28 August 2016
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MAS prosecutes its first 'front-running' case for alleged insider trading

Business Times
26 Aug 2016
Anita Gabriel

Two dealers and a remisier are accused of having profited from trades made with the benefit of advance market information

[Singapore] IN the first "front running" case being prosecuted for insider trading here, the Monetary Authority of Singapore (MAS) slapped more than 300 charges on two dealers from First State Investments Singapore (FSI) and a remisier with UOB Kay Hian for alleged offences involving counters listed in Singapore and abroad.

The charges mark the second MAS-led criminal prosecution since the joint-investigation regime by the regulator and the Commercial Affairs Department was launched in March last year to strengthen enforcement against market misconduct.

Corporate lawyer Robson Lee of Gibson, Dunn & Crutcher, describing this as a landmark case, said it will give Singapore courts the chance to decide whether the practice of front running is an insider-trading offence under the Securities and Futures Act.

Front running is the practice of a stockbroker trading a security in his own account by taking advantage of advance knowledge of pending orders from other parties.

FSI dealers Leong Chee Wai and Toh Chew Leong and UOB Kay Hian remisier E Seck Peng Simon were charged with 115, 111 and 107 offences respectively under the Securities and Futures Act.

If found guilty, they may be fined up to S$250,000 and/or jailed up to seven years.

Based on the charge sheets, the alleged offences were committed on 49 Singapore-listed counters including Allgreen Properties, CapitaLand, City Developments Ltd, DBS Group and Keppel Corp; another 51 counters listed abroad (including in Australia, Taiwan, Malaysia and Hong Kong) were also involved.

Under the first charge, Leong, 47, was accused of possessing price-sensitive inside information on FSI's intended trades and procuring Simon to purchase 548,000 and short sell 290,000 Allgreen Properties shares through Simon's personal trading account in UOB Kay Hian.

This happened between July 4, 2007 and Feb 21, 2008, before the fund manager (FSI) had completed its intended order.

Allgreen Properties is the Singapore property arm of tycoon Robert Kuok; it was listed on the Singapore Exchange in 1999 and taken private in 2011.

In another charge, Leong is alleged to have possessed inside information on FSI's intended trades in Allgreen Properties' shares and conspired with Toh to procure Simon to purchase 743,000 and short sell 2.23 million shares in the property counter through Simon's trading account between Aug 28, 2008 and Aug 17, 2009. Bail amounts were fixed at S$300,000 each for Leong and Simon and S$250,000 for Toh.

Mr Lee of Gibson, Dunn & Crutcher said: "There has been considerable public debate in other financial markets, such as in Wall Street, whether front running, while unethical, is illegal."

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Faisal bin Tahar v Public Prosecutor - [2016] SGHC 125

MAS releases revised guidelines on outsourcing risk management

Business
25 Aug 2016

CJ rebukes lawyer for questioning morality of sex crime victim

TODAY
26 Aug 2016
Valerie Koh

SINGAPORE — A defence lawyer who insinuated that a minor suffered no trauma from a sexual crime as she was in a sexual relationship with someone else at that time drew the ire of Chief Justice Sundaresh Menon on Thursday (Aug 25)

The judge questioned the need to take a potshot at the victim’s morality, as he allowed the prosecution’s appeal against the sentence of two years’ probation imposed on 18-year-old Ong Jack Hong for the offence of sexual penetration of a minor. Ong, a full-time National Serviceman, was resentenced to reformative training.

Ong met the then-14-year-old victim — who cannot be named to protect her identity — in a pub at Golden Mile Complex in December 2014. She was drinking alone in the pub belonging to her boyfriend’s mother. After some time, she called her boyfriend because she was drunk and wanted him to send her home. But he did not respond.

Ong and his friends subsequently spotted her and chatted her up. When she went to the toilet outside the pub, Ong, then 17, approached her and started getting intimate with her. He carried her to a stairwell and had sex with her.

In his judgment grounds released in March, District Judge Mathew Joseph said he had imposed two years’ probation even though Ong had just completed a probation term — for mischief by fire — because of the purportedly consensual nature of the sexual penetration, among other factors.

On Thursday, CJ Menon said that, under the law, minors are deemed to be incapable of giving consent in sexual offences. “She was not only vulnerable by reason of her age, but in addition, she was drunk. She wanted to go home, but had not done so because the boyfriend she called had not come to fetch her,” he added.

Defence lawyer Cheryl Ng from law firm Amarick Gill LLC, who was acting pro bono, highlighted her client’s family woes. His parents are divorced, and his father, who has custody, has cancer.

Arguing that there were relatively few aggravating factors in this case, Ms Ng pointed out that the victim had a sexual relationship with her boyfriend, prior to the offence. “She has to be protected, but in this case, the victim has not suffered trauma,” she added.

The lawyer’s remarks prompted CJ Menon to interrupt the proceedings to seek clarifications. “It was not clear to me just what the point was that was being made by this reference ... In the final analysis, even if it was true that she had not been traumatised, that would not be a mitigating factor ... It was simply not clear to me why it was thought necessary to put forth a point that appeared to be directed at the morality of the victim?” he said. “That is seldom helpful in the context of sexual offences.”

The prosecution also disagreed with the district judge’s portrayal of the assault. “The victim lacked the capacity of a sober person to fully appreciate what was happening. The DJ’s mischaracterisation of the offence as consensual not only flies in the face of the admitted facts, it also poses a grievous injustice to the young victim by painting her as a lustful teenager who was a willing party to the act of sexual penetration,” said Deputy Public Prosecutor Charlene Tay Chia.

Probation was unsuitable for Ong, given the lack of “committed parental guidance”, she added, pointing to how Ong’s father had a “lax attitude”, shown in how he had blamed the victim for looking older than her age and for patronising a pub.

CJ Menon ruled that the district judge had erred in not calling for a reformative training suitability report prior to sentencing. For youthful offenders, reformative training — which lasts between 18 months and three years, and includes foot drills and vocational training and counselling — remains a rehabilitative option, he added.

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Telemedia Pacific Group Ltd and another v Yuanta Asset Management International Ltd and another - [2016] SGHC(I) 03

Surviving Brexit: What we should be asking about IP protection in the UK and EU, following the recent referendum

Business
25 Aug 2016

Food delivery business comes under scrutiny

Straits Times
26 Aug 2016
Janice Heng & Tiffany Fumiko Tay

Trade watchdog concerned over adverse effects of exclusive tie-ups with restaurants

Some online food delivery providers are offering exclusive tie-ups with restaurants, but Singapore's competition watchdog has flagged this as a potential concern.

If a provider becomes dominant, this practice could allow it to shut out smaller players - in breach of Singapore's competition laws, it said yesterday.

For now, the Competition Commission of Singapore (CCS) is not taking action as the fledgling food delivery industry is "vibrant" with new entrants competing aggressively. But it will continue to monitor the market closely "as such exclusive agreements can be problematic in future", it added.

Online food delivery providers have proliferated here over the past year, with services including Deliveroo, FeastBump, Foodpanda, Gourmet To Go and UberEats.

One provider has been investigated by the CCS after complaints of alleged anti-competitive practice.

The "sizeable player", which was not named, was found to have entered into exclusive agreements with certain restaurants, which prevented the eateries from using other providers.

After investigations began, the provider stopped introducing exclusive agreements.

But others have been using such agreements to gain market share, said the CCS.

The CCS ceased its investigation as it found such agreements have not harmed competition. CCS chief executive Toh Han Li noted fierce competition, with "market shares changing significantly".

However, if a provider does become dominant, then having such exclusive agreements risks infringing competition law, he added.

If the law is infringed, CCS can impose penalties of up to 10 per cent of a firm's turnover for each year of infringement, up to a maximum of three years.

One likely indicator of dominance is a market share of 60 per cent or above, said the CCS in response to queries. It also looks at other factors such as barriers to entry and buyer power when deciding if a firm is dominant.

There are no available estimates of market share, but bigger players include Foodpanda and Deliveroo.

Foodpanda, which lists over 1,300 restaurants, has exclusive contracts with some, such as seafood chain Manhattan Fish Market. Foodpanda did not confirm or deny if it had been investigated.

For burger joint MEATliquor SIN, having an exclusive contract with Deliveroo comes with being a franchise of British chain MEATliquor, which uses Deliveroo in Britain.

Some restaurants argue that exclusive tie-ups have their advantages.

Vietnamese eatery Pho Stop went exclusive with Deliveroo after using it for a while. Said owner Bryan Wong: "Even if I didn't have an exclusive agreement, I would still stick with one company."

Using multiple delivery providers could risk mix-ups, he said.

Deliveroo confirmed that it was not the firm in the CCS statement.

"If some restaurants believe that they can benefit further through exclusive arrangements, we work with them on those arrangements," said a Deliveroo spokesman, adding that most of its 1,700 partners are not on exclusive terms.

One delivery service without exclusive agreements is What to Eat, which has more than 200 partners.

Said business development director Nikola Rudic: "We know of the existence (of such agreements) because we have encountered some issues before when approaching restaurants."


EASIER WITH ONE

Even if I didn't have an exclusive agreement, I would still stick with one company.

MR BRYAN WONG, who owns Vietnamese eatery Pho Stop, noting that using multiple delivery providers could risk mix-ups

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Public Prosecutor v Zaini bin Mohamed Noor - [2016] SGHC 123

[CHN] Regulations for the administration of mobile internet application information services

Commonwealth
25 Aug 2016

E-payment rule changes: MAS wants feedback

Business Times
26 Aug 2016
Siow Li Sen

[Singapore] THE Monetary Authority of Singapore (MAS) is inviting feedback on the proposal to update rules on e-payments.

It released a consultation paper on Thursday on proposed changes to the payments regulatory framework and establishment of a National Payments Council.

Singapore's payment regulations currently cut across two pieces of legislation: the Payment Systems (Oversight) Act and the Money-changing and Remittance Businesses Act, which govern stored value and remittances respectively.

With technological advances and the advent of fintech (financial technology), the lines between payments and remittances are blurring; new payment providers are emerging and some do not fit neatly into these categories, MAS said.

It proposes to bring these regulations under a single framework that will provide for the licensing, regulation and supervision of all payment services, including stored-value facility holders, remittance companies, and virtual currency intermediaries.

Last week, MAS managing director Ravi Menon announced a vision of Singapore moving to an e-payments society and updating the rules to boost consumer protection. A National Payments Council will also be set up to coordinate key initiatives, he added.

The proposed framework aims to strengthen standards of consumer protection, anti-money laundering, and cyber security related to payment activities, while facilitating innovation and system interoperability, MAS said.

The National Payments Council is to coordinate key initiatives such as promoting interoperability and adopting common standards. The council will draw its members from among users and providers of payment solutions, and foster collaboration among stakeholders to promote and drive industry payment solutions, MAS said.

The public consultation will last from Aug 25 to Oct 31.

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Public Prosecutor v Agbozo Billy - [2016] SGHC 122

SHC: When will the court order a minority buyout?

Judgments
24 Aug 2016

Battle of words over review of VPN access

Straits Times
26 Aug 2016
Irene Tham

Copyright holders slam gateway to unlicensed content; technologists blame business models

A war of words has broken out between technologists and copyright holders following news that the local authorities are reviewing the legality of virtual private network (VPN) technology.

The contention centres on the use of VPNs by consumers in Singapore to access blocked content meant for overseas markets.

The Internet Society (Singapore), which promotes the use of the Internet, said that VPN is a critical technology for securing corporate access to information over the Web.

"We need to ensure that we do not throw the baby out with the bathwater," said Mr Bryan Tan, president of the non-profit organisation and also a lawyer from Pinsent Masons MPillay.

On Tuesday, the Ministry of Law called for public feedback, hoping to update the Copyright Act, which was last updated significantly in 2004.

It wants to know whether laws governing the circumvention of digital locks on copyrighted work need to be updated. These restrict access to or use of the content, and can be circumvented by technologies, including VPN.

The existing Copyright Act is silent on whether using VPN technology to access blocked content is legal, even though the law principally prohibits circumvention.

The International Federation of the Phonographic Industry, which represents more than 1,000 producers and distributors of sound recordings, argued that VPN users should not be allowed to circumvent geographical blocks.

"Content is licensed at a different price for different regions due to different business conditions and issues like censorship," said Mr Ang Kwee Tiang, its regional director for Asia. "Moreover, VPN is also the gateway to unlicensed content from overseas."

Some technologists pointed to the need for old business models to be changed instead.

Straits Times reader John Hunter wrote in to say: "The idea that technology to protect people's information should be restricted in order to make it easier for huge companies to keep old business models in place should be ridiculed."

Mr Michael Tan, 45, a market observer and director of an IT company, said that copyright holders can already enforce their rights based on existing laws.

For instance, if video streaming service provider Netflix lacks the licence to provide certain content in Singapore, copyright holders can sue Netflix for selling unlicensed content to Singapore viewers.

"Why even consider banning VPN if remedies are available? To help save legal costs for copyright holders at huge public cost for Singapore?" said Mr Tan.

ViewQwest chief executive Vignesa Moorthy said that if piracy is a concern, lawmakers here can make downloading blocked pirated content a criminal offence - as is the case in India.

Earlier this month, Internet service providers in India warned subscribers that downloading content blocked by the Indian government could attract a three-year jail term.


NO TO CIRCUMVENTION

Content is licensed at a different price for different regions due to different business conditions and issues like censorship. Moreover, VPN is also the gateway to unlicensed content from overseas. ''

MR ANG KWEE TIANG, regional director for Asia for the International Federation of the Phonographic Industry.

CHANGE BUSINESS MODELS

The idea that technology to protect people's information should be restricted in order to make it easier for huge companies to keep old business models in place should be ridiculed. ''

MR JOHN HUNTER, a Straits Times reader.

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Pereira Dennis John Sunny v Faridah bte V Abdul Latiff - [2016] SGHCR 09

Mental Capacity Act: Amendments partially in force; provisions on professional donees and professional deputies not yet in force

Legislation
24 Aug 2016

Adequate disclosures required for 'death spiral' convertibles: SGX

Business Times
26 Aug 2016
Kenneth Lim

Shareholders must be informed of the risks and directors must give opinion on proposed deal

[Singapore] COMPANIES that plan to issue "death spiral" convertible bonds must adequately inform shareholders about the risks, and directors must give a fiduciary opinion on a proposed deal, Singapore Exchange (SGX) chief regulatory officer Tan Boon Gin said on Thursday.

Writing in the market operator's Regulator's Column, Mr Tan noted that such convertibles, which carry floating conversion prices pegged to a fixed discount formula and therefore have the potential to create runaway dilutive scenarios, "can have significant negative effect on the company and its existing shareholders".

The convertibles, which must receive specific approval from shareholders, therefore require that companies fully and explicitly explain the risks, structural features, seniority and fees of the convertibles, and in a way that is easily understood.

"The company must send shareholders a circular written in plain English and without overly legalistic jargon, before the shareholder vote," Mr Tan wrote. "In it, the company must make clear to shareholders how such a bond could cause a downward spiral of the share price and result in massive dilutions detrimental to investors. The company must state the 'floor', or minimum conversion price and the maximum number of shares which could be issued on exercise."

Directors must also give an opinion that the issuance is in the best interest of the company and shareholders, and "explain to shareholders the alternative sources of financing considered before arriving at the decision to issue the convertibles".

SGX may reject applications to issue such instruments if disclosures do not meet those minimum standards.

Beyond ensuring adequate disclosures, however, SGX is not in the business of assessing the merits of such convertibles, Mr Tan stressed. The instruments are ultimately a source of capital, the appropriateness of which is a commercial decision best left to companies and shareholders, Mr Tan stressed.

"Investors should read the circular carefully to understand the significant risks associated with it, and pose questions to the company and its directors on the matter," he wrote. "Shareholders will have to balance the rationale for the issuance of the convertible and the use of proceeds against the risks described in the circular when deciding whether to vote in favour of the issuance."

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Public Prosecutor v Mohd Taib bin Ahmad - [2016] SGHC 124

Construction law in Singapore: A special case - SCL Annual Conference 2016

Business
24 Aug 2016

Stepdad cleared of sex-abuse charges

Straits Times
26 Aug 2016
Selina Lum

Girl - then 13 - had accused him of molesting her, but later tells court that she lied to police

A 42-year-old man was yesterday acquitted of four charges of sex offences against his stepdaughter, after the High Court found reasonable doubt in the truth of the girl's accusations.

The main evidence for the prosecution was two statements the girl had given to the police in reporting her stepfather for molestation, in which the 13-year-old detailed how he had violated her at home one afternoon on July 27, 2012.

Her allegations led to four charges against the accused - three counts of committing an indecent act with a child and one count of sexual assault by penetration.

But when she took the stand to testify during his trial earlier this year, the girl, now 17, recanted her allegations.

When the prosecution tried to elicit her testimony to set out her case, she either said she could not remember the event in question, or claimed that nothing happened.

Cross-examined by the defence, she said she had lied to the police.

She said a week before the trial, she confirmed to the police that her first statement was true. But when the trial started, she decided to stop lying and that her stepfather should not be punished for something he did not do.

While she said she had made up the incident, she could not say what had led her to lie about him.

Her mother and an aunt also testified that she had made false accusations about others in the past: for instance that her paternal grandfather had hit her with a stick, her maternal grandmother had thrown a stool at her, and that she had been beaten up by some girls in school.

The girl's mother, who is financially dependent on the accused, denied putting pressure on her daughter to change her testimony.

In a written judgment yesterday, Justice Woo Bih Li said it was clear she "had chosen not to give any substantive evidence during examination-in-chief for reasons best known to herself and not because she could not truly remember".

The judge noted that even though she was allowed to refer to her statements to refresh her memory, she did not want to read them.

Prosecution witnesses including the aunt, a school teacher and the girl's best friend said she told them what her stepfather did. But the girl either said she could not remember or had lied to them.

The accused, who was on bail, denied committing any of the alleged acts. He surmised that his stepdaughter had falsely accused him because he had rejected her feelings for him and she wanted attention from her mother.

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

Public Prosecutor v BAU [2016] SGHC 170

Chancery Law Corp v Management Corporation Strata Title Plan No 1024 - [2016] SGHC 121

Personal data protection – Prohibition on transfer of data out of Singapore

Business
19 Aug 2016

Most companies not ready for new standard on lease accounting: survey

Business Times
26 Aug 2016
Michelle Quah

[Singapore] A HEFTY new lease accounting standard is due to come into effect in 2019, but the majority of companies here have not even started preparing for it, a new study by the Institute of Singapore Chartered Accountants (Isca) and Nanyang Business School (NBS) has found.

FRS 116, which will affect the way companies account for the assets they lease, will affect all financial periods beginning on or after Jan 1, 2019. Industry sectors most affected will be the airline, retail, travel and leisure, transport, telecommunications and energy sectors - businesses that lease major items such as aircraft, properties, manufacturing facilities, ships and transportation equipment.

The new standard is expected to make financial statements more comparable and transparent, as lease assets and liabilities are recorded on the balance sheet.

Isca and NBS's study, titled "Getting ready for FRS 116 (Leases)", found that while the bulk of companies (72 per cent) surveyed expressed a good level of awareness of the new standard, more than half (53 per cent) have not started preparing for it.

The study collected data from Isca members holding senior positions -- for example, chief financial officer (CFO) and financial controller - in 68 companies from May to June.

Six in 10 companies were not listed. Of those that were, 10 per cent of the total number surveyed had a market capitalisation above S$1 billion, 7 per cent had a market cap between S$300 million and S$1 billion, and 21 per cent, below S$300 million.

The adoption of FRS 116 is expected to be challenging for businesses, especially those with a significant number of lease contracts. They may have to create a centralised database of their lease contracts and transactions, and update or modify their existing accounting information system to cope with the new requirements.

More than half (54 per cent) of the companies surveyed considered the challenge in adopting and implementing FRS 116 to be moderate to major. Yet, most have not made preparations in terms of upgrading and modifying their accounting information system, analysing the new standard's tax considerations, or preparing an implementation road map.

Meanwhile, the findings of another study also released by Isca on Thursday found that accounting and auditing professionals place a higher level of trust in financial statements prepared using a hybrid measurement model of historical cost and fair-value accounting than those using either method alone.

Explained simply, historical cost measures assets on the balance sheet at their purchase price, while fair value estimates the asset at its potential current market value.

Just over 700 Isca members and members of the Institute of Valuers and Appraisers of Singapore took part in this survey.

More than three-quarters of them said they felt fair-value accounting provides useful information for trading securities, available-for-sale securities and real estate; less than 60 per cent said fair-value accounting was useful for held-to-maturity securities, loans and receivables, property, plant and equipment, biological assets and intangible assets.

The survey also found that there are lingering concerns toward the reliability of fair-value measurements. The perceived usefulness and reliability of fair value, however, increase when third-party valuation experts are engaged in the valuation process.

Both studies were released as part of the Singapore Accountancy Convention (SAC), jointly held by the Accounting and Corporate Regulatory Authority (Acra) and Isca.

Isca announced at the event that an accelerated pathway for the coveted Certified Internal Auditor (CIA) designation, a globally accepted certification for internal auditors.

Under a new agreement between Isca, the Institute of Internal Auditors and the Institute of Internal Auditors Singapore, holders of the Chartered Accountant of Singapore designation can take a modified exam to earn the CIA certification.

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

Beyonics Technology Ltd and another v Goh Chan Peng and others - [2016] SGHC 120

Do you have an objection? Goh Yee Lan Coreena v P & P Security Services [2016] SGHC 141

Judgments
19 Aug 2016

New moves to raise audit standards

Straits Times
26 Aug 2016
Marissa Lee

Acra will publish names of auditors who are not up to scratch, for example

New regulatory measures have been introduced to raise audit standards - a crucial factor in upholding investor confidence in Singapore's capital markets.

They involve the Accounting and Corporate Regulatory Authority (Acra) publishing the names of individual auditors who are not up to scratch. They could be individuals who fail two or more successive Acra inspections, auditors who have been issued with a restriction order or those who are no longer allowed to practise without another accountant looking over their shoulder.

The new rule will apply to all Acra inspections from April 1 next year.

Acra has been publishing the names of public accountants whose licences have been suspended or cancelled for serious audit deficiencies since 2007.

Senior Minister of State for Law and Finance Indranee Rajah announced the new measures at the Singapore Accountancy Convention yesterday.

She told the convention that safeguarding market integrity is crucial in a time of economic uncertainty, where corporate governance and accounting scandals have rocked some markets.

"We should never take for granted the confidence that investors have in the quality and integrity of audits and financial reporting in Singapore," Ms Indranee said.

She also welcomed Acra's two new efforts to improve the audit quality of public-listed companies.

Acra said yesterday that it has set a target to reduce the percentage of inspected listed company-engagements with at least one deficient finding by 25 per cent, over the period from 2015 to 2019.

For a start, only the five biggest audit firms that perform listed company audits here - BDO, Deloitte, EY, KPMG and PwC - will be held to the standard.

Currently, Grant Thornton does not audit listed companies here.

Acra also plans to enhance its disclosure framework for audit quality indicators (AQIs), introduced last October, so companies are more informed of the quality of audit firms.

The watchdog has set quantitative benchmarks for six AQIs to give auditors and audit committees a better sense of what counts as good quality.

For example, an auditor's staff retention rate is one indicator of audit quality. Acra's target is for audit firms to keep their retention rate between 75 per cent and 80 per cent.

Some firms are already submitting AQI data to Acra twice a year. This data is not made public but audit committees and companies can request it from the audit firms.

Most auditors have welcomed Acra's moves. PwC Singapore executive chairman Yeoh Oon Jin said: "We all appreciate that a high-quality audit is critical to ensure smooth functioning of capital markets and this, in turn, supports the overall development of businesses and financial markets in Singapore."


Fresh measures

ALL PUBLIC ACCOUNTANTS

From April next year, individuals who fail two or more successive Acra inspections and are issued a restriction order or are no longer allowed to practise independently will have their names published on the Acra website.

AUDITORS OF LISTED COMPANIES

• BDO, Deloitte, EY, KPMG and PwC will be held to a new gold standard - to reduce the percentage of inspected listed company-engagements with at least one deficient finding by 25 per cent, over the period from 2015 to 2019.

• New measurable targets will enhance the audit quality indicators for all audit firms introduced last October.

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Estate of Lee Rui Feng Dominique Sarron, deceased v Najib Hanuk bin Muhammad Jalal and others - [2016] SGHC 119

Info-communications Media Development Authority Bill 2016 and Government Technology Agency Bill 2016 introduced in Parliament

Legislation
19 Aug 2016

High Court cuts jail term of abettor in drug case

Straits Times
25 Aug 2016
K.C. Vijayan

District court also erred in jailing prime offender for 6 years instead of 15, says CJ

The High Court cut the prison term of an abettor in a drug case from seven years to four years and six months, but had strong words for the district court, saying it had erred in jailing the prime offender for six years instead of 15 years.

Chief Justice Sundaresh Menon in judgment grounds released yesterday stressed it was the prosecution's duty to assist the sentencing court, which is exclusively tasked to decide the punishment.

"It is nevertheless incumbent on the sentencing court to evaluate the cogency of the position taken by the prosecution, which for its part, is obliged to place the relevant materials before the court to enable it 'to come to its own conclusion as to what the just sentence should be'," he said.

It was the first time a case has dwelt on the sentencing of a person who had abetted, from outside Singapore, the commission of a crime in Singapore since the provision was introduced into law in 2013.

K. Saravanan Kuppusamy, 35, had admitted to instructing, while in Malaysia on July 31, 2014, Kannan Reti Nadaraja to bring in 10.38g of heroin into Singapore by motorcycle. Kannan, 25, the principal offender, was nabbed the following day at the Tuas checkpoint.

He was convicted and jailed for six years and given five strokes of the cane on a reduced charge of importing 9.99g of heroin.

"Kannan was the beneficiary of a remarkably lenient sentence and this had been sought by the prosecution. I concluded in the circumstances that the sentence imposed on Kannan was wrong in principle," said CJ Menon.

A district judge ruled in April that Kuppusamy, as the abettor, had a higher position in the hierarchy and was more culpable than Kannan, a "mere tool". She was persuaded by the prosecution that it was a syndicated enterprise and ruled that Kuppusamy's sentence could not be less severe than Kannan's.

Kuppusamy, through lawyer Too Xing Ji, appealed this month, arguing that the judge had wrongly applied the principle of parity and had erred in finding the deal was part of a syndicate.

But prosecutors Wong Woon Kwong and Chan Yi Cheng countered that Kuppusamy was more culpable than Kannan, which explained Kannan's reduced charge.

CJ Menon said this "misses the point" and "rests on a misconception as to how the primary and secondary offenders should be punished in these cases".

He said Kuppusamy might well be more liable than Kannan but as both were charged with different offences, Kuppusamy's jail term had to be calibrated according to the punishment range prescribed for his offence and any attempt to connect the two should be done within such a context.

He said that as the offence Kuppusamy abetted was not close to the most serious under the Misuse of Drugs Act, he should then not be jailed at the highest end of the sentencing range for his offence.

Nonetheless, Kannan's sentence was too light and he should have been jailed for about 15 years, already well below the punishments for the most serious offences under the Act, which includes death and life imprisonment.

CJ Menon said the evidence was insufficient to show Kuppusamy was part of a syndicate.

He said Kuppusamy also pleaded guilty, saving costs of a full trial, which was a mitigating factor to cutting his jail term.

When contacted, an Attorney- General Chambers' spokesman said: "We are studying the judgment, and will take guidance from the High Court's approach towards sentencing offenders convicted under... the Misuse of Drugs Act."

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K Saravanan Kuppusamy v Public Prosecutor [2016] SGHC 166

The “PWM Supply” ex “Crest Supply 1” - [2016] SGHC 117

SHC: Defamatory internet publications - The need for electronic evidence

Judgments
18 Aug 2016

MAS should say no to dual-class shares

Business Times
25 Aug 2016
Mak Yuen Teen

WHEN the Companies Act was amended to allow public companies to have dual-class shares, there was a sense of inevitability about the Singapore Exchange (SGX) opening its doors to listed companies with dual-class shares. I am therefore not at all surprised that the report "SGX close to allowing exceptions for dual-class share listings" (BT, Aug 23) now tells us that the Listings Advisory Committee (LAC) is set to propose that dual-class shares be allowed for companies listed on the SGX. What did surprise me was that David Gerald, president and CEO of the Securities Investors Association (Singapore) (SIAS), speaking on behalf of the association, expressed support for dual-class shares - because they are "well established in the United States and Europe" and necessary to attract companies to list here. What about investor rights and protection, which is the core mission of SIAS?

I have already written extensively on this subject. In my commentary "Say 'no' to dual class shares" (BT, Nov 27, 2015), I laid out in some detail the historical context of dual class shares in the US, the empirical evidence against them, the dangers of importing dual class shares into our market without considering the differences in legal and institutional environments, and the difficulty of implementing meaningful safeguards without defeating the raison d'etre for them. Those who cite Google and Facebook as examples of companies with dual-class shares do not cite Amazon, Apple, Microsoft and other technology companies as counter-examples of those that do not. Citing companies like Google to make the business case for dual-class shares is a bit like citing Warren Buffett to make the business case for appointing octogenarians to run companies. Hugh Young and David Smith of Aberdeen Asia have recently written a compelling piece "Dual class shares are double trouble" in their July 2016 newsletter, setting out an institutional investor's perspective. Most institutional investors are against dual-class shares, and we should brace ourselves for criticism if we allow it.

While proponents of dual-class shares may point to Google, Alibaba or Facebook, we may wish to remind ourselves that when we opened our doors to foreign listings, particularly S-chips, we did not end up with companies like Ping An or Bank of China. Instead, we got China Gaoxian, China Sky, Eratat Lifestyle, Sino-Environment and well over a hundred of others, many that we would rather not mention. Scandals in these listings have undoubtedly contributed to a loss of confidence in our market, impacting liquidity and valuations. We risk allowing history to repeat itself. Investors do not want to feel like they are victims of "bait and switch", with promises of bluechip dual-class shares only to be burnt by those that are only using dual-class shares to entrench and enrich themselves.

Danger of compelling reasons

In the BT report, it was stated that the LAC is expected to allow dual-class structures only when there are compelling reasons to do so, and that such reasons would include whether there are certain individuals who play indispensable roles in the company or when an uneven ownership structure is long-standing practice. The danger is that the case can be easily made, especially in founder-controlled companies, that certain individuals play indispensable roles. Many people think they are indispensable until they are gone. Over time, the list of "compelling reasons" may get longer.

In my earlier commentary, I had also highlighted that in a dual-class share structure, the monitoring function will effectively be outsourced to the government, the courts and the regulators, imposing a greater expectation and burden on them. This is because corporate governance mechanisms such as board of directors and shareholder meetings would be rendered largely ineffective. With dual-class shares, it will be even easier to control the appointment of independent directors and to pass resolutions at AGMs. Investors would rightly expect regulators to step in to protect their rights if things go wrong in companies with dual-class shares, with other corporate governance mechanisms being ineffective, and shareholder enforcement being costly and largely impractical in Singapore.

In the forthcoming volume of the Corporate Governance Case Studies published by CPA Australia which I edit, there is a case on a Swiss company called Sika AG about the founding family exiting the business by selling their shares with superior voting rights to an outside investor at a huge premium to the existing market price. The family owned 16.1 per cent of the shares but controlled 52.4 per cent of the voting rights. The company had a provision in its articles that allowed the outside investor to circumvent a mandatory takeover offer even though it was acquiring a majority of the voting rights. Minority investors' rights were trampled over.

Before the LAC makes its recommendation, it would be well advised to carefully study and understand the features of dual-class share structures and their different nuances, their impact on corporate governance mechanisms such as independent directors, and the legal and institutional environments in countries where they are allowed. Allowing dual-class shares just because some other countries do so is simply not good enough.

Finally, while the LAC should be accountable when it allows a company to list with dual-class shares, the buck ultimately stops with the SGX and the Monetary Authority of Singapore (MAS), which supervises SGX and our capital market. Calling the LAC "autonomous" or "independent" does not change this fact because ultimately, SGX and MAS must agree to them. The Hong Kong Securities and Futures Commission firmly rejected dual-class shares when the Hong Kong exchange was considering allowing them, and I would urge MAS to do the same.

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

Shi Wen Yue v Shi Minjiu and another - [2016] SGHCR 8

[GBR] A picture speaks a thousand words – Lessons from the Trunki case

Commonwealth
18 Aug 2016

MAS reviewing venture capital rules to bolster fintech funding

TODAY
25 Aug 2016
Rumi Hardasmalani

S’pore faces shortage in finance, tech talent, as it positions itself to be top destination for start-ups

SINGAPORE — The Monetary Authority of Singapore (MAS) is reviewing the regulatory policy framework around venture capital (VC) firms, in a bid to improve funding availability for financial technology start-ups.

Shortage of capital and tech talent are the two key challenges the Republic faces, as it positions itself as one of Asia’s top destinations for fintech companies, said MAS managing director Ravi Menon at the official opening on Wednesday (Aug 24) of the regulator’s fintech innovation lab, which has been christened Looking Glass @ MAS.

“In terms of capital, we are lagging the leading centers (in funding opportunities for tech-start-ups here),” said Mr Menon. “Although there are a lot of VCs here, there are (also) many startups and good ideas chasing funds.”

To address that, MAS said it is reviewing some of the regulatory requirements that it places on VC funds.

“We have just started the review so I can’t say more ... Our policy framework is evolving,” Mr Menon said.

According to a report released by Google and Temasek in May, VC investment in South-east Asia accounted for 0.04 per cent of its gross domestic product in 2014; compared with 0.15 per cent in China, 0.25 per cent in India and 0.3 per cent in the US. Singapore companies got the bulk (72 per cent) of the region’s estimated US$1.1 billion VC funding, the report said.

Still, more needs to be done even as the Government — through its agencies such as SPRING, National Research Foundation and MAS — continue to plug the funding gaps.

Nine of the fourteen most well-funded SEA startups are in Singapore, noted Mr Daren Tan, Managing Partner, Golden Equator Capital.

“To increase this momentum, investors would want to see more vibrant Series C (onwards) rounds, creating an energetic capital market for companies invested in by VCs,” said Mr Tan.

According to Mr Tiang Lim Foo, Operating Partner at SeedPlus, several components are needed for the fintech ecosystem to thrive, including a transparent and efficient regulatory environment, access to talent, and efficient funding sources.

The Government can also play a larger role in helping start-ups get quality funding by allowing for tax benefits, simplified procedures, and easing regulations on foreign manpower, other VCs said.

Mr Ethan Pierse, Managing Partner at Nest Venture Capital, said he is looking forward to Singapore having a clear legal framework for fintech innovations such as blockchain and peer-to-peer lending.

The authorities here should also consider collaborating with regulators in Malaysia, Indonesia, Australia, Thailand, Hong Kong or Philippines so that a VC licensed in another jurisdiction will be able to go on the fast track when applying for licensing in Singapore, Mr Pierse suggested.

“There should also be tax benefits for high-net-worth individuals deciding to invest capital in venture capital funds, as well as simplified procedures to apply to set up a venture fund under RFMC (Registered Fund Management Company), which currently requires six to 12 months with high set up fees. There should be continued support from the government in providing matching funding for specialised funds for specific sectors,” he added.

Meanwhile, several startups in Singapore said that roping in funding has not been easy.

“Technology-based startups in Singapore chase smart money, but don’t get the right valuation or a value proposition from an investor with capabilities of scaling up the project or taking it global,” said Mr Kuldeep Singh Rajput, founder & CEO of data analytics firm Biofourmis, which secured US$1 million in angel funding.

“The focus of the right kind of VCs for such tech-driven companies are limited in Singapore as they are more focused on the US or Europe,” he added.

Mr Vaibhav Dabhade, founder and CEO of Anchanto, which provides ecommerce fulfillment, lamented the difficulty in securing VC funding for smaller deals. He secured funding from Japanese investors.

“Small ticket size VC fundings in Singapore are on a decline. Given the economic slowdown, the environment is such that there is more pressure on startups to show the path to profitability instead of market share and growth opportunities,” he said.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Ng Huat Seng and another v Munib Mohammad Madni and another - [2016] SGHC 118

PDPC revises advisory guidelines and announces new/updated guides and initiatives

Business
18 Aug 2016

Reviewing VPN concerns

Straits Times
25 Aug 2016
Irene Tham

Virtual private network (VPN) has been a contentious piece of technology here for years.

Content publishers are unhappy that consumers here use the technology to access blocked content meant for overseas markets, even though many paid for the content. VPN has become more easily available since 2012, with local firms ViewQwest and MyRepublic bundling the service with their fibre broadband plans.

On Tuesday, the Ministry of Law called for public feedback, hoping to update the Copyright Act, which was last updated significantly in 2004.

It wants to know whether current laws governing the circumvention of digital locks on copyrighted work need to be updated. These restrict access to or use of the content, and can be circumvented by technologies, including VPN. The ministry did not recommend an outcome on the use of VPN in its consultation papers. But the Intellectual Property Office of Singapore, which had a part in putting together the consultation paper, recognised that there were concerns that bypassing geographical blocks could infringe copyright.

So now, it is up to proponents and opponents of VPN to convince the ministry about the level of clarity Singapore's Copyright Act should have on its use. The Act, as it is worded now, is silent on whether using VPN technology to access blocked content is legal, even though the law principally prohibits circumvention.

VPN has legitimate uses - for instance, securing corporate access to information over the Web - and it would be impossible to ban it.

In April, the Australian government said it is not an infringement of copyright for consumers to evade geographical blocks. Ms Karen Chester, commissioner with the Productivity Commission, said: "Making copyright material more accessible and more competitively priced online, and not geoblocking, is the best antidote to copyright infringement." Content publishers may disagree.

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

Heinrich Pte Ltd and another v Lau Kim Huat and others - [2016] SGHC 116

Employment Claims Bill 2016: Establishment of Employment Claims Tribunal

Legislation
16 Aug 2016

Why block overseas content from willing subscribers? Forum

Straits Times
25 Aug 2016

While it is entirely proper and just to ensure that intellectual property is protected, virtual private networks (VPNs) and industry demands for their banishment are not a straightforward intellectual property case ("VPN tech being reviewed under Copyright Act"; yesterday).

Unlike file sharing services which have been used to steal intellectual property without paying its owners due royalties, many VPN users are willing to pay for the media content they access, and, in many cases, even do so.

They are merely using VPNs to access movies, TV series or sports events which are not available in Singapore, but which are strangely available to subscribers of the same entertainment service companies within the United States.

Thus, if one legally subscribes to Netflix, there are many TV series and movies which are unavailable to Singapore Netflix subscribers, but which Singapore subscribers can easily access from any Wi-Fi connection within the United States itself.

Similarly, weekly American TV series are available to Americans via Hulu, but an overseas Singaporean, even if he subscribes to Hulu in the United States, cannot access these same TV shows once he lands in Singapore.

The real question is: Why are companies such as Netflix and Hulu not allowing paying Singapore subscribers to access the same intellectual content as users of their same service in the US?

Could they not merely charge those in Singapore an additional fee to cover any cross-border intellectual property issues involved? Would that not make the whole issue of using VPNs to access blocked content irrelevant?

Singaporeans are ready to legally pay for the right to access such exclusive content without having to use VPNs.

Therefore, before any new laws affecting VPNs are passed, firms such as Hulu and Netflix need to explain why they make so much of their content unavailable to Singaporeans who are willing to legally pay for it.

Eric J. Brooks

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

Teras Offshore Pte Ltd v Teras Cargo Transport (America) LLC - [2016] SGHC(I) 02

Changes to Child Development Co-Savings Act: Reimbursement for voluntary extended paternity leave and extending co-savings scheme to Singaporean children of unwed parents

Legislation
16 Aug 2016

Consistel says it regrets any oversight: Forum

Straits Times
25 Aug 2016

We recognise the critical role played by the Infocomm Development Authority (IDA), and respect its leadership in setting and maintaining global standards.

Despite our best intentions, it would appear that, on this occasion, we may have unfortunately fallen short of the regulator's expectations, and for this, we apologise.

Consistel will be raising an appeal in response to IDA's concerns.

We wish to emphasise that there has never been an intention to mislead IDA or misrepresent Consistel in any way.

A home-grown Singapore small and medium-sized enterprise with more than 20 years' experience and a host of innovations, patents and inventions to its name, Consistel is proud of its track record in designing, installing and providing consulting services for rolling out landmark network systems.

We provide high-performance mobile networks to hotel, resort, entertainment, retail, residential and sports facilities in Singapore, across iconic buildings such as Marina Bay Sands, Marina Bay Financial Centre and the Singapore Sports Hub, and around the region.

Consistel was the recipient of the Singapore Business Review's National Business Award 2016 for the state-of-the-art Wi-Fi system deployed at the Singapore Sports Hub.

The award is testimony to our capabilities in wireless network design, installation and operation.

This system has consistently delivered unparalleled service, for example, during the Rugby Sevens Tournament in April, or on other occasions when the National Stadium was at full capacity.

In January, TechRepublic reported that a record-breaking 10.1 terabytes of data were delivered during the Super Bowl football game at the Levi's Stadium in San Francisco.

During the recent National Day Parade, Consistel's system provided 14 terabytes (equivalent to 7,000 to 10,000 full-length movies), marking a major milestone for Singapore.

Consistel sincerely regrets any oversight that may have occurred in its response to and management of IDA policies and procedures.

The company looks forward to collaborating with IDA to address and resolve this case.

Anne Dellos (Ms)

Media Contact

Consistel Singapore

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

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Eastern Resource Management Services Ltd v Chiu Teng Construction Co Pte Ltd - [2016] SGHC 114

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MinLaw, IPOS seek views on proposed changes to copyright rules

Business Times
24 Aug 2016
Claire Huang

[Singapore] THE Ministry of Law (MinLaw) and the Intellectual Property Office of Singapore (IPOS) have launched a public consultation exercise to gather feedback on proposed changes to the country's copyright rules.

The consultation will run for two months, ending on Oct 24, MinLaw and IPOS said on Tuesday.

The proposed changes come as technological developments in the past decade have led to vast changes in how copyrighted works are created, distributed, accessed and used.

MinLaw and IPOS said copyright law must keep pace with modern developments so as to support creativity and innovation; they added that the review seeks to ensure that Singapore's copyright regime continues to create an environment that benefits both creators and users.

One key proposal entails letting creators own the copyright in certain specific works they were commissioned to create, unless they had agreed otherwise; another calls for creators to be given right of attribution - that is, the right to ask that they be credited as the creator of the work, whether they still own the copyright.

There is also a proposal for not-for-profit schools to be able to continue to develop and enhance their pedagogy using digital tools and the Internet. For example, teachers and students will now be able to fully utilise online student portals to reproduce and share content to enhance learning.

Yet another proposal suggests that everyone can, subject to certain conditions, use "orphan works", that is, those for which the owner cannot be identified and contacted for consent; another proposal suggests that text and data mining for the purposes of data analysis be allowed.

Senior Minister of State for Law & Finance Indranee Rajah said: "This is a wide-ranging review which aims to help creators gain more recognition and practical protection for their works, while providing users with reasonable and easier access to those works.

"We would particularly like to see individuals and small businesses come forward and provide their views in this public consultation. This will help the government take into account all stakeholders' views so as to improve our copyright regime to better support the creative economy."

Members of the public are invited to submit their views by 5pm on Oct 24, 5pm. They may submit feedback online via http://www.mlaw.gov.sg/CopyrightReview or in hard copy to the Intellectual Property Policy Division at MinLaw.

Separately, IPOS and SIM University have jointly developed a new graduate programme in Intellectual Property (IP) and Innovation Management, which leads to a Masters degree. Enrolment will start in July 2017.

Early next year, IPOS and the Singapore Workforce Development Agency (WDA) will launch an IP Professional Conversion Programme (IP PCP), a multi-disciplinary programme aimed at equipping mid-career professionals with skills and knowledge in areas of IP law, business and technology.

These developments come as Singapore's demand for specialised IP skills and knowledge in key innovation-based industries (such as robotics, healthcare, ICT and urban sustainability solutions) is expected to grow by 500 over the next five years.

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

Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd - [2016] SGCA 38

SGX to set up subsidiary company ‘RegCo’ for regulatory functions

Business
12 Aug 2016

VPN tech being reviewed under Copyright Act

Straits Times
24 Aug 2016
Irene Tham

Law could be updated amid concerns over use of such technology to access unauthorised content from abroad

The legality of virtual private network (VPN) technology, which allows unauthorised content from overseas to be accessed, is being reviewed.

The review is part of over a dozen wide-ranging revisions the Ministry of Law (MinLaw) is suggesting to be made to the Copyright Act, which was last majorly updated in 2004.

MinLaw did not recommend an outcome on the use of VPN in the consultation papers released yesterday. But it called for public feedback on whether current rules governing the circumvention of digital locks on copyrighted work need to be updated. These locks restrict access to or use of the content.

The Intellectual Property Office of Singapore (Ipos), which had a part in putting together the consultation paper, recognises that there are "some complications" surrounding the use of VPN.

"There are some concerns that bypassing geographical blocks could infringe copyright," said Mr Daren Tang, chief executive of Ipos. Nevertheless, Singapore remains a strong supporter of parallel import, which is essentially what VPN allows in the digital world, he added.

The law generally does not allow digital locks on copyrighted works to be circumvented. But there are a few exceptions. For instance, tertiary educational institutions can unlock short clips of films to critique them, and libraries are allowed to unlock old software to preserve it in an operational state.

The law is silent on the use of VPN technology for accessing blocked content. Consumers in Singapore have been using it to stream content meant for other markets from legitimate video-streaming sites.

But there is pressure from content publishers to change that.

The International Federation of the Phonographic Industry, which represents more than 1,000 producers and distributors of sound recordings, believes VPN users should not be allowed to circumvent geographical blocks.

"This idea of parallel import is based on pricing alone," said Mr Ang Kwee Tiang, its regional director for Asia. "It is effectively a race to the bottom, forcing Singapore to become an importer of content instead of a producer or distributor of content domestically."

Experts say it is impossible to outlaw VPN, which also has legitimate uses - for instance, securing corporate access to information over the Web. "But the law can clarify that VPNs cannot be used to access certain types of restricted content," said intellectual property (IP) and technology lawyer Jonathan Kok of RHTLaw Taylor Wessing.

IP lawyer Cyril Chua of Robinson LLC said that if the law were to be amended to regulate the source of content, shops selling Android media boxes preloaded with apps for movie streaming could be hit.

Other revisions proposed include legalising data collation for data mining even as analytics becomes increasingly important to economic growth, and allowing public schools to reproduce and share content on websites for teaching purposes. The consultation will end on Oct 24.

"These reviews will further strengthen our regime and allow it to keep current with technological advances, business needs and societal developments," said Senior Minister of State for Law and Finance Indranee Rajah, speaking at the opening of the fifth annual IP Week@SG 2016 event at Marina Bay Sands yesterday."IP is not just about law. IP is also about business and innovation."


KEEPING ABREAST OF CHANGES

These reviews will further strengthen our regime and allow it to keep current with technological advances, business needs and societal developments. IP is not just about law. IP is also about business and innovation.

SENIOR MINISTER OF STATE FOR LAW AND FINANCE INDRANEE RAJAH

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

Lai Hoon Woon (executor and trustee of the estate of Lai Thai Lok, deceased) v Lai Foong Sin and another - [2016] SGHC 113

SHC sets aside arbitral award in JVL Agro Industries Ltd v Agritrade International

Judgments
11 Aug 2016

SGX suspends minimum-price rules, wants to add market-cap test

Business Times
24 Aug 2016
Kenneth Lim

The market regulator is seeking public feedback on this proposal, which it says refines the controversial minimum trading price requirement

[Singapore] THE Singapore Exchange (SGX) is suspending its minimum trading price (MTP) rules to consider the possibility of adding a minimum market capitalisation criterion.

Under its proposal, for which the market regulator is seeking public feedback, Mainboard-listed companies will no longer be added to the MTP watch list and face potential delisting simply because their six-month volume-weighted share price falls below 20 Singapore cents. Companies whose share prices are too low will be added to the MTP watch list only if their market capitalisation is also below S$40 million.

SGX is also proposing to lengthen the review frequency for both the MTP watch list and the Financial Entry watch list, which puts on notice companies with market caps of below S$40 million and which report three straight years of losses. The two watch lists will remain separate.

Assessing entry and exit from both watch lists will take place twice a year instead of quarterly under the proposal, in order to align the timing of the reviews with their six-month look-back periods.

The public consultation is open until Sept 23. If the proposals are accepted, SGX expects implementation to take place by June 2017.

During the consultation, SGX will not add any new entrants to the MTP watch list; the scheduled September review will therefore be put on hold for watch list additions.

Companies already on the MTP watch list will not face delisting while the moratorium is in place. If the proposals are implemented, companies that remain on the MTP watch list will have their cure deadlines reset to 36 months from the implementation of the new criteria; if the proposals are rejected, however, the clock for exiting will resume for existing MTP watch list companies once the moratorium is lifted.

SGX will continue to assess existing MTP watch list companies for exit eligibility based on current rules on a quarterly basis during the moratorium. The Financial Entry watch list will continue to operate as normal.

Under SGX's current rules, Mainboard-listed companies are placed on the MTP watch list if their six-month volume-weighted average price is below 20 Singapore cents when a quarterly review takes place.

A separate watch list, the Financial Entry list, is for Mainboard-listed companies that report three straight years of losses and whose market cap is below S$40 million.

Companies on either watch list have 36 months to resolve their status, or they could face delisting.

SGX cited the changes as an attempt to fine-tune the controversial MTP requirement. SGX chief regulatory officer Tan Boon Gin said in a statement: "The MTP requirement remains relevant to addressing the risks associated with lower-priced securities.

"We have been considering market developments and feedback in the implementation of the requirement and made refinements along the way. We are now proposing further refinements to make it more targeted and effective."

SGX said that an analysis of historical data showed that among the companies with a six-month volume weighted average share price of less than 20 Singapore cents, those with a market value of at least S$40 million "showed better liquidity characteristics and lower volatility" than those whose market cap fell below that threshold.

"This thus suggests that the market capitalisation test as an MTP entry criterion will complement the existing requirement to more precisely achieve the goal of reducing excessive speculation and potential manipulation," SGX said in a statement.

The moratorium will bring respite for an estimated 125 companies that are expected to be on the MTP watch list if the review were to take place as scheduled in September. Of those, 53 have already been on the list since it was created in March 2016.

If the new proposals were in place as at Aug 1, 16 of the 55 companies now on the MTP watch list would exit the list, including two that are expected to exit anyway in the coming September review, for having managed to raise their share prices sufficiently. Overall, 56 companies that are already on the watch list or with too-low share prices could benefit because their market cap is at least S$40 million.

However, 39 of the companies currently on the MTP watch list will not be able to exit the list simply by raising their share prices; they will have to raise their market caps as well.

The proposals received largely positive response from market observers and professionals.

Monetary Authority of Singapore assistant managing director of capital markets Lee Boon Ngiap said in a statement: "The MTP requirement was introduced in March 2015 to address the susceptibility of low-priced stocks to excessive speculation and market manipulation. This policy remains sound. We support SGX's latest proposals, which seek to refine the MTP watch-list criteria to achieve the same policy objective in a more targeted way."

David Gerald, president of the Securities Investors Association of Singapore, noted that market conditions have been tough since the MTP rules took effect earlier this year.

"Global economic conditions and the volatility in the markets have not been favourable...to achieve the 20 cents MTP rule. It is, therefore, encouraging to see the regulator taking a flexible approach by introducing another criterion, which no doubt will help companies not get into the watch list so easily," he said.

Lawyer Stefanie Yuen Thio of TSMP Law Corp, agreed that the changes would target the more susceptible segment of the market.

"I've always thought that the MTP was too blunt an instrument to regulate the market," she said. "First, a share price is a number and therefore subject to mathematical manipulation. In addition, share prices are always at the mercy of market forces. A share's trading price is not necessarily an accurate indicator of the quality of a company's business or management."

Lawyer Adrian Chan of Lee & Lee said the proposal will create a clearer distinction between the Main board and the junior Catalist board as market value plays a bigger role in watch list assessment.

"The Main board will be more quality, Catalist more caveat emptor," Mr Chan said. "It adds a lot of premium to the Main board."

As many others mentioned, the proposals will help to reduce an emphasis on share price and shift some focus back to the company's business, said lawyer Robson Lee of Gibsun, Dunn & Crutcher.

"A company with declining market cap can only achieve a sustainable and effective turnaround via a real improvement in its business fundamentals. Any quick fix without addressing the fundamentals and without breaking any listing rule can at best create a 'dead cat bounce' effect," he said.

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

Mann Holdings Pte Ltd and another v Ung Yoke Hong - [2016] SGHC 112

Planning for Brexit

Business
11 Aug 2016

Start-ups should start out by protecting IP

Straits Times
24 Aug 2016
Peter Wild

Despite being located in one of the world's best intellectual property (IP) legal frameworks - ranking alongside the EU or Switzerland - many start-ups in Singapore seem ignorant or in denial about protecting their ideas and innovation.

According to the World Economic Forum's Global Competitiveness Report 2015/2016, Singapore ranks top in Asia and fourth globally for having the best IP protection. The Singapore Government, through organisations such as the Intellectual Property Office of Singapore (Ipos), is probably more enthusiastic about promoting IP usage and expertise than any other government in Asia.

But there seems to be little awareness about and practise of IP protection.

Most local entrepreneurs are so consumed with developing business ideas, creating a market and securing funding that IP protection is relegated to the back burner, if not forgotten.

This is not just a problem for young entrepreneurs unfamiliar with the law or IP. I have personally witnessed even law-savvy start-ups failing to take appropriate action.

The initial steps of IP protection are not expensive. It takes just a few hours with an IP expert to identify which business aspects need protection, such as trademarks, designs, processes and inventions, and estimate the cost. There are also modern tools which allow fast and inexpensive IP evaluation.

While actions such as patent filing can be expensive or time-consuming, most IP protections are affordable and will cover the basics.

For example, all you need to protect copyright is proper documentation of the creative process. When working with external vendors such as design agencies, unrestricted rights should be quickly transferred in order to avoid claims issues. Trademark and design filings can be done cheaply via the Ipos website.

Some inventions may not even need patent protection if handled as a trade secret.

These actions must be taken early in the start-up process, ideally before business ideas are revealed to the public at the fund-raising stage. Local venture capitalists and seed investors are themselves more conscious of the need for unique IP. Fundedhere - Singapore's first licensed equity- and debt-based crowdfunding platform - now requires start-ups to have established IP as an initial compliance filter.

Indeed, IP protection is now becoming part and parcel of the basic due-diligence checklist for investors.

For innovation to thrive, and for Singapore's start-up ecosystem to grow, IP must be seen as an integral, albeit intangible, asset. In the early growth stage, good basic IP provides a first-mover advantage to capture market share and creates barriers to entry.

One important IP rule is that whoever files a claim first has better rights to protection. In my work as an IP lawyer, I have seen trademarks "stolen" by competitors with identical or similar domain names. Filing claims at an early stage would have prevented such "theft" or disputes.

As a business matures beyond the start-up stage, its promoters can decide if they need more expensive or international extension of IP protection.

Without doubt, Singapore's legal framework provides the most robust IP protection for start-ups in Asia. Local entrepreneurs can draw from the waters of this abundant oasis to ensure that the seeds of great ideas and innovation grow to their full potential.

• Peter Wild is managing partner at WildPeak, Singapore and has invested in local start-ups such as Fundedhere.com. He has over 20 years of experience in international IP law, focusing on trademarks, copyright and design.

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

Sinwa SS (HK) Co Ltd v Nordic International Ltd and another - [2016] SGHC 111

[IDN] The 2016 Indonesian tax amnesty

Commonwealth
11 Aug 2016

Sharpen consumer protection laws: Forum

Straits Times
24 Aug 2016

Last week, the International Olympic Committee (IOC) raised the issue of "ambush marketing" with Singapore on the possible infringement of Rule 40 of the IOC charter, in relation to opportunistic advertisers who have attempted to associate themselves with Joseph Schooling's success.

Ambush marketing can be simply defined as the unauthorised exploitation by a party of the goodwill of an event at the expense of the event's official sponsors and partners.

It is important for advertisers to know that such activities may also fall foul of the Law of Passing Off. It protects against situations where the goodwill of someone has been appropriated by the misrepresentation of a third party.

We also have the Consumer Protection (Fair Trading) Act (Chapter 52A), which prohibits unfair practices, including a situation where one represents that goods or services have a particular sponsorship or approval that they do not have.

Our current Singapore laws are still somewhat lacking in this area.

Clearly, a sincere congratulatory message would not be actionable and can hardly be said to be misrepresenting anything.

Even Rule 40 of the IOC charter may lack any legal bite, as the prohibition ends three days after the closing of the Olympic Games.

Indeed, misrepresentation and unfair practices are nebulous, ambiguous concepts that may be circumnavigated by smart and aggressive advertisers.

Thus, it is timely that the Ministry of Trade and Industry has commenced a public consultation to review the Consumer Protection (Fair Trading) Act ("Shoppers to get more protection from errant retailers"; May 16).

The main recommendations are to improve consumer protection and allow for more effective sanctions against errant traders.

To this end, Spring Singapore will be appointed the administering agency that will be given investigation and enforcement powers.

The Rio Olympics and any such major events provide advertisers with unparalleled marketing opportunities.

It would be good for our current laws to be reviewed and improved to ensure that there are adequate legal protection and sanctions.

It would also serve businesses well to be made aware of what they can and cannot do.

David Chang Cheok Weng

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

Goh Eng Lee Andy v Yeo Jin Kow - [2016] SGHC 110

Singapore to become international centre for debt restructuring

Business
10 Aug 2016

SGX close to allowing exceptions for dual-class share listings

Business Times
23 Aug 2016
Kenneth Lim

Listings advisory panel unveiling rules over next few weeks; such cases expected to be allowed if there're compelling reasons

[Singapore] THE Singapore Exchange's Listings Advisory Committee (LAC) is set to lay out ground rules in the coming weeks that will allow for multiple-class share structures, according to sources familiar with the matter.

The LAC, an autonomous body that provides independent opinions on unusual listing applications for SGX, is expected to allow dual-class structures only when there are compelling reasons to do so, the sources said.

Examples of such reasons would be when there are certain individuals who play indispensable roles in the company, such as the founders of search engine giant Google; or when an uneven ownership structure is long-standing practice.

The LAC will determine if listing applicants meet the requirements to have dual-class structures.

SGX could not be reached for comments in time for publication.

The new rules will create a practical pathway to a dual-class listing after the Companies Act was amended in 2014 to allow multiple-class share structures. Although the law has been changed, the Singapore Exchange has yet to amend its listing rules and processes.

Allowing dual-class share structures will give SGX something to offer that its rival in Hong Kong cannot. Hong Kong Exchanges & Clearing in 2015 abandoned plans to allow dual-class shares after its regulator, the Hong Kong Securities and Futures Commission, blocked those plans.

The debate in Hong Kong arose after Alibaba.com took its massive initial public offering to the United States instead of Hong Kong because its key owners wanted to retain stronger control of the Chinese e-commerce firm.

Like Alibaba.com, technology companies whose products and strategies are closely tied to their founders have been among the most prominent uses of dual-class structures over the past decade, embodied by case studies like Google and Facebook. SGX will hope to attract some of those companies. "These changes to the listing rules may make us a more attractive listing venue for technology companies, including Chinese technology companies," said lawyer Stefanie Yuen Thio of TSMP Law Corp. "Prior to this, the fact that we did not allow dual-class structures, effectively took us off their radar screen."

But dual-class structures have attracted a fair amount of controversy, with critics highlighting the fundamentally inequitable nature of the arrangement and the potential for governance abuses.

Associate Professor Mak Yuen Teen from the National University of Singapore, a corporate governance expert, has written a number of articles arguing against allowing dual-class shares. He reckoned that it will be difficult to have meaningful safeguards without making dual-class shares so unattractive that there would be few issuers willing to use the structure.

"We need to be aware that institutional investors are generally against it and this will be a real negative from an investor standpoint," Prof Mak said. "We should expect a lot of negative press globally and this may create perceptions that we will do anything to attract more listings."

But the sense on the street may be that the change is inevitable. Ms Yuen Thio said: "SGX would find it difficult to be competitive if it does not open its doors to such companies, not when international stock exchanges like the NYSE have allowed them."

David Gerald, president of the Securities Investors Association of Singapore (Sias), a retail investor advocacy group, noted that dual-class structures are well established in the United States and Europe.

"As a leading financial centre in Asia, Singapore cannot avoid dual-class listings and it also needs to offer these type of fund raising to not only attract companies to list here but also for our own home grown companies," said Mr Gerald, who spoke on behalf of Sias and not the LAC, of which he is a member.

Mr Gerald said it is important to ensure that investors fully understand the features and risks of dual-class structures.

"Investors must understand that they could be buying the 'B Class' shares which comes with no voting rights," he said. "This means they cannot participate in major decisions which will affect the company. Retail investors should, therefore, think very carefully before buying these type of shares."

Regardless of where they stand on the issue of dual-class shares, the observers were of one mind in advocating for safeguards.

Ms Yuen Thio said certain matters should require approval by the audit committee or by a higher percentage of independent directors if certain parties have greater influence over board composition.

She and Prof Mak also pushed for limiting the permanence of special rights.

"There are a variety of special rights attached to dual-class shares," Ms Yuen Thio said. "Some entrench voting rights, giving control to certain shareholders (who are usually the founders). I would recommend that these be reduced over time and should not be entrenched forever."

Prof Mak said all shareholders, on a one-share one-vote basis, should have to vote on a continuation of superior voting rights if there is a change in management. Superior voting shares should also convert to common shares when they are sold to outsiders. Controlling shareholders should also have fiduciary obligations, he said.

Mr Gerald stressed the need to improve public understanding: "Investor education is important for retail investors to know where and how much they should invest according to their own risk profile."

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

Kuntjoro Wibawa v Harianty Wibawa and others - [2016] SGHC 109

SCA: Equitable accounting as a means to achieve broad justice between co-owners

Judgments
10 Aug 2016

IP chapter of TPP: Does it break new ground or tip the balance?

Straits Times
23 Aug 2016
Chew Phye Keat

Step into the cinema to catch the latest 20th Century Fox film, and the first thing that you'll hear is the triumphant "pah-pah-pah" fanfare that accompanies the movie studio's logo.

Those familiar strains could be turned into a trademark one day in your country (if it is not already one), which means it will enjoy the legal protection like, say, the golden arches of McDonald's.

This is one of the possibilities emerging amid global moves to increase protection for intellectual property (IP). At a larger level, it's good news, of course: Tighter IP laws and regimes encourage innovation by giving creators better ownership rights and ensuring that they enjoy the rewards of their inspiration, efforts and research.

As Singapore prepares to mark IP Week this week, many eyes will be focusing on the efforts to ramp up the protection of IP, especially in Singapore, where much is being done to encourage innovation.

One issue in particular is challenging IP protection - the rise of mega-regional free trade deals.

ONEROUS FREE TRADE DEALS

The last few years have seen efforts to hammer out massive regionwide free trade agreements (FTAs) that seek to lower trade barriers and increase economic integration. One of the largest free trade zones being worked out is the Trans-Pacific Partnership (TPP) agreement, which is awaiting ratification by the 12 member countries.

Like other regional FTAs, the TPP aims to facilitate economic growth by ensuring a freer flow of goods, services and people. But like any free trade deal, it comes with a quid pro quo, one of which is the harmonising of certain laws and systems between countries at different developmental stages. And this is where the issue of IP protection comes into play.

Under the TPP agreement, member countries will have to adhere to a regime of IP protection that is stricter than what most of the world observes. This is the Agreement on Trade-Related Aspects of Intellectual Property Rights, or Trips. It has been the "gold standard" for IP laws and covers all members of the World Trade Organisation.

The IP chapter of TPP, however, ups the ante with stricter IP regimes typical of the more developed countries like the United States and Australia. In effect, the TPP is enacting a "Trips plus" benchmark. Some examples follow.

In the area of trademarks, the TPP agreement seeks to widen the protection of trademarks to include sounds and smells - remember the 20th Century Fox fanfare? - which require more complex technologies to collect, record and protect.

In copyright, the TPP agreement seeks to extend the period of protection from the current 50 years following the creator's death, to 70 years. That extra 20 years can prove significant for a small company or an SME (small and medium-sized enterprise) seeking to push out products as quickly as possible. Poorer economies may not have the luxury of waiting another two decades.

Developed nations like the US, Canada and Australia are pushing for such tighter IP protection. Their argument is that it is a fair deal since the products of these poorer countries would also be protected in the US and Australia, for instance.

IP USERS VERSUS CREATORS

But many of the members of the TPP agreement are users rather than creators. While innovators in the more developed countries will benefit from the greater protection, signatories from the less-developed countries will find the restrictions onerous.

In Asean, for example, many countries are already struggling to meet their IP obligations under Trips. Resources have to be poured into the battle against counterfeiting and pilfering of patents. A "Trips plus" will require even more resources, which poorer nations can ill afford.

Stricter and longer protection of marketable products and lucrative patents will also raise the bar for entrepreneurs and SMEs, delaying the economic growth that many countries so desperately need.

The benefits of freer trade cannot be denied. But member nations need to think hard about the TPP's ramifications. Will it lead to a less-level playing field for poorer nations? What about contradictions in the stricter IP obligations of the TPP?

Some Asean members, for example, have started to consider plain packaging of tobacco products so as to discourage smoking. This can be perceived as a hit on IP, with cigarette makers arguing that it infringes on their logos and trademarks.

It took years of negotiation to arrive at Trips, a global benchmark that satisfies most, if not all, parties reasonably; surely this will suffice for an FTA seeking to break down barriers, not build up more.

In a world that is aiming to give poorer nations and their people a leg up, perhaps it is time to consider a little creativity in the protection of innovation - keeping the status quo.

• The writer is the current president of the Asean Intellectual Property Association and the Malaysian Intellectual Property Association.


The benefits of freer trade cannot be denied. But member nations need to think hard about the TPP's ramifications. Will it lead to a less-level playing field for poorer nations? What about contradictions in the stricter IP obligations of the TPP?

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

Re Opti-Medix Ltd (in liquidation) and another matter - [2016] SGHC 108

Third-Party Funding in Singapore: out of the shadows and into the light

Business
10 Aug 2016

Belgian gets 5 years' jail for killing son

Straits Times
23 Aug 2016
Selina Lum

Court says sentence is in line with precedent cases of depressed parents who killed own kids

A Belgian expatriate who smothered his five-year-old son at his apartment amid a bitter custody battle with his estranged French wife was yesterday sentenced to five years' jail.

In sentencing banker Philippe Marcel Guy Graffart, 42, Judicial Commissioner Hoo Sheau Peng noted that a jail term of five years was in line with precedent cases of depressed parents who killed their own children.

"This is a tragic case in which the life of a five-year-old child has been ended by his father in the midst of a custody fight, causing immeasurable pain and suffering to all those left behind," she said.

Keryan Gabriel Cedric Graffart, a pupil of the Canadian International School, was found dead in the master bedroom of a D'Leedon condominium apartment in the Holland Road area on Oct 6 last year. His father had led police to the body.

The sentence was met with "total shock and disbelief" by Graffart's estranged wife Gwendoline Graffart.

In a press statement, Mrs Graffart said her husband killed their son "to hurt me as much as possible".

Earlier this month, Graffart pleaded guilty to a charge of culpable homicide for suffocating his son.

The Belgian, who was the head of fund distribution for the Asia-Pacific region with Nordea Bank, was initially charged with murder.

This was later reduced as he was assessed to be suffering from a major depressive disorder which substantially impaired his judgment.

Graffart and his wife separated in 2014. A tussle for their only child arose after she wanted to return to France with full custody of Keryan.

On the afternoon of Oct 5 - hours before Graffart killed his son - he received an affidavit pertaining to care and custody proceedings. It contained transcripts of conversations between him and his wife that she had recorded.

Distressed by the contents of the affidavit and pressed by his lawyer for a response, he told his lawyer that he was "so tired of all this" and wanted to stop the legal fight.

He did an Internet search for how long it would take to suffocate and choke a person, and whether one could survive a crash at 150kmh.

That night, between 9pm and 10.17pm, Graffart pressed a cushion over Keryan's head at his 32nd-storey flat. He then tried to kill himself by speeding along the Marina Coastal Expressway (MCE) before deliberately crashing his car into the wall of the tunnel at 10.40pm.

He survived and was taken to Singapore General Hospital but left the hospital and returned to his apartment, where he contemplated other means of suicide before going to the Bukit Timah Neighbourhood Police Centre at about 4.30am on Oct 6.

Innocent child caught in crossfire of custody battle

An officer on duty noticed cuts and scrapes on Graffart's forearms, the needle of an intravenous drip attached to his right hand and a hospital identification tag on his left wrist. When questioned, he told the officer: "I have done something really bad to my son."

Yesterday, Graffart's lawyer, Mr Ramesh Tiwary, said that the legal wrangling over custody caused his client to lose 10kg. Graffart went to four different doctors, who put him through a battery of physiological tests and prescribed him sleeping pills, but none of them suggested that he see a psychiatrist.

Mr Tiwary said the unexpected affidavit from Graffart's wife "pushed him beyond the precipice" as he believed it ruined his chances of winning custody. Graffart was overwhelmed by suicidal thoughts and the irrational belief that death would keep him and Keryan together, he said.

"He loved his son very, very deeply. He will have to live with this for the rest of his life; he caused the death of the one person he loved more than anyone else in the world," said the lawyer, seeking four years' jail for his client.

Deputy Public Prosecutor Sharmila Sripathy-Shanaz sought five to six years' jail, relying on precedents. "Keryan did not deserve to have the accused's troubles visited upon him. There can be no justification for killing an innocent and helpless child who, through no fault of his own, was caught in the crossfire of a litigious custody battle," said the DPP.


KILLED SON TO HURT WIFE

The sole purpose of the murder was to hurt me as much as possible.

MRS GWENDOLINE GRAFFART, wife of Philippe Marcel Guy Graffart.


PREVIOUS CONVICTIONS FOR SIMILAR CRIMES

Sentencing precedents of people who killed their children while suffering from depression.

LIM LAI CHOO (1992)

Sentence: Nine years

She killed her three children, aged three, two and 21 days, after she was convinced her husband was having an affair. She threw two of them from the 11th floor of a block of flats and the third from the sixth floor before jumping down.

TAN HANG CHENG (1995)

Sentence: Six years

A week after an argument with her husband over the way she raised their children, Tan threw her two daughters, aged two months and three years, from the window of her apartment on the sixth floor. She then leapt from the flat but survived.

GOH HAI ENG (2010)

Sentence: Five years

Depressed over her divorce and financial burden, she stabbed her 14-year-old daughter before drinking a cocktail containing alcohol and the medicine she had been prescribed for her bipolar disorder.


Wife's allegations did not weigh into sentence imposed

The estranged wife of Philippe Graffart submitted a victim impact statement to the court, making various allegations against her husband and the killer of their only child.

Judicial Commissioner Hoo Sheau Peng said she took into account that the statement showed the "grief, loss and suffering experienced by the mother of the child".

But the judicial commissioner made clear that the allegations did not weigh into the sentence imposed on Graffart.

In the statement submitted through the prosecution, Mrs Gwendoline Graffart claimed that her husband had threatened to "kill my son".

Rebutting this in his mitigation plea, Graffart's lawyer Ramesh Tiwary said the allegation is misleading and completely untrue. "Our client has never threatened any kind of hurt or injury to Keryan," he said.

Mrs Graffart also alleged that her husband had threatened her, which Mr Tiwary said is irrelevant as his client is not charged with committing any offence against her.

She also made various allegations regarding finances. She claimed Graffart owes taxes in Luxembourg - where the couple met and lived before moving to Singapore - and that she is liable for them.

She also alleged that his creditors have approached her for repayment. Mr Tiwary insisted that his client has settled all his taxes and did not owe her any money.

She also mentioned that she would have to spend €4,000 (S$6,100) for Keryan's last rites. Mr Tiwary said his client accepted that it was his responsibility, but this was not the place to discuss funeral costs.

Responding to a press statement by Mrs Graffart, in which she expressed shock at the sentence and disputed the account of events Graffart admitted to, the Attorney-General's Chambers (AGC) reiterated the words of the judicial commissioner, that this was a tragic case and that the accused's actions had caused " immeasurable pain to the parties left behind".

"In deciding on the sentence, the court determined that the offence was of a serious and grave nature and had been committed by a parent against a young and vulnerable child," said an AGC spokesman.

The spokesman added that Mrs Graffart was "afforded the opportunity to convey to the court the matters that she considered relevant for the purposes of sentencing".

• Additional reporting by Ng Huiwen

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

Public Prosecutor v Mohamad Yazid Bin Md Yusof and others - [2016] SGHC 102

SHC: What makes up a house? Examining the boundaries of ownership of property

Judgments
08 Aug 2016

Strengthening highest office in land

Straits Times
23 Aug 2016

Some Singaporeans might yearn for simpler arrangements after weighing the various proposals heard by the Constitutional Commission to review the elected presidency. A rotational system by appointment would depoliticise the office and emphasise its unifying role, it has been argued. While that role remains as important as ever, it evolved from a purely ceremonial to a custodial one as well in 1991, following many years of debate. There is no turning the clock back now as the rationale for the change remains relevant. However, given the disquiet that has surfaced, it was useful for Singaporeans to hear an elaboration of the political concerns related to the presidency in Prime Minister Lee Hsien Loong's speech at the National Day Rally on Sunday.

In the Republic's particular context, it is the political system which upholds the multiracial edifice within which everything else, including the economy, must function to fulfil shared national goals. A key component of that system is the elected presidency. The President is the symbolic head of the nation. He or she is also the custodian of the reserves and crucial civil service appointments, among other important roles. Hence, all the races should be represented in the presidency over time so that these roles can be fulfilled with the multiracial resolve that one expects to undergird all spheres of action.

This imperative notwithstanding, meritocracy must never be short-changed just so as to have a nominally representative president. Eligibility criteria ought to be adjusted to keep in step with the times, of course. At the same time, they should not be set so high that they would adversely narrow the pool of candidates. The Singapore system as a whole can help to ensure the pool is always large enough by offering the talented of all races opportunities to rise to the top in all sectors.

A reformed scheme should help overcome any propensity that might arise to treat race as a factor of endearment. If this tendency surfaces in electoral contests, however subtly, that would undermine the President's important role of bringing people together, especially when society is put to the test - for example, when shaken by external events or home-grown acts of terrorism.

As important as it is for people to understand the demands of the office - particularly the oversight of crucial national decisions - they should also appreciate the risk of vesting it with supervisory roles that are not in the Constitution at all. Any emergence of two centres of power would tie up the political system in knots. Instead, what would be desirable are refinements that strengthen certain checks and balances but do not unduly hamstring the executive. A sound combination of its functional and symbolic functions would help elevate the elected presidency to an abiding custodian of Singapore's political future.

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

TOC v TOD - [2016] SGHCF 10

[INT] Carriers versus Shippers – The Rotterdam Rules: Striking a more appropriate balance

Commonwealth
08 Aug 2016

Mixed-race teams for presidential contest most plausible approach: Experts

TODAY
23 Aug 2016
Kelly Ng

SINGAPORE — Having presidential candidates contest in mixed-race teams appears the most plausible approach to ensuring that minorities in the Republic get elected as President, political watchers and constitutional law experts said yesterday.

One advantage of this approach is that it mirrors the concept of Group Representation Constituencies (GRC) for parliamentary elections, which Prime Minister Lee Hsien Loong said has become accepted as an important stabiliser in the Republic’s political landscape.

It also avoids the possibility that the elected candidate’s legitimacy and mandate could be affected, unlike the approach of restricting contests to minorities periodically, they added.

The experts were commenting on Mr Lee’s remarks during the National Day Rally on Sunday, where he devoted a significant portion of all three of his speeches reiterating the need to ensure non-Chinese get elected as head of state regularly.

The experts agreed that it would be a “powerful statement of multiculturalism” for a country with a Chinese majority to have a non-Chinese elected by popular mandate as the head of state.

A commission headed by Chief Justice Sundaresh Menon has submitted its suggestions for this and other changes the Government wants to make to the Elected Presidency scheme (EP).

Mr Lee has said a White Paper will be published in due course, outlining how these changes will be effected, before a Bill is tabled in Parliament. He previously said the changes would be made in time for the next presidential election, due by August next year.

The idea of mixed-ethnic group presidential candidate tag teams was among several floated during four public hearings the commission held in April and May to hear from the public.

It was first proposed by former Cabinet Minister S Dhanabalan, who said voters could choose from alliances of two or three candidates, wherein at least one member is non-Chinese. Members of the elected alliance will take turns to be sworn in as President during their term, and be given all the constitutional powers, while the other person can be Vice-President with no separate powers.

Political scientist Bilveer Singh from the National University of Singapore said rotating presidents will allow the office to fulfil its role as a guardian of Singapore’s reserves and appointing key civil servants, as long as all candidates are “qualified and of superb credentials”.

The GRC system, which has been in place since 1988, is a “deep-rooted” one that has been accepted and valued by a majority of the population, he added.

Prof Singh suggested that an alliance-based presidential contest be held after every three or four open elections — which should not disqualify minorities from competing — so that the Republic would definitely have a minority President at least every 15 years.

However, Singapore Management University law professor Eugene Tan felt the GRC-like EP scheme would raise questions of whether a minority candidate is “riding on the coat-tails” of the majority race or a popular running mate.

NUS law professor Thio Li-ann felt the Vice-President may be seen as a “junior or secondary office”, which may defeat the overarching principle of ensuring equal importance among all ethnic groups in Singapore.

Associate Professor Alan Chong, from the S Rajaratnam School of International Studies, added: “The public may ask if we need to pay for two presidents.”

Another suggestion that had been put forward earlier was to occasionally restrict presidential polls to minority candidates. Assoc Prof Chong said this approach would allow the EP to be implemented with “virtues of the nominated presidency”, which was in place until 1991. “Then, nobody complained about Yusof Ishak or Benjamin Sheares,” he said.

Assoc Prof Tan, however, asked if this would adversely affect the “legitimacy and mandate” of the elected President. He questioned: “Will the changes enhance or detract from multiculturalism? Will this change be the start of our instituting group rights? How will it change what ‘meritocracy’ means?”

Nanyang Technological University Assistant Professor Woo Jun Jie, who is also visiting fellow in the Harvard Kennedy School, added: “There is a need to ensure that the electoral process remains sacrosanct.

“It is through this process that presidents attain their legitimacy. Over-adjusting it could diminish the President’s moral authority in the eyes of the public.”

Revamps of the EP scheme aside, Assoc Prof Tan said the main factor to consider would be how each candidate would contribute towards multiculturalism.

“The approach we are likely to take presupposes that only a President of a minority race can be a symbol of our much-vaunted multiracialism. We forget that it was what each did for multiculturalism as President that made all the difference, not the colour of their skin that automatically endowed them as symbols of Singapore’s multiculturalism,” he said.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Kho Jabing v Attorney-General - [2016] SGCA 37

SHC: The purpose of the statement of facts in a plead guilty case

Judgments
08 Aug 2016

Eight things to mind in leveraging the Schooling Effect

Business Times
23 Aug 2016
Yos Pang

CELEBRITY endorsements are a multi-million dollar business and especially prominent in the world of sports. Companies such as Nike, Under Armour, Puma and Omega spend millions of dollars securing prized endorsements from famous athletes such as Michael Phelps, Usain Bolt and Serena Williams.

Here in Singapore, we are already witnessing the "Schooling Effect", with various brands seeking to leverage the star power of Singapore's first ever Olympic gold medallist.

While celebrity endorsements can be a great way to build awareness of and position the brands, there are some important legal and commercial considerations for brands to bear in mind. Here are our eight key takeaways for brands.

Have a contract in place

This is to avoid false celebrity endorsement, where it appears that there is an endorsement by a celebrity for a brand when there is in fact none.

The celebrities have a right to take legal action against a brand if the brand comes across as misrepresenting its association with the individual. They may be allowed to do so to protect them against damage arising from a false claim or suggestion of endorsement of a third party's goods or business. In some cases, celebrities have registered intellectual property rights such as trademarks and these could also be infringed where there is no contract in place. In short, tread carefully when leveraging star power.

Be clear as to what the celebrity must do

For example, how many shoots must the celebrity show up for? Are they doing sponsored tweets? If so, how many and when? Do they have to seek approval before posting comments on social media? Clearly defining the celebrity's responsibility goes a long way in avoiding future disagreements.

Protect yourself from brand damage

By connecting your brand with a celebrity, you obviously hope to generate substantial goodwill. By the same token, however, if there is an incident involving the celebrity with adverse media coverage, then that could actually damage your brand or adversely affect the reputation of your business. This is usually addressed through contractual protections, including commitments from the celebrity and termination rights.

Define and scope out exclusivity

This will ensure that the value of the investment on the celebrity endorsement will not be eroded because of an association between the celebrity and a competitive product. As a rule of thumb, the endorsement deals should set out the period and scope of exclusivity. You might want to prohibit the celebrity from undertaking incompatible or potentially offensive, inappropriate or controversial marketing programmes. Consider whether the celebrity should seek approval before entering into any other endorsement. It is also important not to agree to contracts that conflict with one another.

Stay tuned to sponsorship issues and restrictions, especially with sports events

For example, in the past, Olympics athletes were prohibited under International Olympic Committee (IOC) rules from tweeting about non-official sponsors. With the recent changes to IOC's rules, athletes can now endorse non-official Olympic sponsors on social media but they need to be careful not to suggest that they are an official sponsor of the Olympic Games themselves. There can be similar issues with other large international sporting events.

Beware of ambush marketing: Non-sponsors of the Olympics are also not allowed to feature Olympic athletes that they have sponsorship deals with in ads. The IOC has always taken a very hard stance on this issue because it considers it as "ambush marketing". The IOC is keen to protect sponsorship as a key source of its revenue. Simply put, ambush marketing is seen as a way for companies to leverage the Olympics by creating an unlicensed association with the games. According to reports, the IOC has recently written to the Singapore National Olympic Council on concerns over companies in the city-state associating their name with Joseph Schooling. Various other companies and countries have also been warned by the IOC in the past on similar issues.

Protect ownership of intellectual property rights

the endorsements should state that all content - whether created or contributed by the celebrity or featuring the celebrity on all media, including online content, television and social media - are owned by or assigned to the brands for an unlimited period of time. Of course, the celebrity should retain his or her image rights but grant the brand a licence to use them as part of the campaign.

Decide what approvals the celebrities have over the materials

On one hand, celebrities may want approval rights on the use of their name, photographs and likeness to protect their reputation. However, they should not be able to withhold approvals unreasonably and there should be a defined process around it. For example, brands could set out the scope of materials for approval and a timeframe within which the celebrity must approve the materials.

All good things must come to an end

It is important to have safeguards in place in the event of termination or expiry of the endorsement deals. Key termination clauses to include are: (a) termination (and disclaimers) rights if the athlete is injured, suspended for doping or bad behaviour; and (b) winding down period of the product endorsements for a temporary period of time after termination or expiry.

The writer is a commercial lawyer at Holborn Law LLC in association with Olswang Asia

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

Kho Jabing v Public Prosecutor - [2016] SGCA 36

SCA: Key developments in passing off, instruments of deception and groundless threats of copyright proceedings

Judgments
05 Aug 2016

To due process, add sensitivity

Straits Times
23 Aug 2016
Kok Xing Hui

Early this month, lawyer Edmund Wong humiliated a molestation victim in court, asking her to stand up to show how attractive she was. He said if she was voluptuous and wearing a low-cut top, the more likely it was that she would get molested.

Such victim blaming has happened before. In July, a letter in The Straits Times Forum page suggested that women get molested because they wear short shorts. This mindset is unacceptable. It is even more so when it happens in court, where rape and molestation victims are facing the accused and reliving the assault.

Singapore Management University law don Eugene Tan said: "Any case of inappropriate court conduct is one case too many."

Thus, it is welcome news that the Government has been looking at how female victims of sexual assault are treated, not just in court, but throughout the entire process - including the police statement and hospital examination - to see if it can be made more sensitive. However, while it is important to be more sensitive to victims, there is also a need to ensure that a fair trial for the accused is not compromised.

But striking the right balance with written rules is not easy, as Law and Home Affairs Minister K. Shanmugam told The Straits Times recently.

Nevertheless, the fact that the Government wants to make procedures more sensitive is a signal to society that misogyny and victim blaming are not right. Society's view is crucial.

If a victim confides in someone about being raped but is told her dressing, behaviour or alcohol consumption must have led to the rape, she would be less likely to report the incident, said women's group Aware. In 2013, only a third of the 132 women who contacted its sexual assault helpline made police reports.

It is about time the Government looked into the relevant processes. Women victims of sexual assault should not be humiliated because of victim blaming or the misogynistic view that looseness equates to consent to sex. They should feel that the courts will accord justice.

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

TDT v TDS and another appeal and another matter - [2016] SGCA 35

MAS proposes enhanced requirements for protection of client moneys and assets held by capital markets intermediaries

Business
04 Aug 2016

Heralding a tougher global tax era

Business Times
23 Aug 2016
Francis Kan

New rules aim to counter the artificial shifting of profits to low or no-tax locations to lower overall tax burden

CHANGES to international tax rules aimed at foiling companies that exploit loopholes to pay less tax will impact the way businesses operate across multiple jurisdictions.

The new rules are designed to counter what is known as base erosion and profit shifting (BEPS), where companies artificially shift profits to low or no-tax locations to lower their overall tax burden.

This impacts developing countries in particular due to their heavy reliance on corporate income tax, especially from multinational corporations (MNCs). Revenue losses from BEPS are conservatively estimated at US$100 billion to US$240 billion annually, or anywhere from 4-10 per cent of global corporate income tax revenues.

Tax consultants note, however, that the impact of the BEPS measures go far beyond tax, and are forcing companies to take a fresh look at how they are legally structured globally, their transfer-pricing policies and even the way they control, manage and finance their global operations.

"The tax changes sweeping the globe, whether already implemented or proposed, will affect almost every element of the global business model," says Chung-Sim Siew Moon, tax partner and head of tax, Ernst & Young Solutions LLP.

Organised information

For instance, global businesses will need to rethink their value chain and where to locate business operations, people and resources. Meanwhile, increased transparency standards such as common reporting standards and country-by-country reporting means that companies will need to provide more information about their global operations in a consistent and organised manner.

Sivakumar Saravan, executive director, Crowe Horwath Singapore, says: "Increased transparency and compliance requirements arising from the measures recommended to counter BEPS has resulted in businesses rethinking the way they collect, organise, process, analyse, store and present information.

"Multinational enterprises may have disparate information systems to deal with specific country-level compliance such as customs, labour law, tax concessions, business licensing, value-added tax and so on. Harmonising the information-gathering process across the globe is becoming a key priority."

These changes will place an additional burden and cost on companies at a time when business is generally slowing amid a sluggish global economy.

Kwan Chang Yew, head of tax, group tax, DBS Bank, says: "The challenge for businesses, and particularly the tax departments, is that all these additional demands are happening in a period where the global economy does not support the case to increase resources available for tax work."

In Singapore, which has used competitive tax rates and the award of tax incentives to attract investments, some have questioned whether such practices will be allowed when the new rules kick in.

Sum Yee Loong, board member, Singapore Institute of Accredited Tax Professionals, says: "In light of Action 5 of the BEPS Report (Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance), there is speculation as to whether Singapore can continue to award tax incentives."

The professor of accounting at the Singapore Management University adds, however, that "as the award of tax incentives in Singapore is based purely on merit and substance, Singapore should be able to substantiate and justify these awards".

Challenging times

As a result of the BEPS Project, the last three years has been particularly challenging for professionals across the tax spectrum, from in-house finance and tax functions, tax professionals and also tax administrations.

Explains Ms Chum-Sim, who is also an accredited tax adviser (income tax & GST): "Tax issues, specifically cross-border tax issues including disputes, are getting more complex. We play a critical role in assisting companies to comply with tax laws and their changes. With rapid tax changes, it is critical to keep abreast of tax developments to access the impact on our clients' businesses."

Notes Mr Kwan, who is also an accredited tax adviser (income tax): "In addition to resolving technical tax issues, in-house tax professionals will now need to become greater partners with the rest of the organisation. Going forward, tax professionals will also be expected to fully understand the business, the regulatory and economic�impact over that business, as well as the consequent implications to tax compliance and reporting."

One area of focus for BEPs is transfer pricing, which refers to the pricing of goods, services and intangibles between related parties. It is a major tool for tax avoidance when misused to lower profits in a division of a company that is located in a high-tax country and raise profits in a country that is a tax haven.

Companies planning to expand overseas will have to pay more attention and provide more resources to transfer pricing issues, according to Prof Sum. "This is particularly pertinent for SMEs taking their initial steps beyond Singapore and whose attention may be on other business issues, unaware of the downstream implications of transfer pricing."

According to him, the Singapore authorities may wish to consider whether it is appropriate to have legislation for transfer pricing to provide more clarity for businesses.

Indeed, says Mr Sivakumar, who is also an accredited tax adviser (income tax), the BEPS Project may cause some uncertainty among organisations that are considering starting operations in the city-state.

"This is because as the implementation of the BEPS recommendations unfolds, businesses may take an overly cautious approach while other tax administrations may take an overly aggressive stance. This might cast a shadow on Singapore's status as a regional business hub. But I feel this will be temporary."

Views expressed are not intended to represent the position of any company.


Closing tax avoidance loopholes

THE OECD/G-20 Base Erosion and Profit Shifting (BEPS) Project is designed to provide solutions for governments to close the gaps in existing international rules that allow corporate profits to�"disappear" or be artificially shifted to low or no tax environments, where companies have little or no economic activity.

In February 2016, the OECD (Organisation for Economic Co-operation and Development) agreed on a new framework that would allow all interested countries and jurisdictions to join in efforts to implement the BEPS Project. This new forum will provide for all interested countries and jurisdictions to participate as BEPS Associates, who will then work with the OECD and G-20 members on the remaining standard-setting under the BEPS Project, as well as the review and monitoring of its implementation.

"Drawing on the G-20's leadership, countries worldwide are working closer than ever to shut down the loopholes that facilitate tax avoidance," said OECD secretary-general Angel Gurr�a in February.

"The plan we are presenting today will create the largest and most inclusive forum for discussions and decisions on implementing the BEPS measures and ensuring a stronger and fairer international tax system. It is another strong signal that behaviour which was considered both legal and normal in the past will no longer be accepted."

The framework's mandate will focus on the review of implementation of the four BEPS minimum standards, in the areas of harmful tax practices, tax treaty abuse, Country-by-Country Reporting requirements for transfer pricing and improvements in cross-border tax dispute resolution.

Singapore has said that it would join the framework as a BEPS Associate. By joining this framework, the Republic will work with other participating jurisdictions to ensure the consistent implementation of measures under the BEPS Project, and a level playing field across jurisdictions, the Ministry of Finance said in a statement in June.

"Singapore supports the key principle underlying the BEPS Project, namely that profits should be taxed where the real economic activities generating the profits are performed and where value is created."

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

Terrorism (Suppression of Financing) Act - Terrorism (Suppression of Financing) Act (Amendment of First Schedule) (No. 2) Order 2016 (S 404 of 2016)

[INT] Notification injunction: A novel approach

Commonwealth
03 Aug 2016

Changes to elected presidency soon

Straits Times
22 Aug 2016
Charissa Yong

Singapore's Constitution will soon be changed to ensure that ethnic minorities are elected as president from time to time.

Individuals who want to run for president will also have to meet stricter requirements.

Announcing the impending changes, Prime Minister Lee Hsien Loong said that the Government accepts in principle the recommendations of the high-level panel to review the elected presidency.

The Constitutional Commission, which started its work six months ago, submitted its report last week. The Government is studying the report and it will be released "soon", said Mr Lee.

Detailing the process by which the law will be changed, he said the Government will publish a policy White Paper on the exact proposed changes.

Following that, it will introduce a Bill in Parliament to amend the Constitution to include the changes to the elected presidency.

The details of these changes will be debated in Parliament after that, and at least two-thirds of the 89 elected MPs must vote for the amendment before it can be passed.

While Mr Lee did not go into the details of the specific changes recommended by the commission, he spent significant portions of his three speeches - in English, Mandarin and Malay - making the case for reform.

The commission, first announced in January, was tasked to examine three areas of review. These are raising the eligibility criteria for candidates, strengthening the Council of Presidential Advisers (CPA), and ensuring minorities are elected from time to time.

The last issue was the most contentious and during the public hearings, some experts said such a tweak was necessary to ensure minority representation. Others were concerned that doing so would be affirmative action at best and an unmeritocratic move at worst.

Last night, in his starkest comments to date on the issue, Mr Lee said it is important that Singapore ensures that minorities regularly have a chance to become president so they feel assured of their place in society.

Race, he said, still matters in Singapore despite progress in race relations the past 50 years.

This puts minority candidates at a disadvantage, especially now that presidential elections are hotly contested.

Thus, if changes to the law are not made, said Mr Lee, minorities may ask if they are truly equal and the Chinese majority may become less sensitive to the needs of other races.

Reforms must therefore be implemented now while society is united, he said.

Such periodic political reviews are essential to Singapore's survival, argued the Prime Minister.

While the political system here is good, some aspects of it need to be updated, he said.

"If the political system malfunctions, we fail to produce good leaders whom we trust and work with, or we can't work together among ourselves and we are divided, then all our best laid plans will come to naught," he added.

He pointed to anxieties and pressures in other countries that had led to deep fault lines between the haves and the have-nots, and to a mistrust of political leaders.

For instance, Britain had voted to leave the European Union for complex reasons that included socioeconomic inequality and a lack of faith in the political class.

Such a situation can also happen in Singapore unless its politics unite the country and uphold multiracialism, he added.

Besides ensuring ethnic minority representation, changes to give more weight to the advice of the CPA have been proposed and will be incremental and straightforward, he said.

Also, the criteria for someone to be a candidate for president should be raised to ensure that the president, who safeguards reserves and senior civil servant appointments, has the right experience.

Mr Lee argued that the president has to make critical economic and policy decisions sometimes, which is why Singapore needs the best qualified person for the job.

The current criterion of having had experience running large, complex companies with paid-up capital of $100 million is out of date and thus has to be updated, he said.

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

International Child Abduction Act - International Child Abduction (Contracting States) (Amendment No. 4) Order 2016 (S 403 of 2016)

[CHN] Understanding China’s current outbound investments

Commonwealth
04 Aug 2016

S'porean lawyer is talk of the town in speaking

Straits Times
22 Aug 2016
Annabeth Leow

A 27-year-old lawyer became the first Singaporean to win the World Championship of Public Speaking in Washington, DC, on Saturday.

Mr Darren Tay, a regular member of the Punggol Park Community Centre Toastmasters Club, beat nine other speakers to take the top spot at the annual public speaking competition.

According to Toastmasters International District 80, which manages clubs in Singapore, Mr Tay is the second Singaporean representative to have made it to the competition's final round.

Last year, Mr Manoj Vasudevan clinched third place.

The World Championship of Public Speaking has been held by Toastmasters International since 1938, with a two-year break during World War II.

Originally an offshoot of the Young Men's Christian Association, Toastmasters International is a global network of clubs that promotes public speaking, and has more than 345,000 members across 142 countries.

In order to qualify for the World Championship of Public Speaking, club representatives must first compete and win at the local level.

The semi-finals were held on Thursday last week in the capital city of the United States to determine the 10 finalists.

The finalists were then required to deliver speeches of between five and seven minutes in front of a panel of judges.

Toastmasters International District 80, in a Facebook post, wrote: "Thank you Darren and the team of District 80, for flying the red and white flag of Singapore high, and with distinction.

"May your victory inspire the lives of many aspiring District 80 speakers in the future and beyond."

Mr Tay, a graduate of the National University of Singapore law faculty, has been involved in public-speaking contests since he was a teenager, and also works as a public-speaking coach.

He is scheduled to arrive in Singapore tomorrow morning.

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

Monetary Authority of Singapore Act - Monetary Authority of Singapore (Freezing of Assets of Persons - Cote d'Ivoire) (Revocation) Regulations 2016 (S 402 of 2016)

SCA - Substantive legitimate expectations: Slow and steady

Judgments
03 Aug 2016

Serving court papers via e-mail, social media cost-effective, faster: Lawyers

Straits Times
21 Aug 2016

When lawyers from WongPartnership served court documents on Mr Chris Au on Aug 12, they were not handed to him in person. Instead they were sent to Mr Au via e-mail and Facebook.

It is believed to be one of the first times this has happened since the High Court ruled in March that court papers can be served through Facebook, Skype and Internet message boards.

Then, High Court assistant registrar Zhuang Wenxiong granted such an application for documents to be served on an Australia-based defendant in a copyright suit.

Ordinarily, court documents are served in person by an individual known as a process server who physically hands over the documents to the third party.

Lawyers told The Sunday Times the new ruling will allow the courts here to keep pace with technological developments and lead to quicker and more cost-effective modes of service.

In his judgment grounds released in May, assistant registrar Zhuang wrote: "If the cornerstone of substituted service is efficacy at bringing notice, then a court must be open to substituted service through electronic means other than e-mail."

In the latest case, lawyers from WongPartnership applied to serve notice on Mr Au after they were unable to physically reach him.

IP lawyer Cheah Yew Kuin from Baker & McKenzie.Wong & Leow, said: "Service via e-mail or social media is just one other tool we are able to use to bring a suit to the attention of the defendant. It is using the technology, to assist the court in doing something that is currently being done by traditional methods."

Mr Cheah was one of the lawyers who applied for substituted service in the case that led to the March ruling. These traditional methods include pasting notices at the last known residential address or business premises of the defendant, or posting a notice in a newspaper.

Veteran lawyer Amolat Singh said that the new ruling showed the "evolutionary nature of the law": "There are people who make themselves scarce, but are quite active on Facebook. The long arm of the law has now stretched to social media."

But criminal lawyer Sunil Sudheesan cautioned that lawyers must be certain they are serving documents on the right person online.

He pointed out that a Facebook account could be run by several people: "The point remains whether identity can be ascertained... we need to be cognizant of these issues."


WHO SUED AND WHY

Court documents show a record of legal suits that have been filed against Mr Au and his companies in the last few years. Their outcomes are not known.

AGAINST MR AU

UOB bank for $81,033 in 2016

Reason: For banking, credit facilities, overdraft or guarantees.

Lawyer Wong Kai Yun for $300,000 in 2016

Reason: Mr Au allegedly issued Ms Wong a $300,000 cheque that bounced on a car deal involving his Lamborghini Aventador.

Standard Chartered bank for $148,219 in 2015

Reason: For banking, credit facilities, overdraft or guarantees.

Standard Chartered bank for $165,028 in 2014

Reason: For banking, credit facilities, overdraft or guarantees.

AGAINST CATALUNYA, WHERE MR AU WAS CEO AND DIRECTOR

Law firm Rajah and Tann for $43,742 in 2016

Reason: For legal fees, disbursements and GST.

Chia Kun2 Cleaning Centre for $38,160 in 2016

Reason: For provision of services.

Bacardi-Martini Singapore for $50,663 in 2016

Reason: For sale of goods.

Precious Quay for $1.068 million in 2016

Reason: For rental.

Twin Creation for $156,580 in 2015

Reason: For provision of cleaning services.

Iconic Locations for $1.136 million in 2015

Reason: For sale of goods and services.

Million Lighting Co for $66,481 in 2013

Reason: For sale of goods.

AGAINST AU CHOCOLAT, WHERE MR AU IS DIRECTOR

Indoguna for $14,071 in 2015

Reason: For sale of goods.

Songlilai Trading Enterprise for $8,483 in 2014

Reason: For goods sold and delivered.

Marina Bay Sands for $583,039 in 2014

Reason: For rental.

Kingsmen Exhibits for $196,363 in 2013

Reason: Over a contract, specifics not known.

Danson Cheong

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Town Councils Act - Town Councils (Disbursement of Moneys from Sinking Fund) (Amendment) Rules 2016 (S 401 of 2016)

Trade Marks Act amended to allow appeals against interlocutory decisions issued by the Registrar of Trade Marks

Legislation
03 Aug 2016

Ex-Ku De Ta boss facing fresh lawsuit

Straits Times
21 Aug 2016
Danson Cheong

Court notice issued, seeking to pull him into new trademark infringement lawsuit

Once, businessman Chris Au seemed part of the jet set.

The entrepreneur from Hong Kong ran trendy restaurants in prime locations here, including Marina Bay Sands (MBS) and by the Marina Bay waterfront.

He was a member of a supercar club and his restaurants were featured in high society magazines.

But in the last three years, Mr Au - a permanent resident here - and his companies have been besieged by lawsuits. His restaurants have also closed one after the other.

Records show that in the last three years, Mr Au has been sued twice by Standard Chartered Bank, and once each by UOB bank and family lawyer Wong Kai Yun.

And most recently, on Aug 12, Iconic Locations - a company where Mr Au was once director and chief executive - issued him a court notice, seeking to pull him into a trademark infringement lawsuit.

The company, now controlled by L Capital Asia - the investment arm of French luxury group LVMH Moet Hennessy Louis Vuitton - runs the Ce La Vi nightclub atop MBS.

L Capital bought a majority stake in the nightclub in 2014, when it was still called Ku De Ta. A year later, the club changed its name to Ce La Vi after a Court of Appeal ruling.

Then, the court decided after a five-year legal battle that Nine Squares, the company that licensed the trademark and the use of the Ku De Ta name to Iconic Locations, did not own the trademark after all.

That belonged to a popular Bali beach club by the same name that started in 2000. The MBS club opened in 2010.

Now, Iconic Locations is being sued by the partners of Ku De Ta Bali for damages, and the profits it allegedly made from using the Ku De Ta name.

In its notice to Mr Au, Iconic Locations alleges that he had "solely or primarily caused the losses" claimed by the Bali partners.

In their third party notice served on him via Facebook and e-mail, it said Mr Au was then the company's CEO and director, and "represented the sole directing mind and will".

Mr Au had acted in breach of his duties and "solely or primarily caused the losses" alleged by the Bali partners, said the notice.

The company is seeking indemnity from Mr Au or otherwise wants him to contribute to the claims.

Iconic Locations is represented by Senior Counsel Alvin Yeo, Ms Koh Swee Yen and Ms Sim Mei Ling from WongPartnership.

In their statement of claim filed with the courts, the Bali partners also said Mr Au knew of their interest in the Ku De Ta trademark as early as 2009.

"Au schemed with (Daniel) Ellaway and another business partner, one Karl Patel, as to how to circumvent the Ku De Ta Partnership's beneficial interest in the trademark," said the statement.

Mr Ellaway was a friend of one of the founding partners of the Bali club.

Mr Au is also locked in another legal battle in Hong Kong with his former business partners over proceeds of $100 million from the sale of Ku De Ta to L Capital in 2014.

Mr Au did not respond to repeated requests for comment.

He is also tangled in a suit with Ms Wong, who is suing him for bankruptcy, after he issued her a $300,000 cheque in March which bounced.

Ms Wong claims the money was allegedly meant to reimburse her for import-related taxes she paid on Mr Au's behalf to bring a Lamborghini Aventador into the country. Mr Au's position is that Ms Wong paid that sum to co-own the car with him.

The case made headlines in June, and Mr Au has hit back at Ms Wong, claiming she has defamed him.

In his counterclaim, he points to an e-mail Ms Wong sent to members of her car club, in which she tells them about the bounced cheque and her intentions to sue, asking for information on his whereabouts.

"It is abundantly clear that the intent of the e-mail, with the disparaging comments and obvious lies, was a malicious act with clear malice to seriously injure the reputation of the defendant (Mr Au)," wrote Mr Au in his counterclaim.

He is also claiming for loss of use of the car, which was allegedly used by Ms Wong for at least six months in 2013.

But in her response filed by her lawyers from Chia Wong LLP on Aug 8 with the courts, Ms Wong denies damaging Mr Au's reputation, on the basis that banks and other creditors have taken up lawsuits against him. She goes on to list a record of legal suits.

For instance, she notes that he was sued by Standard Chartered and UOB bank for close to $400,000.

She adds that Mr Au ran two of his restaurants "to the ground" as their director.

The Spanish restaurant Catalunya, where Mr Au was CEO, is being sued by its landlord Precious Quay for $1.068 million in outstanding rent. The $5 million restaurant closed in June after it opened four years ago to much fanfare at the Fullerton Pavilion.

Company records reveal that Mr Au pulled out as a director of the restaurant in May, just before it closed.

The restaurant's suppliers and cleaning contractor have also taken up lawsuits against it. Law firm Rajah and Tann is also suing it for outstanding legal fees.

Another of Mr Au's MBS restaurants, the bistro Au Chocolat, was also sued by its landlord and suppliers. It closed in 2014.

Asked about the spate of lawsuits he is facing, Mr Au again declined to comment.

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Terrorism (Suppression of Financing) Act - Terrorism (Suppression of Financing) Act (Amendment of First Schedule) Order 2016 (S 400 of 2016)

[GBR] English CA opines that an “anti-oral variation” clause in a contract does not necessarily preclude the contract from being varied orally or by conduct

Commonwealth
03 Aug 2016

Renovation nightmares instead of dream homes

Straits Times
21 Aug 2016
Jalelah Abu Baker

Only just over half of complaints filed with Case resolved last year, compared to 78 per cent in 2014

A couple were due to move into their new Telok Kurau condominium apartment in April, but four months on they are still living in rented accommodation, and $63,000 out of pocket.

Mr Matthew Alan, a permanent resident and his Singaporean wife, hired an interior design company to renovate their newly-bought condominium unit on Feb 2, shortly before their daughter was born.

When they visited the flat just before its expected completion date in April it looked more like a demolition than renovation, Mr Alan said. Debris from knocked-down walls littered the floor, cabinets lay uninstalled and wooden panels were stacked haphazardly.

They are not alone in their misery. The Consumers Association of Singapore (Case) received 1,447 complaints against renovation contractors last year, just 15 fewer than in 2014.

Home renovation contractors were the fourth most complained about industry here last year, behind the vehicle, electrical and electronics, and beauty industries.

What is worse - among the cases filed with Case, only slightly over half were resolved last year, compared to 78 per cent in 2014.

Case executive director Seah Seng Choon said the fall was down to "more complaints involving higher contractual value and complex issues where parties were unable to reach a settlement" as well as "complaints where companies decline mediation as a means of dispute resolution".

The most common complaints pertained to failure to honour contractual obligations and unsatisfactory services.

Affected homeowners told The Sunday Times they believed that the contractors knew that their clients would not take legal action against them because of the expense involved.

From January to July this year, Case received a total of 800 complaints - including one from Mr and Mrs Alan.

The couple say they paid 90 per cent of the total cost of $70,000 to interior designers from Sense Ideas Design progressively over four weeks. The renovation was due to last six to eight weeks.

Mr Alan, 33, a podiatrist, said: "We shortlisted five companies and we didn't choose this one because it was the cheapest. It was because they seemed to get our concept."

They had wanted to be able to move into the home to give their daughter a conducive "health conscious" environment to play in, complete with a small gym area and a rock-climbing wall.

The interior designers initially asked for an extension in the completion of the project, but eventually sent a text to the couple saying they were in financial difficulty, and could not continue, said the couple.

Making a police report, visiting the Member of Parliament for their area and going to Case did not help their situation. They turned to a debt recovery company, but have yet to receive a cent back, they added.

Mr Alan's 33-year-old wife, a sales manager, who did not want to be named, said: "The first couple of weeks, we had sleepless nights. There was tension. But now, it's like we have to move on."

Mr Alan said they have sent a letter of demand to the company through a lawyer and are waiting to hear back from them. They extended their lease on the Guillemard Road condominium apartment that they have been renting.

On top of the monthly rent, they have had to fork out close to another $50,000 to get another contractor to finish the job. Calls and e-mails to the interior designers by The Sunday Times went unanswered.

Another homeowner, who wanted to be known only as Ms Kasthuri, 27, a regulatory affairs specialist, lost $28,000 to a renovation contractor, who she did not want to name.

She and her husband had been referred to a contractor and arranged to meet him at a showroom. However, when they got there, only his colleague was there, so they discussed their ideas with him.

The man they spoke to left the company shortly after, but as he already knew what they wanted and was able to give them a quotation to do the job within their budget of $30,000, they hired him.

For the first month, they would check on the progress of their flat in Sembawang after work and see progress.

"A month later, everything seemed to stop. We saw the same loose wire hanging in the kitchen every time we went," she said.

They set up an appointment with the contractor, and started getting suspicious when one day, after arranging to meet, the contractor did not turn up, despite many calls.

Eventually, the contractor told them that he could not continue as he was taking care of his fiancee's father, who was was dying, even sending photos of the patient in hospital.

"We felt sorry, but that didn't mean he could just not complete what was in our contract," she said.

When the couple took him to the Small Claims Tribunal, the judge told the contractor to pay the couple $6,000, which he allegedly did not.

Ms Kasthuri's parents-in-law eventually paid another contractor $20,000 to complete the renovation.

Mr Adrian Wee, a commercial litigation lawyer, said that every month, his firm sees three to four cases of homeowners whose renovation contractors go missing or leave the project incomplete.

He said that when those who have lost $40,000 or less check with him, he would ask them to reconsider, as the legal fees may not justify the risk and cost.

He advises being stricter in payment terms.

"For example, if the work is 40 per cent done, you'd want to have paid 45 or 50 per cent, at the maximum, not 80 per cent."

800 Number of complaints Case received from January to July this year 1,447 Number of complaints Case received against renovation contractors last year 1,462 Number of complaints Case received against renovation contractors in 2014


800

Number of complaints Case received from January to July this year

1,447

Number of complaints Case received against renovation contractors last year

1,462

Number of complaints Case received against renovation contractors in 2014


Advice for home owners

The Consumers Association of Singapore (Case) gives this advice to home owners looking to protect themselves against errant contractors.

• Consider an accredited contractor from CaseTrust (www.casetrust.org.sg). While this does not guarantee that there will not be any problems, consumers are assured of the availability of dispute resolution measures.

• Consider using a model agreement, such as the one on Home Renovation provided by Case (https://www.case.org.sg/pdf/model_renovation%20(1).pdf).

• Payment for services should be rendered progressively as the renovation continues. Do not make full payment upfront.•

• Know your dispute resolution avenues. Besides Case, consumers can also lodge a claim via the Small Claims Tribunals. Note details like claim amount limits and one-year time limits.

• The contract agreement should reflect clear, itemised billing and listing of products and services.

• Obtain different quotations before committing to a service package so that you will be less vulnerable to misrepresentation, overcharging and pressure sales tactics


SLEEPLESS NIGHTS

The first couple of weeks, we had sleepless nights. There was tension. But now, it's like we have to move on.

MRS ALAN, a home owner, on the $63,000 she and her husband lost after their renovation job went sour.


UNFINISHED JOB

A month later, everything seemed to stop. We saw the same loose wire hanging in the kitchen every time we went.

MS KASTHURI, a home owner, on her bad experience with a contractor.


WATCH WHAT YOU PAY

If the work is 40 per cent done, you'd want to have paid 45 or 50 per cent, at the maximum, not 80 per cent.

MR ADRIAN WEE, a commercial litigation lawyer, on payment terms.

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Securities and Futures (Amendment) Act 2012 - Securities and Futures (Amendment) Act 2012 (Commencement) Notification 2016 (S 399 of 2016)

MAS to further strengthen anti-money laundering enforcement

Business
02 Aug 2016

Abercrombie & Fitch wins trademark fight

Straits Times
20 Aug 2016
K.C. Vijayan

S'pore firm unable to justify why it chose 'A&F', moose silhouette as marks for its eyewear products, says Ipos

American casual wear brand Abercrombie & Fitch has won its battle to stop a Singapore company from registering the A&F abbreviation and moose silhouette design as a trademark for eyewear products.

In 2013, MMC International Services had tried to register the "A&F" abbreviation and moose silhouette as a trademark here for spectacles and related accessories, arguing that these were for a class of products for which none of Abercrombie & Fitch's earlier marks were registered. MMC claimed it had " first-mover advantage".

Principal Assistant Registrar Sandy Widjaja of the Intellectual Property Office of Singapore (Ipos) was not convinced, noting that MMC could not justify why it chose this trademark.

"A&F cannot be an acronym of the applicants since they are MMC International Services," she said.

She said MMC's failure to explain why it combined both marks for its use "can only lead to the irresistible conclusion that the application mark was slavishly copied from (Abercrombie & Fitch) by a 'cut and paste' job".

In judgment grounds released yesterday, she noted that MMC did not show up at the May hearing but had relied on written submissions.

"A look at the documents referred will reveal very little information has been provided."

Drew & Napier lawyers, led by Ms Eileen Chong, argued that Abercrombie & Fitch marks had been in use here since at least 2002 when online purchases of its products became available in Singapore.

The wide publicity enjoyed by the American brand when its physical store opened in Orchard Road in 2011 meant MMC would have been aware of its marks, they said.

Total sales at the brand's store here for the two years from 2012 amounted to about $55 million. The major global player in retail clothing recorded $2.37 billion in sales worldwide in 2013.

Ms Widjaja said the MMC move may affect the American brand if it were to expand into eyewear products in future.

She noted that there is also "a likelihood of misrepresentation that (both parties) are one and the same or that they are economically linked".

MMC was ordered to pay costs, which have yet to be decided.

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

Abercrombie & Fitch Europe SAGL v MMC International Services Pte Ltd [2016] SGIPOS 06

Consumer Protection (Fair Trading) (Amendment) Bill (Bill 25 of 2016)

Enhanced government-paid employee parental leave entitlements effective 2017

Business
02 Aug 2016

Bridal studio sues couple for defamation

TODAY
20 Aug 2016
Valerie Koh

SINGAPORE — The bridal studio that gained infamy over a wedding photograph fiasco is embroiled in controversy again, over a soured deal with another couple.

Feline Wedding, owned by Ms Wang Choong Li, has sued a couple for defamation, after the couple took to the bridal studio’s Facebook page to voice concerns over what they alleged were unethical business practices.

The couple in turn has lobbed a counterclaim at the bridal studio, asking for a refund of their package deal — which amounted to nearly S$4,000 payable over 12 monthly instalments — and costs, among others.

Feline Wedding made headlines four months ago, after a newly-wed made light of her poorly-taken wedding photographs on Facebook. Her post featuring 21 photos took social media by storm, and was shared over 20,000 times.

The court case involves another couple, Mr Neo Wei Quan and Ms Michelle Tang. They had signed up for a wedding package at a Feline Wedding roadshow at Bugis+ shopping mall in December 2014, according to court documents.

The deal, said the couple, included any gown from the bridal studio, a suit and hair and make-up services for the Registry of Marriages (ROM) ceremony. Free alteration for the gown would be provided, and if none of the pieces was satisfactory, Ms Tang could opt for a customised gown.

The shop assistant attending to them also promised the studio’s “best” make-up artist and photographer for a photoshoot in Taiwan, claimed the couple.

But things started to fall apart during their first visit to the studio at Alexandra Road in March 1 last year.

The couple alleged that only a “limited selection” of gowns was available, and no alteration was allowed. Instead of a suit as promised, Mr Neo was only provided with a blazer.

They were also apparently told that hair and make-up services would only be available after 11am, and hence, were “forced to reschedule” their ROM ceremony.

The icing on the cake was that they had to choose the same date as “at least one other couple” for their photoshoot in Taiwan, or the shop would not send their in-house make-up artist overseas.

On March 15 that year, Mr Neo returned to the studio with his father to demand a full refund of the S$1,300 that had been paid by then. He was told to make an appointment with an authorised representative.

The next day, Mr Neo and Ms Tang, together with their family members, met the store manager. They came to the agreement that the remaining instalments would be halted until the shop “regained the (couple’s) trust”.

But the shop’s owner Ms Wang intervened and called off the agreement. Three days later, the couple sent an email to Feline Wedding, asking to call off the deal.

Around this period, Mr Neo and Ms Tang lodged a complaint with the Consumers Association of Singapore and wrote about their negative experience on the studio’s Facebook page, threatening legal action. They also urged other netizens to contact them with their accounts to strengthen their case. The studio served them with court papers in May last year, asking for damages for libel.

In their defence, the couple said that Feline Wedding had a “general bad reputation” for being unprofessional and failing to deliver on their services or products. They claimed that there have been “numerous negative reviews” posted by former and current customers on the studio’s Facebook page and Internet forums.

Denying these, the studio charged that the couple wanted to call off the deal without incurring any costs after “purchasing outfit(s) online at a cheap price”. The case is currently before the courts, with a pre-trial hearing scheduled at the end of the month.

In a separate case that has since concluded, Ms Wang was in a copyright tussle with Hong Kong celebrity Rosanne Wong over her photographs. The singer-actress sued her for using her pre-wedding photographs at exhibitions and publishing her wedding day photographs in a coffee table book.

While Ms Wong won the suit in a district court, the High Court overturned the judgment for the latter case in May last year, after finding that she did not own the copyright to the wedding day images, since the photographer was engaged by Feline Weddings.

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Mental Capacity Act - Mental Capacity (Public Guardian Fees) (Amendment) Regulations 2016 (S 398 of 2016)

PDPC issues new guide and amends advisory guidelines to help organisations manage requests for access to personal data

Business
02 Aug 2016

E-payments: Rules to be updated to protect users

Business Times
20 Aug 2016
Siow Li Sen

MAS to set up council to align payment initiatives with national and public interest

[Singapore] SINGAPORE will update its regulation to beef up consumer protection as it moves into becoming an electronic-payments society, said the managing director of the Monetary Authority of Singapore (MAS) Ravi Menon on Friday.

To this end, the MAS will set up a Payments Council to align payment initiatives with national strategies and the public interest.

Speaking at a financial technology (fintech) seminar, he said that the MAS's vision is to make Singapore an electronic-payments society - one that spurs continuous innovation in payments technology, gives consumers maximum convenience and confidence in making payments and enables firms to raise their productivity through an integration of payments with business processes. In short, it is to be a society where swift, simple and secure payments are a reality for everyone.

Mr Menon outlined four key strategies to create an e-payments society: streamlined regulation, inclusive governance, inter-operable infrastructure and pervasive digitisation.

He noted that the existing regulatory framework for payments cuts across the Money-Changing and Remittance Businesses Act (MCRBA) and the Payment Systems (Oversight) Act (PSOA).

"Every month, the MAS meets many fintech firms that do not fit neatly into categories like remittance or stored value.

"It is not efficient for companies to be regulated under two pieces of legislation, which were not written with the fintech solutions of today in mind," he said.

Mr Menon also noted that the nature of risk in the payments ecosystem is also changing, and that, with the proliferation of innovative e-payment solutions and the rise of e-commerce, payment firms have become more enticing targets for cyber criminals.

The MAS will streamline the MCRBA and PSOA to create a single piece of legislation governing both traditional and innovative payment companies.

"We will enhance the provisions for consumer protection and strengthen cyber-security requirements.

Under the new framework, providers of payment services will need only one licence to conduct multiple payment activities.

"Users of payment services - consumers or businesses - can take more comfort that their financial information is safe from the threat of cyber-attacks and theft," he said.

The Payments Council that will be set up will bring together stakeholders to guide the development of Singapore's payments landscape in a coherent way, he said.

In its mission to align payment initiatives with national strategies and public interest, it will develop common payments infrastructure, promote open access and inter-operability in payments solutions, enhance the quality of payments systems through the adoption of best practices, as well as make electronic payments accessible to all.

Mr Menon cited a KPMG study which described Singapore's underlying infrastructure as world-class, but noted that its payments preferences are still largely paper-based. Daily payments in cash by consumers is high; among businesses, the use of cheques is relatively high.

Cash in circulation in Singapore is 8.8 per cent of the gross domestic product (GDP); it is 4.4 per cent in Australia and 2.1 per cent in Sweden.

As recently as 2014, each person was still writing 12.7 cheques a year, compared to 7.1 in Australia, and practically zero in Sweden.

The economic cost of using cash and cheques is not trivial, he said. It is estimated that the cost of cash and cheques is around 0.5 per cent of GDP - about S$2 billion per year.

"A good part of these costs can be attributed to the cost of securing cash, both in transit and in storage, and processing cheques," he said.

The online interbank fund transfers system launched in 2014 called FAST is "grossly under-utilised", he said, adding that the one key barrier to using FAST is that the user is required to know the bank account number of the individual to whom the funds are being transferred.

The Association of Banks in Singapore (ABS) is developing a Central Addressing Scheme (CAS), under which payments can be made through FAST using only the recipient's mobile number or NRIC number, or - in the case of businesses - the Unique Entity Number (UEN).

If all goes well, bank account numbers will not be required for a majority of electronic fund transfers by this time next year, he said.

For small businesses, a barrier to using FAST has been cost; small and medium-sized enterprises (SMEs) have said some banks can charge up to S$10 for fund transfers using FAST, though free cheque payments are offered every month.

Mr Menon, noting that cheque processing is a resource-intensive operation that is far from costless, said: "Banks should not be reluctant to accurately reflect the true marginal cost of their various payment instruments."

With credit and debit cards usage at retailers, consumers often have to ask which card is accepted, and cashiers' counters are cluttered with multiple point-of-sale terminals.

To fix this, the ABS has tapped the payments industry to develop a unified point-of-sale terminal or UPOS, which can accept all major cards, including contactless ones or those stored in smartphones. UPOS terminals are already being rolled out.

READ MORE: Fund transfers with just mobile numbers

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Mental Capacity (Amendment) Act 2016 - Mental Capacity (Amendment) Act 2016 (Commencement) (No. 2) Notification 2016 (S 397 of 2016)

How does Brexit impact employers in Asia?

Business
29 Jul 2016

Legal spat between Otto Marine and Hoe Leong heats up

Business Times
20 Aug 2016
Tan Hwee Hwee

[Singapore] OTTO Marine's legal spat with heavy equipment supplier, Hoe Leong Corporation, is heating up, with the latter set on filing a defence against a winding-up petition filed by the former.

An Otto Marine executive confirmed to The Business Times that the winding-up petition filed against Hoe Leong relates to an outstanding sum due from the dissolution of a vessel-owning joint venture in 2014.

Hoe Leong said on Friday its board is of the opinion that the company has sufficient financial resources to pay the sum claimed of US$920,000 and that the company can continue as a going concern.

The heavy equipment supplier said on Thursday that it has delivered to Otto Marine 13 cheques for varying amounts totalling US$1.25 million.

"Otto Marine has accepted the said cheques and has since presented for payment two of the 13 cheques ... The next cheque towards the settlement of the sum of US$1.25 million is not due until Sept 1 2016."

Otto Marine, offshore support vessel (OSV) builder and owner- operator, said in a Thursday filing on the Singapore Exchange that Hoe Leong has managed to pay US$580,000 of the US$1.25 million accrued to a supplemental deed dated July 3, 2014, and Dec 23, 2014. It said the outstanding sum from Hoe Leong stands at US$920,000 as at Aug 18.

Otto Marine has also commenced arbitration proceedings against Grupo Evya SA de CVe, Vettal Mega Services and Robert Knutzen Shipholdings for allegedly outstanding debts totalling over US$19 million owed by the three entities to the Singapore-listed company.

Otto Marine is understood to have stepped up on tightening debt collection as it was served seven winding-up petitions over the last 18 months by trade creditors. BT also understands that the OSV-focused player has met a pre-condition for privatisation bid after securing consent from its note-holders to extend the maturity of the S$70 million Series 002 7 per cent notes by six months or until the completion of the delisting.

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

Goods and Services Tax Act - Goods and Services Tax Act (Amendment of Fourth Schedule) Order 2016 (S 396 of 2016)

SHC: Enforceability of Chinese judicial settlements in Singapore

Judgments
27 Jul 2016

Police case puts Consistel's telco dreams in jeopardy

Straits Times
20 Aug 2016
Irene Tham

Wireless systems specialist Consistel has made history by becoming the first company to have a police report lodged against it over regulatory matters by the Infocomm Development Authority (IDA).

IDA taking such a drastic step against its licensee is the equivalent of a mother saying her child is beyond parental control and needs disciplining by the legal system.

On Monday, IDA slapped a fine of $300,000 on Consistel, a local firm, for signing an unauthorised agreement to sell the Sports Hub's telecommunications system to another company. IDA also filed a police report against Consistel, alleging that it had deliberately submitted false information when it sought at a later stage IDA's approval of the sale.

The regulator is also convinced that Consistel had intentionally misled it into thinking that the sale agreement had yet to be signed.

IDA slammed Consistel's actions, using strong words like "the most serious instance" of "grave misconduct" by a telecommunica- tions licensee. To be sure, telecommunications licensees have had their fair share of run-ins with IDA but not of this severity.

Last year, Singtel was rebuked by IDA for an online smear campaign against its competitors for which Singtel had apologised twice even before it received a stern warning from IDA. Singtel had encouraged bloggers - via social media agency Gushcloud - to complain about StarHub's and M1's connections and services to drive subscriptions for its own youth mobile plan, and IDA made clear in its warning that it would not tolerate such practices.

The regulator was referring to the Telecom Competition Code, imposed on all telecommunications licensees, which states that a telecommunications licensee "must not engage in unfair methods of competition".

This time, Consistel did not apologise for its alleged misconduct but said it takes IDA's findings seriously and remains committed to providing good service at the Sports Hub.

Consistel is the exclusive host of the Sports Hub's wireless systems, including 3G and 4G equipment. It then leases the use of the equipment to the three local mobile operators: Singtel, StarHub and M1.

Ms Aileen Chia, IDA's director- general of telecoms and post, said on Monday that the Sports Hub is "a building of national significance", having been the venue for key events like the SEA Games last year and the National Day Parade this year. And Consistel's systems are critical to ensuring mobile and wireless connections throughout the 35ha facility, including retail spaces. So IDA has a duty to scrutinise any change of ownership to protect the public's interest.

In October 2013, Consistel entered into an agreement to transfer ownership of its equipment at the national sporting venue to Consistel Sprint, a joint venture with its investor Asia Networks. But it applied for approval from the IDA in June 2014.

The value of the deal has not been disclosed. The reason behind the sale of the asset, and whether it has been transferred to the joint venture are also unclear.

IDA started looking into the case in January this year after receiving a tip-off from directors at Consistel Sprint, but it is not clear why they blew the whistle.

Ownership is everything when it comes to continuity of service at the Sports Hub, which is IDA's main concern. If the new owner does not have the required technical expertise or the money to maintain the systems, service quality will suffer.

Public safety is another major concern. If there is a fire or accident at the Sports Hub, telecommunications connectivity ensures that the public, say, receives instructions to evacuate the premises safely, or continues to communicate with the relevant authorities for rescue purposes.

Moreover, the regulator needs to do its due diligence and watch out for special clauses in the asset transfer documents to ensure that another subsequent sale is not permitted without its prior approval. With so much at stake, it is not surprising then that IDA did what it did.

It also did not help that the alleged fraud followed a separate impasse in 2014, also involving Consistel, that had threatened to leave Sports Hub without any mobile coverage for its June opening that year.

Then, national embarrassment had seemed a possibility after Singtel, StarHub and M1 could not agree for months - since negotiations started in mid-2013 - on a leasing deal with Consistel. The unresolved issues were related to meeting IDA's service standard requirements and costs, among other things.

It is believed that recent proposals to change the Telecommunications Act to give IDA powers to prohibit exclusive tie-ups between building owners and telecommunications licensees are aimed at preventing an impasse of such a nature from recurring and jeopardising Singapore's reputation as a connected nation.

Questions now hang over whether Consistel would qualify to stay in the running to be Singapore's fourth telco as the Sept 1 deadline for such applications approaches. After all, its track record - against which all potential mobile entrants will be judged - is far from glowing.

Nevertheless, Consistel's subsidiary OMGTel is unfazed, saying it is pushing ahead with plans to become the fourth telco. It said it has a broad, international set of investors to help the company deliver "breakthrough subscriber offerings". Its advisory board also includes heavyweights like former Cabinet minister George Yeo and entrepreneur-cum-investor Michael Yap.

But all these will not help its cause if it fails to win IDA's trust.

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Building Control Act - Building Control (Buildability and Productivity) (Amendment No. 2) Regulations 2016 (S 395 of 2016)

Sections of the New Human Biomedical Research Act in effect

Legislation
27 Jul 2016

Don't punish innocent Internet users: Forum

Straits Times
20 Aug 2016

The Internet Society (Singapore Chapter) views with concern and interest the various news reports that the rights owners of two Hollywood movies - Queen Of The Desert and Fathers And Daughters - have started legal proceedings against illegal downloaders here and are seeking pretrial disclosure of Internet protocol (IP) addresses.

While we do not condone copyright infringement, we are concerned that a potentially large number of lawsuits may be filed on the basis of IP addresses sought.

Recent cases from other jurisdictions have ruled that IP addresses do not sufficiently identify which individuals committed copyright infringement.

It is entirely plausible that some of the IP addresses may belong to innocent home or business owners who were not aware that their IP addresses were used or who may have not secured their networks sufficiently at the material time.

We question the fairness of subjecting them to the stress and cost in time and money of defending themselves against legal claims.

We are pleased that the Attorney-General's Chambers has indicated that it will oversee the process to prevent abuse ("AGC steps in as studios seek illegal downloaders"; Wednesday).

We note also that our previous complaint to the Law Society regarding letters of demand sent to alleged downloaders of the movie Dallas Buyers Club resulted in the Law Society finding that the letters sent by the law firm did infringe the Law Society's ethical standard, by threatening criminal proceedings, fines and prison time against people who they accused of pirating that film.

The Law Society's findings imposed a penalty of $10,000 or reprimand upon the law firm.

Since the acts of those lawyers in question were adjudged to have crossed acceptable boundaries, we have asked the Law Society to advise on the status of the alleged infringers.

A clear determination by the Law Society may help delineate the boundaries of acceptable conduct by lawyers and law firms here.

Finally, while the rights holders appear to be preparing to sue individuals, we suggest using the blocking provisions that were added to the Singapore Copyright Act last year. They are a self-help remedy to stop massively infringing sites, and will avoid mistakenly targeting innocent Internet users.

In conclusion, while we support the rights of copyright owners, we urge caution so that innocent Internet users are not adversely affected by their actions.

Ang Peng Hwa (Professor)

President

Internet Society (Singapore Chapter)

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Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 39) Notification 2016 (S 394 of 2016)

Common Reporting Standards and its impact on fund managers

Business
27 Jul 2016

Balancing sensitivity and fair trial in sexual assault cases

Straits Times
20 Aug 2016
Kok Xing Hui

Govt looking at how female victims are treated during the whole process, not just in court

When lawyer Edmund Wong recently defended his client's molestation charge by focusing on the victim's breasts and attractiveness, many people were outraged, including Law Minister K. Shanmugam.

The victim cried and the judge rapped Mr Wong's conduct in six out of 44 pages of his grounds of decision.

Mr Shanmugam, who is also Home Affairs Minister, said the Government has been looking at how female victims of sexual assault are treated, not just in court, but through the entire process.

"It is not just what happens in court. The whole sequence after a sexual assault - what happens at the police station, how the examination is done at the hospital, how sensitive we are through the whole process," the minister said in a recent interview with The Straits Times.

Mr Shanmugam had earlier in the year asked his officials to look into the way investigations and trials are conducted. The review is in its early stages, he added.

Lawyers contacted said the processes could be more sensitive to female victims. For example, they could take the stand via video-conferencing so they need not face the accused; defence lawyers could run certain lines of questioning before the judge in private; and the number of times a victim has to recount her ordeal could be reduced.

Said criminal lawyer Sunil Sudheesan: "Currently, there would be at least four times when a witness needs to recount the event. That, on its own, is harrowing."

Mr Sudheesan was referring to these: police taking the statement from the victim, the prosecutor interviewing her for trial preparation, the victim recounting her ordeal in court, and getting cross-examined.

The Association of Women for Action and Research, which has been in regular consultation with the Government, suggested that everyone who has to interact with a victim of sexual assault be put through sensitivity training.

When it comes to cross-examination, lawyers said that while there is a need to ensure sensitivity towards the alleged victim, the accused's right to a fair trial and to pursue all avenues of defence cannot be compromised.

Criminal lawyer Amolat Singh said: "If cross-examination is allowed to go on without parameters or boundaries, rape victims might not want to come forward. That, I think, would be a greater injustice.

"But what about the accused person's right to a fair trial and to pursue all possible defences?"

Singapore had in 2012 repealed Section 157(d) of the Evidence Act so a rape victim's sexual history is no longer allowed in court to show she is of "immoral character".

But lawyers said sexual history can be relevant in some cases, to show there might have been consent. Said Mr Singh: "The facts of each case are different. If we are not allowed the latitude to put the character of the victim in question, it may result in the defence being handicapped."

Singapore Management University law don Eugene Tan said a judicious balance needs to be struck, "but the central question is one of relevance, which the prosecution has to be acutely sensitive to".

Mr Shanmugam said the Government will look into how women are cross-examined in court. He said: "In court, how do we get to the position whereby proper cross-examination is allowed, but which doesn't in every case give leave and licence for there to be wide-ranging examination of the lady's sexual history, or other attacks.

"The conduct of the case is within the province of judges and they take this approach to cases. But we want to see if there is a possibility of underpinning that approach with some rules."

Under the current system, the judge can halt lines of questioning and the prosecution can object, along with the prohibition against vexing questions.

This is not the first time Mr Shanmugam has spoken about the issue. In a Facebook post on June 22 on a Stanford University sexual assault case - in which the female victim was subjected to an offensive line of questioning in court - Mr Shanmugam said that in Singapore, "we need to work at making it easier for women to report and undergo examination when they have been victims of sexual violence".

In an Aug 5 Facebook post on Mr Wong's unacceptable behaviour in court, Mr Shanmugam mentioned the Stanford case again, noting the need for a better way to ensure sufficient sensitivity to the victim and fair trial for the accused.

In the interview with The Straits Times, Mr Shanmugam said: "I don't underestimate the difficulties - it is not an easy balance to achieve through written rules."


CHALLENGE

I don't underestimate the difficulties - it is not an easy balance to achieve through written rules.

LAW MINISTER K. SHANMUGAM, on the need for a better way to ensure sensitivity to the victim and fair trial for the accused.

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Common Gaming Houses Act - Common Gaming Houses (Exemption) (No. 38) Notification 2016 (S 393 of 2016)

Revised listings due diligence guidelines issued by the Association of Banks in Singapore

Business
26 Jul 2016

Who should accompany a child suspect? Benjamin Lim case

Straits Times
20 Aug 2016
Kok Xing Hui & Seow Bei Yi

Opinion divided over the appropriate adult to be with kid in the event of police questioning

The consensus is clear: Children taken for police questioning should be accompanied by an adult.

But social workers, parents and lawyers are divided on who this person should be - the parent, a school counsellor or a social worker.

The debate comes on the heels of State Coroner Marvin Bay's suggestion on Thursday that school counsellors could go with students to police stations when the latter are picked up from school, as a "reassuring presence".

He was delivering his findings for an inquiry into 14-year-old Benjamin Lim's death. The teen had jumped to his death on Jan 26, hours after he was taken alone to Ang Mo Kio Police Division for questioning over an alleged molestation.

Ms Petrine Lim, principal social worker at Fei Yue Family Service Centre, said parents should accompany their children. "I think it's definitely more reassuring and there will be less anxiety for the child to have a familiar face to look for."

Madam Jileen Tan, 53, who has a 16-year-old son, agreed. "If the parents cannot go, somebody from the family should be around to support the child. Benjamin's mother went to the school and could not find her child - if it were me, I'd have lost it," she said.

But lawyers caution that parents can be overprotective and inadvertently disrupt police investigations.

Criminal lawyer Sunil Sudheesan said: "I don't think it should be the parents; I think it should be independent people without vested interests in the case. Thankfully, there's already a system we can refer to." He was referring to the Appropriate Adult Scheme, launched in March last year, where a trained volunteer accompanies a person with intellectual or mental disabilities during police interviews.

Under this scheme, administered by the Movement for the Intellectually Disabled of Singapore, when the police pick up a suspect with a mental or intellectual condition, they call on a pool of 200 volunteers trained in both basic police procedures and communicating with the disabled.

Within 1 1/2 hours, a volunteer will arrive and sit in for the interview, ensuring that both sides do not misunderstand each other.

Experts suggest the scheme be adapted for minors, with the appropriate adult being a school counsellor or social worker.

As counsellors are trained, they can remain objective, said Mr Alfred Tan, chief executive of the Singapore Children's Society.

They could also help explain the investigation process, giving the child a realistic perspective of the consequences. "We cannot assume every parent knows what are the appropriate steps to take or the right things to say to the child," he said.

Mr Sudheesan said the adult could sit in and take notes, while the police videotape the interview: "Then there is no way you can accuse the police of wrongdoing."

But former police officer Lim Ah Soon, 70, thought having an adult - no matter who - sit in at an interview could interfere with fact-finding. He would rather the person be outside the interview room. He said some suspects could get more daring with someone else present.

In his report, Coroner Bay said counsellors should not participate directly in the interview but can remain close by, such as along the corridors of the workstations.

They can also be a "resource" person that the child, family and police can tap and who can give real-time information on where the child is during the process.

The police and the Ministry of Education have said they will consider the coroner's suggestions in their ongoing review of the protocol.

Benjamin's case also inspired the Law Society to set up a sub-committee in February to study the matter. The Straits Times understands the 10-man sub-committee met on Thursday. "The committee is currently working on the recommendations which will be duly forwarded to the authorities," said a Law Society spokesman.

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Securities and Futures Act - Securities and Futures (Prescribed Futures Contracts) (Amendment) Regulations 2016 (S 392 of 2016)

MOM issues Tripartite Guidelines on the Employment of Term Contract Employees

Business
26 Jul 2016

Otto-Hoe Leong spat over US$920k payment

Business Times
19 Aug 2016

[Singapore] OFFSHORE marine group Otto Marine Limited and industrial equipment supplier Hoe Leong Corporation are embroiled in a public spat about a US$920,000 payment.

Otto Marine said on Thursday evening that it has applied for a winding-up of Hoe Leong, also listed on the Singapore Exchange, for not being able to pay off debts that have come due. This is the latest in a spate of legal actions that Otto Marine has undertaken against payment defaults.

According to Otto Marine, a sum of US$1.5 million had been due for payment from Hoe Leong, but it managed to pay only US$580,000 after "numerous reminders and/or demands", leaving some US$920,000 of outstanding debt.

In an announcement hours later, Hoe Leong said that the US$920,000 was the balance of a US$1.25 million payment that has already been settled.

"(The company has) delivered to Otto Marine Limited 13 cheques for varying amounts totalling US$1.25 million," it said, adding that Otto Marine had accepted these cheques, and that the next cheque towards settlement of this sum is not due until Sept 1.

The hearing on the winding-up application against Hoe Leong has been fixed on Sept 13.

Otto Marine said it is working closely with its lawyers on the legal proceedings to enforce its rights, as well as to safeguard and protect the interests and assets of the group and its subsidiaries. Hoe Leong, meanwhile, said its lawyers have advised that the winding-up application is "an abuse of process".

Separately, Otto Marine's subsidiary Karp Marine has also commenced arbitration proceedings under the London Maritime Arbitrators Association Terms 2012 against Mexico's Grupo Evya for failing to pay US$10.5 million in hire and interest due and owing under a bareboat charterparty contract.

Its subsidiaries Swordfish 5 and GO Offshore have each also begun arbitration proceedings against Nigeria's Vettal Mega Services for failing to pay US$6 million in hire due and owing under two bareboat charter party contracts.

Its executive chairman, Malaysian tycoon Yaw Chee Siew, has made an offer of 32 Singapore cents per share to take Otto Marine private.

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Securities and Futures Act - Securities and Futures (Markets) (Amendment) Regulations 2016 (S 391 of 2016)

Getting a prenuptial agreement in Singapore

Business
26 Jul 2016

Ex-BSI Asia CEO settles Singapore bonus suit with bank

Business Times
19 Aug 2016
Andrea Tan

This Bloombergarticle was first published on 19 August 2016 in the Singapore English broadsheet, The Business Times.
SLW obtained permission to reproduce the article to give the legal community a broader view of legal reports from various news syndicates.

[Singapore] HANSPETER Brunner, BSI SA's former Asia chief who was referred to Swiss and Singapore regulators over the bank's ties with a Malaysian state firm, has settled a lawsuit seeking deferred payments, according to the bank's lawyer.

Mr Brunner's lawsuit alleged that BSI's Singapore unit breached bonus agreements and a separation pact without any legal basis. Mr Brunner, 64, was among six BSI bankers referred by Singapore's central bank to prosecutors over lapses in dealing with 1Malaysia Development Bhd (1MDB).

He's also one of two former BSI executives the Swiss financial regulator has started proceedings against. Mr Brunner's retirement was announced in March. "Hanspeter Brunner has withdrawn his claim against the bank in its entirety," Muralli Rajaram, a Singapore-based lawyer for BSI, said on Thursday, confirming the settlement. "The bank is pleased that good sense has prevailed and is happy with the outcome."

Mr Brunner's lawyer Ng Lip Chih declined to comment. Details of the settlement weren't disclosed.

The Malaysian state investment firm is at the centre of multiple international probes into suspected money laundering and embezzlement.

1MDB has consistently denied wrongdoing. BSI's Singapore unit was fined by the city's regulator and is set to lose its licence. The bank, which is being taken over by EFG International AG, has challenged the Swiss regulator's decision to seize some of its profits.

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Police Force Act - Police (Special Constabulary) (Amendment) Regulations 2016 (S 390 of 2016)

Business succession planning: Part 1

Business
22 Jul 2016

Prosecutors file two more charges against ex-BSI banker in 1MDB probe

Business Times
19 Aug 2016
Anita Gabriel

Latest charges could turn spotlight on Hong Kong-based financial services provider Amicorp

[Singapore] SINGAPORE prosecutors have slapped another two charges - in addition to nine others filed earlier - on former BSI banker Yeo Jiawei in the ongoing 1Malaysia Development Bhd probe. The new charges could turn the spotlight on yet another entity - Amicorp Group, a Hong Kong-based multinational firm that provides financial services.

According to the charge sheets, Yeo was accused of attempting to pervert the course of justice in March this year by telling one Pinto Jose Renato Carvalho to dispose off his laptop, which likely contained evidence of Yeo's dealings with Amicorp Group, and not to travel to Singapore to avoid being interviewed by the Commercial Affairs Department (CAD).

He is also accused of instigating Mr Carvalho to tell one Mun Enci Aloysius to inform the CAD, in the event he was questioned, that he had no knowledge of Yeo's dealings in Amicorp.

These were the two charges slapped on Yeo on Thursday for tampering with witnesses, said a statement issued by the Attorney-General's Chambers.

This is not the first time Amicorp has surfaced in the unfolding of the 1MDB saga that is the subject of multiple probes in other jurisdictions including the United States and Switzerland, and described in Singapore as the most complex money laundering cases ever.

There were two references to Amicorp in the 136-page filing by the US Justice Department civil lawsuit filed last month to seize over US$1 billion in assets tied to 1MDB funds.

In one instance, Malaysian tycoon Low Taek Jho, better known as Jho Low - the man at the centre of the 1MDB controversy who runs Hong Kong-based private equity firm Jynwel Capital - was alleged to have transferred US$3.2 million from an account in his name at Amicorp Bank and Trust in Hong Kong in February this year to another account belonging to one of his investment entities.

This transaction, one of a series of complex transactions laid out by US prosecutors involving funds misappropriated from 1MDB's bond sale, was allegedly transferred to Mr Low's entities for the acquisition of an iconic New York city hotel, Park Lane - one of several assets that the US is seeking to forfeit and recover.

Filings reveal that another US$72.5 million was also wired in 2014 from an account at Amicorp Bank in Barbados to an account at RBS Coutts in Switzerland held by Dragon Market, of which Mr Low is said to be the ultimate beneficial owner. Mr Low is alleged to have used 1MDB funds funnelled through Dragon Market, among others, to buy Van Gogh artwork.

There is more. In the Hansard transcripts on the hearings of Malaysia's Public Accounts Committee on 1MDB, it was also revealed that one of two "level three assets" - assets that are deemed illiquid - were invested in funds managed by, among others, Amicorp Fund Services.

According to its website, Amicorp was set up in 1992, has an international network of over 40 offices in over 30 countries including Singapore and provides a broad range of services to mostly corporate, but also high net-worth clients.

The latest charges against Yeo add to two earlier charges for obstructing the course of justice. Trial dates (for all four) have been set for Oct 31 to Nov 11.

He has also been charged with seven other offences ranging from money laundering, cheating and forgery.

Yeo, who was described by prosecutors as having played a key role in the illicit transactions and money flows in and out of Singapore, has remained in custody since April 16 and was again denied bail on Thursday.

The next criminal case disclosure conference (CCDC) hearing on his case is set for Sept 8.

The pre-trial conference on Kelvin Ang, the second individual who has been charged for corruption in the 1MDB probe, is fixed for Aug 25.

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Housing and Development Act - Housing and Development (Precincts for Lift Upgrading Works) (No. 8) Order 2016 (S 389 of 2016)

[INT] Competition bites – ASEAN and beyond

Business
22 Jul 2016

Plug any loopholes in changes to consumer laws: Forum

Straits Times
19 Aug 2016

Any punitive action taken against traders indulging in unfair practices is welcome news ("Better protection against errant retailers"; Tuesday).

However, I have reservations about the effectiveness of the Consumer Protection (Fair Trading) (Amendment) Bill, which will come down hard on errant retailers who, after being ordered to close their shops, reopen them under a different name.

What if such retailers reopen shops using the names of family members and friends, or become silent partners in the business?

One area that needs clarification is whether these errant business owners will be charged if they reopen their shops, but deal in entirely different merchandise, say, changing from selling mobile phone products to selling sports apparel.

If there are loopholes in the Bill through which businessmen can circumvent the law, it will not deter shop owners from continuing with their unfair practices.

Separately, there are also cases of traders who fail to settle consumer claims after they have been instructed by the Small Claims Tribunal to pay up.

Tougher action must be taken against such undesirable businessmen who blatantly ignore a court order. While consumer laws introduced in the interest of the people (including tourists) are welcome, there should not be any element of ambiguity which people can exploit for their selfish ends.

Jeffrey Law Lee Beng

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Housing and Development Act - Housing and Development (Precincts for Upgrading Works) (Home Improvement Programme) (No. 4) Order 2016 (S 388 of 2016)

MAS directs bank to shut down in Singapore over serious breaches of anti-money laundering requirements

Business
21 Jul 2016

Amos Yee's case sent back for trial to continue

Straits Times
19 Aug 2016
Amir Hussain

No resolution at the session to resolve case without trial, which was requested by accused

Teen blogger Amos Yee's trial resumed yesterday, a day after it was adjourned even before the first prosecution witness was called.

On Wednesday, the trial was adjourned after the case was sent, at Yee's request, for a criminal case resolution (CCR), an avenue for resolving a case without trial.

Yee, 17, had at first opted to contest all his eight charges, including six for intending to wound the feelings of Muslims or Christians. He had allegedly posted a photo and five videos, some of which show him insulting the Bible and the Quran.

The teen, who has no lawyer, had also said he wanted to cross-examine the prosecution's witnesses.

But shortly after the start of the trial on Wednesday, he told District Judge Lim Tse Haw that he wanted "to take a certain course", which is legal parlance indicating that he was considering pleading guilty.

The judge fixed the case for a CCR, in which the accused can ask for an indication of his possible sentences. But with no resolution at the closed-door CCR session yesterday, the case was sent back for the trial to continue.

At the start of yesterday's hearing, Yee asked for a two-month adjournment, saying he had received the list of witnesses and exhibits only on Wednesday and needed time to prepare his case. Judge Lim did not accede to the request, but said he would give Yee time to prepare questions for cross-examination later.

The case was adjourned - after two witnesses took the stand - for the next tranche of the trial, fixed for next Tuesday and Wednesday.

Yee, who sat beside his mother Mary Toh, who is helping him conduct his defence, did not deny that he had made the photo and videos.

Two police technology forensic officers, who had gathered information relating to the charges, took the witness stand yesterday. One had extracted data from more than 100 webpages, such as blogs and social media sites.

Yee had no questions for the officer, apart from asking why the webpages were relevant to his charges.

The officer said he had acted on instructions from an investigator, who will testify at a later date.

Besides the six charges, Yee faces two of failing to report to Jurong Police Division for investigations.

Reports were lodged over online remarks that Yee made last year, and the police issued a notice last December ordering him to report for investigations. But he allegedly failed to do so, leaving the country shortly after and returning only in April.

When he returned, he was served with a magistrate's order to report again at Jurong Police Division, but he purportedly did not comply.

On May 11, he was arrested and then bailed out by his mother.

The prosecution will call a total of seven witnesses, all police officers.

The maximum penalty for deliberately wounding the religious feelings of any person is three years' jail and a fine; for failing to present oneself pursuant to a notice or order from a public servant, it is one month's jail and a $1,500 fine.

Yee uploaded an expletive-laden video days after the death of founding Prime Minister Lee Kuan Yew last year. He was sentenced in July last year to four weeks' jail.


Yee, 17, had at first opted to contest all his eight charges, including six for intending to wound the feelings of Muslims or Christians... But shortly after the start of the trial on Wednesday, he told District Judge Lim Tse Haw that he wanted "to take a certain course", which is legal parlance indicating that he was considering pleading guilty.

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Consumer Protection (Fair Trading) Act - Consumer Protection (Fair Trading) Act (Amendment of First Schedule) Order 2016 (S 387 of2016)

Updated patent registry guidelines: criteria for allowing post-grant amendments in light of recent Singapore cases

Business
21 Jul 2016

Panel submits report on elected presidency

Straits Times
18 Aug 2016
Pearl Lee

PM Lee to address issue during the National Day Rally; Government to give its response in due course

A special report recommending changes to Singapore's elected presidency was received by Prime Minister Lee Hsien Loong yesterday, and the Government will give its response in "due course".

The Straits Times understands that PM Lee will address the issue of the elected presidency on Sunday at the National Day Rally, an annual address where he maps out the nation's future directions and announces policy changes.

The report comes six months after he appointed a Constitutional Commission, chaired by Chief Justice Sundaresh Menon, to review the institution so that it keeps up with the times, including the possibility of having a minority candidate elected from time to time.

Mr Lee thanked the nine-member commission "for the deliberation and care with which they have carried out their tasks", the Prime Minister's Office (PMO) said after getting the report earlier in the day.

"The Government will study the report. It will publish the report and give its response in due course," added the PMO statement.

Singapore Management University law professor Eugene Tan, a former Nominated MP, said: "The National Day Rally is a valuable opportunity for the PM to share his thoughts on the elected presidency."

Parliament may even debate the report as early as next month, he added. "The countdown to the next presidential election has started. The earlier constitutional amendments are made, the more lead time potential candidates have to adjust to them."

The presidential election must be held by August next year.

Political observer Zulkifli Baharudin said the public also needs to be educated about the changes as "they are the ones who will be voting the next president in".

Prof Tan was among 20 individuals and groups invited by the commission to expand on their ideas on changes they want to see in the elected presidency. They gave their views during four public hearings.

The commission also received more than 100 written submissions.

Mr Lee first spoke about the need to review the elected presidency in January, after last year's general election. Speaking at the first sitting of the 13th Parliament, he said the head of state should remain elected.

But, he added, three areas should be studied:

• How to update the qualifying criteria of candidates for the elected presidency.

• How to strengthen the Council of Presidential Advisers, which advises the president in exercising his custodial and discretionary powers.

• How to ensure those in a minority race will have the chance to be elected as president.

During the commission's hearings, the issue of minority representation was the most hotly debated. While most speakers broadly agreed on the need for a minority president from time to time, they were split on how to achieve it.

Some suggested reserving elections for candidates from a particular minority group that has not had a president for several terms. Others were worried that doing so would undermine meritocracy.

Constitutional law expert Kevin Tan, who spoke at the hearing, said: "It is the most difficult to manage. How are you going to engineer a situation where you will have a president from a minority race?"

Another issue was the qualifying criterion. Several said the bar for a private-sector candidate should be raised. But some felt it might shrink the pool of potential candidates, especially from the minority groups.

Currently, would-be candidates from the private sector must have run a company with a paid-up capital of at least $100 million.

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Arms and Explosives Act - Arms and Explosives (Commemorative Artillery Shell Casing - Exemption from Section 13) (Amendment No. 4) Order 2016 (S 386 of 2016)

ACRA issues Enforcement Policy Statement

Business
21 Jul 2016

NMPs explain support for Bill on contempt of court

Straits Times
18 Aug 2016
Chong Zi Liang

Three Nominated MPs, who had been worried that a proposed law would curb freedom of speech, explained yesterday why they changed their views and voted for the legislation on contempt of court at Monday's parliamentary session.

A week earlier, the trio - Mr Kok Heng Leun, Mr Mahdev Mohan and Ms Kuik Shiao-Yin - had submitted to Parliament what they viewed as vital changes for the Administration of Justice (Protection) Bill.

But yesterday, they said Law Minister K. Shanmugam's responses to their questions during the debate on the Bill allayed their fears. They pointed particularly to two clarifications he made.

One, people can continue to speak on matters of public interest as long as they do not prejudice a trial's outcome.

For instance, one can start a campaign on the death penalty even if a trial of a capital offence is going on.

Two, if the Government comments on an issue in a case before the court, it can be challenged in court to show why it believes it is in the public interest to do so.

Said Mr Kok, a theatre group's artistic director: "It's about checks and balances, and it was confirmed that the courts can check on the Government's interpretation of public interest."

The NMPs had also been concerned that the Bill lowers the bar on what constitutes scandalising the courts. Previously, a "real risk" of scandalising the judiciary had to be established for contempt. Now, it is just a "risk".

Mr Mohan had earlier felt the "real risk" test, established in judgments made by the Supreme Court, should be retained.

But yesterday, he said the "force of my arguments was taken away" when Mr Shanmugam told Parliament the Bill had been shown to the Supreme Court judges.

Also, Mr Shanmugam had explained that the change was a policy decision to maintain the sanctity and reputation of the courts.

"It was a thorough exchange the MPs had during the debate, and reasons were given," said Mr Mohan, a Singapore Management University (SMU) assistant professor of law.

The NMPs also said it was important to get the clarifications they sought because the official parliamentary record, known as the Hansard, will be used by judges and lawyers to interpret the law.

Agreeing, assistant professor of law Jack Lee of SMU said: "Legislation is always going to be interpreted in a way that achieves its purpose... One of the ways to establish the purpose is to look at parliamentary speeches."

Ultimately, the trio voted in support of the Bill as the parliamentary debate clarified that discussions of matters of public interest will not be stifled. "There was no purpose in abstaining from or voting against a Bill we had wished only to amend or seek detailed clarifications," Mr Mohan said.

But the decision drew derisive remarks on social media, with Facebook user Kirsten Han saying they "have been played... Unfortunately, the (parliamentary) clarifications don't give us very much at all".

Human rights groups also slammed the law. Amnesty International said it would impose undue restrictions on freedom of expression, while Human Rights Watch said it would suppress critical speech on the judiciary.

Ms Kuik, however, said those who still fear the new law curtails their freedom of speech should read the Bill and the Hansard to find out for themselves the law's actual purpose. "Read the original Bill and the Hansard in full. Then decide whether your fears are legitimate. But don't chill your own speech because of a misinterpretation of the Bill based on someone else's second- or third-hand account," she said.

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Arms and Explosives Act - Arms and Explosives (Commemorative Artillery Shell Casing - Exemption from Section 13) (Amendment No. 3) Order 2016 (S 385 of 2016)

SICC releases first full judgment on liability

Judgments
20 Jul 2016

Law firm will cooperate with AGC

Straits Times
18 Aug 2016
Irene Tham

Firm acting for film studios says it will ensure demand letters do not cause undue alarm

A local law firm that started proceedings to go after illegal downloaders in Singapore on behalf of two Hollywood studios said it will cooperate with the local authorities to ensure no abuse of process.

It follows a rare intervention by the Attorney-General's Chambers (AGC) in civil applications made by Samuel Seow Law Corp (SSLC) in the High Court last month.

"We will work with the local authorities to ensure that there will be no unnecessary alarm to consumers who receive the letters of demand we plan to send out," Mr Samuel Seow, managing director of SSLC, told The Straits Times yesterday.

The High Court applications aim to get Singtel, StarHub and M1 to release details of Internet subscribers alleged to have illegally downloaded the drama films Fathers & Daughters and Queen Of The Desert. SSLC wants to send these subscribers letters demanding compensation.

Mr Seow added that, if required, his law firm will show the courts the letters of demand.

Fathers & Daughters, a 2015 movie starring Russell Crowe, is produced by Voltage Pictures - the same studio that went after Internet users here last year for having illegally downloaded the movie Dallas Buyers Club. SSLC represented Voltage at the time.

Queen Of The Desert, which stars Nicole Kidman, is produced by QOTD Film Investment.

The Straits Times understands that the two studios have identified more than 500 Singapore Internet protocol addresses through which the two movies were allegedly downloaded illegally.

Yesterday, ST reported that the AGC had stepped in to ensure there would be "no abuse of process".

On Monday, it asked SSLC to clarify the two studios' intentions, particularly the amount of damages they would be seeking and how they arrived at the amount.

On Tuesday, representatives from AGC attended a High Court pre-trial conference initiated by SSLC against the three telcos. The hearing was adjourned.

Lawyers said it is rare for the AGC to intervene in civil cases.

Lawyer Bryan Tan, from Pinsent Masons MPillay, said the AGC's involvement this time is probably a result of complaints made against two SSLC lawyers last year for breaching ethical guidelines with the use of criminal threats in the demand letters over the alleged illegal downloading of the movie Dallas Buyers Club.

The Law Society's Practice Directions and Rulings 1989 - a set of ethical guidelines for lawyers - states: "It is improper for a solicitor to communicate in writing or otherwise a threat of criminal proceedings in order to achieve a stated objective in any circumstance."

Lawyer Cyril Chua of Robinson LLC said: "An abuse of process happens when lawyers use the threat of criminal proceedings for a civil outcome, such as demand for compensation."


ETHICAL GUIDELINES

An abuse of process happens when lawyers use the threat of criminal proceedings for a civil outcome, such as demand for compensation.

LAWYER CYRIL CHUA

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Income Tax Act - Income Tax (Exemption of Income of Non-residents Arising from Funds Managed by Fund Manager in Singapore) (Amendment) Regulations 2016 (S 384 of 2016)

You Can Run but You Can’t Hide: Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others [2016] SGHCR 7

Judgments
20 Jul 2016

Maid abusers in 'simple hurt' cases may face longer jail terms

Straits Times
18 Aug 2016
K.C. Vijayan & Audrey Tan

Employers who abuse domestic maids in cases of simple hurt may face longer jail terms in a new move by the court to raise deterrence.

Chief Justice Sundaresh Menon gave notice of the direction the court was moving in, in dismissing the appeal of a convicted offender jailed for 14 weeks for the "wanton bullying" of a maid.

The lawyer for Janardana Jayasankarr, Mr Rajan Nair, had argued that his client's 14-week jail term for punching and stamping on his maid was "manifestly excessive", according to precedents.

But the CJ disagreed, saying: "In all the circumstances, I consider the sentence in this case could have been even higher."

He also said in his judgment grounds, released yesterday, that this area of sentencing should be reviewed, given an appropriate case.

Simple hurt draws a maximum jail term of three years, unlike grievous hurt, which is 15 years.

Janardana, 52, had pleaded guilty in February to two counts of assaulting Filipina Miezel Cagas Limbaga, 31.

In the incidents which occurred last year, Janardana, a security guard, had stamped on and punched Ms Limbaga after accusing her of stealing food. She was left with bruises on her scalp, cheeks, chest, back and hip.

Janardana and his wife Vidya Jayasankarr, 32, who was jailed for a week, had taken turns to hit her. District Judge Jasvender Kaur jailed Janardana for seven weeks consecutively on each charge, taking two others into consideration.

Mr Nair had asked for the sentence to be cut to eight weeks, as the individual term of seven weeks for each charge was not in line with previous cases.

But CJ Menon said the "real issue" in the case was the severity of the assaults and the injuries suffered. He noted there were repeated assaults with "no comprehensible trigger" on the vulnerable areas of the victim's body. It had reached a point where she was afraid even to be seen talking to other persons.

He said: "I consider this as a serious instance of abuse. Domestic helpers cannot become an outlet for a frustrated employer to vent his or her personal frustrations. They are human beings entitled to be accorded due dignity and respect because the human condition demands it."

Noting that the law provides for a maximum of three years in jail and $7,500 fine for offences of simple hurt, he said the precedents showed the courts may not have sufficiently taken into account or utilised the breadth of the sentencing range prescribed by Parliament.

He said the court would take an appropriate case in the future to calibrate "the applicable benchmarks upwards" and spell out the factors to consider when sentencing.

Industry players hailed the CJ's move, pointing out that stiffer jail terms would prompt employers to think more before they act.

Ms Shirley Ng, the owner of Orange Employment Agency, said it was a strong message being sent from the court.

Government Parliamentary Committee (GPC) for Manpower chairman Patrick Tay added that foreign maids needed protection as they are more vulnerable, working long hours in an environment out of the public eye.

He said: "This is unlike service staff, or those who work in office or public premises where there are witnesses."

Foreign Domestic Worker Association for Social Support and Training (Fast) executive director William Chew suggested that other measures, such as assessing the employer's suitability, also had to be considered.


Other cases

April 2015

Malaysian Chong Yee Ka, 32, a permanent resident, punched Myanmar maid Aye Moe Khaing, 27, in the face - among various forms of abuse - at her Rivervale Walk flat. Chong was sentenced to three weeks in jail on two counts of maid abuse.

February 2015

Ng Tong Kok, 59, a part-time cleaner, hit his 33-year-old Indonesian maid Warda with a walking stick, and punched and kicked her. Found to be suffering from a major depressive disorder, he escaped jail time and was given a two-year treatment order to get psychiatric help.

July 2014

Li Guizhen, 64, injured Myanmar maid Nwe Ni Hlaing, 30, by kneeing the victim in the chin. Ms Nwe Ni Hlaing was kneeling before Li, who was visiting her daughter from China, to apologise for her mistakes at work. Li was sentenced to a week in jail.

2012 - 2014

Filipina Thelma Oyasan Gawidan (above), now 40, was denied food and not allowed to go out of the house by her employers Lim Choon Hong, 47, a freelance trader, and his wife Chong Sui Foon, also 47.

Madam Gawidan weighed just 29.4kg when she finally escaped in April 2014.

Lim has pleaded guilty to a charge of contravening the Employment of Foreign Manpower (Work Passes) Regulations 2012, which requires employers to provide adequate food and medical treatment for their maids. Chong has also admitted to a count of abetting Lim in committing the offence, which carries a maximum punishment of 12 months in jail and a $10,000 fine. The couple has not been sentenced.

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Janardana Jayasankarr v Public Prosecutor [2016] SGHC 161

Income Tax Act - Income Tax (Exemption of Income of Approved Companies Arising from Funds Managed by Fund Manager in Singapore) (Amendment) Regulations 2016 (S 383 of 2016)

SCA: Facts or interpretations?

Judgments
20 Jul 2016

Amos Yee invokes court process to decide on trial position

TODAY
18 Aug 2016
Siau Ming En

 

 

SINGAPORE — After several false starts, the first day of blogger Amos Yee’s trial yesterday was adjourned for the 17-year-old to use a court process that helps accused persons consider whether to claim trial or plead guilty.

He had earlier objected to a joint hearing for the two sets of offences he has been charged with.

When he was overruled, Amos told the court he would like the prosecution’s seven witnesses to testify orally, rather than through written statements.

Then, as his hearing was about to kick off, he told a judge he was “thinking of taking a certain course of action”.

Amos, who was not represented at his hearing yesterday, asked to go for Criminal Case Resolution (CCR), a court process where an accused person may ask for an indication of his possible sentences in a closed-door meeting with prosecutors that is presided over by a senior district judge.

CCR was started in 2011 to minimise wastage of court resources. It provides a neutral platform for parties to explore the possibilities of early resolution of criminal cases, instead of waiting until a trial starts.

When District Judge Lim Tse Haw asked why he had not brought up his request during his pre-trial conference, Amos said he only learnt about CCR through “sheer luck” while he was doing research.

He was given the go-ahead to attend a CCR session this morning, following which he would decide if he would want to continue to claim trial.

Amos faces six charges of wounding the religious feelings of Muslims and Christians and two counts of flouting an order to show up at a police station for investigations. Both sets of charges relate to content he posted online between November last year and May this year.

Amos argued that the nature of the two sets of charges are different and he would not have a fair trial if they are heard together.

Deputy Public Prosecutor Hon Yi countered that the alleged offences happened close together and were linked.

Amos was convicted of similar offences last year and was sentenced to four weeks’ jail. But he was released on the same day as the sentence was backdated to include his time in remand.

If convicted of deliberately wounding the religious feelings of others, Amos could be jailed up to three years and fined. For failing to turn up at the police station in spite of an order, he could be jailed up to a month and fined up to S$1,500.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved


Income Tax Act - Income Tax (Exemption of Income Arising from Funds Managed by Fund Manager in Singapore) (Amendment) Regulations 2016 (S 382 of 2016)

SHC: Application for leave to continue action against an insolvent defendant: A balancing act

Judgments
18 Jul 2016

AGC steps in as studios seek illegal downloaders

Straits Times
17 Aug 2016
Irene Tham

The Hollywood studio which previously went after Singapore residents who had illegally downloaded the film Dallas Buyers Club has now set its sights on those who had done the same for another movie.

But the authorities here are stepping in to ensure "no abuse of process". The movie in question this time is Fathers & Daughters, a 2015 movie which stars Russell Crowe.

Voltage Pictures, which is represented by local law firm Samuel Seow Law Corp, had sought last year to get Singapore telcos to release the details of Singapore subscribers found to have illegally downloaded Dallas Buyers Club.

Now Voltage Pictures and another Hollywood studio, QOTD Film Investment, which produced Queen Of The Desert, starring Nicole Kidman, are seeking the details of those who had downloaded the two movies without permission. Voltage is acting through Fathers & Daughters Nevada LLC in this case, with the same Singapore law firm representing the studios.

The Straits Times (ST) understands that the two studios have identified more than 500 Singapore Internet protocol (IP) addresses through which the two movies were allegedly downloaded. The IP addresses were used by Singtel, StarHub and M1 subscribers.

Yesterday, a pre-trial conference was held in the High Court, with the Attorney-General's Chambers (AGC) represented at the hearing.

An AGC spokesman told ST it is considering intervening in the various originating summonses filed this time around by the law firm to ensure that there is no abuse of process. For instance, lawyers cannot breach ethical guidelines by carrying a threat of criminal proceedings in their letter of demand.

On Monday, the AGC sent a letter to Samuel Seow Law Corp to clarify the studios' intentions, particularly the amount of damages they are seeking and how they arrived at the amount.

A spokesman for the Intellectual Property Office of Singapore said it has reviewed the positions taken in jurisdictions such as Australia, Canada, Britain and the United States. The courts in these places had imposed certain safeguards before granting the request for subscriber details to be released, she said.

"While content owners have the right to enforce their intellectual property rights, this should be done in a way that builds legitimacy and respect for the entire process, and is not susceptible to allegations of abuse," she said.

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Constitution of the Republic of Singapore - Public Service (Special and Senior Personnel Boards) (Amendment No. 3) Order 2016 (S 381 of 2016)

ACRA announces new initiatives for corporate service providers and extends time for private companies to update shareholder information for EROM

Business
18 Jul 2016

Debate clears air on contempt law

Straits Times
17 Aug 2016
Chong Zi Liang

A Bill on the law of contempt of court, which was passed by Parliament on Monday, covers three main areas of contempt: prejudicing court matters, scandalising the courts and disobeying court orders.

The first two have drawn the ire of critics, who say the law curbs free speech and stifles legitimate discussion on issues of public interest.

The resulting marathon parliamentary debate on the Administration of Justice (Protection) Bill - passed after seven hours - helped to clear the air on what one is permitted to say about the judiciary and ongoing court proceedings.

Law Minister K. Shanmugam also said repeatedly that the new legislation would, by and large, be the same as the existing common law based on judgments of previous cases.

He gave several examples. People, he said, can continue to discuss the merits of a law, criticise a court judgment and debate national policies. For instance, one can start a campaign on the death penalty even if a capital trial is going on, he said.

Friends discussing an ongoing court case in a coffee shop would also not run foul of the law, as their actions do not have a "real risk" of influencing the trial, he said.

But the Workers' Party (WP) MPs, in disagreeing, highlighted that the Bill lowers the bar on what constitutes scandalising the courts. Previously, a "real risk" of scandalising the judiciary had to be established for contempt. Now, it is just a "risk".

Responding, Mr Shanmugam noted, among other things, that the change would affect only a small minority who want to attack the integrity of the courts. Moreover, the sanctity of the judiciary must be weighed against the rights of a few people making baseless accusations, he added.

The long debate failed to win over the WP MPs, who voted against the Bill. Still, it was a valuable elaboration on what the law entails and curtails.

Judges and lawyers alike will scrutinise transcripts of the exchange in time to come. The layman too can turn to the official parliamentary record, known as the Hansard, to know what can and cannot be said.

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Public Order Act - Public Order (National Day Parade 2016) Notification 2016 (S 380 of 2016)

ACRA issues Registrar’s Interpretations: Clarifying Companies Act provisions

Business
15 Jul 2016

New tribunal for salary disputes to be launched by April

TODAY
17 Aug 2016
Kenneth Cheng

SINGAPORE — The Employment Claims Tribunals, which will hear salary-related disputes for all workers regardless of income levels, will be up and running by April next year, with laws providing for its establishment passed in Parliament yesterday, even as parliamentarians felt the law could have gone further to better serve workers.

To be set up under the State Courts, the tribunal will assume the Labour Court’s role of hearing statutory salary-related disputes. These include unpaid salary and maternity benefits, and claims of up to S$20,000 from all workers, from interns under a contract of service to professionals. The limit is S$30,000 for cases mediated with union or tripartite involvement.

The tribunal will also preside over employees’ contractual salary-related claims, including the payment of bonuses and allowances. The tribunal will also hear claims from employers for notice pay.

Claims can only be filed after parties have first attempted mediation at a new centre called Tripartite Alliance for Dispute Management, also to be set up by next April. Resolutions at mediation sessions are legally binding and can be enforced by the courts. At the tribunal, parties cannot be represented by lawyers, and cases will be heard by legally qualified magistrates.

Right now, the Labour Court adjudicates salary-related claims for workers covered under the Employment Act who earn up to S$4,500 a month. Those with larger pay cheques must file their claims with the civil courts, which entails a long and costly process.

The new tribunal, said Manpower Minister Lim Swee Say in Parliament yesterday, will “help more employees resolve more types of salary-related disputes with their employers”. He did not share the number of such disputes, but last May, he told the House that the Labour Court heard about 1,630 salary-related disputes in 2014.

Non-salary related disputes, including unfair dismissals, will continue to be handled by the Commissioner for Labour.

Twelve Members of Parliament (MPs) rose to speak on the Bill yesterday. They asked about the adequacy of the claim limits and the tribunal’s scope, and raised concerns about the ability of some employees to represent themselves. Workers’ Party Non-Constituency MP Daniel Goh asked if the S$20,000 limit was too low for professionals, managers and executives, as it was less than five months’ salary for those earning S$4,500 monthly. He suggested prescribing different classes of claimants according to their salary range and setting different claim limits accordingly.

Mr Zainal Sapari (Pasir Ris-Punggol GRC) said claimants without the capacity and knowledge may not be able to represent themselves adequately during mediation or at the tribunal. Mr Murali Pillai (Bukit Batok) pointed out that employers, on the other hand, can appoint a legally trained employee to represent them.

Non-Constituency MP Dennis Tan and Mr Gan Thiam Poh (Ang Mo Kio GRC) felt the tribunal could have also encompassed other workplace disputes. Said Mr Gan: “I am disappointed that other workplace disputes, such as emotional and physical abuse, discrimination and unfair dismissal, cannot be resolved through this tribunal.”

Mr Tan noted that unfair dismissal and discrimination could form part of the “matrix” in some salary disputes. “It may be an injustice to employees or employers if the tribunal were to disregard such issues or evidence completely,” he said. Other MPs stressed the need to keep fees affordable. Mr Patrick Tay (West Coast GRC) noted the costs of proceedings should be “reasonable and not deter workers”, while Mr Faisal Manap (Aljunied GRC) said fees for claims should be waived for those in financial difficulty.

Responding to the issues raised as well as on whether the claim limits were too low, Mr Lim said there was currently no limit on claims made by rank-and-file workers. However, the Government found that for rank-and-file workers, “S$20,000 is more than adequate”. The figure would be reviewed “from time to time”, he added.

As for whether the tribunal could be expanded to hear non-salary-related disputes, Mr Lim said the tripartite partners felt the tribunal should start with resolving salary-related disputes, before enlarging its scope in future.

On not allowing legal representation, Mr Lim said this was to ensure workers were not disadvantaged, because employers are more likely to be able to afford such representation. A claimant’s next-of-kin may apply to the courts to serve as deputy under the Mental Capacity Act, he added.

Agreeing that fees should be kept affordable, Mr Lim said the Government would consider suggestions on doing so, including having fees tiered according to claim amounts, while fees would be waived for “deserving” low-wage workers. For vulnerable local workers mired in situations where companies may have shuttered and cannot make payment, Mr Lim said his ministry was in the process of establishing a short-term relief fund to help such workers.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Environmental Public Health Act - Environmental Public Health (Public Cleansing) (Amendment) Regulations 2016 (S 379 of 2016)

CCS consultation on amendments to penalty and enforcement guidelines: final opportunity to respond

Business
15 Jul 2016

Yang Yin admits duping widow

Straits Times
17 Aug 2016
Carolyn Khew

Nearly two years after his arrest, former tour guide Yang Yin yesterday pleaded guilty to misappropriating $1.1 million from a wealthy widow he had moved in with.

The 42-year-old from China admitted persuading Madam Chung Khin Chun, now 89, to remit $500,000 to his father in 2010 on the pretext of buying her a painting by a famous Chinese painter.

Yang bought a worthless fake instead.

Entrusted to manage the widow's investments, he also withdrew $600,000 in 2012.

And in both these instances, Yang admitted to telling lie after lie to cover his tracks. He told his banker he was withdrawing the $600,000 to start a company in Hong Kong when there was no such plan.

He told police that the money was used to buy five paintings for Madam Chung - paintings an art expert later estimated to be worth just $3,000.

Yang has never revealed what he did with the $1.1 million he misappropriated, Deputy Public Prosecutor Sanjiv Vaswani highlighted, adding that "the accused has made no restitution".

Yang, who has been in remand since October 2014, is scheduled to be sentenced on Sept 9. For each charge of criminal breach of trust, he could be jailed for up to seven years and fined.

He is also likely to be sentenced that day for the 347 other charges he faced - mostly relating to falsifying receipts. On May 31, Yang pleaded guilty to 120 of these charges; the rest will be taken into account for sentencing.


Widow's $2.7m savings down to $10k in 4 years

Madam Chung Khin Chun, described as a "particularly warm, friendly and trusting person", lived modestly. But in the four years after Yang Yin moved into her Gerald Crescent bungalow to his arrest, her cash savings went from $2.7 million to just $10,000.

This was revealed yesterday when Yang, 42, pleaded guilty to misappropriating $1.1 million from the 89-year-old widow.

Since being accused by her niece of exerting an undue influence on the rich elderly woman, the former China tour guide has stuck to one narrative: that she saw him as the "grandson" she never had, and wanted him to move in and take care of her. That was why she wanted to leave her considerable assets to him.

Yesterday, the story was exposed as nothing more than a fiction. He came to Singapore simply to benefit himself and his family.

Throughout the saga, Yang claimed that Madam Chung needed his help at home.

But Immigration and Checkpoints Authority records showed that he was frequently away from Singapore. Between September 2009 and September 2014, he left Singapore on 43 occasions and was away for a total of 307 days.

He never took Madam Chung, who was diagnosed with dementia in April 2014, to see a doctor or a psychiatrist.

All household chores, including cleaning and cooking, were done by maids. Yang also ate breakfast alone as he woke at around 10am to 11am, far later than Madam Chung.

"The accused claimed that Madam Chung had accepted him as her 'grandson' on a Beijing trip in 2008, and addressed him as such. This is false," said Deputy Public Prosecutor Sanjiv Vaswani in the statement of facts. "The accused also claimed that it was Madam Chung who had asked him to move to Singapore to live with her as her grandson. This is also false."

It was in 2006 that Yang, then a tour guide, first met Madam Chung. During the visit to Singapore, he told Madam Chung's friend, for whom he had organised a trip, that he was interested in art. She took him to the home of Madam Chung, an avid art collector.

The next meeting was in 2008, when Yang organised a Beijing trip for Madam Chung and her friend. During the trip, he started addressing the women as his grandmothers and urged them to call him "Xiao Yang" ("Little Yang").

From then on, Yang would periodically call Madam Chung, who was at a vulnerable time in her life after her husband died in 2007. He told her he often visited Singapore and she said he could use a spare room in her house to save on hotel charges.

In February 2009, he stayed there for a month. During the time, he persuaded her to give him $40,000 by claiming he needed to buy a car in China to practise driving since he had just got his licence. In truth, he did not have a licence.

He also told her he wanted to quit his job and find one in Singapore. But it has since been proved that the most he did in this regard later was to set up a fake music and dance company.

In July 2009, Yang returned for a month and told Madam Chung he would help manage her finances. Soon, he realised the extent of her savings and investments.

In January 2010, he persuaded her to give him $500,000 to buy her a horse painting by artist Xu Beihong.

Yang now admits he had in fact purchased a $200 fake.

To avoid suspicion, the sum was moved from the widow's bank account to his, then back to her account, before landing in his father's account in China.

He also tried to conceal his misappropriation of $600,000 by lying to the police that he had used the sum to buy five paintings for her.

The five paintings were evaluated by an expert to be worth only $2,000 to $3,000 in total.

During the trial, Yang lied that Madam Chung had given him all of her monies. These included over $300,000 that she entrusted to him to purchase a condominium unit on her behalf; $70,000 she gave for insurance policies in his name but monies from which were meant to benefit her when the policies matured; and a further $600,000 she wanted him to invest.

These sums, including the proceeds from the sale of the condo unit, have been seized by the authorities.

In 2010, he also influenced Madam Chung to change her will - which left most of her money to charity - to one that benefited him. The will has since been revoked by the courts.

Yang is expected to be sentenced on Sept 9.


What he took and the lies he spun

MISAPPROPRIATION OF $500,000

Some time in or around January 2010, Yang Yin persuaded Madam Chung Khin Chun that he had a friend in China by the name of Zhu, who had a valuable painting titled Yin Ma Tu (or Horse Drinking Water) by renowned Chinese painter Xu Bei Hong.

He told her that Zhu was prepared to sell the painting for $500,000.

She issued a cheque to Yang but he realised that if he were to remit such a large sum overseas, red flags might be raised as he was unemployed. So he transferred back the money, and got her to remit the money to his father's account in China.

The horse painting he did buy was a fake. On March 4, 2010, he returned to Singapore and showed the fake painting and a falsified receipt to Madam Chung.

LYING ON THE STAND

Yang later claimed during trial that the $500,000 had been a gift to him from Madam Chung for him to pay off his family debts. He also claimed that around $420,000 was used to pay off medical debts that his grandmother had incurred from a urinary tract condition.

But when queried, he claimed he no longer had the bills and that some of them would have been burned.

MISAPPROPRIATION OF $600,000

Yang was added as a joint account holder of Madam Chung's OCBC investment account in late 2009. In 2011, he told the bank to redeem unit trusts the widow entrusted to him. Proceeds of nearly $1.3 million were added to his account.

On Jan 18, 2012, Yang withdrew $600,000 in cash from the account. He had called his personal banker at OCBC and asked for the sum to be given to him in $10,000 notes.

When asked about the withdrawal, Yang lied that he was intending to register a company with business partners in Hong Kong. He also claimed that he required cash to purchase paintings for the business.

Yang, in fact, had no intention whatsoever to set up a Hong Kong company.

To hide his wrongdoing, Yang procured two fake receipts, which purported to show that he had purchased five paintings for a total of $587,000.

LYING TO POLICE

After his arrest, he identified the five paintings he had "bought" for $600,000. Art expert Lim Sew Yong, however, testified that the five paintings were commonplace artworks and estimated the total value at $2,000 to $3,000.

Carolyn Khew

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Environmental Protection and Management Act - Environmental Protection and Management Act (Amendment of Second Schedule) (No. 2) Order 2016 (S 378 of 2016)

SIAC announces new arbitration rules 2016

Business
13 Jul 2016

Ex-CHC fund manager Chew Eng Han and firm allowed to fight S$21m suit without paying S$1.5m security

TODAY
17 Aug 2016
Siau Ming En

SINGAPORE — The apex court has given City Harvest Church’s (CHC) former fund manager Chew Eng Han and his firm the green light to defend themselves against a S$21 million civil suit without having to fork out a S$1.5 million security.

The security was a condition imposed by Judicial Commissioner Chua Lee Ming earlier when he allowed Chew and his firm AMAC Capital Partners to fight a default judgment that they owed CHC S$21 million in unreturned investments, including S$4.6 million in accrued interest. These investments had been made in four tranches.

In coming to the decision, JC Lee found that there was enough evidence for Chew to argue his contention that CHC had breached the Moneylenders Act by issuing illegal loans in exchange for high interest rates. But this only applied for the first three tranches of investments, and not the fourth.

If Chew wanted to argue over the fourth tranche, he would have to pay a S$1.5 million security, the judge said.

In hearing Chew and AMAC’s appeal against this condition on Tuesday (Aug 16), Chief Justice Sundaresh Menon questioned if it was possible to make distinctions between the tranches when the case was going to trial.

Lawyers for CHC argued that there was no evidence to show that money-lending was involved in the last tranche of investments and that a security was warranted if Chew and AMAC wanted to defend their claim.

But the Court of Appeal overruled them.

Chew, who left the church in June 2013, is also appealing against his conviction and sentence in a separate criminal case involving five other church leaders. The six of them were convicted of misusing church funds and were sentenced to jail terms of 21 months to eight years.

Copyright 2016 MediaCorp Pte Ltd | All Rights Reserved

Central Provident Fund Act - Central Provident Fund (Medisave Account Withdrawals) (Amendment) Regulations 2016 (S 377 of 2016)

[USA] The affirmation of the Open Internet rules in the US and its potential impact on net neutrality in the region

Commonwealth
13 Jul 2016

New laws to seize digital, media opportunities

Straits Times
17 Aug 2016
Lester Hio

Bills pave way to set up Info-comm Media Development Authority and Government Technology Agency

Two new laws that aim to boost Singapore's ability to stay ahead in a rapidly-changing media and technology landscape were approved by Parliament yesterday.

The Info-communications Media Development Authority (IMDA) Bill officially merges certain functions of the Infocomm Development Authority (IDA) and the Media Development Authority (MDA).

The Government Technology Agency Bill formally legislates the creation of a GovTech agency that will drive digital transformation in the public sector.

Communications and Information Minister Yaacob Ibrahim said the lines between media and infocomm have become blurred in recent years, and technological advances provide an opportunity for the Government to deliver innovative digital services to the public.

The IMDA's creation was spurred by the blurring of the traditional divide between these previously distinct industries, said Dr Yaacob.

"Our traditional media, telcos and tech companies have expanded into content creation and new media business, and vice-versa."

Mr Darryl David (Ang Mo Kio GRC) said the formation of the IMDA is timely as content is consumed in new, creative ways. He cited the example of Pokemon Go, a smartphone app that has become popular nationwide since the launch of the game here earlier this month.

The new agency will put into practice the direction laid out in the Infocomm Media 2025 Plan launched last year. "Having a single agency implement the plan will provide greater clarity to industry partners and deliver more impactful outcomes," said Dr Yaacob.

One of its priorities is to build a future-ready Singaporean core for infocomm media by recruiting talent and developing professional skills within the infocomm media sector.

The IMDA will also take on the MDA's existing roles in regulating broadcasting and content, including monitoring the market for securing live coverage of sporting events like the Olympic Games, which Singapore sealed agreement on only at a late stage this year.

MP Zaqy Mohamad (Chua Chu Kang GRC) and Nominated MP Ganesh Rajaram raised the issue of such live telecasts, and Dr Yaacob reiterated Culture, Community and Youth Minister Grace Fu's view that the decision on such broadcasts should remain a commercial one, but that parties should conclude their negotiations early.

The agency will take over regulations overseen by the IDA and MDA, such as the Telecommunications Act, Postal Service Act, Broadcasting Act and the Films Act.

The IMDA will also oversee personal data protection regulation, due to the overlap between solutions that enhance data protection and infocomm media technologies.

As a "converged regulator", the IMDA will have to "keep pace with technological developments that change the way media content is delivered and consumed, and ensure that such content is consistent with our community norms and values", said Dr Yaacob.

Even as the IMDA regulates content, it will take its role in promoting creativity and content creation "seriously", Dr Yaacob added, in reply to NMP Kok Heng Leun, who spoke about the tension between regulation and nurturing creativity.

"As a content regulator, IMDA will take into account community values before deciding on the classification in order to strike a balance between the artistic merits of a performance and broader social norms," said Dr Yaacob.

Meanwhile, the new Government Technology Agency, or GovTech, will continue the IDA's Smart Nation engineering efforts.

GovTech will also encourage citizens to take part in development of technologies that can benefit the public, such as ride-sharing apps.

Dr Yaacob agreed with Ms Sun Xueling (Pasir Ris-Punggol GRC) and Mr Louis Ng (Nee Soon GRC) that the agency should consult and work with the public more closely and build platforms that facilitate cooperation between people and businesses through crowd-sourcing.

GovTech will also take the lead in putting in place the necessary public infrastructure for Smart Nation, such as the deployment of sensors and back-end data analytic support.

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

Public Order Act - Public Order (Exempt Assemblies and Processions) (Amendment No. 2) Order 2016 (S 376 of 2016)

Introduction of sustainability reporting “comply or explain” requirement by SGX

Business
12 Jul 2016

Bills passed to create two stat boards focusing on skills, jobs

Business Times
17 Aug 2016
Kelly Tay

Minister emphasises that SkillsFuture drive is for both new and traditional industries

[Singapore] SINGAPORE'S national training and productivity drive entered its next phase on Tuesday, with lawmakers passing bills to create two new statutory boards - SkillsFuture Singapore (SSG) and Workforce Singapore (WSG).

The former will lead the push for skills upgrading and lifelong learning under the Ministry of Education (MOE), while the latter will focus on jobs under the Ministry of Manpower (MOM).

While they are largely spin-offs from the Workforce Development Agency (WDA), the SSG will also absorb the Council for Private Education that regulates private schools.

Thanking members of the House for supporting the SkillsFuture Singapore Agency Bill, Acting Minister for Education (Higher Education and Skills) Ong Ye Kung said that the law is "not just boring legal clauses", but a "very exciting mission ahead and new structure for us to chase our own rainbows".

Debunking misperceptions that the SkillsFuture drive is applicable only to new industries, Mr Ong emphasised that the initiative is meant for traditional industries as well.

"Both will need SkillsFuture. We are saying that you need to build a foundation of skills and depth, and with that, you can build a future ... Versatility comes from depth, and I think we need to let all our young people (and) our more mature workers know that we must really be excellent in our craft, and then we have the versatility to move to new sectors. If we just touch the surface of everything, we will not have the versatility," said Mr Ong.

He acknowledged calls from various Members of Parliament (MPs) - including Nee Soon GRC's Louis Ng and Dr Lee Bee Wah - to ensure that courses offered are of a high quality.

While random audit checks already take place for the 15,000 courses available, Mr Ong said there are plans to incorporate user-generated reviews and feedback too - using an online portal that should be in place next year.

He also said that the government, in its SkillsFuture drive, will pay attention to vulnerable groups such as seniors, ex-offenders and those still in prison, and persons with disabilities (raised by Joan Pereira, Leon Perera, and Denise Phua respectively).

During the debate on the Singapore Workforce Development Agency (Amendment) Bill, West Coast GRC MP Patrick Tay urged WSG to undertake a research study "into non time-based under-employment in Singapore", in order to ascertain whether there is a trend of workers taking on lower paying jobs that require less of their skill sets.

Noting that this is something Aljunied GRC MP Sylvia Lim had raised before, Minister for Manpower Lim Swee Say said that MOM is "equally concerned about whether there is underlying growth in underemployment". He said he will take Mr Tay's suggestion into account when formulating WSG's research agenda.

Three other bills were also passed in Parliament on Tuesday - the Employment Claims Bill, the Info-communications Media Development Authority Bill, and the Government Technology Agency Bill.

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

Attorney-General (Additional Functions) Act 2014 - Attorney-General (Additional Functions) Act (Amendment of Schedule) Order 2016 (S 375 of 2016)

Technology, media and telecommunications quarterly regional update: Halftime Highlights

Business
12 Jul 2016

Disclose if facts are useful to investors' decision-making: SGX

Straits Times
17 Aug 2016
Marissa Lee

Instead of arguing if a piece of information is material and must therefore be disclosed, listed companies can abide by a simple rule, according to the stock market regulator.

"The cardinal rule is: When in doubt, disclose," said Mr Tan Boon Gin, chief regulatory officer of the Singapore Exchange (SGX), in a speech at a seminar yesterday.

"The fundamental determinant of materiality is whether the information will be useful to your investors in making their decisions."

Mr Tan was setting out the regulator's expectations when it comes to corporate disclosures, "in the light of recent events".

He did not refer to any specific company but the SGX has been investigating Swiber Holdings since the firm surprised the market last month by abruptly putting itself under judicial management, begging the question of whether the oilfield services firm made sufficient timely disclosures of projects lost or letters of demand received from creditors.

"Letters of demand can start small, and escalate quickly, because bankers are overexposed to a particular sector and due to cross-defaults on other liabilities such as bonds," noted Mr Tan.

"These may all become material developments that will have an adverse impact on the company's ability to operate as a going concern."

The environment under which a company operates also has a bearing on the materiality of disclosure.

"When the industry is humming along, the macroeconomic environment is stable, and there is no real volatility in your business, what might be considered material could be quite different from information that investors might need when your industry is going through extreme volatility or a protracted down-cycle, such that the financial position of your company is at risk of deteriorating quickly.

"In adverse economic conditions, companies which have had large projects on their order books delayed might need to keep their shareholders informed."

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

Registration of Criminals (Amendment) Act 2016 - Registration of Criminals (Amendment) Act 2016 (Commencement) Notification 2016 (S 374 of 2016)

Remission of stamp duty on certain conveyance directions – Licensed housing developers

Business
12 Jul 2016

ADV: SAL Annual Lecture 2016: Cutting the cloth to fit the dispute: Steps towards better procedures across the jurisdictions

Singapore Law Watch
17 Aug 2016
Singapore Academy of Law

Registration of Criminals Act - Registration of Criminals (Prescribed Law Enforcement Agency) Rules 2016 (S 373 of 2016)

Singapore and the Brexit effect

Business
08 Jul 2016

Law Society clarifies 'foreign law firms': Forum

Straits Times
17 Aug 2016

In its letter last Thursday ("Damages-based legal billing: Law Society replies"), the Law Society of Singapore stated that "foreign law firms are permitted to offer contingency fee arrangements".

In the context of the letter, the term "foreign law firms" refers to foreign law firms which practise foreign law solely.

Such firms do not practise Singapore law, including litigation, and are, therefore, not subject to the prohibition against contingency fee arrangements.

The term "foreign law firms" does not include joint law ventures, formal law alliances and qualifying foreign law practices which practise Singapore law.

In connection with their practice of Singapore law, those firms cannot offer contingency fee arrangements for litigation work.

Shawn Toh
Director
Communications
The Law Society of Singapore

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

Environmental Protection and Management Act - Environmental Protection and Management (Vehicular Emissions) (Amendment) Regulations 2016 (S 372 of 2016)

[EU] Investing in Europe: What do Europe’s new market abuse rules mean for investors?

Commonwealth
08 Jul 2016

Getting your company ready for sustainability reporting

Business Times
17 Aug 2016
Themin Suwardy & Melvin Yong

ONLY about 50 Singapore-listed companies have so far put out sustainability reports, even as the clock ticks down to the year-end when new guidelines for sustainability reporting kick in, say consultants.

This represents just over 6 per cent of all companies listed on the Singapore Exchange (SGX).

In June, SGX announced new guidelines on sustainability reporting, which require listed companies to review their sustainability practices every year.

The guidelines, on a "comply or explain" basis, will take effect in 2018 for companies with financial years ending on or after Dec 31, 2017.

"Many of the companies that have yet to report are seriously starting a dialogue . . . with a view in mind for a trial year of reporting in 2017," said Simon Yeo, assurance partner at EY.

Mr Yeo said about 9-in-10 of the 50 or so companies have reported their sustainability practices in accordance with the Global Reporting Initiative (GRI) framework, which is largely in step with the SGX requirements.

Sustainability reporting is increasingly gaining traction with investors and could feature in their investment decisions.

"The regional trend that sustainability reporting is becoming a listing requirement in the Hong Kong, Malaysia and Singapore stock exchanges suggests that stakeholders, including investors, are requesting information and disclosures beyond traditional financial performance," said Mr Yeo.

A 2014 global survey by EY and research house Institutional Investor, titled "Tomorrow's Investment Rules: Global survey of institutional investors on non-financial performance", found that 87 per cent of investors frequently or occasionally considered environmental, social and governance (ESG) factors when examining the risk and timeframe to hold an investment.

Further, nearly 8-in-10 investors (78 per cent) frequently or occasionally adjusted their valuations due to a risk identified from ESG performance, which in turn increases the cost of capital.

According to the report, these findings provide evidence that ESG information, which is largely found in sustainability reporting, is becoming a key input in investment decisions.

But sustainability reporting is a concept that many Singapore companies are still coming to terms with.

Observers say there could be a range of factors that could impede local organisations in their sustainability reporting journey.

"Management buy-in and understanding is often an initial hurdle, although this could be overcome through awareness building, particularly on the value proposition of the exercise," said Fang Eu-lin, sustainability and climate change practice leader at PwC Singapore.

Proper data collection for sustainability reporting purposes and external stakeholder engagement are also possible impediments, alongside companies' reluctance to disclose sustainability targets for fear of not meeting them.

"Identifying and compiling this data for sustainability reporting may feel onerous at the start but our experience shows that the process gets simpler as time goes on," said Ms Fang.

Getting on the sustainability reporting bandwagon can be facilitated in a few simple ways, according to Mr Yeo.

These include critically identifying and assessing the material sustainability issues; deciding on suitable KPIs (key performance indicators) for the company's industry, business and stakeholders; and then developing systems and processes to monitor the relevant data.

Under SGX guidelines, there are no penalties if companies fail to comply.

So should more be done to nudge those not yet on the journey?

EY's Mr Yeo said that, rather than using penalties, investor pressure should be allowed to play a bigger role in ensuring the efficacy of sustainability reporting.

"Investors holding companies accountable for their ESG performance will view companies who put out balanced sustainability reports and actively manage their sustainability impacts to have better risk management and opportunities evaluation systems, as this builds investor confidence and typically improves access to capital," said Mr Yeo.

PwC's Ms Fang suggested a carrot approach would be more effective in getting companies to bite.

"The key to increasing adoption is by emphasising the true long-term value and benefits that companies can derive from sustainability reporting," she said.

"The exercise should not come across as a check-the-box process, but one that companies embed into their culture and values," she added.

Indeed, companies that have started down the path of sustainability reporting say such efforts will be rewarded by investors.

"We have received many positive comments on our sustainability report thus far, and this has encouraged us to continue to highlight our efforts in this area," said Philip Levinson, CEO and executive director of Cambridge Industrial Trust (CIT) Management.

CIT's efforts have also been recognised by the market when it was recently included in SGX's inaugural Sustainability Leaders Index, one of only 24 companies to be added.

"This has added another measurable dimension to our sustainability reporting efforts and has been favourably received by institutional investors," said Mr Levinson.

For sustainability reporting to work, the tone at the top through the board is also important.

Soh Yew Hock, a director who sits on the boards of several SGX-listed companies, said: "The board can and should set the tone by firstly having a strong code of ethics requiring the company to act responsibly in all its business activities because they have economic, social and environmental impacts."

He observed that bigger and more established companies would have fewer issues with costs, time and effort in adopting sustainability reporting but smaller firms could find it burdensome.

"For a start, consideration could be given to the size of companies - say, by market cap and the nature of the companies' businesses," he said.

Sapphire Corp - an investment management and holding company with units in engineering, procurement and construction, and mining services businesses - said while it has not yet adopted sustainability reporting, it is working to include such issues in its 2016 annual report.

Sapphire Corp chairman Steven Lim said there are both tangible and intangible benefits for doing so.

"A likely tangible benefit will be cost saving arising from efficient utilisation of resources, such as water and electricity; and a likely intangible benefit will be enhancement of the company's brand, arising from its adoption of measures to enhance sustainability of its business," he said.

But the biggest benefit of adopting sustainability reporting is arguably building trust - particularly with business partners, customers and investors, and also with other stakeholders.

Mr Soh said: "Already, companies that do not have sustainable business practices are being shunned by customers, lenders and investors, and they are no longer on the radar screen of important fund managers and institutional investors."

  • This series is brought to you by CPA Australia to share knowledge on topical issues relevant to business, finance and accounting.

Starting points in the sustainability reporting journey

  • Organisations can undertake a comprehensive materiality assessment exercise to identify, rank, prioritise and validate the material sustainability issues.
  • They should evaluate and decide on a range of key performance indicators (KPIs) that are relevant to their industry, business and stakeholders.
  • They should also develop robust systems and processes to collect, track and monitor the data for their performance on material sustainability issues.
  • To guide their efforts, organisations can make reference to leading sustainability reports issued by their peers globally. The Global Reporting Initiative (GRI) framework, for example, maintains a Sustainability Disclosure Database of thousands of reports available publicly.

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

Road Traffic Act - Road Traffic (Electronic Road Pricing System) (Amendment No. 3) Rules 2016 (S 371 of 2016)

Latest developments: Securities and futures; competition law; litigation and dispute resolution; tort; real estate

Business
08 Jul 2016

Law on contempt remains largely the same: Shanmugam

Straits Times
16 Aug 2016
Chong Zi Liang

He stresses that the legislation does not stop discussions on policy or what the law ought to be

The Bill on the laws of contempt of court does not substantively change the legal position on what one is permitted to say about the judiciary and ongoing court proceedings, Law Minister K. Shanmugam said yesterday.

It was a point he emphasised throughout the second reading of the Administration of Justice (Protection) Bill, which was passed after a nearly seven-hour debate in Parliament.

He said one could still have discussions on the merit of a law, and one could still criticise a judgment, as long as the integrity of a judge was not called into question.

Several Nominated MPs (NMPs) and Workers' Party (WP) MPs disagreed, contending that the Bill went far beyond its stated aim of codifying in statutes the existing common law, which is based on judgments of previous cases.

At the start of the debate, Mr Shanmugam, who is also Home Affairs Minister, noted that the law on contempt was the only criminal law here based on case law.

The move to correct this anomaly began in 2010, when then Chief Justice Chan Sek Keong raised the idea of putting contempt of court laws in statutory form.

The Bill covers three main areas of the law of contempt: prejudicing court matters, disobeying court orders and scandalising the courts.

To those who feel that curbing comment on an ongoing trial would curtail free speech, Mr Shanmugam said a person's right to the presumption of innocence should come first.

"It will be quite shocking for us to say that the rights of someone who wishes to comment should be put above the rights of the person who is facing a trial, for a fair trial," he said.

He stressed that the legislation does not stop discussions on policy or what the law ought to be. For instance, he said, one can advocate one's position on the death penalty even if a capital trial is going on.

On scandalising the courts, the Bill sets out that this is committed if a publication "poses a risk that public confidence in the administration of justice would be undermined".

But High Court judge Quentin Loh ruled in 2010 that for a statement to be in contempt, it had to have a "real risk" of scandalising the judiciary.

Mr Shanmugam explained that while judges develop common law based on strict legal precedence, the Government looked at the larger implications of the law on the country.

Different interests were weighed against each other. The benefits that Singapore reaps as a legal hub, thanks to the prestige of its judiciary, were compared against the rights of a few who wish to attack the integrity of the courts.

"You weigh the public good against what is being proscribed and, in my view, the balance is clear," he said.

Mr Shanmugam also highlighted that the Bill makes it easier to enforce court orders, and sets out maximum penalties for contempt of court. Under common law, the punishment was limitless.

A total of 19 MPs rose to speak on the Bill. The WP MPs opposed it, taking aim at several aspects, including the change in what amounts to scandalising the courts.

WP chairman Sylvia Lim (Aljunied GRC) said the Bill "unnecessarily lowers the threshold on what constitutes scandalising the court".

Non-Constituency MP Leon Perera added that the Bill "will suffocate dissent, debate and democratic politics in Singapore to the detriment of balanced, accountable politics, civil society and freedom of speech".

After the debate, three NMPs who had submitted amendments to clauses in the Bill last week withdrew them. They are Mr Mahdev Mohan, Mr Kok Heng Leun and Ms Kuik Shiao-Yin.

Before the Bill was passed, WP chief Low Thia Khiang (Aljunied GRC) called for a division - which means each MP's vote is recorded - at both its second and third reading. All but the nine WP MPs in the House backed the legislation.


ENSURING A FAIR TRIAL

It will be quite shocking for us to say that the rights of someone who wishes to comment should be put above the rights of the person who is facing a trial, for a fair trial.

LAW MINISTER K. SHANMUGAM

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What's okay, what's not? Administration of Justice (Protection) Bill

Straits Times
16 Aug 2016

A coffee-shop discussion on the guilt of an accused in an ongoing trial is not against the law - unless one of those in the group is a potential witness, and there is an attempt to influence him. Law Minister K. Shanmugam (above) also assured the House yesterday, during the debate on a Bill codifying current contempt of court laws, that after a judgment is passed, people can comment as they wish on the trial - including the merits of the decisions and the conduct of the parties.

He also stressed that the public and media are free to debate the merits or demerits of any law, even while cases concerning such legislation are before a court. He pointed out how academics and media outlets already publish commentaries on a judge's decision even when the case is being appealed.

"These are not prohibited," he said. "Commenting on a judge's reasoning is unlikely to pose a real risk of prejudicing the appeal outcome."

Comments in public space

Nominated MP Kok Heng Leun, who submitted a public petition on the Bill signed by 249 Singaporeans, suggested that public debate over certain cases, such as that of full-time national serviceman Dominique Lee, who died after suffering an allergic reaction to smoke grenades, had in part led to the army tightening safety rules.

Public concern over the Benjamin Lim case, in which a 14-year- old, who was questioned by police in a case of molestation involving an 11-year-old, jumped out of a flat, also led to the Education Ministry and police reviewing procedures.

He also explained how in 2014, as part of a project dealing with end-of-life issues, he held public talks, one of which was on wills and the Lasting Power of Attorney.

"In the same period, the case of Yang Yin, the ex-tour guide accused of misappropriating $1.1 million from a wealthy Singaporean widow, made the news. Inevitably... there were comments made by members of the audience in a public space.

"Would their comments have been considered sub judice?"

And what about humorists such as Mr Brown and satirical site newnation, he added, given how they are quick to comment on issues of the day.

He asked: "Will our local funnymen be in contempt of court for their sense of humour?"

While saying that the authorities' decision to review procedures relating to Benjamin's case was made early and was not due to the public discussion, Mr Shanmugam said the Bill "does not intend to, does not prevent the public or civil society from discussing or advocating change of the law, but to just keep away from prejudicing or real risk of prejudicing the proceedings".

Given Mr Kok's description of his project, the minister said it was probably not in contempt.

As for the likes of Mr Brown, the minister highlighted how they have never been cited for contempt, and that the law is not changing.

Mr Kok also asked if someone is in contempt for writing on Facebook that "I hope the truth will be revealed" in relation to a case.

Mr Shanmugam replied: "Simply stating a hope that justice be done - how can that be contempt? I think, stop seeing shadows."

Coffee-shop discussion

Workers' Party chief Low Thia Khiang (Aljunied GRC), in stating his party's opposition to the Bill, argued that it was meant to deter members of the public from voicing their views "even if they are reasonable and legal". And as "the Bill includes private communication", even people discussing a trial at a coffee shop "can be liable".

But Mr Shanmugam was flabbergasted that the Bill could be construed that way. He explained that for comments to be sub judice, it has to present a real risk of prejudicing a trial and coffee-shop talk clearly falls far short.

"How does ordinary citizens sitting in a coffee shop having a beer and talking about a case pose a real risk of prejudicing any proceedings?" he asked.

"Does anyone believe that? The law today is the same as the law tomorrow. Have you seen anyone being charged for sitting in a coffee shop and talking about cases?"

He did, however, highlight an instance where coffee-shop talk can fall foul of contempt laws. "You catch hold of a witness, you bring him to the coffee shop and you threaten him, yes, it is publication and it is interference of proceedings." Otherwise, he told Mr Low, "let's get real".

A measured view

WP Non-Constituency MP Daniel Goh, clearly referring to the Benjamin Lim case, raised the example of a young person who has died "in an event following the acts of public officials".

"Would I, as the father in question, be risking sub judice contempt if I asked fair questions about the event?" he asked.

Mr Shanmugam said the Attorney-General will take a measured view.

"So if a father who has lost his son or daughter, he's grieving and he comes out and says all these things, I think the likelihood that that would amount to a serious or a real risk of interfering with any subsequent proceedings, most people can look at it and discount that for the purpose of the proceedings.

"Even if somebody were to take a view that that interferes with the court proceedings often in the context of the discussions, it is not likely that any A-G will think contempt is warranted."

Concerns of youth

Nominated MP Kuik Shiao-Yin expressed her worries on the possible impact the Bill may have on youth's active participation in socio-political discussions online.

She said that "even youth not predisposed to distrust the Government feel some low level of anxiety over the uncertainties in the Bill".

"Even after they read it... they are still uncertain about how easy it will be for them to commit sub judice.... they are uncertain about whether their one single 'prejudicial' WhatsApp message communicated to just one other friend could be construed as a mass publication of contempt."

Mr Shanmugam replied that "the law tomorrow is the same as the law yesterday on this area, has no change, and in fact they can discuss a great deal. I think for a start, you can tell them it doesn't really affect what they do or what they have been doing unless they want to start thinking in terms of going public and attacking witnesses and attacking judges and trying to get certain results from the court".

Ms Kuik later asked to clarify: "So can I confirm that a publication made as a part of a discussion in good faith on a matter of general public affairs is not contempt of court if there is no prejudice or interference or real risk of prejudice or interference?"

Mr Shanmugam replied: "That's correct."

Defining 'publications'

Mr Louis Ng (Nee Soon GRC) asked whether the definition of "publications" in the Bill also include academic articles, or a private Facebook post? "In this age of social media, where flurries of spontaneous conversation fill the Internet, the layperson may not fully understand where the line is drawn and what he or she cannot say," he said.

But Mr Shanmugam said he cannot see how putting up a Facebook post poses a real risk of prejudicing proceedings, "unless you're the Prime Minister with a million followers and everybody reads what you say. So you look at who is saying it, you look at the reach, you look at the possibility of influencing the court, you look at a whole host of factors and these are best left to the court. But in the broad types of cases you mentioned... just ask yourself, what's the real risk of prejudicing a proceeding?"

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

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MPs raise concerns over lower bar for scandalising the court

Straits Times
16 Aug 2016
Lim Yan Liang

Several MPs yesterday took issue with the Administration of Justice (Protection) Bill over how it relaxes the requirements for the offence of scandalising the judiciary.

Workers' Party (WP) chairman Sylvia Lim (Aljunied GRC) said she found "several things abhorrent about this Bill and the way it is being bulldozed through Parliament". She also said it was "unnecessarily lowering the threshold for what amounts to scandalising the courts".

The Bill modifies the test of scandalising the judiciary from one of "real risk" to one of just "risk".

Nominated MP Mahdev Mohan, an assistant professor of law at Singapore Management University, said the Court of Appeal had carefully decided that the "real risk" test should be the applicable test, and asked why the House should statutorily depart from a rule followed by the apex court. He asked: "Are we moving backwards to a test which has a lower threshold by only using the word 'risk'?"

Mr Pritam Singh (Aljunied GRC) raised a similar point, pointing to how the "real risk" test strikes a balance between freedom of speech and contempt of court.

He said the Bill gives "extraordinary power" to the Government and risks upsetting this balance.

Non-Constituency MP (NCMP) Dennis Tan said the move from a "real risk" test to one of just "risk" significantly lowers the bar for liability when it comes to scandalising the court.

"To me, it seems to be everything that the Court of Appeal has said about what a real risk test should not be. We should not depart from the learned decision and analysis of the Court of Appeal," he argued.

The proposed maximum punishments - a fine of up to $100,000 and jail of up to three years - "far exceed" current practices, he added.

NCMP Leon Perera said the Government is "prescribing harsh penalties to statute and defining contempt of court expansively".

He added that the Government has to explain why it is "opting to move aggressively in the reverse direction" by codifying the offence.

People's Action Party MPs like Mr Edwin Tong (Marine Parade GRC) spoke in favour of the law, but sought clarity on the difference between internal discussion and public dissemination when it comes to whether one, say, imputes improper motives or impugns the impartiality of a court.

Minister's response

Mr Shanmugam agreed that the one change the Bill makes to the law is that the test for scandalising the court has "come down" from "real risk" to one of "risk".

While it is a reasonable view that lawmakers should stick to what the courts have said, he added that the executive "is uniquely placed to take a broader policy perspective, including how we develop or how we should protect" the judiciary.

"The courts fundamentally are engaged not in a policy exercise: They don't weigh up economic considerations, the larger social policy considerations, they look very narrowly at case law and say this is the law," he said.

Singapore's reputation as a jurisdiction known for unchallenged independence and impartiality has drawn eminent judges from across the world to the Singapore International Commercial Court, he noted.

"It's a weighing exercise: On the one side, it's the integrity of the institution and on the other side, the need for a very small number of people to say judges are biased, judges are corrupt," he said, adding that the House is "in a better position as a matter of policy to decide what the law ought to be".

He also replied to Mr Mohan that there is "no backsliding" of the law, and that the way case law has defined it will provide the best guide.

As for maximum penalties, Mr Shanmugam said the House sets them out, but it is for the court to sensibly apply different penalties, based on facts, depending on how egregious the contempt is.

The law actually narrows maximum penalties by defining them: "Previously, it was unlimited, and today, if the Bill is passed, once it comes into force, it will be limited.

"And that's a change to be welcomed," he added.


MOVING BACKWARDS?

Are we moving backwards to a test which has a lower threshold by only using the word 'risk'?

NOMINATED MP MAHDEV MOHAN, an assistant professor of law at Singapore Management University.

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Worries raised over limits on speaking freely about cases

Straits Times
16 Aug 2016

Several MPs felt that sub judice contempt under the Administration of Justice (Protection) Bill would restrict people's right to comment freely on ongoing police investigations or court cases.

Such contempt deals with comment and conduct that would prejudice or interfere with ongoing cases, or pose a real risk of doing so.

Nominated MP Kok Heng Leun felt the law could affect the airing of opinion on matters of public interest, citing the recent deaths of full-time national serviceman Dominique Sarron Lee and 14-year- old student Benjamin Lim. Mr Lee's case led to the Singapore Armed Forces reviewing its training procedure, while Benjamin's saw police review their protocol for dealing with minors.

"The public may become overly cautious. Severe penalties may deter people from discussing such cases," he said.

Fellow NMP Kuik Shiao-Yin said the Bill was interpreted by some as a "despairing signal to shut up and sit down", and called for a guarantee that people would not be caught by the law if their comments are not made in bad faith.

Workers' Party MPs also raised concerns about what they saw as an attempt to muzzle free speech.

"Reading this Bill sends a chill down my spine," said Non-Constituency MP Daniel Goh, who described the proposed law as "subversive of trust between the Government and the people".

He also questioned what he saw as an "immunity" for the Government: The law provides for the Government to comment on ongoing cases, as long as it believes there is a public interest in doing so.

WP chief Low Thia Khiang (Aljunied GRC) said it seemed that the real purpose of the new Bill was not to protect the fairness of the judicial system but to deter members of the public from voicing their views, while allowing the Government to voice its view.

"The ruling party is the only judge of what is contempt, and all they have to say is it is in the public interest," he added. "Is it really to protect the dignity of the judiciary or to protect the Government?"

Mr Pritam Singh (Aljunied GRC), a lawyer, also said the common man may not find it "so easy and neat" to differentiate between commenting on a case, and criticising policy and law, which is allowed.

On the other hand, People's Action Party MPs like Mr Darryl David (Ang Mo Kio GRC) welcomed the law for protecting people's right to a fair trial. He said intense media speculation on ongoing cases could colour the views of witnesses and result in trial by media.

Mr Edwin Tong (Marine Parade GRC) added that the proliferation of comments on social media could also affect and influence witnesses.

Mr Tong, a lawyer, also said that fears about free speech raised by opposition MPs were "completely unwarranted, alarmist, and show fundamental lack of understanding about the law".

Minister's response

Similarly, Law Minister K. Shanmugam in his reply said people can continue to discuss court cases as they already do now.

For example, many of the comments on the Benjamin Lim case, like whether the police should interview young offenders without an adult around, would not be considered sub judice.

Also, not every comment on ongoing cases is sub judice, he said. "The test is whether (the comment) prejudices or interferes with ongoing court proceedings, or poses a real risk of doing so," he added.

A number of MPs had also cited a scenario of people sitting in coffee shops and commenting on ongoing court cases being prosecuted for sub judice.

The minister replied: "How does ordinary citizens sitting in a coffee shop having a beer and talking about a case pose a real risk of prejudicing any proceedings? Does anyone believe that? The law today is the same as the law tomorrow."

On the clause that provides for the Government to comment on ongoing cases, Mr Shanmugam said it was not a free pass for the Government to say anything it deems fit.

But there was a need for such a provision as the Government cannot be expected to keep mum on issues of public interest just because of legal proceedings - for instance, during a public health emergency or a riot.

Also, the courts were the "final arbiters of any provision in the law", and the Government would have to "act in accordance with the law" or may face prosecution, he added.

This also means if a minister spoke about a case in a manner calculated to prejudice proceedings, and did not do so in the public interest, he could be charged with contempt as well, Mr Shanmugam said.

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

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