An Analysis of Genetic Affinity as an Actionable Head of Damages – ACB v Thomson Medical Pte Ltd

by Suresh Viswanath

I. INTRODUCTION

In the recent case of ACB v Thomson Medical Pte Ltd [ACB]1, the Singapore Court of Appeal recognised a new head of damages for parents of children born out of medical negligence – that of “genetic affinity”.2 This article seeks to summarise the case for recognising genetic affinity as an actionable head of damages, and discuss some potential objections to this recognition.

II. BACKGROUND

A. Facts

The appellant underwent an in-vitro fertilisation (“IVF”) procedure and delivered a daughter (“Baby P”). Baby P’s skin colour was noticeably different from that of her parents. It was subsequently discovered that the appellant’s ovum had been fertilised with sperm from an unknown third party, instead of sperm from her husband. The appellant brought a suit in the tort of negligence and for breach of contract, and sought damages for, inter alia, the full costs of raising the child (“upkeep costs”).3

B. Decision on upkeep costs and loss of autonomy

The Court of Appeal did not allow recovery of upkeep costs4 because:

  1. The obligation to maintain one’s child is at the heart of parenthood. Parenthood is a relationship that is intrinsically incapable of valuation, and therefore its obligations cannot be a legally recognised head of damage.5
  2. It would be inconsistent with the nature of the parent-child relationship; parents’ personal interests as litigants would conflict with their duties as parents since they would be encouraged to show that their child is a “net loss” by exaggerating their infirmities and downplaying any benefits.6 A loving parent would therefore receive less in damages than a parent willing to “disparage and reject [his or her] child”.7

The court also rejected recovery for “loss of autonomy” because:

  1. The concept of “autonomy” is nebulous;8 some conceptions of autonomy only take into account an individual’s current desires, some additionally take into account their long-term desires, and others consider the importance of social relations in accounting for “autonomy”.9
  2. Damages for loss of autonomy would be vindicatory, rather than compensatory; damages could be awarded even if the defendant's act made a plaintiff better off. This would be incoherent with the compensatory concept of damage in the tort of negligence.10
  3. It would be over-inclusive, since any form of damage can “be reconceptualised in terms of a damage to autonomy”.11 This undermines “control mechanisms which keep recovery in the tort of negligence within sensible bounds”.12

However, the court was prepared to award damages for loss of “genetic affinity”.13 On the facts of ACB, the court quantified this loss as 30% of the full cost of raising Baby P.14

C. “Genetic affinity”

The court began from the premise that a person’s desire to have a child of their own (with their spouse) is a basic human impulse.15 In the “ordinary human experience”, parents and children are related by blood and share physical traits.16

Such blood relations are often significant to parents for several reasons. Firstly, parents may want children who are the literal physical manifestation of their parental union.17 Secondly, common traits may, for some, play a part in forging an emotional bond between parent and child.18 Thirdly, shared ancestry and genetic continuity can be important to religious and cultural belonging19 – for instance, there are often adverse social implications when a child has a different skin tone from their parents.20 These interests can be collectively referred to as “genetic affinity”.

The court was clear that it was not making a prescriptive definition of what a family should be or denigrating adoption.21 However, since the vast majority of people are biologically related to their families, there is a widely shared social construction of what a family is. Despite the fact that participation in different socially constructed units (families that do not share physical traits) may be rewarding, it might not provide the experience of blood relations that many people seek and value.22 People who undergo IVF treatment often do so at great difficulty and expense due to a conscious desire go through this “ordinary” experience of parenthood. In the court’s view, being denied this experience due to others’ negligence constituted a profound loss.23

III. DISCUSSION ON GENETIC AFFINITY

This author submits that the court’s decision on genetic affinity is to be welcomed for pinpointing the true loss suffered by the appellant, in the process recognising a head of loss unprecedented in any jurisdiction. This enabled the court to avoid an outcome which “most non-lawyers would doubtless find rather surprising”24 without having to ignore the concerns raised here and elsewhere25 regarding an award for upkeep costs or loss of autonomy. However, some objections have been raised26 as regards the recognition of an interest in genetic affinity.27 This section seeks to discuss these objections and highlight possible responses to them.

A. Issues related to discrimination

Firstly, it could be argued that an interest in “affinity” is inherently discriminatory. Although parents might possess an interest in having children with whom they share traits, the kind of traits they value often include things like physical appearance (such as skin colour). These are the very traits that modern society regards as illegitimate grounds for discrimination.28

This problem can be dealt with by drawing a distinction between discrimination in the public sphere and discrimination in private decisions about kinship and reproduction.29 The former usually has no legitimate purpose, and is motivated either by hostility to people who possess certain traits, or mistakenly uses these traits as a proxy for other qualities. On the other hand, choices motivated by affinity tend to emphasise symbolic traits which are significant due to their role in personal and social identity. They are not motivated by hostility towards people who do or do not possess such traits; rather, they merely celebrate characteristics that reinforce a sense of group identity. Neither are they proxies for any quality apart from membership of that group.30 Therefore, discrimination in decisions related to offspring appear not to be illegitimate in the way that discrimination is in the public sphere.

B. The importance of genes

A second argument questions the significance of genes in determining traits. Recognition of affinity as an actionable form of damage is premised on the idea that genes do, in fact, determine traits – however, some scientists have opined that the role of genes in determining traits is exaggerated and frequently misunderstood (this is essentially the age-old “nature vs nurture” debate).31

Nevertheless, even the strongest critics of genetic determinism concede that genes do play some role in determining personal identity, however small this may be. This is especially so for aesthetic traits, which are usually the ones emphasised by parents with an interest in affinity.32

It is also important to be clear that damages for affinity are not being awarded on the basis that one set of genes are somehow “less desirable” than another – rather, they are being awarded because the genes of the child are not similar to those of the parents.33

This is especially relevant in cases where a parent is having a child with a donated egg or sperm, rather than with one from their own spouse. In such cases, parents’ genetic choices sometimes stem not from a desire to have a child in their own image through common symbolic traits (affinity interests), but from a desire to impart functionally desirable traits to their children (eugenic interests). For example, the practise of advertising for egg donors in prestigious universities suggests that some parents seek children of high intelligence.34 If a parent seeks to impart in their children traits which they themselves lack, they are motivated by eugenic rather than affinity interests – their claim should not be allowed.

In any case, a claim for affinity seems unlikely to succeed in cases involving donated sperms or eggs, even where a mix-up affects symbolic rather than functional traits. In the Northern Ireland Court of Appeal decision of A and B by C (their mother and next friend) v A – Health and Social Services Trust (“A and B”)35, a mix-up in donated sperms caused the appellants (the children) to be born with a different skin colour from their parents.36 The Court of Appeal in ACB agreed with the decision in A and B that a difference in skin colour could not constitute an actionable form of damage.37 It should, however, be noted that this was a case where the children (rather than the parents) brought a suit; genetic affinity, as recognised in ACB, is a parental interest.38 Also, the court in ACB felt that the decision in A and B failed to consider the true harm – the lack of physical resemblance to parents – suffered by the appellants.39

Additionally, it is worth noting that in addition to the mother, her husband (the legal father) could also be eligible for an award for genetic affinity, especially since (unlike the mother) he has no genetic connection with the child.40

C. Quantification of damages

Thirdly, there are difficulties with the way the Court of Appeal chose to quantify the damages in ACB by benchmarking them against upkeep costs. The first issue here is that this results in the same policy objections that led to the Court of Appeal rejecting an award for upkeep costs; parents would be incentivised to exaggerate detriments and downplay any benefits gained from their children.41 The second issue is that benchmarking damages against upkeep costs is arguably incoherent with the nature of the damages being awarded; it is not clear how a percentage of a pecuniary award for upkeep costs takes into account the particular non-pecuniary harms suffered by the appellant due to loss of genetic affinity.42

Quantification of genetic affinity is undoubtedly difficult; the court accepted that its solution was not theoretically elegant, but stated that an elegant solution which attempted to quantify the appellant's actual losses would require it to engage in complex and controversial issues43 (some of which could be racially sensitive44). One alternative, proposed by a case comment that raised the above concerns, is to set a uniform award through parliamentary intervention, with the amount determined by consultation and studies.45 Being uniform, such an award would not compensate a particular plaintiff for the particular harms suffered. However, the authors of the case comment argue that a loss of genetic affinity is "abstractly incalculable" and that value judgments should not be made that genetic affinity is more important to some parents than others.47

D. Harm to children

Additionally, allowing an action for genetic affinity may cause psychological harm to a child – the litigation involved may make them feel that their parents do not value them, and that they are less desirable than a child with the parents' own genes.48 Similar arguments have been made against an award of upkeep costs both in Singapore and in other jurisdictions.49 The High Court of Australia in Cattanach v Melchior50 dismissed this argument; it held that in addition to being speculative (the harm caused to the child is uncertain, and children may discover the truth of their birth regardless of any litigation or lack thereof), there are also "many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted”.51 The court in ACB seemed to agree with the High Court of Australia on this point, giving the concern little weight with regard to upkeep costs.52

IV. CONCLUSION

The facts of ACB were tragic, and the legal issues complex; the case was described by the Court of Appeal as "possibly one of the most difficult" to come before it.53 As unfortunate as the circumstances were, it is probably not the last time that courts will have to deal with such issues, especially given the rising number of people relying on IVF to have children.54 In light of this, the decision on genetic affinity is extremely significant as it provides a substantial remedy for parents in cases of wrongful fertilisation.


[1] [2017] SGCA 20, [2017] 1 SLR 918.

[2] Ibid at [135].

[3] Ibid at [3].

[4] Ibid at [86].

[5] Ibid at [87]–[94].

[6] Ibid at [95].

[7] Ibid at [99].

[8] Ibid at [115].

[9] Ibid at [116]–[118].

[10] Ibid at [120]–[121].

[11] Ibid at [123].

[12] Ibid at [115].

[13] Ibid at [135].

[14] Ibid at [150].

[15] Ibid at [127].

[16] Ibid at [128].

[17] Fred Norton, “Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages” (1999) 74 NYU L Rev 793 at 798.

[18] Supra note 1 at [128].

[19] Ibid at [128].

[20] Ibid at [131].

[21] Ibid at [129].

[22] Ibid at [129].

[23] Ibid at [129].

[24] Margaret Fordham, “An IVF Baby and a Catastrophic Error - Actions for Wrongful Conception and Wrongful Birth Revisited in Singapore” [2015] Sing JLS 232 at 240.

[25] Supra note 1 at [61]–[66].

[26] Supra note 17 at 810–818.

[27] Hairul Hakkim and Kevin Ho Hin Tat, “Genetic affinity as a novel remedy for wrongful fertilisation – a case of assessing the incalculable?”  (9 April 2017), Singapore Law Blog (blog) online: <(http://www.singaporelawblog.sg/blog/article/182>.

[28] Supra note 17 at 810–811.

[29] Ibid at 810.

[30] Ibid at 811.

[31] Ibid at 812–813.

[32] Ibid at 813.

[33] Ibid at 814.

[34] Ibid at 814.

[35] [2011] NICA 28.

[36] Supra note 1 at [132].

[37] Ibid at [133].

[38] Ibid at [135].

[39] Ibid at [133]–[134].

[40] K.C. Vijayan, “New award for loss of genetic affinity a gain for IVF law”, The Straits Times (11 April 2017), online: <http://www.straitstimes.com/opinion/new-award-for-loss-of-genetic-affinity-a-gain-for-ivf-law>.

[41] Supra note 27.

[42] Ibid.

[43] Supra note 1 at [149].

[44] Supra note 27.

[45] Ibid.

[46] Ibid.

[47] Supra note 17 at 816–817.

[48] ACB v Thomson Medical Pte Ltd, [2015] SGHC 9, [2015] 2 SLR 218 at [16].

[49] McFarlane and Another v Tayside Health Board, [1999] UKHL 50, [2000] 2 AC 59 at 69D.

[50] (2003) 199 ALR 131.

[51] Supra note 1 at [77].

[52] Ibid at [83].

[53] Ibid at [210].

[54] Human Fertilisation & Embryology Authority, "Fertility treatment 2014: Trends and figures" (2016) at 49.


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Analysing the Need for Age Distinctions in Law

by Liew Jin Xuan

I. INTRODUCTION

In law, there are four main considerations taken into account by the Court when sentencing: retribution (or, more aptly, the punishment needing to fit the crime), deterrence, protection of the public, and rehabilitation. The weight accorded to each of these considerations varies with the age of the offender. Particularly for young offenders, the dominant consideration has been said to be rehabilitation.1 As explained by Yong CJ, the basis for this is that youths have supposedly better chances of reform in their formative years.2 A further consideration would be the aspect of culpability, which would fall under the retributive factor – impressionable teens may be “slightly less responsible than older offenders”.3

As a result, where youth and children are concerned, the law often adopts a more rehabilitative approach to sentencing. The law would look upon their mistakes more sympathetically,4 and this view that age is a measure of maturity is one adopted worldwide. While understandable, there are inherent flaws in such an approach. Firstly, it fails to consider instances where a person is a juvenile at the time of crime, but is past the age limit for juveniles at the time of trial. Secondly, the inconsistency of standards in law pertaining to what age limit to impose on each stage of maturity undermines the rationale behind prioritising rehabilitation for ‘minors’. Lastly, such a distinction acts as an overly blunt tool of justice and is, in fact, unnecessary.

II. DIFFERENTIATING BETWEEN THE TIME OF OFFENCE AND TIME OF TRIAL

In Singapore, a person can be considered a juvenile at the time of crime and yet still be held to the standard of an adult. As set out in the Children and Young Persons Act,5 age is calculated on the date when the Juvenile Court commences the hearing of the charge, not on the date when the offence was committed.6 The clearest manifestation of this would be that a 15-year-old can be charged in an adult Court instead of the Juvenile Courts if the case is not heard until he or she reaches 16 years of age.7 In effect, the rehabilitative consideration would be accorded lesser weight by the Courts if at the time of the trial, the person has grown past the age limit defining a ‘juvenile’.

If the law truly views the follies of youth more tolerantly as the young “don’t know any better”,8 it is incomprehensible why sentencing should focus on the time of the trial, merely because a person has ex post facto become older. It is precisely because the offence was committed when the juvenile was young and ignorant that the sentence should be lighter. This problem is exacerbated because of the possible time lapse between initiation of criminal charges and actual prosecution in Court.

III. ADULTHOOD VS. CHILDHOOD – INCONSISTENCY OF MEASUREMENT

Currently, inconsistencies between different Singapore statutes result in the odd outcome where a person can be both an adult and a child in the eyes of law.

For instance, the Children and Young Persons Act9 states that where a person is 16 or above at the time of trial, he or she is no longer under the jurisdiction of the Youth Court, and will be charged in the Subordinate Court like all adults. However, they are not yet considered adults according to the Civil Law Act,10 which states that a person must be at least 18 years of age before they can enter into a contract. As aptly explained in From Children to Citizens, “a 17-year-old may be treated as an adult on charges of committing a violent crime … but the same person could well be treated as a child for purposes of employment and other contractual relations, including marriage”.11

If the basis for prioritising rehabilitation in youth offender cases is because they are in their ‘formative’ years and vulnerable, this very basis is undermined by the varying standards held in general in law of how old, say, an ‘impressionistic teenager’ should be. The multiple standards suggest that even the law itself is confused as to the precise distinctions it should make between the age of a person who is still vulnerable and one who is already independent. One potential explanation for the plural standards in law could be that different concepts require different degrees of maturity to grasp. For instance, it is easier for the younger minds to understand that killing is wrong, but perhaps not why a marriage contract is more complicated than two people agreeing to live together. Yet if this is the true rationale, it would appear that the law is acting on the presumption of what a child can and cannot understand.

IV. CONCLUSION: AGE LIMIT AN OVERLY BLUNT TOOL

Ultimately, it would appear that the distinction between ages is a somewhat arbitrary distinction. Is a person who becomes 16 truly more mature than he was just one day prior?

Children under 7 years of age are immune from criminal liability.12 At 15, one gets charged in the juvenile court; turn 16, however, and the hearing commences in the subordinate court.

It is understandable that usage of age as a defining line roughly identifies those people who are deserving of a second chance. According to the Ministry of Social and Family Development, the recidivism rate of juveniles under rehabilitation schemes have been quite low – generally under 20% across the board – indicating its great success.13 Yet this gives the impression that law tends to judge the ‘worthiness’ of a person to whom a second chance would be provided based on his or her age and the correlated ‘probability’ of success.

Also, the current state of law provides discretionary powers both to deny rehabilitative approaches for young offenders14 and to grant probation to adult offenders. The use of age distinctions is hence not only unnecessary, but even encumbers judicial fairness. In PP v Muhammad Nuzaihan bin Kamal Luddin,15 the District Court merely sentenced the convict to 30 months’ probation. This was aptly reversed by Yong CJ upon appeal to reflect the seriousness of cyber-crime and Parliamentary intention to deter such behind the Computer Misuse Act.16 The method by which the Court reached its decision is one that should be widely adopted: rather than deciding solely based on age, each individual should be allowed rehabilitative approaches based on the overall merits of their case. Arbitrary age distinctions are unnecessary as sentences can be prudently determined without it. The age of the accused should only constitute one of several factors, and should vary in importance depending on the precise factual matrix. Indeed, it is noted that children between ages 7 and 12 are protected from criminal liability under s 83 of the Penal Code17 as long as they have not “attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion”. In fact, it is proposed here that children should be protected only if they have not attained the requisite maturity as judged on a case-by-case basis.

The law is not a catch-all safety net: there are bound to be people who will fall through the cracks. The situation today continues to be flawed, but hopefully, things may just change for the better. The age distinction may arguably more practical than having to judge each case on a case-by-case basis, and it has been effective thus far. However, it is proposed that rather than having it written in the statute itself, age distinctions can simply serve as a useful guide in deciding the culpability of the offender, rather than usually acting as a free ticket to forgiveness for the ‘young’, and a bias against the ‘adult’ – who may just be a year apart.


[1] Public Prosecutor v Mok Yuen Ping Maurice [1998] 3 SLR(R) 439 at [21].

[2] Ibid.

[3] Ibid.

[4] Parliamentary Debates Singapore: Official Report, vol 87 at cols 2105-2106 (10 January 2011) (Minister for Community Development, Youth and Sports Dr Vivian Balakrishnan).

[5] Cap 38, 2001 Rev Ed Sing, s 33(6).

[6] (2010) 8:3 BJCJ 63 at 64.

[7] Ibid.

[8] Supra note 1.

[9] Supra note 5.

[10] Cap 43, 1999 Rev Ed Sing, s 35.

[11] Francis X. Hartmann, From Children to Citizens Volume II: The Role of the Juvenile Court, 1st ed (New York: Springer-Verlag, 1987) at 4.

[12] Penal Code (Cap 224, 2008 Rev Ed Sing), s 82.

[13] Ministry of Social and Family Development, “Juvenile Delinquents: Recidivism Rate” (14 April 2016), online: <https://www.msf.gov.sg/research-and-data/Research-and-Statistics/Pages/Juvenile-Delinquents-Recidivism-Rate.aspx>.

[14] PP v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR(R) 653 at [16].

[15] Supra note 14.

[16] Cap 50A, 1993 Ed.

[17] Cap 224, 2008 Rev Ed Sing.


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Obiter, Obiter, Obiter

by Lai Wei Kang, Louis

I. INTRODUCTION

One of the ways lawyers come into their own is by honing the distinction between the ratio decidendi and obiter dicta of cases. This distinction is taught since the beginning of their arduous journey in law school, yet emphasized throughout their career as one of paramount importance. Obiter in the courtroom is often relegated and back-benched; counsel may demonstrate his wealth of knowledge, but succeeds only by distilling and employing ratio.

This article argues, contrary to the general observation of a humble freshman, that obiter should not be dismissed. The paradigm is that dicta is secondary, but just as rules are subject to exceptions, human paradigm is malleable to so much more; in many instances, dicta remains an invaluable form of judicial guidance. Furthermore, with recent developments and unique local circumstances, obiter dicta is likely to become invaluable.

II. PRIMARY OF RATIO DECIDENDI

Ratio decidendi is recognized as the section of judicial reasoning with direct correlation to material facts at hand.1 In a system of common law, it is widely recognized as the most valuable section of a judgment, and is the only part which binds lower courts in vertical stare decisis. Generally, the law avers from contemplating anything but the ratio: apart from making unnecessary complications in interpreting judgments, lawyers are taught that the law operates with analogical reasoning, and like cases must be decided alike. The most predictable result for a present case can only be drawn from another precedent that is “on all fours” with it; if favourable precedent is dissimilar from the present case in any way, the dissimilar facts must not concern the key reasoning behind judgment. The value that the law places on ratio is obvious from the devotion of legal practitioners in refining their skill of crystallizing the ratio decidendi of cases.

In contrast, students and practitioners of the law are incessantly reminded of the need – not only to omit – but to criticize and rebuke the use of obiter dicta. The obiter dicta of the judgment encompass every other part of the judgment not included within the ratio decidendi.2 Just as the ratio is persuasive in law, the obiter is rarely sufficient to convince; without direct bearing on the ultimate decision of the court, obiter are but commentary – passing remarks by judges that can be made without similar care to ratio.

This, however, does not seem true in any common law jurisdiction, and especially not in Singapore. The effort made by judges in commentary, both in their judicial capacity and in extra-judicial sitting, do not seem to commensurate with legal instinct that obiter is irrelevant. In fact, many of the advances made in substantial law are drawn from pure obiter, which have guided local courts in making decisions even before the opportunity to formulate a ratio arose.

III. OBITER COMPENSATES FOR RESTRICTED RATIO

Ratio decidendi faces limitations which obiter does not. In explaining the ratio decidendi of cases, judges adhere to the principles of legal precedents set before them, and strictly apply material fact to rule. As complex as it is promulgated thereafter, the ratio decidendi is essentially an input-output system. What elegant expression masks is legal machinery that makes binary decisions on minor tests.

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The persuasiveness of ratio is precisely due to and correlated with its limitations. Ratio is most powerful when it is restricted to key and analogous facts, and it is a fish out of water outside of such limited circumstances.

In contrast, the commentary made by judicial practitioners has wider applicability than the ratio decidendi of a case. Judges may consider the application of novel legal principles in alternative factual circumstances, (their opinion) on the disposition and direction of the law, and other comments they may have.3

At times, the decisive turn of a judgment may be found in dicta instead of its ratio decidendi. Where decisions are made and the arm of prevailing legal principle is twisted to achieve a just solution, obiter dicta may better explain the results achieved. For instance, the unsatisfactory state of the postal acceptance rule was not supplanted but circumvented in antecedent cases such as Holwell Securiities v Hughes4, where the generality may be excepted by specifically requiring “notice in writing” or would produce “manifest inconvenience and absurdity”. In effect, Holwell Securities v Hughes traced the dissent of Bramwell LJ in Household Fire & Carriage Accident Insurance Co Ltd v Grant5; the strenuous evasion of the tricky postal acceptance rule followed the expiration of policy considerations encouraging the use of postal delivery for contracts. Yet judges remain hesitant to remove a doctrine entrenched in the law of contract due to respect for the weight of precedent and fear of a vacuum left in the law of acceptance; thus, most of their deliberations are found in obiter.

In fact, the undisclosed rationale for decisions may easily be found in ostensibly unrelated comments and dicta. A novel application of psychological Freudian analysis to judgments6 discovered undercurrents to decisions, which were related to neither material fact nor legal principle. The authors found that judges could potentially “reach an early decision” before “iterating backwards…[to] an optimal solution to resolving the case”. Notwithstanding fervent hopes that such is anomalous, one cannot now discount the assistance that dicta provide in navigating to the heart of a judgment.

IV. MUTUALLY REINFORCING AND INSEPARABLE

Often, ratio decidendi makes little sense without the obiter dictum. Obiter explains the ratio of the case in relation to judicial principles, and the ratio decidendi is not amply convincing without its obiter. At times, judges may even establish limits and exceptions to ratio in their remarks.7

In fact, judges make a conscious effort to deal with obiter. Rare is the instance where a judge remarks that another’s word are “just obiter” or “dicta”; and even on such occasions, judges do not disapprove the dicta of another on that basis alone. For instance, Megarry J denied a submission that comments could be dismissed on the basis of being mere dicta. He reinforced the position of dicta with “the highest authority that any dictum can bear”, classifying “a third type of dictum” which bore the authority not only of the judge’s own opinion, but that of “an unseen cloud of his judicial brethren”.8 The spirited defence above evinces wide recognition that dicta carries significant weight; the opinion of as learned a practitioner in law as a judge cannot be so sorely mistaken as to be waived with a simple label of “obiter”.

Furthermore, one cannot truly isolate the obiter. Much to the dismay of the concerted efforts of practitioners, there is no clear demarcation between the ratio and obiter of a case; the interpretation of judicial reasoning is as uncertain as it is human. What is thought to be circumstantial to one lawyer could have substantive value to another.

With multiple lines of reasoning, what takes the position of ratio can be contested. Will only one applicable line of reasoning be accepted as binding judicial precedent? Competing ratios may ultimately undermine the decisive value of ratio as well.

V. DICTA MAKES LEAPS AND BOUNDS IN INCREMENTAL DEVELOPMENT

In the doctrine of judicial precedent, the use of ratio decidendi is purposed for a slow and careful development of the law. Although wariness is want in larger jurisdictions, slow development by analogy to past cases disadvantages smaller jurisdictions; opportunities to develop substantial law in one area may be limited by the regularity of cases coming forth. Judges may therefore use dictum to advance the law’s development; doing so is not incompatible with taking care in the law, and may be entirely justified by a plethora of considerations. For instance, where precedents differed over when consideration is provided for contract modifications, Arden LJ advanced an alternative idea of a “collateral unilateral contract” in MWB Business Exchange Centres Ltd v Rock Advertising Ltd9 to reconcile the precedents. While it may not have been necessary given that Kitchin LJ had not resorted to such a mechanism, the spate of dissonance welcomed a thorough effort to resolve it. One can hardly deny that the rules on “Himalaya clauses” developed in a similar fashion; the cases of The Eurymedon10 and The New York Star11 built on dicta left by Reid L in Scruttons v Midland Silicones12, fleshing out the solution for carriers seeking to protect their stevedores from liability to consigners. After all, the English courts have nothing to lose, and all to gain, from contemplating all viable options to open questions in law.

With the growth of alternatives to litigation in other forms of dispute resolution13 – most of which carry limited precedential value14 – common law jurisdictions may lose their source of incremental development. Under such circumstances, obiter may easily become more valuable.

Similarly, where the number of circumstances is limited – and desirably so – in a small jurisdiction like Singapore, obiter has significance since it is the quickest manner in which law can develop. Unlike larger jurisdictions which have had centuries of time to develop their laws with analogy and incremental development, states like Singapore with little more than half a century inevitably rely heavily on obiter dicta. In both Ngiam Kong Seng v Lim Chiew Hock15 and Man Mohan Singh s/o Jothirambal Singh v Zurich Insurance (Singapore) Pte Ltd16, the Singapore Court of Appeal applied the autochthonous legal test for a duty of care17 in full in spite of both claims having failed on the threshold requirement of factual foreseeability. Owing to the restricted size of jurisprudence, the honourable Judges of Appeal seized the opportunity to examine the application of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency in psychiatric injury claims. The distinction between primary and secondary victims of psychiatric injury18 would not have been removed from Singapore law but for Andrew Phang JA’s dicta. Obiter dictum could thus supplant ratio in developing the law when:

  • a. Obiter is used to explain the preferred route of the law in the future, where the ratio decidendi cannot because the case itself does not lend a factual matrix appropriate for a legal issue to be addressed.
  • b. Obiter is used to make up for the lack of situations in which a binding ratio decidendi can be formulated
  • c. Obiter provides the widest explanations of multiple answers in law, and therefore expedites the law’s incremental development

VI. CONCLUSION

An American reference details that apart from the formal restrictions on dicta, dicta is sparingly used because “the reader may view its use as an attempt to misstate the law”.19 Perhaps the true concern of lawyers and judges alike is not truly against dicta being mere comments per se, but really against negligence and malice. Yet if this is the concern, our motivations to study obiter dicta should be stronger. While it would appease the rudimentary to know of ratio, a true and complete comprehension of the law cannot be achieved without reading dicta. If students, practitioners and critics of the law are to answer a calling above a vocation, then blindness to dicta will only cause us to fall short of our standards, and do injustice on those relying on our expertise.


[1] See Robert C. Beckman, Brady S. Coleman, Joel Lee, Case Analysis and Statutory Interpretation, (Singapore: National University of Singapore Faculty of Law), 76 for the definition ofratio. Further, the authors provide ample warning at p 63 that “the rule of law stated in a case…may not incorporate the material facts…[students] must be cautious and not assume that this wide proposition of law will be accepted as the ratio decidendi”.

[2] Ibid at 65, where obiter is referred to as “statements in a judgment which are not part of the decision, but which nevertheless are important”; at p 76 such significance is then redacted to being “at the most persuasive”.

[3] Ibid at 65, dicta assists in “predicting how related issues might be decided in subsequent cases”, especially when a noteworthy judge provides insight that “are not necessary to the decision in the present case”, or set “possible limits or exceptions” to the ratio.

[4] [1974] 1 All ER 161.

[5] [1879] 4 Ex C 216.

[6] Foo Check Teck, “Freudian Analysis of a Judgment”, Singapore Law Gazette (7 February 2003) (http://www.lawgazette.com.sg/2003-2/Feb03-feature3.htm).

[7] Supra note 3.

[8] Richard West and Partners v Dick [1969] 2 WLR 383 at 388A-D.

[9] [2016] EWCA Civ 553 at [89]. By devising a “collateral unilateral contract” over existing contracts, Professor Mindy Chen-Wishart’s device as borrowed could resolve a dispute over whether an agreement to accept payment by instalment was enforceable under consideration. This dispute recognizably plagued English Law since precedents of In re Selectmove [1995] 1 WLR 474 and Williams v Roffey Brothers [1991] 1 QB 1 were diametrically opposed on the issue.

[10] [1975] AC 154.

[11] [1980] 3 All ER 257.

[12] [1962] AC 446 at 472-479.

[13] The growth of alternative dispute resolution mechanisms (“ADR”), especially in Singapore, can be taken as trite. Notwithstanding the variety of reports, even leading textbooks recognize that ADR has seen “phenomenal development” and “is set to become an undeniable aspect of the Singapore legal system”. (Supra note 1 at 39).

[14] The rare instances in which alternative dispute resolution mechanisms have binding authority are when they are subject to judicial review: for example, see Clea Shipping Corp. v Bulk Oil International Ltd [1983] 2 Lloyd's Rep 646, where the Queen’s Bench considered and agreed on the arbitral decision.

[15] [2008] 3 SLR(R) 674.

[16] [2008] 3 SLR(R) 735.

[17] Often and affectionately called the Spandeck test, as derived from Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100.

[18] Originating from Page v Smith [1995] UKHL 7.

[19] Richard K. Neumann, Jr., Kristen Konrad Tiscione, Legal Reasoning and Legal Writing, 7th ed, 90.


The PDF version of this entry can be found here.

3rd ICC Asia Conference on International Arbitration

Event website: www.iccwbo.org/ICCASIA
Date: 27-29 Jun 2017
Venue: Four Seasons Hotel Singapore, 190 Orchard Boulevard, Singapore 248646


27 June 2017

ICC Institute Advanced Level Training on “Production of Documents

This training will provide participants with practical insights on how to manage production of documents in international arbitration.

For the full programme and speakers click here.

 

ICC Young Arbitrators Forum (YAF)

1800-2000h: YAF session on “Demystifying expert evidence in international arbitrations”

20000-2130h: YAF cocktail reception

 

28 June 2017

3rd ICC Asia Conference on International Arbitration

Attend ICC’s annual Asia Conference on International Arbitration and keep up to date with the latest regional and institutional developments.The conference will offer a line-up of world-class speakers, topical discussions and an excellent opportunity to network. Senior Minister of State for the Ministry of Finance and Ministry of Law of Singapore, Indranee Rajah will deliver the opening keynote address.

For the full programme and speakers click here.

 

29 June 2017

ICC Institute Training for Tribunal Secretaries

This training aims at teaching legal professionals the role and tasks of a tribunal secretary and the skills necessary to excel in this function.

For the full programme and speakers click here

 

Who should attend?

  • Practising lawyers
  • Corporate counsel
  • Arbitrators
  • Mediators
  • Business professionals and academics coming from or doing business in Asia

 

Click here to register. 
Download the event flyer here.


Click here for more news.

Active Mobility Bill: Liberalising the Use of Personal Mobility Devices on Public Paths

by Agnes Lo

I. INTRODUCTION

The Active Mobility Bill [Bill]1 was drafted in response to the Ministry of Transport's stance that cycling and the use of personal mobility devices (PMD) complements our public transport strategy, particularly for first-mile and last-mile trips to bus interchanges or MRT stations, and for short trips within towns.2

This article will discuss the government’s efforts to promote safe cycling and use of PMD on public paths3 through regulatory levers under the Bill. I will not discuss the tightened regulation of electric bicycles as such regulation was proposed as separate amendments to the Road Traffic Act 4 instead.

II. ACTIVE MOBILITY BILL

The Bill was read in Parliament for the second time in January this year.5 It seeks to establish public paths for walking, cycling and regulate the use of these public paths. Walking, cycling and use of PMD – collectively referred to as forms of Active Mobility – are viable alternatives to driving that can move us closer to a car-lite nation, while contributing to a more liveable, pleasant and sustainable urban environment.

Once passed into law this year, selected PMD that comply with the prescribed technical criteria will become legally allowed on public paths when used in a safe manner, governed by a set of rules and codes of conduct. This includes skateboards, electric scooters and hover-boards. PMD, which are unregistered vehicles, cannot be used on the roads. This is reinforced by the enactment of express provisions in the form of new sections 5A and 5B in the Road Traffic Act6 that prohibit the use of PMD on roads and when towed by a motor vehicle. Nonetheless, PMD can be used in limited instances on roads such as to avoid an obstacle on a footpath or when crossing a road.

To accommodate the ageing population in Singapore, wheelchair users and those riding a mobility scooter would be legally allowed to do on any paths used by pedestrians. The Active Mobility Advisory Panel (AMAP)7 did not recommend to introduce physical criteria for motorised wheelchair or mobility scooter as these devices are used primarily by persons with disabilities as their sole means of transport and typically do not travel above the average jogging speed.

Complementing the Government’s enforcement efforts to ensure safe sharing of public paths, the Bill enables LTA to empower volunteers under the Active Mobility Patrol Scheme to obtain personal particulars of individuals suspected of committing an offence for subsequent investigation by LTA. The Bill also stipulates stiff penalties for reckless riding behaviour, sale of non-compliant devices and modification of devices. For instance, riders found to be riding recklessly can be liable to a fine of up to $5,000 or imprisonment for up to 6 months, or both. In situations of accidents or crashes, the driver of a vehicle or PMD who fails to offer assistance to the victim and report the accident can be liable to a fine up to $3,000 or imprisonment for up to 12 months, or both.

A. When used safely and responsibly, bicycles and PMD offer great convenience and benefits

In cognizance of the paramount importance of protecting users of public paths against dangerous conduct by a minority of reckless users, the Bill legislates control and usage measures recommended by the AMAP.8 The Bill requires all cyclists and PMD users to observe a speed limit of 15km/h on footpaths and 25km/h on shared paths. Furthermore, a device cannot be used on public paths if it:

(1) is heavier than 20kg; (2) is wider than 70 cm; or (3) has a maximum speed that can exceed 25 km/h.

This is because such devices have a high propensity for serious accidents. Typically, accidents happen not because a non-compliant device is used, but rather the device was used in a reckless manner without due regard for the safety of others. To this end, the AMAP has recommended a list of rules and code of conduct,9 designed to be simple and easy to apply while balancing the needs of the different users. The key rules include requiring the parties to stop to render assistance and exchange personal particulars when involved in an accident to deter “hit and run” incidents, to equip devices with lights visible from the front and back and to switch them on during hours of darkness to ensure visibility, to disallow cycling against the flow of traffic and more than two bicycles to cycle abreast on smaller roads to balance against slowing down motorist traffic.

The Code of Conduct is a set of documents issued by LTA or other persons to provide practical guidance to the use of public paths without creating any enforceable legal right. Examples of the Code of Conduct include to encourage device users to give way to slower-moving pedestrians on public paths, slow down to prepare to stop upon reaching high pedestrian bus stops, either “walk the bike” or “dismount and push” if necessary and to stop before crossing pedestrian crossings at walking speed. Compliance with the rules and code of conduct would ensure a safer and more gracious shared space for all.

B. Enforcing the new rules to augment public education to promote a culture of path sharing

Recognising the need for heightened enforcement to encourage compliance and to expedite the cultural shift needed to minimise potential conflicts between path users, the LTA had set up a dedicated team of Active Mobility Enforcement Officers (AMEO). Since May 2016, the AMEO has been patrolling hotspots where many cyclists and PMD users frequent, and have issued advisories to over 860 cyclists and PMD users for unsafe behaviours on footpaths and shared paths, and seized 20 e-scooters users caught riding on roads in the last 6 months.10 LTA will continue to partner with Traffic Police to clamp down on reckless riding behaviour.

Public education is a key strategy to engage and involve members of the public through a mix of outdoor, online and printed media, including campaigns. Examples include the Safe Riders campaign11 and the Safe Cycling Programme12 to be progressively rolled out in schools, community centres and foreign worker dormitories to inculcate greater awareness of the new rules and code of conduct. Over 600 volunteers from the grassroots will be given limited enforcement powers13 under the Active Mobility Patrol Scheme to support the AMEO’s enforcement and public outreach efforts.14 Retailers of PMD have also been educated on the criteria for devices that can be used on public paths and the consequences of selling non-compliant devices.15

C. When conflict happens between path users

Close to the hearts of many is what is the recourse should their loved ones be involved in an accident with an errant cyclist or PMD user. In the landmark case of PP v Lim Choon Teck,16 Lim collided into a 69 year old woman as he was cycling along a narrow pavement at an “unsafe speed” with his view obstructed by a signage board and could not stop in time when he realised that the victim and her husband were approaching the bus stop from the walkway connected to a block of flats. The District Court sentenced him to an imprisonment of 8 weeks. In another case, a 53 year old housewife was hit by an electric scooter and remained unconscious in the hospital.17

A point of contention in the Lim Choon Teck case was that the defendant had no third-party insurance. Apart from criminal prosecution where the court will consider compensation to be paid to the victims in accidents involving bicycles or PMD, the victims can also obtain remedies by initiating civil lawsuits or through private settlements. Responding to suggestions for mandatory third-party insurance, Senior Minister of State for Transport Mrs Josephine Teo explained that such schemes are not only ineffective given the broad range of cyclists and PMD users, they are also onerous and costly for the vast majority of users who behave responsibly and safely. Even cities with a strong Active Mobility culture, like Amsterdam and Copenhagen, have not moved towards mandating device registration or insurance.18 Nonetheless, frequent cyclists and PMD users are encouraged to buy third-party insurance which is available in the market.19

III. CONCLUSION: A CHANGING LANDSCAPE

We have seen cyclists and pedestrians co-exist harmoniously in the same space in densely populated cities like Tokyo and Amsterdam. 37% of all trips in Tokyo are made on foot or on bicycles, compared to 17% in Singapore today.20 Singapore should strive to emulate Tokyo’s success by tapping on our people’s civic mindedness and consideration for others. This would go towards making Singaporean an attractive walking and cycling city.


[1] Active Mobility Bill (No 40 of 2016, Sing)

[2] Parliamentary Debates Singapore: Official Report, vol 93 (11 March 2015)

[3] Public path refers to a path declared under clause 6 of the Bill for use by members of the public as a pedestrian-only path, a footpath; or a shared path and excludes unformed or unsurfaced paths and green verges.

[4] (Cap 276, 2004 Rev Ed Sing)

[5] Parliamentary Debates Singapore: Official Report, vol 94 (10 January 2017)

[6] Supra note 4.

[7] The Active Mobility Advisory Panel comprises of 14 members representing the key stakeholder groups such as seniors, youth, grassroot leaders, cyclists, motorists and users of PMD, led by Parliamentary Secretary Associate Professor Muhammad Faishal Ibrahim, to consult the public and develop a clear set of rules and code of conduct, so that public paths can be shared and used safely and harmoniously by the different user groups.

[8] Parliamentary Debates Singapore: Official Report, vol 94 at pages 46-47 (10 October 2016) (Senior Minister of State for Transport Mrs Josephine Teo).

[9] Land Transport Authority, “Walk Cycle Ride: Rules and Code of Conduct”, online: < https://www.lta.gov.sg/content/ltaweb/en/walk-cycle-ride/rules-and-code-of-conduct.html>

[10] Channel News Asia, “20 E-scooters seized after users caught riding on roads”, online: <http://www.channelnewsasia.com/news/singapore/20-e-scooters-seized-after-users-caught-riding-on-roads/3267914.html>.

[11] Land Transport Authority, “Press Release: Pledge to be a Safe Rider Today”, online: <https://www.lta.gov.sg/apps/news/page.aspx?c=2&id=d3491ec2-7f1e-4a1a-95ab-9904196ab1ff>.

[12] Parliamentary Debates Singapore: Official Report, vol 94 (12 Apr 2016) (Senior Minister of State for Transport Mrs Josephine Teo).

[13] The enforcement powers include documenting photo and video evidence and obtaining personal particulars from suspected offenders.

[14] Supra note 5.

[15] Supra note 8.

[16] [2015] SGHC 265, [2015] SLR 1395.

[17] Straits Times, “Woman still unconscious after e-scooter accident”, online: <http://www.straitstimes.com/singapore/woman-still-unconscious-after-e-scooter-accident>.

[18] Supra note 8.

[19] Supra note 5.

[20] Supra note 8.


The PDF version of this entry can be found here.

Analysing the Limits of Cross-Examination in Sexual Offence Trials

by Ho Yu Xuan

I. INTRODUCTION

In the recent case of PP v Xu Jiadong1 (“Xu Jiadong”), the deplorable conduct of the defendant’s counsel in the courtroom gave the Magistrate Court the opportunity to remind members of the legal profession of their responsibilities not only to their clients, but also to the justice system and the legal profession at large, when they discharge their professional duties. As set out in the Legal Profession Rules,2 although a legal practitioner has an obligation to act in his client’s best interests, this duty is subject to the practitioner’s paramount duty to the court. He is expected to be fair and courteous towards every person in respect of his professional conduct. 3

This article will examine the background behind the case and the implications it raises on how counsel should conduct their cross-examinations, in particular where victims of sexual offences are concerned. It submits that underhanded tactics such as insulting and making vulgar imputations at victims and witnesses is unacceptable in any setting, let alone within a court of justice, and our courts ought to be vigilant against such counsels which resort to such practices.

II. BACKGROUND

In Xu Jiadong, the defendant, Mr Xu, faced 1 charge under s 354(1) of the Penal Code,4 for allegedly outraging a woman’s modesty by brushing against her breasts with his forearm while on a MRT train. During the trial, Mr Xu’s lawyer (“defence counsel”), cross-examined the victim, and asked the victim to stand up, ostensibly to see how attractive the victim was. This request was challenged by both the victim and the Deputy Public Prosecutor (DPP) as offensive and insulting. Upon further probing by the DPP, the defence counsel explained to the court that he wanted to “show that if she (the victim) is wearing a very low cut with a very voluptuous breast protruding out”, which may have created a temptation for his client (or anyone else) to molest the victim.

In his written judgement, District Judge Shawn Ho (‘the judge”) dedicated 6 pages to condemn the defence counsel’s conduct as “completely unacceptable and deserves disapprobation”.5 The judge condemned the defence counsel for staring at the victim’s chest as it made the victim re-live her experience of being molested on the train again, causing her considerable emotional distress. The judge also considered the offensive questions on her breast size was an abuse of the cross-examination process, and cautioned that such improper humiliation of sexual offence victims may deter future victims from coming forward.6

The defence counsel’s contemptible conduct was also widely reported in print and online media, and prompted even the Law Minister K Shanmugam SC to criticize his conduct. The Attorney-General’s Chambers filed a disciplinary complaint with the Law Society against him several days later (as of writing the outcome of the complaint is not yet decided). This is the second time in the year that a complaint has been lodged against the defence counsel – a previous complaint was filed against him in November 2015 for using expletives in the course of a criminal trial.7

III. ANALYSIS

As the judge explained in his written grounds of decision, the defence counsel’s repeated probing of the victim’s breast size during the cross-examination was a flagrant breach of s 153 and s 154 of the Evidence Act. s 153 prohibits questions or inquiries which the court regards as indecent and scandalous (unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed) and s 154 prohibits questions that are intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form. These 2 sections are encapsulated in Rule 12(5) of the Legal Profession (Professional Conduct) Rules 2015:

12(5). A legal practitioner must not make any statement, or ask any question, which is scandalous, is intended or calculated to vilify, insult or annoy a witness or any other person, or is otherwise an abuse of the function of the legal practitioner.

Although defence counsels have a duty to their clients to defend them by challenging and discrediting the evidence against them (including the victim’s testimony) during the cross-examination, this must be balanced against their duties owed to the court to ensure the administration of justice – for which further traumatizing the victim would be counter-productive. To maintain this delicate balance, lawyers must thus approach cross-examination of vulnerable parties (such as children or victims of sexual offences) with a requisite degree of sensitivity while trying to ascertain their testimony.

Lines of questioning that are irrelevant, scandalous, or insulting will be considered as an abuse of the cross-examination for collateral purposes, as it is obviously not an authorised purpose of cross-examination.9 The defence counsel’s conduct here was clearly a blatant breach of both professional regulations and the Evidence Act, and the judge had acted correctly in bringing his boorish questioning of the victim to an abrupt end before she could be further traumatized, and condemning his behaviour subsequently.

In any case, the defence counsel’s attempt to use the victim’s breast size and attractiveness to explain his client’s temptation to molest the victim is a misogynistic and outdated argument to try to push the blame for his client’s outrage of modesty back to the victim herself. Such assertions have no place in the legal system of a modern egalitarian society like Singapore, and the judge rightly chose not to factor in any such “temptations” when deciding Mr Xu’s sentence.

IV. ARE ADDITIONAL SAFEGUARDS NECESSARY?

Sadly, inappropriate questioning of sexual offence victims does not appear to be the exclusive province of lawyers. In a recent case, a Canadian provincial court judge had questioned a rape victim on why couldn’t she “just keep her knees together” to avoid penetration. These misogynistic questions created a huge outcry among the public, the mainstream media, and other law academics. The judge in question was eventually suspended, made to attend sensitivity training, and was recommended to be removed from his current position as a Federal Judge after a hearing by the Canadian Judicial Council.11 However, this episode reveals that even in a supposedly progressive country such as Canada, the antiquated idea that a victim is partly to blame for his/her own assault because of her looks, actions, or dressing still exists.

Many Western countries have recognized that although the defendant must have the right to a fair trial, some measure of protection is needed for victims of sexual offence to encourage them to come forward to testify and help bring perpetuators to justice. As a result, these jurisdictions have developed “rape-shield laws”, which prohibit defence counsels from using a sexual assault victim’s sexual history as evidence against them during cross-examination. These forms of legislation were intended to protect the victim from the stigma and humiliation of having her sex life publicized in court. However, such laws have been challenged by defendants in sex offence cases as unfairly denying them the opportunity to raise evidence on their past relationship with the victim to prove consent.12 Any proposed rape shield law will have to balance between these policy concerns.

While Singapore has yet to implement similar rape shield laws, persistent lobbying by feminist activist groups such as AWARE13 have led the government to move to repeal s 157(d) of the Evidence Act, which allows a man accused of rape to discredit his accuser by producing evidence of her “generally immoral behaviour” (which usually refers to her sexual history). This represents a large step forward, since under s 157(d)a victim of sexual assault would be unfairly prejudiced if the court casts judgment on her as unchaste or promiscuous, and her testimony deemed less credible.14

Our courts have not been blind to such developments. In the case of Ng Jun Xian v Public Prosecutor,15 the High Court expressly rejected the defence counsel’s attempt to attribute culpability for a sexual assault to the victim, on grounds that she was a club hostess and had sent “mixed signals” to the accused by agreeing to accompany him to a hotel, and reiterated that counsel should “refrain from making baseless submissions that disparage the character, integrity or morality of a victim in an attempt to shift blame to the latter”.16 Looking ahead, it remains an open question on whether the government will attempt to regulate the conduct of defending counsels in sexual offences trials in a similar manner as our Western counterparts, or whether it will rely on the legal profession to self-regulate itself.

Although lawyers undoubtedly have a duty to do their utmost when representing their clients, this must be balanced against their paramount duty to the justice system and their role in maintaining the integrity of a noble and well-respected profession. The defence counsel’s regrettable conduct of the cross-examination in Xu Jiadong is unquestionably an egregious breach of his duty to act honourably, and did not appear to have helped his client much in any case.

Lawyers in Singapore are well-advised to take heed from this example, and refrain from making indecent or offensive remarks or making inquiries that are designed specifically to annoy, insult, or humiliate the other party. As seen in the above case, our courts are extremely unlikely to tolerate such underhanded strategies, and the ultimate victim of these tactics would be the lawyer’s own professional reputation, and possibly even his position in the legal profession.

*Since this article was written, the Singapore Law Gazette has published a similar discussion regarding imputations against complainants in cases of sexual offences. If you are interested to read more on this subject, you can find the article here.


[1][2016] SGMC 38.

[2] Legal Profession (Professional Conduct) Rules 2015.

[3] Ibid.

[4] Cap 224, Rev Ed 2008.

[5]Supra 1 at [111].

[6]Supra 1 at [106] – [110].

[7] Attorney-General’s Chambers (2016), Attorney General Chambers files Disciplinary Complaint to Law Society against Mr Edmund Wong Sin Yee, online: <https://www.agc.gov.sg/DATA/0/Docs/NewsFiles/[AGC%20Media%20Statement]%20AGC%20Files%20Disciplinary%20Complaint%20to%20Law%20Society%20Against%20Mr%20Edmund%20Wong%20Sin%20Yee.pd>

[8] Cap 97, Rev Ed 1997.

[9] Supra 1 at [103], citing Professor Jeffrey Pinsler S.C. in Evidence and the Litigation Process (LexisNexis, 5th Ed, 2015).

[10] AJ Willingham (2016), Judge to woman in rape case: 'Why couldn't you just keep your knees together?', CNN online: <http://edition.cnn.com/2016/09/12/world/robin-camp-rape-comments-trnd/>

[11] Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council (2016), In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable Justice Robin Camp –https://www.cjc-ccm.gc.ca/cmslib/general/Camp_Docs/2016-11-29%20CJC%20Camp%20Inquiry%20Committee%20Report.pdf

[12] R v Darrach, [2000] 2 S.C.R. 443.

[13] Association for Women for Action and Research – a major Singaporean non-governmental organization concerned with promoting gender equality.

[14] AWARE (2011), Section 157(d) of Evidence Act: Repeal it, online: <http://www.aware.org.sg/2011/11/section-157d-of-evidence-act-repeal-it/>

[15] [2016] SGHC 286.

[16] Ibid at [43].

 


A PDF version of this entry can be found here.

Analysing the Recent Changes to Legislation Surrounding Foreign Domestic Workers in Singapore

by Madeleine Poh 

I. INTRODUCTION

According to recent International Labour Organization estimates, there are 11.52 million migrant workers in the world.1 237,100 of them reside in Singapore as of June 2016 and judging the trend from previous years, the numbers are projected to increase.2 With the recent celebration of the 7th Foreign Domestic Worker’s [“FDWs”] Day on 11th December 2016, it is opportune to acknowledge how far the law has come to protect the rights of FDWs and recognise that more can be done to further safeguard these rights. This article focuses on FDWs because the exclusively domestic setting in which they perform their employment duties makes regulation of their work conditions extremely challenging and every breakthrough is laudable. Furthermore, the presence of FDWs in Singapore makes ensuring that they have fair and reasonable rights a local affair.

I will evaluate some positive legislative developments and their effectiveness, namely the initiatives taken by Ministry of Manpower and sanctions for errant employers before proposing some general reforms.

II. POSITIVE DEVELOPMENTS

A. Ministry of Manpower Initiatives

The Ministry of Manpower [“MOM”] has been taking a proactive role in advocating for positive working relations between employers and FDWs. MOM’s ‘Employer’s Guide: foreign domestic worker’ pitches for open communication, sharing of concerns and assisted family integration where employers try to assimilate FDWs into their home. It comprehensively covers topics that range from medical costs to overseas leave.

To reduce tension between employers and FDWs, MOM’s amended policy in 2010 ensures that security bonds are not forfeited if the FDWs violate Work Permit conditions that are attributed to her own behavior. The security bonds are at risk only when employers fail to observe the conditions of the bonds or in limited rare cases. Relaxation of regulations helps employers to loosen their control over their employees, as employers would not lose their deposit as long as they themselves abide by the terms.

Furthermore, MOM requires employers and FDWs to sign a safety agreement. The safety agreement ensures that all parties fully understand and acknowledge MOM’s restrictions for cleaning the exterior surface of windows.4 MOM even took the special effort to ensure that the safety agreement signed by the FDWs would be in their native language. Such efforts are laudable as it shows FDWs that their rights do matter and the law looks out for them.

It is heartening that MOM supports the idea of trying to resolve misunderstandings or disputes amicably between parties first before approaching external parties for assistance. However, despite such explicit and unambiguous regulations, the guide is not binding and it lacks an unequivocal representation that MOM will take active actions against non-compliance. Words like ‘should’ are peppered throughout the guide such as “your FDW should not sleep near any dangerous equipment or structure that could potentially cause harm or hurt to her “and “You and your FDW should mutually agree on which day of the week she should take the rest day”.5 ‘Should’ appears to be more of a recommendation or a desirable goal, in contrast, ‘must’ is used to express obligation or an unavoidable requirement.6 Examples of the usage of the word ‘must’ found in the guide include ‘You must keep a record of all salary payments’, ‘You must not retain your FDW’s Work Permit’ and ‘you must minimally provide your FDW with a mattress, pillow and blanket’.

The interchangeable use of ‘should’ and must’ leads to inconsistencies and readers may conclude that such offences have less severe repercussions and they are more likely to downplay the importance of that particular guideline, increasing the possibility of deviation from the guideline. This is especially worrying since it is understood that employers must not endanger the lives of FDWs, yet it is merely suggested as above that FDWs should not sleep near harmful equipment. To prevent misinterpretations and disparity in standards, ‘should’ ought to be replaced by ‘must’ in the guide when appropriate.

It is noteworthy that in the guide under the section ‘Abuse and ill-treatment of a foreign domestic worker’7 and ‘Employment rules for foreign domestic workers’8 possible penalties, such as debarment from hiring subsequent FDWs, are spelled out clearly. This approach should be extended to other sections and bringing in actual cases adds authenticity and legitimization to the guidelines and would prompt more employers to stick to the proposed regulations.

In any case, since it is administratively difficult to uncover and then enforce all breaches of the guide, introducing real-life cases detailing penalties would deter similar wrongdoings. Accordingly, I will now discuss changes to other binding legislation rather than mere guidelines.

B. Sanctions for Errant Employers

In 1998, the Penal Code9 was revised to increase penalties of offences regarding abuse of FDWs to provide greater protection for FDWs. Under s 73(2), where the offender is an employer of a domestic maid or a member of the employer’s household, the court may sentence the offender to one and a half times the amount of punishment to which he would otherwise have been liable for. The case of ADF v Public Prosecutor10 can be used to illustrate the use of s 73(2) of the Penal Code to increase the employer’s sentence for voluntarily causing hurt to a domestic worker under s 323.

A weekly rest day was implemented to ensure FDWs have a regular mental and emotional break from their domestic duties. With a mandatory weekly rest day, FDWs are empowered to exchange their rest day for a day’s salary or a replacement rest day taken within the same month. Whether FDWs receive monetary compensation rather than utilizing the rest day depends on mutual agreement between the employer and employee.

Notwithstanding this development, there are some gaps in the content and enforcement of related legislation.

Some employers may have family members that require around the clock care of FDWs. There are others who would be more assured if their first time FDWs take their rest days after they have more settled in Singapore. A survey conducted by HOME in 2015 showed that 54% of 670 foreign domestic workers had a weekly day off.11 On the other hand, 40% of the participants reported having a rest day less than once a week. It might be plausible that some FDWs may be intimidated or pressurized to agree to give up their rest day for remuneration due to the power imbalance. These FDWs need to be aware that they need not feel obliged to give in to their employer’s demand especially when it is their basic right to have a weekly rest-day.

Likewise, with the standard employment contract last revised on 11 September 2006, before the mandatory weekly rest days,12 it is apt to review and update the model contract to ensure that all the parties involved are informed about the latest developments. Even if a term is included in the contract, contracts are expensive and difficult to enforce. Hence, it might be better if the law guarantees a biweekly or monthly day off.

III. OTHER AREAS FOR REFORM

A. Employment Act

Currently, FDWs are protected principally under the Employment of Foreign Manpower Act. For instance, the case of Public Prosecutor v Donohue Enilia demonstrates the consequences of continuing to employ a FDW despite knowing that the work permit was revoked and when outstanding salary is unpaid. The employer was convicted by the trial judge under s 5(1) of the Employment for Foreign Workers Act14 ["EFWA] for employing a foreign worker without a valid work permit and to a charge under s 22(1)(a) of the EFWA for failing to comply with the condition of the work permit to pay the foreign worker a salary. The High Court judge made an additional order of compensation to the FDW for the unpaid salary on top of the fines and levy incurred by the employer. FDWs are not covered by the Employment Act15 because it was deemed impractical by MOM to regulate specific aspects of domestic work, such as hours of works and work on public holidays.16

However, in order to cast a wider safety net, FDWs should be safeguarded under the Employment Act.

For example, under the Employment Act, from 1 January 2016, the maximum and minimum compensation limits for death, total permanent incapacity and medical expenses under Work Injury Compensation Act17 will be increased. Medical expenses limits increased to $36,000, and upon death or total permanent incapacity, the minimum compensation is $69,000 and $88,000 respectively.18 In contrast, employers are only required to purchase the Personal Accident Insurance policy insurance when employing FDWs. The compulsory FDW’s medical insurance has a minimum coverage of $15,000 per year for inpatient care and day surgery19 and the compulsory FDW’s personal accident insurance has a minimum coverage of $40,000.20

It may be administratively difficult to include FDWs in the Employment Act but an alternative could be leaving it to the Minister’s discretion. As per s 67 of the Employment Act, the Minister may apply the act to domestic workers. Hopefully, when the need arises, this section will not be overlooked and the Minister will exercise the given right to shield FDWs from oppressive and exploitative conditions.

B. Transfers of FDWs

The Work Permit binds FDWs to their employers and they do not have the option to quit, unless their employer decides to release them, either to return home or to work for another employer.

FDWs should be allowed to switch employers without sponsoring their employer’s consent and without the threat of repatriation. In order to obtain a transfer, current employers need to sign the issuance declaration,21 which essentially functions like a release form. The obstacles faced by FDWs attempting to change employers act as an incentive for workers to endure ill-treatment by their employer.

Transfer FDWs are in high demand22 due to the expedite process compared to the 10 weeks or more to hire a first-timer and the slashed agent fees for transfer workers.

Unless there are legal issues or unresolved disputes, FDWs can circumvent paying a second round of agency fees by liaising with the new employer directly. There is no need to inform the previous agency of the departure and cost of the transfer is much less than that of an agency. Efforts need to be increased to raise awareness on such a hassle-free and low-cost method.

C. Repatriation of FDWs

Employers should give their FDWs due notice if they are cancelling their FDW’s Work Permit. Nonetheless, employers are not required to do so. According to MOM,23 employers can send their FDW home immediately after cancelling their Work Permit.

This contradicts the Security Bond Form for FDWs24 where one of the stipulated provisions was that employers were to give “reasonable notice” of repatriation. Here lies the innate problem of determining what constitutes “reasonable” and enforcing this vague and ambiguous requirement.

To combat the conflicting statements, there should be a clause, which requires employers to give a minimum one-month notice for termination of employment contract. This allows the FDWs to have more time to find another employer.

IV. CONCLUSION

In today’s economic context, paid domestic work is essential for the sustainability and operation of the economy beyond the household. Fortunately, it is clear that Singapore is moving in the right direction as much has been done for FWD’s outside the legal sphere. In 2012, the compulsory Settling-In Programme was introduced for new FDWs to educate them on safety precautions and living in Singapore.25 In 2013, all FDWs became entitled to a mandatory weekly rest day if their Work Permit was issued or renewed after 1 January 2013.26 In 2014, a series of workshops titled “Law & You” was launched in hopes of empowering FDWs with the basic understanding of their legal rights.27 In 2016, a new initiative titled “NUS-Home” was introduced to train FDWs to be para-counsellors in a bid to improve the mental health of FDWs.28 FDWs have and will continue to contribute to Singapore, and hence Singapore should continuously strive to champion workplace equality for all these salaried employees. Hopefully, people will continue to commiserate with the plight of FDWs and speak out for those who cannot.


[1] Department of Statistics, “ILO global estimates on migrant workers: Results and methodology” (2015), International Labour Organization Report, Online: < http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_436343.pdf >.

[2] Ministry of Manpower, “Foreign workforce numbers” (15 September 2016), Online: <http://www.mom.gov.sg/documents-and-publications/foreign-workforce-numbers>.

[3] Foreign Manpower Management Division, “FDW Weekly Rest Day, A guide for Employers” (2013), Ministry of Manpower, Online: <http://www.mom.gov.sg/~/media/mom/documents/publications/fdw-weekly-rest-day/fdw-weekly-rest-day-english.pdf>.

[4]  Ministry of Manpower, “Contracts and safety agreement for foreign domestic worker” (5 May 2015), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/contracts-and-safety-agreement>.

[5] Ministry of Manpower, “Rest days and well-being for foreign domestic worker” (28 March 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/rest-days-and-well-being>.

[6] Oxford Dictionaries, “Must, should or ought to?”, Online: <http://blog.oxforddictionaries.com/2014/03/must-should-ought/>.

[7] Ministry of Manpower, “Abuse and ill-treatment of a foreign domestic worker” (5 May 2015), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/abuse-and-ill-treatment>.

[8] Ministry of Manpower, “Employment rules for foreign domestic workers” (29 June 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/employment-rules>.

[9] (Cap 224, 1985 Rev Ed).

[10] ADF v Public Prosecutor, [2010] 1 SLR 874.

[11] Anja Wessels, “Home sweet home?” (March 2015), Humanitarian Organization for Migration Economics, Online: < www.home.org.sg/wp-content/uploads/.../HOME_2015_Home-sweet-home_short.pdf >.

[12] Consumers Association of Singapore, “Employment Agencies (FDW)”, Online: <https://www.casetrust.org.sg/accreditation-detail.aspx?id=2>.

[13] Public Prosecutor v Donohue Enilia, [2005] 1 SLR(R) 220.

[14] Employment of Foreign Workers (Amendment) Act 2007, (No. 30 of 2007).

[15] Employment Act (Cap 91, 2009 Rev Ed Sing)

[16] Ministry of Manpower, “Contracts and safety agreement for foreign domestic worker” (5 May 2015), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/contracts-and-safety-agreement>.

[17] Work Injury Compensation Act (Cap 354 2009 Rev Ed Sing).

[18] Ministry of Manpower, “Changes to Work Injury Compensation Act (WICA) in 2016” (1 July 2016), Online: <http://www.mom.gov.sg/workplace-safety-and-health/work-injury-compensation/changes-to-wica-in-2016>.

[19] Ministry of Manpower, “Insurance requirements for foreign domestic worker” (15 April 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/eligibility-and-requirements/insurance-requirements>.

[20] Ministry of Manpower, “Insurance requirements for foreign domestic worker” (15 April 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/eligibility-and-requirements/insurance-requirements>.

[21] Ministry of Manpower, “Transfer an FDW to a new employer” (3 October 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/transfer-to-a-new-employer>.

[22] Ameila Tan, “ More families keen to hire transfer maids”, The Straits Times (6 April 2015), Online: <http://www.straitstimes.com/singapore/more-families-keen-to-hire-transfer-maids>.

[23] Ministry of Manpower,  “Do I need to give my FDW any notice before sending her home?” (15 September 2016), Online: <http://www.mom.gov.sg/faq/work-permit-for-fdw/do-i-need-to-give-my-fdw-any-notice-before-sending-her-home>.

[24] Ministry of Manpower, “Security Bond Form for Foreign Domestic Workers (Domestic and non-Domestic)” (8 May 2015), Online: <http://www.mom.gov.sg/~/media/mom/documents/services-forms/passes/fw_sb_form.pdf>.

[25] Ministry of Manpower, “Settling-In Programme (SIP)” (14 October 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/eligibility-and-requirements/settling-in-programme>

[26] Foreign Manpower Management Division, “FDW Weekly Rest Day, A guide for Employers” (2013), Ministry of Manpower, Online: <http://www.mom.gov.sg/~/media/mom/documents/publications/fdw-weekly-rest- day/fdw-weekly-rest-day-english.pdf>.

[27]Jolovan Wham, “Law and you: Legal education starts at HOME” (23 September 2014), Online: <http://www.home.org.sg/1668/>

[28] Kok Xing Hui, “Maids trained to be counselors to peers”, The Straits Times (11 April 2016), Online: <http://www.straitstimes.com/singapore/maids-trained-to-be-counsellors-to-peers>


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An Analysis of the Marital Rape Exemption in Singapore

by Low Jun-Lim Steven

I. ORIGINS AND LEGISLATIVE AMENDMENTS

The marital rape exemption rule has always been a point of contention in Singapore law. Prior to the 2007 Amendments to the Penal Code,1 s 375 clearly stated that “sexual intercourse by a man with his own wife […] is not rape” under all circumstances.2 The origins of this rule dates to 1736 where it was stated by Sir Matthew Hale that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in this kind unto her husband, which she cannot retract”.3 This law was adopted by the drafters of the Penal Code which provided a blanket immunity for husbands in marital rape and subsequently injected into the Singapore law system with the implementation of the Penal Code.

Up until 2007, Parliament had not done much to alter the seemingly preposterous law that lay within the Penal Code despite debate in local news forums and criticism by high-profile individuals. The topic was finally addressed in Parliament by then Senior Minister for Home Affairs, Associate Professor Ho Peng Kee.4 Professor Ho maintained that marital immunity would not be abolished altogether, but proposed a new law offering “protection to women whose marriages, are, in practical terms, on the verge of a breakdown or have broken down, and who have clearly signalled that they are withdrawing their implicit consent to conjugal relations, so that their husbands are forewarned that marital immunity has been lifted.” While this Amendment to marital immunity was met with approval, many Members of Parliament felt that the change was not drastic enough to protect the needs of women trapped in such marriages.

Following the amendment to the Penal Code, the new s 375(4) provides that the husband’s marital rape immunity against his wife will be lifted under 5 situations:

(a) his wife was living apart from him—

(i) under an interim judgment of divorce not made final or a decree nisi for divorce not made absolute;

(ii) under an interim judgment of nullity not made final or a decree nisi for nullity not made absolute;

(iii) under a judgment or decree of judicial separation; or

(iv) under a written separation agreement;

(b) his wife was living apart from him and proceedings have been commenced for divorce, nullity or judicial separation, and such proceedings have not been terminated or concluded;

(c) there was in force a court injunction to the effect of restraining him from having sexual intercourse with his wife;

(d) there was in force a protection order under section 65 or an expedited order under section 66 of the Women’s Charter (Cap. 353) made against him for the benefit of his wife; or

(e) his wife was living apart from him and proceedings have been commenced for the protection order or expedited order referred to in paragraph (d), and such proceedings have not been terminated or concluded.

II. AN AMENDMENT OF LIMITED IMPACT?

Whilst the new Amendment allows for some exceptions to marital immunity, it only caters to a limited class of women. There is a huge lacuna in the law that vulnerable wives who have yet to take any formal action against their husbands will find themselves helpless against the marital immunity rule. This is clearly highlighted by the factual matrix in the case of Public Prosecutor v N.5 In that case, the wife moved back to her parents’ home due to the her husband’s threats to kill her. She later met her husband on the promise of a peaceful talk. However, they ended up quarrelling and he dragged her back to their matrimonial home before having sexual intercourse with her against her will. As the case was decided prior to the 2007 Amendments, the husband fell within the marital immunity from rape and was not charged.

Even under the new law, there would not be a different outcome to the case. The wife had not commenced legal proceedings or formalised any written agreements to live separately. Therefore, the husband would still have marital immunity from rape. The new exceptions implemented therefore serve but a limited use in providing protection for women in these relationships.

III. AN ARCHAIC RULE THAT SHOULD BE ABOLISHED ALTOGETHER?

The author submits that there has been insufficient action taken against s 375 of the Penal Code. Instead of merely voting for a repeal of the marital rape exemption, what ought to be done is a complete abolishment of s 375 altogether. Then Senior Minister of State for Home Affairs Associate Professor Ho Peng Kee stated that the parliament took this Amendment approach because it strikes the right balance between the needs of women who require protection, general concerns about conjugal rights and the expression of intimacy in a marriage. He also mentioned that abolishing marital immunity altogether will likely change the complexion of marriage drastically with negative impact on the marital relationship between husband and wife. This approach however, is sorely outdated.

Firstly, Professor Ho Peng Kee posited that the approach to allow certain scenarios where sexual intercourse within a marriage context would protect the needs of women who require protection. While this is accurate to a certain extent, it does not provide enough coverage for vulnerable women. As Dr Teo Ho Pin mentioned,6 the focus should be on “helping women in marriage[s] to exercise their rights to protect themselves, and not suffer in silence by having forced sex in their marriages”. By completely abolishing the marital rape exemption, women trapped in such marriages would have no qualms in bringing a claim against their husbands to help themselves as they would not need to worry about the intermediate step of taking legal action to annul their marriage. This would save them the hassle of falling within the special scenarios stated under the amended s 375.

Professor Ho also mentions that completely abolishing s 375 would lead to a negative impact on the relationship between husband and wife. However, the author opines that a positive impact between husband and wife would be forged instead. While the intention in allowing for marital-rape exemption was to protect the sanctity of a marriage in keeping the husband and wife’s life private, it simultaneously opened a can of worms in wrongfully empowering men as the ‘dominant’ sex. The marital rape exemption provided men with a false sense of empowerment that they would able to get away with mischievous acts without facing the consequences had they been single when committing such atrocious doings. Rather than privatising their relationship, the marital-rape exemption instead instilled an unnecessary imbalance of power between husband and wife in a marriage. Thus, it highlighted the idea that women would always be subjected to pleasing their husbands limitlessly even if they didn’t want to. Effectively, women were not seen as equals in a marriage but rather as a submissive creature at the disposal of their husband’s desires.

With the abolition of the marital-rape exemption, the bond between husband and wife would be positively improved. Without a veil of protection, both men and women would be equals. Women would be equally respected in a relationship and they would have no fear of being subjected to doing things against their will. This would no doubt promote growth and understanding within a balanced marriage, which is what the sacred bond between man and woman should represent.

If the Singapore government is unwilling to take drastic change with regards to the marital-rape exemption, they should perhaps look at the opinions of other jurisdictions. In the UK, the country which Singapore ‘adopted’ the marital rape immunity law from, has completely done away with the marital rape exemption since 1991, along with other major powers such as the United States, France and Australia which have since followed suit. Alternatively, Singapore could adopt what our neighbour Malaysia implemented in 2007 which made it a crime for a man to cause hurt or fear of death to his wife to have sexual intercourse with her. However, the author stands firm that the best course of action would be to completely abolish the marital rape exemption for the two reasons mentioned above.

IV. CONCLUSION

While Singapore is taking a step in the right direction, the repeal of the marital rape exemption rule needs to be expedited. There seemed to be some hint of progress in 2013,7 when then Nominated Member of Parliament Assistant Professor Tan Kheng Boon Eugene questioned when the Ministry would complete the review on marital rape provisions. Then Second Minister for Home Affairs Mr S Iswaran mentioned that reviewing the provisions related to marital rape was given adequate priority in the Ministry’s work. Furthermore, earlier this year on January 27 at the Universal Periodic Review (UPR), Ambassador-at-Large Chan Heng Chee said that Singapore had a strong position on gender equality and would “actively review” the need to repeal marital rape immunity. He also stated that “the repealing of immunity for marital rape is not so much a question of whether the law ought to be completely repealed but that it is more a question of when it would be repealed.”

At the end of the day, a repeal would not guarantee the complete protection of vulnerable women. However, an abolishment of s 375 would inherently aid their condition. Whatever the solution, it needs to come fast. While there is no publicly available data about marital rape statistics, one case is arguably too many. There are vulnerable women in marriages that need the protection of the law and until the day marital rape immunity is abolished, they will continue to live in fear and shame. Thus, Parliament needs to provide proof that they are indeed looking at completely repealing the marital rape exemption, lest it remain in Singapore’s law system for many more years to come.


[1] (Cap 224, 2008 Rev Ed Sing).

[2] Penal Code (Cap 224, 1985 Rev Ed Sing) s 375 as repealed by Penal Code (Amendment) Act 2007, No. 51 of 2007,  s 68.

[3] Matthew Hale, History of the Pleas of the Crown (London 1736) vol I, at 629.

[4] Parliamentary Debates Singapore: Official Report, vol 83 at col 2175 (22 October 2007).

[5] [1999] SGHC 255, [1999] 3 SLR(R) 499.

[6] Supra note 4.

[7] Parliamentary Debates Singapore: Official Report, vol 90 at col 20 (4 February 2013).

 


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Anticipatory Self-Defence in International Law: The United Kingdom's Formulation of 'Imminence'

By Ong Kuan Chung* 

I. INTRODUCTION

On 11 January 2017, the United Kingdom’s Attorney General, the Rt Hon. Jeremy Wright QC MP, delivered a speech on ‘The Modern Law of Self-Defence’, outlining how the United Kingdom applies the rules of international law on self-defence against external threats.1 During that speech, the Attorney General endorsed the requirement of ‘imminence’ before proceeding to elaborate on the United Kingdom’s understanding of what amounts to an imminent armed attack.2

This article will focus on and examine the Attorney General’s speech in relation to the concept of ‘imminence’ and anticipatory self-defence and consider its implications. It is submitted that while the Attorney General’s endorsement of the requirement of ‘imminence’ is welcome, the lack of clarity surrounding the United Kingdom’s interpretation of the term ‘imminence’ leaves the right to anticipatory self-defence open to potential abuse.

II. THE MEANING OF ‘IMMINENCE’

As a starting point, while some commentators continue to maintain that any form of anticipatory action is unlawful unless an armed attack has already occurred,3 the Attorney General reiterated the United Kingdom’s long-standing view that Article 51 of the Charter of the United Nations permits a State to use force in self-defence against an imminent armed attack.4

The Attorney General then sets out a list of non-exhaustive factors which guides the United Kingdom in determining if an armed attack is imminent. These factors include: 5

  1. The nature and immediacy of the threat;
  2. The probability of an attack;
  3. Whether the anticipated attack is part of a concerted pattern of continued armed activity;
  4. The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  5. The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

However, the Attorney General did not shed further light on these factors or why their adoption is justified, except to say that, ipse dixit, these are the “right factors to consider”.6

III. A LACK OF CLARITY

While the factors listed above enable us to better understand the United Kingdom’s decision-making process in determining if an armed attack is imminent, it fails to offer any meaningful insight as to how they should or have been applied in the past. In that regard, the Attorney General’s failure to clarify the meaning of ‘imminence’ arguably leaves the right to anticipatory self-defence open to abuse.

For example, in a hypothetical situation where France discovers that Switzerland has obtained and armed a nuclear missile in the direction of France, would Switzerland’s actions constitute an imminent armed attack? If we apply the factors listed above, one might conclude that this does not amount to an imminent armed attack because Switzerland is a notoriously neutral State, and therefore the probability of an attack is very slim. On the other hand, one might reason that this constitutes an imminent armed attack because the likely damage and loss France would suffer in the event of a nuclear attack would be massive.

For example, in a hypothetical situation where France discovers that Switzerland has obtained and armed a nuclear missile in the direction of France, would Switzerland’s actions constitute an imminent armed attack? If we apply the factors listed above, one might conclude that this does not amount to an imminent armed attack because Switzerland is a notoriously neutral State, and therefore the probability of an attack is very slim. On the other hand, one might reason that this constitutes an imminent armed attack because the likely damage and loss France would suffer in the event of a nuclear attack would be massive.

It is submitted that this potential divergence in interpretation is a consequence of a lack of clarity as to how the factors should be applied and if there are any factors which take precedence over another. As a result, the amount of discretion afforded by the United Kingdom’s list of factors gives rise to a risk of abuse of the right to anticipatory self-defence. For example, by claiming (or even exaggerating) the likelihood of massive loss and damage, a State would arguably be able to stretch the temporal aspect of ‘imminence’ almost indefinitely, thus rendering the requirement of ‘imminence’ moot. In doing so, the lawfulness of anticipatory self-defence comes into question as it begins to resemble the oft-criticised ‘Bush Doctrine’ of non-imminent or pre-emptive self-defence.7

IV. CONCLUSION

In conclusion, the Attorney General’s speech helpfully outlines the United Kingdom’s position in respect of several aspects of the right to self-defence and offers us various insights into the United Kingdom’s decision-making process. However, a lack of clarification with regard to the United Kingdom’s formulation of ‘imminence’ continues to leave the right to anticipatory self-defence in a state of uncertainty and susceptible to potential abuse. Nevertheless, the Attorney General’s articulation of an official United Kingdom position on the right to anticipatory self-defence should be commended. It is hoped that other States would similarly follow suit and provide greater clarity on this area of international law.


*The author graduated from the University of Tasmania before joining the dispute resolution practice at Drew & Napier LLC. He is currently pursuing his master's degree in law at the University of Oxford, with a strong focus on international dispute resolution.

[1] The Rt Hon. Jeremy Wright QC MP, “The Modern Law of Self-Defence” (Speech delivered at the International Institute for Strategic Studies, London, 11 January 2017), online: <http://www.ejiltalk.org/the-modern-law-of-self-defence/>.

[2] Ibid.

[3] See e.g., Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart, 2010) at 407.

[4] Wright, supra note 1.

[5] Wright, supra note 1.

[6] Wright, supra note 1.

[7] Christine Gray, International Law and the Use of Force, 3rd ed (Oxford University Press, 2008) at 209.


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Online Privacy: Issues Faced by Content Holders in Enforcing their Intellectual Property Rights

By Gabriel Lim Zhi-Hao

I. INTRODUCTION

With one of the fastest Internet connection speeds in Asia1 enabling quick and easy downloading, it is no surprise that online piracy is extremely prevalent in Singapore. In terms of the number of illegal downloads per Internet user, Singapore ranked 4th out of 18 Asian countries in a 2012 survey by Vobile Pte Ltd, a service provider that operates to reduce revenue loss to content owners caused by the pirating of movies and TV content.2 Furthermore, according to a 2013 survey by Sycamore Research and Insight Asia about three-quarters of Singaporean youth aged 19 to 24 access illegally downloaded material, citing reasons such as the ease and free availability of pirated material.3 Indeed, given the proliferation of online privacy, it is surprising that little action seems to have been taken by intellectual property owners to enforce their rights. This article explores the legal difficulties faced by such content owners, and other issues that might hinder their ability to clamp down on infringers.

II. REMEDIES FOR COPYRIGHT AND TRADEMARK INFRINGEMENT

Two main pieces of legislation are involved in regulating the infringement of content rights, the Copyright Act (“CA”)4 for copyright infringement, and the Trade Marks Act (“TMA”)5 for trademark infringement.

A. Copyright Infringement

Per s 119(1) of the CA, a copyright owner has a cause of action against a person who infringes his copyright. The lack of mention of any element of knowledge or intention evince that the tort is of strict liability. Under s 119(2) of the CA, the court may award a plaintiff with damages and an account of profits. These remedies are to be read conjunctively – it is possible for a plaintiff to claim both simultaneously.6 Alternatively, a plaintiff may also elect for an award for statutory damages in lieu of damages or an account of profits via s 119(2)(d) of the CA for a maximum of $10,000 per infringed copyright up to a total of $200,000, unless a plaintiff can prove that his actual loss has exceeded that amount. In deciding whether to award statutory damages, the court will also have regard to a range of factors in s 119(5) of the CA.

It is apposite to note the 2014 amendments of the CA, which gives copyright owners or their exclusive licensees the right to apply for an injunction to disable access to websites that “commit or facilitate infringement of copyright in that material” (s 193DDA(1)(a) of the CA). Websites whose “primary purpose” (s 193DDA(2)(a) of the CA) is to encourage copyright infringement can be blocked. Indeed, the purpose of the 2014 amendments is to catch websites that clearly and flagrantly infringe copyright,7 without being intrusive on Internet users.8

B. *Trademark infringement(

For trademark infringement, the provisions in the TMA that give a trade mark owner a cause of action against any infringers are laid out in s 31 of the TMA, which are similar to that in the CA. The remedy of statutory damages is also available in s 31(5)(c). The cap on statutory damages is higher – $100,000 for each use of a counterfeit trademark, up to a total of $1,000,000 – unless, of course, a plaintiff proves that his actual loss exceeds that amount. The factors to be considered in an award of statutory damages under s 31(6) of the TMA are similar to that in the CA, albeit less extensive.

C. Statutory Damages

Due to the difficulty of proving actual loss in many copyright and trademark infringement claims – such as where an individual illegally downloads a movie for his personal enjoyment – statutory damages may be preferable because it does not require a plaintiff to prove loss.9 The remedy of statutory damages was introduced in 2004 in both the CA and the TMA following the signing of the 2003 US-Singapore Free Trade Agreement.10 Rather than basing damages off compensatory and restitutionary principles, the draw of statutory damages is that it also allows the court to account for punitive and deterrence considerations.11 This implies Parliamentary intent to clamp down on pirating and intellectual property infringement. As aforementioned, s 119(5) of the CA lists some factors for the court to consider in deciding whether to grant statutory damages, inter alia, “the nature and purpose of the infringing act, including whether the infringing act was of a commercial nature or otherwise”, “the flagrancy of the infringement”, the need to deter other similar infringements” and “all other relevant matters”. The extensiveness and broadly-worded nature of the provisions allows the court to more appropriately deal with varying degrees of piracy.

Given how prevalent illegal downloading seems to be in Singapore, it is submitted that some flexibility in the award of statutory damages is desirable. It gives copyright owners a right to damages for any copyright infringement per se, regardless of whether or not there was any loss suffered. Indeed, the wide ambit of statutory damages itself can serve to deter potential infringers.

However, it should be noted that despite its apparent ease of application, the Singapore courts have only applied the remedy of statutory damages on very few occasions since its introduction in 2004.12 It is posited that perhaps the cost of litigation, exacerbated by the difficulties in identifying specific downloaders, still serve as a major obstacle that discourages copyright and trademark owners from enforcing their rights. Specifically, for trademark infringement cases, it has been suggested that this is due to the difficulties of determining whether an alleged infringing sign can be considered a “counterfeit trade mark”,13 which is defined in s 3(6) of the TMA.

III. THE ISSUE OF CONFIDENTIALITY WITH TELCO SUBSCRIBERS

The remedy of statutory damages, and the strict liability of the torts of copyright and trade mark infringement, might suggest that content holders can enforce their intellectual property rights with relative ease. However, the primary difficulty that content holders face in bringing an action against infringers is identifying the infringers in the first place. This can be done by tracking the Internet Protocol address (“IP address”) of an individual who has illegally downloaded content. To do so, however, would require Internet service providers (“ISPs”) such as Singtel or StarHub to disclose the personal information of its subscribers.

A. Enforcing intellectual property rights conflicts with the right to confidentiality and privacy

The issue presented itself in the seminal 2008 case of Odex Pte Ltd v Pacific Internet Ltd (“Odex”).14 Odex was a local company that licensed the copyright to distribute anime (Japanese animation) shows. In an application for pre-action discovery of documents, Odex had sought for Pacific Internet, an ISP, to provide the personal information of some subscribers who had allegedly downloaded Odex’s licensed anime shows illegally. The High Court held that only copyright owners and exclusive licensees had the locus standi to enforce their copyright against infringers – since Odex did not fall into either category, its application was denied. However, the court didallow the discovery application for the Japanese copyright owners who had joined in as plaintiffs of the action.15 The Japanese copyright owners – Showgate, Geneon Entertainment, TV Tokyo, GDH KK and Sunrise – eventually obtained the details of alleged infringers and sued two downloaders, Mr. Koh Lian Boon and Mr. Felix Lukman. Koh later settled with the plaintiffs and Lukman was reported to have fled to Indonesia.16

Indeed, Odex presented the clash between copyright owners’ right to enforce their statutory rights under the CA , and the contractual and statutory duty of ISPs to keep their subscribers’ personal information private.17 . However, the law has recognized that an individual’s right to confidentiality cannot be used as a shield to excuse acts of intellectual property infringement. Indeed, in the words of the learned District Judge in Odex: “The right to privacy can never be equated to a right to steal intellectual property in secret”.18 Odex is proof that copyright owners and their exclusive licensees can get ISPs to reveal the identity of infringers.

Most recently in 2015, Dallas Buyers Club LLC (“DBC”), the rights owner of the film Dallas Buyers Club, obtained orders from the High Court compelling major ISPs – Singtel, Starhub, and M1 – to release personal information of alleged illegal downloaders.19 DBC then sent letters to alleged downloaders demanding $5,000 for their act of infringement.20 While it is unclear whether DBC was successful in getting compensation from illegal downloaders, this case has come under flak for abuse of process.

B. Speculative invoicing and copyright trolls

It was alleged that Samuel Seow Law Corporation (“SSLC”), counsel for Voltage Pictures (of which DBC is a subsidiary), was involved in abusive practices against alleged downloaders such as “speculative invoicing” or “copyright trolling”. This involves content owners compelling quick settlements from alleged infringers under the threat of litigation. Law Minister K. Shanmugam has noted that such acts are “not wrongful by itself unless it contravenes a lawyer's professional obligations”.21 However, SSLC had allegedly threatened criminal proceedings in their warning letters to alleged infringers. This infringes the Practice Directions and Rulings Guide by Law Society of Singapore (“LawSoc”) that lawyers should not “communicate in writing or otherwise a threat of criminal proceedings in order to achieve a stated objective in any circumstance”.22 LawSoc has claimed that it is taking action against two lawyers involved in the DBC case.23

Indeed, errant practices by lawyers may cause the public to develop stigma against content holders when they rightfully seek to enforce the intellectual property rights. As expressed by a spokeswoman from the Intellectual Property Office of Singapore: “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”.24

C. Other Difficulties

Other than the intricacies of identifying and suing alleged infringers, there remain other issues that may suppress the future of intellectual property infringement claims. The anonymity conferred by the Internet presents a major issue when tracking infringers. For one, while content holders can compel ISPs to reveal information about alleged infringers, the owner of an IP address may not have committed the act of infringement himself. A tenant who uses his landlord’s Internet Wi-Fi connection to illegally download movies and videos, for example, may not be easily identifiable. Other common scenarios include families and friends who share a Wi-Fi connection, or even public Wi-Fi available in restaurants and shops that are accessible to anyone. This makes it virtually impossible for content owners to track and identify specific individual infringers.

III. CONCLUSION

In conclusion, the pursuit by content holders to enforce their rights seems to be littered with obstacles. The scarcity of case precedent only goes to diminish the threat of litigation against potential and current illegal downloaders, which may encourage them to start or continue with their infringing acts. However, it is also possible that the publicity of cases like Odex and DBC might deter potential infringers. Further with the advent of cheap, easily-accessible options for viewing movies and TV content – notably Netflix – it is submitted that the need for Internet users to illegally download content is likely to diminish. Why risk the penalties of intellectual property infringement when cheap alternatives are so easily available? Indeed, these factors may diminish an Internet user’s desire and need to illegally download content respectively. Hopefully, this will mark the beginning of the end for online piracy in Singapore.


[1] “Singapore's Internet connection speed among top 10 in Asia Pacific: Akamai”, Channel News Asia (17 December 2015), online: <http://www.channelnewsasia.com/news/singapore/singapore-s-internet/2354990.html>.

[2] Parliamentary Debates Singapore: Official Report, vol 92 (7 July 2014) (Ms Indranee Rajah), online: <https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/2R-speech-by-SMS-on-copyright-amendment-bill-2014.html> at 26.

[3] Ibid at 27-28.

[4] Copyright Act (Cap 63, 2006 Rev Ed Sing).

[5] Trade Mark Act (Cap 332, 2005 Rev Ed Sing).

[6] David Llewelyn, “Statutory Damages for use of a “Counterfeit Trade Mark” and for Copyright Infringement in Singapore: A Radical Remedy in The Law of Intellectual Property or One in Need of a Rethink?” (2016) 28 SAcLJ 61 at 15.

[7] Public Consultation on the Proposed Amendments to the Copyright Act (7 April 2014 to 21 April 2014), online: <https://www.mlaw.gov.sg/news/public-consultations/public-consultation-on-the-proposed-amendments-to-the-copyright-.html> at 15.

[8] Ibid at 13.

[9] Supra note 6 at 18.

[10] Ibid at 12.

[11] Ibid at 28.

[12] Ibid at 47.

[13]  Ibid at 32.

[14] Odex Pte Ltd v Pacific Internet Ltd, [2008] 3 SLR 18; [2008] SGHC 35.

[15] Ibid at [76].

[16] Chua Hian Hou, “Duo in illegal-download suit cave in; One settles out of court with anime studios, the other has gone home to Indonesia”, The Straits Times (22 February 2010).

[17] George Wei, “Pre-Commencement Discovery and the Odex Litigation: Copyright versus Confidentiality or Is It Privacy?” (2008) 20 SAcLJ 591 at 17.

[18] Odex Pte Ltd v Pacific Internet Limited, [2007] SGDC 248 at [38].

[19] Cheryl Ong, “Dallas Buyers Club case: Some things to know if you have illegally downloaded the movie”, The Straits Times (9 April 2015), online: < http://www.straitstimes.com/singapore/dallas-buyers-club-case-some-things-to-know-if-you-have-illegally-downloaded-the-movie>.

[20] Irene Tham, “'Pay $5k for illegal download of movie'”, The Straits Times (8 August 2015), online: <http://www.straitstimes.com/singapore/courts-crime/pay-5k-for-illegal-download-of-movie>.

[21] K. Shanmugam, “Written Answer by Minister for Law, K Shanmugam, to Parliamentary Question on Speculative Invoicing” (14 July 2015), online: < https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/written-answer-by-minister-for-law--k-shanmugam--to-parliamentar3.html>.

[22] Law Society of Singapore, Practice Directions and Rulings Guide, Singapore, PDR 2013, para 27(b) online: <https://www.lawsociety.org.sg/DesktopModules/EthicsPortal/attachment/PDR%202013,%20PARAGRAPH%2027%20%20Letters%20Threatening%20Criminal%20Proceedings%20and%20Offensive%20Letters.pdf>.

[23] Tan Weizhen, “Authorities move to ensure illegal downloaders get fair process” TODAY (21 September 2016), online: < http://www.todayonline.com/singapore/ipos-agc-seek-intervene-court-proceedings-alleged-illegal-movie-downloading-case>.

[24] Irene Tham, “AGC steps in as studios seek illegal downloaders”, The Straits Times (17 August 2016), online: <http://www.straitstimes.com/tech/agc-steps-in-as-studios-seek-illegal-downloaders>.


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Blockchain: The Promise of Smart Contracts

by Goh Eng Han

Years ago, no one seriously considered computers capable of being more than work tools. Yet, technology has proven us wrong and today, many are sounding alarm bells about our jobs being done by computers. This article discusses what blockchain is, and its potential application in contract law.

I. WHAT IS BLOCKCHAIN?

The most well-known application of blockchain is the Bitcoin. As explained by the Wall Street Journal,1 “it is a data structure that makes it possible to create a digital ledger of transactions and share it among a distributed network of computers. It uses cryptography to allow each participant on the network to manipulate the ledger in a secure way without the need for a central authority.” New entries can only be made if other network participants verify their validity. All users are involved in maintaining its integrity.

A. What makes it so different from current technologies?

The key difference is that blockchain is not managed centrally. To manage financial transactions, banks and credit card companies like Visa maintain a central group of servers to process all transactions on the system. If there is any issue, the owner of the system can take the initiative and implement changes. Blockchain is the opposite, with its pointedly anti-establishment structure. There is no central authority who can make immediate changes. All users must agree before the blockchain can be modified or updated. Being a decentralised system, there is no one authority or owner of the system that can be pinpointed in the event of system outages.*

B. How does it work? What are some of its uses?

Since the system does not operate from a central unit, or group of units, it promises increased resilience and security. That is why financial institutions are interested in the blockchain. Currently, blockchain is used largely by virtual currencies like Bitcoin and Ether. While same proclaim a detest of overreaching central banks, one key draw for users is increased privacy, leading to Bitcoin’s popularity in online black markets. One example is Silk Road,2 which in various incarnations has been shut down by the FBI for facilitating illegal drugs sales.

II. RELEVANCE TO CONTRACT LAW

While the legal questions surrounding Bitcoin and its exploitation for crime frequently feature on the news, the blockchain’s innate recording function is often overlooked. From a legal perspective, this function can alter the application of contracts in the future, in particular, streamlining contractual transactions to minimise potential breaches

Ethereum is a blockchain that records “smart contracts” instead of currency transactions. Contracting parties can record their contracts in in the blockchain. These are “smart contracts” as they can be programmed to execute certain actions when conditions are fulfilled, such as making a payment to a supplier monthly. Ethereum is touted to automate contracts, since all contracts are created using a standard set of tools on the platform and can execute themselves without continual human input.

This standardisation and automation can sidestep interpretation difficulties while preventing unscrupulous parties from backing out and denying that a contract was ever agreed on. This will make the enforcing of contracts more straightforward, possibly at the cost of reducing the legal manpower required for contract work. This streamlining of contracts will incentivise parties to enter them, which is beneficial for business.

III. DRAWBACKS OF THE BLOCKCHAIN

Although there are real benefits of blockchain-based contracts, various drawbacks mean that drastic changes to the current situation are not likely to happen soon. Decentralising the blockchain across all members effectively increases the cost for them. Blockchain requires a significant amount of computing power, which used to be taken care of by a central authority’s servers and data centres. Encoding fixed contracts into the blockchain also appear to be at odds with the free, flexible nature of contracts, which is essential for commercial decisions and transactions in the economy.

Furthermore, a common problem in blockchain implementations is while they are secure, they are often much slower than systems we have today. In the case of “smart contracts”, the blockchain can only execute a contract after checking the entire database for the required information.3 Unlike other inventions like web search which can run concurrently, this means that contracts over the whole world can only be processed one at a time.4 This is abysmally slow when you compare it to Visa’s processing capacity of 56,000 simultaneous transactions per second. Meanwhile, blockchain’s average confirmation time has been anywhere from 25 minutes to 74 minutes per transaction for the first two weeks of December.5

Finally, blockchain has yet to prove itself as a truly safe platform. As blockchain is coded by humans, it is susceptible to bugs just like other software products.6 Hackers have exploited such bugs to steal large sums of Bitcoin from popular exchanges,7 creating unwanted volatility and confusion. As blockchains are designed to operate without modification after, this means that unlike software updates, bugs will in theory be irreversibly hardwired into the blockchain.

IV. CONCLUSION

“Smart contracts” are unlikely to take the world by storm and put lawyers out of their job anytime soon. More must be done to make this technology a viable and compelling alternative, such as addressing the drawbacks above Similar to recent developments like ROSS automating legal research,8 new technologies are likely to be confined to an assistive role. For now, human judgement trumps computer efficiency in handling complex legal work.


[1] Steven Norton, “CIO Explainer: What Is Blockchain?”, The Wall Street Journal (2 February 2016), online: <blogs.wsj.com>.

[2] “Shedding light on the dark web”, The Economist (16 July 2016), online: <www.economist.com>.

[3] Gideon Greenspan, “Smart contracts make slow blockchains” (5 November 2015), Multichain Blog (blog), online: <www.multichain.com/blog/2015/11/smart-contracts-slow-blockchains/>.

[4] David Gilbert, “Bitcoin’s Big Problem: Transaction Delays Renew Blockchain Debate”, International Business Times (4 March 2016), online: <www.ibtimes.com>.

[5] “Average Confirmation Time”, Blockchain, online: <blockchain.info/charts/avg-confirmation-time>.

[6] “Not-so-clever contracts”, The Economist (30 July 2016), online: <www.economist.com>.

[7] Alex Hern, “A history of bitcoin hacks”, The Guardian (18 March 2014), online: <www.theguardian.com>.

[8] Anthony Sills, “ROSS and Watson tackle the law” (14 January 2016), Built with Watson (blog), online: <www.ibm.com/blogs/watson/2016/01/ross-and-watson-tackle-the-law/>.


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Setting Minds at Ease: The Effectiveness of Recent Amendments to the Mental Capacity Act

by Heng Ming Heuy Monica

INTRODUCTION

In March 2016, Parliament amended the Mental Capacity Act1 (“the Act”) with the purpose of empowering more people to make complex choices about their future, as well as to protect mentally incapacitated persons from (primarily) financial abuse. Two amendments stand out: the introduction of paid professionals into the Lasting Power of Attorney (“LPA”) system, as well as the expansion of the Court’s powers over the appointment of the decision-maker.2 This article evaluates the contribution of these amendments to the furtherance of the purpose of the Act in addition to the applicability of developments surrounding the United Kingdom Mental Capacity Act3 [UK MCA] to Singapore law.

MONETISATION OF THE LPA SYSTEM

The first amendment of note is one that enables singles to appoint professional donees to make decisions related to personal welfare and property on their behalf.4 The purpose of this amendment is to pre-empt the spurt in future planning, as predicted from rising singlehood5 and the prevalence of age-related medical conditions such as dementia.6 It plugs a gap in the legal system by accounting for the needs of persons who do not have family members to be their proxy decision-makers. Additionally, the amendment addresses the growing need for deputies, given that the application rate for LPAs remains low7 – which implies that the Court will still be effectively responsible for making decisions for many Singaporeans in the future, through assigning proxy decision-makers.

A point of contention, however, is when professionals will be deemed to be acting in the individual’s best interests. While it is clear that acting for the donee’s best interests is a fundamental principle upheld by the Act,8 the concept of “best interests” is complex to define and difficult to practise. In particular, the main tension would be between the professional’s judgments of what is good for the individual, as opposed to the individual’s own preferences. To elaborate, the Act prescribes that the decision-maker must consider a variety of factors, including the donee’s past and present preferences. At the same time, he must know the “right thing” to do based on his own evaluation of the individual’s present circumstances.9 Arguably, a professional donee or deputy who has little knowledge about the individual’s preferences is more likely to employ a paternalistic approach towards decision-making. In other words, his own understanding of what is beneficial for the incapacitated individual may override the wishes of the latter.

In particular, this problem is exemplified when the professional appointed has little to no interaction with the individual, and therefore is unfamiliar with their needs, situations, or wishes. A similar problem has unfolded in the United Kingdom, where a trend of low quality mental capacity assessments has emerged. In its 2014 review of the UKMCA, the House of Lords found that health care professionals were often not closely involved with the care of the intellectually-disabled person,10 and as a result, their medical assessments were shallow and done in a slipshod manner that “nowhere near matche[d] the seriousness of the issues at stake”.11 Going back to the local context, it is submitted that a poor understanding of the provisions for determining best interests by the professional donees and deputies will create similar problems in the quality of service provided, as well as the adherence to the principle of best interests in the Act, especially since there is no requirement that the professionals must be involved with the individual.

ENHANCED POWERS OF THE COURT

The second issue concerns the amendments which allow the Court to take pre-emptive action against abuse of the LPA. The amendments allow the Court to (1) quickly suspend the powers of a donee or deputy when criminal investigations are undergoing – without requiring prior applications; and (2) speedily revoke the same LPA powers if there is significant risk of them being abused.12 A “significant risk” would include the conviction of the donee or deputy of offences related to fraud or dishonesty. An important distinction is that the appointment of the donee or deputy could nonetheless be revoked even if the offence he committed was not in relation to the donor.

This is a laudable development in the law regarding mentally incapacitated persons, as it protects the assets of the unsuspecting donor from being dissipated. Its benefit can be illustrated by its application to Chung Khin Chun K,13 a recent case which the Minister of Social and Family Development in fact referred to14 in his proposal of the amendments.15 On the facts of that case, there was a significant risk that the donor’s property would be dissipated because the donee had been charged with the offences of falsification of company receipts and criminal breach of trust of monies belonging to the donor.16 The new amendments would resolve this undesirable situation as firstly, the donor’s assets would be preserved during the course of investigations through an order of suspension per s 36A. Secondly, the LPA could be revoked under s 20 such that the problematic donor could be removed and replaced with one the Court deemed fit. The amendments are thus “sensible precaution[s]” that empower the Court to act on the behalf of the vulnerable, even before abuse occurs.17

A criticism, however, lies in the fact that this safeguard is applied later in the scheme of the LPA than what is preferred. What this means is that these powers of the Court become useful only after the LPA has been approved by the Public Guardian, where in fact it would be more logical to root out potential risks at the application stage through a robust vetting process. As voiced by critics like Member of Parliament Joan Pereira, prevention outweighs cure.18

Here, it is important to recall that the principle of the individual’s autonomy is at the heart of the Act (see s 3(1)). As reiterated by Minister Tan Chuan Jin in his parliamentary speech, to interfere in the application process – i.e. to control who the applicants select as their donee(s) – would contravene this principle and perhaps discourage citizens from even applying for the LPA at all.19 Furthermore, it would compromise the capacity of the Public Guardian in providing objective reports to the Court in the course of investigations.

It is therefore submitted that the greatest opportunity for change occurs at the “intermediate” stage of LPAs, which is the period of time following the clearance of the LPA application prior to the materialisation of abuse. To elaborate, the Office of the Public Guardian may employ supervisory methods such as audits to keep an eye on high-risk cases. The risk level of cases can be determined by a checklist of factors including the value of the assets involved, the identity of the donee (e.g. foreigner or person unrelated to the donor) and the donor’s age (which hints at the likelihood of age-related conditions like dementia arising).20 Further, the United Kingdom’s “first year weighted” approach21 to assessing risk in LPAs can be applied locally: As of 2015, the UK Office of the Public Guardian has moved away from classifying cases according to static risk levels; instead, risk levels are commensurate with the type of deputy involved. For instance, cases with first-year deputies are categorised as high-risk, while cases with professional deputies are generally categorised as low-risk. The former cases are later allocated different risk levels depending on the UK Office of the Public Guardian’s re-evaluation of the cases, using annual reports supplied by the deputies. This approach to risk assessment maximises the allocation of resources to the overseeing of cases, and awards high-risk cases greater attention.

CONCLUSION

In conclusion, the key amendments made to the Act in 2016 are meritorious – enhancing the options for future planning as well as strengthening the protection of the LPA against potential abuse. Nevertheless, there remain practical considerations that Parliament can work on to improve the implementation of the Act. It is envisioned that the Act will be a beacon of hope for Singaporeans seeking security when their mental capacity is lost.


[1] Cap 177A, 2010 Rev Ed Sing

[2] Supra note 1 at s 12 and s 17

[3] Mental Capacity Act 2005 (UK), c 9

[4] Neo Chai Chin, "More decision-making options mooted for mentally-incapacitated" TODAY (7 December 2015) <http://www.todayonline.com/singapore/more-decision-making-options-mooted-mentally-incapacitated> (accessed 30 November 2016)

[5] Charissa Yong, "More young people in Singapore staying single" The Straits Times (11 March 2016) <http://www.straitstimes.com/singapore/more-young-people-in-singapore-staying-single> (accessed 30 November 2016)

[6] Janice Tai, "One in 10 people over 60 have dementia, new Singapore study claims" The Straits Times (25 March 2015) <http://www.straitstimes.com/singapore/health/one-in-10-people-over-60-have-dementia-new-singapore-study-claims> (accessed 30 November 2016)

[7] “Out of the adult resident population of three million, only about 0.7 per cent have applied for an LPA thus far.” From Lorna Tan, "Draw up an LPA before it's too late" The Straits Times (23 October 2016) <http://www.straitstimes.com/business/invest/draw-up-an-lpa-before-its-too-late> (accessed 30 November 2016).

[8] s 3(5) and 6 of the Act

[9] BHR and Another v BHS [2013] SGDC 149 at [56]

[10] House of Lords, Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: post-legislative scrutiny (Report of Session 2013-14, 13 March 2014) at para 66

[11] Supra note 9 at para 69

[12] Supra note 1 at s 36A(3)(b)(i) and s 17(3)(b)(i)

[13] Chung Khin Chun K (by her deputy Mok Chiu Ling Hedy) v Yang Yin and others [2015] SGHC 215

[14] Singapore Parliamentary Debates, Official Report (14 March 2016) vol 94 (Tan Chua Jin, Minister for Social and Family Development)

[15] Mental Capacity (Amendment) Bill 2016 (Bill 11 of 2016)

[16] PP v Yang Yin [2015] SGHC 3

[17] Robert Hurling, "Singapore: Mental Capacity Act Amendments", Hyphen Law [2016] <http://www.hyphenlaw.co.uk/site/blog/hyphen-blog/singapore-mental-capacity-act-amendments> (accessed 30 November 2016)

[18] Supra note 13 (Joan Pereira, Member of Parliament for Tanjong Pagar)

[19] Supra note 13

[20] Supra note 13 (Denise Phua Lay Peng, Member of Parliament for Jalan Besar)

[21] Office of the Public Guardian, Fundamental Review of the Supervision of Court Appointed Deputies by the Public Guardian (Report to Parliament, December 2014) at para 77


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"The Geeks Shall Inherit the Earth": Two-way Influences amongst Fintech, Finance and Law

by Chew Jia Yi Joan

INTRODUCTION

“The geeks shall inherit the earth” is a phrase articulated by a Fintech company in Silicon Valley.1 While the “geeks” behind Fintech may not yet have taken over Singapore, Singapore was recently named as one of the world’s top 2 Fintech hubs.2 Clearly, Fintech will continue to influence local society, in particular its financial industry. This article aims to evaluate the two-way influences amongst Fintech, the financial industry and legal regulation mechanisms, as well as consider plausible future developments to their relationship.

A. Definition of Fintech

Fintech represents the innovative convergence of finance and technology. It can be defined at both the service and industry levels. In terms of a service, it involves the provision of financial services using new technologies, such as mobile phones and the Internet. In terms of industry, it refers to a non-financial business providing services such as payment without collaborating with a company specialising in financial services.3 Some well-known examples of these are Apple Pay and Alibaba’s AliPay.4

B. General Social Impacts

One of the areas in which Fintech is most relevant to the average Singaporean’s life is perhaps digital payments. Across the world, mobile payments alone were expected to grow by 60.8% in 2015, largely due to regulators’ willingness to allow new Fintech companies to operate without a banking license.5 Another important factor for this was new technology allowing for the implementation of novel solutions at far less than what it would have previously cost.6 In addition, the continued recovery of mature economies was also a contributing factor.7 Given the predicted stabilisation of global markets rather than strong growth,8 it is plausible that the rapid growth of Fintech services might slow down, but it is unlikely to stop completely.

On a larger scale, Fintech might be able to help hedge the financial consequences of an aging society, such as through peer-to-peer (P2P) lending services.9 Singapore is unquestionably a rapidly ageing society, with over 25% of the population reaching old age by 2030.10 The exact impact of Fintech on an aging society remains to be seen, but there will probably be some form of impact in future as both these elements are here to stay.11

FINTECH’S INFLUENCE ON THE FINANCIAL INDUSTRY AND ITS REGULATORS

Apart from impacts on society in general, it is likely that Fintech will have a strong influence on the financial services sector. As the legal and financial industries are closely connected, the impact of Fintech on the legal sector cannot be ignored as well. An analysis of such an impact is important given the significance of the financial and legal industries in Singapore—these industries are critical for Singapore to maintain its status as a regional economic and legal hub.12 As the influence of Fintech in the local context might not be completely visible at present, relevant examples from other jurisdictions will also be mentioned.

A. Fintech Services Offered by Banks

Some Fintech services offered by banks can be said to be at odds with some of the core principles traditionally governing banking operations. Firstly, banks have traditionally been proponents of calculated risks, such as their facing the risk of mortgagees being unable to pay back their mortgages in an economic downturn. This is because they have the chance to profit from such risks if their calculations are accurate. However, in the market of certain Fintech services such as digital payments, there is a focus on minimising risk because profitability does not stem from such risks.13 Secondly, building good relationships with customers has always been important in banking, but Fintech services such as digital payments do not place as much emphasis on the quality of relationships with customers. 14 As such, it is plausible that there may be an eventual separation of the banking and Fintech industries.15

However, there are some areas in which the fundamental principles governing Fintech and banking operations have not been in direct conflict. Rather, in these areas, Fintech has merely resulted in a shift in the type of business banks undertake. Such a shift would be beneficial for financial regulators. For instance, in the wake of the 2008 financial crisis, banks have acknowledged the importance of transactions, apart from their traditional risk-taking, as a means of generating profit. The ability of digital payments to facilitate such transactions would complement, rather than hinder, the banks’ developing an ideal transactional framework.16 Indeed, Internet banking has resulted in at least 50% of over-the-counter payments in some Chinese banks.17 Given that it might be harder for banks to check the authenticity of a customer’s over the Internet as compared to looking at the physical person, legal regulations focusing on Know Your Customer (KYC) and Anti-Money Laundering (AML)18 regulations will only continue to grow in importance. Indeed, the Monetary Authority of Singapore (MAS) has recently embarked on a project to create a national KYC utility, and has acknowledged that there might even be a need for more advanced types of KYC guidelines.19

B. Fintech services offered by companies other than banks

As for Fintech services belonging to non-financial companies, there has been a rise of services that threaten the very existence of the formal banking sector. These companies, with their services such as Bitcoin, involve peer-to-peer networks managed by the Internet community.20 This compromises the need for financial institutions in this area. This development also potentially makes it harder for legal regulations, as there are arguably more parties to regulate than in traditional banking. However, at the same time, this obstacle is not insurmountable as some Fintech services leave a permanent financial record of each transaction through usage of blockchains.21 This would be of some comfort to regulators as it would aid in their continuing to play their roles effectively.

Furthermore, Fintech services might also benefit regulators of traditional financial institutions in terms of reducing their workload. The new Fintech companies will be able to help traditional financial institutions achieve some of the outcomes that legal regulators have been aiming to achieve with the financial sector, such as developing Singapore into an international financial centre.22 To do so, legal regulators have to ensure financial institutions cut costs and deliver quality financial services. Fintech companies can help regulators achieve such outcomes through competition. For instance, American Fintech start-up Lending Club’s expenses as a share of its loan balance is about 2%, less than half the equivalent for conventional moneylending services.23 This results in better deals for customers, who are increasingly shifting away from traditional banking platforms. Hence, such competition will force financial institutions to work towards the goals that regulators have been setting for them all along,24 helping regulators in this respect.

RESPONSE OF THE FINANCIAL INDUSTRY AND ITS REGULATORS TO FINTECH

Although the shift towards Fintech has not been a total bed of roses for financial institutions and their regulators, they have tried to keep abreast of developments in this area and ensure their continued relevance.

For instance, banks might actively take steps to hinder the development of Fintech. This is because banks have no clear financial incentive to support Fintech start-ups. On the contrary, some aforementioned aspects of their operations are arguably threatened by Fintech start-ups. Such steps are apparent in countries such as the United Kingdom, where HSBC and Barclays have closed the accounts of some digital currency operators and refused to give them merchant identification for receiving direct debit payments.25

Such pushback from financial institutions leads to a greater role for legal regulation in the financial industry as a whole. For instance, during his term in office, former United Kingdom Chancellor of the Exchequer George Osborne promised legislation to help Fintech firms obtain capital. This included a proposal to force banks who refuse to grant them loans to refer them to alternative sources of funds, such as crowdfunding.26 It is plausible that given the context of both Singapore and the United Kingdom aiming to become Fintech hubs,27 Singapore might also introduce similar regulations to actively aid Fintech start-ups resolve cash flow issues.

An area in which Singaporean regulators are already helping Fintech companies is their navigation of the complex legal landscape. At present, apart from the aforementioned KYC and AML regulations, there are many other regulations that both banks and Fintech start-ups have to deal with in launching their services. Despite such regulations aiming to make Fintech safe for society to utilise, some of them may not have fully caught up with the novel business models that Fintech services employ, which would hinder true innovation in the field.28 In response to this problem, the MAS has recently allowed banks and Fintech start-ups to apply to join a ‘regulatory sandbox’, in which certain legal and regulatory rules will be relaxed to allow for the testing of new Fintech services.29 Companies will then be able to focus on developing their services while only focusing on compliance with the more important regulations which will not be relaxed during the ‘sandbox’ phase, such as some AML rules.30 Should these experiments prove successful, the Fintech services would be applied on a broader scale, upon which they would then comply with all relevant legal regulations. Thus, this scheme will aid both banks and Fintech start-ups to better understand the relevant regulations and comply with them, without stifling their experimentation.

Greater legal regulation may also lead to increased popularity of Fintech services amongst the general population Increased government regulation of the Fintech sector may help to overcome ordinary consumers’ security-related concerns regarding Fintech. For instance, online payment systems, particularly those involving P2P transfers, may be more vulnerable to personal data theft than traditional payment methods.31 It also does not help that there has been a steady rise in scams involving online credit transfers, such as when sellers do not deliver goods after the buyer has paid for them online.32 This comes despite companies such as PayPal helping buyers obtain refunds from errant sellers.33 This indicates a plausible role for greater legal regulation to prevent exploitation of innocent users of Fintech services. With greater regulatory control over the sector, potential Fintech users may have these fears allayed. This would thus aid the growth of the local Fintech customer base.

CONCLUSION

In conclusion, it has been shown that there is a strong influence by Fintech on existing financial institutions and their regulators. Although Fintech has resulted in banks facing more difficulty in certain aspects of their operations, it has arguably benefitted financial regulators in some areas, such as through increasing their relevance. Vice versa, banks and regulators can also hinder or aid the growth of the Fintech sector, though it seems that regulators are playing a greater role in Fintech’s expansion. Indeed, Commentators have suggested that regulators can do even more to aid the shift towards Fintech, such as through facilitating the establishment of courses focusing on digital financial services for students trained in business and Information Technology (IT).34 Although all governments face restricted ability to undertake regulatory commitments,35 this limitation might be particularly pertinent in Singapore where resources are generally scarce. Thus, it would be ideal if regulators could find low-resource ways to better regulate the “geeks” behind the Fintech sector, enabling its growth while increasing protection of users.


[1] Ravi Menon, “A Smart Financial Centre” (Keynote Address delivered at the Global Technology Law Conference, 29 June 2015), online: <www.mas.gov.sg/news-and-publications/speeches-and-monetary-policy-statements/speeches/2015/a-smart-financial-centre.aspx> [Menon, “A Smart Financial Centre”].

[2] Jun Jie Woo, “To be a FinTech Hub, Singapore Needs RegTech”, Today (27 October 2016), online: <todayonline.com>.  

[3] Yonghee Kim, “The Adoption of Mobile Payment Services for “Fintech”” (2016) 11:2 IJAER 1058.

[4] Ibid.

[5] Ross P Buckley & Ignacio Mas, “The Coming of Age of Digital Payments as a Field of Expertise” (2016) 1 U Ill J L Tech & Pol’y 71.

[6]  Ibid at 78.

[7] Ibid at 71.

[8] Interview of Franziska Ohnsorge, Chief Economist, Development Propsects Group, World Bank by Grzegorz Siemionczyk (21 January 2016) at online: <www.worldbank.org/en/news/opinion/2016/01/21/
it-is-not-then-that-the-global-economy-has-returned-to-normal> .

[9] Christopher Chan, “Hedging the Aging Society: Challenges to the Insurance Market and Law in Singapore” (2016) [unpublished, archived at Social Science Research Network Electronic Library] at 13-14.

[10] Ibid at 1.

[11] Chan, supra note 9 at 14.

[12] Sarah Kogan, “Singapore’s Legal Sector: The Fight for Market Share”, The Business Times [of Singapore] (15 February 2015), online: <businesstimes.com.sg> .

[13] Buckley & Mas, supra note 5 at 73.

[14] Ibid at 75.

[15] Ibid at 87.

[16] Ibid at 77.

[17] Weihuan Zhou, Douglas W Arner & Ross P Buckley, “Regulation of Digital Financial Services in China: Last Mover Advantage?” (2015-2016) 8: Tsinghua China L Rev 25 at 35.

[18] Alan Gelb, “Balancing Financial Integrity with Financial Inclusion: the Risk-based Approach to Know Your Customer” (2016) Center for Global Development Policy Paper 74.

[19] Ravi Menon, “Singapore’s Fintech Journey—Where We are, What is Next” (Address at Singapore FinTech Festival—FinTech Conference, 16 November 2016), online: <www.mas.gov.sg/News-and-Publications/Speeches-and-Monetary-Policy-Statements/Speeches/2016/Singapore-FinTech-Journey.aspx>.

[20] Buckley & Mas, supra note 5 at 79. 

[21] Michael Mainelli & Alistair Milne, “The Impact and Potential of Blockchain on the Securities Transaction Lifecycle” (2016) SWIFT Institute Working Paper No 2015-007 at 3.

[22] Monetary Authority of Singapore, “Overview” <www.mas.gov.sg/About-MAS/Overview.aspx> (accessed 28 November 2016).

[23] “The Fintech Revolution”, The Economist (9 May 2015), online: <economist.com> .

[24] Menon, “A Smart Financial Centre”, supra note 1. 

[25] Martin Arnold & Sam Fleming, “Regulation: Banks Count the Risk and Rewards”, Financial Times (November 14, 2014), online: <ft.com> .

[26] Arnold & Fleming, supra note 25.

[27] Ibid.

[28] “Piecemeal Regulation is Hindering US Fintechs”, Business Insider (17 October 2016), online: <businessinsider.com> .

[29] Monetary Authority of Singapore, Media Release, “MAS Issues “Regulatory Sandbox” Guidelines for FinTech Experiments” (16 November 2016), online: MAS Media Releases <www.mas.gov.sg/News-and-Publications/Media-Releases>.

[30] Weilun Soon, “MAS Issues Guidelines for Fintech Regulatory Sandbox”, The Business Times [of Singapore] (16 November 2016), online: <businesstimes.com.sg> .

[31] Jennifer Windh, “Peer-to-peer Payments: Surveying a Rapidly Changing Landscape” (2011) Federal Reserve Bank of Atlanta at 17.

[32] Huiwen Ng, “$1m Lost to Online Purchase Scams”, The Straits Times (28 November 2016), online: <straitstimes.com> .

[33] Windh, supra note 31 at 18. 

[34] Buckley & Mas, supra note 5 at 86. 

[35] Joseph E Stiglitz, “The Role of the State in Financial Markets” (Paper delivered at the World Bank Annual Conference on Development Economics, 1993), (1994) Proceedings of the World Bank Annual Conference on Development Economics 19 at 33.


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The Case For Removal Of HIV-Related Immigration Restrictions In Singapore

by Foo Ee Yeong Daniel

INTRODUCTION

In 1998, persons suffering from Acquired Immune Deficiency Syndrome (AIDS) or infected with Human Immunodeficiency Virus (HIV) were explicitly listed as “prohibited immigrant[s]” under s 8(3)(ba) of Singapore’s Immigration Act1 to protect Singapore’s public health in the wake of a global HIV epidemic.2 This manifested in a ban on HIV-positive foreigners from entering the country. While the ban on foreigners on short-term visit passes was quietly lifted in 2015, persons with HIV or AIDS are still prohibited from long-term visits to Singapore – the official reason being that “the public health risk posed by long-stayers is not insignificant”.3 This article aims to study the reasons for s 8(3)(ba) and the existing HIV-related immigration restrictions, and submits that they should be repealed and removed respectively.

THE CASE FOR REMOVAL OF HIV-RELATED IMMIGRATION RESTRICTIONS

A. The restrictions are an outdated model intended for an unpredictable epidemic

It is submitted that the restrictions on HIV-positive immigrants no longer serve their original purpose as a response to an unpredictable epidemic on a global scale. The context in which HIV-positive foreigners were listed as “prohibited immigrants” in 1998 concerned a dramatic increase in the number of HIV infected residents: Singapore had almost 200 reported cases, and more alarmingly, 42 new cases of HIV and AIDS were reported in 1991, vis-à-vis the 61 cases between 1985 and 1990. Against this backdrop of domestic increase in HIV infections was our large number of HIV-positive foreigners: 2,813 foreigners had been tested to be HIV-positive while in Singapore, 80% of whom were work permit holders and applicants.4 The “policy on the repatriation and permanent blacklisting of HIV-positive foreigners”5 was Singapore’s consequent response to that global crisis, as we were perceived to be “particularly vulnerable… [given] people coming into Singapore in far greater numbers, and Singaporeans [travelling] abroad even more frequently”.6

It is submitted that this policy is outmoded. Today, the rate of new HIV cases has generally been constant at about 450 new reported cases each year since 2008.7 The rate of HIV infection is generally maintained unlike in the past; treatment and control measures have made the disease much more predictable, and the heavy response we opted for decades ago is arguably inappropriate given the relatively moderate scale at which HIV spreads today.

Furthermore, immigration restrictions have become a disproportionate response to the severity of HIV, which today has reduced dramatically. The policy against HIV-positive foreigners was recommended when HIV was “new, fatal and no effective treatment was available”;8 HIV was considered a “death sentence”.9 This is no longer the case today as “more than 5,000 Singapore residents [live] with HIV” and there is “effective treatment for the disease”. In fact, HIV-positive persons on antiretroviral therapy may be “successfully virally suppressed” and “not infectious to other people”. In this vein, it is submitted that any prohibition on HIV-positive immigrants despite their non-infectiousness is disproportionate to the alleged “public health risk” they pose.

B. The restrictions are ineffective in reducing the spread of HIV

Increasingly, it is clear that Singapore’s policy against HIV-positive immigrants does not reduce the type of public health risk it purports to.11 Since 97% of HIV contraction in Singapore is through sexual intercourse,12 the main persons at risk are sexual partners of infected persons, who only transmit HIV via certain kinds of sexual behaviour; no health risk is posed to the general public through casual contact. Persons infected with HIV are thus significantly different from persons infected by other contagious diseases that make their very “presence in Singapore dangerous to the community”,13 and should not warrant the same immigration restrictions they do. Most importantly, punitive measures such as immigration restrictions have been proven to be relatively ineffective in preventing transmission, and in fact “may limit the uptake of HIV voluntary testing and hinder adherence to HIV treatment”.14 In this vein, it is submitted that an HIV-positive person should not be banned from long-term stay in Singapore while a person suffering from a different type of sexually transmitted disease is not, since these are all ‘controlled’ diseases that are not effectively reducible by immigration restrictions.

Furthermore, concerns that foreigners (aware or unaware of their HIV status) may (intentionally or unintentionally) spread the disease would generally be well controlled under Singapore’s strict domestic laws against HIV infection.15 In particular, an immigrant who knows he has HIV,16 or for whatever reason does not know he has HIV but has reason to believe that he has or has been exposed to a significant risk of infection, must disclose this risk to his sexual partner before engaging in sexual activity, or be liable to criminal charges as per s 23(2) of the Infectious Diseases Act.17

In any case, the risk of HIV spreading is greatly ameliorated by the availability of anonymous HIV testing, increasing public education about HIV in schools and workplaces,18 guidelines to manage HIV at the workplace, and advancements in public health practices19 – all of which would be readily available to both the HIV-negative populace and HIV-positive immigrants to mutually prevent infection.

In this vein, it is further submitted that the distinction between the public health risk posed by short-term visitors and long-term visitors is arbitrary; the duration of one’s stay is much less a variable of a person’s infectiousness, compared to more important factors such as one’s knowledge, disclosure and treatment of the disease – all of which are generally well regulated in Singapore.

While it is acknowledged that HIV infection rates are still higher than before Singapore implemented its current HIV-related immigration restrictions in 1998, it is submitted that lifting our immigration restrictions would have negligible effect on the current domestic spread of HIV. Firstly, overall HIV infection rates among adults are stabilising worldwide;20 Singapore’s HIV infection rates are not out of the ordinary, and removing HIV-related immigration restrictions would not reasonably lead to an exceptionally large number of HIV-positive foreigners entering Singapore. Secondly, the spread of HIV carried by immigrants may be circumscribed, for instance, by continuing to require mandatory testing for long-term visitors21 and/or subjecting them to the same laws relating to HIV infection as those applying to all Singaporeans.

C. Repealing s 8(3)(ba) would reduce stigma and better satisfy public conscience

It is submitted that removing HIV-related immigration restrictions would better achieve Parliament’s underlying objective to promote inclusiveness and reduce stigma today. When Parliament crafted HIV-related laws, they were concerned with treating patients “humanely and with great compassion” as they and their loved ones undergo “great suffering and social stigma”.22 However, this had to be balanced with “protecting innocent people” from contracting HIV,23 which led to prohibitions on HIV-foreigners from entering the country while HIV-positive Singaporeans remained to seek treatment at home. Noticeably, this by implication seems to unfairly characterise HIV-positive immigrants as a group distinct from “innocent people” in society, even though HIV-positive persons are in many cases victims of circumstance. Given our many health and social support systems, as well as the treatability of HIV that may even render an infected patient ‘risk-free’, the protection of both HIV-positive and negative persons today is not a zero-sum game. It is thus submitted that Parliament’s previous concern about balancing the interests of HIV-positive and negative persons today should be adjusted such that HIV-related immigration restrictions are removed.

Further, Parliament should repeal s 8(3)(ba) as a matter of public conscience. Since the late 20th Century, HIV-positive persons have ranged from married wives infected by their husbands, to children infected perinatally, to blood donees via transfusion, to health care workers via clinical procedures.24 97% of HIV contraction in Singapore is through sexual intercourse, and this is not limited to individuals engaging in high-risk sexual behaviour – often victims have sexual partners’ whose HIV status was either undisclosed or unknown. It therefore seems unjust that the HIV-positive foreigner is labelled a “prohibited immigrant” alongside charges on the public,26 outlaws,27 prostitutes,28 procurers,29 vagrants,30 and persons seeking to overthrow the government by violence31 as our laws should seek treat them with compassion accordingly.

To this end, it is submitted that HIV-positive persons should be allowed to enter Singapore as ‘lawful’ immigrants and stay long-term should they choose to, without being ‘exceptionalised’ and ‘othered’ as a group whose mere presence is a danger to public health – a widespread perception that is taught as untrue, and would be better proven with the removal of s 8(3)(ba). Such a legal reform would enhance the inclusiveness of our whole community, which includes both HIV-positive and negative persons.

CONCLUSION

Removing HIV-related immigration restrictions would not be an unprecedented policy, and Singapore has the benefit of gleaning from the experience of many other countries that have done this. From 2000 to mid-2013, there was a more than 50% reduction in the number of territories with HIV-related travel restrictions – from 96 to 43.32 In particular, the United States had a similar experience to Singapore’s: first applying a blanket ban on HIV-positive foreigners given its large influx of immigrants and the explosion of the AIDS epidemic in the 1980s, before removing the restrictions on short-term travellers in 2006, and eventually removing the ban entirely in 2010 – a process catalysed by vocal opposition from the international community.33 Changing a law typically takes time and effort, and the process requires the community to voice its concerns and what it thinks is right. This article hopes to aid in this respect, as part of former and ongoing efforts by other members of the community to do the same.


[1] Immigration Act (Cap 133, 2008 Rev Ed),

[2] Parliamentary Debates Singapore: Official Report, vol 69, col 939 (4 September 1998) (The Minister for Home Affairs (Mr Wong Kan Seng)),

[3] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>.

[4] Parliamentary Debates Singapore: Official Report, vol 70, col 24 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[5] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>

[6] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[7] The Straits Times, “455 new cases of HIV reported in Singapore in 2015, most patients got virus through sex”, online: <http://www.straitstimes.com/singapore/health/455-new-cases-of-hiv-reported-in-singapore-in-2015-most-patients-got-virus-through>.

[8] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>

[9] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[10] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>.

[11] Parliamentary Debates Singapore: Official Report, vol 69, col 937 (4 September 1998) (The Minister for Home Affairs (Mr Wong Kan Seng)).

[12] The Straits Times, “455 new cases of HIV reported in Singapore in 2015, most patients got virus through sex”, online: <http://www.straitstimes.com/singapore/health/455-new-cases-of-hiv-reported-in-singapore-in-2015-most-patients-got-virus-through>.

[13] s 8(3)(b), Immigration Act (Cap 133, 2008 Rev Ed).

[14] UNAIDS Report 2013, page 92.

[15] ss 22 to 25A of the Infectious Diseases Act (Cap 137, 2003 Rev Ed).

[16] s 23(1) of the Infectious Diseases Act (Cap 137, 2003 Rev Ed)

[17] ss 23(2) of the Infectious Diseases Act (Cap 137, 2003 Rev Ed).

[18] Parliamentary Debates Singapore: Official Report, vol 86, col 1969 (11 January 2010) (Mr Khaw Boon Wan).

[19] This is similar to the considerations made by the United States in deciding that HIV infection is no longer a “significant public health risk”, as per the Department of Health and Human Services, “Medical Examination of Aliens – Removal of Human Immunodeficiency Virus (HIV) Infection From Definition of Communicable Disease of Public Health Significance”, online: <https://www.gpo.gov/fdsys/pkg/FR-2009-11-02/html/E9-26337.htm>.

[20] AVERT, “Global HIV and AIDS Statistics”, online: <http://www.avert.org/global-hiv-and-aids-statistics>.

[21] Immigration & Checkpoints Authority, “Medical Examination for Successful Applicants of Employment Pass, Long-Term Immigration Pass and Permanent Residence”, online: <https://www.ica.gov.sg/news_details.aspx?nid=4497>.

[22] Parliamentary Debates Singapore: Official Report, vol 70, col 29 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[23] Parliamentary Debates Singapore: Official Report, vol 70, col 34 (26 February 1999) (Dr Lily Neo (Kreta Ayer-Tanglin)).

[24] Parliamentary Debates Singapore: Official Report, vol 70, col 25 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[25] The Straits Times, “455 new cases of HIV reported in Singapore in 2015, most patients got virus through sex”, online: <http://www.straitstimes.com/singapore/health/455-new-cases-of-hiv-reported-in-singapore-in-2015-most-patients-got-virus-through>.

[26]Immigration Act (Cap 133, 2008 Rev Ed), s 8(3)(a).

[27]Ibid at s 8(3)(d).

[28] Ibid at s 8(3)(e).

[29] Ibid at s 8(3)(f).

[30] Ibid at s 8(3)(g).

[31] Ibid at s 8(3)(i).

[32] Global Report UNAIDS report on the global AIDS epidemic 2013, page 92, online: <http://www.unaids.org/sites/default/files/media_asset/UNAIDS_Global_Report_2013_en_1.pdf>.

[33] National Institutes of Health, United States National Library of Medicine, “The Impact of Removing the Immigration Ban on HIV-Infected Persons”, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3263303/>.


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The Nature and Scope of the Right to Vote in Singapore

by Feng Zheyi

Democracy (from the Greek dêmos “people” and krátos “rule”) is premised on popular vote. Government decisions are made by the people themselves, their elected representatives, their nominees, or some combination of the above. The right of the people to vote, either in referendums or in elections, are hence fundamental and central to any democracy – democracy without voting is simply a contradiction in terms.1

One might expect this centrally important right to be enshrined in constitutional documents, and not be subject to much confusion. However, in Singapore, the precise nature and the scope of citizens’ right to vote remains murky, a rather unsatisfactory state of affairs. It is suggested that the inclusion (by constitutional amendment) of an explicit constitutional right to vote would reduce much of the surrounding uncertainty.

THE STATUS QUO

The right to vote is not explicitly recognised in the Constitution, but has been explicitly declared by Minister for Law Mr K Shanmugam as an implied constitutional right.2 More recently, the Court of Appeal in Vellama d/o Marie Muthu v Attorney-General3 opined (in dicta) that voters in a constituency are “entitled to have a Member representing and speaking for them in Parliament”,4 somewhat mirroring the aforementioned declarations by the Minister in Parliament.

The right to vote is further explicitly detailed in the Parliamentary Elections Act [PEA],5 which provides that “any person who [is qualified to vote] shall be entitled to have his name entered or retained in a register of electors in that year".6 The PEA further states the conditions providing for the qualification and disqualification of voters, and provides the electoral procedure. It seems clear that each citizen who qualifies under the PEA has a private statutory right to vote.

However, it is uncertain if a constitutional right to vote exists, and even if it does, the precise nature and scope of such a right remain unclear. While the Minister for Law and the Attorney-General may explicitly recognise a constitutional right to vote,7 neither office is vested with the constitutional power to make definitive pronouncements on constitutional interpretation – only the Courts may do so.8

While there seems to be judicial recognition in Vellama9 of a public constitutional right to vote,10 the pronouncement was ultimately obiter and not ratio (albeit rather strong obiter). Furthermore, the Court in Vellama did not clearly rule if citizens also have a private (i.e. personal) constitutional right to vote, one that is capable of being enforced by individual citizens who claim that their right to vote has been infringed upon by executive or legislative actions. The Court in Vellama merely suggested the existence of such a private constitutional right,11 though not making a definitive pronouncement on its existence or its scope.

Whether the private right to vote is constitutional or statutory is of monumental importance. The public right to vote is arguably satisfied as long as elections are held in accordance with the PEA. If a citizen’s private right to vote is merely statutory, it can arguably be circumvented by the legislature amending the qualification (or disqualification) provisions in the PEA12 (assuming that these amendments are not unconstitutional in some other way). However, should such a private right to vote be constitutional, a citizen would likely be able to successfully quash a legislative amendment that removes his or her ability to vote.

A citizen’s private right to vote is already significantly curtailed by the PEA. Would-be voters can be disqualified if they are accused of or serving a sentence punishable with a 12 months’ imprisonment or more,13 or if they had not voted in a previous election and had not registered to be restored to the register of electors,14 for which they have to provide a ‘good and sufficient reason’ or pay a sum of money.

Under the current status quo, it remains unclear if the right to vote is constitutionally protected, and if so, what the ‘irreducible core’ of the right to vote – that which cannot be modified or infringed upon by legislative or executive action – is. In other words, when is legislative or executive action impacting a citizen’s right to vote unconstitutional?

AN “IRREDUCIBLE CORE” OF THE RIGHT TO VOTE?

The procedural aspects of citizens’ rights to vote are detailed in the PEA, all of which are merely statutory in nature, and can be legislatively amended, unless any of these provisions are within the ‘irreducible core’ of the right to vote.15

Indeed, the PEA provides many of the conditions of the electoral process, including detailing the qualifying criteria for voters,16 providing that each voters has exactly one vote,17 and providing that the elections be held by secret ballot.18 However, as the scope of the constitutional right is still unclear, drastic changes to the PEA which significantly curtail citizens’ rights to vote (such as by increasing the voting age from 21 to 40), change the impact of voting (such as by giving some classes of citizens a larger entitlement of ballot papers), or affect each citizen’s tendencies to choose (by removing secret votes) are all prima facie constitutional. While these hypothetical amendments are politically undesirable (and Parliament can be said to be politically constrained), they can still arguably be legitimately made without any constitutional amendments. If this is truly the case, then it is arguable that the right to vote does not enjoy the “highest possible legal protection”19 in the land typically afforded to a constitutional right, unlike what the Minister for Law alluded to in his speech.20

What then, is within the ‘irreducible core’ of the right to vote? There is scant guidance from judicial or Parliamentary pronouncements, except from the rather narrow dicta in Vellama which states that the Prime Minister “cannot… [be] completely free to do as he pleases, even to the extent of delaying indefinitely the calling of a by-election”,21 although he maintains a “substantial measure of discretion”.22 This “substantial measure of discretion” may also be said to apply to the legislature seeking to amend the PEA, since it is typically afforded a “strong presumption of constitutional validity”.23

At the moment, it seems that the ‘irreducible core’ of the right to vote arguably only comprises “elections being held within a reasonable period”, and, barring exceptional circumstances, it is unlikely that a constitutional challenge of legislative or executive acts which relies on the constitutional right to vote will succeed.

THE VALUE OF AN EXPLICIT CONSTITUTIONAL RIGHT TO VOTE

Much of the uncertainty regarding the right to vote can be remedied by inserting an express Article into the Constitution to lay out and protect the right to vote. In this regard, I disagree with the Minister for Law’s comments24 that the express recognition of this right is unnecessary as it is already well recognised as an implied right – the precise nature and scope of this right is far from clear, and should be recognised explicitly, especially given its fundamental and central nature in a democratic society. The explicit recognition of this “Super-Right”25 would also “affirm its primary importance”26 and provide it with the constitutional status and protection it deserves.


[1] Nominated Member of Parliament Prof. Thio Li-ann made a similar point in Parliament when she said: “Voting rights are the hallmark of democracy; it is the Political Right of rights, a Super-Right necessary for democracy to function authentically.” Parlimentary Debates Singapore: Official Report, vol 85 at col 3119 (12 February 2009) (Prof. Thio Li-ann).

[2] Parliamentary Debates Singapore: Official Report, vol 85 at col 3157 (13 February 2009) (Mr K Shanmugam).

[3] Vellama d/o Marie Muthu v Attorney-General, [2013] 4 SLR 1 [Vellama].

[4] Ibid at [79].

[5] Parliamentary Elections Act (Cap 218, 2011 Rev Ed Sing).

[6] Ibid at s 5(1).

[7] In his speech, the Minister for Law noted that he had “consulted the Attorney-General who agrees with [him] on this.” Supra note 2.

[8] Constitution of the Republic of Singapore (1999 Rev Ed), art 93.

[9] Supra note 3 at [27].

[10] A public right is one which is “shared in common with other citizens” (Vellama at [33]), and would arguably only require that elections be held (i.e. an individual cannot assert that his public right to vote is violated if an election is held, even if he is personally denied his right to vote – he would have to rely on a private or personal right).

[11] Supra note 3 at [27], [37].

[12] Supra note 5 at ss 5, 6, 7.

[13] Ibid at s 6(1A).

[14] Ibid at s 43(3).

[15] If one of the provisions within the PEA is also part of the constitutional right to vote, then a legislative amendment that purports to remove or change that provision may be unconstitutional.

[16] Supra note 5 at s 5.

[17] Ibid at s 42(1).

[18] Ibid at s 42(3).

[19] Supra note 2 at col 3158.

[20] Ibid.

[21] Supra note 3 at [78].

[22] Ibid at [87].

[23] Public Prosecutor v Taw Cheng Kong, [1998] 2 SLR (R) 489 at [60].

[24] Supra note 2.

[25] In Prof. Thio Li-ann’s words, supra note 1.

[26] Ibid.

 


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Observations on the Protection of Chinese Consumer Rights in our Age of Misinformation

by Angeline Ang

I. INTRODUCTION

On April 12, 2016, 21-year-old Chinese student Wei Zexi died after a web search led him to undergo experimental treatment for cancer at a military hospital. Wei’s online account of his abysmal experience at the clinic went viral.1 The resulting media furore was largely directed at Baidu, the search engine Wei used. The majority of social media users vilified Baidu for being indirectly responsible for Wei’s death, as it had allowed the highest bidder to place advertisements for unsafe medical procedures on its site. In response, the government was quick to limit Baidu’s advertising capabilities, with the result that price is no longer the sole determinant in ranking search results (among other requirements).2 This article will evaluate the extent to which existing legal measures safeguard the rights of Chinese consumers. It will also propose solutions to protect Chinese citizens – namely, education and a relaxation of censorship laws.

II. HOW EFFECTIVELY DO CURRENT MEASURES SAFEGUARD CHINESE CONSUMER RIGHTS?

A. China's Medical Advertising Laws

Article 14 of the Advertisement Law of the People’s Republic of China [Advertisement Law] states that medical advertisements cannot include information about the medicine’s effectiveness, any unscientific assertions, or names or images of medical institutions, doctors or patients.3 Those who violate Article 14 may have to pay a fine or remove their advertisements.4 Article 34 of Advertisement Law states that advertisements for medicines and medical apparatuses shall be examined by relevant administrative departments before they are published and are prohibited from being published without examination.5 Those who publish advertisements without obtaining approval shall have to cease publication and pay a fine.6

However, given China’s suboptimal regulatory environment7 and the overwhelming number of advertisements published daily, it is clear that this provision will be of limited efficacy unless more government officials are hired to assess the suitability of advertisements. A system of checks and balances also needs to be implemented to ensure that the officials do not take bribes from advertisers.

B. China’s Consumer Protection Laws

Chinese consumers who have been harmed by deceptive advertisements may choose to sue the advertiser. Under Article 55 of the Law of Civil Procedure of the People’s Republic of China, if there are many plaintiffs who seek to file a claim against a defendant, the plaintiffs may elect representatives from among themselves to proceed with the litigation and the people’s court may issue a public notice inviting those entitled to participate in the action to register with the people’s court.8 Furthermore, the Consumer Rights Protection Law of the People’s Republic of China states that the China Consumers’ Association and authorised consumer associations shall be able to bring suit for acts which harm the legitimate interests of consumers.9 This is fairly similar to the situation in the United States where class action lawsuits often yield large settlements. Although no amount of money can undo the harm caused by shady medical products, a monetary award may ease the financial burden of those who have spent much of their life savings on such products.

The Supreme People's Court Interpretation on Several Issues Concerning the Application of Law in the Trial of Public Interest Consumer Civil Litigation Cases10 provides guidance for practitioners as to how to proceed in consumer litigation cases. However, it is equally important for such information to be communicated to the general public, to ensure that consumers are aware of the full extent of their rights. The caveat here is that many patients, particularly the lower-income and middle-class, may not be able to afford the legal fees even if they are aware of their legal rights. Furthermore, not every case will result in a hefty award of damages; this will depend on the financial status of the defendant.

C. A Loophole is Closed

After Wei’s death, a final push was made to completely end all military-provided paid public services, closing a loophole which allowed military hospitals to contract out services to private operators.11 This was the case at the cancer clinic in the military hospital where Wei underwent treatment. The hospital (the Second Hospital of Beijing Armed Police Corps) had contracted out services at its cancer clinic to a private operator which was part of the Putian-owned network of private hospitals.

The rise of the Putianese hospitals has partly been aided by the government’s underinvestment in public hospitals – over 8,000 of China’s 11,514 private hospitals are Putianese.12 Given the ubiquity of such hospitals and the fact that many are poorly run, the government should launch an investigation into the medical practices of such hospitals – revoking licenses if necessary – and accelerate its implementation of healthcare reforms. These measures would tackle the root cause of the problem of misleading advertisements more effectively than imposing restrictions on Web giants like Baidu, which can hardly be expected to possess the expertise necessary to vet healthcare advertisements. It is inevitable that some undesirable listings will slip through Baidu’s net.

That said, an investigation and healthcare reforms would undoubtedly take years and would need to be accompanied by a diminishing tendency towards corruption. For now, the new advertising rules are a timely intervention.

III. HOW SHOULD CHINA SHIELD CONSUMERS FROM THE DANGERS OF INACCURATE ADVERTISING?

Given the rise in ownership of mobile devices in China13 and increased exposure to online advertisements, it is apposite to consider other policies which could keep patients out of harm’s way. The first would be a vigorous campaign to educate consumers about the pitfalls of consuming drugs or undergoing procedures that seem too good to be true. Apart from reaching high school and university students, notices can also be disseminated at workplaces and broadcasted over television, reaching the middle-aged and elderly. Efforts should be concentrated in areas with a high density of private hospitals to maximise impact.

Patients who seek medical advice on the Internet largely do so out of desperation – as was the case with Wei and his parents – and are likely to have consulted reputable doctors before pursuing other options. It would thus be helpful if the medical profession were to be more vigilant in warning patients about the dangers of seeking medical treatment via unregulated means before patients are inclined to do so. Netizens’ comments in the aftermath of the Baidu saga show that many have high expectations of the advertisements they see in print and non-print media. A sustained counter-advertising campaign by the government could go a long way towards tempering such expectations. In the long term, education will have the added benefit of inculcating a sense of personal responsibility among Chinese consumers, ensuring that they thoroughly research medical products before purchase. Secondly, a relaxation of Chinese Internet censorship policies – known colloquially as the ‘Great Firewall of China’ – would enable consumers to undertake comprehensive research on various medical procedures and products. Currently, websites like Google and The New York Times are banned in China and Baidu has virtually monopolised the sphere of online advertising, severely limiting netizens’ options. As Wei himself noted in his online post, he had to rely on a Chinese friend in the US to use Google to search for information on his treatment after the treatment failed. It was only then that he discovered that “American hospitals had long stopped using the technology due to poor results in clinical trials”. In Wei’s case, access to Google prior to undergoing treatment may very well have saved his life.

While it is possible to bypass the Internet censorship, it would be patently unfair if the Internet savvy alone were able to access basic healthcare information. (It is worth noting that Wei himself was a computer science student, yet he had to rely on a friend in the US to use Google.) Wide swathes of the population would be left vulnerable to the predatory practices of unscrupulous private operators. China’s political motives for Internet censorship should not automatically preclude the possibility of making the ‘Great Firewall of China’ more porous and allowing users to access a greater variety of websites. Consumers who are better informed are far less likely to undergo unsafe medical procedures. This would alleviate the burden on China’s burgeoning healthcare system and improve China’s international image.

IV. CONCLUSION

Wei’s death led many to blame Baidu for its ‘evil’ practice of allowing healthcare providers to pay large sum for highly-ranked advertisements on its site. It is arguable that some of this blame is misplaced as the root cause of the problem lies in China’s draconian censorship practices, its underfunded healthcare system and the private operators which have crept in to fill the vacuum. As with any complex issue, there are no quick or easy answers. Only time will tell whether the Chinese authorities will be able to muster the political will and resources to ensure that their countrymen are able to avoid a fate like Wei’s.


[1] Paul Carsten, “China curbs Baidu healthcare ads business after student's death”, Reuters (May 9 2016) online: Reuters <http://www.reuters.com/article/us-baidu-regulations-idUSKCN0Y014U>.

[2] Ibid.

[3] Advertisement Law of the People's Republic of China, 1994, Art 14.

[4] Ibid, Art 41.

[5] Supra note 3 at Art 34.

[6] Supra note 3 at Art 43.

[7] E.g. the 2008 tainted-milk scandal or the recent discovery of sales of millions of illegal vaccines: Megha Rajagopalan, “China bars vaccine sales by drug wholesalers after scandal: state media”, Reuters (April 26 2016) online: Reuters <http://www.reuters.com/article/us-china-drugs-vaccines-idUSKCN0XM1FV>.

[8] Law of Civil Procedure of the People’s Republic of China, 1991, Art 55.

[9] National People’s Congress of the People’s Republic of China, Decision of the Standing Committee of the National People’s Congress on Revision of the Consumer Rights Protection Law of the People’s Republic of China as promulgated on October 23, 2013, effective March 15, 2014, Art 47.

[10] Legal Interpretation [2016], No 10.

[11] Ding Xuezhen, “Military leadership meets to hash out end to paid services”, Global Times (May 9 2016) online: Global times < http://www.globaltimes.cn/content/982007.shtml>. 

[12] Kou Jie, “Military cancer clinic deal under scrutiny”, Global Times (4 May 2016) online: Global Times < http://www.globaltimes.cn/content/981236.shtml>.

[13] Jacob Poushter, “Smartphone Ownership and Internet Usage Continues to Climb in Emerging Economies”, Pew Research Center (July 25 2016) online: Pew Global <http://www.pewglobal.org/2016/02/22/smartphone-ownership-and-internet-usage-continues-to-climb-in-emerging-economies/>


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Justice Steven Chong delivers 28th Singapore Law Review Annual Lecture

Justice Steven Chong delivers 28th Singapore Law Review Annual Lecture

On the 8th of November 2016, the Honourable Justice Steven Chong delivered the 28th Singapore Law Review Annual Lecture, titled “Recalibration of the Death Penalty: Origin, Ramifications and Impact”. The Lecture focused on the amendments to the mandatory death penalty scheme under the Misuse of Drugs Act and the Penal Code, both of which were amended in 2012.

Dead in the Water: The Nautical Fault Exemption of the Hague-Visby Rules

by Phoebe Leau

The Hague-Visby Rules (“HVR”), devised nearly a century ago, are an anachronism. Today, they precede at least two other treaties1 which were contrived with the intention to modernise existing laws on maritime carriage.2 No doubt the HVR are a wellspring of academic controversy – they have been ruthlessly branded as “outdated”3 and nonsensical.4 The opprobrium is not wholly unjust: the modern phenomenon of containerisation (affreightment of goods by container), for instance, makes a complete farce5 out of the HVR’s exclusion of on-deck cargo.6

This essay addresses, in particular, Art IV(2)(a), which encapsulates the nautical fault exemption (“NFE”). The NFE immunises carriers from liability for loss or damage in consequence of any “act, neglect, or default of the master … or [its] servants … in the navigation or … management of the ship.” Broadly, it is theorised that the NFE has long outlived its utility. Its continued preservation therefore jeopardises cargo interests.

I. IS THE NFE AN ARTEFACT OF THE PAST?

Before the genesis of the NFE, carriers bore strict liability7 for all damage to cargo interests despite less-sophisticated tools of communications preventing them from managing the ship or its crew during voyage.8 Increasingly, carriers resorted to contractual exemption clauses to relieve themselves of extensive liability,9 to the detriment of cargo interests. The HVR was thus a legal mechanism by which the law attempted to strike a delicate balance between carrier and cargo interests: it establishes an ‘irreducible core’ of carrier obligations, but allows carriers to escape liability in exceptional circumstances,10 such as where carriers experience nautical fault.

At first blush, the NFE seems defensible. It serves as an apportionment of risks between cargo and carrier interests, such that the latter will not bear the full brunt of liability for crew, cargo, and vessel in a collision.11 Additionally, since carriers tend not to be involved in the carriage of goods once the vessel departs from the port of loading, exonerating carriers from responsibility for the actions of those actually involved in the carriage is ostensibly fair.

The above, however, erroneously assumes that carriers remain incapable of controlling the vessel whilst it traverses the high seas today. In reality, it is evident that technological revolution renders the NFE otiose. Contemporary satellite technologies, for instance, enable continuous monitoring and control of ship operations (including the actions of the ship’s crew) through, inter alia, radar and GPS.12 Carriers have also been held to comparatively higher standards of vessel management.13 Technology has rectified the very problem the NFE sought to alleviate – that a shore-based carrier loses control of the vessel upon its departure from the port.14 It also diminished the enormity of risks borne by carriers during the period of carriage, as increased control of the ship generally reduces risks of mischief and risks to cargo, crew or vessel.

In principle, risks should be borne by the party who is in a better position to obviate such loss.15 Against contemporary developments, the carrier, who is actually able to supervise the cargo while it remains at sea (through, inter alia, improved maritime technology or appointing competent mariners), is thus better poised to assume the risk of cargo damage. However, the NFE continues to foist upon cargo interests the burden of such risks, even though cargo owners can do effectively nothing to minimise or eliminate risks while the goods are in transit. It follows that, firstly, the NFE is excessively rigid and fails to accommodate changes to maritime practices; secondly, that risk allocation under the NFE is manifestly prejudicial to cargo interests, especially when one considers the broad range of actions (any “acts, neglect, or default”) contemplated by the provision.

II. OTHER SALIENT CRITICISMS

The NFE has been described as “conceptually awkward”, as it enables carriers to benefit from proving the negligence of shipboard personnel16 who are typically its agents17 and/or employees. This is arguably an aberration: the party which has access to how the loss occurred is ordinarily not required to show the fault of others, but rather that such loss occurred independently of its own fault.18 The NFE also defies time-tested legal doctrines such as vicarious liability19 (of the carrier through the errant mariner), and it is not altogether clear why the shipping context should be the exception to the norm.20

Separately, the dissonance between the HVR and other international conventions for carriage of goods is conspicuous. The Hamburg Rules and the Rotterdam Rules have all expunged the NFE.21 Moreover, no equivalent of the NFE exists in treaties governing carriage by road,22 rail,23 and air24 – where carriers are prima facie liable until they prove the converse.25 Significantly, the Warsaw Convention governing aviation transport was drafted in the same time period as the HVR; the defence of negligent navigation of the aircraft was, however, eliminated by the Hague Protocol of 1955. This absence of the NFE from these treaties per se underpins the fact that the Art IV(2)(a) is plainly antiquated.

III. IS THE NFE BEYOND SALVATION?

In practice, Courts are loath to interpret the NFE too liberally,26 being very much alive to its notoriety. Judicial discretion in construction is thus exercised to limit the applicability of the NFE. The question is whether such discretion as exercised is capable of salvaging the inherent deficiencies in Art IV(2)(a). While acknowledging that ‘reading down’ the NFE can impede the force and frequency with which the NFE is applied, this writer contends that it is not.

As a preliminary note, Art IV(2)(a) governs all “[acts], neglect, or default”, and is not accompanied by any ‘qualification’ clause27 specifying acts which fall outside the provision. By necessary implication, Art IV(2)(a) would exempt liability for wilful, intentional or reckless conduct.28 The all-encompassing scope of Art IV(2)(a) is somewhat alarming. However, even if it does exclude intentional transgressions,29 its ambit remains unduly expansive. This is immediately apparent from The Tasman Pioneer,30 in which the Court opined that the NFE is only inapplicable to “damage with actual or imputed intent”, as envisaged in Art IVbis(4).31 It was further clarified that a carrier need not prove the bona fides of persons enumerated in the provision to avail himself of protection conferred by the NFE.32 On the facts, the master conducted himself disingenuously in pursuance of personal benefit, but not an intention to cause harm.33 Absent the latter, the carrier could not be liable for the master’s mala fides – which include, inter alia, the falsification of the vessel’s course plot post-collision and attempted concealment.

Respectfully, the ruling in The Tasman Pioneer bodes ill for cargo interests. It is not disputed that masters are agents of the shipowner and, that under agency law, principals are not invariably liable for the deeds of its agent. However, this case signifies that cargo interests have effectively no recourse against the wrongdoings of shipboard personnel, unless they can show that the carrier’s agents or servants acted with actual or imputed intention to cause damage.34 From the perspective of cargo interests, this is a nearly insurmountable evidentiary barrier. How can cargo owners, who are not usually privy to ship management and navigation at sea, be realistically expected to meet their burden of proof? In any case, there is no logical reason why a carrier should be liable for its servant’s barratry, but escape liability for other morally objectionable conduct of a lesser degree than barratry. The generosity with which carriers are treated therefore engenders tremendous injustice for cargo interests.

Apart from interpreting the term “acts”, the NFE may also be circumscribed by manipulating the terms “navigation” and “management of the ship”. It is well-established that “navigation” entails seamanship35 and includes steering the wrong course.36 In Gosse Millerd v Canadian Government Merchant Marine, Greer LJ (whose dissent the House of Lords endorsed on appeal) held that an alleged act will constitute ship management if it relates primarily to the care of the ship. However, if it relates solely or primarily to the cargo, it will not be an act of ship management.37

The differentiation of cargo management from ship management is contentious – not least because such distinction can often be tenuous. In The Iron Gippsland38 and The Eternity39 respectively, the negligent operation of a gas tanker (designated for vessel protection) and a ship’s valve both amounted to cargo mismanagement, which fell beyond the ambit of the NFE. In contradistinction, the failure to secure tarpaulins to the ship’s hatches was construed as an act of ship management in The Hector,40 as the structure in its entirety formed part of the ship’s defences.41

It is acknowledged, however, that subsequent decisions have cast doubt on The Hector and its instructiveness is suspect. Additionally, this writer observes that it is now more difficult for a carrier to invoke the NFE:42 in the later cases, courts have engaged in robust scrutiny of alleged acts of ship mismanagement to better safeguard cargo interests.43 The corollary is that judicial discretion exercised in interpretation of Art IV(2)(a) aids in achieving an optimal balance of interests between the two camps. However, the very existence of a need to ‘read down’ the NFE highlights the sheer breadth of immunity granted under the provision, as well as its fundamental incompetence in coping with changing attitudes.

It bears mention that the distinction between ship and cargo management is susceptible to obfuscation by the involvement of containerised cargo. Containers can serve as the ship’s apparatus/equipment if supplied by the carrier,44 or be construed as an extension of the ship’s superstructure.45 Hence, there may be difficulties in discerning when, for example, the mishandling of containerised cargo during voyage might equate to a breach of Art III(2), or mismanagement of the ship as conceived by Art IV(2)(a) – each of which will produce vastly dissimilar consequences. If it falls within the latter category, the carrier is immune from liability irrespective of any breach of Art III(2).46 This may result in the frustration of legitimate expectations of cargo interests, and is arguably unfair.

Where the NFE does apply, courts can do little to mitigate the hefty losses suffered by cargo interests. This is because Art IV(2)(a), in exempting liability for all loss and damage, can supersede breaches of other obligations in the HVR. In The Aconcagua,47 the heating of a bunker tank caused the ignition of a cargo of dangerous chemicals; subsequently, an explosion transpired. Notwithstanding that the charterers failed to properly care for the cargo,48 the Court found that they were protected by the NFE, as the heating of the bunker tank (for transfer to the engine room) constituted ship management.49 This decision, if anything, epitomises the injustice to cargo interests perpetuated by the NFE. The charterers could not have escaped liability for contravening their obligations under Art III(2) but for the existence of Art IV(2)(a).50 However, their liability under Art III(2) was ultimately subordinated to the NFE.

IV. CONCLUSION

Ironically, the very progenitor of the NFE — the U.S., by s 3 of the Harter Act51 — has since pressed for its deletion in Senate proposals for its new Carriage of Goods by Sea Act52 and the travaux préparatoires to the Rotterdam Rules.53 If anything, this demonstrates that the NFE is in a state of obsolescence. The rigid insistence of Art IV(2)(a) on risk allocation in favour of carrier interests, for instance, accentuates the incapability of the NFE to adapt to contemporary developments in maritime carriage. Yet, this is to be expected when one ruminates upon the historical background of the HVR: its drafting and negotiations process was dominated by powerful ship-owning economies, which resulted in the over-representation of carrier interests. Additionally, the focus on ‘codifying’ industry practices as they stood rendered the HVR’s provisions overly specific and unpliable, leaving no room for the incorporation of subsequent transformations and changes.

In light of the shortcomings of the NFE, its deletion and substitution with ‘prima facie’ fault provisions in the Hamburg Rules and Rotterdam Rules is emphatically welcome. It may be that, very exceptionally, the allocation of risks under the NFE creates a fair compromise between cargo and carrier interests. This might be so in cases where, for example, the shipowner was unable to exert control over the vessel (perhaps due to breakdown in telecommunications).55 Also, the deletion of the NFE may well increase the risks borne by carriers and cause a corresponding spike in freight rates.56 Ultimately, however, it bears emphasis that cargo interests are in a more vulnerable and precarious position than carriers, for reasons highlighted above. Carriers should therefore bear higher risks than cargo owners while goods are in transit, so that the interests of both parties can be evenly balanced. The HVR falter in this respect, thus offering a disappointing compromise on cargo interests.


[1] Hamburg Rules (1978); Rotterdam Rules (2008).

[2] E.g. Preamble of Rotterdam Rules.

[3] Myburgh, “Uniformity or Unilateralism in the Law of Carriage of Goods by Sea?” (2000) 31 VUWLR 355, 367.

[4] A New International Regime for Carriage of Goods by Sea (2012) 30 BJIL. 303, 320.

[5] Ibid.

[6] Art 1 (c).

[7] Liang & Li, “Abolishing the Exemption of Liability for Fault in Ship Management in the Nautical Fault Exemption System” (2006) China Oceans L.R. 537 at 542, 539.

[8] Supra note 4, 329.

[9] Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd [1929] AC 223, 236

[10] As enumerated in Art IV(2).

[11] Weitz, “The Nautical Fault Debate” (1997-1998) 22 TMLJ 581, 588.

[12] Supra note 11, 594.

[13] See e.g. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.

[14] Zeigler, “Liability of the Contracting Carrier” (2008-2009) 44 TILJ 329, 342.

[15] Supra note 11, 587.

[16] Ibid.

[17] E.g. Masters: Girvin, Carriage of Goods by Sea (Oxford: OUP, 2011), [1.40].

[18] Supra note 11.

[19] Faria, “New Times, New Players, and New Rules” (2008-2009) 44 TILJ 277, 299.

[20] Allocating Shipment Risks (1978) 4 Monash U.L.R. 117, 149.

[21] Supra note 7, 542.

[22] 1956 Convention on the Contract for the International Carriage of Goods by Road.

[23] 1980 Convention concerning International Carriage by Rail.

[24] 1933 Warsaw Convention.

[25] Supra note 11.

[26] Clarke, Maritime Law Evolving (Oxford: Hart Publishing, 2013), 143.

[27] See e.g. Art IV(5)(e) .

[28] Treitel, Carver on Bills of Lading (London: Sweet & Maxwell, 2005), 607.

[29] Which may well be the case in light of Art IVbis(4) read with Art IVbis(1).

[30] [2010] NZSC 37.

[31] Ibid, [13].

[32] Ibid, [21].

[33] Supra note 30, [34].

[34] Supra note 30.

[35] The Hill Harmony [2001] 1 Lloyd’s Rep 147, 159.

[36]  The Satya Kailash & Oceanic Amity [1982] 2 Lloyd’s Rep 465.

[37] [1928] 1 KB 717, 749.

[38] [1994] 1 Lloyd’s Rep 335, 358.

[39] [2009] 1 Lloyd’s Rep 107.

[40] [1955] 2 Lloyd’s Rep 218.

[41] Ibid, 234-235.

[42] Supra note 19.

[43] Cooke et al, Voyage Charters (Oxon: Routledge, 2014), [85.279].

[44] In Houlden & Co v. S.S. Red Jacket [1978] 1 Lloyd’s Rep. 300, the Court held that the standard of seaworthiness applied to “all of the ship’s equipment, including containers supplied to the shippers” (at 1401).

[45] Aladwani, “The Supply of Containers & Seaworthiness” (2011) 42 JMLC 185, 188.

[46] Art III(2) is “subject to the provisions of Art IV”.

[47] [2009] EWHC 1880.

[48] Ibid, [371].

[49] Ibid, [372].

[50] Hashmi, “Rotterdam Rules: A Blessing?” (2011-2012) 10 Loyola MLJ 227, 247.

[51] Harter Act of 1893, 46 U.S.C. §190-196.

[52] Supra note 26.

[53] UN Doc. A/CN.9/WG.III/WP.34 at [30].

[54] Sweeney, “UNCITRAL and the Hague Rules” (1991) 22 JMLC 511, 516.

[55] Mandelbaum, “Risk Allocation for Cargo Loss, Damage, and Delay” (1995-1996) 5 JTLP 1, 38.

[56] Supra note 19.


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Dialogue with Minister for Law on proposed changes to the Elected Presidency

On the 13th of October, 2016, the Singapore Law Review hosted Minister for Home Affairs and Minister for Law, Mr K Shanmugam, for an intimate dialogue session with law students to discuss proposed changes to the Elected Presidency. The dialogue session came just three days after a Bill to formally introduce these proposed changes into the Constitution of Singapore was tabled in Parliament.

Minister Shanmugam opened the evening with a presentation on the proposed changes, covering both the recommendations made by the Constitutional Commission on the Elected Presidency as well as the Government’s responses to the recommendations. He discussed the five broad issues covered by the Constitutional Commission in its report: the role of the Elected President (“EP”); whether the Presidency should be an elected or appointed office; the eligibility criteria for presidential candidates; the question of how all races may be represented in the office of the EP; and the role of the Council of Presidential Advisors.

Minister Shanmugam then fielded questions from the audience in a lively and candid question-and-answer session. Members of the audience raised questions on a wide variety of issues, from the rationale of the new changes to the implications of these changes on the governance of Singapore.

The event provided law students with a rare opportunity to air their views and discuss substantive topics of contention with Minister Shanmugam in an intimate setting. The Singapore Law Review is grateful to Minister Shanmugam for his open and candid engagement in the evening’s dialogue session. The Singapore Law Review would also like to express its gratitude to the Prime Minister’s Office and REACH for their assistance in this event.

Ms Grace Teo, Deputy Chief Editor (Journal), presenting a token of appreciation to Minister Shanmugam.

Ms Grace Teo, Deputy Chief Editor (Journal), presenting a token of appreciation to Minister Shanmugam.

Writer: Grace Teo
Photo credits: Fabian Terh


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The Disclosure of Medical Risks in Singapore and the case of Montgomery

by Keith Jieren Thirumaran

INTRODUCTION

There are three main areas that doctors engage in when practicing medicine: diagnosis, treatment and advice. In order for doctors to avoid negligence liability, they must meet the applicable standard of care expected of them. However, in the context of advice with respect to disclosure of risks, the test for determining whether a doctor is in breach of the applicable standard of care has attracted a considerable amount of attention. Singapore has retained the traditional doctor-centric test, but several overseas jurisdictions have since developed more patient-focused approaches – notably, the recent UK Supreme Court decision of Montgomery v Lanarkshire Health Board [Montgomery].1 This article will examine the various tests used by courts both locally and overseas, after which it will be submitted that the status quo in Singapore should be maintained in light of compelling local circumstances.

TESTS USED LOCALLY AND OVERSEAS

The Singapore position pre-Montgomery

The current position in Singapore is embodied in the Court of Appeal case of Dr Khoo James & Anor v Gunapathy d/o Muniandy [Gunapathy]2 where the Court applied the Bolam-Bolitho test to the disclosure of risks in the medical context.

The Bolam-Bolitho test is the locus classicus for the standard of care required of doctors and comprises of two separate tests. The plaintiff must show that a doctor defendant has failed either of these tests in order to establish a breach of the standard of care.

The Bolam test, formulated in Bolam v Friern Hospital Management Committee,3 requires a doctor to have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This means that a doctor will not be found negligent as long as part of the medical profession agrees with what the doctor did, even if there is a body of opinion that takes the contrary view,4 and even if the court prefers one of the views over the other.5

The Bolitho test, formulated in Bolitho v City & Hackney Health Authority,6 is a threshold test of logic and consistency when accepting the opinion of medical peers. This comprises two stages: the expert must have directed his mind to the comparative risks and benefits of the matter; and the opinion must be a defensible conclusion, meaning that it must be internally consistent and should not ignore known medical facts.7

The main reasons the Court of Appeal in Gunapathy cited for applying the Bolam-Bolitho test was that judicial wisdom has its limits. A judge unskilled in medicine has no business adjudicating matters which medical experts themselves cannot agree on.8 Furthermore, excessive judicial interference would hamper the proper development of medical science, give rise to defensive medicine, and lead to higher medical costs and wastage of medical resources. 9

The development of the “prudent patient” approach

In the UK case of Sidaway v Bethlem Royal Hospital Governors [Sidaway],10 Lord Scarman in his dissent suggested moving from the Bolam-Bolitho approach toward a “prudent patient” test similar to that found in the American case of Canterbury v Spence.11 In the Australian case of Rogers v Whitaker [Rogers],12 the High Court favoured Lord Scarman’s dissent13 and decided the case on the basis of what risks a “prudent patient” would wish to know, save for the exception of therapeutic privilege cases. The Canadian Supreme Court case of Reibl v Hughes14 and the Malaysian Federal Court case of Foo Fio Na v Dr Soo Fook Mun & Anor15 have also taken similar approaches to the disclosure of risks in the medical context.

In the UK itself, the majority decision in Sidaway is no longer good law. The case has since been effectively overruled by the recent Supreme Court decision of Montgomery.16 The Montgomery approach17 is that a doctor must disclose risks that a reasonable person in the patient’s position would attach significance to, as well as risks that the doctor should reasonably be aware that the actual patient would attach significance to. The patient need not question the doctor,18 though the doctor must engage in a proper dialogue with the patient to ensure that the latter is aware of and understands the risks.19

There are three exceptions to the above test where a doctor does not have to disclose the relevant risks.20 The first is when the patient does not wish to know any further information.21 The second is the therapeutic privilege exception which allows a doctor to withhold information from the patient if the doctor reasonably considers that its disclosure would be seriously detrimental to the patient’s health. 22. The third is in circumstances of necessity such as when treatment is required urgently but the patient is unconscious or otherwise unable to make a decision.23

Whether the risk is considered material enough to be disclosed depends on various factors such as magnitude of risk, nature of risk, effect of its occurrence upon the life of the patient, importance to patient of the benefits from treatment, alternative treatments and risks of those alternative treatments (“Montgomery Factors”).24

Singapore’s stance on the “prudent patient approach”

Although the Singapore High Court acknowledged Montgomery in the cases of Thong Jiang Andrew v Yue Wai Mun & Anor 25 and Hii Chii Kok v Ooi Peng Jin London Lucien and another,26 it left the question of which test should apply open (Bolam-Bolitho or Montgomery). Nonetheless, on the existing facts, it seems that the Singapore Courts favour the Bolam-Bolitho test.

Firstly, the Court of Appeal in Gunapathy, in the context of advice and disclosure of risks, did not find favour with Lord Scarman’s dissent in Sidaway, the foundations for the prudent patient approach as discussed above. Instead, the Court in Gunapathy preferred to follow the majority in Sidaway in applying the Bolam-Bolitho test to the context of advice and disclosure of risks.27

Secondly, the Court in Gunapathy also noted that Lord Bridge’s qualification in Sidaway (that if there was a substantial risk and no cogent clinical reason for non-disclosure, a Judge can conclude that no respectable medical expert would have failed to disclose that risk) was already subsumed under the Bolitho test and was therefore unnecessary.28

Thirdly, Chief Justice Sundaresh Menon, in his address at the Opening of the Legal Year 2016, has also emphasised the importance of preventing doctors from practicing defensive medicine.29 The Learned Chief Justice also promoted the use of alternative dispute resolution such as mediation, as opposed to litigation, for resolving medical disputes.30 This is further evidence of the importance of reducing medical litigation in Singapore, which is more in line with the Bolam-Bolitho test. The Montgomery test, on the other hand, may subject doctors to greater legal liability.

COMMENTARY ON THE FUTURE POSITION IN SINGAPORE

Since the position in the UK (which Singapore was following) has been changed by the case of Montgomery, the Singapore Court of Appeal will have to consider this and other international developments to determine which test should apply in Singapore. While some may be quick to cast their vote for a change to Montgomery, this author believes that Singapore should stick to its current position and uphold the Bolam-Bolitho test.

Underlying policy considerations in support of the Bolam-Bolitho test

Policy reasons form the basis for sticking to the Bolam-Bolitho test, in particular, hampering the proper development of medical science, giving rise to defensive medicine, higher medical costs and wastage of medical resources.31 As Chief Justice Menon pointed out in his address, a fear of litigation would distort medical practice and raise insurance costs.32 These are fundamental policy considerations that underpin the Bolam-Bolitho test and they are still as strong today.

At first glance, it would appear that the learned Chief Justice’s concerns were already considered by the Supreme Court in Montgomery. The Supreme Court in that case disagreed that there was a possibility of increased litigation and defensive medicine from its approach. Furthermore, the Court opined that its approach would result in patients being aware that the outcome of treatment is uncertain, and that its approach allows patients to take responsibility for the ultimate choice of undergoing that treatment.33 This, in the Court’s opinion, would therefore lower the likelihood of litigation in the event of an adverse outcome.34

However, this author respectfully disagrees with the views expressed in Montgomery. While it may be thought that less litigation would directly translate into less defensive practices, this is not necessarily true. The very fact that doctors under the Montgomery approach have to disclose more risks is itself a defensive practice which would lead to higher costs. Doctors would never be sure where to draw the line, and would “play safe” by disclosing many, if not all, the risks associated with the treatment.

In Montgomery, the Court failed to take into account the increased medical costs involved with their approach.35 The defensive medical practice of disclosing more risks of treatment (in order to avoid liability for failing to disclose a risk) would lead to “higher medical costs and wastage of precious medical resources”.36 More time will be needed to disclose and explain risks, which could have been spent treating another person or saving a life (which the Court in Montgomery did not discuss). Time wastage may be exacerbated where a patient who has been notified of many new risks is inclined to further question the doctor for explanations, elaborations, and evaluations on them, regardless of the significance of the risk. The Montgomery approach may raise medical costs, going against the aims that the learned Chief Justice and the Court in Gunapathy had sought to achieve.

Furthermore, even with the therapeutic privilege exception, disclosing every conceivable risk to a patient that is not “at-risk” can still cause unbalanced decisions and frighten the patient.37 A patient may opt for a more expensive treatment or refuse otherwise viable treatment when frightened by an insignificant risk. It is therefore submitted that in order to avoid higher medical costs and wastage of resources, the decision of which risks are significant enough to the patient and need to be disclosed should best be left to the judgment of the medical profession.

Lastly, the Court in Montgomery felt that imposing legal obligations was necessary to force doctors to engage in a discussion with their patients. However, as Baroness Hale said in Gregg v Scott,38 doctors are motivated by their natural desire and professional duty to do their best for their patients. It is this author’s opinion that a doctor would therefore engage in the discussion with their patients, even without legal obligations, as long as the doctor feels that it would be in the patient’s interest to know of a particular risk.

Montgomery’s human rights focus is inapplicable to Singapore

The decisions in the UK, such as Montgomery, may not be applicable in Singapore. This is because, as stated by the Singapore High Court, the UK decisions may have been influenced by the UK’s emphasis on human rights and autonomy.39 This emphasis on human rights and autonomy in the UK may be attributed to the European Convention of Human Rights [ECHR],40 enforced under the Human Rights Act [HRA].41

However, neither the ECHR nor the HRA is binding on Singapore Courts.42 Therefore, in the absence of any rights-based legislation, the Singapore Courts may not be inclined to adopt an approach, such as Montgomery, which is based on a strong emphasis of Human Rights.43

Bolam-Bolitho and Montgomery tests likely to reach the same conclusion

The Bolam-Bolitho test would, in this author’s opinion, already encompass the bulk of the Montgomery approach. It is submitted that the large majority of risks disclosed under the Montgomery approach would already be disclosed under the Bolam-Bolitho test, ultimately giving rise to same legal conclusions.

Firstly, if a doctor is aware that his patient would attach significance to a particular risk, then in the absence of cogent medical reasons such as the therapeutic privilege exception, there appears to be no reason why that doctor would not disclose that risk to the patient. Therefore, it appears that any reasonable doctor would disclose risks that he is aware his patient finds significant, thereby satisfying the Bolam test, while also satisfying the Montgomery test.

Secondly, even in the absence of any cognisance of specific significance to his patient, a doctor would disclose risks that the doctor believes should be disclosed. A doctor is likely to take into account the various Montgomery Factors listed above (save for “importance to patient of the benefits from treatment”) when making an assessment of what to disclose to a patient. Therefore, save for the internal thoughts of a patient, a reasonably doctor who satisfies the Bolam test by considering the Montgomery Factors would satisfy the Montgomery test and disclose all material risks.

Furthermore, in Singapore the minimum that the Bolam test requires a reasonable doctor to do would be to adhere to the Singapore Medical Council’s Ethical Code and Ethical Guidelines [Ethical Code].44 The Ethical Code requires doctors to keep a patient “adequately informed” of his treatment options so that “he is able to participate in decisions about his treatment”.45 The Ethical Code also requires doctors to “provide adequate information” so that a patient can make “informed choices”.46 As the wording is notably broad, it is highly probable that a doctor which satisfies the provision of “adequate information” under the Bolam test is likely to have disclosed all material risks and thereby satisfy the Montgomery test.

Thirdly, there is no risk of the medical profession exploiting the Bolam-Bolitho test. This is because if the responsible body of medical men would not have disclosed the risk, and if this is not founded on a logical basis, the Bolitho test would then step in.47 The Bolitho test is not an invasive inquiry into the merits of the medical opinion before the Court.48 However, if the medical profession illogically omits to warn of certain risks which patients should undoubtedly be informed of, the Court should interfere on the authority of Bolitho.49 This is especially so when the disclosure of that particular risk was so obviously necessary in order for the patient to make an informed choice.50 An example provided by the Court was if the risk is substantial, of grave consequences and there is no cogent clinical reason for omitting to disclose the risk.51 Therefore the Bolitho test will help to catch risks that should be disclosed under Montgomery but where the medical profession as a whole would not have done so.

The Montgomery test is impractical

Even with the practical similarities highlighted above, it is acknowledged there are a handful of risks that a prudent patient would want disclosed that a reasonable body of medical men would not have disclosed. This handful of risks would be caught by the Montgomery approach but would not have been caught under the Bolam-Bolitho test. The existence of these risks stem from the main difference between the Bolam-Bolitho test and the Montgomery approach: the perspective from which the test is applied.

It is submitted that the Montgomery test provides a very artificial guideline to follow and it would not be realistic to expect a doctor to adhere to such a test. While it is acknowledged that a doctor can attempt to think from the perspective of a reasonable patient, and thereby theoretically be able to cover some of the material risks from a patient’s perspective, the reality is that a doctor cannot tell with any precision or certainty what a reasonable patient would wish to know. Therefore, in their bid to escape liability under the Montgomery test, a doctor would practice defensive medicine by simply disclosing every conceivable risk. This is undesirable as it would lead to the aforementioned higher medical costs and wastage of medical resources.

Therefore, applying the Montgomery approach only gives the appearance of human rights and autonomy. Instead, the Montgomery approach would lead to more prevalent defensive practices as well as unnecessarily cause a greater number of doctors to be found negligent merely due to the unrealistic expectation of predicting what a prudent patient would want to know.

CONCLUSION

In conclusion, the Singapore Courts should not feel pressured to accept the approaches adopted in other jurisdictions but should choose the approach that is most desirable to the Singapore context and society. It may well be that maintaining the status quo could be the better approach for Singapore.


[1] Montgomery v Lanarkshire Health Board, [2015] UKSC 11.

[2] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] 2 SLR 414.

[3] Bolam v Friern Hospital Management Committee, [1957] 1 WLR 582 at 587.

[4] Ibid.

[5] Maynard v West Midlands Regional Health Authority, [1985] 1 All ER 635.

[6] Bolitho v City & Hackney Health Authority, [1998] AC 232 at 241-242.

[7] Supra note 2 at [64] – [65].

[8] Supra note 2 at [144].

[9] Ibid.

[10] Sidaway v Bethlem Royal Hospital Governors, [1985] AC 871.

[11] Canterbury v Spence, (1972) 464 F 2d 772.

[12] Rogers v Whitaker, (1992) 175 CLR 479.

[13] Ibid at [10].

[14] Reibl v Hughes, (1980) 114 DLR (3d).

[15] Foo Fio Na v Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593.

[16] Supra note 1.

[17] Supra note 1 at [87].

[18] Supra note 1at [58].

[19] Supra note 1 at [90].

[20] Supra note 1 at [85] and [88].

[21] Supra note 1 at [85].

[22] Supra note 1 at [88].

[23] Supra note 1 at [88].

[24] Supra note 1 at [89].

[25] Thong Jiang Andrew v Yue Wai Mun & Anor, [2015] SGHC 119 at [36] – [37].

[26] Hii Chii Kok v Ooi Peng Jin London Lucien and another, [2016] SGHC 21.

[27] Supra note 2 at [142].

[28] Supra note 2 at [141].

[29] Chief Justice Sundaresh Menon: Response at the Opening of the Legal Year 2016 (11 January 2016), online: <http://www.supremecourt.gov.sg/Data/Editor/Documents/Response%20by%
20CJ%20%20Opening%20of%20the%20Legal%20Year%202016%20on%2011%20January%202016%20(Checked%20against%20Delivery%20110116).pdf> at [43].

[30] Ibid.

[31] Supra note 2 at [144].

[32] Ibid.

[33] Supra note 1 at [93].

[34] Ibid.

[35] It is suggested that the UK’s National Health Service may have been a contributing factor that would have downplayed the concern of patients’ medical costs for the Court in Montgomery.

[36] Supra note 2 at [144].

[37] Tong Seok May Joanne v Yau Hok Man Gordon, [2012] SGHC 252 at [76].

[38] Gregg v Scott [2005] UKHL 2 at [217].

[39] D’Conceicao Jeanie Doris (administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan [D’Conceicao], [2011] SGHC 193 at [123]; Tong Seok May Joanne v Yau Hok Man Gordon [2012] SGHC 252 at [64] and [172].

[40] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)

[41] Human Rights Act 1998 (UK), c 42.

[42] Supra note 38.

[43] Ibid.

[44] Singapore Medical Council, Ethical Code and Ethical Guidelines, online: <http://www.healthprofessionals.gov.sg/content/dam/hprof/smc/docs/guidelines/SMC%20Ethical%20Code%20and%20Ethical%20Guidelines.pdf>.

[45] Ibid at 4.2.2.

[46] Ibid at 4.2.4.

[47] Supra note 2 at [141].

[48] D’Conceicao at [40].

[49] Ibid at [124].

[50] Supra note 10 at 900.

[51] Ibid.

 


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