning contributed by contused brain due to a fractured skull". The pathologist also said the injuries "were sufficient" to cause death. If Madam Gan had not been thrown into the pool, she "would have died from her head injuries".

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

Hewlett-Packard Singapore (Sales) Pte Ltd v Chin Shu Hwa Corinna - [2016] SGCA 19

State Ct RC No 2 of 2016 - Case docketing system for complex criminal cases

State Courts

Acra to roll out new training programme for corporate service providers

Business Times
01 Jun 2016
Melissa Tan

[Singapore] THE local corporate regulator has taken further steps to prevent financial crime in Singapore, in the wake of a massive data leak on offshore trusts from Panama-based law firm Mossack Fonseca that has claimed political scalps in countries such as Iceland.

The Accounting and Corporate Regulatory Authority (Acra) will soon require corporate service providers (CSPs) in Singapore to undergo a new training programme aimed at reducing their vulnerability to "illicit activities such as money laundering and terrorism financing", it said in a press release on Tuesday.

Its move came about a year after it rolled out a strengthened regulatory framework for CSPs in line with recommendations issued by the Financial Action Task Force, a body that sets global standards to fight money laundering and terrorism financing.

Acra chief executive Kenneth Yap announced the initiative in a speech to more than 400 CSPs on Tuesday at the inaugural CSP Conference at the Raffles City Convention Centre, the authority said.

Mr Yap said in his speech that there was "mounting global concern" over the possible abuse of financial systems and services for tax evasion, money laundering and terrorism financing. He added that CSPs, "who service a significant proportion of corporate clients here, are very much the first line of defence in the fight against such illicit movements of money".

"Continuing education is vital to upholding standards of the industry, providing practical knowledge to filing agents on how to discharge their professional duties, as well as apprising them of latest developments in the sector," he added, according to Acra's statement.

Separately, Acra also said on Tuesday that it would soon issue its first set of "interpretations" of how specific legislative provisions are to be applied in practice, adding that this would "help to provide practical solutions for non-contentious issues facing lawyers and corporate service providers without the need to clarify the law through litigation in court".

"One such interpretation relates to the amalgamation of foreign companies which Acra has already facilitated on a case-by-case basis for three foreign companies that have since amalgamated successfully," it said.

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

Heament Kurian v Lian Foo Kuan David - [2016] SGHC 43

Law Soc: Family Justice Courts - Hearing break in June 2016

Family Justice Courts
Hearing break in June 2016 

The Family Courts will be having a one-week long hearing break in June 2016 from Monday, 20 June 2016 to Friday, 24 June 2016.

The Youth Court, Mentions Courts, Duty Judge's chambers and frontline service counters will remain in operation.

Lawyer apologises to court for 'baseless' allegations

Straits Times
31 May 2016
Ng Huiwen

Lawyer Alfred Dodwell issued a written letter of apology to the Supreme Court yesterday for "baseless" allegations he made against the court following the execution of murderer Kho Jabing.

He did so after the Attorney-General's Chambers (AGC) pointed out to him that certain allegations he had made were in contempt of court and entirely untrue, an AGC spokesman said.

On May 21, the managing director of law firm Dodwell & Co LLC had written on his personal Facebook page: "If we invoke the supreme law of the land, the courts should not wave it away to hurry towards execution.

"It's a pity that we have the DPP (deputy public prosecutor) saying so and the judges saying so."

He also wrote: "Same judge sitting on most of the hearing and a challenge to his own ruling is mounted and expecting a different result is never gonna happen."

A day before, Kho, a Malaysian, was executed for bludgeoning a foreign worker with a tree branch while robbing him in 2008.

Mr Dodwell was among three lawyers who had launched multiple last-minute appeals in a bid to delay Kho's execution.

On the morning of the execution, the apex court had heard arguments from Mr Dodwell and lawyer Jeannette Chong-Aruldoss, who each filed a civil application against Kho's death sentence, which was a criminal matter.

Judge of Appeal Chao Hick Tin called the lawyers' actions "an abuse of the process of the court".

In his letter to Supreme Court Registrar Vincent Hoong yesterday, Mr Dodwell said he accepted that the allegations made in his Facebook post were "completely baseless and misleading, and in contempt of court".

He added: "I also accept that the allegations did not constitute fair criticism, and have scandalised the court."

He withdrew the allegations and apologised "unreservedly" to Judges of Appeal Chao and Andrew Phang Boon Leong, as well as the other judges of the Supreme Court. The apology was made public on his Facebook page.

Contempt of court is a serious offence that undermines the administration of justice, said the AGC spokesman. "It is an even more serious transgression when it emanates from an officer of the court, a practising lawyer."

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

Alvin Nicholas Nathan v Raffles Assets (Singapore) Pte Ltd - [2016] SGCA 18

SLA: Practice Circular No. 1 of 2016 - Incorrect entry of mortgagee’s name in instruments

Ex-tour guide ready to plead guilty, but disputes facts of case

Straits Times
31 May 2016
Toh Yong Chuan & Carolyn Khew

Yang Yin ready to admit to duping the authorities into granting him permanent residency here

The former China tour guide at the centre of a dispute over the assets of a wealthy widow appeared in court yesterday, ready to admit to duping the authorities into granting him permanent residency here.

But before he pleads guilty, Yang Yin, 42, is disputing a sentence in the statement of facts, or the prosecution's written account of what happened. The sentence was not disclosed in court.

The dispute emerged yesterday on the first day of the trial of Yang, who is facing 347 charges related to immigration offences and falsification of receipts.

The court was adjourned twice yesterday for his lawyer Wee Pan Lee and the Attorney-General's Chambers to negotiate the statement of facts. "It looks like we are on track for pleading guilty," Mr Wee told Deputy Presiding Judge of the State Courts Jennifer Marie.

Yang was arrested in September 2014 and charged a month later with a slew of offences, mostly falsifying receipts made to his company, Young Dance and Music Studio, so he can stay in Singapore. Yang, who has been in remand since October 2014 after he was denied bail, also faces charges for cheating as well as breaking Companies Act laws.

His most serious offences, however, are two criminal breach of trust charges over allegedly misappropriating $1.1 million from wealthy widow Chung Khin Chun. These will be heard next month and in July.

The high-profile case was first reported in 2014 when Madam Hedy Mok, the niece of the widow, commenced a series of legal actions against Yang in the High Court.

Yang got to know the 89-year-old widow when he acted as her private tour guide during a trip to Beijing in 2008. In 2014, Madam Chung was diagnosed with dementia.

Yang appeared in court yesterday in a purple remand uniform and had neatly trimmed hair.

Deputy Public Prosecutor Nicholas Tan said that if Mr Wee and Yang are not prepared to accept the statement of facts without qualification, then the case will have to go to trial.

The prosecution has lined up 11 witnesses if the case goes to trial. Five were present yesterday. The hearing continues today.


Ex-tour guide Yang Yin tries to approach widow and her niece in court

He has not been seen or heard in public for almost two years since he was locked away in Changi Prison.

When former China tour guide Yang Yin was led into the courtroom yesterday morning, he was wearing purple overalls with the label "prisoner" on his back.

His hair was neatly cropped and his hands and legs were in chains.

"He seemed to have lost weight," said Madam Chang Phie Chin, a family friend of widow Chung Khin Chun, 89, who was in court.

Yang, 42, was standing trial yesterday for allegedly duping the authorities into granting him permanent residency. He has also been charged with falsifying receipts and stealing $1.1 million from Madam Chung.

Madam Hedy Mok, the widow's niece, has also sued him for allegedly manipulating the widow to control her assets, estimated to be worth $40 million.

Yang looked tense as he was led into the courtroom through a side door. He scanned the room for familiar faces and in the barely filled public gallery, he spotted two - Madam Chung and Madam Mok.

He tried to make eye contact and shuffled towards them, but Madam Mok waved him off and court marshals led him away. It was the first time in nearly two years that Yang and Madam Chung had seen each other.

Yang stood solemnly in the dock as his lawyer Wee Pan Lee was rapped by Deputy Presiding Judge of the State Courts Jennifer Marie for being late. Mr Wee apologised for being late and said he had to go for another pre-trial conference in the morning.

Mr Wee said Yang was prepared to plead guilty, but the lawyer asked for a short break to study the statement of facts that the prosecution gave him less than two weeks ago.

But the judge wanted to hear from Yang directly that he was prepared to plead guilty.

A female court interpreter whispered the judge's instruction to Yang and replied in English on his behalf: "I confirm, your Honour."

When Yang returned to the court after a one-hour break, he saw Madam Chung and Madam Mok again.

He walked towards them but was pulled away by court marshals. Losing his composure, he shouted at them in Mandarin: "Reflect on what you have done!"

Madam Mok held the arm of her elderly aunt and waved Yang away. They left after the morning hearing and did not return for the afternoon session.

Before leaving, Madam Chung was asked how she felt about seeing Yang. "I don't feel anything. I don't know what to think," she said.

Meanwhile, the tussle between Yang and the widow over her will looks set to continue.

In 2010, Madam Chung made a will in which Yang stood to inherit everything. But in April last year, the courts recognised a new statutory will that Madam Mok made on behalf of her aunt, under which most of the assets would go to charity.

Yang appealed on grounds of a procedural failure as the judge had denied his lawyers the chance to cross-examine witnesses who gave evidence to support the application for the new will.

The appeal was dismissed last month but Yang made a court application to be allowed to appeal again. A closed-door hearing was held last Friday, with the names of the parties unusually redacted from the High Court's public hearing list.

When contacted, the lawyers for Yang and Madam Mok declined to comment.

The Straits Times understands that the application was unsuccessful but the law allows Yang a final shot to take the appeal to the Court of Appeal.

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

Ong Wui Teck v Ong Wui Swoon - [2016] SGHC 42

Law Soc: Qualification to practise as sole proprietor, partner or director in a Singapore law practice

Law Society

Qualification to practise as sole proprietor, partner or director in a Singapore law practice

No solicitor may practise as a sole proprietor, partner, or director (includes associate director) of a Singapore law practice unless the requirements set out in section 75C Legal Profession Act are complied with.

Under section 75C Legal Profession Act, before you may practise as a sole proprietor, partner, or director (includes associate director) of a Singapore law practice, you must fulfil the following requirements:

• You must have completed the Law Society's mandatory Legal Practice Management Course ('LPMC') (ref: section 75C(1)(a) Legal Profession Act)

• You must have been in practice for at least 3 years (either 3 continuous years or 3 out of 5 continuous years) as a solicitor in private practice or employed as a legal officer in the Singapore Legal Service (ref: section 75C(1)(b) and (c) Legal Profession Act) unless you were admitted as a solicitor before 1 March 1997.

However, section 75C Legal Profession Act does not apply to an advocate and solicitor who has been in practice as a sole proprietor or partner or director of a law practice before 9 March 2007.

If you meet the above requirements and there is a change in your designation (e.g. promotion) in the course of the practice year, you are required to submit a 'Notice of Change of Particulars' through eLitigation. The Notice of Change of Particulars can only be submitted through the eLitigation account of the individual lawyer. If you do not have an eLitigation account, you may approach the Service Bureau for assistance, subject to payment of applicable fees and charges. Please refer to the Supreme Court's step-by-step guide on submitting a Notice of Change of Particulars.

Do Keppel and SembMarine need to raise Sete Brasil provisions?

Business Times
31 May 2016
Tan Hwee Hwee

THE US$221 million lawsuit filed by US-based fund house EIG Investment in Washington is widely seen as the start of a series of litigation that companies in the US would be pursuing against Petrobras as they seek protection from the long arms of the Federal Corrupt Practices Act to recover their investments in Brazil.

Keppel Offshore and Marine and Sembcorp Marine - as the named yards in the now bankrupt Sete Brasil's rig building contracts - could inadvertently be drawn into the ensuing legal battles. This after EIG reportedly added Brazil's engineering conglomerate Odebrecht SA and a few other shipyards - including Keppel Corp and SembMarine - as defendants in its suit. Sete Brasil is the rig-owning arm of Petrobras.

EIG was said to have alleged in its filing that Petrobras, along with the other named parties, misled the investment firm to invest over US$221 million of equity in Sete Brasil and that "through a series of misrepresentations and omissions directed at EIG, Petrobas fraudulently procured the funds' investment..."

Market watchers view the addition of defendants by EIG as a move to seek all possible means to recover its investment in Sete Brasil.

Along with mounting legal costs relating to Sete Brasil litigation, the latest development has renewed market talk on whether the two yard groups have made adequate provisions for their contracts with the troubled Brazilian rig owner. Observers are also not ruling out the possibility of the yards being named in more lawsuits from US-based investors in similar shoes as EIG.

In statements issued to The Business Times, Keppel and SembMarine said they have not been served claims relating to EIG's lawsuit.

Keppel and SembMarine may also be running up legal costs going after Sete Brasil and its seven subsidiaries responsible for placing the US$10 billion rig building orders with the two yard groups.

Suppliers such as Keppel and SembMarine are usually second in line after employees in staking claims over the assets of an entity being liquidated although this may be subject to the jurisdiction and the actual terms of the said contracts, IHS Principal Researcher Ang Ding Li said.

Lawsuits aside, the two yard groups may also seek redress from renegotiating for some rigs to be delivered to Brazil with a new chief executive Pedro Parente at Petrobras.

But analysts argued the chances are that Petrobras is unlikely to honour the terms of the combined US$10 billion in value of contracts Sete Brasil and its subsidiaries had signed with Keppel and SembMarine for the delivery of 13 ultra deep-water (UDW) rigs.

Mr Parente will have to align himself with Brazil's interim president Michel Temer, who is standing in for his now suspended predecessor Dilma Rousseff. The anti-corruption probe that strangled Sete Brasil's finances had been politically engineered to impeach Ms Rouseff's government. This being so, the incoming Brazilian administration will not like to be seen as endorsing what Ms Rouseff has done. Mr Parente and Mr Temer would therefore need strong justification to approve Sete Brasil's contracts, Maybank Kim Eng opined.

These would not be forthcoming considering the depressed state of the offshore drilling market. Icarus Consultants' Ian Craven believes Petrobras will at most take six of the 13 UDW rigs and even so, the Brazilian national oil company will want to cut the term charters from the 15-year tenure promised to Sete Brasil.

"Petrobras will surely want to lower the charter rates ... from the contracted US$530,000, (considering) a recent transaction saw rigs similar to the Sete Brasil units contracted at US$195,000," Mr Craven said. This would not bode well for Keppel or SembMarine given any new entity taking the place of Sete Brasil may seek heavy discounts in order to take delivery of any of the UDW rigs.

Keppel and SembMarine may wish to turn to the resale market if suitable terms cannot be agreed on for the Sete Brasil's UDW rigs. But the two yard groups would be hard pressed to go down this road given the latest transacted price for a UDW rig was US$65 million for a five-year-old Schahin drillship, the Cerrado, which was sold to a business interest of Greek owner George Economou. Some may argue that the Cerrado sale that was pegged to one-tenth of its rig-building price is a one-off deal that can hardly apply as a benchmark for distressed sales of UDW assets.

Yet, the completed Sete Brasil UDW rigs will have to join an extending queue of distressed drilling floaters that are up for sale. Mr Craven named seven UDW rigs, including Keppel's Can Do! Drillship, that are in the resale market. Six of these seven rigs that are either completed or in advanced stages of construction, are being built to more advanced technical specifications compared to the Sete Brasil units, the consultant said.

Citing data from analysts, he also flags the possibility of more UDW rigs joining the resale market, with 19 more units being built without contracts on hand. This is not least taking into consideration a build-up in the supply glut in the UDW segment as deep-water drilling activity slowed to a crawl. Mr Craven estimated 44 competitive UDW rigs are warm-stacked, 28 are cold-stacked and seven that are contracted are on standby instead of working in the field.

But Mr Ang from IHS argued that the resale option may still appeal to the yards so long as they can cover the total cost incurred so far in constructing the rigs. The biggest cost components of a rig building contract are manpower and equipment, which make up more than 70 per cent of the newbuild cost, according to Mr Ang.

Before Keppel and SembMarine can offer the Sete Brasil rigs for resale, the rig building contracts have to be terminated by either or both sides in order for the two yards to legally take ownership over the UDW rigs, one industry veteran said.

BT understands that the terms of a typical rig building contract would also call for the yards to refund some, if not all, downpayments from their clients especially on rigs that have not commenced construction.

According to a January 2016 Nomura analyst report, Keppel may have received US$1.4 billion and SembMarine another US$1.89 billion for the Sete UDW rigs that are under construction as of the end of 2014. A separately published interview with Keppel's group chief executive Loh Chin Hua confirmed Keppel has received 10 per cent in downpayments for three Sete Brasil rigs that are not in advanced stages of construction.

Keppel and SembMarine had announced provisions of S$230 million and S$329 million respectively for the Sete Brasil rig building contracts. Each of the two yard groups has two to three UDW rigs that are at least 60 per cent completed, according to Nomura in January this year.

Keppel had said at the time of making the Sete Brasil provision in Q4 FY15 that "it was made after (assessing) the situation including the construction progress, the amounts received, what is outstanding and the amounts (owed) to the vendors".

At its Q1 FY16 results briefing prior to Sete Brasil's bankruptcy announcement, Keppel further added: "We will continue to monitor the situation. For now, the provision remains adequate."

Whether Keppel and SembMarine would make further provisions for their respective Sete Brasil contracts remains to be seen. The second-quarter results briefings could probably shed more light on this matter.

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

Rahman Lutfar v Scanpile Constructors Pte Ltd and another - [2016] SGHC 41

SILE: Online application for 2016 Session 2 Part A Bar Examinations

Singapore Institute of Legal Education (“SILE”)
Opening of online application for 2016 Session 2 Part A Bar Examinations

Online application for 2016 Session 2 of Part A Bar Examinations is now open. Interested applicants should read the Guide to Application Process for 2016 Session 2 Part A Bar Examinations before submitting their online application. The online application period is from 25 April 2016 (10am) – 28 May 2016 (5pm) and supporting documents must reach the Singapore Institute of Legal Education (the “Institute”) within 14 days upon completion and submission of the online application or by 5:00pm on 3 June 2016 (whichever is earlier).

To find out more about 2016 Session 2 Part A Bar Examinations and its application processes, please visit the Institute’s website. If you have any queries on the Examinations, please visit the Institute’s FAQ webpage. If the FAQs do not provide a reply to your query, please email your query to PartA.enquiries@sile.edu.sg.

Separate roles of regulator, operator of stock exchange: Forum

Straits Times
31 May 2016

Mr Lawrence Loh Kiah Muan's letter ("List of ailing firms not enough to protect shareholders"; May 23) brings back the old concern of many market commentators that the role of the regulator and the operator of the stock exchange should be separate.

This is an obvious conflict of interest that the Singapore Exchange (SGX) cannot resolve.

The fact that this proposal has not been adopted after so many years tells me that the authority might have some difficulty in implementing it.

So, I suggest a compromise - that the listing committee be formed by independent members who hold no fear or favour for the profitability of SGX. This committee should be refreshed for every initial public offering. Members appointed should have experience in the field of the company holding the IPO.

Mr Loh also observed that "of the 20 firms that have been suspended from trading, more than half are China-based".

This implies that in addition to industry knowledge, the independent appointees need to have knowledge and experience of the local market where the companies are based.

I have not invested in any S-chip because of my work experience in China and India. These markets are very different, and the businessmen there have a very different mentality from those in Singapore.

We cannot adequately protect our retail investors if we continue the current procedures that invite problems even before the company is listed.

If the regulator has problems getting qualified independent appointees for the committee, I suggest that it looks to the many retired professionals, managers, executives and technicians, who have years of experience behind them and who lost any potential conflict of interest after retiring from active involvement in business.

Geoffrey Kung

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

Petroships Investment Pte Ltd v Wealthplus Pte Ltd and others and another matter - [2016] SGCA 17

Sup Ct RC No 2 of 2016 - Appointment of Senior Assistant Registrar

Supreme Court

Nike manager colluded with design firm to cheat company

Straits Times
31 May 2016
Elena Chong

A Nike manager arranged with the owner of a design and installation services firm called D3 - which was doing work for Nike - to inflate her claims from the sports goods maker.

This was to cover unauthorised personal expenses incurred by her and two colleagues at Nike.

Between 2012 and 2014, Joanne Cheong Sook Yin submitted 154 inflated invoices from D3 to Nike, which then paid out $77,546 more than it should have.

She has made full restitution.

Yesterday, the 36-year-old was jailed for five months after admitting to 22 charges of using inflated D3 invoices to deceive Nike. Another 132 charges were considered.

Deputy Public Prosecutor Norman Yew said that since 2011, Nike had been engaging D3 to attach three external temporary workers to Nike to work on its projects.

D3 could make reimbursement claims from Nike for expenses incurred by the three workers in the course of their work at Nike, as well as for their salaries.

D3 would submit the claims and invoices to Cheong, who would then submit them to the finance department.

Cheong was aware then that Nike's employees were not allowed to make claims through D3.

Some time in 2012, she decided to make illegitimate claims from Nike, for herself and two colleagues, through inflated D3 invoices.

These reimbursements would cover personal expenses that did not relate to work.

After collating receipts for the expenses incurred by herself and two colleagues, she gave them to D3's owner, Ms Anne Gan Chai Bee.

Ms Gan would inflate the firm's invoices by including the amounts in the receipts from Cheong and her two colleagues.

After Nike disbursed the funds to D3, money would be given Cheong and her colleagues.

The offences were uncovered after the Corrupt Practices Investigation Bureau received a tip-off from someone who heard from one of Cheong's two Nike colleagues that Cheong had a dubious arrangement with Ms Gan.

Cheong, represented by Mr S. Balamurugan, could have been fined up to $100,000 and jailed for up to five years for each charge.

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

Asnah Bte Ab Rahman v Li Jianlin - [2016] SGCA 16

Sup Ct RC No 1 of 2016 - Re-appointment of Vice-President of Court of Appeal

Supreme Court

Making decisions as a board: minimising circular resolutions

Business Times
30 May 2016
Ng Wai King

No reason why a board can't meet, even urgently, to discuss a vital issue

GIVEN the push to enhance corporate governance standards, non-executive directors are spending more time than ever to better understand the issues that affect the company's business. Indeed, they are generally expected to attend board meetings at least every quarter, sometimes every two months. This is in addition to their commitment to committee meetings. Collectively, this adds up to a significant amount of time and resources, especially if the company is actively engaged in corporate transactions.

In this context, to expect directors to meet on every decision is not reasonable, especially where it is administrative in nature. For instance, where the board may have already discussed and formed a preliminary view on a decision pending confirmation of certain facts by management, a further meeting may be unnecessary if the subsequent information addresses the earlier concerns and does not change the preliminary view.

For this reason, the practice of using written resolutions occurs in almost all publicly listed or private companies.

However, for several reasons outlined below, it is nevertheless important that they be used sparingly and only if it is absolutely appropriate - such as for routine matters that cannot wait till the next board meeting, or matters that the board is already aware of, and it is merely a case of getting the final formal approval for, say, annual accounts.

More to the point, the Code of Corporate Governance requires the board to meet regularly and as warranted by particular circumstances, while the SID's Statement of Good Practice No 7 on "the roles, duties and responsibilities of the independent director" encourages independent directors to regularly attend board meetings.

The case against written resolutions

The concerns about circular written resolutions occupy several dimensions.

For starters, it is incontrovertible that corporate governance standards can be maintained only if directors come together regularly. If physical attendance is not possible, particularly where the matter is sudden and urgent and many directors are not available, many companies now permit the use of telephone or video conferencing.

Secondly, there is a very real risk that the written resolution "disguises" issues about which management wants to avoid discussion or scrutiny. For that reason, directors should never shy away from asking for a board meeting or, at the very least, a briefing paper whenever they are faced with a circular resolution that they feel deserves closer consideration or more detailed deliberation. In fact, good practice requires the circular resolution be accompanied with detailed background information and that the resolution be tabled for noting at the very next board meeting.

The third point to make is that there may be circumstances where the board should reconvene if, in the absence of important missing information, it cannot reach an informed decision. A subsequent board meeting enables directors to voice their supporting or dissenting views for the benefit of other board members. Such robust discussion, which can never take place through the mere circulation of written resolutions, lends itself to better corporate governance at the board level.

The mechanics of signing off on a written resolution

Above all, the board needs to understand why and when it will allow a decision to be made by written resolution, instead of having a prior, full and frank discussion of the issues.

In this regard, some companies require all directors to sign off on a written resolution before it takes effect. Others may only require a simple majority of directors, while some older companies stipulate that only directors who are present in Singapore are eligible to sign off.

And sometimes, where there is a joint venture, the decision-making process through written resolutions is particularly restrictive to ensure that no one shareholder takes advantage of the process simply by reason of having more nominated directors on the board.

From a practical perspective, the board should refrain from acting on a circular resolution (even though the requisite number of signatures have been obtained) until all directors have responded one way or another. This allows a dissenting director to raise questions or objections that may cause directors who have already voted to change their minds, or at least pose their own questions. If the matter is urgent, management should indicate the deadline by which it requires a response, while providing enough time to allow directors to mull over the issue. If necessary, management should speak to individual directors to talk through the resolution.

Closing the circle

It is important to stress that circular written resolutions are not "bad" necessarily - only that they should not be a regular (let alone routine) practice. They can never replace the need for a forum where views are shared, knowledgeably debated and deliberated before a decision is reached. Indeed, with increasingly sophisticated telephone and video conferencing facilities, there is little excuse why a board cannot meet, even on an urgent basis, to discuss an issue.

The writer is a member of the Governing Council of the Singapore Institute of Directors.

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

Accent Delight International Ltd and another v Bouvier, Yves Charles Edgar and others - [2016] SGHC 40

IPOS: New Mediation Promotion Scheme to fund IP mediation

Reviewing the elected presidency: Yes to minority provision but how?

Straits Times
29 May 2016
Charissa Yong

At all four public hearings by the Constitutional Commission that is reviewing aspects of the elected presidency, Chief Justice Sundaresh Menon repeatedly asked one question.

Phrased in different ways but no less pointed each time, its essence was: Is it all right for there not to be a minority president for a very long time?

CJ Menon, who chairs the commission, directed this question, more than once, to law experts, academics and law students who were discussing how to ensure minorities are represented in the office of the President.

Minority-race representation is one of the three areas being reviewed by the Constitutional Commission, and the topic most hotly discussed at the four public hearings.

Consensus was rare and there were no easy answers. While most speakers broadly agreed on the need for minorities to be represented, they were deeply divided on how to achieve it.

Some preferred a system where certain elections were reserved for candidates of specified races, while others preferred candidates to run in multiracial teams.

But many were disturbed by what they saw as a form of affirmative action, although others accepted it as a necessary price to pay.

Two broad categories of proposals on how to ensure minority representation emerged.

The first was to occasionally restrict presidential polls to minority candidates, while the second was to have presidential candidates run in teams, with at least one candidate per team being of a minority race.

The Sunday Times examines the merits and downsides to the proposals raised at the hearings, as well as the concerns raised then.

AFFIRMATIVE ACTION OR NOT?

The fact is that Singapore has not had a Malay president - or even a Malay candidate for president - since the elected presidency was set up in 1991. Its only Malay president, the late Mr Yusof Ishak, was appointed to the office after Independence.

Singapore, from 1999 to 2011, had an Indian president, Mr S R Nathan, who was elected unopposed in 1999 and 2005.

In 2011, all four candidates in the presidential election were Chinese.

The relative scarcity of presidents and candidates from minority communities is a problem, agreed most.

Referring to how portraits of Singapore's president are displayed in public buildings, Institute of Policy Studies senior research fellow Mathew Mathews told one of the hearings: "If you grow up and all these pictures on the wall are not your ethnic group, there is a perception that people who look like me will never be there."

That is not a good position for Singapore to be in, he added.

Arguing for the necessity of an institutional fix, Dr Mathews said that society is not race-blind, although that might change in time.

He cited an IPS survey he helmed in 2013, which showed that about 18 per cent of the 2,000 Chinese respondents said they were not comfortable with a Malay or Indian boss.

This was in contrast to about 7 per cent of Chinese respondents who were not comfortable with a Malay or Indian colleague.

This suggested that Singaporeans are not race-blind, a pattern mirrored in the findings of a 2007 Nanyang Technological University report that in the political sphere, Indians were consistently preferred over Malays for the positions of MP, Prime Minister and President.

But several individuals at the hearings were adamant that tweaking the elected presidency was not the solution, arguing that doing so was tantamount to affirmative action.

This went against the principle of meritocracy, as much a pillar of Singapore as multiracialism, they said.

Moreover, giving minority candidates a boost risked undermining those who get into office that way.

IPS deputy director of research Gillian Koh explained: "The moment you institute this, you are saying certain communities cannot make it and they require certain help."

The winner of an election reserved for a minority community might be regarded as a token representative and lack gravitas and political legitimacy, she and IPS research assistant Tan Min-Wei added.

But Dr Mathews disagreed, arguing that an individual could prove these perceptions wrong once in office, if he performed well.

Weighing in on the concerns, former Cabinet minister S. Dhanabalan said that any change to the elected presidency to ensure minority representation would necessarily involve affirmative action of some sort.

"I think the very fact that we're looking for some special way in which minorities can be represented or can become president already is an admission that we need to have something special," he said.

A CASE FOR CLOSED ELECTIONS

The first category of proposals raised the idea of closed, or reserved, elections.

Under this system, if there has been no president from a particular minority group for a number of terms, the next election will be reserved for candidates of that group.

This was the broad idea behind Dr Mathews' proposal, and an element of Mr Dhanabalan's as well.

A key feature of this system is that it would have "a natural sunset", said CJ Menon, noting that the provision for a closed election would not be invoked if a minority president is elected in an open election.

"If society develops along certain lines (and) we become less and less aware of race, then you won't need to invoke the provision," he said.

The advantage, posited CJ Menon, was that such a system allowed Singapore to continue striving to become race-neutral, while ensuring that the races would be represented at least periodically in the office.

"You allow the system to wind its way towards a situation where the goal, at the end of the day, is race neutrality," said CJ Menon, wondering aloud if it was the "least obtrusive" way of doing so.

Seen in this light, having a closed election as a last resort would function as a failsafe or "safeguard", as Dr Mathews put it.

Some objected to the idea of ringfencing voters' choice this way.

Political science academic Loke Hoe Yeong said that if the Government designates that an office be contested only by candidates of a certain ethnicity, "it could be perceived as being very undemocratic".

Human rights group Maruah said in its submission that introducing racial criteria for the presidency runs against the principle of treating all Singaporeans equally "regardless of race, language or religion", as laid out in the National Pledge.

JOINT TICKET SYSTEM

Others preferred instead a Group Representation Constituency (GRC)-style process for the presidential elections, where two or three members - with at least one minority member - run for the office as a team.

The winning candidates could rotate the seat of President between themselves, with their teammates serving as vice-president or on the Council of Presidential Advisers in between.

Such a joint ticket system was proposed by Mr Dhanabalan, who suggested two-man teams for every third presidential election, and by others including Eurasian Association president Benett Theseira.

One advantage is that Singaporeans are already familiar with the GRC system, albeit for parliamentary elections.

But Professor Chan Heng Chee, a member of the commission, asked whether this system would leave a minority candidate open to the criticism that he was there on the coat-tails of the majority candidate.

Mr Dhanabalan replied that any GRC arrangement could not escape such criticisms, but thought that closed elections went too far.

A QUESTION OF PALATABILITY

Which proposal the commission decides to recommend could come down to a question of palatability, and Singapore might even see a mix of elements of both.

Members of the commission noted that both proposals could be seen as restricted elections in essence, with CJ Menon remarking: "It's really a question of palatability, isn't it? Because in substance, it comes down to the same thing."

But if that is the case, the sunset clause system seems more appealing. For one thing, it acknowledges the importance of representation in the office of the presidency.

It also avoids any possible upheaval that might result from having a rotating team of presidents with terms shorter than the standard six years, as would be the case for a GRC-style system.

Most importantly, it would be a failsafe instead of a normal state of affairs.

The irony of such a system would be that it would be created with the hope that it would never have to be used. And if the clause never kicked in, that would be a success.


AFFIRMATIVE ACTION

I think the very fact that we're looking for some special way in which minorities can be represented or can become president already is an admission that we need to have something special.

FORMER CABINET MINISTER S. DHANABALAN


To emphasise political or financial acumen?

When the first presidential election was held in 1993, enabled by changes to the law in the preceding years, concerns were raised about the stringent qualifications required for candidates.

Spelt out in the Constitution was that aspirants must have held, for at least three years, key positions in the public or private sectors. Members of Parliament had wondered then if this would narrow the field too much.

Twenty-three years and three elected presidents later, the same concern has again cropped up as a Constitutional Commission considers if the eligibility criteria should be updated.

At the four public hearings held on the review, opinions were split about doing so. But there was a consensus among both camps - that whatever changes made should not lead to too few people qualifying.

JOB SCREENING

Article 19 of the Constitution lists the various qualifications a president must have.

It states, among other things, that a candidate must be a person of integrity, good character and reputation.

If he is from the public sector, he must also have served in key positions, such as as a minister, chief justice or permanent secretary.

And if he is from the private sector, he must have held, for at least three years, the post of chairman or chief executive officer at a company with a paid-up capital of at least $100 million.

Taken together, said Prime Minister Lee Hsien Loong in January when calling for the review, the eligibility criteria are meant as a proxy for determining if a candidate has the experience and competence required for the job.

The president's tasks include protecting Singapore's national reserves and the integrity of the public service, and acting as a check on the Government in its investigating and detaining of people.

The criteria, the Government had said in 1990, amounted to a job screening of sorts. Regular job applicants are subject to similar screening, so what more a person aiming for the highest office in the land, it said.

And as the complexities of the job have increased, the criteria are due for an update.

Over the years, the national reserves that the president safeguards have grown, said PM Lee. Central Provident Fund savings alone, which make up a part of the reserves, stood at $275 billion last year. In 1990, they were $41 billion.

But a small number of those who spoke at the hearing begged to differ.

They argued that it is political acumen, and not financial judgment, that a president must possess to do his job well, as he is merely empowered to say yes or no to items like the Government's Budget and use of the national reserves.

In such "binary decisions", said constitutional expert Kevin Tan, what matters more is whether a person has the stomach to go against the whole government machinery.

Qualifications that focus on measuring a person's financial knowledge thus do not have to be set so high, he said.

Some others, like rights group Maruah and the Association of Women for Action and Research, felt such criteria should be dropped altogether.

THE $100 MILLION QUESTION

Those in favour of tightening private-sector requirements suggested raising the company paid-up capital threshold to ensure that aspiring candidates have the right experience.

If they have run large and complex companies, they would likely be more adept at dealing with complex financial decisions, they said.

Most did not suggest a specific threshold, but several pegged it at $500 million.

Lawyer Ranvir Kumar Singh arrived at the number using as a benchmark, Singtel, which he deemed a large enough company. The telco's paid-up capital value had gone up five times since the elected presidency was implemented in 1991, he said.

Chief Justice Sundaresh Menon said the higher threshold would capture the top 0.2 per cent of firms here - the same proportion captured in 1991, when the threshold of $100 million was set.

Executive chairman of listed Raffles Medical Group Loo Choon Yong suggested it should be $500 million in shareholders' funds or net tangible assets instead, since these measurements more accurately reflect a company's actual financial strength.

He also suggested that only those running publicly listed companies should be considered, as these are subject to scrutiny by regulators and the public.

However, others said that whether a candidate has the right experience cannot be determined just by looking at the size of the companies he has run.

To get at the substance of his corporate role, factors such as annual revenue and number of employees should also be taken into account, said former Cabinet minister S. Dhanabalan, who is a member of the Council of Presidential Advisers and the Presidential Council for Minority Rights.

When the experience was acquired also counts, said Institute of Policy Studies (IPS) deputy director of research Gillian Koh and IPS researcher Tan Min-Wei.

To qualify, candidates should have held their posts within the past 10 years, to ensure that their skills, knowledge and experience are still relevant, they said.

SMALLER POOL

Singapore Management University law don Eugene Tan and Eurasian Association president Benett Theseira warned against shrinking the pool of eligible candidates too much, especially for minority race groups.

Commission members noted that the pool had grown since the 1990s.

If a presidential election were called now, the head honchos of at least 2,145 firms could potentially qualify to run. During the first presidential election in 1993, there were only about 100 such firms which met the $100 million threshold. (These CEOs and chairmen would of course have to pass muster in other ways, too).

So just how big should the pool be?

None at the hearing had a ready answer when asked by Chief Justice Menon, who chairs the commission.

If the threshold were raised to a paid-up capital of $500 million, 503 out of a total of 294,700 companies here would be captured, statistics from the Accounting and Corporate Regulatory Authority show.

How this would affect minority-race candidates, though, is uncertain. But if Singapore's racial make-up is any indication - Chinese made up 76.2 per cent, Malays 15 per cent, Indians 7.4 per cent and other races 1.4 per cent of the population in June last year - there could be more than 100 potential candidates from the minority races.

LASTING CRITERIA

But while is it important to ensure that there are sufficient numbers of suitable candidates, the size of the pool should not be the determining factor in setting the eligibility criteria, said Chief Justice Menon.

"You can't set the criteria by looking at the individuals and say I think at this level we will have so many suitable candidates...

"If the view is that the criteria should be updated, then surely we shouldn't resist doing so for the sake of minorities," he said.

He added that the paramount consideration for whatever eligibility criteria should be to ensure that candidates have the experience and competence needed to fulfil the president's duties.

To satisfy these requirements, substituting the fixed paid-up threshold with a mathematical formula to calculate the threshold may be the way to go. The absolute number can then be worked out each time a presidential election is due.

This would help the eligibility criteria keep pace with the scale and complexity of the job, said Dr Koh who suggested it.

It would perhaps also satisfy an aim of the commission: to draft a constitutional provision that can withstand the test of time.

Tham Yuen-C


A stronger council of advisers?

If there is one area of the elected presidency that law experts seem hesitant to tinker with, it is the Council of Presidential Advisers (CPA).

At the four public hearings last month and this month, proposals on how to ensure minority representation or review the criteria for presidential hopefuls came fast and furious.

But there were far fewer ideas on how to strengthen the CPA, one of the three tasks of the Constitutional Commission set out by Prime Minister Lee Hsien Loong in January.

Those that were floated fell into two broad categories:

First, raise the bar for members of the CPA - an uncontroversial suggestion, seen mostly as a formality.

Second, increase the number of matters on which the president must consult the CPA.

But here, experts and the commission were uncertain about whether - and how - to beef up the powers of the CPA in situations where they disagree with the president.

KEEPING THE CPA SEPARATE

The commission was keen to keep the CPA as a separate body from the president so that this independent body could continue to advise, and act as a second goalkeeper.

The CPA has six full members.

Of these, two are appointed by the president at his discretion, two are nominated by the Prime Minister, one by the Chief Justice, and the last by the chairman of the Public Service Commission.

Lawyer Ronald Wong wanted two of the six CPA members to be elected by Singaporeans. The six would then get together and vote for one of them to be the president.

Law firm intern Brian Chang proposed a two-person presidential ticket in which one candidate would have to be of a minority race, adding that the second candidate could be a co-president or vice-president and serve as CPA chairman.

But the commission was concerned that blurring the lines between both institutions would weaken the CPA's ability to act as a check on the president, if needed.

DBS Group Holdings chairman Peter Seah said: "Will it not dilute the independence of the CPA if the head of the CPA runs on the same ticket as the president?"

This concern for independence recalled PM Lee's speech in January, when he said it was important for Singapore's political system to continue to be protected by a team rather than a single person.

Together, the president and the council play the roles of "a goalkeeper together with a team of defenders", he added then.

BALANCE OF POWER

But what happens when the CPA and the president are not on the same page?

PM Lee had also asked if the CPA's advice should count for more than it does now when the president makes decisions.

One possibility he mooted was for Parliament to be given the power in more situations to override the president, if he goes against the council's recommendations.

Now, the president must consult the CPA before exercising some discretionary powers, like before he approves proposed drawdowns on past financial reserves.

If the CPA disagrees with the president's decision in these cases, Parliament has the ability to override it if at least two-thirds of elected MPs vote to do so.

But in other cases, the president can choose whether or not to consult the CPA. In these cases, the president's word is final even if he decides not to accept the CPA's advice.

The Eurasian Association suggested that the scope of matters on which the president must consult the CPA could be widened.

But mandatory consultation is one thing; overriding the president once his mind is made up is another.

Several at the public hearings were very wary of giving more weight to the CPA's recommendations by allowing Parliament to override the president.

They pointed out that the CPA is an unelected body, unlike the president, who has a direct mandate from Singaporeans.

"It would make our governance system unstable if the CPA is the real power behind the Istana," said Singapore Management University law don Eugene Tan in his submission.

The Workers' Party, which was not at the hearings, said in its written submission to the commission that the Government's suggestion to expand the powers of the CPA "may add another layer of gridlock" to the political system.

Instead, speakers at the public hearings favoured strengthening the CPA by raising the eligibility criteria for its members.

They pointed out that the minimum eligibility criteria for CPA members, as spelled out in Article 37(D) of the Constitution, are fairly basic and even less strict than that for the president.

They have to be Singapore citizens and reside here, as well as be at least 35 years old.

Others also suggested that the Constitution detail specific skills that these members should possess, such as financial expertise.

Speakers noted that the CPA's members, to date, have been more than qualified to carry out their duties, even as they wanted the stricter criteria written into the law.

This principle of "better safe than sorry" is a good one to keep in mind, as the commission considers how to accommodate the possibility of differences arising between the president and his council.

"We have been fortunate so far," Associate Professor Eugene Tan said, referring to the quality of the CPA. "But we shouldn't leave it to chance."


PRESIDENT MUST RETAIN POWER

It would make our governance system unstable if the CPA is the real power behind the Istana.

SINGAPORE MANAGEMENT UNIVERSITY LAW DON EUGENE TAN, on the suggestion for Parliament to be given the power in more situations to override the president if he goes against the CPA's advice.

Charissa Yong


Some would scrap system altogether

While the Constitutional Commission's review parameters have three specific aspects - eligibility criteria, the role of presidential advisers, and providing for minority races - a fourth, left-of-field suggestion was also raised.

At the public hearings held by the commission, some played the devil's advocate and said the elected presidency should be scrapped altogether. Some suggested returning to the original system of having a nominated president, and radically changing the election procedure.

The ideas surfaced even though Prime Minister Lee Hsien Loong had made it clear that such proposals would not be on the table.

Announcing the impending review at the opening of Parliament in January, he said: "The President must remain an elected office. If the President is not elected, he will lack the mandate to wield his custodial powers."

SEPARATE ROLES

However, this did not stop Raffles Medical Group executive chairman Loo Choon Yong from saying, at one of the hearings, that the president should not be expected to shoulder the dual tasks of being both a ceremonial head as well as guardian of Singapore's reserves.

As he put it, it is unrealistic to expect one person to be a unifying force as the symbolic head of state, and play what is essentially a divisive role if he has to stand up to the government in his role of custodian of the national reserves.

"You want this guy to be the nice guy, unifier, and then you want him to have what it takes to tell a roguish prime minister, 'Hey, leave our assets alone.' I think these (requirements) call for different chemistries," Dr Loo said.

To resolve this contradiction, both roles should be separated, he said, advocating a return to the pre-1991 system when the president was elected by Parliament, but with a twist.

Under his proposal, Parliament would elect the president, and a separate Council For Review would be set up to safeguard Singapore's reserves, with the chairman of the council elected by voters.

In this scenario, the president's role would largely be ceremonial and administrative - similar to the monarch in Britain, whose executive powers are limited by the Constitution. He would focus on receiving foreign diplomats, gracing important functions, and signing laws into effect.

MINORITY REPRESENTATION

Returning to the old system would also allow Parliament to balance the responsibilities of the elected presidency with the need to ensure that Singapore has a minority president from time to time, said constitutional law expert Kevin Tan.

To him, it was "no accident" that Singapore's first president was Mr Yusof Ishak, a Malay. He was followed by Eurasian Benjamin Sheares, then an Indian president, Mr C. V. Devan Nair, and after that, a Chinese president, Mr Wee Kim Wee. An elected system would not be able to guarantee this important aspect of the presidency, he said.

POLITICAL PROCESS, NON-POLITICAL ROLE

Making the presidency an elected office also introduced politics into the mix, said lawyer Rey Foo.

Several people at the hearing said the elected president is selected through a political process, even if the office itself is meant to be non-political and non-partisan. To win the election, candidates would have to campaign for votes, make speeches and promote themselves.

Of course, not all the presidential elections have been contested. Of the four polls held since 1993, two were uncontested. But the last presidential election in 2011 was so politicised that some candidates made unrealistic promises to gain traction with voters, several people said.

Out of the four candidates, two made spending promises outside the president's powers. They pledged to press for an allowance for the elderly, and to channel funds to schools and hospitals if they were to approve spending from the reserves, for instance.

This confused voters, especially some who seemed to believe that the president had the power to provide checks and balance on all government matters, said Dr Loo.

To avoid this, in-house legal officer Edwin Yeo proposed a "hybrid system", combining aspects of appointing and electing a president.

He suggested that a presidential council could be set up to identify one candidate, in consultation with the prime minister. After the candidate is approved by Parliament, Singaporeans would vote for him by casting "yes" or "no" ballots. This avoids the divisiveness of pitting candidates against one another, he said.

NO TURNING BACK?

Then again, several commission members wondered if Singaporeans today could accept a return to the old way of having Parliament elect a president.

"We are in the world of participation now. Individuals want to participate and they want to have a say," said Professor Chan Heng Chee, chairman of the Lee Kuan Yew Centre for Innovative Cities at the Singapore University of Technology and Design.

Commission members also said that an elected president derived his "moral authority" from the people's mandate, and would be seen as independent.

On the other hand, some might argue that since Parliament comprises elected representatives, there is an embedded mandate in getting the House to choose a president.

Dr Tan said "just because someone is nominated and not elected does not deprive him of his independence", adding that people appointed to key roles would typically act accordingly.

For Dr Loo, the review is an opportune time to consider the adoption of a simpler system.

He said that given the 46 amendments to the Constitution over the last 25 years that reduced the President's custodial powers, the constant recalibrations showed that "combining these two jobs into one is not the best (move)". His parting shot: "Do it courageously."


CONTRADICTORY DEMANDS

You want this guy to be the nice guy, unifier, and then you want him to have what it takes to tell a roguish prime minister, 'Hey, leave our assets alone.' I think these (requirements) call for different chemistries.

RAFFLES MEDICAL GROUP EXECUTIVE CHAIRMAN LOO CHOON YONG, on what's expected of an elected president.

Tham Yuen-C

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

Tan Teck Koon v Tong Guat Hwa - [2016] SGHCF 02

Law Soc: Official Assignee - Practice Circular No. 2 of 2016: Matrimonial proceedings involving bankrupts

Law Society

Certain documents mentioned in this notice are accessible only by Law Society Members with their user ID and password via The Law Society of Singapore website.

The Official Assignee
Matrimonial proceedings involving bankrupts    

The Official Assignee has issued Practice Circular No. 2 of 2016 dated 17 March 2016 ('Practice Circular').

This Practice Circular seeks to notify lawyers acting in matrimonial proceedings (this refers to writs for divorce, nullity and judicial separation) involving bankrupts of the need to keep the Official Assignee informed of the proceedings and their outcome.

This Practice Circular will take effect on 23 March 2016. Click here to view the Practice Circular.

For queries, please contact Mr Sebastian Chew, Senior Assistant Director, Individual Insolvency & Debt Repayment Scheme Division at oneminlaw@mlaw.gov.sg.

Ex-tour guide faces 349 criminal charges

Straits Times
29 May 2016
Toh Yong Chuan & Carolyn Khew

He goes on trial for falsification and criminal charges after being away from public eye for nearly 2 years

He is accused of plotting to steal $40 million in cash and assets from a Singaporean widow.

He has even been charged with duping the Government into granting him an employment pass and permanent residency.

And while his name may have been splashed in the local media for almost two years, former China tour guide Yang Yin has not been seen in public for 19 months.

He has spent that time in Changi Prison, after being arrested by the police in September 2014, charged a month later and denied bail.

Tomorrow, the 42-year-old makes his first public appearance in almost two years. He goes on trial for falsification and immigration charges.

In total, he faces 349 criminal charges, the most serious of which are for criminal breach of trust.

THE TOUR GUIDE WHO CAME TO STAY

The case involving Madam Chung Khin Chun, 89, and Yang broke in 2014, when the widow's niece, Madam Hedy Mok, started legal action against him for allegedly manipulating her aunt into handing over her assets.

Madam Chung owns a bungalow in Gerald Crescent and her assets are estimated to be worth $40 million. The retired physiotherapist has no children.

Her husband, Dr Chou Sip King, died in 2007.

Yang acted as Madam Chung's private guide during a China trip in 2008. He had been introduced to the widow by Madam Chang Phie Chin, a retired teacher who is a family friend.

A year later, he came to Singapore and moved into her bungalow, claiming that the widow wanted him to be her "grandson".

He set up a company, Young Music and Dance Studio, and obtained an Employment Pass to work in Singapore.

In 2011, he obtained permanent residency and later, moved his wife and two young children here as dependants. The family lived in Madam Chung's bungalow.

Madam Chung was diagnosed with dementia in April 2014. After the diagnosis, Madam Mok applied to be her aunt's guardian under the Mental Capacity Act.

But the tour agency owner found, to her shock, that Yang had already been granted Lasting Power of Attorney (LPA) in 2012. The legal document gave him full control over all the widow's assets.

Madam Mok moved in on Yang on multiple fronts.

In August 2014, she asked the court to stop Yang from disposing of assets belonging to him and the widow both here and overseas. The Mareva injunction was granted.

She also spirited her aunt out of the bungalow.

On Sept 2, 2014, she confronted Yang's wife, Madam Weng Yandan, and their then two-year-old son and six-year-old daughter, demanding that they leave the house. Yang was overseas at that time.

She called in a locksmith to change the locks.

TWO LEGAL VICTORIES FOR WIDOW AND HER NIECE

To stop Yang from controlling her aunt's assets, Madam Mok applied to the court to have the LPA cancelled.

The Family Justice Courts heard the case in November 2014 and ruled that Madam Chung was mentally capable of deciding who should look after her assets, and allowed her to cancel the LPA.

It was Madam Mok's first legal victory.

She also scored another victory in February this year when the Court of Appeal overturned an earlier High Court decision to release about $98,000 for Yang's legal fees.

The High Court decision was made in April last year.

In overturning the decision, Chief Justice Sundaresh Menon said that Yang had not explained his finances. The onus was on him to show that he had no other source of funds to pay his legal fees, said the Chief Justice.

In April this year, Yang changed his lawyer to get "a new perspective". He is now represented by Mr Irving Choh, founder of law firm Optimus Chambers.

Madam Mok is represented by Mr Peter Doraisamy from Selvam LLC.

FIGHTING OVER THE WILL

But while the question over the control of the assets while Madam Chung is still alive was resolved, a more troubling matter still hangs in the balance - who inherits the assets after the widow dies?

In 2010, Madam Chung made a will in which Yang stood to inherit everything.

To correct that, Madam Mok made a new statutory will on behalf of her aunt last year, in which most of the assets would go to charity.

The courts recognised the new will in April last year, based on evidence given by several witnesses that Madam Chung had made the 2010 will under the undue influence of Yang, among other factors.

Yang appealed on grounds that there was a procedural failure in the proceedings as the judge had denied his lawyers the chance to cross-examine witnesses who had given evidence to support the application for the new will.

The appeal was dismissed last month but Yang can still appeal the decision.

THE COURT HEARINGS

When Yang appears in court tomorrow, it starts a new phase of the family drama that has gripped the media for the past two years.

But the alleged immigration and falsification offences that he will be tried for in court tomorrow are the less serious ones.

He also faces two criminal breach of trust (CBT) charges of allegedly siphoning off $1.1 million from Madam Chung.

Tomorrow's trialcovers only the alleged immigration and receipt falsification offences.

He is due back in court next month for the CBT charges that carry a jail term of up to seven years and a fine.

But it is not yet known when his biggest showdown with Madam Mok will take place.

Her high-profile civil law suit against Yang has not been scheduled to be heard in the High Court yet.


TIMELINE

2006

Madam Chang Phie Chin introduces Yang Yin to Madam Chung Khin Chun and her husband, Dr Chou Sip King.

Dr Chou dies in 2007.

2008

Yang acts as the private tour guide for Madam Chung and Madam Chang while they are on holiday in Beijing.

Yang keeps in touch with Madam Chung after the trip.

2009

Yang visits Madam Chung and stays in her bungalow. He also sets up his company, Young Music and Dance Studio . In September, Yang fires Madam Chung's driver of 30 years. He obtains an Employment Pass to work in Singapore.

2010

Madam Chung makes a will leaving her assets, including the bungalow, to Yang.

2011

Madam Chang moves out of the Gerald Crescent bungalow. She had lived there since 2004, after Dr Chou's health deteriorated.

Yang becomes a Singapore permanent resident.

2012

Yang is given Lasting Power of Attorney(LPA) by Madam Chung, giving him control over her welfare and assets.

In 2013, his wife Weng Yandan and their two children move in to live in the Gerald Crescent bungalow.>

2014

In April, Madam Chung is diagnosed with dementia.

The LPA is revoked in November after Madam Chung's niece, Madam Hedy Mok, starts court proceedings against Yang.

Yang is arrested in September and charged in October. He is later denied bail.

2015

Madam Chung's new will is recognised by the Family Justice Courts in April. Her new will leaves most of her assets to charity and nothing for the former tour guide.

2016

The High Court dismisses the appeal made by Yang in April this year regarding the new will. The criminal trials are scheduled to take place from May to July.

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

Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd and others (King Wan Construction Pte Ltd and others, third parties) - [2016] SGHC 38

Law Soc: CPF Board - CPF savings are not covered under a will

Law Society

Central Provident Fund Board
CPF savings are not covered under a will   

The Central Provident Fund ('CPF') Board would like to remind members to inform clients when advising on estate matters that CPF savings do not form part of a CPF member’s estate but are instead distributed according to the CPF member's CPF nomination (if one has been made) or via the Public Trustee to their family members under Intestacy or Inheritance laws. Click here for more information.

Rule of law: The path to exceptionalism

Straits Times
28 May 2016
Sundaresh Menon

This is an excerpt from a speech delivered by Chief Justice Sundaresh Menon at the American Law Institute's 93rd Annual Meeting in Washington, DC, last week. He said the United States and Singapore share a commitment to the rule of law, although they may differ in their understanding of how it works in practice in each society.

The American Revolution drew from the well of natural law theory and the Lockean social contract in its commitment to equality and a distrust of power. The Constitution, therefore, divided the government into three coordinate arms. The judiciary was the institution entrusted with upholding the rule of law.

In the aftermath of the Civil War, the courts were, on the orthodox view, propelled by the ideology of laissez-faire individualism into a period of activism; but this was followed by a period of retreat and restraint under the New Deal court, as the United States strived to overcome the woes of the Great Depression. By the mid-20th century, the court had emerged as the strong protector of civil rights and liberties with the far-reaching decisions of the Warren Court.

That the conceptions of an independent judiciary upholding the rule of law have evolved over time is unsurprising because the rule of law is inevitably enmeshed within a complex web of historical fact, philosophical outlooks and, to some extent, the "felt necessity of the time".

Yet, behind these various conceptions, we see the same deep and unyielding commitment to the ideals of equality and liberty that characterised the founding of the republic; the same firm recognition of the centrality of the judiciary in ensuring legality and defending rights; and the same respect for and adherence to the decisions of the courts, no matter how unpopular they might be.

Without question, this has been instrumental in America's pathway to its exceptional position.

THE SINGAPORE STORY

If the American republic was born out of a pursuit of high ideals, Singapore was the progeny of an austere and existentialist necessity.

For nearly a century and a half prior to her independence in 1963, Singapore had been a colony subject to British rule. As she moved towards independence in the early 1960s, the strong sentiment was that a federation with Malaysia, our neighbours in the north, would be the only way to secure our survival.

Malaysia was a large, resource-rich nation. By contrast, Singapore, though already a busy trading port, had little else. We had a land area of just 580 sq km and no natural resources; we even depended on Malaysia for drinking water. We had a population of two million people, many migrants of a diverse heritage.

And so on Sept 16, 1963, we came out of our colonial past as a constituent state of the Federation of Malaysia. The union was short-lived. There were deep disagreements between the local government in Singapore and the federal government over the establishment of a common market and the special position of the Malays. Singapore left the Federation in 1965 after political, economic and racial skirmishes caused our relationship with the Malaysian government to fracture and eventually break down. On Aug 9, 1965, Singapore became an independent nation.

Our existence was precarious and the path forward fraught. Racial tensions were high following our communally charged exit from the Federation. And the communist threat persisted into our independence, with traction especially among the working class and Chinese-speaking tertiary students of the day.

The need to survive sharpened the ideals of Singapore's founding fathers into an intensely pragmatic vision. Mr Lee Kuan Yew put it this way in a speech he delivered in those early years: "The acid test of any legal system is not the greatness or the grandeur of its ideal concepts, but whether in fact it is able to produce order and justice in the relationships between man and man and between man and the State."

One consequence of that hard-nosed pragmatism was an emphasis on a strong rule-of-law culture in order to attract foreign investment and multinational business interests. Without natural resources, investment and technology from abroad would be the engine to drive our economic growth, and its fuel a legal and business environment that protected contracts and property rights.

We understood from our foundational moment that an indispensable feature of that environment was a clean, efficient and independent judiciary. Our judges were drawn from our finest private lawyers, academicians and government counsel. Their tenure and remuneration were constitutionally protected. We ceaselessly updated our court systems and processes to cope with the increased volume and complexity of cases that came with development.

Underlying this was our zero- tolerance approach to corruption, which, just last week, Ms Christine Lagarde of the IMF praised in a speech on the economic harm of corruption. She cited Singapore as an example to be emulated for its eradication of corruption and its establishment of honest and competent public institutions.

Our commitment to the rule of law resting on a strong judiciary has been pivotal in Singapore's development narrative and its emergence as a modern economic miracle. Our Law Minister has observed that the confidence in our legal system helped us attract and sustain the high level of foreign direct investment relative to our size that we continue to receive today; about US$1 trillion (S$1.38 trillion) at last count.

From our improbable beginnings, we stand today as one of the most prosperous nations in the world. Our GDP per capita has risen from approximately US$400 at the time of our independence in 1965 to about US$55,000 today. Home ownership rates have risen from 29 per cent in 1970 to 90.3 per cent today. Life expectancy and literacy rates are also very high.

COMMUNITARIAN PERSPECTIVES

But our fidelity to the rule of law has co-existed comfortably with a prominent feature of our cultural substratum, which is an emphasis on communitarian over individualist values. These include notions such as dialogue, tolerance, compromise and placing the community above self. These values have modulated the court's approach in ensuring that the rule of law rules.

Chief Justice Chan Sek Keong, who held the office before me, spoke extrajudicially of the contrast between a society where the court is in an adversarial relationship with the executive, and one in which the court plays a supporting role to good governance by articulating clear rules and principles by which the government should abide, and serving as the last line of defence if and when those principles are breached.

On the latter view, good government can be encouraged through a variety of means, only one of which is the adversarial process of pitting the government across the Bar table before a judge.

Aspects of the latter approach can be seen in the Starkstrom case, a recent decision of the Court of Appeal, our apex court. It concerned judicial review of administrative action on the ground of substantive legitimate expectation, which is engaged when the government or an administrative agency acts contrary to a promise or an expectation that it has created or encouraged.

This is a developing body of law with divergent approaches in the British Commonwealth: both the courts of England and Hong Kong recognise it as a ground for review while the courts of Australia and Canada do not.

The controversy centres on the fact that this type of judicial review goes beyond the process and legality of executive actions. Judicial enforcement of an individual's legitimate expectation could amount to overruling on the merits the choice of the executive to reverse its earlier policy stance which had given rise to the expectation.

We did not in the end have to decide whether to recognise this type of review under Singapore law because it was a complete non-starter in the circumstances of the case.

But I do want to mention one aspect of our judgment. We observed that there exists a multitude of gradations between, on the one hand, judicially enforcing a substantive legitimate expectation and, on the other, permitting an administrative authority to ignore it altogether.

Intermediate points include (a) requiring the authority to confirm that it has considered the relevant expectation; and (b) requiring the decision-maker to disclose its reasons for overriding that expectation and subjecting those reasons to the traditional grounds of judicial review.

The judgment is instructive for the guidance it gives to the government and the public as to the sorts of issues that will need to be considered, and the variety of possible solutions, which can be evaluated when a proper case arises. What underlies this approach is the belief that a court which is respected by the other branches of government can effectively shape the debate and ensure the legality of government actions by setting out its concerns openly and potentially obviating a binary clash between the judiciary and the executive.

THE SHARP EDGE

Having said that, confrontation may be inevitable, and then, the judiciary must stand firm as the last line of defence. Judicial review is the sharp edge that keeps government action within the form and substance of the law. Although there is no express power of judicial review in our Constitution, our courts, like yours, have held that judicial review flows naturally from the premise that it is " emphatically the province and duty of the judicial department to say what the law is".

Our first Chief Justice post-independence, Wee Chong Jin, wrote in Chng Suan Tze v Minister for Home Affairs that "the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power".

The Court of Appeal was recently required to apply this in the Dan Tan case. Dan Tan had been detained on the executive order of the Minister for Home Affairs under legislation which exceptionally permits such detention, if the minister is satisfied that the detainee had been associated with activities of a criminal nature, and that the detention was "in the interests of public safety, peace and good order".

Mr Tan's detention was ordered on the grounds that he had been the leader and financier of a global soccer match-fixing syndicate, labelled "the world's most notorious" by Interpol, and which allegedly operated in Europe and Africa from Singapore. He moved for habeas corpus, claiming that his detention was illegal.

We found for Mr Tan and set aside the minister's order. We undertook a detailed review of the history and purpose of the relevant legislation and concluded that it only permitted detention where the detainee's acts were harmful in Singapore. The grounds for Mr Tan's detention given by the minister did not establish whether or how the match-fixing activities, which were executed abroad, had a bearing on public safety, peace and good order within Singapore.

Mr Tan was accordingly released, but he was re-arrested and detained a week or so later. The ministry said in a statement that while it accepted the court's decision, it considered that there were sufficient grounds for Mr Tan's detention, and so a fresh order was issued, this time setting out in detail the grounds relied on to establish the existence of the relevant threat in Singapore.

A few weeks later, the ministry released three other detainees. It said on that occasion that in the light of the Court of Appeal's decision, the minister had reviewed the detention orders of these persons and concluded that the orders ought to be revoked.

The point I wish to draw from this example is that the commitment of the executive to comply with and abide by the law as pronounced by the judiciary is critical to the rule of law and good governance.

The release of the three other detainees apparently did not rest on any application they had made but on the minister's review of the position in the light of our decision. In the final analysis, the robustness of a nation's rule of law framework depends greatly on how the other branches view the judiciary and whether it in turn is able and willing to act honestly, competently and independently.

Tom Bingham observed that the rule of law is "one of the greatest unifying factors, perhaps the greatest" of mankind.

Despite the vast differences in our legal systems and the variations in the length, colour and character of our history and culture, it is that same commitment to the rule of law that brings us here today; and this should be a heartening thought for all of us who have made the rule of law nothing less than our life's work.

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

Tan Bee Hock v F G Builders Pte Ltd (United Overseas Insurance Ltd, third party) - [2016] SGHC 37

State Ct PD Amendment No. 1 of 2016: New PD 35, 37, 38, App B

State Courts

High Court revokes former BSI banker's bail

Straits Times
28 May 2016
Grace Leong

Judge says wealth planner linked to 1MDB scandal 'likely to interfere with investigation' and 'destroy evidence'

The Singapore High Court yesterday revoked bail that had been granted to former BSI Bank wealth planner Yeo Jiawei.

Yeo's key role in facilitating illicit transactions involving scandal-hit state fund 1Malaysia Development Berhad (1MDB) allegedly led to the shutdown of the Swiss private bank's operations in Singapore.

The prosecution moved to revoke bail of $600,000 granted to Yeo by a lower court on Thursday, calling it a "serious injustice" that will undoubtedly harm public interest and raise palpable domestic and international concerns about the efficacy of (Singapore's) criminal justice and financial system".

Delivering his ruling to a packed court, Justice Chan Seng Onn found that Yeo is "likely to interfere with the investigation... and act to destroy evidence which will subvert the administration of justice".

Yeo, 33, who faces nine counts including forgery, money laundering and obstruction of justice, will stay in remand pending trial. He was in custody for the past 41 days and has been moved to Changi Prison.

Yeo shook his head, and at times looked incredulous, as the prosecution addressed issues of his alleged witness tampering. The prosecution is seeking early trial dates for two charges of obstructing justice.

According to one charge, he asked Mr Kevin Swampillai, BSI's head of wealth management services, on March 27 to lie to police that money Mr Samuel Goh Sze-Wei transferred to Bridgerock Investment, a firm Yeo controlled, was Mr Goh's investment.

Second Solicitor-General Kwek Mean Luck cited evidence that Yeo tampered with at least five witnesses on at least five occasions, including asking one to destroy evidence.

"It would not be a stretch to say that (Yeo) himself is aware of the stakes involved in this case, which fuelled his proactive efforts to stymie investigations even before he was formally charged in court."

Mr Kwek was referring to Yeo's violation of a previous bail order after he was arrested on March 17 for alleged violations of securities laws and released on bail the next day.

The prosecution alleged that he breached bail conditions on March 27 when he met Mr Swampillai and Mr Goh, and told them "the time had come to 'collaborate' stories to provide a 'consistent response' to the Commercial Affairs Department if questioned" on funds that went to Bridgerock Investment.

Mr Kwek noted that if Yeo was released on bail, he "may inform his associates and principals of the lines of inquiry of investigations to further obstruct investigations".

Responding to the prosecution's argument that the defence did not challenge evidence of witness tampering, Yeo's lawyer, Senior Counsel Harry Elias, said he had only three hours of access in the past 40 days and that he was not able to take meaningful instructions from Yeo.

But Justice Chan asked if Yeo's lawyers had questioned him about witness tampering, given that the first obstruction of justice charge was filed on April 28, and they had the opportunity to see him on at least three occasions after that.

Mr Elias said he did not have enough access to Yeo, and so could not take meaningful instructions. He said: "If you don't grant him bail, he can't prepare his defence."

The prosecution said Yeo is believed to have received secret profits totalling about US$18 million (S$25 million). "I can assert with certainty that significantly more serious charges will be proferred against him and his associates in due course," Mr Kwek said.

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

Peh Yeng Yok v Tembusu Systems Pte Ltd (formerly known as Tembusu Terminals Pte Ltd) and others - [2016] SGHC 36

Law Soc: URA - Revised criteria for issue of housing developer's sale licence

Law Society

Certain documents mentioned in this notice are accessible only by Law Society Members with their user ID and password via The Law Society of Singapore website.

Urban Renewal Authority (“URA”)
Revised Criteria for Issue of Housing Developer's Sale Licence   

Urban Redevelopment Authority ('URA') have revised the criteria for issuing a housing developer's sale licence which allows a housing developer to develop and sell private residential units. Please click here to view the details.

The new criteria for the issue of sale licence will apply to all new licence applications received on or after 1 April 2016.

For queries concerning this circular, please e-mail URA at ura_coh_registry@ura.gov.sg. Past circulars and guidelines are available at their website www.ura.gov.sg.

URA kills GEM project's cheques-for-buyers scheme

Business Times
28 May 2016
Lynette Khoo

It says developer's issuance of cheques for offset against booking fee circumvents minimum cash downpayment rule

[Singapore] OF the many innovative features for GEM Residences that its developers came up with, one particular scheme has ruffled the feathers of the housing regulator.

BT understands that under a "specimen cheque scheme", the joint developers - Gamuda, Maxdin, and Evia Real Estate - issued cheques of S$7,500 or S$10,000 to prospective buyers who then submitted these for expressions of interest. The buyers could have used these cheques to offset their booking fee on balloting day.

But the plan was scuttled after the Controller of Housing directed these developers on Thursday night not to proceed with the use of such cheques, as this circumvents the requirement of a minimum 5 per cent booking fee for a residential purchase.

Despite the about-turn, the 99-year leasehold project in Toa Payoh still sold 51 per cent of all units in just one day - marking one of the highest launch take-up rates in recent years.

Buyers who turned up at the showflat on Friday morning were informed that those specimen cheques can no longer be used. But they were offered two alternatives - a direct discount of the same amount or to accept a cash rebate upon the signing of the sales and purchase agreement.

In response to BT queries, an Urban Redevelopment Authority (URA) spokesman said the offer of the "specimen cheque scheme" by the developers to offset part of the booking fee to be paid by the purchaser does not comply with the requirement under the Housing Developers Rules for a minimum booking fee of 5 per cent of the purchase price for an option to buy a unit in a licensed housing project.

"It is also a circumvention of the minimum 5 per cent cash downpayment requirement of the Monetary Authority of Singapore," the spokesman said.

With the downpayment requirement being "a financial prudence measure" to encourage prospective buyers to make careful considerations before taking up the option to purchase, "such schemes may entice purchasers into taking up the option hastily due to the lower upfront payment".

A S$7,500 or S$10,000 subsidy on downpayment via the specimen cheques also significantly reduces the cost of forfeiting the option to purchase or even allow some buyers of the smaller units to make a gain from the forfeiture; under current rules, 25 per cent of the booking fee is forfeited if the option is not exercised.

BT also understands that should options be entered into hastily and forfeited with little cost, it may compromise the developer sales data collected by the URA. Since the legislation for detailed sales data to be provided by developers on a weekly basis kicked in on May 25, 2015, a unit is considered sold once an option is issued, given the current low abort rate.

As an industry practice, developers collect cheques from prospective buyers as expressions of interest, and the cheques are returned if no booking is made. But for GEM Residences, developers issued cheques of S$7,500 for units priced at S$800,000 and below and S$10,000 for units above S$800,000; those 2,500 cheques submitted by prospective buyers were the very ones issued by the developers.

The specimen cheque scheme was initially kept under wraps until the authorities were notified a few days before balloting day. According to the URA, it only received information on the scheme from the developers on Wednesday.

But the abrupt cancellation of the scheme was met with little disappointment from some 360 prospective buyers who packed the showflat on Friday. To make up for the last-minute change, the developers also promised a few free additional kitchen appliances from Italian upmarket brand SMEG to each buyer.

Some 297 units in the 578-unit project were sold on Friday. Evia Real Estate managing director Vincent Ong attributed the strong sales to the prime location and its "club condo" concept. Prices for the remaining units are raised by 2 per cent this weekend, he said.

The "club condo" concept is another novelty in the project, apart from the move to release a full price list for all units one week before sales commenced.

Services such as car rental, laundry, food/grocery delivery, housekeeping services or even the hiring of a private chef will be paid on demand by residents. Other services - including free dance classes, weekly health checks, and concierge services - will be paid for by the developer in the first year and the condo management will have to decide whether to continue with these thereafter.

Mr Ong stressed however that the additional costs to be borne by the developers will not translate to higher monthly maintenance fees for residents.

Property consultants note that the affordable price quantums at GEM Residences worked to its favour. "The developers' price-to-sell strategy plus its timing - with prior release of its price list that shows more attractive pricing - clearly worked to draw higher interest from buyers," said Knight Frank head of consultancy and research Alice Tan.

Prices were in the range of S$1,279-1,551 per square foot before factoring in the direct discounts or cash rebates. Some 47 per cent of units are priced below S$1 million and 73 per cent of units are priced below S$1.4 million.

Century 21 Singapore CEO Ku Swee Yong pointed out that GEM Residences likely benefited from a lack of new launches within the Toa Payoh area for the past seven years, and the strong upgraders' pool in Toa Payoh, Bishan and Braddell where HDB prices are above average in value. He added that "with recent good sales in Sturdee Residences, OUE Twin Peaks, Ardmore Three and Cairnhill Nine, it is hard to expect the minister to relax cooling measures any time soon".

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Chan Yat Chun v Sng Jin Chye and another - [2016] SGHCR 04

SILE: Invitation to give feedback on CPD Phase 3 consultation paper

Police reports filed over by-election ad breaches

Straits Times
28 May 2016
Charissa Yong

An Elections Department (ELD) officer filed police reports yesterday against a socio-political site and two individuals for violating a ban on election advertising on Cooling-off Day and Polling Day for the Bukit Batok by-election.

The reports were made against online news site The Independent Singapore (TISG), former political detainee Teo Soh Lung, who turns 67 this year, and blogger Roy Ngerng, 35, ELD said in a statement.

All three published articles online or made Facebook posts on May 6, which was Cooling-off Day.

TISG also published an article on May 7, Polling Day.

Election advertising is prohibited on Cooling-off Day and Polling Day.

The ban is to give voters time to reflect rationally on the issues raised by candidates before they vote, ELD said.

Election advertising is defined as any material posted on any platform that is intended to enhance the standing of, or promote electoral success for, an identifiable party or candidate.

In filing the police reports, the assistant returning officer considered the nature of the posts and their potential impact, said ELD.

"Socio-political sites such as TISG that regularly promote, propagate and discuss political issues should be accountable and responsible for what they publish," it added.

TISG, in particular, continued to publish articles even after being told by the assistant returning officer not to post any election advertising during Cooling-off Day and Polling Day.

As for Ms Teo and Mr Ngerng, ELD noted that they "regularly engage in the propagation, promotion and discussion of political issues".

Ms Teo, who contested in Yuhua in the 2011 General Election on a Singapore Democratic Party (SDP) ticket, published four posts on her Facebook page from 2.16am to 7.45am on Cooling-off Day.

These included an SDP photo calling for support for Dr Chee Soon Juan, the SDP's secretary-general and candidate in the by-election.

Dr Chee lost to the People's Action Party's Mr Murali Pillai, who was elected Bukit Batok MP with 61.2 per cent of the vote.

Mr Ngerng called for submissions of photographs for a campaign titled "I believe in Chee Soon Juan" in a blog post at 2.08pm on Cooling-Off Day.

Posting election advertising on Cooling-off Day and Polling Day is an offence under the Parliamentary Elections Act.

A person convicted of the offence may be fined up to $1,000, jailed for up to 12 months, or both.

The police confirmed they have received the reports and are looking into the matter.

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

Fong Wai Har v Seah Boon Chai and another - [2016] SGHCF 04

Venture Debt Programme – A new source of funding development plans for emerging entities

Business
01 Jun 2016

6 Bangladeshi workers detained under ISA charged with financing terrorism

Business Times
28 May 2016

[Singapore] SIX Bangladeshi workers detained last month under the Internal Security Act (ISA) were charged on Friday (May 27) with financing terrorism.

The six, aged between 26 and 31, were among eight men arrested between late March and early April. Calling themselves the Islamic State in Bangladesh (ISB), the men were planning attacks back home in hopes of toppling the Bangladeshi government.

Their goal was to set up an Islamic State back home and bring it under the self-declared caliphate of the Islamic State in Iraq and Syria (ISIS).

On Friday, the six men were charged with providing or collecting money for terrorism under the Terrorism (Suppression of Financing) Act.

They are Rahman Mizanur, 31; Mamun Leakot Ali, 29; Miah Rubel, 26; Zzaman Daulat, 34; Md Jabath Kysar Haje Norul Islam Sowdagar, 30; and Sohel Hawlader Ismail Hawlader, 29.

They were brought to court just before 2pm in three separate armoured trucks, under heavy armed escort.

Rahman was identified by the Ministry of Home Affairs last month as the group's ringleader.

Two of the six - Miah and Jabath - were also being charged with possession of finances for terrorist purposes under the same Act.

Except for Mamun, all the accused told the court they intended to plead guilty. They are expected to do so on May 31 at a subsequent court hearing. A pre-trial conference for Mamun has been set for June 9.

The six were the first to be prosecuted under the Act, said a police spokesman in a statement on Friday. The Act is one of several pieces of legislation passed in 2002, in the wake of the Sept 11 attacks in the United States and the foiled Jemaah Islamiyah plot in Singapore.

The police spokesman added that the Commercial Affairs Department had started its investigations into the six on April 8.

"Singapore takes a serious view of any support for terrorism-related activities, including terrorism financing," said the spokesman. "The authorities will take firm and decisive action against any person who provides, collects and/or possesses property, for terrorist purposes."

The Straits Times

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Public Prosecutor v Ang Geok Kim - [2016] SGHC 35

SHC clarifies scope of prohibition of “repeat claims” under the SOPA

Judgments
01 Jun 2016

Women lawyers still lag men in senior in-house roles

Business Times
27 May 2016
Michelle Quah

But jobs as in-house legal counsel still offer women a better chance of climbing to senior posts than in private practice: study

[Singapore] MORE women lawyers in Asia and the Middle East are opting for in-house roles, as they find it easier to ascend to senior positions in such roles than they would in private practice.

Despite this, however, they continue to be outranked by their male colleagues in in-house roles.

These were two of the key conclusions drawn from a study by In-House Community, a professional and social network for more than 20,023 in-house legal and compliance professionals.

The study was compiled from interviews conducted last year with more than 2,600 members of In-House Community from 12 jurisdictions, ranging from the United Arab Emirates (UAE) to Tokyo.

In-House Community said in a statement on Thursday that its study found that more women than men among in-house lawyers in these jurisdictions, suggesting that "it is easier for women lawyers to move into an in-house role and attain a senior position, than in private practice".

In Kuala Lumpur (KL), for example, the study found that 72.3 per cent of all in-house lawyers to be women, and that among all in-house lawyers holding a senior post - specifically that of "head of Legal" - 74 per cent were women.

In China, women made up 67.8 per cent of all in-house lawyers; among those heading in-house positions, 52.1 per cent were women.

In Hong Kong, 61.7 per cent of all in-house lawyers were women; among all Heads of Legal, 55.9 per cent were women.

However, in only four of the 12 jurisdictions - the aforementioned KL, China and Hong Kong plus Ho Chi Minh - did women outnumber men in senior in-house legal positions.

This was not the case across the board. Across the 12 jurisdictions taken collectively, women accounted for only 41 per cent of the senior in-house legal positions, with the remaining 59 per cent taken by men.

In Singapore, for example, 43.8 per cent of in-house lawyers were women; and, of those heading their in-house legal divisions, only 42.4 per cent were women.

In the UAE, women made up 40.3 per cent of the in-house legal force, but took up only 33.6 per cent of senior positions.

The gap yawned wider in Mumbai and Tokyo.

In Mumbai, 20.5 per cent of in-house lawyers were women, and only 20 per cent of the top in-house legal positions were held by women.

In Tokyo, 21.4 per cent of in-house lawyers were women, who held only 10 per cent of the top positions.

Women are thus still second to men across most jurisdictions when it comes to taking the senior in-house role of head of Legal, In-House Community said.

Still, it pointed out, the proportion of women in senior in-house roles across Asia and the Middle East is much larger than women who make partner in the traditional career path provided by private practice.

Legal recruiter Taylor Root said three-quarters (75 per cent) of partners in law firms are men.

Yvette Tan, head of Development at In-House Community, said that the option of a career as an in-house lawyer in Asia and the Middle East was relatively new, with a history of about 20 years or so.

"For the moment at least, more women hold these in-house roles. At this relatively early stage in the profession in Asia, in-house lawyers can aspire to top positions, hopeful that family responsibilities and gender are unlikely to be a barrier to advancement based on merit.

"Thirty years ago, in the early days of the technology industry, women also comprised a high percentage of the workforce. But this has been whittled down to less than 10 per cent, so there is no room for complacency."

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Novelty Dept Store Pte Ltd v Collector of Land Revenue - [2016] SGCA 15

Restricting publication of false statements using s15 Protection from Harassment Act

Legislation
31 May 2016

Ex-BSI wealth planner granted bail but stays in custody

Straits Times
27 May 2016
Grace Leong

The former BSI wealth planner who faces allegations of facilitating illicit transactions involving scandal- hit state fund 1Malaysia Development Berhad was granted bail of $600,000 yesterday.

But Yeo Jiawei, who has been in remand for 41 days, must remain in custody as the prosecution said it will challenge the bail order in the High Court.

District Judge Christopher Goh ordered a stay of the bail order pending that hearing.

In addition, Yeo was ordered to not approach or speak to any of the prosecution witnesses directly or indirectly, and to report to the investigation officer when required. His passport will remain with the Commercial Affairs Department (CAD).

Second Solicitor-General Kwek Mean Luck told the court yesterday that bail should be denied, given Yeo's "deplorable conduct in tampering with witnesses".

Mr Kwek said the risk of Yeo obstructing justice is deemed "so high" that the prosecution is prepared to work around the clock to expedite the matter for early trial of some of the nine charges against Yeo in two weeks.

"Given the extensiveness, intensity and deceptiveness with which he went about interfering with the administration of justice, there is an immediate and palpable risk to the public interest if he is released from custody.

"This is a risk that cannot be mitigated by bail conditions, especially when (Yeo) already breached earlier police bail conditions and demonstrated a willingness to take active steps to mask the hiding of evidence," Mr Kwek said.

Yeo was arrested on March 17 for alleged violations of securities laws and released on bail the next day.

But the prosecution alleged on Tuesday that he violated bail conditions on March 27 when he met Mr Kevin Swampillai, BSI's head of wealth management services, and Mr Samuel Goh, and told them "the time had come to 'collaborate' stories to provide a 'consistent response' to CAD if questioned" on funds that went to Bridgerock Investment, a firm Yeo controlled.

Mr Kwek noted that Yeo had contacted at least five different witnesses on five occasions between February and April.

"Moreover, the evidence of Yeo contacting witnesses comes not from one source or one person... (but) from multiple sources, Swampillai, Goh, Kelvin Ang, Yak Yew Chee, and another witness who informed CAD that he was told to destroy evidence," Mr Kwek said. "Each piece of independent evidence further reinforces the fact that Yeo was actively intervening with witnesses."

Ang, the second person charged with corrupt transactions in this case, was released from remand this month on bail of $100,000.

Yeo's lawyer, Senior Counsel Harry Elias, had suggested that bail of between $200,000 and $400,000 be set.

He also asked for "unhindered, free access" to Yeo and "an atmosphere where I can work with (Yeo) properly".

Mr Elias added: "The way we have seen our client in the last 40 days is appalling."

In granting bail, Judge Goh noted that "even if there had been a breach or there may be an anticipated breach of a bail condition, as (Yeo) has already been remanded for 41 days, the court has to ensure that a proper balance is to be struck in order to balance the interest of (Yeo) and that of society".

He said: "The deprivation of a person's liberty prior to his determination of guilt should never be taken lightly. All considered, I determine that, at this present juncture, I see no reason to deny (Yeo) bail."

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Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others and another matter - [2016] SGHC 34

PDPC issues advisory guidelines on enforcement of the data protection provisions and takes action against 11 organisations for breaching data protection obligations

Business
31 May 2016

No tolerance of financial breach

Straits Times
27 May 2016
Grace Leong

The looming ignominious demise of 143-year-old Swiss private bank BSI after it became embroiled in state fund 1Malaysia Development Berhad's (1MDB) scandal signals that money laundering will not be tolerated by the world's top financial centres.

The related shutdown of the bank's unit, BSI Bank, here over a "serious breach" of money-laundering regulations shows how well regulators in Singapore and Switzerland have cooperated.

Switzerland's Financial Market Supervisory Authority (Finma) on Monday noted that cooperation with the Monetary Authority of Singapore (MAS) was "particularly intensive". It said the MAS' "onsite investigations at the BSI unit in Singapore in parallel to Finma's proceedings identified comparable control failures".

In what appears to be a coordinated effort on Tuesday, the MAS moved to yank BSI Bank's licence to operate here and fined the bank $13.3 million for 41 regulatory breaches. Swiss officials opened criminal proceedings against BSI, while Finma ordered it to disgorge 95 million Swiss francs (S$132 million) in illegally generated profits. Finma also approved BSI's takeover by EFG International so long as BSI is integrated and dissolved within 12 months, and none of its top management responsible for the misconduct takes up leadership positions at EFG.

All this shows critics of Singapore's banking secrecy laws that the Republic has zero tolerance for those trying to hide criminal activity.

The MAS' drastic action is the first shutdown of a merchant bank here in 32 years. Its probes found a history of money-laundering breaches and weak financial controls at BSI Bank. Some breaches prompted MAS warnings but the bank did little to rectify the faults.The MAS is doing supervisory reviews of other financial institutions and bank accounts where suspicious transactions have taken place. It is ready to pounce if any are found to have breached regulations or fallen short of expectations.

As the 1MDB probe, spanning at least seven jurisdictions, intensifies, the question most are asking is: Who will the regulators' axe fall on next?

 

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Public Prosecutor v Chua Siew Wei Kathleen - [2016] SGHC 33

SHC holds that leaked privileged and confidential communications freely available online may not be used as evidence

Judgments
31 May 2016

Top management sets the tone in fight against money laundering

Business Times
27 May 2016

SINGAPORE'S stance against money laundering took the limelight earlier this week in dramatic fashion when the Monetary Authority of Singapore ordered the shutdown of BSI Bank's Singapore branch for breaches of anti-money laundering rules.

BSI has been under scrutiny in the past couple of years over its role as custodian bank for some US$4 billion of funds invested by the scandal-hit 1MDB. Swiss financial regulator Finma has also ordered the dissolution of the Lugano-based bank. Finma has, in fact, charged that BSI's lapses were the result of a "deliberate management decision". It said that it had highlighted "many serious risks" since 2013, such as the shortcomings related to business relationships with "politically exposed persons" whose assets and transactions were not sufficiently clarified or scrutinised. Sovereign wealth funds were apparently the bank's largest client group from which it earned "excessive out-of-market" fees. On its part, MAS found a "pervasive pattern of non-compliance" in a 2015 audit and "wilful acts of misconduct'' by several bank staff.

The announcement came as something of a shock to the financial sector for whom compliance has become a priority and a challenge. Over the past few years, financial institutions have put in place measures to scrutinise clients' sources of funds and to stem any illicit money flows particularly those arising from crime including tax evasion. At the very least, the latest development should prompt renewed vigilance, particularly in instances where the lure of a lucrative business could persuade bankers to cross the line in terms of ethical behaviour and regulatory breaches. BSI, set up in Singapore in 2005, counts as one of the smaller private banks here. It expanded aggressively, poaching nearly 100 employees from RBS Coutts in 2009. The pressure on relationship managers to garner assets was surely intense. A client the likes of 1MDB may well account for the bulk of its assets under management here, and above average fees were surely an incentive for staff to resist compliance brakes and for management to turn a blind eye.

Singapore already has a comprehensive body of AML regulations. Over the past year, it has issued notices directed at segments of the financial industry, such as insurers and banks, to further spell out procedures and risks. Private banking, in particular, is seen to inherently pose higher money laundering or terror financing risk. Banks, for instance, are to independently corroborate information on clients' source of wealth and beneficial owners. In the case of tax and other serious crimes, where suspicions are raised in an existing client relationship, MAS called for "enhanced monitoring". Where appropriate, it added, the relationship should be discontinued.

MAS's notice to banks spells out three layers of AML defence. The first is those with client-facing functions. The second is the compliance function and the third, internal audit. Over all these, good governance requires that an institution's board and senior management must bear ultimate responsibility. In the case of BSI, one of the most damning findings - and there are many - was that top management sided with the client adviser against the compliance department, as Finma has found. There are surely many object lessons in this debacle, the most pointed of which is that all prescribed defences will crumble if management is complicit. Vigilance requires a concerted effort and senior management must take the lead.

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Christie Manson & Woods Limited v Chritrs Auction Pte Limited - [2016] SGIPOS 01

Monetary Authority of Singapore Act: MAS proposes legislative amendments to enhance the resolution regime for Fis

Legislation
27 May 2016

AGC slams lawyers in last-ditch Kho Jabing appeals for abusing court processes

TODAY
26 May 2016
Valerie Koh

SINGAPORE — In a strongly-worded statement, the Attorney-General’s Chambers (AGC) on Wednesday (May 25) slammed the three lawyers who represented convicted murderer Kho Jabing for abusing court processes and demonstrating “legal opportunism”, in their last-ditch attempts to save him from the gallows last week.

Kho, a Sarawakian, was executed last Friday afternoon after he had gone before the Court of Appeal five times, with the final two challenges mounted by Mr Gino Hardial Singh last Wednesday and by Mrs Jeannette Chong-Aruldoss a day before the execution was due to take place. Mr Alfred Dodwell was then roped in by Mrs Chong-Aruldoss to argue an appeal against the court’s dismissal of her application.

The apex court had thrown out both appeals, on the basis that they were rehashed arguments, and the judges rapped Mrs Chong-Aruldoss and Mr Dodwell in particular for abusing the process of the court. The judges said such actions could not be allowed or they would “throw the whole system of justice into disrepute”.

Agreeing with the judges, the AGC said in its statement on Wednesday that the actions of the three lawyers were not in keeping with the “paramount duty a lawyer owes to the court”. It added: “It is wrong for any lawyer to assert that his duty to the clients allows the court’s processes to be abused.”

The AGC noted that it is a “cherished principle in our legal tradition that a legal practitioner must do his utmost to uphold the administration of justice”. “He must also conduct proceedings before a court in a manner that maintains the fairness, integrity and efficiency of those proceedings,” it said. “In this context, it is important to set the record straight concerning the multiple applications filed by (Mr Singh, Mrs Chong-Aruldoss and Mr Dodwell).”

The AGC stressed that the facts are clear: Kho had brutally murdered a construction worker in 2008. “His case was considered by both the High Court and Court of Appeal twice — once under the old law, and again after the law on murder was amended. The death penalty was imposed on him in both instances,” the AGC pointed out.

After Kho’s rights of appeal had been exhausted, the Court of Appeal gave him a further opportunity to present arguments for his case to be reviewed. The AGC said: “In the conduct of his matter, the actions of Jabing’s three lawyers amounted to an abuse of court processes. Simply put, this was a case where, after every legitimate avenue for legal challenge had been attempted and exhausted, legal opportunism prevailed.”

Kho’s lawyers had repeatedly raised old arguments, which were earlier dismissed by the court or withdrawn by Kho’s previous lawyer Chandra Mohan. Also, knowing that the criminal process had been exhausted, Mrs Chong-Aruldoss and Mr Dodwell “tried to skirt around the law” by raising arguments through the civil route, the AGC said. Pleading for more time to prepare their arguments, they had also tried to have the execution stayed, and asked for the hearing of Mrs Chong Aruldoss’ application and subsequent appeal postponed.

Separately, the Ministry of Home Affairs on Wednesday issued a statement to rebut “several inaccurate points” that have been made. Among other things, the ministry noted that the lawyers had not made new arguments, despite filing various last-minute applications. “It appeared that the sole purpose of the applications was to try and delay the execution which had been set for May 20, 2016,” the statement said.

Kho was first given the mandatory death penalty in 2010, after he killed Chinese construction worker Cao Ruyin near Geylang Drive by bashing him over the head with a tree branch. He mounted a failed challenge against the murder conviction in 2011, but was spared the hangman’s noose two years later when amendments to the mandatory death penalty regime came into effect. The High Court re-sentenced him to life imprisonment and 24 strokes of the cane.

The prosecution appealed, and his death sentence was re-imposed. He was due to hang on Nov 6 last year but was granted a stay less than 24 hours before he was to be executed, when Mr Mohan contended that he had new evidence. The apex court dismissed the case in April. Kho’s execution was rescheduled to 6am last Friday before the applications by his lawyers.

Following the conclusion of the case, some including lawyer Choo Zhengxi and anti-death penalty campaigner Kirsten Han spoke up for Kho’s lawyers.

“In the best traditions of the bar, Jeannette and Alfred stepped into the breach and argued their client’s case with vigour,” Mr Choo wrote on Facebook. Ms Han shared Mr Choo’s post and thanked “all the lawyers, past and present, who have tried so hard against such massive odds”.

Mrs Chong-Aruldoss and Mr Dodwell also took to social media to give their side of the story.

Mrs Chong Aruldoss said that she had received a call from Kho’s sister, Jumai, who thanked her for her efforts. “I was merely her lawyer acting under her instructions. A lawyer’s job is to explore, pursue and exhaust his/her client’s legal recourses. Jumai would not regret that she had not done enough for her brother. Neither will I regret that I did not do my best for my client,” she said.

Mr Dodwell said the lawyers “firmly believe that Kho Jabing was undeserving of the death penalty”. “So we mounted a constitutional challenge. Only in Singapore can a constitutional challenge be characterised as an abuse of process. If we invoke the supreme law of the land, the courts should not wave it away to hurry toward execution,” he said.

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ARY v ARX and another appeal - [2016] SGCA 13

SHC finds no likelihood of confusion under section 8(2)(b) of Trade Marks Act on appeal

Judgments
27 May 2016

Jason Holdings' top execs suspended after audit

Straits Times
26 May 2016
Jacqueline Woo

Potential breaches in fiduciary duties highlighted in EY report

The chief executive and group operations director of timber flooring specialist Jason Holdings have been suspended following a special auditors' report into financial dealings at the company.

The group told the Singapore Exchange (SGX) yesterday that an Ernst & Young (EY) report highlighted potential breaches of fiduciary duties in the management and administration of a key operating unit, Jason Parquet Specialist (Singapore). These included Jason Parquet having paid the hire purchase instalments of a car registered in the name of the wife of chief executive Jason Sim. In addition, when the car was reported stolen in October 2014, the balance of the insurance proceeds were not returned to the subsidiary after repayment of the outstanding loan.

As a result of the report, a special committee has suspended Mr Sim from his position, although he remains a non-executive director of the company.

Mr Sim's brother-in-law, Mr New Sze Wei, who tendered his resignation on May 1, was also suspended as group operations director.

EY said in its report tabled on Tuesday that Jason Parquet had made certain deposits and prepayments to other parties using trust receipts obtained from banks without supporting underlying goods.

The firm had also obtained accounts receivable financing from different banks using progress claims with identical work descriptions and values at different times.

EY found that there was a lack of proper agreement and documentation on payments made by Jason Parquet to various overseas parties.

There were also discrepancies between the physical quantity of inventories and the records in the accounting system, and inadequate documentation to support the writing-off of inventories, while full physical stock counts were not conducted in recent years.

The special committee that appointed EY following an internal audit report for events that took place in the first six months of last year said it believes the directors of Jason Parquet may have breached their fiduciary duties.

It added that Mr Sim, in not disclosing his interest in certain transactions, may have breached requirements under the Companies Act.

Jason Holdings' Catalist sponsor, Canaccord Genuity Singapore, has told the company that it believes both Catalist listing rules and the Code of Corporate Governance have been breached. The special committee said it plans to find an interim chief executive.

The SGX has invoked a rule that requires Mr Sim to obtain approval from the bourse operator before making any key appointments.

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Lim Mey Lee Susan v Singapore Medical Council - [2016] SGCA 14

SCA highlights need for statutory demand rules to be read in the context of the Bankruptcy Act

Judgments
27 May 2016

Foreland: SGX studies special auditor's report

Straits Times
26 May 2016
Lee Xin En

A special auditor's report into a deal that went bad for Foreland Fabrictech has suggested the company may not have conducted proper due diligence before paying out compensation.

The 400 million yuan ($84.1 million) contract for dyed textiles apparently went awry, leading the buyer to launch a successful 280 million-yuan compensation suit.

In January, mainboard-listed Foreland commissioned the report from BDO after its former auditors Baker Tilly TFW issued disclaimers on four issues, including the compensation claim, in its audited report for the 2013 financial year. The Singapore Exchange (SGX) also raised queries over the 2013 report.

The special auditor's report found that in September 2013, a wholly-owned unit of Foreland, Fulian Knitting, entered a deal to supply more than 300,000 yards of dyed textile to Jiangxi Longdu, a winter jacket maker, in a contract worth more than four million yuan. Jiangxi Longdu was to manufacture winter jackets for Mega Chinese, a Hong Kong registered firm.

In November, Jiangxi Longdu complained to Fulian about the quality of the textile supplied.

Fulian then conducted internal investigations, and hired a law firm to determine if they had breached the contract with Jiangxi Longdu. It paid 280 million yuan to Jiangxi Longdu by May 2014.

However, BDO raised a number of potential flaws with the process in which Fulian agreed on the settlement.

Fulian's three independent directors had requested to meet the law firm hired by Fulian but did not manage to do so. The three clashed with Fulian's management on the compensation issue, asking to hire another law firm but were denied. This led to their resignations in early 2014.

BDO also found that, according to the contract between Fulian and Jiangxi Longdu, the latter had 30 days to complain to Fulian of defects in the textiles supplied.

The buyer complained after the contractual time frame, the auditors found in the company's Chinese circular, but Fulian's director Tsoi Kin Chit claimed there had been a typographical error. Mr Tsoi is also the executive chairman of Foreland Fabrictech.

Additionally, BDO found that Mega Chinese had only a paid-up share capital of HK$1, casting doubt on whether Mega Chinese would have been able to pay Jiangxi Longdu.

Ms June Sim, head of listing compliance at SGX, said yesterday that SGX would study the findings of the report, and take regulatory action for any breaches of the listing rules.

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

Polo/Lauren Co LP v United States Polo Association - [2016] SGHC 32

SHC: Standing tall – The “Independent Contractor” defence for builders and construction professionals

Judgments
26 May 2016

Lessons in parenting for separating couples

Straits Times
26 May 2016
Linette Lai

Programme will be mandatory from Dec for couples who cannot agree on divorce matters

A new mandatory parenting programme for parents who cannot agree on divorce matters will start in December, said Minister for Social and Family Development Tan Chuan-Jin yesterday.

The move is meant to protect the children of couples who want a divorce by giving parents a better idea of what divorce truly entails.

"We want them to go through this programme to realise what (divorce) will involve and how the children will be impacted, so that they will think about these issues," Mr Tan said. "I hope it will also trigger them to stop and reflect, and (say) perhaps: 'Let's recover our marriage and not take that step'."

The new requirement was one of the changes made to the Women's Charter in Parliament in March and comes as divorce rates have been on a generally upward trend.

A 2015 study by the Ministry of Social and Family Development found that 16.1 per cent of those who married in 2003 had their marriages dissolved by the 10th year, double the 8.7 per cent of the 1987 cohort.

Apart from their children's welfare, the programme will get parents to think through topics such as living arrangements and finances.

For now, it is required for non-Muslim parents who have not filed for divorce and have children below the age of 14. Muslims considering divorce have a similar programme in the Syariah Court.

The new programme requires parties in conflict to attend a two-hour session conducted by one of four divorce support specialist agencies.

They are the Care Corner Centre for Co-Parenting, Thye Hua Kwan Centre for Family Harmony, Help Family Service Centre, and PPIS As-Salaam Family Support Centre.

Mr Tan met representatives of the agencies yesterday for an update on their work in the past year.

These centres offer programmes that teach divorced parents co-parenting strategies, as well as equip children to manage their feelings about their parents' divorce.

Two have also started a programme that provides a safe space for children of divorcees to meet parents on either side. These deal with acrimonious divorce cases, and try to foster healthy relationships between parent and child.

Speaking on the positive impact of counselling, senior counsellor Cindy Loh, the centre manager at Care Corner, recalled a seven- year-old who came to them half a year after his parents' separation. "He had a lot of anger and insecurity and didn't know how to express his feelings," she said. Two years on, the boy is better adjusted. "We help by telling them that the divorce is not their fault, and that they will always be their parents' children."

Mr Tan told reporters that while strong families are important, marriages do break up and help is needed - especially for children - when they do.

"Invariably, divorces happen as well," he said. "I think the whole effort here isn't about making divorces easier, but it's really about supporting families at every stage."

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

TLB v TLC - [2016] SGHCF 03

SHC cautions that the threshold for a trade mark to be considered well-known in Singapore is not minimal and must be applied with caution to maintain the balance of rights

Judgments
26 May 2016

Brother poached business, apex court rules

Straits Times
25 May 2016
K.C. Vijayan

Mr Johnny See Lam Huat had sued his younger brother for encroaching on his business by trying to sell products that were nearly identical to his in markets that he had already cultivated, such as Africa.

The High Court disagreed he had a grievance, but the Court of Appeal has now reversed that decision.

But the 55-year-old businessman was not there to hear the good news - he was killed in a car crash in Johor last July. His fight was continued by his widow, Madam Ngoi Mei Lan.

Madam Ngoi, 43, who now runs the firm, said yesterday: "My husband, Johnny, would be very happy with the judgment of the Court of Appeal, coming when Singsung, the company he founded, is celebrating its 10th anniversary."

The Court of Appeal, in judgment grounds released yesterday, found that the younger brother, Mr See Lam Seng, "was seeking to latch on to and take advantage of (Johnny's company's) efforts not just in selecting profitable devices, but also to appropriate to itself the value which (Johnny's company) had created through its marketing activities by misrepresenting an association with (Johnny's company)."

Both brothers were partners in a company called S H Econ Electrical Trading, formed in 1998 to sell electrical goods to customers abroad. The two split and, in 2006, Johnny set up Singsung, operating the same sort of business.

Three years later, Mr See Lam Seng, working in a nearby shophouse, incorporated LG26 Electronics. Adopting the brand name, LS, he sourced similar products from China to sell in Africa as well.

The appeal court noted that the younger Mr See had intended to enter "those export markets where (Johnny) was already successfully trading and to sell goods which looked identical in appearance to the Singsung products, save that a different brand name was applied".

The court, comprising Chief Justice Sundaresh Menon and Judges of Appeal Chao Hick Tin and Andrew Phang, found he intended to deceive end-users and pass off its goods as being those of the appellant's.

LS products were "inherently deceptive, in that by adopting indicia distinctive of the appellant, they tell a lie about themselves," wrote the Chief Justice on the court's behalf.

The court also overturned the High Court ruling and held that Mr See Lam Seng, defended by lawyer Philip Ling, had breached copyright in the use of two of three items in dispute. The court set aside a High Court order against the late Mr See for making a groundless threat under the Copyright Act against his brother, and suggested this area of the law could do with possible reform. The court, among other things, ordered damages payable to Singsung to be assessed.

Madam Ngoi, represented by lawyer Adrian Tan said: "We developed Singsung to one of the most famous brands in Africa. Although he has since passed away, we know that he would have been very grateful to the court for protecting his brand that he built from scratch."

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

Singsung Pte Ltd v LG 26 Electronics Pte Ltd (trading as L S Electrical Trading) [2016] SGCA 33

HSBC Trustee (Singapore) Limited v Carolyn Fong Wai Lyn & 4 ors - [2016] SGHC 31

An appeal on the merits unmasked - High Court dismisses application to set aside arbitral award

Judgments
25 May 2016

Software designed to help SMEs with legal documents

Straits Times
25 May 2016
Chia Yan Min

VanillaLaw aimed at generating a 'reasonably well-crafted' first draft to help save time, cost

A boutique law firm has designed software to help small and medium-sized enterprises (SMEs) with their legal documents.

Called VanillaLaw, the software from law firm MG/Chambers allows users to generate a "reasonably well-crafted" first draft of legal documents, which can then be passed on to lawyers.

"In my personal experience, I have seen small business owners trying to replicate contracts and other documents by themselves, their intention being to save on legal fees," said MG/Chambers director Mark Goh.

"Tragically, this misguided attempt puts them in a far worse plight.

"One of the common mistakes they make is to select an inappropriate template from the Internet," he added.

MG/Chambers focuses on corporate and commercial work for SMEs, start-ups and family- owned businesses.

The firm said VanillaLaw cannot completely eliminate the services of a lawyer, but is a "hybrid system" that can help save time and legal costs.

The software is available at an annual subscription fee of $250 with varying one-time implementation fees, depending on the complexity of the agreement.

The firm is also in talks with trade associations to offer VanillaLaw to micro-businesses on a pay- per-use basis.

"Feedback attained through these meetings revealed that the software's one-time implementation costs are competitive as compared to agreements offered by other law firms," said MG/Chambers in a statement yesterday.


MAKING THINGS WORSE

In my personal experience, I have seen small business owners trying to replicate contracts and other documents by themselves, their intention being to save on legal fees. Tragically, this misguided attempt puts them in a far worse plight.

MG/CHAMBERS DIRECTOR MARK GOH

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

Public Prosecutor v Chum Tat Suan - [2016] SGHC 27

Auction house Christie’s succeeds in opposing registration of competitor’s Chritrs mark

Judgments
25 May 2016

Court ups sentence of man involved in fracas, criticises prosecutors

TODAY
25 May 2016
Siau Ming En

SINGAPORE — Information painting a “fuller picture” of the circumstances of a case is needed by the court to help in its decision and sentencing, said a High Court judge, who criticised prosecutors for tendering an “inadequate” statement of facts (SOF) for a case, even as he granted their appeal for a tougher sentence.

The case involved a man who had hit his victim on the head with a glass bottle on July 6, 2014. Andrew Koh Weiwen, 27, was initially sentenced to two days’ jail and fined S$5,000 for the offence. His sentence was raised to a four-week jail term after Justice Chan Seng Onn granted the prosecution’s appeal.

In a written judgment released yesterday, Justice Chan noted that there were several facts — some disputed — relevant to the sentence that were not ascertained or resolved at the district court hearing. This includes the surrounding circumstances prior to Koh hitting the victim, Mr Lai Yongwen, on his head; if others were involved; and whether Koh was injured, among others.

He noted that Koh’s assertion in his mitigation plea that he was helping his friend who was being assaulted had been objected to by the prosecution, which had said this was not “borne out by investigation”.

But the SOF gave the impression that any fracas that occurred was only between Koh and Mr Lai, and no one else was involved, said Justice Chan, who also called the SOF tendered by the prosecution and admitted by Koh “inadequate and bare”.

Eventually, both parties explained that the fracas was verbal — and not physical — before Koh hit Mr Lai, and the fight only turned physical after that.

Had both parties not agreed on the relevant facts for sentencing, Justice Chan said he would have sent the case back for a Newton hearing, which is held to resolve disputed points for sentencing.

Justice Chan said that prosecutors may at times tender an SOF “light in narrative detail” to “dispose of cases quickly for practical reasons”, but an SOF is crucial in setting out the admitted facts for the court’s consideration when it comes to sentencing cases where an accused has pleaded guilty.

He also said that cases of voluntarily causing hurt “may not be so easily dealt with” without all relevant facts material to the sentence.

“Unless constrained by the plea bargaining process or other valid practical reasons, the SOF tendered by the prosecution ought to paint a fuller picture and flesh out the relevant facts material to both guilt and sentence to assist the judge, given that the factual circumstances in each case can vary greatly and the sentencing range for the offence is fairly wide,” he added.

On Koh’s sentence, Justice Chan noted that both the prosecution and the district judge had used different starting points — the former argued that a jail term of a few weeks should be imposed when a dangerous weapon is used, while the district judge noted that offences that cause minor injuries are dealt with by fines unless there are certain aggravating factors.

Taking into consideration all sentencing factors, Justice Chan said that he found Koh’s earlier sentence to be “manifestly inadequate”.

Noting the unprovoked, sudden and sustained nature of the attack where a dangerous weapon had been directed with considerable force at the head of the victim, who was waiting for public transport in the early hours of the morning, he granted the appeal.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Public Prosecutor v Andrew Koh Weiwen [2016] SGHC 103

Ser Kim Koi v GTMS Construction Pte Ltd - [2016] SGCA 07

SHC: Grant of security may be avoided as a transaction at an undervalue?

Judgments
24 May 2016

Paying twice for bunkers

Business Times
25 May 2016
David Hughes

The collapse of OW Bunker has created a legal tangle along the supply chain for fuel

IT is a truism that shipping is a global industry. As result, it can also be a complex one, especially when it comes to legal matters. Very often, decisions in national courts can have world-wide ramifications.

This is certainly true in cases resulting from the collapse of the Danish company OW Bunker in 2014, which has led to various parties trying to recover payments for fuel. There have been legal rulings related to OW Bunker in, probably among other places, Singapore, Australia, Canada and the UAE.

Recently, though, attention has focused on a case before the UK Supreme Court; the action was brought in the UK as the transaction was subject to UK law, but shipowners and bunker suppliers around the world could be affected and are following developments closely.

The OW Bunker bankruptcy has meant a busy time for the UK Defence Club, a mutual insurer which provides legal-cost insurance to the maritime industry. In particular, it provided the legal support for what has become a test case, that involving the vessel named Res Cogitans.

The insurer noted: "The Court has held that the contract between the owner [UK Defence Club], the member and OW was not a contract for the sale of goods, but simply a contract which entitled the member to use the bunkers, with a corresponding obligation to pay for them. The Sale of Goods Act therefore does not apply to this type of contract."

It added that the UK Defence Club, which has supported its member throughout this case, "has been committed to resolving this extremely important point for this member and for the industry generally".

While much of the reasoning seems arcane to the non-lawyer, the implication is that shipowners could find themselves paying twice for bunkers supplied under OW Bunker contracts - or have their ship arrested in many ports.

The UK Defence Club advises that, given the outcome of this case, ship owners and operators will need to review their bunker contracts to protect themselves against such situations arising in the future.

UAE maritime lawyers Fichte & Co said: "UAE law grants physical bunker suppliers the right to arrest vessels based on the supply of bunkers, leaving ship owners at the risk of having to pay both OW Bunker and the physical supplier.

"Indeed, the Dubai Supreme Court has confirmed an arrest for bunker supply, even where the intermediary bunker trader had been paid in full."

Fichte has thus advised ship owners to think twice and seek legal advice before subjecting their vessels to the risk of being arrested.

There is a voice of reason to be heard amid all this legal confusion. The International Bunker Industry Association (IBIA) is calling for the industry to think innovatively to "overcome the unfortunate situation that has arisen as a result of the OW Bunker collapse, leaving end buyers vulnerable to multiple demands for payment for the same stem".

IBIA noted that, historically, the legal framework within which the bunker industry operates has always been uncertain, due to the international nature of bunker supply and shipping, meaning they are dealing with a multitude of legal regimes.

The body which represents both bunker sellers and ship owners argues that the Res Cogitans ruling, along with rulings emerging from other countries in connection with the OW insolvency, highlights the need for continued, effective industry-wide cooperation, to develop sales terms which are fair and fully understood by each participant in the fuel sale process.

Uniformity in sales and credit

It says it expects that the various legal outcomes relating to OW will encourage focus and, it is hoped, cooperation between all parties, including lenders, to develop greater uniformity and predictability of bunker sales and credit practices.

IBIA added that, looking at the various outcomes of legal proceedings evident in the wake of OW Bunker's demise so far, its legal working group has highlighted a decision (pending appeal) by the Federal Court of Canada in the Canpotex case, which might point to a more fair and balanced way forward.

In this case, the current ruling suggests all parties in the sales chain should get only what they originally bargained to get, meaning OW would only be entitled to its trader margin, with the rest of the payment going directly to the physical suppliers. Crucially, the ultimate buyer would make only one payment, corresponding to the sum contracted for the fuel supplied.

Effective cooperation would result in suppliers being paid for their supply, traders being paid where they take title, brokers being paid their commission, and lenders being assured of their security for loans to suppliers and traders.

Overall, when a customer makes payment, that customer must be assured that it will not have to make the payment more than once.

With luck, this case could point to a way forward. But, whatever the outcome, it is hard the overstate the damage and misery the OW Bunker collapse has caused. Everybody in the supply sector will look closely at the contracts they are asked to sign.

This can only mean even more work for lawyers.

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

Isabel Redrup Agency Pte Ltd v A L Dakshnamoorthy and others and another suit - [2016] SGHC 30

SCA considers shipowner's liability under the concept of agency by estoppel

Judgments
24 May 2016

MAS to shut down BSI Singapore for anti-money laundering breaches

Business Times
25 May 2016
Anita Gabriel

[Singapore] IN a decisive move that stunned private banking circles here, and one that could turn the spotlight on other private banks in Singapore, the Monetary Authority of Singapore ordered the local branch of Swiss bank BSI SA to shut its 11-year operations due to suspicious transactions and relationships. The bank has been embroiled in probes in different jurisdictions into scandal-hit 1Malaysia Development Bhd (1MDB).

MAS also slapped financial penalties of S$13.3 million on the bank for 41 breaches of anti-money laundering rules including failure to conduct enhanced customer due diligence on "high risk accounts" and to monitor suspicious customer transactions.

"BSI Bank is the worst case of control lapses and gross misconduct that we have seen in the Singapore financial sector," said MAS managing director Ravi Menon.

BSI Bank, which employs 200 people, was the custodian bank for some US$4 billion of funds invested by Malaysia's troubled state-backed firm — BSI's clients include 1MDB, related entities and Malaysian tycoon Low Taek Jho - while assets of several of its former staff have been frozen as a result of the Commercial Affairs Department's probe into the beleaguered firm, deemed the most complex ever undertaken by the white-collar crime buster.

The 1MDB money trail is being investigated in at least seven other jurisdictions including Switzerland and the United States, with the clearest and serious outcome so far unfolding right here in Singapore. It also serves, in MAS's own words, as a "stark reminder" to all financial institutions to take their anti-money laundering responsibilities seriously.

MAS's statement was quickly followed by statements from the attorney-general offices of Singapore and Switzerland, also centred on the Swiss bank. The decision by Singapore's financial regulator was a culmination of three checks carried out on the bank since 2011, the latest involving an "intrusive inspection" in 2015 which found multiple breaches of anti-money laundering rules.

The last time that MAS took the severe step of withdrawing its approval for a merchant bank was in 1984, when Jardine Fleming (Singapore) Pte Ltd was shut down for serious lapses in advisory work.

"This is a strong and clear message from the Singapore regulator, and one which seems to go much farther than many market practitioners probably thought likely," said Michael Stanhope, founder and chief executive officer of Hubbis, a wealth management consultant.

Rarer still was the disclosure by MAS that six people whom it named - most were formerly with RBS Coutts in Singapore before joining BSI about five years ago - have been referred to the public prosecutor for criminal offence assessment.

The lapses and failings at the bank led by actions and omissions of these people and senior management's "gross dereliction of duty" and oversight failure had led to the decision to withdraw the bank's status as a merchant bank, said the regulator.

Those named are former CEO Hans Peter Brunner, former deputy CEO Raj Sriram, wealth management services head, who has been suspended, Kevin Michael Swampillai, and senior private bankers Yak Yew Chee and Yvonne Seah Yew Foong.

Yeo Jiawei is the only one who was named that has been charged. He is accused of nine offences, ranging from money laundering, forgery, cheating and obstruction of justice.

According to MAS, several of the bank's staff committed wilful acts of misconduct such as material misrepresentations to auditors, abetting improper asset valuations and taking instructions from persons other than customers' authorised representatives on matters relating to customers' accounts.

According to MAS, several of the bank's staff committed wilful acts of misconduct such as material misrepresentations to auditors, abetting improper asset valuations and taking instructions from persons other than customers' authorised representatives on matters relating to customers' accounts. It said that it was also reviewing other financial institutions and bank accounts through which suspicious and unusual transactions have taken place.

Singapore's Attorney-General Chambers, in acknowledging MAS's findings from its check on BSI Bank, said that it was working with CAD to review the facts before assessing the next course of action on the named individuals. But not everyone seemed satisfied with the pace of the probe, chiefly because thus far, only the alleged facilitators of the scandal appear to have been brought to task. "What about those who committed the crimes? The principals?" asked an impatient 1MDB watcher.

Switzerland's Office of the Attorney General (OAG), meanwhile, revealed that it has opened criminal proceedings against BSI SA based on findings of criminal proceedings in the 1MDB case and issues raised by its Financial Market Supervisory Authority (Finma). "The information suggests that the offences of money laundering and bribery of foreign public officials currently under investigation in the context of the 1MDB case could have been prevented had BSI SA been adequately organised."

The series of announcements by regulators here and in Switzerland was no doubt shattering for Lugano-based BSI SA, which managed 84 billion Swiss francs (S$117 billion) of client money as at end 2015.

The bank has issued a statement that group chief executive officer Stefano Coduri, who has helmed the bank since January 2012 and has spent his entire career at BSI (since 1989), has stepped down with immediate effect and is succeeded by BSI board member Roberto Isolani.

It also took pains to reiterate that the acquisition of BSI by EFG International, a Zurich-based private bank, that has been approved by Finma, is on track, adding that it has cooperated fully with the authorities in Switzerland and Singapore.

Finma also warned that the risk of money laundering has risen in recent years and that it was preparing to penalise six Swiss banks over their ties to alleged corruption in Malaysia and Brazil, reported Bloomberg.

BSI is a good example of the global reach of these kinds of scandals. "You have transactions that have run chiefly over Singapore, partly over Switzerland and also other financial centers . . . so this is an issue for the financial industry worldwide," said Finma chief executive Mark Branson.

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

Lim Koon Park v Yap Jin Meng Bryan and others - [2016] SGHC 29

Steady progress in IP cooperation between Singapore and Cambodia, expediting quality patent grants

Business
24 May 2016

Ex-BSI banker accused in 1MDB probe made implicit threats to Yak: prosecutors

Business Times
25 May 2016
Anita Gabriel

[Singapore] SINGAPORE prosecutors claimed that ex-BSI banker Yeo Jiawei, the man who played a key role in the transactions believed to involve 1Malaysia Development Berhad (1MDB), had contacted former colleague Yak Yew Chee, soon after Yak filed a criminal motion this year to release his assets seized amid the ongoing probe by regulators here.

It was revealed in court on Tuesday that Yeo sent Yak a message via encrypted messenger Telegram: "Why did you do such a stupid thing? You have gained nothing but lose so much. Anyway, they are very unhappy with you."

In the prosecutors' submission that Yeo be denied bail, Second Solicitor-General Kwek Mean Luck said it is believed that the "they" in Yeo's message were his principals.

"Investigations have also shown that the accused has also attempted to influence Yak by making implicit threats to him," said Mr Kwek.

Yak, a former senior private banker at BSI, has had 12 of his bank accounts worth S$9.7 million frozen by the Commercial Affairs Department (CAD) in the probe into 1MDB. Yak, whose clients included Penang-born tycoon Jho Low and 1MDB entities, is among six individuals from BSI who have been referred by the Monetary Authority of Singapore to the public prosecutor to be evaluated for possible criminal offences.

For the first time since he was charged last month, Yeo appeared in person at court and not via video link.

At the seventh mention on Tuesday, prosecutors added two fresh charges on him; this brought the tally to nine charges so far, ranging from those for money laundering, forgery, other cheating charges to obstructing the course of justice.

Mr Kwek said investigations revealed that Yeo had met Kelvin Ang, the second person charged with corrupt transactions in the 1MDB case; Ang was released from remand this month on bail of S$100,000, after being questioned by the authorities in early April. Their communication took place before Yeo was formally charged on April 16.

Mr Kwek said: "The communications unmistakeably show that the accused has no compunctions perverting the course of justice."

He added that Yeo had also contacted Kevin Swampillai - BSI's head of wealth-management services, another of MAS' list of six - to tell him to "stick to the story" discussed earlier and to "play poker" with the CAD.

Yeo's lawyer, Senior Counsel Harry Elias, said this was the first time an accused person has been held in remand for 38 days straight; he also noted that only two of the nine charges against Yeo were non-bailable.

"There is nothing new in the new charges. We are seeing replication of the earlier piecemeal charges. (The prosecutors) know it all. What's the point of keeping my client in remand, but to show that they call the shots?"

Mr Elias suggested that a bail of between S$200,000 and S$400,000 be set for Yeo.

District Court Judge Christopher Goh said he will review the submissions for no bail and set the next session for Thursday.

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

Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd and others (King Wan Construction Pte Ltd and others, third parties) - [2016] SGHC 28

SCA: Whether “third party security” has to be specified in a statutory demand

Judgments
20 May 2016

Laws already in place, but BSI chose to ignore them

Business Times
25 May 2016
Siow Li Sen

Legal eagles, bankers say it's not a witch hunt and rules won't escalate; but it's a compliance wake-up call for banks

IN 2009, Hans Peter Brunner was said to have dealt his former employer RBS Coutts a body blow when he decamped to BSI with 90 employees, or about a third of the bank's headcount.

The "exodus", which was to build up BSI, the Swiss-based Italian private bank which has since been acquired by EFG International, was said to have left former colleagues feeling bereft, given that he was the CEO of RBS Coutts at the time.

Some of them now must be having a schadenfreude moment after hearing that the Monetary Authority of Singapore on Tuesday has shut down BSI for serious misconduct and that six BSI senior managers including Mr Brunner have been referred to the Public Prosecutor to evaluate whether they have committed criminal offences.

Prosecutors have already filed charges against former BSI wealth planner Yeo Jiawei who is in remand.

MAS has also fined BSI S$13.3 million for breaching money laundering laws.

MAS's move comes as other central banks intensified their investigations into suspicious money movements involving Malaysian state fund 1Malaysia Development Bhd (1MDB) whose advisory board was headed by Malaysian Prime Minister Najib Razak. Both 1MDB and the premier have denied wrongdoing.

The Swiss financial regulators also announced on Tuesday that they would dissolve the Lugano-based BSI Bank and ordered the seizure of 95 million Swiss francs of BSI's "illegally generated" profits.

The Swiss supervisor Finma accused BSI of "serious breaches" of money-laundering rules in its dealings with 1MDB.

BSI said on Tuesday that it has cooperated fully with the authorities in Switzerland and Singapore in the probe into 1MDB arising from activities occurring between 2011 and April 2015.

"MAS's regulatory actions on BSI Bank arose from serious lapses by the bank in connection with suspicious transactions and relationships, including with 1MDB-related entities, and broader failings in management oversight," said an MAS spokeswoman.

BSI's closure dominated chatter around water coolers in financial offices yesterday afternoon, said one private banking executive, who described the episode as "scary".

Scary is probably the right word as MAS cracks its whip, as this is unlikely to be the only action. The last time MAS closed a bank down for gross misconduct was in 1984 when Jardine Fleming (Singapore ) Pte Ltd was shuttered for serious lapses in its advisory work.

MAS said that it was conducting supervisory reviews of several other financial institutions and bank accounts through which suspicious and unusual transactions have taken place.

In late March, The Australian newspaper said that close to 40 banks are being asked by MAS to provide information about money flows related to 1MDB.

What MAS has done - and some will argue that it should have come sooner - is to safeguard Singapore's reputation as a place where the law works.

They also wonder if the axe will fall on bigger and more well known banks. Reports have said that Tim Leissner, who was Goldman Sachs South-east Asia chairman until he left earlier this year, is being investigated by US prosecutors. Mr Leissner was in 2002 head of investment banking in Singapore.

The prosecutors are said to be looking into Goldman Sachs's role in helping raise more than US$6 billion via bond sales in 2012 and 2013 for 1MDB.

MAS has said that it would do all it takes to eradicate wrongdoing to protect Singapore's reputation, and there is no reason to doubt its resolve. As managing director Ravi Menon said: "MAS is absolutely committed to safeguarding the integrity and reputation of Singapore's financial centre. On this, there can be no compromise."

Lawyer Robson Lee agrees with MAS's move. "The costs of tardy compliance by market players and an indulgent regulator will be fatal and final for our market reputation. This must not be allowed to take root in Singapore," said Mr Lee.

Those with "clean" money have nothing to fear and it is ridiculous to say that the central bank's action could lead to increased compliance costs.

A banker said that she has not heard that compliance has become more onerous, nor that it is taking longer to get new clients who have all the required documents.

In fact, as MAS noted, BSI senior managers chose to ignore concerns raised by the bank's compliance officers, so it was wilful disregard for the law, rather than the absence of controls.

"I don't think banks need to go into a tailspin of panic. This is not a witch hunt for minor infractions," said lawyer Stefanie Thio. But those who have been lax with their compliance controls and supervision should gird themselves, she added.

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

La Dolce Vita Fine Dining Co Ltd and another v Deutsche Bank AG and another and another matter - [2016] SGHCR 3

IPOS launches Mediation Promotion Scheme to fund IP mediation

Business
20 May 2016

Quarterly reporting: Should the practice continue?

Business Times
25 May 2016
Michelle Quah

In this divisive debate, an argument can perhaps be made that, on balance, there is reason to keep the practice, and even extend it to smaller businesses as well

[Singapore] MANDATORY quarterly reporting - should it stay or should it go?

It is a debate that has proven divisive the world over, not least in Singapore, which is now reviewing the need for the practice.

The Singapore Exchange (SGX) said in January that it will study whether the local market still needs quarterly reporting; while it has not stipulated an end-date to its review, it is understood the outcome will likely be announced in the next couple of months.

Deciding whether to keep quarterly reporting will be a difficult and complex task, given that there are equally strong arguments for and against the practice. The regulator will also have to balance global developments against the demands of the domestic market.

One hopes that, when assessing the domestic market, the needs of the investing public will bear as much weight as those of the listed companies.

What others have done

Jurisdictions across Europe have been dropping the mandatory requirement for quarterly reporting. The United Kingdom quietly scrapped the need for quarterly reports at the end of 2014 to reduce the reporting burden on companies; it did this ahead of the European Transparency Directive, which ended the obligation of companies listed in the UK and Europe to produce quarterly reports by November 2015.

In Hong Kong, quarterly reporting is compulsory only for firms listed on the junior board.

The United States is, however, holding onto the practice, despite much resistance and criticism against it.

Malaysia and Thailand also require their larger listed companies to produce quarterly reports.

Singapore has had it since 2003 - only for the mid- to large-sized companies (with a market capitalisation equal to or exceeding S$75 million) since 2006.

Should it hold on?

The economic and regulatory landscape here and elsewhere has altered in the last 13 years, so one would need to examine the key arguments for and against such a practice in today's context:

For: Quarterly reporting provides timely information to investors about a company's state of affairs

There is no doubt that quarterly reports give a timely update to investors, but is there value to having such information at this frequency?

Some quarters - notably institutional investors and sovereign wealth funds - have argued stridently against the need for financial reports every three months, believing that putting out such reports every six months or once a year to be sufficient; they feel investors should be focused on the long-term strategy of the company, performing more as investors than traders.

However, it has to be pointed out that large investors, such as the institutional investors, the money managers, the high-net-worth individuals investing through private banks, and sovereign wealth funds have access to listed companies the way retail investors do not.

Large investors can, and do, often call for frequent meetings with the management of the company they invest in - at least as often as every three months - to update themselves on their investment. Many even have representatives or nominees who sit on the boards of these companies so they are apprised of how their investment is faring. Retail investors do not have the same clout and lack the same access.

One could argue that if the large investors feel the need to meet with companies or be updated that often, retail investors would also need similarly frequent updates on their investments. Take away the large investors' access to their companies, and they might sing a different tune.

Against: Quarterly reporting creates short-termism

This has been an oft-cited criticism of quarterly reporting and, now, academics have also purportedly found evidence of this.

Professors from the City University of London and Duke University said in a paper in April 2014 that firms which increased their reporting frequency reduced their spending on long-term assets. They said this "reflects the effect of managerial myopia induced by increased reporting frequency".

But they also said that they could not determine whether the costs of more reporting outweighed the benefits of the information.

There are also those who say that quarterly reporting increases the volatility of a company's shares because of the more frequent release of price-sensitive information.

Certainly, an overemphasis on quarterly results may lead some to lose focus on the longer-term goals. There is no doubt that quarterly reporting absorbs the attention of management to a degree.

But one could argue that keeping track of such frequent data is already within the purview of most managers' work. Quarterly reporting is simply an extension of that. To become obsessed with producing good results every quarter is not the fault of quarterly reporting, but the fault of the people who insist on putting such effort into window-dressing every quarter, instead of on focusing investors' attention on the company's mid- to long-term goals and its longer-term strategy.

Amazon.com Inc, listed on the US Nasdaq, is a case in point. It often fails to turn a profit in its quarterly reports, yet has sold investors on its long-term future.

Certainly, rather than merely blaming quarterly reporting for a stock's volatility, companies should first make a greater effort to communicate their vision and long-term strategy to their investors.

And, if a quarter's result was better or worse than expected, companies should make the effort to explain to investors how that quarter's showing sits within the broader corporate performance.

More frequent reporting would also be beneficial for companies that operate in more volatile environments, for example, the new age, digital companies such as Facebook and Twitter, whose business cycles appear considerably more compressed, and those operating in cyclical industries with more unpredictable earnings, such as commodities and oil and gas. More regular and frequent updates from these companies will help keep their investors better informed and better manage their expectations.

For: Mandatory quarterly reporting helps add depth and liquidity to the market

This is especially the case for generally illiquid counters, less-well-known companies, and those listed in foreign jurisdictions - companies whose investors might have difficulty obtaining information about them. Mandatory quarterly reporting would provide investors with more data about their performance and also help to generate more interest in them.

The problem, however, is that it is currently the smaller companies (those with a market cap of less than S$75 million) which are exempt from quarterly reporting; these are also typically the counters that attract less investor interest.

As for foreign listings, corporate governance advocate associate professor Mak Yuen Teen pointed out, in a letter to The Business Times earlier this year, that exempting them from mandatory quarterly reporting could have adverse effects: "When quarterly reporting was first introduced, the pursuit of foreign listings had not yet started in earnest. Today, 37 per cent of our listed issuers are foreign listings and 15 per cent are from China.

"Many of these foreign listings have relatively low market capitalisation. In the case of Chinese companies, they would be required to report quarterly if they are listed on a stock exchange in China. Would the SGX be comfortable with exempting these foreign listings, especially the S-chips, from reporting quarterly to shareholders, given the widespread concerns about their governance and transparency?" he asked.

Against: Mandatory quarterly reporting adds substantially to a company's reporting requirements

There is no doubt that mandatory quarterly reporting is an additional burden on companies. But so are half-yearly reports.

One could argue that an additional duty is justifiable if the result it produces outweighs the effort put in. In this case, one could say that more timely reports are more useful to investors - a benefit that outweighs the cost.

Also, the size of that burden would vary from company to company. Large companies with the resources and the infrastructure in place to churn out such data are in a good position to manage the extra requirement.

Still, exempting smaller companies is not always the answer. Sometimes, it is precisely the small companies which need quarterly reports, as mentioned above.

It is also important to point out that the UK's Financial Conduct Authority, which effected the end of mandatory quarterly reporting there, said that the change is not expected to save firms significant amounts of money, as such statements are often brief and cover the same ground as internal record-keeping.

For: Quarterly reporting could reduce a company's cost of equity

Last August, the Wall Street Journal pointed to academic studies that have stated that, by reporting quarterly instead of semi-annually, companies are able to reduce their cost of equity because shareholders will be more willing to take additional risk with more information.

One study, it said, found that more frequent disclosures actually led to higher price/earnings ratios.

Against: Quarterly numbers may not be as useful to investors

At the same time, there have also been studies that have purported to show that quarterly earnings reports are less useful to investors.

A study commissioned by the Big Four accounting firms here and conducted by the School of Accountancy of the Singapore Management University, out in July 2015, looked at 307 Singapore-listed companies which reported quarterly earnings between 2011 and 2013. It found that investors reacted more strongly to earnings in the final quarter than those in the interim quarters.

One could argue that quarterly numbers are, therefore, less useful to investors. But it also needs to be pointed out that the study concluded that investors may have reacted less to quarterly figures because they are unaudited.

"Investors are likely to attach lower reliability to unaudited interim-earnings numbers than to audited final-earnings numbers, and hence respond less strongly to the former," it said.

In the end?

So, what should Singapore do?

Some have suggested keeping the benefits of quarterly information, but removing the burden on companies by making quarterly reporting a purely voluntary exercise.

Or, one could take away quarterly reporting but leave it to the companies to issue earnings guidance, such as profit warnings, as they see fit.

The problem with voluntary quarterly reporting is that it would widen the reporting inconsistencies between companies, making it more difficult for investors to make informed decisions.

And, giving companies the discretion to issue earnings guidance could lead to not only inconsistencies, but possibly also insubstantial information. We are all aware of the press releases accompanying results, which attempt to focus only on the positives of the financial data, while omitting mention of the more negative aspects.

Earnings guidance announcements without the accompanying quarterly financial data would leave investors at the mercy of companies' public relations efforts, without the benefit of the actual numbers to properly guide them.

Of course, having said all that, one also needs to be cognisant of the times. With more jurisdictions pulling away from quarterly reporting, Singapore could appear to be a more unattractive investment destination if it chooses to keep the practice mandatory. And international competitiveness is a crucial component of Singapore's success as a global financial hub, the importance of which cannot be overstated.

But also contributing to Singapore's success is the efficacy of its regulatory regime. SGX's chief regulatory officer Tan Boon Gin recently spoke of the need for a new openness, of how transparency underpins our disclosure-based regime, and of the need "to not just have SGX as the primary gatekeeper, but to have the entire industry as the primary gatekeeper".

That openness from the SGX and its listed constituents is arguably the way forward. And so, as vastly unpopular as the notion may be among corporates, one feels that Singapore ought to not only keep quarterly reporting, but consider extending the requirement to its smaller companies, as Hong Kong does.

At the end of the day, the fundamental question may well be: "If an investment matters to you, how often do you need to check on how it's doing - every three months, or only once every six months?"

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

Koh Bak Kiang v Public Prosecutor - [2016] SGHC 26

Latest developments: Healthcare

Business
20 May 2016

Organ donation: Consider mandated consent

Straits Times
25 May 2016
Donald Low

Despite the fact that Singapore is one of the few countries in the world that have implemented an opt-out system in organ donation, the number of organ donations remains low. In fact, it has remained low since 1987, when the Human Organ Transplant Act (Hota) was passed. Hota changed the former opt-in system - in which persons who wished to donate their organs for transplant, research or education purposes when they die under certain conditions could register to do so - to an opt-out one.

With the passage of Hota, Singaporeans are presumed to have given their consent for the removal of specified organs for use in organ transplants upon death. They could choose to opt out of being an organ donor, but if they do nothing, they would be legally viewed as having given their consent to be organ donors.

Hota was inspired by a well-known insight of behavioural science - that people are generally lazy, and that the vast majority of us stick with the defaults (or the status quo options) set for us. The implication of this finding is that, to the extent possible, governments should automatically enrol citizens in a programme deemed worthwhile while still maintaining the choice for them to opt out with as little fuss or friction as possible. Setting participation as the default allows governments to take advantage of, rather than have to overcome, people's inertia and procrastination.

Hota was subsequently amended in 2004 to include all causes of death and to allow the removal of additional organs (specifically the heart, liver and corneas) for transplantation. Muslims were also included as potential donors in the legislative change.

Yet despite this, organ donation numbers remain extremely low, with just 58 such transplants last year compared with 69 in 2006. The average wait for a kidney, The Straits Times reports, is still nine to 10 years, and one to two years for a liver or heart.

So what explains the unusually low number of organ donations in Singapore despite the fact that almost all of us are potential organ donors? The purpose of Hota was not to have a high percentage of potential donors among the population for its own sake. It was to increase the number of actual organ transplants. While Hota was clearly a success in terms of the number of potential donors, it has been a failure when it comes to the real measure of whether it raised the number of donations and transplants.

The Ministry of Health (MOH) says that "even with legislation... there is a need to continuously engage the public to raise awareness about the issues around organ donation and transplantation, including the benefits of transplantation".

But is public education really the answer?

After all, changing the system to one of presumed consent obviates the need for public education, and raises the number of potential donors automatically. Why would the Government need to educate the public on the importance of organ donation when the vast majority of us (that is, those who have not opted out of organ donation) are presumed to have given consent to have our organs harvested if we die under certain circumstances?

The fact of the matter is that the problem does not lie with too few potential donors. Only a very small minority of Singaporeans have chosen to opt out of being potential organ donors.

The source of the problem is that the current system of presumed consent represents a weak form of consent. Knowing this, emergency ward doctors find it extremely difficult to insist on organ donation if the loved ones of the patient found suitable to be a donor object.

To understand why this might be, consider for a moment the individual who, like the vast majority of Singaporeans, has not opted out of organ donation. The question is: Does he genuinely want to donate his organs?

The problem with the current opt-out system is that it does not distinguish between two groups of people. The first is made up of persons who have made a conscious, deliberate decision to be organ donors. A failure to harvest their organs for use in transplantation would represent a failure to respect their wishes.

The second group is made up of persons who, whether out of procrastination, inertia or a failure to think about what their preference is, have not got round to opting out of being organ donors.

The legal position from Hota is clear: Both groups are treated the same, since a failure to opt out represents consent to be an organ donor. Even though the legal position of Hota is clear, emergency ward doctors typically do not know which group a brain-dead patient belongs to. They would find it both emotionally difficult and ethically questionable to raise the issue of organ donation with the loved ones. It would be even harder for them to treat the people in the second group as they would people in the first.

In the absence of information about the genuine preferences of the patient, they would quite understandably choose to err on the side of caution (of not harvesting) rather than insist on the legality of harvesting the organs of any patient who has not opted out.

So what is to be done? Changing the system back to one of opt-in is not a solution at all, as it is likely to result in very few people overcoming their inertia and procrastination to register as donors.

Nor is public education alone sufficient. Hota has been around for nearly 30 years - if public education can work, it would have worked already.

The most sensible thing MOH can do is to move from a system of presumed consent to one of mandated consent. In most American states and in Britain, a person who renews, or applies for, a driving licence is required by law to indicate his preference on organ donation.

He can choose not to be an organ donor - he will still receive his licence - but he has to make his preference known. During this moment of interaction with the authorities, individuals would also have societal benefits of organ donation, as well as the circumstances under which their organs would be harvested, explained to them.

In Singapore's context, a system of mandated consent can be implemented not only when people apply for or renew their driving licences, but also when they transact with other government agencies.

Such a system would increase greatly the pool of donors who are clearly committed to being organ donors, and diminish significantly the dilemma that emergency ward doctors currently face when they are confronted with a patient whose organs may save the lives of others.


Organ donation numbers remain extremely low, with just 58 such transplants last year compared with 69 in 2006. The average wait for a kidney, The Straits Times reports, is still nine to 10 years, and one to two years for a liver or heart.

  • Donald Low is Associate Dean (Executive Education & Research) and Associate Professor (Practice) at the Lee Kuan Yew School of Public Policy, National University of Singapore.

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

Chong Han Rui v Public Prosecutor - [2016] SGHC 25

Proposed changes to employee benefits: A summary

Business
16 May 2016

New labour guidelines call for 'responsible retrenchment'

Business Times
25 May 2016
Chuang Peck Ming

Firms that unfairly retrench Singaporeans will have their work pass privileges cut: MOM

[Singapore] THE Ministry of Manpower (MOM), which has been reiterating in recent months that it's watching closely the economic and labour market situation, on Tuesday warned it will cut the work pass privileges of employers who unfairly retrench Singaporeans.

The warning came with the issue of beefed-up tripartite guidelines for managing excess manpower and responsible retrenchment that stress the need for employers to maintain a strong Singaporean core, and avenues to help workers displaced.

Introduced in 2008, the guidelines drawn up by MOM, the Singapore National Employers Federation (SNEF) and NTUC (National Trades Union Congress) lay out ways for employers to manage their local staff when facing structural changes. The guidelines were last revised in 2009 during the last recession.

Both MOM's warning and the latest tripartite guidelines came in the wake of a pick-up in layoff numbers. Redundancies jumped from 12,930 in 2014 to 14,400 in 2015 - the highest since the 2009 economic downturn.

The number eased from 5,370 in October-December 2015 to 4,600 in January-March this year, but the latter was still higher than the 3,500 redundancies posted a year ago.

Meanwhile, the Monetary Authority of Singapore issued its twice-yearly macroeconomic review, which raised concerns about the weakening labour market. The global economy remains shaky and local companies are still restructuring their business to stay competitive. The tripartite guidelines suggest that as businesses adjust, they should consider alternative ways to manage their excess manpower - such as upskilling and redesigning jobs. "However, if retrenchment is inevitable, companies should do so in a responsible manner," say the guidelines.

In a joint press statement, SNEF urged employers to take a longer-term view of their manpower needs and boost competencies and maintain a strong Singaporean core.

NTUC called on employers to better manage their excess workers and, if they have to retrench them, do so in "a fair and sensitive manner".

The MOM said that employers should notify the ministry and the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) of an impending layoff early, so that they can work with employers to help the retrenched workers find alternative jobs.

"MOM will also investigate complaints of discriminatory employment practices, including retrenchments that unfairly target Singaporeans, or which result in Singaporeans being replaced with foreigners," it added. "If the complaints are substantiated, companies may have their work pass privileges curtailed."

Patrick Tay, NTUC assistant secretary-general, said in a Facebook post that his "worry would be for the many in non-unionised companies and especially those who are not union members". These workers are not represented and thus unprotected, he suggested.

The latest guidelines shorten the length of service for workers to be eligible for retrenchment benefits from three to two years. For those with less than two years' service, employers could grant them an ex-gratia payment.

The guidelines noted that the prevailing norm is to pay a retrenchment benefit varying between two weeks and one month salary per year of service. Employers should pay all salaries due and retrenchment benefits to the affected workers by the last day of work.

Under the revised guidelines, employers who implement a reduction in work week should cap the reduced work week to three days in a week - and the reduction in work week should not last more than three months. The 2009 guidelines recommended two days in a week for up to two months.

The new guidelines also say employers should "go beyond advisory assistance and make practicable efforts to place affected employees in their next jobs, possibly with the help of intermediaries such as "employment/placement agencies".

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

Registration of Criminals Act - Registration of Criminals Act (Amendment of First Schedule) Order 2016 (S 261 of 2016)

[GBR] UK Supreme Court Press Summary: Cargill International v NYK Bulkship (Atlantic) [2016] UKSC 20 (whether third party is charterer's agent)

Commonwealth
16 May 2016

Commitment of Govt critical for rule of law, good governance: CJ

Straits Times
24 May 2016
Selina Lum

Detention case highlights government's compliance with law pronounced by judiciary

A few weeks after the Court of Appeal freed alleged match-fixing kingpin Dan Tan from detention without trial, the Ministry of Home Affairs reviewed its legal position and released three others who had been similarly detained.

Citing the case in a speech he gave recently in the United States, Chief Justice Sundaresh Menon said the apex court released Tan on the ruling that detention is permitted only if the detainee's activities caused harm in Singapore. But the grounds for Tan's detention failed to show how his activities did this.

Tan was later re-arrested and detained on fresh grounds that set out the relevant threat in Singapore.

Noting that the Home Affairs Minister then reviewed the detention of three other detainees and revoked it in the light of the court's ruling, CJ Menon said it is critical to have the commitment of the Government in complying with the law pronounced by the judiciary, to have rule of law and good governance.

In his address to the American Law Institute in Washington, DC last week , he focused on the instrumental role played by the courts in upholding the rule of law. CJ Menon is the only Singaporean to be elected a member of the institute, an independent organisation established in 1923 that produces scholarly work to clarify, modernise and improve the law.

In his speech, The Rule Of Law: The Path To Exceptionalism, he said that despite the vast differences in the legal systems, history and culture of the US and Singapore, both nations share a commitment to the rule of law, although the application could differ in practice.

After taking a broad look at how conceptions of an independent judiciary upholding the rule of law had evolved in the US, CJ Menon turned to the Singapore story.

"If the American republic was born out of a pursuit of high ideals, Singapore was the progeny of an austere and existentialist necessity."

Singapore's founding fathers, he said, understood the need for a clean, efficient and independent judiciary in an environment that sought to attract investment from abroad to drive economic growth.

He noted that Ms Christine Lagarde of the International Monetary Fund had cited Singapore as an example to emulate for its honest and competent public institutions.

CJ Menon said Singapore's fidelity to the rule of law has "coexisted comfortably" with an emphasis on communitarian - involving dialogue, tolerance, compromise and placing the community before self - over individualist values.

In a case in which the Court of Appeal was asked to review a decision by the Commissioner of Labour involving a controversial doctrine, the court made no decision on the doctrine but provided guidance to the Government on the issues to look out for in future cases.

"What underlies this approach is the belief that a court which is respected by the other branches of government can effectively shape the debate and ensure the legality of government actions by setting out its concerns openly and potentially obviating a binary clash between the judiciary and the executive," said CJ Menon.

"Having said that, confrontation may be inevitable and then, the judiciary must stand firm as the last line of defence," he went on to add. "Judicial review is the sharp edge that keeps government action within the form and substance of the law."

The CJ said: "In the final analysis, the robustness of a nation's rule of law framework depends greatly on how the other branches view the judiciary and whether it, in turn, is able and willing to act honestly, competently and independently."


DIFFERENT ENVIRONMENTS

If the American republic was born out of pursuit of high ideals, Singapore was the progeny of an austere and existentialist necessity.

CHIEF JUSTICE SUNDARESH MENON

LAST LINE OF DEFENCE

Judicial review is the sharp edge that keeps government action within the form and substance of the law.

CJ MENON

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

Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act - Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Amendment of Second Schedule) Order 2016 (S 260 of 2016)

Singapore's 2016 Budget: Tax implications for the wealth management industry

Business
16 May 2016

Motorcyclist who lost lower right leg in accident awarded about S$450,000 in damages

TODAY
24 May 2016

SINGAPORE — A High Court judge has ordered a taxi driver to pay damages amounting to about S$450,000 to a motorcyclist who lost part of his right leg in an accident in 2011.

Mr Kenneth Quek Yen Fei’s right foot was severely mangled and his right leg had to be amputated below the knee. Justice Tay Yong Kwang had ruled in 2013 that the cabbie was 100 per cent liable for the accident.

In a written judgment released this month, the judge awarded Mr Quek S$452,509.41 in damages, inclusive of interest.

On Aug 11, 2011 at around 4am, taxi driver Yeo Chye Huat, who was in his 50s, collided into Mr Quek, then aged 20, who was riding his motorbike along Bencoolen Street in the direction of Fort Canning Road.

In cutting across lanes sharply, Yeo did not pay attention to traffic coming from behind him on his left and did not notice the motorcyclist until the collision.

Mr Quek, who was serving National Service then, was flung off his bike. Apart from the severe injuries mentioned above, he also sustained a fracture to his right collarbone.

In listing the damages, Justice Tay asked that Yeo pay Mr Quek S$80,000 in damages for his amputation, which is higher than the range that the court may order in personal injury cases. The typical range is between $40,000 and $70,000 for amputation of the lower leg. He had factored the pain and suffering Mr Quek endured from surgery and that four years after the accident, he continues to experience phantom limb pain and pain from neuroma (a disordered collection of nerve fibres) at the amputation stump.

Allowance should be made for the suffering that comes from losing a leg at such a young age, the judge added.

He also awarded S$15,000 and S$7,000 in damages respectively for the collarbone fracture and multiple scarring, and Mr Quek is entitled to about S$107,000 for future medical expenses over 18 years.

On top of this, there is a lump sum of S$1,000 for his future transport expenses because he is physically capable of taking public transportation or even travel by motorcycle.

Given that Mr Quek had dropped out of secondary school prior to the accident and did not show a consistent employment history to reflect a particular career path he would have taken, only damages for the loss of earning capacity was awarded — S$162,000 over 18 years — but not the loss of future earnings.

While his present level of education made it difficult for him to find desk-bound work and he is likely to be hired for manual work, Justice Tay added that the accident had also significantly limited the victim’s ability to do manual work since he is unable to stand or walk for long hours.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Quek Yen Fei Kenneth v Yeo Chye Huat [2016] SGHC 96

Smoking (Prohibition in Certain Places) Act - Smoking (Prohibition in Certain Places) (Amendment) Notification 2016 (S 259 of 2016)

MAS establishes FinTech Office, announces upcoming public consultation on regulatory sandbox, and organises Singapore FinTech Festival

Business
13 May 2016

Periodic regulatory updates needed for TWC stocks

Business Times
24 May 2016
R. Sivanithy

THE Singapore Exchange (SGX) over the past year has stepped up its efforts to strengthen local corporate governance - its Trade with Caution (TWC) notices now come with more targeted information, it has set up independent committees for listings and disciplinary actions, and last week it announced it will provide updates every six months on latest developments on companies whose shares have been suspended for years.

These are all creditable moves that should strengthen the disclosure-based governance framework in force here. To be sure, more information is always preferable to little or none and the move towards greater independence for important issues such as listings and discipline are necessary to answer critics who have long questioned the exchange's dual role - as a listed profit-driven bourse operator vested with regulatory functions.

However, without concurrent improvements in many other areas relating to governance, there is a danger that SGX's initiatives may end up having only marginal benefits.

Whilst providing updates every six months to shareholders who have been holding on to shares for years that may or may not be worthless is undoubtedly a step in the right direction, it is arguably not critically urgent because trading in these companies ceased a long time ago.

Knowing what efforts and negotiations are underway to rescue or resuscitate these companies will provide encouragement to long-suffering shareholders and offer hope that some of their investments could be recouped, but there is no element of "buyer beware" at stake here. Shareholders stuck with the shares have long come to terms with the hard truth that the shares they bought in such companies had very little going for them, investment-wise.

In contrast, shares of companies that have had a TWC issued or are connected to ongoing official investigations are still trading and in many cases, are actively punted every day.

On Monday last week, for example, several familiar speculatives spiked up for reasons unknown, only to fall back a short while later, possibly because of online trading restrictions quickly imposed by broking firms. As the sudden burst of interest demonstrated, "caveat emptor" is very applicable - there is after all, still active daily buying and selling. Yet, in order for the market to make informed decisions about whether to properly buy or sell, it should have sufficient information on what is happening on the regulatory front. This is currently not the case.

In the case of LionGold, Asiasons (now Attilan) and Blumont which have the dubious honour of triggering the penny crash of October 2013, 31 months have passed but other than speculation and unsubstantiated hearsay that these counters had been gradually ramped by manipulators over the years, the market has received no official updates.

Similarly, over the past 12 months, TWCs or regulatory announcements have been issued on CEFC, IHC, Koyo International and Zhongmin Baihui, all essentially containing the warnings that small groups of connected individuals were responsible for most of daily volume, implying that these stocks had been manipulated.

All these notices also carried the disclosure that SGX is working with other regulators, which suggests that there are probes going on behind the scenes. The big questions are: to what end, and how long will it take before details are known? Without answers to these questions, it is impossible to form any rational investment conclusion regarding any of these counters and the longer this continues, the greater the number of buyers who will have to beware.

At this juncture, it should be acknowledged that official enquiries can take a long time to complete because of legal difficulties and jurisdictional challenges. So it is necessary to cut regulators some slack - for example, trades can be routed through offshore accounts or nominee names, which would make it tough for investigators to unravel accurate pictures of who the beneficial parties are.

But for a disclosure-based regime to function properly, it is important to bear in mind that information has to be released reasonably promptly, and, in the case of the TWC stocks listed above, this is all the more pressing because they are still trading.

There should, therefore, be periodic updates on the status of these stocks, say every six months. If investigations are still ongoing, then that should be said. The alternative is silence that can drag on for years, which runs counter to the imperatives of a disclosure-based market.

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

Employment of Foreign Manpower Act - Employment of Foreign Manpower (Levy) (Amendment) Order 2016 (S 258 of 2016)

New Double Taxation Agreement in force between Luxembourg and Singapore

Business
13 May 2016

Co-founder of Ku De Ta club goes to court in new twist

Straits Times
23 May 2016
Toh Yong Chuan

The former Ku De Ta club, which opened in 2010 at Marina Bay Sands to much fanfare, is at the centre of yet another legal dispute.

Mr Chris Au, a Singapore-based Hong Kong businessman who co-founded the club, since renamed Ce La Vi, has sued his former business partners for conspiring to steal his rightful share of the club.

On Jan 30, 2014, French luxury group LVMH Moet Hennessy Louis Vuitton reportedly paid $100 million for a 51 per cent stake in the swish club on the 57th floor of Marina Bay Sands' SkyPark. The purchase was made through LVMH's investment arm L Capital.

In court papers filed in the High Court last week, Mr Au said he should have received more than $33.7 million from the deal but was denied because of "a conspiracy... designed to deprive (him) of his shareholding and rights in Ku De Ta, a company that he founded and made successful".

He named a staggering 10 defendants in his writ of summons, including four former business partners and L Capital.

The Singapore permanent resident said in court papers that he held 35.5 per cent of Kudeta BVI - which owned the Ku De Ta Singapore nightclub - and that there was an agreement to buy out his interest for $33.7 million using funds from L Capital's acquisition.

But on Jan 29, 2014, a day before the acquisition, Mr Au said his former business partners got the Hong Kong court to freeze his assets without his knowledge.

The court order was served on him only a week later, said Mr Au, adding that he would not have proceeded with the acquisition had he known of the court order.

He said L Capital was aware of the court order to freeze his assets, but "intentionally and wilfully chose not (to) warn or inform" him.

As a result of the actions by his former business partners and L Capital, he said he "has not received a single cent that he is entitled to".

The rift between Mr Au and the club's new owners continued even after the club sale, the court papers showed. For example, he charged that he was wrongfully removed as a board director in July last year after he warned the board of mismanagement of the club. Examples included appointing a chief executive without relevant experience and failure to comply with "basic corporate governance requirements such as holding quarterly board meetings".

He also accused his four business partners of unlawfully conspiring to break into his laptop and hacking into his e-mail account to steal personal and business information.

The lawsuit is the latest twist in a high-profile saga that started in 2014.

Barely after Ku De Ta was taken over by LVMH, shareholders began waging a legal battle in Hong Kong over the distribution of proceeds.

Shareholders Komal Patel - also known as Karl Patel - and Harilaos Apostolides claim in Hong Kong court papers that they each hold 24.17 per cent of Kudeta BVI. They also claim that Mr Au owns the same amount, a figure that Mr Au is challenging.

The Hong Kong trial is set for later this year. But even before the trial, Mr Au already had two run-ins with Justice Kevin Zervos.

In November last year, Mr Au asked that the judge recuse himself because of professional links with Mr Apostolides' brother, but the judge declined.

In August 2014, the same judge said Mr Au had given false evidence in Singapore about his interest in Ku De Ta and it merited referral to the Attorney-General's Chambers (AGC) in Singapore.

But when contacted last week, an AGC spokesman said: "There appears to be no record of a referral from the Hong Kong High Court."


On Jan 30, 2014, French luxury group LVMH Moet Hennessy Louis Vuitton reportedly paid $100 million for a 51 per cent stake in the swish club on the 57th floor of Marina Bay Sands' SkyPark. The purchase was made through LVMH's investment arm L Capital.

In court papers filed in the High Court last week, Mr Chris Au said he should have received more than $33.7 million from the deal but was denied because of "a conspiracy... designed to deprive (him) of his shareholding and rights in Ku De Ta, a company that he founded and made successful".


TIMELINE OF THE SAGA

SEPTEMBER 2010

Ku De Ta Singapore opens at the SkyPark on the 57th storey of Marina Bay Sands. The club, which is a play on the phrase "coup d'etat", was named after a popular Bali beach club. Its $50 cover charge, including one drink, was the priciest in town.

DECEMBER 2010

The owners of the Bali Ku De Ta beach club sued the Singapore club for trademark violation, arguing that one of the partners did not have the right to license the name to the Singapore club.

NOVEMBER 2013

The High Court ruled that the Singapore club can keep its Ku De Ta name. The Bali club owners appealed.

JANUARY 2014

French luxury group LVMH Moet Hennessy Louis Vuitton reportedly paid $100 million for a 51 per cent stake in the Singapore club.

JANUARY 2014 TO NOVEMBER 2015

Multiple lawsuits in Hong Kong among the shareholders over the splitting of sales proceeds.

DECEMBER 2014

The Court of Appeal overturned the High Court decision and ruled that the Singapore licensor does not own the trademark. 2014 The club reportedly generated $43 million in revenues. MAY 2015 The Court of Appeal ruled that the local club cannot use the Ku De Ta name.

JUNE 2015

The club was renamed Ce La Vi.

MAY 2016

Mr Chris Au, co-founder of the club, sues his former business partners and the club's majority owner L Capital in Singapore.


Who's who in the lawsuit

PLAINTIFF

• Mr Chris Au, Hong Kong businessman who is a permanent resident in Singapore and co-founder of Ku De Ta

DEFENDANTS

• Mr Komal Patel, British national, one of the original shareholders of Ku De Ta

• Mr Jason Mark Cohen, Hong Kong resident, one of the original shareholders of Ku De Ta

• Mr Harilaos Apostolides, Australian national, a shareholder of Ku De Ta

• Mr Cheong Yew Kuan, Malaysia citizen, investor in Ku De Ta

• Rocky Cape International, a British Virgin Islands Registration company

• Essence Investments, a Marshall Islands Registration company

• L Capital KDT

• L Capital Asia

• Mr Shantanu Mukerji, managing director of L Capital Asia

• Mr Ravinder Singh Thakran, managing partner and chairman of L Capital Asia

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 30) Notification 2016 (S 257 of 2016)

Jail term for company director of "shell" company for Employment of Foreign Manpower Act offence

Judgments
13 May 2016

Proprietors of church face suit on alleged breach of $18.5m deal

Straits Times
23 May 2016
K.C. Vijayan & Melody Zaccheus

But pastor and other defendants claim they were 'misled and induced' into property deal

Proprietors of a church who allegedly failed to honour an $18.5 million deal to sell its Bedok premises and lease another site in Eunos are being taken to court for damages and breach of contract.

Legacy Strategies, the buyer of the building that houses Bethesda Community Church, has named the church's pastor Philip Tan and five others as defendants, in seeking to enforce the sale.

The church has also intervened in the case, claiming that the six defendants are not authorised to sell the premises, according to court documents filed.

A High Court pre-trial conference is due next week.

Legacy Strategies, an investment holding company owned by businessman Chaw Chong Foo, had inked the deal to buy the Bedok property in June 2014. The deal also required the sellers to obtain HDB's approval for the sale. It provided for Legacy to buy up the shares of the Newgate Learning Hub, the registered proprietor of the 99-year HDB lease on the property within which the church operates.

Legacy, through lawyers from Lee & Lee, further allege that the transfer of the sale shares was agreed by both parties to be completed by March last year but remains incomplete. They also allege that the defendants failed to seek HDB's clearance for the sale.

Contesting the claims, Pastor Tan and the other defendants, who are church trustees, claim that they were misled by Mr Chaw and induced into the deal. The defendants include Newglobe Venture, the corporate vehicle set up to manage the assets of the church.

They claim the deal was conditional upon the church leasing new premises at 115 Eunos Avenue, which is understood by The Straits Times to be used by three other church groups on the third and fouth levels of the building. The multi-storey complex at 115 Eunos Avenue is owned by Zhaolim Pte Ltd, which is owned by Mr Chaw.

In court documents filed by their lawyer Lawrence Chua, the defendants argue that they are not obliged to go through with the sale as it was conditional on them taking up the tenancy at 115 Eunos Avenue, which they have rescinded. They claim to be justified to rescind the tenancy pact based on the alleged misrepresentation by Mr Chaw. Such issues nullified the initial in-principle agreement by Pastor Tan, after consulting the rest of the church leaders in early 2014, for the sale of the Bedok premises to Mr Chaw, said the defence.

They also added in court documents filed that Mr Chaw had breached a collateral contract in assigning the third floor instead of the promised fourth floor of the building. They further said the terms of the contract were also unfair, which the plaintiff disputes.

The 200-strong church community has also weighed in on the case, with Rodyk & Davidson lawyers led by Senior Counsel Lok Vi Ming filing court papers on its behalf. Among other things, it argues that while Pastor Tan and the other defendants form the church executive committee, they do not have express powers under the church Constitution to sell the property.

It says the Bedok premises was bought with donations and governed by a charitable purpose trust, of which the church is the beneficiary.

It further claims that the $18.5 million sale price was a " substantial undervalue" and the sales pact is voidable at the church's behest.

The church wants the court to void the Newgate share sale.

It is understood that Bethesda leaders have informed church members of the ongoing court case.

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

Personal Data Protection Act 2012 - Personal Data Protection (Statutory Bodies) (Amendment) Notification 2016 (S 256 of 2016)

SHC declines section 216A application to take over conduct of on-going suit

Judgments
12 May 2016

Nominee directors face difficult balancing act

Business Times
23 May 2016

He must safeguard interests of his appointer and yet still act in the best interests of the company

IT is a truism that a director is required to act in the company's best interests, but a shareholder need only look after his own.

For the nominee director, this raises a troubling conundrum. After all, he is appointed to the board by specific shareholder(s) - usually a parent company, a major shareholder, or joint venture or institutional investor - with the aim of safeguarding their interests. Yet, he must nevertheless ensure that he is acting in the best interests of the company, no different from any other director of the company.

Despite the potential conflict of interest, the law has long accepted the existence of the nominee director. The challenge lies in how a nominee director, his appointer and the company that he serves as director address these conflicts.

Nominee directors

Notwithstanding the nature of his appointment, a nominee director owes the company the same fiduciary duties as any other director. He must act in the collective interests of all the company's shareholders.

This does not mean he is not entitled to take into account his appointer's interests - indeed, he may do so as long as those interests do not conflict with the company's. When an actual conflict arises, he must, as a matter of law, prefer the interests of the company. If a situation arises in which there is a question about whether he can apply an independent mind to the issue at hand, he should abstain from making any decision about it.

Where a director represents the interests of the holding company on the board of a wholly owned subsidiary, there will normally be a considerable coincidence of interests. In fact, the constitution of the subsidiary may expressly allow the director to take into account the interests of the holding company, save in the situation where the subsidiary is insolvent or will become insolvent because of the director's acts.

The Companies Act goes further. It allows a nominee director to disclose the company's information to his appointer if he is authorised by the board to do so. However, he has to ensure that such disclosure is not likely to prejudice the company. The disclosure may be in respect of all or any class of information, or only such information as may be specified in the authorisation.

If the company is listed on the SGX, a nominee director has to consider whether any disclosure is in breach of the SGX Listing Rules which prohibit selective disclosure of "material information".

The extent to which a nominee director may "serve two masters", as it were, depends on the circumstances of each company or transaction.

For that reason, there are advantages to spelling out his mandate - to the extent that it is relevant to his role as a nominee director - in a written instrument and disclosing the terms of his appointment to the board. This would help to identify and define what the company and the nominee director regard as being in the best interests of the company.

A formal instrument will also provide guidance about the extent to which the nominee director may share the company's information with his appointer, and whether he is allowed to seek independent legal advice in carrying out his duties, particularly when there is an actual conflict of interests, and who bears the legal costs of that advice.

In view of the invidious position that a nominee director may face, a nominee director may consider asking the appointer to provide additional directors and officers liability insurance coverage for him.

Companies with nominee directors

A company that has nominee directors should have a policy that articulates its expectations with regard to their conduct.

Matters that should be addressed include the scope and extent of the company's information that may be disclosed by the nominee director to his appointer, requiring the disclosure of any potential conflict of interests between the company and the appointer, and the procedures to be taken when an actual conflict of interests arises.

Appointers

Appointers should also be clear on the arrangements for how it wishes the nominee director to function and their own risk of exerting too much control over such a director.

The Companies Act imposes directors' duties and responsibilities on a de facto director, namely a person who is not formally appointed as a director, but, in fact, acts as a director by exercising the same powers of, and discharging the same functions as, a director.

An appointer who exercises too much control over a nominee director may be imputed with the status of a director himself if a majority of the directors are found to be accustomed to act in accordance with his instructions or directions.

In summary, the uncertainties and tensions surrounding the issue of when a nominee director can duly advance the interests of his appointer without being seen to be undermining the interests of the company may be avoided by establishing certain guiding principles as to the conduct of the nominee director at the time of his appointment.

At the same time, the nominee director should also disclose the mandate between him and his appointer. Such best practices will help all parties to be cognizant of their respective expectations.

The writer is a member of the Governing Council of the Singapore Institute of Directors.

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

Mental Capacity (Amendment) Act 2016 (Act 10 of 2016)

PDPC enforcement actions: Three lessons for your organisation

Business
12 May 2016

Impact on shareholders when firms are in financial distress

Straits Times
23 May 2016

Most issuers listed on the Singapore Exchange are Singapore-incorporated limited companies, though a number are incorporated in other jurisdictions. An investor who subscribes to shares in an IPO or buys shares on the Singapore stock market would become a part owner of a limited company listed on the SGX.

Shareholders are generally aware of the risks and rewards of share investing. What may be less well-understood is the impact on shareholders when a listed company is in financial distress.

SHAREHOLDERS ENJOY RIGHTS

Shareholders have a bundle of rights, which usually includes the power to vote on major issues concerning the company.

When companies grow, shareholders may enjoy benefits such as dividends, bonus shares and/or capital gains from the rise in the prices of their shares.

Shareholders are not personally responsible for the debts of the company due to the limited liability structure of limited companies. Nevertheless, shareholders should be aware that their rights will rank behind the rights of creditors, such as the company's employees who are owed wages, holders of the company's bonds, lenders to the company and its trade creditors.

This awareness is important when a company is in financial distress, which could mean that the company is, or is threatening to be, insolvent. Insolvency is a situation where the company is unable to pay its creditors when debts are due, or where it has more liabilities than assets.

Options for financially distressed companies When a company is in financial distress, a free-for-all scramble for the firm's assets among creditors may result. Many jurisdictions have legal frameworks in place to address this to ensure that claims on the company are settled in a fair and orderly manner, and for the company's finances to be restructured, if possible, such that it may recover.

How the claims settlement and financial restructuring are carried out depends on the place of incorporation of the company. For example, a company established in Bermuda would be subject to processes under Bermudian law.

Nevertheless, the underlying key principles of the processes in most jurisdictions will largely be similar. This column focuses on the Singapore regime, which is relevant to most issuers listed on the SGX.

The Singapore regime provides for several routes that a company may take to try to revive its fortunes, restructure its finances, or to otherwise find a solution that best serves its creditors and shareholders. These include:

PRIVATE ARRANGEMENT

A company could privately agree with its creditors to ease its finances. This could be by restructuring the debts that the company owes into manageable parts or by extending payment deadlines, for example.

If a private arrangement is successful and the company continues operating as a business, shareholder rights are unlikely to change.

SCHEME OF ARRANGEMENT

A scheme of arrangement is a court-approved restructuring of the debts owed by the company to its creditors.

Although similar to the private arrangement, it avoids the difficulty of obtaining every creditor's agreement. If a simple majority (and 75 per cent in value) of creditors agree and the court approves, the scheme is binding on the company and all of its creditors.

The company would retain its existing management and can continue its business. By allowing the company to continue operating, creditors may get a better return on their claims as opposed to immediately closing down the company.

JUDICIAL MANAGEMENT

Judicial management is another court-supervised process that seeks to rehabilitate potentially viable companies.

The court can order the process if certain criteria are satisfied:

• The company must be unable to pay its debts and a simple majority (and 50 per cent in value) of creditors must agree to the process.

• The process has to be likely to achieve the company's revival, or a compromise with its creditors, or to better realise the company's assets than in a winding-up.

A court-appointed official (called the judicial manager) would take over the duties of the directors. All claims against the company would be frozen once an application for judicial management is filed with the courts. This allows the judicial manager breathing room to revamp the company's affairs without the risk of assets being depleted.

WINDING UP

If attempts to rescue the company fail, the company might look towards cutting its losses and closing down as a final resort. Winding up (or liquidation) is the process by which a company seeks to realise its assets and pay its creditors and, if possible, shareholders. At the end of this process is the closure of the company, also called dissolution.

There are several ways that a company can be wound up:

•If the company is still solvent, shareholders could seek to do so by a special resolution. A declaration of solvency must be filed by the company's board. A provisional liquidator will be appointed by the board to ensure that no creditor benefits unfairly in the interim. A liquidator would subsequently be appointed by a shareholders' ordinary resolution.

•If the company is insolvent, the creditors can voluntarily wind up the company through a creditors' meeting. In such a case, the liquidator may be appointed by the creditors instead.

•A creditor can also petition a court to compulsorily wind up the company in certain circumstances, the most common of which being the company's insolvency. The liquidator is then appointed by the court.

The liquidator takes over the functions of the company's board and seeks to close out the company's affairs and distribute its assets in a fair and efficient manner. Claims over the company's assets are frozen during this period to prevent a depletion of the assets. If the company has any residual assets after paying creditors, they would be distributed among the shareholders.

Impact of financial restructuring processes on shareholders' rights

TRADING HALT, SUSPENSION AND DELISTING

In the midst of any of these financial restructuring processes:

•The company could voluntarily request for trading to be halted or suspended for a longer period of time to afford it time to put its finances in order. If any of the financial restructuring processes successfully resuscitates the company, the business would continue as usual. Share trading can resume if the company shows that it can function as a going concern.

•The SGX could also suspend trading of the company. This could be where the company is, among other things, in significant debt or being placed under judicial management, or where the SGX deems appropriate. Share trading can resume only if the company demonstrates that it can again function as a going concern.

There is also a risk of the company delisting. The likelihood of delisting varies, depending on the company's financial state. For instance, if the company is implementing a scheme of arrangement, a trading halt or longer suspension may suffice to allow it some time to settle matters and disclose material information. On the other hand, if the company is being wound up, delisting (whether at the liquidators' request or by the SGX) is likely inevitable.

The possibility of a trading halt, suspension or delisting applies to companies in financial difficulty, regardless of whether they are incorporated in Singapore or abroad. This is because these are processes governed by the Listing Rules which apply to all SGX-listed companies, and do not fall under Singapore's insolvency regime.

WHAT SHAREHOLDERS SHOULD EXPECT

It is possible that a company may not recover even after restructuring. In such cases, shareholders' expectations would have to be tempered. Shareholders should expect the following:

•When a company is insolvent, creditors' claims rank ahead of those of shareholders. The company's assets are, therefore, first given to its creditors. A shareholder is entitled to his pro-rated share of the remainder only after all creditors have been paid. If the assets are insufficient to satisfy all creditors, shareholders may lose the money they paid for their shares.

•The company may be delisted. Although a listed company is required to make an exit offer to shareholders before delisting, this may not be possible if the company does not have enough assets to satisfy its creditors. The SGX will only allow a delisting without an exit offer in such a scenario.

•Dividends are unlikely to be declared as the company may not have any profits. Further, the shareholder's right to appoint management may in some cases be overridden by a court-appointed official.

Conclusion The limited company structure limits shareholders' liability so that shareholders are not personally responsible for the company's debts. However, in return for this and other benefits, shareholders face the risk that their investment may be lost if the company becomes insolvent.

Shareholders must be aware of such risks when they hold shares in companies that show signs of financial distress. They must be aware of the possible outcomes for the company when making decisions on their investment, including the worst-case scenario where the company has insufficient assets to satisfy its creditors, therefore leading to a delisting without an exit offer.

Tan Boon Gin

Chief regulatory officer

Singapore Exchange

•This is an edited version of the Regulator's Column on the Singapore Exchange website.

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

Women’s Charter (Amendment) Act 2016 (Act 7 of 2016)

Ser Kim Koi v GTMS Construction Pte Ltd: A timely reminder for architects

Judgments
12 May 2016

Can Singapore make room and rules for Airbnb and other home-sharing offerings?

Straits Times
22 May 2016
Janice Heng & Yeo Sam Jo

As URA continues to study issue, residents and hospitality players remain divided

From stylish apartments to cheerful single rooms, tourists in search of alternative lodgings in Singapore are spoilt for choice.

The website of Airbnb, a leading player in the home-sharing market here, has options such as a Kallang shophouse for $249 a night, a Tiong Bahru flat for $114 or a room in East Coast with queen-sized bed and balcony for a mere $48.

According to Airbnb, there are about 6,000 properties listed on its website here.

Other home-sharing websites have set up here as well, such as PandaBed and Roomorama.

Yet, it is currently illegal for private and public home-owners to lease their properties for less than six months.

While a few home-sharing site listings are for long-term options, most are for short stays, which means they are breaking the law.

The authorities are still trying to decide if rules should be relaxed for private properties.

From January to April last year, the Urban Redevelopment Authority (URA) held a public consultation to assess if this short-term rental policy for private properties needed to be reviewed.

But last Wednesday, more than a year on, the URA said it needs more time to consider the issue.

In the meantime, enforcement action will still be taken, it added.

Under current rules, private home-owners who lease their units for less than six months can be fined up to $200,000 and jailed for up to a year.

RESIDENTS' WORRIES

For Housing Board flats, there is no plan to review the short-term stay rules, which aim "to pre-empt high turnover of occupants, which could affect the living environment for HDB residents", said the HDB.

Such disruption is also why some private property residents object to short-term rentals. "Some Airbnb users throw their cigarette butts and cause a lot of inconvenience," said housewife Ruth Tiang, 50.

Residents are also worried about safety in general.

When dental assistant Rodelita C. Leng's family members travel, they use Airbnb. Yet, the 38-year-old resident of Vacanza@East in Kembangan would not like the same to happen here.

"If my neighbours register their units under AirBnb, anyone can just go in and out. This is not safe and secure for my two young children," she said.

Those who list their condominium properties on home-sharing sites often offer the use of facilities such as gyms.

Businessman Kenny Tan, 40, said guests are sometimes not as careful as residents.

He said: "We pay a premium for the security and the facilities. The treatment of common facilities by transient tourists will inevitably be worse than the owners'."

In 2013, 2014 and 2015, the URA received 231, 375 and 377 complaints on short-term stays respectively. From January to April this year, there were 161 complaints.

OPEN TO THE IDEA

However, residents at condominiums such as the Soleil @ Sinaran in Novena and Vogx in Dorset Road - both of which have units listed on Airbnb - said they had not noticed disturbances. Others are more open to the idea of home-sharing, especially if the authorities regulate it.

Said 25-year-old housewife Meggie Liu, who lives at Casa Merah condominium in Tanah Merah: "I will support URA legalising it as I feel that owners have the right to make their own choices about their property."

Rules can be included to ensure that landlords take steps to screen their guests, she added.

Mr Yeo Tong Wei, 21, who is waiting to start university, said that welcoming Airbnb will help Singapore be a more immersive cultural hub.

"I think it's a very organic way of learning about the city and its inhabitants, as compared with hotels," he said.

MAINTAINING MARKET STANDARDS

The hospitality industry is another stakeholder whose views have been sought by URA.

The Singapore Hotel Association (SHA), for one, supports the status quo. Private home-owners could become competition for both hotels and serviced apartments, said SHA executive director Margaret Heng.

"Equally critical to the tourism industry in Singapore is how do we ensure safety, security and hygiene standards in private outfits" which are unregulated, she added.

This need to uphold tourism standards was echoed by hotels.

Said Royal Plaza on Scotts general manager Patrick Fiat: "Home-shares are inconsistent in service delivery and cleanliness standards, which will have an impact on the image of Singapore as a travel destination in the long run."

Said Regent Singapore director of marketing Jeff Crowe: "All of us benefit directly or indirectly from Singapore's reputation as a safe destination... Hopefully, (any) upcoming legislation will ensure new entrants are held to the same high standards required of the established hospitality operators."

Still, both high-end hotels and backpacker hostels told The Sunday Times they were not overly worried about direct competition.

"It's a different market that we cater to, where our guests are looking for luxury, as well as unique and special experiences," said a spokesman for Hotel Fort Canning, which offers packages such as a buggy tour in Fort Canning Park.

Shophouse The Social Hostel co-founder Mustaffa Kamal has even turned Airbnb to his advantage, listing some of his rooms there. "There's no point in fighting, so I leverage on it."

TO LEGALISE OR NOT

Ang Mo Kio GRC MP Darryl David compared the rise of home-sharing sites with other "disruptive innovations" such as private-hire services UberX and GrabCar, which have given commuters more transport choices.

Last month, the Land Transport Authority announced it will introduce regulations for these services. These include requiring drivers to apply for a licence.

Mr David, who is in the Government Parliamentary Committee (GPC) for National Development, said home-sharing could also have potential benefits for both tourism and home-owners, but it needs more study.

"Because these are disruptive technologies, we are forced to sit down and see how to incorporate them into our system," he said. "To ban them or to ignore them is not necessarily the best solution.

"You don't want to have this go underground."

GPC for National Development deputy chairman Chong Kee Hiong said that if short-term rentals are allowed down the road, then they should be subject to rules "that ensure equity among all stakeholders". The rules should also address safety and privacy concerns.

What about the fact that home-sharing sites still operate despite the current legal issues?

"My view is that it is not correct to say that since these sites are likely to continue, we should legalise it. This is putting the cart before the horse," replied Mr Chong, who is an MP for Bishan-Toa Payoh GRC.

If the rules against short-term rentals remain, then the authorities should further step up enforcement so owners are aware of the consequences, he added.

• Additional reporting by Clement Yong, Jessie Lim, Aleysa John, Delphine Kao, Timothy Goh


NO TO AIRBNB

If my neighbours register their units under AirBnb, anyone can just go in and out. This is not safe and secure for my two young children.

DENTAL ASSISTANT RODELITA C. LENG, a resident of Vacanza@East who uses Airbnb when she travels with her family but would not like the same to happen here.

YES TO AIRBNB

I will support URA legalising it as I feel that owners have the right to make their own choices about their property.

HOUSEWIFE MEGGIE LIU, resident of Casa Merah condominiun in Tanah Merah.

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

Mutual Assistance in Criminal Matters Act - Mutual Assistance in Criminal Matters Act (Amendment of Second Schedule) Notification 2016 (S 255 of 2016)

[AUS] High Court of Australia Judgment Summaries: Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 (legal professional immunity from suit)

Commonwealth
12 May 2016

Change law on alimony to reflect role of the new-age woman: Forum

Straits Times
22 May 2016

It is clear women are no longer always the victim in a broken marriage ("Having an affair: Who's to blame"; last Sunday).

Marriage is supposed to be an equal partnership between a man and woman joined in union.

However, the law has made it lopsided. Under the current law, women are allowed to get alimony, even if they are the unfaithful party and the men are the victims.

This makes it even more paramount for the Women's Charter to be changed to take the new-age woman into consideration.

The minor amendments to the Women's Charter are not enough to bring equality to a marriage.

It should be changed so that men need not pay alimony if the woman is the one who causes the marriage to break apart.

In fact, in a short marriage, without children, the couple should be allowed to divorce without alimony.

Soh Kar Chiang

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

Road Traffic Act - Road Traffic (Motor Vehicles, Driving Licences) (Amendment) Rules 2016 (S 254 of 2016)

SCA considers scope of “own name” defence in trade mark infringement claim

Judgments
11 May 2016

S'pore society urged to 'embed mediation in DNA'

Straits Times
21 May 2016
K.C. Vijayan

Singapore's legal profession and other sectors of society here were yesterday urged to "embed mediation in our DNA".

Under changes made to Supreme Court practice directions in January, lawyers are now duty-bound to advise clients planning High Court civil lawsuits to first consider mediation or other options before going ahead to settle spats.

The direction, which provides guidelines for alternative ways of resolving disputes, says that cases ideal for mediation include commercial, neighbourhood and medical negligence disputes. It explains that two popular reasons for suing in court - "a matter of principle" or a "desire for revenge or punishment" - are "better suited for mediation than litigation".

The change is among several moves aimed at spreading the use of mediation in various sectors herethat were cited by Associate Professor Ho Peng Kee, chairman of the Law Ministry's Advisory Committee on Community Mediation. He was speaking yesterday at the Law Society's first mediation symposium, attended by around 250 people

"Taking a Singapore Inc approach, all the stakeholders should further develop their respective strengths to grow the collective pie - not just in terms of the number of cases, which I see is growing in our various centres, but more importantly and strategically, strengthening the eco-system, enhancing the mediation culture, projecting Singapore as an Alternative Dispute Resolution hub," said Prof Ho.

"Indeed, all of us living in compact, urbanised Singapore should embed mediation in our DNA." He called for widespread education to extend mediation's outreach.

The guidelines say that "give and take is infinitely better than all or nothing", adding that few litigants seeking retribution come away from court feeling satisfied. They point out that no matter how bitter the dispute, it is likely to be settled more permanently through mediation than a court judgment.

Senior lawyer Edmond Pereira said: "We also have to advise clients there is a potential adverse costs order against them if they insist on suing in court and the judge finds they have been unreasonable in refusing to consider alternatives like mediation."

Law Society president Thio Shen Yi also weighed in on the issue at yesterday's gathering, saying: "Mediation, with a more collegial, less adversarial approach to problem-solving, is here to stay.

"Conflict resolution does not have to be a zero-sum game involving significant expenditure on acrimonious, long-drawn court processes that result in financial headaches and personal heartaches."

Singapore Mediation Centre executive director Loong Seng Onn told The Straits Times that between January this year, when the new guidelines came in, and last month, there were 99 matters handled through mediation, 14 more than in the same period last year.

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

Infectious Diseases Act - Infectious Diseases (Human Remains from Tsunami-Affected Areas) (Exemption) (Revocation) Order 2016 (S 253 of 2016)

Trans-Pacific Partnership Agreement (TPP): Anti-corruption principles

Business
11 May 2016

Convicted murderer Jabing Kho executed after bids to escape gallows fail

Straits Times
21 May 2016
Selina Lum

Following a short-lived reprieve, convicted murderer Jabing Kho was executed yesterday afternoon, hours after a five-judge Court of Appeal rejected his final last-ditch attempt to escape the gallows.

The Singapore Police Force said in a statement that the 32-year-old "had his death sentence carried out" at Changi Prison Complex and that he "had been accorded full due process under the law".

It brought to a close a long-running case in which Kho appeared before the apex court twice in the past two days, even though the court had said in April - when it dismissed his first 11th-hour bid to stop his execution - that the matter should come to an end.

In 2008, the Sarawakian killed a Chinese construction worker while robbing him. The victim, Mr Cao Ruyin, 40, was bludgeoned with a tree branch. The blows shattered his skull. Kho, who was tried for murder in 2009 and convicted in 2010, had at least nine lawyers representing him. He was originally scheduled to be hanged yesterday morning. Two days earlier, lawyer Gino Hardial Singh filed a criminal motion to quash the death sentence. This was rejected on Thursday.

Separately on Thursday, lawyer and opposition politician Jeannette Chong-Aruldoss filed a High Court civil action. Her request for a stay of execution was denied but she filed an appeal by the 11pm deadline, getting Kho a reprieve.

Yesterday morning, the apex court heard arguments from her as well as another lawyer, Mr Alfred Dodwell, who had also filed a civil action but later withdrew it. When the lawyers sought an adjournment, saying they were not prepared to argue, they were chided by the court, which also dismissed the appeal against the temporary stay.

"This case has been about many things. But today, it is about the abuse of the process of the court," said Judge of Appeal Chao Hick Tin.

The court noted that Kho had filed multiple applications and used civil action to "mount a collateral attack" against a court decision on a criminal matter; what was worse was that he had come to court with the same arguments he had raised earlier. The court said "no real issues of any merit have been raised" in the "plainly misconceived" action.

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

Medical Registration Act - Medical Registration Act (Amendment of Second Schedule) Order 2016 (S 252 of 2016)

SCA: Look out before you cross! A commentary on Asnah Bte Ab Rahman v Li Jianlin [2016] SGCA 16

Judgments
11 May 2016

Convicted killer gets last-minute stay of execution

Straits Times
20 May 2016
Selina Lum

Appeal by opposition politician-lawyer to be heard this morning, when he was to be hanged

Lawyer and opposition politician Jeannette Chong-Aruldoss succeeded late last night in staving off the execution of convicted murderer Jabing Kho, who had been scheduled to hang this morning.

Earlier in the day, she failed to get a stay before Judicial Commissioner Kannan Ramesh after hours of arguments in chambers.

But she was given an 11pm deadline to file an appeal, which she met. That means that 31-year-old Kho, a Sarawakian, cannot be hanged until the appeal, scheduled for this morning, is heard.

It brought to a close a dramatic day, during which a five-judge Court of Appeal unanimously dismissed a separate bid by Kho to escape the gallows for the brutal killing of a construction worker in 2008. He had bludgeoned Chinese national Cao Ruyin on the head with a tree branch while robbing him, striking the victim several times even as he lay on the ground. Mr Cao, whose skull was shattered from multiple fractures, died in hospital six days later.

Found guilty of murder, Kho was first handed the mandatory death penalty in 2010. His appeal was dismissed in 2011.

In 2013, he was re-sentenced to life imprisonment and caning after the law was changed to give judges the discretion to opt for a life term in certain cases of murder.

The prosecution appealed, and three judges of a five-member bench decided to send Kho to the gallows. In their written judgment last January, the majority said Kho had shown a "blatant disregard for human life", in the light of the "sheer savagery and brutality" of the attack.

In April, a five-judge apex court dismissed one attempt to quash his death sentence.

But on Wednesday, Kho's sister Jumai instructed lawyer Gino Hardial Singh to make "new" arguments to the apex court. Mr Singh contended that the decision to send Kho to the gallows was tainted by apparent bias as Judge of Appeal Andrew Phang had sat both in Kho's 2011 appeal against conviction as well as the prosecution's 2015 appeal against the sentence.

Yesterday, the five-judge Court of Appeal dismissed the appeal. It was highlighted that the "bias" argument had been included in his first attempt to quash the death sentence before being withdrawn. Judge of Appeal Chao Hick Tin, who delivered the decision, said Kho's legal moves were an abuse of court process.

If allowed, this would lead to individuals "prolonging matters ad infinitum by drip-feeding their arguments one by one" through multiple applications.

Even if Kho's argument were completely new, the court would still have dismissed it, he added.

Justice Phang was deciding on completely different issues in 2011 and 2015 - the earlier one was on guilt, and the second on punishment. Justice Chao highlighted that trial judges all over the world routinely decide on the guilt of accused persons and then pass sentence on them. Ending on a sombre note, Justice Chao noted how Kho was arrested in 2008. "Eight years and an innumerable number of legal applications later, he still stands before this court."

But there was still a twist to come. Ms Chong-Aruldoss, also instructed by Kho's sister, separately filed an urgent application to stay the execution. It is understood that she intends to make arguments on points of law relating to the appeal court's 2015 judgment.

The application was dismissed but she was granted an appeal. A hearing has been set for 9am today.

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

Allied Health Professions Act - Allied Health Professions (Registration and Practising Certificates) (Amendment No. 2) Regulations 2016 (S 251 of 2016)

SCA clarifies what damages a tenant can claim when a landlord prematurely ends tenancy

Judgments
10 May 2016

Woman sues grandkids for trying to sell HDB flat

Straits Times
20 May 2016
Danson Cheong

She says she paid for it single-handedly while they argue the flat was their inheritance

Madam Tan Teck Soon says, for 26 years, she has paid the Housing Board $277 each month - mortgage instalments for the three-room flat that she lives in.

She paid over $117,000, including upgrading costs and conservancy charges, said the 76-year-old canteen vendor, but she might soon have to leave her home. In March, she said, she learnt her granddaughters were trying to sell the flat.

To stop this, she has sued both Ms Michelle Ng Li Xuan, 26, and Ms Isabella Ng Su Xi, 25.

The case is pending in the High Court, and the two sides met for a pre-trial conference on Tuesday, said lawyer Chia Boon Teck, who is representing Madam Tan pro bono.

Both sisters are registered owners of the flat, which they inherited when their father died in 2009.

But Madam Tan said she had single-handedly paid for the flat since its purchase in 1990. Her granddaughters were only holding it in trust for her, she said. In her affidavit, she said they were trying to sell it and "swallow" the proceeds.

The 10th-storey flat in Bedok South was bought under the name of her son - the sisters' father, Mr Ng King Nguang - said Madam Tan, who was then registered as co-owner of another flat with her older son. The disputed flat has an estimated value of about $330,000 now.

"The flat was registered under Ng's sole name at that time with the understanding between Ng and me that I was the sole owner," she said, adding that she paid the initial sum of $20,000 for the down payment and renovations.

She was registered as an owner of the flat in 1992, after the other flat was sold. But seven years later, Mr Ng chalked up about $100,000 in debts, she said. He then purportedly asked her for help. She said he wanted her to sell him her share of the flat so he could get an HDB loan on the pretext of paying her.

She said she did not get any money from the sale, but lent him $61,000 instead. He used the entire sum to pay creditors, she said.

"I'm not a lawyer. I didn't understand the implications. My son and I understood the flat still belonged to me," she told The Straits Times.

In 1992, Mr Ng divorced his wife, who got custody of Michelle. Isabella, about one then, grew up in the flat with her father and Madam Tan.

In 2009, Mr Ng died after a heart attack. The sisters inherited the flat, along with his mortgage life insurance payout of $40,200.

"I did not understand how (they) could sell the flat and throw me onto the streets when I had paid for the flat entirely single-handedly," Madam Tan said in her affidavit.

Both sisters denied trying to sell the flat without her knowledge.

Ms Michelle Ng disputed that Madam Tan had made all payments for the flat. "What I understand is that my dad was the one doing the payments," she said, adding that she and her sister let Madam Tan live there as it was near Madam Tan's workplace.

Ms Ng said Madam Tan made some payments for the flat after Mr Ng died, but that was because Madam Tan was living there then.

Ms Ng said the flat was an asset passed down to both sisters by their father, which they should be able to sell, and they had offered Madam Tan an alternative place to live - with Ms Isabella Ng at her upcoming BTO flat in Choa Chu Kang.

Said Ms Michelle Ng, a former marketing executive: "I'm not working at the moment. I'm expecting my second child. I'm not taking the money to go and enjoy myself."

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

Public Order Act - Public Order (Composition of Offences) Regulations 2016 (S 250 of 2016)

SHC holds that directors can be held personally liable for a company’s undue preference transactions

Judgments
10 May 2016

Ex-AIA agent jailed 8 years for cheating businessman

Straits Times
20 May 2016
Lorna Tan

Former AIA insurance agent Sally Low was jailed for eight years yesterday for cheating a businessman into buying a fake US$5.06 million (S$7 million) policy in 2002.

The former high-flying agent, who faced a total of 21 charges, appeared weak in court yesterday and was supported by her aunt.

Low, 40, pleaded guilty on May 5, the third day of the criminal trial, to three charges of cheating, one charge of fraudulent use of forged documents and one of moving crime proceeds to a bank account in Hong Kong. The other 16 charges were taken into consideration.

It was the second time she had pleaded guilty to selling a fake AIA Thank You policy, after retracting the first guilty plea in June 2014.

The saga began in late 2002, when Mr Ong Han Ling, now 78, was sold a fake policy by Low, then an AIA agent. He and his wife were told by Low that they would receive guaranteed annual fixed returns of 6 per cent on the US dollar component of the plan and 7.5 per cent on the Singapore dollar portion.

After Mr Ong paid the premium, Low used the funds without his knowledge or consent to buy four AIA policies for him, his wife and their daughter.

Midway through the tenure of the fake policy, Low deceived them into giving the insurance proceeds from three of the unauthorised policies to her by use of fabricated computer errors. Low used the funds to buy condominiums in Cairnhill and Sentosa Cove and sent money overseas.

Her scheme came to light in 2008 after Mr Ong learnt from AIA that the Thank You policy was bogus.

He made a police report against Low in January 2010 and sued her for damages totalling US$2.25 million and $2.99 million.

Deputy Public Prosecutor Hon Yi, who had sought a sentence of nine years in jail, told the court that there was premeditation and planning by Low and that substantial sums of money were in play.

Low's lawyer, Mr Sunil Sudheesan, had sought a six-year jail term.

District Judge Shawn Ho said trust is at the heart of the adviser- client relationship and that trust was "ruptured" in this case.

"The accused exploited her expertise to take advantage of her clients' trust in order to reap a fortune. It was an amalgam of ambition and avarice, with probity absent."

The judge noted that Low had changed lawyers several times and had wasted judicial time. He took into account that Low had made voluntary restitution to the Ongs of about $4.33 million.

Mr Ong said: "My family and I are thankful that this criminal trial is now completed. Eight years is a very long time and at our age it is a large part of our lives."

Low, who was made bankrupt by her previous lawyers, had claimed she was a victim of a ploy with Mr Ong to cheat AIA.

She had admitted herself to the Institute of Mental Health but was certified fit to stand trial.

Meanwhile, the Ongs are suing AIA and Motion Insurance Agency for negligence and lack of care. AIA is alleging that the Ongs are in a conspiracy with Low to defraud AIA.

In March, Low appeared as AIA's witness, stating that the Ongs had conspired with her to defraud AIA.

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

Road Traffic Act - Road Traffic (Public Service Vehicles) (Vocational Licences and Conduct of Drivers, Conductors, Trishaw Riders and Passengers) (Amendment No. 4) Rules 2016 (S 249 of 2016)

Counterparty insolvency

Business
10 May 2016

Former BSI banker likely to face new charges

Business Times
20 May 2016
Anita Gabriel

[Singapore] SINGAPORE prosecutors are likely to press new charges against former BSI banker Yeo Jiawei, who has already been charged with seven offences ranging from money laundering, forgery and cheating to obstruction of justice, as a result of an ongoing massive probe by authorities here into 1Malaysia Development Berhad, the court here heard on Thursday.

Second Solicitor-General Kwek Mean Luck told the state court that investigators are scrutinising other aspects of the transactions involving criminal offences related to the seventh charge where Yeo has been accused of forging documents to facilitate a transfer of US$11.95 million in 2013 from SRC International (Malaysia) Ltd to a firm beneficially owned by Tan Kim Loong, a close associate of Malaysian businessman Low Taek Jho, better known as Jho Low.

"A further period of remand is necessary as it would allow for ongoing investigation into the new lines of critical enquires that have opened up since the tendering of the seventh charge," said Mr Kwek at the sixth mention of Yeo's case where he said the prosecution is not expected to seek further remand beyond two weeks from now and is instead likely to apply for Yeo to be denied bail.

As in previous mentions, Yeo appeared in court via video link. Mr Kwek reiterated Yeo's key role in the last three years in relation to illicit transactions and money flows in and out of Singapore, pointing out that the investigations (into the 1MDB money trail) were vastly different from other serious crimes such as drug trafficking or murder which often involved a singular transaction or act. This investigation involved multiple, complex, cross-border financial transactions, multiple entities and extensive documentation, he said.

"Indeed, we have just ascertained that the accused has told yet another individual with knowledge of some of these questionable transactions to delete all relevant emails and to make himself unavailable for questioning by the CAD," said Mr Kwek, adding that Yeo may have likely told others as well to "suppress and tailor" information.

"A few new witnesses were interviewed since last week and some witnesses have been recalled for interviews," said Mr Kwek.

Yeo's lawyer Philip Fong of Harry Elias Partnership submitted that there is no further evidence that can be obtained from the accused as he claimed that the prosecution "already has all the evidence they need".

"There is nothing else the accused can say which has not been said already. The accused should be released on bail and be allowed to start preparing his defence in advance of his trial," Mr Fong added.

District Court Judge Christopher Goh ordered Yeo to be remanded till May 24 but said he was unable to say if the court would grant any further remand request and asked the prosecution to prepare its submission to deny Yeo bail at the next mention.

Pointing out that Yeo, 33, has been remanded for one month and four days and that this was the sixth remand application by prosecutors, the judge said the onus on the prosecution to apply to further remand Yeo would be more onerous to ensure a balance is struck between the interest of the state and the accused.

The prosecution also said it no longer objects to providing Yeo supervised access to his wife as investigations on her have "progressed".

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

Interpretation Act - Interpretation (Temporary Reduction of Electronic Road Pricing System Charges) Order 2016 (S 248 of 2016)

Intellectual property update: Singapore, Malaysia and Indonesia

Judgments
10 May 2016

New rules relax prospectus burden for retail bonds from quality issuers

Business Times
20 May 2016
Kenneth Lim

Temasek Holdings says it is 'open' to retail bond issuance and will explore new frameworks

[Singapore]SINGAPORE authorities have launched their latest effort to boost the retail bond market with long-discussed bond seasoning and exemption frameworks taking effect on Thursday that will allow good-quality issuers to sell debt to mom-and-pop investors without a prospectus.

The seasoning framework - which went through public consultations in September and December 2014 - will allow investors to buy wholesale bonds in denominations as small as S$1,000 on the Singapore Exchange (SGX) with only a product highlight sheet.

To mitigate the risk that comes with relaxing disclosure requirements and with providing retail access, the framework requires that only bonds that have been sold to institutional or accredited investors and listed on SGX for at least six months - or seasoned - may then be sold to retail with only a product highlight sheet.

There are also minimum hurdles on the issuers' size, listing history and creditworthiness that must be crossed. Only bonds that bear plain vanilla structures may be sold to retail under the framework.

Re-taps are allowed, in which an issuer offers additional notes under an existing seasoned tranche without the need for a prospectus.

The Monetary Authority of Singapore (MAS) also announced the Exempt Bond Issuer Framework, which allows issuers to offer bonds directly to retail investors at the outset without a prospectus if they meet eligibility criteria that are stricter than those used in the seasoning framework.

"The frameworks will widen the range of fixed income products and enable retail investors to access some of the 1,900 wholesale bonds listed on SGX, Asia's leading bond-listing platform," SGX chief executive Loh Boon Chye said in a statement. "Issuers too will gain from a bigger pool of investors. This initiative advances SGX's efforts to build a dynamic and thriving fixed income market in Singapore."

Temasek Holdings, the Singapore government-owned investment company, said it is open to issuing a retail bond.

"Temasek welcomes today's release of the retail bond frameworks by MAS and SGX. Temasek remains open to a retail bond issue in due course. We will study the details of the frameworks released today."

United Overseas Bank (UOB) head of group investment banking Ronny Chng welcomed the move. "With retail investors in Singapore gaining access to corporate bonds, issuers will be able to benefit from an even more diversified investor base and higher liquidity of their bonds," he said.

"In particular, corporate bond issuers with strong track records will be able to enjoy greater flexibility when tapping the debt capital market for funds as they can now make offers to both institutional and retail investors without additional prospectuses. These measures to increase retail investors' participation would add to the appeal and increase the vibrancy of Singapore's bond market."

Clifford Lee, head of fixed income at DBS Bank, said the reduced disclosure burden on issuers will be positive for supply. "The new regulations will certainly make it easier for corporate issuers to tap the retail bond market as the documentation process is now less onerous," he said.

"We expect to have more discussions with corporate issuers on retail offerings, especially since the retail market has been of interest to them, given the recent spate of successful retail issues."

Financial consultant Sean Cheng of Providend said Singapore investors are generally keen to have more investment alternatives, and would appreciate having more bond offerings.

"There still is a lot of interest in bonds, especially for bonds that are issued by names that people are comfortable with," he said. "Recently, there were a couple of issues, one by Manulife, the other by Mapletree Logistics Trust. Both were oversubscribed."


Who can issue seasoned bonds?

ISSUERS may offer seasoned bonds to retail investors only if they meet at least one criterion under each of the following three tests:

Test 1: Size

• Market cap of at least S$1 billion over the past 180 market days; or
• Net asset of at least S$500 million in the most recent audited financial year and annual average net asset of at least S$500 million over the three most recent audited financial years.

Test 2: Listing history

• Has equity securities listed on SGX or a recognised securities exchange for at least five years; or
• Has listed or guaranteed the issuance of bonds listed on SGX for at least five years

Test 3: Track record

• Has a positive three-year average profit and a positive three-year average net operating cash flow; or
• Has a credit rating of at least BBB for either the issuer or the bonds being offered; or
• Has listed, or guaranteed the issuance of, bonds listed on SGX of at least S$500 million over the previous five years.

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

Parking Places Act - Parking Places (Provision of Parking Places and Parking Spaces) (Amendment) Rules 2016 (S 247 of 2016)

Block chain – the biggest thing since the internet?

Business
09 May 2016

Acra probing possible SingPost rule breaches

Business Times
20 May 2016
Melissa Tan

Corporate watchdog asked SingPost for joint special auditors' report on corporate governance; stock slides as much as 3.5% to 2 1/2-month low of S$1.525

[Singapore] THE local corporate watchdog is showing its teeth. The Accounting and Corporate Regulatory Authority (Acra) is starting to investigate possible breaches of regulations at Singapore Post's board, the postal and e-commerce group revealed in a bourse filing on Thursday morning.

Acra on Wednesday "required" SingPost to furnish it the joint special audit report on SingPost's corporate governance dated May 3 "as it (Acra) is commencing investigations into possible breaches of the Companies Act as highlighted in the report", SingPost said in its one-liner statement before the market opened.

The announcement sent SingPost shares tumbling in the session. The stock fell as much as 3.5 per cent to a two-and-a-half month low of S$1.525 before recovering slightly to end the day S$0.025 lower at S$1.55 on 11 million shares traded.

The corporate regulator's move comes shortly after SingPost's joint special auditors, Drew & Napier and PricewaterhouseCoopers, said in a summary of their report that former SingPost lead independent director Keith Tay was "arguably in breach of section 156(1) of the Companies Act" for not declaring his interest in the 2013 acquisition of Famous Holdings "as soon as practicable".

The auditors had also found that Mr Tay had breached some fiduciary duties relating to the Famous Holdings deal and SingPost's acquisition of Famous Pacific Shipping (NZ) in 2015. Breaches of fiduciary duties come under the Companies Act, which is under Acra's purview.

SingPost has released only a summary of the report to the public, though it sent the full special audit findings to the Singapore Exchange.

When asked to confirm Acra's launch of a probe and how quickly it aimed to complete it, an Acra spokesman said in an emailed statement: "ACRA is unable to provide further comments as investigations are on-going."

Singapore Exchange head of listing compliance June Sim said over email that the exchange was still reviewing the special audit findings to determine the appropriate course of action, adding: "SGX will refer potential breaches of regulations to the relevant authorities and has referred this matter to ACRA ... Any regulatory action to be taken against the relevant persons will have to be proportionate to the listing rule breach." She reiterated that SGX has told SingPost to get independent confirmation on its implementations of the special auditors' recommendations.

It is unclear whether or how much Acra's investigation will focus on Mr Tay, the man at the centre of the recently concluded corporate governance probe at SingPost which revealed disclosure lapses and weak board controls.

Mr Tay's lawyer Thio Shen Yi, a Senior Counsel and joint managing director of TSMP Law Corp, told The Business Times on Thursday: "One expects the relevant authorities to do their jobs so we consider the request from ACRA for the full report to be relatively routine. We have not been contacted by any of the regulators. Keith is more than prepared to tell his side of the story and to address the issues arising from the report at the appropriate juncture if necessary."

SingPost spokesman Peter Heng said in an email on Thursday that the group has "provided the full report to ACRA for their investigation". He also said the group did not know of any SingPost directors, former or current, who have been asked to assist Acra in the investigation, adding: "We will cooperate with any regulator."

Observers noted that Acra's move to investigate was swift given the amount of detail to comb through in the 47-page summary report, adding that they hoped there would be appropriate enforcement or safeguards to prevent future governance lapses.

"I am pleased that ACRA is following up quickly with further investigations. Timely and effective enforcement is critical to a robust regulatory framework and improving corporate governance standards," said SingPost shareholder and corporate governance specialist Mak Yuen Teen. He added: "In this case, the special auditors' report is a report on the action of the board and certain directors. It is not a case where the board has commissioned a report to investigate management ... If regulators have access to the full report to consider possible action, shouldn't shareholders have access to the full report for the same reason? Why should the board whose actions are in question be allowed to decide not to release the full report without justification?"

Corporate lawyer Robson Lee of Gibson Dunn said: "I believe ACRA needed time to study the rather voluminous summary report that was earlier published to assess if a full investigation is required. That ACRA has now asked for the complete special audit report suggests that the information revealed in the summary report warrants a full investigation by the Authority on the highlighted transactions involving SingPost and/or the conduct of the relevant person(s) who had been involved in the transactions."

Mr Lee said the market "should be informed as soon as possible whether any regulatory enforcement action would be taken against any errant director or management executive for any breach of the law", adding that market participants would ideally also like to know "if the outcome of the investigation reveals only lapses of corporate governance best practices that did not contravene the law, what remedial actions and safeguards has the Authority (Acra) procured the board of SingPost to put in place to prevent a future recurrence of such lapses and misdemeanors".

"This will bring closure to an unfortunate episode of an established institution that has served Singapore very well for many decades."

SingPost commissioned the corporate governance probe last December after admitting it had made an "oversight" in a 2014 deal disclosure. It had wrongly said no directors had an interest in its acquisition of freight forwarder FS Mackenzie - when Mr Tay in fact held 34.5 per cent of Stirling Coleman, which advised FS Mackenzie's seller.

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

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 29) Notification 2016 (S 246 of 2016)

SCA overturns decision of the high court and resolves ambiguity in employment contract in favour of the employer

Judgments
06 May 2016

Whistleblowing guide for accountants timely

Business Times
20 May 2016
Kang Wai Geat

The International Ethics Standards Board for Accountants has done the right thing by taking the bull by its horns and trying to strike a fine balance for the greater good

THE high-profile Panama Papers episode has taken whistleblowing to a whole new level. The colossal amount of information involved - 11.5 million documents or 2.6 terabytes, equivalent to the storage capacity of about 167 of the common 16-gigabyte thumb drives - the prominent list of notables implicated so far and the massive coordination effort undertaken to investigate the information and release it to the public, is of an unprecedented scale. The saga has given whistleblowing the perfect stage for its moment in the limelight.

In a few months, the International Ethics Standards Board for Accountants (IESBA) is expected to issue new provisions, with elements concerning whistleblowing, to guide accountants (including auditors) in responding to any actual or suspected non-compliance with laws and regulations.

This is by no means a knee-jerk reaction to the Panama Papers. The IESBA has been on this project for many years. Accountants in jurisdictions, including Singapore, who adopt the ethics standards issued by the IESBA will have clearer guidelines to follow regarding whistleblowing, under the requirements of the new standard going forward.

It is still early days to know whether Singapore will adopt the standard. Extensive discussions will be held to assess the likely impact on the Singapore accountancy profession before a decision is taken on the adoption of the standard in Singapore.

In a nutshell, the standard expects accountants who are non-auditors to refer cases of suspected non-compliance with laws and regulations to higher internal levels of authority. If the upper echelons do not take adequate and timely actions to address the non-compliance, the accountants will have to consider whether further action is needed; these may include, inter alia, reporting the matter to an external authority or resigning from the organisation.

CONTENTIOUS TOPIC

Likewise, auditors are subject to similar requirements, except they will broach the issue with the appropriate level of management and if necessary, the board of directors or audit committees of their audit clients.

For example, if an auditor discovers that an Indonesian subsidiary of his client is burning forests and contributing to the haze problem, he may need to report this, even though this is unrelated to the financial statements. This can be very onerous on the auditor, who may be bogged down by an expectation to know a lot more about his client beyond the audit of the financial statements.

Whistleblowing is a contentious topic. Unsurprisingly, the IESBA encountered stern opposition from some stakeholders on its initial set of proposals.

But it believed the project to be of sufficient significance to weather the storm and formulated the latest standard, which is more calibrated in its approach after taking into account the feedback garnered. The standard provides guidance to a quandary which accountants may face. Being a whistleblower can be a very taxing experience and any direction to help accountants navigate through such uncharted waters would be like the beacon from a lighthouse.

Professionally, accountants have a duty not to ignore such instances of non-compliance, especially when substantial harm may be caused to the wider public. More importantly, whistleblowing is gaining traction as one of the more effective means of uncovering illegal activities such as fraud and corruption. From Enron's Sherron Watkins and WorldCom's Cynthia Cooper to the more recent Michael Woodford of Olympus, whistleblowers have made an enormous and lasting impact in some of the major corporate financial scandals that have rocked the world. Riding on such strong tailwinds, whistleblowing has gathered enough momentum to feature more prominently in the code of professional behaviour accountants should embrace.

The promulgation of the standard may be in the public interest, but there are challenging concerns which should be addressed to facilitate the job of accountants. For starters, the standard may adversely impact business and working relationships. The level of trust between accountants and their clients, employers and fellow colleagues could be eroded if accountants are now perceived to be undercover agents on the prowl for wrongdoing.

For auditors, clients will be more wary of what they share with them and may even withhold important information. Not only will this impede the auditor's work, it is unequivocally a hindrance in the pursuit of high-quality audits. For accountants who are non-auditors, their loyalty towards their employers and camaraderie with fellow workers may be cast in doubt. They may be treated as an ungrateful lot who bite the hand that feeds them. This could have repercussions on their career prospects and job security.

In addition, with the new standard, accountants will be caught between the devil and the deep blue sea if they are embroiled in a whistleblowing situation. If they do not blow the whistle, it will constitute non-compliance with the standard; if they do, it will bring about other complications.

In many cases, whistleblowers put their careers, families and even their lives on the line to expose illegal activities. It is not uncommon to hear of whistleblowers being sacked or demoted. They often face persecution and are the subject of reprisals. Yet, their acts of valour may not be reciprocated with legal protection. Not only do whistleblowers run the risk of being sued for breaches of confidentiality, they may have to serve jail time if they are convicted of complicity in the crime they have reported on, despite having cooperated during investigations.

At the moment, the stances on enacting legislations to protect whistleblowers may vary from jurisdiction to jurisdiction. The United States and the United Kingdom, for example, have laws to shelter whistleblowers. But in other jurisdictions, there is resistance to the enacting of whistleblower-protection legislation as a result of historical baggage, cultural differences or business implications, among other reasons. For example, Germany has almost no legal protection for whistleblowers.

WIGGLE ROOM

It is not all doom and gloom for accountants. The new standard does give accountants some room to manoeuvre. One saving grace is that they do not have to disclose the matter to an external authority if doing so violates one or more laws or regulations. Also, before disclosing to an external authority, accountants will have to consider whether:

a suitable authority is in place to receive the information;

sound and trustworthy protection from civil, criminal or professional liability or retaliation afforded by legislation or regulation exists; and

the physical safety of the accountants or other individuals is at risk.

Dissidents would contend that the above factors reduce the robustness and effectiveness of the standard. They would posit that the provisions may be all too conveniently used as an excuse to not disclose information to external authorities.

While there may be some merit to the argument, the IESBA recognises the need to be pragmatic when it comes to applying the standard in practice. By insisting on overly stringent or prescriptive requirements, it may be a tall order to develop and issue a standard which can be operationally practicable across the world.

The IESBA has attempted to strike a fine balance for the greater good. Although the jury is still out there on the effectiveness of the provisions, it has done the right thing by taking the bull by its horns. If the standard achieves its desired objective, it will undoubtedly further elevate the stature of the global accountancy profession and reinforce its position as a key component of an ethical business environment.

The writer is assistant director of technical advisory and professional standards at Institute of Singapore Chartered Accountants

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

Arms and Explosives Act - Arms and Explosives (Commemorative Artillery Shell Casing - Exemption from Section 13) (Amendment No. 2) Order 2016 (S 245 of 2016)

Standalone Cybersecurity Bill to be tabled next year

Legislation
06 May 2016

New panel to make justice accessible to S'poreans

Straits Times
19 May 2016
Ng Huiwen

A new committee to ensure Singaporeans have affordable access to justice was announced yesterday, as part of a broad-based review of the civil justice system.

The eight-member Civil Justice Review Committee is chaired by Senior Minister of State for Law and Finance Indranee Rajah, who announced this yesterday at the Association of Muslim Lawyers Annual Lecture 2016.

Comprising senior members of the Bar and representatives of the judiciary and the Government, the committee will make recommendations to allow judges greater control in managing cases and ensure that legal costs are proportionate to the value of claim.

The committee held its first meeting earlier this month and is expected to complete its work by the end of the year.

"The committee acknowledges the importance of enabling access to justice for all, including individuals who do not have legal representation and small and medium enterprises," said Ms Rajah, whose keynote address focused on the delivery of community justice.

As part of the larger civil justice system, she stressed that community justice has to "facilitate enduring relationships between parties as far as possible".

"You do not want an outcome which leads to continued or greater enmity between members of our society," she said. "In that situation, community justice is not served even if the outcome is legally correct."

The lecture was held at the State Courts Auditorium and attended by some 250 lawyers, judges, legal officers and law students.

Ms Rajah also noted how technological advancements, which create new forms of interaction, may result in novel community disputes in the near future. An example would be the introduction of driverless cars, which would impact the manner and speed at which a pedestrian injured in a motor accident seeks recourse.

She asked: "Who would you sue, the manufacturer or the person who was responsible for placing the driverless car on the road?"

The rise of peer-to-peer services such as Uber and Airbnb, which blur the lines between suppliers and consumers, will also pose a challenge to the civil justice system, she said.

She added that a "one-stop shop" that would have the jurisdiction to handle all types of community disputes could be explored as a possible long-term solution. "This could be preferable to setting up a separate, specialised forum each time a new pocket of community disputes emerges."

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

Street Works Act - Street Works (Creation of Rights) (No. 5) Notification 2016 (S 244 of 2016)

New leave enhancements for father and adoptive mothers from 2017

Business
06 May 2016

Jabing Kho, due for execution tomorrow, launches appeal again

TODAY
19 May 2016
Amanda Lee Gui Ping & Valerie Koh Swee Fang

SINGAPORE — For a second time, convicted murderer Jabing Kho has launched an eleventh-hour bid to escape the hangman’s noose — his appeal this time being over Judge of Appeal Andrew Phang’s involvement in two stages of his case.

The 31-year-old Sarawakian, who is reportedly set for execution tomorrow, will have his case heard in the Court of Appeal this afternoon, following an urgent application filed by Mr Gino Hardial Singh from Prestige Legal.

Noting that Justice Phang heard Kho’s first appeal in 2010 and again in 2013, in the prosecution’s appeal against the offender being re-sentenced to life imprisonment with the maximum 24 strokes of the cane, Mr Singh will be arguing that apparent bias has arisen.

“The apparent bias arises not from the mere fact that Justice Phang sat twice but because the judges’ perception of the accused’s intention or recklessness arising out of the factual issue of the number of physical blows dealt to the victim was in issue in the conviction appeal and also in issue in the re-sentencing appeal, so in effect, Justice Phang was sitting on an appeal against his own decision on that issue,” the lawyer said yesterday, when contacted.

Mr Singh, who is taking the case on a pro bono basis, said he was briefed by Kho’s sister, Jumai, on Tuesday morning and interviewed the offender at Changi Prison the same afternoon to take his instructions. Various Malaysian media outlets have reported that Kho’s family had been informed that the execution would be carried out tomorrow.

Kho had carried out a fatal robbery with a fellow countryman in 2008 and was sentenced to the mandatory death penalty. Together with Galing Anak Kujat, he had attacked construction workers Cao Ruyin and Wu Jun near Geylang Drive while trying to rob them. Kho struck Cao on the head with a tree branch so hard that the victim sustained 14 fractures in his skull and died six days later.

His roller-coaster court bid began in 2011 when he failed in his appeal against the sentence, only to be spared the hangman’s noose two years later when amendments to the mandatory death penalty regime kicked in. The change gave judges the discretion to impose life imprisonment and 24 strokes of the cane instead in some murder cases. Justice Phang was among the three judges in this appeal.

But the prosecution appealed against Kho’s new sentence, arguing that he had shown “scant regard for human life”. In January last year, Kho was sentenced to death again in a rare 3-2 split decision by the Court of Appeal, with Justice Phang among those in the majority camp.

Kho’s appeal for clemency was turned down in October.

But less than 24 hours before he was to hang, his lawyer then, Mr Chandra Mohan K Nair, secured a stay of execution by raising questions about the evidence presented during the trial.

The appeal was dismissed, with Judge of Appeal Chao Hick Tin ruling that the defence had produced very little new material, let alone compelling material, that would justify the “exceptional recourse” of a review of the death sentence handed down.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Town Councils Act - Town Council of Aljunied-Hougang (Penalties and Administrative Fee for Late Payment of Conservancy and Service Charges and Licence Fees) By-laws 2016 (S 243 of 2016)

ASEAN Common Prospectus Framework – how will this attract and influence equity fund raising?

Business
06 May 2016

S'porean fugitive lived a lie in US as 'lawyer' for years

Straits Times
19 May 2016
Selina Lum

He used real attorney's identity to practise before being caught, jailed and deported

To the people he helped with immigration matters in the United States, he was their lawyer, called to practise law in New York since 2000 and a professional of good standing.

Little did they know that the man they depended on to represent them to the federal authorities had secrets - he was using someone else's name and was not even a lawyer to begin with.

His own name was Ng Chong Lin and he had fled Singapore in June 2003, two days before his appeal against a jail sentence for forgery and other charges was to be heard.

This emerged in the High Court yesterday when that appeal, shelved for 13 years, came up for hearing.

For seven years, Ng, who was then 31, lived a lie in the US. He had at least seven aliases, one of them Daveng Wee, said US court papers. The name appeared to be an amalgamation of Dave Ng, a name he was known by.

His story could have been a movie plot. Ng got down to practising immigration law in New York City, using the name and registration number of a real attorney to file documents to federal authorities on behalf of individuals in various immigration matters between October 2006 and March 2009.

In 2010, Daveng Wee was caught out by the US authorities and jailed for four years for aggravated identity theft in impersonating an attorney, among other things.

His fingerprints, sent to Singapore after he was ordered to be deported in December 2013, revealed his true identity.

All his attempts to overturn his conviction failed and he was deported in May last year, when he was arrested and taken in to custody.

As part of their arguments for the appeal, prosecutors provided details of his offences in the US and succeeded in having the information admitted as fresh evidence.

However, the matter was adjourned and will be heard after the outcome of a new trial against Ng - this one for using a bogus passport when he skipped town in 2003.

In March 2003, Ng had pleaded guilty in a district court to forgery and other charges related to a company in which he was a director.

In April 2003, after he was sentenced to three years and three months' jail, he filed an appeal. He was granted bail and his passport handed to the Commercial Affairs Department.

That June, he applied for a passport and was issued one which bore his photograph but the particulars of one Wee Pui Kee. On June 22, 2003, two days before his appeal was to be heard, he used this passport to leave for New York.

Besides pretending to be a lawyer, he also claimed to have attended schools in New York when he applied for temporary residence in the US in May 2007.

In 2010, he pleaded guilty in the District Court of the Southern District of New York following a plea bargain in which he waived his right of appeal. But he later tried to withdraw his guilty plea and challenged his conviction, even filing a writ to the US Supreme Court.

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

Town Councils Act - Town Council of Aljunied-Hougang (Conservancy and Service Charges) By-laws 2016 (S 242 of 2016)

SHC: When does an arbitration clause prevail?

Judgments
05 May 2016

More time needed to study short-term stay: URA

Business Times
19 May 2016
Lynette Khoo

But one key piece of feedback is that any rule change should ensure a level playing field

[Singapore] RESULTS of a public consultation on short-term stays in private residential properties were split, with no clear consensus, said the Urban Redevelopment Authority (URA), adding that more time is needed to study this issue.

An important piece of feedback, however, was that any change in rules should ensure a level playing field.

"Currently, regulated accommodation providers such as hotels and serviced apartment operators are subject to various regulatory requirements to ensure the safety and well-being of occupants. They are also subject to business taxes," URA said.

Comments from URA came in response to queries from the media on the public consultation exercise that started in January 2015 and was concluded in April the same year. But the findings have yet to be released.

On the hotly debated topic of the home-sharing economy, URA had sought feedback from members of the public, and also held separate consultations with stakeholders groups such as management corporations, members of the hotel and serviced apartment industry, and representatives of home-sharing platforms.

Current URA guidelines require that private residential properties be rented out for no less than six months. Private home offenders can be fined up to S$200,000 and jailed for up to a year.

"On one hand, there was acknowledgement of the need to accommodate the demand for short term home-sharing. On the other hand, there was strong endorsement of URA's existing controls on subletting, which are intended to preserve the privacy and sanctity valued by the vast majority of homeowners," URA said of the feedback gathered.

"The issue on short-term stays is complex, multi-faceted, has wide-ranging implications and it warrants a careful and balanced review."

But while the review is ongoing, URA stressed that the existing six months minimum stay duration in private residential premises "must be observed" and it is still continuing enforcement action against misuse.

Articles in The Business Times last month have flagged that even before local listings of residential units for short-term stay became rampant on Airbnb and HomeAway, various accommodation-service providers had long been in business in Singapore, with their property listings of condominium units spanning the island. And many of them allow rentals of less than six months.

Accommodation-service providers typically rent flats from landlords, furnish the units and sublet them, offering limited services that include twice weekly housekeeping.

But these "apartments with services" - which vary in their range of services provided - are not governed by URA's guidelines in the way traditional serviced apartments are. A planning permission from the URA is required to run a residential premise as serviced apartments for lease of seven days or longer.

Evidently, these accommodation-service providers are not part of the 13 registered members under the Serviced Apartments Association of Singapore (SAA). The 13 SAA members have about 28 registered properties with 3,646 apartments as at end-2015, according to SAA president Tonya Khong.

But Franck Boullier, co-founder of LMB Housing Services, felt that there is a missing element in URA's glossary - which he coins as "medium-term housing" for those staying for a few months. Such housing caters not to tourists but to corporate clients who are here for work, which is why Mr Boullier does not see the Sequoia-backed Airbnb as a competitor.

More companies are sending teams on project basis to support the local resources rather than deploying expatriates, he observed. But the traditional serviced apartments are more expensive than corporate housing solutions offered by companies like his. "Because they are working on projects, our customers need to have the flexibility to adjust the end date of their lease," Mr Boullier said of LMB's open-ended contract policy whereby the last date of stay is not indicated in rental contracts.

As a safeguard, LMB's occupants are registered with the condominiums' management office, have resident cards and are contractually required to abide by the by-laws of the condo they are staying in. Mr Boullier felt that future rules and regulations should indeed, ensure the safety and well-being of all occupants and all operators should be subject to business taxes too.

Frasers Hospitality CEO Choe Peng Sum noted that a lot of corporate clients who come into Singapore for one to five months require a host of services as well as fire safety, security and emergency precautions that are found in traditional serviced apartments. "When we deal with multinational companies, especially American and European companies, they are very particular about safety and security."

Those managing agents offering residential apartments with limited services will have to contend with the vast number of rental homes in Singapore and possibly compete on pricing, he said.

Mr Choe opined that these accommodation-service providers and Airbnb should be regulated too, in the same way serviced apartment operators are regulated under URA guidelines.

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

Hire-Purchase Act - Hire-Purchase (Motor Vehicles) (Amendment) Regulations 2016 (S 241 of 2016)

PDPC issues report on enforcement actions taken against errant companies and new advisory guidelines on enforcement

Business
05 May 2016

India-S'pore tax treaty: anomalies need to be dealt with

Business Times
19 May 2016
Vivek Kathpalia

THESE are taxing times indeed! The global shift on clamping down on base erosion/profit shifting has the recently amended India-Mauritius tax treaty to add to its list. These amendments have created some anomalies in the India-Singapore tax treaty as well. I will deal with these a little later.

For the last 30 years or so, Mauritius has had a fairy-tale tax treaty with India. It exempted investors from capital gains tax when they invested in shares of Indian companies through Mauritius. Like Singapore, Mauritius does not tax capital gains on the sale of shares. After 1991, when India opened up its economy, Mauritius played a very important role in providing a platform for foreign investment to India.

It allayed the concerns of many investors who feared double taxation and lack of credit availability as a result of a difference in source rules of taxation in India and jurisdictions such as the US. The treaty went through its ups and downs, being challenged in courts in India, but was upheld by the Supreme Court of India in a landmark decision.

When Singapore and India were ready to sign the Comprehensive Economic Cooperation Agreement (CECA) in 2005, they too amended their tax treaty to bring it on a par with what India and Mauritius had, albeit with higher standard of substance to be met in Singapore. This has led to Singapore playing a very critical role in the growth of investments into India. Singapore is indeed a "natural hub" for India and can only benefit with India's projected growth trajectory. In fact Singapore emerged as the largest investor of FDI (foreign direct investment) in India in the recent past. But some anomalies have crept into the India-Singapore tax treaty which need to be dealt with urgently.

The last thing the two countries want is a loss in momentum in their burgeoning economic relationship. The changes to the Mauritius treaty with respect to taxation of capital gains basically give the Indian government the right to tax capital gains in the hands of investors who have invested via Mauritius. The Singapore treaty with India had a "co-terminus" provision which states that if there is such a change in the Mauritius treaty in respect of capital gains, the capital gains provisions of the Singapore treaty would cease to have effect. Simple to many, but an interpretation and implementation nightmare to others!

The changes to the Mauritius treaty are quite clear with sensible provisions relating to grandfathering investments in shares till March 31, 2017. Investors want clarity and they seem to have got that as far as Mauritius is concerned. The lack of a similar grandfathering provision in the Singapore treaty means that no such protection may be available to investments made under the India-Singapore DTAA (double taxation avoidance agreement) for investments in shares prior to March 31, 2017. Hence the urgent need for clarity. What is quite clear is that the intention of India and Singapore was that the two treaties should provide almost equal treatment to investors. The news in India suggests that both countries will be speaking soon to formally amend the treaty. My view on what needs to be done with some urgency:

• Keeping in mind the very critical role Singapore is playing in the development of India, the tax treaty should (like the India-Mauritius pact) have clear grandfathering provisions with respect to all investments made by residents of Singapore in the shares of Indian companies till March 31, 2017, and after that, till March 31, 2019, a rate of tax not exceeding 50 per cent of the applicable capital gains tax in India on gains made prior to March 31, 2019, subject to meeting the limitation of benefits conditions in the Singapore-India treaty. This would then be a mirror to the treaty with Mauritius.
• Mauritius tax residents can now lend money to Indian residents and be subject to a lower withholding tax rate of 7.5 per cent in India. The rate applicable to similar debt investments from Singapore is currently 15 per cent (with a reduced rate of 10 per cent for banks). Singapore is a leading financial centre in the world and will undoubtedly be a centre for debt investments into India as well. Therefore a similar withholding tax rate of 7.5 per cent should be negotiated into the treaty. This will encourage the growth of the debt markets in both India and Singapore. Singapore should also look at its domestic law provisions to ensure that investors investing in debt from Singapore are not put to a greater burden than those investing from Mauritius.

I do hope that the two countries take this on as a matter of urgency and continue building on the strategic partnership they have created.

  • The writer heads the law firm Nishith Desai Associates in Singapore.

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

Income Tax Act - Income Tax (Qualifying Debt Securities) (Amendment) Regulations 2016 (S 240 of 2016)

Joint tenancy - an independent doctrine of ownership or merely a tenancy in common in waiting?

Business
05 May 2016

Higher payouts for workers who aren’t re-employed on cards

TODAY
19 May 2016
Louisa Tang

Govt to also help bosses redesign jobs for elderly ahead of upping of re-employment age

SINGAPORE — Older workers who are not offered re-employment when they turn 62 could receive a higher one-off payment to tide them over while they seek new jobs, under revised guidelines issued on Wednesday (May 18).

This sum of money, called Employment Assistance Payment (EAP), should be 3.5 times the released worker’s salary, up from the previous three times. This was recommended by a tripartite committee (Tricom) comprising the Government, employers and unions, which looks at the employability of older workers.

It also proposed that the minimum EAP to a worker be raised to S$5,500 and capped at S$13,000 — the previous recommended range was S$4,500 to S$10,000.

The revised guidelines were made in view of the re-employment age rising from 65 to 67, starting July next year. This means a worker should be offered re-employment when he reaches the statutory retirement age of 62, up to the age of 67, as long as they are medically fit and their work performances are at least satisfactory.

In a joint statement on Wednesday, the Manpower Ministry and the Singapore Workforce Development Agency said: “The revised EAP amounts took into consideration rising wages and... that employers’ re-employment obligations will be extended by two years.”

Tricom also recommended that employers provide re-hired workers with extra Medisave contributions to make medical benefits more portable.

Starting from July 1, the WorkPro scheme, rolled out in 2013 to strengthen the Singaporean core in the workforce, will also be enhanced. It will encourage employers to adopt more age-friendly practices, redesign workplaces for older employees to work safely and easily, and offer flexible work arrangements for all workers.

Companies may receive a grant of up to S$480,000 under the enhanced scheme, through the Age Management Grant, Job Redesign Grant, or Work-Life Grant.

Mr Patrick Tay, assistant secretary-general of the National Trades Union Congress (NTUC), said that unionised companies generally adhere to the guidelines, and some pay even more than the mandated EAP amounts.

NTUC could not say how many companies have followed the guidelines, though Mr Tay said it does track them. “I don’t see major issues of compliance among unionised companies... I’m more concerned about the non-unionised ones — 70 per cent of Singaporean companies are SMEs (small and medium enterprises) and many are not unionised,” he said, adding that the Manpower Ministry would handle such companies should issues arise.

Speaking to reporters on Wednesday during a visit to Lawry’s the Prime Rib Singapore restaurant, Manpower Minister Lim Swee Say said that about 1,800 companies have tapped on the Age Management Grant over the past three years, most of them SMEs.

“The next challenge is to get more companies to... take real action to redesign their workplace. In a way, we’re now in the second phase (of the scheme),” Mr Lim added.

At Lawry’s, its director Kevin Koh said that the fine-dining restaurant has put in place several age-friendly practices, including having trolleys, an anti-slip mat around the kitchen area, a dishwashing machine and automatic knife sharpener to reduce physical strain, and an e-menu system using a portable iPad so that servers need not keep going to the kitchen to check on orders.

It will tap on grants offered under the enhanced WorkPro scheme to fully integrate the e-menu system — including table reservations and customer relationship management.

There are 13 mature workers at Lawry’s Mandarin Gallery outlet, which hires about 55 workers — an increase from just three to four mature workers in 2013. Its oldest employee is Raymond Ong, 68, who has worked as a busser for two months. He finds the trolley useful, having worked in other places where he had to hand-carry trays of heavy crockery to the kitchen.

Both he and Ms Patricia Leong cited Lawry’s flexible working hours as a big incentive. Ms Leong, 60, started work as a cook two months ago, was granted two weeks’ leave a year to work on her own business. She gets to pick her work times and now clocks eight hours a day, five days a week.

“As long as I am fit and healthy, I will continue to work,” she added.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Income Tax Act - Income Tax (Concessionary Rate of Tax or Exemption for Income Derived from Debt Securities) (Amendment) Regulations 2016 (S 239 of 2016)

Benchmark sentences for NS overseas defaulters with a substantial connection to Singapore

Business
03 May 2016

Coroner seeks further statements from boy's kin

Straits Times
19 May 2016
Seow Bei Yi

The two-day inquiry into the death of 14-year-old Benjamin Lim closed yesterday with State Coroner Marvin Bay highlighting discrepancies in evidence, such as who made the decision to pull the boy from a school camp.

Asking for further statements to be taken from the teenager's mother and sister, he said it was important this "gap" be filled.

This issue has become a point of contention between Benjamin's parents and his school authorities.

After her call with the school counsellor, his mother told him that he would not be attending the camp the next day. Minutes later, he was found dead at the foot of their block. This happened on Jan 26, a few hours after the North View Secondary School student was arrested for the alleged molestation of an 11-year-old in a lift.

School counsellor Karry Lung said she told Mrs Lim of the school's suggestion that Benjamin not attend the camp, but his mother said she was merely informed of the school's decision. Benjamin's family cannot be named due to a gag order.

Yesterday, the Lims' lawyer expressed concern over how witnesses characterised Benjamin's behaviour when he called his mother to say he was to assist in investigations into a case of outrage of modesty.

On Jan 26, police had gone to Benjamin's school to look for a suspect later identified as him. In the principal's office, he called his mother to say the police were taking him to Ang Mo Kio Police Division. Both Inspector Poh Wee Teck, the officer who interviewed him, and Madam Lung suggested that Benjamin, who was calmer before, grew anxious as he spoke to his mother.

With Madam Lung back on the stand yesterday, lawyer Choo Zheng Xi, representing Benjamin's family, said it would be "very upsetting" to suggest the stress the teen appeared to be experiencing was related to his conversation with Mrs Lim, who was described as speaking loudly.

Referring to how she said Benjamin "started frowning and his replies became softer" when talking to his mother, Mr Choo said: "I want to clarify that you are not suggesting here that there was a correlation between Benjamin's mother speaking loudly and the significant stress that you observed".

Madam Lung said she could hear only Benjamin's reaction but not the conversation.

Insp Poh, who took the stand after Madam Lung, said he saw Benjamin cringe in the last exchange he had with his mother. After the teen hung up, Insp Poh saw that he was holding his phone "very tightly" and took the cellphone from him in a bid to relieve his stress. The next mention of the case will be next month.


Teen 'admitted touching girl after denying it at first': Coroner's inquiry into boy's death

Benjamin Lim at first denied touching an 11-year-old girl in a lift because he was scared.

But after being given 20 minutes to think again by the officer interviewing him at Ang Mo Kio Police Division, the 14-year-old confessed and said it was the first time he had touched a girl and knew that it was "wrong".

He also apologised and promised not to do it again.

This was revealed yesterday on the second day of the coroner's inquiry into his death, when the officer who recorded the teenager's statement took the stand.

Senior Investigation Officer (SIO) Mohammad Fareed Rahmat said that at first, Benjamin, who was taken to the station at 11.15am on Jan 26, claimed he was taking a new route to his home after school on Jan 25, which was why he mistook a different block for his own.

But one point gave him away.

While in the lift with the girl, Benjamin pressed the button for the 13th floor, when he lived on the 14th floor.

SIO Fareed said: "It appeared to me that Benjamin was not being truthful. I asked him to take some time to think about what he would like to give as his account of the events."

When he resumed the interview at around 12.15pm, Benjamin said he had noticed the girl as he was walking home from school and found her "cute". So he decided to follow her.

After getting into the lift with her, he told police he came up with a plan to drop his mobile phone so that he could touch her as he stood up. When he picked up his phone, he used his right hand to touch her left back thigh. He denied he touched her left buttock.

When he exited the lift, the girl said something to him but he could not catch what she said. She then said never mind.

"I am sorry for what had happened. I felt regret for what I did. I just felt the urge to touch the girl on that day. I know what I did is wrong," he stated in his police statement.

SIO Fareed also explained that Benjamin appeared calm throughout the interview and as his statement was recorded. The entire process ended shortly after 1pm.

After the confession, Benjamin was arrested. He was released to his mother's custody at around 2.50pm after she posted bail of $2,000. At around 4.30pm, he was found dead at the foot of his block.

Asked by lawyer Choo Zheng Xi, who is representing Benjamin's family, if the teenager overheard that he was going to be arrested, SIO Fareed explained he had used a code word when asking a colleague to prepare the arrest report, calling it the "alpha" report.

He added that he never accused Benjamin of lying, but told him in general that the purpose of the investigation was to find out the truth.

He also said he followed the procedure set for interviewing young suspects, including questioning Benjamin in an open-plan office.

Elena Chong

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

Income Tax Act - Income Tax (Qualifying Project Debt Securities) (Amendment) Regulations 2016 (S 238 of 2016)

The Trans-Pacific Partnership and intellectual property: Potential changes in Singapore, Malaysia and Vietnam

Business