Vol 10 (2018/19)

The European Union's GDPR - A View from Singapore

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


 

The European Union’s gdpr – a view from singapore

 

This article was written in July 2018, two months after the GDPR came into force. At the time of publication, the GDPR has not seen any further amendments.

 

ong kye jing

 

 

Introduction

 

The European Union’s [EU] long-awaited General Data Protection Regulation[1] [GDPR] finally came into effect on 25 May 2018. The product of a decade-long legislative endeavour,[2] the GDPR promised a much–needed update to the EU’s Data Protection Directive [DPD],[3] the latter having been introduced when less than 1% of EU citizens were Internet users.[4]

The GDPR has gotten off to an exciting start. Complaints were filed within an hour of it coming into force,[5] as were billion-dollar lawsuits within the first 24 hours.[6] Consumers were subjected to a flurry of emails as businesses scrambled to secure fresh consent.[7] This anxiety is understandable: the GDPR empowers supervisory authorities to impose fines as high as EUR 20,000,000 or 4% of an organisation’s total worldwide annual turnover, whichever is higher.[8] Prior to this, maximum penalties had only amounted to EUR 3,000,000 in France and EUR 300,000 in Germany.[9]

An equally significant change is the GDPR’s theoretically–universal territorial reach. Applying the principle of lex loci solutionis, data controllers that (i) offer goods or services to individuals in the EU, or (ii) monitor their behaviour within the EU, could face obligations under the GDPR despite not being physically or legally established in the EU.[10] Processors (or data intermediaries) that handle such data may also face obligations, albeit of a more limited nature.

In other words, several Singapore–based organisations will now face dual obligations under both the GDPR and Singapore’s Personal Data Protection Act[11] [PDPA]. This article attempts to briefly but critically compare the approaches taken under each regime, with a focus on controllers’ obligations. Broadly, it will explore the themes of consent, purpose limitation and notification, and accountability.

 

 

Consent

 

Under the PDPA, controllers cannot collect, use or disclose personal data[12] without the data subject’s consent.[13] Under the GDPR, consent retains its privileged position. In fact, the GDPR goes further to stipulate that consent must be a “freely given, specific, informed and unambiguous indication of a data subject’s wishes”.[14] Each element deserves some scrutiny.

To an extent, the second and third requirements – of “specific” and “informed” consent” – are nothing new vis-à-vis the PDPA. Consent must be “specific” in that the controller’s exact purpose(s) for data processing must be explicitly delineated and sufficiently granular. And for consent to be “informed”, consent requests need to be communicated in clear and plain language, separately from other matters, and together with other relevant information like the controller’s identity, the data subject’s right to withdraw consent, and the possible risks of data transfers.[15]

One notable difference with the GDPR is that consent must also be “freely given”. Building upon the procedural ingredients above, this injects a substantive element to the test for consent. Data subjects must have a “genuine [and] free choice” and be able to “refuse or withdraw consent without detriment”.[16] A statutory presumption against freely–given consent will likely apply where (i) parties experience clear power imbalances, like in employment relationships, or (ii) separate consent cannot be given for different data processing operations.[17] Accordingly, controllers should (i) identify an alternative basis for processing where an imbalance exists, and (ii) seek standalone consent for each class of processing operations.

Finally, consent must amount to an unambiguous indication of the data subject’s interests. This requires a clear statement or affirmative act from the data subject;[18] silence, inactivity, and pre–ticked boxes do not suffice.[19] One might query whether such an exclusionary rule against apparent omissions unduly places form over substance. In this regard, the PDPA’s discretionary position towards opt–out clauses is perhaps preferable. Singapore’s Personal Data Protection Commission [PDPC] recognises, for example, that a data subject who leaves a clause stating “tick here if you do not wish your personal data to be provided” unticked, but who otherwise meticulously fills out and submits the remainder of an application form, could reasonably be said to have consented.[20]

Two further observations should be made:

First, the theme of fairness which underlies these requirements appears to feature even more prominently in the GDPR’s recitals. In particular, rec 42 stipulates that a declaration of consent “should not contain unfair terms”,[21] in line with Council Directive 93/13/EEC[22] on unfair terms in consumer contracts. Unfortunately, it is unclear how much weight ought to be placed on rec 42. Recitals are not substantive provisions in their own right, but mainly serve to explain the basis for legislation. Moreover, the GDPR does not expound on the manner and extent to which these provisions, which apply predominantly to the sale of goods, are to be transposed to data protection. Any attempt at directly transplanting these considerations into Singapore might entail an even further leap, given that European consumer protection standards and the law on unfair terms in Singapore might not be doctrinally compatible.[23] In short, rec 42’s practical significance remains to be seen.

Second, unlike the PDPA, the GDPR rejects the notion that consent can be deemed. Therefore, even if an individual voluntarily provides her personal data, for purposes she was aware of, and in circumstances where providing such data is reasonable, this alone would not constitute valid consent under the GDPR.[24] A controller seeking to legitimise such data processing should instead rely on another basis for processing.[25]

 

 

Lawful bases for proCessing

 

Apart from explicit consent, a controller can justify the collection, use or disclosure of data using one of five other bases enumerated under art 6 of the GDPR.[26] These have been adapted from the DPD, although EU Member States are now further empowered to introduce additional bases.[27] This is comparable to relying on one of the exceptions to the Consent Obligation under the PDPA.[28]

Most GDPR bases and PDPA exceptions are founded on necessity, and some are even virtually identical. For example, under both regimes, processing that is necessary in the national or public interest is generally lawful,[29] as is processing necessary to protect the data subject’s “vital interests” (GDPR),[30] or “life, health or safety [in an emergency]” (PDPA).[31]

Two bases that are unique to the GDPR are of greater interest: (i) processing necessary for contractual performance, and (ii) processing necessary for the controller’s or a third party’s legitimate interests (balanced against the data subject’s reasonable expectations).[32] On their face, they appear to provide generous exceptions to the obligation to obtain consent. Notably, the EU legislator accepts that even processing for direct marketing purposes might qualify.[33] It is submitted that these bases could, possibly inadvertently, operate to mop up the PDPA’s ‘deemed consent’ cases. Using an example from the PDPC,[34] under the PDPA, a data subject who provides her credit card details in exchange for facial treatment could be deemed to have consented to data collection. While consent cannot be deemed under the GDPR, such processing could instead be justified under the banner of being necessary for contractual performance. Either way, lawful processing becomes possible.

However, the GDPR’s ambit is narrower in one critical way: the fact that personal data is publicly available is not in itself a ground for lawful processing. Under the PDPA, data generally available to the public – including that reasonably observable in public spaces – can be processed with few restrictions.[35] The GDPR departs from this in two ways. First, the personal data must be manifestly made public by the data subject.[36] Second, even where data is manifestly made public, the effect this has is not to legitimise data processing, but only to lift the blanket prohibition on the processing of special categories of data under art 9 of the GDPR.[37] In such circumstances, an additional lawful basis must still be established under art 6. While this second difference could be seen as unnecessarily technical and onerous on controllers,[38] the first is to be celebrated. The requirement is ostensibly borne out of a respect for data subjects’ rights; the act of volunteering one’s information is a normatively significant exercise of one’s autonomy. The mere fact that data is publicly available is not. In fact, where data has been made public against the data subject’s wishes, this could well constitute the very antithesis to the data subject’s interests.[39]

Will Singapore follow the EU’s lead? As it stands under the PDPA, organisations can lawfully use and disclose personal data so long as that data was publicly available for at least an instant in time, even if the individual never intended it for public access and removed it from the public sphere at the earliest opportunity. However, insofar as the PDPA remains an instrument that strives to balance data subjects’ rights with organisations’ interests;[40] Europe’s data subject-friendly approach is unlikely to gain traction in Singapore. This stems from the PDPC’s recognition that, were it otherwise, organisations would have to incessantly verify the data’s continued public availability, which would be “excessively burdensome”.[41]

 

 

purpose limitatIOn and notification

 

Under the GDPR, a controller must – regardless of its specific basis for processing personal data – (i) ensure that processing occurs in a manner compatible with its declared purposes (purpose limitation), and (ii) inform data subjects of these purposes (purpose notification).[42] This is common ground under both regimes, except that the notification obligation does not apply under the PDPA where consent is deemed or where an exception from the Schedule applies.[43] Where consent is required, however, the PDPC has routinely stressed that the ‘neighbouring obligations’ of purpose limitation and notification must be met.[44]

Where purpose limitation is concerned, the GDPR mandates that personal data may only be collected for “specified, explicit and legitimate purposes”.[45] Like the PDPA,[46] vague or generic purposes like “improving user experience”, “IT-security purposes” and “future research” are unlikely to pass muster.[47] Under both regimes, a flexible and fact-sensitive approach will probably be taken to determine whether a purpose is legitimate (or objectively appropriate under the PDPA[48]), based on parties’ reasonable expectations, societal attitudes, etc.[49]

As to the notification obligation, the GDPR sets out relatively more demanding requirements.[50] Controllers are to provide wide-ranging information on their organisations, the data collected (if not already known), the purpose and bases for processing, and any intended data transfers or recipients,[51] along with storage periods, data subjects’ rights, the existence of automated decision-making, and where applicable, the data source.[52]

The GDPR counterbalances these demands by providing for exceptions to the notification obligation. However, these exceptions are not consistently available. Whereas art 14(5) of the GDPR sets out four exceptions (in cases where the data originates from a third-party source), only one exception applies under art 13 (cases where the data originates from the data subject).[53] It is doubtful whether these differences, if deliberate, are justified. As an example, circumstances constituting “disproportionate effort” in an art 14 context are likely to be no less disproportionate or demanding on the controller in an art 13 case.[54] Considerations of fairness and coherence support extending the exception’s application to both contexts. One could make the case that it should be the judge who then determines whether the particular factual matrix crosses the threshold of disproportionality. That being said, EU Member States are empowered to introduce further exceptions pursuant to art 23 of the GDPR, which could leave the final list of exceptions looking quite different.[55]

 

 

accountability

 

Relative to its predecessor, the GDPR is decidedly better grounded in the principles of governance and demonstrable accountability.[56] Controllers and processors are expected to take proactive, ex ante measures to ensure the lawfulness and integrity of all data processed, as early as when determining the means of processing (i.e. Privacy by Design).[57] Another enshrined principle, Privacy by Default, requires controllers to ensure that, by default, only data necessary for their processing purposes are processed.[58] This expectation of data minimisation applies to both the amount of, and access to, data, and the extent and period of their processing retention.[59] Unlike the PDPA, which permits the collection of most data relevant to a controller’s purposes, only data that is “adequate, relevant and limited” to these purposes can be collected under the GDPR.[60] Be that as it may, organisations unaffected by the GDPR might still benefit from adopting data minimisation practices, seeing as this might lower the risk of a data breach – a violation under both regimes.[61]

This emphasis on safeguards stems, in part, from a recognition of the consent model’s deficiencies. The consent model regards the data subject’s consent as the key touchstone of data protection. It presumes, at its heart, the existence of the informed and interested data subject – an idealised construct.[62] In reality, whereas meaningful consent is predicated on carefully-considered choices, the saturation of consent requests and privacy policies today only serve to desensitise data subjects, weakening their ability to respond to such requests.[63] The rise of distributed networks, cloud computing, and the Internet of things has only worsened this predicament by making transactions less discrete and more opaque. Determinations of when and how, or even by whom, our data is processed are thus increasingly difficult to make.[64] An accountability-centric model seeks to resolve these problems by orienting the organisation’s interactions – and obligations – to the regulator, rather than the disinterested or overwhelmed data subject.

In Singapore, the PDPC has always had this second string to its bow, in the form of the Protection Obligation. Organisations are to protect any data they possess or control using “reasonable security arrangements”.[65] Likewise, the GDPR instructs controllers and processors to implement “appropriate technical and organisational measures” to ensure the confidentiality, availability and security of data.[66] Both regimes also contain provisions on data accuracy[67] and limitations on data storage and retention periods.[68]

Both “reasonable” (PDPA) and “appropriate” (GDPR), in this context, likely involve similar evaluations. Reasonableness in the context of the PDPA considers the nature, form, volume, sensitivity and accessibility of information held, and the potential impact of any unauthorised access, modification or disposal.[69] Indicators like industry practice and software currency are relevant,[70] as are risk levels.[71] Appropriateness in the context of the GDPR considers “the nature, scope, context and purposes of processing as well as the risks … for the rights and freedoms of natural persons”.[72] Indicators like adherence to approved codes of conduct and certification under approved mechanisms help demonstrate compliance.[73] What is distinct is that appropriateness also factors in the cost of implementing safeguards,[74] tailoring the assessment to the particular organisation’s means. It has been suggested that the PDPA lacks such a consideration.[75]

Another difference is that compliance must be demonstrable under the GDPR. From obtaining consent[76] to performing internal assessments, organisations are required to document and maintain a record of processing activities,[77] presentable to a supervisory authority on request. While penalties for non-compliance do not appear to include administrative fines, authorities can enforce the obligation using its investigative powers under art 58 of the GDPR,[78] or account for it during sentencing.[79]

The GDPR also elevates the status of Data Protection Impact Assessments [DPIA] from a recommended practice[80] to a mandatory step in some circumstances. Where processing is “likely to result in a high risk”, such as where it involves, inter alia, evaluations using automated processing, large-scale processing of special data, or large-scale monitoring of public spaces, controllers are to first perform an assessment of the processing’s potential impact on data protection.[81] Where such a risk cannot be mitigated, consultations with the supervisory authority should be arranged.[82] One point of interest is art 35(9) of the GDPR, which requires the controller to “seek the views of data subjects … on the intended processing” where appropriate.[83] It is unclear how much weight these opinions will have on supervisory authorities’ directions on the scope and permissibility of processing.

Finally, the GDPR mandates the reporting of personal data breaches. Where the integrity of confidentiality of data has been compromised,[84] controllers are bound to notify the relevant supervisory authority of the breach without undue delay.[85] Where the breach is likely to pose a high risk to data subjects, they must too be notified.[86] The PDPA is currently on a convergence path to adopt similar obligations, the PDPC having announced its intention to do so in February 2018.[87]


conclusion

 

While the fundamental tenet of consent is here to stay, the GDPR’s broader embrace of accountability is both unmistakable and welcome. In this connection, there is much to be said on the GDPR’s treatment of issues like automated decision making and the right to be forgotten. These are exciting developments in a fast-moving area of the law. The impact they will have on future PDPA amendments is certainly a space to watch.

 



[1] EC, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), [2016] OJ, L119/1 [GDPR].

[2] Paul de Hert & Vagelis Papakonstantinou, “The new General Data Protection Regulation: Still a sound system for the protection of individuals?” (2016) 32 CLSR 179 at 180.

[3] EC, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, [1995] OJ, L 281/31.

[4] EC, Press Release, IP/12/46, “Commission proposes a comprehensive reform of data protection rules to increase users’ control of their data and to cut costs for businesses” (25 January 2012), online: Press Release Database <http://europa.eu/rapid/press-release_IP-12-46_en.htm> For a survey on the development of EU data protection laws, see generally Bart van der Sloot, “Do data protection rules protect the individual and should they? An assessment of the proposed General Data Protection Regulation” (2014) 4(4) IDPL 307.

[5] Jeewon Kim Serrato et al, “One week into GDPR – what you need to know” (4 June 2018), Data Protection Report (blog), online: <https://www.dataprotectionreport.com/2018/06/one-week-into-gdpr-what-you-need-to-know/>.

[6] David Hart QC, “$8 billion lawsuits started on GDPR day” (31 May 2018), UK Human Rights Blog (blog), online: <https://ukhumanrightsblog.com/2018/05/31/8-billion-lawsuits-started-on-gdpr-day/>.

[7] Alex Hern, “Most GDPR emails unnecessary and illegal, say experts”, The Guardian (21 May 2018), online: <https://www.theguardian.com/technology/2018/may/21/gdpr-emails-mostly-unnecessary-and-in-some-cases-illegal-say-experts>.

[8] GDPR, art 83(6).

[9] As highlighted in Paul Voigt & Axel von dem Bussche, The EU General Data Protection Regulation (GDPR): A Practical Guide (Cham, SUI: Springer International, 2017) [GDPR Practical Guide] at 209, n 45, citing the relevant French and German statutes.

[10] GDPR, art 3. See also EC, European Data Protection Board [EDPB], “Guidelines 3/2018 on the territorial scope of the GDPR (Article 3)” (16 November 2018), online: <https://edpb.europa.eu/sites/edpb/files/consultation/edpb_guidelines_3_2018_territorial_scope_en.pdf>.

[11] Personal Data Protection Act 2012 (No 26 of 2012, Sing) [PDPA].

[12] Similarly defined under both PDPA, s 2 and GDPR, art 4, but note in particular GDPR, arts 8–9. Where personal data is obtained from a child below 16–years–old in relation to information society services, art 8 of GDPR, carves out special rules. Art 9 of GDPR, identifies special categories of personal data that are regarded as more sensitive and as requiring greater protection. The absence of similar protections for the personal data of children in Singapore has been regarded as a “significant gap”: see Simon Chesterman, “From Privacy to Data Protection” in Simon Chesterman, ed, Data Protection Law in Singapore: Privacy and Sovereignty in an Interconnected World, 2nd ed (Singapore: Academy Publishing, 2018) 13 [Chesterman] at paras 2.63–2.67.

[13] PDPA, s 13.

[14] GDPR, art 4(11). Under certain circumstances, such as where special categories of personal data are concerned, an even higher standard of “explicit consent” is required: see EU Article 29 Data Protection Working Party, “Guidelines on consent under Regulation 2016/679” (WP259 rev.01) (10 April 2018) [WP29 Guidelines on Consent] at 18.

[15] WP29 Guidelines on Consent at 11–18.

[16] GDPR, rec 42.

[17] GDPR, rec 43. See also Lukas Feiler, Nikolaus Forgó̤ & Michaela Weigl, The EU General Data Protection Regulation (GDPR): a commentary (Woking, Surrey: Globe Law and Business, 2018) at 88; WP29 Guidelines on Consent at 10.

[18] WP Guidelines on Consent at 15.

[19] GDPR, rec 32.

[20] Personal Data Protection Commission Singapore, “Advisory Guidelines on Key Concepts in the Personal Data Protection Act” (27 July 2017) [PDPA Key Concepts] at para 12.10. See also Re YesTuition Agency [2016] SGPDPC 5 generally for a relatively liberal approach to opt–out clauses (there, the PDPC did not object to the existence of a broadly–worded, opt–out clause).

[21] Supra note 16.

[22] EC, Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, [1993] L 95/29 [Directive 93/13/EEC].

[23] Compare the breadth of the definition and illustrations of “unfair terms” in Directive 93/13/EEC, art 3 and Annex, with Singapore’s Unfair Contract Terms Act (Cap 396, 1994 Rev Ed Sing), ss 2–4.

[24] PDPA, s 15(1). See also PDPA Key Concepts at para 12.28.

[25] In fact, organisations are already being advised to bypass the consent requirement altogether by considering alternative bases: GDPR Practical Guide at section 4.2.1.

[26] GDPR, art 6(1)(b)–(f).

[27] GDPR, art 6(2) and rec 40.

[28] PDPA, Second, Third and Fourth Schedules, on collecting, using and disclosing personal data respectively.

[29] GDPR, art 6(1)(e) (“necessary for the performance of a task carried out in the public interest …”); PDPA, paras 1(d) of the Second Schedule, 1(d) of the Third Schedule and 1(e) of the Fourth Schedule (“necessary in the national interest”).

[30] GDPR, art 6(1)(d).

[31] PDPA, paras 1(b) of the Second, Third and Fourth Schedule.

[32] GDPR, arts 6(1)(b) and 6(1)(f). See also EU Article 29 Data Protection Working Party, “Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC” (WP217) (9 April 2014) for specific examples.

[33] GDPR, rec 47.

[34] PDPA Key Concepts at para 12.23.

[35] PDPA, s 2(1); PDPA Key Concepts at paras 12.57-12.59. See, for example, Re SG Vehicles Asia Pte Ltd [2018] PDP Digest 361.

[36] GDPR, art 9(2)(e).

[37] On ‘special categories of data’, see GDPR, art 9(1). These categories include data relating to racial or ethnic origin, political opinions, health data, data concerning one’s sexual orientation, etc. By contrast, the PDPA does not adopt a bright red line approach. Instead, examples of sensitive data that warrant a higher standard of protection are explored in the PDPC’s decisions and advisory guidelines. See, for a summary of these, Re Aviva Ltd [2017] SGPDPC 14 at [17]-[18].

[38] There has been suggestion that this would be unnecessary, e.g. Maria Roberta Perugini, “ Personal data made public by the ‘data subject’ and the use of information published on social networks: early observations of GDPR art 9, para 2, letter e” (23 January 2017), Lexology (blog), online: <https://www.lexology.com/library/detail.aspx?g=ce9e10b9-de43-4771-9f7b-f52963f7a7b4>.

[39] Cf. PDPA Key Concepts at para 12.63. The PDPC’s advisory could be construed as evincing some unease with the exception for publicly-available data. The examples raised at para 12.63 all recommend that organisations collecting personal data in public spaces should, as good practice, put members of the public on notice that their personal data may be collected.

[40] Chesterman at para 2.49.

[41] PDPA Key Concepts at paras 12.60-12.61. See also Re My Digital Lock Pte Ltd [2018] SGPDPC 3.

[42] GDPR, art 5(1)(b); Re AIA Singapore Private Limited [2016] SGPDPC 10 at [18].

[43] PDPA, ss 18 and 20.

[44] Re Jump Rope (Singapore) [2016] SGPDPC 21 at [10]. See also Re AIA Singapore Private Limited [2016] SGPDPC 10 at [18].

[45] GDPR, art 5(1)(b).

[46] PDPA Key Concepts at para 14.16.

[47] EU Article 29 Data Protection Working Party, “Opinion 03/2013 on purpose limitation” (WP203) (2 April 2013) [WP Opinion on purpose limitation] at 16 and 52.

[48] PDPA, s 18; see also Re AIA Singapore Private Limited [2016] SGPDPC 10 at [19]-[20] for an application of this requirement.

[49] WP Opinion on purpose limitation at 19–20.

[50] Cf. PDPA, s 20.

[51] GDPR, arts 13(1), and 14(1).

[52] GDPR, arts 13(2) and 14(2).

[53] EU Article 29 Data Protection Working Party, “Guidelines on transparency under Regulation 2016/679” (WP260) (11 April 2018) at paras 56–57.

[54] GDPR, art 14(5).

[55] GDPR, art 23.

[56] GDPR, art 5(2).

[57] GDPR, art 25(1).

[58] GDPR, arts 5(1)(c), 5(1)(e) and 25(2).

[59] GDPR, art 25(2).

[60] GDPR, art (5).

[61] Hannah YeeFen Lim, Data Protection in the Practical Context: Strategies and Techniques (Singapore: Academy, 2017) at para 5.25.

[62] Policy and Research Group of the Office of the Privacy Commissioner of Canada, “Consent and Privacy: A discussion paper exploring potential enhancements to consent under the Personal Information Protection and Electronic Documents Act” [OPC discussion paper] at 9. See also Gabriela Zanfir, “Forgetting About Consent. Why The Focus Should Be On “Suitable Safeguards” in Data Protection Law” in Serge Gutwirth, Ronald Leenes & Paul de Hert, eds, Reloading Data Protection: Multidisciplinary Insights and Contemporary Challenges (Dordrecht: Springer, 2014) 237.

[63] Bart W Schermer, Bart Custers & Simone van der Hof, “The crisis of consent: how stronger legal protection may lead to weaker consent in data protection” (2014) 16 Ethics and Information Technology 171 at 176-179.

[64] OPC discussion paper at 6.

[65] PDPA, s 24.

[66] GDPR, arts 24(1) and 32(1).

[67] PDPA, s 24; GDPR, art 5(1)(d).

[68] PDPA, s 25; GDPR art 5(1)(e).

[69] PDPA Key Concepts at paras 17.2 & 17.4.

[70] Re K box Entertainment Group Pte Ltd and another [2016] SGPDPC 1 at [26] and [29].

[71] Re Metro Pte Ltd [2016] SGPDPC 7 at [15].

[72] GDPR, art 24(1).

[73] GDPR, arts 24(3) and 32(3).

[74] GDPR, art 32(1).

[75] Foo Ee Yeong Daniel, “Suggestions on the relevance of the Organization’s Size to Section 11 of Singapore’s Personal Data Protection Act” at section II, online: (2017/2018) 9 Juris Illuminae <http://www.singaporelawreview.com/juris-illuminae-entries/2018/suggestions-on-the-relevance-of-the-organizations-size-to-section-11-of-singapores-personal-data-protection-act>.

[76] GDPR, art 7(1) and rec 42.

[77] GDPR, art 30.

[78] GDPR, art 58(1).

[79] GDPR, art 83(2)(f).

[80] PDPA Key Concepts at para 17.4.

[81] GDPR, art 35. See also EU Article 29 Data Protection Working Party, “Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is ‘likely to result in a high risk’ for the purposes of Regulation 2016/679” (WP248 rev.01) (4 October 2017) at 8-12 on other situations where a DPIA may be warranted.

[82] GDPR, rec 84.

[83] GDPR, art 35(9).

[84] Though not when they are only made temporarily unavailable, e.g. in the event of a power outage.

[85] GDPR, art 33(1). A processor which becomes aware of such a breach is to inform its controller instead: GDPR, art 33(2).

[86] GDPR, art 34(1), though see exceptions under GDPR, art 34(3).

[87] Personal Data Protection Commission Singapore, “Response to Feedback on the Public Consultation on Approaches to Managing Personal Data in the Digital Economy” (1 February 2018) at 1015 (Part III: Mandatory Data Breach Notification). In any case, prompt notification of breaches is already an encouraged practice, and could amount to a mitigating factor in some cases, e.g. in Re Credit Counselling Singapore [2017] SGPDPC 18 at [37].

Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (II/II)

By Agnes Lo, Bryont Chin, Darren Ang, Leon Tay & Louis Lai*

The previous section of this article examined the different considerations that affect the weight accorded to expert evidence.1 It was observed that judges scrutinize the expert himself (his qualifications and the level and relevance of his specialization) and also his testimony (its cogency, internal consistency, and consistency with the facts).

A survey of local case law and overseas publications reveals issues surrounding this assessment. These have been directed to the reliability of expert opinions itself, applying generally to all experts. Unfortunately, local jurisprudence has not addressed these concerns.

The lacuna in local jurisprudence on this point is especially unfortunate given the widespread prevalence of and reliance upon medical expert opinion in Singapore. It is thus pertinent to examine these issues and their causes in detail.

I. ISSUES ARISING FROM THE ADVERSARIAL PROCESS

A. Partiality and bias of experts

Case law reflects a persistent concern about the partiality and bias of experts but also a recognition that this will persist as long as litigation remains adversarial. Ideally, under Order 40A Rule 2(2) of the Rules of Court2 [ROC], experts should bear an exclusive duty to the Court; however, this is usually not the case in practice. A “market-place” mentality continues to prevail: parties select experts because the latter’s views are “already known and, consequently, would advance the party’s case.”3 Both the courts and commentators like Professor Pinsler have acknowledged that the source of this paradigm is the adversarial model, since parties assume that their “remuneration of the expert justifies a measure of loyalty that will somehow manifest to his advantage in the determination of the case before or at trial”.4 Therefore, as long as the adversarial model continues to be adopted, parties will continue to pay, retain, and offer the experts future engagements—all of which incentivise experts to provide opinion evidence slanted in favour of the clients who engage them.5

To make matters worse, breaches of the procedural duty under Order 40A above attract no direct penalties in themselves. There is only an evidential penalty: if an expert is found to be partial, the court completely or partially disregards his testimony.6 This does not seem to have been enough: from the introduction of Order 40A in 2000 to date, the courts have continued to observe bias in experts.7 Therefore, bias among experts remains a real problem in the court today.

B. A fear of testifying in Court

Also flowing from the adversarial model and the process of adjudication itself is medical experts’ intrinsic fear of testifying in court. Experts—and medical experts in particular—tend to steer clear of the witness stand for two reasons: a fear that they may not be sufficiently competent to testify, and a fear that they may be shamed or wronged on the stand.8

While there is no equally comprehensive study, local doctors have expressed the same fears of testifying due to natural embarrassment and a fear of damaging their colleagues’ reputations.9 Failing to address these fears will restrict plaintiffs’ access to medical experts or otherwise make engaging experts more expensive. This reluctance will affect the quality and accessibility of court adjudication, reliant as it is on expert testimony.

C. Insufficiency of factual bases for medical opinions

Experts often have insufficient facts to support their opinion. This is because in litigation, they are likely to be engaged before trials begin since their opinions are critical in establishing the client’s case and thus predict the likelihood of success at trial.10 However, this means that much of the evidence the expert relies upon to develop his report and testimony will be “untested raw material” since this evidence has yet to be tested in court.11 This concern came to a head in Khoo Bee Kiong,12 where the court expressly questioned the factual basis of an expert opinion prepared with affidavits of evidence in chief.

This is likely to be aggravated in medical negligence claims, where the recent Supreme Court Practice Directions13 impose an accelerated case management timeline. As an expert report must now be filed before the claim itself begins, medical experts have less time and evidence to formulate their opinions.

II. ISSUES IMMANENT IN THE JUDICIAL TREATMENT OF MEDICAL EXPERT OPINIONS

Apart from issues with the expert opinions themselves, there are also notable concerns with the judicial treatment of medical expert opinions as reflected in empirical studies. These suggest that there are systemic issues with judges’ ability to assess the reliability and credibility of a medical expert’s opinion and the proper weight to be accorded to admitted evidence.

A. Lack of clarity on the assessment of reliability and credibility of medical expert opinions

At its core, the court’s assessment of the reliability and credibility of a medical expert’s opinion is a discretionary exercise. It is naturally opaque and applied circumstantially, and may hence appear uncertain. This means that the other stakeholders involved—lawyers, clients, and the medical experts themselves—may not fully understand the standard expected of them. Jurs, for instance, observes that legal professionals tend to over-estimate the value of personality and credentials, whereas judges place a greater emphasis on partiality and bias, tentativeness, and the technicality of the opinions proffered.14 Clarity in this area is much needed;15 consensus and better articulation of the relevant considerations would assist greatly.

B. Assessment of weight to be accorded to admitted medical expert opinions

Beyond a lack of clarity on a systemic approach to assess reliability and credibility of medical expert opinions, there is a concern that the current approach may mean that factors which might appear to be unrelated or insignificant may be taken into account in the assessment of weight to be accorded to admitted expert opinions. For instance, “impressions of the analyst’s demeanour and credibility, like the ability to survive cross-examination, will not in most cases provide rational means of assessing the probative value of an opinion.”16 The English courts, for example, have been criticised for assessing expert opinion evidence on this basis, which has led to factually unsustainable acquittals.17

Studies suggest that this concern may not be unfounded because of the way medically-untrained judges and jurors assess the value of medical expert opinions. For instance, jurors focus on consensus supporting the expert opinion, whether the opinion is applicable in the case at hand,18 and how experts communicate their opinions.19 However, these indicators may not necessarily go towards the veracity of an opinion.20 Where earlier studies have suggested that this may be due to a lack of education in the expert’s field,21 it is understandable why some doctors feel that laypersons like jurors “should not decide medical malpractice cases because of the arcane issues involved in the practice of medicine.”22

Local jurisprudence has only engaged these concerns in the abstract. Ronald Wong posits that the law’s insistence on the finality of an opinion for it to be accepted as evidence conflicts with the scientific method, which relies not on finality, but rather social acceptance to establish a theory as valid.23 This mirrors the observation in Levett and Korvera’s review that “individuals often are unable to evaluate statistics or methodology properly… [such that] it is reasonable to assume that jurors may be unsuccessful in independently detecting flaws in research presented by an expert in court.”24 Nonetheless, Wong has argued that it is still preferable for a judge to continue to adjudicate on the issue, and if the expert evidence is insufficiently reliable, a judge ought to make his findings of fact on the burden of proof.25 Wong’s argument—defended on grounds of a public interest in resolving disputes—contrasts with Professor Hor’s view that judges lack any institutional capacity to determine the veracity of expert opinion.26

Since judges must still decide cases involving expert opinions, the question of institutional competence remains a live issue to be managed. This is especially the case if adjudication may lead to imperfect reliance on wrong or inaccurate expert opinions as suggested by the studies above.

III. THE PRESENT STATE OF MEDICAL EXPERT OPINION AND ITS PRACTICAL USE

Concerns over unreliable expert opinions have been the subject of statutory reform. The government has astutely institutionalised a court-appointed panel of psychiatrists testifying in criminal cases under the new s 270 of the Criminal Procedure Code27 [CPC] which has not yet come into force.28 This places the control over the admission and use of psychiatrists’ opinions in the hands of a Selection Committee instituted for these purposes.

In other aspects, however, reform continues to be lacking. The independence of experts continues to be secured by weak duties under s 269 CPC which do not depart from the phraseology of Order 40A ROC. The amendments to the CPC do not address the deeper concerns relating to adversarial litigation or pronounce on the feasibility of alternatives such as independent experts or assessors.

Therefore, the fundamental question remains as to whether the amendments will indeed improve the reliability of psychiatric evidence and be a viable option across other classes of medical experts as well; or, alternatively, whether it would entrench a preferred doctrine of psychiatric testimony.29 If the latter is the case, then the amendments may exacerbate the issue of expert witness bias. Psychiatrists have questioned why they were the only class of expert that required supervision, while the Criminal Bar expressed that it would be preferable if the selection process also included defence counsel as a member of the Selection Committee.30

Beyond the concerns regarding the partiality of experts, there are also practical complications of note. Amendments have been made to the Supreme Court Practice Directions to require medical expert opinion reports to be submitted in the pre-writ exchange of information for medical negligence cases, but this may mean that experts will not have sufficient factual evidence to support their opinions.31 These remain with broader concerns that judges may lack the institutional capacity to accurately assess medical expert opinions, or that they may demand a different standard from non-medical expert witnesses. While there are extra-legal methods employed to cope with these such as a training course for medical experts to raise the quality of medical opinions and reports, the impact of these courses on the judiciary’s assessment of the medical opinions and reports presented to them, has not yet been observed.

IV. CONCLUSION

The discussion above has traced a number of difficulties in the use of medical experts’ opinions, as well as the use of experts in general. The judicial approach to assessing the probative value and reliability of opinions is plagued with difficulties stemming from intractable concerns that medical experts tend to be partial towards the party that hired them, and that such experts often lack sufficient facts to properly develop an opinion. Although there are both existing procedural laws and external support to safeguard the reliability of medical expert opinions, these are often watered down by parties’ adversarial mentalities. Where there is little incentive to cooperate, parties do not actively rely on the same measures such as concurrent expert evidence or discussion. Other issues, such as fear among medical professionals of proffering testimony against their fellow doctors, or the institutional competence of the Court to adjudicate on the same, have hardly been the subject of discussion by the legal community in Singapore.

This is unfortunate as expert opinions are the lifeblood of many disputes. Even before a case commences, expert opinions are important in managing client expectations, where the expert’s assessment indicates the client’s likelihood of success.32 Medical experts are of special significance in the field given that they are relevant in many legal disputes and, in fact, comprise the bulk of experts sought.

Meeting the concerns above would require lawyers, judges, and medical experts alike to come to a clear consensus on their roles and competencies in adjudication. Coping with the difficulties of an adversarial model will also require a change in mindset and culture: lawyers and courts must emphasise to medical experts that in testifying, they are helping society as a whole. In this regard, the authors posit that empirical studies will be helpful in assessing the gravity of each issue, and the effectiveness of measures to cope with them. In this regard, this article will be followed by a further submission, “The Evaluation of Medical Expert Opinions in Litigation: An Empirical Study”,33 which seeks to provide more clarity on the factors that judges in Singapore apply in evaluating medical expert opinion evidence, and their relative significance in different scenarios.


*The authors are a group of undergraduate students in the National University of Singapore, and are presently in the course of an empirical research project on the subject.

[1] See Agnes Lo, Bryont Chin, Leon Tay & Louis Lai, “Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (I/II)”, online: Juris Illuminae, Vol 10 <http://www.singaporelawreview.com/juris-illuminae-entries/2018/torn-fealty-to-the-courts-and-science-conundrums-over-medical-expert-opinions-i>.

[2] Cap 322, R 5, 2014 Rev Ed Sing.

[3] Jeffrey Pinsler, “Expert Evidence and Adversarial Compromise: A reconsideration of the Expert’s Role and Proposals for Reform” [2015] 27 Sing Ac LJ 55 at [2].

[4] Ibid at [15].

[5] Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162, at [81].

[6] If the expert attempts or is seen to be an advocate for his party’s cause, he will inexorably lose credibility: per VK Rajah JA in Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162 at [83].

[7] Supra note 3 at [4].

[8] See e.g. “Medical Malpractice - Expert Testimony” (1965-1966) 60 Nw UL Rev 834.

[9] See Joseph Sheares, “Writing the Expert Report and Testifying in Court (Part 2)”, SMA News (February 2015) at 23, online: <https://www.sma.org.sg/UploadedImg/files/Publications%20 %20SMA%20News/4702/Professionalism.pdf>.

[10] Amanda Stevens, “Editorial: Reliability and cogency of expert witness evidence in modern civil litigation” (2011) 66 Anaesthesia 764.

[11] Khoo Bee Keong v Ang Chun Hong [2005] SGHC 128 at [72].

[12] Ibid.

[13] See Sing, The Supreme Court Practice Directions (2017) part XXIII, s 158(1), referring to Appendix J (High Court Protocol for Medical Negligence Cases), online: <https://epd.supremecourt.gov.sg/downloads/Appendix_J/APPENDIX_J.pdf> at 4.1-4.2.

[14] Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think About Experts” (2016) 91 Ind LJ 353 at 371-372, 377-378 and 389.

[15] See e.g. the Ministry’s comments in proposing amendments to s 270 of the CPC, which it expressed to be for the purpose of ensuring that evidence given by psychiatrists is “competently arrived at and objective”: Siau Ming En, “Proposed psychiatric panel must be large enough for smoother defence: Lawyers”, Today (28 July 2017), online: <https://www.todayonline.com/singapore/proposed-psychiatric-panel-must-be-large-enough-smoother-defence-lawyers>.

[16] Gary Etmond, “Legal versus non-legal approaches to forensic science evidence” (2016) 20:1 IJEP 3 at 24.

[17] Ibid.

[18] Lora M Levett & Margaret Bull Korvera, “The Effectiveness of Opposing Expert Witnesses for Educating Jurors about Unreliable Expert Evidence” (2008) 32:4 Law and Human Behaviour 363-374, at 364.

[19] Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think About Experts” (2016) 91 Ind LJ 353.

[20] Kovera MB, McAuliff BD & Hebert KS, “Reasoning about Scientific Evidence: Effects of Juror Gender and Evidence Quality on Juror Decisions in a Hostile Work Environment case” (1999) 84:3 J Appl Psychol 362 at 365.

[21] See e.g. Kalven, Harry Jr & Hans Zeisel, The American Jury (Chicago: University of Chicago Press, 1966) at 153; cited in Sanja Kutnjak Ivkovic & Valerie P Hans, “Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message” (Cornell Law Faculty Publications, Paper 385, 2003) at 443.

[22] Neil Vidmar, “Lay Decision-Makers in the Legal Process” in Peter Cane & Herbert M Kritzer, The Oxford Handbook of Empirical Legal Research (OUP, 2010) 626, at 633.

[23] Ronald JJ Wong, “Judging between Conflicting Expert Evidence” (2014) 26 Sing Ac LJ 169.

[24] Supra note 18.

[25] Supra note 23.

[26] Ibid, citing Michael Hor, “When Experts Disagree” (2000) Sing JLS 241 at 243.

[27] Cap 68, 2012 Rev Ed Sing.

[28] Clause 78 of the Criminal Justice Reform Bill (Bill 14 of 2018), which introduces s 270 of the CPC.

[29] Supra note 15.

[30] Ibid.

[31] See Appendix J of the Supreme Court Practice Directions (Amendment No. 3 of 2017). The relevant amendments to the Practice Directions are available online at <http://www.supremecourt.gov.sg/docs/default-source/default-document-library/pd-amd-no-3-of-2017.pdf?Status=Temp&sfvrsn=0.9324472121860925>.

[32] Supra note 10.

[33] Lo et al., “The Evaluation of Medical Expert Opinions in Litigation: An Empirical Study” (2018–2019) 36 Sing L. Rev. 247.


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

Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (I/II)

By Agnes Lo, Bryont Chin, Leon Tay & Louis Lai

I. THE CONUNDRUMS OF THE MEDICAL EXPERT WITNESS AND COUNSEL

The Singapore courts are well-accustomed to hearing technically complex disputes, and disputes involving medical issues may present the most complex of these cases. Where judges and counsel are unable to divine the implications of facts and evidence at hand, they inevitably turn to expert witnesses. Expert witnesses assist in interpreting the facts, opining on what these facts mean, and provide specialized knowledge and information so very crucial for a judgment to be made.

Expert witnesses have become necessary ever since complexity in technical matters increased beyond a layman’s untrained capacity. It was understood that when the machines inevitably got involved in disputes, judges had to call on experts to advise them. However, judges do not blindly defer to the authority of the expert. Care is necessarily taken to differentiate between different opinions proffered by each expert, and not every testimony is given equal weight or admitted without any questions. A clear example where the judge departs from the views of an expert is where the expert witness is biased. Another possible difficulty is in finding an objective approach to evaluate competing expert opinions. In such situations, whose opinion is to be preferred and given more weight? Is a professor’s academic opinion more reliable than that of an experienced practitioner lacking in qualifications? These questions continue to plague the courts today.

In a two-part series, this article sets out a preliminary examination of the main factors considered by the court in assessing the proper weight to be given to expert testimony. Medical experts are given foremost consideration as they feature prominently among the expert witnesses appearing before the courts. In a following article, we will also examine inconsistencies and incoherence in the courts’ use of expert evidence, and discuss recommendations for future use of expert evidence.

A. The use of medical experts in court

Medical expert opinions are widely admitted in criminal and civil trials. In criminal cases, these opinions are necessary to determine the psychological or physiological state of the accused persons, from which the judge can establish the legal elements of the offence. When deciding on sentencing, expert opinion also informs the judge of facts from which he can find exacerbating or mitigating factors. In civil matters, liability of the accused and damages to be awarded often depends heavily on the assessment of a medical expert. After all, judges are hardly able to decide what an appropriate sum for medical expenses should be, or how much income would have been lost as a result of an injury. Of course, medical expert opinions are most often adduced in physical injury cases,1 and when trespassing into the realm of medical expertise, judges are loath to substitute their own views for those of the proper experts in the field. In this regard, judges thus place a greater weight on the testimony of a defendant doctor’s own peers, since they—having the most similar qualifications and experience—would be most able to give advice.

B. The present litmus tests for the admissibility and reliability of opinions of medical experts

Prior to the introduction of the adversarial criminal system in the 18th century, there was no legal procedure to define experts qua expert witnesses;2 experts would usually be summoned as jurors or witnesses. Evidentiary rules and objections were subsequently developed to standardise the types of evidence and how they can be presented before the court. While the rule against opinion being admissible as evidence emerged alongside the prohibitive rule against hearsay, experts’ opinions are an exception to this otherwise strict rule. This exception was necessary in the adversarial system for experts to provide opinions as witnesses without having observed the facts.

The present legal framework for the admission and giving weight to expert evidence bears two stages of analysis. Judges as finders of fact must contend with the question of whether the expert’s opinion is admissible as evidence, and if so, whether the expert’s opinion is of sufficient weight to be relied upon to establish a fact in issue. The former is governed largely by Section 47 of the Evidence Act and interpretive cases, while the latter is largely a matter expounded upon by case law.

Section 47 of the Evidence Act essentially requires counsel to establish three points to admit expert opinions as evidence:

(a) The pleaded point must be one of “scientific, technical or other specialised knowledge”.3 The ambit of such knowledge and whether a particular field would fall within it seems to be open to discussion, and local courts have yet to pronounce on the specific test. There have been suggestions for reference to tests in foreign jurisprudence, such as the more lenient test in Frye v United States4 (“Frye”); or a more stringent inquiry under Daubert v Merrell Dow Pharmaceuticals.5

(b) The individual giving the opinion must be an expert, who must have obtained the knowledge applied in his opinion “based on training, study or experience”.6 A judicial determination of whether this is made out is discretionary, and often turns on the qualifications, experience, and credibility of the expert in question.7

(c) In the round, the Court must be “likely to derive assistance” from the opinion when making its determinations of fact. This is a lower threshold than that under the same provision before the 2012 Amendments to the Evidence Act.

Once admitted, the court generally gives weight to the expert opinion unless it is later found to be “obviously lacking in defensibility”.8 In cases where only one expert opinion is adduced or where the experts are in agreement, there are few obstacles that may lead to the courts giving it less weight. This is contrasted to cases where competing expert opinions are adduced in court: in such cases, a brief survey of cases involving medical experts affirms that a multi-factorial approach is taken. Some of the factors are examined below.

1. Expert’s qualifications and experiences

The most prominent factor is the expert’s qualifications. “Qualifications”, as explained by the Court of Appeal, refers not to an expert’s “professional titles” but instead refers more generally to the expert’s “knowledge and familiarity”.9 While it is generally true that actual experience lends more weight to an expert testimony than mere paper qualifications, the High Court has qualified this by stating in obiter that this was “not an inevitable rule of thumb”.10

The relevance of practical experience to the subject matter of the case is considered down to a micro-level: the court has differentiated between experts with clinical experience in cancer diagnosis and experts with clinical experience in cancer treatment,11 and between experts in the treatment of drug addicts and experts in recognizing signs of drug addiction.12

Other factors that affect the weight given to an expert testimony are his experience doing research relevant to the case at hand,13 and his experience practising in the Singapore context.14 That a medical expert witness has experience treating one of the parties involved also lends authority to his testimony, since he would be more familiar with that party’s condition(s); however, his familiarity and personal relationship with the party raises clear possibilities of bias that must be dealt with.15

2. Impartiality of expert witness

The testimony of even the most qualified expert will not pass muster if it is tainted by bias. Hired guns fighting for the parties that called (and paid) them can hardly be relied on to provide accurate testimony. The influence of bias is great in practice due to monetary incentives being available, the priming of experts to be a part of the legal team, and the lack of safeguards against errant experts trying to manipulate facts to support a biased opinion.16

Although expert witnesses are appointed by parties themselves, their ultimate duty is always to the court.17 They cannot become mercenaries for hire, bending the facts for the highest bidder. Expert witness bias is especially dangerous because, by definition, expert witnesses have specialised expertise that the judge does not; an errant expert could easily mislead the judge and dictate the outcome. Therefore, judges must remain alive to the dangers of expert witness bias. Given the high stakes, judges impose only a low threshold to disqualify a biased expert testimony, such that even “perceived partiality or inclination” on the expert’s part can suffice to disqualify him for bias.18

3. Alignment with factual evidence

The words of even the most illustrious expert have no weight if it does not comport with the facts. Although disagreement in expert opinions is so common as to be almost inevitable, expert opinions must remain based on the facts established by the court. Expert testimonies that contradict the facts often prove fatal to that side’s case.19 When faced with insufficient evidence or evidence that contradicts the point their side wants to prove, it would be better for the experts to concede “where they ha[ve] to”20 than have the credibility of their entire report doubted by the court.

Factual evidence can also be used as a weapon to knock down opposing experts’ testimonies. In Hii Chii Kok v Ooi Peng Jin London Lucien and another,21 since the plaintiff’s expert could not provide “objective clinical data to support his assertions”, the court strongly preferred the defendant’s experts, whose testimonies “convincingly” countered the plaintiff’s expert’s testimony “point-by-point”.

Finally, expert testimonies should be precise and specific. Sweeping generalisations and conjecture are frowned upon, even more so when they are unsupported by evidence22 or are in relation to matters outside the expert’s field of expertise.23

4. Internal consistency of testimony

Inconsistency in an expert’s testimony casts a long shadow over his credibility. The degree of internal consistency has been described as one of the “paramount” considerations that courts will consider when assessing such reports.24 Given that experts are meant to guide the court, accepting the evidence of a muddled and confused expert that would does little to assist the court would be inimical. Therefore, courts readily reject inconsistent expert reports or grant them less weight even if admitted. An example would be in Chua Thong Jiang Andrew v Yue Wai Mun and another25 where the expert’s quality was harshly criticized because of various self-contradictions in his oral testimony plus ambiguities and conflations in his expert report. The court issued a scathing dismissal of his report, describing it as an “illogical and unconvincing” explanation that was “completely off the mark”.

On the other hand, courts appreciate experts maintaining a high degree of internal consistency in their testimony. In Public Prosecutor v Tengku Jonaris Badlishah bin Tengku Abdul Hamid Thani,26 the court considered the prosecution’s expert’s testimony positively, describing the expert’s opinion as “consistent, impressive and able to stand up to objectivity”. It should be noted, however, that a dogmatic expert who refuses to change his view even in the face of overwhelming evidence to the contrary is not necessarily preferable to a reasonable expert who concedes in such situations. Experts need not defend their point to the death for fear of sounding inconsistent: courts understand and appreciate an expert changing his view to consider and account for shortcomings in his side’s case. In Khek Ching Ching v SBS Transit Ltd,27 the court noted that under “withering” cross-examination, the plaintiff’s expert had conceded that he was unable to confirm with complete certainty the causation of the plaintiff’s injury. Because he had continued to maintain his position while still conceded where he had to, the court commended him as a “generally good” expert witness that had testified “professionally”, and noted that he had been “of assistance to the court”.

5. Expert’s methodology

Although courts are loath to put themselves into the expert’s shoes, an expert report derived using objectively flawed methodology will still be dismissed. It should be noted that an expert’s level of qualification is a separate and distinct factor from the quality of his methodology (although one would hope that the former would lead to the latter). Ong Pang Siew v Public Prosecutor28 is the main case where this factor has been relevant. In that case, where the accused pleaded the defence of diminished responsibility, the court harshly criticized the prosecution witness for his poor investigative methodology29 when writing his report. The defence witness’ “undoubtedly more comprehensive” methodology meant that his report turned the tide, and led the court to allow the appeal.

6. Expert pushing his/her own case theory

While it is natural for experts to form case theories from prolonged exposure to a case, it is prudent for experts to remain objective in their testimonies and not venture into interpreting facts. Once experts accept the responsibility of testifying, they must resist this temptation and stay impartial to the facts. However, this is easier said than done.

In Eu Lim Hoklai v Public Prosecutor,30 the Court of Appeal explicitly pointed out the Prosecution witness’ “over-enthusiastic allegiance” to her own case theory, and how, in her “absolute certainty” that it was correct, she had overlooked its “inherent improbabilities” and “uncertainty in the evidence”.31 The failure of the Prosecution’s “most important” witness in this important regard defeated the Prosecution’s case.32 Advocacy must ultimately be left to the lawyers, and the experts should keep within their own field.

C. Conclusion

As explained in the introduction, the exception of admitting expert witness testimony was necessitated by the increasing complexity of legal disputes. In the years since, as the sight of experts in courtrooms became commonplace, rules in this area appeared and grew. Today, much of the law on the admissibility of expert’s opinion is governed largely by Section 47 of the Evidence Act and interpretative cases, while the weight to be accorded to admitted evidence is a matter expounded on by case law.

Judges rely on experts to guide them through specialised fields of expertise, to assist them to reach justice, fairness, and truth. Thus, when searching for expert guidance, judges are just like the rest of us: they look for persons with impartiality, experience, clarity, and intellectual honesty. Such paragons of virtue may be hard to find, but there is hardly an alternative. The second part of this series will examine the trade-offs and such issues in greater depth.


[1] This has been established in a number of American studies. See Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think about Experts” (2016) 91 Ind LJ 353, which records that physicians make up the majority of experts at 37.5%; and Champagne et al, “An Empirical Examination of the Use of Expert Witnesses in American Courts” (1991) 31:4 Jurimetrics J 375, which observed that most experts were physicians (48%), and experts were mainly used in physical injury cases, and Samuel R Gross, “Don’t Try: Civil Jury Verdicts in a System Geared to Settlement” (1996) 44 UCLA L Rev 1, which observed that medical experts make up the majority of experts.

[2] Tal Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12:1 Science in Context 7 at 9.

[3] Evidence Act (Cap 97, 2012 Rev Ed Sing, s 47(1).

[4] 293 F 1013 (DC Cir 1923).

[5] 509 US 579 (1993).

[6] Supra note 3 at s 47(2).

[7] Fok Chia Siong v Public Prosecutor [1999] SGCA 5 and Wong Swee Chin v PP [1981] 1 MLJ 212.

[8] Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1; [2001] SGCA 38 at [26].

[9] Muhammad Jefrry v Public Prosecutor [1996] 2 SLR(R) 738; [1996] SGCA 44 [Jefrry] at [107].

[10] Sakthivel Punithavathi v Public Prosecutor [2007] 2 SLR(R) 983; [2007] SGHC 54 [Sakthivel Punithavathi] at [75].

[11] Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2018] SGHC 35 (“Noor Azlin”) at [63].

[12] Jefrry, supra note 9 at [90]-[91].

[13] Supra note 11 at [23].

[14] Ibid at [63].

[15] Tan Teck Boon v Lee Gim Siong and others [2011] SGHC 76 at [7]; AOD, a minor suing by the litigation representative v AOE [2014] SGHCR 21 at [63].

[16] Jeffery D Pinsler, “Expert’s Duty to be truthful in light of the Rules of Court” (2004) 16 SAcLJ 407.

[17] Rules of Court (Cap 322, R 5, 2014 Rev Ed Sing), O 40A, r 2.

[18] Public Prosecutor v Thangaraju Sarukesi [2007] SGMC 7 at [71].

[19] See generally Sheila Leow Seu Moi v Public Prosecutor [2001] SGDC 376 [Sheila Leow]; Yeo Henry (executor and trustee of the estate of Ng Lay Hua, deceased) v Yeo Charles and others [2016] SGHC 220 at [63]-[67], [89], and [91]; Eu Lim Hoklai v Public Prosecutor [2011] 3 SLR 167; [2011] SGCA 16 [Eu Lim Hoklai] at [58], and Public Prosecutor v Tong Lai Chun [2003] SGMC 7 at [183].

[20] Khek Ching Ching v SBS Transit Ltd [2010] SGDC 220 at [95].

[21] [2016] SGHC 21.

[22] Sheila Leow, supra note 22 at [118]-[119].

[23] Eu Lim Hoklai, supra note 22 at [58].

[24] Sakthivel Punithavathi, supra note 10 at [75].

[25] [2015] SGHC 119.

[26] [1998] SGHC 401.

[27] [2010] SGDC 220.

[28] [2011] 1 SLR 606; [2010] SGCA 37.

[29] Firstly, the witness had failed to interview people who had recently contacted the accused person (thus breaching the diagnostic guidelines in the DSM-IV-TR, a reputed psychiatric manual). Secondly, he had also failed to investigate what the court considered to be relevant considerations, viz. the accused person’s changing jobs three times in the 18 months before committing the crime and his diabetes, which increased the risk of depression. Thirdly, he had interviewed the accused person in Mandarin even though he knew that the latter was more comfortable in Hokkien. The court thus condemned his methodology as an “unsatisfactory” one that “fell short of the requisite standard prescribed under the DSM-IV-TR”, especially since he, being the prosecution witness, would have much more available resources. Because of this, his testimony was held to be “less convincing” than that of the defence witness, who not only interviewed the accused in Hokkien, but also interviewed the accused person’s family members and the persons close to him.

[30] Eu Lim Hoklai, supra note 22.

[31] Eu Lim Hoklai, supra note 22 at [56]-[57].

[32] Eu Lim Hoklai, supra note 22 at [52] and [59].


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

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.

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].


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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.


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