Case Commentary: Sembcorp Marine

Case Commentary: Sembcorp Marine

Victor Leong

Introduction

The Singapore Court of Appeal in Sembcorp Marine¹ has recently clarified the law as regards, inter alia, the implication of terms in fact. This article will examine three aspects of the court’s decision regarding the implication of terms: the basis of ‘necessity’, the complementary approach towards the common law tests, and the practical framework which the court has chosen to adopt.

It is this author’s view that the court in Sembcorp has laudably confirmed the basis of necessity and clarified the conjunctive nature of the common law tests as applied in Singapore. However, the court unfortunately chose to import the vague concepts of foreseeability and normative bases other than business efficacy into the picture. Finally, the court should have taken the opportunity to clarify the exact scope of application of the common law tests in Singapore – especially what exactly constitutes business ‘efficacy’.

The basis of necessity

The prevailing approach in Singapore towards the implication of terms in fact is a basis of necessity. Although this seems to have been established law², there was some confusion in the common law recently, given Lord Hoffmann’s seminal decision in Belize³. In the Belize decision, Lord Hoffmann put forth an approach based on the ‘interpretation’ of the contract as a whole – ostensibly a basis of reasonableness. The Court of Appeal in Sembcorp conclusively rejected the Belize test to the extent that it purports to impose this standard of reasonableness to implied terms⁴, following previous decisions in Foo Jong Peng⁵ and MFM Restaurants⁶.

This unequivocal clarification is welcome for law students such as this author for two reasons. First, it reaffirms the Singapore courts’ commitment towards giving effect to parties’ intentions as much as possible. Implying terms into a contract is to give effect to parties presumed intentions, ie, what they must have meant when drafting the contract⁷. This is as opposed to implying the reasonable rights that the courts would like them to have – even if parties may have meant for a slightly imbalanced bargain to reflect other considerations.

Second, this accords with other areas in contract law. As mentioned, the Singapore courts’ attitude of giving effect to parties’ intentions whenever possible is also currently reflected in other areas of contract law. For instance, in the absence of express stipulation or contextual evidence that parties meant for a term to be a condition, the court will not easily find that the effect of a breach is so severe as to ‘substantially deprive’ the aggrieved party of the benefits of the contract⁸. This gives effect to the severity that the parties intended (or did not intend) to accord the particular term, rather than the court imposing its own standard by looking at the effect of the breach.

However, a possible problem is that the distinction between what is necessary and what is reasonable is not always clear. For instance, the House of Lords in Liverpool⁹ purported to apply the standard of necessity to implying terms in law. Accordingly, the term eventually implied was that the landlord would keep the common areas clean and would maintain the lift, among others. However, it is unclear how exactly this is necessary rather than merely reasonable. The occupation of premises in that case would still have been perfectly usable even without the common areas being clean, even though it would have been an annoyance. Similarly, the lift being out of order would have served as an inconvenience for the occupiers, although they could still climb the stairs. Arguably, such annoyances or inconveniences, while reasonable for the landlord to fix, is not entirely necessary for the operation of the contract.

It is thus necessary to analyze the common law tests which were developed to manage this problem (in the area of implied terms in fact), and how they apply in Singapore.

The complementary approach towards the common law tests

The common law has developed two tests to give effect to the basis of necessity. The business efficacy test posits that a term should only be implied if to do so would be the only way to achieve ‘business efficacy’ in a contract. Thus, in The Moorcock¹⁰, the court concluded that the only way that a contract to use a wharf could be given business effect was to imply a term in the contract that the wharf would be safe. On the other hand, the court in Shirlaw¹¹ employed the legal fiction of the ‘officious bystander’ to decide whether to imply a term. The term would only be implied if, had the term been suggested by the officious bystander, the parties to the contract would deem it so obvious as to silence him with the obligatory, ‘oh of course!’.

Accordingly, the prevailing approach in Singapore is a complementary approach to these two existing tests¹². Under the complementary approach, the officious bystander test is the practical application of the business efficacy test, which provides the theoretical basis. Taking the complementary approach to its logical end, the two tests must then be two sides of the same coin and must necessarily give rise to the same result whenever applied.

However, the Court of Appeal in Sembcorp finessed the complementary approach by preferring to see the two tests conjunctively rather than as two sides of the same coin¹³. According to the court, the business efficacy test posits that the current state of the contract is lacking because in this current state, it would not achieve business efficacy. However, this test by itself does not inform the court as to exactly which term should be implied¹⁴. This is where the so-called officious bystander comes in as a test as to whether a precise term should be implied¹⁵. Thus, the two tests are not only complementary insofar as one is the practical application of the other. Rather, they are two different steps in one approach¹⁶.

This clarification is helpful for three reasons. First, it provides a cogent explanation of why the complementary approach should be taken as opposed to an alternative approach¹⁷, which the court has previously rejected¹⁸. Under the alternative approach, either test would be sufficient to indicate that implying a term is necessary. The existence of two tests rather than its amalgamation into one is because the tests may be better suited for different contexts. However, as has just been explained, it is clear that the two tests serve different purposes under the same umbrella of necessity.

Second, the previous interpretation of the complementary approach is not convincing. It is entirely possible that only one of the two tests is satisfied. For instance, it is arguable that even in The Moorcock¹⁹, the paradigm case of business efficacy, the officious bystander would not have been silenced in the required manner. The safety of the wharf would not have been such an obvious term to imply into the contract – rather, in the commercial context, such a term should instead be negotiated for by the parties. Arguably, a term which would have prompted the requisite reply from the contracting parties would be one far more obvious – such as the existence of the wharf in the first place. The court in previous cases did not explain how this could be the case if the officious bystander test is identical in substance to the business efficacy test, with the only difference being that the latter is the theoretical underpinning of the former. Thus, the current interpretation of the complementary approach is a much more convincing one.

Third, the court also held that business efficacy is not the only normative standard possible²⁰. The test of business efficacy is only suitable insofar as the contract is meant for businesses in the first place, ie, in commercial contexts. The different attitudes towards different contexts mirrors Singapore’s current approach in other areas of contract law. For instance, the contextual approach towards the interpretation of terms posits that different contracts have different starting points²¹. Thus, the court would be slower to admit extrinsic evidence in commercial contracts because parties would be presumed to have had independent legal advice and bargained the terms they considered necessary into the four corners of the contract. Applying the same principle in the context of implying terms is satisfactory – it represents a principled approach²² which applies to any stage of the construction process²³.

On the other hand, two problems also arise with the court’s decision in Sembcorp.

First, although adopting different normative standards for different contracts is appealing in theory, but it is unclear why other normative standards should exist in the first place. By first principles, the court will only look into implying a term into a contract should a valid contract be found in the first place. A contract lacking in ‘efficacy’ in any context other than a business context should already have failed at the formation stage. This is because a contract lacking in such efficacy would be uncertain in itself²⁴. In a commercial context, it is still arguable that the lack of certainty should not matter so much because, for instance, it is commercial practice to begin part performance before the actual determination of certain terms. However, this is not the case in non-commercial contexts. The presumption that parties intend to create legal relations where they do not deal at arm’s length is much weaker²⁵. Thus, the court should not even need to apply other normative standards because these contracts could not have passed to the stage where implication of terms is necessary. Accordingly, the business efficacy standard should be the only available standard.

Second, it is not entirely clear what exactly the court means by business ‘efficacy’. This problem was explicitly acknowledged by the court in Sembcorp²⁶. Although business efficacy is the standard, it is unclear what degree of efficacy the court strives to achieve. Arguably it should be the minimum efficacy because any higher would betray the basis of necessity, instead importing a standard of reasonableness. But even if the court were to give effect to the minimum efficacy necessary, it is unclear what this minimum level entails²⁷. In fact, it is arguable that given that parties are already performing the contract, it is a pointer that a minimum level of efficacy has already been achieved.

The practical framework in Sembcorp

Finally, the court in Sembcorp laid down a practical framework as to when the common law tests should even be engaged in the first place. Under this framework, the common law tests would only be applied to the factual situation if the gap in the contract arises in a manner which the court deems that it might imply a term²⁸.

To illustrate this, the court provided three situations, although they are non-exhaustive: (a) parties did not contemplate the issue and so left a gap; (b) parties contemplated by chose not to provide because they mistakenly thought express terms provided; (c) parties contemplated but chose not to provide because they could not agree on solution. It is only in the first situation where the court is able to imply a term to fill that gap. The second situation is more amenable to rectification, and the third is a gap which the court should not fill – a function of negotiation that parties were unable to come to a solution²⁹.

Three problems arise with this framework.

The first problem is that the court did not spell out exactly what it is about situation (a) which allows the court to imply the term. This is important because the court itself recognized that these are just three possible situations and that the categories are not closed³⁰. Thus, should a fourth situation appear in future cases, it would be wise for the court to lay down some sort of underlying principle to classify this new situation. Examining the 3 different situations, therefore, it seems that the crucial quality of situation (a) is that parties did not contemplate the issue. However, it is unclear if the crux is that both parties did not contemplate the issue or if one of the parties did not contemplate the issue. Ostensibly it should relate to a situation where both parties did not contemplate. Only in such a situation would the court not be interfering with freedom of contract in implying a term. Thus, this could be applied to a possible fourth situation where only one of the contracting parties had contemplated the term. Adopting the probable reasoning underlying this approach, this fourth situation would probably not be allowed because it did not fall outside the contemplation of both parties; thus, the court would be interfering with freedom of contract in implying a term.

The second problem is that the amorphous concept of ‘foreseeability’ has arguably been introduced by this framework. Looking at what the parties have ‘contemplated’ is in essence a question of foreseeability, which is a slippery term incapable of being defined. As seen in the context of frustration, whether one concludes that foreseeability of a future event ipso facto precludes it from being a frustrating event depends on one’s definition of ‘foreseeability’ in the first place³¹. Should foreseeability merely mean a ‘possibility’, this would make the test for frustration – and consequently situation (a) in Sembcorp – an inordinately high one to fulfil. Indeed the Singapore position regarding this matter seems to be that foreseeability is inconclusive³². Thus, it is probably unwise that such a problematic concept is seemingly re-introduced in implied terms. Indeed, the Singapore courts seem to have had problems applying even the same test of foreseeability. For instance, even the low threshold of ‘factual foreseeability’ in the tort of negligence³³ was later re-applied, arguably erroneously, as the much higher threshold of ‘reasonable foreseeability³⁴.

The third problem is that it is difficult to identify which ‘situation’ any given case falls into in the first place. The contemplation of the parties is evinced by first, the express terms, and second, extrinsic evidence. Requiring extrinsic evidence to be admitted to conclude which situation a case falls into would arguably be too onerous – especially since the law in that area is itself unsettled. The Court of Appeal in Sembcorp itself left it open as to whether prior negotiations are admissible as extrinsic evidence³⁵. Whether such an issue was within parties’ contemplation is ostensibly from this very source of evidence.

Conclusion

Overall, the current Singapore position is as follows: First, identify how a gap in the contract arises. Only where both parties did not contemplate the gap should a term be implied. Second, where there is a gap to be filled, the court will only imply a term where necessary to give business efficacy, although other normative bases are in theory also allowed. Finally, the court will employ the fiction of the officious bystander to determine exactly which term should be implied.

Implying a term into a contract is always tricky business because it is the court’s search for what they presume to be parties’ intentions. Thus, strict guidelines must be put into place. To that end, the clarification of the conjunctive nature of the business efficacy and officious bystander tests is welcome. However, it is this author’s view that this court should clarify the application of the amorphous concepts of foreseeability and efficacy in future cases.

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[1] Sembcorp Marine v PPL Holdings Pte Ltd and another and another appeal, [2013] 4 SLR 193, [2013] SGCA 43 [“Sembcorp”].

[2] See generally, Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd, [2006] 1 SLR (R) 927; Panwah Steel Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd, [2006] 4 SLR (R) 571.

[3] AG of Belize v Belize Telecom Ltd, [2009] 1 WLF 1988.

[4] Sembcorp at [77], [82].

[5] Foo Jong Peng v Phua Kiah Mai, [2012] 4 SLR 1267 at [31], [36].

[6] MFM Restaurants Pte Ltd v Fish & Co Restaurants Pte Ltd, [2011] 1 SLR 150.

[7] Sembcorp at [29], see also generally Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd, [2006] 1 SLR (R) 927 [“Forefront”].

[8] See generally, Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, [1962] 2 QB 26; RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal, [2007] 4 SLR (R) 413, [2007] SGCA 39.

[9] Liverpool City Council v Irwin, [1977] AC 239.

[10] The Moorcock, (1889) 14 PD 64.

[11] Shirlaw v Southern Foundries (1926) Ltd, [1939] 2 KB 206.

[12] Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd, [2006] 1 SLR (R) 927 at [35].

[13] Sembcorp at [98].

[14] Sembcorp at [90].

[15] Sembcorp at [91].

[16] Sembcorp at [101].

[17] Loh Siok Wah v American International Assurance Co Ltd, [1998] 2 SLR (R) 245.

[18] Forefront at [35].

[19] Supra note 10.

[20] Sembcorp at [85].

[21] Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd, [2008] 3 SLR (R) 1029, [2008] SGCA 27 [“Zurich Insurance”] at [110].

[22] See for e.g., Zurich Insurance at [132].

[23] Sembcorp at [31], referring to the composite process of ascertaining parties’ true intentions.

[24] See generally, Sudbrook Trading Estate Ltd v Eggleton, [1983] 1 AC 444; Tan Yeow Khoon v Tan Yeow Tat, [1998] 2 SLR (R) 19.

[25] See for e.g., Balfour v Balfour, [1919] 2 KB 571.

[26] Sembcorp at [86].

[27] Sembcorp at [87].

[28] Sembcorp at [94].

[29] Sembcorp at [95]-[96].

[30] Sembcorp at [94], referring to “at least” 3 situations.

[31] See generally, Ocean Tramp Tankers Corporation v V/O Soufracht (The “Eugenia”), [1964] 2 QB 226; Walton Harvey v Walker and Homfrays, [1931] 1 Ch 274.

[32] Lim Kim Som v Sheriffa Taibah bte Abdul Rahman, [1994] 1 SLR 393.

[33] Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency, [2007] 4 SLR (R) 100, [2007] SGCA 37.

[34] See for e.g., Animal Concerns Research & Education Society v Tan Boon Kwee, [2011] 2 SLR 146, [2011] SGCA 2 at [106].

[35] Sembcorp at [75], after considering Chartbrook Ltd v Persimmon Homes Ltd, [2009] 1 AC 1101.

Assisted dying in Singapore—Should we suffer in silence?

Assisted Dying in Singapore — Should We Suffer in Silence?

Tian Kuang Kai

Assisted dying includes euthanasia and assisted suicide. The two are distinguished by who actually causes death – who commits the actus reus, if you will. Neither is legal in Singapore by virtue of the Penal Code¹ Attempted suicide is an offence pursuant to s309, and read together with s107, abetment of an attempted suicide is also an offence. The question is whether or not this should be the case, and this article seeks to explore the issues, concerns and arguments regarding the state of the law.

At its root, the debate about assisted dying revolves around the two great competing principles of sanctity of life versus freedom of choice. However, it is not simply an exercise in arithmetic to decide which of these wins out and results in whether or not a specific act is legal. In fact, there are countervailing considerations to each of these two principles that complicate matters.

Sanctity of life can be overridden by what is deemed to be the best interests of a patient in a persistent vegetative state. This is the landmark case of Airesdale NHS Trust v Bland² [Bland], where the House of Lords held that the artificial feeding of Mr Bland, a victim of the Hillsborough disaster who was in a persistent vegetative state after being injured, was allowed to be withdrawn, i.e. he was allowed to die. Crucially, their Lordships’ judgments recognized that the principle of sanctity of life is not absolute. Secondly, freedom of choice also gives way to other considerations. Baroness Campbell, in a letter to The Guardian³, said that “[a]ssisted dying is not a simple question of increasing choice for those of us who live our lives close to death. It raises deep concerns about how we are viewed by society and by ourselves.” She made the point that the very people whom the intended legislation (Bill Assisted Dying for the Terminally Ill [Bill]) was intended for did not support and in fact condemned the Bill. Her view stems from the fear that allowing such choice leads to the presupposition that the life of the disabled is somehow less worth living and would lead to a slippery slope of society further marginalizing the terminally ill and disabled.

However, this does not answer the concern of allowing choice for those who think that they need it. One of the strongest arguments, in my opinion, for the legalization of assisted dying is that death is at times a better option than protracted suffering. Further, there is an obligation to relieve our fellow man of suffering. In the words of Professor Stephen Hawking⁴, “[w]e don’t let animals suffer, so why humans?” The difficulty with this, of course, is that most medical practitioners swear under the Hippocratic Oath, in which they refuse to administer a deadly drug even if asked for. Thus, this brings us back full circle to the fragile balancing act required if assisted dying is to be legalized.

In Singapore, s3(1) of the Advance Medical Directive Act ⁵ provides that any person of 21 years and not mentally disordered may make an advance medical directive if he does not wish to be subjected to extraordinary life-sustaining treatment in the event of a terminal illness. This deals with situations such as that in Bland. In that sense, it is a very limited statute given that, while it does give some effect to personal autonomy, it does not go too far beyond the common law in terms of permissible actions of medical practitioners.

There are two potential ways forward: first, the decriminalization of suicide and second, the careful use of prosecutorial discretion. However, any change in the former would be met with at least the same considerations in the above. As to the latter, there would need to be clear and principled guidelines based on good legal or ethical reasons, as the Attorney-General’s Chambers safeguards the public interests and should not be seen to undermine parliamentary intention. As it now stands, it is unlikely that there will be any major changes to this area of the law in Singapore in the near future, but as Singapore’s population rapidly ages, it is anticipated that there will be greater public debate as regards the planning of one’s death.

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[1] Cap. 224, 2008 Rev Ed

[2] (1993) AC 789

[3] Campbell, J 2006. ‘Stop trying to kill us off’, The Guardian, 09 May. Accessed at <http://www.theguardian.com/commentisfree/2006/may/09/comment.health> 28 September 2013

[4] Duffin, C 2013. ‘We don’t let animals suffer, says Prof Stephen Hawking, as he backs assisted suicide’, The Telegraph 17 September. Accessed at <http://www.telegraph.co.uk/science/10315476/We-dont-let-animals-suffer-says-Prof-Stephen-Hawking-as-he-backs-assisted-suicide.html>  21 September 2013

[5] Cap. 4A, 1997 Rev Ed

Internet Regulation—A myth in Singapore?

Internet Regulation — A Myth in Singapore?

Yip Yee Hui Josephine

As with all other freedoms, freedom of speech is not without its limits, a principle deeply enshrined in article 14 of the Singapore Constitution. Racial and political issues remain particularly sensitive, and are thus the key targets of censorship here. However, the rise of the Internet has dramatically narrowed the boundaries of state regulation. While countries such as China and Iran have illustrated that extensive Internet regulation is not impossible with the use of technological measures to filter out undesirable content¹, Singapore has shied away from such an approach, preferring instead to adopt mostly non-technological ones. The question thus remains: with the ineffectiveness of technological measures, and the government’s purported commitment to a light-touch approach, is Internet regulation now little more than a mere myth in Singapore? This article argues that this seems unlikely given the government’s continued attempts to regulate the Internet through new legislation, and the self-regulation by both individual Internet users and the virtual community.

The government’s role in regulating the Internet is largely moderated due to two main reasons. The first is Singapore’s use of mostly non-technological measures. These include both laws specific to online content such as the Internet Code of Practice and the Class License Conditions, and more general ones such as the Films Act and the Sedition Act. Such regulations restrict online content with certain repercussions such as fines should they be contravened. Yet, they are unlikely to have much effect in practical application. Without the heavy use of technological measures, the rapid propagation of information and the sheer volume of content on the Internet have made regulating objectionable content a mind-boggling challenge² for Singapore. When MICA opted to retain its ban of 100 websites in 2010, it was ‘not so much for its functional usefulness, [but] rather as a symbolic statement of our society’s values’. Indeed, Mr Lui Tuck Yew, then Minister for Information, Communications and the Arts, acknowledged at that time that the ban was likely to be largely ineffective as ‘the technologically savvy among us will be able to circumvent this ban, and that there are many more than 100 such websites out there’³. Additionally, the extensive online circulation of the political film Singapore Rebel even before its ban was lifted in 2009 illustrates yet another instance of how state regulation of the Internet is highly limited. By then, the film had already garnered a few hundred thousand views⁴.

Moreover, Singapore’s commitment to a light-touch approach⁵ towards Internet regulation right from the outset has also played a role in limiting state regulation of online content. Since 1996, the Internet Code of Practice has required Internet Content Providers to remove any content that were objectionable on grounds of public morality, order or security, and has called for certain content providers displaying political and religious content to register with MDA. However, the apparent harshness of these regulations was mitigated by the government’s reassurance that it would not attempt to remove all objectionable content but only censor 100 websites as a symbolic move⁶, and that such registration was nothing more than an administrative exercise aimed at improving accountability⁷. Despite these assurances, the regulations were still viewed as an attempt to ‘cover what is essentially an exercise of unchecked power’, and regarded as ‘the spectre of government surveillance and censorship’, according to several adverse comments made on a feedback page set up by the then popular Sintercom⁸. Yet these fears were proven to be largely unfounded. In fact, in the decade after the regulations were first announced, fewer than thirty cases of state action against online content were reported⁹. On hindsight, the government’s continued adherence to the light touch approach hardly seems surprising, given the need to protect Singapore’s reputation as a technological hub¹⁰. Also, this could possibly be the government’s attempt at distancing itself from the label of an authoritarian regime¹¹, a label that is politically costly both locally and internationally.

Even so, Internet regulation remains a reality in Singapore. Despite the limitations of non-technological regulations and the government’s commitment to a light touch approach, it continues to play a key role in monitoring online content. A most apt example to illustrate this point would be the recently enacted legislation governing online news sites which first came into effect on 1st June this year¹². Under these new rules, online news sites must be individually licensed if, over a period of two months, they report an average of at least one article per week on Singapore’s news and current affairs and are visited by at least 50,000 unique IP addresses from Singapore each month.¹³ Such sites will be required to remove objectionable content within 24 hours of being notified by MDA. At first glance, it seems that the new regulations are unlikely to have as much impact on the online community as the 2,500-strong demonstration at Hong Lim Park, or the 24-hour blackout of more than 130 Singapore-based websites¹⁴, would suggest. Despite the fact that MDA’s broad definition of ‘news’ could potentially subject countless websites to the new regulations¹⁵, it is doubtful that the government will take a proactive approach towards enforcing them. After all, the aforementioned motivations for maintaining a light touch approach on Internet regulation seem all the more relevant today, as citizens become increasingly educated and politically aware¹⁶. Indeed, in response to criticisms of the new regulations, Minister for Communications and Information Yaacob Ibrahim stated that “MDA will be ‘judicious’ with Internet regulation”. However, it may well be that having identified 10 websites such as channelnewsasia.com, todayonline.com and sg.news.yahoo.com that fall within the ambit of the new licensing scheme, the government could potentially have a real influence on what is produced on these few sites. The narrow focus on a very small number of websites would significantly reduce the volume of online content to be sieved through, helping the government to overcome one of the main obstacles facing state regulation.

In addition, self-regulation by both individual Internet users and the virtual community also play a role in regulating the Internet. A main driving force behind self-regulation would be auto-regulation¹⁷. In Singapore, terms in legislation pertaining to online content are usually ambiguously or broadly defined such that a vast number of online users could fall under its regulatory jurisdiction¹⁸. For instance, under the Internet Code of Practice, Internet Content Providers must remove any prohibited material if directed to do so by MDA. An Internet Content Provider, as defined under the Class License Conditions,¹⁹ is:

(a) any individual in Singapore who provides any programme, for business, political or religious purposes, on the World Wide Web through the Internet; or (b) any corporation or group of individuals (including any association, business, club, company, society, organisation or partnership, whether registrable or incorporated under the laws of Singapore or not) who provides any programme on the World Wide Web through the Internet, and includes any web publisher and any web server administrator;

With such broadly defined rules, the authorities possess expansive discretionary powers to bring offenders to task²⁰. While the Government has unstintingly reiterated its stance of adhering to a light-touch approach, the deterrent effect of such regulations remain as online users have to be constantly wary of infringing upon these rules as they might fall under their jurisdiction. In fact, many online users have likened the recently enacted legislation governing online news sites to the proverbial Sword of Damocles²¹, where a climate of fear is created despite assurances from the Government. Thus, auto-regulation seems to play a significant role in Internet regulation.

Quite apart from auto-regulation, online communities have on several occasions demonstrated an intrinsic propensity to self-regulate. Online comments that undermine Singapore’s social fabric are often lambasted by other users, prompting those who made the comments to remove them even before they are brought to the attention of the authorities. This was evident in the case of Amy Cheong, who made expletive-filled derogatory comments about Malays in a Facebook post²². Her comments were rapidly circulated around cyberspace and incited a flurry of disapproving comments on numerous social media platforms such as Facebook and Twitter²³, causing her to delete her comment shortly after. Similarly, polytechnic student Lai Shimun promptly deleted her Facebook and Twitter accounts after her racist post on Indians was drew flak from the online community²⁴. Such incidents illustrate how even without government intervention, the Internet may still be regulated through self-regulation.

In conclusion, it is apparent that Internet regulation, whether in the form of state intervention or self-regulation, is here to stay. While a balance must be struck between the two, it is unclear if the right balance has indeed been achieved under the status quo. Adverse reactions to the recently enacted licensing framework for news sites seem to suggest otherwise, and cases such as that of Amy Cheong appear to point to an online citizenry that is increasingly mature²⁵, thus paving the way for greater self-regulation. Although the government’s recent enactment of licensing framework indicates that it is not likely to relax its stance in the near future, perhaps there is room for the hope that Singapore will witness a gradual change in the time to come.

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[1] “Iran’s Internet Censorship Most Sophisticated in the World” CircleID (19 Jun 2009), online: CircleID < http://www.circleid.com/posts/20090619_iran_internet_censorship_sophisticated/ >

[2] Peng Hwa Ang & Berlinda Nadarajan, “Censorship and the Internet: a Singapore perspective”, Communications of the ACM, 39:6 (June 1996) 72.

[3] “MICA to retain 100-website ban”, AsiaOne (29 September 2010) online: AsiaOne < http://www.digitalone.com.sg/news/article/13408 >

[4] Teo Xuanwei, “Ban on film lifted” Today (12 September 2009)

[5] Media Development Authority, Internet, online: Media Development Authority < http://www.mda.gov.sg/PUBLIC/MEDIACLASSIFICATION/Pages/Internet.aspx> (accessed 10 October 2013)

[6] Chua Hian Hou, “MDA bans two video-sharing porn sites”, The Straits Times (23 May 2008)

[7] Cherian George, Looking for patterns in 10 years of ‘light touch’ regulation, online: Journalism.sg < http://journalism.sg/2007/08/23/looking-for-patterns-in-10-years-of-light-touch-regulation/>

[8] Cherian George, “Postings on New SBA Rules Flood the Net”, The Straits Times (17 July 1996)

[9]  Supra note 11.

[10] Supra note 11.

[11] Garry Rodan, Transparency and Authoritarian Rule in Southeast Asia: Singapore and Malaysia, (New York, US: Routledge, 2004) at 48

[12] Media Development Authority of Singapore, Press Release, “Fact Sheet- Online news sites to be placed on a more consistent licensing framework” (28 May 2013) online: Media Development Authority of Singapore < http://www.mda.gov.sg/NewsAndEvents/PressRelease/2013/Pages/28052013.aspx >

[13] Ibid.

[14] Jeanette Tan, “Singapore bloggers black out sites in protest of MDA licensing scheme”, Yahoo News (6 June 2013) online: Yahoo News <http://sg.news.yahoo.com/singapore-bloggers-black-out-sites-in-protest-of-mda-licensing-scheme-042044959.html>

[15] Andrew Loh, “New MDA licensing rules: Finding a way forward”, Yahoo News (17 June 2013) online: Yahoo News <http://sg.news.yahoo.com/blogs/singaporescene/mda-licensing-rules-finding-way-forward-062335198.html>

[16] Pravin Prakash, “Keeping it civil: How now for political engagement” Commentary, Today (1 June 2013) online: Today < http://www.todayonline.com/commentary/keeping-it-civil-how-now-political-engagement >

[17] Terence Lee, “Internet Control and Auto-regulation in Singapore”, online: (2005) 3:1 Surveillance and Society at 80 <http://www.surveillance-and-society.org/Articles3(1)/singapore.pdf>

[18] Supra note 21 at 81.

[19] Broadcasting (Class License) Notification (Cap 28, N 1, 2004 Rev Ed Sing), n 2.

[20] Supra note 21 at 81.

[21] Supra note 19.

[22] Joyce Lim, “Racist rant: Amy Cheong gets stern warning from police”, The Straits Times (25 March 2013) online: The Straits Times <http://www.straitstimes.com/breaking-news/singapore/story/racist-rant-amy-cheong-gets-stern-warning-police-20130325>.

[23] Jeffrey Oon, “The Amy Cheong saga…fast, furious, unbridled”, Yahoo News (8 October 2012) online: Yahoo News <http://sg.news.yahoo.com/blogs/what-is-buzzing/amy-cheong-vacant-job-posted-career-094026501.html>

[24] Kai Fong, “Expletive online post about Indians hurtful, wrong and uncalled for”, Yahoo News (28 March 2012) online: Yahoo News <http://sg.news.yahoo.com/%E2%80%98expletive-fb-post-about-indians-particularly-hurtful–wrong-and-completely-uncalled-for%E2%80%99.html>

[25] Phua Mei Pin, “A step forward for self-regulation online”, The Straits Times (13 October 2012)

Litigation v Mediation

Litigation v Mediation

Nurmatha

A new phenomenon that is now prevalent worldwide is the rise of alternate dispute resolution methods to litigation. Increasingly, litigation is being seen as a cumbersome process and mediation or arbitration is preferred in resolving legal issues. However, many lawyers still seem to be reluctant to mediate and seem to prefer litigation. This article will offer possible reasons as to why lawyers may prefer litigation to mediation and then put forth an argument as to why mediation is clearly the better choice.

Lawyers may prefer litigation because given that they have been trained in an adversarial way to resolve disputes, arguing a case is something that they feel comfortable with. This is in contrast to mediation, which requires them to be more compromising and is in essence, a more collaborative approach that may be outside their comfort zone.

Another reason that lawyers may choose not to embrace mediation might be because of the lack of publicity involved in mediation. In most cases, disputes solved through litigation are public and in some instances may even be widely reported by the media. This is opposed to mediation, which is highly confidential. Lawyers may thus prefer litigation as the attention that is garnered by a case serves as good publicity for them. Therefore, the public process of litigation has the potential to help a lawyer to attract more clients. In comparison, very few mediation cases receive publicity and thus lawyers who engage in mediation do not receive much recognition. Consequently, lawyers may thus choose not to embrace mediation. Lastly, one of the unavoidable truths is that litigation is better for a lawyer’s financial interest as opposed to mediation. In the Singapore Court of Appeal decision of Lock¹, the parties were involved in a motor accident. The appellant initially filed a claim for $375 but after going to the Primary Dispute Resolution Centre (PDRC), the parties made an agreement that the appellant would receive $187.50 as compensation, costs of $1000 and reasonable disbursements. However, they could not settle on the amount to be disbursed and were in dispute over a difference of $60.35. This case was brought all the way to the Court of Appeal. In their judgment, the judges greatly condemned the behavior of the lawyers who were acting for the two parties in Lock. While the matter in dispute was only $60.35, the lawyers had brought the matter all the way to the highest appellate court, causing their clients to have to pay exorbitant legal fees to them. Litigation is clearly a more financially enticing option as compared to mediation. The aforementioned reasons are some of the possible reasons that lawyers might prefer litigation to mediation. However, these reasons are based on lawyers’ personal and financial interests rather than the interests of society as a whole. For this reason, it is important for lawyers to embrace mediation, which offers many advantages over litigation. If used early enough in a dispute, mediation tends to resolve them much faster, greatly reducing the legal fees involved. This in turn makes the law more affordable and accessible to the general public. Moreover, mediation is a more flexible approach. Through mutual communication and agreement, parties have an opportunity to understand each other’s issues better and come to a compromise that benefits both sides.

Hence, it is important to raise awareness about mediation so that more lawyers can be encouraged to embrace it. Relevant courses can serve to educate lawyers about the benefits of mediation and lawyers’ roles during the entire process. For the benefit of society at large, it is vital that lawyers balance the interests of their clients with their own personal and financial interests and embrace mediation.

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[1] Lock Han Chng Jonathan v Goh Jessiline, [2007] SGCA 56

How substantive is “substantive assistance”?

How Substantive Is “Substantive Assistance”?

Joshua Kow

INTRODUCTION

The prominent case of Yong Vui Kong (hereafter referred to as “Yong”) needs no further introduction in the criminal law fraternity. In 2007, at the impressionable age of 19, Yong was caught in possession of 47.27g of diamorphine (commonly known by its other name, heroin) near the Meritus Mandarin Hotel by Central Narcotics Bureau officers (hereafter referred to as “CNB”). At the time Yong was caught, the punishment in Singapore for unauthorised trafficking of above 15 g of heroin is death¹.

In 2009, Yong was sentenced by Justice Choo Han Teck to suffer death under s 5(1a) of the Misuse of Drugs Act (Cap 185) (hereafter referred to as the “MDA”)². This marked the advent of a series of constitutional challenges, as well as criminal motions and judicial review proceedings in Singapore courts, not limited to, inter alia, two presidential appeals for clemency, a stay of execution in light of human rights lawyer M Ravi’s constitutional challenge of the mandatory death penalty, and a judicial review of the clemency process in 2010³.

THE CERTIFICATE PER SE

On 18 September 2013, the Attorney General’s Chambers (hereafter referred to as the “AGC”) released a media statement⁴ stating that “the Public Prosecutor will certify to the High Court that Subashkaran and Yong had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within and outside Singapore.” This would be in the form of what is known as the “Certificate of Substantive Assistance”, which will be the subject of focus in this article.

Yong and Subashkaran are not the first to receive this certificate under the law⁵. However, they are the first two serving inmates on the death row to be issued the certificate. Since the 2012 Amendments to the Misuse of Drugs Act have a retrospective effect, the Parliament now has the opportunity to reverse the death sentence.

In order to better appreciate the significance of this Certificate and what it entails, we must first look at the relevant portion of the law which provides for its issuance by the Public Prosecutor. This relevant portion is s 33B(1) and (2) of the MDA⁶. In short, s 33B (1) empowers the court with the option of sentencing the convict to imprisonment for life. In order to do so, however, the convict must satisfy two conditions provided in 33B(2), namely:

(a) The person convicted proves, on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted — to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above;

(b) The Public Prosecutor certifies to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.

[emphasis added]

Out of the two conditions set forth by the section above, Yong has already fulfilled one as the Certificate of Substantive assistance, is a written affirmation by the Public Prosecutor of the requirement set out in s 33B(2). He now needs to prove to the Court, on a balance of probabilities, that his role was merely that of a “drug courier” (i.e. simply transporting, sending, or delivering the heroin), as well as to convince the Court that they should reverse his sentence of death, and substitute it with imprisonment for life with caning. Noting the Prosecution’s indication that they will not seek the death penalty, the latter may be fulfilled more easily.

The possibility of sidestepping the gallows comes as a source of tremendous relief⁷ not only for Yong and his family, but also to his counsel M Ravi, who has already initiated proceedings for re-sentencing on 23rd September 2013 to be heard once more before Justice Choo Han Teck⁸. As of yet, the re-sentencing hearing date remains unconfirmed.

CRITERIA IN ISSUING THE CERTIFICATE

s 33B of the MDA was first introduced via Clause 14 of the Misuse of Drugs (Amendment) Bill (No. 27 of 2012), which sought to “empower the court to impose a life sentence instead of the death sentence in certain circumstances”⁹. In the annexed Explanatory Statement (Pg. 33 onwards), three verbatim statements are of crucial significance:

1. Substantive assistance to the Bureau in disrupting drug trafficking activities may include, for example, the provision of information leading to the arrest or detention or prosecution of any person involved in any drug activity;
2. Any information which does not enhance the effective enforcement of the provisions of the Act will not suffice; and
3. The issue of the certificate will be determined by the Public Prosecutor in his sole discretion.

Interpreting the statements above in a larger context, two points become obvious. Firstly, the fact of whether a convict has rendered “substantive assistance” to the CNB or not depends very much on the information he is able to provide to them. Secondly, the Public Prosecutor is given full, independent control in deciding whether or not to issue the certificate.

THE NATURE OF SUBSTANTIVE ASSISTANCE

Substantive assistance to the CNB in the form of “provision of information leading to the arrest or detention or prosecution” is inherently unfair and possibly onerous to the convict. Drug couriers (i.e. Yong) who satisfy the provisions of s 33B(1) are, for lack of a better phrase, the “lower rungs of the ladder” in the larger hierarchy of the illegal drug trade.

Realistically, it is highly unlikely that couriers would possess such information, either because the leaders of the syndicate have taken steps to restrict the downward flow of such information, or the revelation of such information would endanger their family members (a situation faced by Yong himself¹⁰). After all, such threats are not uncommon, as evidenced by a series of past cases.¹¹ Furthermore, it would be foolhardy to assume that the Police will be able to provide the accused with round-the-clock protection for both themselves and their family members, some of whom may not even be in Singapore. This limits the information made readily available to the CNB, to the detriment of the convict.

In accepting such a requirement, a troubling dilemma arises when two equally culpable convicts of drug trafficking are sentenced to death and life imprisonment respectively, merely because one was able to provide “more substantive” information over the other, a factor which none of the convicts are able to control. What more, if the CNB officer chooses to not recognise or value the convict’s assistance even if he did provide “substantive” aid?

Essentially, the ultimate factor in the sentencing of the convict becomes the economic premise of how “useful” he or she is to the State ¹², a factor determined entirely by chance and the discretion of others, rather than how heinous or morally repulsive the crimes are. That is not to say, however, that “usefulness” is the only factor; moral culpability still remains a key consideration in sentencing, presuming that the convict qualifies first under s 33B.

Arguably, this cannot be fair and just. While providing assistance can and should definitely be considered a mitigating factor in sentencing, it should not remain the only factor considered. Perhaps, other factors (e.g. the willingness of the convict to cooperate in the investigative efforts of the CNB) should also come into play, in consideration of the likelihood of lack of substantive information. In a situation of life or death, substantive assistance alone would not reasonably justify a shift between punishments which are qualitatively and categorically different.

PROSECUTORIAL DISCRETION

Regardless of how substantive a convict’s assistance to the CNB may be, a worrying aspect of this freshly-added MDA section is the full, independent discretion of the Public Prosecutor in the issuance of the certificate itself. Member of Parliament for Aljunied, Ms Sylvia Lim, pointed out that it is “foreseeable that some accused persons may not receive the certificate even if they were willing to provide the CNB with whatever information they had.”¹³

At present, the Public Prosecutor still holds “veto” power over whether the offender faces mandatory death or not. Giving the Public Prosecutor sole discretion in issuing the certificate makes him the “ultimate judge of substantive cooperation” instead¹⁴, a marked departure from what ought to be within the power of an independent judge who is obliged also to give reasons for his decision. In effect, such an amendment would not change the status quo in favour of more transparency or accountability, since the Public Prosecutor’s decision remains unaccountable and opaque. In imposing a death penalty which is mandatory, giving the Public Prosecutor full discretion in issuing the certificate makes it no different from the law prior to amendment.

CONCLUSION

No doubt, the amendments to the MDA are ultimately made in advancement of the CNB’s effectiveness in combating drug abuse, and in good faith. However, the choice of phrasing of s 33B, as well as the inordinate discretion of the Public Prosecutor in this instance, elucidate either an alarming lack of regard for the problems which may ensue therefrom, or an express recognition that these are not problems which matter in the overall equation. Whether the Act can truly achieve its aims in lieu of the observations above remain to be seen in due course.

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The author would like to thank Damien Chng and Priscilla Chia of We Believe in Second Chances for their invaluable assistance and insight, without which this article would not have been possible.

[1] Misuse of Drugs Act (Cap 185, 2008 Rev Ed Sing) – SECOND SCHEDULE Offences Punishable on Conviction

[2] Public Prosecutor v Yong Vui Kong [2009] SGHC 4

[3] Cases referred to are, in order of mention:  (1) Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489, [2010] SGCA 20 for constitutional challenge; (2) Yong Vui Kong v Attorney-General [2010] SGHC 235, [2011] 1 SLR 1 for judicial review of clemency process.

[4] http://app.agc.gov.sg/DATA/0/Docs/NewsFiles/AGC%20MEDIA%20STATEMENT_AGC%20TO%20ISSUE%20CERTIFICATES%20OF%20SUBSTANTIVE%20ASSISTANCE_18%20SEPT%202013.pdf – AGC TO ISSUE CERTIFICATES OF SUBSTANTIVE ASSISTANCE

[5] The first being Abdul Halim in Public Prosecutor v Abdul Halim bin Abdul Karim and Anor [2013] SGHC 110.

[6] http://www.parliament.gov.sg/sites/default/files/Misuse%20of%20Drugs%20(Amendment)%20Bill%2027-2012.pdf – Misuse of Drugs (Amendment) Bill, Bill No 27/2012

[7] http://www.theonlinecitizen.com/2013/09/yong-vui-kong-receives-certificate-of-cooperation – Yong Vui Kong receives Certificate of Cooperation | The Online Citizen

[8] http://www.theonlinecitizen.com/2013/09/yong-vui-kong-happy-for-2nd-chance-m-ravi – Yong Vui Kong happy for 2nd chance: M Ravi | The Online Citizen

[9] http://www.parliament.gov.sg/sites/default/files/Misuse%20of%20Drugs%20(Amendment)%20Bill%2027-2012.pdf – Misuse of Drugs (Amendment) Bill, Bill No 27/2012

[10] Yong Vui Kong v Public Prosecutor [2012] SGCA 23, [2012] 2 SLR 872,Chan CJ at [8]

[11] Examples of such include: (1) Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156, [2011] SGCA 49, Chan CJ at [6], and (2) Public Prosecutor v Ng Pen Tine and Anor [2009] SGHC 230, Chan Seng Onn J at [16-17]

[12] We Believe in Second Chances, November 2012 – Report on the changes to the Mandatory Death Penalty in the Penal Code (Amendment) Bill and the Misuse of Drugs Act (Amendment) Bill 2012 at [35]

[13] Singapore, Parliament of Singapore, Hansard, 11th Parl, 2nd Sess No 1 (12 November 2012) Ms Sylvia Lim (Aljunied) at [16]

[14] We Believe in Second Chances, November 2012 – Report on the changes to the Mandatory Death Penalty in the Penal Code (Amendment) Bill and the Misuse of Drugs Act (Amendment) Bill 2012 at [26] and [31].

On Legal Harmonisation Within ASEAN

On Legal Harmonisation Within ASEAN

Joanne Wong

While the Association of Southeast Asian Nations (“ASEAN”) has readily embraced the concept of the rule of law, it has been slow to adopt binding legal frameworks to govern the relationships between its members. Instead, it prefers to operate on the basis of ad hoc understandings and informal agreements. This “ASEAN Way” of musyawarah (consultation) and musfakat (consensus), as contrasted against the formal legalism of most Western international institutions, is deeply embedded in the processes and structures of ASEAN. It has since been widely recognised as the key to ASEAN’s success – or, at least, survival – as a regional entity.

However, ASEAN’s disinclination towards the use of “hard” legal mechanisms has been questioned in light of the proliferation of cross-border trade and an increasing dependence on external trade and investment within the region. This has been accompanied by an urgent need for a viable legal framework for trade and investment that has, till date, yet to materialise. As observed by Chief Justice Sundaresh Menon, “it is still not possible to speak of a “Southeast Asian” commercial law in the way one might speak of European commercial law”¹. Accordingly, Menon CJ has encouraged ASEAN countries to consider recognising one another’s civil court judgments by, for instance, signing the Hague Convention on Choice of Court Agreements. In a similar vein, Foreign Affairs and Law Minister K Shanmugam noted that the harmonisation of legal rules “can help to remove uncertainty, reduce cost, generate greater business confidence, and ultimately advance ASEAN community-building goals.”²

However, the path towards homogeneity is one filled with potential pitfalls, given the divergence in the cultural, political and social makeup of the region³ – or, phrased in more vivid terms, its “rampant pluralism”⁴. Further, the legal systems of the member states differ greatly, ranging from the common law systems of Brunei, Malaysia, and Singapore, to civil law systems such as Indonesia, and even hybrids of both in the systems of Thailand and the Philippines.⁵ Given countries’ natural attachment to their respective and substantially different legal traditions, attempts to harmonise national legal rules would indeed prove difficult, especially considering ASEAN members’ aversion to the creation of supranational authority. As Lay postulates, “ASEAN leaders will never surrender national sovereignty for a “fortress Europe” type of regionalism”⁶.

In this light, it is of paramount importance to distinguish between (1) legal transplantation, where legal systems unilaterally amend their internal rules and adopt rules that are more frequently observed in other legal systems; (2) legal unification, where countries agree to replace national rules and adopt a unified set of rules chosen at the interstate level; and, lastly, (3) legal harmonisation, where countries agree on a set of objectives and targets, and leave each country free to amend their internal law to fulfill the chosen objectives.⁷ While all three adaptation processes seek to facilitate the reduction of differences among legal systems, it is legal harmonisation that is best suited to the peculiarities of the region and to ASEAN itself. For instance, Lay suggests that ASEAN will likely rely on the musyawarah and musfakat principles to reach agreement on delicate issues such as harmonising ASEAN members’ national laws into a regional system that respects cultural sensitivities and national sovereignty.⁸

In view of the region’s aim to create an integrated economy by 2015, ASEAN has, till date, made slow but steady progress towards legal harmonisation within domains such as e-commerce. While ASEAN continues to make a shift towards greater legalisation, it would be prudent for it to continue to adopt the gradualist approach that has defined the organisation through the years, as opposed to grand transformative plans that ignore or discount the importance of the durability of the institutional status quo.⁹

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[1] ASEAN Integration Through Law Concluding Plenary, 25 August 2013, Keynote Address by Chief Justice Sundaresh Menon at [13]

[2] “Rule of law key for ASEAN’s progress, says Shanmugam” (20 June 2012) Today

[3] Lim Yew Ngee, “A case for harmonisation of ASEAN contract laws”, 17 Sing LR 373, p. 403

[4] Andrew Harding, “Comparative Law and Legal Transplantation in South East Asia: Making Sense of the “Nomic Din”” [ch.9 of Nelken, D., and Feest, J. (ed), Adapting Legal Cultures (Oxford, Hart Publishing, 2001)]; p. 15

[5] Deborah A Haas‚ “Out of Others’ Shadows: ASEAN moves toward greater Regional co-operation in the Face of the EC and NAFTA”‚ 9:3 AmUJ Int’l & Pol’y 809‚ 814 (1994) at 857-863.

[6] Lay Hong Tan, “Law and Policy in ASEAN Economic Integration”, Asia Business Law Review, No 38, October 2002, p. 7

[7] Carbonara, Emanuela and Parisi, Francesco, The Paradox of Legal Harmonization. Public Choice, 2007; George Mason Law & Economics Research Paper No. 05-40; Minnesota Legal Studies Research Paper No. 07-14, p. 368.

[8] Lay Hong Tan, “Law and Policy in ASEAN Economic Integration”, Asia Business Law Review, No 38, October 2002, p. 8.

[9] Prado, Mariana Mota and Trebilcock, Michael J., “Path Dependence, Development, and the Dynamics of Institutional Reform”, University of Toronto Law Journal, 2009; U Toronto, Legal Studies Research Paper No. 09-04, p. 379.

The Future of Champerty in Singapore?

The Future of Champerty in Singapore?

The exception created in The Law Society of Singapore v Kurubalan S/O Manickam Rengaraju

Reynard Chua

INTRODUCTION

Maintenance is defined as “officious intermeddling in litigation”.¹ What this seems to suggest is that a third party to a lawsuit is “support[ing] litigation in which he has no legitimate interest without just cause or excuse”.²

Champerty is a particular form of maintenance “where one party agrees to aid another to bring a claim on the basis that the person who gives the aid shall receive a share of what may be recovered in the action”.³ A prime example comes in the form of contingency agreements, whereby a person agrees to fund the lawsuit in return for an agreed proportion of the damages obtained, if the lawsuit is successful.

At common law, maintenance, which includes champerty, is both a crime and a civil wrong, i.e. a tort.⁴ Although many jurisdictions, including England itself, has since abolished this common law rule,⁵ this particular rule still appears to stand in Singapore given that Parliament has not yet intervened on this issue.

The scope of this article, however, lies in the rules of champerty in its application as part of the professional regulatory framework. The doctrine of champerty, as applied specifically to lawyers, is stated clearly in the Legal Professions Act:⁶

107.—(1) No solicitor shall —

(a) purchase or agree to purchase the interest or any part of the interest of his client or of any party in any suit, action or other contentious proceeding brought or to be brought or maintained; or

(b) enter into any agreement by which he is retained or employed to prosecute any suit or action or other contentious proceeding which stipulates for or contemplates payment only in the event of success in that suit, action or proceeding.

…

(3) A solicitor shall, notwithstanding any provision of this Act, be subject to the law of maintenance and champerty like any other person.

The Legal Profession (Professional Conduct) Rules⁷ also provides for this issue, stating that:

Contingency fees prohibited

1. An advocate and solicitor shall not enter into any negotiations with a client —

(a) for an interest in the subject matter of litigation; or

(b) except to the extent permitted by any scale of costs which may be applicable, for remuneration proportionate to the amount which may be recovered by the client in the proceedings.

THE POLICY BEHIND CHAMPERTY: TRACING ITS HISTORY

It has long been recognised that the law of maintenance and champerty are founded upon considerations of public policy and needs to be changed and shaped by the societal norms of the time.⁸ In Hill v Archbold⁹, Danckwerts LJ stated that “the law of maintenance depends upon the question of public policy, and public policy … is not a fixed and immutable matter. It is a conception which … must be alterable by the passage of time”.

While the history of maintenance and champerty are too old to be easily traced, Lord Mustill in Giles v Thompson adequately explained their historical significance in medieval times. The justice system of the time did not have the strength to “resist the oppression of private individuals through suits fomented and sustained by unscrupulous men of power”. Champerty was worse, as the purchase of a financial interest in the litigation created the “temptation to the suborning of justices and witnesses and the exploitation of worthless claims which the defendant lacked the resources and influence to withstand”.¹⁰

As early as 1787, however, famed philosopher Jeremy Bentham posited that the doctrines of maintenance and champerty were no longer needed, as judges on the bench had become independent enough to not fear the influence of high-ranking individuals, such as barons and their ilk.¹¹ Lord Mustill corroborates this, highlighting that the courts have become stronger, with consistent mechanisms and self-reliant participants. Abuses can be easily detected and forestalled, and thus litigation better determined in accordance with justice.¹²

It appears then that the focus nowadays lies more within the realm of professional conduct regulation. Menon CJ, in Kurubalan¹³, recognised that while the justice system itself may be more resistant to interference by “unscrupulous” individuals, it remains that “a lawyer with a personal economic state in the litigation … faces a potential and often acute conflict of interest”.¹⁴ This may surface as a loss of professional objectivity, or even a temptation to pervert the course of justice, on the part of the lawyer.¹⁵ The considerations as highlighted by the Court of Three Judges are chiefly the administration of justice, and the safeguarding of confidence and honour in the legal profession.¹⁶

THE EXCEPTION CREATED

While the decision in Kurubalan plainly reaffirmed the applicability of the law of champerty to the regulation of legal professionals (having ordered a six-month suspension on the lawyer in breach), it also appeared to have created an exception, albeit in obiter dicta. The Court of Three Judges stated that:¹⁷

[I]t would be permissible and even honourable for an Advocate and Solicitor to act for an impecunious client in the knowledge that he would likely only be able to recover his appropriate fees or disbursements if the client were successful in the claim and could pay him out of those proceeds or if there was a costs order obtained against the other side.

[emphasis in original]

On its face, this is indeed a classic situation whereby champerty should be made out. The lawyer in this case would be making an agreement with the client such that he would get paid based on the results of the litigation. In this sort of situation, it is submitted that the public policy against champerty still triggers, as the lawyer indeed has an economic stake in the litigation (since he only gets paid if the results are favourable), one which may present a conflict of interest in the way he acts for the client. The Court’s explanation that such an arrangement would not be caught by s. 107 of the Legal Profession Act because it “would not amount to acquiring an interest in the fruits of litigation” ¹⁸ is not entirely satisfactory, as the lawyer is still personally and economically interested in the outcome of the litigation, which determines whether he gets any remuneration from the work rendered.

However, this exception has arguably been rightly created. In this particular scenario, the Court of Three Judges appeared to have had in mind an overriding policy reason in the form of “ensuring access to justice”.¹⁹ As stated previously, the policy considerations driving the enforcement of the law of maintenance and champerty are not immutable. It changes based on the development of the society. The concern for equal access to the justice system (regardless of the ability to pay) is one that has been raised in recent times. This is likely because of skyrocketing legal costs, leaving the less well off of the society unable to even contemplate legal action. While the call for more pro bono work on the part of lawyers has been repeatedly sounded, this exception provides an alternative route for lawyers to render aid to people who would otherwise not be able to afford legal representation.

It can thus be said that the policy consideration of equal access to justice is of overriding importance, only, as emphasised by the Court, in the case of an impecunious litigant. In such situations, the law of maintenance and champerty should not apply to limit lawyers who are genuinely acting in the best interests of the client, so that the client is not denied the opportunity to seek justice simply because of the lack of financing.

On the other hand, whether such an exception to the law of maintenance would stifle pro bono work remains to be seen. This could be an unforeseen consequence of the exception. Since both lawyers and clients would see the situation envisioned by the exception as a win-win situation, there is no stopping all pro bono work (which often involves impecunious clients in any case) from turning into a advocate-client relationship with an arrangement where the lawyer only recovers his fees or disbursements if the claim is successful or if costs are ordered against the other party. However, this development could still prove to be an advantageous one, especially for litigants stuck between the means-testing threshold of pro bono agencies and the reality of being able to afford good legal representation.

GOING FORWARD As the Court of Three Judges emphasised, outside of this narrow exception, lawyers who enter into champertous agreements can still expect a “substantial period of suspension”, “until and unless there is a change in the law”.²⁰ The decision should not be seen as having changed any law in relation to the law of champerty, but rather as a harbinger of changes to come. The laws prohibiting champerty still remains good law in Singapore.

With the focus drawn towards the consideration of providing access to justice for all, it may be that the laws of champerty are due to change. Many other jurisdictions, including the UK and Australia, have recognised that a regime allowing contingency agreements, i.e. arrangements of payment based on the success of the litigation, or the amount of damages, may facilitate access to justice.²¹ In fact, contingency fee arrangements have already been suggested to the Parliament in 2007, particularly as a means to increase access to justice for plaintiffs who are impecunious, but do not qualify for legal aid.²²

Changing the law of champerty is a balancing exercise between the policy considerations that act as push and pull factors. This is a role best played the Parliament, who has the resources to undertake the required research into the social impacts as well the mandate of the people. Moreover, as mentioned by the Chief Justice, any reform would require “carefully drawn parameters that regulate the extent to which such fee arrangements would be permitted and this makes it a subject more suited for the legislature rather than for the courts to develop”.²³

For now, we should laud the creation of the exception. It provides, in the interim, an alternative route, that while not so extreme as allowing contingency fee arrangements, provides access to justice for impecunious clients. It stands apart from pro bono, and is an alternative avenue for lawyers to give back to society.

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[1] The Law Society of Singapore v Kurubalan S/O Manickam Rengaraju [2013] SGHC 135 [Kurubalan] at [40]; Hill v Archbold [1968] 1 QB 686 [Hill] at 693.

[2] Camdex International Ltd. v Bank of Zambia [1998] 1 QB 22 at 29.

[3] Kurubalan at [40]; Otech Pakistan Pvt Ltd v Clough Engineering Ltd [2007] 1 SLR(R) 989 at [32].

[4] Hill at 693.

[5] Criminal Law Act 1967 (UK), c 58, s 13(1)(a).

[6] Cap 161, 2009 Rev Ed Sing.

[7] Cap 161, Section 71, 2010 Rev Ed.

[8] Stevens v Keogh (1946) 72 CLR 1 at 28.

[9] Hill at 697.

[10] Giles v Thompson [1994] 1 AC 142 [Giles] at 153.

[11] Jeremy Bentham, Defence of Usury, 4th ed (London: Payne and Foss, 1818) at XII.7, online: Library of Economics and Liberty < http://www.econlib.org/library/Bentham/bnthUs2.html#LETTER XII. Maintenance and Champerty>.

[12] Giles at 153.

[13] The Law Society of Singapore v Kurubalan S/O Manickam Rengaraju [2013] SGHC 135

[14] Kurubalan at [43].

[15] Thai Trading (A Firm) v Taylor [1998] EWCA Civ 370 at [28].

[16] Kurubalan at [45].

[17] Kurubalan at [82].

[18] Kurubalan at [83].

[19] Kurubalan at [89].

[20] Kurubalan at [81].

[21] Chua Thye Tan & Justin Yip, “Champerty: For the Promotion or the Subversion of Justice?” (2013) 19 Stamford Law Chronicle 5.

[22] Sing, Report of the Committee to Develop the Singapore Legal Sector (Final Report) (September 2007) at 30 – 31, online: Ministry of Law (Singapore) <http://www.mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/linkclicke1d7.pdf>.

[23] Kurubalan at [46].

Interpretations: Thoughts on the SLR Lecture by Sundaresh Menon CJ

Interpretations: Thoughts on the SLR Lecture by Sundaresh Menon CJ

Xing Yun*

The Singapore Law Review Lecture (“SLR Lecture”) was started in 1984 to raise the profile of the Review and attract good students onto the editorial board.¹ It has since evolved into an institution by itself and is now the longest running public lecture on law in Singapore. Punch Coomaraswamy J delivered the inaugural SLR Lecture on “The Perils of Drafting”.² Perhaps fittingly, the 25th edition of the lecture is titled “The Interpretation of Documents: Saying What They Mean or Meaning What They Say”³, delivered by the Honourable the Chief Justice Sundaresh Menon.

The shift in lecture topic from drafting to interpretation mirrors Menon CJ’s observation that “the law has evolved from a literal approach, to what is commonly known as the purposive approach (in statutory interpretation) and the commercial or contextual approach (in contractual interpretation)”. Back in 1984, the s 9A of the Interpretation Act was not in existence and it was more than two decades before Zurich Insurance⁴. In this context, it made sense, then, to focus more on proper drafting, so as to avoid the prospects of expensive litigation later down the road. However, even a well drafted law has its problems; the shortfalls of the literal approach are well documented, resulting in courts taking on more proactive roles in interpretation.

As one would expect from a common law jurist, Menon CJ started his lecture by reiterating the central role of the objective approach in the common law tradition. The objective approach “shift[s] the burden … [to] the contracting parties to ensure at the outset that their respective subjective intentions are accurately encapsulated within the four corners of the legal text”. The inadequate discharge of this burden was however immediately acknowledged as an inevitable source of interpretative dispute. “The imperfect mind, bedevilled with imperfect foresight and knowledge, and subject to economic constraints, directs the drafting of a legal text using language that is inherently imprecise.”

The economic analysis in particular merits attention. It is an acknowledgment that parties cannot be expected to contract for all possibilities. By deliberately leaving some portions open, parties are taking the risk that those issues will not result in protracted and expensive proceedings. The author however submits that courts should not hastily jump on this contracting impossibility as a justification for taking on a more hands-on approach. When parties make the conscious decision to leave certain matters out of a contract, they depend on the court to adjudicate not just on the fairness, but also according to their reasonable expectation of the result at the time they took the decision. While it may be fair to take into account matters such as commercial context, this should not come at the expense of certainty. Indeed, it is acknowledged that the two do not necessarily conflict. The point to be made though, is that courts should err on the side of caution and exercise the appropriate self-restraint in not departing too far from written contracts for the sake of commercial fairness.

After establishing the need for the purposive and contextual approaches, Menon CJ then considered the approaches in detail. Of note are the limitations of these approaches. While both approaches try to give effect to the purpose/intent of the drafter/parties, the commercial context is more contentious because Singapore has departed from the UK analysis of the extents of the contextual approach.⁵ Menon CJ justified Singapore’s higher threshold of “necessity” by highlighting the differences between interpretation and implication, with the latter involving some form of rewriting of the contract. The question of implication of statutes was however left open, though a lower threshold may be possible since, as Menon CJ noted, parliamentary intention can be ascertained much more easily.

Menon CJ’s lecture seems to indicate that the burden of the cost-benefit analysis has been shifted onto the courts. For instance, in the context of statutory interpretation, ‘the courts should have regard to “the desirability of persons being able to rely on the ordinary meaning … taking into account its context … and the purpose or object underlying the written law”, and also, “the need to avoid prolonging legal or other proceedings without compensating advantage”‘. Whether prior negotiations should be admitted as evidence was also described as a balancing act between the cost and benefits. These do not suggest, however, that parties can abdicate their responsibilities of drafting adequate contracts (and there is indeed no incentive for them to do so). Rather, the statements serve as a reminder that the courts, with their significant discretion in the interpretation of contracts, must also take a measured approach in discharging justice without compromising on efficiency, and vice versa.

The Chief Justice understandably chose to reserve his thoughts on some outstanding issues. It is noteworthy however that the live issues he highlighted, such as the admission of prior negotiations in contractual interpretation⁶, the use of expert evidence in establishing commercial context⁷ and the expansion of the contractual approach to other areas of contract law in the UK⁸, were all concerning the further liberalisation of existing rules. This suggests that future debates in the area of interpretation, at least in the Singapore context, will likely be centred on increased liberalisation.

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*Executive Editor, Singapore Law Review. All remarks made in this article are mine alone and do not reflect the position of the Review.

[1] Kevin Tan, 10 Years of the Singapore Law Review (1993) Sing L Rev 24, at 38

[2] (1985) Sing L Rev 39

[3] A transcript of the lecture can be found in the 32nd issue of the Singapore Law Review, to be published in mid 2014.

[4] Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR 1029; [2008] SGCA 27 [Zurich Insurance]

[5] It is well documented that Singapore courts have chose to retain the (higher) threshold of “necessity” as the test for implication of contractual terms. See Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] SGCA 43 [Sembcorp Marine]; Foo Jong Peng v Phua Kiah Mai [2012] SGCA 55; c.f. Attorney-General of Belize and others v Belize Telecom Ltd and another [2009] 1 WLR 1988 [Belize]

[6] See Chartbrook Ltd and another v Persimmon Homes Ltd and another [2009] 1 A.C. 1101; Zurich Insurance supra note 4; Sembcorp Marine supra note 6

[7] See Rainy Sky SA and others v Kookmin Bank [2011] 1 WLR 2900

[8] See Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2009] 1 AC 61; Oceanbulk Shipping & Trading SA v TMT Asia Limited and others [2010] UKSC 44; Belize supra note 6

Are we Students, or are we Lovers?

Are we Students, or are we Lovers?

An exploration of the implications of student-teacher relationships

Zhang Chuangzhong

In a student’s journey from the formative to the educated, teachers are the beacons of light illuminating the path before us. Playing such an important role, the teacher-student relationship is inevitably close, and in some situations, almost intimate. The question then arises: when does such a relationship cross the threshold from professional to personal? Is a casual invitation to the tutor’s house, or perhaps a cup of coffee at a nearby café, an illicit affair?

Recent headlines have revealed such a complication, with the relationship between student Darinne Ko and professor Tey Tsun Hang branded as ‘sex for grades’ by the media. Conversely, both parties have alleged that their relationship was born out of mutual attraction, with the gifts given out of affection, not bribery, and the grades awarded out of academic excellence, not partiality. In every teaching contract, there is invariably a clause stating that a teacher must maintain professional boundaries in his or her interactions with students. In NUS, for example, the Code of Conduct mandates staff members to ensure that their private activities are not in conflict with professional obligations. The university enforces this by demanding that their staff declare any personal relationships that result in a conflict of interests, as well as any gifts received from students that are worth more than a hundred dollars.

However, while boundaries of professionalism are demarcated, such clauses are often vague and fail to explicitly and specifically detail the limits of such a relationship. Yet it is admittedly difficult to determine the exact degree of familiarity that begins to contravene a professional relationship, given the infinitely complex nature of interpersonal relationships.

Further, partiality is also punishable as a crime. Under the Prevention of Corruption Act (PCA)¹, a person will be found guilty for corruptly giving or receiving from another a gratification as an inducement or as a reward for doing or forbearing to do something. Under this provision, the courts will consider a person ‘corrupt’ if he or she induces another to act dishonestly or unfaithfully. However, it is oftentimes difficult to assess a person’s intention behind a certain gift. Corruption, therefore, is an insidious shape shifter taking many forms, from the innocuous keepsake to the devious seduction. This difficulty was recognized by the courts in Chan Wing Seng v PP², where they have ruled that a precise definition of ‘corrupt’ should be avoided, given that such a definition may unnecessarily restrict the section and compromise its effect. Further, given that ‘gratification’ encompasses a wide range of acts, it is consequently difficult to determine if a gift or favour is presented under the guise of corruption. The result is that the PCA casts a wide net, which bestows upon the courts a wide discretion to exercise their authority.

Hence, these laws suggest that the scope for a personal student-teacher relationship is extremely narrow. What, then, is to be made of a genuine friendship or relationship blossoming between student and teacher? Friendships, much more relationships, can arise out of the most unexpected of situations, and given the extensive amount of time students spend around teachers, it is not unreasonable to expect a few close friendships developing. To maintain a harmless relationship without risking any misconstruction, the obvious solution will be to keep everything aboveboard, with outings carried out in groups, and gifts kept to simple cards and trinkets. More drastically, the parties can perhaps implement a hiatus to delay any further deepening of the relationship until the student graduates. Then again, who can fathom the intricacies of human relationships? Regulation may not always prove to be the most feasible of solutions. Where relationships grow more and more intense, risks will inevitably be taken, as both parties war with their conflicting emotions. The line between the professional and the personal will be consequently blurred.

However, it should be noted that the consequences of contravening the law are dire. Not only will the teacher lose his job and face criminal punishment, but the student will be implicated as well. Punishment under the PCA entails a fine of up to a hundred thousand dollars or imprisonment of up to five years, or both. Interestingly, even if the person is not convicted, the consequences are catastrophic as long as the charge can be made out. Both parties will have their credibility and moral integrity damaged by the media, which has both the ability and the tendency to gleefully disclose the names and personal details of accused persons. Further, given the social stigma attached to such cases, coupled with the relatively conservative nature of Singaporeans, this damage will be irrevocably destructive to the parties’ social and professional lives. Even a complete acquittal, then, will be of little significance if reputations were shredded in the process. The headlines and media hype over Tey and Ko’s case highlights this very situation, where derogatory comments on the parties’ actions, background and even looks are splashed across every media channel.

One cannot help but wonder if all these could have been avoided. If the school could have implemented a system to manage such relationships at the onset, such controversy could have been avoided. As it currently stands, the university has indeed recognized the inevitability of familial relationships by regulating the extent to which such relationships interfere with professionalism. Professors are required to declare any relatives who have entered the school and are accordingly prohibited from teaching them, setting and even discussing examinations. Perhaps the university could consider extending these measures to student-teacher relationships. Such measures could have allowed Koh and Tey to seek recourse by declaring and subsequently abiding by the accompanying regulations, instead of keeping their relationship in the shadows, only to have the blinding light of the law expose their affairs.

“Let us not to the marriage of true minds admit impediments”. Shakespearean fans will resonate with the idealism in his words, even as cynics scoff. Yet it must be qualified, that there is a proper place and time for a friendship or relationship to be borne to fruition. For two parties who are of one mind, surely a few short years will be a small price to pay. The hasty, however, bears a most burdensome risk, as Tey and Ko are finding out for themselves. Moreover, given that Tey and Ko are no longer seeing each other, one cannot help but wonder if the risks that they took for that short affair were worth such a costly venture.

Taken from the Dean’s Message to the Student body: It was never the prosecution’s case that grades were in fact tampered with. NUS Law is acutely aware that grades and degrees shape the future of the graduates, and the school’s reputation as an institution. The school is conducting a review to ensure the integrity of the grading system and thus far have found no evidence of any irregularities.

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[1] Cap 241, 1993 Rev Ed

[2] [1997] 1 SLR(R) 721

When doctors overcharge, what price do they pay?

When doctors overcharge, what price do they pay?

Relooking the decision of Susan Lim Mey Lee v Singapore Medical Council [2013] SGHC 122

Eric Hu*

The decision of Susan Lim Mey Lee v Singapore Medical Council [2013] SGHC 122 (“the present case”) is a significant one as it sets out a clear position in Singapore that doctors have a higher ethical duty which triumphs over all other commercial considerations.

Dr Susan Lim was the principal physician for a member of the royal family of Brunei and she billed a total of approximately $24 million for her services. Dissatisfied with the costs, the Bruneian government sought the intervention of Ministry of Health of Singapore, which started the disciplinary proceedings. The Court thoroughly examined the 94 charges against Dr Lim and found that her fees charged were “grossly excessive and vastly disproportionate to the services actually provided”.¹ The Court of Three Judges eventually agreed with the Disciplinary Committee (DC) in finding Dr Lim liable for professional misconduct².

The decision sets out clearly that there is an ethical obligation on all doctors in Singapore to charge a fair and reasonable fee for their services, given the “immeasurable trust and confidence bestowed on them both by patients and by community at large”.³

A few questions are worthy of consideration.

WHAT IF THE PATIENT AGREED TO THE MEDICAL COSTS?

In the present case, there was no fee agreement between Dr Lim and the patient. However, suppose a doctor clearly communicated with the patient of the medical costs with clear documentation and the patient agreed to the costs. Can the doctor still charge a higher price than the market rate? The Court states a firm no: Overcharging can still occur even if there is a prior agreement on fees⁴ as ethical obligations of a doctor must “prevail over contractual obligations”⁵.

WHAT IF THE DOCTOR IS EXPERIENCED OR IS THE BEST IN HIS OR HER FIELD?

The answer given by the courts? The doctor could not overcharge nevertheless. It seems straightforward. However, it may not be easy to tell in practice. This may be more clear-cut for simple procedures, which have a standard fee range for public and private hospitals. In the present case, Dr Susan Lim clearly overcharged over than a few times than the market rate for simple procedures which do not require her expertise or skills. The DC found that Dr Lim was not treating the patient in her specific field of specialisation, i.e. as a general surgeon but instead her treatment was palliative in nature and she was “coordinating treatment rendered by other specialists”⁶.

However, when it comes to complex surgical procedures which did not arise in the present case, it may not be as straightforward. It is hard to put a price on something intangible yet valuable like an experienced doctor’s skill. Certain factors such as his qualifications and years of practice can only serve as criteria.

Further, it seems imperfect to compare one experienced doctor to another. Do we take reference from the best in the field and adjust downwards? Who then determines what the best doctor in the field can charge?

These are difficult questions to ponder upon, especially when no fee guidelines are given.

SHOULD THERE BE A FEE GUIDELINE?

Fee guidelines have been introduced in 1987, but were scrapped in 2010 after Competition Commission of Singapore (CCS) deemed them to be anti-competitive.⁷

It should be noted what constitutes a fair and reasonable fee for services rendered depends not only on the relevant facts but also on views of experts in the particular field of practice.⁸ However, it was argued by Dr Lim that the views of experts were so varied that it would be impossible to determine a fair and reasonable fee, especially without fee guidelines. However, the Court disagreed and stated that it must be at the very least possible to determine the possible range of fees fair and reasonable in a particular set of circumstances.⁹

The Court suggested an approach of improved pricing transparency to arrive at fair and reasonable fees for medical services.¹⁰ This suggestion appears to be taken up by hospitals. From 2 Sep 2013, Ministry of Health has published percentiles of bill sizes for each procedure for public and private hospitals.¹¹

However, many doctors in private and specialist clinics still face a problem: What is this proverbial ‘ethical limit’ decided by the Court? It has led to a number of doctors calling for a revisit for such a guideline. They called for the Academy of Medicine, Singapore Medical Association and the Health Ministry to come together to provide answers to the perplexing question of what the ethical limit is¹².

Some doctors have revealed which factors they use to determine the size of their bills, in the wake of this case. Public sector fees, insurance payouts and peer pressure all help them to gauge the ethical limit on how much specific services should cost¹³. However, as a doctor pointed out, it would be “near impossible” to know where the lines are drawn in the absence of specific guidelines¹⁴.

But before we bring back the guidelines, the CCS’s concerns must be addressed. Law don Burton Ong pointed out that the CCS did not condemn all professional fee guidelines per se. He proposed a rephrasing of the guidelines such that it will be structured for patients, not doctors. This could then serve as “an objective and rational benchmark for ascertaining when and if doctors should be sanctioned for overcharging their patients”¹⁵. This suggestion can possibly be taken up.

LOOKING FORWARD

However, as the details of an ethical limit are being worked on, we can consider a suggestion. The lawyer profession has been alluded to in the Court judgment. Like doctors, lawyers also have a duty not to overcharge their clients. Similarly, the legal profession does not have written price guidelines. Perhaps the medical profession can consider drawing from the Legal Profession (Professional Conduct) Rules.

For example, Rule 35 of the Rules sets out sub-rules which require the lawyer to inform the client of an estimate of fees and to inform of approximate costs every 6 months. If the final amount varies substantially, the lawyer must advise his client of the change in circumstances in writing. Rule 36 further requires the lawyer to advise the client of costs at the outset of a contentious matter so that the client is aware at the outset of costs and risks of civil litigation.¹⁶

Similarly here, doctors can inform patients on their conditions and costs of procedures at the outset, particularly what to expect at different stages of treatments. If there is a change in the patient’s condition, the doctor should likewise advise the patient and his family necessarily. Certainly, this suggestion may not be directly transferable to the medical context and one needs to possibly consider issues such as patient confidentiality and medical ethics.

In practical terms, the above suggestion may work. Often a complaint against a doctor only arises when the patient feels something is amiss or the final costs are far from what he expected. Thus, if the final costs have been communicated right from the start and there was mutual consent, such complaints might not arise in the first place. This is what Dr. Susan Lim has not done satisfactorily, which led to the Bruneian Government launching the complaint.

However, this does not stop cases where a patient changes his mind and turns around to state that the price was outside of the ‘ethical limit’ despite the earlier agreement. After all, this seems to be what the Court is saying: even if there is an agreement, a doctor cannot charge beyond the ‘ethical limit’. The earlier suggestion can do so much as to minimise the numbers of complaints arising. However, doctors in the above scenario need not be overly concerned as the ethical rule is ultimately one rooted in “logic, common sense, justice and fairness … [and] will not be enforced unreasonably”¹⁷ as the Court rightfully noted.

When a complaint is launched, a series of investigations will begin. While there is now an ‘ethical limit’, it is submitted that in practice, the SMC will probably only commence disciplinary proceedings if there has been an egregious disregard for the Ethical Code and Guidelines or exaggerated overcharging of fees, as in the present case. As the Court stated, “one’s peers will be slow to find a breach or to find professional misconduct in marginal cases”¹⁸.

RELOOKING THE PENALTIES?

A final point is regarding the sanction meted out to Dr. Lim. The DC has found that Dr Lim has breached her ethical obligation by the “widest and clearest margin” and meted out the maximum financial penalty of $10,000 and the maximum suspension period of 3 years. Yet, the DC felt that it was not appropriate to remove Dr Lim from the register as she has displayed exceptional care to the patient and was an “exceptionally skilled doctor who brought credit to Singapore”¹⁹. However, the penalty of $10,000 seemed a slap on the wrist considering the huge quantum of fees Dr Lim invoiced. This sentiment is likewise expressed by the Court²⁰. While the maximum penalty has now been raised to $100,000²¹, it is submitted that the Disciplinary Tribunal can exercise its discretion under Section 53(2)(h)²² to order the disgorging of profits back to the patient in future cases if that proved necessary. The Tribunal may also consider making a Community Service Order, drawing reference from the Community-Based Sentencing (CBS) options provided in the Community Court. This can be useful, following recent calls for more pro bono work in the medical sector²³.

In addition, the disparity between a maximum 3-year suspension and a lifelong erasure from the register seemed huge. Thus, the Legislature can consider increasing the maximum suspension period. However, in practical terms, the 3-year period may already have a significant impact to the doctor’s clientele.

CONCLUSION

In all, the decision has been helpful in clarifying that there is indeed an ethical obligation by doctors not to overcharge and that obligation triumphs over all other contractual obligations. However, the ethical limit one can charge still remains arbitrary. It is best that medical associations and boards can come together to clarify this, ideally via fee guidelines. Associate Professor Burton Ong’s suggestions can be considered as we reintroduce the fee guidelines. Finally, the Legislature and the Disciplinary Tribunal can consider relooking the penalties and orders they can make in future cases.

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*Special thanks go to Yeoh Jean Ann and Benjamin Kwok for their invaluable comments. All opinions and errors remain solely my own.

[1] Susan Lim Mey Lee v Singapore Medical Council [2013] SGHC 122 at [86]

[2] Under the Medical Registration Act (Cap 174, 2004 Rev Ed). It was the earlier Act which applied instead of the current Act as the misconduct occurred before the amendments were made by the Legislature.

[3] Supra note 2 at [52]

[4] Ibid at [50]

[5] Ibid at [64]

[6] Ibid at [74]

[7] Competition Commission Singapore, Media Release, (19 August 2010). Also see Lim Meng Kin, “Medical fee guidelines anti-competitive”, Health Policy Monitor, October 2010.

[8] Supra note 2 at [53]

[9] Ibid

[10] Ibid

[11] http://www.moh.gov.sg/content/moh_web/home/costs_and_financing/HospitalBillSize.html

[12] Huang Shoou Chyuan, “Revisit need for fee guideline”, The Straits Times Forum (4 July 2013)

[13] Poon Chian Hui and Bryna Singh, “Doctor’s charges: How high is too high?”, The Straits Times (3 July 2013)

[14] Ibid

[15] Burton Ong, “Fee guides: Focus on patients, real charges”, The Straits Times (17 September 2013)

[16] Yashodhara Dhoraisingam, “Understanding a Lawyer’s Professional Duty to Provide Clients Information on Fees”, The Law Gazette (January 2005)

[17] Supra note 2 at [70]

[18] Ibid

[19] Ibid at [142]

[20] Ibid

[21] Section 53(2)(e) of the current Medical Registration Act

[22] This section provides: “make such other order as the Disciplinary Tribunal thinks fit, including any order that a Complaints Committee may make under section 49(1)”

[23] “Time for more to do pro bono work”, The Straits Times (18 December 2012)