Juris

A New Kind of Criminal Law for "Bad Hombres": The Organised Crime Act 2015

Benjamin Low Junjie

I. INTRODUCTION

More than three years have elapsed since the Organised Crime Bill was passed by Parliament1 and entered into law as the Organised Crime Act 20152 [OCA]. Surprisingly, scant attention has been devoted to the substantive contents of the statute.3 One might be forgiven for thinking that this is partly due to the fact that the OCA has not been extensively employed by the State, thereby precluding any opportunities for a serious scrutiny of the Act’s provisions by the Courts and academics. However, a cursory glance at the OCA reveals several areas of concern that do warrant greater attention and analysis on the basis that they have the potential to adversely affect established principles of criminal liability and punishment, while also constituting an evolutionary approach in Singapore’s longstanding crime-control policy.

This article is an attempt to provide a considered discussion on the various offences and penalties that the OCA creates, as well as the numerous powers it confers on the Public Prosecutor and other law enforcement agencies to better address the threat of organised crime. My analysis will also draw upon the comparative experiences of other common law countries that have already enacted similar legislation in combating organised crime, such as the United Kingdom and Australia, in order to help formulate a possible approach towards the OCA that the courts and law enforcement agencies may wish to consider.

II. THE ORGANISED CRIME ACT

The OCA as a whole comprises ten parts and over eighty sections in total. Part 2 of the Act creates several new offences collectively referred to as ‘Organised Crime Offences’. These offences are meant to cover a whole spectrum of activities that organised criminal groups engage in, such as:

• Membership of a locally-linked organised criminal group;4

• The recruitment of members of an organised criminal group;5

• The instructing of the commission of an offence at the direction of or in furtherance of the purpose of an organised criminal group; 6

• Procuring the expenditure or application of property (as well as the actual expenditure or application of property itself) to support, aid or promote the commission of a Part 2 offence or any other offence under any written law; 7

• Permitting an organised criminal group to use any premise; 8

• Receiving, retaining, concealing and any other dealing with the property of an organised criminal group; 9 and

• Facilitating the commission of a Part 2 offence or any serious offence10 at the direction of or in furtherance of the purpose of an organised criminal group.11

The Part 2 offences are also noteworthy in that they directly target persons who, though not necessarily members of organised criminal groups themselves, nevertheless may have provided some form of material or financial assistance to organised criminal groups.12

In addition to the Part 2 offences, the OCA also grants several new legal powers which law-enforcement agencies may have recourse to.

Part 3 provides for the creation of Organised Crime Prevention Orders (‘OCPO’). 13 Part 4 creates Financial Reporting Orders (‘FRO’)14 while Part 5 prescribes mechanisms and procedures for the enforcement of OCPOs and FROs as well as avenues for appeals against such orders.15

Part 6 establishes Disqualification Orders which may be made against persons who have been convicted of having committed Part 2 offences or serious offences or who have contravened an OCPO or FRO that was made against them upon their conviction for an offence.16

Part 9 establishes a civil confiscation regime that is patterned on the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act17 [CDSA] but which allows for confiscation orders to be made against persons who have not been charged or convicted of any offence or who have been acquitted.18 The remaining Parts of the Act deal with matters pertaining to the powers of investigation by certain government bodies, the protection of informants and other ancillary matters and do not require any great deal of exposition here. Suffice to say, it is the OCPO provisions and the civil confiscation regime which I intend to deal with in further detail.

III. ORGANISED CRIME PREVENTION ORDERS

A. Prevention Orders: A Targeted Approach Towards Organised Crime

In addition to expanding the scope of inchoate liability under the Part 2 offences, the OCA provides for the use of OCPOs against persons who are proven to have been “involved in a Part 2 offence or a serious offence associated with an organised criminal group”19 whether inside or outside Singapore. S 15(1) OCA prescribes two conditions that must be met before a court can impose an OCPO. The court must firstly be satisfied, on a balance of probabilities, that the affected person must have been “involved” in a Part 2 offence or a serious offence; and secondly, the court must have “reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting an involvement by the person in any Part 2 offence, or any serious offence …”. The standard of proof is that of the civil standard of the balance of probabilities, as opposed to the criminal standard of proof, beyond reasonable doubt.

Involvement in a Part 2 offence or a serious offence is made out through three possible scenarios as prescribed in s 14 OCA. Firstly, the person who is to be subjected to an OCPO must have actually committed the Part 2 or serious offence;20 secondly, the person must have facilitated21 the commission of the aforementioned offences22 or lastly, in the alternative, the person’s conduct must be likely to have facilitated the commissioning of the abovementioned offences23. Thus, a person need not necessarily have committed the actual offence itself as long as his conduct renders the commissioning of the offence a possibility, in order to be liable for the imposition of an OCPO against him.

S 16 OCA lists the possible types of prohibitions, restrictions or requirements that may be imposed on a person who may either be an individual24 or a body corporate25 under an OCPO. Such prohibitions, restrictions and requirements may affect, but are not necessarily limited to, a person’s financial, property or business dealings or holdings,26 working arrangements,27 means of communication,28 agreements to which the person may be a party29 as well as the use of any premises or item by the person.30 These provisions are virtually identical to similar legislation in the United Kingdom31 and New South Wales32, albeit referred to as ‘Serious Crime Prevention Orders’ (‘SCPO’). One can see that, depending on the nature of the serious offence and the extent of the person’s involvement, it is possible for the State to tailor each particular OCPO to suit the particular mischief at hand, thereby granting law-enforcement agencies great flexibility and latitude in dealing with persons involved in organised criminality.

The use of OCPOs is noteworthy in that they constitute an increasing willingness on the State’s part to resort to preventive measures outside the traditional criminal justice model of prosecuting persons who have already committed the substantive offence and have caused a certain type of harm to another person. This pattern of seeking to criminalise preparatory acts before the substantive offence itself can be committed has been termed by commentators as constituting “the preventive turn in criminal law”.33 The fact that the OCA also allows for the imposition of OCPOs against persons who have already been convicted by the courts for having committed either a Part 2 or serious offence only reinforces the increased emphasis on prevention as a guiding principle in terms of criminal punishment.

B. Legal Limits on the Use of OCPOs

Since OCPOs may be made in the absence of any conviction for any offence, there is a greater need to ensure that such legal powers are properly regulated given their propensity to adversely impact the constitutional freedoms and liberties that Singaporeans are entitled to, as well as to alleviate the possibility of state authorities increasingly resorting to the use of OCPOs over the more difficult task securing criminal convictions of suspected organised criminals as a form of ersatz prosecution. What then are the legal principles or tests that a court may have recourse to in determining whether the issuance of an OCPO would indeed “protect the public”?

Presently, no local case law has involved the making of an OCPO against a person under the OCA. However, given that our provisions concerning OCPOs are virtually in pari materia with the UK and New South Wales legislations, it is posited that the existing body of case law in these jurisdictions, while not binding, may provide useful sources of guidance for our courts in determining when an OCPO may be issued. The leading case in the United Kingdom is R v Hancox34 [Hancox] where the Court of Appeal held that an SCPO could only be issued if the court “has reasonable grounds to believe that an order would protect the public by preventing, restricting or disrupting involvement by the defendant in serious crime”,35 that is to say, the court must be satisfied that “There must be a real, or significant, risk (not a bare possibility) that the defendant will commit further serious offences …”36 to justify the imposition of the prevention order.

The Court further elaborated by holding that:

“[S]uch orders can be made only for the purpose for which the power was given by statute. And they must be proportionate…it is not enough that the order may have some public benefit in preventing, restricting or disrupting involvement by the defendant in serious crime; the interference which it will create with the defendant’s freedom of action must be justified by the benefit; the provisions of the order must be commensurate with the risk.”37

The test in Hancox has been repeatedly affirmed and cited by subsequent English decisions with approval38 and its importation into Singapore would arguably pose no great conceptual difficulty. However, one ought to bear in mind that Hancox expressly endorsed the test of proportionality where a prevention order is concerned, no doubt due to the need to ensure conformity between English law and the European Convention on Human Rights.39 It goes without saying that the applicability of proportionality as a legal doctrine was expressly rejected by the High Court in Chee Siok Chin v Minister for Home Affairs [Chee Siok Chin].40 Any adoption of the Hancox test would require some modification to accommodate the law in Chee Siok Chin.41

Ultimately though, regardless of whether the Singapore courts opt to adopt the Hancox test or devise their own principles, it is posited that any legal solution formulated by the courts when dealing with the implementation of OCPOs ought to be structured as restrictively as possible, given the broad ambit and scope of such orders and the potentiality for misuse and abuse by the state authorities.

IV. THE CIVIL CONFISCATION REGIME

The final significant weapon in the OCA’s inventory is the provision of a civil confiscation regime designed to provide for “the confiscation of benefits from organised crime activities”42 under Part 9 of the Act. The regime allows for the Public Prosecutor to apply to the High Court for three types of orders: (i) restraining orders;43 (ii) charging orders44 and (iii) confiscation orders,45 where the subject of the order has carried out organised crime activity within a statutory period of 7 years46 and, in the case of the confiscation order, has derived benefits from such activity47.

The structure of the civil confiscation process is heavily patterned on the existing regime in the CDSA albeit with a slight twist: proceedings under Part 9 for any of the three orders are civil proceedings that follow the civil standard of proof,48 much like proceedings for OCPOs. This lowering of the burden of proof on the Public Prosecutor in civil confiscation proceedings is amplified by the statutory presumption that any property or interest in property held by the subject which is “disproportionate to the subject’s known sources of income”49 is presumed to be a benefit from an organised crime activity, which the subject bears the burden of disproving.50

The civil nature of such confiscation proceedings is buttressed by a statutory proviso that any of the three orders can be made in the absence of any criminal proceedings for the impugned organised criminal activity.51 Even more disconcertingly, where criminal proceedings have been instituted against the subject, an order under the civil confiscation regime can still be made even if the criminal proceedings have resulted in an acquittal of the subject.52 Nor is the civil confiscation order affected by the making of a confiscation order under the CDSA in relation to the same person and organised crime activity,53 raising the spectre of a possible ‘double jeopardy’54 under both civil and criminal confiscation proceedings.

V. CONCLUSION

The OCA is a considerable supplement to Singapore’s already-sizeable arsenal of legal tools that have already been used in the struggle against organised crime. However, unlike previous legislation which has typically been concerned with combating organised criminal activity within the traditional framework of the criminal justice system, the OCA adopts the novel approach of utilising the civil process to tackle organised crime. This obviates the need to navigate the more onerous realm of criminal procedure, and allows for the full powers and resources of the State to be brought to bear upon individuals suspected of having breached the criminal law, but who have otherwise evaded prosecution.

Furthermore, such measures arguably mark a reformulation in the State’s policing style whereby the traditional reactive means of enforcement after the commission of an offence is increasingly displaced by a more proactive policing which seeks to preclude and even deter participation in organised criminal enterprises by denying criminals the necessary capital to develop and maintain illicit markets, as well as by preventing certain types of behaviour and forms of association that border on criminality.

The end result is a new kind of a criminal law whose focus is not so much identifying and apportioning criminal liability on an individual case-by-case basis as targeting and neutralising certain social threats to public welfare. Suspected organised criminals are the ‘social danger’ in question that must be contained and regulated through robust but civil measures under the OCA’s framework in order to best guarantee the effective protection of people and State. Of course, no one disputes the serious threat to public order that organised crime poses but it remains to be seen whether the OCA is the most appropriate and effective solution for addressing the problem of organised criminality.


[1] The Bill received its Second and Third Readings and was subsequently passed by Parliament with no amendments on 17 August 2015, before obtaining Presidential assent on 21 August 2015.

[2] No 26 of 2015, Sing.

[3] At the date of the writing of this publication, the author could find no academic article or commentary piece dealing with the Organised Crime Act 2015. A reference to the most recent edition of one of the foremost criminal law textbooks in the country revealed only a cursory mention of the statute in a footnote: see Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore, 3rd ed (Singapore: LexisNexis, 2018) at 1045.

[4] Supra note 2 at s 5. See also Public Prosecutor v Lai Yen San [2019] SGDC 39 at [6].

[5] Ibid at s 6.

[6] Ibid at s 7.

[7] Ibid at ss 8–9.

[8] Ibid at s 10.

[9] Ibid at s 11.

[10] ‘Serious offence’ refers to any offence specified in the Schedule to the OCA, which in itself consists of offences contained in the Penal Code (Cap 224, 2008 Rev Ed Sing) and a whole plethora of other criminal law statutes.

[11] Supra note 2 at s 12.

[12] Parliamentary Debates Singapore: Official Report, vol 93 at 31 (17 August 2015) (Second Minister for Home Affairs Mr S Iswaran). Although not expressly mentioned by the Minister in the Parliamentary debates, it is arguably reasonable to infer that persons who have provided material or financial assistance to organised criminal groups can include financial institutions and owners of real property. It would surely undermine the purpose of having such provisions in the OCA if they could not be taken to apply to the two aforementioned categories of entities.

[13] Supra note 2 at ss 14–20.

[14] Ibid at ss 21–23.

[15] Ibid at ss 24–38.

[16] Ibid at s 39.

[17] Cap 65A, 2000 Rev Ed Sing.

[18] Supra note 2 at ss 51 and 53.

[19] Ibid at s 15.

[20] Ibid at s 14(3)(a).

[21] Insofar as the author is aware, the term ‘facilitate’ is not actually defined in the OCA or any other statute but see s 2(2) OCA which attempts to provide some form of statutory guidance as to the prerequisite degree of physical conduct that is required for a person to have facilitated the commission of an offence.

[22] Supra note 2 at s 14(3)(b).

[23] Ibid at s 14(3)(c). The same three factual conditions apply for offences committed by an offender who is outside Singapore.

[24] Ibid at s 16(2).

[25] Ibid at s 16(3).

[26] Ibid at s 16(2)(a).

[27] Ibid at s 16(2)(b).

[28] Ibid at s 16(2)(c).

[29] Ibid at s 16(3)(b).

[30] Ibid at s 16(2)(e).

[31] Serious Crimes Act 2007 (UK), c 27, s 1.

[32] Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), s 5.

[33] Heidi Mork Lomell, “Punishing the Uncommitted Crime: Prevention, Pre-emption, Precaution and the Transformation of Criminal Law” in Barbara Hudson & Synnove Ugelvik, eds, Justice and Security in the 21st Century: Risk, Rights and the Rule of Law (Abingdon, UK: Routledge, 2012) 83 at 86. See also Andrew Ashworth & Lucia Zedner, “Prevention and Criminalization: Justification and Limits” (2012) 15:4 New Crim L Rev 542.

[34] [2010] EWCA Crim 102.

[35] Ibid at para 9.

[36] Ibid.

[37] Ibid at para 10.

[38] See R v Mangham [2012] EWCA Crim 973 and R v Strong [2017] EWCA Crim 999; see also David Ormerod et al, Blackstone’s Criminal Practice 2017, 27th ed (Oxford, UK: Oxford University Press, 2016) at 2062–2064.

[39] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Eur TS 5.

[40] [2006] 1 SLR(R) 582 (HC) at [87].

[41] In the alternative, the Singapore courts could choose to overrule Chee Siok Chin and introduce the doctrine of proportionality into Singapore law but any such decision would have to be founded on very cogent grounds so as to justify the adoption of proportionality in lieu of the existing judicial test of Wednesbury unreasonableness. One such argument could be that proportionality functions as a secondary question on the part of the Court that focuses on the legitimacy of the executive or administrative action itself, that is to say, whether the impugned actions were made in accordance with fair procedures and not whether they are ‘right’. In doing so, this obviates the problem of merits review that Rajah J (as His Honour then was) pointed out in Chee Siok Chin at [87]. See also Alan D P Brady, Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach, (Cambridge: Cambridge University Press, 2012) at 11–13.

[42] Supra note 2 at s 45(1).

[43] Ibid at s 57.

[44] Ibid at s 58.

[45] Ibid at s 61.

[46] Ibid at s 46(1).

[47] Ibid at s 61(2)(b).

[48] Ibid at s 50.

[49] Ibid at s 61(3).

[50] Ibid.

[51] Ibid at s 51.

[52] Ibid at s 53.

[53] Ibid at s 55.

[54] By ‘double jeopardy’, I refer particularly to the principle of autrefois convict as enshrined in Article 11(2) of the Constitution of the Republic of Singapore (1999 Rev Ed). Although confiscation proceedings under the OCA are expressly treated as civil proceedings and that statute expressly states that OCA confiscation proceedings are not affected by the criminal proceedings under the CDSA, one could argue that it is possible for a person to be subject to concurrent confiscation order proceedings under both Acts for the same set of facts or offences, which could in turn lead to the imposition of two types of penalties that are in substance, similar to one another, thereby triggering Article 11(2). However, it is very unlikely that the Singapore courts will accept such an argument on the basis of existing case law that adopts a strict definition of the principle of autrefois convict. See Lim Keng Chia v Public Prosecutor [1998] 1 SLR(R) 1 (HC) at [7]–[14] and Gunalan s/o Govindarajoo v Public Prosecutor [2000] 2 SLR(R) 578 (HC) at [19]–[21].


Is it Time to Decriminalize HIV Non-Disclosure in Singapore?

By Daryl Yang*

I. INTRODUCTION

Following the recent data leak of the HIV registry, founding President of Action for AIDS Singapore Professor Roy Chan called for Singapore to “adopt the internationally recognised guideline that criminalisation should be limited to cases where there is intentional and malicious transmission of the human immunodeficiency (“HIV”) virus.”1

Currently, section 23 of the Infectious Diseases Act2 [IDA] imposes a legal duty on persons living with HIV (“PLHIV”) to disclose their HIV-positive status to sexual partners. In 2008, the criminal penalties for a breach of this statutory duty was increased five-fold to a fine of up to $50,000 or 10 years’ imprisonment.

That same year, the Joint United Nations Programme on HIV/AIDS (“UNAIDS”) and the United Nations Development Programme (“UNDP”) published the Policy Brief on Criminalisation of HIV transmission by UNAIDS, which urged governments to repeal HIV-specific criminal laws, including those that mandated the disclosure of HIV status.3 Subsequently, in 2012, the Global Commission on HIV and the Law published a report calling for the repeal of such laws on the basis that they are counterproductive to reducing the rate of HIV infection.4

In light of Professor Chan’s suggestion, this article presents the case for decriminalisation of HIV non-disclosure in Singapore. Firstly, the criminal law may be ineffective and counterproductive in ending the HIV/AIDS epidemic. Secondly, such a law is unnecessary because there are existing criminal provisions under the Penal Code that can punish irresponsible PLHIV who irresponsibly transmit the virus to others or put others at risk of contracting HIV. Finally, even if Parliament decides against repealing s 23, it should be reformed to address the disproportionate burden that such a law imposes on one of the most vulnerable groups in society.

II. LEGISLATIVE OBJECTIVES OF THE CRIMINALISATION OF HIV NON-DISCLOSURE

Before proceeding, it is crucial to note that this paper does not contend the moral duty that PLHIV have to disclose their HIV-positive status to their sexual partners. What is in question is whether a breach of that moral duty should be codified into a criminal offence. To answer this, it is necessary to consider the legislative objectives behind s 23 of the IDA.

After the first case of HIV was reported in 1985, Part IIIA5 of the IDA was enacted a few years later in 1992 to address “irresponsible and dangerous behaviour” by PLHIV.6 This led to the introduction of the current s 23(1), which prohibits PLHIV from engaging in sexual activity unless he has informed his sexual partner of the risk of contracting HIV/AIDS from himself and that other person has voluntarily agreed to accept that risk. Subsequently, in 2008, s 23(2) was introduced to compel a person who has “reason to believe that he has” or “has been exposed to a significant risk” of contracting HIV/AIDS to disclose to their sexual partners the risk of contracting HIV/AIDS from him. The public health goal of s 23 generally therefore appears to be the prevention or reduction of HIV/AIDS infection as part of a larger strategy to end the HIV/AIDS epidemic. In addition, there is a normative element to the law where the non-disclosure of one’s HIV-positive status before engaging in sexual activity is regarded as “irresponsible” and morally reprehensible.7

The next section argues that the criminalisation of HIV non-disclosure may hinder, rather than help, efforts to end the HIV/AIDS epidemic. Section III suggests that existing provisions in the Penal Code are sufficient to prosecute irresponsible PLHIV.

III. CRIMINALISATION OF HIV NON-DISCLOSURE IS NOT EFFECTIVE

There does not appear to have been any local study on the effectiveness of the criminalisation of HIV non-disclosure on reducing HIV infection rates. However, epidemiological research in other contexts have suggested that such laws may not only be ineffective but also be counterproductive in achieving the purported goal of ending the HIV/AIDS epidemic.

Firstly, the criminalisation of HIV non-disclosure may perpetuate social stigma towards PLHIV. This occurs in two ways. On one hand, such laws may reinforce prevailing social attitudes and the culture of blame that regard PLHIV as irresponsible individuals who engage in high-risk sexual activity.8 On the other hand, the use of the criminal law in managing a public health problem can shape perceptions towards PLHIV not so much as patients who deserve medical care and support but as potential criminals whose behaviour must be coercively constrained.9

That such laws may perpetuate stigma towards PLHIV is significant because epidemiological research has found that HIV/AIDS stigma can seriously undermine wider efforts to address the epidemic.10 Firstly, studies in China, South Africa and France have demonstrated an association between either perceived or actual experience of stigma and increased risk behaviour.11 In addition, the reduction of stigma towards HIV/AIDS has been shown to have a significant impact on increasing HIV testing and treatment rates.12 For instance, a recent study in New York found that higher anticipated HIV stigma was associated with a lower probability of having been tested for HIV in the previous six months.13 Similarly, a review of studies done in Sub-Saharan Africa found that the fear of stigma contributes significantly to low HIV testing rates due to concerns with being seen at a testing centre, which was associated with sexual promiscuity and assumed HIV-positive status.14

This is concerning because current statistics already suggest that there is significant stigma in getting tested. Only 24% of new cases of HIV infection in 2016 were detected via voluntary HIV screening.15 In 2015, it was even lower at 18%, which HIV/AIDS advocacy group Action for AIDS described as “extremely worrying”.16 Since early testing and detection have been recognised as being critically important to ending the HIV epidemic given that “late diagnosis is associated with poorer clinical outcomes and greater opportunities for HIV transmission”,17 the negative impact that the criminalisation of HIV non-disclosure may have on HIV testing rates seems to run contrary to the very purpose it was enacted for.

Secondly, research has also demonstrated that such laws are ineffective in influencing behaviour in the first place.18 Such laws do not affect HIV risk behaviours either through mechanisms of incapacitation, norm setting and deterrence. Firstly, since very few individuals are incarcerated across jurisdictions for violating HIV non-disclosure laws, the law is not effective in removing irresponsible PLHIV from society to protect the general public. Secondly, the existence of such laws have not been shown to affect or change social attitudes or perceptions on moral responsibility regarding HIV transmission.19 Finally, there is also insufficient evidence to suggest that such laws are effective in deterring HIV risk behaviour, with mixed findings across different communities.20

Though these findings were based on research in other jurisdictions, they are at least indicative that such laws may not achieve the purpose of reducing HIV infection rates that Parliament had contemplated it would serve. Coupled with the negative impact that criminalisation has on stigma and HIV testing, such a law may not only be ineffective, but even counterproductive to achieving the intended goal of mitigating the HIV/AIDS epidemic in Singapore.

IV. CRIMINALISATION OF HIV NON-DISCLOSURE IS UNNECESSARY

Another reason behind the enactment of s 23 was to punish persons who irresponsibly transmit HIV/AIDS to others or put others at risk of contracting HIV/AIDS. However, considering the problems discussed in the previous section, it is suggested that existing criminal legislation can sufficiently address the risk of irresponsible transmission. Consequently, s 23 may be unnecessary to address such irresponsible sexual behaviour and its repeal should be seriously contemplated.

Firstly, s 326 of the Penal Code21 [PC] may be an appropriate legislation to criminalise the deliberate and malicious transmission of HIV. The provision makes it an offence for anyone to voluntarily cause grievous hurt by means of any substance which is “deleterious to the human body… to receive into the blood” and is punishable with an imprisonment term of up to 7 years. In conjunction with the repeal of s 23 of the IDA, Parliament may introduce the actual transmission of HIV/AIDS as a kind of grievous hurt under s 320 of the PC. Many other jurisdictions without HIV-specific laws, including the United Kingdom and Australia, have been able to address such reprehensible conduct in such a way.22

Furthermore, in comparison, the criminal penalties under s 23 seem extremely disproportionate given that the mere failure to disclose one’s HIV status may attract more serious consequences, namely imprisonment up to 10 years and a fine of up to $50,000, than the actual causing of hurt to another person. While this was allegedly justified on the basis of the “seriousness with which society views such offences”,23 this may not be a sound reason particularly when it relates to a group that is already vulnerable. Indeed, it has been suggested that such social attitudes may be “polluted at its core by fear of HIV or disdain for those who are infected with it”.24

Secondly, there are also other criminal provisions such as s 338 PC which relates to causing grievous hurt by doing a rash or negligent act. This may be used to prosecute an irresponsible PLHIV who does not take reasonable precautions in practicing safe sex. Alternatively, where there is no actual transmission of HIV, an irresponsible PLHIV may still be prosecuted under s 336 PC for an act that endangers the life or personal safety of other persons.

These laws therefore already sufficiently address situations where an irresponsible PLHIV either directly causes harm to others or puts others at risk of contracting HIV/AIDS. This may be preferable to s 23 IDA which compels all PLHIV to disclose their HIV-positive status. Given that there remains significant stigma against PLHIV in our society, s 23 IDA may impose a disproportionate and unfair burden on them. It is to this issue that we turn to in the next section.

V. CRIMINALISATION OF HIV NON-DISCLOSURE DISPROPORTIONATELY BURDENS PLHIV

Gostin proposed that public health law is a field that aims to “pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice”. In his view, the concept of social justice is founded upon two moral impulses that animate the field of public health: “to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged”.26 The criminalisation of HIV non-disclosure may run contrary to the values of social justice because it unfairly burdens PLHIV as a group that is one of the most vulnerable in our society.

One dimension of justice is distributive justice or proportionality, which demands that benefits and burdens be distributed fairly.27 In this regard, s 23(1) seems to impose an unfair burden of disclosure on those living with HIV. While it may be justified in relation to the specific situation contemplated by the then Minister of Health where wives of husbands who visit sex workers are especially vulnerable,28 it is less clear in other scenarios outside of marriage where the other party agrees to engage in unsafe sexual practices with the PLHIV notwithstanding his HIV-positive status. Given that s 23 contemplates consensual sexual activity, it may be potentially unjust to impose such a weighty legal burden on PLHIV in two ways. This is especially in light of their already vulnerable status in a society that remains both ignorant and hostile towards PLHIV.

Since practising safe sex can significantly reduce the risks of contracting HIV, mandating all PLHIV to disclose their HIV-positive status without affording them any other alternatives may be disproportionate and unjust. This is in light of the prevailing stigma against HIV in society: a PLHIV must either risk exposing himself to prejudice and discrimination if he discloses his HIV-positive status or potentially be prevented from experiencing sexual intimacy with another person at all. This is especially since there are no safeguards to prevent sexual partners from revealing this information to other persons.29 After all, the then Minister of Health had himself acknowledged that “a promiscuous person who practises safer sex, by using condoms every time he engages in sexual activity, is not considered at high risk of contracting HIV/AIDS”.30 This comment indicates the recognition that consistent condom use significantly reduces the risk of HIV transmission; there does not appear to be any reason why this same reasoning should not also be applied to avail PLHIV to the alternative of adopting responsible sexual practices over disclosing their HIV-positive status.

It may therefore be problematic that this duty is imposed on all PLHIV, including those with undetectable viral loads where the risk of transmitting HIV to others is negligible.31 Currently, about 77% of those diagnosed with HIV are on sustained treatment and about 82% of these individuals have undetectable viral loads.32 This means that about 63% of all PLHIV in Singapore are effectively non-infectious. It is not clear why these individuals should be imposed with the duty of disclosure when they are epidemiologically no different from a person with a HIV-negative status.33 There have been significant medical advancements since s 23 IDA was enacted and the law should accordingly be amended to reflect these developments.

In sum, even if Parliament decides against the complete repeal of the law, it is suggested that s 23(1) should be amended to give PLHIV an alternative option to disclosing their HIV-positive status by taking reasonable precautions. This option is available under s 23(2) to persons who have reason to believe that he has HIV/AIDS or have been exposed to a significant risk of contracting HIV/AIDS. It should be extended to PLHIV as well for two reasons. Firstly, s 23 was intended to punish irresponsible PLHIV. However, it imposes on responsible PLHIV who are compelled to disclose their HIV-positive status even if they actively make responsible choices in their sexual relations. Secondly, HIV is no longer the “death sentence”34 that people have once thought it to be and the law should be updated to reflect the medical developments in this respect.35

VI. CONCLUSION

The use and effectiveness of criminal law in public health management has always been controversial and this paper has presented a case for repealing, or at least reforming, s 23 of the IDA. While criminalisation of such behaviour may be intuitively appealing on moral and emotional grounds, these cannot be sufficiently reasonable grounds on which our laws are made. This does not mean that PLHIV or those at high risk do not have a moral duty to disclose their risk status to their sexual partners; indeed, it is unlikely that this moral duty is controversial at all. Rather, this paper has demonstrated that it is not clear that imposing criminal liability for HIV non-disclosure is necessarily justified.

Ultimately, this paper does not purport to have provided a conclusive answer; instead, it is hoped that the foregoing discussion will engender greater reflection on the matter. At a minimum, the criminalisation of HIV non-disclosure may not be as straightforward as many might intuitively assume. A review of this area of the law requires the contribution of experts from different disciplines and it is hoped that there will be more written on this subject beyond this paper.


* Fourth Year Student, Faculty of Law, National University of Singapore. An expanded version of this article titled “Evaluating the Criminalisation of HIV/AIDS Non-Disclosure Laws in Singapore” will be published in the upcoming Volume 36 of the Singapore Law Review. 

[1] Roy Chan, “HIV Registry data leak: Time for change to reduce stigma”, The Straits Times (31 January 2019), online  <http://afa.org.sg/time-for-change-to-reduce-stigma/>.

[2] Cap 137, 2003 Rev Ed Sing.

[3] UNAIDS, “Criminalisation of HIV Transmission”, online: <http://www.unaids.org/sites/ default/files/media_asset/jc1601_policy_brief_criminalization_long_en.pdf>.

[4] Global Commission on HIV and the Law, “Risks, Rights & Health”, online: <https://hivlawcommission.org/wp-content/uploads/2017/06/FinalReport-RisksRightsHealth-EN.pdf>.

[5] Now Part IV of the Act.

[6] Parliamentary Debates Singapore: Official Report, vol 59, col 447 (27 February 1992) (Minister for Health (Mr Yeo Cheow Tong)).

[7] Ibid.

[8] Catherine Dodds &, Peter Keogh. “Criminal Prosecutions for HIV Transmission: People Living with HIV Respond” (2006) 17 International Journal of STD & AIDS 315.

[9] Trevor Hoppe, “From sickness to badness: The Criminalization of HIV in Michigan” (2014) 101 Social Science & Medicine 139.

[10] Carol L Galletly & Steven D Pinkerton, “Toward rational criminal HIV exposure Laws” (2004) 32:2 The Journal of Law, Medicine & Ethics 327; Carol L Galletly & Steven D Pinkerton. “Conflicting Messages: How Criminal HIV Disclosure Laws Undermine Public Health Efforts to Control the Spread of HIV” (2006) 10:5 AIDS and Behaviour 451.

[11] Anish P Mahajan et al, “Stigma in the HIV/AIDS Epidemic: A Review of the Literature and Recommendations for the Way Forward” (2008) 22 AIDS S67.

[12] UNAIDS, “Confronting Discrimination: Overcoming HIV-related stigma and discrimination in health-care settings and beyond”, online: <http://www.unaids.org/sites/ default/files/media_asset/confronting-discrimination_en.pdf>.

[13] Sarit A Golub & Kristi E Gamarel, “The Impact of Anticipated HIV Stigma on Delays in HIV Testing Behaviors: Findings from a Community-Based Sample of Men Who Have Sex with Men and Transgender Women in New York City” (2013) 27:11 AIDS Patient Care and STDs 621.

[14] Maurice Musheke et al, “A systematic review of qualitative findings on factors enabling and deterring uptake of HIV testing in Sub-Saharan Africa” (2013) 13:1 BMC Public Health.

[15] Ministry of Health, “Update on the HIV/AIDS situation in Singapore 2017 (June 2018)”, online: <https://www.moh.gov.sg/content/ moh_web/home/statistics/infectiousDiseasesStatistics/HIV_Stats/update-on-the-hiv-aids-situation-in-singapore-2017--june-2018-0.html>.

[16] Channel NewsAsia, “Voluntary HIV screening rate in Singapore "extremely worrying": Action for Aids”, online (9 June 2016): <https://www.channelnewsasia.com/news/singapore /voluntary-hiv-screening-rate-in-singapore-quot-extremely-worryin-7986390>.

[17] Ibid.

[18] Zita Lazzarini et al, “Criminalization of HIV Transmission and Exposure: Research and Policy Agenda” (2013) 103(8) American Journal of Public Health 1350.

[19] Scott Burris et al, “Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial” (2007) 4 Ariz. St. L.J. 35.

[20] Ibid; Carol Galletly et al, “A Quantitative Study of Michigan’s criminal HIV exposure law” (2012) 24(2) AIDS Care 174; Pamina Gorbach et al, “Don't ask, Don't tell: Patterns of HIV Disclosure among HIV Positive Men who have sex with Men with recent STI practising High Risk behaviour in Los Angeles and Seattle” (2004) 80(6) Sexually Transmitted Infections 512.

[21] Cap 224, 2008 Rev Ed Sing.

[22] UNAIDS, “Background Paper – Criminalisation of HIV Non-Disclosure, Exposure and Transmission: Background and Current Landscape”, online: <http://www.unaids.org/sites/def ault/files/media_asset/JC2322_BackgroundCurrentLandscapeCriminalisationHIV_en.pdf>.

[23] Supra note 25.

[24] Scott Burris & Matthew Weait, “Criminalisation and the moral responsibility for sexual transmission of HIV” (2011) Working paper prepared for the Third Meeting of the Technical Advisory Group of the Global Commission on HIV and the Law, online: < http://bibliobase.sermais.pt:8008/BiblioNET/upload/PDF/0571.pdf>.

[25] Lawrence O Gostin, “A Theory & Definition of Public Health Law” (2007) 10 Journal of Healthcare Law & Policy 1.

[26] Ibid.

[27] Nancy E Kass, “An Ethics Framework for Public Health” (2001) 91:11 American Journal of Public Health 1776, 1780 citing Beauchamp and Childress. 

[28] Parliamentary Debates Singapore: Official Report, vol 84, col 2661 (22 April 2008) (The Minister for Health (Dr Khaw Boon Wan)).

[29] Section 25 of the IDA which protects the identity of persons with AIDS, HIV or other sexually transmitted diseases applies only to persons who is aware or has reasonable to believe that a person has AIDS or HIV in the performance or exercise of his functions or duties under the IDA.  

[30] Supra note 25.

[31] Alison J Rodger et al, “Sexual Activity Without Condoms and Risk of HIV Transmission in Serodifferent Couples When the HIV-Positive Partner Is Using Suppressive Antiretroviral Therapy” (2016) 316:2 Jama 171.

[32] Ministry of Health, “Speech by Dr Amy Khor at the 10th Singapore AIDS Conference, 3 Dec”, online: <https://www.moh.gov.sg/content/moh_web/home/pressRoom/speeches_d/ 2016/speech-by-dr-amy-khor-at-the-10th-singapore-aids-conference--3-d.html>.

[33] Myron S Cohen et al, “Prevention of HIV-1 Infection with Early Antiretroviral Therapy” (2011) 365:5 The New England Journal of Medicine 493.

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

[35] TodayOnline, “Life is better now for HIV patients in S’pore”, online (25 November 2015): <https://www.todayonline.com/daily-focus/health/life-better-now-hiv-patients-spore>.


The PDF version of this article is available for download here.

Footpath Warriors: A Proposed Sentencing Framework for Personal Mobility Device Accidents

By Darren Ang*

I. INTRODUCTION

The use of personal mobility devices [PMDs] on footpaths in Singapore has led to numerous PMD-related accidents,1 some of which have resulted in grave injuries to the victims.2 The propensity for PMDs to cause harm is well known by the public – there have been numerous calls to tighten legislative controls on PMD usage, including a request to completely ban PMD usage on footpaths.3

These calls have not gone unanswered, and Parliament has been consistently tightening legislative controls over PMD usage over the past year. The passing of the Active Mobility Act 20174 [AMA] added s 5A to the Road Traffic Act5, which expressly prohibits the use of PMDs on public roads in most circumstances. Following the AMA, the Active Mobility Regulations 20186 introduced additional controls over, inter alia, the sale and modification of PMDs.

While these legislative controls are relatively new, and their effectiveness cannot be conclusively determined, it unfortunately appears that the measures in place are still insufficient – calls for the complete banning of PMDs have not ceased.7 To supplement the legislative measures already in place, the courts may step in to pass sentence on PMD users who cause hurt to pedestrians, and in doing so, deter such careless behaviour enough to lower the incidence of PMD accidents.

II. SCOPE AND PURPOSE OF THE ARTICLE

This article proposes a sentencing framework for PMD accident cases where grievous hurt is caused, by reconciling the unique characteristics of PMD accident cases with the sentencing framework for causing grievous hurt by a negligent act that endangers human life under s 338(b) of the Penal Code8 [PC] in Tang Ling Lee v Public Prosecutor9 [Tang Ling Lee]. The offence of causing grievous hurt by a negligent act that endangers human life is chosen as a benchmark, as most reported PMD accidents would likely fall under this provision.10

III. THE TANG LING LEE FRAMEWORK

In Tang Ling Lee, See Kee Oon J laid down a general sentencing framework to be applied for road traffic cases charged under s 338(b) of the PC when the accused claims trial (referred to in this article as the ‘Tang Ling Lee framework’).11 The Tang Ling Lee framework is a two-step inquiry, which first categorises the offence under one of three pre-established categories to determine a starting point sentence (referred to in this article as the ‘three-category approach’). Following which, the framework allows further adjustments to be made to take into account the relevant mitigating and aggravating factors (referred to in this article as the ‘adjustments step’).12

At the first step of the inquiry, a presumptive sentencing range will be determined as a starting-point sentence, having regard to the twin considerations of harm and culpability.13 See Kee Oon J summarised the three-category approach in the following table format:14

  • Category 1:

    • Circumstances: Lesser harm and lower culpability;

    • Presumptive Sentencing Range: Fines.

  • Category 2:

    • Circumstances: Greater harm and lower culpability Or Lesser harm and higher culpability;

    • Presumptive Sentencing Range: One to two weeks’ imprisonment.

  • Category 3:

    • Circumstances: Greater harm and higher culpability;

    • Presumptive Sentencing Range: More than two weeks’ imprisonment.

See Kee Oon J defined “harm” as the “nature and degree of the grievous bodily injury caused to the victim(s)”15, and the “degree of culpability” as “the degree of relative blameworthiness disclosed by an offender’s actions … measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act”.16 Additionally, the factors which would affect the “culpability” limb under the three-category approach would include: (i) the manner of driving, (ii) the circumstances which might have increased the danger to road users, and (iii) the offender’s reasons for driving.17

IV. THE TANG LING LEE FRAMEWORK ADJUSTED FOR PMD ACCIDENTS

While the Tang Ling Lee framework was caveated to only apply to road traffic cases,18 it has been adjusted to apply in non-road traffic cases as well. Most notably, the District Judge in Public Prosecutor v Cai Mei Ying19 [Cai Mei Ying] applied the three-category approach under the Tang Ling Lee framework for a s 338(b) case involving a bicycle accident, but held that the presumptive sentencing ranges were not binding due to the different contexts in which the cases occurred.20

It is submitted that when a PMD accident case charged under s 338(b) of the PC reaches the courts, there would be no practical reason to deviate from the approach taken by the District Judge in Cai Mei Ying. Moreover, the District Judge in Cai Mei Ying noted that the Tang Ling Lee framework was expressly caveated to only apply to road traffic cases, but recognised that the parties had agreed that “because Tang Ling Lee involves the co-existence of vehicles and humans in shared spaces”, the framework was applicable to their case.21 PMD accidents also involve the “co-existence of vehicles and humans in shared spaces”, and it would follow that the approach taken in a future case involving a PMD accident is likely to be similar to the approach taken by the District Judge in Cai Mei Ying.

It would then be apposite to consider what adjustments might be made to the Tang Ling Lee framework for PMD accident cases, and it is argued that the main considerations for adjusting the Tang Ling Lee framework in these cases would be: (i) the lower propensity for PMDs to cause harm when compared to motor vehicles (referred to in this article as the ‘harm factor’), and (ii) the objective of general deterrence (referred to in this article as the ‘deterrence factor’). If the courts were to follow the approach in Cai Mei Ying for adjusting the Tang Ling Lee framework, they would apply the three-category approach without using the presumptive sentencing ranges, and then account for the above two considerations at the adjustments step of the Tang Ling Lee framework. These two considerations will now be dealt with in turn.

A. Downward adjustments for the ‘harm factor’

PMDs have a lower propensity to cause harm than motor vehicles, as they travel at lower speeds and are not as heavy as motor vehicles. This could warrant a downward adjustment of the starting-point sentence at the adjustments step of the Tang Ling Lee framework.

As discussed above, the approach in Cai Mei Ying ought to be the first port-of-call for the discussion. However, the District Judge in Cai Mei Ying did not make a clear finding on the effect of the ‘harm factor’, though it was noted that as a guiding principle, “drivers of heavy vehicles stand to receive heavier punishments than riders of light vehicles due to the greater damage their vehicles can cause”.22

It is then helpful to consider the approach taken in Public Prosecutor v Khairul bin Hairuman23 [Khairul], which was a case involving a fatal bicycle accident. The accused in Khairul was charged under the rashness limb of s 304A of the PC, and the District Judge applied the three-category approach from the case of Public Prosecutor v Ganesan Sivasankar24 [Ganesan], including the presumptive sentencing ranges.

The Ganesan framework was also laid down by See Kee Oon J to apply to any s 304A rashness case when the accused claims trial, and it uses a three-category approach followed by an adjustments stage as with the Tang Ling Lee framework.25 The only differences between the two frameworks are that the Ganesan framework does not consider the harm caused (as it is, by definition of the offence, the death of the victim),26 and that the presumptive sentencing ranges in Ganesan under the three-category approach are more severe. The table laid out by See Kee Oon J in Ganesan is illustrative of these differences:27

  • Category 1:

    • Accused’s culpability: Low;

    • Presumptive sentencing range: 3 to 5 months’ imprisonment.

  • Category 2:

    • Accused’s culpability: Moderate;

    • Presumptive sentencing range: 6 to 12 months’ imprisonment.

  • Category 3:

    • Accused’s culpability: High;

    • Presumptive sentencing range: More than 12 months’ imprisonment.

The District Judge in Khairul found that the accused’s conduct fell within Category 2 of the Ganesan framework, and then discounted the accused’s sentence at the adjustments stage to “reflect the lower consciousness of risk of harm towards others associated with the riding of the bicycle in comparison with the riding or driving of motorised vehicles”.28

The approach in Khairul would support the position that the lower propensity for PMDs to cause harm could count for a significant downward adjustment at the adjustments stage of the Tang Ling Lee framework.

B. Upward adjustments for the ‘deterrence factor’

As discussed in the introduction of this article, PMD usage is an issue of great public concern in Singapore, and deterrent sentencing in the courts would be an appropriate supplement for the legislative controls already in place. Therefore, the court may be inclined to make an upward adjustment of the starting-point sentence for the purpose of general deterrence.

In Cai Mei Ying, the ‘deterrence factor’ was effectively the only aggravating factor taken into consideration at the adjustments stage of the Tang Ling Lee framework.29 Interestingly, the District Judge was cognisant of the issue of PMD accidents, classifying both cyclists and PMD users within the same class of persons and commenting that “with the increased popularity of PMDs and the use of bicycles … all cyclists and users of PMDs must be reminded to take extra care when they are in shared spaces”.30 Therefore, it is likely that the court would take the ‘deterrence factor’ as a significant aggravating factor at the adjustments stage of the Tang Ling Lee framework.

Additionally, a common thread that binds most cases charged under s 338(b) of the PC is that the accused person had breached certain safety regulations which led to the accident – the accused in Cai Mei Ying was cycling in a no-cycling zone31 and the accused in Tang Ling Lee failed to give way to a motorist with the right of way32. The breach of safety regulations counted towards a finding of higher culpability at the three-category approach stage, ultimately leading to a higher starting-point sentence. Therefore, it could be argued that the purpose of general deterrence is served indirectly at the “culpability” limb of the three-category approach.

V. CONCLUSION

To summarise the proposed method for adjusting the Tang Ling Lee framework for PMD accident cases charged under s 338(b) of the PC, the courts are likely to apply the three-category approach without using the presumptive sentencing ranges to determine a starting-point sentence. Following which, at the adjustments stage, the court would account for the ‘harm factor’ to adjust the starting-point sentence downwards and the ‘deterrence factor’ to adjust the starting-point sentence upwards.

For PMD users, who would bear the full brunt of this proposed method, the message is clear – if ever placed in an unfortunate s 338(b) situation where the harm has already been caused, it would be in their best interest to render as much assistance to the victim as necessary and comply with all orders, for a possible finding of lower culpability.


* A most heartfelt thanks to Professor Alan Tan, for answering my queries and helping immensely with the framing of my research questions.

[1] Adrian Lim, “Parliament: About three accidents a week involving personal mobility device users” (8 January 2018), The Straits Times, online: <www.straitstimes.com/politics/parliament-average-of-three-accidents-a-month-involving-pedestrians-and-personal-mobility>.

[2] Shaffiq Idris Alkhatib, “Teen e-scooter rider pleads guilty in incident which caused pedestrian severe brain injuries” (13 June 2018), The Straits Times, online: <www.straitstimes.com/singapore/courts-crime/teen-e-scooter-rider-pleads-guilty-in-incident-which-caused-pedestrian-severe>.

[3] Desmond Ng & Kan Lau, “Why being hit by an e-scooter can be deadly – and a call to ban them from footpaths” (20 May 2018), Channel NewsAsia, online: <www.channelnewsasia.com/news/cnainsider/e-scooter-ban-footpaths-accidents-safety-registration-debate-10250946>.

[4] No 3 of 2017, Sing.

[5] Cap 276, 2004 Rev Ed Sing.

[6] S 251/2018 Sing.

[7] Rodney Tan, “It Is Time to Ban E-Scooter[s] in Singapore” (last updated 11 December 2018), ipetitions, online: <www.ipetitions.com/petition/it-is-time-to-ban-e-scooter-in-singapore>.

[8] Cap 224, 2008 Rev Ed Sing.

[9] [2018] SGHC 18; [2018] 4 SLR 813.

[10] For example, see supra, notes 1-3.

[11] Supra note 9 at [32].

[12] Ibid.

[13] Ibid.

[14] Ibid at [31]. The information is represented in table format in the PDF version of this article.

[15] Ibid at [25].

[16] Ibid.

[17] Ibid at [27].

[18] Ibid at [24].

[19] [2018] SGMC 56.

[20] Ibid at [23].

[21] Ibid at [20].

[22] Ibid at [24].

[23] [2018] SGMC 16.

[24] [2017] SGHC 176; [2017] 5 SLR 681.

[25] Ibid at [54].

[26] Ibid.

[27] Ibid at [55]. The information is represented in table format in the PDF version of this article.

[28] Supra note 23 at [38].

[29] Supra note 19 at [37].

[30] Ibid.

[31] Ibid at [2].

[32] Supra note 9 at [5].


The PDF version of this article is available for download here.

In-Conversation with Mr. Benjamin Szeto, Partner and Deputy Head of RHTLaw Taylor Wessing’s Private Wealth Industry Group

By Keith Wong and Choo Qian Ke

As a regional hub, Singapore remains an attractive location for both home-grown and international law firms. It comes as no surprise that RHTLaw Taylor Wessing has carved out a noticeable niche for itself in the Singapore market. As a law firm that delivers international capabilities with a network of more than 3300 legal professionals across 27 jurisdictions in Asia, the Middle East, Europe and the United States, the firm’s model is driven by its focus on helping clients succeed. RHTLaw Taylor Wessing’s ability to cater to the international needs of its clients is accentuated by its access to a wealth of international resources from the firm’s membership of the Interlex Group and the ASEAN Plus Group. For clients, RHTLaw Taylor Wessing provides a one-stop solution by operating as a single unit while delivering multi-jurisdictional and multi-disciplinary representation on complex transactions.

From left to right: Mr Szeto, Keith Wong (Journal Executive Editor), Choo Qian Ke (Journal Executive Editor), and Mr Siow.

From left to right: Mr Szeto, Keith Wong (Journal Executive Editor), Choo Qian Ke (Journal Executive Editor), and Mr Siow.

RHTLaw Taylor Wessing offers a diverse range of tailor-made services. One example is the firm’s deep understanding of philanthropy as evidenced by its experience advising a suite of non-governmental organisations, international charitable organisations, charities and institutions of public character. In the same vein, RHTLaw Taylor Wessing is particularly established in the private-wealth sector, with particular expertise in advising entrepreneurs and business owners. The firm’s strong emphasis on issues of interest to clients, including an appreciation of art, reflects the firm’s commitment to understanding its client base. The result is a holistic Art Law Practice comprising lawyers who are passionate about the arts and armed with practical experience in dealing with the art world. With a suite of services in art financing, legacy planning and philanthropy, it comes as no surprise that RHTLaw Taylor Wessing’s achievements were recognised at the WealthBriefingAsia Awards 2018.

To better understand this sector, the Singapore Law Review spoke with Mr. Benjamin Szeto, partner and Deputy Head of RHTLaw Taylor Wessing’s private wealth industry group.

As a Registered Trust and Estate Practitioner of the Society of Trust and Estate Practitioners and an author for LexisNexis Practical Guidance Singapore on Trusts, Mr. Szeto has over 20 years of experience advising High Net Worth Individuals (“HNWIs”), entrepreneurs, financial institutions, listed entities and Fortune 500 corporations on a wide range of transactions. In the private wealth industry group, Mr. Szeto designs bespoke solutions, structures and strategies to assist clients with the key aim to separate business risks from family wealth.

The Secret Recipe Behind RHTLaw Taylor Wessing’s Impressive Achievements

At the Wealth Briefing Asia Awards 2018, RHTLaw Taylor Wessing was recognised as having demonstrated “innovation and excellence” in its business. As such, we started off our interview by seeking Mr Szeto’s views on what has set the firm’s work a tier above that of others to earn it its acolades.

Mr. Szeto highlighted RHTLaw Taylor Wessing’s industry group approach as one of the factors that contributes to the firm’s uniqueness. Unlike most other law firms that are typically organised according to practice areas such as litigation, corporate, intellectual property and conveyancing, RHTLaw Taylor Wessing adopts an industry group organisational structure. The wide range of industry groups span from consumer brands to energy and environment. Mr. Szeto himself helps helm the private wealth industry group. The advantage of having this approach lies in the partners’ ability to better serve the needs of clients from within each industry group. Clients from different industry groups have different sets of problems and issues that they need to address. By being attuned to the issues pertinent to the respective industry groups, lawyers at RHTLaw Taylor Wessing possess perceptive knowledge of the key concerns and considerations of clients specific to every industry group. Such an approach thereby allows lawyers to better understand their clients’ industries and tailor solutions that meet the clients’ needs.

Mr. Szeto also highlighted RHTLaw Taylor Wessing’s ASEAN-centric focus. Via the ASEAN Plus Group, which is a regional network of full-service and well-established law firms in ASEAN plus China, Taiwan, Hong Kong, Japan and Korea, RHT Law Taylor Wessing facilitates its clients' cross-border regional transactions, allowing them to navigate the region and its opportunities with confidence, providing an integrated suite of services across different practice areas and in different ASEAN jurisdictions. This is appropriate since the nature of private wealth is now very global, which alludes to the necessity to serve clients’ needs that may span across multiple jurisdictions. Being attuned to the nuances of working in Asia while also possessing the added perspective and expertise of an international firm has allowed RHTLaw Taylor Wessing to be very efficient in delivering bespoke and comprehensive legal services for clients and multi-disciplinary representation on complex cross-border transactions both in Singapore and on an international level.

Mr Szeto also shared that one of RHT Law Taylor Wessing’s strengths is in the areas of art and philanthropy. Art and philanthropy are very aspirational areas that a lot of private clients are most interested and passionate about. As such, having capabilities and expertise in these areas allow the firm to put together solutions that are not just about meeting legal needs but also about addressing the passions and aspirations of some of these private wealth clients.

Unravelling RHTLaw Taylor Wessing’s International and Regional Practice

Apart from engaging in legal work, Mr. Szeto also looks at regional business development aspects for the private wealth industry group. RHTLaw Taylor Wessing is extremely regional in their private wealth industry outlook. For example, the firm has a strong Indonesian client base, a strong foothold in Hong Kong and good dealings with clients from China. Additionally, they are looking at expanding to other ASEAN countries, especially markets like the Philippines and Vietnam.

RHTLaw Taylor Wessing also has a strong regional focus in its other industry groups and practice areas. They have established regional clients ranging from listed entities to top tier Fortune 500 companies and international banks. To address the various needs of its clients, RHTLaw Taylor Wessing advises on a variety of matters directly from the Singapore office, or will work with its partners in the ASEAN Plus Group on international matters. For example, a client seeking to complete a cross-border M&A transaction can deal with the firm without the need to separately seek advice across multiple jurisdictions. This is one of the forms of cross border support that the firm can provide for its clients. As noted by Mr. Szeto, these days, lawyers have to go beyond just doing the legal work, and must instead provide clients with an experience that is as seamless and efficient as possible.

What Is Private Wealth?

To gain deeper insight into Mr. Szeto’s line of work, we asked him to share certain challenges and points to note when working with private wealth clients. In dissecting the term “private wealth”, we were directed to two sub-groups, namely, the private client and the intermediaries.

In the first group, the private client includes HNWIs, the families, and the family offices. Generally, such clients tend to be the businessowners themselves. As for the second group, intermediaries include corporate parties such as private banks, trust companies and insurance groups.

A key point during our conversation was the importance of context and understanding the values, position, and internal dynamics of each group. Mr. Szeto highlighted the importance of understanding each client’s unique needs, business model and their long-term concerns. In the process, rapport is also developed, strengthening the long-term partnership between the client and the firm.

For lawyers engaged in this field, business development is paramount. Outside of Singapore, Indonesia and the People’s Republic of China are still key drivers of growth. While demand for lawyers in the private wealth sector is strong, the competitive climate demands effective solutions delivered through a seamless network.

As our conversation developed, the world of private wealth seemed all the more attractive. Amid the glitz and glamor often associated with the private wealth sector however, Mr. Szeto quickly pointed out the inevitable overlap with corporate work which one should be prepared to face. This stems from having to assist clients in fulfilling various objectives. Take for example, mergers and acquisitions between companies, purchasing of property in various regions, and the incorporation of new entities. One must also be well-versed in trust structures.

Additionally, the nature of a family business may have implications not often found in other areas. From his experience, a common issue is the tendency to not draw a clear line between the family business and the family fortune. In the long-run, this leads to complications with wealth preservation, legacy planning, and asset protection. Ideally, the two should be kept distinct, given the cyclical nature of businesses and its potential impact on the family fortune.

In areas like these, RHTLaw Taylor Wessing offers solutions to address the needs of clients irrespective of the region or jurisdiction concerned, where necessary liaising with other foreign counsel.

Multiplying Experiences and Perspectives

Impressed by Mr. Szeto’s wide array of experiences ranging from a Master of Science (Real Estate) from the National University of Singapore to a Diploma in Financial Management from the Association of Chartered Certified Accountants, as well as being a Trust and Estate Practitioner of the Society of Trusts and Estate Practitioners, we had to ask him for his thoughts on the insights that his multitude of experiences have rendered to his practice.

Mr. Szeto wisely propounded that lawyers have to understand that they are working with clients in a context. Client advice is multi-disciplinary in nature. Lawyers cannot look at issues in a silo. Moreover, clients these days expect lawyers to not just give good legal advice, but also to understand, comprehend and have a good grasp of the other commercial issues. To quote Mr. Szeto, “Now as lawyers, we are expected to be a jack of all trades, and a master of one”. In short, lawyers have to be good at law, but conversant in other areas as well.

Mr. Szeto shared that his training in real estate and finance have really given him the ability to have a much more rounded conversation with his clients. The width and depth of knowledge that he possesses help him to understand issues much better. In addition, there is no excuse or reason for him to feel intimidated when people talk about foreign non-legal concepts such as balance sheets or income statements. Furthermore, the real estate background is very important especially in the area of private wealth and in dealing with Asian-based families as real estate is a favourite asset class among high net worth clients. To be able to connect with them on a non-legal level and discuss about their real estate investments really goes a long way. Thus, Mr. Szeto personally feels that having skills outside law will help one to become a more rounded person, allowing one to have a more holistic view of various fields. Having qualifications, whether at a rudimentary level or at a more formal level, will definitely help any lawyer in practice.

Parting Advice

In response to our request for his advice and recommendations to aspiring lawyers and students, the first piece of advice that Mr. Szeto gave is to read more widely. While acknowledging the pressure and stress in law school, Mr. Szeto stressed that it would be ideal if law students had the opportunity and time to read beyond our core competencies in law. For instance, students interested in the private wealth space can go a bit deeper into the industry. There are many issues such as common reporting standards, investments, and diverse asset classes. Developments are vast and rapid, and for any student keen on pursuing a career in any particular space, it is good to start to have a feel of what is happening in that space, to explore and to keep abreast of developments by reading widely.

Mr. Szeto’s second piece of advice is to sharpen one’s people skills. Mr. Szeto encourages young lawyers and students to hone client development skills, interaction skills and interview skills, given that people skills are definitely one aspect of practice that cannot be neglected. For example, in the private wealth space, people skills are especially important as clients may not be so direct in their communications, so lawyers would need to figure out what exactly clients are trying to convey.

As concluding remarks, Mr. Szeto recommends young lawyers in their early years of practice to seize every networking opportunity possible. Ultimately, there is value in having a wide network of people that you can turn to for support, as the nature of lawyering is very people-oriented.

Indeed, a timely reminder that as service providers, we as lawyers and lawyers-to-be must always keep abreast with the human aspect of law.

The Singapore Law Review would like to thank Mr. Benjamin Szeto and RHTLaw Taylor Wessing for accommodating our members, Keith Wong and Choo Qian Ke. We are very appreciative of the opportunity to engage and share in such an inspiring and insightful conversation with Mr. Benjamin Szeto.

Singapore Law Review Annual Lecture 2018 - The Obsolescent Judge

By Zhao Junning and Ng Wei Siang

Introduction

The 30th edition of the Singapore Law Review Annual Lecture titled ‘The Obsolescent Judge’ was delivered by the Honourable Justice Aedit Abdullah on 16 October 2018. In a move befitting of the 30th edition of the Lecture, Justice Abdullah departed from traditional black letter law topics to discuss technological advances and their impact on the legal profession. The particular focus in his Lecture was their impact on the role of a judge. While Justice Abdullah prefaced that the Lecture would not be definitive as a forecast, the Lecture certainly delivered on his expectations to provoke some thought and discussion among the audience.

Justice Abdullah delivering the 30th Singapore Law Review Annual Lecture.

Justice Abdullah delivering the 30th Singapore Law Review Annual Lecture.

Justice Abdullah discussed four main points during his Lecture:

I. Technological disruptions are not something new;

II. Societal responses determine the impact of new technologies;

III. The impact technological developments have on the legal profession;

IV. The future of judging.

I. Technological disruptions are not something new

It is hard to imagine that many of the things that are available to us were once technological innovations that disrupted various professions. Using the example of electrical lighting, Justice Abdullah noted how its advent rendered the profession of lamplighters obsolete. Justice Abdullah further mentioned that just like the lamplighter, various other professions are no longer existent due to technological innovations. Knocker-uppers used to wake workers up. Pin-setters used to assist in resetting pins in bowling alleys. Lighthouse keepers used to maintain lighthouses dutifully. Yet these have all become jobs of yesteryear with the advent of technology.

Justice Abdullah then posed a question to the audience: could the vision of the immutable, distant, and all-knowing judge be sustained in light of technological innovations?

Building on the question posed to the audience, Justice Abdullah observed that much of the structure of the legal system was due to history and tradition. The adoption of English Common Law in Singapore had a huge influence on the many court processes and institutional structures in place, such as the forms that have to be filed, interlocutory judgments, and cross-examinations. Justice Abdullah queried the audience: if one could design a system from scratch, would he or she set it up in the way it currently is?

Justice Abdullah highlighted, inter alia, that several considerations that might be addressed in the future in lieu of technological innovations include:

• Whether asynchronous hearings would be possible;

• Whether parties have to be present in a courtroom;

• Whether lawyers will be needed in all cases.

Many often forget that changes to legal systems are not new. Justice Abdullah gave the example of the writ system in England. Under the writ system, it was essential that a claim was framed in a specific manner and pursued in the correct court. It was only until the courts in England underwent a massive restructuring in the 19th century that the rules were less rigid.

II. Societal responses determine the impact of new technologies

While acknowledging that we are constrained by our history, Justice Abdullah suggested that we are at the cusp of a new era of development in the legal system. Nevertheless, societal acceptance guides technological developments and the impact they have.

Justice Abdullah highlighted four factors that affect the implementation of new technologies: cost, efficiency, access to justice, and autonomy.

With regard to cost, Justice Abdullah gave the example of the Concorde planes that used to fly between London and Singapore. While such technology was innovative for its time, high costs meant that such flights were uneconomical leading to their cessation.

Moving on to the factor of efficiency, Justice Abdullah indicated that efficiency affects whether a technological innovation will be successful. A technological innovation that allows one to save time is more likely to be successful.

As access to justice is an important aim in the legal profession, Justice Abdullah opined that technological innovations that increase access to justice are likely to find acceptance.

Lastly, Justice Abdullah noted that there is a strong desire for personal autonomy in contemporary societies: the modern person wants to be able to make decisions for himself or herself. The learned judge shared that he would check his symptoms on the internet before going to the doctor. The reason for doing so was not cost, but because he wanted to take charge of his own health. Justice Abdullah observed that there is a similar trend in the legal profession. Litigants-in-Person have demonstrated an increased willingness to file their own claims and affidavits.

These four societal factors exhibit a degree of pressure on the legal system and determine whether the technology is adopted.

III. The impact technological developments have on the legal profession

Justice Abdullah moved on to provide a quick survey of the various technologies that are in use in legal systems around the globe.

Turning first to the legal technologies present today, the first technology discussed by the learned judge was artificial intelligence: some law firms have adopted technology that helps them to analyse documents, draft contracts, aid in the discovery process, and predict outcomes. Beyond law firms, Justice Abdullah noted that the People’s Republic of China’s legal system has been very open to adopting artificial intelligence with predictive technology for litigants, and adopting technology to help their judges research and find relevant or similar cases. The learned judge further noted that the same could be said for the United States of America, with prediction systems that rival the Chinese in accuracy as well as programmes to help with, inter alia, bail and sentencing. The Americans also rely on artificial intelligence to assist in dispute resolution for online commerce, with programmes suggesting solutions for human controllers.

Justice Abdullah then discussed data mining, which he observed is generally used in conjunction with artificial intelligence to analyse data and provide solutions. The more data available, the higher the likelihood that the programme will provide an appropriate solution.

Lastly, the learned judge gave his views on blockchains. Justice Abdullah considered the possibility that with a trusted system, the need for human verification may be removed in many cases. The system would be able to get a result on its own once the process is initiated.

IV. The future of judging

With such technologies mind, Justice Abdullah considered their impact on the role of judges in the future.

Firstly, Justice Abdullah opined that where parties had something to prove as a matter of principle, they would still want to come to court.

Secondly, the learned judge noted that for commercial cases such as those pertaining to insurance, systems with a high level of predictive accuracy would result in a decrease in litigation. In such cases, the judge would only be required to act as a reviewer of the initial decision where parties are dissatisfied with the outcome the system provides. Additionally, Justice Abdullah noted a category of cases which are largely administrative which artificial intelligence has a greater role to play.

Thirdly, Justice Abdullah suggested that for a category cases where a balancing of various factors is required, the impact of predictive systems may be more limited. Situations mentioned by Justice Abdullah include: forum non conveniens applications; sentencing outcomes; bail applications; and an assessment of damages. As various factors often pull in different directions, finding the right solution is an art and the role judges play is still essential. In Family Law cases, while there are systems that attempt to predict the division of matrimonial property, there is a personal dimension to such cases which a machine may not be suited to deal with. Additionally, Justice Abdullah noted that with regard to sentencing outcomes, most people would not want their liberty to be at the hands of a machine, or even to be assisted by one.

Lastly, Justice Abdullah opined that the area of developing new rules will be closed off to artificial intelligence. While the learned judge noted that it is theoretically not out of the realm of possibility, it would take a long time before humans would be willing to hand over such decisions to machines.

Ultimately, Justice Abdullah suggested that trial judges in particular may have to evolve. A possible scenario is that role of the trial judge may have to be expanded to become more like a counsellor and assist the parties in achieving a lasting solution.

Conclusion

Justice Abdullah emphasised that the point of the lecture was not to predict what the future held, but to suggest that there will be technological disruptions to the legal system. The learned judge noted that no aspect of the legal system is immune from changes, judges included. Justice Abdullah also mentioned that the system of justice is about achieving justice for the individual citizen and it does not owe a living to anyone in the legal profession.

There is little doubt that Justice Abdullah’s message was well-received. The authors spoke to members of the audience at the conclusion of the Lecture during the dinner reception. A member of the audience noted that: “The Lecture was very timely, and it covered big issues. It was a great introduction to the issues covered.” Another attending professional from the technological sector said: “Justice Abdullah knows a lot about legal technology. The topic was relevant and is good to know areas in legal technology that Justice Abdullah considers more promising in the future.”

Associate Professor Eleanor Wong presenting a token of appreciation to Justice Abdullah.

Associate Professor Eleanor Wong presenting a token of appreciation to Justice Abdullah.

Justice Abdullah ended the Lecture with a message to the students in the audience. While no one could be certain whether technological disruption to the legal system would ultimately occur, even if the legal system in the future was different, with the right effort, right thinking, and right energy, Justice Abdullah remained optimistic that the legal system would continue to serve the needs of the citizen.

On the subject of technology’s impact on the law, the Singapore Law Review is currently organizing a call for papers on law and technology with the region’s leading specialist in the field, LawTech.Asia. Full-length essay submissions can be made to journal@singaporelawreview.com by 29 October 2018, while shorter articles below 2,0000 will be received any time at hello@lawtech.asia.

The Turf Club Articulation of Wrotham Park Damages: A Curious Kind of Compensation?

By Stephanie Ng Wenli*

I. INTRODUCTION

What happens when a negative covenant is breached, specific relief is not available, and no financial loss was suffered? Owing to the ingenuity of the common law, one can claim for Wrotham Park damages. Formulated by Brightman J in Wrotham Park Estate Co Ltd v Parkside Homes Ltd1 [Wrotham Park], Wrotham Park damages represent a hypothetical sum of money that might reasonably be demanded by the claimant as quid pro quo for releasing the defendant from the obligation breached (‘hypothetical bargain measure’).2 While Brightman J’s creation was admirably inventive, it also incited a wellspring of controversy in succeeding years.3 In particular, a great deal of ink has been spilt in determining the conceptual basis of Wrotham Park damages – are they compensatory or restitutionary?

The recent case of Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua4 [Turf Club] sought to resolve this controversy.5 According to the SGCA, Wrotham Park damages are an established part of our contractual firmament, and may be characterised by three features. First, they are an “independent head” of damages.6 Second, they are “measured objectively” by simulating a hypothetical bargain between parties, and quantifying the award with reference to the defendant’s anticipated profits (as opposed to actual profits).7 Third, they are aimed at compensating the plaintiff for the “loss of the performance interest itself”,8 thereby making them compensatory and not restitutionary.9

The final point is the most controversial, and raises a central question that this article seeks to answer: Is the SGCA guilty of strong-arming Wrotham Park damages into a compensatory framework? Or is the decision a shining testament to the remedial flexibility of compensation? This article will show that the latter is the case. Going further, it will also explain why a compensatory account of Wrotham Park damages is nevertheless novel, and consider alternative accounts.

II. THE TEST DETERMINING THE AWARD OF WROTHAM PARK DAMAGES

Before dealing with the conceptual basis of Wrotham Park damages, it is critical to note the legal test that has to be satisfied before they will be awarded. According to the SGCA, Wrotham Park damages should only be awarded “in a specific and limited category of cases”,10 where the following three requirements are satisfied.11

(a) First, there must be a remedial lacuna, which arises when both orthodox compensatory damages and specific relief are unavailable, and yet “there is still a need to provide the plaintiff with a remedy to protect the plaintiff’s performance interest”.12

(b) Second, the obligation breached must be a negative covenant. This is because the hypothetical bargain measure underpinning Wrotham Park damages is most relevant and appropriate in cases involving negative covenants.13

(c) Third, the fiction of the hypothetical bargain cannot be taken too far. The court must be able “construct a hypothetical bargain between the parties in a rational and sensible manner”.14 This means that Wrotham Park damages will not be awarded in a case where “it would be irrational or totally unrealistic to expect the parties to bargain for the release of the relevant covenant, even on a hypothetical basis”.15 A clear example of this is when it is legally impermissible to negotiate for the release of the covenant.16

III. THE CONCEPTUAL GRID ON WHICH WROTHAM PARK DAMAGES HANG: MY LOSS OR YOUR GAIN?

To support its holding that Wrotham Park damages were compensatory in nature, the SGCA leveraged heavily on the concept of performance interest. The Wrotham Park measure was simply another tool in the court’s remedial arsenal that seeks to make good the plaintiff’s loss, thereby protecting his interest in contractual performance.17 What then, does performance interest mean?

A. Performance interest and the remedies that protect it

A good place to start is Friedmann’s seminal article, The Performance Interest in Contract Damages. It was duly cited by the SGCA in Turf Club,18 and is significant for a number of reasons. First, it established the plaintiff’s right to performance (and the defendant’s correlative duty to perform) as a fundamental aim of contract law.19

Second, it explained the remedial ways in which this right to performance is protected.20 Specific performance for instance, directly vindicates the right, with the plaintiff receiving exactly what he contracted for. In contrast, compensatory damages vindicate this right in economic terms, with the plaintiff receiving monetary compensation to the extent necessary to put him in the same position as if the contract had been performed.21

Third, it stressed the importance of distinguishing between rights and remedies.22 Indeed, it is easy to forget that the right to performance is almost never fully honoured at the remedial end. Compensatory damages—if awarded—are often cut back for one reason or another23 (see for example, the Ruxley reluctance to award cost of cure damages,24 or the discount applied when awarding loss of chance damages).25 This reveals how our compensatory remedies protect the plaintiff’s right to performance modestly at best. As such, the recognition of a measure of compensation as hypothetical (and one might say, fictitious) as Wrotham Park damages is nothing short of bold. It is therefore no surprise that the SGCA spent a great deal of time justifying and defending the compensatory nature of Wrotham Park damages. This will be discussed below.

B. The approach adopted: Wrotham Park damages as objective compensation

One of the perennial objections that the SGCA had to address was how Wrotham Park damages cannot be compensatory because the plaintiff did not suffer any identifiable loss for which compensation is warranted.26 The SGCA’s riposte was that the infringement of the plaintiff’s right to performance was itself a loss that merited compensation.27 In assessing the value of this lost right, the court will employ the hypothetical bargain measure. Crucially, the fact that such compensation is premised solely on the infringement of an abstract right to contract performance, without requiring the plaintiff to point to any subjective loss suffered, is what makes Wrotham Park damages so novel. Cunnington calls this objective compensation, which is distinct from subjective compensation. Its award is not based on any subjective loss identification, but on the objective valuation of the plaintiff’s right to performance.28 While this subjective-objective distinction to compensation was not expressly adopted in Turf Club, it is immensely useful in helping us understand why Wrotham Park compensation occupies such a special place in the landscape of contractual compensation.

When the law awards compensation for a breach, it is often taken for granted that such compensation is measured in subjective terms. This is why the plaintiff must prove “the fact of damage” before he can be compensated for it.29 Conventional compensation is subjective and therefore contingent on loss identification. In Turf Club however, the SGCA silently departed from this convention by grounding Wrotham Park compensation in objective terms instead. Such compensation would not flow from proving subjective loss, but from the objective infringement of performance interest.30 The significance of this shift cannot be overstated, as it boldly recognises a head of compensation that does away with loss identification.

However, this does not explain why the objective compensation account should be accepted over other accounts. One alternative is to persist in the compensatory analysis, but rationalise Wrotham Park damages as subjective compensation by creatively locating the loss in the lost opportunity to bargain for a release of the obligation breached.31 Another alternative is to relinquish the compensatory analysis altogether, and instead concede that Wrotham Park damages are restitutionary. The first alternative can be easily rejected – section C will show that such loss-based reasoning is too strained to make sense. In contrast, the second alternative does show some promise – this will be explained further in section D.

C. Alternative account 1: Wrotham Park damages as subjective compensation

The first alternative is to locate the plaintiff’s loss in the lost opportunity to bargain for a release of the obligation breached (i.e. ‘lost opportunity’ articulation).32 Unfortunately, this articulation runs into two problems. Firstly, it carries more than a whiff of artificiality. Such an articulation is constructed from a fictional narrative which casts the parties as willing negotiators, even though they may not actually have been willing to negotiate on the facts.33 It thus makes no sense to claim that there was a loss, because any ‘loss’ is entirely imaginary.

Secondly, close scrutiny reveals that this ‘lost opportunity’ articulation is not strictly a loss at all.34 A Wrotham Park loss is not a loss of future opportunity that may or may not materialise. Instead, it is a missed past opportunity that exists only in the hypothetical realm. In fact, one could even go as far to say that it was not so much lost as it was given up or foregone. The examples below illustrate this difference.

(1) Suppose P goes to a hairdresser (D) who offers the following service: In consideration of P donating a minimum length of hair (say, 5 inches) which D will then sell it to a wig manufacturer for a profit, he will waive any hairdressing charges that would otherwise apply. P enters into a contract with H, telling him that she is only willing to donate the minimum 5 inches, in return for the free haircut promised. However, D ends up cutting off over 15 inches in breach of contract, and proceeds to sell them for a good profit of $200. Assume also that D would have made a far lower profit of $50 had he only cut off 5 inches as promised. If the ‘lost opportunity’ articulation were recognised, P’s ‘loss’ would be the missed opportunity to demand from D a sum of money for cutting off an extra 10 inches of hair. This is what a missed opportunity to negotiate would look like.

(2) The facts remain the same. But suppose also that because of D’s breach, P is now left with a short bob that precludes her from participating in a beauty pageant, causing her to lose the chance to be crowned a beauty queen. This is what a loss of opportunity would look like.

Example (1) shows how there is no subjective loss at all in a Wrotham Park situation. This stands in contrast to example (2), where P’s subjective loss is the chance to become a beauty queen. It is thus submitted that the ‘lost opportunity’ articulation is less of a loss and more of a method of monetising the breached obligation as if it were a bargained-for contractual right that the defendant managed to obtain from the plaintiff. On the facts of example (1), we are valuing D’s breach by asking how much it would cost him if he were to bargain for the right to cut 10 more inches off P’s hair. This demonstrates how the Wrotham Park compensation that P receives does not flow from any loss, but from the above valuation exercise. In fact, this seems to be the underlying principle behind the SGCA’s decision to rationalise Wrotham Park damages as objective compensation for the infringement of the plaintiff’s right to performance – with this right being valued in terms of the amount the plaintiff would charge the defendant for releasing him from the obligation breached.35

D. Alternative account 2: Wrotham Park damages as restitutionary remedy

The other alternative is to rationalise Wrotham Park damages as gain-based restitution. Despite the academic support for the restitutionary account,36 the SGCA rejected it, stating that it is “unprincipled in so far as it implies that Wrotham Park damages should be available only where the defendant concerned derives a benefit from [his] breach of contract”. Accordingly, this is objectionable because it leaves an opening for a defendant to avoid making restitution on the basis that he did not make any gains from his breach.38

However, this objection assumes that the plaintiff’s restitutionary award can only be measured on a subjective basis, when it can also be measured on an objective basis.39 The concern that the defendant can avoid making restitution if he did not make any subjective gains no longer finds purchase under an objective approach, for he will still have to make restitution based on the objective gains he would have made as a result of his breach. What then, would be the objective gain made by a defendant in a Wrotham Park situation? Going back to example (1), this would be the expense saved by D from not having to bargain with P for the right to cut off an extra 10 inches of hair. In other words, the objective gain should relate to a saved negotiation expense.40 An objective restitutionary account that seeks to reverse the benefit gained by the defendant from saving himself a negotiation expense therefore proves to be very promising, as it explains many once puzzling features of Wrotham Park damages:

(a) It explains why Wrotham Park damages are calculated by reference to the defendant’s anticipated (and not actual) profits, as it concerned with objective (and not subjective) gains.

(b) It also explains why Wrotham Park damages are calculated by reference to a percentage of such anticipated profits. That percentage represents the expense that the defendant would have incurred in procuring a release from his contractual obligation, but which he saved because he chose to breach it instead.

This shows that a strong case could potentially be made for a restitutionary account of Wrotham Park damages. Unfortunately, English authorities have generally eschewed the restitutionary account.41 Turf Club shows that Singapore is following the same trend. Indeed, the other objections raised by the SCGA in rejecting the restitutionary account relate to contract law’s aversion to punishment,42 and the weight of past authority supporting a compensatory analysis.43 While it is hoped that future cases will examine the merits of a restitutionary account more satisfactorily, it seems that the rationalisation of Wrotham Park damages as objective compensation has been settled for now.

IV. CONCLUSION

In closing, this article has shown how Turf Club’s account of Wrotham Park damages as objective compensation is bold step forward, creating a novel head of compensation that does away with loss identification and premising it instead on the valuation of the performance interest. To that extent, Wrotham Park damages are, as the title suggests, a truly curious kind of compensation.


* LL.B. (Hons.), National University of Singapore.

[1] [1974] 1 WLR 798 [Wrotham Park].

[2] Ibid at 815. On the facts, this was assessed to be 5% of the profits that the defendants were expected to make from developing the land in breach of the negative covenant.

[3] See Andrew Burrows, “Are ‘Damages on the Wrotham Park Basis’ Compensatory, Restitutionary, or Neither?” in Djakhongir Saidov & Ralph Cunnington, eds, Current Themes in the Law of Contract Damages (Oxford: Hart Publishing, 2008) 165. See also David Pearce & Roger Halson, “Damages for Breach of Contract: Compensation, Restitution and Vindication” (2008) 28:1 Oxford J Leg Stud 73 [Pearce & Halson], where the authors observed the following trend at 91-92: “The judicial consensus appears to favour a compensatory analysis. Academics seem, on the whole, to prefer a restitutionary interpretation”.

[4] [2018] SGCA 44 [Turf Club].

[5] For a summary of the case, see Singapore Law Watch, “Supreme Court Note: Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 44 (legal principles relating to the award of Wrotham Park damages)” (7 August 2018), online: <http://www.singaporelawwatch.sg/Headlines/supreme-court-note-turf-club-auto-emporium-pte-ltd-and-others-v-yeo-boong-hua-and-others-and-another-appeal-2018-sgca-44-legal-principles-relating-to-the-award-of-wrotham-park-damages>.

[6] Turf Club, supra note 4 at [150], [164], [286].

[7] Turf Club, supra note 4 at [199], [205], [247], [268].

[8] Ibid at [205], [268].

[9] Ibid at [193].

[10] Ibid at [215].

[11] Ibid at [217]. For a comprehensive case summary, see Singapore Law Watch, “Supreme Court Note: Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 44 (legal principles relating to the award of Wrotham Park damages)” (7 August 2018), online: <http://www.singaporelawwatch.sg/Headlines/supreme-court-note-turf-club-auto-emporium-pte-ltd-and-others-v-yeo-boong-hua-and-others-and-another-appeal-2018-sgca-44-legal-principles-relating-to-the-award-of-wrotham-park-damages>.

[12] Turf Club, supra note 4 at [219].

[13] Ibid at [227].

[14] Ibid at [230].

[15] Ibid at [230].

[16] Ibid at [232].

[17] Ibid at [170], [190]. Indeed, this concords nicely with Pearce & Halson, supra note 3, where the authors argue that the purpose of contract damages is not only to indemnify loss caused by the breach, but also to ‘vindicate’ the contractual right. The latter explains certain awards such as Ruxley damages, the broad ground in Panatown, and Wrotham Park damages.

[18] Turf Club, supra note 4 at [170].

[19] Daniel Friedmann, “The Performance Interest in Contract Damages” (1995) 111 Law Q Rev 628 at 629 [Friedmann].

[20] Ibid at 629-630.

[21] The well-accepted compensatory principle finds its origins in Parke B’s classic formulation in Robinson v Harman, (1848) 1 Exch 850, which has since been approved by a spate of local cases. See PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd and another appeal, [2017] 2 SLR 129, [2017] SGCA 26 at [62], and Turf Club, supra note 4 at [123]-[128].

[22] Friedmann, supra note 19 at 639.

[23] Mindy Chen-Wishart, “Specific Performance and Change of Mind” in Graham Virgo & Sarah Worthington, eds, Commercial Remedies: Resolving Controversies (Cambridge: Cambridge University Press, 2017) at 112.

[24] Ruxley Electronics and Construction Ltd v Forsyth, [1996] AC 344, endorsed locally in Yap Boon Keng Sonny v Pacific Prince International Pte Ltd, [2009] 1 SLR (R) 385, [2008] SGHC 161.

[25] Chaplin v Hicks, [1911] 2 KB 786.

[26] This objection was raised by the amicus curiae, Associate Professor Goh Yihan, at [205]. Also see Leo Zhi Wei, “Wrotham Park Damages Revisited” (February 2018), Gazette Feature, online: <https://lawgazette.com.sg/feature/wrotham-park-damages-revisited/> [Leo] who states that the case of Wrotham Park “is an example of an instance where the claimants were unable to prove any financial loss. In the absence of loss, it would be quite inaccurate to describe Wrotham Park damages as serving any compensatory function for the claimant at all”.

[27] Turf Club, supra note 4 at [205], [215]. This line of reasoning was analogised from the ‘user principle’ in the context of the tort of wrongful detention. Just as how the ‘user principle’ regards the invasion of property rights as itself a loss which yields proper recompense, so too the Wrotham Park doctrine regards the infringement of the right to performance as a loss that merits compensation (see [206]-[207]).

[28] Ralph Cunnington, “The Assessment of Gain-Based Damages for Breach of Contract” (2008) 71:4 Mod L Rev 559 at 562-563 [Cunnington].

[29] Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd and Another, [2008] 2 SLR 623, [2008] SGCA 8 at [27], citing McGregor on Damages, 17th ed (Sweet & Maxwell: 2003) at para 8-001.

[30] Admittedly, judicial recourse to the performance interest for the purpose of justifying certain remedial responses is not new. For instance, this was the very basis on which the ‘Panatown broad ground’ was conceived (originating from Alfred McAlpine Construction Ltd v Panatown Ltd, [2000] 3 WLR 946).

[31] Robert J Sharpe & S M Waddams, “Damages for lost opportunity to bargain” (1982) 2:2 Oxford J Leg Stud 290 [Sharpe & Waddams], cited in Turf Club, supra note 4 at [144].

[32] Formulated by Sharpe & Waddams, supra note 31, and relied on in subsequent English cases like Jaggard v Sawyer, [1995] 1 WLR 269, and Gafford v Graham, (1998) 77 P & CR 73.

[33] Leo, supra note 26, Cunnington, supra note 28 at 562-563.

[34] This point was forcefully put in Pearce & Halson at 92: “The difficulty with characteri[s]ing the award as compensatory arises, not because the loss cannot be expressed in financial terms, but because there was no loss at all.” Cf Jill Poole, Textbook on Contract Law, 12th ed (Oxford: Oxford University Press, 2014) at 421-422.

[35] Cunnington, surpa note 28 at 564: “In the absence of a factual pecuniary loss, the [Wrotham Park] award places an objective value on the claimant’s right to performance—a right which has been infringed by the defendant—and the award requires the defendant to pay for the right infringed.”

[36] See Ralph Cunnington, “The Measure and Availability of Gain-Based Damages for Breach of Contract” in Djakhongir Saidov & Ralph Cunnington, eds, Contract Damages: Domestic and International Perspectives (Oxford: Hart Publishing, 2008), Craig Rotherham, “‘Wrotham Park Damages’ and Accounts of Profits: Compensation or Restitution?” (2008) LMCLQ 25 [Rotherham].

[37] Turf Club, supra note 4 at [200].

[38] Ibid, citing Yenty Lily (trading as Access International Services) v ACES System Development Pte Ltd, [2013] 1 SLR 577, [2012] SGHC 208 at [66].

[39] Cunnington, surpa note 28 at 565 explains the difference between the objective and subjective restitutionary account well.

[40] Lionel D Smith, “Disgorgement of the Profits of Breach of Contract: Property, Contract and ‘Efficient Breach’” (1994-1995) 24 Can Bus LJ 121 at 138.

[41] See Rotherham, supra note 36 where the author observed at 26 that the compensatory account of Wrotham Park damages is “presently enjoying something of a renaissance”.

[42] Turf Club, supra note 4 at [197].

[43] Turf Club, supra note 4 at [202].


The PDF version of this article is available for download here.

Pillars of Strength: NTUC Foodfare Co-operative v SIA Engineering

By Daniel Ang Wei En*

I. INTRODUCTION

The Singapore Court of Appeal’s recent judgment in NTUC Foodfare Co-operative v SIA Engineering1 [NTUC] shed light on the present Singapore position on the imposition of a duty of care in cases of negligence resulting in economic loss.

In NTUC, a driver had collided an airtug into a pillar supporting the floor which the claimant’s kiosk was situated on.2 It was undisputed that the airtug driver failed to keep a proper lookout, and that the kiosk itself was not materially damaged.3 Following the incident, the Building and Construction Authority closed the premises, and Changi Airport Group cut off the supply of electricity to the claimant’s unit.4 Correspondingly, the claimant claimed for: (i) damage to equipment resulting from disuse; (ii) loss of profits during closure; (iii) costs for rebuilding of the kiosk; and (iv) rental incurred during renovation of the kiosk.5

A key question that arose was whether the driver owed a duty of care to avert the pure economic loss suffered by the plaintiff. In this regard, the Court of Appeal’s judgment dealt with three important issues:

(a) The appropriate stage to consider issues of indeterminate liability;

(b) The test applicable to relational economic loss; and

(c) The assessment of physical proximity.

These will be considered below, in turn.

II. APPROPRIATE STAGE OF THE SPANDECK TEST TO CONSIDER INDETERMINATE LIABILITY

The Court of Appeal held that considerations of indeterminate liability are addressed by, and turn on, the findings on legal proximity within the first stage of the test set out in Spandeck Engineering v Defence Science & Technology Agency6 [Spandeck].7 The Court reasoned that since potential defendants must have had a sufficiently close and proximate relationship with the claimant, a finding of proximity necessarily limits the class of potential plaintiffs.8

The Court held that the proximity requirement addresses the concern of liability to an indeterminate class – here, it ensured that the driver was liable only for the pure economic loss suffered by the determinate class of business operators in the area affected by his airtug’s collision.9 Applying the proximity factor of knowledge, the Court of Appeal held that the driver knew that by driving a “powerful vehicle”,10 he could cause damage to structures in the area. Correspondingly, the kiosk operators who would suffer economic loss due to the damaged structures was limited to “a determinate class of persons”11 [emphasis in original] and confined to operators on the same floor as the driver.

Ostensibly, the concern of indeterminate liability is still a policy factor considered under the second stage of the Spandeck test. In considering the policy factors, the Court reiterated its finding (earlier in the proximity stage) that the proximity requirement limited the driver’s liability to a determinate class of claimants (business operators in the affected premises who suffered pure economic loss).12

III. THE APPLICABLE TEST FOR RELATIONAL ECONOMIC LOSS

The Court of Appeal held that the Spandeck test is the applicable test for imposing a duty of care in respect of relational economic loss. Although the issue of relational economic loss specifically had not been considered by the Singapore Courts before,13 the Court of Appeal arrived at this conclusion because of: (i) the doctrinal coherence accorded by the Spandeck test; and (ii) the lack of normative justifications to transpose foreign tests into the Spandeck test.

On the first reason, the Court of Appeal reaffirmed that the Spandeck test would be the “single test for a duty of care for all claims in negligence, regardless of the nature of the plaintiff’s loss”.14 On the contrary, distinguishing relational economic loss from other kinds of economic loss would be to “introduce an even finer distinction into the duty of care inquiry” than the previously rejected distinction between physical damage and economic loss.15

In respect of the second reason, after reviewing Australian and Canadian authorities, the Court of Appeal concluded that they did not show a compelling normative justification warranting a separate criteria, because: (i) such criteria has been strongly criticized;16 and (ii) its purpose of addressing indeterminate liability can be addressed by Spandeck’s proximity requirement.17 In fact, the Court of Appeal opined that the foreign authorities also contained elements of a “proximity-based analysis”.18

IV. THE ASSESSMENT OF PHYSICAL PROXIMITY

The Court of Appeal held that there was physical proximity between the Driver and the business operator. First, there was physical proximity in terms of the physical-spatial distance between the Driver’s operations and the affected premises.19 More importantly, the Driver’s operations were confined to a very restricted area which included the affected premises.20 The Court contrasted this with the lack of proximity between shopping mall tenants and a driver operating in a much wider public area who collided into a shopping mall.21 Ostensibly, such a driver would be indeterminately liable – possibly to every tenant in every shopping mall in which he passes.

V. CONCLUDING THOUGHTS

Despite insisting on coherence between the duties of care with respect to the various types of pure economic loss, the Court of Appeal’s application of the Spandeck test itself lacked theoretical neatness. By addressing the concern of indeterminate liability in tandem with legal proximity, the Court conflated the two by straddling two conceptually distinct stages.

While the inquiries of legal proximity and indeterminate liability may effectively lead to the same result of limiting the class of plaintiffs, the two are not analogous. Rather, the content of each inquiry is distinct. The former incrementally22 applies “substantive content … capable of being expressed in terms of legal principles” [emphasis added] to the instant factual matrix.23 However, the latter assesses public policy, possibly “involving value judgments which reflect differential weighing and balancing of competing moral claims and broad social welfare goals” [emphasis added].24

These approaches have been applied even in cases where, like NTUC, the same subject-matter was assessed at both stages of the Spandeck test. In Spandeck, the considerations of adhering to the parties’ contractual framework were assessed at both the proximity stage and the policy stage. Unlike NTUC however, in Spandeck, each stage had a different inquiry. At the proximity stage, the Court of Appeal in Spandeck considered it as part of the assumption of responsibility inquiry.25 In contrast, at the policy stage, the Court in Spandeck sought to avoid imposing “a parasitic duty unnecessary for the parties’ protection”.26

Instead, the Court of Appeal in NTUC conducted the same inquiry at both stages, risking the dangers of applying legal requirements at a Spandeck stage inappropriate for the inquiry. The Court of Appeal in Spandeck warned that “it would be better if the courts were to articulate [policy] concerns under the requirement of policy considerations, rather than subsume these concerns within the proximity requirement, which may then lead to an overall distortion of the legal test to determine the existence of a duty of care” [emphasis added].27 Although the Court of Appeal’s conflation in NTUC is readily justifiable on grounds of practicality, it might potentially result in confusing guidance for lower courts in the future.

Moreover, the effect of the Court of Appeal’s assessment of physical proximity in this case is rather concerning. The distinction drawn by the Court through its contrasting examples effectively reduces liability for defendants who operate in a large, undefined and changing area.28 This is counter-intuitive – from a risk-creation perspective, such defendants create larger risks, ostensibly supporting the imposition of a duty of care.

Additionally, at the proximity stage of the Spandeck test, the Court’s consideration of proximities (physical and causal) together with a proximity factor (knowledge) in NTUC follows the trend of the Court of Appeal flexibly applying the three proximities and proximity factors. This is consistent with the Court of Appeal’s expansion of recognised proximity factors in Anwar Patrick Adrian v Ng Chong & Hue LLC29, beyond assumption of responsibility and reliance, by interposing the knowledge factor within relational proximity.30

Moving forward, this decision clearly reinforces the Spandeck test as the defining test for the duty of care inquiry in negligence. Since its inception, the utility of the Spandeck test’s general application and its theoretical neatness have been pillars of strength supporting the test’s application. However, it remains to be seen whether the shifting of the Spandeck stages will, much like in this case, collapse these very pillars of strength that the Spandeck test was founded upon.


* LL.B. (Hons.) Candidate, National University of Singapore. I record a debt of gratitude to Wong Wen Jian (Judicial Associate, State Courts of Singapore) whose invaluable guidance has greatly benefited an earlier draft of this case note and my education in the law of torts. Any errors and infelicities are, necessarily, my own.

[1] [2018] SGCA 41.

[2] Ibid at [11].

[3] Ibid at [11]-[12].

[4] Ibid at [13]-[14].

[5] Ibid at 22.

[6] [2007] SGCA 37; [2007] 4 SLR(R) 100.

[7] Supra note 1, at [42]-[43].

[8] Ibid at [43].

[9] Ibid at [52].

[10] Ibid at [50].

[11] Ibid.

[12] Ibid at [54].

[13] Ibid at [59].

[14] Ibid at [60].

[15] Ibid.

[16] Ibid at [61].

[17] Ibid at [78].

[18] Ibid at [65].

[19] Ibid at [47].

[20] Ibid.

[21] Ibid.

[22] Supra note 6 at [82].

[23] Ibid at [80].

[24] Ibid at [85].

[25] Ibid at [108].

[26] Ibid at [101] and [114].

[27] Ibid at [85].

[28] See supra note 21, for more on the issue.

[29] [2014] SGCA 34; [2014] 3 SLR 761.

[30] Ibid at [148].


The PDF version of this article can be found here

Terrorism and the European Court of Human Rights

By Keith Jieren Thirumaran

I. INTRODUCTION

The Council of Europe currently consists of 47 European Countries.1 In order to join and remain a member of the Council of Europe,2 countries must ratify and adhere to the European Convention on Human Rights [Convention].3 Through the Convention, the European Court of Human Rights (“ECtHR”) is empowered to ensure that the Convention is adhered to4 as well as to develop binding5 case law to progress the interpretation of the Convention. The ECtHR interprets the Convention as a “living instrument”6 which has led to an expansive scope of its provisions. This article will examine the impact of developments in the ECtHR’s case law on governments and public officials in the context of combating terrorism. In particular, this article will examine the restrictions that the ECtHR has placed on parties to the Convention (“Member States”) under Articles 2, 3 and 6 of the Convention. It will be submitted subsequently that although restrictions on governments and public officials are generally necessary, the restrictions of the ECtHR are too far-reaching and unreasonable in the context of protecting the lives of innocent civilians.

II. RIGHTS AFFORDED UNDER THE CONVENTION

All humans have the right to life and this is enshrined in Article 2 of the Convention. Under Article 3 of the Convention, all humans also have the right to be free from torture as well as inhuman or degrading treatment or punishment. Terrorists are defined as people who use violence and intimidation to coerce governments and communities.7 These people commonly engage in unlawful activities that extend to the killing and torture of innocent civilians, thus depriving innocent civilians of these Convention rights.

Article 1 of the Convention provides that Member States must secure these rights and freedoms to everyone within their jurisdiction. This means that Member States must take measures to ensure that no individual is subjected to torture nor to inhuman or degrading treatment, whether committed by a public official or by private individuals such as terrorists.8 Similarly, Members must also take “preventive operational measures” to protect individuals whose lives are at risk from the acts of other individuals, such as terrorists.9

These are positive obligations placed on Member States and public officials to ensure that innocent civilians are not killed or tortured by anyone, including terrorists.10 They require Member States to take reasonable measures to prevent the killing11 or torture12 of anyone in cases where authorities had or ought to have had, at the material time, knowledge of a “real and immediate risk” of loss of life or torture.

However, these positive obligations are in addition to negative obligations placed on Member States not to kill or torture individuals within their jurisdiction, whether innocent civilian or terrorist.13

III. RESTRICTIONS ON NON-JUDICIALLY SANCTIONED STATE ACTIONS

A. Deprivation of Life

Article 2(2) of the Convention provides exceptions where a Member State is permitted to use force that might result in the deprivation of life.14 Under Article 2(2)(a), such force may be used “in the defence of any person from unlawful violence”. Such force must also have been “absolutely necessary” in order to achieve the aim in Article 2(2)(a)15 and must therefore be “strictly proportionate”.16

As Articles 2 and 3 are fundamental and basic values of Member States,17 the ECtHR subjects deprivations of life to careful scrutiny and will therefore consider both the actions of state agents who administer the force as well as surrounding circumstances such as the planning and control of the operation.18

The restriction on public officials using such force only when absolutely necessary is itself an uncontroversial restriction. An example demonstrating this necessity is the case of the innocent civilian who was shot dead by police officers on 22 July 2005 on board the London transport network because the public authorities had wrongly suspected that he was a terrorist.19 Although the civil case was settled by mediation,20 this case illustrates the need to hold public officials accountable for their counter-terrorism operations.

In most cases, the application of the test of “absolute necessity” (and its accompanying strict proportionality test) will be straightforward. The firing of guns directly at demonstrators21 and usage of high-explosive indiscriminate aerial fragmentation bombs in an area populated with innocent civilians are clearly more than absolutely necessary.22 However, in less straightforward cases, the manner of application of the test to the facts might result in a decision that places an unreasonable restriction on public officials, especially when applying strict proportionality.

In McCann v United Kingdom,23 4 soldiers shot dead 3 known terrorists in Gibraltar24 after they made movements that appeared as if they were attempting to detonate a bomb.25 It transpired that the terrorists were not armed and were only on a reconnaissance mission with the intention of eventually planting a bomb there.26 The ECtHR held that by not making sufficient allowances for the possibility that intelligence information could be wrong and by not preventing the terrorists from travelling into Gibraltar, the overall situation led to the killing of the terrorists which was therefore not absolutely necessary, violating Article 2.27 This controversial decision generated a strong political backlash in the UK against the ECtHR.28

It is submitted, in support of the minority judges, that the failure to make allowances for intelligence information being wrong was analysed by the majority judges with the benefit of hindsight.29 Both the majority30 and minority31 judges agreed that the authorities had incomplete information and had no choice but to formulate their operation on the basis of information available at that time. Difficult operational choices had to be made involving unpredictable human conduct.32 It must be recalled that the actions taken by the UK government must be judged based on the information available at the material time,33 a position that is akin to the approach under UK Domestic Criminal Law.34

Judges in the majority had earlier found that since the soldiers honestly believed, based on the information that they had, that shooting the suspects was necessary to prevent serious loss of life. The soldiers thus did not violate Article 2: “to hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others”.35 This stands in stark contrast against the subsequent finding that the UK Government violated Article 2, especially since the latter had also honestly believed, based on the information they had, that shooting those terrorists were absolutely necessary to save the lives of innocent civilians.

The consequences of the intelligence information being correct are devastating and as such no responsible government would have allowed the risk of such a detonation.36 It is therefore submitted that the authorities were correct in proceeding on the worst-case scenario basis.37 Failing to do so would show a “reckless failure of concern for public safety”38 and a breach of the authorities’ duty to protect innocent civilians as well as their own military personnel.39

It is also submitted, in support of the minority judges, that it would not have been practicable for UK authorities to arrest and detain the terrorists at the border.40 The UK Government’s reason for not arresting the terrorists at the border was because there was insufficient evidence to warrant the detention and trial of the suspects.41 However, this was rejected by the majority.42 The result of the majority’s finding places an unreasonable restriction on public authorities because arresting and releasing terrorists at that stage in time would have alerted the terrorists to the readiness of the authorities.43 The risk of a successful renewed attack on innocent civilians would increase as a consequence.44 Furthermore, the UK Government had no option of preventive detention of suspected terrorists as the ECtHR had previously ruled that detention without trial would be a violation of Article 5 of the Convention.45 The incompatibility of preventive detention with the Convention, even in the context of terrorism, has subsequently been reinforced.46

As such, the ECtHR’s imposition of a test of strict proportionality in determining whether the force was “absolutely necessary” effectively leaves the UK government without any options to protect innocent civilians from terrorists. On the facts of McCann v United Kingdom, there would have been nothing the UK government could have done and they would have been forced to risk innocent lives.

By way of contrast, on the opposite end of the spectrum, the USA frequently engages in targeted killings of terrorists via drones and airstrikes, even on targets located in foreign countries.47 This itself is submitted to be too extreme an opposing view.

It is submitted that a middle ground should be adopted where the proportionality test is moderated to be more lenient, in line with general standards relating to private- or self-defence. Under UK Domestic Criminal Law, strict proportionality is not applied for these doctrines of defence because it is unrealistic to expect anyone to weigh the exact amount of force necessary for self-defence in the midst of a situation.48 This position is similar elsewhere because the proportionality of a response should not be weighed on “golden scales” with the “luxury of time and calmness to think about the possible courses of action to take”.49 The detached objectivity that is natural in courtrooms long after the incident has taken place is an inappropriate test for such proportionality.50

B. Torture, inhuman or degrading treatment

(1) Obtaining Information

Torture as well as inhuman or degrading treatment or punishment are widely accepted to be morally wrong and unacceptable behaviour. The issue here is whether there are circumstances where such behaviour can ever be justifiable. Much of this discourse tenders to moral and philosophical quandaries as opposed to legal matters. It is therefore unsurprising that there is no international consensus on this issue. As much academic ink has been spilled on this issue – most of it being non-legal and beyond the scope of this article – the following will only provide a brief overview of the contrasting positions at the risk of oversimplification.

Deontologists favour an absolute moral prohibition because of the essence of human dignity which prevents such actions, regardless of any possible disastrous costs of an absolute prohibition.51 A common illustration is to let a nuclear bomb go off in a city rather than getting the information needed to stop it.52 The Council of Europe and the ECtHR both adopt positions in favour of the deontologist view. The prohibition against torture, and inhuman or degrading treatment or punishment is an absolute prohibition.53 This is irrespective of the conduct of the person,54 and has no exceptions and can have no derogations, “even in the event of a public emergency threatening the life of the nation”.55 Even under difficult circumstances such as fighting organized terrorism and crime, violations of Article 3 are absolutely prohibited.56 Furthermore, a sufficiently real and immediate threat of conduct violating Article 3 may also result in a violation of Article 3.57 In addition, any physical force that has not been made strictly necessary by a suspect’s conduct may result in a violation of Article 3.58 In light of the absolute nature of the Article 3 right, judicial corporal punishment such as caning has also been ruled to violate Article 3, and therefore cannot be applied to any person59 regardless of the crime committed.60

Under this view, one must also consider the possibility of suspects confessing false information to stop being tortured. Furthermore, suspects may not always possess the information as believed and may not even be the correct persons to apprehend.61 Furthermore, opening the door to “some” torture might lead to a slippery slope as it is not possible to limit the boundary on torture, leading to more extensive torture.62 Lastly, torture is more heinous than operational killings because a suspect is particularly vulnerable when held in police custody and deprived of liberty.63 Where the suspect is already entirely under the public authorities’ control, the authorities must bear a duty to protect him or her.64

Consequentialists, on the other hand, acknowledge that there may be some circumstances where torture may be necessary for the greater good.65 An example of the consequentialist view is the USA which engages in conduct that would violate Article 3 of the Convention during some of its interrogations.66

Under this view, a common example is known as the “ticking bomb” scenario where information is needed urgently to diffuse a bomb to save lives and torture is the only method that can obtain the information.67 In such situations, at varying levels, consequentialists agree that torture would be necessary.68 Beyond this common argument, it should be noted that in one case where the interrogation was held in breach of Article 3, the authorities obtained a “considerable quantity of intelligence information, including the identification” of 700 terrorists and solved 85 unexplained crimes.69

(2) Obtaining Convictions

Where subsequent evidence is obtained as a result of information earlier obtained during treatment that violates Article 3 (torture, inhuman or degrading treatment), and if the evidence (resulting in a conviction) is a direct result of the violation, then it is automatically unfair to use the evidence.70 The reason for this is because allowing such evidence to be admitted would be an incentive for public authorities to continue violations.71. This only applies where the evidence had a bearing on a conviction, as opposed to reliance on other untainted evidence.72 This means that the focus of the ECtHR is on the unfairness of the violation in light of the absolute nature of Article 3, as opposed to other factors in other jurisdictions such as reliability,73 probative value74 or voluntariness.75

While hardly any objection is taken to this approach, caution must be taken by the ECtHR to ensure that conduct in alleged violation actually meets the high thresholds of “torture, inhuman or degrading” treatment. The reason for this is because in interrogations, “some discomfort has to be expected”76 and it should be borne in mind that “the police work in difficult circumstances” such that removing “all doubt of influence or fear” would mean that the police “would never be able to achieve anything”.77

IV. RESTIRCTIONS ON JUDICIALLY SANCTIONED STATE ACTIONS

The ECtHR has decided that Member States cannot extradite a criminal to a Non-Member State where there are substantial grounds to believe that there is a real risk of torture, inhuman or degrading treatment or punishment for the criminal.78 In light of the fact that judicial corporal punishment such as caning has been held to be prohibited by Article 3,79 Member States are unable to extradite terrorists to Non-Member States to face caning. The ECtHR subsequently extended this to include the death penalty and execution,80 such that Member States can no longer extradite criminals to Non-Member States to face the death penalty.81 The ECtHR has also expanded this to include extradition to a Non-Member State where a terrorist faces a de facto irreducible life sentence without parole.82 The ECtHR has made clear that these restrictions also prevent expulsions83 and even to the deportation of illegal immigrants that have snuck into the country.84 In one case where extradition was prohibited, the ECtHR has went so far as to say that the “serious threat to the community” does not diminish the risk of a terrorist suffering harm when deported.85

Leaving aside any potential diminution of deterrent effect from death penalties or caning, the implication of the ECtHR’s decisions is that Member States are no longer able to get rid of terrorists that were originally not within their jurisdiction. Furthermore, an extension of this would be that terrorists from Non-Member States might specially flee to seek refuge in Member States since they cannot be deported back to face the death penalty or judicial corporal punishment even if they entered the Member State illegally.

A possible workaround in recent times has been to ensure that the state requesting for extradition agrees not to impose judicial corporal punishment on the suspect.86 This can logically be extended to securing an agreement not to impose the death penalty as well. It remains, however, less than ideal. Apart from questions of sovereign equality or those of imposing of subjective values on other states, any Non-Member State is free to decide that it will not agree to the imposed terms for extradition, thus leaving the Member State potentially stuck with a terrorist. Furthermore, the ECtHR may not even be persuaded by the assurances provided by the state requesting for extradition if it finds that the foreign government is unable to adequately guarantee a freedom from Article 3 treatment.87

V. CONCLUSION

The sum effect of developments in the ECtHR’s case law is that governments and public officials in the Council of Europe are severely hampered from combating terrorism. Member States must fulfil a test of strict proportionality when making decisions relating to deprivations of life and are also unable to detain nor remove terrorists from their countries. These considerable restrictions place the lives of innocent civilians at significant risk and are therefore unreasonable in the context of fighting terrorism.

It is suggested that in analysing state behaviour in respect of terrorism, a useful analogy may be drawn from the opposing goals and values of Criminal Justice Systems. In the Criminal Justice System, a balance is normally struck somewhere along the spectrum between a model that primarily aims to suppress crime88 (the “Crime Control Model”) and a model that primarily seeks to protect an individual’s rights89 (the “Due Process Model”). When it comes to terrorism, many innocent lives are at stake. The severity of the risks involved mean that the appropriate balance required must be shifted towards the values of the Crime Control Model. It is thus submitted that the better way forward is to focus on suppressing terrorism, with the necessary compromise on some of the values of the Due Process Model. As such, primacy must be given to the protection of innocent lives with the necessary evil of watering down some of the rights in the Convention.


[1] Council of Europe, Statute of the Council of Europe, CETS No. 001 (1949) at Article 26 (as at May 2018).

[2] Ibid at Articles 3 and 8.

[3] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005 (1950), as amended by Protocols No. 11 and 14.

[4] Ibid at Article 19.

[5] Ibid at Article 46.

[6] Soering v United Kingdom [1989] ECHR 14 at [102].

[7] The Concise Oxford Dictionary of Current English, 9th Ed, sub verbo, “terrorist”.

[8] Z v United Kingdom [2001] ECHR 333 at [73]; A v United Kingdom [1998] ECHR 85 at [22].

[9] Osman v United Kingdom [1998] ECHR 101 at [115].

[10] Ibid.

[11] Ibid at [116]; See also, Edwards v United Kingdom [2002] ECHR 303 at [121].

[12] Z v United Kingdom [2001] ECHR 333 at [73].

[13] Supra note 9 at [115].

[14] McCann v United Kingdom [1995] ECHR 31 at [148].

[15] Ibid.

[16] Ibid at [149].

[17] Ibid at [147].

[18] Ibid at [150].

[19] Armani Da Silva v United Kingdom [2016] ECHR 314, at [12] and [37]–[38].

[20] Ibid at [142].

[21] Simsek v Turkey [2005] ECHR 546 at [108] and [112].

[22] Kerimova v Russia [2011] ECHR 744 at [253] and [257].

[23] Supra note 14.

[24] Ibid at [199].

[25] Ibid at [196] and [197].

[26] Ibid at [219].

[27] Ibid at [213].

[28] Peter Cumper, “When the State Kills – McCann and Others v United Kingdom”, (1995) 4 Nottingham LJ 207.

[29] Joint Dissenting Opinion, McCann v United Kingdom, [1995] ECHR 31 at [8].

[30] Supra note 14 at [193].

[31] Supra note 29 at [8]

[32] Supra note 9 at [116].

[33] Ibid; see also Edwards v United Kingdom, [2002] ECHR 303 at [121].

[34] Criminal Justice and Immigration Act 2008 (UK), c4, s76(3).

[35] Supra note 14 at [200].

[36] Supra note 29 at [9].

[37] Ibid at [13].

[38] Ibid.

[39] Supra note 14 at [192].

[40] Supra note 29 at [11].

[41] Supra note 15 at [204].

[42] Ibid at [205].

[43] Supra note 29 at [11].

[44] Ibid.

[45] Brogan v United Kingdom [1988] ECHR 24.

[46] A and others v Secretary of State for the Home Department [2004] UKHL 56; A and Others v Secretary of State for the Home Department [2009] ECHR 301.

[47] Philip Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions”, (2010) United Nations, A/HRC/14/24/Add.6 at [18]-[22].

[48] Supra note 34 at s76(7)(a); Palmer v R [1971] AC 814 (Privy Council on Appeal from Jamaica).

[49] PP v Vijayakumar s/o Veeriah [2005] SGHC 221 at [52].

[50] Jai Dev v State of Punjab, AIR 1963 SC 612 (India) at 617.

[51] Robert J Homant et. al., ‘Is Torture Ever Justified – College Students’ Attitudes Toward Coercion/Torture’ (2008) 8 JIJIS at p 153.

[52] Ibid at p 153.

[53] Supra note 12 at [73]; Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[54] Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[55] Aksoy v Turkey [1996] ECHR 68 at [62]; Selcuk & Asker v Turkey [1998] ECHR 36 at [75].

[56] Ibid.

[57] Gafgen v Germany [2010] ECHR 759 at [91].

[58] Bouyid v Belgium [2015] ECHR 819 at [100].

[59] Tyrer v United Kingdom [1978] ECHR 2 at [35].

[60] Ibid at [34].

[61] Supra note 51 at p 154.

[62] Ibid.

[63] Ribitsch v Austria [1995] ECHR 55 at [36] and [38]; Bouyid v Belgium [2015] ECHR 819 at [100].

[64] Bouyid v Belgium [2015] ECHR 819 at [103] and [107].

[65] Supra note 51 at p 154.

[66] Department of Defense Joint Task Force 170 on Guantanamo Bay in Cuba, APO AE 09860, Declassified “Legal Brief on Proposed Counter-Resistance Strategies”, JTF170-SJA (31 October 2002).

[67] Supra note 51 at p 153.

[68] Ibid at p 154.

[69] Supra note 54 at [98].

[70] Ibid at [173]; Gocmen v Turkey [2006] ECHR 2003.

[71] Supra note 54 at [178].

[72] Ibid at [178]-[181] and [187].

[73] Poh Kay Keong v PP [1995] 3 SLR(R) 887 (Court of Appeal, Singapore) at [42].

[74] Muhammad bin Kadar v PP [2011] SGCA 32 at [53].

[75] Yeo See How v PP [1996] 2 SLR(R) 277 (Court of Appeal, Singapore) at [40].

[76] Ibid.

[77] Panya Martmontree v PP [1995] 2 SLR(R) 806 (Court of Appeal, Singapore) at [29].

[78] Supra note 6 at [91] and [111].

[79] Supra note 59 at [35].

[80] Al-Saadoon & Mufdhi v United Kingdom [2010] ECHR 282 at [120] and [137].

[81] AL (XW) v Russia [2015] ECHR 964 at [64].

[82] Trabelsi v Belgium [2014] ECHR 893 at [138] and [139].

[83] LM v Russia [2015] ECHR 908 at [126].

[84] Jabari v Turkey [2010] ECHR 369 at [42].

[85] Saadi v Italy [2008] ECHR 179.

[86] John Geddie and Robert Birsel (ed), “Singapore says won’t cane suspected bank robber if deported from UK”, (20 February 2018) Reuters World News, online: <https://www.reuters.com/article/us-singapore-bank-robbery/singapore-says-wont-cane-suspected-bank-robber-if-deported-from-uk-idUSKCN1G40Y9>; “StanChart robbery: Singapore agrees to UK request to not cane suspect if found guilty”, (20 February 2018) Channel News Asia, online: <https://www.channelnewsasia.com/news/singapore/stanchart-robbery-singapore-david-roach-uk-request-extradition-9974270>.

[87] Chahal v The United Kingdom [1996] ECHR 54 at [105].

[88] Herbert L Packer, The Limits of the Criminal (1968) Stanford University Press at p 159.

[89] Ibid at p 239.


The PDF version of this article is available for download here.

Patel and Ochroid: Comparison and Attempts at Reconciliation

By Nicholas Chiang

I. INTRODUCTION

With its origins in contract law, Illegality has since been extended by the courts to other areas of law. Attempts to universalise the doctrine have led to considerable difficulty and inconsistency. The House of Lords decision of Patel v Mirza1 [Patel] was a valiant attempt to homogenise the approach to Illegality across all areas of law with a “range of factors” approach – but not without significant resistance, especially from jurists who prefer the deeply entrenched “rule-based” approach.2

Much closer to home, the Court of Appeal in the decision of Ochroid Trading Ltd v Chua Siok Lui3 [Ochroid] lays bare the difficulties in attempting to homogenise the doctrine, hinting that the ideal may indeed be a pipe dream. This article will examine the hurdles faced by the courts in formulating a universal approach in the law by comparing the English and local approach to illegality and discuss their compatibility.

II. ILLEGALITY IN CONTRACT

The majority in Patel laid out a “range of factors” approach which applies to common law illegality. Rejecting a mechanistic approach based on the reliance rule, Lord Toulson held that the courts should consider a) the underlying purpose of the prohibition which has been transgressed, b) any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) the “possibility of overkill unless the law is applied with a sense of proportionality.”4

A more measured ”middle ground” was also adopted by Lord Neuberger, as the Singapore Court of Appeal observed in Ochroid. His Lordship held that there is a “rule” which generally entitles the plaintiff to restitutionary relief,5 and approved of the “range of factors” in determining when exceptions should be made to this “rule”. This departed from the majority’s approach to ascertain the validity of the contract on a discretionary “range of factors”. The distinction between 1) if the contract was void due to illegality and 2) if restitutionary relief should be granted was also made by the court in Ochroid.6 It is thus unclear what Lord Neuberger’s approach is to the former question.

The minority, however, preferred a rule-based approach. Lord Sumption, with whom Lord Clarke agreed, endorsed the reliance test. Under this approach, the validity of a claim turned solely on “whether the person making the claim is obliged to rely in support of it on an illegal act on his part”.7 His Lordship clarified that the reliance rule does not relate to procedural matters. Similarly, the court in Ochroid recognised two conceptions of the reliance rule: the first refers to reliance in the procedural sense, whereas the other refers to the principle in a normative or substantive sense when a claimant seeks enforcement of the illegal contract through the claim.8 The latter conception is good law in Singapore.9 It is noteworthy that the principle is only engaged when a claimant seeks to enforce an illegal contract, but is inapplicable when restitution is being sought.10

The minority dissent was premised on the fact that a “range of factors” approach grants the courts too much discretion, and removes the need for the application of legal rules.11 Furthermore, the majority approach engenders uncertainty due to the incommensurability of various factors and its applicability depends on the nature or degree of the illegality. Lastly, his Lordship pointed out the “range of factors” approach was unnecessary because the reliance rule is able to achieve substantial justice in the majority of cases. Arbitrariness in applying the reliance rule can be mitigated by the availability of restitutionary remedies.

The local approach since Ting Siew May v Boon Lay Choo12 [Ting Siew May] is a discretionary assessment of the proportionality of vitiating a claim in response to a pleaded illegality. It is an approach that balances a range of factors similar to the majority in Patel, albeit with slightly different factors.13 However, while the Patel “range of factors” approach extends to all forms of common law illegality, the discretionary approach in Ting Siew May is to be applied only in the “residuary common law category… of contracts entered into with the object of committing an illegal act”.14

The Patel “range of factors” approach was rejected in Ochroid for three reasons.

Firstly, the approach was unprincipled because it created an arbitrary distinction between common law and statutory illegality by granting unfettered discretion to the courts over illegality at common law.15 If a court is of the view that a contract should not be void pursuant to an established common law category of illegality, the court ought to “reconsider that particular category altogether”.16

Secondly, Phang JA also questioned the necessity of the approach in achieving justice as the availability of restitutionary remedies is sufficient to mitigate the harshness of the traditional rule. The Ting Siew May approach, with its proportionality principle, could also allow the court to reject the defence of illegality to avoid disproportionate and unjust results.17

Lastly, the uncertainty engendered by the “range of factors” approach was left unaddressed by the majority in Patel. These were, namely, that the balancing exercise involves uncertainty through the actual balancing exercise itself, and that the factors are incommensurate with no one factor being determinative. These problems according to Phang JA, were less severe under the approach in Ting Siew May because firstly, it was confined to “contracts entered with the object of committing an illegal act” and secondly, was limited by the “overarching principle of proportionality”.18 However, such uncertainty was unacceptable outside that restricted context.

While the court in Ochroid unequivocally rejected the “range of factors” approach, it is submitted that because of the overlapping similarity of approaches there is a semblance of universality – at least in the realm of “contracts entered into with the object of committing an illegal act”. However, this optimism is arguably short lived , given that parties to a void contract often seek restitutionary relief - wherein a different set of rules and principles apply.

III. ILLEGALITY IN RESTITUTION

With the majority’s “range of factors” approach Patel extending to civil claims of all sorts, the distinction between types of claims becomes irrelevant. The same approach would be applied to restitutionary claims.

While the minority in Patel was more circumspect with respect to contractual illegality, the opposite can be said with respect to restitution. For Lord Clarke, the harshness of the reliance rule in voiding illegal contracts could be ameliorated by the availability of restitutionary relief which, ought to be granted as long as restitutio in integrum can be achieved.19

On the doctrine of locus poenitentiae, Lord Mance construed it as a general principle of rescission that “puts parties back in the position that they should have been in…but for the entry into the contract which was or became affected and unenforceable by reason of the illegality”.20 His lordship also did not restrict the principle by reference to whether the illegal purpose has been carried out. Similarly, Lord Sumption stated that there is a general right to the restitution of money paid under an illegal contract. This position is similar to Lord Neuberger’s endorsement of the “Rule” granting a general right to restitution.

Dicta in Ochroid diverges from both the majority and minority in Patel.21 Phang JA rejected the minority view – more specifically, Lord Sumption’s position that restitutionary relief ought to be extended even to monies paid under a contract to commit murder. The learned Justice of Appeal characterised Lord Sumption’s view as one that would produce offensive or objectionable outcomes that would “bring the court into disrepute and undermine the integrity of the law”. The majority approach was also dismissed with the same reasons vis-a-vis contractual illegality.

In contrast to Lord Clarke’s general principle of rescission which makes available restitutionary relief as long as restitutio in integrum can be achieved, a claim in unjust enrichment in the local context would however be subject to the defence of illegality and considerations of public policy – which is distinct from the defence of illegality in a contractual sense.22 The court in Ochroid further adopted the principle of stultification which prevents restitutionary recovery if doing so would “undermine the fundamental policy that rendered the underlying contract void and unenforceable in the first place [emphasis added]”.23 This position is premised on the inadequacy of the approach which grants a general right to restitution. Even if a restitutionary claim does not provide the plaintiff with a remedy identical to contractual performance under the illegal contract, there are nevertheless remaining dangers of stultification; permitting recovery might provide future plaintiffs with a “lever” that the plaintiff might use to extract contractual performance from the defendant, or it might produce a “safety-net” for parties looking to engage in the same sort of illegality.

On the doctrine of locus poenitentiae, Phang JA gave two reasons for rejecting the Patel minority’s position. The minority had determined that the doctrine should be relaxed as a “general principle of rescission”, such that recovery was permitted as long as restitutio in integrum can be achieved. In response, Phang JA first observed that such a broad and relaxed doctrine could undermine the need for the need for the claimant to establish the requirements for a claim in unjust enrichment. It would, more importantly, allow the claimant to avoid the stultification principle.24

Secondly, Phang JA objected that a broad doctrine is incompatible with the role of the doctrine itself – namely to encourage timely withdrawal from illegality.25 Hence, Phang JA emphasised the need for genuine withdrawal, as opposed to mere voluntary withdrawal. In sum, the court characterised the doctrine as one which should only be invoked based on the policy of discouraging unlawful conduct.

IV. ILLEGALITY IN TORT

While the “range of factors” approach has been extended to cover tortious claims in UK, the law is less settled in Singapore. The courts have traditionally used the close connection test, which according to Ooi Han Sun v Bee Hua Meng26 has a very limited application in tort – confining the test to situations where the injury is directly incurred in the course or commission of crime.27 The High Court in the recent decision of Md Shohel Md Khobir Uddin v Chen Yongbiao and another28 endorsed both the close connection test and the public policy approach of Hounga v Allen29 [Hounga] which can be considered the precursor of the test set out in Patel.

There are four possible paths that local courts may adopt to develop the illegality doctrine in tort law:

(1) Adopting the Patel “range of factors” approach.

(2) Continuing to use the close connection test.

(3) Attempting to reconcile both approaches.

(4) Extending the Ting Siew May approach to tortious claims.

Extending Ting Siew May’s approach (item (4), above) seems unlikely because the Ting Siew May approach is tailored for application to contractual illegality. For instance, one of the factors to be considered is the centrality of the illegality to the contract, which cannot be readily applied to tortious claims. It is suggested that an attempted reconciliation of the “range of factors” and “close connection” tests (item (3), above) will be the most viable way forward because the local courts are unlikely to only apply the Patel approach for the reasons set out above. However, the Patel approach (item (1), above) is potentially incompatible with the close connection test as it gives the courts the discretion to ignore the rule completely.

One plausible solution can be found in a flexible application of the close connection test, where policy considerations can influence the courts to either broaden or narrow the application of the test. In the case of Hounga, the Respondent (who was the employer) attempted to rely on the illegal employment of the Appellant (who was a victim of human trafficking) as a defence. With a flexible application of the close connection test, the Court could have applied the close connection test narrowly and find that the plaintiff did not fall within its scope and was thus entitled to recovery. The impetus behind a narrow application would naturally be overriding policy considerations, such as of discouraging human trafficking and exploitation in Hounga.


[1] [2016] UKSC 42.

[2] See e.g. Lords Sumption’s criticisms of a pliable “range of factors” approach to illegality in Les Laboratoires Servier & Anor v Apotex Inc & Ors (Rev 1) [2014] UKSC 55 at [19]-[21].

[3] [2018] 1 SLR 363; [2018] SGCA 5.

[4] Supra note 1 at [101].

[5] Ibid at [145].

[6] Supra note 2 at [64] – [65].

[7] Supra note 1 at [234].

[8] Supra note 2 at [128].

[9] As accepted in Ting Siew May v Boon Lay Choo and another [2014] 3 SLR 609; [2014] SGCA 28, at [127].

[10] Supra note 2 at [137].

[11] Supra note 1 at [261] – [264].

[12] Supra note 8.

[13] Ibid at [68].

[14] Supra note 2 at [110].

[15] Supra note 2 at [114].

[16] Ibid at [118].

[17] Ibid at [119].

[18] Ibid at [123].

[19] Supra note 1 at [220].

[20] Ibid at [193].

[21] Supra note 2 at [145].

[22] Ibid at [139] and [143].

[23] Ibid at [145].

[24] Ibid at [172].

[25] Ibid at [173].

[26] [1991] 1 SLR(R) 922; [1991] SGHC 73.

[27] Ibid at [15]

[28] [2018] 3 SLR 160; [2017] SGHC 109.

[29] [2014] UKSC 47; see supra note 25 at [33]-[34].


The PDF version of this article is available for download here.

The Trojan Horse of Therapeutic Privilege in Hii Chii Kok

By Naomi Koh Jie Min

I. INTRODUCTION

The 2017 Court of Appeal case Hii Chii Kok v Ooi Peng Jin London Lucien1 [Hii Chii Kok] has been heralded as “[t]he end of the ‘doctors know best’ era” by commentators.2 In a landmark decision, a Coram of five Judges unanimously rejected the unapologetically paternalistic Bolam-Bolitho3 test for negligent advice in favour of a three-stage test based on the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board4 [Montgomery]. As the Court put it, a “seismic shift in medical ethics, and in societal attitudes towards the practice of medicine” necessitated an approach that balances beneficence with patient autonomy.5 Hii Chii Kok is indisputably a welcome addition to local case law on medical negligence, but it should not be welcomed uncritically. A key issue with Hii Chii Kok lies in the unclear scope of the defence of therapeutic privilege6 to a claim of negligent advice. In fairness to the Court of Appeal, the doctrine of therapeutic privilege, as Mulheron observes, “has suffered from an almost complete lack of judicial delineation in English law”7 and by extension, Singapore law. However, the cost of leaving therapeutic privilege undefined is high; it leaves the Hii Chii Kok test open to abuse.

II. THE POSITION BEFORE HII CHII KOK

A. Singapore: Gunapathy

To understand Hii Chii Kok, one must consider the state of the law that preceded it. Locally, Khoo James v Gunapathy d/o Muniandy8 [Gunapathy] stood for the position that a two-stage inquiry was required to determine whether a professional had breached his duty of care: namely, whether the expert (1) directed his/her mind to the comparative risks and benefits, and (2) reached a “defensible conclusion”9 after balancing risks and benefits. In other words, the Court of Appeal had adopted the Bolam test of the ordinary skilled man exercising and professing to have a skill,10 with the Bolitho addendum that the conclusion reached must have a logical basis.11 Further, and more pertinently, the Court accepted that the Bolam-Bolitho test applied to pre-treatment advice, following the House of Lords in Sidaway v Bethlem Royal Hospital12 [Sidaway].

B. UK: Sidaway Overuled in Montgomery

Montgomery amended the standard for risk disclosure to one where the doctor is:

“[U]nder a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”13

In this decision, the House of Lords effectively overruled the test in Sidaway. Although, as Hobson observes, their Lordships tried to “frame Montgomery as a development of Sidaway ... to show that the development from Sidaway to Montgomery is smooth”,14 in principle Montgomery effectively displaces the concerns and policies that undergirded Sidaway’s stance that Bolam-Bolitho applied to medical advice.

III. HII CHII KOK IN BRIEF

In Hii Chii Kok, the Court acknowledged the increasing recognition of patient autonomy across common law jurisdictions.15 More specifically, the scope of patient autonomy is greater in relation to medical advice, which guides patients to make an active choice.16 Hence, the Bolam-Bolitho test was no longer applicable in relation to advice. Rather, the Court endorsed a three-stage test (referred to as the “Hii Chii Kok test”).

In the first stage of the Hii Chii Kok test, the Court answers the question of what information the doctor has a duty to disclose. This comprises of what a reasonable person in the patient’s position would wish to know, as well as information that the doctor knows or ought to have known would be important to the particular patient in question.17 The first stage therefore effectively echoes Montgomery.

At the second stage, the Court evaluates whether the doctor was in possession of the pertinent information. If answered in the negative, the Court then has to assess whether the doctor’s ignorance arose from negligence in diagnosis and treatment. This inquiry would fall under the ambit of the Bolam-Bolitho18 test.

If the second stage is answered in the affirmative, then the final question is whether the doctor’s withholding of information was justified. The Court declined to limit the scope of potential justifications, but identified emergencies, waivers, and therapeutic privilege as specific instances in which a doctor may withhold information from a patient.19 It is the exception for therapeutic privilege that is contentious as further explored below.

IV. BOUNDARIES OF THE THERAPEUTIC PRIVILEGE EXCEPTION

A. The Exception

Although Hii Chii Kok purports to eschew the Bolam-Bolitho test in favour of a more expansive paradigm with greater room for patient autonomy, questions have been raised as to the efficacy of the revised test in promulgating these goals. While the Hii Chii Kok test is a step forward with a more patient-focused approach, the wide yet murky scope of the therapeutic privilege exception creates a very real concern. If not properly defined, this exception leaves an opening for medical paternalism to reassert itself. As discussed below, doctors could infringe on a patient’s right to make an informed decision under the guise of the patient’s supposed inability to do so.

What do we know about the therapeutic privilege exception? The Court of Appeal has suggested that it applies exclusively in “exceptional circumstances”,20 but has been vague on the precise details of the test. Ostensibly, it is an objective factual inquiry21 as to whether the patient is likely to be harmed disproportionally to the impact of being provided with the information in question. Showing advertence to the reality that the therapeutic privilege exception is prone to abuse, the Court explicitly stated that the exception should not preclude patients from making a choice merely because the patient’s decision appears contrary to their interests.22 However, and albeit discrepantly, patients who may choose not to undergo “relatively safe treatments that [could] drastically improve their quality of life” may be caught under the exception.23 Moreover, patients who possess mental capacity but also have impaired decision-making abilities are caught under this exception.24

The Court’s attempt to delineate the boundaries of therapeutic privilege is unsatisfying. For one, must the “serious physical or mental harm”25 be medically recognised? Further, would “physical or mental harm” capture scenarios where the anticipated harm arises from the patient’s anticipated refusal to undergo treatment? Given the Court of Appeal’s observation that therapeutic privilege would include “certain geriatric patients who … may be ‘easily frightened out of having even relatively safe treatments that can drastically improve their quality of life’”,26 this appears to be the case. However, this statement is problematic, especially in light of the potentially conflicting Mental Capacity Act27 [MCA] as discussed below.

The confusion that the therapeutic privilege exception generates is exacerbated by the reality that the three stages of diagnosis, advice, and treatment are not mutually exclusive. As the Court itself in Hii Chii Kok noted, “a single step in the medical care process will engage more than one aspect of the doctor’s duty, and the different aspects will then be in play concurrently”28. This permeability between stages is an issue given that it affects the test to be applied and consequently whether the therapeutic privilege exception would even come in play.

This problem was made apparent in Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd29 [Noor Azlin]. In that case, one of the issues in dispute was whether the alleged negligence fell under the scope of diagnosis and treatment, or advice. The plaintiff argued that the defendants failed to advise her of the risk of cancer, such that she was unaware that other diagnostic options existed and did not make any further investigations. Nonetheless, the High Court found for the defendant. The lack of such advice stemmed from the defendants’ professional diagnosis that cancer was not a likely cause of the plaintiff’s complaints. Hence, the proper test to be applied was the Bolam-Bolitho test. Although the decision in Noor Azlin is not in itself controversial, the lack of a clear directive on how the stages are to be distinguished is troubling.

B. Therapeutic Privilege and the Mental Capacity Act

The MCA was enacted to regulate the decision-making process on behalf of those who lack capacity and hence are unable to make decisions for themselves. At first blush, the Hii Chii Kok test has no ostensible relation to the MCA; the former addresses the question of whether the patient’s consent was informed, while the latter deals with treatment in a situation where the patient is incapable of consenting.

However, it is unclear whether a doctor may evade liability for non-disclosure under the MCA in specific situations. More specifically, in light of the undefined boundaries of the therapeutic privilege exception, the implications of the MCA on the Hii Chii Kok test should be explored given that both fundamentally affect whether the principle of patient autonomy can be overridden by the patient’s lack of decision-making capacity. Under the Hii Chii Kok test, therapeutic privilege is explicitly raised as a defence to a charge of negligent advice where “beneficence comes to the fore”,30 echoing the MCA requirement that the decision be made in the “best interests”31 of the incapacitated individual.

Under s 7(2) of the MCA,32 a defendant doctor would not incur liability for an act done in connection with the care and treatment of the plaintiff, assuming that his or her act would not have attracted liability if the plaintiff hypothetically could and did consent. The defendant medical professional must take reasonable steps to establish whether the plaintiff lacks capacity. In addition, he or she must have reasonably believed that the plaintiff lacks capacity, and that it is in the plaintiff’s best interests that the act be done.33 It is conceivable that the “act” in this situation would extend to non-disclosure on the basis of therapeutic privilege. Which acts, therefore, would fall under the ambit of the MCA, and which would fall under the ambit of the Hii Chii Kok test?

The distinction between the two appears to be one of degree. For the therapeutic privilege exception, the Court suggested that it “should extend to cases where although patients have mental capacity, their decision-making capabilities are impaired to an appreciable degree34 [emphasis added]. In contrast, the MCA arguably requires total incomprehension35 or total inability36 to use or weigh information in the process of decision-making. Ultimately, however, the outcome regardless of which is applied is the same: both act to relieve the defendant of tortious liability.

Crucially, however, the MCA explicitly provides that a person is not to be treated as unable to make a decision merely because said decision is unwise.37 This point has been made earlier by Low, who argues that an “informed decision is not synonymous with [a] good decision”.38 This stands in stark contrast to the principle of patient autonomy apparently espoused by Hii Chii Kok – namely, that a doctor may justify omissions on the basis that he or she believed that the patient would be “frightened out of having even relatively safe treatments that can drastically improve their quality of life”.39

Clearly, a successful finding that the patient was fully incapacitated under the MCA is significantly more onerous than the finding that the patient was of a class to trigger the therapeutic privilege exception under Hii Chii Kok. Consequently, it should stand to reason that the corresponding boundaries of the test in Hii Chii Kok should be narrower. Since both exculpate a doctor facing a charge of negligence, it would be logically inconsistent to allow a doctor to prove less under the Hii Chii Kok test.

V. CONCLUSION

Ultimately, the therapeutic privilege exception as it stands is problematic because it is unclear. While it is meant to relate to “exceptional”40 situations, Hii Chii Kok does not provide a workable litmus test for when a situation would fall within its boundaries. Rather, Hii Chii Kok appears to take an expansive view of therapeutic privilege – perhaps more so than other jurisdictions. Pertinently, the House of Lords in Montgomery expressly rejected41 the defendant doctor’s argument in that case that it was “not in the maternal interests for women to have caesarean sections”42.

Granted, it is within the bounds of plausibility that a patient could be clearly and utterly incapable of making the required decision, but not trigger the provisions of the MCA. There reasonably is a space for the therapeutic privilege exception – but the current boundaries of the test are too wide. With respect, further clarification is essential.

In fairness to the Singapore Court of Appeal, the problems surrounding the doctrine of therapeutic privilege apply across jurisdictions. As Mulheron establishes, “the reality is that there is one clear instance of therapeutic privilege in English law”, and this rarity of application hampers the creation of a coherent, articulate doctrine.43

However, this rarity does not justify the continuing confusion surrounding therapeutic privilege. Locally, about 10% of the population suffers from anxiety and depressive disorders.44 This segment – along with the overly anxious, the hesitant to undergo medical procedures, and perhaps even the simply cautious – risk being caught unnecessarily by too expansive a doctrine. Ultimately, for Hii Chii Kok to truly represent a shift in medical ethics towards upholding the principle of patient autonomy, the therapeutic privilege doctrine must be re-considered.


[1] [2017] SGCA 38; [2017] 2 SLR 492.

[2] Hairul Hakkim and Kevin Ho Hin Tat, “The end of the ‘doctors know best’ era – from medical paternalism to patient autonomy”, Singapore Law Blog, (16 July 2017) online: <http://www.singaporelawblog.sg/blog/article/191> accessed 10 June 2018.

[3] Supra note 1.

[4] [2015] UKSC 11; [2015] AC 1430.

[5] Ibid at [120].

[6] Also termed “doctor’s privilege” or “therapeutic exception” in some cases.

[7] Rachael Mulheron, “Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis” (2017) 70:1 Current Leg Probs at 149.

[8] [2002] SGCA 25; [2002] 1 SLR(R) 1024.

[9] Defensible is not to be equated with reasonable. See Gunapathy, ibid at [65].

[10] Specifically, “[a doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” [emphasis added]: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 587.

[11] Yeo Peng Hock Henry v Pai Lily [2001] SGCA 72; [2001] 3 SLR(R) 555 at [16], as affirmed in Gunapathy at [52], [61].

[12] [1985] AC 871 (HL).

[13] Supra note 4 at [87].

[14] Clark Hobson, “No (,) More Bolam Please: *Montgomery v Lanarkshire Health Board*” (2016) 79(3) MLR 468.

[15] Supra note 1 at [116].

[16] Ibid at [93].

[17] Ibid at [137], [138].

[18] Ibid at [133], [147].

[19] Ibid at [134], [149] and [151].

[20] Supra note 1 at [153].

[21] Ibid.

[22] Ibid.

[23] Ibid at [152].

[24] Ibid at [153].

[25] Ibid at [152].

[26] Ibid.

[27] Cap 177A, 2010 Rev Ed Sing.

[28] Supra note 1 at [90].

[29] [2018] SGHC 35.

[30] Supra note 1 at [149].

[31] Supra note 28, s 6(10).

[32] Ibid, s 7(2).

[33] Ibid, s 7(1).

[34] Supra note 1 at [152].

[35] Supra note 28, s 5(1)(a).

[36] Ibid, s 5(1)(c).

[37] Ibid, s 3(4).

[38] Kee Yang Low, “Doctor’s duty of disclosure and the Singapore Court of Appeal decision in Hii Chii Kok: Montgomery transformed” [2017] 25:2 Tort L Rev 79 at 89.

[39] Supra note 1 at [152].

[40] Ibid at [153].

[41] Supra note 4 at [91].

[42] Ibid at [13].

[43] Supra note 7, at 186.

[44] Jaclyn Lim, “Anxiety in Singapore: Stats, Types and Who’s at Risk”, HealthXchange.sg (blog), online: <https://www.healthxchange.sg/wellness/mental-health/anxiety-singapore-stats-types-risk> accessed 12 July 2018.