17 October 2017
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S'pore tax incentives meet global standards

Straits Times
17 Oct 2017
Yasmine Yahya

Republic has implemented all four agreed standards under OECD's tax/profit project

An international body overseeing global tax practices has said that Singapore's tax incentives meet the international standards on countering corporate tax avoidance.

The Forum on Harmful Tax Practices (FHTP) said in a report yesterday that it had reviewed 164 tax regimes, finding that governments have dismantled, or are in the process of amending, nearly 100 preferential tax regimes as part of efforts to improve the international tax framework.

The reviews, which took place over the past two years, were aimed at studying the progress that these countries have made in updating and implementing tax policies so as to ensure companies do not exploit tax incentives for the sake of avoiding paying their fair share.

In particular, the reviews were focused on a practice called "base erosion and profit shifting" (BEPS).

This involves multinationals avoiding taxes by engineering lower profits in countries where taxes are high and correspondingly reporting higher profits in low-tax jurisdictions.

In recent years, the Organisation for Economic Cooperation and Development (OECD) has set out international standards to dismantle unfair tax regimes which enable such practices.

The Finance Ministry said in a statement that as a member of the Inclusive Framework on BEPS, Singapore is committed to implementing internationally-agreed standards to counter BEPS.

Singapore has implemented all of the four internationally-agreed standards under the OECD's BEPS project, including participating in the review, the ministry noted.

"Our tax incentives meet international tax standards and anchor substantive economic activities in Singapore," said Finance Minister Heng Swee Keat.

"I am glad that this is recognised by the FHTP. We will continue to create a conducive environment where businesses at various stages of growth can use Singapore as a base to build deep capabilities, grow and internationalise. In the process, we can create a range of good jobs and expand opportunities for our people."

Mrs Chung-Sim Siew Moon, the Singapore head of tax at Ernst & Young Solutions, said the review shows that foreign investors can rest assured that tax incentives will continue to stay in Singapore.

"There is also certainty that Singapore's tax incentives are not harmful by international standards, and hence will face less challenges from overseas tax authorities," she noted.

"Investors can expect more rigorous evaluation on new incentive applications and ongoing monitoring that incentive conditions are met."

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

Registered Designs Act - Registered Designs (International Registration) (Amendment) Rules 2017 (S 575 of 2017)

NCCS issues Response to feedback received from public consultation on Singapore’s climate change strategy and carbon tax

Business
15 Sep 2017

Singtel fined $500,000 for Net outage

Straits Times
17 Oct 2017
Irene Tham

Singtel has been fined $500,000 - the largest amount in three years - for an islandwide fibre broadband outage last year that left some 490,000 users cut off from the Web.

The outage on Dec 3 lasted nearly 24 hours and affected close to 90 per cent of Singtel's fibre broadband user base.

Announcing the fine yesterday, the Info-communications Media Development Authority (IMDA) said its investigations showed that the disruption was triggered by a planned maintenance.

The exercise to install security patches overloaded the servers, which could not process subscribers' request for connection to any website.

IMDA also noted that there were warning signs prior to the incident, with the same servers running at almost full capacity - up to 90 per cent - but Singtel "had failed to take prompt action".

In view of the high utilisation rate, Singtel should have exercised "greater due diligence and caution" to prevent overloading the servers when installing the security patches.

In determining the fine, IMDA took into consideration mitigating factors such as the $5 million in discounts and bill waivers Singtel offered its customers in compensation.

Affected customers who were told to surf the Web using their mobile connection had their mobile data charges waived.

The telco also extended a 10 per cent discount to customers' fibre broadband bill for the whole of December.

"We deeply regret the fibre broadband service disruption last December. We know how important network reliability is to our customers, and we have learnt from this incident," said Mr Yuen Kuan Moon, Singtel Consumer Singapore's chief executive officer.

Singtel has also since upgraded its servers to prevent a similar incident from recurring, and is reviewing its broadband network architecture to improve its resilience.

The largest telco fine of $6 million was meted out in May 2014 to Singtel over a fire at its Bukit Panjang Internet exchange in 2013 that took down phone lines, banking payment and Internet services across Singapore.

In that case, the unprecedented islandwide outage had affected close to 270,000 subscribers, including DBS branches and ATMs, SingHealth polyclinics, Singapore Pools branches and AXS payment machines.

Home fibre broadband users of Singtel, StarHub and M1 were also cut off from the Internet, as the fire damaged the cables of national fibre broadband network builder Netlink Trust that were housed in the same premises.

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

Registered Designs Act - Registered Designs (Amendment No. 2) Rules 2017 (S 574 of 2017)

The role of local law in making Singapore investment heaven

Business
15 Sep 2017

Singapore has long been considered an economic powerhouse, and not just in Asia. According to statistics from the World Bank, Singapore is the world’s 36th biggest economy. Its importance as a major global port puts it further up the table, with trade between Singapore and the Americas, Europe and Oceania proving highly important to both sides.

Much of Singapore’s economic success can be put down to the legal frameworks that have been put in place over the last few decades. For investors in local businesses, customers of Singaporean companies and even individuals looking to move abroad to work for companies over here, the local laws have helped to make doing business pretty easy.

Laws governing local business are spread across a variety of acts passed by government. Arguably the most pertinent of all is the Companies Act, which was amended in 2014. This act covers many areas of business law, from the constitutions of businesses to how shares in publicly-traded companies should be distributed.

Having just one wide-ranging piece of legislation to cover differing areas of business law has given many Singaporean firms an advantage over competitors in neighbouring countries. Compared to Malaysia, Indonesia and even China, there is less that business owners have to remember.

What investors need to know

Foreign investors looking to put their money into Singaporean businesses will find their attempts to do so just as easy as those based in Singapore. Investment laws are the same for foreign investors as they are for local ones, with two exceptions - broadcasting and local news media. Businesses in those two areas are required by law to be owned by Singaporeans only.

For investment in new business, the Developmental Investment Fund Act was created to aid growth areas in the economy. It concerned putting money into infrastructure, technology and science, providing that said money would help to boost Singapore’s economy. Associated acts, such as the Development Fund Act, were passed soon afterwards to safeguard its funds.

Investing in this part of the world has been made easier due to the popularity of the Singaporean Dollar. Some of the country’s older entrepreneurs needed to learn to trade currency. Today, the SGD’s position is almost on a par with major regional currencies, with the transparency of financial laws aiding its ascent.

The stock markets, meanwhile, have reflected the economy’s growth for many years. The SGX has risen significantly in value since the beginning of 2017, with the simplicity and security of local business laws playing their part in boosting investors’ confidence.

Hiring staff

When it comes to hiring staff, local employment law could not be simpler. For the recruitment of locals, the Employment Act covers payment, paid holiday, the hiring of contractors and maternity leave. Many of these laws also apply to the recruitment of foreign workers, but they also need to gain an Employment Pass.

This is for new employees who earn at least $3,600 per month and have a certain level of qualifications. All work permit-style systems for hiring foreign employees apply to all incoming workers to Singapore, with the exception of the Work Holiday Pass (under Work and Holiday Visa Programme) for Australian students wanting work and live in Singapore for up to one year.

Compared to the rules in place for employing foreign workers in many EU countries, this gives investors less of a headache. Usually, red tape can get in the way of hiring the best staff from across the globe, but it does not seem to be the case in Singapore.

For Singapore to continue thriving, existing business laws need to be upheld. From making investment in businesses as transparent as possible to protecting intellectual property and clarifying who they can hire from abroad, complacency should not set in.

Neil Buckland for IG Trading

© 2017 IG Asia Pte Ltd

Mentally ill man who slashed wife to death gets 2 years' jail

Straits Times
17 Oct 2017
Selina Lum

Prison sentence the shortest ever meted out for intentional culpable homicide here

A 69-year-old retired aircraft technician was yesterday given a sentence of two years in jail - the shortest ever meted out for intentional culpable homicide here.

Kong Peng Yee had killed his wife of 36 years by stabbing her repeatedly while suffering psychotic delusions that his family might harm him.

As the prison term was backdated to March 13 last year, when he was arrested, Kong was released from jail yesterday, given the usual one-third remission for good behaviour.

Sentencing Kong yesterday, High Court judge Choo Han Teck said that "punishment is probably not the most appropriate response to a man like the accused here".

"What is the appropriate punishment for a man whose act was guided by thoughts that entered unbidden into his mind? There is no clear answer," he said.

Justice Choo wondered if punishment was even necessary. "His madness is its own punishment," he said.

The problem, said the judge, lies with "an archaic law that has been incorporated into our statute".

He was referring to a legal test, known as the M'Naghten rule, laid down in a 19th century English case which declared a man not to be insane if he either knew what he was doing or that what he was doing was wrong. "From that moment on, legal insanity and medical insanity have not fitted themselves snugly in the same box," he said.

The judge questioned if a person who had lost his sanity is truly able to discern his own mental state.

Justice Choo said the M'Naghten rule should be re-examined and that "doctors and lawyers should speak a common language" when dealing with the mental responsibility of a mentally ill accused.

Kong started behaving oddly last year. He refused to take his medication, thinking laxatives were poison.

On March 12 last year, though a health check showed no adverse results, he was worried someone was trying to harm him or he was going to die from a disease. He also told his older daughter that he did not think she was his biological daughter.

At church the next day, he told a stranger that people were poisoning him. He returned home and took a nap, but awoke to roaring sounds.

He took a knife from the kitchen and stabbed Madam Wong Chik Yeok until she was dead. An autopsy noted 189 injuries, including knife wounds and bruises.

The prosecution, which had sought at least nine years in jail, is appealing against the sentence.

Half a dozen family members, including Kong's two daughters, were in court, but declined to comment when approached.

"For them, it is an unexpected surprise," said defence counsel Sunil Sudheesan. He had asked for a five-year jail term.

Kong pleaded guilty last month to culpable homicide. He was initially charged with murder but the charge was reduced, as a court-mandated psychiatric assessment by Dr Kenneth Koh from the Institute of Mental Health found that Kong's mental responsibility for his actions had been substantially impaired by his psychotic delusions.

Kong's psychiatric disorder is now in remission with medication, and he has been certified safe to be returned to the care of his family.


Other similar cases

FEB 16, 2006

Han John Han, 50, plunged a sword into his pregnant wife's chest, killing her and their unborn child.

Han believed that his wife of more than 12 years, Madam Fu Xiaopei, 39, was using black magic to put a hex on him.

Found to be suffering from psychotic delusions, Han was initially sentenced to three years in jail for culpable homicide.

Following an appeal by the prosecution, the Court of Appeal raised the term to five years.

NOV 17, 2012

Rosdi Joenet, 51, who suspected that his wife was having an affair, woke her up to discuss their marital dispute.

When Madam Faridah Senin, 41, chased him out, he stabbed her with a kitchen knife.

Rosdi, diagnosed with a delusional disorder of the jealous subtype, was initially sentenced to nine years in jail for culpable homicide. The term was cut to 7-1/2 years by the Court of Appeal.

DEC 16, 2014

Lorry driver Zheng Xianghua, 37, stabbed his wife after she said she would no longer live with him. Zheng suspected that Madam Wang Xueyan, 37, was having an affair due to her texting habits.

Found to be suffering from severe depression and morbid jealousy, he was sentenced to nine years in jail for culpable homicide.

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

Public Prosecutor v Kong Peng Yee [2017] SGHC 253

Patents Act - Patents (Amendment No. 2) Rules 2017 (S 573 of 2017)

SCA sets aside order sanctioning Schemes of Arrangement: SK Engineering & Construction v Conchubar Aromatics [2017] SGCA 51

Judgments
14 Sep 2017

Regulatory compliance, costs could turn firms away from SGX

Business Times
16 Oct 2017
Stephanie Luo

Alternative platforms like crowdfunding are giving the stock exchange a run for its money

SINGAPORE is a leading financial hub, ranking third globally just behind London and New York, but its stock market is another story.

In a world flush with liquidity, the Singapore Exchange (SGX) has to compete with new fundraising avenues on top of rival global exchanges, which raises questions on how it can reinvent itself to attract new listings and boost trading, as observers point to regulatory burden and cost as deterrents.

Song Seng Wun, CIMB economist, told The Business Times: "Everybody wants a more vibrant financial market. We are an important financial hub in the Asia-Pacific. It's only good that we also get a bit more 'oomph' out of the stock market."

He added: "It's a chicken-and-egg situation. You need to get more local participants on the retail side. There is the question of whether the regulators are overprotective of retail investors. To add more interest into the market, there must be a certain element of risk involved."

Based on the latest Global Financial Centres Index released in March, Singapore ranked third behind London and New York, which were ranked first and second respectively. Hong Kong was in fourth position.

SGX had a market capitalisation of about US$640 billion at end-2016, up 2.3 per cent from 2015. It trails far behind Hong Kong Exchanges' almost US$3.2 trillion, according to statistics from the World Federation of Exchanges. Other Asia countries like South Korea recorded a higher market capitalisation than Singapore at US$1.3 trillion while Shanghai Stock Exchange and Shenzhen Stock Exchange was US$4.1 trillion and US$3.2 trillion respectively.

According to an equity sales representative from Maybank Kim Eng Securities, Singapore needs a stronger stock market to attract more listings for small and mid-cap stocks which could be drawn to P2P lending and crowdfunding platforms to raise capital due to lower costs and less regulatory hurdles, although SGX would still be the preferred platform to raise larger amounts of capital and to gain recognition for growth.

"The existing upfront costs of listings are prohibitive and expensive. SGX may consider finding ways to lower these costs, else many of these companies may be drawn to other exchanges or other sources of funding."

The SGX website states that mainboard-listed equity securities are subject to a minimum initial listing fee of S$100,000 and a maximum fee of S$200,000. There will also be a fixed non-refundable processing fee of S$20,000. For Catalist, listed equity securities pay between S$30,000 and S$100,000 in initial listing fees. There is also a fixed, non-refundable administrative fee of S$2,000.

Rise of crowdfunding

A study, Crowdfunding: Financing Ventures in the Digital Era, by Srinivas K Reddy and Tan Yee Heng from the Singapore Management University, found that crowdfunding volume rose to US$34.4 billion in 2015, slightly surpassing the venture capitalist industry. This trend is expected to continue growing quickly.

"Certain projects may be unable to access traditional funding sources for various reasons - institutional investors may doubt a project's success, the size of the market may seem too small or the creators may not have an appropriate track record. In inviting communities to act as gatekeepers, crowdfunding effectively allows the free market to regulate project survival."

Crowdfunding, however, isn't a guaranteed success. On average, success rates for crowdfunding have been moderately low. The study said that Kickstarter, the most popular crowdfunding site, has a success rate of 35 per cent, with certain categories such as technology garnering only 20 per cent.

As alternative platforms give SGX a run for its money, it reignites questions on whether it should cut red tape and compliance costs for potential issuers.

In February this year, the Monetary Authority of Singapore announced that it had formed the Corporate Governance Council to review the Code of Corporate Governance (CG Code), which was last reviewed in 2012. The council will consider how the "comply-or-explain" regime under the CG Code can be made more effective. The revised code is expected to be released in the first quarter of next year.

On concerns over whether the revised code will add more requirements such as higher compliance costs that companies pay to external parties like lawyers and auditors, Joyce Koh, executive director, Singapore Institute of Directors, said that the review of the CG Code does not necessarily mean that this will happen. She added that the privatisation trend and the lack of listings from firms reflect the "rebalancing" of the capital markets, away from IPOs to private equity or even venture capitalists.

"Companies have a broader range of financing options for growth. This does not mean that the benefits of public listings have gone away. However, factors such as a low free float and trading value, lack of research coverage, access to cheap debt financing, and better valuations elsewhere have led companies to consider options other than public listing."

A corporate lawyer told BT that for a mainboard-listed company, audit fees are typically about a quarter of a million dollars. It could increase if the auditors take on additional tasks like helping with acquisitions. For lawyers to pen corporate governance write-ups, depending how in-depth the write-up is, the amount is about S$10,000 or S$20,000.

Mark Liew, chief operating officer, PrimePartners Corporate Finance, said that in terms of listing costs, it is cheaper for small and medium enterprises to list in Australia (less than S$1 million) but more expensive to list in Hong Kong (over S$4 million).

"Singapore is in between and closer to Australia in terms of cost. Listing costs are driven by regulatory and market requirements. To lower listing costs, it would be necessary to lower some regulatory requirements (such as) less disclosures and less detailed due diligence. Striking a balance is essential for capital market activities," he noted.

Weak investor base

So far, Singapore has done well in the last decade in building up a strong real estate investment trust (Reit) and trust market but it seems like there is a stagnation of fresh concepts that could boost SGX.

Choo Oi Yee, managing director, head of Singapore, UBS investment banking, said that Singapore's Reit and trust market is at a stage where it has "ran out of ideas", and SGX is looking at attracting overseas corporations to list here.

"There're very few new large Singapore companies that could (launch an) IPO. Reits are already quite mature, where Singapore corporates and properties are concerned, so the natural move is for SGX to consider other issuers outside of Singapore, like the Chinese as well as Europe and the US. Some of the Chinese Reits, for example, are considering listing here because Hong Kong Reits trade at a higher yield."

In her view, Singapore is struggling in the technology and biotech space, and attracting the right investors here is a challenge.

"I personally wish we had a much more vibrant tech space but the issue is that US investors understand growth and valuation better. For tech, the valuations don't make sense because investors here are still focused on earnings and cash flow. The investor base for tech doesn't exist here."

For some business owners like Nicholas Wong who runs a technology start-up, SGX is being too protective of investors. That affects liquidity, and there could be a lack of new homegrown businesses in the future due to limited access to funding.

"(SGX) should encourage more liquidity through more products, like exchange traded funds, to drive the trading volume up. It cannot always 'protect' the investors so much that companies are finding it a waste of time to list in Singapore as they feel that the regulatory (bodies) are always scrutinising them when the investors lose money like during the Asiasons and Blumont issue in 2013."

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

Copyright Act - Copyright (Amendment) Regulations 2017 (S 572 of 2017)

MOM enhances EntrePass scheme to attract global startup talent to build innovative businesses in Singapore

Business
14 Sep 2017

'Sandwiched class' too may need pro bono legal help

Straits Times
15 Oct 2017
Ng Huiwen

Aid scheme may need reviewing as legal, living costs rise: Lawyers

More needy people who find themselves tangled up in the law have been able to get help in recent years, with a growing proportion being granted criminal legal aid and more legal clinics springing up.

Yet, the rising cost of living could see more people in the "sandwiched class" who will need more attention.

In an interview with The Sunday Times, Law Society Pro Bono Services (LSPBS) chief executive officer Lim Tanguy described this group as being "too rich for legal aid, but too poor to hire a lawyer".

Last year, 1,777 people were helped under the Criminal Legal Aid Scheme (Clas) - about 75 per cent of the 2,361 applicants. This was a jump from the 25 per cent in 2014.

LSBPS runs 23 legal clinics - compared with just two a decade ago - where anyone can make an appointment to get free legal advice on various issues, including matrimonial and employment law.

Since September 2014, about 7,600 people have been helped at the clinics, said LSPBS. Still, there is scope to extend pro bono help.

"Some people are able to afford legal help for smaller cases, like a personal injury claim, but if it is a High Court trial that may take weeks, that may be beyond the ability of a lot of people," said Mr Lim.

This issue will only grow more acute in time to come. Legal fees are expected to rise with higher inflation, said LSPBS chairman Gregory Vijayendran, who is also the president of LawSoc.

Agreeing, Beacon Law Corporation director Tan Cheow Hung said: "The constantly increasing cost of living means that people will have less disposable income and the demand from the sandwiched class is likely to grow."

Another area that could be re-looked is eligibility for Clas. While effective in ensuring only the needy receive legal aid, its test is a "blunt instrument", said Mr Lim.

Under Clas, only those with a disposable income of not more than $10,000 per annum, among other criteria, can be granted legal aid. This is similar to the Ministry of Law's Legal Aid Bureau, which provides legal aid for civil cases.

The offence they are charged with must also fall under the list of 16 statutes covered under the scheme, which was set up in 1985.

"It is a strict process and not many are caught gaming the system. But unfortunately, there may be some deserving cases that fall through the cracks," said Mr Lim.

In 2015, Clas saw a major enhancement to include assistance for those who are pleading guilty, instead of only those claiming trial. Full-time Clas lawyers were also introduced to support the pool of volunteers, backed by a $3.5 million annual government funding.

But in the future, the Clas scheme could be refined further to also consider the type of legal services required or expand the range of statutes covered.

Mr Vijayendran, however, added that all this has to be done carefully to ensure that lawyers are not "cannibalised" by pro bono work.

LSBPS has its work cut out as it officially began its new journey as a corporatised entity of the Law Society of Singapore (LawSoc) on Oct 7, said Mr Lim.

For the past 10 years, the pro bono services office was a department within the LawSoc. He said corporatisation will allow it to consolidate its initiatives.

Currently, about a third of over 5,000 lawyers here do some form of pro bono work.

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

Registered Designs (Amendment) Act 2017 - Registered Designs (Amendment) Act 2017 (Commencement) Notification 2017 (S 571 of 2017)

PDPC conducts public consultation to enable collection, use or disclosure of personal data where consent is not practical or desirable

Business
14 Sep 2017

Tommy Koh honoured for contributions to international law

Straits Times
15 Oct 2017
Wahyudi Soeriaatmadja

Singapore's Ambassador-at-Large Tommy Koh yesterday received the inaugural Mochtar Kusumaatmadja Award, which acknowledges prominent academics and practitioners who have contributed significantly to the field of international law.

Named after the former Indonesian law and foreign affairs minister, the award is a joint initiative of the country's Foreign Ministry and Padjadjaran University. Professor Koh, 79, received it at a ceremony in Gedung Merdeka, a historical Art Deco building.

Prof Koh served as president of the Third United Nations Conference on the Law of the Sea (Unclos) in 1981 and 1982, and is currently chairman of the board of governors of the Centre for International Law at National University of Singapore.

In his speech at yesterday's ceremony, Indonesia's Deputy Foreign Minister H. Abdurrahman Mohammad Fachir paid tribute to Prof Koh for playing a "pivotal role" in negotiations on Unclos.

Prof Koh said he was proud to be the first recipient of the award, adding that he was humbled and honoured that his old friend, Professor Mochtar, was at the ceremony.

Prof Mochtar, 88, was Indonesia's law and human rights minister from 1973 to 1978, and foreign minister in 1978. He also played an important role in Unclos, in the terms of its reference to archipelagic states around the world.

The award is one of many honours that have been bestowed on Prof Koh, who has also been recognised for his role in environmental diplomacy.

When asked if he had any message for the youth of Singapore and Indonesia, Prof Koh spoke about the importance of the rule of law, which he said created a level playing field for both small and big countries.

He added: "We smaller countries must insist that big countries abide by international law, that they must settle their dispute peacefully in accordance to the laws."

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

Patents (Amendment) Act 2017 - Patents (Amendment) Act 2017 (Commencement) Notification 2017 (S 570 of 2017)

A tale of two cooling towers

Judgments
13 Sep 2017

Shedding the suit for a new calling

Straits Times
15 Oct 2017
Boon Chan

Success in the corporate world is hard-earned in a competitive environment, but having found it, some high-fliers are choosing to do what sounds like a counter-intuitive thing - ditch their jobs.

Instead, they turn to non-profit organisations and charities in search of a more fulfilling life.

Singapore-based American Richard Hartung, financial consultant and author of Changing Lanes, Changing Lives: How Leaders Made A Meaningful Career Switch From Corporates To Non-profits (2013), says he was struck by how those who made the move say their lives became more meaningful, often with a positive impact on their families as well.

He notes that each of them chose an area they are passionate about. Some spoke to a number of organisations in search of a cause to dedicate their efforts to, while others knew what they wanted to do.

While a relatively small number of people make the switch, he says "the number does seem to be growing and more people are interested".

To learn more about taking that leap, The Sunday Times speaks to lawyer turned Association of Women for Action and Research (Aware) executive director Corinna Lim; Mr Edward Hoon, who switched to counselling after more than 30 years in the electronics and insurance industries; and Ms Evelyn Leong, who went from the petrochemical and desalination sectors to executive director at Girl Guides Singapore and is now corporate development and outreach director at Movement for the Intellectually Disabled of Singapore (Minds).


Former legal eagle now helps vulnerable women

MS CORINNA LIM, 53

Executive director, Association of Women for Action and Research (Aware)

Ms Lim was a legal eagle whose career took flight after she was called to the Singapore Bar in 1988. She worked in prestigious firms such as Allen & Gledhill and the former Khattar Wong & Partners. But she was not happy.

She recalls: "The hours were very long, which I didn't mind. But I felt that my work had to leave the place a little better than when I found it, and I didn't find that in my day job."

Instead, what she found more meaningful was doing pro bono work at Queenstown Community Centre, giving advice to women in difficult relationships and marriages who felt trapped. "I always felt that in that half an hour, I managed to bring some hope and shine a little light on some of their options."

She later helped draft the Family Violence Bill tabled by Dr Kanwaljit Soin, then a Nominated Member of Parliament, in 1995. While it was rejected, she says it led to changes in the Women's Charter and "real protection" against family violence.

Its key proposals - such as making it easier for domestic abuse victims to obtain personal protection orders - were adopted in amendments to the charter.

"It made me see that change at a structural level is possible so long as people care, which is inspiring because a lot of the time, we feel pretty powerless in Singapore."

Dr Soin was a founding member of Aware and Ms Lim found the organisation's work worthwhile and productive.

"When you do counselling, you're helping individuals. But when you actually make change at the systemic level, then you're really talking about change for many people's lives."

By the time Aware was looking to professionalise and appoint its first executive director in 2010, she had been volunteering with the organisation for 15 years and the timing felt right to her. If this had happened earlier, it would have been more difficult, she says.

"But having built up some financial security, I was in a position to make this choice."

Still, she describes the path she took as being quite low-risk. "I knew what I was interested in, I knew what I really cared about."

Ideally, the switch from a corporate to a non-profit should not be an "I woke up one day and really need to make this big change" snap decision, she says.

It helps to volunteer beforehand, she adds.

"You begin to find out more about possible organisations as non-governmental organisations come in all shapes and forms; it's all about people.

"You're not doing this for money. It's because of non-monetary priorities, in fact, that you're doing this, so you should get a good feel for the organisation you would like to work with."

I felt that my work had to leave the place a little better than when I found it, and I didn't find that in my day job.

AWARE EXECUTIVE DIRECTOR CORINNA LIM, a former legal eagle


Engineer inspired by special needs students

MS EVELYN LEONG, 43

Director of corporate development and outreach, Movement for the Intellectually Disabled of Singapore (Minds)

In the 1980s, Ms Leong used to save up money to buy toys and books for the Sharity box. The box was part of a donation drive under the Sharity pink elephant campaign, which was introduced in 1984 to encourage young Singaporeans to give to the less fortunate.

That was her first encounter with active charity work.

Her parents are divorced and she was brought up by her two aunts, one a chef and the other a housewife.

She was influenced more by the latter, who always told her to help others if she could, and led by example by, say, donating to buskers or buying tissue paper from peddlers.

Trained as an engineer, Ms Leong later joined the oil and petrochemicals industry and, subsequently, the water treatment business.

But at some point, she found herself caught up in the corporate race and asked herself the big question: "Is this what I really want in life?"

As she was mulling over a career switch three or four years ago, a job opportunity at Girl Guides Singapore came up.

She took up the position of executive director - even though she had never been a guide. But she was drawn by the idea of reaching out to the community and empowering girls.

Moving to a Voluntary Welfare Organisation and uniform group required a change in mindset.

She says: "We are not into figure-crunching, but rather, we are looking at how we can transform lives, how programmes can nurture children and how we can help the less fortunate. I think that is something that's very exciting."

Through the Girl Guides unit in Fernvale Gardens School, she had several encounters with special needs students.

"They are quite inspiring. They are able to achieve more than what most people think."

Last year, she left the Guides to take up her current portfolio at Minds, which caters to the needs of the intellectually disabled in Singapore.

She is keen to empower the students to do more and is always looking for new collaborators.

For example, when the Ministry of Home Affairs expressed interest in working together but was limited by its budget, she proposed using its existing facilities, such as the Road Safety Community Park and fire stations, for the students to visit.

"We don't always have to do the usual things, like a picnic at the zoo," she points out.

For Ms Leong, who is married with no children and is now a certified Girl Guide, moving to the non-profit sector was not merely about switching jobs.

"It's more about what we can do to make that little difference and whether we can put others before ourselves."

Outside her work at Minds, she continues with acts of kindness by donating regularly through online portals.

"I can still do good even when I'm busy. This ties in with one of the key teachings of the Girl Guides, which is to do a good turn every day."

We are looking at how we can transform lives, how programmes can nurture the children and how we can help the less fortunate. I think that is something that's very exciting.

MS EVELYN LEONG, Minds director of corporate development and outreach


Picking up counselling in his 50s

MR EDWARD HOON, 57

Counsellor, Thye Hua Kwan Moral Charities

When Mr Hoon decided to study counselling in his early 50s, his daughter asked jokingly: "Dad, will we be poor?"

Not only was he switching careers after more than 30 years in the electronics and insurance lines, but he was also going for a Bachelor of Counselling degree from the Singapore University of Social Sciences (Suss).

He started with night classes in 2014, but decided that to maximise learning, he had to quit his job as a senior customer operations manager and study full time.

His financial planning background came in handy in figuring out the sums this decision entailed.

He adds: "If anybody wants to make this move, talk to your loved ones because the journey is not going to involve you alone. Families and children (are part of it)."

His son, 26, and daughter, 22, are both studying and his wife is a housewife.

When he finally graduated earlier this month, he said his journey was "well worth it".

"My personal life was enriched as it helps in the relationship with my spouse and the children. On the professional front, when I apply the theories I've learnt, I can see the transformation in my clients."

His family was a major motivation for his career move.

In his 30s, he went through a challenging period. He was focused on his career while his wife was looking after their children and he did not spend enough time with them. Then his late mother had a stroke when he was 31.

While he did not undergo formal counselling, a close friend and his wife helped him through this tough stretch and he is happy to announce that "things are going well now" with his nearest and dearest.

Having gone through the tunnel and emerged on the other side, he decided he wanted to help others "to realise that this is all normal, we just have to manage our stress and learn about conflict resolution".

Since December last year, he has been a counsellor at the Thye Hua Kwan Centre for Family Harmony, one of four Divorce Support Specialist Agencies appointed by the Ministry of Social and Family Development.

Apart from successfully making a late career switch, Mr Hoon could also be the poster boy for lifelong learning.

He intends to go for a graduate diploma in social work next year and a master's in counselling in 2019, both at Suss.

"We have to upgrade and commit to learning new knowledge and skills. Set medium-and long-term goals. Don't stop learning and enjoy the learning journey. Be teachable and persevere."

If anybody wants to make this move, talk to your loved ones because the journey is not going to involve you alone.

MR EDWARD HOON, a counsellor at the Thye Hua Kwan Centre for Family Harmony

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

Requisition of Resources Act - Requisition of Resources (No. 5) Order 2017 (S 569 of 2017)

Recent developments in the regulation of initial coin offerings

Legislation
13 Sep 2017

Law against torture by cops 'applies to others'

Straits Times
14 Oct 2017
K.C. Vijayan

Judge explains why he jailed for 15 months man who beat teen to extract confession

A law that makes it an offence for the police to use torture to extract confessions can be used on others who employ such methods, including vigilantes.

Explaining why he jailed for 15 months a 42-year-old man who had tied up a teen and beat him to wring a confession out of him, District Judge Kenneth Yap referred to a High Court precedent from 21 years ago that involved a similar beating by three cops.

The High Court had said then the main aim of the relevant Section 330 of the Penal Code was to prevent torture by the police, but it also said a benchmark two-year jail sentence may be appropriate where non-law enforcement officers were involved, other factors being considered.

Judge Yap said the offender, whose name was redacted from the judgment, should not be treated any more leniently just because he had acted upon a mistaken belief that his victim had hacked into his phone when he restrained and beat the teen up.

"He had taken calculated steps to extract a confession in open violation of the criminal process, and should be punished in the same measure as any vigilante or abusive law enforcement officer," the judge said in grounds issued on Monday.

The man was sentenced last month after he admitted to tying up and assaulting the boy into a confession. An additional charge of wrongfully confining the teen in his Tampines flat for almost two hours on Nov 18 last year was taken into consideration for sentencing.

The ITE-trained electrical engineer was trying to unlock his Google account outside his flat when he became paranoid that somebody had hacked into it.

Spotting the victim at the void deck, he suspected him to be the culprit and took him to his flat for questioning. This was some time after midnight. The boy, who was high on Ice, was said to be afraid he might be a policeman.

Dissatisfied with the boy's answers, the man tied his wrists and legs. He also slapped and punched the boy until the commotion roused his family members. The man's son, who is also a minor, called the police at around 2.10am.

The boy was treated at Changi General Hospital.

At the hearing last month, the man's lawyer Chow Weng Weng urged the court not to be bound by past precedent and argued that the relevant section in the law was meant mainly to prevent police brutality, and the High Court's remarks on sentencing for non-law enforcement officers were made in passing.

He said the accused and his wife had been victims of cyber hacking for some months and were upset.

Deputy Public Prosecutor Joshua Jeyaraj called for an 18-month jail term as a starting point, given the seriousness of the offence - caning had been added as an option in 2007.

Judge Yap, saying he was "mindful of the spontaneous nature of the offence" and the accused's remorse in compensating the victim, among other things, scaled the jail term down to 15 months. "While the accused was motivated by a delusion, his willingness to take the law into his own hands was real and deliberate. This is the nub of the offence."


CRUX OF THE OFFENCE

While the accused was motivated by a delusion, his willingness to take the law into his own hands was real and deliberate. This is the nub of the offence.

DISTRICT JUDGE KENNETH YAP

OPEN VIOLATION OF CRIMINAL PROCESS

He had taken calculated steps to extract a confession in open violation of the criminal process, and should be punished in the same measure as any vigilante or abusive law enforcement officer.

DISTRICT JUDGE KENNETH YAP

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

Endangered Species (Import and Export) Act - Endangered Species (Import and Export) Act (Amendment of Schedule) (No. 2) Notification 2017 (S 563 of 2017)

Unlicensed moneylending agreements: Form vs substance and legal implications of purported compromise

Judgments
12 Sep 2017

Legal curbs imposed on lawyer M. Ravi

Straits Times
13 Oct 2017
Shaffiq Idris Alkhatib

Non-practising lawyer M. Ravi, 48, has been barred from instituting legal proceedings against the government, the Attorney-General or the public prosecutor without the High Court's permission.

The Attorney-General's Chambers (AGC) applied to prevent what it said was abuse of the court process through his past legal actions under Section 74 of the Supreme Court of Judicature Act at the High Court on Wednesday .

In a statement yesterday, the AGC spokesman said: "Mr M. Ravi has, over the course of 11 years - since 2006 - habitually and persistently, and without any reasonable ground, instituted... vexatious legal proceedings against the Government, the Attorney-General and the public prosecutor."

The AGC highlighted six of Ravi's cases which it said were "vexatious legal proceedings".

In 2011, he made an application against the Government and Hindu Endowments Board (HEB) to challenge the constitutionality of HEB's Thaipusam procession guidelines. The High Court dismissed it.

This year, Ravi made an application against the Attorney-General to challenge the constitutionality of the elected presidency. The High Court also dismissed it and, in its written judgment, held that the application was "unmeritorious in almost every conceivable aspect" and an "abuse of process".

Separately, Ravi is facing criminal charges in the State Courts including one count each of assault and causing hurt by committing a rash act. He allegedly pushed lawyer Jeannette Chong-Aruldoss and threw a bag at lawyer Nakoorsha Abdul Kadir at The Adelphi building in Coleman Street on Aug 8.

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

Constitution of the Republic of Singapore - Constitution of the Republic of Singapore (Responsibility for the Portfolio of the Prime Minister) Notification 2017 (S 562 of 2017)

FinTech FAQs

Business
12 Sep 2017

High Court panel's decision final: Judge

Straits Times
13 Oct 2017
K.C. Vijayan

He explains why ex-fund manager's bid to refer legal issues to apex court was dismissed

The top court has made clear that when a three-judge panel is specially convened to hear a Magistrate's Appeal in the High Court, such as in the City Harvest Church (CHC) case, its decision is to be taken as "final and authoritative".

No permission will therefore be given to pursue a further criminal reference to the Court of Appeal unless there are exceptional circumstances, it ruled.

"This approach is justified because a three-judge Coram is a de facto Court of Appeal and is convened precisely to deal with important questions affecting the public interest which require detailed examination," said Judge of Appeal Andrew Phang in decision grounds on behalf of the Court of Appeal on Wednesday.

He was explaining why the Court of Appeal, which included Judge of Appeal Judith Prakash and Justice Quentin Loh, dismissed in July the bid by former CHC fund manager Chew Eng Han for permission to refer legal questions to it.

Chew, 56, was one of six found guilty of misusing millions of dollars in church money. In April, the jail terms of all six individuals were cut after the High Court reduced their criminal breach of trust charge to a less serious one on appeal. As a result, their initial jail terms of between 21 months and eight years were reduced to between seven months and 3½ years.

But Chew, arguing his own case, applied for permission to refer questions of law of public interest to the apex court. He raised 10 broad issues, including the question of whether there can then be misappropriation and dishonesty under circumstances in which money is not taken for personal use, but handled for the owner's use.

Deputy Attorney-General Hri Kumar Nair, who opposed his application, argued he had not raised novel points of law, among other things.

The court found the questions which Chew sought to refer to the Court of Appeal had already been scrutinised by the district court and the High Court, whose judgments spanned some 570 pages.

Even a "cursory reading of the questions raised by Chew showed the questions he sought to refer were either (impermissible) attempts to reopen and/or change established principles of law in order to escape personal liability for his actions, or were simply questions of fact which could not, by any stretch of the imagination, be characterised as questions of law", said the court.

Justice Phang found the application was a bid to "dress up" such challenges to established principles and findings as novel questions of public interest arising from the High Court's decision: "in substance and effect, a further (and backdoor) appeal on the substantive merits".

The court stressed only in exceptional situations would a party to a criminal matter be allowed to bring a criminal reference to the Court of Appeal to reconsider a question decided by a three-judge panel of the High Court. Otherwise, duplication of efforts would result, undermining the very reason that the three-judge panel was convened in the first place, wrote Justice Phang.

The court noted that the three-judge panel of the High Court does not have the same powers of the Court of Appeal and if, therefore, there is a question of law of public interest posed in the case which only the Court of Appeal can deal with, then leave for the criminal reference should be granted, provided the other conditions are met.

Rejecting Chew's application as "ill-considered and wholly unmeritorious", the court said: "This was a case where the accused persons clandestinely applied church donations collected from CHC's members to advance an aim that was entirely outside the scope of the authorised uses of the donations.

"Both the judge and the High Court had no doubt that (Chew), as the primary financial architect of these transactions, was heavily involved and indeed instrumental in this illegal enterprise."

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

Chew Eng Han v Public Prosecutor [2017] SGCA 60

Constitution of the Republic of Singapore - Constitution of the Republic of Singapore (Responsibility of the Minister for Finance) (Amendment) Notification 2017 (S 561 of 2017)

CAB upholds financial penalty imposed by CCS and dismisses appeal by financial adviser for pressurising competitor to withdraw offer from life insurance market

Judgments
12 Sep 2017

Aviva fined $6,000 for data breach

Straits Times
13 Oct 2017
Irene Tham

Insurer Aviva has been fined $6,000 for lapses that resulted in the inadvertent disclosure of a policyholder's insurance documents to the wrong person.

This is the second fine the insurance industry has attracted from the Personal Data Protection Commission (PDPC) in two months.

The commission was alerted to the breach in November last year, after the complainant received another policyholder's letters in his mail.

The letters contained confidential information including the policyholder's name, address, policy type, Central Provident Fund account number, contact number, date of birth and employer. The name and date of birth, among other details, of the person's dependant were also disclosed.

After an investigation, PDPC found a "systemic problem" with the way Aviva sent follow-up letters to its policyholders.

The staff member assigned to process these letters was the only one checking the letters before mailing them out.

There were no additional checks following the processing, printing and sorting of documents to ensure that the right documents were sent to the intended recipients.

The absence of a second layer of basic checks "amounted to extremely weak internal work process controls (that) fell far short of the standard of protection required for such sensitive personal data", said PDPC deputy commissioner Yeong Zee Kin in a decision paper issued on Wednesday.

As such, Aviva was found to have breached the Personal Data Protection Act, which requires organisations to put in place adequate security measures to protect consumers' personal data.

Organisations flouting the Act, in force since July 2014, can be fined up to $1 million.

When contacted, an Aviva spokesman said: "We view customer data protection seriously. This was an isolated incident. We have since taken steps to ensure the process is more robust."

In August, a former financial consultant with Prudential Assurance was fined $1,000 for improperly disposing 12 policyholders' documents containing personal data such as names, NRIC numbers and insurance coverage details.

The former financial consultant had put the files in a plastic bag and simply dumped it at the second level of a multistorey carpark in Jurong West in October last year, thus subjecting the policyholders to data leaks.

In its advisory guidelines, PDPC had recommended that paper containing personal information be shredded into small pieces and not dumped in unsecured bins.

Similarly, personal data stored on electronic media such as computer hard disks, USB drives or DVDs must be erased using specialised software to avoid accidental data leaks.


The absence of a second layer of basic checks "amounted to extremely weak internal work process controls (that) fell far short of the standard of protection required for such sensitive personal data", said PDPC deputy commissioner Yeong Zee Kin in a decision paper issued on Wednesday.

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

Aviva Ltd [2017] SGPDPC 14

Editor's Note: The PDPC decision [2017] SGPDPC 14 is by Tan Kiat How and not Yeong Zee Kin.

Constitution of the Republic of Singapore - Constitution of the Republic of Singapore (Responsibility of the Minister for Communications and Information) (Amendment) Notification 2017 (S 560 of 2017)

MOM, NTUC and SNEF launch Tripartite Standard on employment conditions for term contract employees

Business
11 Sep 2017

Uber used legally questionable software to monitor Grab and other rivals: Report

TODAY
13 Oct 2017
Kenneth Cheng

SINGAPORE — United States ride-sharing giant Uber has been accused of developing and using a legally questionable software to spy on Grab and other rivals in key regional markets, including the Republic.

The programme, called Surfcam, had prompted at least one member of Uber’s legal team to ask whether it could be legally operated in Singapore as “(the software) may run afoul of Grab’s terms of service or the country’s strict computer-crime laws”, the Bloomberg news agency reported on Wednesday (Oct 11).

Uber’s Singapore office declined to comment when approached. TODAY has sent queries to the Singapore authorities on the matter.

Grab said in response to queries from TODAY that it was aware of the matter, and that Uber’s alleged practices had not “impacted Grab’s dominance in ride-hailing”.

 “We have full confidence in the capabilities of law-enforcement agencies to investigate these allegations,” Grab’s spokesperson said. “We believe in being responsible corporate citizens and believe companies should be held accountable by the Government and public for their corporate behaviour.”

According to Bloomberg, Uber’s staff in Sydney created the Surfcam software in 2015. The programme worked by obtaining data from competitors — chiefly Grab — to find out the number of drivers on their networks, in real time, as well as their locations.

Surfcam’s creator was based in Singapore at one point, and later moved to Amsterdam, where Uber’s Europe headquarters are located, the report said.

A tool similar to Surfcam, codenamed Hell, had been deployed in the US to give Uber insights into the locations of the drivers for Lyft, another rival. The authorities in the US are reportedly investigating the programme.

News about Surfcam is the latest in a string of critical reports on Uber’s business practices, and comes amid a US federal investigation into whether the company had contravened laws against overseas bribery.

Last month, Bloomberg reported that Uber had launched a review of its operations in Asia and had informed US officials of payments made by its employees in Indonesia.

Uber is reportedly working with a law firm to pore over records of foreign payments and interview employees.

The focus is on suspicious activity in at least five countries in the region — China, India, Indonesia, Malaysia and South Korea.

Uber’s Singapore operations are not believed to be under scrutiny, with experts interviewed by TODAY earlier pointing to Singapore’s low tolerance for corruption and the absence of indications of unlawful transactions here.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Constitution of the Republic of Singapore - Constitution of the Republic of Singapore (Responsibility of the Deputy Prime Minister and Coordinating Minister for National Security) (Amendment) Notification 2017 (S 559 of 2017)

SHC: Claims for ship damage – Proof of cause

Judgments
11 Sep 2017

Consumers protected when financial advisers switch firms: Forum

Straits Times
13 Oct 2017

The recent news about the movement of financial advisers within the life insurance industry has been of interest to many.

The Life Insurance Association, Singapore (LIA Singapore) would like to assure policyholders and consumers that their interests are well protected.

There are guidelines in place to safeguard their interests should financial advisers choose to move to another firm.

If an adviser leaves, the insurer assigns another adviser to look after the policyholder, who is notified of the change.

Activities of the migrated adviser are closely monitored by the former firm and new firm, to detect and manage any replacements of policies without a proper basis.

Further, all financial advisers are subject to the Balanced Scorecard regulatory framework.

Improper advisories carried out can be picked up during such quarterly audits. A financial penalty will apply to advisers with poor grades.

The LIA, in consultation with the Monetary Authority of Singapore, is working to strengthen the guidelines on recruitment practices.

Pauline Lim (Ms)

Executive Director

Life Insurance Association Singapore (LIA Singapore)

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

Constitution of the Republic of Singapore - Constitution of the Republic of Singapore (Responsibility of the Prime Minister) (Amendment) Notification 2017 (S 558 of 2017)

SGX secondary listing framework allows dual class share companies

Business
08 Sep 2017

ADV: Handling matters across multiple jurisdictions?

Singapore Law Watch
13 Oct 2017
Thomson Reuters

Cross-Border Railways Bill (Bill 43 of 2017)

Diamond in the Rough: Singapore High Court sets aside Lesotho investor-State Award

Judgments
08 Sep 2017

Foreign firms allowed to re-domicile to Singapore from Oct 11

Business Times
12 Oct 2017
Michelle Quah

FOREIGN companies can now transfer their registration from their original jurisdiction to Singapore.

This will allow foreign companies to re-domicile to Singapore, instead of having to set up a subsidiary here, reducing operational disruption to the company.

Such transfers are possible under the new inward re-domiciliation regime that took effect on Oct 11 - one of the key changes made to the Companies Act in March.

The move is expected to boost Singapore's competitiveness as a business hub, by facilitating the transfer or the setting-up of business in the city-state for foreigners.

A foreign corporate entity that re-domiciles to Singapore will become a Singapore company and will be required to comply with the Companies Act like any other Singapore-incorporated company.

But re-domiciliation allows a company to preserve its corporate history and branding, while taking advantage of Singapore's political stability, stable legal structure and highly skilled workforce, for example.

"This change is very welcomed as it provides greater flexibility to the reorganisation of corporate groups. This is especially important at a time when some traditional group structures are being re-thought in the light of greater tax transparency and Base Erosion and Profit Shifting (BEPS) developments," global professional services firm EY said in a recent publication.

BEPS refers to the tax avoidance strategies used by multinational companies to exploit gaps and mismatches in tax rules to artificially shift profits to low or no-tax locations. Under the auspices of the Organisation for Economic Co-operation and Development (OECD), over 100 countries and jurisdictions are collaborating to implement measures to tackle BEPS.

EY also pointed out that there were a number of factors that foreign companies would need to consider before re-domiciling.

"The company may not be able to be re-domiciled if the country where it wishes to transfer its registration from does not have a re-domiciliation regime, or does not allow for outward re-domiciliation to another jurisdiction."

Countries such as Canada, Australia and New Zealand permit re-domiciliation.

EY added: "When re-domiciling, there may also be tax and stamp duty implications. The company needs to know how the transfer will be treated for tax and stamp duty purposes in the home country and assess whether they are prepared for the consequences, in addition to the tax implications in Singapore."

And, in order to qualify for the new regime, a foreign company must either have a revenue of more than S$10 million annually or total assets greater than S$10 million at the end of each financial year. It must also have more than 50 employees at the end of each financial year.

This criteria must be met in the two financial years immediately preceding its re-domiciliation application.

Corporate secretarial firm AM Corporate Services also pointed out that Singapore does not allow outward re-domiciliation - that is, there is no option to reverse the decision, should the regime no longer suit the company.

"This means that before taking the decision to re-domicile to Singapore, the foreign company should clearly determine its goals as well as evaluate the legal consequences of re-domiciliation," it said on its website.

Information pertaining to the commencement notification and the relevant subsidiary legislation can be found at the Accounting and Corporate Regulatory Authority (ACRA) website at www.acra.gov.sg.

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

Town Councils Act - Town Councils (Exclusion of Property from Definition of Common Property) Rules 2017 (S 557 of 2017)

Healthcare Singapore August 2017

Business
07 Sep 2017

NTUC Foodfare loses suit against SIA Engineering

Straits Times
12 Oct 2017
K.C. Vijayan

A tenant operating a food kiosk at Changi Airport's Terminal 2 Building, whose business was affected by a shutdown in the area following an accident, failed in its court claim for losses suffered.

NTUC Foodfare Cooperative, which operated Wang Cafe, had sued SIA Engineering and its employee whose air-tug vehicle had collided into a pillar in the underpass baggage handling area on Feb 13, 2014.

The collision damaged the cantilevered portion of the floor of the Transit Lounge above. The Building and Construction Authority ordered a closure of the affected area from Feb 14 to July 30, during which rectification works were done. Part of the floor near the kiosk had caved in.

Foodfare sued for negligence and claimed losses of $442,445.07, which included $171,017 lost in gross profit, as well as $5,909 for repair and replacement of damaged equipment.

It had already received a $176,176 insurance payout for the latter two items, which would be returned to the insurers in the event it succeeded in its claim.

SIA Engineering and the driver of its vehicle, defended by lawyers Kevin Kwek and Gina Tan, argued that Foodfare's losses were "pure economic loss" and did not meet the accepted legal criteria for a negligence claim. They added that the damage suffered by Foodfare was not directly caused by the accident.

Foodfare's lawyers, Mr N. K. Rajarh and Mr Daryl Cheong, disagreed, contending that the economic losses by Wang Cafe were consequent to the physical damage to the T2 building and that there was "sufficient physical, circumstantial and causal proximity to give rise to a duty of care".

But Justice Debbie Ong, in judgment grounds on Monday, found NTUC did not suffer any property damage and its losses were "pure economic loss", caused by the closure of the Transit Lounge.

The judge said there was no "clear causal link" between the damage suffered by the kiosk and the driver's negligent act.

"What (Foodfare) suffered were the ripple effects of the damage to the pillar of the T2 building, which were common to all building operators in the affected area who likewise depended on everyone not to cause damage and closure to the T2 building."

The judge found it was inappropriate to expand liability and allow recovery in this case.

Justice Ong said bearing in mind policy considerations and the absence of a close link between the vehicle driver and Foodfare, the risk of the losses suffered by Foodfare is better addressed through insurance as was the case here.

The court dismissed the claims.


RIPPLE EFFECTS

What (Foodfare) suffered were the ripple effects of the damage to the pillar of the T2 building, which were common to all building operators in the affected area who likewise depended on everyone not to cause damage and closure to the T2 building.

JUSTICE DEBBIE ONG, on the reason for dismissing NTUC Foodfare's claims.

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

NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd and another [2017] SGHC 250

Sale of Food (Amendment) Bill (Bill 42 of 2017)

[IDN] Indonesia E-Commerce Road Map

Business
07 Sep 2017

Members of chess body lose appeal to strike out suit

Straits Times
12 Oct 2017
K.C. Vijayan

Judge says defamation suit was no abuse of process and is a matter for a trial to settle

A judge has thrown out an appeal by 24 members of the Singapore Chess Federation (SCF) which argued that a suit filed by its treasurer Jasmin Nisban over a letter he claimed had defamed him should be struck out as an abuse of the court process.

Justice Choo Han Teck said such claims are matters for a trial to settle. In judgment grounds on Monday, he said: "Where else can the plaintiff seek redress and justice if his claim is struck out?"

Mr Nisban had claimed that 39 members of the federation had libelled him in January last year, and sued them. The alleged offending remarks were found in a letter attached to a requisition which 51 members signed. The letter was sent to the SCF executive committee calling for an extraordinary general meeting (EOGM).

After Mr Nisban filed a suit against the 39 members, 24 of them successfully applied to strike out the suit before a deputy registrar in the State Courts in February.

The courts agreed to strike out then, ruling that there was no "substantial tort" against Mr Nisban, the benefit was minimal to him and his suit was an abuse of process.

Mr Nisban then appealed and a district judge in June restored the suit.

At the High Court appeal hearing in September, their lawyer Wong Tjen Wee had argued that the trivial nature of the claim was disproportionate to the action, citing an English precedent. He added that the only recipients of the defamatory letter were the executive committee members and administrative staff, and they would have disbelieved the libel against Mr Nisban.

Rajah & Tann lawyers led by Mr Lau Kok Keng, who represented Mr Nisban at the appeal, argued that the letter had reached 51 recipients but the issue was not in the numbers.

Justice Choo ruled that each case "must turn on its own facts", noting that the defamatory words were found in a letter circulated among SCF members seeking signatures to expel the incumbent executive committee through an EOGM.

"This letter was signed by 51 members. We do not know how many others read it but did not sign.

"The crux of the matter is that although the court's resources ought not to be used for the pursuit of trivial or pointless claims, each case must be determined on its own facts," said Justice Choo.

It was "speculative" to argue that the recipients referred to would not have believed the libel against Mr Nisban, pointing out it was more relevant to damages payable when liability is settled.

The judge dismissed the appeal with costs.

Mr Nisban had claimed that 39 members of the federation had libelled him in January last year, and sued them. The alleged offending remarks were found in a letter attached to a requisition which 51 members signed.

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

Chan Boon Siang and others v Jasmin Nisban [2017] SGHC 249 

Travel Agents (Amendment) Bill (Bill 41 of 2017)

Singapore International Commercial Court Suit No 1 of 2016 Teras Offshore Pte Ltd v Teras Cargo Transport (America) LLC [2017] SGHC(I) 04

Judgments
06 Sep 2017

Family of motorcyclist in coma sues NParks

Straits Times
11 Oct 2017
K.C. Vijayan

Wife, sister allege negligence behind fallen tree branch; defence says weather was likely cause

The family of a motorcyclist who fell into a coma after being hit by a falling tree branch is suing the National Parks Board (NParks) in the High Court, seeking damages for alleged negligence.

The case is being closely watched as it may clarify the extent of the NParks' liability, if any.

The wife and sister of Mr Lee Kar Choon allege the accident on July 20 last year showed NParks' negligence. The pair were appointed by the court in June as his deputies under the Mental Capacity Act, given his extensive disabilities.

The NParks is denying the claims in defence papers filed in a first reported suit against the board in such circumstances.

A 2009 court case involved a privately held compound where insurers for St Andrew's Cathedral agreed to pay a woman $500,000 in settlement of her High Court suit which was discontinued.

The woman was left paralysed from the chest down after being hit by branches from a tree in the church's compound while walking along a pavement in North Bridge Road.

In the present case, Mr Lee, then 23, was riding his motorcycle at 6.30am along Admiralty Road West towards his workplace in Woodlands Loop when the tree branch fell. It caused him to be flung off the motorcycle and he suffered head injuries. He lapsed into a coma and was admitted to Khoo Teck Puat Hospital before being transferred to KPJ Ipoh Specialist Hospital in November last year.

Mr Lee, a Malaysian, lived with his wife, Madam Chai You Yuet, 23, and their two-year-old daughter in Johor Baru. He continues to receive treatment in Ipoh where he remains in a vegetative state because of the severe traumatic brain injury.

In court papers, his lawyer N. Srinivasan alleged the accident was caused by NParks' negligence in failing to reasonably maintain the trees in a healthy and stable condition so as not to pose a danger to road users.

Among other things, Mr Srinivasan claimed NParks failed to correct or warn of the dangerous condition that it should have known existed at the location.

He further alleged NParks failed to conduct proper or adequate crown reduction pruning exercises to limit tree exposure and damage from adverse weather conditions.

NParks, defended by Senior Counsel Lok Vi Ming, said there was a system in place to assess the condition of the trees in Admiralty Road West, including regular inspections, and maintenance works were carried out on trees along the road.

Tree inspection was conducted by an arborist on March 10, 2015, followed by tree removal and pruning some three months later, and pruning was also conducted in January last year.

He added that the tree was healthy and the cause of the branch breaking was likely to be exposure to unusually stormy weather for three days up till the day of the incident, accompanied by wind speeds of up to 50km per hour.

Mr Lee's family is seeking damages for pain, suffering and loss of amenities, medical costs and treatment as well as loss of earnings.

A High Court pre-trial conference is due later this week.

An NParks spokesman yesterday declined comment when contacted, deeming it inappropriate "as this matter is before the courts".


PLAINTIFF'S ALLEGATIONS

The accident was caused by NParks' negligence in failing to reasonably maintain the trees in a healthy and stable condition so as not to pose a danger to road users.

NPARKS' DEFENCE

Maintenance works were carried out on trees in Admiralty Road West in 2015-2016. A tree inspection was conducted by an arborist on March 10, 2015, followed by tree removal and pruning some three months later, and pruning was also conducted in January last year. The tree was healthy and the cause of the branch breaking was likely to be exposure to unusually stormy weather for three days up till the day of the incident, accompanied by wind speeds of up to 50km per hour.

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

Tobacco (Control of Advertisements and Sale) (Amendment) Bill (Bill 40 of 2017)

Protecting high value Intellectual Property in the competitive “Innovation” world

Business
06 Sep 2017

China Environment unit loses civil suit, ordered to pay loan plus interest

Business Times
11 Oct 2017
Nisha Ramchandani

CHINA Environment's wholly owned subsidiary Fujian Dongyuan Environmental Protection Co (FJDY), has lost a civil suit brought by Zhongxin Bank in China.

On Nov 2 last year, FJDY had received a letter from the bank, claiming repayment of overdue interest for a loan.

In the latest announcement released to the Singapore Exchange on Tuesday, China Environment said that judgment was awarded to the plaintiff. As a result, FJDY is liable for a loan of 36.67 million yuan (S$7.6 million) and loan interest of 563,870 yuan; this is due within 10 days of the effective date of judgment, together with punitive interest of 9.46125 per cent annually from Dec 19, 2016 up to the full settlement date.

If FJDY does not make payment, Zhongxin Bank has the right to sell off FJDY's land use rights and property assets that were pledged as security for this loan. In such an instance, Zhongxin Bank will be entitled to claim the first 21.4 million yuan in sales proceeds received, as well as the 19.65 million yuan of trade receivables FJDY has pledged to Zhongxin Bank for this loan.

The guarantors, former China Environment chairman Huang Min and his wife Chen Fen Hua, are liable for the remaining sum in the event that the value of the pledged assets cannot fully satisfy the amount due to Zhongxin Bank. "The guarantors have right to claim compensation against FJDY," China Environment said.

FJDY is to pay Zhongxin Bank 99,500 yuan in legal fees and a property preservation fee of 5,000 yuan within 10 days from the judgment date. The court costs of 229,234 yuan are to be borne by FJDY, Huang Min and his wife.

Shares of China Environment are currently suspended.

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

Massage Establishments Bill (Bill 39 of 2017)

Navigating to the Cloud: A framework for trust

Business
05 Sep 2017

StanChart says it reviewed transfer of US$1.4b funds, 'proactively' notified authorities

Business Times
11 Oct 2017
Judith Tan

Bank working closely with regulators; Indonesia says no public officials were involved in the matter

STANDARD Chartered Bank (StanChart) conducted a full account review of trust structures at the centre of a transfer of US$1.4 billion of funds and had proactively made a report to the relevant authorities, the lender said on Tuesday.

The bank was responding to news reports that Indonesia is probing allegations about the bank moving assets, allegedly held on behalf of Indonesian clients, to Singapore in 2015 from Guernsey, just before the Channel Island implemented tax transparency rules last year.

Under these rules, countries automatically share annual reports on accounts belonging to people subject to taxes in each nation. Britain, Guernsey and Singapore are signatories, but Guernsey, a known tax haven, implemented the rules ahead of Singapore.

A StanChart spokesman said that the bank is working closely with regulators, and therefore is unable to provide any more information.

Indonesia's Finance Ministry said late on Monday night that there were no Indonesian public officials, either from the Indonesian military (TNI) or within the government, among the 81 individuals with links to the illicit fund transfer from Guernsey to Singapore.

Its director-general of tax Ken Dwijugiasteadi said the assets in question were owned by "business people" and that preliminary findings showed that the transfers were "business transactions" and had no connections to the military.

He added that 62 of the 81 had taken part in Indonesia's recently completed tax amnesty programme, which ran from July 2016 to March this year and some of the funds were transferred "to participate in the tax amnesty, while others were transferred because they wanted to avoid the new information disclosure measures (in Guernsey)".

The tax amnesty was a part of President Joko Widodo's tax reforms, aimed at recovering billions of dollars in revenue lost to widespread tax evasion and in assets hidden overseas by wealthy citizens and businesses.

An earlier report by Bloomberg said that regulators in Europe and Asia are looking into the matter. The bank's processes and the way the transfers were handled are being examined, but regulators have not suggested that bank employees colluded with clients to evade tax,it said.

Citing anonymous sources, Bloomberg reported that both Monetary Authority of Singapore (MAS) and Guernsey's Financial Services Commission are investigating the chain of events.

MAS, Singapore's central bank and financial regulatory authority, on Monday said that it takes a serious view of and will take firm action against any financial institution or individual found to have breached its requirements relating to anti-money laundering (AML) and countering the financing of terrorism (CFT).

"Where egregious breaches of our laws are detected, MAS has worked with our law enforcement agencies to pursue criminal prosecutions."

Singapore will not tolerate the abuse of its financial system as a refuge or conduit for tax-illicit funds, it added.

On the StanChart issue, MAS said: "As our supervisory probe is still ongoing, we are unable to provide more information at this juncture."

Mohammed Reza, partner at law firm Simmons & Simmons JWS, said MAS is looking into the fund transfers between Guernsey and Singapore in its capacity as supervisor of Singapore's financial sector.

"As supervisor, MAS is concerned with the effective monitoring and mitigation of risks in the financial system as a whole as well as individual institutions, in this instance StanChart. The supervisory probe is focused on whether a breach of applicable anti-money laundering and countering the financing of terrorism requirements has taken place," he said.

On StanChart's proactive move to work with the authorities, Mr Reza said the senior management of any financial institution needs to be aware of what the institution is doing.

"Where non-compliance has been identified, there needs to be a serious effort to address that issue. This may include making timely reports to the relevant authorities, whether as a matter of law or as a matter of prudent accountable behaviour to the regulators.

"This is increasingly pertinent given the rise of international cooperation between financial regulatory authorities and the internationalisation of financial standards across jurisdictions."

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

Workplace Safety and Health (Amendment) Bill (Bill 38 of 2017)

The Court’s power to restore a company that has been struck off

Judgments
05 Sep 2017

[JPN] Govt and Tepco liable for Fukushima damages: Court

Straits Times
11 Oct 2017
Walter Sim

[Tokyo] A Fukushima court yesterday ordered both the national government and operator of a crippled nuclear power plant to pay out nearly 500 million yen (S$6.04 million) in damages for the fallout of the 2011 earthquake and tsunami.

The decision is the third in a series of at least 30 similar class action lawsuits filed by more than 12,000 people across 18 prefectures, many of whom were displaced by the tragedy.

The courts have so far been split over the role of the government in preventing the nuclear fallout. What is in question is whether the government could not only have foreseen but also acted to avert the meltdowns in three reactors, after a 9.0-magnitude earthquake triggered a tsunami on March 11, 2011.

The Fukushima court ruled that it could have, in line with a judgment by a Gunma court in March, but both went against a ruling by a Chiba court last month.

Presiding judge Hideki Kanazawa said yesterday: "In 2002, the government's earthquake research institute simulated a tsunami that was generated by a major tremor, and found that it was possible for tidal waves to breach the nuclear site. This entire disaster could have been avoided had the government ordered Tepco to take more stringent measures to boost safety."

That assessment predicted a 20 per cent chance of a magnitude 8.0 earthquake striking off the coast of Fukushima within 30 years, but the government and Tepco said that the scale of the tsunami was unprecedented and so could not be predicted.

The government has also argued that laws had not allowed it to order Tepco to take safety steps until they were changed after the disaster.

Yesterday's ruling went in the favour of some 2,900 of the 3,800 plaintiffs - by far the largest of the class action lawsuits - who said that the disaster caused them mental distress and affected livelihoods. But the judge said those living in areas furthest away from the crippled plant, and were not directly affected, should not be given a cut of the compensation.

Japan's nuclear dependence is being debated in the run-up to the Oct 22 national election. The ruling Liberal Democratic Party wants nuclear to be a key part in the energy mix, with safeguards, while rival Kibo no To (Party of Hope) wants to wean off nuclear altogether by 2030.


POSSIBLE TO AVERT MELTDOWN

In 2002, the government's earthquake research institute simulated a tsunami that was generated by a major tremor, and found that it was possible for tidal waves to breach the nuclear site. This entire disaster could have been avoided had the government ordered Tepco to take more stringent measures to boost safety.

PRESIDING JUDGE HIDEKI KANAZAWA, ruling that the government could have foreseen and acted to avert the meltdowns in three reactors.

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

Central Provident Fund (Amendment) Bill (Bill 37 of 2017)

Charities: Increased corporatisation and its impact on the pro bono space

Business
04 Sep 2017

Cryptocurrency fracas spotlights risks in opaque space

Business Times
10 Oct 2017
Jamie Lee

NEWS this month that at least one cryptocurrency firm has had its Singapore banking account closed has led to whispers that Singapore is unilaterally shutting its doors to cryptocurrency companies.

What the discussion fails to acknowledge is the reality that cryptocurrency firms bear an obvious risk in creating illicit channels for money laundering and terrorism funding, and that in the post-crisis period, the burden of reviewing any suspicious channels is carried with extra caution by financial institutions today.

To recap, Bloomberg first reported that CoinHako, a local cryptocurrency-related firm, said its bank accounts had been shut by DBS, with the start-up telling Bloomberg that it suspects the account closure had to do with anti-money laundering rules, and know-your customer (KYC) requirements. It said it has "gone the extra mile" to meet KYC requirements, though no details were reported.

Singapore's Cryptocurrency and Blockchain Industry Association also told Bloomberg that some 10 companies associated with it had encountered problems with their banking relationships in Singapore, though it is not clear if such problems led to account closures as well.

Anonymous nature

The Monetary Authority of Singapore (MAS) has made public statements more than once that virtual currencies can be exploited for money laundering and terrorism financing risks, due to the anonymous nature of the transactions.

It is not clear exactly why CoinHako's account was closed. But an example elsewhere offers some clues on the risks of money laundering and terrorism financing.

Earlier this year, one of the largest banks in Israel, Bank Leumi, ended its banking relationship with a bitcoin exchange, leading to a court battle that the bank eventually won.

Bank Leumi said while the bitcoin exchange, Bits of Gold, did indeed follow KYC processes, the bank could not determine who receives the cryptocurrency, and the origins of the fiat currency in the banking account.

Bank Leumi further said that hackers had been involved in some of the bitcoin trades linked to Bits of Gold's bank account. (Bits of Gold was not involved in the hacking incidents, and had helped the bank with the investigations.) The court ruled the bank is allowed to shut such accounts effectively on the grounds that the bank is not able to meet its obligations under anti-money laundering laws.

Tighter KYC regulations is a reality for all firms. A small business owner told The Business Times in passing that he was recently queried about a S$150 wire transfer to a city in Malaysia for freelance services. The bank wants to be sure that there is an individual and a legitimate business dealing behind that transaction. Surely, it would not be satisfied with an end recipient represented by a bunch of numbers with no trail leading to an identifiable person.

Dark past

It is also difficult - and unwise - to forget that bitcoin was once synonymous with dark web activity. CNBC reported in August as well that criminals are now dropping bitcoin in favour of other digital currencies, such as monero and ethereum.

To be quite clear, it is not BT's argument here that cryptocurrency platforms are therefore engaging in illegal activity. It is also possible cryptocurrency players would try their utmost to identify any illicit flows.

But the very nature of the anonymised flows that they deal with, make such efforts futile, even with the most optimistic reading of intentions. And the reasoning of them just operating a dumb pipe - a channel that only operates as a conduit for any kind of funds - is not kosher in this era of heightened regulations.

Perhaps cryptocurrency platforms are hopeful that the MAS, which is working on a new payment services regulatory framework, may touch on ways to address such platforms' unique risks. But one reckons such hopes should be tempered with a dose of realism. No regulator in the world is going to be partial to fund flows from places that may be operating in the shadows.

Despite the start-up buzz, when it comes to today's regulation over illicit activities, there are no rainbows and unicorns.

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

Parking Places Act - Parking Places (Urban Redevelopment Authority) (Amendment) Order 2017 (S 556 of 2017)

SFO v ENRC: Legal professional privilege in internal investigations

Judgments
04 Sep 2017

MAS issues stern money laundering warning; Jakarta starts StanChart probe

Business Times
10 Oct 2017
Judith Tan

Private-bank assets held by StanChart in Channel island tax haven were moved to S'pore in 2015: report

THE Monetary Authority of Singapore (MAS) on Monday declared its firm commitment to keeping the country's financial centre clean and safeguarded from illicit activities.

Singapore's central bank and financial regulatory authority said in an evening statement to the press that it takes a serious view of and will take firm action against any financial institution or individual found to have breached its requirements relating to anti-money laundering (AML) and countering the financing of terrorism (CFT).

This followed a report by Reuters earlier on Monday that Indonesia is investigating reports that US$1.4 billion (S$1.9 billion) held by Standard Chartered (StanChart) in Guernsey, mainly on behalf of Indonesian clients, was transferred to Singapore in 2015, just before the Channel island implemented tax transparency rules.

Under these rules, countries automatically share annual reports on accounts belonging to people subject to taxes in each nation.

Britain, Guernsey and Singapore are signatories, but Guernsey, a known tax haven, implemented the rules ahead of Singapore.

Reuters said Heru Kristiyana, deputy commissioner for banking at Indonesia's financial regulator (OJK), had disclosed in a text message that a supervisor was investigating the issue, in co-ordination with the director-general of taxation and the anti-money laundering agency, the Financial Transaction Reports and Analysis Centre (PPTAK).

Both agencies did not comment.

Investigations by Indonesia followed a Bloomberg report four days ago that regulators in Europe and Asia are investigating the bank over the role its staff may have played in transferring the money from private-bank client assets from Guernsey to Singapore before the Common Reporting Standard rules kicked in at the start of last year.

Citing anonymous sources, it said that StanChart had reported the matter itself to the regulators.

Bloomberg said that the assets, held in the bank's Guernsey trust unit for mainly Indonesian clients, some of whom had links to the military, were moved in late 2015.

The bank's processes and the way the transfers were handled are being examined, but regulators have not suggested that bank employees colluded with clients to evade tax, the report said.

Events under probe

Bloomberg reported that people familiar with the probes said both MAS and Guernsey's Financial Services Commission are investigating the chain of events.

Standard Chartered had said last year that it was to close its trust operations in Guernsey and centralise that part of its business in Singapore.

The probe would be a potential blow for the bank, which is trying to turn around a reputation bruised by bad loans and regulatory fines, Reuters reported.

MAS said on Monday: "As our supervisory probe is still ongoing, we are unable to provide more information at this juncture."

It said it has put in place "a robust AML/CFT regime to detect and deter illicit activities in our financial sector" and the framework and supervision were deemed by the Financial Action Task Force to be robust in its 2016 assessment.

MAS said it has continued to build on these strengths by "intensifying its supervision of financial institutions that pose higher money laundering and terrorism financing risks.

"We have not hesitated to take firm action against financial institutions with control deficiencies, and have imposed financial penalties and prohibition orders on culpable individuals where there are serious lapses," it said.

"Where egregious breaches of our laws are detected, MAS has worked with our law enforcement agencies to pursue criminal prosecutions."

Singapore will not tolerate the abuse of its financial system as a refuge or conduit for tax-illicit funds.

In 2013, it designated tax crimes as money laundering predicate offences and directed financial institutions to undertake a critical review of their assets to ensure compliance with the revised laws.

A year later, Singapore further committed to implementing the Automatic Exchange of Financial Account Information (AEOI) under the Common Reporting Standard (CRS), an internationally agreed standard aimed at strengthening global tax transparency.

Singapore and Indonesia said in July they were ready to share financial data automatically for tax purposes.

Senior Minister of State for Finance and Law Indranee Rajah told reporters, after attending the International Tax Conference in Jakarta, that Singapore is ready to have an AEOI relationship with Indonesia; Indonesian Finance Minister Sri Mulyani Indrawati added that her ministry will maintain communications with Singapore on the AEOI agreements.

Two agreements

On June 21, Singapore signed two international agreements aimed at making it easier for the country to exchange tax information with other jurisdictions under ongoing global efforts to fight tax evasion and money laundering, as well as to improve tax transparency.

Called multilateral competent authority agreements (MCAAs), they lay out an international framework to facilitate the automatic exchange of tax information, thus obviating the need for countries to conclude multiple bilateral agreements.

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

Parking Places Act - Parking Places (Housing and Development Board) (Amendment No. 2) Order 2017 (S 555 of 2017)

Virtual Currencies: More than just a (digital) token?

Business
30 Aug 2017

Competition watchdog raises concerns over Wilhelmsen-Drew deal

Business Times
10 Oct 2017
Tan Hwee Hwee

Statutory board notes that parties are largest players with extensive networks; it will start Phase 2 review

THE Competition Commission of Singapore (CCS) has raised concerns over the proposed acquisition by Wilhelmsen Maritime Services AS of Drew Marine's technical solutions, fire, safety and rescue businesses.

CCS noted that the two parties involved in the proposed deal are two of the largest players that possess extensive global networks of end-to-end distribution and ancillary services for the provision of chemicals, gases and equipment to the marine sector, and they appear to be each other's closest competitors.

Alternative suppliers may face difficulty achieving sufficient geographic scale to be viable alternative sources of supply and to exert sufficient competitive pressure on the merged entity post-merger, especially for customers that procure on a global basis.

CCS said that the deal may substantially lessen competition in the supply of the products involved to Singapore, resulting in possible price increases, deterioration in quality of products and/or service levels.

CCS said that the concerns were captured from information furnished by Norway-headquartered Wilhelmsen and US-based Drew Marine and third-party feedback from customers and other competing suppliers during a Phase One review of the proposed acquisition.

The statutory board tasked to administer and enforce Singapore's Competition Act will proceed to a Phase Two review of the deal. It expects to take 120 business days to complete this phase.

In August, Wilhelmsen had applied for a decision by CCS on whether the deal, valued at a purchase price of about US$400 million, would infringe the prohibition in Singapore's Competition Act against anti-competitive mergers.

The deal, considered the largest investment in Wilhelmsen's corporate history, is expected to result in a US$150 million increase in annual total income for its ship service unit.

The final closing of the transaction is subject to regulatory approvals. If approval from relevant bodies is not received, the parties have agreed on a termination fee of US$20 million.

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

Parking Places Act - Parking Places (Coupon Parking) (Amendment) Rules 2017 (S 554 of 2017)

Singapore Court of Appeal five-judge panel lays down general rule that punitive damages cannot be awarded for breach of contract: PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd and another appeal [2017] SGCA 26

Judgments
30 Aug 2017

Court lays out guidelines for dangerous driving cases

Straits Times
10 Oct 2017
Ng Huiwen

Extent of harm caused, offender's culpability among factors considered before sentencing

The court has broadly identified the different degrees of harm to be considered when imposing jail terms for motorists found guilty of dangerous driving.

Those who cause serious injury, which usually involves fractures, or permanent injuries may be hit with sentences in the higher range.

Judge of Appeal Steven Chong, in a written judgment issued last Friday, said the sentencing guidelines set out by Chief Justice Sundaresh Menon in July for drink-driving offences are "useful" and "equally relevant" for dangerous driving. Besides the different degrees of harm, the guidelines also look at the offender's culpability, including the manner and circumstances of driving.

Judge of Appeal Chong raised these points in his judgment in the appeal of 56-year-old cabby Aw Tai Hock, who had been sentenced to three months' jail in March.

On Aug 23, the prosecution appealed for his sentence to be upped to five months, calling it "one of the worst cases of dangerous driving ever seen".

On June 8 last year, Aw had started a high-speed car chase, racing across 11 speed bumps, and at one time, he drove against the flow of traffic in pursuit of Mohd Andy Abdullah, who had damaged his taxi with weapons.

Aw nearly collided several times with several pedestrians and other vehicles during the chase, which lasted about five minutes. It came to an end only after Andy's car crashed into a stationary car.

Judge of Appeal Chong granted the prosecution's appeal, after finding Aw's actions to be of moderate harm and high culpability.

A moderate degree of harm involves serious property damage and/or personal injury, but no fractures or permanent injuries.

With the maximum jail term for drink driving at 12 months, Judge of Appeal Chong said that a sentence in the midpoint region would be appropriate for Aw.

Andy was fined $2,000 and disqualified from driving for four months for dangerous driving. He was also convicted of multiple drug offences, resulting in a total sentence of 10 years and six months' jail and 16 strokes of the cane.

Both Andy and the driver in the stationary car that was hit sustained injuries ranging from bruises to sprains. Both cars were also significantly damaged.

"The entire episode placed many road users and pedestrians at great harm and risk," wrote the judge, noting that Aw had used his taxi as a weapon to cause damage.

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

Public Prosecutor v Aw Tai Hock [2017] SGHC 240

Parking Places Act - Parking Places (Digital Payment — Parking Charges) Rules 2017 (S 553 of 2017)

SHC: High Court Sets Aside Arbitral Award

Judgments
29 Aug 2017

Editor's Note: Supreme Court Practice Directions amended to include a section on medical negligence claims

Singapore Law Watch
11 Oct 2017

The Supreme Court Practice Directions have been amended (Supreme Court Practice Directions Amendment No. 3 of 2017) to include a section on medical negligence claims (Part XXIII of the Practice Directions). With effect from 1 July 2017, parties in medical negligence claims are to comply with the protocol set out at Appendix J of the Practice Directions. The protocol comprises three sections on pre-action specific discovery of documents, commencement of suit and pre-trial proceedings, and medical assessors. The Court will consider compliance with the protocol when exercising its discretion as to costs and when deciding on the interest payable. Practitioners handling medical negligence claims who do not comply with the protocol risk jeopardising clients’ interests. 

 

 

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 45) Notification 2017 (S 552 of 2017)

MCI and CSA consult on proposed Cybersecurity Bill

Legislation
29 Aug 2017

Drink maker loses bid to stop game's 'monster' trademark

Straits Times
09 Oct 2017
K.C. Vijayan

United States energy drink manufacturer Monster Energy failed to block Japanese mobile-game producer Mixi Inc's move to register its trademark Monster Strike in Singapore for its popular mobile game.

A trademark registrar held that Energy's bid to ring-fence the word "monster" for its own use was unjustified as both products operate in different business fields and the marks were more dissimilar than similar.

"Stripped of its legalese, this dispute is, at heart, about one trader's battle to fence off an ordinary English word - monster - for itself, and to exclude others," said assistant registrar of trade marks Gabriel Ong from the Intellectual Property Office of Singapore in decision grounds last month.

Mixi Inc had applied in June 2014 to register the trademark for Monster Strike under two categories.

One broadly involves computer and mobile game software, related accessories and hardware. The other category was for a variety of services, including providing video games through various media.

Both fall under Singapore's Trade Marks Act and apply in Singapore.

Energy's lawyer, Mr Just Wang, in opposing the move, argued that the word "monster" formed a distinctive and dominant portion of its marks. The drink manufacturer had earlier registered trademarks in Singapore such as Monster Detox, Monster Rehab and Java Monster, as well as Monster Energy, as part of its Monster family of trademarks.

It chose to oppose the registration of Monster Strike in particular because it was most similar overall to Monster Energy.

Mixi Inc lawyers William Ong and Dhiviya Mohan contested the claims, underlining conceptual, aural and visual differences.

Mr Gabriel Ong found both marks to be more dissimilar than similar, noting that the second word in each differentiated the marks. He added that the marks were registered for types of goods that are unlikely to cause confusion among consumers.

There is also no risk of misperception of co-branding nor any likelihood of confusion as the public at large recognise Monster Energy drinks not by reference to the words but the accompanying trademarks above the words, including the "claw" graphics. "It is one thing to describe the goods as Monster Energy, but how they are marketed and sold is another matter," added Mr Gabriel Ong, noting that each can of the Monster Energy drink "invariably bears the claw device", although there were minor variations to each product range.

In a 48-page judgment, he found that the opposition by Monster Energy to Mixi Inc's application failed on all grounds and ordered costs for the game producer.

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

Monster Energy Company v Mixi, Inc [2017] SGIPOS 12

Customs Act - Customs (Duties) (Amendment No. 2) Order 2017 (S 551 of 2017)

Comments on the Building Maintenance and Strata Management (Amendment) Bill (Bill no. 29/2017)

Legislation
28 Aug 2017

Trusts are not just for the well-heeled

Straits Times
08 Oct 2017
Lorna Tan

They can be useful legacy-planning tools especially if one has vulnerable beneficiaries

Trusts have long been seen as an investment instrument for the well-heeled, but many people now realise that they can be useful and relevant legacy-planning tools.

While wills are essential, trusts are also important because of our growing wealth - based on the potential value of our estate upon death - and the vulnerable beneficiaries we may have.

Estate planning specialist and director of Legasy Planners, Mr Keon Chee, says his clients are individuals with $1 million or more in wealth at their deaths.

"This would probably include 90 per cent of working Singaporean adults when you count their cash, homes and insurance proceeds," he notes. "I ask such people if they have vulnerable beneficiaries which would include minors, adults who cannot handle money (such as offspring who are young adults), senior citizens (like parents) and persons with special needs."

He adds that if he asked these people if they would give $1 million to such vulnerable beneficiaries in a lump sum, all of them would say no.

"Yet they all do so in the end because most don't even write a will, let alone (set up) a trust," he says.

There are also people who use trusts to ensure that their wealth is kept within direct family members such as spouses, children and grandchildren but leaving out children's spouses and their in-laws.

Ms Lie Chin Chin, managing director of law firm Characterist, adds that people in high-risk business with exposure to potential creditors can also set up a trust to shield part of their assets.

Mr Lee Chiwi, chief executive of Rockwills International Group, noted that in the past, trusts were generally pitched at rich clients and offered by private banks, but now independent trust firms are offering such services on the back of the population's growing wealth.

The Sunday Times highlights five scenarios where trusts can be relevant to the man in the street.

Standby Trust

In a nutshell, a trust is a legal arrangement that allows an individual to place his assets such as shares, money and property such that an appointed person or trustee can manage and administer them for the benefit of others (beneficiaries).

Legacy-planning specialists recommend the standby trust as an affordable and flexible tool.

"This is a distinctive trust that caters to the client who may decide to transfer some of his significant assets into trust only at a future date," says Mr Lee.

"It is an alternative proposition as the client may have no need to transfer his assets while he is mentally lucid."

A standby trust offers more confidentiality than a trust set up from within a will (known as a testamentary trust) and amendments to the so-called "Letter of wishes" can be made at little cost, adds Legasy Planners' Mr Chee.

When the trust is on standby mode, the annual costs are typically nominal, starting from $250, and include reviews of your "wishes".

Depending on the complexity, the one-time set-up fee of a standby trust can range from $4,000 to more than $10,000. Once it is activated - upon mental incapacity or death - the annual fees kick in. They could be a fixed annual fee reviewable every year or a percentage of the movable assets held in the trust (0.1 per cent to 0.5 per cent).

For immovable assets, the average annual administration fee rate may be based on, say, 5 per cent of the annual gross income of the property, subject to a minimum of $3,000.

Characterist's annual fees for a standby trust start from $8,000 per year and are capped at $15,000 for assets up to $5 million. Fees are separately negotiated for assets above $5 million.

For some families with special-needs members and who cannot afford private trust firms and banks, they can approach the Special Needs Trust Company (SNTC). SNTC is a non-profit trust firm here offering affordable trust services to such families.

For instance, the one-time set-up fee of $1,500 for a trust works out to just $150, after taking into account the 90 per cent subsidy.

Here are five scenarios on how a trust can be relevant.

Choosing a suitable trust firm

Generally, there are two groups of trust companies - either bank-owned or independent.

There are nearly 60 licensed trust companies listed on the Monetary Authority of Singapore's website.

Mr Henny Liow, chief trust officer at DBS Private Bank, advises that the person setting up a trust should note that the instrument is usually a long-term structure intended to last well beyond his lifetime. In addition, the trustee's duty (called fiduciary duty) is an onerous one. "The trustee is going to hold title to trust assets and in some cases will be called on to take care of vulnerable or young beneficiaries who may not know their legal rights," he notes. So the person must choose a trustee he is confident will fulfil these requirements.

Mr Lee says some clients may want the global reach and access to the bank's products, investment offerings and services coupled with private banking relationships. Others may want the boutique advisory services of the independent trust firm that administers not only financial assets but also non-financial ones such as real estate and private companies: "Where clients require holistic estate planning services such as in will making, estate administration, corporate administration or even services like drawing up the Lasting Power of Attorney or Advance Medical Directive, the offering is more likely available at the independent trust companies."

Before setting up a trust, you should also think hard about what you want to achieve.

Ms Lie says: "They should consider which portion of their assets should be in the trust. They should consider whether to set up one or more trusts for different purposes and different beneficiaries."


1. ENSURING MAINTENANCE OF YOUNG CHILDREN

Ms Karen Low (not her real name), 40, is a divorcee earning $3,500 a month. She has two children aged eight and 10. Mr Chee advised her to make a will that sets up a trust (testamentary trust) upon her death.

He says Ms Low requires a trust to distribute her money over a period of time upon her death because her estate would have over $1 million from her insurance plans and other assets. She has two young beneficiaries.

Ms Low has the option of stating a fixed amount be given to her children every month. However, she preferred for the trustees to decide how much money the children would require depending on their life stage, until they become adults.


2. SHIELDING ASSETS FROM DIVISION UPON YOUR DIVORCE

Ms Anna Ang (not her real name), 43, feels insecure with her husband's frequent business travels. She worries if her marriage ends in divorce she could at most get a portion of the matrimonial assets but their only child, aged 16, would get nothing.

On the advice of Characterist's Ms Lie, Ms Ang arranged for her husband to buy a property on an irrevocable trust set up in the child's name. This means the assets set aside in the trust for the child will never be subject to division in a divorce. This protection cannot be secured by a will, which can be revoked any time.


3. SHIELDING ASSETS SHOULD YOUR CHILDREN DIVORCE

A standby trust can be useful for those who want to give assets to a child with the assurance that the gift will not become a divisible matrimonial asset if the child eventually marries and then divorces.

Mr and Mrs Robert Lim (not their real names) wanted to help their children set up homes in their lifetime but did not want their savings to benefit unintended third parties. They set up a portfolio of assets on trust so the children can benefit from the income. The trust can be set up so that these assets will never be part of the children's matrimonial assets, says Ms Lie. For instance, the trust documents may state the assets are meant only for the parents' children and grandchildren, but not in-laws.


4. AVOIDING POTENTIAL CLAIMS MADE AGAINST BENEFICIARIES

Mrs Agnes Tan (not her real name) and her husband had two children. Mrs Tan worked as a senior manager in the corporate world while her husband was self-employed.

Mrs Tan's investments were worth more than $2 million and she also owned two condominium units in her name. The couple made their wills naming each other as the main beneficiary of their respective estates.

Two years later, she was advised by Rockwills to create a standby trust for her family members. She made a new will that gifted her residuary estate to the standby trust. Her husband and two children were the beneficiaries.

She subsequently died. At the point of her death, Mr Tan was an undischarged bankrupt as his business had failed. Fortunately, her estate "poured over" to the standby trust under the terms of her latest will, which prevailed over the previous one.

If she had not set up the standby trust and not made a new will, it would have meant that under her earlier will, the substantial part of her estate would have been bequeathed to her husband. Under the bankruptcy law, that would have left Mrs Tan's estate exposed to his creditors to satisfy his debts.


5. LENDING MONEY FROM A TRUST TO A BENEFICIARY FOR PURCHASE OF A RESIDENTIAL PROPERTY

Rockwills' Mr Lee notes that when young people start their careers, their incomes may be insufficient to acquire big-ticket items like a property.

Marriages may also be postponed or they delay starting families. At the same time, parents do not simply want to give a free handout to young adult children.

Parents can set up a trust to assist their children to acquire residential properties for themselves but under certain conditions to be observed by the trustees.

A standby trust can be set up with a loan (with interest or interest-free) from the trust funds.

The loan will be required to be secured upon pre-determined terms and conditions such as on the security of the property.

By doing so, the trustees will have a charge over the property, which effectively means that if the beneficiary decides to sell it at some stage, the proceeds will go towards redeeming the trust charge first.

One requirement is that the amount of the loan cannot exceed two-thirds of the value of the property.

The beneficiary either pays the balance or obtains a bank loan. When the beneficiary is at a certain age, say 35, the trustees could have the power to determine if the loan needs to be paid back.

This sort of estate planning means the parents' inheritance to their children gives them a head start in their lives but is controlled until such time when the young beneficiary becomes of age and is financially more mature.


Planning tools

WILL

A will is a declaration about the distribution and management of your estate, which includes your assets. It takes effect after your death.

TRUST

A trust serves to protect family assets that might otherwise go to beneficiaries too young to get substantial inheritances, or who are spendthrifts, financially immature or vulnerable.

The ultimate distributions to them should be delayed for a certain time to ensure they get their inheritance when they reach a certain age or maturity.

LASTING POWER OF ATTORNEY (LPA)

An LPA is drawn up to appoint people entrusted to look after you (the donor) at a time when you lose mental capacity. Caregiving has two aspects - personal welfare and property, and financial affairs.

ADVANCE MEDICAL DIRECTIVE (AMD)

An AMD expresses your intention that no extraordinary life-sustaining treatment should be applied if you suffer from a terminal illness and become unconscious or incapable of exercising rational judgment.

NOMINATION OF CENTRAL PROVIDENT FUND SAVINGSSuch savings cannot be distributed through a will. It is prudent to nominate your beneficiaries as the Public Trustee charges a fee for administering un-nominated CPF money.

Parents can set up a trust to assist their children to acquire residential properties for themselves but under certain conditions to be observed by the trustees.

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Road Traffic Act - Road Traffic (Motor Vehicles, Registration and Licensing) (Amendment No. 5) Rules 2017 (S 550 of 2017)

Changes to employee benefits under Child Development Co-Savings Act and Retirement and Re-employment Act effective 1 July 2017

Legislation
28 Aug 2017

DMX sues Deloitte, alleging professional negligence

Business Times
07 Oct 2017
Angela Tan

At issue is the "clean opinion" stamped by Deloitte over 13 years

DMX Technologies Group is suing Deloitte & Touche LLP for losses and damages suffered as a result of alleged professional negligence by its former auditor.

Based in Hong Kong and listed in Singapore in 2002, DMX is a digital media solutions provider with offices scattered in Asia, including Greater China, Indonesia, South Korea, Malaysia, India and Singapore. Japan's second-largest telecommunications operator KDDI Corporation paid S$188.4 million for a 52 per cent stake in the company in September 2009.

At the heart of the suit is the "clean opinion" stamped by Deloitte over a period of 13 years from 2001 to 2013. A clean opinion is an audit report that is issued when an auditor determines that each of the financial records provided by a company is free of any misrepresentations.

Trouble began after DMX changed its external auditor to PricewaterhouseCoopers LLP (PwC) in 2014 from Deloitte. PwC sought supporting documents for certain transactions executed by the former management. But it was unable to obtain sufficient supporting documents to prove both the delivery and cashflow of equipment related to the transactions in questions.

To make matters worse, further investigations suggested that the transactions in question might be "related party transactions". The legal existence of certain import/export firms and China suppliers could not be verified. Almost all payments from the import/export firms were deposited from a company known as "Mozart", which is suspected to be majority owned by DMX's former management. Another company, Tacoma, the receiving agent of a PRC supplier, was also discovered to be linked to the former management.

The problem is a large portion of DMX's revenue and profit came from these transactions in question. Once these were excluded, DMX was found to be a loss-making company. Cumulative losses of more than US$90 million were incurred and more than US$130 million of cash was drained from the company from fiscal years 2010 to 2015.

On Aug 31, 2017, DMX told shareholders that it was exploring its options regarding its former auditor, saying that Deloitte "issued a clean opinion from 2001 to 2013, where they should have been able to obtain all the requisite confirmation from PRC suppliers, import/export firms, and end users".

Led by current chief executive officer Iwao Oishi, who hailed from KDDI, DMX's current management has been struggling to get rid of unprofitable businesses and raise funds for PwC to complete the extended scope audits to confirm the true financial state of the company.

Trading in its shares has remained suspended since March 20, 2015 "to prevent the erosion of shareholder value" after an investigation by its legal counsel revealed irregular accounting practices at two of the IT solution provider's subsidiaries in 2008 and 2009.

The trading suspension came after former chief executive Jismyl Teo and former chief financial officer Skip Tang were arrested by the Hong Kong police's Commercial Crime Bureau on Feb 3 and released on bail. The two were subsequently fired over allegations of serious misconduct and negligence.

DMX filed a lawsuit against former management for breach of fiduciary duties and duties of care owed to DMX HK in April last year. For debt recovery and transparency, DMX has filed two legal actions against big debtors related to the transactions in question to collect the account receivables as quickly as possible.

At the end of June 2017, DMX has only US$1.6 million in cash and cash equivalents. It has warned that the limited funds was a major obstacle to its expansion plans in emerging markets where capital intensive hardware systems integration is the major market opportunity.

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

Road Traffic Act - Road Traffic (Motor Vehicles, Test) (Amendment No. 2) Rules 2017 (S 549 of 2017)

Public consultation for proposed amendments to the Singapore Personal Data Protection Act

Legislation
25 Aug 2017

Clinic chain's founder wins appeal to block checks on bank account

Straits Times
07 Oct 2017
K.C. Vijayan

Veteran skincare doctor and PPP Laser Clinic founder Goh Seng Heng has succeeded in stopping a company from checking with his bank to see if the $14 million it paid to buy shares was still in his account.

The Court of Appeal, in allowing Dr Goh's appeal, criticised the firm, Liberty Sky Investments (LSI), for not notifying Dr Goh when it applied to the courts last year to compel the bank to disclose the details sought.

"LSI had commenced the (discovery application) in a manner that plainly went against the spirit of the law," said Judge of Appeal Andrew Phang on Thursday. "LSI was, in essence, trying to steal a march on Dr Goh. In view of such conduct, LSI could not be said to have come to the court with clean hands," he added in judgment grounds for the court, which included Judges of Appeal Judith Prakash and Tay Yong Kwang.

LSI, linked to a Shanghai-based couple who are franchisees for the PPP brand in Suzhou, is involved in a pending High Court suit against Dr Goh to rescind the share sale pact and recover the $14 million.

Dr Goh founded Aesthetic Medical Partners (AMP) in 2008. Through its wholly owned subsidiary Aesthetic Medical Holdings, it operates a chain of clinics under the PPP laser brand.

In 2014, LSI inked a deal in which Dr Goh would sell 32,049 shares in AMP to LSI for $14,422,000. The company wants to back out, alleging that the deal was clinched following fraudulent misrepresentations. Dr Goh is denying the claims.

In May last year, LSI applied to court to uncover documents from the bank to check if the sale price monies remained in Dr Goh's account or were shifted elsewhere.

On the same day, LSI applied for a Mareva injunction to freeze Dr Goh's assets. He was given notice of this, but not of its court move to check his bank account.

LSI succeeded in its case in the High Court last November. Dr Goh appealed to the top court in relation to the bank account. He appealed against the Mareva injunction separately, and it was later lifted.

His legal team, led by Mr Adrian Tan, said LSI had to show "compelling evidence" of misrepresentation to justify tracing the monies.

Senior Counsel Harpreet Singh Nehal, acting for LSI, urged the appeal court to uphold the High Court decision, pointing out that the sale proceeds had been used to buy two properties, among other things. He said about $4 million of the purchase price remained unaccounted for.

The appeal court, in examining the issues, was not convinced and found that LSI had failed to show a prima facie case of misrepresentation.

The court allowed Dr Goh's appeal and reminded lawyers that "while advocates within an adversarial system are constrained to engage in legal combat, they are not entitled to pursue victory at all costs, regardless of the means".

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

Goh Seng Heng v Liberty Sky Investments Ltd and another [2017] SGCA 59

Road Traffic Act - Road Traffic (Electronic Service) (Amendment No. 2) Rules 2017 (S 548 of 2017)

Cross Border M&A Index

Business
25 Aug 2017

Bankrupt, 4 others sued for return of $6.5m

Straits Times
07 Oct 2017
K.C. Vijayan

Entrepreneur wants ex-banker and 4 others to return sum meant to be invested in China

A wealthy entrepreneur is suing a bankrupt and four others for the return of $6.5 million meant to have been invested in China but which allegedly went missing instead.

Singaporean Alan Zhou, who set up a profitable ship chartering and brokering business, claims former private banker Karl Liew breached personal guarantees and made misrepresentations that induced him into the $6 million investments.

Mr Liew was made a bankrupt early this year. It precluded him from defending himself or being represented by lawyers in the case.

In September 2015, he was the victim of harassment by debt collectors who visited his Chancery Lane home seeking to recover alleged debts owed to Mr Zhou. The five debt collectors were subsequently dealt with in court for their aggressive behaviour and insulting words.

The other four defendants in the suit include Realm Capital, a British Virgin Islands company Mr Liew set up. A court default judgment has been entered for the $6.5 million sought - the amount of $6 million plus interest - as the company did not enter an appearance.

Mr Zhou is seeking damages of up to $5.3 million against the firm System Impact, Ms Mah Mei Sin and Mr Gobindram Harjani.

In 2011, Mr Zhou, a former client of Mr Liew, made the four investment agreements worth $6 million for a residential project and bridging loans to companies in Wenzhou, China. A portion of the sums invested belonged to Mr Pu Dawei, a mutual acquaintance. The investments were introduced to Mr Liew by Ms Chen Jie, a Chinese national who was the contact point for the recipients of the investments in China.

Under the investment pacts, Mr Zhou was required to transfer the funds to the account of System Impact, and at times to Ms Mah, its shareholder, according to court papers filed.

But by the second half of 2012, Mr Zhou stopped receiving the investment updates and interest payments. He pursued the case with Mr Liew and learnt the investments were allegedly not used for the intended purposes. When the investment terms expired and the total of $6.53 million was unpaid, he called upon the alleged personal guarantees given by Mr Liew.

In denying the claims, Mr Liew, who in court documents was identified as the son of prominent businessman and founding president and former chief executive officer of CapitaLand Group Liew Mun Leong, is challenging the enforceability of the investment pacts and personal guarantees.

He was subpoenaed to testify in the High Court last week by Mr Zhou's lawyer Eugene Quah from RHTLaw Taylor Wessing.

In the run-up to the trial, Mr Zhou found that Ms Mah and System Impact had allegedly transferred the investment funds to Mr Gobindram, owner of Silk Rose, who was seen as a further intermediary. Mr Gobindram, represented by lawyer Lim Kim Hong, denied the claims, calling them baseless and unsubstantiated, and affirmed all monies received were remitted to China.

In his opening statement in court on Tuesday, Mr Quah said the defendants have all conveniently accused Ms Chen - who is absent from the case - of running away with the funds.

The High Court hearing before Judicial Commissioner Audrey Lim continues next week.

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

Employment of Foreign Manpower Act - Employment of Foreign Manpower (Work Passes) (Amendment No. 2) Regulations 2017 (S 547 of 2017)

Singapore Court of Appeal clarifies doctrine of forum election and includes possibility of transfer to SICC in the analysis of forum non conveniens: Rappo, Tania v Accent Delight International Ltd & Anor and another appeal [2017] SGCA 27

Judgments
25 Aug 2017

UK launches drive to bolster its legal sector

Business Times
07 Oct 2017
Neil Behrmann

Singapore is its pick for the launch as both countries share open and liberal approach to providing legal services

THE UK's solicitors and barristers have embarked on a vigorous campaign in Singapore to retain and boost clients in an effort to counter potential Brexit setbacks.

The stakes are high. Britain's legal services currently generate estimated fees amounting to as much as �29 billion (S$51.8 billion) annually, according to a Ministry of Justice spokesman. Net exports from the sector are estimated at �3 billion, she added.

Richard Keen, Britain's advocate-general for Scotland, launched the marketing campaign, named "Legal Services are Great", on Wednesday at Eden Hall, the British High Commissioner's official residence in Singapore.

Explaining why Singapore was chosen as the centre for the 2017 international launch, the House of Lords justice spokesman said: "We share an open and liberal approach to providing legal services, we both invite and encourage expertise from around the world and we both understand the importance of effective regulation in this sector."

Lord Keen, 63, added that "the roots of English law are deep". He cited how Singapore's Court of Appeal has traced the origin of Article 12 of the Constitution guaranteeing equality back to Article 40 of the Magna Carta.

Lord Keen, who also spoke at the International Conference of Legal Regulators in Singapore on Friday, added that the UK's "Legal Services are Great" campaign "will target stronger links with emerging and established markets across the world and cement the UK's reputation as the world's pre-eminent legal centre ... to litigate, resolve disputes and do business".

"More than 200 foreign law firms from around 40 jurisdictions operate in the UK, while more than a quarter of the world's 320 legal jurisdictions are founded on English common law principles," the Ministry of Justice spokesman said.

"In the 2015 International Arbitration Survey, London was the preferred seat of arbitration for 47 per cent of respondents."

Services include legal advice on international trade and investment deals, mergers and acquisitions, banking and financial services.

Lord Keen stressed that English law underpins more than a quarter of the world's jurisdictions; that "law firms, courts and exceptional judges are held in the highest esteem right across the globe".

He will travel on from Singapore to Sydney where he will further promote the legal services while attending the International Bar Association Conference.

The campaign is timely as Singapore and Asian lawyers, businesses, banks and others are uncertain about the sticky, complex legal issues in Brexit negotiations.

Uncertainties include the post-Brexit role of the Court of Justice of the European Union (CJEU), which is the final arbiter on questions of the interpretation of EU law.

The desire of the government is that after Brexit, the UK will no longer be subject to the jurisdiction of the CJEU.

The UK's European Union (Withdrawal) Bill will repeal the 1972 European Communities Act, which took Britain into the EU. That Act meant that European law took precedence over laws passed in the UK Parliament.

All existing EU legislation will be copied across into domestic UK law to ensure a smooth transition on the day after Brexit.

The aim, according to the government, is to avoid a "black hole in our statute book" and avoid disruption to businesses and individual citizens as the UK leaves the EU. The UK Parliament can then amend, repeal and improve the laws as necessary.

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

Employment Claims Act 2016 - Employment Claims (Amendment) Rules 2017 (S 546 of 2017)

SHC: Singapore court sets aside first investor-state arbitral award

Judgments
24 Aug 2017

MHA reviewing penalties for irresponsible driving

Straits Times
07 Oct 2017
K.C. Vijayan

Chief Justice highlights anomaly in sentencing of repeat offenders

The Ministry of Home Affairs (MHA) is reviewing penalties under the Road Traffic Act for irresponsible driving, including driving under the influence of alcohol.

As part of the review, MHA will study Chief Justice Sundaresh Menon's judgment on Wednesday highlighting an anomaly in how repeat offenders of drinking-related traffic offences are sentenced.

Currently, a person convicted of "being behind the driver's wheel while drunk" may escape jail time if he is caught drink driving later.

However, a person with a previous conviction for drink driving faces a mandatory jail term if he is caught "being behind the driver's wheel while drunk", or drink driving for the second time.

The offence of "being behind the driver's wheel while drunk" typically applies to drivers who are found "in charge" of a vehicle but not driving it, with more than the legal blood or breath-alcohol level. For instance, the person could be sleeping behind the wheel.

The offence of drink driving applies when he is driving the vehicle.

Chief Justice Menon said "the anomaly is likely to have been the result of legislative oversight", which Parliament may have to fix.

He made the comments in reducing a motorist's one-week jail term to a $5,000 fine. Pua Hung Jaan Jeffrey Nguyen, 34, failed a breathalyser test at a police road block on Oct 29 last year.

After pleading guilty in January to drink driving, Pua was given one week's jail and disqualified from driving for 30 months.

The district judge had taken into consideration that in 2012, Pua was convicted for "being in charge of a vehicle while under the influence of alcohol"; he had been fined $1,000.

Pua's lawyer Anand Nalachandran appealed for a fine for his latest sentence. Chief Justice Menon did not alter the duration of the driving ban.

The Chief Justice made clear that while the facts and circumstances of Pua's case did not support a jail term, it must not be construed that a prison sentence would not be meted out in all similar cases.

Contacted yesterday, an MHA spokesman said it will study the judgment as part of its review.

Association of Criminal Lawyers of Singapore president Sunil Sudheesan said Chief Justice Menon's remarks were timely in underlining the legal anomaly.

• Additional reporting by Lin Yangchen.

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

Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor [2017] SGHC 244

Small Claims Tribunals Act - Small Claims Tribunals (Amendment No. 2) Rules 2017 (S 545 of 2017)

MAS posts FATF public consultation paper on “Draft Guidance for Private Sector Information Sharing” on website

Business
24 Aug 2017

Britain, S'pore in 'premier league' of litigation and arbitration centres

Straits Times
06 Oct 2017
Tan Tam Mei

Singapore and Britain are home to successful international legal centres because they have an open and liberal approach to providing legal services.

And given their close trade links and shared perspectives, both countries stand to learn from each other, said Advocate-General for Scotland Richard Keen.

Lord Keen, 63, who is also Britain's Ministry of Justice spokesman for the House of Lords, was speaking yesterday at Eden Hall, the British High Commissioner's official residence, to mark the launch of Britain's "Legal Services are Great" campaign, which aims to promote Britain's legal service expertise and expand its global reach in the sector.

Speaking to The Straits Times before the event, Lord Keen said he viewed Singapore and London as among the "premier league" of litigation and arbitration centres worldwide, with a pool of outstanding lawyers and a respected judiciary.

Earlier yesterday, he met Chief Justice Sundaresh Menon and Attorney-General Lucien Wong, and learnt about developments in legal services here, specifically in the area of legal technology.

He said: "The development of technology in the provision of legal services is something Singapore is leading the way in, and there have been developments in the UK as well. I think we can learn from each other."

Lord Keen also touched on the need for legal centres to be international, and provide services that reflect that. "The days where you could define jurisdictions in reference to borders are fast disappearing... We have to be capable of regulating legal services without regard simply to individual jurisdictions."

Lord Keen, who is here on a three-day visit, will be giving a keynote address today at the International Conference of Legal Regulators, which is being held in Asia for the first time.

On the Great campaign, he said: "The UK is, and will continue to be, one of the pre-eminent legal centres in the world. We will continue to be a leading player in that premier league of international legal centres."

Lord Keen will leave Singapore today and head to Sydney.

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

Family Justice Act 2014 - Family Justice (Amendment No. 3) Rules 2017 (S 544 of 2017)

SHC: Cross claims, counterclaims and set-offs from another construction contract – Permissible in an adjudication?

Judgments
23 Aug 2017

Firm to blame for visitor's injuries

Straits Times
06 Oct 2017
K.C. Vijayan

A district judge held a company was completely to blame for the injuries suffered by a visitor when a display panel fell on her.

The judge found the 2m-tall display panel was not placed in a secure manner, so that even a slight force from the victim - Madam Ong Siew Hong, 72 - could easily have caused the panel to fall on her.

At the hearing in June, District Judge Lee Li Choon said Soon Bee Huat Trading has breached the duty of care owed to patrons on its premises, in particular Madam Ong.

"The defendant company has not placed the display panel in such manner that it would not be reasonably foreseeable for the display unit to fall on her," said the judge.

The company has since adopted the recommendation of a workplace safety specialist to secure the display panels with a stand support at the bottom and a bracket and screw system at the upper portion, said District Judge Lee.

Madam Ong had sued the company in the State Courts for negligence, seeking damages for injuries she suffered.

Together with her son and daughter, she had visited its showroom in Toh Guan Road East on July 17, 2015 to browse for renovation materials when the mishap occurred.

The 55.4kg display panel fell on her as she walked past it on the second floor of the showroom. It caused her to fall face down and she sustained injuries to her chin, elbows and hip. She was taken by ambulance and warded for eight days at Singapore General Hospital.

The panel had been placed directly on the bare floor at an angle and was supported by a display shelf of tile materials.

Madam Ong, represented by lawyer Margaret Neo, denied she touched the panel before the incident. Besides the injuries, she suffered from depression and post-traumatic stress disorder.

Lawyer Daljit Kaur, defending the firm, argued that the injuries suffered by Madam Ong could not be because of the panel falling on her.

But District Judge Lee found no evidence that her injuries could not have been caused by the falling panel, dismissing defence claims that the injuries were not consistent with the panel's weight and size.

The judge also found the accounts given by her children to be consistent and corroborated with Madam Ong's account.

The company was found to be 100 per cent liable for the injuries caused to Madam Ong with damages payable to be assessed separately by a court registrar. The company is appealing the decision.

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

Supreme Court of Judicature Act - Rules of Court (Amendment No. 3) Rules 2017 (S 543 of 2017)

MAS posts BCBS Guidance Paper on “Sound management of risks related to money laundering and financing of terrorism” on website

Business
23 Aug 2017

Loophole in penalty framework for two drinking-related traffic offences, says CJ

TODAY
06 Oct 2017
Siau Ming En

SINGAPORE — Chief Justice Sundaresh Menon has flagged a loophole in laws to deal with reoffenders of drinking-related traffic offences that could result in some recalcitrant drivers getting off lightly.

This “anomaly”, in CJ Menon’s words, arises when someone who has been convicted of “being in charge of” a vehicle after drinks — such as getting into the driver’s seat without driving off — is hauled to court again for drink-driving. An offender with this sort of criminal history may be sentenced to a fine, even though he or she had committed a more severe crime in the second instance.

In contrast, a judge has no choice but to impose jail time on an offender who had committed the same two drinking-related traffic offences in the reverse order. Similarly, an imprisonment sentence is mandatory for someone who is a second-offender of drink-driving, or being in charge of a vehicle under the influence of alcohol. For all reoffenders of these offences, disqualification from driving is automatic.

The loophole was likely the result of a legislative oversight, CJ Menon said, and “if that is the case, legislative reform would be desirable”.

His remarks came in a written judgment released on Wednesday (Oct 4), as he allowed the appeal of Pua Hung Jaan Jeffrey Nguyen, 34, against his sentence of one week’s jail for drink-driving on Oct 29 last year. He had a previous conviction in 2012 for being in charge of a motor vehicle under the influence of alcohol.

CJ Menon noted that offenders such as Nguyen “would generally be more culpable”, given that drink-driving was a more serious offence.

If a custodial sentence was the “starting point” for such repeat offenders, it might go some way towards alleviating this “anomaly” in the punishment framework.

CJ Menon also noted a hypothetical situation raised by prosecutors when the case was heard in the lower courts. Prosecutors had noted that an offender with an antecedent of being in charge of a vehicle after consuming alcohol beyond the prescribed limit may be “incentivised” to drive, instead of simply sitting in the vehicle after drinking, given that they know they may escape with a fine.

But CJ Menon said: “It seems untenable that as between two irrational choices (namely, driving the vehicle, on the one hand, and sitting in the vehicle and waiting for a driver to come by, on the other), a person with (such an) antecedent ... should have a greater incentive to drive the vehicle.”

CJ Menon also noted Nguyen’s arguments, where he cited two cases in the past where offenders who had committed drink-driving offences twice were not sentenced to jail.

In both these cases, both charges of drink-driving were heard in the same hearing, which meant the offender was not treated as a repeat offender.

Nguyen had argued that these were more aggravated offences than his, yet jail had not been imposed.

CJ Menon said the fact remains that “imprisonment is not mandatory” in scenarios like Nguyen’s. By treating a custodial sentence as the starting point here would “come dangerously close to regarding imprisonment as mandatory” in this case, he added.

Eventually, CJ Menon allowed Nguyen’s appeal and replaced his jail term with the maximum fine of S$5,000. He kept the 30-month disqualification period imposed on Nguyen.

TODAY has asked the Ministry of Home Affairs for comments.

In February, the ministry had said it was conducting a review of penalties under the Road Traffic Act in order to take a tougher stance against irresponsible motorists.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor [2017] SGHC 244

Administration of Justice (Protection) Act 2016 - Administration of Justice (Protection) (Non-Publication Directions) Rules 2017 (S 542 of 2017)

Regulations on reporting of derivatives contracts amended to defer deadline for reporting of counterparty information in certain cases to 1 January 2019

Legislation
22 Aug 2017

Over 5,000 lawyers and counting as Law Society turns 50

Straits Times
05 Oct 2017
K.C. Vijayan

Number of law firms also up; when society started in 1967, it had just 259 lawyers

From just 259 lawyers when it started in 1967, the Law Society now boasts more than 5,000 members.

This was one of the highlights it noted in its 2017 annual report.

The number of lawyers has crossed the 5,000 mark, climbing from 4,486 in 2013 to 5,191 as at Aug 31 this year as the society celebrates its 50th anniversary.

The figure is expected to rise further, given the 484 applicants admitted to the Bar in the Mass Call events at the Supreme Court in late August.

It is understood that over 200 from this cohort could apply to be practising lawyers, while the others may seek legal positions not requiring a practising certificate such as in-house counsel.

"The Law Society has indeed come a long way from its humble beginnings in 1967, with a mere 259 lawyers," said chief executive officer Delphine Loo Tan in the annual report.

The report, which covers the period from September last year to end-August this year, noted that the number of small law firms had inched up, forming 81 per cent of the 881 law firms. A small firm has one to five lawyers.

Meanwhile, the number of medium-sized firms - of six to 30 lawyers - rose to 140 from 108 five years ago. There are 21 law practices having more than 30 lawyers each. The year also saw the first Queen's Counsel, Mr Toby Landau, successfully called to the Singapore Bar in May.

During the year, the society conducted 50 anti-money-laundering inspections, which for the first time were done at foreign law firms in addition to local firms.

"The decision to significantly increase the number of inspections undertaken, compared with previous years, was made to support Singapore's national interests, bearing in mind our Government's robust stand against money-laundering activities," said the society's anti-money laundering committee, chaired by senior lawyer S. Surenthiraraj, in the report.

The inspections conducted over two months late last year were outsourced to a large audit firm known for major audits.

"Overall, the results of the inspections were encouraging, with the vast majority of the law practices inspected being accorded a positive assessment."

The few practices found to have inadequate internal controls and processes to minimise the threat of money laundering were given time to address the weaknesses identified and will be re-inspected.

Another first in the year was the setting up of the society's first wholly owned subsidiary, known as the Law Society Pro Bono Services.

The society transferred to the new entity all its pro bono legal aid activities previously provided through its Pro Bono Services Office.

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

Administration of Justice (Protection) Act 2016 - Administration of Justice (Protection) Act 2016 (Commencement) Notification 2017 (S 541 of 2017)

IPOS Case Summary: Apple Inc. v Xiaomi Singapore Pte Ltd [2017] SGIPOS 10

Judgments
22 Aug 2017

Court dismisses appeals of trio who took $875k from casino

Straits Times
05 Oct 2017
K.C. Vijayan

The High Court dismissed the appeals of three foreigners who were convicted and jailed for misappropriating $875,133 from the Marina Bay Sands' casino.

The trio had also been convicted under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, or CDSA, for transferring the misappropriated monies abroad.

Justice See Kee Oon, who heard the appeal in July, ruled in judgment grounds last week that the findings of the district judge who convicted the foreign nationals last November "were amply supported by the weight of the evidence in its totality".

Chinese national Ho Man Yuk, 37, and Indian nationals Shaikh Farid, 41, and Shaikh Shabana Bi, 33, had conspired to use free play credits that Ho was not entitled to, in order to play in the casino in April 2014.

Following a trial, Ho was sentenced to 21 months' jail, Farid received 26 months, and Shabana was jailed for 12 months.

Ho, a Hong Kong-based businesswoman, was also convicted of 20 additional charges under the CDSA, which included remitting sums from the proceeds to others and converting the cash into gaming chips on several occasions, involving a total value of $443,900.

Farid was also found guilty and convicted of 26 charges under CDSA involving some $1.4 million, which included using $100,000 for gaming chips on April 19, 2014, and remitting $300,000 to one Cham Fui How the following day.

Shabana was convicted of three charges under the CDSA, having transferred about $12,900 from the proceeds to three other persons.

The varying jail terms for the most serious of the CDSA charges had been ordered to run consecutively with the criminal misappropriation charge.

The trio had obtained $875,133 by gambling with the free play credits at the roulette Electronic Gaming Machines (EGMs). They took advantage of a computer glitch in the system to dishonestly download as many free play credits as possible, and used them at EGMs to rake in nearly $1 million.

Ho was defended by lawyer Selva Naidu, while Farid and Shabana were represented by lawyer Sarbrinder Singh in their appeals.

Counsel had argued that criminal misappropriation was not made out on the evidence, adding that the money had been mixed with the accused persons' own funds, and therefore the CDSA charges could not stand.

Justice See was not convinced, noting that all three were of limited means and had substantial debts.

In dismissing the appeal, he said the sentences were not excessive, given the sums they made away with and their lack of remorse.


The trio had obtained $875,133 by gambling with the free play credits at the roulette Electronic Gaming Machines (EGMs). They took advantage of a computer glitch in the system to dishonestly download as many free play credits as possible, and used them at EGMs to rake in nearly $1 million.

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Shaikh Farid v Public Prosecutor and other appeals [2017] SGHC 239

Constitution of the Republic of Singapore - Constitution of the Republic of Singapore (Responsibility of the Minister for Law) (Amendment) Notification 2017 (S 540 of 2017)

The rise of ICOs, Digital Tokens and Virtual Currencies - Do securities regulations apply?

Legislation
21 Aug 2017

Industry welcomes new law to protect buildings against attacks

Straits Times
05 Oct 2017
Zaihan Mohamed Yusof

Designing buildings with security in mind will help save lives and reduce longer-term security costs, said Mr Desmond Choo, chairman of the North East Community Development Council.

Addressing delegates from the building, architecture, security and facility management industries at an industry convention yesterday, he pointed to the devastating attack by a lone gunman who killed 58 people at a music festival in Las Vegas on Sunday.

"Security threats and attacks are increasingly becoming an unfortunate norm... It requires building owners to incorporate security measures in their building design," he said, highlighting the need for the new Infrastructure Protection Act (IPA).

The Act, passed in Parliament on Monday, is intended to form a clear regulatory framework and comprehensive strategy to fight terror.

Buildings with iconic or symbolic significance, and those that provide essential services and have high footfall, will have to include security features such as barriers or enhanced closed-circuit television capabilities.

The law will also give security personnel at sensitive installations the power to question and inspect a suspicious person's belongings and order him to leave the premises.

Taking photographs or video footage of these installations without authorisation will also be illegal.

Second Minister for Home Affairs Josephine Teo told Parliament on Monday that "today's terrorists typically target crowded places or iconic buildings".

"Potential attacks overseas have been stopped by vigilant guards in the surrounding area of a sensitive facility," she added.

Mr Choo, who is also an MP for Tampines GRC, was the guest of honour at the Architecture & Building Services 2017 event, held at the Marina Bay Sands Convention Centre.

Singapore Institute of Architects vice-president Seah Chee Huang and executive director Fong Hoo Cheong welcomed the IPA, as it brings various aspects of building security under a single piece of legislation. Having building owners, designers and architects work together on security will also help create a much safer environment, they added.

Yet, there are some concerns over the deployment of high-tech and complex security systems in new buildings. Among these concerns are the cost and maintenance of the new security measures, and how they would affect day-to-day operations.

Mr Tony Khoo, president of the Singapore chapter of the International Facility Management Association, told The Straits Times: "For facility managers, we look at not only upfront costs, but also what we call total assets life cycle cost. There is an initial investment, and then there are operating costs."

The rapid pace of technology could also make some software systems obsolete within years.

Mr Nelson Tee, president of the Security Systems Association of Singapore, said an ageing security workforce is another challenge.

"The perception (of those in the security line) has improved a lot, but it is not enough... The majority of the 45,000 registered personnel are above 55 years old," he said, adding that there is a need to bring in more IT-savvy "new blood".

Mr Khoo said the most prized form of security is an alert public.

"People are much more important because they see things," he added. "They would be aware of things that are suspicious and would be able to report (to the authorities) accordingly."


Photographers raise concerns

The recently passed Infrastructure Protection Act (IPA), which aims to enhance building security against terror attacks, has got photographers - both amateur and professional - debating how much it affects them.

Under the new law, taking photographs or video footage of protected or sensitive buildings is illegal.

Photographers have discussed in closed groups on Facebook what would happen if sensitive buildings appear in the backgrounds of their photos. Some also wondered if they would be held liable for posting or sharing online old photos of buildings that were taken before the IPA was passed.

Landscape and architectural photographer Darren Soh, 41, told The Straits Times: "I hope that the MHA (Ministry of Home Affairs) would clarify more specifically what is permissible and what is not, and also publish a list of all protected buildings and areas for the public to digest, because not all protected buildings may have obvious signs and notices prohibiting photography."

Zaihan Mohamed Yusof

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Road Traffic Act - Road Traffic (Public Service Vehicles) (Vocational Licences and Conduct of Drivers, Conductors, Trishaw Riders and Passengers) (Amendment No. 3) Rules 2017 (S 539 of 2017)

Singapore High Court considers director’s liability for company’s money laundering: Abdul Ghani bin Tahir v PP [2017] SGHC 125

Judgments
21 Aug 2017

Foreign speakers: Onus on religious groups?

Straits Times
05 Oct 2017
Melody Zaccheus

Making groups that invite them accountable may be part of changes to harmony Act: Experts

Religious groups in Singapore could be held responsible for hiring or inviting foreign speakers who incite religious tensions.

Observers told The Straits Times this is one possible change to the Maintenance of Religious Harmony Act (MRHA), which is currently being reviewed by the Government.

Another possibility is that groups which invite a divisive speaker may subsequently face a longer vetting process for the foreign speakers they plan to bring into Singapore.

The Presidential Council for Religious Harmony, which includes representatives of Singapore's major religions, may also be given more powers to weigh in on the entry applications of foreign speakers.

Now, foreigners on short-term work assignments related directly or indirectly to any religion must hold valid Miscellaneous Work Passes issued by the Manpower Ministry. To apply for a pass, a foreigner has to be sponsored by a Singapore-based organisation or society.

The potential changes to the Act are part of a national effort to protect Singapore's racial and religious harmony which, in turn, will help in its battle against terrorism, which has intensified in the region and the West. Observers also said the new moves would encourage organisations to be extra careful when inviting foreigners to address their congregations.

Last month, Home Affairs and Law Minister K. Shanmugam said the Act will be reviewed.

It is being done to enhance legislative provisions to protect racial and religious harmony.

Mr Shanmugam also cited two foreign Christian preachers who had applied for short-term work passes to speak here but were denied entry as they "were very Islamophobic in their statements outside of Singapore".

When contacted, the MHA said it will give details when the review is completed.

The Act, enacted in 1990, allows the Minister for Home Affairs to issue restraining orders to anyone who, for instance, undermines religious harmony. The order bars a person from addressing or advising any religious group or institution. Contravening it can result in a fine of up to $10,000, jail of up to two years, or both punishments.

No restraining order has hitherto been issued under the Act.

Law don Eugene Tan said the review shows clearly the Government wants tougher laws to deal with the increasing threats to religious harmony. "This could take the form of pre-emptive measures, more sanctions beyond restraining orders, heavier penalties as well as expanding the scope of the Act to explicitly include non-religious leaders as well."

Some experts believe the review could result in new penalties against the speakers themselves.

While there are other avenues to penalise them - namely, the Penal Code and Sedition Act - some believe strengthening the Act would let the Government act faster.

Meanwhile, religious leaders like Cornerstone Community Church's senior pastor Yang Tuck Yoong have suggested alternatives outside the Act. These include getting individual speakers and heads of religious institutions to sign guarantees or undertakings that any address by a foreign speaker will stay within the agreed topic.

Experts believe such a procedure alongside an official appeal channel could work instead of a blanket ban on speakers who have spoken on sensitive topics overseas.

Said Dr Mathew Mathews of the Institute of Policy Studies: "There should be a balance, especially if someone who used to decry other religions has re-thought his or her position and comes out to say he or she understands and admires the Singapore model of keeping peace.

"There should be processes for them to undertake they won't do and say these unacceptable things."

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

Smoking (Prohibition in Certain Places) Act - Smoking (Prohibition in Certain Places) (Amendment) Notification 2017 (S 538 of 2017)

[CHN] Highlights of China’s 2017 Foreign Investment Catalogue

Business
21 Aug 2017

Acra to get regulatory teeth to raise audit quality

Business Times
04 Oct 2017
Michelle Quah

Review of Singapore's Accountants Act could pave way for Acra to do firm-level inspections, mete out sanctions

SINGAPORE'S public accounting firms, such as those providing auditing services, could soon face the prospect of being sanctioned for lapses in audit quality.

The tougher action will come with an impending legislative review that will also grant Singapore's national regulator of public accountants the statutory power to conduct inspections of public accounting firms at the firm level.

These and other impending changes to the accountancy sector were unveiled on Tuesday by Senior Minister of State for Law and Finance Indranee Rajah at the Singapore Accountancy and Audit Convention (SAAC) 2017.

In her keynote address, she said the Ministry of Finance (MOF) and the Accounting and Corporate Regulatory Authority (Acra) have embarked on a much-anticipated review of Singapore's Accountants Act, with a view to improving the quality of audits.

Among other things, the Act controls and regulates the practice of the profession by public accountants, accounting corporations and accounting firms and partnerships.

Ms Rajah said: "We are looking into empowering Acra to conduct firm-level inspections and, where necessary, mete out sanctions for non-compliance through this review. This is in line with the audit regulatory regimes in the United States, the United Kingdom and Australia."

A firm-level inspection will determine whether an audit firm has put in place an effective system of audit quality controls in accordance with Singapore standards. Such inspections would complement the current statutory engagement inspections that review the work of individual public accountants.

Ms Rajah said that although the Asian Corporate Governance Association (an independent non-profit organisation that rates the corporate governance standards of the region's jurisdictions every two years) has described Acra's audit inspection programme as "one of the best in the region", Singapore must continue in its efforts to raise the bar for audit quality.

She added that more details of the review will be released in due course; a public consultation has been scheduled for next year.

Acra now conducts regular audit inspections in its Practice Monitoring Programme (PMP). This year's PMP showed a slight improvement from the previous round of inspections, though Acra said that "improvement in the quality of audits for non-listed companies, while encouraging, needs to be more broad-based for the segment to make long-term sustainable progress".

Commenting on the impending review of the Accountants Act, Tan Cheng Han, chairman of the Public Accountants Oversight Committee (PAOC), said: "The trust that investors place in our markets is due in part to the robust audit oversight we have in place. Such legislative reviews help ensure that high audit quality standards are upheld."

Ms Rajah also announced other changes geared towards improving audit quality and public trust in financial statements here.

Among them is a regulatory change relating to financial reporting for Singapore Exchange-listed Singapore companies. "From financial year 2018, these companies will apply a new financial reporting framework that will allow them to include a statement of compliance with IFRS (International Financial Reporting Standards) in their financial statements.

"This change will place our listed companies on a level playing field with global companies that use IFRS. This will enhance the global comparability of our companies' financial information, and support the internationalisation efforts of these companies," Ms Rajah said.

She also unveiled a comprehensive study on the first-year impact of Enhanced Auditor Reporting (EAR) here. EAR requires companies' financial statements ending on or after Dec 15, 2016 to include a more detailed report by the company's external auditors, which would shed light on the key audit matters (KAMs) encountered during the audit.

The study showed a positive reaction to and the impact of the new requirement, with a sizeable proportion of listed companies discussing in greater depth the areas covered by KAMs. Audit committees were also shown to have proactively reported their views on significant accounting matters.

Investors have cheered the change, saying that EAR has given them deeper insights into how auditors conduct their audits and also greater confidence in audit quality.

"These findings have validated the value of audits," Ms Rajah said.

She also announced the Skills Framework for Accountancy, which will invite individuals to explore career advancement opportunities along or across six identified tracks within the sector, such as assurance, financial accounting and business valuation.

Another initiative is Sapphire for the Accountancy sector, which will help accounting firms adopt the Skills Framework and integrate technology at the workplace.

READ MORE: 'Ear, 'ear for enhanced auditor reports

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Administration of Muslim Law (Amendment) Act 2017 - Administration of Muslim Law (Amendment) Act 2017 (Commencement) Notification 2017 (S 537 of 2017)

Public Consultation on Proposed Amendments to Consumer Protection Safety Regulations

Legislation
18 Aug 2017

Bill introduced to support two future Singapore-Malaysia rail links

Straits Times
04 Oct 2017
Adrian Lim

A proposed law to support the building and running of two future rail links between Singapore and Malaysia was introduced in Parliament yesterday.

The Cross-Border Railways Bill will provide for the licensing of operators to run train services and maintain railway assets; the appointment of independent safety auditors; and funding for the projects' construction, among various clauses.

It will also empower the Government to suspend cross-border train services if there are imminent risks to commuter safety, such as a malfunction or terrorist act.

A Singapore Transport Ministry spokesman yesterday said the Bill will support the "construction, operation and regulation" of the Kuala Lumpur-Singapore High-Speed Rail (HSR), in accordance with a bilateral agreement signed last December.

The 350km HSR, which will cut travel time between the two cities to 90 minutes, is targeted to be operational by the end of 2026.

The Bill will also support the Johor Baru-Singapore Rapid Transit System (RTS) Link after Singapore and Malaysia ink a bilateral agreement at the end of this year, the spokesman added. The RTS, which will link Woodlands North station on the upcoming Thomson-East Coast MRT Line with Johor's Bukit Chagar terminus, is expected to be ready by the end of 2024.

The proposed law also spells out the penalties if train service or railway asset operators fail to comply with the licensing requirements. They can be fined up to $1 million, or 10 per cent of their annual revenue received in the last completed financial year.

The introduction of the Bill comes amid key developments in both cross-border rail projects.

Last month, rail operators SMRT and Prasarana Malaysia signed a memorandum of understanding to form a joint venture company for the cross-border RTS Link. This operating company will build, finance and run operating assets like trains, tracks and systems.

Singapore and Malaysia will also call a joint tender later in the year to appoint an asset company for the HSR project.

The appointed company will be responsible for designing, building, financing and maintaining all rolling stock. It will also build, operate and maintain rail assets, including track-work, power and signalling systems.

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

Terrorism (Suppression of Financing) Act - Terrorism (Suppression of Financing) (General Exemption) (Amendment) Order 2017 (S 536 of 2017)

ACRA issues revised Guidance relating to requirements on register of registrable controllers and register of nominee directors

Legislation
18 Aug 2017

The good, the bad and the ugly side of ICOs

Straits Times
04 Oct 2017
Grace Leong

More start-ups are using initial coin offerings to raise funds

Investors, bewareVirtual currency investor Roy Chan almost became a victim of a hack attack.

He had wanted to invest in an initial coin offering (ICO) offered by a financial services developer called Enigma. (An ICO is akin to an initial public offering or IPO where investors use cash to buy shares in a company, except that in an ICO, investors use cash or another widely used virtual currency to buy digital tokens that may represent a security interest in the issuer's assets, or debt owed, or the right to use a promised service in future.)

Mr Chan, who works in a pharmaceutical company here, was about to transfer funds into an account associated with Enigma, but decided to check. A good thing he did, because scammers were targeting investors like him and were luring them to transfer their money to a fake account.

Fraudsters managed to reap nearly US$500,000 (S$681,400) before Enigma shut down the channels and warned investors about the scam.

ICOs 101

Welcome to the world of virtual currencies and ICOs.

According to the moneysense.gov.sg website, virtual currencies first emerged about 10 years ago and do not necessarily have a physical form, unlike fiat currency such as coins and notes. Examples of virtual currencies are bitcoin and ethereum's ether. They are not issued by any government, and are not legal tender. This means that they can be used to pay for goods or services only if someone is willing to accept them as a mode of payment.

People can buy digital currencies like bitcoin using cash. Or they can "mine" for bitcoins, by solving complex mathematical problems.

As digital currencies grew in popularity, their use has expanded. Today, bitcoin for example can be used to pay for music downloads or clothing and for meals in a small number of restaurants.

In recent years, some tech companies and start-ups have taken to raising funds for their projects by getting people to buy their digital tokens that may, for example, offer ownership or usage rights to a product or service, or access to a new investment product.

ICOs have exploded in popularity over the past year and even reality TV star Paris Hilton is endorsing a digital company's ICO launch.

ICOs have been used to raise more than US$2 billion so far this year, according to CoinDesk. Some start-ups see this mode as a cheaper and faster alternative to venture capital for raising money. Singapore-based TenX recently raised an estimated US$80 million.

But like any emerging, thinly regulated financial product, they are also highly risky.

RISKS OF INVESTING IN ICOs

Unlike IPOs which are very highly regulated, ICOs are less regulated.

Companies looking to raise funds through an IPO must disclose extensive amounts of information on the company and its governance, and also must have a prior track record of operational success.

In contrast, those who want to issue an ICO often set out their business proposal in a so-called "white paper" published online. This purports to be a kind of offering document, but lacks the rigour of an IPO prospectus.

TSMP Law Corp joint managing partner Stefanie Yuen Thio noted: "The white paper (or business proposal) is often badly drafted, provides very little clarity. The underlying investment, the investors' rights and risks are not well spelt out. ... If the ICO promoter is based outside Singapore, enforcement risks are also higher."

In an IPO, investors have rights as a shareholder. In an ICO, token holders have fewer rights.

The lack of oversight over ICOs has attracted criminals, with some estimates showing about 10 per cent of all ICO funds being stolen by thieves. Phishing scams and hacking are common, and new investors are particularly vulnerable as they may not know the most secure way to store their tokens.

Other dangers include the volatile nature of the investment.

The vast majority of ICOs are undertaken by start-ups and these issuers aren't in a position to issue IPOs because they have no track record and often no working product. Therefore, investors are taking a chance on the underlying technology that may never come to fruition, Withers KhattarWong partner Stephen Banfield warned.

There is much scope for abuse as there is little corporate governance that holds the start-ups responsible for delivering their project, or accountable for how they manage huge budgets obtained from a successful ICO, said Mr Nick Davies, a lawyer with Morrison & Foerster (Singapore).

Further, a digital token's tradable value is also affected by the technical ability of the team behind the project, he added.

"Flaws in the programming can lead to a token's tradable value plummeting within minutes. For instance, a digital token called DAO was hacked last year due to a single absent word in the application's coding. As a result of this oversight, the digital wallets of numerous investors were illegally accessed, and more than US$50 million worth of tokens were stolen," he added.

In Singapore, more than 100 consumers have filed police reports over investment schemes involving digital tokens or currencies.

RISE IN REGULATORY ACTION

Regulators worldwide are paying attention to ICOs.

Early last month, the People's Bank of China declared ICOs illegal, banned the practice of creating and selling new digital currencies, and ordered its major cryptocurrency exchanges to be shut down.

South Korea banned ICOs last week, prompting a legislator in Taiwan to push for regulations to be put in place to control cryptocurrency flows.

Last Thursday, Australia's securities watchdog warned consumers that they must understand potential ICO risks and be wary of scams. The British financial watchdog sounded a similar warning on Sept 12.

Regulators in the US, Singapore, Canada, Malaysia and Hong Kong have also fired warning shots that if tokens look like securities, they will be treated as such.

The Monetary Authority of Singapore (MAS) said in early August that any tokens that have the characteristics of securities will fall under its purview.

This came after the US Securities and Exchange Commission (SEC) said that virtual coins or tokens may be securities - subject to federal securities laws. On Sept 29, the SEC made good on that warning. It charged a businessman and two companies with defrauding investors in ICOs purportedly backed by investments in real estate and diamonds.

But industry observers note that blockchain technology is here to stay, and over-regulation may not be the best response.

Mr Davies noted that an outright ban is an easy way for regulators to take control, but such actions "are not necessarily conducive to creating a new healthy cryptocurrency ecosystem".

He added: "The technology behind ICOs is not going to be uninvented, but smart regulation could make Singapore a global hub for what the market has already priced as one of the most important technologies for the digital age - that is blockchain-based companies using distributed ledger technology on a truly global scale."

Blockchain - the technology that publicly records transaction details including the unique alpha-numeric strings that identify buyers and sellers - is here to stay, many industry observers say.

SINGAPORE'S APPROACH

China's ban creates an opportunity for Singapore to become a hub for such digital currency trade and development of blockchain technology, say some experts.

Finance professor David Lee noted that MAS and the Infocomm Media Development Authority have worked hard to attract deep technology. Like Hong Kong, Singapore has the ability and processes in place to fight money laundering and tax evasion that are considered risks in virtual currencies. Such strengths "are great attractions for genuine ICOs and a draw for technically competent developers", he said.

Mr Davies said Singapore's progressive approach makes it more attractive to founders of blockchain-based companies than Switzerland, the US, Gibraltar, and the Cayman Islands.

Rather than impose an outright ban, or come up with new rules targeted at the new digital token offerings, MAS prefers to apply existing regulations to new fintech models. So if a digital token has the characteristics of securities, it will be regulated as such.

An MAS spokesman added: "A recent example of how the existing securities regulatory regime applies to technology-based business models is MAS' regulation of securities-based crowdfunding activities. MAS is of the view that regulation must not front-run innovation, as introducing regulation prematurely may stifle innovation and potentially derail the adoption of useful technology. We must also remain technology-neutral, allowing for innovation to choose the best path to success.

"At the same time, MAS is closely monitoring the development and implications of digital token offerings in Singapore and other parts of the world, as well as taking note of the evolving regulatory approaches taken towards such offers across different jurisdictions."

Despite the risks, demand for such investments is proliferating. even amid tighter regulation and criticism from business leaders such as JPMorgan Chase chief executive Jamie Dimon, who recently called bitcoin a "fraud".

One reason is their speculative value. Bitcoin fell from around US$4,340 to as low as US$2,981.05 in the days after Mr Dimon's comments. But it has since recovered to around $4,433.61 as of Oct 2, according to CoinDesk data. Despite this volatility, bitcoin's value has risen more than 344 per cent so far this year. Ether, the token underpinning the ethereum blockchain, has surged more than 2,200 per cent since last year.

Low interest rates have forced investors to look for alternative asset classes, Mr David Moskowitz, co-founder and chief executive of Indorse, an ethereum-based social network in Singapore, said.

"We have seen the rise of cryptoassets from $0 in market value in 2008 to over US$100 billion currently. This is a trend that cannot be ignored," he said.

As ICOs proliferate, there is a lot at stake for both the start-ups that rely on them for funding as well as for the investors, who stand to lose millions of dollars through scammers and hackers.

The jury is still out on cryptocurrencies. These are high-risk investments that should not be punted by retail investors just because of meteoric gains in the value of certain digital tokens.

Beyond the hype, the question is whether regulators can play a role in positioning Singapore's economy to capitalise on the development of the underlying technology that powers these virtual currencies.

Regulators will have to strike a balance between keeping out the ugly side of cryptocurrencies and warning investors of the risks involved, while maintaining a financial ecosystem that is hospitable to the good that this new fintech trend can bring.

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

Public Order Act - Public Order (Election Meetings in Presidential Elections) (Amendment) Regulations 2017 (S 535 of 2017)

Supreme Court Note: Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] SGHC 178 (principles and benchmarks for sentencing NS defaulters)

Supreme Court Note
18 Aug 2017

The High Court allowed three appeals brought by the Public Prosecutor on the sentences meted out to three individuals who had defaulted on their obligations to serve NS. In its written grounds of decision (“GD”), the court made a number of observations on the applicable principles for the sentencing of NS defaulters, and laid down new sentencing benchmarks.

The court held that the standard of performance of a NS defaulter who returned to serve NS should not, as a general rule, be a relevant consideration for the purpose of sentencing. Exceptional NS performance, which happens after the conduct constituting the offence, reduces neither the defaulter’s culpability nor the harm he had caused by his offence. The culpability of NS defaulters lies in the unfair advantage that they have gained over their law-abiding peers by being able to pursue their personal goals while their peers were serving their NS obligations. In cases involving extended periods of defaults, the NS defaulters in fact avoided part of, or the whole of, their NS obligations if they returned at an age where they can no longer serve full-time NS or complete their reservist obligations in full. They harm the operational readiness of the armed forces, and also the morale of fellow citizens who have made personal sacrifices to serve their NS obligations when they were called upon to do so. This can in turn lead to growing resentment and the loss of public support for NS, threatening the ability of our armed forces to ensure Singapore’s national security: at paras 50 – 52 and 56 of the GD.

There are other reasons why exceptional NS performance should not be a mitigating factor. Since exceptional NS performance would be determined not just by the individual’s attitude and effort, but also by his innate aptitude and abilities such as physical fitness, allowing an NS defaulter to enjoy a discount off his sentence because he performed well when he finally decided to serve NS may be seen as, or tantamount to, giving preferential treatment to certain individuals with certain qualities. It will additionally introduce inequity to the sentencing process because it will unfairly prejudice not only NS defaulters who are less fit physically but also those who are charged and sentenced before they have substantially performed their NS obligations and so have not had the opportunity to have their performance at NS assessed. Further, it can undermine the sentencing objective of general deterrence, as it may send a message to potential defaulters that they can defer their NS obligations and try to make up for them later by performing well. Finally, since it is the obligation of every male Singaporean to do his best in his NS, it will be wrong for a defaulter who has done no more than what many, if not most, of his law-abiding fellow National Servicemen are doing, to be rewarded with a sentencing discount: at paras 53 – 55 of the GD.

In the determination of the appropriate sentence for an NS defaulter, the length of the period of default should, as a general rule, be the key consideration. In general, a period of default exceeding two years will attract a custodial sentence. This is because a person who has defaulted on his NS obligations for two years will only commence serving full-time NS when his peers have already completed theirs, and this derogates from the principle of equity which entails everyone who is required to serve NS to serve at around the same age so that they would all bear similar interruptions to their studies or careers at similar stages of their lives. For NS defaulters whose periods of default are around 23 years or more and who have therefore evaded the whole of their NS obligations, the statutory maximum sentence of 36 months’ imprisonment should be the starting point in the determination of the appropriate sentence: at paras 57 and 61 – 65 of the GD.

In between the two ends of the custodial range will be those who, by reason of their default, have impaired their ability to serve their NS obligations, either in terms of their physical ability or in terms of duration. The sentence to be meted out to an NS defaulter should not increase linearly with the length of his period of default. Instead, the rate of increase in sentence should be amplified with longer periods of default, to reflect the decline in a person’s physical fitness with age (and hence his ability to serve NS especially in a combat vocation), and to create a progressive disincentive for NS defaulters to delay their return to resolve their offences. In addition, there should be a spike in the sentence to be meted out to an NS defaulter once his period of default crosses the 10-year mark, since he would unlikely be able to serve his post-operationally ready date reservist obligations in full before he reaches the statutory age of 40: at para 66 of the GD.

The court made further observations about the relevance of other factors in the sentencing of NS defaulters:

(a)          Degree of substantial connection to Singapore: The sentence to be meted out should not be calibrated based on whether an NS defaulter has a substantial connection to Singapore, or the amount of benefits he has enjoyed as a Singapore citizen. Any other view would severely undermine the principle of universality and equity by differentiating between classes of Singapore citizenship, when in truth, no such differentiation exists: at para 70 of the GD.

(b)          Voluntary surrender: This may be a mitigating factor, if it evidences remorse. There is also public interest in encouraging NS defaulters to surrender early so that they can still serve their NS obligations. An early surrender will generally attract greater mitigating value than a surrender later in the day: at paras 76 – 80 of the GD.

(c)          Plea of guilt: A plea of guilt would, in most cases, attract either very limited or no mitigating value at all. The nature of NS default offences is such that these offences can easily be proved. Hence, a person accused of defaulting on his NS obligations would, in reality, have very little choice but to plead guilty in the face of undisputed evidence against him, such that his plea of guilt should not be said to have been motivated by sincere remorse. Generally, in cases involving NS defaulters who voluntarily surrendered and then pleaded guilty, the mitigating value of his voluntary surrender and plea of guilt should be considered holistically, with a single discount being applied. This is because there is considerable overlap in their mitigating value – both are mitigating insofar as they reveal contrition on the NS defaulter's part: at paras 82 –83 of the GD.

On it being wrong to be rewarded with a sentencing discount: see Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] SGHC 178 paras 53 – 55 of the judgment.

On the starting point of the determination of the sentence: see Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] SGHC 178 paras 57 and 61 – 65 of the judgment.

To view this judgment, click <here>.

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

MPA given powers to block purchase or disposal of stake in key entities

Business Times
03 Oct 2017
Chuang Peck Ming

THE Maritime and Port Authority of Singapore (MPA) will now have the power to reject an acquisition or disposal of equity interest in key designated entities, if it deems they hurt the port's interests.

"These designated entities include designated public licensees, designated business trusts and designated equity interest holders," said Senior Minister of State for Transport Lam Pin Min, who moved the Second Reading of the Maritime and Port Authority of Singapore (Amendment) Bill in Parliament on Monday.

The subsequent passing of the bill means designated entities will be subject to three key controls relating to changes in equity interest in the entities.

First, anyone who acquires an interest that would result in him or her holding five per cent or more in a designated entity must notify MPA.

Second, MPA's approval must be given first before a person can acquire 25 per cent or more, or 50 per cent or more in a designated entity.

Third, the green light must also be sought from MPA for any disposal that results in a person's shareholding falling below 75 per cent or 50 per cent in a designated entity.

"Given the strategic interests at stake, it is important for the Maritime and Port Authority of Singapore to have oversight on changes in substantive equity control in licensees that provide essential services at the port," Dr Lam said.

"The intent is not to control the day-to-day operations of these licensees, but rather to require MPA's approval to be sought for transactions in equity interest that would materially change the equity control of these licensees," he said.

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

Public Order Act - Public Order (Election Meetings in Parliamentary Elections) (Amendment No. 2) Regulations 2017 (S 534 of 2017)

Intellectual Property Newsletter August 2017

Judgments
17 Aug 2017

Property tax law amended to boost Smart Nation move

Straits Times
03 Oct 2017
Chia Yan Min

Parliament yesterday passed changes to the law to allow more people to get property tax notices digitally. This is part of Singapore's move to becoming a Smart Nation, Senior Minister of State for Finance and Law Indranee Rajah told MPs.

Existing regulations require taxpayers to explicitly consent before the Comptroller of Property Tax can issue them with digital tax notices instead of hardcopy notices.

Amendments to the Property Tax Act will allow digital notices to also be sent to taxpayers who did not opt out after being notified that they will get digital notices.

Amendments to the Income Tax Act were also passed yesterday.

One key change involves making it mandatory for businesses to maintain transfer pricing documentation with effect from the 2019 year of assessment. Transfer pricing documentation refers to records kept by businesses to show they have priced their transactions with related parties at the equivalent of what they would have transacted with unrelated parties in similar circumstances. This arm's length principle is an internationally accepted tax standard.

To limit the compliance burden for smaller businesses, this requirement will apply to businesses only if they have gross revenue exceeding $10 million and significant related-party transactions. This requirement is expected to apply to under 5 per cent of firms, many of which are already maintaining such records, Ms Indranee said.

Another change raises the maximum amount an employer can voluntarily contribute to his employee's Medisave account under the Additional Medisave Contribution Scheme. From Jan 1, 2018, the amount will be raised from $1,500 to $2,730 per year. Tax-exempt contributions and deductions will be adjusted accordingly.

Also passed were amendments to improve the administration of the Goods and Services Tax (GST) Act. The changes will see customer accounting extended to certain goods and services that have seen more GST fraud, such as mobile phones sold without mobile subscription plans, memory cards and off-the-shelf software.

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Public Order Act - Public Order (Amendment No. 2) Regulations 2017 (S 533 of 2017)

MAS launches SGD Credit Rating Grant to encourage issuers in SGD bond market to issue rated bonds

Business
17 Aug 2017

Decrypting the past, regulating the future

Business Times
03 Oct 2017
Stephen Banfeld

For investments in cryptocurrencies, the trend towards government intervention will better protect investors

INTEREST in cryptocurrencies is running at an all-time high at the moment. Investors with a healthy risk appetite are attracted to the large returns which can be made, while many governments and businesses are starting to seriously consider the far-reaching implications of the underlying technology.

At the heart of most cryptocurrencies is a publicly accessible, distributed ledger called a blockchain. This comprises a series of blocks which record transactions between different cryptographic addresses. Transactions are processed by "miners" who deploy computing processing power in exchange for a reward. While all transactions on the blockchain can be inspected by anyone, there is no way to know who holds private keys to which addresses.

The combination of anonymity and decentralisation has historically given cryptocurrencies an anti-establishment mystique. Bitcoin, the frst decentralised cryptocurrency, has been heavily criticised as the transactional medium of choice for organised crime. The now defunct New Silk Road is a prime example of this.

It is clear that cryptocurrencies have now evolved beyond the fringes and their mainstream potential is immense. Within the fnancial services sector, cryptocurrencies offer the promise of increased speed and accuracy in payment processing; greater access for the unbanked; and a detachment from centralised monetary policy. The immutable nature of the blockchain offers almost limitless uses in other parts of the global economy. This includes the development of self-executing smart contracts and zero trust transactions which rely upon information contained in the blockchain.

The rising popularity of cryptocurrencies is evidenced by the rapid increase in initial coin offerings (ICOs). This is a funding structure whereby a new blockchain venture issues its own token to investors as opposed to traditional shares or debt. The economic motivation for investors participating in an ICO is different from the purchase of debt or equity in a new venture. Investors will only realise an economic return if there is demand for the token itself, which can come in the form of fevered speculation or a real-world business case. The most common business use for a token is that it is "fuel" for executing transactions on a blockchain.

Up until recently, the general position has been that a cryptocurrency is not a "security" for securities law purposes. This is particularly true for utility tokens which provide a network usage right, as compared to those which enable a share in the profts of the coin issuer. ICOs have to date been conducted with comparatively light informational disclosures and none of the investor protection mechanisms which are common for a standard IPO or debt issue. The US Securities and Exchange Commission and the Monetary Authority of Singapore have both, however, recently stated that the issue of a token may come within existing securities laws. Chinese regulators have also indicated an intention to regulate ICOs.

Regulatory and tax issues

The trend towards government intervention is an investor protection response. There are many risks and information asymmetries for an investor participating in an ICO. It is common for sponsors to pre-mine a signifcant amount of the tokens which are issued and retain these as part of their incentive. There is no law stopping the sponsor of an ICO embarking on a pump-and-dump once the token is listed on a public cryptocurrency exchange. There is also potential for price manipulation and trading on asymmetric information in a manner which would be considered insider trading if the tokens were securities.

In the immediate wake of the statements made by the US, Singapore and China authorities, issuers are now starting to exclude investors from these jurisdictions participating in an ICO. There are a number of methods which are used. These include the creation of investor white-lists (some of which require proof of identifcation documentation) and geoblocking participants from these countries during the ICO itself. Issuers are also changing the features of their tokens so that they are less likely to be considered securities. Many of the large cryptocurrency exchanges are based in the US and they will not list a token for trading if in their view it is a security. An inability to list on major cryptocurrency exchanges hampers liquidity and consequently the price of the token itself.

There are a signifcant number of tax issues for cryptocurrency investors. The most obvious question is whether trading gains are income or capital. This is an important distinction as the rules of many tax regimes apply a more concessional treatment to capital gains. A related question is the place where any trading gains are to be taxed. Is it the place where an individual issues trading instructions or is it the country in which a cryptocurrency exchange is based? There can be an overlapping of the taxation systems of two jurisdictions where a different nexus test is applied. In these circumstances, it may be necessary to apply the provisions of a double taxation agreement to avoid double taxation.

In addition to the taxation of trading gains, there are a multitude of other less obvious tax issues. These include the taxation of tokens which are given away by the issuer or "air-dropped" and any rewards obtained for token staking or lending. The estate tax position of a cryptocurrency held through an exchange is unclear – the decentralised nature of cryptocurrencies means that it is diffcult to identify a jurisdictional nexus for estate tax purposes. Businesses accepting cryptocurrencies as a form of payment can face a unique issue of double taxation in a value-added tax context.

For investors, the exchange of information is perhaps the most signifcant tax related issue which is yet to be adequately addressed. Countries the world over have signed up to a programme of international information exchange developed by the Organisation for Economic Co-operation and Development (OECD) called the common reporting standard. This results in the automatic exchange of detailed and specifc information about the holders of fnancial accounts to the jurisdiction of their tax residency. It is not yet clear whether a trading account held with a cryptocurrency exchange which does not accept transfers of fat currency, would be taken to be a fnancial account for these purposes.

Cryptocurrencies have seen a meteoric rise this year. Investor interest and sophistication are growing in this space notwithstanding the considerable investment risks. For both issuers and investors alike, it is important to remain up to date on the regulatory and tax developments as they unfold. W

Stephen Banfeld is Special Counsel, Withers KhattarWong

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Public Order Act - Public Order (Special Notice — Exemption) Order 2017 (S 532 of 2017)

“Ambush Marketing” in sports under Singapore law

Business
16 Aug 2017

New law to shield buildings, key installations from attacks

Straits Times
03 Oct 2017
Danson Cheong

Regulatory framework to ensure security of strategic infrastructure

Owners of strategic buildings will be required to work enhanced security measures, like high-tech video surveillance, into the design of their property, under a new law passed by Parliament yesterday.

The Infrastructure Protection Bill, which establishes a "clear regulatory framework" for shieldingsuch buildings, is part of Singapore's comprehensive strategy to fight terror.

The new law comes at a time when the terror threat in Singapore is at its highest level, and attacks elsewhere show iconic landmarks and government buildings are prime terrorist targets.

Their aim is to make a statement by attaining maximum casualties, Second Minister for Home Affairs Josephine Teo said when she presented the proposed changes for parliamentary debate.

"Their aim is to create fear and upend our way of life in the ideological battle between their and our values," she added.

She cited the vehicle-ramming attacks in Spain in August that killed 16 people, noting the terrorists behind them had also planned to bomb iconic buildings in Barcelona.

She also pointed to the Marriott Hotel bombing in Pakistan in 2008. A truck carrying a bomb was stopped by a security barrier 40m away from the hotel, and this "blunted the attack".

Such incidents testify to the importance of ensuring there is adequate protection for infrastructure in Singapore, she added.

Last year, militants linked to the Islamic State in Iraq and Syria planned an attack on integrated resort Marina Bay Sands from Batam, but the plot was foiled by Indonesian security agencies.

Under the new law,the Ministry of Home Affairs (MHA) can designate new buildings as "special developments", and existing buildings as "special infrastructure".

Their owners will have to put them through a "security-by-design" process, which means they have to integrate security into their designs before they are built or renovated.

The security plans have to get the nod from the new Commissioner of Infrastructure Protection, a position that will be filled by an MHA senior civil servant.

The designated buildings will include those that provide essential services, have heavy human traffic, or iconic or symbolic significance.

They must be located in certain planning areas, classified for commercial, community or mixed use, and their gross floor area must exceed 100,000 sq m.

Mrs Teo assured the House that only a handful of new developments would be affected each year.

The criteria for such developments will be published in the Government Gazette soon.

The ministry will also be updating existing guidelines for building security, in line with the new rules.

Mrs Teo said the commissioner has the power to issue directives for building owners to install security measures to mitigate the risk of an attack. This could include improving closed-circuit TV camera coverage or installing vehicle barriers.

These directives will be a "last resort", she added.

Yet another new measure involves giving security personnel at sensitive installations - such as military camps and immigration checkpoints - powers to deal with threats in their vicinity. These include the power to question suspicious persons and inspect their belongings, and to require them to leave the area.

It will also be illegal to take photos or videos of these installations without permission, a move to prevent surveillance by terrorists.

Security personnel can examine the footage and have it deleted.

The Bill was supported by all eight MPs who spoke on it. They included Workers' Party chairman Sylvia Lim (Aljunied GRC), Mr Zainal Sapari (Pasir Ris-Punggol GRC) and Mr Desmond Choo (Tampines GRC).

Their chief concerns were whether the new measures would increase costs for building owners, and whether security officers would receive adequate training.

Mrs Teo said security officers who guard protected areas and places now have to attend a counter-terrorism course, and plans are afoot to make it a licensing requirement for more officers.

Addressing the cost issue, she said that in earlier buildings designed with security, the cost of security measures ranged between 0.2 per cent and 3 per cent of construction costs.

"Given that MHA will try to make known as early as possible which buildings need to undergo security-by-design, developers will likely factor in the cost of security measures in their bid price for the land," said Mrs Teo.


The new law comes at a time when the terror threat in Singapore is at its highest level, and attacks elsewhere show iconic landmarks and government buildings are prime terrorist targets.


Changes at a glance

Key infrastructure must factor security into design:

• The security plans must be approved by the Commissioner of Infrastructure Protection before construction or renovation.

• Owners who start construction without an approved security plan can be fined up to $200,000, jailed for up to two years, or given both punishments. The commissioner can issue directives to building owners to put in place measures such as vehicle barriers or better CCTV coverage.

• Owners of designated buildings who fail to comply can be fined up to $100,000, jailed for up to two years, or both.

• Owners of non-designated buildings can be fined up to $50,000, jailed for up to two years, or both.

Security officers of protected areas and places such as army camps and immigration checkpoints will get more powers:

• They can ask for identification, inspect belongings, direct a person to leave, and order a person to stop taking pictures of the place and delete the photographs.

• Those who refuse can be fined up to $20,000, jailed for up to two years, or both.

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Public Order Act - Public Order (Special Notice — Prescribed Crowd Size and Period) Regulations 2017 (S 531 of 2017)

Parliament passes Bill to amend Monetary Authority of Singapore Act to enhance resolution regime for financial institutions in Singapore

Legislation
16 Aug 2017

Doctors need guidelines for tribunal penalties

Straits Times
03 Oct 2017
Salma Khalik

Given the varying degrees of penalties meted out to erring doctors, the Singapore Medical Council should develop guidelines on penalties

How serious must a wrongdoing be for a doctor to be fined, suspended, or struck off the register so he can no longer practise?

These are the questions that every disciplinary tribunal (DT) set up by the Singapore Medical Council (SMC), the medical professional watchdog, has to decide when they find a doctor guilty.

Yet, there are no guidelines to help. The only aid is to look at penalties imposed by DTs in the past.

A recent DT has found this unsatisfactory and has asked the SMC to come up with guidelines on penalties.

Frankly, such guidelines are long overdue. Doctors are not judges, and although they rightly sit in judgment over their peers who have erred, adjudicating over such matters is not their area of expertise.

Clear and transparent guidelines would be of great help, not just to the DTs but to the entire profession who would know, from the penalties, how severely certain actions are deemed.

Hopefully, the SMC will heed this call. When asked, its spokesman said that it "noted the disciplinary tribunal's recommendation to SMC on formulating a set of sentencing guidelines". It added: "Prior to the DT's recommendation, the SMC has been discussing and reviewing this matter."

The faster this can be done, the better.

When a complaint is made to the SMC against a doctor, it is assessed by a complaints committee that decides whether to pursue the case with a disciplinary hearing or to drop it, sometimes with a letter of advice or warning to the doctor.

Should the case merit a hearing, a DT is set up to hear it . Both the SMC as prosecutor and the doctor who is the defendant are usually represented by lawyers.

If the DT finds the doctor guilty, it decides on the penalty, which can range from a censure to fines of up to $100,000, suspension of three months to three years, or even taking the doctor off the register, which means he can no longer practise medicine.

The DT looks at previous punishments meted out to decide on the penalty to impose. There is no guide to say what penalties are to be imposed for different wrongdoings.

So a sympathetic DT will likely impose less severe penalties than one that is stricter.

Those who follow cases heard by DTs may think that the penalties imposed are sometimes decided on the whims of the people involved, as they have seesawed from the extremely lax to the highly severe.

A doctor who badly damaged a patient's hand by giving him a drug he had already said he was allergic to, then didn't tell him about the mistake and continued with the treatment, and then falsified his records to protect himself, was let off with a fine of $10,000.

Another doctor, who started a caesarean section before sedation took effect, was suspended for nine months (reduced to five months on appeal to the High Court) and fined $10,000. Records were also falsified in this case.

In both cases, there was harm to the patient and dishonesty in falsifying the records. One tribunal was satisfied with a $10,000 fine, while the other added a nine-month suspension on top of the fine.

Was one too lenient or the other too strict?

It is difficult to say because there is no yardstick to measure these penalties against - unless it involves cases that have landed in the Supreme Court where professional judges decide on the correct penalty.

Now, you can't really fault the DTs. They are, after all, doctors who are not trained in such judgment.

And to make matters worse, as pointed out by the tribunal that recently made a call for proper guidelines, they get little help in deciding on the appropriate sentence.

That tribunal comprised Professor Walter Tan, a plastic surgeon in private practice; Dr Arthur Tan Chin Lock, a general practitioner; and Mr Bala Reddy, a legal service officer.

In that hearing, the SMC's legal counsel had asked the tribunal to suspend the doctor for three to four months for not immediately referring a patient to a specialist.

The doctor's lawyer, on the other hand, suggested that a $15,000 fine would be sufficient, as the doctor had every intention of making such a referral if the patient's condition had worsened, and had not gained financially from his actions.

There was no question of what had occurred and the doctor had pleaded guilty. The only question was what was the penalty he merited.

The tribunal asked the SMC's counsel about the factors that should be taken into account before imposing a suspension. They got little help there, as the reply was essentially: "There is no bright line as to when the suspension threshold is crossed."

This tribunal appears to have done painstaking research into previous cases before deciding on a $30,000 fine for the doctor.

But they bemoaned the "lack of guidance in Singapore as regard the sentencing of doctors in disciplinary proceedings".

They then urged the SMC to formulate guidelines on appropriate penalties. Their argument is cogent.

They said: " Different sanctions (for example, removal from the register, suspension, fine, censure) have different consequences on the public and on the medical practitioner.

"It is therefore important for there to be guidance based on case precedents and policy considerations so that medical practitioners may be aware of the severity of their misconduct.

"This will also ensure that sentences meted out by the DTs and courts are consistent with how the medical profession perceives instances of professional misconduct."

That the profession does not see eye to eye with some of the findings and penalties meted out by DTs can be seen in the recent petition to the SMC by more than 1,000 doctors. They had felt that the penalty handed down to a doctor was too harsh.

Something is wrong if so many doctors find that the medical watchdog body's judgment is too strict: either the body was indeed too harsh, or the doctors' assessment of wrongdoing was too lenient.

Setting up guidelines will help not just tribunals deciding on penalties, but also practising doctors who will know clearly what is considered acceptable behaviour and what isn't. It will differentiate slight infractions from serious mistakes.

These guidelines should not be set up by the SMC alone, but must be done in conjunction with the doctors themselves, so that there is a consensus on what is acceptable behaviour.

And the guidelines should be just that and not cast in stone, as every case may be different, with its own unique features. But the tribunal in judgment would need to make a case if it wants to deviate from the guidelines.

The SMC is not alone in the way it polices members of its profession. The Law Society does the same for lawyers. Both are professional bodies that sit in judgment of their peers when there is suspected wrongdoing. Both depend on precedents to determine penalties.

But it could be argued that lawyers are trained in this field, whereas doctors are not.

The tribunal noted that the medical watchdog in Britain has set out guidelines, and provided the rationale behind each sanction, and the broad factors which may lead to the imposition of each sanction.

Such clarity and transparency should remove the fear some doctors have that they might be so unlucky as to get a "hanging judge" who will impose a more severe punishment than is merited, and be assured that their cases would be dealt with fairly.

Disciplinary hearings, unlike normal court hearings, are carried out behind closed doors. Having a guide on the punishment for different levels of wrongdoing would align the penalties imposed by different DTs. This way, a more even-handed system of justice can prevail.

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Public Order (Amendment) Act 2017 - Public Order (Amendment) Act 2017 (Commencement) Notification 2017 (S 530 of 2017)

Copyright reform – What this means for the entertainment industry

Legislation
15 Aug 2017

MPA to set safety standards for vessels in inland waterways

Straits Times
03 Oct 2017
Nur Asyiqin Mohamad Salleh

Vessels plying inland waterways will have to meet new safety standards after changes to the Maritime and Port Authority of Singapore (MPA) Act were passed in Parliament yesterday.

The changes vest the MPA with the power to set standards for vessels operating in reservoirs and other inland waterways.

It will work with national water agency PUB, which licenses such vessels, to develop and implement these safety standards.

The move will enhance overall safety in reservoirs and inland waterways for all, said Senior Minister of State for Transport Lam Pin Min.

As the authority on safety standards for marine vessels, the MPA has the expertise and experience to assume the responsibility of setting benchmarks for vessels in inland waterways, he added.

The PUB will continue to issue permits to these vessels "for the purpose of water quality control, protection of reservoir infrastructure, controlling the types of activities in these water bodies, and preventing social disamenities".

Mr Louis Ng (Nee Soon GRC), who had spoken with environment group Waterways Watch Society, had sought greater clarity on the possible regulations.

"In view of the cost concerns that operators may face in possible regulations of engines, I hope that extensive consultations will be made with the Waterways Watch Society and other non-governmental organisations and companies, and that any regulations made will be done gradually," he said.

Mr Ng gave the example of how some vessel operators hope they can continue operating boats with four-stroke engines, instead of having to switch to battery or solar-powered vessels, which would rack up additional costs.

Dr Lam assured him that the PUB will continue to allow vessels with four-stroke engines to operate in inland water bodies.

Other changes to the MPA Act include removing the cap on the number of MPA board members to give the Transport Minister "greater flexibility" to appoint more members as he deems fit to bring in relevant experience and expertise.

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

Securities and Futures Act - Securities and Futures (Reporting of Derivatives Contracts) (Amendment No. 3) Regulations 2017 (S 529 of 2017)

The changing landscape of employment regulations and standards

Business
15 Aug 2017

Auditor-General gets enhanced powers

Straits Times
03 Oct 2017
Toh Yong Chuan

Non-government bodies that get funds to disburse or run services can expect government auditors to come knocking on their doors.

Parliament yesterday approved changes to the Audit Act that grant the Auditor-General powers to audit how these non-government bodies spend public funds.

"This is to ensure that public funds are used for the purposes for which they are intended and to enable accountability of public spending," Senior Minister of State for Finance Indranee Rajah said. Examples include voluntary welfare organisations distributing aid to needy families and autonomous universities giving student bursaries.

The work of the Government has expanded, and such funds that are disbursed through non-government bodies amount to "several billions of dollars" each year, making the new powers necessary, Ms Indranee said.

The new powers will allow the Auditor-General to conduct "follow-the-dollar" audits to trace where the public monies go, she added. This approach is "not unique" and already used by several national audit agencies overseas such as those in Australia and New Zealand.

However, Ms Indranee assured members that such sweeping powers will be used lightly.

"The threshold for triggering such audits is high, it can only be directed by the Minister for Finance and only if he is satisfied that it is in the public interest to do so," she said. "The audits will also only be limited to whether the funding terms and conditions have been complied with."

Two MPs spoke on the new law.

Mr Liang Eng Hwa (Holland-Bukit Timah GRC) said it was welcome because when non-government bodies disburse funds that are "further away from the direct view of government audit, the risk of improper or corrupt conduct would increase". But he was concerned the move would add to compliance costs.

Responding, Ms Indranee said the new law will not add to the regulatory burdens of these bodies because it will be used only sparingly.

Mr Louis Ng (Nee Soon GRC) asked how a new section of the law that requires individuals to give information to the Auditor-General - even if it incriminates him or her - would be applied.

Ms Indranee, who is also Senior Minister of State for Law, said a person currently cannot cite self-incrimination as a reason to refuse to give documents or information to the Auditor-General under the law. Stating this clearly can "avoid time-consuming negotiations" that will diminish the efficiency of the audit process, she added.


ENSURING PROPER USE

This is to ensure that public funds are used for the purposes for which they are intended and to enable accountability of public spending.

SENIOR MINISTER OF STATE FOR FINANCE INDRANEE RAJAH

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Terrorism (Suppression of Financing) Act - Terrorism (Suppression of Financing) Act (Amendment of First Schedule) (No. 2) Order 2017 (S 528 of 2017)

MAS issues new MAS Notice 652 on Net Stable Funding Ratio

Business
15 Aug 2017

Changes proposed to ease CPF transfers to parents, grandparents

Straits Times
03 Oct 2017
Joanna Seow

More people may soon be able to help their elders save for retirement.

Changes to the Central Provident Fund (CPF) Act have been proposed in Parliament to lower the minimum amount that members must have in their own CPF accounts before making transfers to their parents and grandparents.

Currently, CPF members must meet the prevailing Full Retirement Sum - which is $166,000 for CPF members aged 55 this year - before they can transfer extra savings to their parents' or grandparents' accounts.

Members aged above 55 need to meet the retirement sum specified for their cohort.

The changes proposed by the Ministry of Manpower (MOM) yesterday will allow CPF members to make such transfers if they have at least the Basic Retirement Sum - which is half the full sum - and a sufficient property pledge or charge to make up the rest of the full sum.

The ministry said in a press statement that the aim is to improve the retirement adequacy of CPF members.

Last year, the threshold to make transfers to a spouse's CPF account was lowered to the basic sum, instead of the full sum.

MOM also proposed changes to the Workplace Safety and Health (WSH) Act yesterday.

It wants the Commissioner for WSH to be allowed to publish "learning reports" on accidents, dangerous occurrences or occupational diseases being investigated, even before the investigation is over.

This would provide speedier warnings or recommendations to others on the potential dangers, as the reports can cover factors leading to the incidents or diseases; expert opinions; and recommendations to prevent such cases or minimise the likelihood of them recurring.

The reports will not be admissible as evidence in court, except for cases such as official inquiry commissions or committees.

The proposed amendments to the two laws are scheduled to be debated at the next sitting.

Mr Ron Ng, 41, a sales manager in the bioscience industry, feels that lowering the threshold for CPF transfers to elders would be a good move as it will give him more channels to help his parents grow their retirement savings.

The father of two added that he hopes the proposed changes can encourage filial piety among the younger generation. "If my children see what I'm doing for my parents, hopefully they will also pick up good values."

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Road Traffic Act - Road Traffic (Motor Vehicles, Registration and Licensing) (Exemption) (No. 3) Order 2017 (S 527 of 2017)

The Celebrity Halo Effect and passing off

Business
14 Aug 2017

Auditor files report with MOF over Yamada audit

Straits Times
02 Oct 2017
Jacqueline Woo

The external auditor of shiitake mushroom supplier Yamada Green Resources has taken the rare step of filing a report with Singapore's Ministry of Finance (MOF) in the course of auditing the S-chip company.

The report was filed under Section 207(9A) of the Companies Act, said Yamada in a notification to the Singapore Exchange last week.

This section of the Act relates to a situation in which an auditor, in the course of his duties, has reason to believe that a serious offence involving fraud or dishonesty is being or has been committed against the firm by its officers or employees.

Yamada said it is not privy to the contents of the report, although the auditor, BDO Singapore, has confirmed that it relates to certain inconsistencies in the group's financial records.

The report also covers other queries which were raised in the course of its audit of the group's financial statements for fiscal year 2017, as announced on Sept 5.

Yamada said it plans to obtain legal advice on the matter before deciding on its next steps.

At the same time, Yamada said it has been drawn to its attention that a formal notice issued by the Ministry of Finance of China and the China Securities Regulatory Commission stated that BDO China - the Chinese affiliate of BDO Singapore - was suspended from taking on "securities-related engagements" as at May 23, pending the implementation of certain rectification works.

The suspension was lifted on Aug 10.

"The board takes a serious view of this matter as audit work had been performed by BDO China for the group's PRC subsidiaries during the suspension period, and this may have potentially serious implications for the group," said Yamada.

It added that it is seeking advice and awaiting clarification from BDO Singapore as to whether it would be appropriate for BDO Singapore and/or BDO China to perform certain audit tasks in the light of the suspension notice, as well as the extent of any implications on the group in relation to the audit work performed by BDO China.

Yamada was referring to additional audit works to be carried out in relation to the inconsistencies that the external auditor had raised.

The setback is the latest in a series of unfortunate events that have beset Yamada.

Last month, it reported that a vehicle transporting finance documents and IT/computer hardware went up in flames somewhere in China's Fuzhou city on Aug 30, with the driver suffering minor injuries.

The vehicle was moving the documents and hardware from the group's research and development centre to its offices as part of an administration consolidation.

A preliminary check had found that many of the documents relating to the 2017 and 2018 financial years were among the papers affected or destroyed, Yamada claimed.

Consequently, management "commenced efforts to reconstruct or reproduce the documents affected but will require some time to do so". Under these circumstances, it said its audit for this year is expected to be delayed and the external auditor BDO may face certain difficulties in the finalisation of the audit of the group's financial statements for the year.

Yamada, citing unfavourable factors in its cultivation business, such as bad weather, rising labour costs and a slowdown in China's economy, flagged a loss for the fourth quarter and full year in a profit guidance on Aug 11.

Trading in Yamada shares has been suspended. They last changed hands at 33 cents on Aug 30.

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Road Traffic Act - Road Traffic (Motor Vehicles, Registration and Licensing) (Exemption) (No. 2) Order 2017 (S 526 of 2017)

Competition Appeal Board Upholds Financial Penalty Imposed on IPP

Judgments
14 Aug 2017

Lawyer penalised over $2.7m fund transfers for foreign entities

Straits Times
30 Sep 2017
Selina Lum

A lawyer of 18 years, who failed to do the necessary checks before carrying out a series of fund transfers totalling about US$2 million (S$2.7 million), was yesterday suspended from practice for two years and fined $100,000.

The punishment for professional misconduct was handed down to Mr Allen Chan Chun Hwee by the Court of Three Judges, the highest disciplinary body for the legal profession.

Mr Chan, the sole proprietor of C H Chan & Co, acted for two foreign entities that remitted money to his firm and then told him to transfer the funds to others.

In 2008, about US$200,000 was transferred for the Institute of Business Management and Financial Services. In 2011, about US$1.8 million was transferred for Investment Suisse.

Mr Chan took a 5 per cent cut from the remittances for his fees.

Eventually, he was asked by the bank why the client was effecting these transactions through him instead of directly to the recipients.

In 2014, an anonymous complaint was lodged with the Law Society, accusing Mr Chan of aiding money-laundering activities.

The Law Society, represented by Mr S.H. Almenoar, brought charges against Mr Chan for failing to verify the identities of the people behind the entities and for failing to obtain satisfactory evidence as to the nature and purpose of his clients' business relationships with the recipients.

After Mr Chan pleaded guilty to breaching professional conduct rules, a disciplinary tribunal found the case serious enough to be referred to the court for punishment to be meted out.

Yesterday, the court, led by Chief Justice Sundaresh Menon, said the breach was not merely a technical one but "a substantial breach by a solicitor who allowed his client to... take advantage of the cloak of respectability that was afforded by having the solicitor effect those transfers".

The court noted that Mr Chan had carried out the transactions without asking why he was being asked to do so "when this question cried out to be answered".

Due to a procedural issue, the court took into account only the 2011 transactions, from which Mr Chan earned fees of about US$90,000.

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Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 44) Notification 2017 (S 525 of 2017)

SGX to proceed with amendments to minimum bid size, forced order range and trading hours for the securities market on 13 November 2017

Business
14 Aug 2017

Judge rules court has no jurisdiction to revoke patents

Straits Times
30 Sep 2017
K.C. Vijayan

Past practice suggested by previous cases cannot trump law based on Patents Act

The High Court has ruled, in a departure from 13 previous cases, that it has no jurisdiction to revoke patents, when it rejected a move by a defendant to have one revoked.

The court noted that the 13 past decisions did not raise objections to the right of a defendant to counterclaim and revoke a patent on the grounds that it was invalid.

"With due respect and deference to those cases, the fact that there is a practice does not provide a basis to establish jurisdiction as a matter of law. Nor can practice trump law," said Justice George Wei in judgment grounds issued on Thursday.

Sun Electric, which sells solar energy to consumers here, had sued a holding company for a licensed electricity retailer and developer of rooftop photovoltaic systems.

Sun claimed the company, Sunseap, had breached Sun's patent, which was for a power grid system and a method of determining power consumption at building connections in the system.

Sunseap denied the allegations and, among other things, made a counterclaim to have the patent revoked.

Sun Electric then sought to strike out Sunseap's bid to revoke the patent, but failed before a High Court assistant registrar.

Through a team of lawyers led by M. Ravindran, the company then appealed to the High Court in June.

Mr Ravindran argued that the right to apply to revoke patents was confined to the Registrar of Patents and Sunseap could not start revocation proceedings in the High Court, not even by a counterclaim.

But defence lawyer Lau Kok Keng cited past cases in which such proceedings to revoke a patent had been brought to the High Court by counterclaim, and noted that academic opinion also supported such moves.

Justice Wei said the cases referred "implicitly suggest" the High Court may hear such cases but "it does not appear that this question was ever directly raised, contested or ruled upon in any of the cases. It follows that these decisions cannot be treated as precedents to determine the question of law at hand."

In his 81-page judgment grounds, Justice Wei analysed the relevant provisions of the Patents Act and found the High Court did not possess jurisdiction to revoke a patent, or by way of a counterclaim.

The judge allowed Sun Electric's appeal to strike out the bid by Sunseap to revoke its patent.

Justice Wei acknowledged the decision would draw public interest and be of concern, adding that there was much to be said to reconsider anew, at an appropriate time, the court's jurisdiction and patent procedures by the relevant law reform body and Parliament.

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

Sun Electric Pte Ltd v Sunseap Group Pte Ltd and others [2017] SGHC 23

Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 43) Notification 2017 (S 524 of 2017)

PDPC engages the public on proposed changes to the PDPA; submits notice of intent to join APEC CBPR and PRP systems

Legislation
11 Aug 2017

TT Int'l seeking legal advice on appointment of receivers for Big Box

Business Times
30 Sep 2017
Judith Tan

STRUGGLING consumer electronics retailer TT International has received a notice of appointment of receivers over its 51 per cent-owned subsidiary, Big Box Pte Ltd (BBPL).

The Singapore-based company said on Thursday evening that it is seeking legal advice on the appointment.

Angela Ee Meng Yen and Aaron Loh Cheng Lee have been appointed as joint and several receivers and managers in the Sept 27 letter issued by Ernst & Young Solutions LLP for OCBC as security trustee for the lenders under the BBPL facility.

TT International on Sept 7 said that the Singapore High Court had granted its moratorium application to restrict all creditors from taking further action against the company until Feb 11, 2018.

TT International, which owns and operates warehouse facilities, is being restructured under a scheme of arrangement since April 2010.

In August 2017, it suspended the trading of its shares with immediate effect to sort out its funding options amid creditors' demands.

Its subsidiary BBPL had received a letter from OCBC Bank with regard to a S$125 million loan facility granted in April 2013. The lenders were seeking the repayment of S$111.3 million by Aug 14and TT International sought an extension of time to repay its debt.

TT International said it is in talks with lenders to obtain funding of up to S$380 million that is required to refinance and repay the BBPL facility and its other payment obligations.

For the year ended March 31, TT International reported a loss of S$44.5 million, compared to a loss of S$33.3 million in the year-ago period.

Revenue slipped 12.1 per cent to S$304.5 million.

The company has applied for an extension of six months until Feb 14, 2018, to announce its unaudited financial statements for Q1 and Q2 FY2018, and this was approved by the Singapore Exchange.

TT International said on Thursday that the warehouse retail scheme business undertaking and operations carried out at BBPL's Big Box building are unaffected by the appointment of the receivers and managers.

Its efforts to pursue refinancing options to provide a total solution for the group, including BBPL's liabilities, financing and restructuring of the existing indebtedness of the company and working capital requirements of the group, are also continuing.

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

Housing and Development Act - Housing and Development (Precincts for Upgrading Works) (Home Improvement Programme) (No. 8) Order 2017 (S 523 of 2017)

New FIDIC contracts for infratructure projects, Japan's Protection of Personal Information Act, Private equity transactions in Vietnam

Business
11 Aug 2017

The public prosecutor, politics and the rule of law

Straits Times
29 Sep 2017
Walter Woon

Separate the two functions of the Attorney-General and let the prosecutorial function be undertaken by an independent candidate appointed by the President

The Attorney-General occupies the hottest legal seat in Singapore. This is because the Attorney-General is the public prosecutor. Under Article 35(8) of the Constitution, the Attorney-General "shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence".

In recent times, we have seen the president of a country, which is not shy about wagging its finger at others while lecturing about the rule of law, threatening to remove prosecutors and special counsel when investigations cut too close to the bone for comfort.

Closer to home, there has also been loose chatter online and off that question the Attorney-General's decisions to prosecute. This is based on a misunderstanding of the Attorney-General's function as public prosecutor. Ignorant criticism is unfair to the Attorney-General and his officers. Misinformation, deliberate or otherwise, erodes confidence in the system of justice.

It is necessary first to understand the nature of prosecutorial discretion. As a preliminary matter, a distinction must be made between a prosecution and a civil suit. When a person defames someone else, for instance, the "injured" party (the plaintiff) may seek compensation by means of a civil suit.

The public prosecutor is not involved in this. The commencement of civil litigation is a matter solely for the plaintiff. No one can stop him from suing. If he wins, he gets compensation (which does not have to be a substantial sum). If he loses, he pays the defendant's costs.

Criminal defamation is an offence under the Penal Code. It is up to the Attorney-General to decide whether or not to lay charges. This is termed a prosecution, in contrast to civil proceedings. The object is not to obtain compensation for an injured party but rather to protect society's interests by imposing some sort of punishment, often as a deterrent to others.

As provided in the Constitution, the Attorney-General has discretion over this. The accused person (defendant) and the injured party (complainant) are not involved in the decision. The defendant might tender an apology and offer to pay damages to the complainant, but the public prosecutor may decide to press on regardless if he thinks that there is a public-interest issue involved. The complainant cannot "drop the charges", contrary to popular misconception.

Not every offence is prosecuted in court. If it were mandatory to prosecute every time an offence is committed, the courts would be jam-packed with jaywalkers and litterbugs. This is where prosecutorial discretion comes in. The public prosecutor can decide whether or not to prosecute. The question is, on what grounds?

It is obviously not possible for the Attorney-General to look at every individual file to decide whether to prosecute.

In practice, that is left to deputy public prosecutors (DPPs). There are currently two prosecution divisions in the Attorney-General's Chambers: the Criminal Justice Division, and the Financial and Technology Crime Division. The legal officers posted to these two divisions are designated DPPs.

Generally, investigatory agencies (for example, the Central Narcotics Bureau, the Corrupt Practices Investigation Bureau, the police, to name a few) send investigation papers to one of the prosecution divisions. A junior DPP will then make recommendations as to whether charges should be laid, and, if so, what charges. The recommendations are considered by more senior DPPs -the heads of the various directorates, the chief prosecutor of the division, the Solicitor-General, the Deputy Attorney-General. The most serious cases end up on the desk of the Attorney-General, where the buck stops. In most cases, however, the buck stops far down the line from the Attorney-General.

STEPS TOWARDS PROSECUTION

In deciding whether or not to prosecute, there are, in general, four steps:

• Step 1: Find out what happened. This is the job of the investigatory agencies. It is the stuff of novels, TV and films. The DPP can ask for clarifications or further investigation.

• Step 2: Ascertain if an offence has been committed and, if so, what offence. This is a legal question - it is the reason DPPs have to go through four years or more of law school. Laypersons are seldom, if ever, qualified to appreciate the intricacies of Singapore criminal law.

• Step 3: Can the elements of the offence be proven in court? The prosecution must prove the case against the accused beyond reasonable doubt. It is not for the accused to prove his innocence.

At Step 3, the DPP has to decide whether there is enough evidence that will stand up in court. It is often possible to piece together what happened with a fair degree of certainty. However, there are cases where witnesses will refuse to testify in open court. In other cases, a witness may implicate others when questioned, but when it comes to actually testifying, he will have an attack of selective amnesia.

If the DPP thinks that the witnesses cannot be relied on, the prosecution will probably be dropped. If he decides to carry on, there is a chance that the judge may not be convinced beyond reasonable doubt. In that case, the defendant is acquitted.

Again, contrary to popular misconception, a verdict of "not guilty" is not synonymous with "innocent". In some cases, it just means that there is a reasonable doubt. Thus, for instance, in a rape case the man may contend that the "victim" consented. The woman may be equally vehement in denying that she did consent. If the judge cannot be sure, then the accused is found "not guilty", even though it may, in fact, have been rape.

Assuming that we have got past Steps 1, 2 and 3, the final step is: Should there be a prosecution at all?

TO PROSECUTE OR NOT PROSECUTE

The public prosecutor must decide whether it is in the public interest that the matter should be laid before a judge in open court. He has discretion over this.

This is where the biggest problems arise. For good or ill, the public prosecutor must make a judgment call. There are many reasons why a decision may be taken not to prosecute.

The offence may be a trivial one, not worth tying up prosecutorial and judicial resources over. A person who drops torn-off tabs from parking coupons on the ground may be guilty beyond reasonable doubt of an offence but, in most cases, this will not end up in court. Composition fines may be imposed instead.

Sometimes, the prosecutor may decide that the accused should be given a second chance. For example, if two teenagers are caught having consensual sex, this is an offence if the girl is under 16 years of age. But would it be in the public interest to prosecute a 17-year-old boy for having sex with his 15-year-old girlfriend?

The prosecutor may (note, "may", not "will") decide that, under the circumstances, a conditional warning is better. If the boy does not heed the warning and repeats the offence, he will be prosecuted for the previous offence as well as the new one. But if he mends his ways, then there is no prosecution.

WHEN POLITICS MAY CLOUD THE PICTURE

Politically charged cases are often a source of controversy.

Suppose that an opposition politician is charged with deliberate incitement of racial unrest. It is a given that his supporters will scream that the prosecution is politically motivated.

When one analyses the issue dispassionately, if the accused is indeed guilty of deliberately inflaming racial feelings, it does not matter whether the decision to prosecute is politically motivated. But the fact that it is perceived to be so undermines the credibility of the public prosecutor, especially if ruling party politicians are not similarly treated.

The public is not stupid. People have a sense of justice. That sense is outraged if double standards are practised - a lenient one for the rich and politically influential, a stricter one for ordinary persons and the strictest one for oppositionists. The public prosecutor has to maintain a scrupulous neutrality so as to avoid being accused of partiality.

Take a purely hypothetical example: Say that a powerful minister is accused of embezzling a substantial sum of money from a government-linked company. How does he avoid retribution? Bribing judges is risky - this can backfire spectacularly. Interfering with investigations is more promising, but in the age of social media, this may not stop the process. The best bet is to nobble the prosecutor.

There are many ways to pressure the public prosecutor. In some places, the threats are physical. I attended a conference of prosecutors in Canada some years ago. Several of my colleagues said that they carried guns for protection. One colleague from a Caribbean country did not even live there - his life would have been worth nothing in his home country.

But physical threats are crude. There are better ways.

The favoured way, as seen in some countries elsewhere, is to appoint as Attorney-General someone who can be counted on to bend when pressure is applied. If the Attorney-General decides that charges will not be laid, no one can challenge that decision. Not even the Chief Justice can compel him to prosecute, legally and practically.

So the question is: What can be done to strengthen the system? We accept it as a given that judges should be politically neutral and not take instructions from politicians.

I would argue that the same must hold true for the public prosecutor. Indeed, one should remember that if the public prosecutor declines to prosecute, the case will never reach a judge, even if there has been a blatant breach of the law.

TWO ROLES OF THE A-G

Many people mistakenly think that the Attorney-General is part of the political executive. This may have been so in colonial days, but under our present Constitution, it is not so.

Unlike in many other countries, the Attorney-General of Singapore is not a party politician or a member of the Cabinet. This mistake arises because the Attorney-General has two roles: first, that of the Government's legal adviser and, second, public prosecutor.

When giving advice on civil cases by or against the Government, on legislation, on matters of international law, the Attorney-General is the Government's Attorney-General. He is obliged to defer to the Cabinet when it comes to issues pertaining to civil litigation, international law and the drafting of legislation. If he is instructed to fight a case, he must follow his client's instructions just like any other lawyer, even if he thinks the case cannot be won or that it is ill-advised.

But when it comes to his role as public prosecutor, the Attorney-General is not the Government's Attorney-General. He is given discretion over prosecutions by the Constitution. It cannot be the case that he should just prosecute if a senior minister wants that to be done.

The rule of law is not the natural state of human society. For most of history, in most societies, the system has been rule by the powerful. The rule of law cannot be imposed by force or governmental decree. Citizens must accept it and actively cooperate in upholding it. Prosecutions are a tangible manifestation of the rule of law.

When the prosecutorial machinery is abused for political ends, ordinary citizens' faith in the rule of law is shaken. If people do not believe that the system is fair, they will subvert it. Building a society based on the rule of law takes a generation and more - tearing it down can be the work of a single electoral term.

A quick look at the state of the world will show that pressure on prosecutors is common, even in countries that consider themselves to be shining examples of the rule of law.
It is foolish to wait until a hurricane hits you to strengthen your roof. Fix it now, when the sun is shining and the dark clouds have not gathered.

If one accepts the premise that the public prosecutor should be independent, the first step is to separate the two functions of the Attorney-General. As the Government's legal adviser, he must take instructions from the Cabinet, whatever his own judgment may be. Take this function away from the Attorney-General. Give it to the Solicitor-General, for example. The three non-prosecution divisions of the Attorney-General's Chambers - civil, legislation and international affairs - can come under the Solicitor-General or whoever is designated as the Government's legal adviser.

The prosecutorial function should be left with the Attorney-General, who would have the two prosecution divisions in his charge. It is necessary for the Attorney-General to be the public prosecutor. A certain stature is required to resist politicians, foreign diplomats, domestic pressure groups and non-governmental organisations, not to mention the assorted people who try to influence prosecutions. In the legal hierarchy, the Attorney-General ranks immediately after the Chief Justice.

The next question is: Who should appoint the Attorney-General? At present, the Constitution provides that the Attorney-General is appointed by the President on the advice of the Prime Minister. The President does not have to accept the Prime Minister's advice, which is the major safeguard against blatant abuse by appointing a political hack to the post.

Since the President has an independent mandate from the people and constitutional discretion, he (or she) should be the one to make the decision, ideally in consultation with the Chief Justice and the incumbent Attorney-General. This will ensure that, optically, the Attorney-General is not seen to be a political creature of the ruling party.

This is a vital consideration. All too often, when someone who opposes government policy is prosecuted, accusations will be made of political motivations.

Even where it is clear that the accused has broken the law (for example, by making a nuisance of himself in public), there will always be those who will say that the Government is trying to silence the opposition.

People posing as human rights activists will attract the knee-jerk support of foreign human rightists. Prosecute a journalist or blogger for insulting religions and you can be sure that there will be howls at home and from abroad about political persecution and restriction of freedom of speech.

These criticisms will be flung even if the Attorney-General has acted in good faith and the politicians have scrupulously avoided trying to influence him. This is grossly unfair to the Attorney-General and his officers, not to mention the politicians themselves. If the public prosecutor is truly independent and seen to be so, it will go a long way towards refuting such criticisms.

Finally, the Attorney-General's term of office should be long enough to be useful. The Constitution originally envisaged that the Attorney-General would serve until the age of 60.

This provision was amended to allow the appointment of an Attorney-General for a fixed term. The norm in recent years has been two to three years.

Frequent changes of the Attorney-General are disruptive and not good for the morale of the DPPs. Different attorneys-general have different views about how prosecutorial discretion should be exercised. For the sake of stability, I would suggest a five-year term, renewable by the President at his or her discretion.

Some may ask, why change the system at all? If one believes that all is well and that the system will not buckle in future under the pressure of an unscrupulous powerful executive , then fine, don't change anything.

But if the system can be abused, then the right thing to do is to address the weakness before it does become a problem. A quick look at the state of the world will show that pressure on prosecutors is common, even in countries that consider themselves to be shining examples of the rule of law.

It is foolish to wait until a hurricane hits you to strengthen your roof. Fix it now, when the sun is shining and the dark clouds have not gathered.


  • The writer, a Senior Counsel, is a former Nominated MP who was also attorney-general and public prosecutor of Singapore from 2008 to 2010.

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Constitution of the Republic of Singapore - Constitution of the Republic of Singapore (Responsibility of the Minister for Social and Family Development) Notification 2017 (S 522 of 2017)

IPOS and MinLaw consult on proposed changes to Singapore’s patents regime

Legislation
11 Aug 2017

Pakistani duo to hang for body parts in suitcase murder after Apex Court dismisses appeals

TODAY
29 Sep 2017
Valerie Koh

SINGAPORE — Dismissing the appeal of two convicted Pakistani murderers, the apex court on Thursday (Sept 28) shot down the arguments of their defence lawyers, noting that they had not gone further in disputing the prosecution’s case.

Each of the accused had tried to pin the blame on the other, but the Court of Appeal ruled that the specific role they each played in the crime was immaterial, since they had the common intention to kill Muhammad Noor, 59.

On June 11, 2014, Rasheed Muhammad and Ramzan Rizwan murdered Muhammad at a lodging house along Rowell Road in Little India.

Motivated by money, they suffocated the man with a shirt and strangled him with a string from a pair of Punjabi trousers. They also stole S$6,000 from him.

The duo got rid of the body by dismembering it, and stashing the torso and legs into two suitcases. They had planned to dispose of the suitcases at a Muslim cemetery in Kampong Glam, but when the wheels of one suitcase broke, they decided to leave it at Syed Alwi Road, also in Little India.

It was discovered hours later by an 81-year-old man.

Despite their attempts to blame each other for the murder, the High Court sentenced both Rasheed, 46, and Ramzan, 28, to death in February.

Video footage and photographs had showed the duo “acting as a team” by going to Mustafa Centre together to buy a saw and two suitcases for the grisly disposal of the body.

During the appeal heard by Judges of Appeal Andrew Phang, Tay Yong Kwang and Steven Chong on Thursday, Ramzan’s lawyer Wong Seow Pin argued that his client did not commit the act and had in fact withdrawn from its participation.

That prompted Justice Phang to ask why Ramzan helped with the disposal of the body, if that was indeed the case. “Ramzan is uneducated. He’s unsophisticated ... he’s a simple person,” said Mr Wong, implying that his client had been helping Rasheed out.

Waving the argument aside, the judge said that Ramzan’s actions were consistent with the plan to get rid of evidence.

Mr Wong also argued that his client had been depressed during the recording of his police statements, and that had affected his evidence.

Justice Phang said: “When people are guilty, it’s possible that they may also become depressed.”

Mr Wong Siew Hong, representing Rasheed, also tried to deflect blame from his client by stating that the latter had no motive for the murder, and was simply “at the wrong place at the wrong time”, as he had shared a room with the victim.

But Rasheed had admitted to participating in the murder in his police statement, said Justice Phang.

“If you put yourself in his shoes, what would you have done? Would you have said, ‘(Ramzan), you cannot do that but I will assist you anyway,’” said the judge.

In dismissing the appeal, Justice Phang said that the specific role played by each man was immaterial.

“(The murder) was clearly executed by two persons, given the complete absence of any defensive injuries on the deceased,” he added.

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Telecommunications Act - Telecommunications (Designated Telecommunication Licensees) (Amendment) Notification 2017 (S 521 of 2017)

Caught between a rock and a hard place, a Hong Kong-Based accounting firm agrees to revocation of its US registration with the PCAOB

Business
10 Aug 2017

Extra $700m in projects to boost construction sector

Straits Times
29 Sep 2017
Rachel Au-Yong

Govt bringing forward more contracts over next two years, including upgrading works

More estates will get a makeover and new walkways will be built across Singapore, as the Government seeks to give a fillip to the beleaguered construction industry.

It is bringing forward $700 million worth of public amenities projects over the next two years.

This is on top of another $700 million in contracts it had announced in February. They included upgrading works for community centres, sports halls and police stations.

The contracts are generally worth $100 million or less each - jobs that will benefit small and medium-sized enterprises (SMEs), National Development Minister Lawrence Wong said yesterday.

Speaking at the Singapore Contractors Association Limited's (Scal) 80th anniversary dinner, he said the Government is aware of the challenges the construction sector faces.

The sector has seen four consecutive quarters of contraction due to a drop in private-sector demand, even amid pressure to move away from relying on cheap foreign labour and instead invest in costly technology.

Mr Wong said: "We hope these projects will help the industry as a whole. We will continue to monitor the industry closely and adjust the pace of public-sector projects if necessary."

The Government - the industry's biggest client - has been spending more on infrastructure. It expects to spend between $20 billion and $24 billion this year, up from last year's $15.9 billion.

In all, the public sector would contribute about 70 per cent of the total construction demand this year.

But much of the funds have gone to mega infrastructure projects like the Cross Island Line and Changi Airport Terminal 5, which SMEs say tend to be beyond their reach.

There are about 8,000 small and medium-sized contractors here, according to the Building and Construction Authority (BCA).

Scal president Kenneth Loo said that while the extra $700 million in projects may not be sufficient to give all firms a lift, it was a "good gesture to inject some positive sentiment into a depressed industry".

Yesterday, Mr Wong spelt out in greater detail other changes in the pipeline for the industry.

The tender process for public projects - such as for new Housing Board flats - which has come under the spotlight over cost-cutting and safety concerns, will better emphasise quality over price.

The price component now makes up about 70 per cent of a tender evaluation. Mr Wong said the non-price percentage will be raised to 40 per cent to 60 per cent come January, with the Government looking at a contractor's past performance, productivity and safety records to assess quality. If successful, the revised criteria will also apply to civil engineering projects.

The Government will also allow the number of supervisors required at a site to be reduced in the early and late stages of building - a move Mr Wong said would not compromise safety.

To kick in later this year, it will benefit about 180 of the 300 large-scale projects and save the industry "several millions of dollars in compliance costs", the BCA said.

Finally, a committee has been set up to work towards implementing a collaborative contracting model, where all parties - from architects and engineers to contractors and facility managers - conceptualise a project from the start. This minimises errors, wastage and redesign issues.

The committee is expected to complete its work by end-2019.

"We are keen to encourage this sort of collaboration, so we hope that you will work with us to make this work better for everyone," said Mr Wong.

SEE TOP OF THE NEWS: Construction firms upbeat about new tender criteria

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Medical and Elderly Care Endowment Schemes Act - Medical and Elderly Care Endowment Schemes (Approved Institutions) (Amendment No. 9) Notification 2017 (S 520 of 2017)

A Convenient Truth: The Court of Appeal clarifies the forum non conveniens doctrine in the era of the Singapore International Commercial Court

Judgments
10 Aug 2017

Construction firms upbeat about new tender criteria

Straits Times
29 Sep 2017
Rachel Au-Yong

Construction firms are hopeful that new tender criteria that place greater emphasis on quality rather than price will raise industry standards and minimise price wars.

The quality component of a tender will now be given greater weighting - 40 per cent to 60 per cent, Minister for National Development Law-rence Wong said yesterday. This is up from the usual 30 per cent. This means the Government will scrutinise a firm's past performance, productivity and safety record more tho-roughly before awarding a contract.

Mr Tony Goh, project manager for ventilation provider Big Ass Solutions, said his firm favours the new criteria as it provides "costlier but better-quality products".

Excel Precast CEO Tan Bian Tiong said the change would especially benefit firms which are more technologically inclined, and also incentivise others that have yet to take the leap. "You are disadvantaged only if you are doing things the conventional, unproductive way, or have a really bad safety record," he said.

Agreeing, Nanyang Technological University engineering professor Robert Tiong said the new criteria, which will kick in next January, will prevent low bids that may compromise safety or are even loss-making.

This, coupled with another announcement yesterday that the Government is bringing forward another $700 million in public-sector projects over the next two years, will help an industry hurt by dried-up private-sector demand, he said. "With a larger volume of projects in the market, smaller firms have more bites of the cherry. With the added boost, they may be more willing to invest in new equipment or upgrade their skills. It is a win-win for all," he said.

While firms were pleasantly surprised by the added number of projects coming onstream earlier, some worried it might be too little, too late. Ms Wendy Lai, assistant general manager for material supplier Laticrete South East Asia, said her company can take advantage of the extra boost only towards the end stages of a project, as the firm mainly provides finishings like paint coatings and soundproofing materials.

For many firms, the next one to two years will be critical as they enter "survival mode", said Mr Kenneth Loo, president of the Singapore Contractors Association Limited (Scal), which represents some 3,000 firms.

"Construction is a cash-flow business - there needs to be continuity for firms to keep on growing. So more is never enough, but at least it is a good gesture to inject some positive sentiment into a depressed industry," he said.

At yesterday's Scal gala dinner, Mr Loo announced the building of a Scal construction hub. One of its goals is to bring other trade associations under its roof to promote better collaboration in the industry.

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

Medical and Elderly Care Endowment Schemes Act - Medical and Elderly Care Endowment Schemes (Medifund Committees) (Amendment No. 9) Order 2017 (S 519 of 2017)

Singapore releases public consultation paper on proposed amendments to PDPA and releases forward thinking privacy initiatives

Legislation
08 Aug 2017

Tributes pour in for retiring Judge of Appeal Chao

Straits Times
28 Sep 2017
Selina Lum

Ministers, judges laud Justice Chao Hick Tin and his contributions at valedictory reference

Judge of Appeal Chao Hick Tin, the only judge to have served under all four post-independence Chief Justices, will retire today on his 75th birthday, after over 50 years in public service.

Yesterday, a rare valedictory reference - last held in 1990 for retiring Chief Justice Wee Chong Jin - was conducted to honour Justice Chao and his contributions.

It was attended by Deputy Prime Minister Teo Chee Hean, Law Minister K. Shanmugam as well as fellow judges and lawyers.

Mr Shanmugam, Chief Justice Sundaresh Menon, former deputy prime minister S. Jayakumar, Attorney-General Lucien Wong, Law Society president Gregory Vijayendran, Supreme Court Registrar Vincent Hoong and Judge of Appeal Andrew Phang gave speeches paying tribute to him.

They lauded Justice Chao for his well-known attributes, such as his humanity, patience and kindness, as well as his practical wisdom, clarity of thought and the courage to do what he believed was right.

A book of essays by 17 contributors, titled A Judge For The Ages, which focuses on Justice Chao's work as a judge in diverse areas of law, was also launched at the event. It was edited by Justice Phang and Professor Goh Yihan, dean of Singapore Management University's School of Law.

Mr Shanmugam revealed how Justice Chao, as a 25-year-old legal officer in the Attorney-General's Chambers (AGC), played a role in Singapore's long-term water security when he attended a United Nations Conference on the Law of Treaties in 1968, following Singapore's separation from Malaysia in 1965.

During discussions, the Malaysian representative acknowledged that "some treaties might be so fundamental to the very existence of states that they simply could not be dispensed with, whatever political differences might arise", said Mr Shanmugam.

The representative said the treaty under which Malaysia had to supply a certain quantity of water daily to Singapore "could not be terminated or suspended between the two states for any political reason".

Mr Shanmugam said Justice Chao, on hearing this and realising how important it was as water from Malaysia was linked to Singapore's very survival, reiterated that the Malaysian representative had said that "even the severance of diplomatic relations... would not affect the water agreement between Singapore and Malaysia".

In doing so, Justice Chao had put on official record Malaysia's express confirmation that the water agreements cannot be terminated, whatever political differences might arise, said Mr Shanmugam. And the importance of having that acknowledgement, "as a matter of UN record", was that it has given Singapore added confidence whenever Malaysia took issue with the water agreements.

"We owe Justice Chao a deep debt of gratitude."

Justice Chao obtained his bachelor's degree in law from University College London in 1965, and his master's degree a year later.

He began his legal career in 1967 in the AGC.

He was appointed judicial commissioner in 1987 and elevated to a High Court Judge three years later. He was appointed a Judge of Appeal in 1999.

He was made Attorney-General in 2006, returning to the Bench as Judge of Appeal and vice-president of the Court of Appeal in 2008.

As a legal officer advancing Singapore's interests in the international arena for 20 years, Justice Chao was also involved in the Pedra Branca dispute from the late 1970s, and was a key member of the team that negotiated the UN Convention on the Law of the Sea.

Professor Jayakumar, who was then law minister, recounted how Justice Chao played a pivotal role in fighting to ensure Singapore's navigational interests.

Despite the many capacities in which Justice Chao has impacted Singapore's legal history, it will be his 28 years as a judge that will likely be remembered most vividly, said Chief Justice Menon.

"It was as a judge that he epitomised the human face of justice, and what a lovely face it was; it was as a judge that he contributed a vast tract of jurisprudence that will have an immense and lasting influence on Singapore law for decades to come; it was as a judge that he expressed his deep love for the law most visibly," he added.

Speakers also shared light-hearted anecdotes.

Prof Jayakumar revealed how Justice Chao is an excellent cook who would rustle up fantastic meals after working sessions, while he and the others, including Ambassador-at-Large Tommy Koh, washed the dishes.

Attorney-General Wong related how Justice Chao, who was part of the Singapore delegation for the Asean Law Association conference, was left behind in the Jakarta airport because he chose to go shopping while the others were ushered to the VIP lounge.

"Unflappable as always, he just took the next flight back, with his shopping no less."


SAFE REFUGE

In the 1980s, appearing in some of our courts could be like being caught in a tempest. So the calmness and kindness in Justice Chao's court was like getting a safe refuge.

LAW MINISTER K. SHANMUGAM, who was a young lawyer in the 1980s taking on his first significant High Court case when he appeared before Justice Chao, then a judicial commissioner.

PROTECTING SINGAPORE'S INTERESTS

I admired the way he would doggedly protect and promote Singapore's interests. If ever there was a situation where I needed a tough comrade in arms, Chao Hick Tin would be that person.

FORMER DEPUTY PRIME MINISTER AND LAW MINISTER S. JAYAKUMAR, who has worked together with Justice Chao in the context of international negotiations and diplomacy.

MOST LOVED

I do not exaggerate when I say that Justice Chao is the most loved of all the judges... I hope that my colleagues will not take offence when I say that none of us comes close in this particular regard.

JUDGE OF APPEAL ANDREW PHANG

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Business
08 Aug 2017

'I would not do anything differently': Justice Chao Hick Tin

Straits Times
28 Sep 2017
Selina Lum

If he could choose his career path again, Judge of Appeal Chao Hick Tin said he would not have it any other way.

"If I were to start my working life all over again, I would not do anything differently," he said in a written reply to questions from The Straits Times.

"I have had an enriching and fulfilling 50 years in the public service, with many unique experiences along the way, such as being involved in the long-drawn negotiations (from 1974 to 1982) on the UN Convention on the Law of the Sea."

Asked to name significant cases he has handled, Justice Chao, who has penned more than 600 judgments, said two cases came to mind, not because of the legal issues raised but because of the length of the trial and the animosity between the parties.

One was a dispute he heard in the 1990s between a daughter-in-law and a mother-in-law, while the other was the divorce of a celebrity couple and the related matters.

He also cited the recent split decision in the murder case of Jabing Kho, in which a five-judge Court of Appeal ruled 3:2 that the death sentence should be imposed, as the accused had attacked the victim in a savage and brutal manner that displayed a blatant disregard for human life. Justice Chao wrote the majority decision.

Loved by lawyers for his patience and kindness, Justice Chao is known for giving lawyers a good hearing.

"As I see it, the task of the judge is to hear the parties and decide the matter fairly and impartially, having regard to the evidence before the court and the applicable law.

"I feel that the court, especially a trial court, ought to give the parties adequate time to establish their respective cases. This is not to say that the court should always indulge a party's pointless pursuit of a particular line of questioning or a particular legal point. The court must always seek to strike a balance, bearing in mind time and resource constraints," he told ST.

In his speech at his valedictory reference yesterday, Justice Chao credited this philosophy to a piece of advice that has shaped the way he has acted as a judge all these years.

"The advice was this: Let counsel develop his case; don't anticipate and be slow to stop counsel from adducing evidence. Even on a point of law which you may think you are familiar with, always listen to what counsel has to say first."

In his speech, he noted that his 50 years in public service have had their ups and downs.

"Of course, there were times when dispensing justice in a case seemed difficult or elusive. Still, as judges, we always have to do our level best."

Post-retirement, he said his immediate plan was to travel.

"I have spent a good 50 years in the public service. I only hope that I have in some small way contributed to the development of our law and our legal system," he told ST.

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

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Judgments
08 Aug 2017

A success story in resolving sea boundary disputes

Straits Times
28 Sep 2017
Tommy Koh

Timor-Leste and Australia chart the way through conciliation in a first under the UN Convention on the Law of the Sea

We live in a very troubled world. There are conflicts and disputes between and among states in every region of the world. One category of disputes which is hard to resolve is disputes between states over their land and sea boundaries. The recent tension between China and India is a reminder that their land boundaries have not yet been resolved. In the South China Sea, there are disputes between China and several Asean countries on their competing sovereignty and maritime claims.

Viewed against this background, the announcement by the conciliation commission in Copenhagen on Sept 1, that there had been a breakthrough in the conciliation proceedings on maritime boundaries between Timor-Leste and Australia, was happy news. I wish to explain in this column the facts of the case, the nature of the conciliation proceedings, the elements of the package deal agreed upon by the two parties and some lessons learnt.

There is a lot of confusion in the media and in the minds of the public about the peaceful settlement of disputes. The United Nations Charter refers to the following modalities for the peaceful settlement of disputes: negotiation, fact-finding, mediation, conciliation, arbitration and judicial settlement.

When a country becomes a party of the UN Convention on the Law of the Sea (Unclos), it can make a declaration that its preferred mode of dispute settlement is arbitration or the International Court of Justice or the International Tribunal for the Law of the Sea. If it fails to make a choice, it is deemed to have chosen arbitration. Dispute settlement under Unclos is compulsory. This is why Malaysia was able to institute arbitral proceedings against Singapore in 2003 without our consent. Malaysia did not need Singapore's consent because our consent was given when we became a party of the convention.

Australia and Timor-Leste are neighbouring states, separated by the Timor Sea at a distance of approximately 300 nautical miles. Timor-Leste (East Timor) was a Portuguese colony from the 16th century until 1975. On Nov 28, 1975, a political party, Fretilin, declared the territory's independence. Nine days later, it was invaded and occupied by Indonesia. In 1976, Indonesia declared East Timor as its 27th province. In 1999, the people of East Timor voted overwhelmingly for independence. From 1999 to 2002, it was administered by the UN Transitional Administration in East Timor (Untaet). It became independent on May 20, 2002.

There are several issues in the dispute between Timor-Leste and Australia. The first main issue concerns boundaries: the boundaries of the two countries' exclusive economic zones (EEZs) and their continental shelves. Timor-Leste had, from 2003, requested that Australia negotiate those boundaries but to no avail. The second main issue concerns the development arrangements in a field called Greater Sunrise which, in Timor-Leste's view, belonged to Timor-Leste and not Australia.

COMPULSORY CONCILIATION

While dispute settlement under Unclos is compulsory, states can make a declaration to exclude from Unclos arbitral or judicial proceedings certain categories of disputes, including maritime boundary disputes. However, these disputes are subject to compulsory conciliation. On March 22, 2002, about two months before Timor-Leste became independent, Australia made a declaration, excluding from Unclos arbitral and judicial proceedings disputes concerning its EEZ boundaries and continental shelf boundaries. Timor-Leste is therefore unable to initiate arbitral or judicial proceedings against Australia on their sea boundaries.

On April 11 last year, Timor-Leste surprised Australia by notifying Canberra that it was initiating compulsory conciliation proceedings against Australia. Timor-Leste also informed Australia that it was appointing Judge Abdul Koroma and Judge Rudiger Wolfrum as its conciliators. On May 2 the same year, Australia informed Timor-Leste that it had appointed Dr Rosalie Balkin and Professor Donald McRae as its conciliators. The four conciliators, with the consent of the two countries, chose Ambassador Peter Taksoe-Jensen as the commission's fifth conciliator and chairman.

Australia objected to the commission's competence. In response, the commission held a special hearing on competence from Aug 29 to 31 last year. The following month, on Sept 19, the commission unanimously decided that it had competence. It also decided that it would aim to conclude its work within 12 months from Sept 19, as prescribed by Article 7 of Annex V of Unclos.

This is the first occasion in which Annex V of Unclos has been invoked. It may therefore be useful for us to find out more about conciliation under Unclos. My first point is that under Unclos, we have voluntary conciliation and compulsory conciliation. My second point is that the conciliation commission is not a court of law. It is not the commission's job to rule on the legal rights of the two parties. The function of the commission is to "hear the parties, examine their claims and objectives, and make proposals to the parties with a view to reaching an amicable settlement".

PACKAGE DEAL

At their meeting in Copenhagen on Aug 30 this year, the two parties accepted a package deal proposed by the commission. The package agreement addresses their maritime boundary in the Timor Sea, the legal status of the Greater Sunrise gas field, the establishment of a special regime for Greater Sunrise, the development of the oil and gas resource, and the sharing of the resulting revenue.

It is the intention of the commission and the two parties to embody the agreement in a legally binding treaty. The two parties will meet at The Hague next month to sign an agreement on the text of the treaty. The treaty itself will be signed subsequently, possibly at the UN, and witnessed by UN Secretary-General Antonio Guterres.

What lessons can we learn from this case? There are several. First, countries which have disputes about their sea boundaries, or have competing claims about territorial sovereignty, should seriously consider using conciliation to solve their disputes. Unlike arbitration and judicial settlement, conciliation is non-adversarial and the outcome is consensual and win-win.

Second, you should choose your conciliators wisely. In this case, we have five excellent conciliators. The chairman of the commission, Ambassador Taksoe-Jensen, drove the process with energy, determination and fairness. The Unclos deadline for the commission to produce a report within 12 months helped to put pressure on everyone.

Third, the two countries were very well represented. Timor-Leste's chief negotiator is Mr Xanana Gusmao, the father of the nation. Its agent, Minister Agio Pereira, is cool, wise and solid. Its legal team includes two top legal minds, Professor Vaughan Lowe and Sir Michael Wood. The same is true on the Australian side. Mr Gary Quinlan, the Deputy Secretary of the Department of Foreign Affairs and Trade, made an important contribution. Sir Daniel Bethlehem and Professor Chester Brown are a good match for Prof Lowe and Sir Michael.

Finally, and perhaps, the most important factor, is that there was the political will on both sides to find a just and durable compromise. Both sides were willing to give and take. Without the requisite political will, the case would not have succeeded. We must congratulate the governments of Timor-Leste and Australia for setting a good example for the world.

• The author, an ambassador-at-large at the Ministry of Foreign Affairs, served as president of the Third UN Conference on the Law of the Sea in 1981 and 1982, and is currently the chairman of the board of governors of the Centre for International Law at the National University of Singapore.


...there was the political will on both sides to find a just and durable compromise. Both sides were willing to give and take. Without the requisite political will, the case would not have succeeded. We must congratulate the governments of Timor-Leste and Australia for setting a good example for the world.

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ABS issues updated guidelines for outsourced service providers

Business
07 Aug 2017

Bosses who starve their maids may face stiffer terms

Straits Times
28 Sep 2017
K.C. Vijayan

10 months' jail in recent case not 'benchmark'; one may be charged under different legislation

Employers who starve their maids may face stiffer jail terms than the 10 months a couple in a recent high-profile case received after their conviction in March last year.

Chief Justice Sundaresh Menon said the couple would have been handed a "significantly higher" jail term had they been charged in 2015 under the Penal Code instead of the Employment of Foreign Manpower Act (EFMA).

Under the Penal Code, voluntarily causing hurt carries a maximum of two years' imprisonment and voluntarily causing grievous hurt (VCGH) carries a maximum of 10 years' imprisonment.

His comments come in judgment grounds earlier this month explaining why he set aside Chong Sui Foon's three-month jail term and her husband Lim Choon Hong's sentence of three weeks.

Lim, who was also fined $10,000 in the State Courts, and Chong were sentenced to 10 months' jail each after the prosecution's appeal in the High Court on Sept 15.

The Chief Justice, who heard the appeal, said a 10-month jail term "should not be misconstrued as saying that such a punishment would always be sufficient for the type of offending conduct that is presented here, even if a charge had been presented under a different provision".

He said if the prosecution had proceeded with a charge of voluntarily causing hurt, "the same level of culpability would likely have resulted in a significantly higher sentence because of the wider sentencing range that would have been afforded the court in that situation".

"Even more is this the case when one factors in the enhanced penalties for offences against domestic maids," said the Chief Justice.

He noted the case had been initiated by the Manpower Ministry and by the time the public prosecutor "took carriage of the matter", some time had passed and the public prosecutor had used prosecutorial discretion to pursue the case under the EFMA.

The couple had pleaded guilty in March last year to a single charge of starving their maid over 15 months, causing her weight to plummet from 49kg to 29.4kg. Lim, 48, a freelance trader, had failed to provide the maid Thelma Oyasan Gawidan with adequate food while Chong, 48, a housewife, had abetted him.

During the appeal, Deputy Public Prosecutor S. Sellakumaran called for the maximum 12 months' jail under EFMA, citing the extent of abuse which denied her basic human right to adequate nutrition. But the defendants' lawyer Suresh Damodara urged the court to see the issue in the context of some mental illness issues affecting Chong.

The Chief Justice pointed out that there was no causal link between the mental illness and the couple's conduct. He said Chong's conduct "seemed to defy explanation".

He declined to impose the maximum 12 months after taking into account the $20,000 compensation paid to the victim and that it was not shown that they had acted in order to be cruel."It is imperative in this milieu of circumstances that we as a society ensure that these foreign workers are treated decently and accorded the sort of guarantees of human dignity that we would accord to any human being," he said.

A spokesman for the Attorney-General's Chambers said "it would have preferred to proceed on VCGH charges against the accused persons". But time had passed and the victim had asked to return home, among other things."In future cases involving maid abuse, the prosecution will look at the facts of each case and may charge the accused under different legislation, depending on the circumstances."

SEE Ill-treating maids: Call for more efforts

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Tripartite Standard on Employment of Term Contract Employees - What employers have to be aware of

Business
07 Aug 2017

Former AGC building an icon of High Street

Straits Times
28 Sep 2017
Lim Ming Zhang

With its mercantile roots, High Street, the first street to be built in Singapore, lived up to its name in the 1970s, with barbers, coolies and street food hawkers peddling their wares along the Singapore River.

Nestled in this bustling part of town is the former Attorney-General's Chambers (AGC) building, located between the former Parliament House (now The Arts House) and the now-demolished Hallpike Street.

Today, the building, which was gazetted as a national monument in 1992, serves as the Parliament Secretariat Office Block and is part of Parliament House. The national monument is connected to the newer Chamber Block through a linkway that was built in the 1990s.

The earliest use of the building's site dates back to 1839, when a previous structure there was used by a court.

The two-storey building underwent a major construction and had its facade renovated in 1906. The result, which is the most visible part of the building facing the National Gallery Singapore, remains today.

Veteran legal officer Jeffrey Chan, 66, principal senior consultant at AGC, started working there in 1973. The Attorney-General is the chief legal adviser to the Government and its public prosecutor.

Mr Chan recalled that the first skill he and his peers had to learn when they first worked there had nothing to do with the law - it was learning how to park their cars in the narrow carpark spaces at the adjacent Hallpike Street, which was located where the Parliament courtyard is today.

The office had no more than 50 people working there at that time. But it had a vibrant hinterland in the hub of activity at the mouth of the Singapore River.

"In the early 1970s, the area was buzzing. It was full of street life - you had the tongkang boats in the Singapore River, you had all these people carrying bags of rice up and down, you had hawkers, you had deliverymen," said Mr Chan.

One character he vividly remembers was an old Chinese barber who provided more than haircuts.

"He worked in the open, with a dirty mirror and an old-style barber chair. But haircuts weren't the only service he provided - he also helped to dig your ears with the help of a standing light bulb. A lot of old people patronised his services."

In its history of more than a century, the building has hosted a number of government departments, such as the Government Printing Office around the turn of the 20th century and the Public Works Department (PWD) from the 1930s to 1970, before the AGC took over in 1971.

MEMORIES

I wish that more of these places where people feel familiar and have intangible experiences with will be conserved, not just those buildings that have national significance.

MASTER'S STUDENT IN PUBLIC POLICY FOO MINGYEE, on preserving heritage.

It then became part of the Parliament House when its construction was completed in 1999 at a cost of $108 million. It was restored and renovated to cater for a new and larger library, including meeting rooms as well as the secretariat's office. The roof was replaced and rebuilt.

"Being a conservation building, the design of the library interiors follows likewise, reflecting an elegant and classic character throughout. However, to keep a contemporary feel to the space, heavy details and mouldings had to be avoided," said Mr Tan Chee Wee, 66, who was a deputy director of the former PWD.

"Instead, simple, clean lines and materials in classic proportions take their place, creating a harmonious blend of the past and the present," added Mr Tan, who is now a director at CPG Consultants, a subsidiary of CPG Corporation, which is the corporatised entity of PWD.

He was involved in the building's preservation when he oversaw the construction of the new Parliament House from 1994. The white facade with its elaborate details stands out compared with the newer block of the Parliament House, which carries a more modern "colonnade" design.

Mr Chan said that even other old buildings in the area, such as the Empress Place Building, which now houses the Asian Civilisations Museum, are "totally different - that is a lot simpler, a lot more spartan", than the High Street building.

Dr Imran Tajudeen, an assistant professor at the department of architecture at the National University of Singapore, said: "The baroque ornamentation, which includes features like windows framed by a semi-circular recess, is uncommon in other public buildings of colonial Singapore, though we may find such ornamentation on some ornate shophouse facades."

Some of the other features, such as the curved pediments on the corner extensions adorned with oval shield motifs, are inspired by neo-classical architecture. These motifs can also be found in the nearby Victoria Theatre and Victoria Concert Hall.

While the AGC was there, many important legal cases were prepared, such as the Commissions of Inquiry into the Spyros industrial disaster of 1978 and the Sentosa cable car collapse of 1983, and the "gold bar" murders of 1971.

Much of the facade has been preserved, although the building was not in good shape in the 1970s. It was in need of maintenance, and security was also an issue.

Mr Chan, who was formerly deputy solicitor-general, said: "The building was becoming a little bit sad for us at that time... It was an old building that needed very substantial renovations; it leaked very badly, especially at a time when we were starting to buy computers."

Mr Chan also said the building was "very exposed", especially to public order incidents such as riots, as the back door was always open and anyone could have come in.

"But I would have been very sad if the building had been demolished, and sadder still if it were to be put to some other use that had nothing to do with the law," he added.

Happily, that is not the case, as the building continues as a part of Parliament.

Master's student in public policy Foo Mingyee, 25, said that the building was situated in what used to be the "European town" of Singapore, with hot spots such as Aurora Department Store for the young and fashionable at the junction of High Street and North Bridge Road back then.

"I wish that more of these places where people feel familiar and have intangible experiences with will be conserved, not just those buildings that have national significance."

Dr Imran thinks that the presence of historical buildings remains important because they "evoke the character of a city's earlier eras".

"Hence, even if only the facade is retained, it contributes to a layered sense of a city's past."

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SLW Commentary
07 Aug 2017

Taxman cometh for the digital economy

Straits Times
27 Sep 2017
Yasmine Yahya

From imposing GST on e-commerce, to proposals for a bandwidth tax, the tax authorities worldwide are looking at ways to bring digital companies within the tax net

Since the financial crisis of 2008 and 2009, the tax authorities worldwide have had their work cut out for them, growing national coffers to fund the rebuilding of their economies.

This job has been made tougher by the explosion of the digital economy over the same period, as global tax rules were traditionally made for the bricks-and-mortar world.

Digitalisation has led to the emergence of new business models and increased cross-border flow of goods and services, while removing the need for a company to have a physical presence in a particular country to conduct business with its residents. These trends complicate the work of figuring out who should pay taxes, where and how much.

The problem has become so pressing that the Organisation for Economic Cooperation and Development (OECD) has several working groups studying the different ways that the world's tax rules could and should be tweaked in the face of a growing digital economy.

TAXING THE SHARING ECONOMY

Perhaps nowhere is the conundrum more stark than in the sharing economy. Companies such as Uber and Airbnb do not need a physical presence or employees in a particular country before offering their services there.

Uber, a ride-sharing platform, manages its overseas operations in the Netherlands. So when someone in Singapore takes an Uber ride, Uber's cut of about 20 per cent of the fare is sent to a network of Dutch offshore companies. No income is recorded here. After deducting operational expenses, that 20 per cent revenue is then sent to a Bermuda-registered offshore company that holds the licence to Uber's intellectual property. The money is sent as royalty payment, which under Dutch law is not taxable.

A European Parliament report on tax challenges in the digital economy said that Airbnb has a similar tax structure which helps it pay very little in taxes in the United States and elsewhere. It said: "Airbnb takes a 13 per cent commission for each rental of spare rooms advertised on its website. As Airbnb uses the complex tax systems in Ireland and offshore tax havens like Jersey, it avoids paying taxes in the US or elsewhere.

"It manages to do so by assigning its software IP to a subsidiary in Jersey and shifting profits to the tax haven by royalty payments from its Irish unit."

Ernst & Young Solutions' tax services partner, Mr Chai Wai Fook, noted that these companies can rightly argue that they are compliant with existing tax rules.

"The current tax rules have not kept pace with the rapid developments in technology and the digital economy."

Take ride-sharing apps platforms for example. The real economic activity being conducted is by the drivers who are bringing in the revenue, so getting the drivers to pay income tax is one part of the equation.

The Inland Revenue Authority of Singapore (Iras) is certainly looking closely at this - a Sunday Times report earlier this month reported that Iras had approached two ride-hailing firms, Uber and Grab, to work out an arrangement for their drivers to file tax returns automatically to ensure they are not under-declared.

But the more difficult part is the fact that ride-sharing platforms also take a cut from these drivers, but that particular activity is not covered by the tax rules.

The OECD is working on these questions, and Mr Chai is hopeful that it will come up with guidelines that will not only deliver a fair and equitable basis of taxation, but also provide certainty to businesses while embracing the disruption that technology would bring.

TAXING THE DATA COMPANIES

Another business model that has taken on a grand scale in the digital economy is the monetisation of personal data.

As the European Parliament report noted, the value generated by using personal data in online digital giants such as Google and Facebook is hugely profitable.

These two companies capture data on their users to better target ads at them. As a result, Facebook has 16 per cent of all global digital ad revenue, while Google has 33 per cent.

However, it is a challenge to calculate the value created and therefore how much to tax these firms in each country where their websites are accessible - how do you attribute value to data created by users free of charge?

It also does not help that Google, Facebook and the like also have complex tax structures, much like the ones Airbnb and Uber have.

Some countries have begun coming up with solutions. Last year, India introduced an equalisation levy on online advertising revenue by non-resident e-commerce companies earned in India.

Under the rules, a 6 per cent levy is deducted from the amount paid to a non-resident who does not have a permanent establishment in India, for services such as online advertisement, any provision for digital advertising space, or any other facility or service for the purpose of online advertisement.

France, meanwhile, is considering taxing revenues of tech giants such as Google and Facebook based on their bandwidth, rather than on the basis of their reported profits in France. France has also suggested attributing profits to jurisdictions where the users of social media services are located.

There are concerns among tax experts that if each country begins implementing its own set of tax laws on such digital activities, things could become chaotic.

"We don't want a situation where companies end up being double or triple taxed for the same economic activity, so there needs to be global coordination, which the OECD is attempting," said PwC Singapore digital tax leader Tan Ching Ne.

"We do grapple with this in Singapore too. How do we update our legislation while being competitive and continue being an attractive place for companies to do business?"

TAXING E-COMMERCE

The rise of e-commerce has certainly been a boon to deal hunters, but has not been such a blessing to the tax authorities, who traditionally have collected goods and services tax (GST) only from locally-registered businesses.

A Singapore resident who downloads software from an American provider or buys a coffee table from Taobao in China, for example, does not pay GST on those purchases.

This might soon be addressed. In this year's Budget, Finance Minister Heng Swee Keat said Singapore is studying how it can implement the GST on foreign companies that sell goods and services to Singapore residents over the Internet.

A Deloitte report from December noted that the issue is not just one of lost revenue, but has wider economic repercussions, as it has also created an uneven playing field between domestic GST-registered suppliers and overseas suppliers who are not registered for GST.

"At the same time, it has presented incentives to taxpayers to structure their business arrangements by shifting offshore to take advantage of this uneven level playing field. By doing so, it could also mean more job losses in the domestic retail industry."

PwC's Mr Koh said the Government may be studying how to bring overseas online vendors within the tax net by making them register for GST in Singapore if they sell to Singapore consumers.

"Making the overseas vendor account for GST on their business-to-consumer sales of music, movies and subscriptions is an effective way for the Government to collect the tax rather than to try collecting it from the consumer.

"At the same time, we also understand that the Government is studying the taxation of cross-border business-to-business services that are received by financial institutions such as banks and insurance companies."

This would be done under what is known as a "reverse charge mechanism", which, according to a report by law firm Dentons Rodyk, works by allowing (or sometimes requiring) the customer to account for the tax on supplies received from foreign suppliers.

Countries such as Japan, South Korea, New Zealand and Australia have begun levying GST on foreign companies that conduct online transactions with their residents.

So foreign companies, regardless of where they are physically located, must register with the tax authorities in these countries and pay GST or value added tax (VAT) accordingly, if they want to sell goods and services to the residents there.

South Korea, a leader in all things digital, imposed the VAT on physical and digital goods and services bought over the Internet from July 2015.

Australia has taken a more gradual approach, implementing a first step in July this year, when the GST was applied to the sales of imported services and digital products - streaming movies, legal services - to Australian consumers. From July next year, GST will also apply to sales of physical goods worth A$1,000 (S$1,072) or less that are imported by consumers into Australia.

PwC's Asia-Pacific indirect tax leader, Mr Koh Soo How, said: "I think the approach that Singapore would adopt is the 80-20 rule. If we can get the 20 per cent of online retailers that make up 80 per cent of sales to register with Iras, that would be good enough, as we can't possibly get every single overseas vendor to register."

One could argue that the past decade or so has been something of a free pass for digital players, who have been able to take advantage of legal loopholes to pay very little tax on their extremely lucrative businesses. But as the saying goes, there are only two certainties in life - death and taxes - and it is only a matter of time before the taxman catches up.


There are concerns among tax experts that if each country begins implementing its own set of tax laws on such digital activities, things could become chaotic.

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