Singapore Comparative Law Review (SCLR) 2021

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SINGAPORE COMPARATIVE LAW REVIEW 2021 The United Kingdom Singapore Law Students’ Society (UKSLSS) Law Journal



Editor-in-chief Phoenix Gay Vice President Lauren Goh

Published by The United Kingdom Singapore Law Students’ Society 2

Singapore Comparative Law Review

TABLE OF CONTENTS Front Matter Patron’s Foreword Chan Sek Keong


United Kingdom Singapore Law Students’ Society – Executive Committee 2020/21


Singapore Comparative Law Review – Editorial Committee


President’s Address Kathleen Teo


Editorial Foreword Phoenix Gay


Articles A. Keeping safe in a time of living dangerously – Covid 19 and its mutants The Singapore Government’s Responses to the COVID-19 Crisis – An 28 Overview and Analyses of the Salient and Novel Legal Issues Mr Edwin Tong SC TraceTogether: Ministerial Statements and the Doctrine of Legitimate Expectation Nathan Ong & Thomas Lim


Bespoke Coronavirus Legislation and the Wrinkled Well-Fitted Shirt Darren Leow


B. Public Law


Raison d'être or a mug’s game? Proportionality, Irrationality, the way forward in Administrative Law Kan Jie Marcus Ho*


Words Can Never Hurt Me? Evaluating s298A of the Singapore Penal Code Cai Fang Wei


Best public law article nominated by our Patron, Justice Chan Sek Keong


Singapore Comparative Law Review Defending Deference: Judicial Review in the UK, Singapore, and China Li Shi Da


You’ve Got Mail: Reviewing Prisoners’ Right To Confidential Legal Correspondence Ananya Maheshwari


A Tale of Two Supremacies: Protection of human rights in the UK and Singapore Richmond Xiao


Environmental Pollution Control: Not a Matter to COP26 Out Of Claire Li


C. Criminal Law Different Strokes for Different Folks: Examining the Differing Approaches to the Offence of Theft in the United Kingdom and Singapore Timothy Koo


Mission Abort: A Case for Decriminalising Abortion Lynette Koh


She’s Not The Accused”: Shifting Away from Victim-Blaming Towards Greater 126 Empathy Michelle Leong Tackling Tax Avoidance: A Tale of Two Cities Hng Zhan Peng


Mental Health (Care and Treatment) Act 2008: The dangers of focusing on ‘dangerousness’ Iffah Umairah Md Farid


The law as David’s stone against Goliath: the worker’s predicament in the UK and Singapore Chloe Choo


D. Private Law The nuisance of the Rylands v Fletcher rule: why the foreseeability element positions the rule as a sub-species of nuisance Chow Yun Kei



Singapore Comparative Law Review Rebutting presumption of causation in non-custodial breaches of fiduciary duty – potentially too onerous? Edward Sim


Reprogramming Copyright Law – Comparing the Copyright Regimes in 174 Singapore and the United Kingdom and their application on AI-Generated Content Dominic Ko


The Tort of Conversion – Are Electronic Certificates Chattels? Arthur Tan


To Have Faith in the Concept of Good Faith? Claire Li


Assumption of Responsibility in Assessing the Remoteness of Damages in Singapore: Not a Remote Role At All Nicholas Lee*


Remedying the Remedial Constructive Trust: A comparison of the remedial constructive trust under English law and Singaporean law Allison Wu


An Inequitable Mistake? The UK’s Abolishment of Mistake in Equity Contrasted With Singapore’s Approach Isaac Ng


Refusing to Reinvent the Wheel: The Reaffirmation of the Dunlop Test in Singapore Samuel Teo & Samuel Wittberger


Awards Rendered in Remote Hearings in International Arbitration: To Set Aside Or Not To Set Aside? Samuel Teo & Samuel Wittberger


Best private law article nominated by our Patron, Justice Chan Sek Keong


Singapore Comparative Law Review

Patron’s Foreword It gives me immense pleasure to once again write the Singapore Comparative Law Review (SCLR) foreword and review the articles in this edition. This year, the SCLR comprises 26 articles focused mainly on comparing legal developments in Singapore and the UK, and continues its mission of educating UKSLSS members on certain areas of the law which may not be familiar to them. The law does not stop developing because society never stops developing. Each year adds more cases, but not necessarily more doctrines or principles. The common law is made for big data, which makes the life of every law student less stressful when it comes to researching what the latest authority is on a particular point of law. This edition addresses many points of law. 2021 will go down in global history as the year wreaked by the fallout of the COVID-19 pandemic. As the world continues to recover, the damage and triumphs of the last year reflect societies divided by and engaged in ideological conflicts, power politics, military build-ups, economic competition, huge inequalities in wealth and ownership of property due to unchecked capitalist practices, and inadequate responses to the existential threat of climate change. However, life goes on, and so must the law continue its role in maintaining social cohesion. Insofar as legal systems are concerned, this 2021 edition of the SCLR provides evidence for such optimism. I write this foreword on the eve of Singapore’s 56 th National Day, feeling optimistic about the future of Singapore, both economically and politically. Due to the hardship caused by various strains of COVID-19 on virtually all facets of Singaporean society, the Government has injected a massive amount of money and credit into the economy to sustain it. Parliament has also passed appropriate legislation to protect people’s livelihoods and maintain a measure of stability in their daily lives, until the pandemic is contained, as it will certainly be. A.

Keeping safe in a time of living dangerously – COVID 19 and its mutants

1. This year, the SCLR is privileged to have as its Guest Contributor, Mr Edwin Tong SC, Minister for Culture, Community and Youth and Second Minister for Law. Mr Tong has written an article on The

Singapore Government’s Response to the COVID-19 Crisis – An Overview and Analysis of the Salient and Novel Legal Issues. His article focuses on the COVID-19 (Temporary Measures) Act (“COTMA”), which was amended seven times to refine Singapore’s response to the evolving COVID-19 pandemic situation, and the Simplified Insolvency Programme (“SIP”) and Sole Proprietors and Partnerships (“SPP”) Scheme. The SIP and SPP provide distressed small businesses with an avenue for simplified and cost-efficient debt-restructuring and insolvency proceedings. These measures will undoubtedly help to mitigate the economic impact of the recession on businesses and individuals. As estimated by the Ministry of Finance, without these measures, Singapore’s GDP contraction would have doubled, and an additional 155,000 jobs would not have been saved nor created. The number of bankruptcies and compulsorily liquidated companies has also not been increased in 2020 as compared to previous years, following the effective implementation and operation of these measures. 2. A second article which traces the Government’s sensitivity to public opinion and unhappiness with certain aspects of life in Singapore (as a society forever held hostage by its geography, its history, its demography and its territorial size) is entitled TraceTogether: Ministerial Statements and the Doctrine of Legitimate Expectation, by Nathan Ong & Thomas Lim. The authors ask the question: Can legitimate expectations arise from representations to the public made by Ministers of the Government in ignorance of the law? In other words, do legitimate expectations, as a legal doctrine, principle or rule of practice, arise from mistaken representations? In the determination of this statement, the authors provide a useful account


Singapore Comparative Law Review of the state of law in England and in Singapore on procedural and substantive legitimate expectations in the sphere of public law. This issue arose due to a statement made in Parliament on 4 January 2021 by the Minister of State for Home Affairs, Mr. Desmond Tan, that the police had statutory powers under the Criminal Procedure Code to access and obtain any data from any device for the purposes of criminal investigations, including data obtained from the mobile application ‘TraceTogether’ developed by Singapore’s Ministry of Health and Government Technology Agency (GovTech) for to contact-trace the COVID-19 virus. This contradicted statements on the TraceTogether website and also an assurance from the minister responsible that the data would only be used ‘for contact tracing purposes’. Following public outcry, the Singapore government procured Parliament to pass legislation which restricted the scope of police power to only investigating serious crimes. The authors characterised this error as having been made ultra vires. It was arguably not an issue of vires, since any individual, including a Minister, can make a representation of fact or intent. Quite correctly, the authors conclude that ultimately, it is a question of whether the Government can be trusted, or rather expected, not to break its representations to the public, especially in relation to a statement made in Parliament. Here, obviously, any balance of the public interest in the investigation of crime must outweigh the loss of privacy of the individual, and especially in the established principle that there is no confidentiality or privacy where criminals are concerned. 3. A third article, Bespoke Coronavirus Legislation and the Wrinkled Well-Fitted Shirt, is written by Darren Leow and completes the trifecta of articles on COVID-19. This article compares the legislative responses of the UK and the Singapore governments in tackling the spread of the virus within their respective countries. The article concludes that while Singapore adopted the correct approach in introducing primary legislation, the UK should have made use of their emergency regulations at the outset of the pandemic. Just like a well-fitted shirt, the article argues that while bespoke primary legislation is better suited to tackle a crisis like a pandemic, emergency regulations can help give the government more time to iron out errors, inconsistencies, or shortcomings. However, in terms of actual implementation, it is difficult to see why one approach is better than the other. The orthodox position has always been that the primary legislation is more consistent with democratic principles, as it includes parliamentary oversight instead of merely departmental oversight over how intrusive or extensive the regulations may be.


Public law

Public law issues dominate this issue. There are 18 articles on different areas of public law, the majority on constitutional law centred on the relationship between the Executive and the Judiciary. 4.

Proportionality, irrationality and reasonableness

In his article entitled Raison d'être or a mug’s game? Proportionality, Irrationality, the way forward in Administrative Law, Marcus Ho wrestles with judicial review in English law in the context of proportionality and irrationality. He points out that traditional judicial review in English Law draws a bifurcation between Wednesbury unreasonableness and proportionality in policing the validity of administrative decisions, and that (per Lord Steyn in R (Daly) v SS, ) the proportionality test is invoked whenever a qualified right enshrined in the Human Rights Act 1998 (‘HRA’) is engaged – the right to life, the right to a fair trial, and the right to family life are common rights that have frequently been pleaded before English Courts, though any such right within the Act may most certainly suffice to invoke the proportionality test. He then points out that the classic Wednesbury unreasonable/irrationality test (“so unreasonable that no reasonable authority would ever consider taking it”) as chafing against the standard of proportionality as summarised by Lord Sumption “being whether the (i) objective was sufficiently important to justify the limitation on fundamental right, whether the (ii) measure was rationally connected to the objective, whether a (iii) less intrusive measure could be used, and (iv) having regard to all the


Singapore Comparative Law Review circumstances and consequences, whether a fair balance has been struck between the rights of the individual and the needs of the community”. The article then proceeds to address four problems raised by Lord Kerr in Keyu v Foreign Secretary (“Keyu”), as follows: whether (i) irrationality and proportionality are forms of review which are bluntly opposed to each other and therefore mutually exclusive, whether (ii) intensity of review operates on a sliding scale, dependent on the nature of the decision under question and that, in consequence, the debate about a “choice” between proportionality and rationality is no longer relevant, whether (iii) there is any place for a “pure” irrationality ground of review, and whether (iv) proportionality provides a more structured and transparent means of review. Considering English law, the author advances the proposition that principles of proportionality ought to be imbued within irrationality in English Law, leading to a final position whereby both doctrines are not mutually exclusive. Considering Singaporean law, since the Constitution entrenches certain fundamental liberties, Marcus argues (as other Singapore academics have) that a more intensive form of irrationality review could be adopted, which will give a larger respect for fundamental liberties. He writes, “whilst it may be argued that deference to executive bodies may be warranted, particularly when the administrative act results from a valid democratic process, a more flexible standard of review must be affirmed when important constitutional rights are at stake.” If fundamental liberties are to be truly fundamental, perhaps Singapore and its courts will achieve this one day. Who knows? As Lord Sumption said in Bank Mellat No 2 [26]: “Every case turns on its own facts, and analogies with other decided cases can be misleading. The suppression of terrorism and the prevention of nuclear proliferation are comparable public interests, but the individual right to liberty engaged in A v Secretary of State for the Home Department can fairly be regarded as the most fundamental of all human rights other than the right to life and limb. The right to the peaceful enjoyment of business assets protected by article 1 of the First Protocol, is not in the same category of human values. But the principle is not fundamentally different.” 5. The next article, Words Can Never Hurt Me? Evaluating s298A of the Singapore Penal Code, is written by Cai Fang Wei. She makes a sound argument that s298A of the Singapore Penal Code should be modified, although it suitably punishes some racist acts, as its provisions go beyond that which are necessary. It (i) violates the harm principle, (ii) can be used to punish conduct which is not morally blameworthy, and (iii) chills socially valuable discussion on race and religion. In other words, the wording of s298A intrudes too much into citizens’ fundamental liberties. The author proposes that the threshold for offence required for a conviction under s 298A should be heightened to match legislation in England and Wales. However, her proposal has little traction in the current state of race and religious relations and governance in Singapore. The preservation of public order has always been the top priority for the government du jour. What are seen as draconian laws in liberal societies are accepted, or at least tolerated, by the majority of Singaporeans. 6.

Should the Judiciary defer to the Executive in judicial review of administrative decisions?

In his article Defending Deference: Judicial Review in the UK, Singapore, and China , Li Shi Da argues that “because judicial review should be understood as a function of socio-political attitude in a particular community, there is no one-size-fits-all approach as to how much judicial deference there should be. The differences in attitudes between Singapore and the UK imply that Singapore should not blindly emulate the UK’s system. When considering how much judicial deference Singapore should have, gleaning insights from recent developments of the Administrative Litigation Law in China could offer some inspiration as to why Singapore should not fully embrace the UK system.” Li argues that Singapore’s


Singapore Comparative Law Review government enjoys a slightly stronger “presumption of constitutionality” of executive discretion, which invites slightly less judicial deference because of the trust it has built and maintained. Bringing the Chinese legal system into the discussion on judicial deference is surprising, even though Li recognises that China’s system is closer to ruling by law than the rule of law. However, Li argues that China’s socio-political attitude shares many similarities with Singapore, and that there exists a strong presumption of perceived legality of governmental action in China, partly due to the historical nobility of and respect for holders of public office in the Chinese culture and the moral authority that paternalistic governmental approaches provide. While the presumption of legality exists also because of the lack of viable political alternatives, that alone cannot explain the high levels of trust observed in China that many other authoritarian states do not enjoy. However, it is not clear whether bringing the East Wind into the discussion serves to clear the air in Singapore. Li cannot say whether there is too much, too little, or just the right amount of judicial deference in Singapore- this determination cannot be answered cannot be made without first defining Singapore’s brand of rule of law and judicial review. Quo vadis? Perhaps the real answer lies in understanding what judicial deference actually means in any particular case where it is accorded to the Executive in the case of executive actions, and in the case of Parliament in the case of legislative actions. 7.

What constitutional and/or civil rights do prisoners have?

The next article entitled You’ve Got Mail: Reviewing Prisoners’ Right To Confidential Legal Correspondence, by Ananya Maheshwari, examines the rights prisoners have to privacy and confidentiality in respect of their communications with their lawyers. The writer argues that Singaporean law’s higher degree of rights breach prisoners’ rights in comparison to English law, lacks justification, which necessitates not only legislative reform, but also Singapore’s judicial attitudes to be more reflective of that of the English judiciary. Instead of limiting her essay to an examination of a prisoner’s right to confidentiality of her legal communications, the author could have gone further to provide a broader survey of a prisoner’s constitutional and civil rights. The Constitution grants fundamental liberties or rights to all citizens and residents in Singapore (except as otherwise provided). Article 9 guarantees the right to life and liberty in accordance with law. But “law” does not mean any Act of Parliament (as Ong Ah Chuan says). Otherwise, Parliament can enact a law that provides for a mandatory death sentence for the offence of cheating, or misappropriation of property or financial fraud involving a loss exceeding, say, $100,000, which though rational, may be disproportionate. This may compel the courts to intervene by applying the principle of proportionality in relation to a breach of fundamental rights- after all, what could be more fundamental than the right to life? The basic question which no legal scholar in Singapore appears to have examined is, what are the fundamental liberties a convicted criminal may be deprived of? Given the range of punishments the Penal Code provides in responses to offences, a convicted criminal may be deprived of his property (via a fine), his liberty and right of movement within Singapore (via a prison sentence), his personal safety (via caning), or his life (via a death sentence). The purpose of imprisoning a criminal is to remove him from any interaction with other members of society, not only as a means of punishment by depriving him of his liberty, but also to ensure that he cannot commit further crimes. The criminal also loses his fundamental right of association, but what about his constitutional right to vote? Does his right to life entail a subsidiary right to conjugal visits for long term or prisoners for life? If not, does he have any right to have children in some other way? Prisoners may be outcasts of society, but they are not outlaws. 8.

Are fundamental liberties better protected in the UK than in Singapore?

In his article A Tale of Two Supremacies: Protection of human rights in the UK and Singapore , Richmond Xiao compares the English and Singaporean approaches to human rights and argues that a constitution, such as the Singapore Constitution, which empowers the courts to invalidate legislation, does


Singapore Comparative Law Review not provide any degree of assurance that the courts will protect the fundamental liberties guaranteed by the Constitution. It cannot be predicted from a country’s constitutional structure alone the degree to which the courts will protect human rights. Rather, this depends on both constitutional structure and judicial attitudes. The author concludes that the reason the Singapore judiciary adopts a circumscribed approach towards human rights protection is because of (i) the prevailing political climate in Singapore and (ii) the polity’s culture. The author does not tender new arguments. Rather, the fact he furthers the argument that for the court to declare a law inconsistent with the Constitution is somehow anti-majoritarian and undemocratic misses the point and is perplexing. One would have thought that if there were a general will, it would be in the Constitution itself, and not in any law enacted by Parliament. What is also intriguing is that despite the title of the article, the author does not offer a view on whether, comparatively, the approach of UK courts in protecting fundamental rights is more or less favourable than Singaporean courts. 9.

Climate Change and Environmental Control in Singapore

Climate change is increasingly recognised as one of the greatest existential threats to human existence. The 26th United Nations (UN) Climate Change Conference of the Parties (COP26) will be hosted by the UK and Italy in Glasgow, Scotland from 31 October to 12 November 2021. It is “an event many believe to be the world’s last best chance to get runaway climate change under control. For nearly three decades the UN has been bringing together almost every country on earth for global climate summits - called COPs - which stands for ‘Conference of the Parties’. 'In that time climate change has gone from being a fringe issue to a global priority.” In her article Environmental Pollution Control: Not a Matter to COP26 Out Of, Claire Li writes that whilst the common law protects private rights against damage to property in the form of damages for nuisance or negligence, this is an insufficient mechanism to deal with environmental pollution at large, and that legislation is necessary. Singapore has two main laws governing pollution: the Environmental Protection and Management Act (“EPMA”) and the Environmental Public Health Act. The latter lacks certain features in the UK’s corresponding Control of Pollution Act 1974 and the Environmental Protection Act 1990. The writer argues that Singapore can do more to protect the environment by mandating the use of EIAs and passing legally binding climate legislation. This is an area of public policy where information asymmetry makes it difficult for legal scholars to argue against the Government’s position that, given Singapore’s economy, land size and population, there is no useful supervisory role for the courts. This is also an area where the green light approach in judicial review may be appropriate. C.

Criminal law – Theft in UK and in Singapore

In his article Different Strokes for Different Folks: Examining the Differing Approaches to the Offence of Theft in the United Kingdom and Singapore, Timothy Khoo examines the elements of theft under English law and Singapore and concludes that the Singaporean Penal Code provides a more straightforward and structured approach. This in turn allows greater expediency, efficiency, and clearer reasoning, even though both laws would lead to the same result on similar facts. One advantage of having the Penal Code is that Singaporean enforcement authorities and the courts have access to a wealth of jurisprudence from other common law jurisdictions which have adopted the Penal Code, such as Malaysia, India and Sri Lanka. However, the author’s suggestion that the law of theft in England should be codified is a waste of words. Of course, from the perspective of efficiency and effectiveness in protecting property, it does not matter whether UK law or Singapore law on theft is more refined or better conceptually. What is more important is the practical enforcement of the law. If the police are unable or unwilling to investigate theft offences due to the low value of the property, lack of financial or manpower resources, or any other reason, the rule of law will be undermined and society will suffer in the long run. What is virtuous on paper 10.


Singapore Comparative Law Review will be practically useless to the community. To this end, Singapore subscribes to the crime control model and is one of the best for law enforcement among the developed countries of the world. 11.

To abort, or not to abort?

In her article Mission Abort: A Case for Decriminalising Abortion, Lynette Koh argues for the decriminalisation of abortion in the UK in favour of the more liberal regime in Singapore under the Termination of Pregnancy Act. 12.

A sexual assault victim should not be made to stand trial for her suffering

In her article She’s Not The Accused: Shifting Away from Victim-Blaming Towards Greater Empathy, Michelle Leong argues vehemently that, although the Singaporean criminal justice system has made some progress towards protecting rape victims from being retraumatised through rigorous or offensive cross-examination, it still has a long way to go in achieving its aspirations of true and proper justice. The writer argues that sections 150-154 of the Evidence Act (“EA”) do not provide a sufficient safeguard since they do not diminish the possibility that counsel may still be able to raise questions raised during cross-examination may cause actual damage to the complainant. The writer also argues that the Legal Profession (Professional Conduct) Rules 2015, Rule 12(4) (PCR Rules) are also insufficient because “counsel is essentially left to self-regulate their conduct in observing ethical limits during cross-examination. Furthermore, as ethical safeguards only operate ex post facto, and any impropriety will only be dealt with after the complainant has already been subjected to a secondary wave of trauma in open court. The author also argues that the Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 (“2018 Rules”), which provide that the complainant’s physical appearance and sexual history cannot be adduced without prior leave of court (which would only be granted if the Court is satisfied that it is “in the interests of justice”), are a porous shield. This is because the court has the discretion to allow such a question in protecting the accused’s right to a fair trial. Hence, the present legislative and ethical framework needs urgent reform, absent which, “legalized victim-blaming will continue, deterring many future complainants from reporting their perpetrators. When will we stop blaming the complainant for her own rape? When will we finally recognize that she is not the accused?” Is she protesting too much? One way of looking at this issue may be to ask: (a) “Will the accused get a fair trial if his counsel is impeded from asking questions to discredit the complainant’s account that she did not consent to the act?, (b) How does the criminal justice system balance the right of an accused, if convicted for rape, is liable to be imprisoned for up to 20 years and also be caned, to prove his innocence, as against possible retraumatisation of the complainant in open court?, and (c) Should the court impose a gag order on the media to report rape trials, on the application of complainant or the prosecution if there is a likelihood of such harm being inflicted due to the publicity of the case? 13.

Tax avoidance versus tax evasion

In his article Tackling Tax Avoidance: A Tale of Two Cities, Hng Zhan Peng examines the tax regimes of the UK and Singapore on the subject of tax avoidance. There is a legal duty to pay tax on one’s chargeable income. Tax evasion is a crime. One might say that there is a social duty not to avoid paying tax on chargeable income by entering into “an arrangement that is artificial, contrived or has little or no commercial substance and is designed to obtain a tax advantage that is not intended by Parliament”. Tax avoidance is a civil offence that is penalised by the imposition of a payment that is a multiple of the amount of tax avoided. This article discusses the development and the operation of the anti-avoidance regimes employed in the UK and Singapore, and argues that reform is needed in Singapore to penalise intermediaries (i.e., tax consultants) who design, promote and implement defeated tax avoidance schemes entered by their clients, and also a new statutory duty be imposed on specific persons to disclose tax avoidance schemes


Singapore Comparative Law Review entered by them. The author accepts that tax avoidance is a cat and mouse game. As long as there are mice, the cat must remain vigilant. 14.

Mental Health

In her article Mental Health (Care and Treatment) Act 2008: The dangers of focusing on ‘dangerousness’, Iffah Umairah Md Farid critiques the effectiveness of the UK Mental Health Act 1983 (“MHA”) and the Singapore Mental Health (Care and Treatment) Act 2008 (“MHCTA”) in treating mentally ill patients. This article is a plea to the authorities to reform the law to alleviate the stigma of mental illness generally, and respecting the autonomy of mentally ill patients. The aim of reforming the MHCTA should be to ensure that the provisions do not contribute to the existing image of mentally ill people as a nuisance or danger that should be segregated from society, especially as Singapore aims to build a society that seeks to destigmatise mental illness and provide better mental health treatment services overall. 15.

Workers’ rights in Singapore

In her article The law as David’s stone against Goliath: the worker’s predicament in the UK and Singapore, Chloe Choo examines the statutory protection for workers under UK law and Singapore law, and analyses how far the worker should be protected, given Singapore’s absence of a “worker” category and lack of protection for foreign domestic workers. The writer finds that English law provides better protection to workers in the gig economy, while Singapore is stagnating in retaining the separate categories of employee and independent contractor. Moreover, although as of December 2020, the foreign workforce in Singapore comprises 1.2 million people, the Employment Act provides them with significantly fewer accessible rights compared to that of local workers. Migrant workers in comparison with their employers are as David is compared with Goliath, without a happy ending. Unfortunately, the issue of labour rights in Singapore is more complex than equating local workers to migrant workers in terms of their respective employment rights. There are issues of public policy which revolve around how the Singapore economy is managed in the most efficient and productive way. Singaporeans themselves are divided on this issue, and a modus vivendi is yet to be found, unless it is the status quo. D.

Private law


Does it matter whether Rylands v Fletcher should be based on nuisance or negligence?

In her article, The nuisance of the Rylands v Fletcher rule: why the foreseeability element positions the rule as a sub-species of nuisance, Chow Yun Kei analyses the illuminating judgment of the Singapore Court of Appeal (SGCA) in Pex International and argues that the SGCA, by aligning the rule in Rylands v Fletcher with the principles of nuisance, has helped to clarify the rule’s applicability in Singapore law. This is despite the uncertainty that remains in English law. However, the writer also argues that the SGCA should have gone beyond its mere suggestion by making a definite statement that the Rylands v Fletcher rule is to be treated as a sub-species of the tort of nuisance as “this supported by the development of the rule in English and Singapore law”. Since the SGCA preferred the approach “encapsulated in Cambridge Water, to that in Transco, the SGCA would have approved Lord Goff’s statement in Cambridge Water that “It would lead to a more coherent body of common law principles if the [Rylands v Fletcher] rule were to be regarded essentially as an extension of the law of nuisance to cases of isolated escapes from land.” If so, would Rylands v Fletcher not be a sub-species of nuisance? Did the SGCA not say so at [66] of its judgment? And finally, does it matter, how it is classified by legal scholars?”


Singapore Comparative Law Review Pex International deals with another issue which could be examined to bring coherence to the common law by imputing liability for negligent acts. The claim against PEX in negligence was dismissed on the ground that PEX had delegated the performance of the A&A works to Formcraft as an independent contractor. PEX had not been negligent in the selection of Formcraft (who did not even enter an appearance). Should the common law continue to absolve a defendant of liability because the damage or loss is caused by a contractor chosen by him without negligence? Why should it matter that the contractor acts independently? What is the point of having a contractor who cannot act independently within the scope of his work? Why should the principal be disadvantaged by the law because the contractual performer delegates the work to someone else? In an age where insurance is freely available, the defendant can always protect himself by requiring the contractor to buy insurance to cover the defendant’s liability. Why not extend the duty of care to ensuring there is insurance? 17. How should the law treat non-custodial fiduciaries who breach their duties as fiduciaries in the context of proof of loss suffered by their principals? In his article Rebuttable presumption of causation in non-custodial breaches of fiduciary duty potentially too onerous?, Edward Sim examines the judgment in Sim Poh Ping v Winsta Holding Pte Ltd [2020] SGCA 35, in which the SGCA, after considering all the authorities in major common law jurisdictions, held that a non-custodial fiduciary who breaches his fiduciary duties to his principal has the legal burden of proving that any loss suffered by the principal would have been sustained even if the fiduciary had not breached his or her fiduciary duty. In other words, the burden lies on the fiduciary to rebut the presumption that the loss would not have been sustained by the principal, had the fiduciary not breached his or her fiduciary duty. This rebuttable presumption arises once the principal can prove on a balance of probabilities that the fiduciary has breached his or her fiduciary duty, and that loss has been sustained. In so holding, the SGCA disapproved a series of High Court decisions that shifting the burden of proof was only an evidential exercise (Approach 2), on the ground that it was consistent with the need for strong deterrence against fiduciaries breaching their fiduciary duties. Hence, it was necessary to place the legal burden on the fiduciary fully and squarely. However, notwithstanding that the writer accepts that this approach (Approach 3) is the most convincing in orthodox cases and should be adopted, its current scope is too wide because it imposes a disproportionate burden on fiduciaries who have no subjective knowledge of their fiduciary duties. In such cases, Approach 2 should be adopted instead. 18.

Can a robot be an author?

In his article Reprogramming Copyright Law – Comparing the Copyright Regimes in Singapore and the United Kingdom and their application on AI-Generated Content, Dominic Ko argues that per the Singapore Copyright Act, copyright does not subsist in works substantially generated by a robot, or any other form of artificial intelligence. Copyright can only be created by human beings. In contrast, s9(3) of the Copyright, Designs and Patents Act 1988 in the UK provides that “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” The writer submits that the Singaporean copyright regime should resemble that of the UK to strengthen Singapore’s position as a global hub for innovation. It is interesting to note that on 30 July 2021, the Australian Federal Court (Beach J) held in Thaler v Commissioner of Patents [2021] FCA 879 that an artificial intelligence (AI) system can be an inventor for the purposes of the Patents Act 1990 (Cth) (Act). The court held that, although a patent cannot be granted to an AI system because such a system cannot apply for a patent, the judge held that he who owns the AI system also owns any invention made by the AI system when it comes into his possession. The decision is under appeal. Obviously, legislation is the better way forward.


Singapore Comparative Law Review 19.

Can COEs and PARFs be converted?

In his article, The Tort of Conversion – Are Electronic Certificates Chattels?, Arthur Tan examines the tort of conversion in English and Singaporean law. He adopts a puristic approach, that under English law, pure intangibles cannot be converted (see OBG v Allan [2008] 1 AC 1). He argues that the Singaporean High Court decision in Cycle and Carriage Motor Dealer Pte Ltd v Hong Leong Finance Ltd [2004] SGHC 274 and the Magistrates’ Court decision in Kenso Leasing v Hoo Hui Seng [2010] SGMC 8 are no longer good authorities and that their reasoning is unsatisfactory. In the former case, the High Court held that the PARF certificate could be the subject matter of conversion. In the latter case, the Magistrates’ Court held that a Temporary Certificate of Entitlement (TCOE), even if electronic, was capable of being converted. However, textbooks rationalise them as cases concerning documentary intangibles, similarly to cheques which can be converted. In fact, the High Court treated the PARF like a cheque (at [13]-[14). The writer also argues that “by removing some of these limiters on conversion, the Singaporean courts have ushered in the possibility of the floodgates opening”. This is a surprising argument, since the two Singapore cases were decided 10 years apart. 20.

Is good faith a doctrine good for the common law?

In her article To have faith in the concept of good faith?, Claire Li restates the established position that the doctrine of good faith is not part of the common law of England and Singapore. However, although the writer does not advocate that it should be, she argues that it would be in Singapore’s interest to take incremental steps towards emulating English law’s current recognition of an implied term of good faith specifically in “relational contracts”. Relational contracts are contracts that are typically long-term in nature, which require a high level of communication and cooperation between the parties and an intention that parties will perform their contractual duties with trust and confidence. However, the writer’s position is inconsistent with the decision of the English Court of Appeal in MSC Mediterranean Shipping Company S.A. v Cottonex Anstalt. The English CoA held that “recognition of a general duty of good faith would be a significant step in the development of our law of contract with potentially far-reaching consequences”, and that there was: “a real danger that if a general principle of good faith were established it would be invoked as often to undermine as to support the terms in which the parties have reached agreement”. 21.

What is the legal basis of the rule in Hadley v Baxendale?

In Assumption of Responsibility in Assessing the Remoteness of Damages in Singapore: Not a Remote Role At All, Nicholas Lee reviews the theoretical and practical reasons for the Singapore Court of Appeal’s rejection in MFM Restaurants v Fish & Co Restaurants Pte Ltd [2010] SGCA 36 of the ‘assumption of responsibility’ principle proposed by Lord Hoffmann in Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] 3 WLR 346. It is difficult for most readers to fully understand the arguments made by the writer without reading all the five judgments in The Achilleas, and the long and complex judgment of the Court of Appeal in MFM Restaurants, to understand the doctrinal and practical discussion. The writer accepts the relevance of the Court of Appeal’s criticisms of the practical consequences of Lord Hoffman's test of remoteness and also agrees with Professor Goh Yihan’s view that the two approaches are not fundamentally distinct in terms of theory, but differ only in the means by which they to give effect to the ‘assumption of responsibility’ concept. Hence, he agrees that more is required to enhance the Hadley rule if Singaporean courts intend to rely on the foreseeability test alone. For this reason, there may also be further developments in Singaporean law to integrate the aforementioned advantages of the Achilleas requirement into the current Hadley test. However, the writer also argues that the Court of Appeal’s approach, although seemingly grounded in orthodoxy, is in fact ‘a step towards a more coherent understanding of the


Singapore Comparative Law Review remoteness principle’ as it internalises the essential idea of the Achilleas requirement while avoiding its professed complications. Notably, the writer does not tell the reader the facts which gave rise to the fundamental principle that the five Law Lords and Lady had to confront and clarify. The facts are as follows: The owners chartered their vessel to the charterers with redelivery due on 2 May 2004. In April 2004, market hire rates having risen, the owners fixed a follow-on time charter with another company at the new market rate of $39,500 per day, with the company having the right to cancel if the vessel was not available on 8 May. The charterers’ voyage was delayed. By 5 May, the owners realised that the vessel would not be returned by 8 May. By that time, the market hire rate had fallen sharply. To secure the company’s agreement that the cancellation date would be extended until 11 May, the revised date when the vessel would be returned and become available for the follow-on charter, the owners agreed to a reduced rate of $31,500 per day. The charterers had not been put on notice of the existence of the follow-on charter at any time prior to redelivery. The owners claimed damages for breach of contract for $1,364,584, based on the $8,000 loss per day they suffered over the 191day duration of the follow-on charter. The charterers claimed that the owners were only entitled to the difference between the market and charter rates of hire for the overrun period, namely $158,301, and that loss of profits on a subsequent fixture were only recoverable where the risk of such loss had been expressly brought to the attention of the party which had broken the contract. The arbitrators, by a majority, despite accepting that the general understanding in the shipping market was that a charterer who returned a vessel late was liable in damages only for the period of late delivery, held that the loss on the follow-on charter was recoverable under the rule in Hadley v Baxendale (1854) 9 Exch 341, 354 as arising naturally from the breach of contract. This is because it was damage which the charterers, at the time the contract was made, should have realised was likely to result from the breach of contract caused by returning the vessel late. Dismissing the charterers’ appeals, the judge and the Court of Appeal upheld that decision. The charterers appealed. The House of Lords allowed the appeal on the ground that since all contractual activity was voluntarily undertaken, liability for damages for breach of contract was founded upon the presumed intention of the parties and required the court to determine objectively what the common basis on which the parties had contracted was. The principle in Hadley v Baxendale had been intended to give effect to this presumed intention and, insofar as it had been interpreted as allowing recovery for loss which was reasonably foreseeable, the required probability was that which would generally happen in the ordinary course of things. A party entering into a contract could only be expected to contemplate losses which were likely to result from the breach in question. That regard was to be had to the nature and object of the business transaction, including the commercial context in which it was made and (per Lord Hoffmann and Lord Hope of Craighead) the question asked whether the loss was of a type for which the party in breach could be reasonably presumed to have assumed responsibility. Reasonable parties to a charter agreement would have understood that late redelivery by charterers could result in owners losing a subsequent follow-on fixture with damages recoverable for the difference between the charter rate and any higher market rate during the period of overrun. The owners’ loss of profits in excess of that amount had been caused by volatile market conditions which amounted to an unusual occurrence outside the parties’ contemplation. Accordingly, the charterers were not liable in damages for the owners’ loss of profit The difference between the reasoning of the decisions below (i.e., of majority arbitrators, the High Court and the Court of Appeal) and that of the House of Lords was dependent on how they viewed the actual facts. Was it within the contemplation of the charterers that the owners would have chartered the vessel to another party prior to the expiry of the current charter? All the decision makers said yes, as even counsel for the charterers said yes. Therefore, this was a foreseeable event to the charterers and they should be held liable for the owner’s loss of profit of having to reduce the charter rate for the term of the new charter to


Singapore Comparative Law Review avoid it being cancelled. Fluctuations in charter rates are a given in the shipping market. However, what was not expected was the huge volatility in the charter rates. This was an occurrence which the charterer had not contemplated. Should the charterer be made liable for the owner’s loss of profits in these circumstances, and given the charterer’s understanding of the law that if they returned the vessel late, they would only have to pay the difference, if any, between the old rate and the new rate for the duration of the overrun? The majority judges (with Lady Hale dubitante) held they should not, since neither party would reasonably have contemplated that an overrun of nine days would “in the ordinary course of things” would cause the owners the kind of loss for which they claimed damages. That loss was not the “ordinary consequence” of the type of breach which had happened. The loss occurred only because of the extremely volatile market conditions which produced both the owners’ initial (particularly lucrative) transaction, with a third party, and the subsequent pressure on the owners to accept a lower rate for that fixture. Perhaps the most interesting issue that the writer should have interrogated was that if The Achilleas had been heard in Singapore, would the SGCA have reached the same outcome as the House of Lords? 22.

Is the constructive trust an institution, a remedy, or both?

In her article Remedying the Remedial Constructive Trust , Allison Wu analyses the current position of the remedial constructive trust in both the UK and Singapore. She finds that English law and Singaporean law have substantially adopted similar positions towards the remedial constructive trust. Singaporean law has introduced an institutional constructive trust for proprietary restitution and, similarly to English law, has not accepted a genuine remedial constructive trust. She argues that English law is correct to reject the remedial constructive trust because the remedial constructive trust is neither facilitative of certainty nor fairness. The flexibility of the remedial constructive trust undermines the certainty of the law. Furthermore, the remedial constructive trust is also likely to subvert fairness and justice. The remedial constructive trust entails the type and application of discretion which requires an abandonment of the commitment to treating similar cases in similar fashions. However, the writer is concerned that the Singapore courts have shown a willingness to embrace the remedial constructive trust to do justice to the claimant in certain cases, citing the 2001 decision of the Singapore Court of Appeal in Ching Mun Fong v Liu Cho Chit, and the observations of the SGCA in its 2013 decision in Wee Chiaw Sek Anna v Ng Li-Ann Genevieve. The writer makes a convincing case in the context of legal doctrine that the remedial constructive trust should be abandoned because it distracts from the development of the constructive trust for proprietary restitution. The constructive trust as an institution should be defined by rules that provide certainty, and not discretion, leading to certainty in the law. 23.

Common mistake in the law of contract – is there a place for equity?

In his article An Inequitable Mistake? The United Kingdom’s Abolishment of Mistake in Equity Contrasted With Singapore’s Approach, Isaac Ng examines Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd, in which the English Court of Appeal held that where a contract is not void at common law for common mistake, there is no jurisdiction in equity to grant rescission on the basis that such a contract is voidable in equity. The Court held that Lord Denning’s much lauded judgment in Solle v Butcher, which was itself a Court of Appeal decision, should not be followed as it was inconsistent with the decision of the House of Lords in Bell v Lever Bros Ltd. Lord Denning declined to follow Bell because the issue of equitable jurisdiction was not argued in the House of Lords. The writer regards the decision in Great Peace Shipping an inequitable mistake, and prefers the decision of the Singapore Court of Appeal decision in Chwee Kin Keong and others v Pte Ltd [2005] SGCA 2, [2005] 1 SLR(R) 502 where the SGCA distinguished Great Peace on the facts – that it was a case of common mistake, whilst Digilandmall was a case of unilateral mistake. Further, the SGCA affirmed its role in ensuring just outcomes, especially to protect


Singapore Comparative Law Review innocent third parties, defended mistake in equity, noting the importance of providing remedial flexibility to achieve justice. The SGCA’s position implied that the decision in Great Peace would not be followed in Singapore even in the case of common mistake – which the SGCA later expressly stated in Olivine Capital Pte Ltd v Chia Chin Yan [2014] SGCA 19, [2014] 2 SLR 1371, [69], [71]. The SGCA observed in the 2014 decision at [77] that “Equity is dynamic. A great attribute, thus an advantage, of equity, is its flexibility to achieve the ends of justice.” It may be noted that s 3 of the Application of English Law Act 1993 provides as follows: (1) The common law of England (including the principles and rules of equity), so far as it was part of the law of Singapore immediately before 12th November 1993, shall continue to be part of the law of Singapore. (2) The common law shall continue to be in force in Singapore, as provided in subsection (1), so far as it is applicable to the circumstances of Singapore and its inhabitants and subject to such modifications as those circumstances may require. Can the Singapore courts depart from the strict and rigid approach of the common law of England under this section – that the circumstances in Singapore justify such a departure? Would such a circumstance be the Practice Statement (Judicial Precedent) [1994] 2 S.L.R. 689, C.A? 24.

Should the distinction between liquidated damages and penalties be abolished?

In their article Refusing to Reinvent the Wheel: The Reaffirmation of the Dunlop Test in Singapore , Samuel Teo and Samuel Wittberger analyse judgment of the Singapore Court of Appeal in Denka Advantech Private Limited & another v Seraya Energy Pte Ltd & another (‘Denka’). The judgment, after surveying developments in the penalties doctrine across the common law world, rejects the reformulation of the test for penalty clauses by the UK Supreme Court (‘UKSC’) in Cavendish v Makdessi; ParkingEye v Beavis (‘Cavendish’ or ‘Cavendish appeals’), and endorses the continued applicability of the test articulated in Dunlop Pneumatic Tyre Company, Limited v New Garage and Motor Company, Limited (‘Dunlop’) in Singapore. The authors conclude that the reaffirmation of the Dunlop test in Singapore is a welcome development. It is not only more faithful to the origins and objective of the penalty doctrine, but also avoids the uncertainty associated with the Cavendish reformulation. In Denka, neither counsel argued that the SGCA should take the bold step, nor recommend that Parliament intervenes by legislation, that the basic principle of the common law should be that damages for breaches of contract are compensatory in nature. The distinction between fixed, or liquidated damages and compensatory damages should be done away with. Liquidated damages are enforceable under the current legal regime if they are a genuine pre-estimate of the loss caused by the breach. If not, the damages are penal and are hence unenforceable. Despite the issue of this classification, courts often award normal (unliquidated) damages. What is a genuine or non-genuine pre-estimate of damages? Many economic and intellectual resources are usually expended to decide this issue. These efforts are fruitless, when the court can simply hold that the claimant has the burden of proving his loss at the time of the breach, and disregard liquidated damages which are fixed when the contract is entered into. Such a ruling would not only simplify the law, but also bring coherence to the common law principle that damages are compensatory in nature. The SGCA is free to set a new direction for the common law in Singapore pursuant to Application of English Law Act 1993. To this end, section 75 of the Contracts Act of Malaysia which abolishes the distinction between liquidated damages and a penalty and allows the court to award reasonable compensation up to the amount of the liquidated damages (but not beyond) reflects faithfully the basic principle in the law of contract - that parties are free to agree on the terms of their bargain.


Singapore Comparative Law Review 25.

Arbitration – to hear, or not to hear?

In their article Awards Rendered in Remote Hearings in International Arbitration: To Set Aside Or Not To Set Aside?, Samuel Teo and Samuel Wittberger examine the issue of whether virtual or hybrid hearings in international arbitration may be set aside if the lex arbitri is Singapore law or English law. The writers conclude that except for certain exceptional circumstances which give rise to a breach of natural justice, remote hearings under Singapore law or English law are unlikely to give rise to credible grounds for setting aside proceedings in both jurisdictions. A simpler and easier way to consider the issue is to ask whether parties to an arbitration are entitled to a physical hearing. Since arbitration is consensual, if the parties have provided for a physical hearing in the arbitration agreement, then no arbitral hearing will be entitled to hold a remote hearing without the consent of both parties. Where the parties have not stipulated a physical hearing, which is often the case, an ad hoc arbitrator is in exactly the same position. Where the parties stipulate an institutional hearing, e.g., under the SIAC Rules, it depends on the provisions of those rules. Institutional rules seldom address this issue. Instead, as a rule of prudence, arbitrators do not conduct hearings against the objection of one party to the arbitration to a virtual hearing. This raises an important practical issue - most parties would want to complete the arbitration process, except perhaps respondents who find it in their interest to delay the hearing as long as possible. Hence, the problem is usually resolved by the advice provided by legal counsel. Conclusion I would like to commend all the contributors to this edition of the SCLR. I am heartened by the time, interest and enthusiasm demonstrated by these law students through their articles, especially their keen utilisation of electronic resources. Chan Sek Keong Chief Justice 2006-2012 Attorney General 1992-2006 Judge/Judicial Commissioner 1982-1992 12 August 2021


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United Kingdom Singapore Law Student’s Society (UKSLSS) Executive Committee 2020-2021

Kathleen Teo President

Lauren Goh Vice President

Chow Yun Kei General Secretary

Remus Joel Wong Marketing Director

Phoenix Gay Editor-In-Chief

Tan Jing Yan Sponsorship Director

Andrew Young Finance Director


Singapore Comparative Law Review

Singapore Comparative Law Review 2021 Editorial Committee Editor-in-Chief

Vice President

Phoenix Gay

Lauren Goh

Managing Editors Darren Leow

Joseph Khaw

Lynette Koh

Associate Editors Alexander Yean

John Yap

Pang Kar Lok

Phillip Mahboobani

Zachary Soh

Huang Shi Yun

Zachery Liu

Tessa Liew

Timothy Koo

Nickolaus Ng Cong Hin

Yeo Zhi Kai


Singapore Comparative Law Review

President’s Address Dear Readers, It goes without saying that the COVID-19 pandemic has posed unprecedented challenges for the United Kingdom Singapore Law Students’ Society (‘UKSLSS’). As if law school itself was not stressful enough, various COVID-19-related restrictions meant that many of our members adjusted to attending ‘Zoom university’. While some of our members weathered surging infection rates during their studies in the UK, most of our members attended university remotely from Singapore. The latter had the added challenge of staying up into the wee hours of the night to attend online lessons held in the UK time zone. However, despite these trials and tribulations, our members have shown incredible resilience, adaptability, and perseverance. This is very much reflected in the UKSLSS' achievements over the last academic year, and in particular, this year's edition of the Singapore Comparative Law Review (formerly known as Lexi Loci). The Singapore Comparative Law Review is the pride and joy of the UKSLSS. It is a legal journal that is entirely student-run and allows our members to analyse and evaluate legal developments in Singapore and the UK through an explorative and comparative lens. This year’s edition celebrates its 16 th year of publication. It is the culmination of the hard work put in by our Editor-in-Chief, Phoenix Gay, her Editorial Committee, the 29 writers that have contributed to it, and our Vice-President, Lauren Goh, for overseeing the editing and publishing process. They have done a fantastic job to ensure that this year's edition is reflective of recent developments in legislation across both Singaporean and UK jurisdictions, and the profound impacts that pandemic-related legislation has had on society. Our gratitude goes to the gracious foreword by our patron, former Chief Justice Chan Sek Keong, as well as Mr Edwin Tong S.C., Singapore's Minister for Culture, Community and Youth and Second Minister for Law, for providing an incredible insight into the Singapore Government's responses to the pandemic and the legal issues associated with it. I am incredibly appreciative of the efforts by everyone involved in the procurement of this year's edition. I hope that you will be similarly inspired by the high calibre of work produced to get involved with our Society’s editorial work. I would also like to note that the UKSLSS’ editorial work was expanded this year to include Laws & Found, a weekly email commercial awareness news-blast, and the Legal Lion, a quarterly newsletter. These publications have benefitted our members greatly and have given our writers and editors in the News-blast and Newsletter Subcommittees the opportunity to hone their skills. Furthermore, Remus Wong (Marketing Director) and Kelvin Ng (Design Director) have worked tirelessly to aid Phoenix with the novel creation of a video interview series, primarily featuring interviews conducted with our Board of Advisors – Mr Hoon Chi Tern (Rajah & Tann), Mr Paul Tan (Clifford Chance), Ms Shobna Chandran (Tan Rajah & Cheah) and Mr Josephus Tan (Invictus Law Corporation). I wish to thank them for supporting the Legal Lion, and to thank all of our contributors for bringing Laws & Found, the Legal Lion, and the interview series to life. I sincerely hope they will become indispensable parts of our Society's editorial work as is the Singapore Comparative Law Review. Navigating unchartered waters by organising all of our UKSLSS events virtually has proven to be a blessing in disguise. The convenience of attending events remotely has drawn more members to attend the Society’s events than ever before - participation rates were doubled for nearly every event in comparison to previous years. For example, The Vacation Scheme Helpdesk, organised in conjunction with the Singapore Young Professionals Youth Network, and the Bar Careers Talk saw record turnouts by members who sought to gain insights into working in the UK from UK-based Society alumni. We also made efforts to invest in and reach out to our future UKSLSS members by hosting the inaugural Pre-University Webinar, for which we


Singapore Comparative Law Review welcomed 230 students from various Junior Colleges and polytechnics to hear our University Representatives share their experiences at university thus far. The online platform has also enabled the UKSLSS to explore new grounds and be even more creative with engaging our sponsor firms. For the first time, we organised the Clifford Chance Networking Event and Virtual Recruitment Teas with Allen & Gledhill and Rajah & Tann to provide a platform for our members to explore their career opportunities despite being physically separated. We also held the UKSLSS MiniMooting Competition with Drew & Napier, notably, the first time the UKSLSS has independently organised a competition. The incredible amount of interest in the competition demonstrates an intense desire among our members to collaborate with students from other UK universities to hone their legal skills. These events also reflect a sustained interest in Singaporean law students in the UK by our sponsor firms. The fact that we welcomed Shook Lin & Bok and Drew & Napier as Silver-tier sponsors, and Kennedys Legal Solutions as a Bronze-tier sponsor this year is a testament to this. I wish to express my gratitude to all our sponsor firms, existing and new, for their continued support of the UKSLSS in these trying times. The UKSLSS’ exponential growth this year would not have been possible without the expansions made to our internal committee structures. In addition to the News-blast and Newsletter Subcommittees, the Marketing Subcommittee was inaugurated to bolster the Society’s online presence, primarily through creating an Instagram account (@theukslss) and reinvigorating the Society's LinkedIn page. The 12 University Representatives who served us this academic year have been incredibly enthusiastic - many helped to organise and facilitate our events while contributing to the Society’s editorial work. Finally, the rest of the Executive Committee: Lauren Goh (Vice-President); Yun Kei Chow (Secretary); Jing Yan Tan (Sponsorships Director); Remus Wong (Marketing Director); Andrew Young (Finance Director) and Phoenix Gay (Editor-in-Chief) have dedicated their time and effort to running the UKSLSS. I wish to thank everyone for their dedication to serving the Singaporean law community in the UK and helping the UKSLSS grow strength to strength in the face of much adversity. Last but not least, I would like to say a huge thank you to all of our members. Your unwavering support and engagement this year has allowed us to put the UKSLSS in a prime position to face future challenges arising from the ongoing pandemic and the digital world. As the following Executive Committee takes over in September 2021, I hope you will continue to support the UKSLSS by joining our subcommittees, getting involved in our editorial work (such as by contributing to the next edition of the Singapore Comparative Law Review), and by participating in our events. I guarantee that doing so will allow you to hone your legal skills, explore your career opportunities and most of all, establish meaningful connections with Singaporean law students from other universities that will last a lifetime and enrich your university experience. Yours sincerely, Kathleen Teo President of the United Kingdom Singapore Law Students’ Society (‘UKSLSS’)


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Editorial Foreword Dear Readers, After eight months of researching, writing, and editing, the hard work of all our writers and editors has finally come into fruition. The UKSLSS is proud to present to you this 2021 edition of the Singapore Comparative Law Review (‘SCLR’). The SCLR 2021 is unlike any other. It is a labour of love, sweat and tears (mostly our Vice-President’s, Lauren’s, and mine) that has been stitched together by writers based in different time zones across different parts of the world, who were all getting to grips with the ‘new normal’ that the pandemic has compelled us to accept. Despite various international lockdown orders and social restrictions, isolation has clearly not hindered our legal and academic creativity and craftsmanship. In this edition, we explore socio-political and legal issues through new lenses. While there is no singular theme associated with this year’s edition, I think the word ‘reinvention’ best captures the essence of this journal. Reinvention manifests not only in terms of legislation and policies, but also in the perspectives and mindsets we have of how we want to live our lives under the ‘new normal’. Traditionally, the SCLR has been divided into different segments comprising articles, case notes, and sociolegal commentaries. This year, the SCLR has given writers greater flexibility of substance and form. The editorial committee gratefully received many interesting pieces, from an in-depth discussion of the intersection of Artificial Intelligence and intellectual property laws to public and administrative legal issues. While maintaining a comparative analysis of the UK and Singaporean legal systems and cultures, the writers have also been free to find a tertium comparationis in other jurisdictions, such as China, Australia, and India, just to name a few. Locally, they have investigated broader horizons and proposed insightful reform suggestions. Whether readers find purchase in these critiques, these pieces all aim to reinvent the current system – only when we leave terra firma behind, explore uncharted waters, and spread our wings in wider skies, can we truly take flight. Most importantly, this reinvention requires a reinvention of our mindsets. If we see things in a different light, challenges transform into opportunities. This edition comprises a total of 26 contributions, including a piece by Mr Edwin Tong SC, the Minister for Culture, Community and Youth and Second Minister for Law. At the Ministry of Law, he focuses on the development and promotion of Singapore’s legal and dispute resolution sector. He also handles wideranging aspects of law reform, including intellectual property, corporate restructuring and insolvency. Significantly, Mr Edwin Tong SC played a significant role in the enactment of the recent COVID-19 temporary measures legislation. The UKSLSS is honoured by his contribution, an insightful piece on the enactment, development, and implementation of the COVID-19 temporary measures legislation in Singapore. As I write my foreword, Mr Edwin Tong is currently attending to the Tokyo 2020 Olympics in Japan. I wish to thank him for taking the time in his busy schedule to contribute to this edition of the SCLR. As Editor-in-Chief, I am deeply heartened not only by the finished consolidation of these intellectual and explorative articles, but also each writer’s resilience and motivation in their contributions – articulating their stance and probing deeper into legal issues when challenged and constructively criticised by their editors. As Thoreau once wrote, ‘[t]o be awake is to be alive. I have never yet met a man who was quite awake’. It is the interrogations and revisions that have enriched, developed, and completed each article, and we owe these instrumental contributions to all the editors. Truly, a comparative journal takes a whole village to produce.


Singapore Comparative Law Review Last but not least, the UKSLSS is immensely grateful for the unwavering support and insight of our esteemed patron, former Chief Justice, Justice Chan Sek Keong. Justice Chan has reviewed our law journal since it was known as ‘Lex Loci’. His insightful commentary adds yet another layer of analysis to the legal issues discussed. The array of viewpoints considered in each issue is what that makes the SCLR so meaningful. To conclude, I would like to borrow the words of Margaret Atwood, that, ‘[p]ublishing a book is like stuffing a note into a bottle and hurling it into the sea. Some bottles drown, some come safe to land, where the notes are read and then possibly cherished, or else misinterpreted, or else understood all too well by those who hate the message. You never know who your readers might be.’ Regardless of your own critique of the 26 pieces in this edition, I hope you appreciate the immense time and effort involved in the production of the SCLR 2021. Ultimately, the agenda of the SCLR is to inspire readers not necessarily to agree, but to reflect. Publishing the SCLR is like participating in The Olympics – the flame of knowledge and life ignited in the SCLR 2021 does not extinguish just here. With that, I would like to pass the torch forward. May its flames burn more brightly than before in each SCLR edition to come. Yours sincerely, Phoenix Gay Editor-In-Chief




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PART A: Keeping Safe in a Dangerous Time – COVID-19 and its Mutants


Singapore Comparative Law Review

Singapore Government’s Responses to the COVID-19 Crisis – An Overview and Analyses of the Salient and Novel Legal Issues Mr Edwin Tong SC The COVID-19 crisis has affected virtually every country in the world. Beyond the cost of human casualties, which has numbered more than 170 million infections and more than 3.5 million deaths as of June 2021,1 the pandemic has also caused massive economic disruptions to Singapore and the world. As an open economy which is intricately connected to the rest of the world, Singapore has not been spared. The Singaporean economy faced both demand and supply-side shocks, including a fall in external demand for goods and services produced in Singapore which was caused by the economic slowdown in major economies, global travel restrictions, supply chain disruptions, and the implementation of the Circuit Breaker measures domestically from April to June 2020.2 Singapore’s Gross Domestic Product (‘GDP’) shrank by 5.8% in 2020, marking the first annual contraction since 2001 and the worst recession since Independence. 3 The Government’s Responses Amidst the pandemic, the Singapore Government rolled out various crisis management measures to minimise and cushion the economic impact, preserve jobs and capabilities, and support households. First, the Ministry of Finance passed a total of four budgets in 20204 which committed close to S$100 billion of support measures to deal with COVID-19. Some of the key measures to support businesses and workers included the Job Support Scheme, which provided wage support to employers, in which firms in the hardest-hit sector received the most support. Other key measures included the SGUnited Jobs and Skills Package to help Singaporeans access immediate short-term as well as longer term job opportunities and acquire job-related skills and capabilities. In addition, the Self-Employed Person Income Relief Scheme provided cash pay-outs to self-employed persons with less means and family support whose livelihoods have been affected by COVID-19. The COVID-19 Support Grant and COVID-19 Recovery Grant also provided temporary financial support to workers in lower- to middle-income households that had suffered job loss or significant income loss due to COVID-19. Second, the Monetary Authority of Singapore worked with banks on a series of voluntary initiatives by the financial institutions, such as the deferment of payments on mortgages. Third, the focus of this article, the Ministry of Law (‘MinLaw’) introduced legislation to provide reprieve to affected businesses and individuals. MinLaw enacted the COVID-19 (Temporary Measures) Act (‘COTMA’), which was amended seven times to refine Singapore’s response to the evolving COVID-19 situation, and also introduced the Simplified Insolvency Programme (‘SIP’) and Sole Proprietors and Partnerships (‘SPP’) Scheme to provide distressed small businesses with an avenue for simplified and costefficient debt-restructuring and insolvency proceedings. 1

World Health Organisation. 1 June 2021. Singapore Ministry of Trade and Industry Feature Article. “Performance of the Singapore Economy in 2020”. 15 Feb 2021. 3 Channel News Asia. “Singapore economy shrinks a record 5.8% in a pandemic-hit 2020”. 4 Jan 2021. 4 Namely, the “Unity Budget”, the “Resilience Budget”, the “Solidarity Budget”, and the “Fortitude Budget”. 2


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This article provides a brief overview and analysis of the salient or novel legal issues arising from some of the key relief measures introduced by MinLaw, namely: a. b. c. d. e.

Relief for inability to perform contractual obligations under Part 2 of COTMA; Rental relief framework under Part 2A of COTMA; Relief for contracts affected by construction delays under Part 8 of COTMA; The Re-Align Framework under Part 10 of COTMA; and The SIP and SPP Scheme.

Relief for inability to perform contractual obligations under Part 2 of COTMA To meet this unprecedented economic challenge arising from COVID-19, MinLaw worked swiftly to introduce the COTMA, which was passed by Parliament on 7 April 2020,5 just two and a half months after the first case of COVID-19 was reported in Singapore on 23 January 2020. The COVID-19 pandemic disrupted the performance of contractual obligations throughout the economy. Parties were prevented from meeting their obligations by shortages of manpower, supplies and movement restrictions imposed to stem infections. Most contracts would not have accounted for such vitiations, as parties would not have foreseen the occurrence of a pandemic, let alone one with such drastic consequences. Without legislative intervention, unfair and undesirable consequences would ensue - parties who defaulted on their obligations through no fault of their own would be subject to the payment of damages. While it took only nine days from conception to delivery in Parliament, the decision to intervene was not taken lightly. The sanctity of contract is fundamental to Singaporean law and a key aspect of the Rule of Law. The law of contract is premised on parties fulfilling promises made to each other pursuant to a legal agreement between them. If parties were allowed to walk away from contracts simply because they felt that the the agreement they had entered was no longer advantageous, chaos would ensue. Therefore, the Government’s intervention was well justified, to safeguard the vital interests of Singaporeans and the economic structure upon which communal good depends. Nobody could have foreseen COVID-19, which has severely affected the performance of certain contracts, through no fault of the parties. Part 2 of COTMA provides relief for individuals and businesses who are unable to perform their obligations under specified categories of contracts, where such inability is or was materially caused by COVID-19. Relief under Part 2 is initiated when a party serves a Notification for Relief (‘NFR’) to their contractual counterparties (and other related parties such as its guarantor or surety). This initiates a temporary moratorium against certain legal and enforcement actions. Such actions include 6 the commencement of court and insolvency proceedings, enforcement of security over immovable and movable property used for business or trade, and the termination of leases of non-residential premises following the non-payment of rent. This moratorium is temporary and will only apply for a prescribed period. 7 The objective of the 5

The COTMA was put together in only about 9 days. This was also one of the very few rare occasions where a Bill was passed under a Certificate of Urgency signed by the President, which allowed all three readings of the Bill to be taken in one Parliament sitting. 6 Sections 5(3) of the COTMA and Reg 3A of the COVID-19 (Temporary Measures) (Temporary Relief for Inability to Perform Contracts) Regulations. 7 The prescribed period commenced on 20 April 2020. The prescribed period for the purposes of Part 2 was originally set at 6 months (i.e. supposed to expire on 19 October 2020). It was subsequently extended for various


Singapore Comparative Law Review temporary moratorium was to provide parties with breathing space and an opportunity to reach a mutually acceptable solution in light of the changed circumstances.8 The temporary moratorium under Part 2 was carefully calibrated to be no broader than necessary. Generally, parties may only obtain relief under Part 2 if the contract was entered into before 25 March 2020 (this was the day after the government introduced stricter measures 9 to further minimise the spread of COVID-19), if the obligations under the contract were to be performed on or after 1 February 2020 (this was when COVID-19 first started to affect Singapore’s economy), the contract was a contract listed in the First Schedule of COTMA (‘Scheduled Contract’),10 if the party is or was unable to perform its obligations under the contract, and such inability is or was materially due to COVID-19. These criteria ensured that the relief measures applied only to those who were unable to perform their contractual obligations because of COVID-19. One of the novel features of COTMA was the introduction of a process by which disputes are resolved by independent Assessors appointed by the Minister for Law. Such Assessors, who are professionals from the legal, accountancy, business, academic and Government sectors, help to promote the expeditious resolution of disputes, with a view of securing just and equitable outcomes in the circumstances of each case. The Assessors are guided by senior and experienced District Judges, who serve as Lead Assessors. In in the context of Part 2 of COTMA, one of the key functions of Assessors is to determine whether the conditions for obtaining relief have been met. For example, there may be disputes over whether a contract was a Scheduled Contract, or whether a party’s inability to perform their contractual obligations is or was materially due to COVID-19. In the case of event or tourism-related contracts, upon receiving a NFR, the vendor would be prohibited from forfeiting the deposit or imposing a cancellation fee. This however, would not mean that the deposit was to be returned in full to the customer, or that the contract was to be cancelled with no payment to the vendor. Instead, after the service of the NFR, the parties would be encouraged to negotiate and reach a mutually agreeable solution with respect to the deposit and the contract. If the parties were still unable to reach an agreement, either party may apply for an Application for an Assessor’s Determination. The Assessor must then determine the relief applicable, with a view of achieving an outcome that is just and equitable in the circumstances.

categories of contract, as they continue to be impacted by COVID-19. The prescribed period has since expired for most of the prescribed categories of contracts, except for those relating to the Built Environment sector. 8 On top of the temporary moratorium, Part 2 provides additional reliefs in relation to two specified categories of contracts, namely: (a) event or tourism-related contracts, where deposits cannot be forfeited or cancellation fees levied, unless the forfeiture or payment of cancellation fee is determined by an Assessor to be just and equitable, and (b) construction or supply contracts, where a party in whose favour a performance bond is made may not call on the bond until 7 days before the performance bond expires. In addition, any delays caused by COVID-19 from 1 February 2020 to the end of the prescribed period will be disregarded in calculating any damages payable. Further, the fact that a contractor or supplier is unable to perform his obligation to supply goods or services due materially to COVID-19 is a defence to a claim for breach of contract. 9 On 24 March 2020, the Ministry of Health (MOH) had introduced tighter measures to miminise the further spread of COVID-19. These included limiting gatherings outside of work and school to 10 persons or fewer, and ensuring that physical distancing of at least one metre can be achieved in settings where interactions are non-transient. 10 The type of contracts covered by the Act are set out in the First Schedule to the Act. The Schedule may be added on or varied by the Minister through subsidiary legislation (see section 18(1) of the Act). These contracts comprised, amongst others, (a) construction and supply contracts; (b) event and tourism-related contracts; (c) hire-purchase and conditional sales agreements for commercial equipment and vehicles; (d) certain secured loan agreements to Small and Medium Enterprises; and (e) leases and licenses of non-residential property. These contracts were assessed to be particularly badly affected by COVID-19.


Singapore Comparative Law Review To give an example of how Assessors seek to achieve a just and equitable outcome, consider a contract for a wedding banquet. Imagine a couple and a hotel entered into a contract for the wedding banquet and the couple paid a deposit. However, the banquet was unable to proceed because of COVID-19. In such a situation, the couple wished to cancel the contract and have the deposit refunded. However, the hotel disagreed, wishing instead to forfeit the deposit and even sought to impose cancellation fees. The hotel could be entirely within its contractual rights to do so. However, this would result in an unfair outcome, given that COVID-19 was unexpected and unprecedented. Part 2 of COTMA was hence designed to allow Assessors to consider the positions of both parties and to make a determination that would be just and equitable in the round. In the above situation, the Assessor may determine that the contract should be cancelled and the deposit refunded to the couple, after deducting costs that the vendor had incurred. Such a refund could either be in the form of cash, credits or vouchers, or both. Should the Assessor determine that refunds be made, the Assessor may also decide the time by which the refund must be made, after considering the facts and circumstances such as the vendor’s financial circumstances. Having Assessors make such determinations provides a cheaper, faster, simpler, and less adversarial alternative to litigation, which would instead involve substantial time, effort and money that parties would be even less able to afford in a pandemic. Legal representation in Assessor determinations is would generally not allowed, unless the Assessor holds otherwise. 11 An application for an Assessor’s determination is also free of charge. To ensure efficiency and finality of the determinations, an Assessor’s determination is not appealable. Providing for a temporary moratorium under Part 2 has been effective in helping parties privately settle contractual disputes. From 20 April 2020 to 10 May 2021, a total of 9,099 NFRs were served. Of these, 2,070 applications for an Assessor’s determination were submitted. This suggested that many of those who submitted NFRs managed to reach a mutual agreement with their counterparties without the need for an Assessor’s Determination. Rental relief framework under Part 2A of COTMA By June 2020, two months after COTMA was implemented, the COVID-19 situation had deteriorated on a global scale. Infections and deaths had increased five times, and the worldwide economic shock of the pandemic was deepening. Singapore was in the midst of a “circuit breaker” 12 and the local economic outlook had worsened. 13 Various Government measures, such as the Jobs Support Scheme, had been implemented to help with manpower costs. However, many Small and Medium Enterprises (SMEs) continued to face difficulties meeting their rent obligations. While many landlords had provided assistance to their tenants, the concessions had been uneven. It was unrealistic to expect market forces to reach a fair equilibrium in rent obligations in this climate. The Government recognised this was an exceptional circumstance where substantive intervention was warranted to help the SMEs.


Section 14 of COTMA. Singapore implemented “circuit breaker” measures to pre-empt the trend of increasing local transmissions of COVID-19 from 7 April 2020 to 1 June 2020. The measures included closure of most physical workplace premises except businesses providing essential services and in selected economic sectors which are critical for local and global supply chains. See Impact of the Circuit Breaker and Budget Measures in Response to COVID-19, Economic Survey of Singapore Second Quarter 2020, August 2020, Ministry of Trade and Industry. 13 Singapore’s economy was forecast to contract up to 7%, and it was still uncertain when the Circuit Breaker measures would be lifted, and recovery in Phase Two was expected to be slow. F&B and retail businesses especially were suffering from reduced demand and revenue, even as they continued to incur fixed costs like manpower and rent. 12


Singapore Comparative Law Review MinLaw introduced the Rental Relief Framework through the COVID-19 (Temporary Measures) (Amendment) Bill on 5 June 2020. The Rental Relief Framework under Part 2A of COTMA came into effect on 31 July 2020. It established an equitable co-sharing of rental obligations between the Government, landlords and tenants, through the provision of rental waivers to eligible SMEs and non-profit organisations (‘NPOs’), as shown in the table below. The Government-supported portion of rental waivers, referred to as Rental Relief, was provided for through property tax rebate and a government cash grant to the property owner. Duration of Rental Relief Type of Relief

Qualifying Commercial Properties (e.g. Shops)

Other Non-residential Properties (e.g. Industrial/ Office Properties)

(A) Rental Relief (supported by Government assistance) Rental Waiver

2 months (for April to May 2020)

1 month (for April 2020)

(B) Additional Rental Relief (supported by landlords/ property owners) Rental Waiver

2 months (for June to July 2020)

1 month (for May 2020)


4 months (for April to July 2020)

2 months (for April to May 2020)

The Rental Relief Framework was designed to support rental payments to eligible tenant-occupiers14 in the period of April to July 2020. It applied to qualifying leases or licences that were (i) entered into before 25 March 2020,15 and (ii) in force at any time between 1 April to 31 July 2020 (for commercial properties) or 1 April to 31 May 2020 (for other non-residential properties). To give effect to the rental waivers, the Inland Revenue Authority of Singapore (‘IRAS’) issued notices of cash grants to qualifying property owners, i.e., owners of property with eligible tenant-occupiers. The notice informed property owners of the rental waivers they should provide to their tenants, and that the property owners were required to serve a copy of this notice to their tenants within 4 working days to ensure their tenants had timely confirmation that they were eligible for rental waivers. Once the property owner received the notice of the cash grant, the applicable rent and any interest payable on the rent would be statutorily waived, and tenants would not need to pay rent for the months covered by the Rental Relief Framework, unless other factors applied (e.g. offsets to rental waiver if landlord had previously voluntarily provided financial relief to tenants). The majority of notices of cash grants were issued automatically based on the information available to IRAS. However, some qualifying property owners may not have received a notice of cash grant due to a lack of information, or complicated tenancy arrangements. In such cases, provisions were made for eligible tenant14

For Rental Relief: The tenant-occupier has to be a SME/NPOs with less than $100 million revenue for FY2018 or later appropriate period. For Additional Rental Relief: The tenant-occupier has to have suffered more than 35% drop in average monthly gross revenue at the outlet level due to COVID-19, and if the tenant occupier is an SME, it has to have less than $100mil of revenue at the group level. 15 Ibid. 14


Singapore Comparative Law Review occupiers, or property owners with eligible tenant-occupiers to submit a manual application to IRAS for a notice of cash grant.16 As of 24 May 2021, 117,363 notices of cash grant had been issued. This comprised 105,494 automatic notices, and 11,869 notices issued pursuant to applications. To give landlords certainty as to their tenant’s eligibility for rental waivers and to address potential disagreements between landlords and tenants, the Rental Relief Framework empowered property owners or landlords to request that tenants provide the relevant information to prove their eligibility for Rental Relief and/or Additional Rental Relief. If landlords and tenants were still unable to reach an agreement, the Rental Relief Framework also provided a rental relief registry that landlords and tenants could submit applications to for a rental relief assessor to determine (a) whether a tenant was eligible for Rental Relief and/or Additional Rental Relief, and (b) the amount of rent to be waived under the framework, considering factors such as duration of occupation during the rental relief period, the extent of sub-division of a property for renting to multiple tenants, and allowable offsets to rental waivers. The rental relief assessor’s determination would be binding on all landlords and the tenant-occupiers, and would not be appealable. As the Rental Relief Framework sought to provide an equitable co-sharing of rental burdens, provisions were made to allow small landlords who had been badly impacted by COVID-19 to halve the amount of Additional Rental Relief provided to the tenant, subject to the certain criteria.17 To qualify for this 50% reduction in Additional Rental Relief, the property owner would have to submit an application to the rental relief assessor to determine that the above criteria had been met. In addition to the rental waivers, the framework also included a repayment scheme that allowed tenantoccupiers that qualify for Additional Rental Relief to repay up to 5 months of accumulated rental arrears over a period of up to 9 months at an interest rate of no more than 3%. Safeguards were also implemented. For example, if the tenant failed to make a payment within 14 calendar days of rent being due, the property owner would be entitled to immediately collect all arrears including interests, and exercise any of their rights under the lease. Relief for contracts affected by construction delays under Part 8 of the COTMA During the “circuit breaker” period, most construction work was completely halted. Even after the “circuit breaker”, many construction projects could not fully resume as migrant workers remained confined to their dormitories due to outbreaks of COVID-19 in their dormitories.18 In response to the significant difficulties faced by the construction industry, the Singapore Government provided financial assistance and implemented a series of legislative interventions designed to alleviate these difficulties, which include Part 2 of COTMA. However, the relief measures provided under Part 2 were not sufficient in and of themselves to address the problems faced by the construction industry. Construction projects typically involve a complex web of 16

For tenants that did not receive a notice of cash grant automatically, the Rental Relief Framework provided for a moratorium on enforcement actions against tenant-occupiers for non-payment of rent under the lease or licence agreement. This prohibited landlords with eligible tenant-occupiers from taking enforcement actions, such as terminating the lease, exercising the landlord’s right of re-entry or forfeiture under the lease, or starting or continuing court or insolvency proceedings. 17 The property owner is an individual or a sole proprietor; the annual value of all investment properties owned by the landlord is not more than $60,000; and the rental income from all the properties owned by the property owner has to constitute 75% of the property owner’s total income. 18 Minister for National Development (Mr Desmond Lee), Second Reading Speech for the COVID-19 (Temporary Measures) (Amendment No 3) Bill.


Singapore Comparative Law Review interrelated contracts. Disruption to one contract could impact multiple other contracts. Persons who were not parties to the construction contracts or supply contracts that are affected by COVID-19 but who were parties to indirectly-affected contracts may not meet the qualifying conditions for relief under Part 2. For example, a tenant who was granted a rent-free period to carry out renovation or fitting out works by its landlord. If its contractors are unable to carry out or complete the works during the rent-free period due to COVID-19, the tenant may lose the benefit of the rent-free period. The contractors may be able to seek relief under Part 2 against the tenant. However, the tenant would not be able to seek such relief in respect of the lost rent-free period, as the tenant is able to perform its contractual obligations under the lease agreement. To address these issues, Part 8 of COTMA was passed by Parliament on 5 June 2020. Part 8 was designed to address situations such as that above, where a COVID-19 disruption to a construction, supply, or related contract affected another contract. 19 The descriptions of contracts covered under Part 8 are specifically prescribed under subsidiary legislation. This allows the Government to quickly react to the evolving COVID-19 situation in Singapore by expanding or reducing the scope of the various relief provisions as necessary. The relief available to a party whose contract falls within the scope of Part 8 is highly unusual in a common law jurisdiction. In essence, Part 8 allows the affected contract to be adjusted to take into account the changed circumstances caused (indirectly) by the COVID-19 pandemic. For instance, the manner in which a prescribed obligation or prescribed right in the contract is to be performed or exercised may be adjusted, or a prescribed term in the contract varied, if it is “just and equitable in the circumstances”. This concept of a third party adjusting a contract to take into account changes in circumstances is alien to the common law.20 Frustration, the common law contractual doctrine that addresses a change in circumstances, terminates the contract instead of adjusting it.21 In contrast, multiple civil law jurisdictions have a hardship doctrine, under which parties may ask the court to adjust the contract in response to changed circumstances. 22 For instance, under German law, “adaptation” of a contract may be demanded if there is a change in circumstances which meets certain requirements,23 and parties may pursue this “adaptation” claim before a court.24 Similarly to Part 2, Assessors, and not the Courts, are empowered by Part 8 to adjust qualifying contracts in a just and equitable manner. Steps have been taken to promote consistent determinations. 25 These measures ensure that Part 8 only applies in targeted situations such that affected contracts in those situations are adjusted in a just and equitable manner.


See section 36 of COTMA. For avoidance of doubt, this other contract may also be a construction (or construction-related) contract or supply (or supply-related) contract. 20 See section 5.1 of Berger, K., & Behn, D. (2019-2020). Force Majeure and Hardship in the Age of Corona: Historical and Comparative Study. McGill Journal of Dispute Resolution, 6, 76-[i]. 21 Berger, K., & Behn, D. (2019-2020). Force Majeure and Hardship in the Age of Corona: Historical and Comparative Study. McGill Journal of Dispute Resolution, 6, 76-[i], at p 101. 22 See section 5.1 of Berger, K., & Behn, D. (2019-2020). Force Majeure and Hardship in the Age of Corona: Historical and Comparative Study. McGill Journal of Dispute Resolution, 6, 76-[i]. 23 Section 313, German Civil Code. 24 Berger, K., & Behn, D. (2019-2020). Force Majeure and Hardship in the Age of Corona: Historical and Comparative Study. McGill Journal of Dispute Resolution, 6, 76-[i], at p 124. 25 The following steps were taken. First, the type of cases that Part 8 applied to, and the contractual terms that could be adjusted, were narrowly defined via subsidiary legislation. Second, a list of factors was prescribed for Assessors to take into account. Third, internal guidance was provided to the Assessors on what the Government considered to be just and equitable adjustments to qualifying contracts.


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As at 10 May 2021, 27 applications for an Assessor’s Determination have been made under Part 8 and 10 determinations have been issued. Since the passage of Part 8, Parliament has passed further legislative interventions to provide further targeted relief to address the COVID-19 related issues faced by the construction industry under Parts 8A, 8B, 8C and 10A. These legislative interventions have allowed the Singapore Government to quickly address the complex and unique situations in the construction industry that were brought about by the evolving COVID-19 pandemic. Re-Align Framework As the pandemic progressed and Singapore moved from resuscitating to rejuvenating the economy, a key priority of the Government was to ensure that businesses could look ahead and focus on recovery. 26 Businesses that had been substantially affected by COVID-19 would be allowed to reallocate resources to more productive uses, rather than be bound by long-term contracts which were no longer viable. Such contracts would need to be re-aligned with the current economic conditions and business objectives. While such businesses could have recourse to the common law doctrine of frustration to discharge their contracts, they could end up having to spend substantial resources, time and effort in court. The courts would also be inundated with such cases. It is against this backdrop that in November 2020, MinLaw introduced the Re-Align Framework under Part 10 of COTMA. While the earlier COVID-19 relief measures dealt with the short-term consequences of the disruptions caused by the Circuit Breaker and other COVID-19 related restrictions, the Re-Align Framework was targeted at small and micro enterprises whose business outlooks had been fundamentally affected by COVID-19 even after the Circuit Breaker ended on 1 June 2020 and economic and social activities resumed in a calibrated manner. The Re-Align Framework allowed these businesses to renegotiate selected types of contracts 27 with their counterparties, failing which, they would be able to terminate the contract albeit with fair and just consequences of termination prescribed under COTMA. Generally, this meant that parties seeking to invoke the Re-Align Framework would remain liable for any accrued debts and obligations up to and including the date of termination. Crucially, however, they would be discharged from any contractual obligations after the termination date. A business will be eligible for relief under the Re-Align Framework if (a) its annual revenue for the Financial Year 2019 does not exceed S$30 million on a global group basis; and (b) it has experienced at least a 70% fall in average monthly gross income for July to December 2020 compared to the equivalent period in 2019. This measure was not a step that was taken lightly. The Government carefully considered both the implications as well as the scope of this intervention. Respecting the sanctity of contracts remains a key and fundamental principle that undergirds Singapore’s legal system, even in exceptional times. As with earlier relief provisions, the Re-Align Framework was designed in a targeted manner to apply to the group of businesses that were severely affected by COVID-19.28 As for the annual revenue criterion, the intention 26

Second Reading Speech for the COVID-19 (Temporary Measures) (Amendment No 3) Bill. The Re-Align Framework covers: (1) Leases or licenses for non-residential immovable property which have a term of 5 years or less; (2) Hire-purchase and conditional sales agreements for commercial equipment or commercial vehicles (except agreements entered into with banks and finance companies regulated by MAS); (3) Rental agreements for commercial equipment or commercial vehicles; and (4) Contracts for the supply of goods and services. 28 Second Reading Speech for the COVID-19 (Temporary Measures) (Amendment No 3) Bill. 27


Singapore Comparative Law Review was to cover only small and micro enterprises which often lack the bargaining power to renegotiate the terms of their contracts with their counterparties. The Re-Align Framework provides leverage to allow an affected business to ask for renegotiation with its counterparties. We observed that this was not a legal concept unfamiliar to some major civil law countries, which allows parties significantly affected by an intervening event to invoke the right to renegotiate the contract. If renegotiation is unsuccessful, the party can then apply to court to vary or terminate the contract. For example, Article 1195 of the French Civil Code29 introduced the concept of ‘imprévision’, which is met if the party seeking to invoke the renegotiation can show that (a) there was a change in circumstance, (b) which was unpredictable and of excessive impact, and (c) which was not due to the fault of either party. If the above conditions are satisfied, the party seeking relief may ask its counterparty to renegotiate the contract. If these renegotiations are unsuccessful, the parties may agree to terminate the contract at a date and subject to conditions they are to mutually determine, or ask, by mutual agreement, a judge to adapt the contract. If parties fail to agree after a reasonable time to do so, a judge may, at the request of one party, revise the contract or terminate the contract on a date and on conditions as determined by him. Similarly, in Germany, Article 313 of the Bürgerliches Gesetzbuch (‘BGB’) 30 stipulates that if the circumstances forming the basis of the contract have significantly changed, the affected party can demand the adjustment of the contract. If the adjustment of the contract is not possible or parties cannot reasonably be expected to uphold the contract, the affected party can terminate the contract. This aspect of a right to renegotiate the terms of a contract does not feature in the common law. However, it is viewed as a desirable tool to deal with the COVID-19 pandemic and its unforeseen consequences within the Re-Align Framework. The prospect of termination provides small businesses with the leverage to bring their often larger counterparties (who may otherwise refuse to participate in negotiations) to the negotiating table to discuss the prospects of a re-negotiated contract, which may be a better alternative to termination or litigation. This may result in a win-win situation for both parties. Another aspect of ‘no fault’ termination under the Re-Align Framework is drawn from the principles of frustration. If a contract is terminated under the Re-Align Framework, all prospective obligations after the


Article 1195 of the French Civil Code reads as follows: ‘If a change in circumstance unpredictable at the time of the conclusion of the contract, renders its execution excessively onerous for one of the parties who did not accept to assume the risk, this party may ask the other party to renegotiate the contract. She should execute its obligations during the renegotiation. In a case of refusal or failure for the renegotiation, the parties may agree to terminate the contract at a date and on conditions they determine, or ask, by mutual agreement, the judge to adapt the contract. If parties fail to agree after a reasonable time, the judge may, at the request of one party, revise the contract to terminate it, at a date and on conditions that he fixes’. Translation by Accaoui Lorfing, Pascale in “Article 1195 of the French Civil Code on Revision for Hardship in Light of Comparative Law”, International Business Law Journal, vol. 2018, no. 5, 2018, p. 449-464, HeinOnline. 30 Article 313 of the BGB reads as follows: (1) If circumstances which have become the basis of the contract have changed fundamentally after the contract was concluded, and the parties, had they foreseen this change, would not have made this contract or would have made a different contract, adaptation of the contract may be demanded insofar as one of the parties, consideration all circumstances of the particular case and having regard especially to the contractual or statutory distribution of risk, cannot be reasonably be expected to abide by the unchanged contract. (2) It is equivalent to a change of circumstance if essential assumptions which have become the basis of the contract turned out to be wrong. (3) If adaptation of the contract is not possible or would be too hard on one of the parties, the aggrieved party may terminate the contract. In continuing contracts termination is replaced by giving notice. Translation by W. Lorenz; cited according to Dagmer Coester-Waltjen, The New Approach to Breach of Contract in German Law, in N. Cohen & McKendrick, Comparative Remedies for Breach of Contract (Oxford: Hart Publishing, 2005)


Singapore Comparative Law Review date of termination of the contract will generally be extinguished. However, parties will remain liable for all accrued obligations up to and including the date of termination of the contract. If, however, there are disagreements between parties as to the eligibility of the business, or if parties are unable to agree on the consequences of termination under the Re-Align Framework, parties have recourse to an independent Assessor appointed by the Minister for Law. The Assessor will make a determination as to the eligibility of the affected business or adjust the rights and obligations of the parties upon the termination of the contract, including adjusting the rights and obligations in a manner which differs from the default consequences where it is just and fair to do so. 31 All in all, the Re-Align Framework has been an exceptional, targeted intervention in response to extraordinary circumstances. The Re-Align Framework is intended to protect our economy in the longer term by helping businesses overcome barriers to choose a more economically productive route for themselves. To date, we have observed that the Re-Align Framework has had a positive signalling effect. We received feedback that some parties had successfully renegotiated their contracts after the Re-Align Framework was announced without having to invoke the Framework itself. Additionally, for those that invoked the Re-Align Framework, we also noted that most of these parties managed to reach a mutually acceptable solution by themselves during the Negotiation Period. The SIP and the SPP Scheme Finally, while businesses may avail themselves of the various measures introduced by the Government to seek relief, businesses in more dire financial straits may require radical structural adjustments through formal insolvency proceedings. As a result of the COVID-19 pandemic, researchers have forecast global business insolvencies to increase by 35% by 2021. Those expected to bear the brunt of the economic fallout from the pandemic are small businesses, which form about 95% of the enterprise landscape in Singapore. Since 2015, Singapore has made significant strides in ensuring that its insolvency legislation is progressive and robust. 32 However, these reforms were not previously designed with the multi-faceted effects of a global pandemic in mind. Recognising that small businesses would benefit from simpler, faster and lower-cost insolvency proceedings, the SIP was introduced on 29 January 2021. It comprised of the following temporary programmes for micro and small companies (‘MSCs’): 33 a. The Simplified Debt Restructuring Programme (‘SDRP’) enables viable MSCs to restructure their debts, with a view of placing the business on a firmer financial footing and eventually emerge stronger after the pandemic. The SDRP is targeted at companies which are in positions to renegotiate with their creditors, or where there is a ready investor. Modelled on the existing prepackaged schemes of arrangement introduced in 2017 that streamlines the debt restructuring process, the SDRP is further tailored to meet the needs and specific features of MSCs.


Second Reading Speech for the COVID-19 (Temporary Measures) (Amendment No 3) Bill. The Insolvency, Restructuring and Dissolution Act 2018 (‘IRDA’) commenced on 30 July 2020. The IRDA incorporates relevant provisions from the then-Bankruptcy Act and Companies Act into a single new statute, which also builds on amendments made to the then-Bankruptcy Act in 2015 and amendments made to the Companies Act in 2017. 33 Micro and small companies are companies with annual sales turnover (revenue) not exceeding S$1 million and S$10 million respectively. 32


Singapore Comparative Law Review b. The Simplified Winding Up Programme (‘SWUP’) enables MSCs which businesses have ceased to be viable to wind up. The SWUP provides a simpler and more streamlined framework for the orderly winding up of MSCs, as compared with a typical winding up which entails an application to Court or the convening of various meetings of the company and creditors. Where an eligible MSC is accepted into the SWUP, the Official Receiver steps in as the liquidator and administers the winding up. Costs are lowered in the SWUP as the liquidator is not required to convene creditors’ meetings and given the simpler nature of the businesses, is not expected to initiate or defend legal proceedings. The SIP benefits all stakeholders of MSCs, including creditors, employees and trading counterparties, by reducing the time taken and providing an avenue to maximise recovery. The importance of bespoke insolvency processes suited to small businesses, particularly during the COVID-19 pandemic, is underscored by developments in other countries. For example, on 1 January 2021, Australia brought into force simplified debt restructuring and winding up processes catered to small businesses, recognising the challenges faced by the Australian insolvency system. Similarly to Singapore, these simplified processes aim to reduce costs of access to the insolvency system and reduce the time and cost of the insolvency process, in order to help more small businesses to survive. 34 Besides the SIP (which applies only to incorporated entities), a complementary scheme was launched to assist small businesses operating as sole proprietorships or partnerships on 2 November 2020. The SPP scheme was developed and administered by a registered charity, Credit Counselling Singapore (‘CCS’),35 in partnership with Singapore’s banks and financial institutions, the Association of Banks in Singapore, and several government agencies. 36 Under the SPP Scheme, sole proprietors or partnerships may seek assistance from CCS in restructuring their unsecured business debts owed to the participating lenders of the SPP Scheme. 37 Conclusion In conclusion, the measures undertaken by the Government have been crucial to the swift and deisive national response to the unprecedented COVID-19 crisis. The measures introduced have helped to cushion the economic impact of the recession on businesses and individuals. For example, the Ministry of Finance estimated that without these measures, Singapore’s GDP contraction would have doubled, and an additional 155,000 jobs would not have been saved or created. 38 There has also been no increase in the number of bankruptcies and companies being compulsorily wound up in 2020, as compared to recent years. While Singapore is not out of the woods yet, as the COVID-19 situation is ever-evolving, there is room for optimism, as Singapore’s GDP is expected to rebound in 2021, with growth forecasted at 4% to 6%, and total employment grew for the first time since the start of the pandemic in the first quarter of 2021. We 34

Australian Budget 2020-21, Fact sheet: Insolvency reforms to support small businesses ( 35 A member of the National Council of Social Services involved in debt restructuring work since 2004. 36 These include MinLaw, the Monetary Authority of Singapore and Enterprise Singapore. 37 The participating lenders signed a Memorandum of Understanding with CCS to allow an extension of loan repayment periods of up to 8 years and capped the maximum interest rate on unsecured business borrowings. This provides the business with a lower loan repayment amount to be made and a longer runway to repay the loans, helping to free up cash flow for sustained operations. With the SPP Scheme, business owners who have taken personal guarantees on behalf of their business loans are also in a better position to stave off personal bankruptcy proceedings by promptly entering into the SPP scheme for a consolidated restructuring of their business loans. 38 DPM Heng Swee Keat’s Speech at the Future Economic Council Meeting on 30 April 2021.


Singapore Comparative Law Review will continue to monitor the COVID-19 situation, review and refine the measures, to help Singapore emerge stronger from this pandemic.




Singapore Comparative Law Review

TraceTogether and the Doctrine of Legitimate Expectation Nathan Ong & Thomas Lim Introduction On 4 January 2021, the Minister of State for Home Affairs Mr. Desmond Tan stated in Parliament that the police were able to obtain any data under Singapore’s jurisdiction for the purposes of criminal investigations, including data obtained from the mobile application ‘TraceTogether’, 1 developed by Singapore’s Ministry of Health and Government Technology Agency (GovTech) for contact-tracing purposes in relation to the spread of the Covid-19 virus.2 These powers are derived from the Criminal Procedure Code (s. 20 CPC). 3 This contradicted a privacy statement on the TraceTogether website and an assurance from the minister responsible that the data would only be used ‘for contact tracing purposes’. 4 Following public outcry, 5 the Singapore government announced that it would pass a law to formalise assurances made earlier that data from the Covid-19 TraceTogether contact-tracing programmes, if needed, could only be used in investigations pertaining to serious crimes.6 We will discuss the doctrine of legitimate expectation in the context of an action brought on the grounds of ministerial statements in the public law of Singapore and England, as elucidated by the controversy regarding the use of TraceTogether data for the purposes of criminal investigations. This will be done in two parts. Firstly, through an exploration of a hypothetical judicial review of a case based on issues surfaced by the TraceTogether controversy, we will compare the outcomes in the two jurisdictions. Secondly, we will trace how both jurisdictions have reasoned the existence of the doctrine. This will allow us to identify the public law principles influencing the conceptual basis of the doctrine, and how that leads to the results in our hypothetical case.

Development The first reference to a ‘legitimate expectation’ was made by Lord Denning in his judgment in Schmidt v Secretary of State for Home Affairs (‘Schmidt’).7 In R (on the application of Niazi) v Secretary of State for the Home

Tham Yuen-C, ‘Police can use TraceTogether data for criminal investigations’ Straits Times (Singapore 5 January 2021). <> accessed 6 March 2021). 2 ‘What is the TraceTogether App?’ (TraceTogether, September 2020) <> accessed 6 March 2021; ‘Who built TraceTogether?’ (TraceTogether, September 2020) <> accessed 6 March 2021. 3 Tham Yuen-C, ‘Police can use TraceTogether data for criminal investigations’, (n 1); Section 20 CPC is titled ‘Power to order production of any document or other thing’. 4 Ang Hwee Min, Zhaki Abdullah, ‘Police can only ask for TraceTogether data through person involved in criminal probe: Vivian Balakrishnan’ (Channel News Asia, 5 January 2021). <> accessed 6 March 2021. 5 Kenny Chee, ‘Bill limiting police use of TraceTogether data to serious crimes passed’ Straits Times (Singapore 2 February 2021). <> accessed 21 April 2021. 6 Kenny Chee, Tham Yuen-C ‘S’pore govt to pass law to ensure TraceTogether data can be used only for serious crimes’ Straits Times (Singapore 9 January 2021). 7 [1969] 2 Ch. 149, 170E. 1


Singapore Comparative Law Review Department (‘Niazi’), 8 Laws L.J. recognised two kinds of legitimate expectation – substantive and procedural.9 The ‘paradigm [procedural] case arises where a public authority has provided an unequivocal assurance… that it will give notice or embark upon consultation before it changes an existing substantive policy.’ 10 Substantive cases would be claims for ‘the continued enjoyment of the content – the substance – of an existing practice or policy, in the face of the decision-maker’s ambition to change or abolish it’,11 and would arise where there is ‘a specific undertaking, directed at a particular individual or group, by which the relevant policy’s continuance is assured’.12 The effect is that ‘the power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes)’; that a ‘change of policy … may be held unfair by reason of prior action, or inaction, by the authority’. 13 The reason given in Niazi was that if a public authority acted contrary to the ‘legitimate expectations’, it would be ‘act[ing] so unfairly as to perpetrate an abuse of power’.14 In Singapore, legitimate expectations were recognised in Re Siah Mooi Guat.15 T.S. Sinnathuray J referred to the dicta of Lord Fraser in Council of Civil Service Unions v Minister for the Civil Service16 (‘CCSU’) and Lord Denning’s obiter dicta in Schmidt.17 In Borissik Svetlana v Urban Redevelopment Authority (‘Borissik’),18 the court noted the adoption of Lord Fraser’s approach in CCSU by the decision in Re Siah Mooi Guat, before citing De Smith’s Judicial Review in laying out the requirements of the doctrine. 19 Substantive legitimate expectations were recognised by the High Court of Singapore in Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority (‘Chiu Teng’), where Tay J held that ‘a doctrine of legitimate expectation should be recognised in our law as a stand-alone head of judicial review’ and ‘substantive relief should be granted under the doctrine subject to certain safeguards’. 20 [2008] EWCA Civ 755, (2008) 152(29) S.J.L.B. 29. Ibid., [27], [28] (Laws L.J.). 10 Ibid., [29], [20] (Laws L.J.). 11 Ibid., [30] (Laws L.J.). 12 Ibid., [43] (Laws L.J.). 13 Ibid. 14 Ibid. 15 [1998] 2 S.L.R.(R.) 165. In this case, the distinction between substantive and procedural legitimate expectation was not made at [24], [30]. 16 [1985] AC 374. 17 [1998] 2 S.L.R.(R.) 165 [24], [30], [31]–[34]. 18 [2009] SGHC 154, [2009] 4 S.L.R.(R.) 92. 19 De Smith’s Judicial Review (6th Ed, Sweet & Maxwell 2007); Ibid., [48]–[49]. No distinction between substantive and procedural expectations was made in Borissik, although the trial judge Tan Lee Meng J refers to ‘a legitimate expectation that the proposal to redevelop… would be approved’, and that the applicant ‘did not establish that the URA’s officers had conducted themselves in a way that could have led her to a legitimate expectation that her redevelopment plans would be approved’, which would fall into the category of a substantive rather than procedural legitimate expectation. 20 [2013] SGHC 262 [119]; The High Court in Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority (‘Chiu Teng’) suggested Tan J ‘had procedural, rather than substantive, legitimate expectation in mind’, emphasising the last part of Tan J’s sentence, that ‘the applicant’s claim that she had a legitimate expectation that the proposal… would be approved will be considered’. Respectfully, it seems that Tay Yong Kwang J misinterpreted Tan J’s comments in Borissik, especially in light of the later comment by Tan J at [50] which refers to the legitimate expectation of the redevelopment plans ‘being approved’. What was ‘considered’ was the claim that there was a legitimate expectation of approval, rather than the expectation being one of consideration. In any case, evidently the distinction between procedural and substantive legitimate expectations was not fully addressed, and there was uncertainty as to the 8 9


Singapore Comparative Law Review The Doctrine in England and Singapore Approach in England per Patel (a) The statement or representation relied upon as giving rise to a legitimate expectation must be “clear, unambiguous and devoid of relevant qualification” (at [40]). (b) The party seeking to rely on the statement or representation must have placed all his cards on the table (at [41]). (c) While detrimental reliance is not a condition precedent, its presence may be an influential consideration in determining what weight should be given to the legitimate expectation (at [84]). (d) The statement or representation must be pressing and focused. While in theory there is no limit to the number of beneficiaries, in reality the number is likely to be small as– i. it is difficult to imagine a case in which the government will be held legally bound by a representation or undertaking made generally or to a diverse class; and ii. the broader the class claiming the benefit of the expectation the more likely it is that a supervening public interest will be held to justify the change of position (at [50]). (e) The burden of proof lies on the applicant to prove the legitimacy of his expectation. Once this is done the onus shifts to the respondent to justify the frustration of any legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation (at [58]). (f) The court has to decide for itself whether there is a sufficient overriding interest to justify a departure from what has been previously promised (at [60]). In doing so the court must weigh the competing interests. The degree of intensity of review will vary

Approach in Singapore per Chiu Teng The applicant must prove that the statement or representation: (a) Was unequivocal and unqualified; i. if it is open to more than one natural interpretation, the interpretation applied by the public authority will be adopted: and ii. the presence of a disclaimer or non-reliance clause would cause the statement or representation to be qualified. (b) Was made by someone with actual or ostensible authority to do so on behalf of the public authority. (c) Was made to him or to a class of persons to which he clearly belongs. Further, (d) It was reasonable for him to rely on the statement or representation in the circumstances of his case. i. the applicant would not be entitled to any relief he knew or suspected that it was made in error and chose to capitalise on the error, by not seeking clarification when there was reason and opportunity to do so. (e) He relied on the statement or representation and suffered a detriment as a result. However, (f) Even if all the above requirements are met, the court should nevertheless not grant relief if: i. giving effect to the statement or representation will result in

doctrine’s extent in Singapore. More recently, in SGB Starkstrom Pte Ltd v The Commissioner for Labour [2016] SGCA 27, the Singapore Court of Appeal recognised that the doctrine was recognised in Singapore by the High Court in Chiu Teng, but chose to proceed with the case emphasising that they did so “assuming, but without deciding, that the doctrine is a part of Singapore law” (at [41]), and later commented that “the acceptance of the doctrine of substantive legitimate expectations as a part of [Singapore] law would represent a significant departure from our current understanding of the scope and limits of judicial review” (at [59]). These comments perhaps suggest that the current position on the doctrine of substantive legitimate expectations in Singapore is probably still far from certain, but the court’s assumption indicates some hope for the future of the doctrine in Singapore.


Singapore Comparative Law Review from case to case, depending on the character of the decision challenged (at [61]).21


a breach of the law or the State’s international obligations; or infringe the accrued rights of some member of the public; the public authority can show an overriding national or public interest which justifies the frustration of the applicant’s expectation.22


The Case We will examine a hypothetical case based on the TraceTogether controversy to demonstrate the different operations of the doctrine of legitimate expectation in England and Singapore. This set of facts was compelling considering the global pandemic and the public’s concerns about privacy vis-à-vis government contact-tracing measures. In this case, a government minister makes public assurances that the government’s mobile application for contact-tracing and the data it collects will only be used for contact-tracing purposes, notwithstanding any purported emergency circumstances.23 This assurance is reflected on the government’s website that it has set-up for this mobile application. However, the minister has made a mistake. It subsequently transpires that there is legislative authority which allows the police to access said data for the purposes of criminal investigations. Can a judicial review be brought in these circumstances? If so, what would be the likely outcome of such an action? The main issues that arise are (i) whether mistaken or ultra vires ministerial statements can lead to legitimate expectations; and (ii) what the effects of such a judicial review would be. We shall explore these issues in turn, in the English and Singaporean jurisdictions respectively.

England Ministerial statements The minister made a clear, unambiguous, and unqualified representation to a valid class of people, 24 fulfilling several criteria for a legitimate expectation to be found; but these assurances were made contrary to legislation allowing the police to access the same data that the minister assured would only be used for contact tracing purposes. It would be beyond the minister’s power to give effect to his mistaken Ibid., [82], which reproduced an account of the requirements of the doctrine given more recently in R (on the application of Patel) v General Medical Council [2013] EWCA Civ 327, [2013] 1 W.L.R. 2801. The Singapore High Court characterised Patel as a “framework” for finding a legitimate expectation and granting relief. 22 Ibid., [119]. 23 Similar to what happened in Singapore when the Foreign Minister, Dr. Vivian Balakrishnan, who also heads Singapore’s Smart Nation drive, assured the public in June 2020 that TraceTogether data would be used only for contact tracing. See Kenny Chee, ‘Vivian Balakrishnan says he ‘deeply regrets’ mistake on TraceTogether data’ Straits Times (Singapore 2 February 2021); Hariz Baharudin, ‘Contact-tracing device will not track location; people can use TraceTogether if they prefer, says Vivian Balakrishnan’ Straits Times (Singapore 8 June 2020). 24 R (on the application of Patel) v General Medical Council [2013] EWCA Civ 327, [2013] 1 W.L.R. 2801 [40]; R v Jockey Club Ex parte RAM Racecourses Ltd [1993] All E.R. 225. 21


Singapore Comparative Law Review representation by altering existing legislation providing otherwise. Can legitimate expectations arise from mistaken and ultra vires representations? In R v Secretary of State for Education and Employment, Ex parte Begbie (‘Begbie’),25 Peter Gibson L.J. held that: [w]here the court is satisfied that a mistake was made… the court should be slow to fix the public authority permanently with the consequences of that mistake. That is not to say that a promise made by mistake will never have legal consequences. It may be that a mistaken statement will, even if subsequently sought to be corrected, give rise to a legitimate expectation, whether in the person to whom the statement is made or in others who learnt of it, for example where there has been detrimental reliance on the statement before it was corrected. The court must be alive to the possibility of such unfairness to the individual by the public authority in its conduct as to amount to an abuse of power. 26 The Court of Appeal confirmed this in PF (Nigeria) v Secretary of State for the Home Department (‘PF (Nigeria)’), citing Begbie, where the claimant’s case was rejected partly on the basis that ‘the Secretary of State’s representations were made entirely in error’.27 A high threshold seems to exist for a representation made in error can be considered to give rise to a legitimate expectation. In such cases, the decision to recognise a legitimate expectation is underpinned by the rationale behind the doctrine in the first place – that of ‘fairness’ – and the consequent impetus to disallow unfair conduct by public authorities that would ‘amount to an abuse of power’.28 Where the representation made is ultra vires, the court has similarly been reluctant to recognise a legitimate expectation. In R v Ministry of Agriculture, Fisheries and Foods Ex parte Hamble Fisheries (Offshore) Ltd (‘Hamble’), it was held that finding one in such circumstances would have the ‘dual effect of unlawfully extending [the public authority’s] statutory power and destroying the ultra vires doctrine by permitting public bodies arbitrarily to extend their powers’.29 As Keene L.J. noted in South Buckinghamshire District Council v Flanagan, in such a scenario the applicant ‘might subjectively have acquired the expectation, but it would not be a legitimate one, that is to say it would not be one to which he was entitled’. 30 Does this mean that in all cases where the representation is made ultra vires, no legitimate expectation can be established? In Stretch v United Kingdom (‘Stretch’), the European Court of Human Rights (ECtHR) held that a legitimate expectation could arise from an unlawful representation, and that it constituted a ‘possession’ under Art. 1 Protocol 1 of the European Convention on Human Rights. 31 In its judgment the ECtHR commented that it was ‘not… persuaded that the application of [the doctrine of ultra vires] in the present case respect[ed] the principle of proportionality’, and held that the public authority was bound by the expectations which arose from its unlawful representation. 32 The potential effect on the law of the decision in Stretch was seen in Rowland v Environmental Agency (‘Rowland’), which concerned a public authority’s interference with a portion of the Thames River which was previously treated as private, where Mance L.J. said:

[2000] 1 W.L.R. 1115. Ibid., 1127 (Peter Gibson L.J.). 27 [2015] EWCA Civ 251, [35]. 28 Begbie (n 25), 1127 (Peter Gibson L.J.). 29 [1995] 2 All E.R., 731 (Sedley J). 30 [2002] EWCA Civ 690, [2002] 1 W.L.R. 2601, [18] (Keene L.J.). 31 (44277/98) (2004) 38 E.H.R.R. 12, [32]. 32 Ibid., [38]. 25 26


Singapore Comparative Law Review [i]n the light of the European court decisions in the Pine Valley and Stretch cases, that it can no longer be an automatic answer under English law to a case of legitimate expectation, that the agency had no power to extinguish the [public rights of navigation] over Hedsor Water or to treat it as private.33 In Rowland, it was held by a unanimous Court of Appeal that there was a legitimate expectation that arose from the unlawful representation, but despite the legitimacy of the expectation, the public authority was not bound to fulfil that expectation because it was beyond the statutory power of the respondent authorities to do so.34 May L.J. held that ‘because the navigation authorities had no power…, English domestic law cannot give effect to Mrs Rowland’s legitimate expectation. This is unjust and illustrates a defect in the law’, and that ‘[t]he Human Rights Convention does not enable Mrs Rowland to retain Hedsor Water as private, when to achieve this is beyond the statutory power of the respondents’, ultimately concluding that ‘[h]owever strong the legitimate expectation, it comes against the buffers that it is beyond the power of the respondents…’.35 Peter Gibson L.J. similarly cited the lack of power on the part of the public authority. 36 Mance L.J. on the other hand distinguished Rowland from Stretch and Pine Valley, pointing to the relationship between the parties. 37 Therefore Rowland shows that while there can be a legitimate expectation which arises from an unlawful representation, it might not bind the authority to fulfil the expectation, by reason of, for example, the fulfilment being beyond the limits of the authority’s power. A legitimate expectation can thus arise from mistaken and ultra vires representations in limited kinds of circumstances. But in what circumstances? The complexity stems from the recognition in Rowland of a legitimate expectation without binding the public authority to fulfil the legitimate expectation. Previously, the finding of a legitimate expectation necessitated its fulfilment by the public authority, but no longer. The answer to the question, given by Rowland, 38 seems to be that the traditional approach in English law remains valid, in respect of finding a substantive legitimate expectation per R v North and East Devon Health Authority Ex parte Coughlan (‘Coughlan’),39 but that in light of Art. 1 Protocol 1 of the European Convention of Human Rights (ECHR), recognition would be extended to legitimate expectations arising from ultra vires representations.40 Thus, it should be noted that finding a legitimate expectation does not mean that the public authority will be bound by it, and therefore dicta such as Sedley J’s in Hamble that recognition of legitimate expectations would have the ‘dual effect of unlawfully extending [the public authority’s] statutory power and destroying the ultra vires doctrine by permitting public bodies arbitrarily to extend their powers’ seem less appropriate

[2003] EWCA Civ 1885, Ch. 1, [152] (Mance L.J.). Ibid., [103]; De Smith’s Judicial Review (8th edn, 2018) para 12-079. 35 Rowland (n 33), [103] - [105] (May L.J.). 36 Ibid. [96] (Peter Gibson L.J.). 37 Ibid. [153], [162] (Mance L.J.); He observed that in Rowland, the agency ‘was never asked to, and did not, issue any formal statement or enter into any direct commercial relationship with the Rowlands’, and that ‘in none of [the communications between the Rowlands and the agency] was the private status of Hedsor Water in issue in any direct commercial sense coming close to that attaching to the ability to grant an option in the Stretch case or the validity of the planning permission in the Pine Valley case’, which therefore meant that neither Pine Valley nor Stretch lent support to ‘an argument that the legitimate expectation created by the agency in the present case should be regarded as having a scope beyond that identified [i.e. that if Hedsor Water was not private the agency would ‘smooth the position’ for Mrs Rowland as far as possible consistently with its duties to preserve the public rights of navigation]’ and that ‘that expectation would be satisfied by performance of the assurances given in the agency’s letter’. 38 Rowland (n 33), [102] (May L.J.). 39 [2001] Q.B. 213. 40 Ibid. [78], [81], [102]–[105]. 33 34


Singapore Comparative Law Review than before. 41 The fact that the representation was ultra vires would not preclude the finding of a legitimate expectation. The question is instead whether the conduct of the public authority was so unfair that it would amount to an ‘abuse of power’, 42 for it is the unfairness of the conduct that underpins the finding of a legitimate expectation, which courts should otherwise be ‘slow’ to find. 43 The relevant kind of unfairness (as set out in Coughlan and identified in Rowland) in this scenario would be the third, ‘consisting in a failure by a public body to give effect to a substantive benefit which is the subject matter of a legitimate expectation in circumstances where there is no overriding interest which would justify the public body in resiling from its representation that such a benefit would be forthcoming’. 44 The courts would have to weigh the police’s need to access the data for criminal investigations against the expectation and decide if it constitutes an overriding interest. Should the court decide otherwise, then there would be a legitimate expectation arising from the minister’s mistaken and ultra vires representation, entitled to protection under Art. 1 Protocol 1 ECHR, unless the interference by the public authority was ‘justified and proportionate’. 45 The effects of judicial review In Rowland, even though the court recognised a legitimate expectation, it nonetheless held that the public authority was not bound to fulfil it, because its fulfilment was beyond their power. Similarly, should there be a legitimate expectation found in our hypothetical case, its fulfilment would be beyond the public authority’s power, and it would not be bound to fulfil it. The conclusion does seem circular, since if the representation is ultra vires, then fulfilment would necessarily involve the public authority acting beyond its powers. However, it is noted that the recognition of the expectation as legitimate does have other consequences apart from compelling the fulfilment of that expectation. Although the applicant may not be entitled to the public authority acting ultra vires to fulfil their expectation, they may be entitled to other kinds of remedies, ‘which it is within the powers of the public body to afford’, such as compensation. 46 The legitimate expectation therefore can ‘still survive and require recognition’,47 requiring the public authority to ‘smooth the position [of the applicant] (as far as possible, consistently with [the authority’s other duties])’. 48 De Smith’s Judicial Review was against the proposition that a public authority should be bound to fulfil a legitimate expectation in such circumstances but laid out the conditions that should apply if an authority is to be held to the terms of its ultra vires representation. 49 Assuming that public authorities can be held to be bound to fulfil legitimate expectations arising from their ultra vires representations, and the conditions required were those laid out by De Smith’s Judicial Review, Hamble (n 29), 731 (Sedley J). Begbie (n 25), 1127 (Peter Gibson L.J.); Coughlan (n 39); Rowland (n 33), [102] (May L.J.). 43 Begbie (n 25), 1127 (Peter Gibson L.J.); PF (Nigeria) (n 27), [35]. 44 Rowland (n 33), [67] (Peter Gibson L.J.). 45 Ibid., [92]. 46 Pine Valley Developments v Ireland (1992) 14 E.H.R.R. 319 [80]; De Smith’s Judicial Review (8th edn, 2018) para 12-076. 47 Rowland (n 33), [155] (Mance L.J.); De Smith’s Judicial Review (8th edn, 2018) para 12-080. 48 Ibid. [153] (Mance L.J.). 49 De Smith’s Judicial Review (8th edn, 2018) para 12-082. The balance of fairness in favour of the claimant should be overwhelming; Although ‘both knowledge of the representation and detrimental reliance are not always required to support an expectation based upon an intra vires representation, both those requirements are surely necessary to bind an ultra vires representation. In the absence of those requirements, unfairness is unlikely to weigh very much, especially if the claimant has had access to legal advice on the lawfulness of the representation’; ‘As in Pine Valley and Stretch, where the breach of the expectation would lead to the recipient being deprived of a human right (such as ‘possession’ under Art. 1 of the First Protocol) the deprivation of the right needs to be balanced against the public interest’; and ‘An unlawful representation should not prevail where the third-party interests were or might have been compromised’. 41 42


Singapore Comparative Law Review what would be the outcome in this case? It is difficult to envision how an applicant could contend to have relied on the mistaken and ultra vires representation (per Begbie and PF (Nigeria)) that data from the mobile application would not be used in criminal investigations by the police, since the applicant would effectively contend that they relied on this expectation in their commission of criminal activity. Perhaps a situation in which this is plausible is if defence counsel argued that data obtained would not be admissible as evidence, given the expectation that said data would not be available to the police. 50 Apart from its implausibility, the courts would likely dismiss such a claim based on the doctrine of ex turpi causa non oritur actio.51 If anything, this may illustrate that even if the courts allowed public authorities to be bound by their ultra vires representations, there may be other means of ensuring a just outcome, not only for the applicant but also for the government and the public interest. Ultimately, as the law stands after Rowland, the orthodox position on the doctrine of legitimate expectations remains alive in England, with the exception that ultra vires representations can give rise to legitimate expectations, though they may not give rise to a corresponding entitlement of being fulfilled. The doctrine remains informed by the ideas of fairness and the interest in good governance, and in spite of recent developments and suggestions otherwise,52 still seems to adhere to the ultra vires principle and the principle of legality.

Singapore Ministerial statements Similarly, some criteria for finding a legitimate expectation have been fulfilled in these circumstances, 53 and while no litigation has arisen in Singapore regarding any limits to the expansiveness of the ‘class’ required for the doctrine to apply, it can be assumed that the same interpretation as that in R v Jockey Club Ex parte RAM Racecourses Ltd would apply, and consequently the class of ‘users of the contact tracing mobile application’ would be valid.54 Singapore law differs from the English position on reliance. For there to be a legitimate expectation in Singapore, the applicant must not only ‘prove that he did rely on the statement or representation and that he suffered a detriment as a result’, but also prove that ‘it was reasonable for him to rely on the statement or representation in the circumstances of his case’. 55 In our scenario, the applicant would have to prove that they detrimentally relied on the representation. For reasons discussed above, such a submission by an applicant would be implausible. It was recognised in Tan Liang Joo John v Attorney-General that the applicant could not satisfy the requirement of detrimental reliance as they could not rely on the representation when undertaking the conduct leading to their offence. 56 Therefore, the applicant’s claim will fail at this juncture, unless their detrimental reliance on the representation was somehow ‘reasonable’ (i.e. not to commit a crime, but still related to the police’s access We shall not delve into the intricacies of evidence law here, but it is noted that there may be scenarios in which a legitimate expectation can arise from such a representation. 51 “From a dishonourable cause an action will not arise”; a maxim featuring in tort law, which generally has the effect of excluding actions which arise resulting from illegal conduct. 52 De Smith’s Judicial Review (8th edn, 2018) para 12-081–12-082. 53 Chiu Teng (n 20), [119]; such as the requirements that ‘the applicant must prove the statement was made by someone with actual or ostensible authority to do so on behalf of the public authority’, ‘that the statement made by the public authority was unequivocal and unqualified’, and ‘that the statement or representation was made to him or to a class of persons to which he clearly belongs’. 54 [1993] All E.R. 225. 55 Chiu Teng (n 20), [119]. 56 Tan Liang Joo John v Attorney-General [2019] SGHC 263. 50


Singapore Comparative Law Review to the data in some relevant way). In addition, the applicant cannot have ‘capitalis[ed]’ on a suspected error, must have sought ‘clarification when he could have done so’, and made ‘enquiries’, ‘if there is reason and opportunity’ to do so, to be entitled to any relief. 57 The question of mistaken representations has already been addressed in part in conjunction with the requirement of reliance by the doctrine in Singapore. If the applicant suspects that the representation was mistaken, they cannot ‘capitalise’ on the error and must ‘seek clarification’ in order to be entitled to any relief under the doctrine. 58 On the question of ultra vires representations, the requirements laid out in Chiu Teng provide that the court should nevertheless not grant relief if ‘giving effect to the statement or representation will result in a breach of the law or the State’s international obligations’. 59 In this regard also, Singapore law differs from the position in England. As Singapore is not a party to the ECHR, decisions such as Pine Valley, Stretch and Rowland have limited influence in Singapore. In our scenario, giving effect to the minister’s representations would be contrary to legislation providing that the police shall have access to the data from the mobile application. As such, the court should not grant relief, even if all the other requirements laid out are met. The effects of judicial review The outcome would be an unsuccessful application, regardless of whether the requirements were met or otherwise since the court will not grant relief if doing so will result in a breach of law. In any case, the likelihood is that the application would have failed at the stage of proving reliance. An interesting question would be what the courts should do if either granting, or not granting relief would result in a breach of the law. For example, if Singapore was to become party to a convention like the ECHR, and there was a legitimate expectation arising from an ultra vires representation, causing the granting of a relief to be a breach, and the failure to grant relief also a breach of the applicant’s protected right to their legitimate expectations under the convention. The current formulation of the requirements in Chiu Teng is unable to address such a scenario, since the granting of relief is binary, and in this case, it would force a breach of the law by not granting any relief. There is no scope for alternative remedies such as compensation discussed in Pine Valley or ‘smooth[ing]’ of the applicant’s position per Rowland.60 This is perhaps because there is no need to accommodate such a scenario since it does not exist, but the inability to cope with such a development is nonetheless noted. The differences between the outcomes in the two jurisdictions In both jurisdictions, the finding of a legitimate expectation would not be the likely outcome of the judicial review. However, in England, our scenario may have been recognised to give rise to legitimate expectations, should the court decide that it would be ‘unfair’ not to recognise the legitimate expectation arising from the ultra vires representation. In Singapore, there would be no such scope since the fact that the representation is ultra vires would itself preclude the finding of a legitimate expectation. This difference explains a divergence between the two jurisdictions and explains how a different outcome may be reached on this set of facts. The question, then, is why?

Chiu Teng (n 20), [119]. Ibid. 59 Ibid. 60 Rowland (n 33), [155] (Mance L.J.). 57 58


Singapore Comparative Law Review PART II An Exploration of Divergence The same facts of the case result in two different outcomes, despite the doctrines having the same jurisprudential source. At a basic level, this divergence is answered easily – case law developed differently. But this elides the principled reasonings. A more profitable analysis would be of the consequences on public law values in recognising legitimate expectations. Without evaluating the normative persuasion of each theory, observing how the UK and Singapore have reasoned the existence of the doctrine will allow us to piece together how the differing conceptual bases adopted manifest in the jurisdiction’s current stand. Good administration, abuse of authority, and fairness – trust in government The principle here is easily understood. Somebody in authority makes a promise to us, whom we believe to have the ability to make good their promise. It could be a teacher promising to consult the class before deciding who will be class representative (procedural legitimate expectation), or an editor promising the absence of a word limit (substantive legitimate expectation). In either circumstance there is trust placed in the authority to act as they have promised. This concept is familiar from other areas of private law such as in the equitable doctrine of estoppel, upon which Lord Denning MR based the doctrine on in Schmidt, 61 and enforcement of contracts.62 Lord Carnwath also indicated that his conception of the doctrine in United Policyholders Group and others v The Attorney General of Trinidad and Tobago was based on ‘an analogy with breach of contract or estoppel in private law’. 63 This fundamental inclination is arguably the starting point for the recognition of the doctrine in both jurisdictions. In Schmidt, Lord Denning MR argued that the authority may be ‘bound’ where ‘[the promisee] has some right or interest … of which it would not be fair to deprive him’.64 The High Court in Singapore put it more starkly in Re Siah Mooi Guat, stating that ‘when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise’.65 This is especially so when the frustration thereof would be severe, as in abrogating a human right (Stretch), or affecting a large group (CCSU). Failure to honour such legitimate expectations would not only frustrate the instant expectation, but the further intangible expectations to adhere to transparency and respecting the dignity, rights, and interests of individuals through remaining accountable and trustworthy.66 Three closely related concepts can be derived from this, which have each been invoked as the bases of the doctrine by the judiciary – fairness, 67 prevention of abuse of power,68 and good administration. 69 Essentially, the natural moral apprehension towards unfair use of power crystalises in the principle of good governance, as an ‘essential if people are to accept, cooperate with, and recognise the legitimacy of the institutions of Schmidt (n 7), 170E (Lord Denning). Chiu Teng (n 20), [113]. 63 [2016] UKPC 17 64 Schmidt (n 7), 170E (Lord Denning). 65 Re Siah Mooi Guat (n 15), [23]. 66 M Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ [2007] 13(4) European Law Journal 447. 67 Attorney General of Hong-Kong v Ng Yuen Shiu [1983] 2 AC 629; CCSU (n 16), 415 (Lord Roskill), 412 (Lord Diplock); Coughlan (n 39). 68 Coughlan (n 39), [57]; R v Inland Revenue Commissioners ex p Preston [1985] AC 835, [71]; Begbie (n 25), 1129; R. (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, [52]. 69 R. (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; CCSU (n 16), 401; Niazi (n 8); Bancoult (No 2) [2008] UKHL 61 [182]; R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [311]-[312]; R (on the application of British Medical Association) v General Medical Council [2008] EWHC 2602 (Admin). 61 62


Singapore Comparative Law Review government’.70 Both Laws L.J. in R. (on the application of Nadarajah) v Secretary of State for the Home Department (‘Nadarajah’),71 and more recently Lord Kerr in In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland),72 cited ‘good administration’ as the unifying normative foundation of the doctrine. Singapore has yet to make such a pronouncement, especially regarding substantive legitimate expectations. 73 Forsyth and Reynolds understand the undergirding ‘meta-value’ of these principles to be trust in the government, and the conceptual basis of the doctrine therefore to be protection of such trust. 74 The doctrine of legitimate expectation as a ground for judicial review exists as a form of legal accountability. This can be explained with an understanding of the social contract with its tenets of popular sovereignty and consent of the governed.75 In effect, the constitutional power wielded by the government is derived from the people, who give up certain natural liberties to live peaceably in society.76 Trust of the governed is fundamental to effective administration. 77 People are the principals in a democracy, having transferred their sovereignty to popular representatives and by extension, the government and civil servants to hold this constitutional power in trust. Accountability is thus necessary to give effect to the chain of sovereignty.78 A perceived breaking of this trust likely fuelled the popular grievance regarding the TraceTogether controversy. The data - one’s contacts, location, and duration spent there – felt very personal. It seemed as if one were releasing their right to privacy, subject to the terms represented by the government (at its extreme, an ‘almost-contract’).79 The influence of this principle would likely be the basis of recognising a legitimate expectation in our hypothetical case. However, we know that the representations were unlawful, insofar that they failed to consider s.20 CPC.80 So what of the other constitutional principles at stake as well? Rule of Law considerations – morality, predictability, and certainty This section deals with the ideas of legality and of legal certainty. The two concepts are not mutually exclusive, but in the case of legitimate expectations, they may find themselves at loggerheads. This is seen when an authority has made a representation that is not in accordance with current law, but honouring it is “fair”. There is tension in the application of legitimate expectations, as giving legal effect to it would raise the question of which authority to follow, and whether such reliance on extra-legal representations in fact is an affront to the rule of law. Substantive elements First, in the substantive conception of the rule of law, laws are legitimised in accordance with societal values and natural law; laws are an accurate public conception of individual rights. 81 The doctrine of legitimate Mark Elliott & Robert Thomas, Public Law (Oxford University Press, 4th Ed, 2020), 399. [2005] EWCA Civ 1363. 72 [2019] UKSC 7. 73 S Jhaveri, ‘The doctrine of substantive legitimate expectations: the significance of Chiu Teng@Kallang Pte Ltd v Singapore Land Authority’ [2016] PL 1. 74 C. Forsyth, The Provenance and Protection of Legitimate Expectations (1988) 47 CLJ 238; Reynolds, Legitimate Expectations and the Protection of Trust in Public Officials [2011] P.L. 330. 75 Hamilton, Madison, and Jay, The Federalist [1787-88] (Washington DC 1992), no 62. 76 John Milton, The Tenure of Kings and Magistrates (JM London 1649), 10. 77 Schønberg, Legitimate Expectations in Administrative Law (2000), 25. 78 M Bovens (n 66). 79 R Williams, ‘The multiple doctrines of legitimate expectations’, [2016] 123 LQR 639. 80 Tham Yuen-C, ‘Police can use TraceTogether data for criminal investigations’, (n 1). 81 Paul P. Craig, Formal and substantive conceptions of the rule of law: an analytical framework [1997] 4 PL 467. The rough mechanism of Dworkin’s “rights conception” of the rule of law sees that these moral and political rights be 70 71


Singapore Comparative Law Review expectations has been said to have ‘absorbed … the moral values which underlie the private law concept of estoppel’.82 However, it is difficult to say that the application of the substantive elements of the rule of law can form a unifying conceptual basis for the doctrine, given the subject matter of the expectation is not necessarily always a universally accepted moral good.83 Indeed, Jhaveri posits that a reason for the decision was because the impact on the applicant in Chiu Teng was a ‘financial one (versus an impact on civil or political rights enshrined in the Constitution)’.84 Nonetheless, it is a consideration as far as individual rights comprise good governance (e.g., consistency or equal treatment), 85 or the frustration of an expectation would result in the claimant being deprived of a right. It has been applied to Convention rights in Stretch and Pine Valley as discussed above, and to common law rights in R. v Secretary of State for the Home Department Ex p. Pierson. 86 Another consideration is the fairness and morality of recognising an expectation if it impinges on another’s rights.87 Formal requirements Secondly, the rule of law contains several formal aspects, termed so because they ‘concern the form of the norms that are applied to our conduct’. 88 Raz gives eight formal requirements to this end, of which the first three requirements are pertinent to us: 1. All laws should be open, prospective, and clear. 2. Laws should be relatively stable. 3. The making of laws should be guided by open, stable, clear and general rules. 89 Prima facie, we are inclined to see that upholding legitimate expectations show a greater conformity to these aspects of the rule of law through consistent application. 90 Popelier goes further, arguing that legal certainty secures personal autonomy by enabling one to live and plan their lives. 91 Indeed, ‘those who conducted their affairs by relying on a reasonable and legitimate interpretation of the law should not be penalised if judicial pronouncement later established that their interpretation was wrong’, 92 especially when the grounds for expectations are that previous (lawful) conduct led to that expectation, as in CCSU or Abdul Nasir Bin Amer Hamsah v Public Prosecutor. 93 The importance of certainty was recognised as a ‘free-standing’ recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions of the familiar type, so far as this is practicable. These rights are then recognised in positive law, thus finding their legitimacy. 82 Chiu Teng (n 20), [79] quoting Lord Hoffman in Regina (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348 at [35]. 83 See R. (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25. 84 S Jhaveri (n 73), 6. 85 R. (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25. 86 [1998] AC 539. Here, held that the Home Secretary could not raise the minimum tariff period which a prisoner serving life custodial sentence could expect parole, as it breached the prisoner’s substantive legitimate expectation of non-retroactive application of sentencing. 87 Borissik (n 18); Rowland (n 33). 88 Waldron, Jeremy, "The Rule of Law", The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.), URL = <>. 89 J Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 161. 90 J Tomlinson, ‘Do we need a theory of legitimate expectations?’ [2020] Legal Studies 286. 91 P. Popelier, “Legitimate Expectations and the Law Maker in the Case Law of the European Court of Human Rights” (2006) E.H.R.L.R. 10. 92 Abdul Nasir Bin Amer Hamsah v Public Prosecutor [1997] SGCA 38, [1997] 2 SLR(R) [51]. 93 Ibid. [60], [70]: Here, they upheld the appellant’s legitimate expectation of having his life sentence run for 20 years (as was the practice), despite deciding this practice and interpretation was wrong. Subsequently, it was pronounced


Singapore Comparative Law Review administrative law principle by Lord Wilson in Mandalia v Secretary of State for the Home Department.94 Laws LJ also stated in Nadarajah that, ‘public bodies ought to deal straightforwardly and consistently with the public’.95 However, we encounter an issue with the same formal aspects in the validity of legitimate expectations as law. If given positive judicial review and thus legal effect, the question of who possesses valid authority to make law is raised. Without clear parameters it seems like executive law-making. At best, when there is no legislation concerning the representation, it would be a bypass of the normal legislative process. At worst, giving effect to an unlawful representation would be to veto the proper legislative body and process. This would create confusion as to the transparency and stability of existing laws, as the due legislative process need not be followed by the appropriate constitutional institution for legally-binding direction. Without the ‘burdensome’ legislative process that invites scrutiny and democratic approval for laws, what legitimises them? Parliamentary Sovereignty and the Separation of Powers – Non-parliamentary law-making In giving effect to legitimate expectations, especially unlawful representations, there is a danger of giving legislative power to both the promisor (the executive), and the enforcer of the representation (the judiciary). However, the doctrine of Parliamentary Sovereignty dictates that the only constitutional institution that should be allowed to have, exercise, and confer legislative powers is Parliament. This concern was voiced in Chiu Teng, that ‘it would therefore be tantamount to judicial overreach for the judiciary to enforce substantive legitimate expectations’, in violation of the ‘constitution … explicitly demarcat[ing] the powers that are to be allocated to the legislative, executive and judicial branches’.96 Similarly in SGB Starkstrom Pte Ltd v Commissioner for Labour, the Court of Appeal hesitated to explicitly recognise substantive legitimate expectations, since: [s]uch a development would potentially change the understanding of the role of the courts in undertaking judicial review of administrative or executive actions, and could cause us to redefine our approach to the doctrine of separation of powers and the relative roles of the judicial and the executive branches of Government.97 Only laws passed by Parliament should be given effect, since it is subject to the due legislative process and results in a single authoritative text that the whole of Parliament agrees upon. The value is in its formality. 98 Assuming that the laws are made open, prospective, and clear, it is legitimate in and of itself, and should be enforced by the courts as it is produced. 99 Legitimate expectations should not vary or abrogate existing legislation unless given effect through the due legislative process. This is perhaps what undergirded the decisions in Begbie and PF (Nigeria). 100 Singapore has explicitly recognised its gravity as an immediate disqualifying factor in Chiu Teng, where it was held that even if the promisee was deemed to have a legitimate

that ‘the expression “life imprisonment” or “imprisonment for life” must mean imprisonment for the remaining natural life of the prisoner, unless the legislation has provided otherwise’, although ‘[t]his judicial pronouncement by us now shall have prospective effect, thereby affecting only those offences which carry a life sentence committed after the date of delivery of this judgment.’ 94 [2015] UKSC 59 95 Nadarajah (n 68), [68]. 96 Chiu Teng (n 20), [109]. 97 [2016] SGCA 27, [59]. 98 L Fuller, 'Consideration and Form' [1941] 41(5) Columbia Law Review 799. 99 J Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 161. 100 In Begbie, it was held that the courts would be “slow to fix the public authority permanently with the consequences” of a representation made in mistake. PF (Nigeria) Confirmed the approach in Begbie as the claimant’s case on legitimate expectation was rejected, in part on the basis that “the Secretary of State’s representations were made entirely in error”.


Singapore Comparative Law Review expectation, the court would not grant relief if ‘giving effect to the statement or representation will result in a breach of the law’.101 An existing analogous issue is that of the courts using Hansard to aid in statutory interpretation. This arose in the case of Pepper v Hart, regarding the examining and giving effect to statements made during Parliamentary debate.102 Done without caution, this would undermine the rationale and integrity of the legislative process, infringing the doctrines of Parliamentary Sovereignty and the Separation of Powers by attributing the intention of a Minister or promoter of the Bill to Parliament as a whole. 103 Similarly, giving effect to representations could be allowing the executive a legislative capacity, without the enjoinment of Parliament in the process. Unbridled, the executive could engineer a way to unilaterally give effect to things that would be advantageous to them and the promisee. 104 If applied simply based on fairness due to reliance on the expectations raised, representations would be given effect even if Parliament wished otherwise. This was recognised in Ex parte Hamble Fisheries regarding the ultra vires representation. Upholding such expectations was said to possibly have the ‘dual effect of unlawfully extending [the public authority’s] statutory power and destroying the ultra vires doctrine by permitting public bodies arbitrarily to extend their powers’.105 The dangers in giving effect to representations willy-nilly are clear as they begin to impinge on other constitutional principles. These inform the constitutional functions of each branch of government. Though commentators such as Thomas argue that the actual quantitative danger of this occurring is low, 106 or that conservative application of the doctrine would mitigate the risk,107 this separation should nevertheless not be trespassed without great caution and very good reason. One need not look further than our hypothetical case. Should legal effect have been given to, for example, the Foreign Minister’s representations, he would have circumvented the legislative procedure and impliedly repealed s.20 CPC with respect to TraceTogether data. Indeed, Singapore has done well to respect these constitutional principles, passing the Bill in Parliament to limit police use of the data to serious crimes. 108

Conclusion Returning to our hypothetical judicial reviews, what explains the different outcomes in the two jurisdictions? As illustrated above, the influence of the ECHR and decisions by the ECtHR have meant that the jurisprudence in England has drifted towards finding legitimate expectations even in situations where the representation which led to the expectation was made ultra vires, and divorcing the fulfilment of legitimate expectations (i.e. requiring the public authority to act in fulfilment of the legitimate expectation) from finding that there is a legitimate expectation. Instead, alternative remedies, such as compensation, are given. Meanwhile, in Singapore, the position is akin to the orthodox position in English common law, where ‘there Chiu Teng (n 20). [1993] AC 593. 103 A Kavanagh, 'Pepper v Hart and Matters of Constitutional Principle' [2005] 121 Law Quarterly Review 98, 115118. 104 A possible situation would be the government promising favourable treatment of a particular group in its electorate, which the majority of Parliament would not agree with, in an attempt to curry favour with them. 105 Hamble (n 29), 731 (Sedley J). 106 R Thomas, ‘Legitimate Expectations and the Separation of Powers in English and Welsh Administrative Law’ in Matthew Groves and Greg Weeks (eds.), Legitimate Expectations in the Common Law World (Oxford: Hart Publishing, 2017), 53-78. 107 K Chng, ‘An uncertain future for substantive legitimate expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour’ [2016] PL 192 108 Kenny Chee, ‘Bill limiting police use of TraceTogether data to serious crimes passed’ (n 5). 101 102


Singapore Comparative Law Review can only be a legitimate expectation founded on a lawful representation or practice’. 109 In Singapore’s case, the wording is that the court should ‘nevertheless not grant relief’. 110 We can see the grounds for commonality and divergence between the jurisdictions after examining the principled reasons for the recognition and curtailment of the doctrine. The starting point for both is the idea of ‘fairness’, which is inherent in the principle of good governance. 111 However, looking at the case law, neither jurisdiction can claim to be cleanly basing the doctrine on a single concept or principle. Any conceptual basis would have to be, as Tomlinson and Daly suggest, a ‘value pluralist account’. 112 Nonetheless, we are able to reverse engineer, in a sense, from the apparent position taken, which principles seem to have more influence and persuasion. While in England there seems to be a focus on the substantive rights and interests of the promisee themselves, Singapore has taken a clear position of maintaining legal certainty, satisfying themselves that natural justice considerations are subsumed into the legislative process. 113 This evidenced by (and rightly so) passing the “remedial” Bill through Parliament. 114 Attempting a preliminary answer to ‘[t]he task for the law in this area … to establish who makes the choice of proprieties and what principles are to be followed’, 115 it is our opinion that the primacy placed on certainty and separation of powers in Singapore should be kept. However, to maintain the values of trust in the government and good administration, we should adopt the idea of ‘remedial flexibility’, 116 or ‘gradations’ for remedies not amounting to actual enforcement of the expectation. 117 This can include pecuniary relief, 118 or requiring the authority or decision-maker to consider and, in the event of frustration, disclose the reasons for overriding that expectation. 119 This would further complement the cooperative functioning of our state institutions.120 Returning once more to the incident that was the impetus for this exploration, we may have a greater appreciation of the nuance, difficulties and responsibilities of the government and the judiciary in respect of finding legitimate expectations. However, although there may be good reasons which explain why effect cannot be given to legitimate expectations, maintaining trust in the government and good administration is paramount given the relationship between state and individual. While the incumbent may appear to hold all the power, their legitimacy is gained and maintained through the trust reposed in them by the same individuals that they make representations to. This trust should thus be protected by ensuring one’s promise is fulfilled, or by granting meaningful relief signifying the importance of the promise and the regret of having to break it, albeit for good reasons.

Rowland (n 33), [81] (Peter Gibson L.J.). Chiu Teng (n 20), [119]. 111 Schmidt (n 7).; Abdul Nasir (n 92). 112 J Tomlinson (n 103); P Daly, ‘A Pluralist Account of Deference and Legitimate Expectations.’ in Matthew Groves and Greg Weeks (eds.), Legitimate Expectations in the Common Law World (Oxford: Hart Publishing, 2017), 101-120. 113 Re Siah Mooi Guat (n 15). 114 Kenny Chee, ‘Bill limiting police use of TraceTogether data to serious crimes passed’ (n 5). 115 R. (on the application of Bibi) v Newham LBC [2001] EWCA Civ 607; [2002] 1 W.L.R. 237, [24]. 116 S Jhaveri (n 73), 9. 117 S Menon, ‘The Rule of Law: The Path to Exceptionalism’ (2016) 28 SAcLJ 413, [28]. 118 C Tay, ‘Substantive Legitimate Expectations – The Singapore Reception’ (2014) 26 SAcLJ 609. 119 S Menon, (n 117), [28]. 120 SK Chan, ‘Judicial Review – From Angst to Empath: A Lecture to Singapore Management University Second Year Law Students’ (2010) 22 SAcLJ 469. 109 110


Singapore Comparative Law Review

Bespoke Coronavirus Legislation and the Wrinkled Well-Fitted Shirt Darren Leow Introduction The sudden and unprecedented onset of the Coronavirus Disease 2019 (“COVID-19”) pandemic has caused colossal disruptions to nearly everyone’s lives and sent ripples throughout the global economy. While the precise response that each country has taken to counter the pandemic differs, many countries have passed some form of legislation enabling the executive to use a suite of powers to curb the spread of the deadly virus, to varying degrees of success. Yet, have these measures conferred too much power on the executive and hindered accountability? Will the response to the current crisis set a precedent for similar issues in the future? These are issues that this essay seeks to explore, by focusing on the COVID-19 legislation used in Singapore and in the United Kingdom (“UK”). Structure and approach This article first sets out Singapore’s and the UK’s relevant COVID-19 legislation. It then distinguishes between what could have been – that is, what approach the two countries could have otherwise chosen to take – and what the responses to the pandemic were, before discussing how these approaches can be characterised. Thereafter, the article evaluates the two countries’ responses to the pandemic, arguing that while Singapore adopted the correct approach, the UK ought to have made use of their emergency regulations at the outset of the pandemic. Just like a wrinkled well-fitted shirt, the article argues that while bespoke primary legislation is better suited to tackle a crisis like a pandemic, emergency regulations can help give the government more time to iron out errors, inconsistencies, or shortcomings in it. Singapore’s COVID-19 legislation On 7 April 2020, the Singapore Parliament passed the COVID-19 (Temporary Measures) Act 2020 (the “SG Act”), and it was assented to by the President on the same day. 1 Section 34(1) of the SG Act allows a minister to make regulations, also styled as ‘control orders’, ‘for the purposes of preventing, protecting against, delaying or otherwise controlling the incidence or transmission of COVID-19 in Singapore if the Minister is satisfied that… [doing so would be] necessary or expedient to supplement the Infectious Diseases Act and any other written law’. 2 This provided for the creation of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (the “SG Regulations”), which came into force on the same day as the SG Act.3 The UK’s COVID-19 legislation The Singapore COVID-19 legislation’s English counterpart is styled the Coronavirus Act 2020 (the “UK Act”), which received royal assent on 25 March 2020.4 At the time it was first passed, the UK Act conferred on the executive an extensive range of powers to combat the spread of the coronavirus, including empowering the Home Secretary to temporarily shut operations at ports and airports if necessary, allowing COVID-19 (Temporary Measures) Act 2020. ibid, s 34(1)(b). 3 COVID-19 (Temporary Measures) (Control Order) Regulations 2020. 4 Coronavirus Act 2020. 1 2


Singapore Comparative Law Review the government to restrict or prohibit events and gatherings at several locations, and enabling the police and immigration officers to temporarily detain a person who is, or may be, infectious and bring them to a place where they can be screened. 5 In addition, before it was passed, the Bill originally contained a sunset clause which imposed a time limit of two years after being granted royal assent on most of the Bill’s provisions. However, concerns over infrequent parliamentary scrutiny of these emergency arrangements were raised6 and now section 98 of the UK Act provides for a more frequent mechanism of review by requiring, ‘so far as practicable’, a Minister to make arrangements for a motion ‘to be debated and voted on by the House of Commons within a period of 7 sitting days beginning immediately after each 6 month review period’. 7 This refers to the period beginning 6 months after the day the Act was first passed and every subsequent 6 months thereafter.8 ‘What-if’? This article shall now first set out what an alternative response to the pandemic could have looked like before taking a deeper look at the actual response that was taken by both countries. What Could Have Been On 7 April 2020 – the same day that the SG Act and SG Regulations came into effect – Singapore’s Minister for Law, Mr. K Shanmugam, called the COVID-19 crisis in Singapore the ‘most serious crisis this country has faced since Independence’. 9 With such a characterisation, it is in some ways surprising that a Proclamation of Emergency was not issued by the President. According to article 150(1) of the Constitution of the Republic of Singapore, the President may issue a Proclamation of Emergency if he or she is ‘satisfied that a grave emergency exists whereby the security or economic life of Singapore is threatened’. 10 Doing so at a period of time when Parliament is not sitting requires the President to summon Parliament ‘as soon as practicable’, but in the time before Parliament is summoned the President may ‘promulgate ordinances having the force of law’.11 These ordinances will later be considered by Parliament when it convenes, which may annul the Proclamation and any ordinances promulgated under it. 12 However, it is more accurate to say that under Singapore’s Westminster system of government, 13 it is in fact the Cabinet – which forms the Government of Singapore together with the President and of which the Prime Minister is the head – that decides whether to issue a Proclamation of Emergency. The powers that Parliament has while a Proclamation of Emergency is in force are broad, 14 though any ordinance promulgated while the

Daniel O’Donoghue, ‘Coronavirus: What new powers will Boris Johnson have under emergency virus legislation?’ (The Press and Journal, 18 March 2020) <> accessed 18 April 2021. 6 Graeme Cowie, ‘Coronavirus Bill: Amended time limits and post-legislative review’ (House of Commons Library, 25 March 2020) <> accessed 18 April 2021. 7 Coronavirus Act 2020, s 98. 8 ibid. 9 Ministry of Law Singapore, ‘Second Reading Speech by Minister for Law, Mr K Shanmugam, on the COVID-19 (Temporary Measures) Bill’ (Parliamentary Speeches, 7 April 2020) <> accessed 22 April 2021. 10 Constitution of the Republic of Singapore, art 150(1). 11 ibid, art 150(2). 12 ibid, art 150(3). 13 Jaclyn Neo and Darius Lee, ‘Singapore’s Legislative Approach to the COVID-19 Public Health “Emergency”’ (Verfassungsblog on Matters Constitutional, 18 April 2020) <> accessed 24 April 2021. 14 ibid. 5


Singapore Comparative Law Review Proclamation is in effect expires six months after the Proclamation is first issued. 15 To reiterate, despite the gravity of the situation with which the Singaporean government was faced, it ultimately did not choose to resort to using emergency powers. With some historical context, however, this appears less astounding than it seems. Prior to Singapore gaining its independence on 9 August 1965, there had only been two instances in which emergency powers were used. The first was in 1948 in response to an armed insurgency launched by the Malayan Communist Party 16 and the second in 1964 during the tumultuous period known as Konfrontasi17 which involved armed incursions and other violent attacks in several states which were to be included in the Federation of Malaysia, including Singapore. A similarity can be drawn to the UK. Under Part 2 of the Civil Contingencies Act 2004 (the “CCA” or “CCA 2004”), a senior Minister of the Crown may make emergency regulations for a wide range of serious matters,18 subject to three conditions, 19 one of which being that the need for making such a provision is urgent,20 particularly when ‘existing legislation cannot be relied upon without the risk of serious delay’. 21 One of the ways in which an emergency is defined in the Act is an event or situation which threatens serious damage to human welfare, 22 but only where it, amongst other things, involves, causes or may cause the loss of human life, 23 human illness or injury24 and disruption of services relating to health. 25 These emergency regulations are subject to several limitations, one of which is that they shall lapse ‘at the end of the period of 30 days beginning with the date on which they are made’. 26 Having now looked at what the response in each country could have been, I now turn to what response was taken and how they can be characterised. How the actual responses have been characterised How can the actual approach that was taken in each jurisdiction be characterised? Professors Ferejohn and Pasquino proposed describing such approaches using the ‘legislative model’, pointing out that ‘even those nations that have constitutional emergency powers’ – like in Singapore – ‘usually have chosen to employ legislative emergency powers instead’.27 Under this model, emergencies are handled by ‘enacting ordinary statutes that delegate special and temporary powers to the executive’, implying that these powers granted during emergencies are merely temporary and once the emergency subsides, ‘there will be a return to ordinary legal and political processes’. 28 The primary advantage of using ordinary statutes to deal with crises such as the COVID-19 pandemic is that the legislature is able to – and rightly should – ‘monitor the use of the emergency powers, to investigate abuses, to extend those powers if necessary, and perhaps to suspend them if the emergency ends’.29 As mentioned earlier, in Singapore the SG Act was passed to deal with the

Constitution of the Republic of Singapore, art 150(6). ‘Emergency is declared in Singapore’ (HistorySG, 1 August 2019) <> accessed 8 July 2021. 17 ‘Confrontation’ in Bahasa Indonesian. Konfrontasi was marked by a series of conflicts started by Indonesia. 18 Civil Contingencies Act 2004, s 22. 19 ibid, s 21. 20 ibid, s 21(4). 21 ibid, s 21(5)(a). 22 ibid, s 19(1). It also includes such damage to the environment, or, war or terrorism which threatens to seriously damage the UK’s security. 23 ibid, s 19(2)(a). 24 ibid, s 19(2)(b). 25 ibid, s 19(2)(h). 26 Civil Contingencies Act 2004, s 26(1)(a). 27 John Ferejohn and Pasquale Pasquino, ‘The law of the exception: A typology of emergency powers’ [2004] 2 IJCL 2, 234. 28 ibid 217. 29 ibid. 15 16


Singapore Comparative Law Review pandemic, which was in turn used to create the SG Regulations. In the UK, the legislative response to the pandemic has come from two main sources: the Public Health (Control of Disease) Act 1984 (the “PHA” or “PHA 1984”) – which pertains to the ‘control of disease and to the establishment and functions of port health authorities’ 30 – and the UK Act (discussed above). 31 Issues with the legislative model I now explore the issue of what constitutional issues arise from the use of COVID-19 legislation under the ‘legislative model’ of crisis-management. The strengths of the legislative model, as identified by Ferejohn and Pasquino, are arguably also the same sources of its weaknesses. The very wording of the ordinary statutes passed act as their own proverbial kryptonite. For example, Schedule 22 of the UK Act, which covers powers to issue directions relating to events, gatherings and premises, allows the Secretary of State to ‘issue a direction prohibiting, or imposing requirements or restrictions in relation to… a specified event or gathering, or events or gatherings of a specified description’.32 Meanwhile, parts of the CCA 2004 allow for emergency regulations to be made in an ‘event or situation which threatens serious damage to human welfare in the United Kingdom’ 33 for the purposes of ‘protecting human life, health or safety’ 34 via prohibiting or enabling ‘the prohibition of, movement to or from a specified place’35 or ‘assemblies of specified kinds, at specified places or at specified times’.36 This seems to resemble the situation caused by the pandemic, notwithstanding the fact that making use of the CCA 2004 to tackle the pandemic rather than the newer UK Act would also have meant that more regular reviews of the power (30 days) would have been in place. Perhaps what ‘could have been’ is better termed what ‘should have been’. Counter-arguments Swift and effective – these are two words that aptly describe what any response to a crisis as severe as the one presented by the pandemic ought to be. To achieve the former would probably mean being able to implement measures as quickly as possible; to achieve the latter could involve having the ability to draw on a broader range of powers to tackle the issue in any shape or form. In some ways, the legislative model used by both Singapore and the UK manages to achieve both. It is worth recalling that the SG Regulations were passed on the same day as the SG Act and the UK Act allowed ministers to swiftly implement measures to tackle the most immediate concerns. Despite being broad and discretionary, this legislation accords Minsters a greater degree of Ministerial discretion and reduces the need for deliberation in Parliament, which allows for actions to be taken more rapidly to mitigate the impact of the coronavirus. Furthermore, while adopting emergency regulations could have resulted in more regular reviews of the power as discussed earlier, it is again questionable if the minutiae of these emergency regulations require amendment at such regular intervals when situated in the context of a pandemic. Unlike violent uprisings,

Public Health (Control of Disease) Act 1984. Alex Nice, Raphael Hogarth, Joe Marshall, Catherine Haddon and Alice Lilly, ‘Government emergency powers and coronavirus’ (Institute for Government, 22 March 2021) <> accessed 24 April 2021. 32 Coronavirus Act 2020, Schedule 2 s 5. 33 Civil Contingencies Act 2004, s 19(1)(a). 34 ibid, s 22(2)(a). 35 ibid, s 22(3)(d). 36 ibid, s 22(3)(f). 30 31


Singapore Comparative Law Review for example, observing the effects of a pandemic usually takes time and it is not immediately recognisable whether one policy has had the desired impact on the situation at hand. The UK and Singapore: Who Got it Right? Having examined both the emergency regulations and the coronavirus legislation in the UK and Singapore, I now seek to answer the question of whether the 2 countries adopted the right approach. It is important to recognise at the outset that, while both countries have provisions for emergency regulations, and while both have chosen to instead enact bespoke primary legislation to tackle the pandemic, the 2 regulations within each category are not identical. With regard to Singapore, it is argued that Singapore was right to opt for enacting new legislation rather than resorting to the use of emergency regulations. A strong reason put forth for this relies on Bagehot’s famous idea of the ‘efficient secret… described by the close union, the nearly complete fusion, of the executive and legislative powers’.37 It recognises that nearly every one of the currently elected Members of Parliament in Singapore are members of the People’s Action Party (the “PAP”), which has been in power since Singapore’s Independence, and that the incumbent President was herself also a former member of the PAP, making it easy for the government to pass the appropriate laws to tackle the pandemic without much opposition. 38 Given the efficiency of this close union between the executive and the legislature and taking into consideration the different time scales that operate in the face of a pandemic rather than a violent insurrection, there is little reason to issue a Proclamation of Emergency and declare an explicit suspension of rights.39 As for the UK, the opposite is true. In favour of enacting the UK Act, it was argued by the Chancellor of the Duchy of Lancaster that the CCA was meant ‘to be used when you have an unexpected bolt from the blue rather than when you have something that is, as we saw, a developing threat’. 40 According to this view, which was earlier put forward by the Leader of the House of Commons, 41 the CCA was only to be used in sudden and unexpected circumstances rather than in the context of an epidemic which typically progresses at a more gradual pace. However, this view has been criticised for being a misinterpretation of the CCA, as the scope of section 19 of the CCA 42 clearly includes a pandemic. 43 Another argument – one by the Paymaster General Penny Mordaunt – that was raised in favour of resorting to the use of the UK Act rather than the CCA was that the former gave ‘greater legal certainty’ as emergency regulations under the CCA ‘would have required parliamentary approval within seven days;… could have been struck down in the court as secondary legislation; and would have had to be renewed every 30 days’. 44 Yet, it is these same features of the CCA that would have more regularly held the government accountable for any measures they implemented to tackle the COVID-19 pandemic. The Public Administration and Constitutional Affairs Select Committee of the House of Commons in scrutinising the government’s handling of the pandemic put forth a suggestion that marries the benefits of both the CCA and the UK Act: it suggested Walter Bagehot, The English Constitution (2nd edn, Little, Brown and Company 1873) 76. Darius Lee, ‘Singapore’s Legislative Response to the COVID-19 “Emergency”’ (2020) <> accessed 8 July 2021. 39 ibid. 40 Public Administration and Constitutional Affairs Committee, Oral Evidence: The Work of the Cabinet Office (HC 201921, 118) para Q216. 41 ‘[The CCA] would not have worked in these circumstances, because the problem was known about early enough for it not to qualify as an emergency under the terms of that Act’: HC Deb 19 March 2020, vol 673, col 1178. 42 See n 25-28. 43 Public Administration and Constitutional Affairs Committee, Oral Evidence: Responding to Covid-19 and the Coronavirus Act 2020 (HC 2019-21, 377) para Q40. 44 Letter from Rt Hon Penny Mordaunt MP to William Wragg MP (21 August 2020). 37 38


Singapore Comparative Law Review that the CCA could have been used as a ‘stop-gap’ at the beginning to give Parliament more time to scrutinise the Coronavirus Bill that would then have become the UK Act, as it recognised that ‘[b]espoke primary legislation has the advantage of going through the stages of Parliamentary scrutiny’. 45 Such an approach would also have had the added advantage of ensuring ‘greater legal certainty’ – to borrow the words of the Paymaster General – once the UK Act is eventually passed. As such, it is argued that the UK ought to have at the very least made use of emergency regulations enshrined in the CCA first before resorting to enacting bespoke primary legislation. Conclusion The pandemic has undoubtedly taken a colossal economic, psychological, and bodily toll on nearly every individual. Yet it has also opened up opportunities to delve into intricate issues of constitutional significance – issues which would normally not have arisen if not for the existence of a crisis. Not only is it interesting to examine the constitutional issues that COVID-19 legislation has created, but it is also relevant to consider the sort of precedent that this will set for future issues. While it appears that resorting to emergency regulations would have, at the very least, allowed for more frequent legislative checks, the ultimate result of the two governments adopting the legislative model suggests that the legislative model will continue to be the go-to method of choice when dealing with crises of this sort in the future. Nonetheless, it is possible that in the future, emergency regulations will act as an interim, short-term measure to iron out the wrinkles in this metaphorical well-fitted shirt that is bespoke primary legislation.

Public Administration and Constitutional Affairs Committee, Parliamentary Scrutiny of the Government’s handling of Covid-19 (HC 2019-21). 45



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Singapore Comparative Law Review

PART B: Public Law


Singapore Comparative Law Review

Raison d’être or a mug’s game? Proportionality, Irrationality, the way forward in Administrative Law Kan Jie Marcus Ho+ Introduction Undergirding modern democracy bubbles an entrenched paradox – the executive, imbued with administrative powers, must ultimately exercise discretionary powers over the genesis of its source – the people of the nation. This supposedly unfettered exercise is nevertheless curtailed by the omnipotent presence of the judiciary in policing the boundaries of executive decision-making. Nevertheless, as Lord Sumption made clear in his 2011 FA Mann Lecture, it does remain unclear at times as to where the boundaries should lie. 1 Viewed thus, proportionality has largely emerged as a panacea to remedy this paradoxical issue. Though proportionality has indeed heralded an additional weapon into the judicial review toolkit, this doctrine has itself been plagued with difficulties, rendering it hollow and otiose at times. English Law has firmly entrenched proportionality within judicial review, as conceptualised by Lord Sumption in Bank Mellat (No. 2), being whether the (i) objective was sufficiently important to justify the limitation on fundamental right, whether the (ii) measure was rationally connected to the objective, whether a (iii) less intrusive measure could be used, and (iv) having regard to all the circumstances and consequences, whether a fair balance has been struck between the rights of the individual and the needs of the community. Singapore Law, however, has refused to recognise it as a distinct doctrine, insofar as confining it to merely an “adjunct of irrationality” (Colin Chan Hiang Leng).2 This article therefore seeks to examine the efficacy of proportionality through both an English and Singapore perspective. In the final analysis, this article argues that principles of proportionality ought to be imbued within irrationality, leading to a point whereby both doctrines are not mutually exclusive in both jurisdictions.

English Law Traditional judicial review in English Law draws a bifurcation between Wednesbury unreasonableness and proportionality in policing the validity of administrative decisions. Per Lord Steyn in R (Daly) v SS,3 the proportionality test is invoked whenever a qualified right enshrined in the Human Rights Act 1998 (‘HRA’) is engaged – the right to life,4 right to a fair trial5 and right to family life6 are common rights that have frequently been pleaded before English Courts, though any such right within the Act may most certainly suffice to invoke the proportionality test. Beyond this ambit, the classic Wednesbury unreasonable/irrationality test applies – which, as Lord Greene MR opines, is a decision “so unreasonable that no reasonable authority would ever consider taking it”. 7 This chafes against the standard of proportionality – which as Lord Sumption summarised, requires a decision to be imbued with (i) a sufficiently important objective, (ii) being rationally connected to accomplishing that objective, (iii) having

B.A. (Hons) (Law) (Cantab) (First Class Honours), LL.M (Harvard) (Candidate). I am grateful to the anonymous reviewers for their comments on earlier drafts. Any errors remain my own. 1 J. Sumption, ‘Judicial and Political Decision-making: The Uncertain Boundary’ [2011] JR 301, 301. 2 Colin Chan Hiang Leng v Minister for Information and the Arts [1996] 1 SLR(R) 294 at [38] 3 R (Daly) v Secretary of State for Justice [2001] UKHL 26 at [26] 4 Art 2, Human Rights Act 1998 5 Art 6, ibid. 6 Art 8/12, ibid. 7 Associated Provincial Picture Houses Ltd v Wednesbury Corp at 229 +


Singapore Comparative Law Review no reasonably less intrusive alternative, and (iv) striking a fair balance between individual rights and public interests.8 A fork in the road thereby emerges. As rightly pointed out by Lord Kerr in Keyu v Foreign Secretary (“Keyu”), “final conclusions on the [bifurcation] between proportionality and irrationality” remain unsettled. 9 Four points of tension remain, amidst the bramble – whether (i) irrationality and proportionality are forms of review which are bluntly opposed to each other and mutually exclusive, whether (ii) intensity of review operates on a sliding scale, dependent on the nature of the decision under question and that, in consequence, the debate about a “choice” between proportionality and rationality is no longer relevant, whether (iii) there is any place for a “pure” irrationality ground of review, and whether (iv) proportionality provides a more structured and transparent means of review. In addressing the four problems raised by Lord Kerr, this article will conduct a litmus test on Craig’s (2013) view that proportionality provides a more structured and transparent means of review, 10 contrasting this against Daly’s (2011) arguments in defence of irrationality. 11 Further, this article will explore if there are any grounds for a ‘pure’ irrationality review, as suggested by Cooke (2004),12 ultimately striking down Taggart’s (2015) ‘rainbow of review’ doctrine 13 and making an argument for a far more flexible irrationality doctrine.

Craig – Proportionality Provides a More Structured Means of Review

Craig, writing in support of proportionality, views the doctrine as a far more ‘structured’ and ‘transparent’ means of review. This is juxtaposed to Wednesbury irrationality, which he terms ‘imprecise’, due to the (i) lack of a clear test and (ii) being formulated at an extreme. The substratum of Craig’s argument is as follows – the exact considerations which a judge must have due regard to when utilising a Wednesbury test have largely been shrouded in fog. Indeed, the veracity of Craig’s concerns may be proven empirically, through a juxtaposition between the positions adopted by the Courts in Rotherham 14 and Keyu. 15 In the former, normative values such as “equality” were embraced by Lord Sumption as relevant for the purposes of an irrationality review.16 However, this chafes against the latter, where Lady Hale propounded a set of criteria that includes balancing between the benefits and the costs of said policy adopted, which must be fulfilled before the irrationality threshold is exceeded. 17 This means that the yardstick used to measure whether an administrative decision is rational/irrational is inconsistent, which thereby renders it a doctrine lacking structure. Indeed, absent a clear test, Administrative Law falls foul of legal certainty. In contrast, Daly offers a rope out of the rabbit hole. In attempting to cast Wednesbury in a “new light”, he argues an “indicium” of unreasonableness may be drawn up, thereby sweeping away the shroud of uncertainty. This “indicium”, he argues, includes the principles of irrationality, disproportionality, inconsistency with statute, differential treatment, as well as conflict with principles of interpretation. Taken further, the acceptance of disproportionality as an element of Wednesbury does signal an implicit acceptance by Daly of proportionality belonging within Wednesbury. In a 2017 blog post,18 Daly added the factors of n2 at [20] Keyu v Foreign Secretary [2015] 3 WLR 1665 at [278] 10 P. Craig, ‘The Nature of Reasonableness Review’ [2013] Current Legal Problems 1 11 P. Daly, ‘Wednesbury’s Reason and Structure’ [2011] PL 258 12 n4 at [32] 13 M. Taggart, ‘The Scope of Intensity of Substantive Review – Traversing Taggart’s Rainbow’, Hart Publishing, 2015. 14 R (Rotherham MBC) v Business Secretary [2014] EWHC 232 (Admin) 15 n10 16 n15 at [26] 17 n10 at [309] 18 P. Daly, ‘Values and Variable Intensity of Wednesbury Review’; November 11, 2017. 8 9


Singapore Comparative Law Review good governance, fairness, and administration to this “indicium”. Prima facie, an acceptance of Daly’s position chafes uneasily against Craig’s assertion that proportionality is preferable because of an “explicit criterion”. Dissenters to the proportionality test may point out that Lord Sumption’s “necessary” and “fair balance” limb are equally hollow – leading to the conclusion that proportionality is no more certain than irrationality. It is on this basis that detractors of Craig’s argument propound the notion that the Wednesbury test is in fact, not as uncertain as it seems, further arguing that it ought to be the go-to test. This is precisely the position in Singapore, wherein Wednesbury remains the only available test for the courts. Likewise, this article argues that the second limb of Craig’s assertion – that irrationality is formulated at the extreme, similarly cuts little ice. The theoretical and practical dichotomy reveals that a hard-lined position is far from what courts are in fact doing in practice. Indeed, Daly’s petitions are a timely move – a more nuanced examination of the “monolithic concept of irrationality” ought to be forthcoming, for a closer look reveals that courts are not taking a rigid position in most cases. ‘Sub-Wednesbury’ cases, which usually involve important interests or rights, often have the standard of review dialled up by courts. Ex parte Bugdaycay19 and Smith 20 are vivid examples, said cases placing a large concern on the idea of individual autonomy. Conversely, ‘super-Wednesbury’ cases, which involve democratically legitimate decision-makers, see the standard of review being dialled down. In Ex parte HF, 21 Lord Bridge cited Lord Scarman, emphasising that “the formulation and implementation of national economic policy are matters depending essentially on political judgment”, for said decisions ought to take place “in the political forum of the House of Commons”. This view was further emphasised by Nottinghamshire CC v ES,22 which involved a procedure in which ministerial decisions on various matters relating to financing by local authorities were required to be approved by a resolution of the House of Commons. Indeed, the recognised sub- and super-Wednesbury standards of review, sensitive to context, may offer the same flexibility to context as proportionality. For example, Bingham MR in Smith adopted a sub-Wednesbury standard due to the human rights context, whereas HF and Nottinghamshire involved a decision deeply imbued by democratic processes. Craig’s assertion - that Wednesbury review is more inflexible, lacking a sliding scale of review arguably falls flat, for such assertions cut little ice against the above instances.

A ‘Pure’ Irrationality Head of Review? This criticism further spills onto Lord Cooke’s theorisation of a ‘pure’ irrationality review, where the question of whether a decision maker would have reached the same conclusion is set at a more realistic standard by theoretically ‘widening the scope of review than the orthodox test set at the extreme’. 23 Here, the question asked is whether a reasonable decision-maker would have reached the same conclusion. The advantage of this formulation is that it allows for a sliding scale of review, whereby the determination of what is ‘reasonable’ in Wednesbury will be dependent on context. Notwithstanding, Cooke is not engaging in mere theocratization, for this trend has been largely observed in English Law. Indeed, in Rotherham, the Supreme Court adopted a less intensive form of review through deference to the government. 24 This less intrusive approach was justified, for the allocation of funds fell outside the court’s expertise, as it is an issue largely suited for the political dimension due to deep-seated social and economic concerns. This can be juxtaposed to Brind, where the House of Lords adopted an intensive form of irrationality review. 25 The Home Department, ex parte Bugdaycay [1987] AC 541 R v Ministry of Defence, ex parte Smith [1996] QB 517 21 R v Environmental Secretary, ex parte Hammersmith and Fullham London Borough Council [1991] 1 AC 521 22 Nottinghamshire County Council v Environmental Secretary [1986] AC 240 23 R (Daly) v Secretary of State for Justice [2001] UKHL 26 at [32] 24 R (Rotherham MBC) v Business Secretary [2014] EWHC 232 (Admin) 25 R v SS for the Home Department, ex parte Brind [1991] 1 AC 696 19 20


Singapore Comparative Law Review argument runs that giving free reign to administrative powers would create a fetter on free speech and expression, which is regarded as an important human right. The endgame is that irrationality is therefore no longer a blunt doctrine, for it is sensitive to the circumstances at play. Indeed, Cooke’s assertions do bear some weight, and this position may materialise within English law in due course Notwithstanding, a sliding scale can be transposed into proportionality. In juxtaposing A v Home Secretary (“A”) 26 with Miss Behavin’, 27 courts appear to have been introducing said degree of nuance into proportionality. In the former, despite concerns of national security, a high intensity of proportionality review was adopted. Though this chafes against Hunt’s (2003) doctrine of “spatial” deference, A shows the importance of human rights in any exercise of intensity review by the courts. 28 Conversely, in Miss Behavin’, a lower intensity of proportionality review was adopted. The court expressed doubt as to the ‘fundamentality’ of the right of expression in the domain of pornography materials. Therefore, a sliding scale of review may exist in proportionality as well.

Two Sides of The Same Coin? The entire debate in choosing between proportionality and irrationality may have been but a false dichotomy. In Keyu, Lord Neuberger admitted that in substance, the two are the same, though tepidly suggesting a wider panel of judgements would be required to affirm this proposition. This article contends that they are largely similar in standard – A and Brind show that the use of both doctrines often leads to the same result. Indeed, if Daly’s “indicium” of unreasonableness is what courts are making use of, these being in fact the same factors weighed up in both the ‘necessity’ and ‘fair balance’ limbs of proportionality, what is being weighed up in irrationality and proportionality is not all that different. This article therefore argues that the doctrines of irrationality and proportionality must not be mutually exclusive moving forward, because a ‘choice’ is but illusory. Instead, this article advances the view that the duo ought to be fused into a single test, comprising both the “indicium” suggested by Daly, as well as the balancing exercise currently applied in proportionality. This fully acknowledges what courts have been doing all along, in turn unravelling the archaic and strained language which led to this entire debate. Indeed, the assertion that having different types of review (such as Wednesbury and proportionality) enables courts the discretion to make the right decisions through various channels likely holds little water, as it heralds a wave of uncertainty which is contrary to the rule of law, and chafes uneasily against UK constitutional principles. Insofar as Taggart’s doctrine holds any weight – the view that proportionality should be used when EU Human Rights matters are at play, whilst irrationality is applied to all other matters, it is argued that the divide between human and non-human rights is but an arbitrary bifurcation. Miss Behavin’ and Brind have shown that a hierarchy of “qualified” and “absolute” human rights exist in English law, the strength of any human right claim being context sensitive within the HRA. This heralds a tumble into the realm of uncertainty yet again. Despite Taggart’s view aligning more with current orthodoxy, from a normative point of view, the ‘sliding scale’ irrationality review ought to be the port of call for English Law in the coming decade. In contrast to English Law, Singapore Law has firmly rejected proportionality as an independent head of review.29 Singapore’s approach, whilst rooted in the common law, has justifiably differed from the UK by reason of incompatibility with Singapore legal culture. Though Singapore courts have relegated A v Secretary of State for the Home Department [2004] UKHL 56 Belfast City Council v Miss Behavin’ Limited [2007] 1 WLR 1420 28 M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs the Concept of Due Deference’, Public Law in a MultiLayered Constitution, Hart Publishing, 2003. 29 Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 at [87] 26 27


Singapore Comparative Law Review proportionality to an “adjunct of irrationality”,30 Singapore has been slowly moving towards a more flexible analysis. This section therefore argues the literature analysis as conducted earlier is relevant, particularly in developing Wednesbury review in Singapore Administrative Law.

Singapore Law The orthodox position pertaining to irrationality in Singapore is laid out in Chng Suan Tze v Minister for Home Affairs.31 In that case, the Singapore Court of Appeal (‘SGCA’) required an administrative action to be “so disproportionate as to be irrational” before said doctrine can be availed of. In Colin Chan, the court at [39] stated that the test for irrationality is that of Wednesbury unreasonableness. Though City Developments v Chief Assessor held that whether a decision-maker had taken irrelevant factors into account was a criterion in deciding whether the decision was unreasonable in the Wednesbury sense, 32 this does not necessarily diverge from the English position, for Lord Greene in Wednesbury acknowledged that taking extraneous factors into account could be seen as an aspect of the unreasonableness. 33 Conversely, proportionality in Singapore beats to a different rhythm. Bubbling within the undergrowth of the Singapore judiciary lies the apprehension that a proportionality test would lead to the risk of merits review, with courts beginning to stray across the territory which the executive ought to have sole authority. Though this apprehension may hold some weight in English Law, the UK position is largely different, for the HRA imbues the judiciary with a wider constitutional mandate to review administrative decisions. Viewed thus, the concern that an administrative decision is substituted by the judiciary is a bark up the wrong tree, for it is unlikely that proportionality imbues the judiciary with free reign. Indeed, common law proportionality has but enjoyed a slow creep and is unlikely the dangerous doctrine which dissenters claim it to be. The lack of mutuality between irrationality and proportionality in Singapore law was recognised in Dow Jones v AG, 34 where the SGCA viewed irrationality as part of a set where proportionality is a subset of irrationality. The limited range of factual permutations triggering judicial review in Singapore Law therefore renders the doctrine of proportionality as lacking veracity. V K Rajah J in Chee Siok Chin v Minister for Home Affairs swept proportionality aside, viewing it as a European doctrine. The reason underlying this concern arises from the caution of the Singapore judiciary against undesirable effects arising from cross-fertilisation of Singapore and European doctrines. As Chan Sek Keong (2010) points out, explicit endorsement of the green-light theory of public law – which sees “public administration not as a necessary evil but with a positive attribute” focusing on “seek[ing] good government through the political process and public avenues rather than redress[ing] bad government through the courts”, 35 chafes uneasily against proportionality, for courts have “traditionally accord[ed] deference to the Executive’s determination”, as emphasised by Sundaresh Menon CJ.36 The SGCA was at pains in Colin Chan to affirm Brind, citing the “four walls” doctrine, noting the differing “social conditions” in Singapore with other jurisdictions. The “four walls” doctrine is undergirded by the rationale that the Constitution is to be interpreted within its own four walls, and not in light of analogies drawn within other jurisdictions. Chan was therefore concerned that the introduction of any proportionality test would inevitably “hinge on the court’s view of the reasonableness of the law in question, in turn requiring the court to intrude into the legislative sphere of n3 Chng Suan Tze v Minister for Home Affairs [1998] 2 SLR (R) 525 at [79] 32 City Developments v Chief Assessor [2008] 4 SLR (R) 150 at 156 at [10] 33 Associated Provincial Picture Houses Ltd v Wednesbury Corp at 229 34 Dow Jones Publishing Co v Attorney-General [1989] 1 SLR(R) 637 35 S.K Chan, ‘Judicial Review – From Angst to Empathy’ (2010) 22 Sing Acad LJ 469 at 479-483. 36 n3 30 31


Singapore Comparative Law Review Parliament and engage in policy making”. 37 As made clear in Chee Siok Chin, proportionality “has never been a part of Singapore law” 38 and courts ought to steer clear of reviewing the “wide discretionary power or remit”39 granted to administrative bodies by Parliament. Indeed, the language of arguments relating to proportionality is likely unsuitable in the Singapore context, for the use of “reasonableness” suggests that partitions of proportionality may only stretch to proportionality being a sub-category in Wednesbury unreasonableness/irrationality review. It is rather unlikely that proportionality would hold any weight as a distinct doctrine in Singapore.

Human Rights in Singapore Whilst this stems from the lack of a bright-line explicit bastion for human rights, contrary to the UK’s HRA, Articles 9 to 16 of the Singapore Constitution undergirds various “fundamental liberties” ranging from Liberty of the Person, Slavery, Protection against Criminal Retroactivity, and Equal Protection, amongst others. Though Lee (2014) makes a petition for the “spirit” and not the “letter” of the proportionality doctrine to be introduced into Singapore, when rights per Articles 9 to 16 are in play, this is not reflected in present law.40 This article however acknowledges that Lee has a valid point – insofar as the Singapore Constitution sits as a bedrock of society-guaranteed rights, a stricter standard of review ought to be accorded. Indeed, Law Society v Tan Guat Neo emphasised that “the discretionary power to prosecute under the Constitution is not absolute”, for all “legal powers, even one [that is constitutional], have a limit”. 41 It is here where this article argues that Lord Cooke’s conception of irrationality for English Law could be transposed into Singapore Law. For cases involving important constitutional rights, a more intensive form of irrationality review could be adopted, which will respect fundamental liberties. Whilst it may be argued that deference to executive bodies may be warranted, particularly when the administrative act results from a valid democratic process, a more flexible standard of review must be affirmed when important constitutional rights are at stake. In any instance of constitutional adjudication, primary rights may be potentially infringed, rendering the separation of powers doctrine otiose. Judicial intervention in such cases respects primary rights and signals a nod of acknowledgement and an exercise of deference in respect of the constitution – which is the preferable alternative Singapore must move towards. Whilst introducing any flexibility to the Singapore irrationality doctrine may lead to excessive caution by administrative bodies, thereby curtailing efficiency to some extent, this article argues that this assertion is nothing but a misnomer. As Jowell (1997) points out, introducing a more exacting test to control administrative decision making will encourage greater standards, whilst constantly mandating authorities to self-check whether there remains a less intrusive means to achieve their desired outcomes. 42 The courts in Ong Ah Chuan v Public Prosecutor have adopted Lord Diplock’s pro-rights stance (“In a constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties of rights”), imbued with the proposition that the judiciary must give constitutional provisions a more generous interpretation to avoid tumbling into the rabbit hole of the “austerity of tabulated legalism”, thus ensuring the full measure of fundamental liberties is accorded to individuals. 43 Insofar as the bright-line rule that Parliament is the only organ with the ability to decide issues relating to social policy applies, as acknowledged in Rajeevan Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489 at [80] n29 at [87] 39 Ibid. at [49] 40 J.T Lee, ‘According to the Spirit and not to the Letter: Proportionality and the Singapore Constitution” [2014] 8(3) Vienna Journal on International Constitution Law 276 at 276. 41 Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 at [149] 42 J. Jowell, ‘In the Shadow of Wednesbury’ [1997] JR 75 43 Ong Ah Chuan v Public Prosecutor [1980] SLR(R) 710 37 38


Singapore Comparative Law Review Edakalavan v Public Prosecutor,44 this ought to be sidestepped for important constitutional rights. This, it is argued, will enhance decision making and protect fundamental liberties within Singapore Administrative Law. As analogous to Daly’s “indicium” of unreasonableness, this suggestion for Singapore Law will include fundamental liberties within the ambit of judicial review, and the final position sees English and Singapore jurisdictions moving towards a largely similar endgame. In English Law, Daly’s “indicium” ought to be included in irrationality, with the balancing test imbued within principles of proportionality being “fused” into said doctrine. In Singapore Law, respect for the nuances of Singapore Legal Culture sees a small step being infused into the irrationality doctrine, and an imposition of Daly’s “indicium”, limited to fundamental liberties, is the preferable route moving forward.

Conclusion In the final analysis, this article has advanced the proposition that principles of proportionality ought to be imbued within irrationality in English Law, leading to a final position where both doctrines are not mutually exclusive. The recognition of a sliding scale of intensity for irrationality review allows English law to finally reflect the fact that Wednesbury is not truly distinct from proportionality, as evidenced by sub- and superWednesbury cases, hence moving away from a rigid doctrine of irrationality. In the latter section, this article has contended for a contextualised transposition of this theoretical view to Singapore Law, through petitioning that a more flexible test of irrationality ought to be adopted in cases of fundamental liberties, albeit distinct from the HRA regime. If a sliding scale of review in English Law could be transposed into Singapore Law in this limited context, the fetters of the rigid ambit of irrationality will finally give way. This approach better reflects fundamental liberties, ensuring a fair balance between the judiciary and the executive. The Gordian knot is thereby unravelled, for an irrationality doctrine in both English and Singapore Law is substantiated, imbued with nuances, sensitive to context of each case, though not falling foul of legal certainty, because various factors, undergirded by Daly’s ‘indicium’, guide the way in each analysis.


Rajeevan Edakalavan v Public Prosecutor [1998] 1 SLR(R) 18-19


Singapore Comparative Law Review

Words Can Never Hurt Me? Evaluating s298A of the Singapore Penal Code Cai Fang Wei Introduction The recent proliferation of race-related discussion on social media has raised questions as to the scope of hate speech legislation in Singapore. In August 2019, YouTuber Preeti Nair and rapper Subhas Nair were issued a conditional warning under s298A(a) of the Penal Code 1 for the rap video they made in response to the recent ‘brownface’ controversy (in which a Chinese actor-deejay painted his face brown to depict an Indian man). The warning elicited a social media uproar, with playwright Alfian Sa’at arguing that ‘the ones who call out acts of racism’ should not ‘have the instruments of the state used against them’. 2 Similarly, in September 2020, opposition MP Raeesah Khan was issued a stern warning under s298A(a) of the Penal Code for several social media posts. 3 This again triggered a heated debate over the scope of hate speech laws. This article posits that s298A of the Singapore Penal Code should be modified. Although it suitably punishes some racist acts, it is far too broad as it (i) violates the harm principle; (ii) can be used to punish conduct which is not morally blameworthy; and (iii) chills socially valuable discussion on race and religion. The author proposes that the threshold for offence required for a conviction under s298A should be heightened to match legislation in England and Wales.

Legal background S298A of the Penal Code states, “whoever (a) by words, either spoken or written, or by signs or by visible representations or otherwise, knowingly promotes or attempts to promote, on grounds of religion or race, disharmony or feelings of enmity, hatred or ill-will between different religious or racial groups; or (b) commits any act which he knows is prejudicial to the maintenance of harmony between different religious or racial groups and which disturbs or is likely to disturb the public tranquillity is guilty of an offence.” Parliamentary debate shows that the offence in s298A was created pursuant to amendments of the Penal Code in 2007 as a response to the increased risk of extremists stirring up racial and religious enmity. This was demonstrated in other countries where individuals of particular races or religions faced discrimination in the aftermath of terrorist attacks, such as Muslims after the 7 July London bombings. 4 The existing

Tessa Oh, ‘Siblings Preeti and Subhas Nair Given Conditional Warning for Rap Video’ Today (Singapore, 14 August 2019) <> accessed 6 June 2001. 2 The Online Citizen, ‘Penatlah’: Singaporean Playwright Alfian Sa’at, on Racism and Chinese Majoritarianism (Singapore, 2 August 2019) <> accessed 6 June 2001. 3 Wong Shiying, ‘WP MP Raeesah Khan Given Stern Police Warning for Social Media Posts that Promoted Enmity Between Different Groups’ The Straits Times (Singapore, 18 September 2020). <> accessed 6 June 2001. 4 Singapore Parlamentary Debates, Offical Report (22 October 2007) vol 83 (Ho Peng Kee, Senior Minister of State for Home Affairs). 1


Singapore Comparative Law Review Sedition Act, despite covering largely similar forms of speech, was deemed a ‘high signature Act’,5 rendering it inadequate for prosecuting hate speech. In England and Wales, ss18-22 and ss29B-29F of the Public Order Act 1986 (POA) are counterparts to s298A in Singapore. Together, ss18-22 prohibit: ●

the use of ‘threatening, abusive or insulting words of behaviour’ which are either intended to stir up racial hatred, or are likely to do so; 6

the publication of threatening, abusive, or insulting material; 7

the public performance of plays which contain language or behaviour which is threatening abusive or insulting;8

the distribution, showing or playing of a recording that contains visual images and sounds that are threatening, abusive or insulting; 9 and

the broadcasting of threatening, abusive or insulting visual images and sounds. 10

For each of the offences, it is sufficient that the defendant intends to stir up racial hatred, or that racial hatred is likely to be stirred having regard to all the circumstances. Similar offences under s29B-29F of the same Act prohibit inciting religious hatred. However, there are several key distinctions – 1. Types of words or behaviour prohibited: the incitement of racial hatred can be committed by using ‘threatening, abusive or insulting’ words or behaviour, but the incitement of religious hatred can only be committed using ‘threatening’ words or behaviour. 2. Requirement of intention: a defendant can be convicted of inciting racial hatred as long as this is a likely outcome, while a defendant is only guilty of inciting religious hatred if he intended to do so. The scope of current legislation Since very few prosecutions have been brought under s298A, the threshold as to the level of offence caused is unclear. However, several warnings have been issued in a series of cases which have generated public controversy. For example, in a Facebook post in 2018, Ms Thanapal called Singapore a ‘terribly racist country’ and wrote that it is constantly reinforced that ‘only Chinese people’ would be able to ‘save Singapore’, while other races are ‘lazy and violent’. No charges were brought against her, but she was issued with a stern warning. It is not clear whether she would have been convicted if the prosecution had proceeded, but the issuance of the warning indicates that it is a possibility. The ‘stirring up’ offences in England and Wales are narrower in scope. The Crown Prosecution Service guidance states that hatred is a ‘very strong emotion’ and that ‘stirring up racial tension, opposition, even

ibid. Public Order Act 1986, s18(1). 7 Public Order Act 1986, s19(1). 8 Public Order Act 1986, s20(1). 9 Public Order Act 1986, s21(1). 10 Public Order Act 1986, s22(1). 5 6


Singapore Comparative Law Review hostility may not necessarily be enough to amount to an offence’. 11 For example, in Burns, the defendant was found guilty of stirring up racial hatred contrary to s18(1) and s19(1) of the POA. 12 He had posted a series of virulently racist posts on social media, which contained vile remarks directed at Jews and AfroCaribbeans. The gist of the messages was to promote militant action against them to protect what he described as ‘an advanced warrior race consisting of white men and women’. Likewise, in Saleem, the defendants were convicted of inciting racial hatred contrary to s18(1) of the POA. They had taken part in a demonstration to protest the cartoons in a Danish newspaper, carrying placards with slogans such as ‘bomb the UK’.13 On the other end of the spectrum, it seems that offensive speech by well-intentioned activists falls outside the scope of the POA offences. For example, in 2017, transgender model Munroe Bergdorf proclaimed that the ‘entire existence’ of white people was ‘drenched in racism’. 14 This did not attract criminal charges. Nevertheless, if a Singaporean had made similar comments about Chinese people, he would most probably have incurred at least a stern warning. This reflects the broader scope of the incitement offences in Singapore as compared to England and Wales. Does s298A satisfy the harm principle The first issue is whether the criminalisation of promoting racial or religious enmity under s298A satisfies the ‘harm principle’, which holds that conduct should not be criminal unless it is harmful to others. Incitement is, by definition, an inchoate offence, and there is no need to prove that scrapping s298A would directly result in harm. However, the causal link between failure to criminalise and the risk of harm must be clear. Arguably, there is a setback to a person’s interests if there is a risk that society may become more racist because of a failure to criminalise the promotion of racial or religious enmity. This position has been endorsed by the current government. In relation to an allegedly insulting and offensive video posted by Preeti and Subhas Nair, Minister for Law K Shanmugam argued that if one rap video is allowed, hundreds of others would have to be allowed too, which imperils racial harmony. 15 He elaborated that if a Chinese person were to hurl vulgarities at a minority race, racial minorities would suffer. Similarly, the police stated that allowing more of such videos would ‘inevitably lead to more racism, more racial tensions, and eventually violence’.16 However, alleging the existence of a causal link between the failure to criminalise acts prejudicial to racial and religious harmony and the outbreak of strife is a slippery slope argument. It is unlikely that lifting s298A would significantly increase the likelihood Chinese people hurling racial epithets at other races because of the virtual certainty of ensuing social sanctions. Furthermore, it is unlikely that feelings of racial enmity would cause Singaporeans to turn to violent crimes en masse owing to the fear of criminal punishments. As such, the link between the failure to criminalise the promotion of racial and religious enmity and the outbreak of widespread racial conflict is remote. Hence, s298A does not satisfy the harm principle.

Crown Prosecution Service, ‘Racist and Religious Hate Crime – Prosecution Guidance’ <> accessed 6 June 2001. 12 [2017] EWCA Crim 1466, [2017] 9 WLUK 71. 13 [2007] EWCA Crim 2692, [2007] 10 WLUK 771. 14 Arj Singh, ‘Munroe Bergdorf: Model who Said “All White People” are Racist Appointed to LGBT+ Board by Labour MP’ The Independent (London, 27 February 2018) << news/loreal-paris-labour-party-transgender-munroe-bergdorf-dawn-butler-racist-charlottesville-a8230891.html> accessed 6 June 2001. 15 Adrian Lim, ‘Rap video by local YouTube star Preetipls on “brownface” ad crosses the line, not acceptable: Shanmugam’ The Straits Times (Singapore, 3 August 2019) <> accessed 6 June 2001. 16 ‘Siblings Preeti and Subhas Nair Given Conditional Warning for Rap Video’ (n 1). 11


Singapore Comparative Law Review In contrast, the threshold for inciting hatred under the POA offences is much higher. Convicts had employed racial epithets and, occasionally, directly called for racial violence. In light of the much higher degree of offence caused, as well as a more direct link between the crimes and the risk of violence, the ‘stirring up’ offences under the POA arguably satisfy the harm principle. Does s298A satisfy the criterion of moral culpability? Feinberg postulates that the prevention of harm is a necessary, but not sufficient, reason for criminalisation. For criminalisation to be permissible, conduct must also be wrongful. This is because criminal sentences have a stigmatic effect. Therefore, only morally wrongful conduct should attract such a sentence. Acts which are harmful but not morally wrong are more appropriately dealt with by the civil law. It is unclear whether the s298A offence covers conduct which is not morally blameworthy. Its mens rea requirement is low – as long as a defendant ‘knowingly’ promotes or attempts to promote racial or religious enmity or knows that his conduct is prejudicial to racial or religious harmony and disturbs, or is likely to disturb the public tranquillity, he could potentially be convicted. It does not matter whether he had a deliberate intention to do so. Ostensibly morally wrong acts are covered by this offence. For example, an imam who publicly prayed out loud in his mosque for ‘victory over Jews and Christians’ was convicted under s298A(b).17 However, the scope of this offence potentially extends to acts which are not prima facie morally wrong. For example, Ms Thanapal, who was issued a stern warning for her article, claimed that she had only intended to draw attention to the racial discrimination suffered by minorities. Admittedly, it is unclear whether she could indeed be convicted under the s298A offence as no charges were ultimately brought against her. Still, the possibility that she could have been convicted is worrying, given that she was not necessarily morally blameworthy. This is particularly concerning as the ostensible objective of s298A is to counter hate speech by extremists. Currently, it appears that the law in Singapore relies on prosecutorial discretion to sieve out acts which are not morally culpable, which are dealt with using stern or conditional warnings. This is unsatisfactory as it results in too much uncertainty as to when the prosecution will bring charges. Furthermore, the overreliance on prosecutorial discretion could have chilling effects on the freedom of speech. Even though a warning certainly does not amount to a conviction, a warning may be perceived as a ‘slap on the wrist’, which creates fear. This could stifle the voices of people who wish to discuss, for example, systemic racial inequality in Singapore. In contrast, the POA offences require stirring up ‘hatred’, which is more than merely ‘hostility’. The likelihood of well-meaning activists being caught by the offence is far lower. Hence, the POA is decidedly more effective at ensuring that only acts which are morally blameworthy are criminalised. Is criminalisation appropriate? Bogg and Stanton-Ife contend that the harm principle does not tell us how or when harmful activities should be dealt with by the law; it merely tells us that the law should not be used to punish harmless activities.18 As such, once it has been proven that a form of conduct satisfies the harm principle, the state has a responsibility to justify its criminalisation. This article will now consider if the criminalisation of Toh Yong Chuan, ‘Imam who Made Offensive Remarks About Jews and Christians Will be Asked to Leave Singapore’ The Straits Times (Singapore, 3 April 2017) <> accessed 6 June 2001. 18 J. Stanton-Ife and A. Bogg, ‘Protecting the Vulnerable: Legality, Harm and Theft’ (2003) 23 Legal Studies 402. 17


Singapore Comparative Law Review inciting racial and religious hatred under s298A is appropriate, even if we accept that the harm principle and the criterion of moral culpability have been satisfied. Potential for political weaponisation George argues that s298A can be weaponised by political opportunists when they demand that the state acts against political adversaries. 19 Granted, racial and religious issues can be weaponised even in the absence of such a law. However, s298A exacerbates the problem by enabling opportunists to deploy the instruments of the state against political opponents. The weaponisation of the law in furtherance of their own political agenda amounts to bad faith. However, virtually all criminal offences, most notably sexual offences, can be weaponised for political ends. If the harm caused by a certain class of conduct is severe and the conduct infringes deeply held societal values, the risk that the law could be weaponised for political purposes should not be a sufficient reason for the decriminalisation of the said conduct. Chilling effect on social discussion Criminalisation restricts liberty by limiting choices. Hence, it intrudes upon autonomy and requires the state to justify it. At the same time, Cane contends that the criminal law does not merely detract from liberty; it also has many positive functions, including protecting the rules of society so that people can choose how to live.20 When viewed in this manner, criminalisation of a class of conduct would be justifiable so long as the liberty-enhancing effects arising from the enshrinement of societal rules outweigh the attenuation of liberty arising from criminal punishments. On this perspective, the breadth of s298A is unwarranted. Even if Shanmugam’s slippery slope argument that the failure to criminalise the promotion of disharmony inevitably leads to racial and religious strife holds true (which is unlikely), there are strong reasons not to criminalise such conduct under s298A. George propounds that the existence of this offence silences socially valuable speech. 21 There has recently been increased attention directed at the problem of systemic racism in Singapore, following similar trends in the West in the aftermath of the shooting of George Floyd in the United States. The law should be sensitive to changes in social trends and accommodate socially valuable discourse. If the law is used to stifle discussion on racial issues, s298A works against the very minority groups it was designed to protect. As Neo persuasively argues, s298A ‘may be counter-productive in the long run [as] repressing open communication may lead to suspicion, resentment and division, thereby impeding true integration and the creation of a true community’.22 Protection of societal values Of course, this must be balanced against the benefits arising from the protection of societal values, such as racial and religious tolerance. Marshall and Duff explain that criminalisation is appropriate for the protection of ‘values [which are] so central to a community’s identity and self-understanding, to its

Cherian George, Hate Spin: The Manufacture of Religious Offense and Its Threat to Democracy (MIT Press 2016). Cane, ‘Taking Law Seriously: Starting Points of the Hart/Devlin Debate’ (2006) 10 The Journal of Ethics 21 21 Cherian George, ‘Section 298 is Ripe for Review’ (Air-Conditioned Nation, 28 July 2020). <> accessed 6 June 2001. 22 Jaclyn Neo, ‘Seditious in Singapore! Free Speech and the Offence of Promoting Ill-Will and Hostility Between Different Racial Groups’ (2011) Singapore Journal of Legal Studies 372. 19 20


Singapore Comparative Law Review conception of its members’ good, that actions which attack or flout these values are not merely individual matters which the individual victim should pursue for herself, but attacks on the community’. 23 Hence, the most egregious forms of incitement caused by s298A can justifiably be criminalised. This includes incitements to racial or religious conflict, such as the imam’s prayer for 'victory over Jews and Christians'. This is because this form of speech poses the greatest threat to social values and does not engender any apparent benefits. On the other hand, in the case of well-meaning commentary on social issues, the resulting public benefits – including the increased attention directed to institutionalised racism, etc. – outweigh the negligible threat posed to societal stability. As such, the harm caused by the criminalisation of such speech is greater than the harm it prevents, rendering criminalisation counterproductive. Conclusion There is indeed room for improvement in Singapore’s hate speech laws. S298A suitably punishes harmful and morally culpable acts which wound racial and religious feelings. However, it remains problematic as it occasionally violates the harm principle, punishes well-intentioned speech, and silences socially valuable discussion. The actus reus of s298A should be narrowed such that the level of offence required is heightened, akin to the ‘stirring up’ offences in England and Wales.

SE Duff and RA Marshall, ‘Criminalisation and Sharing Wrongs’, in Paul H Robinson, Stephen Garvey and Kimberly Kessler Ferzan (eds), Criminal Law Conversations (OUP 2011). 23


Singapore Comparative Law Review

Defending Deference: Judicial Review in the UK, Singapore, and China Li Shida Introduction Deference ‘is generally used in a fairly loose way to describe a range of judicial techniques which have the effect of increasing decision-makers’ latitude’. 1 Judicial review in Singapore has been criticised for being overly deferent to the executive. 2 This article argues that because judicial review should be understood as a function of socio-political attitude in a particular community, there is no one-size-fits-all approach as to how much judicial deference there should be. The differences in such attitudes between Singapore and the UK imply that Singapore should not blindly emulate the UK system. When considering how much judicial deference Singapore should have, gleaning insights from recent developments of the Administrative Litigation Law in China could offer some inspiration on why Singapore should not fully embrace the UK system. This article will first highlight a few differences between Singapore’s and the UK’s position on Judicial Review which gives rise to criticisms of over-deference. Next, it will be argued that these criticisms can be unwarranted due to differences in socio-political attitudes between Singapore and the UK. Then, a quick overview of Judicial Review in China will be followed by lessons Singapore could learn from the Chinese experience. This article will conclude on why Singapore should depart from the UK model of judicial review.

Definitions ‘Deference’ usually refers to the judiciary ‘attaching particular weight, or respect, to the view of the decision maker – thus making it less likely that that view will be overturned on judicial review.’3 For instance, in Carlie4, the Home Secretary denied a dissident Iranian politician entry into the UK, and the majority in the judicial review deferred to the executive’s assessment of national security interests and held the decision to not be disproportionate. Deference is usually justified on constitutional grounds (the courts lack mandate in weighing up different interests) and institutional grounds (the courts lack expertise in evaluating interests at stake).5

In contrast to this definition, which will be referred to as the ‘doctrine of deference’, this article will refer to ‘polite submission and respect’ 6 by the judiciary to the executive as ‘judicial deference’. This is a widely construed term that includes not judicial attitudes toward not only substantive aspects of review, but also providing standing and grounds of review.

Mark Elliot “Proportionality and deference: The Importance of a structured approach” (2013) University of Cambridge Legal Studies Research Paper Series 32, 4. 2 Jaclyn Ling-Chien Neo and Yvonne CL Lee “Constitutional Supremacy: Still a Little Dicey” in Thio Li-ann & Kevin YL Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution. (Routledge, 2008). 3 Mark Elliot and Robert Thomas, Public Law, (4th edn, OUP 2020) 559. 4 [2014] UKSC 60. 5 Mark Elliot and Robert Thomas, Public Law, (4th edn, OUP 2020) 560. 6 1


Singapore Comparative Law Review Examples of Judicial Deference By examining some key differences of judicial review between Singapore and the UK, this article illustrates the position taken by the Singaporean courts in the realm of judicial deference. Illustrating Judicial Deference – Granting standing for public interest litigation Standing can be provided for public interest litigation in the UK. Walton v Scottish Ministers7 approved the expansive approach in World Development Movement8 by recognising that the ‘sufficient interest’ test can be satisfied without the applicants demonstrating any greater impact the decision had on themselves. In contrast, standing is granted in Singapore only when a violation of a personal right is shown. 9 The court in Vellama v AG 10 explained that ‘matters of public policy are the proper remit of the Executive and decoupling judicial review from the fundamental precepts of adversarial litigation would leave the courts vulnerable to being misused as a platform for political point-scoring.’ Restrictive standing requirements avoid the floodgates of litigation which is time-consuming and frivolous. Yet, this reason alone does not sufficiently warrant such restrictive standing requirements, as the courts in the UK accept more frivolous litigation as the price for protecting public interests. In Singapore, public interests not associated with rights of particular individuals are more vulnerable to executive infringement because they are free from judicial review and can only be held accountable through political means. This possibility of unfettered powers seems to be at odds with the rule of law and lends itself to criticisms of the courts exhibiting too much judicial deference to the executive.

Illustrating Judicial Deference – The lack of appetite for proportionality review Proportionality grounds of review place additional requirements on executive discretion – this test invites the courts to determine that the decision was first necessary, then weigh-up the costs and benefits of such a decision. Ascribing the court’s view to the relative value of different interests is what makes the determination of proportionality less deferential than Wednesbury11 unreasonableness, so much so that Lord Ackner was worried that it risked ‘an abuse of power by the judiciary’ in Brind.12 The UK has proportionality as a ground of judicial review but Singapore does not. Based on this observation, three hasty generalisations can be made, but the urge to jump to them must be resisted. The first hasty generalisation is this: The UK has a proportionality test only because she is engaged in ‘judicial dialogue’ with the European Court of Human Rights (‘ECtHR’) via the Human Rights Act 1998 (‘HRA’). Singapore has no similar treaty obligations. However, this reason alone is insufficient. Obiter in Kennedy, 13 Pham14 and UNISON15 seem to suggest emerging judicial initiatives to engage in common law proportionality review. It was stated that common law should not ‘become an ossuary’16 and no longer

[2012] UKSC 44. R v Secretary of State for Foreign Affairs, ex parte World Development Movement [1995] 1 WLR 386. 9 Jeyaretnam Kenneth Andrew v AG [2013] SGCA 56 [46]. 10 [2013] SCGA 39 [34]. 11 [1948] 1 KB 223. 12 [1991] 1 AC 696 [763]. 13 [2015] AC 455. 14 [2015] UKSC 19. 15 [2015] UKSC 19 [105]. 16 [2015] AC 455 [131]. 7 8


Singapore Comparative Law Review insists on uniform application of the rigid Wednesbury test.17 Even in ‘areas of law lying beyond the domain of EU and international human rights law’, the common law incorporated significant elements of the principle of proportionality.18 If there is room for common law proportionality review, at least theoretically, then there must be some other reason why Singapore chooses not to pursue proportionality review.

The second hasty generalisation is that, since proportionality review is more intrusive to the discretion than Wednesbury19 unreasonableness (irrationality), this means that the UK courts consistently adopt much lesser judicial deference than Singaporean courts. This is untrue. In Carlie, the majority deferred to the Home Secretary’s decision – they thought that the HRA modified but did not ‘abrogate the constitutional distribution of powers between the organs of the state’.20 Elliot argues that this suggested that constitutional considerations remain an appropriate ground upon which courts might - and sometimes should - exhibit deference towards the executive government, and the HRA did not license review of the intensity contemplated by Lord Kerr, the dissenting judge who believed that judges should be put in the driver seat to protect human rights. 21 The court did not eliminate constitutional grounds for the doctrine of deference or judicial deference but suggested that the HRA had the effect of nudging the courts toward reduced judicial deference.

The third generalisation is that deference is selectively exercised based on the subject matter at hand. For instance, Bank Mellat22 and Carlie23 concerned national security interests and the courts tend to choose to defer. On the other hand, courts rarely defer when prerogatives being exercised (in Miller (No. 2)24 and Privacy International. 25 This is inaccurate on two levels. Firstly, some decisions have competing interests in play – they fall into multiple categories where the ‘norm’ may ask the court to simultaneously defer and not defer. The Crown Act of State, a prerogative providing immunity against tort suits for foreign military operations, concerns national security and diplomacy (traditionally areas where courts are highly deferent) but is also a prerogative (on which courts are increasingly unwilling to be deferent). In Serdar, Lady Hale restricted this prerogative significantly, leaving only a ‘very narrow class of acts …… so closely connected to that [foreign] policy to be necessary in pursuing [the military operations]’ 26 to be protected under this prerogative. The second inaccuracy is that no useful generalisations can be made about the state of deference in the UK – we simply look at the subject area. This is inaccurate because choices made when competing forces are present reflects the attitude of the judiciary. The fact that they opted to be less deferential despite potentially limiting the conduct of foreign military operations is evidence that there is an increasing urge to be less deferent.

Ibid. [51]. [2015] UKSC 19 [105]. 19 [1948] 1 KB 223. 20 [2014] UKSC 60 [28]. 21 Mark Elliot ‘Human rights, proportionality and the judicial function: R (Carlile) v Home Secretary in the Supreme Court’ (Public Law for Everyone, 13 November 2014) <> accessed 6 June 2021. 22 [2013] UKSC 39. 23 [2014] UKSC 60. 24 [2019] UKSC 41. 25 [2019] USKC 22. 26 [2017] UKSC 1 [20]. 17 18


Singapore Comparative Law Review Furthermore, the academic reactions to the proposed Internal Market Bill in early 2020 and the Government’s response to the Independent Review of Administrative Law Panel’s Report in early 2021 have been nothing short of uproars. 27 If judges also feel that they need to defend the rule of law against a defiant executive, it seems likely that the decline of ‘constitutional civility’ 28 will accompany a more redlight approach towards keeping executive discretion in check via Judicial Review, reducing judicial deference. In contrast with the UK, which seemingly is heading towards less deference by developing proportionality, Singapore has little appetite for the proportionality test. In Chng Suan Tze,29 the Court of Appeal held that proportionality had ‘not been established as a separate ground of review’. This position has remained largely unchanged. Proportionality was described by V K Rajah J in Chee Siok Chin as follows: [Proportionality is] a more exacting requirement than reasonableness and requires, in some cases, the court to substitute its own judgment for that of the property authority …… proportionality has never been part of the common law in relation to the judicial review of the exercise of a legislative and/or an administrative power or discretion. Nor has it ever been part of Singapore law.30 Criticisms against the absence of proportionality as grounds for review in Singapore point towards the incomplete overlap of proportionality with irrationality and the resulting lack of protection of individual rights against governmental action that was Wednesbury reasonable but disproportionate – disagreeing with the Court of Appeal’s observation in Dow Jones. 31 Whether the overlap is substantial or incomplete depends on the extent of judicial deference that the courts pursue – the Court of Appeal opined that within the limited range of factual situations in which it was willing to exercise judicial review, it was simply unnecessary to invoke proportionality given that irrationality could already apply. 32 In short, there is no room for proportionality in Singapore because the room was small enough (because of too much judicial deference) that it was full after irrationality (Wednesbury unreasonableness) entered. Why not make the room bigger? The underlying question of a debate on proportionality brings us to a discussion on judicial deference.

Paul Craig ‘The Independent Review of Administrative Law: The Government Response and Consultation Exercise’ (Oxford Human Rights Hub, 22 March 2021) <> accessed 4 June 2021. See also Mark Elliot, ‘Judicial review reform I: Nullity, remedies and constitutional gaslighting’ (Public Law for Everyone, 17 April 2015) <> accessed 5 June 2021 and Paolo Sandro ‘Do You Really Mean It? Ouster Clauses, Judicial Review Reform, and the UK Constitutionalism Paradox’ (UK Constitutional Law Association, 1 June 2021) <> accessed 5 June 2021. 28 Mark Elliot ‘The UK constitution under pressure: A lost age of civility?’ (Public Law for Everyone, 23 November 2020) <> accessed 6 June 2021. 29 [1988] 2 SLR(R) 525 [121]. 30 [2006] 1 SLR(R) 582 [87]. 31 [1989] 1 SLR(R) 637. 32 [1989] 1 SLR(R) 637 [60]. 27


Singapore Comparative Law Review Is there too much judicial deference in Singapore? Should Singapore have less or more deference, or is the amount of deference just right presently? This section will attempt to answer this question, but the attempt will soon run into an obstacle – the preliminary question of ‘how much deference is just right’ will be explored in the next section. The Singapore courts have consistently acknowledged the doctrine of deference, even if in giving effect to it bore different emphasis since independence. In Tan Seet Eng v AG,33 where the Court of Appeal captured very well the Judiciary’s attitude and approach towards the doctrine deference. Put broadly, the court stated that deference was a flexible doctrine, which was not antithetical to the court reviewing executive action. 34 It can be said that there is greater judicial deference in Singapore than the UK, where the judiciary sets tighter boundaries for their scope and strength of powers when making use of judicial review as a check and balance for executive discretion. This is evidenced by Singapore’s restrictive approach to standing. Also, Singapore rejects the proportionality test even though not being a party to the ECHR or similar international human rights treaties seemed to be insufficient to shut out proportionality review (because of the possibility of common law proportionality review). The criticisms against Singapore, as illustrated earlier with the examples, lie mainly in the direction of having too much judicial deference – granting the executive excessively leeway to tamper and infringe upon the rights of individual citizens. Allan argued that we should be sceptical of the doctrine of deference (in the narrow sense) in the application and enforcement of constitutional rights, and elevating the doctrine of deference to the status of an independent doctrinal requirement might confuse analysis by suggesting that judges should sometimes surrender their independence of judgment in the face of superior expertise, or superior democratic authority, or the inexorable demands of an unambiguous text. 35 However, former Attorney General V K Rajah made a distinction between the doctrine of deference and judicial abstention. He argued that even when the doctrine of deference is warranted, the court still plays a significant role because the question of law is simply recast as an inquiry into whether the administrative decision-maker’s interpretation is reasonable. He also argued that this position could be supported on the grounds of institutional competence and democratic legitimacy, the usual basis for engaging in the doctrine of deference. 36 Conventional wisdom, especially when Singapore is being compared to the UK, seems to say that there indeed is too much judicial deference in Singapore – deference that cannot be justified under the two generally accepted traditional grounds of the doctrine of deference: institutional expertise and democratic legitimacy. These are also key motivating factors for judicial deference.

Judicial review as a function of socio-political attitude This article argues that those criticisms are potentially misleading because it does not pay sufficient attention to Singapore’s context. Chan Sek Keong CJ (as he then was) made a remark in an extra-judicial capacity that judicial review is a “function of socio-political attitude in the particular community”. 37

[2016] 1 SLR 779. Eugene Tan “Curial Deference in Singapore Public Law Autochthonous Evolution to Buttress Good Governance and the Rule of Law” (2017) 29 SAcLJ, 804. 35 T R S Allan, “Human Rights and Judicial Review: A Critique of ‘Due Deference’” (2006) 65 The Cambridge Law Journal 671, 694. 36 V K Rajah, “Judicial Review – Politics, Policy and the Separation of Powers”, guest lecture at the Singapore Management University Constitutional and Administrative Law course (24 March 2016) 40. 37 S K Chan, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469. 33 34


Singapore Comparative Law Review This context-sensitive understanding was recognised in Jeyaretnam Kenneth Andrew v AG: 38 CJ Chan espoused a certain ‘green-light’ approach towards administrative law for Singapore’s context. On this view, public administration is not principally about stopping bad administrative practices but encouraging good ones: ‘in other words, seek good government through the political process and public avenues rather than redress bad government through the courts’ (at 480). This was juxtaposed against the ‘red-light’ approach taken in the UK where the courts exist in a combative relationship with the Executive, functioning as a check on the latter’s administrative powers.39 CJ Chan opined that Singaporean courts should not ‘apply the [sufficient interest] test with the same rigour as the UK courts’. He proposed that Singaporean courts should opt for a ‘more discriminating test of locus standi to balance the rights of the individual and the rights of the state in the implementation of sound policies in a lawful manner.’40 This was similarly acknowledged in Kenneth for ‘highlight[ing] the integral role that the political and economic contexts of a jurisdiction play’ in determining whether the green-light or red-light approach is ‘more suitable for a given jurisdiction.’41

Notwithstanding that this may be an oversimplification, the Singaporean brand of democracy has colours of communitarianism and paternalism relative to the UK. As Sundaresh Menon CJ puts it: [Singapore’s] fidelity to the rule of law has co-existed comfortably with a prominent feature of our cultural substratum, which is an emphasis on communitarian over individualist values. These include notions such as dialogue, tolerance, compromise and placing the community above self. These values have modulated the court’s approach in ensuring that the rule of law rules. 42 Perhaps, Mr Lee Kuan Yew’s speech in 1962 best encapsulates our intensely pragmatic founding fathers thought about what style of judiciary Singapore needed. He stated that ‘[t]he acid test of any legal system is not the greatness or the grandeur of its ideal concepts, but whether in fact it is able to produce order and justice in the relationships between man and man and between man and the State’.43

Two explanations about why Singapore’s socio-political attitude is distinct from that of the UK can be explored.

The ‘become economically exceptional or die’ mentality geared many aspects of Singapore towards economic exceptionalism and efficiency when fighting for survival, which called for a ‘greener’ light. This explanation had stronger purchase for less rambunctious protection of individual rights when Singapore was economically more vulnerable. Singapore is nowadays not free from economic vulnerabilities, but it is equally unrealistic to argue that socio-political attitudes have frozen in time and continue to support greenlighting executive discretion to the same extent as it used to 50 years ago.

[2013] SGCA 56 [48]. S K Chan, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469. 40 Ibid. 41 [2013] SGCA 56 [50]. 42 Sundaresh Menon, “The Rule of Law: The Path to Exceptionalism” (2016) 28 SAcLJ 413, 420. 43 Lee Kuan Yew, Singapore Prime Minister’s Speech to the University of Singapore Law Society Annual dinner at Rosee D’Or (18 January 1962). 38 39


Singapore Comparative Law Review Another explanation, based on moral authority, suggests that Singapore has earned and maintained the trust of the people. Strong cultures of public and civil service exist in both Singapore and the UK. However, in serving the people, the UK seems to have a more limited government than Singapore. Following long struggles by the people against the crown (e.g., Magna Carta, Bill of Rights 1689), arbitrary powers once belonging to the crown were captured and defined by legislation. Legal authority and democratic legitimacy are fundamental to both the UK's and Singapore’s perceived legitimacy to govern by their respective citizens. On top of that, however, it will be argued that moral authority contributes to perceived legitimacy to a greater extent in Singapore than in the UK. It is obviously dangerous to argue that the Singapore government should be absolved of suspicion and scrutiny, but it is also unfair to believe that judicial deference ought to be equally as strong in Singapore and in the UK, just because Singapore derived the roots of its legal system from the UK. It will be argued that Singapore’s government enjoys a slightly stronger ‘presumption of constitutionality’ of executive discretion which invites slightly lesser judicial deference because of the trust it has built and maintained. Emeritus Senior Minister Goh Chok Tong argued that some countries respond to a trust deficit by developing institutional checks on government, and some take an adversarial approach because their starting premise is that governments are fundamentally not to be trusted. 44 The 2021 Edelman Trust Barometer showed that trust in China's and Singapore’s governments were at 72% and 68% respectively, compared to the Global average of 56% and the UK having only 45%. 45 While his view could be politically motivated, high levels of public trust seems to reflect that Singapore is at least partly successful in realising her ideology of government by honourable men ‘君子’(‘junzi’), who have a duty to do right for the people, and who have the trust and respect of the population. 46 This additional legitimacy in the form of moral authority provides extra socio-political capital to engage in a green light approach to judicial review – reliance can be placed on political mechanisms within the legislature and executive to self-regulate and maintain the consistent delivery of good governance. Furthermore, if public trust is high, the damage to it from adversarial judicial review proceedings is accordingly higher as well – the Singapore executive has more to lose than less-trusted executives, thus a greater incentive to avoid judicial review proceedings on all sides. Therefore, courts can play ‘a supporting role by articulating clear rules and principles by which the Government may abide by and conform to the rule of law” and should “seek good government through the political process and public avenues’ 47 instead of pursuing stronger checks and balances in the judicial realm like the UK.

A summary of socio-political attitudes in Singapore This article has explored what are the differences between Singapore and the UK in socio-political attitudes that could explain differing levels of judicial deference – Singapore favours a green-light approach where courts play a greater role in facilitating (rather than controlling) governmental action and they act as the last line (rather than first line) of defence against potential abuses of power. Strictly speaking, these factors only tell us that Singapore should exhibit greater judicial deference than the UK, but they fail to directly inform us of how much judicial deference is appropriate, and consequently whether Singapore could be better off decreasing judicial deference, maintaining its current approach or potentially increasing judicial deference.

Goh Chock Tong “Increasing Public Trust in Leaders of a Harmonious Society”, speech at the Singapore-China Forum On Leadership, (16 April 2010). 45 Edelman “2021 Edelman Trust Barometer” (13 January 2021) <> accessed 14 March 2021. 46 Sing., “White Paper on shared Values”, Cmd 1 of 1991 [29]. 47 S K Chan “Judicial Review – From Angst to Empathy” (2010) 22 sing. Ac. L.J. 469 [29]. 44


Singapore Comparative Law Review We have a better idea of where the right answer might be, but we have yet to discover the right answer (to how much judicial deference is appropriate in Singapore’s context). There are different ways to reach a conclusion on this issue. Judicial review is the function of socio-political attitudes within communities, so one possible way is to look at countries with similar socio-political attitudes, and what they are doing with Judicial Review, to determine if Singapore has the adequate amount of judicial deference.

Why compare with China? China shares many socio-political attitudes with Singapore. Economic performance as a source of legitimacy is the cornerstone to the stability of rule of the Chinese Communist Party (‘CCP’), while economic exceptionalism was vital to Singapore post-1965 for survival. Also, there exists a strong presumption of perceived legality of governmental action in China, partly due to the historical nobility of and respect for holders of public office in the Chinese culture, and the moral authority that paternalistic governmental approaches provide. While the presumption of legality exists also because of the lack of viable political alternatives, that alone cannot explain the high trust levels seen in China that many other authoritarian states do not enjoy. It is without a doubt overstretching to declare socio-political attitudes to be the same in Singapore and in China, and they are certainly not. They are merely similar, and the same can be said for any two countries, depending on how they are being evaluated. The argument, however, is that the already obvious similarities are strengthened when a third country (the UK) is being contrasted with Singapore and China and strengthened when one zooms in on the dynamics of citizen-state relationships influenced by cultural norms and shared values amongst the communities.

What is China doing with Judicial Review and judicial deference? China’s Administrative Litigation Law (‘ALL’) 48 was first created in 1990 and received its first major update in 2014. This update was followed up by the Supreme People’s Court interpretation on the application of the ALL that was issued in 2018 (SPC interpretation).49 There are more justiciable issues and administrative barriers to case registration were reduced. Despite losing the reasonableness grounds of review it used to enjoy, non-judicial remedies of normative documents (the carrier of most lower-level executive discretion) was strengthened innovatively.

The emergence of Judicial proposals and its implications on Judicial Deference in China Innovation is present in the newly added Article 64 of the ALL and Article 149 of the SPC interpretation. The plaintiff enjoys a new right under Article 64 of the ALL to request the courts to issue disposition recommendations, 50 like declarations of incompatibility under the Human Rights Act 1998.

Administrative Litigation Law of the People’s Republic of China. Supreme People’s Court’s Interpretation on the Application of the Administrative Litigation Law of the People’s Republic of China. 50 Ibid. 48 49


Singapore Comparative Law Review Beyond disposition recommendations, Article 149 of the SPC interpretation provides that courts may provide the promulgating authority with ‘judicial proposals’ for an amendment or repeal of the normative document that has yet to take effect for more than 3 months. An agency receiving the proposal shall make a written reply to that proposal. In case of emergencies, a court may even propose that the promulgating authority, or the agency at the next higher level, immediately suspend enforcement of the normative document.51 This seems extraordinary – the power for courts to propose rewriting of subsidiary legislation and mandating a reply seems to go beyond striking down legislation. Such explicit judicial law-making capabilities seems absurd even by the UK’s standard of relatively greater judicial activism. In the cases of Yuan Xibei v Yudu County People’s Government52 and Zheng Xiaoqin v Wenling Municipal People’s Government, 53 judicial proposals were made to the respective promulgating agencies after an illegality determination was made on normative documents facilitating charging of fees for wastewater treatment and allocating compensation for housing relocation respectively. Is article 149 of the SPC interpretation evidence of China moving quicker than many of its counterparts with better developed separation of powers and rule of law towards reduced judicial deference towards the executive? On one hand, some evidence points towards the affirmative. Zheng Xiaoqin affirmed the important role judicial proposals play to rectify illegal clauses within the normative document to protect the rights of the wider group of those seeking compensation for housing relocation. 54 Judicial proposals seem to improve governance via a mechanism of control – stopping illegal executive action in its tracks. However, looking at the bigger picture, there seems to be more evidence to say that China is not reducing judicial deference in judicial review. Judicial proposals are fundamentally, not mechanisms of control, but mechanisms of communication based on pragmatic concerns. The lack of guidance on how normative documents are being drafted and issued resulted in large numbers poorly drafted normative documents that infringe rights and are inconsistent with higher law, and a Notice issued in 2018 by the General Office of the State Council 55 sets out guidelines to rectify the situation. China faces a lack of skilled administrators and drafters capable of creating normative documents that do not unduly infringe upon the rights of citizens and organisations, especially at the lower tiers of the hierarchy of the People’s Governments. In contrast, the courts are relatively well-versed with the legal requirements. Judicial deference based on institutional expertise makes a 180 degree turn when it is realised that expertise in the context of drafting normative documents that will not become hotbeds of administrative lawsuits lie within the judiciary, especially when county or municipal People’s Governments can receive expert guidance from Provincial People’s Courts when they become the promulgating agency of an illegal normative document. In other words, the two main benefits of issuing judicial proposals are as follows: 1. The situation calls for deference in the reverse direction (executive defer to the judiciary) due to the prevalence of poorly drafted normative documents. Arguably, the judiciary is not acting within its judicial capacity – but doubling up as skilled legal drafters and advisors to lower levels of the executive. It seems to be a coincidence that higher level courts are both the best candidate to bear adjudicating and legislative responsibilities, but this dual role should not be confused with Judicial Ibid. Supreme People’s Court “Landmark cases on Administrative Litigation concerning Normative documents” (30 October 2018) <> accessed 14 March 2021. 53 Ibid. 54 Ibid. 55 General Office of the State Council of PRC “Notice on enhancing the creation and supervision of normative documents” [2018] Notice 37 of 2018. 51 52


Singapore Comparative Law Review control and decreased judicial deference because it is a pragmatic solution to improve laws, facilitate good governance and protect rights. 2. Additionally, Judicial proposals function as a public and transparent way of communication. Article 150 of the SPC interpretation outlines filing and escalation requirements. Cases concerning provincial normative documents will be dealt with at the provincial level, and normative documents issued by departments of the State Council will be adjudicated by the Supreme People’s Court. Lower-level courts are legally required to file any determinations of illegality they made with the next highest level of courts for records, and superior courts can order cases to be reopened via retrials or assigning the case to another subordinate court, if they discover that the determination on legality made by a lower court was wrongly decided. 56 Article 150 serves a pragmatic purpose against the backdrop of weak separation of powers – since judges are elected by various National People’s Congress at their respective levels and report to them, they lack the independence to stand firm against strong pressures by party officials. With reporting mechanisms, courts can prevent their voices from being drowned. Judicial deference is not directly reduced, although the threat of the parents stepping into the picture may indirectly cause the executive to have greater respect for the courts’ opinions. Hence, when examined closely, it appears to be more convincing that the introduction of judicial proposals is not a signal of decreasing judicial deference but premised on resolving practical concerns of the lack of institutional expertise and preventing the courts’ voices from being drowned. Interestingly, judicial policymaking or law-making may not be as dangerous in China (in the sense of making the judiciary the supreme branch), than it is in countries with robust separation of powers. It is difficult for judicial law-making to co-exist with Parliamentary Supremacy in the UK where institutional protections are offered to the branches – that will necessarily imply judicial supremacy. In China, the party serves as the check and balance to all three branches of the government – judicial supremacy can be prevented by the party exerting control over the judiciary. One way this can be done is through party leadership of the National People’s Congress. Relying further on CCP instead of rules introduces both flexibility and unpredictability, but the conclusion seems to be that, at least in lower levels of the government, China is more concerned about the flurry of poorly drafted normative documents than the risk of judicial law-making. The upside of improved administration for a vast country with numerous tiers of government is massive. However, further reliance on the party to control a law-making judiciary demonstrates a lack of commitment to progress towards the rule of law.

Lessons for Singapore At first sight, there seems to be nothing that Singapore can learn from China’s experience with reforming Judicial Review – take the CCP out of the equation and everything falls apart. I suggest, however, that there are three takeaways from the case-study of China. Firstly, China serves as a reminder on not losing sight of pragmatic concerns when debating the issue of Judicial Review. In comparison with the UK, Singapore’s Judicial Review seems to be less robust in its protection of individual rights against executive infringement. 57 However, whether that implies that there is too much judicial deference is not merely a question of theory. Describing judicial review as a function 2018 SPC interpretation, Article 150. As seen through, for instance, more restrictive granting of standing, lesser grounds of review available, lesser intensity of review etc. 56 57


Singapore Comparative Law Review of the socio-political attitude in a particular community invites theorists to get their hands dirty – to consider not only judicial review in practice but its alternatives and other contextual factors in play (these are often considerations that are less familiar to a lawyer). In China, there is little appetite for political theatre, as political reform cannot be rushed through without threatening the stability of the country and legitimacy of the CCP’s rule. Any sensible improvements made in the Chinese context will be first and foremost pragmatic – categorical arguments (for instance, advocating broad principles of civil liberties) are frowned upon, while incremental small steps which proved themselves to bring concrete benefits are welcomed. This pragmatic mentality can be seen through the ALL reform removing unreasonableness review prone to a large room of interpretation but at the same time broadening illegality review by providing concrete scenarios of its applicability. Secondly, CJ Chan’s description of judicial review being a function of socio-political attitudes in that particular community is accurate and widely applicable even for a civil law country with a very different form of government like China. Good governance is a particularly significant policy goal in China because parties in democratic countries can fail – there are competitors ready to take-over in democratic elections. The post-1978 CCP however, cannot fail to deliver economic and social progress without threatening regime stability, and they are willing to get creative at Judicial Review. Judicial Review may be more flexible under CJ Chan’s view – Singapore should deviate from UK’s relatively ‘redder light’ approach to the extent that of the public trust justification and what is left of the economic exceptionalism justification. Thirdly, what may equally be dangerous for Singapore is to be overly deferent, or to use it as an excuse for green-lighting executive discretion. China is much closer to rule by law than rule of law, and judicial review is viewed mechanistically as a tool to manage individual dissent. However, deference to political wisdom ‘impacts upon [the courts’] fidelity to the Constitution, in particular, the protection of fundamental liberties.’58 Fundamentally, deference partially defeats Judicial Review’s purpose of keeping the executive in check by making it too flexible. Fundamental liberties, if understood not as the resilient insistence of constitutionality but as mere factors of a ‘function’ ready to be overpowered by situational demands. For instance, Chee Soon Juan59 was criticised for not considering whether restrictions of assembly under the Public Entertainments and Meetings Act was “necessary or expedient” and did not explore the meaning of these terms.60

Conclusion: Why should we depart from the UK? Deference is, ultimately, a test of Singapore’s commitment to the rule of law. Former Law Minister S. Jayakumar in endorsing a formal conception of the ‘rule of law’ observed that in balancing individual and social rights, there was ‘no universal agreement’, nor did the ‘rule of law’ specify where this should be struck, which would be a function of a society’s ‘social, cultural and economic construct’, and that Asian societies like Singapore gave ‘greater importance to the larger interests of the community in arriving at this balance.’ 61 If this is accepted, then the test of deference has no universal marking scheme. Evaluation of the sociopolitical attitudes could define the extent of deference Singapore pursues, and with all likelihood it will

Jaclyn Ling-Chien Neo and Yvonne CL Lee “Constitutional Supremacy: Still a Little Dicey” in Thio Li-ann & Kevin YL Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution. (Routledge, 2008). 59 [2003] 2 SLR 445. 60 Jaclyn Ling-Chien Neo and Yvonne CL Lee “Constitutional Supremacy: Still a Little Dicey” in Thio Li-ann & Kevin YL Tan (eds.), Evolution of a Revolution: Forty Years of the Singapore Constitution. (Routledge, 2008). 61 Li-Ann Thio “Between Apology and Apogee, Autochthony: The ‘Rule of Law’ Beyond the Rules of Law in Singapore” SJLS [2012] 269, 279. 58


Singapore Comparative Law Review generally deviate from the relatively red-light approach demonstrated in recent UK jurisprudence, despite occasional approaches (e.g., Chng Suan Tze). 62

Hence, there is neither too much, nor too little, nor just the right amount of judicial deference in Singapore – this question simply cannot be answered without first defining Singapore’s brand of rule of law and judicial review. Perhaps, even the process of ascribing value to a myriad of factors (e.g., community interests, fundamental liberties etc.) will require polycentric value judgments better suited to be robustly debated in the political sphere, than to be developed through the common law.


[1988] SLR 132.


Singapore Comparative Law Review

You’ve Got Mail: Reviewing Prisoners’ Right to Confidential Legal Correspondence Ananya Maheshwari ‘Human rights are not the gift of governments. They are our birthright.’1 However, the exercise of prisoners’ rights is a significant point of contention in Singapore and English law. The case of Syed Suhail bin Syed Zin v Attorney-General (Syed) 2 illustrates part of the issue surrounding prisoners’ right to confidential legal correspondence in Singapore. It was revealed that the Singapore Police Service (SPS) sent copies of a letter exchanged between Mr Syed, a prisoner, and his legal counsel to the Attorney-General’s Chambers (AGC) ahead of Mr Syed’s application for clemency without his knowledge and consent. The incident is not isolated: Gobi and Datchinamurthy 3 exhibits two further instances of the SPS mismanaging prisoners’ correspondence by forwarding copies of their letters to the AGC. Although the case did not concern the right to confidential legal correspondence as the letters were written from the prisoners to their family, it is notable as a rare instance of the Singapore judiciary’s emphasis on the protection of prisoners’ rights in the context of confidentiality of correspondence: ‘[a]s guardian of the public interest, there is, inter alia, a duty to safeguard the rights of prisoners in the custody of the SPS.’4 The following essay investigates arguments for and against the breach of prisoners’ right to confidential legal correspondence, arguing that benefits arising from the interception of solicitor’s letters are insufficient to justify a more than minimal breach of prisoners’ rights. The essay then argues that Singapore law’s higher degree of rights breach, in comparison to English law, lacks justification, necessitating reform. Finally, the essay puts forth that, in addition to legislative reform, Singapore’s judicial attitudes need to become more liberal, reflective of that of the English judiciary. Rather than limiting itself to the specific factual scenario of rights breach exemplified in Syed, this essay uses Syed as a steppingstone to delve into a broader discussion of the breach of prisoners’ right to confidential legal correspondence to address the issue at a more conceptual level. Arguments for and against the interception of legal correspondence It is principally argued that the interception of legal correspondence is necessary for the prevention of crime and for ensuring prison and national safety. 5 This argument has some merit: prisons do, on occasion, find contraband items concealed as confidential legal correspondence. For instance, in June 2019, 330 pages of confidential solicitor’s letters laced with drugs were discovered in HMP Birmingham. 6 However, the use of legal correspondence for crime is exceedingly rare: Lord Bingham in Daly noted that only two out of the vast number of illicit items found in prison cells were concealed in legal correspondence. 7 Thus, while the argument for intercepting confidential correspondence to ensure safety is legitimate, it is limited by the rarity of such occurrences. Furthermore, a significant and continuous breach of prisoners’ rights through regular interception is not always the natural and necessary response to the use of confidential legal correspondence for crime. For Lester, Five Ideas to Fight For (Oneworld 2016), 17. Syed Suhail bin Syed Zin v Attorney-General [2020] SGCA 122. 3 Gobi a/l Avedian and another v Attorney-General and another appeal [2020] SGCA 77. 4 ibid 96 [93]. 5 Cram IG, ‘Interfering with Gaol Mail - Prisoners' legal Letters and the Courts’, Legal Studies, 13 (1993), 357. 6 Independent Monitoring Boards, ‘Annual Report of the Independent Monitoring Board at HMP Birmingham’ (IMB 2020). 7 R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 W.L.R. 1633 [20]. 1 2


Singapore Comparative Law Review instance, following the incident, HMP Birmingham made legal visits paperless, a measure which significantly decreased future drug incidents.8 Although the initial interception was admittedly necessary to discover the issue, the measure that substantially improved the prison’s long-term security was not a continued interception of legal correspondence but a procedural change that prevented the issue from arising in the future altogether. Hence, the mere fact that legal correspondence poses a threat to prison security does not itself justify continued interception. Moreover, the interception of legal correspondence has severe implications for prisoners and society as a whole. Taking the case of Syed, regardless of the content of his legal correspondence (a matter unknown to the public), the fact that it was intercepted and sent to the AGC sets a dangerous precedent: prisoners in Singapore cannot rest safely in the assumption that they will be granted attorney-client privilege. This will limit their ability to express their legal concerns to their advisor and give a true account of their crime, including potentially incriminating details, to their legal representative. Not only is this detrimental to the prisoner himself, for his appeals cannot be fairly made if he is afraid to speak the truth, it is detrimental to society as a whole: people, regardless of their circumstances, must be punished and rehabilitated in proportion to their true crimes. As per Webster J in Leech, 9 ‘legal professional privilege… encourages candour on the part of the client” allowing the solicitor to “effectively represent the client in civil proceedings’. Hence, interception poses a threat to the rights and circumstances of prisoners and of larger society. Ultimately, beyond the minimal interception of correspondence necessary for safety, the extent to which prisoners’ right to confidential legal correspondence can be breached in a jurisdiction requires the courts to weigh security concerns against individual rights. A jurisdiction’s legal position thus falls along a spectrum ranging from liberal (favouring high rights-protection) to conservative (sacrificing individuals’ rights for greater security). While England’s protection of prisoner’s rights is, in practice, more middle-ground, Singapore’s position falls more to the conservative end of the spectrum. Why does Singapore take a more conservative stance? In comparison to England, not only does Singapore afford weaker protection of the right, it fails to sufficiently recognise it in the first place. The Singapore government points to cultural differences to explain and justify the weaker recognition and protection of the right. However, the argument fails in the face of logical analysis. Weaker recognition of the right in Singapore than in the UK The comparatively more liberal nature of English law’s position is reflected in the fact that the right to a fair trial and access to counsel is explicitly enshrined in Article 6 of the Human Rights Act 1998.10 Article 9(1) of the Constitution of the Republic of Singapore 11 provides that ‘[n]o person shall be deprived of his life or personal liberty save in accordance with law’. Although legal professional privilege in Singapore has been recognised in specific contexts in the Evidence Act, 12 in light of Prison Regulation 127A13 (which allows legal correspondence to be read by a prison officer), the Act evidently does not apply to the context of prisoners’ right to confidentiality. Importantly, judicial attitudes in Singapore towards prisoners’ right to confidentiality have been cold: in Syed, no mention was made of the forwarding of letters to the AGC. In Gobi, the court addressed the breach of confidentiality only briefly towards the end of the judgement, Independent Monitoring Boards (no 6). R. v Secretary of State for the Home Department Ex p Leech [1993] 3 W.L.R. 1125, [1994] Q.B. 201. 10 Human Rights Act 1998, Article 6. 11 1985 Rev Ed, 1999 Reprint. 12 “Evidence Act, sections 128 and 131.” 13 “Prisons Regulations, Regulation 127A.” 8 9


Singapore Comparative Law Review writing off the AGC’s interception as a mere ‘oversight’.14 Meanwhile, legal professional privilege (including in the context of prisoners’ rights) has been widely recognised and protected by the English judiciary for ‘[buttressing] the cardinal principles of unimpeded access to the courts and to legal advice’. 15 The ‘cultural explanation’ Attempts to explain the divide between the English and Singaporean approaches principally point to cultural differences. The argument from the Singapore government makes reference to the so-called ‘Asian view’ of human rights, which warrants placing community welfare over individual benefit, therefore limiting the scope of applicability of otherwise universal human rights. 16 The cultural argument is backed up by empirical evidence: research shows that while Singapore exhibits higher collectivist values (i.e., valuing the welfare of the group over that of the individual), England shows high individualist values, placing the two countries on opposite ends of the individualist/collectivist spectrum. 17 Accordingly, the approach of the Singaporean government has been described as ‘paternalistic’, exercising a form of ‘soft authoritarianism’, 18 valuing the welfare of the group over the guarantee of individual rights. This approach has been found to met by approval by Singaporean society. 19 Thus, the government puts forth the argument that Singapore’s ‘Asian’ cultural values justify breaching rights to a greater degree than in England. However, cultural values cannot by themselves justify the adoption of a specific legal position. Laws do not always reflect cultural values, and for good reason: not all cultural values are worthy of being accepted. Arguably, it is when cultural values are (1) backed up with cogent logical reasoning and (2) met with majority public approval, as in Singapore, that they are worthy of being enshrined in the law. When it comes to legally condoning the initial interception of legal correspondence, the collectivist cultural belief that individual rights can be sacrificed for public welfare is supported by logical reasoning: there are legitimate safety concerns which warrant allowing at least a minimal interception of legal correspondence. However, when it comes to condoning a further breach of rights, by allowing continued interception of correspondence as Singapore law does, logical arguments do not back up the cultural explanation. Rather, the arguments highlighted above – which illustrate that even legitimate security concerns do not necessitate continued interception, and that continued interception has negative implications for prisoner and public welfare – point away from continued breach. Thus, the cultural explanation fails to justify the full extent of rights’ breach condoned in Singapore law, leaving the law subject to the logical arguments that point towards reform. Proponents of the cultural explanation can argue that cultural collectivist values, despite the absence of logical arguments to back them up, deserve to be enshrined in the law as the present majority voter-base supports such measures (the majority of Singaporeans are conservative and expressly condone other breaches of offenders’ rights such as the death penalty 20). However, if we accept the argument that cultural values must be reflected in the law as they represent the political views of the present voter majority, it thus follows that if the views of the majority were to shift, the law must adapt to them. According to the World

Gobi (no 3) 95 [93]. Leech (no 9) 210. 16 Simon S.C. Tay, ‘Human Rights, Culture, and the Singapore Example’ (1996) 41 McGill L.J. 746. 17 Hofstede insights, 'Country Comparison' (Hofstede Insights) <,the-uk/> accessed 21 July 2021. 18 See generally F Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). 19 Neil A. Englehart, ‘Rights and Culture in the Asian Values Argument: The Rise and Fall of Confucian Ethics in Singapore’ (2000) 22 Political Science and Faculty Publications 554. 20 J Ong, ‘Singapore still conservative on moral, sexuality issues, but more liberal since 2002’ Straits Times (Singapore 3 February, 2021) <> accessed 16 June 2021. 14 15


Singapore Comparative Law Review Values Survey, Singapore, while still more conservative than Britain, has become more liberal since 2002.21 Researchers noted that younger Singaporeans were more likely to hold liberal views, possibly suggesting a continuation of the trend towards liberalisation in years to come. As the political scene continues to gradually pass into the hands of the youth of today, the views of the majority will likely continue to move towards the liberal end of the spectrum. This would lead to a gradual widening of the chasm between the conservative values enshrined in the law and liberal views held by wider society, giving rise to an appetite for reform. Thus, even this aspect of the cultural explanation may falter with time. In sum, the cultural differences argument fails to justify Singapore’s greater breach of prisoners’ right to confidential legal correspondence. Not only is there an absence of cogent arguments as to why Singapore’s conservative cultural views are worthy of enshrining in the law, there are strong arguments against it. Even resting the cultural argument entirely on the shoulders of majority voter approval is likely to work against it, rather than support it. Thus, the justification fails to stand up to analysis, leading to an obvious need for reform. Reform This section of the essay will (a) critically analyse England and Singapore’s present prison regulations before proceeding to (b) propose an improved system of prison regulations for Singapore, and (c) illustrate the need for reform in Singapore’s judicial attitudes – overtop legislative change – to mirror that of the English judiciary. The present regulations Singapore law’s current protection of the right is unsatisfactory. Regulation 127A prevents legal correspondence from being copied or withheld, but still permits it to be opened and read. The English prison regulations are only marginally less conservative: as per Rule 39 of the Prison Rules 1999, 22 the Governor is given discretion to open, read and stop legal letters only if they have ‘reasonable cause to believe’ that it contains an ‘illicit enclosure’ or if ‘its contents endanger prison security or the safety of others or are otherwise of a criminal nature’. Although the rule does limit interception to a greater extent than Singapore’s Regulations by only warranting the interception of some legal correspondence, this limitation is potentially superficial: the opening of any letter can be justified with a ‘reasonable cause’. Rule 39(4), however, rightly provides that prisoners must be given the opportunity to be present at the time of opening their legal correspondence and informed of the reading or stopping of any enclosure, thus allowing the prisoner to be aware of the nature and extent of the examination of his correspondence – a key provision absent in Singapore. Reform: legislation At the outset, it would be impractical to argue for Singapore to stop the interception of confidential legal correspondence completely. Apart from the radical nature of the measure, this would raise legitimate concerns about prison safety. Singapore should implement a more liberal policy as a general starting point which is then subject to exceptions. Firstly, permitting only examination, rather than reading, of correspondence is adequate to eliminate threats to safety in the form of illicit materials. Secondly, prisoners must be given the choice to be present at the time of interception, similar to UK’s Rule 39(4). This would (1) allow prisoners to ensure 21 22

ibid. “Prison Rules 1999, Rule 39.”


Singapore Comparative Law Review that their letters are only being examined and (2) ensure that prisoners are made aware of the precise nature and extent of the examination of their letters. Hence, the examination of correspondence should typically be conducted with the knowledge and voluntary presence of the prisoner. Lord Bingham highlights exceptional cases of ‘emergencies’, ‘urgent intelligence’, or when there is ‘reasonably believed to be a good cause’.23 The requirement of ‘reasonable belief’ is favourable as it provides a greater measure of protection than ‘reasonable suspicion’ 24 or ‘reasonable cause to believe’ (as in Rule 39(2)). Hence, it is proposed that an exception to the general rule should be allowed when there is ‘reasonable belief’ as to its need, regardless of circumstances (emergency, urgent intelligence, or otherwise). Lastly, like HMP Birmingham, legal correspondence should be made paperless wherever possible to minimise opportunity for rights’ breach. If, as in Syed and Gobi, letters belonging to prisoners need to be procured by a third party, including the AGC, they must ‘obtain the prisoner’s consent or obtain an order of court’.25 Reform: judicial attitude More importantly, on top of legislative change, is the need for reformation in Singapore’s judicial attitudes. The ability of any legislative reformation of prison regulations to bring about real, meaningful change in the protection of prisoners’ rights would be greatly undermined if the Singapore judiciary continues to hold on to conservative views. As discussed, judicial dicta from Singaporean courts on the issue of prisoners’ right to confidential legal correspondence is regrettably cold, scarce and difficult to locate. In contrast, there exists a plethora of highly influential English cases with considerable dicta on the protection of prisoners’ rights (Daly, Leech, and Simms26 to name a few). The rare instances of discussion of prisoners’ right to confidentiality in Singapore are characterised by vague and dismissive language. Meanwhile English judges boldly delve into strongly and clearly worded discussion. For example, Lord Steyn opined that ‘a prisoner’s unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts’ is ‘an inseparable part of the right of access to the courts themselves’, which is a ‘fundamental’ and ‘constitutional’ right of every citizen. 27 Notably, while England’s prison regulations are only marginally more liberal than (and quite similar to) Singapore’s regulations, the protection of prisoners’ rights is far more liberal in practice in England due to the judiciary’s strongly established protective stance. Hence, if the Singapore legal system aims to afford greater protection to prisoners’ rights, a shift in its judiciary’s attitudes – to mirror that of English courts – is imperative. Conclusion Prisoners’ right to confidential legal correspondence is often subject to contentious breaches. While legitimate safety concerns justify a minimal level of interception of confidential legal correspondence, they do not go as far as to justify the extent to which Singapore law presently condones breaches of prisoners’ rights. The cultural explanation, too, falls short, calling for Singapore to reform its legislation and, most importantly, liberalise its judicial attitudes. In reforming its judicial attitude, Singapore should move towards the approach taken by English courts, whose protection of prisoners’ rights is enabled by its judiciary’s liberal application of otherwise largely conservative regulations.

Daly (no 7), 534 [22]. Johnson v Whitehouse [1984] RTR 38 at [47], per Nolan J. 25 Gobi (no 3), 95 [91]. 26 R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33. 27 Leech (no 9) 207. 23 24


Singapore Comparative Law Review

A Tale of Two Supremacies: Protection of human rights in the UK and Singapore Richmond Xiao Introduction Different jurisdictions protect human rights via different means. By comparing the England and Wales and Singapore approaches, I argue that constitutional structure – whether a jurisdiction empowers the judiciary to invalidate legislation – cannot predict the degree to which its judiciary protects human rights. Rather, this depends on both constitutional structure and judicial attitudes. This article comprises four parts. Part I outlines how Singapore and the UK protects human rights; Part II examines the merits and demerits of their respective constitutional structures; Part III argues that human rights protection depends on both judicial attitudes and constitutional structures; and Part IV theorises as to why the Singapore judiciary adopts a self-restrained attitude towards human rights protection.

Part 1: Description UK – Human Rights Act The England and Wales courts do not have the power to invalidate legislation that breach human rights. Rather, the Human Rights Act 1998 undergirds the UK approach to human rights protection. Before its enactment, as the UK is signatory to the European Convention of Human Rights (ECHR), individuals needed to petition the European Court of Human Rights (ECtHR) in Strasbourg to obtain a remedy for a breach of human rights. The HRA supplements this system as it ‘brings rights home’, providing a domestic remedy that saves applicants the time needed to travel to Strasbourg.1 The HRA ‘[brought] rights home’ through two ways. Firstly, s3 of the HRA provides a rule of construction. It requires the courts to interpret legislation consistent with the European Convention of Human Rights (‘ECHR’) as far as possible. Secondly, s4 empowers the courts to issue a non-binding declaration of incompatibility if legislation cannot be interpreted consistently with the ECHR rights. This declaration, indicating that legislation derogates from the ECHR, may prompt Parliament to amend the legislation to be ECHR-compliant.2

Singapore – Written Constitution In contrast, the Singapore Constitution empowers the courts to invalidate legislation that breach human rights.3 This is because of two cumulative conditions. Firstly, Singapore adopts constitutional supremacy, whereby constitutional institutions derive their mandate from a written constitution. Consequently, the judiciary can render any legislation inconsistent with the Constitution void. 4 Secondly, the Singapore Constitution has a section on fundamental liberties, 5 which protects rights similar to human rights that international instruments such as the Universal Declaration of Human Rights and ECHR recognise. These

Home Office, Rights Brought Home: The Human Rights Bill, (CM 3782, 1997) 4. HL Deb 3 November 1997, vol 582, col 1231. 3 Art 4. 4 Ibid; see also Wham Kwok Han Jolovan v Public Prosecutor [2020] SGCA 111 [28]. 5 Part IV. 1 2


Singapore Comparative Law Review two conditions mean that the judiciary can invalidate legislation that breach fundamental liberties (which approximate to human rights).

Part 2: Comparing Constitutional Structures Now, this article will turn towards comparing the benefits and demerits of the Singapore and UK approaches to human rights protection from a purely structural standpoint (which will be subsequently demonstrated to be insufficient in Part 3).

Potential to Protect Human Rights Foremost, the benefit of Singapore’s approach is that the judiciary will uphold human rights to a greater extent. The explanation is simple. The Singapore approach allows the judiciary to invalidate legislation; the UK approach does not. Assuming all else equal, the Singapore judiciary will exercise its power to restrain more human rights abuses.

Democratic Considerations In contrast, one apparent demerit of Singapore’s approach is that it detracts from democracy. The argument is that Singapore’s approach is less democratic than the UK’s because it creates a juristocracy. A juristocracy is a democratically illegitimate form of government wherein the unelected judiciary has too much power. Before beginning the analysis, I will first explain democratic theory, which is the framework I use to explain the problem of juristocracy. According to Rousseau’s democratic theory, laws derive legitimacy from the people’s collective consent.6 To this end, a law is said to be backed by the general will when the people would collectively consent to it; where it represents the collective interests of all the people. Therefore, the concept of general will is a fundamental principle of democracy, for it clothes the law with legitimacy. Prima facie, Singapore’s constitutional structure will create a juristocracy. The legislature is an elected body that passes laws. Most of the time, the general will backs the laws that the legislature passes. The reasoning is as such: since most people voted for the legislature, most people believe the laws passed by the legislature to represent their interest; therefore, such laws likely further the collective interest. Comparatively, the judiciary is an unelected body. Allowing the judiciary to invalidate legislation for unconstitutionality vests power to override laws passed by an elected body (which are backed by the general will most of the time) in an unelected body. Evidently, Singapore’s constitutional supremacy, which allows the judiciary to invalidate legislation, runs the risk of being undemocratic. In fact, this was the reason the drafters of the HRA declined to give the judiciary the power to invalidate legislation; doing so would undermine parliamentary supremacy, which would be undemocratic. 7 However, the better view is that the empowerment of the judiciary to invalidate legislation for unconstitutionality can be either pro- or anti-democratic depending on judicial attitude. Bestowing such a power upon an over-activist judiciary will be undemocratic for it creates a juristocracy. On the other hand, providing such a power to a self-restrained judiciary is pro-democratic. As alluded to earlier, the general will backs laws passed by an elected legislature most of the time. However, two possible situation could arise

Christopher Bertram, “Rousseau's Legacy in Two Conceptions of the General Will: Democratic and Transcendent” (2012) 74 The Review of Politics 403. 7 Home Office, Rights Brought Home: The Human Rights Bill, (CM 3782, 1997) 10. 6


Singapore Comparative Law Review when this is not the case. The first situation is the classic principal-agent scenario whereby the legislature legislates to benefit themselves rather than the people. The second situation is when the legislature acts to benefit the majority at the expense of the minority. In these two situations, laws further the interests of a select group (the legislature or the majority) rather than the people, such that these laws are not backed by the general will. Evidently, empowering such a judiciary to invalidate such legislation would protect democracy by ensuring that laws remain valid only insofar as they are backed by the general will. As such, to argue that the Singapore approach is more or less democratic just because it empowers the judiciary to invalidate legislation is overly simplistic.

Part 3: Judicial Attitudes as a Determinant of Human Rights Protection As alluded to earlier, a purely structural analysis of constitutional structure is limited because judicial attitudes also affect human rights protection. Human rights protection depends on how much power the judiciary has (which depends on constitutional structure) and more importantly, whether the judiciary actually uses this power (which depends on judicial attitudes). A comparison between UK and Singapore human rights case law illuminates this point. Although the Singapore courts have more latitude to protect human rights (via the power to invalidate legislation), the Singapore courts are slow to exercise this potential as they are less willing to question the legislature than their UK counterparts. 8 In other words, the courts tend to interpret the scope of the fundamental liberties narrowly, providing only minimal protection to human rights.

On one hand, the Singaporean courts tend to interpret the scope of the fundamental liberties rather narrowly. The differing treatment of the right to life (vis-à-vis Strasbourg jurisprudence) illustrates this point. The Singapore Court of Appeal in Yong Vui Kong interpreted it narrowly as a negative right that ‘prohibits the State from unlawfully depriving an individual of his life or personal liberty, but does not impose any duty on the State to take affirmative measures to facilitate or promote a person’s enjoyment of his life and personal liberty.’9 In comparison, the ECHR’s right to life is a positive right that ‘may imply a positive obligation on the authorities of a Contracting State to take preventive measures to protect the life of an individual from the danger posed by another individual.’10 Since the positive right to life presupposes the negative right to life, ECHR rights are evidently interpreted more broadly than their equivalent counterparts in Singapore.

On the other hand, the Singaporean courts tend to treat the exceptions to the fundamental liberties broadly. For example, in Yong Vui Kong, the Singapore Court of Appeal held that torture – when defined as punishment more severe than cruel and inhuman punishment – was constitutional despite Art 9(1) of the Constitution, which provides that ‘[n]o person shall be deprived of his life or personal liberty save in accordance with law.’ 11 This was because the court interpreted the exception ‘in accordance with law’ broadly, prescribing a rather minimal requirement as to when rules acquire the character of law - they simply need to be passed by a legislature and cohere with the fundamental rules of natural justice (which are ‘procedural rights aimed at securing a fair trial’).12 As such, the court held that the Constitution only prohibited torture Kenny Chng, 'Judicial Precedent in Emerging Constitutional Jurisdictions: Formulating a Doctrine of Constitutional Stare Decisis for Singapore' (2020) 7 J Int'l & Comp L 127, 146. 9 [2015] SGCA 11; [2015] 2 SLR 1129 [14]. 10 Osman v UK ECHR 1998–VIII 3124 [107]. 11 Yong Vui Kong (n 9) [38], [76]. 12 Ibid [14], [64]. 8


Singapore Comparative Law Review ‘in its narrow sense… where it is used to extract evidence to be used as proof in judicial proceedings [as this] would violate the fundamental rules of natural justice’. 13 Similarly, in the context of religious freedom, interpreting the case of Colin Chan,14 Thio highlights that ‘[w]here assertions of religious freedom affect matters judicially associated with national security, such as a refusal to perform compulsory military service, public order considerations trump religious freedom claims’. 15 These examples show that even though constitutional structure affects the power that the courts have to protect human rights, such power is immaterial if the court is unwilling to exercise it. Consequently, analysis of the degree of human rights protection should account for judicial attitudes as much as constitutional structure.

That said, one cannot cleanly delineate constitutional structure from judicial attitudes because constitutional structure can influence judicial attitudes. This can occur through two ways. The first is via runaway legitimation, a phenomenon in which repeated appeals to values cause those values to entrench themselves. 16 As Thio highlights, ‘self-perception by judges of their role and functions is influenced by public perception and expectations as to the institutional role of the courts’. 17 Applied in the human rights context, the constitutional status of human rights means that individuals will appeal to the Constitution and use the language of human rights in their advocacy. In the long run, such persistent appeals may cause Singapore to view human rights as increasingly important and to emphasise the role of the judiciary in protecting human rights. In this sense, the ‘constitutionalisation’ of human rights means that the polity will expect the judiciary to act as a protector of human rights, thereby influencing the judiciary to act as precisely such a protector. The second is through the creation of supranational constitutional structures. For example, human rights cases emanating from states signatory to the ECHR can appeal to the ECtHR. Since the ECtHR is a supranational body, its interpretation of human rights will differ from that of individual ECHR signatory states. While the doctrine of the margin of appreciation enables individual states to deviate from ECHR obligations, the ECHR remains binding upon signatory states. In other words, the ECHR remains an instrument that sets minimal binding standards of human rights protection, 18 which cause individual states to move away from domestic conceptions of human rights to interpret human rights in line with that of the ECtHR. As such, constitutional structure still plays an appreciable role in human rights protection as it can affect the interpretation of human rights.

Part 4: Explaining Different Judicial Attitudes To this end, I theorise that the reason the Singapore judiciary adopts a circumscribed approach towards human rights protection is because of (1) the prevailing political climate in Singapore and (2) the polity’s culture.

On the point of the prevailing political climate, the Singapore People’s Action Party (PAP) government enjoys a consistent supermajority in Parliament. This sole political fact causes the judiciary to be selfIbid [64]. [1994] SGHC 207; [1994] 3 SLR(R) 209 [63]-[64]. 15 Thio Li-Ann, 'Singapore Relational Constitutionalism: The Living Institution and the Project of Religious Harmony' (2019) 2019 Sing J Legal Stud 204, 210. 16 Michael William Dowdle, 'Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: The Curious Case of China' (2002) 35 NYU J Int'l L & Pol 1, 86. 17 Thio Li-Ann, ‘Principled pragmatism and the “third wave” of communitarian judicial review in Singapore’ in Jaclyn L. Neo (ed), Constitutional Interpretation in Singapore (Routledge 2017) 78. 18 Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights’ (2018) 18 Hum Rts L Rev 495. 13 14


Singapore Comparative Law Review restrained for two reasons. Firstly, strategic decision-making incentivises the courts to remain self-restrained. If the courts were to strongly pursue human rights protection, they would ultimately lose their own power (and ability to protect human rights in the long-run), as illustrated in the case of Chng Suan Tze. 19 After the courts gave judgment to the applicant in a judicial review case, the legislature amended the Constitution to add Article 149(3),20 reducing the scope of judicial review, thereby legislatively overruling a constitutional decision. To prevent such a situation from arising again, as a means of preserving its own power, the judiciary may be reluctant to restrain non-flagrant violations of human rights. Secondly, this political fact means that as matter of democratic principle, the courts should be slow to override the legislature’s decision. To elaborate, given that the vast majority of the population supports the ruling PAP, a strong majoritarian will backs the laws passed by the legislature. Such a strong majoritarian will closely approximate to the general will. Therefore, to prevent itself from unduly usurping the general will, the judiciary is slow to exercise its counter-majoritarian function.

I will now turn towards the point of Singapore’s culture. Human rights adjudication highlights the tension between the individual and the collective. A petition based upon human rights is based upon individualism. The petitioner is arguing that there has been an ‘illegitimate extension of government regulation into an individual’s “sphere of privacy”’; 21 that his right should restrain government regulation even if said regulation is in the community’s interest. Consequently, the judiciary’s role in human rights adjudication is to determine where to draw the line; based upon the general will, it determines how much the individual is expected to sacrifice his individual interests for the community’s benefit. 22 As Chua highlights, the PAP has been mostly successful in socially engineering a communitarian culture in Singapore. 23 As such, members of Singapore society are expected to sacrifice for the benefit of the community to a greater extent than members of non-communitarian societies. In other words, the general will is characterized by communitarianism. Backed by the general will, the judiciary strikes the balance further in favour of the community, thereby giving less effect to human rights.

Conclusion In conclusion, in this article, I have highlighted that structural analyses of human rights law, while useful, are mere starting points and cannot accurately reflect the degree of human rights protection within a jurisdiction. Rather, a better approach is to consider both constitutional structure and judicial attitudes, whilst noting that these two things affect one another. In doing so, I have also highlighted that factors such as political context and culture affect judicial attitude.

[1988] SGCA 16, [1988] 2 SLR(R) 525. Jaclyn Ling-Chien Neo & Yvonne CL Lee, ‘Constitutional Supremacy: Still a Little Dicey?’ in Thio Li-ann & Kevin YL Tan (eds), Evolution of a Revolution: Forty Years of the Singapore Constitution (Taylor & Francis Group 2008) 177. 21 Thio Li-ann, 'An I for an I - Singapore's Communitarian Model of Constitutional Adjudication' (1997) 27 Hong Kong LJ 152 152. 22 Ibid 153. 23 Chua Beng Huat, Communitarian Ideology and Democracy in Singapore (Routledge 1995) 37. 19 20


Singapore Comparative Law Review

Environmental Pollution Control: Not a Matter to COP26 Out Of Claire Li The occurrence of the 26th UN Climate Change Conference of the Parties (COP26) this year serves as an apt checkpoint for the growing focus on environmental protection by individuals, organisations and governments alike, as countries convene to update on their progress and further work towards the goals previously set in the Paris Agreement in 2016. Since the Paris Agreement, there have been visible efforts in climate activism, including an increase in climate-related litigation 1 as well as the passing of various environmental legislation, such as the EU implementation of the target of reducing greenhouse gas emissions by at least 40% by 2030. It is therefore opportune to consider the various legal mechanisms that make up the complex system of environmental regulation. In particular, this article seeks to conduct a comparative analysis between the approaches adopted by both Singapore and the UK, including the national and international instruments at their disposal, and offer a consolidated summary of their respective positions with regard to pollution control. This article further argues that while both countries have taken considerable steps towards tackling environmental pollution, Singapore should adopt measures taken in the UK to place greater emphasis on pollution control, such as mandating the use of Environmental Impact Assessments and adopting legally enforceable climate legislation. The Common Law Element of Environmental Pollution Control The common law aspect of environmental pollution control is often less discussed, owing to the preference for the use of statutory mechanisms to regulate environmental pollution. Arguments have been put forth to explain this phenomenon, such as the limitations on the common law’s ability to protect the public interest, 2 and inefficiency due to the divergence between the social and individual valuation of environmental-related litigation. 3 Nevertheless, the common law still serves as a viable means of handling cases of environmental pollution, especially those involving the direct compromise of the private rights of individuals, such as the right to amenity or proper use of land. Hence, while protecting against environmental pollution may not be the specific aim of the common law, tort law offers a form of environmental protection through cases brought forth by individuals regarding the impact and negative effect of such environmental pollution. Tort of Private Nuisance and Negligence A leading case in this regard would be that of Rylands v Fletcher,4 which sets out rules regarding a specific class of the tort of nuisance. According to the judgment by Blackburn J, to succeed in tort the claimant must show: 1. The defendant brought something onto his land; 2. That thing was “likely to do mischief if it escapes”; Joana Setzer and Rebecca Brynes, ‘Global trends in climate litigation: 2019 Snapshot, 2019’ <> accessed 28 May 2021. 2 Royal Commission on the Pollution of Rivers (of 1865), ‘Third Report’, The Rivers Aire and Calder (1867) CMND 3850. 3 Fritz Söllner, ‘The Role of Common Law in Environmental Policy’ (1994) Public Choice 69–82. 4 [1868] LR 3 HL 330. 1


Singapore Comparative Law Review 3. That thing did indeed escape and caused damage; and 4. The defendant made a “non-natural use” of the land (added by Lord Cairns). The test was further narrowed by Cambridge Water Co v Eastern Counties Leather Plc (“Cambridge”), 5 in which there was an additional requirement of assessing the remoteness of damage, in particular, whether the specific type of harm was reasonably foreseeable. Subsequent judgment in Transco plc v Stockport Metropolitan Borough Council6 has added to the assessment to include the foreseeability of the risk of harm, confirmed by Northumbrian Water Limited v Sir Robert McAlpine Limited7 to be the current position of English law. The rule in Rylands v Fletcher has been made good law in Singapore in the case of Tesa Tape Asia Pacific Ltd v Wing Seng Logistics Pte Ltd,8 and used successfully to claim damages between private individuals regarding various forms of environmental pollution, such as in OTF Aquarium Farm v Lian Shing Construction Co Pte Ltd. 9 However, the Singapore courts have chosen to depart from the current English law position in Pex International Pte Ltd v Lim Seng Chye and another (“Pex”) 10 and continue to take the position in Cambridge whereby the foreseeability of the risk of harm is irrelevant, while the foreseeability of the type of harm is relevant when considering the issue of remoteness. The implication of this may be that fewer cases can be brought forth through the tort of nuisance due to the stricter test employed. However, the courts in Pex justified its decision to maintain the distinction between the torts of nuisance and negligence. Still, it is worth noting that successful environment-related claims have been brought forth in the tort of negligence as well in Singapore, showing how the common law can address issues of environmental pollution. In the case of Animal Concerns Research & Education Society v Tan Boon Kwee, 11 the appellants were successful in a claim of negligence for the defendant’s negligent pollution of the environment in the course of construction. This, therefore, highlights the role of the common law in environmental pollution control and suggests that the common law will continue to play a part despite receiving less academic focus as compared to statutory regulations. It is also worth mentioning the potential increase in the role of negligence in tackling issues of environmental pollution following the case of Sister Marei Brigid Arthur v Minister for the Environment.12 This Australian case produced a landmark decision that recognised the Minister for the Environment as having a duty of care in negligence to a group of children against harm from the impact of climate change as a result of the approval of a coal mine development. While a specific declaration with regards to the precise scope of such a duty of care has yet to be made at the time of writing, and it remains to be seen whether there will be subsequent appeals to the decision, this represents a key step forward to the recognition of environmental pollution-related risks as an issue to be brought forth in the tort of negligence. A key element of the reasoning by Bromberg J included the fact that novel duties of care are to be recognised to meet ‘contemporary social conditions and community standards’.13 As such, the case for recognition of a similar duty of care is highly plausible in the UK, which enacted the Climate Change Act 2008, legally recognising the government’s commitment to the reduction of carbon emissions. Comparatively, Singapore has yet to implement such legally binding legislation and is relatively behind Australia and the UK on climate change-

[1994] 2 AC 264. [2004] 2 AC 1. 7 [2014] EWCA Civ 685 8 [2006] SGHC 73. 9 [2007] SGHC 122. 10 [2019] SGCA 82. 11 [2011] SGCA 2. 12 [2021] FCA 560. 13 ibid [253]. 5 6


Singapore Comparative Law Review related efforts,14 making it an open question as to whether courts will recognise the protection against climate change-related harm as a duty of care. Still, given the infancy of developments pertaining to a particular duty of care with regards to climate-related harm, especially with regard to the extent to which private entities are subject to such a duty, it is unclear whether UK and Singapore courts will follow suit in future cases. Crime of Public Nuisance However, the limitations of the common law to serve as a comprehensive form of environmental pollution control on its own are highlighted by the infrequency of public nuisance cases in both English and Singapore law. This is due to existing statutory measures that provide a faster and more effective remedy to public nuisances. For example, Part V of the Environmental Public Health Act in Singapore, where a nuisance order may be issued for the list of activities listed out in the statute without having to go through the common law system of determining the presence of a nuisance in the first place. Nevertheless, where the common law can contribute to environmental pollution control is in cases that the conduct in question does not fit within pre-existing statutory offences. Such cases have been advanced the tort of public nuisance in the UK, such as that of Tate & Lyle v Greater London Council, 15 where the construction of a jetty that caused the pollution of river channels due to siltation was held as a public nuisance due to its negative impact on public navigation rights. While the reasoning in this case was not specifically on the basis of environmental pollution, it is still evident that the common law can be employed to tackle matters of environmental pollution through identifying other means of bringing forward public nuisance cases, especially given the likelihood for environmental pollution to have other impacts on the vicinity, as in this case with its impacts on navigation rights. This is particularly pertinent in cases where statutory regulation has yet to effectively regulate new forms of pollutants that are created as a result of scientific advancements in detecting the harm or through new technology. Thus, it is worth observing if future environmental cases are advanced in the tort of public nuisance should there be insufficient statutory means to adequately address the harm caused. Domestic Regulation of Environmental Pollution Control As highlighted in the previous section, common law in the UK and Singapore are insufficient as standalone mechanisms when dealing with environmental pollution control. Statutory Mechanisms In terms of environmental law regulating pollution control, both the UK and Singapore have implemented broad and comprehensive statutes that are supplemented with strict enforcement regimes. However, upon a comparison of the two jurisdictions, I argue that Singapore can do more to tackle environmental pollution through legislation. Singapore has two main laws governing pollution: the Environmental Protection and Management Act (“EPMA”) and the Environmental Public Health Act. Similarly, the UK has the Control of Pollution Act 1974 and the Environmental Protection Act 1990.

For example, Singapore has yet to establish any goal or target towards net-zero emissions, aiming to achieve it “as soon as viable”, as opposed to the other two countries. (National Climate Change Secretariat Strategy Group, Prime Minister’s Office, “Charting Singapore’s Low-Carbon and Climate Resilient Future”, (2020).) 15 [1983] 2 AC 509. 14


Singapore Comparative Law Review While the laws are largely similar in both jurisdictions by setting out a broad framework of what constitutes pollution, a key distinction in the UK is the mandating of Environmental Impact Assessments (“EIA”), first as a matter of European Union (“EU”) law since 1998 and then transposed into UK law through the Town and Country Planning Act 1990. This Act governs the Town and Country (Environmental Impact Assessment) Regulations 2017 which sets out the main EIA regime in the UK, taking into account amendments by directives from the EU. 16 This involves an assessment of both public and private projects’ likely environmental effects, as well as public input of the proposed projects. What is significant is the courts’ supervisory role in the process, ensuring that projects that fall within regulations do conduct EIAs. This has resulted in successful cases being brought forth in court against planning permissions obtained without EIAs, such as R (on the application of Bateman) v South Cambridgeshire DC, 17 and R (on the application of Goodman) v Lewisham London Borough Council. 18 Comparatively, Singapore’s laws do not contain provisions mandating EIAs, though the Ministry of Environment has imposed administrative requirements on certain industrial projects. 19 Additionally, such EIAs, if conducted, are ‘submitted in confidence’ with no public participation in the EIA process. 20 While it is difficult to conclusively state the impact of not requiring EIAs, it is worth considering the adoption of the UK model regarding EIAs to increase the emphasis placed on environmental protection in broader urban planning considerations of the government. Additionally, this also allows for the possibility of judicial review into planning permissions issued by the Urban Redevelopment Authority should EIAs not be properly conducted, similar to the abovementioned cases in the UK. Given that statutory boards are liable to judicial review, 21 such a move could also serve to increase accountability on matters relating to environmental protection on a governmental level, affirming Singapore’s commitment to furthering its environmental protection goals. Another key piece of legislation in the UK that has no similar counterpart in Singapore is the Climate Change Act 2008. This was the first legally binding climate change mitigation target set by a country, setting out emissions targets, along with a requirement for the government to develop a National Adaptation Programme every five years outlining its key actions. The introduction of this Act has helped the UK reduce emissions while ensuring continued economic growth and represents a concerted effort by the government to tackle environmental pollution and climate change. While Singapore has announced emissions targets through its Climate Action Plan in 2016, in line with its pledge in the Paris Agreement, it is worth considering the possibility of enacting similar legislation to ensure not just international, but also domestic accountability towards environmental protection. Broader Policymaking and Non-Legal Measures Beyond statutory law tackling pollution directly, both governments also employ various other mechanisms to work as preventative mechanisms to limit or reduce the amount of environmental pollution. First, both jurisdictions employ systems that utilise market-based mechanisms to regulate environmental pollution. In Singapore, this is in the form of a carbon tax under the Carbon Pricing Act, which came into

Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. 17 [2011] EWCA Civ 157. 18 [2003] EWCA Civ 140. 19 Lye Lin Heng, ‘New Environmental Law: The Environmental Pollution Control Act, 1999’ (2000) Singapore Journal of Legal Studies 1. 20 Patrick A Hesp, ‘The Environmental Impact Assessment process in Singapore with particular respect to coastal environments and the role of NGOs’ (1995) Journal of Coastal Conservation 135. 21 Axis Law Corp v Intellectual Property Office of Singapore [2016] SGHC 127. 16


Singapore Comparative Law Review operation in 2019. This includes a fixed rate per tonne of greenhouse gas emissions, which will be reviewed and adjusted in the coming years.22 Comparatively, the UK has adopted the UK Emissions Trading Scheme (“UK ETS”), replacing its participation in the EU Emissions Trading Scheme with effect from 2021. A key distinction between the two systems is that the former ensures price certainty, but at potential damage to the environment as there is no limit on the emissions a company can produce. 23 However, while the latter system limits carbon emissions, there have been challenges to the proper functioning of the system due to the uncertainty in carbon pricing.24 Given the relative novelty of both systems, both governments are likely to monitor their effectiveness and introduce amendments to the systems in the years to come. This article, therefore, proposes the combination of both strategies to have a significant carbon tax alongside an emissions trading scheme to counteract the shortcomings of each system, though it is noted that more research has to be done to determine the optimal harmonisation of both systems to effectively harness their benefits. Second, both jurisdictions are complementing efforts with longer-term blueprints to set out the agenda for environmental-related efforts. The recent announcement of Boris Johnson’s Ten Point Plan in the UK at the end of 2020 provides an indication of the direction of UK legislation in the years to come. Of significance is the plan to end sales of petrol and diesel cars by 2030, as well as support for research to reduce emissions in the shipping and aviation industries, sectors which are traditionally difficult to decarbonise. 25 Singapore unveiled its Singapore Green Plan 2030 in 2021, an inter-ministry effort with a focus on the adoption of new technological solutions to reduce emissions. 26 Third, both governments engage with other stakeholders like non-governmental organisations (“NGOs”) in efforts to tackle environmental pollution. A key distinction between jurisdictions, however, is the allocation of powers to these institutions. NGOs in the UK are permitted under the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 27 to request action with regards to environmental damage from the relevant authorities. NGOs have also brought forth cases for judicial review before the courts against the government for actions with potentially negative environmental impacts, such as R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry.28 Comparatively, the role of NGOs in Singapore is more consultative and cooperative, with NGOs raising proposals or feedback regarding government initiatives. This has resulted in mixed successes with regards to environmental-related feedback, such as the rejection of an appeal for an area in Senoko to be conserved as a nature park,29 but successful efforts at pushing for efforts to tackle transboundary haze pollution. 30

Ministry of Finance, ‘Singapore Green Plan 2030’ <> accessed 28 May 2021. 23 Mikael Skou Andersen and Paul Ekins, Carbon-energy Taxation Lessons from Europe (OUP 2009). 24 Patrick Bayer and Michaël Aklin, ‘The European Union Emissions Trading System reduced CO emissions 2 despite low prices, PNAS April 21’ (2020) 117 (16) 8804-8812, <> accessed 28 May 2021. 25 Prime Minister’s Office, ‘PM outlines his Ten Point Plan for a Green Industrial Revolution for 250,000 jobs’ <> accessed 28 May 2021. 26 Singapore Green Plan (n 23). 27 SI 2015/810. 28 [2007] EWHC 311 (Admin). 29 Dominic Nathan, ‘Ministry rejects appeal to save Senoko bird habitat.’ (The Sunday Times, 1994) <> accessed 28 May 2021. 30 Jessica Angela, ‘The Contribution of NGO in Public Diplomacy: A Case Study of the Singapore Institute of International Affairs in Resolving the Transboundary Haze Pollution Issue between Singapore-Indonesia (20122016)’ (2019) AEGIS Journal of International Relations 146. 22


Singapore Comparative Law Review Regulating the Environment through International Law International environmental law is a complex construct of legally binding instruments, treaties and soft law,31 including non-binding decisions and declarations, made by both formal and informal institutions. 32 Given its nature as a dynamic construct that is constantly developing, 33 an in-depth analysis of international environmental law would warrant an article for itself. Nevertheless, this article aims to focus on a few key developments in international law that have direct implications on both the UK and Singapore. The Paris Agreement The Paris Agreement, which entered into force on 4 November 2016, was an agreement signed by 190 countries including both the UK and Singapore, committing nations to undertake ambitious efforts to tackle climate change and its effects.34 This was a legal instrument in the form of a treaty, governed by the Vienna Convention, providing that a treaty is “binding upon the parties to it and must be performed by them in good faith”. However, it is important to note that this does not indicate that all provisions in the Paris Agreement create legal obligations, given the mix of different types of provisions such as obligations, recommendations and factual observations.35 Importantly, it is worth highlighting the challenge of domestic judicial intervention with regards to such international treaties. Due to the requirement that international treaties and agreements be ratified by Parliament before they become legally binding in domestic law, some scholars have argued that the Paris Agreement’s obligations are ‘voluntary’,36 and ‘essentially a statement of good intentions’ rather than law. 37 This stance appears to be followed by the UK courts in R (on the application of Plan B Earth) v Secretary of State for Transport (“Plan B Earth”),38 a case brought forth by an NGO against the construction of a third runway at Heathrow Airport based on the argument that it contravened the UK’s pledge under the Paris Agreement. As part of its ruling in favour of the UK government, the court stated that despite the formal ratification of the Paris Agreement, it did not constitute “Government policy” in the meaning in the statute. 39 This casts doubt on the efficacy of such international treaties against domestic government decisions that may be incompatible with its international commitments, given the difficulties for courts to uphold a government’s international obligations. Thus, the enforcement of agreements on an international level can be argued to be largely political given the difficulties in judicial enforcement of the agreements on a domestic level.

Mostafa K. Tolba, Iwona Rummel-Bulska, Global Environmental Diplomacy: Negotiating Environmental Agreements for the World, 1973-1992, (MIT Press, 1998). 32 Louis Kotzé, ‘Towards a Tentative Legal Formulation of Environmental Law-making and Diplomacy Review 2009’ (2010) University of Eastern Finland, Joensuu 3. 33 Ed Tuomas Kuokkanen and others, International Environmental Law-making and Diplomacy: Insights and Overviews (Routledge, 2016). 34 United Nations Climate Change, ‘Key Aspects of the Paris Agreement’ <> accessed on 28 May 2021. 35 Daniel Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) Review of European, Comparative & International Environmental Law 142. 36 Richard Falk, ‘Voluntary International Law and the Paris Agreement’ (16 January 2016) <> accessed 28 May 2021. 37 Anne-Marie Slaughter, ‘The Paris Approach to Global Governance’ (28 December 2015) <> accessed 28 May 2021. 38 [2020] UKSC 52. 39 ibid [102]. 31


Singapore Comparative Law Review Since no similar cases to Plan B Earth have been brought before Singapore courts, the abovementioned case is a worthy point of consideration as to how Singapore might regard cases pertaining to environmental law. Still, as articulated by Lye Lin-Heng, “it is clear that Singapore’s judiciary is aware of environmental concerns and mindful of responsibilities even beyond our national territory”. 40 It is also worth noting that Singapore is also unlikely to see similar cases being brought to the judiciary by NGOs given the government’s differing relationship with NGOs as compared to the UK, as expanded upon in the previous section. Regional Efforts Both the UK and Singapore have also taken efforts at a regional level to regulate the environment through the EU and ASEAN respectively. As these institutions fundamentally differ in structure, a direct comparison between both government’s efforts will not offer much insight. Still, this article seeks to comment on the key approaches taken by both countries, as well as the implications of recent events such as Britain’s withdrawal from the European Union (Brexit). In the case of Singapore, the Transboundary Haze Pollution Act 2014 (THPA) is a piece of legislation significant for having an extraterritorial application, noteworthy for its jurisdictional reach over nonSingaporean entities outside Singapore. 41 This criminalises conduct that contributes to haze pollution and had been used to send six notices to Indonesian suppliers under Section 9 in 2015.42 Singapore has been keen to emphasise the intention of the THPA being complementary to the efforts of other countries to hold companies to account, rather than supplanting existing laws. 43 In the absence of established regional legal institutions such as those seen in the EU, the THPA thus serves as a strong statement of the importance placed on environmental pollution by Singapore. The UK has traditionally relied on its membership in the EU for matters pertaining to environmental law, such as binding commitments as part of international treaties subject to EU law and enforcement from the Court of Justice of the European Union (“CJEU”). An example includes Regulation 2018/841 of the European Parliament and of the Council, a legally binding framework by the EU that was set in the wake of the Paris Agreement. This subjects the UK to the requirement of achieving its individual emissions targets set with the threat of judicial enforcement. As a result of Brexit, while the CJEU retains jurisdiction over cases regarding breaches of EU law till 2024,44 future enforcement with regards to environmental law remains unclear. For example, the EU began infringement proceedings on cases such as the burning of peat bogs in protected areas of the UK but have yet to refer the case to the CJEU.45 It is still unclear whether the matter will be able to be referred post-Brexit. This issue is further illustrated when considering the netzero target the UK passed by Parliament under the Climate Change Act 2008 (2050 Target Amendment) Order 2019.46 The EU is currently in the process of drafting its first European Climate Law, a legally binding Lye Lin Heng, ‘The judiciary and environmental Governance in Singapore’ (2010) 3(1) Journal of Court Innovation 133. 41 Mahdev Mohan, ‘A Domestic Solution for Transboundary Harm: Singapore’s Haze Pollution Law’ (2017) 2(2) Business and Human Rights Journal 325. 42 National Environment Agency, ‘MEWR and NEA Factsheet on Measures Against Haze, 2016’,<–updated—cos-2016-media-factsheet— thpa-andgreen-procurement.pdf> accessed 28 May 2021. 43 SMUN023/2016, ‘Protection of the Atmosphere – Information on domestic legislation of Singapore – Transboundary Haze Pollution Act 2014’ <> accessed 28 May 2021. 44 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Articles 86 and 87. 45 European Commission, ‘April infringements package: key decisions’ <> accessed 28 May 2021. 46 2019 No. 1056. 40


Singapore Comparative Law Review mechanism for climate neutrality by 2050 with judicial enforcement by the CJEU. 47 Comparatively, it is unclear whether the UK’s domestic courts will be able to uphold similar enforcements of the UK’s promises, as highlighted above in the decision of Plan B Earth. Hence, this raises concerns regarding the degree of emphasis on the protection of the environment in the future, in the absence of a supranational body of supervision. Conclusion Overall, both countries are taking considerable and commendable efforts in tackling environmental pollution. An analysis of the various mechanisms at the judicial, governmental, and international level have shown the complexity of the matter, and the complementary purpose they serve under the broader scope of environmental law. Despite the differences in approaches to tackling environmental pollution, there are areas in which Singapore can consider looking comparatively at the UK model to place greater emphasis on the increasingly important issue of environmental pollution, such as mandating the use of EIAs and passing legally binding climate legislation. Likewise, as Brexit creates significant implications for the UK, Parliament will need to work towards establishing a new regime of environmental law with sufficient mechanisms for environmental protection without the EU and ECJ. It is also worth following the outcomes of COP26 that will indicate the global direction and progress with regards to tackling the issue of climate change, and potential climate-related litigation as the matter of climate change becomes more pressing in the years to come.

European Commission, ‘European Climate Law’ <> accessed 28 May 2021. 47




Singapore Comparative Law Review

PART C: Criminal Law


Singapore Comparative Law Review

Different Strokes for Different Folks: Examining the Differing Approaches to the Offence of Theft in the United Kingdom and Singapore Timothy Koo Introduction In 1826, the British Parliament granted the Second Charter of Justice, which established, in the Straits Settlements, a judicial system in the mould of the English system. Despite the vagueness of the Charter giving rise to initial confusion about the role of English law in the Straits Settlements, Sir Peter Benson Maxwell, Recorder of Singapore, held in R v Willans,1 that the Charter had the effect of empowering courts in the Straits Settlements to exercise English law. From that point onwards, a large body of Singaporean law became modelled after English law. However, not all English law was suitable for application in Singapore. A prime manifestation of this was in the realm of criminal law. In 1872, this direct application of English criminal law was displaced by the enactment of the Straits Settlements Penal Code 1871, which incorporated large parts of the Indian Penal Code into Singapore law due to its “relative simplicity as well as efficiency”.2 Consequently, while modern UK criminal law heavily relies on judge-made (common law) decisions, Singapore’s criminal law relies more on codified legislation — as per the Indian model. We will be focusing on this divergence between English and Singapore law to unearth the intricacies of how the respective jurisdictions deal with the offence of theft. Since a fully codified criminal law system may well be more structured, predictable and clear, it naturally follows that Singapore’s fully codified criminal law on theft may be more efficient, at least in theory. Whether this position holds water in practice will be explored throughout this article by closely examining the elements of theft. Theft as an Offence in the UK The offence of theft in the UK is currently governed by the Theft Act 1968 (“Theft Act”), which came into force on 1 January 1969, replacing the Larceny Act 1916. Prior to this change, English law’s approach to theft was viewed as overly complex, 3 with the Larceny Act 1916 containing “multifarious, old, technical [and] related offences”, 4 such as sacrilege 5 and larceny of dogs. 6 The effort to modernise the law for property offences culminated in the enactment of the Theft Act, which defines the current offence of theft. Section 1(1) of the Theft Act sets out the five elements of the offence: 1 Basic definition of theft. (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. The first three of these elements can be categorised as elements of the actus reus: (1858) 3 Ky. 16 Andrew Phang Boon Leong, ‘Of Codes and Ideology: Some Notes on the Origins of the Major Criminal Enactments of Singapore’ (1989) 31 Mal LR 46, 59 3 Alec Samuels, ‘Reform of the Law of Theft’ (1968) 3 Irish Jurist 273, 274 4 Ibid 5 Larceny Act 1916, s.24 6 Larceny Act 1916, s.5 1 2


Singapore Comparative Law Review 1. Property must be the subject of the theft; 2. That property must belong to another; 3. The property must have been appropriated by the defendant. Meanwhile, the final two elements can be categorised as elements of the mens rea: 4. The defendant must have intended to permanently deprive another person of that property; 5. The defendant must have acted dishonestly. These elements have proven to be deceptively simple — for example, the requirement that the subject of theft must “belong to another” has proven to be fairly flexible, with courts holding that defendants can steal their own property. Furthermore, despite the aim of the Theft Act to simplify the offence of theft, it remained the subject of numerous contentious legal debates over the past five decades. For instance, in R v Preddy,7 it was contended that the electronic transfer of money did not constitute the obtaining of property. Theft as an Offence in Singapore Meanwhile, the offence of theft in Singapore is currently set out by Section 378 of the Penal Code – consisting of four elements: 378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft. Similar to theft in the UK, these elements can be divided into actus reus and mens rea elements for ease of consideration. Two elements can be clearly categorised under the actus reus: 1. Moveable property must be the subject of the theft; 2. The defendant must have moved that movable property to take it. However, there is particular difficulty in categorising the absence of consent as either the mens rea or actus reus. The Supreme Court of India, in KN Mehra v The State of Rajasthan,8 took the view that the lack of consent was part of the actus reus. Jagannadhadas J held that the offence was where the defendant had moved another’s property “out of his possession without his consent”. Given that Singapore’s Penal Code is near identical to its Indian counterpart, it follows that the judgement would be applicable to theft in Singapore as well. However, this opinion was not echoed by the editors of “Criminal Law in Malaysia and Singapore”,9 who argued that the statute10 clearly show consent as part of the mens rea since it requires that the defendant intended to take movable property without the victim’s consent. Illustration (m) of the statute11 supports the latter view, suggesting that consent forming part of the mens rea is more convincing. The elements of the mens rea thus comprises the following: 3. The defendant must have been dishonest; 4. The defendant must have intended to take the property without the victim’s consent. [1996] AC 815 1957 SCR 369 9 Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (3rd edn, LexisNexis 2018) 462 10 Penal Code, s 378 11 ibid 7 8


Singapore Comparative Law Review

Having identified the elements of the offence of theft in the English and Singaporean statutes, their similarities and differences will be considered in turn to determine whether a more structured approach is more efficient in practice. A Frayed Common Ground? Consent, or Lack Thereof Although there is an evident difference in the importance of consent between the two jurisdictions’ offences, both systems are similarly capable of preventing a defence by defendant claiming that they received the victim’s consent to appropriate the property that is the object of theft. The wording of Section 378 of the Singapore Penal Code on consent has been considered at length earlier – one is guilty where one intended to take without consent, even if consent was actually given. This view was applied by the Supreme Court of Sri Lanka in Packeer Ally v Savarimuttu,12 where the court declined to consider the finer details of whether the victim had submitted or consented to the taking, but rather decided to convict the defendant since he had intended to take without consent. The court’s reasoning precludes defendants from claiming that they had obtained the victim’s consent, focusing instead on their state of mind — whether their intention was to take the victim’s property without consent. This view would be applicable to Singapore as well, since Sri Lanka’s Penal Code is similarly adapted from the Indian Penal Code. While the Singapore courts will examine if a defendant had the intention to take a victim’s property without consent, consent is an irrelevant issue in the English version of the offence and it is not a statutory element of the offence. Cases where this view was made evident include Lawrence v Commissioner of Police of the Metropolis,13 as well as R v Gomez, 14 in which Lord Keith opines that “an act may be an appropriation notwithstanding that it is done with the consent of the owner.” Instead, English courts focus heavily on dishonesty –considerations of consent are largely irrelevant. This element is examined next. Dishonesty It is evident that the statutes in both the UK and Singapore require dishonesty on the part of the defendant in order for him to be convicted of theft. The approaches differ fairly significantly, with the English test for dishonesty being laid out in case law, in stark contrast to the statute based approach in Singapore. In this instance, the Singaporean approach appears to be more grounded in the fundamentals of the criminal law than the English approach for reasons that will be expounded on later in this section. The test for dishonesty that is applicable to theft cases in the UK is set out in R v Barton and another (“Barton”),15 in which the Court of Appeal decided that the definition of dishonesty, as held by the Supreme Court in Ivey v Genting Casinos Ltd (t/a Crockfords Club) (”Ivey”),16 is applicable to criminal cases. In Ivey, the Supreme Court, albeit in obiter, rejected the test established in R v Ghosh17 to apply a more objective standard of dishonesty instead by adopting the civil law test for dishonesty, as set out in Barlow Clowes International v Eurotrust International:18 (1926) 2 CWR 216 [1972] AC 262 14 [1993] AC 442 15 [2020] EWCA Crim 575 16 [2017] UKSC 67 17 [1982] QB 1053 18 [2006] 1 WLR 1476 12 13


Singapore Comparative Law Review Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards.19 The obiter rejection of Ghosh in Barton thus confirmed the test as applicable to all criminal cases, including theft. Though the first limb of the Ivey test retains a subjective element where the court must determine the defendant’s knowledge, the objective second limb of the test became the determining factor. 20 Under this limb, it is merely required that the conduct is dishonest by the standards of ordinary decent people. Though the requirement for dishonesty similarly exists in Singapore law, the adopted approach is significantly different. English law relies on the common law test in Ivey/Barton to define dishonesty and the role of statute is relegated to merely setting out exceptions to the rules on dishonesty, such as situations constituting genuine belief in consent. In stark contrast, the Singapore Penal Code sets out a detailed definition of dishonesty for theft. 24. A person (A) is said to do an act dishonestly if — (a)

A does that act with the intention of causing wrongful gain to A or another person, or wrongful loss to another person, regardless of whether such gain or loss is temporary or permanent; or


that act done by A is dishonest by the ordinary standards of reasonable and honest persons and A knows that that act is dishonest by such standards.

An examination of the relevant statutes reveals that though the requirement of dishonesty is present in both countries, what appears prima facie common ground is not the same at all. The objective second limb of the Ivey test applied by the English court would render moot any argument by the defendant that they had not realised that their conduct was dishonest (if contrary to societal standards) and thus convict them. On the contrary, the same defendant would likely be acquitted under the definition of dishonesty as set forth by Singaporean statute. This is because the Singaporean definition of dishonesty requires subjective knowledge on the part of the defendant, or an intention to cause wrongful gain. It is the author’s view that the Singaporean approach is more suited to the nature of the offence. In neither jurisdiction is the offence of theft a strict liability offence, and thus the mens rea must be present. But in the English test for dishonesty, a defendant could be found to possess the mens rea even if they did not subjectively believe their conduct was dishonest. It would not be convincing to argue that the mens rea is present if the defendant can conclusively prove that they were truly not aware. To prove that the defendant acted scienter is arguably far less difficult than proving a lack of understanding of the objective standards of reasonable and honest persons and this sufficiently serves as a safeguard to ensure that defendants are not able to use this rely on their supposed ignorance as a defence even if the subjective test was used. Even in a case in which the subjective test was applied, the defendant’s appeal was dismissed and he was convicted. 21 As such, the English approach results in an unacceptably low threshold that pushes the nature of the offence towards one of a strict liability offence and therefore the unvarying and structured Singaporean approach is perhaps more appropriate and effective in this instance.

Ivey (n 16) [62] Barton (n 15) [108] 21 Ghosh (n 17) 19 20


Singapore Comparative Law Review Contrasting “possession” against “belonging to another” On the face of it, the systems also differ in whether property in the possession of another, but not owned by that person, might be stolen. Whilst the Singapore statute suggests that theft is brought about by the moving of a property in the possession of another person, English law dictates that theft occurs when one appropriates property belonging to another. Despite the difference in wording, the author asserts that there remains a remarkably similar approach to the extent of the offence – in both cases, a defendant can be convicted of theft of their own property. It is fairly straightforward to apply the Singapore statute to such a case – so long as the object is in the possession of another, the defendant can steal it. Application of English statute is less clear cut, however, and we must turn to judicial precedent for further clarification. R v Turner(No. 2)22 clearly suggests that English Law would reach a similar conclusion – the defendant was liable for the theft of his own car since the victim had legitimately taken possession of the defendant’s car for repairs. In this case, relying on a different approach (focusing on statute versus common law), does not preclude the systems from reaching the same answer – emphasising the need to look beyond mere statutory construction, especially when its meaning may be expanded by subsequent precedent authority (as with R v Turner (No.2)). Nonetheless, the Singapore approach remains more expedient than English law given the former’s reliance on more straightforward reasoning than the latter, which uses a judicial precedent contrary to the ordinary meaning of the statute. Property as the object of theft Both statutes also require that property should be the subject of the theft; “movable property” in the case of Singaporean criminal law and simply “property” in the case of English law. This, at first glance, appears that it might lead to a difference in what types of objects might be the subject of theft, but once again, the different approaches yield similar results. The definition of property for the offence of theft in the UK is set out in Section 4 of the Theft Act, and it includes, inter alia, money and intangible property – an inclusion that appears to makes the English statute more comprehensive as technology develops. For example, in AA v Persons Unknown,23 electronically held cryptocurrency was held to be a form of property even though it is neither definitively a chose in possession nor a chose in action. A literal reading of the Singapore requirement that the property be movable would, however, exclude such cryptocurrencies from being the subject of theft since, as a virtual object, it cannot be moved physically. Yet, the legal definition of ‘movable property’ in the Interpretation Act 1965 24 includes all forms of property except those attached to the earth, or permanently fastened to anything attached to the earth. This definition of ‘movable property’ would therefore include virtual cryptocurrencies such as Bitcoin. Yet again, a seeming divergence in the laws of Singapore and England has proven, upon closer inspection, to be common ground — both jurisdictions retain sufficient flexibility in their statutes to ensure that the legal regime remains capable of dealing with theft enabled by technology. In this circumstance, while Singapore law appears marginally less straightforward than UK law, it remains just as efficient. Differences Apart from the aforementioned elements, there is scarce common ground between the jurisdictions’ approach to theft. Elements of the Singaporean offence are not found in the English offence, and vice[1971] 2 All ER 441 (CA) [2019] EWHC 3556 (Comm) 24 Section 2 22 23


Singapore Comparative Law Review versa. One element present in the English offence, that is not present in the Singaporean offence is an element of the mens rea – the intention to permanently deprive another of the property. The intention to permanently deprive Although the meaning of the term “intention to permanently deprive” is not defined in the statute, unlike other key terms of the statute, case law has borne out the view that it remains an essential part of the offence. In R v Mitchell,25 the Court of Appeal allowed the appeal of the defendant who argued that the car he allegedly stole was abandoned where it could be found and thus there was no intention to permanently deprive – indicating that the intention is a core element of the crime. The courts have taken a fairly broad view of what includes an intention to permanently deprive based on Section 6(1) of the Theft Act, which states that: 6 “With the intention of permanently depriving the other of it”. (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

In R v Raphael,26 the Court of Appeal held that the defendant had still committed theft even though he had offered to return it for a cash payment, reasoning that despite the defendant’s intention to return it, he had still treated the car as his own to dispose of and as such had acted with the intention of permanently depriving the other of it. It might be argued that the expansive interpretation seen in Raphael was absent in R v Lloyd (“Lloyd”),27 in which the Court of Appeal allowed the appeal of the defendants who had removed films from a cinema to allow others to copy the film, but returned it a few hours later. However, this apparent inconsistency can be reconciled when considering that the Court of Appeal held the defendants’ actions in Lloyd did not remove the value of the property in question.

Although it does not illustrate the expansive view as seen in Raphael, Lloyd is particularly illuminating for another reason — it sheds light on the purpose behind the requirement of this element. Lord Lane CJ, in delivering the court’s judgment reasoned: Mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the “thing” in such a changed state that it can truly be said that all its goodness or virtue is gone.

[2008] EWCA Crim 850 [2008] EWCA Crim 1014 27 [1985] QB 829 25 26


Singapore Comparative Law Review This indicates that a possible interpretation is that this requirement was construed in a way to prevent borrowers from being penalised for theft since they would not have intended to permanently deprive the owner of the object, but merely temporarily. This would ensure that the criminal justice system would not have to deal with “trivial ‘borrowings’ without consent”, a view espoused by Horder. 28

Yet, the author would take the view that such a concern is unwarranted if applied to Singapore, which has a statutory regime that lacks this element as a requirement. It is important to note that the Singapore Penal Code contains a definition for dishonesty that includes the requirement for wrongful loss 29 – a loss that would not be present in a situation of ‘trivial borrowings’, but present in a case similar to Lloyd since the copying of a film would lead to wrongful loss due to the infringement of the film’s copyright. The flexibility provided for by Section 6 of the Theft Act, coupled with the definition of dishonesty as provided for by Section 24 of the Penal Code enables two completely different approaches to arrive at the common goal of preventing the prosecution of trivial borrowings. However, the author notes that the Singaporean statute would not require the creative backdoor, that is Section 6 of the Theft Act and the interpretation of it in Lloyd, in order to prevent prosecutions for borrowing. For this reason, the author opines that the Singaporean statutory regime perhaps presents a more efficient and straightforward solution than the English equivalent in practice.

Conclusion Upon careful examination of the different elements of theft in the English and Singaporean contexts, this article holds that the more codified nature of Singapore law allows for a more straightforward and structured approach — which in turn allows greater expediency, efficiency, and clearer reasoning. Despite the significant differences in the statutes in both jurisdictions, both systems often arrived at the same conclusion when presented with the same cases. As such, it is prudent to consider the English offence of theft with the view of codifying the offence fully, as Singapore has done, to improve the process of adjudication. More than half a decade after the Theft Act 1968 replaced the Larceny Act 1916, it is perhaps time for further refinements to English criminal law in this respect.

28 29

Jeremy Horder, Ashworth’s Principles of Criminal Law (9th edn, OUP 2019) 399 Penal Code, S.24


Singapore Comparative Law Review

Mission Abort: A Case for Decriminalising Abortion Lynette Koh Introduction Abortion has invariably been a source of ethical controversy, with voluminous literature weighing in on the morality of abortion and more specifically, the moral status of the foetus. In countries such as the United States, the abortion question has been profoundly politicised, 1 where a candidate’s view on the issue can sometimes be crucial to electoral success. 2 While the law’s medicalisation of abortion in the United Kingdom (UK) has significantly circumvented political controversies, it is regrettably rooted in anachronistic values of the mid-Victorian era. In England and Wales, abortion was legalised following the Abortion Act 1967. Although it has become a common and routine medical procedure, it remains a prima facie crime under the Offences Against the Person Act 1861. With the introduction of the Abortion Bill in 2020, a Private Members’ Bill that seeks to change the default legal position on abortion, it is opportune to review the governing statutory framework and recognise the significance of the Bill. This article endeavours to argue in favour of decriminalising abortion in the UK to reflect modern medical and social realities, contending that inspiration should be taken from Singapore’s more progressive approach. In view of the differing laws across the constituent states of the UK, Scotland and Northern Ireland shall be excluded from the discussion. Part 1: The Law on Abortion Under section 58 of the Offences Against the Person Act (OAPA) 1861, any deliberate and unlawful attempt to procure a miscarriage carries a maximum sentence of life imprisonment. This will only apply to the woman if she is, in fact, ‘with [a] child’, but anyone else assisting her could be guilty of criminal conspiracy even she is not bearing a child, 3 on the assumption that they genuinely believed her to be pregnant. Section 59 of the Act further qualifies that ‘supply[ing] … any poison … or instrument’ constitutes an offence, in addition to procuring them. Since the Lord Ellenborough’s Act 1803, which first criminalised abortion, statutory provisions relating to abortion have remained substantively unchanged, except for the sentences available and the differentiation between abortion before and after ‘quickening’. Passed without any Parliamentary debate, 4 it is unsurprising that the OAPA contains ‘one of the harshest penalties’ 5 for abortion imposed across Europe. To supplement the OAPA, the Infant Life Preservation Act (ILPA) 1929 was enacted to remedy a gap left unaddressed, under which a case may be brought for child destruction if the foetus is ‘capable of being born alive’.6 This Act no longer has practical relevance after the Abortion Act 1967 came into force.

Carole Joffe, ‘The Politicisation of Abortion and the Evolution of Abortion Counselling’ (2013) 103 Am J Public Health 1, 57-65. 2 Megan Brenan, ‘One in Four Americans Consider Abortion a Key Voting Issue’ (Gallup, 2020) <> Accessed 13 March 2021. 3 R v Whitchurch [1890] 24 QBD 420. 4 Sally Sheldon, ‘The Decriminalisation of Abortion: An Argument for Modernisation’ (2016) 36 OJLS 2, 338. 5 K Nebel and S Hurka, ‘Abortion: Finding the Impossible Compromise’ in C Knill, C Adam and S Hurka (eds), On the Road to Permissiveness? Change and Convergence of Moral Regulation in Europe (OUP, 2015). 6 Rance v Mid-Downs Health Authority [1991] 1 All ER 1230, 1241. 1


Singapore Comparative Law Review Following the Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990, extensive and detailed exceptions to the prima facie crime have been carved out. It is pertinent to note that the Act does not, in any way, recognise women’s right to an abortion. Far from that, it was in fact a commonplace belief that women were incapable of making rational decisions, as opposed to doctors who were portrayed as ‘skill[ed], [having good] judgement and knowledge’. 7 Against such a backdrop, compounded by the high mortality rates from illegal abortions that were rife amongst the poor, the main impetus for legalisation is the need to curb backstreet abortions performed by amateurs in unsanitary environments. The Act provides that abortions can only be carried out in a National Health Service (NHS) hospital upon acquiring the consent of two medical practitioners. Available to the medical practitioners are four grounds of justifications: (a) That the pregnancy has not exceeded its twenty fourth week and that the continuation of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; (b) That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; (c) That the continuance of the pregnancy would involve the risk to the life of the pregnant woman, greater than if the pregnancy were terminated; (d) That there is a substantial risk that if the child were born it would suffer from physical or mental abnormalities as to be seriously handicapped. 8 If any of the four grounds for abortion is agreed to have been satisfied based on the woman’s circumstances and formed in good faith, no offence is committed. This therefore confers upon doctors the unhinged power to regulate the accessibility of abortion services, a power that is further enhanced by the location restrictions9 and notification requirements. 10 Since the Abortion Act, lawful termination of pregnancies has seen a steady increase in numbers, first peaking in 2007 and more recently, in 2019.11 The Act has certainly done its part in normalising abortion as a routine medical procedure, eradicating the initial problem of clandestine abortions and providing women with the necessary support to safely terminate unwanted pregnancies.

Part 2: Issues with the Abortion Laws Abortion Act 1967 While the Abortion Act, with its broad scope and loose regulations, has undoubtedly achieved its aim of curbing backstreet abortions, it is arguably at best an instrument that exerts medical control over fertility. Fundamental to the Act is the assumption that doctors, rather than women, are most suited to decide if an abortion is justified. The Act expressly states that the opinion of the doctors must be formed ‘in good Sally Sheldon, ‘The Abortion Act 1967: A Critical Perspective’ in Ellie Lee (ed), Abortion Law and Politics Today (Macmillan: London, 1998) 43-58. 8 Abortion Act 1967, s 1(1). 9 Ibid., s 1(3). 10 Ibid., s 2. 11 Department of Health and Social Care, ‘Abortion statistics for England and Wales: 2019’ ( website, 2020) < ortion-statistics-commentary-2019.pdf> Accessed 20 January 2020. 7


Singapore Comparative Law Review faith’.12 This is premised on the idea that the stipulated criteria do not have to be satisfied on the facts; it is sufficient that the doctors believe it to be so. Rather than having provisions that specify a definitive list of situations in which abortion is lawful, the Act ensures that medical discretion is preserved and that women do not feel entitled to an abortion in specific circumstances, such as rape and abuse. Accordingly, limited judicial discretion is afforded to the courts pertaining to medical decisions. In Paton v British Pregnancy Advisory Service Trustees, where a husband sought injunctive relief to prevent his wife from terminating her pregnancy, Sir George Baker P highlighted the courts’ attitude: “… it would really be a foolish judge who would try to [interfere with the discretion of doctors acting under the Abortion Act 1967], unless possibly there is clear bad faith and an obvious attempt to perpetrate a criminal offence.”13 As the Act does not establish a standard of ‘good faith’, it sets a high threshold for the Crown Prosecution Service to prove beyond reasonable doubt that a doctor has acted without good faith. It is hence incredibly rare for a doctor to be prosecuted for an unlawful abortion. R v Smith (John Anthony James)14 remains the leading case since the Act was enacted, and the only case, other than R v Price (Herbert) 15 which was eventually overturned on appeal. Crucially, it is not appropriate to delegate the decision on abortion to doctors when it does not in fact engage their technical expertise. Sheldon argues that taking into account the pregnant woman’s ‘actual or reasonably foreseeable environment’ 16 necessarily requires the scrutiny of the woman’s ‘whole lifestyle, her home, finances and relationship’ 17 which is non-medical in nature. Such deference to medical authority is a natural consequence of medical paternalism, but contemporary medical practices have shown a marked shift towards patient autonomy. Montgomery v Lanarkshire Health Board, being a landmark case on informed consent, recognises the patient as the arbiter of a medical decision, with the doctors playing a secondary role.18 Although this case does not concern abortion, it nonetheless exemplifies that pregnant women are not excluded from being trusted with important decisions. Accordingly, the shift towards patient autonomy should be reflected in the Act. First, the criteria of obtaining two signatures would have to be abolished. With evolving attitudes amongst medical practitioners, this has become a mere bureaucratic procedure and serves no meaningful purpose. Second, consent must be recognised as a main tenet of the Act and statutory protection should be afforded to pregnant women seeking an abortion. The latter will be further explored in Part 3 of this article. From a micro perspective, the grounds for which abortion is deemed lawful by medical practitioners differ in their scope of application, resulting in a disproportionate use of the ‘risk to health’ limb and an apparent redundancy of the other three grounds. In 2019, 98 per cent of abortions were performed on the basis that the continuance of the pregnancy poses a risk to the pregnant woman’s health, whereas only 2 per cent were carried out on the ground pertaining to foetal abnormalities. 19 Due to the construction of section 1(1)(a), it is not necessary that the woman suffers from actual physical or psychiatric harm. The criteria would be satisfied if the risk of injury can be reduced through abortion, which can be done easily, given (n 8). [1979] QB 276 (Sir George Baker P). 14 [1974] 1 All ER 376. 15 [1969] 1 QB 541. 16 Abortion Act 1967, s 1(2). 17 Sally Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto: London, 1997). 18 [2015] UKSC 11. 19 (n 11). 12 13


Singapore Comparative Law Review that a legally induced termination has proven to be relatively safer than pregnancy and childbirth.20 With the first ground having a considerably broad scope, it is unsurprising that the second and third grounds are rarely relied upon. Section 1(1)(b) of the Act requires that the impugned harm be a ‘grave permanent injury’ and for abortion to be a ‘necessary’ solution. The specificity of this provision makes it significantly harder for doctors to believe in good faith that abortion is appropriate, unless a serious medical condition is present. As for section 1(1)(c), it requires abortion to reduce the ‘risk to life’ posed by the continuance of pregnancy. Although the phrase ‘risk to life’ was interpreted in R v Bourne21 to encompass situations where the pregnant woman is a ‘physical or mental wreck’, courts would be compelled to narrowly interpret it post-1967 – after the passing of the Act – to differentiate between this ground and the first. Lastly, section 1(1)(d) requires doctors to assess if a particular abnormality is considered ‘serious’ and whether the risk of it materialising is ‘substantial’. Not only is this regarded as a controversial statutory ground,22 but it also appears to rule out a foetus-centred argument for abortion. 23 This makes reconciling with the first ground difficult unless provision 1(1)(d) is framed differently, as suggested by McGuiness.24 In view of the overlapping grounds and the infrequent reliance on subsections 1(b)-(d) in forming a medical judgment, the Act is undoubtedly due for reform. Offences Against the Person Act 1861 The definition of abortion within the Act is worded in a way that draws an arbitrary boundary distinguishing between contraception and abortion, one that results in diametrically opposed consequences – where the act of the pregnant woman qualifies as the latter, the woman would be guilty of a criminal offence. The OAPA defines abortion as ‘procuring a miscarriage’ but it does not provide any clarification as to whether it can be construed to include the prevention of implantation and by extension, whether post-coital contraceptives are abortifacients. It was only in the ruling of R (on the application of Smeaton) v Secretary of State for Health that the morning-after pill was confirmed to be a contraceptive rather than an abortifacient. 25 In Munby J’s judgment, he emphasised that the system would be: ‘[G]rievously wrong … if a judge in 2002 were to be compelled by a statute 141 years old to hold what … millions of ordinary honest, decent, law-abiding citizens have been doing day in day out for so many years is and always has been criminal.’ Nonetheless, the ‘regulatory cliff edge’ 26 between contraception and abortion remains entrenched in the statute, potentially posing a problem for newer types of contragestive contraceptives that may act after implantation instead of operating post-fertilisation (but pre-implantation) as the morning-after pill does. Fundamentally, it is a ‘fraught enterprise’ 27 to place arbitrary markers on what should be a continuous trajectory of biological development that would result in different legal consequences.

David Grimes and Elizabeth Raymond, ‘The Comparative Safety of Legal Induced Abortion and Childbirth in the United States’ (2012) 119(2) Obstetrics & Gynaecology 215-19. 21 [1938] 3 All ER 615. 22 Simo Vehmas, ‘Parental Responsibility and the Morality of Selective Abortion’ (2002) 5 Ethical Theory and Moral Practice 463-84. 23 Sally Sheldon and Stephen Wilkinson, ‘Termination of Pregnancy for Reason of Foetal Disability: Are there Grounds for a Special Exception in Law?’ (2001) 9 Medical Law Review 85-109. 24 Sheelagh McGuinness, ‘Law, Reproduction and Disability: Fatally “Handicapped”’ (2013) 21 Medical Law Review 213-42. 25 [2002] Crim LR 664 (Munby J). 26 Sally Sheldon, ‘The Regulatory Cliff Edge between Contraception and Abortion: The Legal and Moral Significance of Implantation’ (2005) Journal of Medical Ethics 763. 27 Ibid. 20


Singapore Comparative Law Review Ironically, it is widely perceived that there is no need for the offence to be retained under the OAPA. The British Medical Association, the Royal College of Obstetricians and Gynaecologists, and the Royal College of Midwives have all actively called for decriminalisation of abortion, arguing that the OAPA sends a stigmatising message that abortion is criminal which would hinder efforts to normalise and increase accessibility of abortion services. Doctors who are involved in abortion provision have also echoed that women should not be ‘made to feel guilty’28 because of their wish to terminate a pregnancy. Having the OAPA provisions will only ‘undermine medical professionalism’.29 In fact, statistics have shown that from 2002 to 2020, there has only been an average of six recorded offences per year relating to procuring illegal abortion in the UK.30 Among these cases are R v Kaur31 in which a woman was sentenced for supplying abortifacients, R v Ahmed32 where the woman’s consent was not sought, and R v Catt,33 involving a woman procuring her own termination of pregnancy. Decriminalisation would not mean that cases of such nature would be unheard of, neither would it mean that backstreet abortions would become rampant again. Part 3: Lessons from Singapore Considering the above arguments for the decriminalisation of abortion, inspiration should be taken from other jurisdictions that have not only liberalised abortion but also decriminalised it. In Singapore, abortion was first legalised in 1969 with the Abortion Act, which provided for the creation of a Termination of Pregnancy Authorisation Board made up of registered medical practitioners who could approve an abortion under the following circumstances, where: (a) The continuance of the pregnancy would involve risk to the life of the pregnant woman (b) The continuance of the pregnancy would involve serious injury to the physical or mental health of the pregnant woman; (c) The environment of the pregnant woman, both at the time when the child would be born and thereafter so far as is foreseeable, justifies the termination of her pregnancy; (d) There is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped; or (e) That the pregnancy is the result of rape under section 375 of the Penal Code or of incest under section 376A of the Penal Code or of intercourse with an insane or feeble-minded person. Notwithstanding the absence of an OAPA equivalent, this very much parallels the UK’s current legal framework. The Abortion Act 1969 has since been repealed by the Termination of Pregnancy Act 1974, abolishing three of its prominent features – the Termination of Pregnancy Authorisation Board, the five grounds for abortion, and the requirement for an unmarried woman below 18 years of age to obtain consent from her parents or guardians. The raison d’être for the promulgation of the 1974 Act was the highly successful outcomes observed during the four years the 1969 Act had been in operation. According to the then Minister for Health and Home Affairs, the availability of legalised abortion has not resulted in higher

Ellie Lee et al, ‘The 1967 Abortion Act fifty years on: Abortion, medical authority and the law revisited’ (2018) 212 Social Science and Medicine 26-32. 29 Ibid. 30 Statista Research Department, ‘Procuring illegal abortion offences in England and Wales 2002-2020’ (2020) <> Accessed 20 January 2021. 31 [2015] EWCA Crim 2202. 32 [2010] EWCA Crim 1949. 33 [2013] EWCA Crim 1187. 28


Singapore Comparative Law Review promiscuity, nor have women been seeking an abortion in multitudes or repeatedly so. 34 While the high ratio of abortions to live births in Singapore may be argued to be indicative that the laws have entrenched in the people a rather cavalier attitude towards abortion, 35 recent statistics prove otherwise. According to the Ministry of Health, the number of abortions has seen a drastic decrease, from 12,000 in 2010 to 6,800 in 2017, with 6,400 abortions most recently recorded in 2018.36 This reinforces the idea that extending the right to abortion to women, just as the 1974 Act implicitly guarantees, does not mean a balance cannot be adequately struck between protecting women’s autonomy over their fertility and protecting the worth of an unborn. In place of the five grounds, the 1974 Act only requires the pregnant woman’s written consent without her decision being subjected to further scrutiny. The emphasis on consent as an overriding principle dictating medical decisions is a feature that could be transposed into the UK’s legislation. Not only will this reflect the patient autonomy approach in the context of abortion, but it will also resolve the issue concerning the relative significance (or insignificance) of the grounds for abortion within the meaning of the Abortion Act 1967. Under Singapore’s abortion laws, pregnant women are also explicitly protected from coercion and intimidation that might induce them to decide to abort against their will. 37 This is a second feature that could be expressly stated in the UK’s Abortion Act, even though such protection is recognised under the common law. 38 By giving pregnant women the necessary statutory protection through the inclusion of provisions such as this, it would further support the reinstating of women’s autonomy over their fertility. Lastly, sentencing under the 1974 Act is capped at a fine not exceeding $3,000 or an imprisonment for a term not exceeding 3 years or both. 39 The UK should reference Singapore’s sentencing framework for abortion and abolish the punitive measures that are currently in place to align its framework with the overall rhetoric – that women should not be deterred from exercising a personal choice. However, this does not necessarily mean that Singapore’s abortion laws are without limitations. Under the 1974 Act, abortion is only legal for specific groups of people based on their immigration status, unless it is ‘immediately necessary to save the life of the pregnant woman’. 40 This was designed to prevent abortion tourism, where foreigners would see Singapore as the ‘abortion centre’ in Southeast Asia. 41 Even though this clause encompasses most people and caveats have been included, there are some who fall through the gaps. This limitation does not apply to the UK, and it is likely that it will not be included if the Abortion Bill eventually achieves royal assent. Conclusion Overall, the UK’s legal framework governing abortion presents fundamental flaws that are incompatible with medical and social realities. Despite the UK’s provision of professional, high quality abortion services, it remains a fact that abortion is still criminalised, depriving women of their privacy, self-determination, and

Ho Peng Kee, ‘Abortion in Singapore: A Legal Perspective’ (1993) 42(2) ICLQ 387. Tan Seow Hon, ‘Time again to review abortion laws’ (Today Online, 31 March 2013) <> Accessed 12 March 2021. 36 Theresa Tan, ‘Number of abortions down by about half in nearly a decade’ (The Straits Times, 8 March 2020) <> Accessed 12 March 2021. 37 Termination of Pregnancy Act 1974, s 5. 38 (n 29). 39 Termination of Pregnancy Act 1974, s 3(4), s 5. 40 Termination of Pregnancy Act 1974, s 3(3). 41 Saw Swee-Hock, Population Policies and Programmes in Singapore (2nd ed, ISEAS-Yusof Ishak Institute) 48. 34 35


Singapore Comparative Law Review autonomy of decision. 42 To the layperson, it is confounding for the regulation of what is regarded as a straightforward and ordinary medical procedure to be presented in a set of defences to the prima facie offence. In line with major medical developments in the past few years and the recent liberalisation of abortion in Northern Ireland,43 it is time for Parliament to recognise that decriminalisation is necessary in England and Wales, however politically contentious that may be. Baroness Barker’s Abortion Bill 2020 has received little acknowledgement within the legal community perhaps due to the failed attempt of Diana Johnson in the previous Parliament,44 but it is nonetheless a development worth watching out for. Even then, there are areas in which the UK should consider looking comparatively at Singapore’s model where inter alia, consent is a key ingredient, and rightfully so.

Committee on the Elimination of Discrimination against Women, ‘Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women’ (23 February 2018) < _E.pdf> Accessed 22 January 2021. See also: British Medical Association, ‘Decriminalisation of Abortion: A Discussion paper from the BMA’ (February 2017) <> Accessed 21 January 2021. 43 The Abortion (Northern Ireland) Regulations 2020. 44 Abortion Bill 2017-19. 42


Singapore Comparative Law Review

“She’s Not the Accused”: Shifting Away from Victim-Blaming Towards Greater Empathy Michelle Leong It has oft been said that a victim of sexual assault is raped twice - once by the perpetrator and once by the criminal justice system.1 During cross-examination, defence counsel often rely on various standard “tools of the trade”, such as the complainant’s third-party sexual history and physical appearance, to discredit their testimony. 2 In addition to the recalling, recounting and restating process, in open court, the often-barbed comments hurled at the complainant during cross-examination opens the complainant’s wounds even further, slowing down their recovery. 3 This article argues that as present legislative and ethical safeguards, in prioritizing the credibility of the complainant’s testimony, are wholly inadequate to guard against the unnecessary retraumatisation of the complainant during cross-examination, they should therefore be reformed in line with the United Kingdom’s Youth Justice and Criminal Evidence Act 1999 (“YJCEA 1999”), which provides for a more comprehensive framework for complainant protection. Legislative Safeguards Under Singapore’s Evidence Act 1997 In terms of legislative safeguards, s.150 and s.151 of the Evidence Act (“EA”) act as the first layer of defence against the unnecessary retraumatisation of the complainant during cross-examination. Counsel may only raise questions which bear no relevance to the proceedings, and aimed solely at discrediting the complainant, if he has “reasonable grounds” to do so. 4 The Court is granted discretion to determine if the complainant is compelled to answer such questions. If the Court determines no reasonable grounds exist, it has the power to initiate disciplinary proceedings against counsel. This obligation of counsel is further reinforced under Rule 12(4) of the Legal Profession (Professional Conduct Rules) 2015 (“PCR Rules”). 5 The objective which underpins both s.152 of the EA and Rule 12(4) was to: “…. balance two competing concerns: the relevance of the witness’s character to his credibility and the right of the witness to be treated with dignity, such that the private aspects of his life not pertinent to his credibility are not pried into.” 6 These provisions act as the first layer of defence against errant lawyers. It allows the Court to forestall questions raised by counsel which clearly hold no probative value and risks unnecessary retraumatisation. However, s.150 and s.151 of the EA are inapplicable if the questions and evidence raised by counsel during cross-examination are relevant to the issue of consent in sexual assault cases. Instead, the second layer of protection under s.153 and s.154 of the EA would operate. s.153 sets out a general prohibition against indecent or scandalous questions posed to the complainant, even if they have some relevance to the matter. 7 State v. Sheline [2016] 955 S.W.2d 42-44 Tammy Gales and Lawrence M Solan, ‘Witness Cross-Examinations in Non-Stranger Assault Crimes: An Appraisal Analysis’ (2017) 4(2) LL 108-139 3 Rebecca Campbell, Holly E. Barnes, Courtney E. Ahrens, Sharon M. Wasco, Yolanda Zaragoza-Diesfeld and Tracy Sefl, ‘Community services for rape survivors: Enhancing psychological well-being or increasing tramua?’ (1999) 67(6) JCCP 847-858 4 Evidence Act (Cap. 97), 1999 Rev Ed, s 151 5 Legal Profession (Professional Conduct) Rules 2015, Rule 12(4) 6 Davinder Singh SC, “Cross-Examination” in Eleanor Wong, Lok Vi Ming SC and the Honourable Justice Vinodh Coomaraswamy SC (eds), Modern Advocacy: Perspectives from Singapore (Singapore Academy Publishing 2008) 7 Ibid n 4, s 153 1 2


Singapore Comparative Law Review s.154 further prohibits questions intended to insult or annoy or appear needlessly offensive in form.8 Both provisions are reiterated in their ethical counterparts under Rule 12(5) of the PCR Rules. 9 Nevertheless, this secondary layer of protection remains inadequate in guarding against the revictimization of sexual assault complainants during cross-examination. In Lim Baba v Public Prosecutor [1962] MLJ 201, the Court held that the general prohibition under s.153 of the EA does not apply to questions which are relevant to the issue at trial. 10 Questions raised by counsel, intended to elicit relevant evidence are permitted, regardless how indecent or scandalous. Moreover, s.154 of the EA grants the Court discretion to only prohibit questions that were raised with the intention “to insult or annoy” or are “needlessly offensive”. 11 These thresholds require a significantly high degree of impropriety by counsel before the Court can intervene. There is no statutory requirement for counsel to submit questions before trial. Thus, the protections afforded under s.153 and s.154 of the EA are secondary at best, failing to guard against retraumatisation. They do not diminish the possibility that questions raised during cross-examination may cause actual damage to the complainant. Accordingly, a significant degree of discretion is left to counsel during trial as to the questions and evidence raised to test the veracity of the complainant’s account. Ethical Safeguards Under Singapore’s Legal Profession (Professional Conduct Rules) 2015 As a consequence of the inadequacy of legislative safeguards, the primary shield against the complainant’s revictimization during cross-examination is ethical safeguards, contained within the PCR Rules. Under the PCR Rules, counsel is granted unfettered discretion to exercise judgment “both as to the substance and the form of the questions put or statements made to a witness” during cross-examination. 12 Furthermore, counsel is not required to consider the detriment caused to the complainant as a result of their questions. On the contrary, the PCR Rules provide that any effect on the complainant is overridden by counsel’s duty to ensure the proper administration of justice. 13 It is argued that the present ethical safeguards, similar to legislative safeguards, fail to adequately protect the complainant during cross-examination. Under the PCR Rules, counsel is essentially left to self-regulate as the responsibility falls on counsel themselves to observe ethical limits during cross-examination. 14 Furthermore, as ethical safeguards only operate ex post facto15, any impropriety will only be dealt with after the complainant has already been subjected to a secondary wave of trauma in open court. Though the Court has discretion to determine if the complainant should be compelled to answer improper questions raised by counsel, this exercise of judicial discretion is wholly insufficient to guard against victim-blaming trial tactics. Often, mere questioning alone is enough to invoke secondary trauma. As Wellman notes, “the mischief is often done by the mere asking of the question, even if the judge directs the witness not to answer. The insinuation has been made publicly - the dirt has been thrown.” 16 This was evident for the complainant in Public Prosecutor v Xu Jiadong [2016] SGMC 38 (“Xu Jiadong”), where counsel asked the complainant to rate her attractiveness during cross-examination. Though the complainant was not compelled by the Court to answer, the mere asking of the question had effectively invoked her trauma: “the

Ibid n 4, s 154 Ibid n 5, Rule 12(5) 10 Lim Baba v Public Prosecutor [1962] MLJ 201 11 Ibid n 4, s 154 12 Ibid n 5, Rule 12(1)(b) 13 Ibid n 5, Rule 12(1)(a) 14 Law Society of Singapore v Wong Sin Yee [2018] SGHC 196 at [34] 15 Ho Zi Quan Marcus, ‘Cross-Examining Complainants of Sexual Assault: Reforming Safeguards Against Improper Cross-Examination’ (2018-2019) 36 Sing L Rev 100 16 Francis L. Wellman, The Art of Cross-Examination (4th edn, Simon & Schuster 1997) 8 9


Singapore Comparative Law Review damage was done [and] her heart was wrung”. 17 Hence, given the significant degree of discretion left to counsel during complainant cross-examination, the PCR Rules fail to adequately guard against invoking unnecessary trauma for the complainant. Moreover, considering counsel’s duties to pursue every reasonable defence, the present ethical safeguards easily allow counsel to shift blame on the complainant under the guise of justice, putting them on trial instead of the accused, resulting in a slippery slope towards further revictimization. Singapore’s Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 Unsurprisingly, as a result of the inadequacies of both the EA and the PCR Rules, various reports surfaced of counsel utilizing the complainant’s physical appearance and previous third-party sexual history during cross-examination to shift blame and discredit the complainant’s testimony. In response to these reports, the Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 (“2018 Rules”) was enacted. It provides that the complainant’s physical appearance and sexual history cannot be adduced without prior leave of court, which would only be granted if the Court is satisfied that it is “in the interests of justice”.18 A Porous Shield The prohibitions under 2018 Rules allow it to remedy previous legislative and ethical shortcomings. It confers power on the Court to forestall counsel’s improper questions before they are put to the complainant. Nevertheless, it is not without flaws. In guaranteeing the accused’s right to a fair trial, the 2018 Rules provides a significant degree of overriding judicial discretion to admit the complainant’s physical appearance and sexual history during cross-examination. In rape trials, the Court has consistently emphasized the need to protect the accused’s fair trial rights, for all that is before the Court was essentially “a bare allegation and a bare denial”.19 However, given the scope of overriding judicial discretion provided for to guarantee this fundamental right of the accused, it is argued that the 2018 Rules is a porous shield which fails to adequately guard against revictimization. As long as counsel can establish that it is “in the interests of justice” to do so, the complainant's physical appearance and sexual history can be relied upon to impeach their credibility. Victim-blaming trial tactics can still be employed by counsel, albeit through a backdoor. This utterly neglects the fact that one of the most important aspects of the complainant’s recovery process is empowering them and putting control back into their hands. 20 With such a wide scope of overriding judicial discretion provided for under the 2018 Rules, control is effectively wrestled from the complainant, whilst subjecting them to unnecessary secondary trauma. In effect, the 2018 Rules turns the accused’s trial into the complainant’s tribulation. Justice For All Furthermore, the wide scope of overriding judicial discretion provided under the 2018 Rules essentially views the complainant as an outright liar, completely neglecting their justice needs. Unlike other interpersonal crimes such as robbery or theft, complainants of sexual assault are particularly vulnerable to disbelief.21 As McBarnet notes, “victims feel that nobody cares about their suffering, it is in part because

Public Prosecutor v Xu Jiadong [2016] SGMC 38 at [107] Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018, s 4(2) 19 Khoo Kwoon Hian v Public Prosecutor [2003] 4 SLR(R) at [43] 20 Kaitlin A. Chivers-Wilson, ‘Sexual assault and posttraumatic stress disorder: A review of the biological, psychological and sociological factors and treatments’ (2006) PMC 9(2) 111-118 21 Steffen Bieneck and Barbara Kraheé, ‘Blaming the victim and exonerating the perpetrator in cases of rape and robbery: is there a double standard?’ (2010) JIV 26, 1785-97 17 18


Singapore Comparative Law Review institutionally nobody does”. 22 The adversarial nature of trial pits the complainant’s testimony against the accused. Though complainants have the option of tendering a victim impact statement to the Court during sentencing, the discretion lies with the prosecution 23 and it is not a commonly used route.24 Often, the complainant is prevented from telling their whole story and the impact of the assault. During crossexamination, the complainant’s narrative is invalidated and rewritten, their experiences and trauma undermined. As a particular complainant recounts, the experience of cross-examination not only prevented her from speaking her truth, but “it actually spoke lies using her words”. 25 This institutional disregard for the complainant, under the exercise of overriding judicial discretion provided for in the 2018 Rules, neglects the fundamental purpose of the criminal justice system to deliver justice for all. The accused’s interests are part of a wider balance to be struck between the interests of various other stakeholders. 26 The proper administration of justice does not involve the sole consideration and prioritization of the interests of the accused. Hence, in its pursuit of credibility, the 2018 Rules have failed to deliver on its promise of justice. Instead, it provides for the institutional revictimization of the complainant. A Questionable Track Record In addition, the need for such a wide scope of overriding judicial discretion under the 2018 Rules is highly questionable. When queried on whether the prohibitions under the 2018 Rules would cause a “chilling effect” for the accused during trial, parliament clarified that it was not “saying that the topic cannot be raised but [there must be] a very good reason” for doing so. 27 This can be further evidenced in parliament’s decision to take the secondary legislation route rather than entrenching the 2018 Rules in primary legislation. However, it is hard to envision a successful defence which necessitates reliance on the physical appearance and sexual history of the complainant. The Court has consistently clarified its intolerance for such submissions. In Ong Jack Hong [2016] 5 SLR 166 (“Ong Jack Hong”), counsel was reprimanded for suggesting that the complainant’s sexual history implied she was not traumatized by the rape. 28 Similarly in Ng Jun Xian [2016] SGHC 286 (“Ng Jun Xian”)), counsel’s submissions that the complainant “was a woman of questionable morals” 29 was seen as a disservice to the accused. Most recently in GCM v Public Prosecutor and another appeal [2021] SGHC 18 (“GCM”), counsel adduced photographs of the 13-year-old complainant in an effort to allude to her alleged sexual maturity.30 This attempt at victim-blaming was viewed by the Court as ill-placed, reflecting a clear lack of remorse of the accused. As such, it begs the question of the need for such a wide scope of overriding judicial discretion provided for under the 2018 Rules, in allowing for such evidence and lines of questioning, which have previously been held to be unnecessary and unsuccessful. Probative Value Even so, should the Court exercise its overriding discretion under the 2018 Rules, it is argued that the complainant’s physical appearance holds little probative value in assessing complainant credibility. As discussed, previous attempts by counsel to establish consent through reference to such evidence have been consistently struck down by the Court. Claims as to the relevance of such evidence and questions rest largely on the unfounded rape myth that a promiscuous woman is more likely to consent and therefore less

Doreen McBarnet, ‘Victim in the witness box - Confronting victimology’s stereotype’ (1983) CC 7 293-303 Criminal Procedure Code, s 228(2)(a) 24 Written Answer by Minister for Law, Mr K Shanmugam, to Parliamentary Question on Reviewing Criminal Sentencing for Sexual Offences, 4 January 2021 25 Haley Clark, “ ‘What is the justice system willing to offer?’ Understanding sexual assault victim/survivors’ criminal justice needs” (2010) FM 85 26 Doorson v Netherlands (1996) 22 EHRR 330 27 Criminal Justice Reform Bill Parliamentary Debate, 19 March 2018 28 Public Prosecutor v Ong Jack Hong [2016] 5 SLR 166 29 Ng Jun Xian v Public Prosecutor [2016] SGHC 286 30 GCM v Public Prosecutor and another appeal [2021] SGHC 18 22 23


Singapore Comparative Law Review worthy of credit.31 This antediluvian view should not have any place in a modern day court of law and the Court should be vigilant against being side-tracked by such irrelevant issues.32 By providing for overriding judicial discretion to introduce the complainant’s physical appearance during cross-examination, the 2018 Rules are in essence, legalized victim-blaming. In a 2019 survey, 45% of Singaporeans agreed that women who dress provocatively are to be blamed for the comments men make about their appearance. 33 This reflects the state of Singapore’s relatively conservative society, where it is widely regarded that women should not dress a certain way. Otherwise, they are blameworthy for their perpetrators’ actions. Many hold the view that the more suggestively dressed the complainant, the more likely they are to be blamed for their assault. 34 This rape myth was shockingly relied upon by counsel as a defence in Xu Jiadong, where counsel raised questions relating to the complainant’s physical appearance. When the relevance of his questions was queried, counsel maintained that he was “trying to see if it could be inferred from the complainant’s appearance that anybody would molest her.”35 In direct response to this deplorable conduct of counsel in Xu Jiadong, the 2018 Rules prohibited the admission of questions and evidence relating to the complainant’s physical appearance. However, as discussed above, counsel can still seek leave to introduce the complainant’s physical appearance, as long as the Court is satisfied that it is “in the interests of justice” to do so. Subsequently, it is argued that the admission of such evidence and questions should not be allowed, even if in the interests of justice, for it holds little probative value in the Court’s assessment of the complainant’s credibility. Granting leave to admit such complainant-specific evidence and questions to discredit their testimony completely neglects the empirical fact that one’s physical appearance is not synonymous with sexual consent. When assessing the credibility of the complainant, the Court must not neglect the fact that there is no prescribed way in which complainants of sexual assault are expected to act. 36 There is no ideal rape victim, only the one who has come before the Court. As such, the complainant’s credibility is not and should not be undermined solely by their dressing. The need for such a wide scope of overriding judicial discretion in allowing evidence and questions relating to the complainant’s physical appearance under the 2018 Rules is baffling. If anything, instead of delivering on its promise of protection for complainants, the 2018 Rules legalizes victim-blaming. Misunderstandings of Consent Similarly, under the 2018 Rules, the complainant’s third-party sexual history can be admitted during crossexamination, if counsel seeks leave of court prior. The prohibition on the admission of the complainant’s third-party history was a legislative response to the cases of Ong Jack Hong and Ng Jun Xian, where counsel had regrettably attempted to shift blame on the complainant by alluding to her sexual maturity to establish consent. In Ong Jack Hong, counsel had referred to the complainant’s previous sexual relations with her boyfriend, attempting to illustrate that she had not been traumatized by the rape of the accused, a total stranger.37 Similarly, in Ng Jun Xian, counsel had attempted to blame the complainant by implying her alleged promiscuity. Counsel had submitted that the complainant had “given the accused ‘mixed signals’

R v Seaboyer [1991] 2 SCR 577 Khoo Kwoon Hian v Public Prosecutor [1995] 2 SLR(R) 591 33 Ipsos, Gender Equality, Sexual Harassment and the #MeToo movement in Singapore (2019) <> accessed 13 March 2021 34 Pat Gilmartin-Zena, ‘Attribution theory and rape victim responsibility’ (1983) DB 4(3-4) 357-374 35 Law Society of Singapore v Wong Sin Yee [2018] SGHC 196 at [7] 36 Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] 2 SLR 533 37 Ibid n 28 31 32


Singapore Comparative Law Review and had ‘agreed to accompany [him] to the hotel’ instead of returning to her hostel”, arguing that this was “a fact that should not be understated”. 38 It is further argued that by providing for the admission of the complainant’s third-party sexual history, the 2018 Rules perpetuates the use of sexist sexual conduct evidence. Claims as to the relevance of such evidence are premised on the assumption that previous consent indicates present consent. It holds the misguided view that a promiscuous woman is more likely to consent, and therefore, more likely to be lying about the rape. 39 As the Heilbron Report notes, third-party sexual history evidence is “of no significance so far as credibility is concerned.”40 Evidence of the complainant’s sexual proclivities effectively allows for counsel to distract the Court by normalizing non-consensual rape as consensual sex. By allowing for the admission of sexual history through the backstop of justice, the 2018 Rules neglects the fact that consent is given afresh each time. It fails to give sufficient regard to the fact that the freedom and capacity to consent on each occasion is the cornerstone of one’s autonomy. 41 In allowing for the reliance on the complainant’s third-party sexual history to establish consent, the 2018 Rules trivializes the complainant’s assault and essentially blames them for their rape. Moreover, the admission of the complainant’s third-party sexual history under the 2018 Rules stigmatizes the complainant for being sexually provocative. Such unfounded and disrespectful assumptions should never be allowed to be relied upon as a valid defence in an impartial court of law. Credibility should be ascertained without reference to morality and fact should be separated from opinion. It is not the Court’s role, in its administration of justice, to pass judgment on the sexual morality of the victim. Furthermore, the introduction of third-party sexual history under the 2018 Rules potentially opens the floodgates and risks turning into an inquiry into the complainant’s private life. As noted by Jess Philips MP, “what is to stop any defendant in the future from simply going on Facebook and crowd-sourcing information from a victim’s previous partners and using it against her in court?”42 Hence, it is argued that in its chase for credibility and the protection of the accused’s right to a fair trial, the 2018 Rules misunderstands the fundamental nature of consent, being person-specific and situation-specific. If anything, the 2018 Rules are merely an alternative mechanism for counsel to shift blame to the complainant, putting their morality on trial instead of the accused, triggering the complainant’s secondary trauma in the process. As such, present legislative and ethical safeguards, in their fixation on the complainant’s credibility, are wholly inadequate to guard against their revictimization. Subsequently, it is argued that the approach under the YJCEA 1999 should be adopted instead, for it provides a more comprehensive framework for the protection of complainants during cross-examination, whilst allowing the Court to test the veracity of the complainant’s account. The United Kingdom’s Youth Justice and Criminal Evidence Act 1999 The relevant statute of interest is s.41 of the YJCEA 1999 which provides for a blanket prohibition on evidence and questions relating to the sexual behavior of the complainant. 43 s.41(3) sets out a closed-list of exceptions as to the instances where leave of court may be granted to adduce such evidence and questions. Leave may be granted if the Court is satisfied that counsel’s question or evidence relates to a relevant issue Ibid n 29 at [40] R v Seaboyer [1991] 2 SCR 577 40 Heilbron Committee, Report on the Advisory Group on the Law of Rape, Cmnd 6352 (HM Government 1975) 41 Clare McGlynn, ‘R v A (No. 2): A Feminist Judgment’ in Erika Rackley, Rosemary Hunter and Clare McGlynn (eds), Feminist Judgments: From Theory to Practice (Oxford: Hart Publishing 2010) 42 Jess Phillips, ‘Dredging up sexual history in court will deter rape victims - this must end now’ The Guardian (London, 24 October 2016) 43 Youth Justice and Criminal Evidence Act 1999, s 41(1) 38 39


Singapore Comparative Law Review and falls within one of the four grounds set out under s.41(3).44 Furthermore, the Court must be satisfied that refusal of leave might render a conclusion of the jury or the court unsafe on any relevant issue in the case.45 Comparative Analysis of Singapore’s 2018 Rules and the United Kingdom’s YJCEA 1999 The legislative approach under the YJCEA 1999 is significantly narrower than that under the 2018 Rules. As discussed, under the 2018 Rules, leave will be granted if the Court is satisfied that it would be “in the interests of justice” to allow evidence and questions relating to the complainant’s sexual history with third parties.46 Conversely, the YJCEA 1999 provides a rigid closed-list of exceptions when the complainant’s sexual history can be adduced. Various thresholds have to be satisfied before leave is granted, leaving little in the hands of the trial judge. Under s.41 of the YJCEA 1999, the evidence must be related to a relevant issue, falling within the four grounds under s.41(3). Moreover, the Court must be satisfied that refusal would render a conviction unsafe. Evidently, the YJCEA 1999 sets out a much stricter test than the 2018 Rules. It leaves little room for the exercise of overriding judicial discretion and provides for more certainty in guarding the complainant against retraumatisation. Its narrow scope ensures that only questions and evidence which are absolutely necessary to ensure the proper administration of justice are put forth. Hence, by adopting the YJCEA 1999’s restrictive list as a starting point, rather than a broad “interests of justice” threshold, the 2018 Rules would be able to adequately guard against the revictimization of the complainant, whilst allowing the Court to ascertain the complainant’s credibility. A Dangerous Glimpse into the Future of Singapore’s 2018 Rules However, the legislative approach under the YJCEA 1999 is not without faults. In the preceding English case of R v A (No. 2) [2001] UKHL 1 AC 45 (“A (No. 2)”), the defendant sought leave to adduce evidence relating to his previous consensual sexual activity with the complainant prior to the alleged assault. He claimed that the prohibitions set out under s.41 of the YJCEA 1999 are in breach of his right to a fair trial. In the Court’s judgment, Lord Steyn opined that the closed-list approach set out under s.41(3) of the YJCEA 1999 amounted to “legislative overkill”. 47 The Law Lords further held that “the test of admissibility is whether the evidence (and questioning relating to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the Convention”.48 This judicial reinterpretation of the restrictions set out under the YJCEA 1999 provides a glimpse into the future of prohibitions set out under Singapore’s 2018 Rules. Though the evidence raised in A (No. 2) concerned the complainant’s sexual history with the accused, it has far-reaching impacts on evidence relating to third-party sexual history, which the 2018 Rules covers. In its aftermath, it was reported that trial judges interpreted A (No. 2) as granting them a broad residual discretion to admit any sexual history evidence to protect the accused’s right to a fair trial. 49 Notably, in R v Mukadi [2003] EWCA Crim 3765, the Court held that evidence of the complainant exchanging numbers with a stranger shortly before her alleged rape by another, in an entirely unconnected incident, was relevant to the present issue of consent. 50 The Court held that such evidence, contrary to the complainant's testimony, was illustrative in establishing that she had consented to sexual intercourse with the alleged defendant. This reinterpretation of s.41 of the YJCEA 1999 in the wake of R v A (No. 2) provides a dangerous glimpse into the future of Singapore's 2018 Rules, should the YJCEA 1999 be adopted in all its implications without context or safeguards. McGlynn Ibid, s 41(3) Ibid, s 41(2) 46 Ibid n 18 47 R v A (No. 2) [2001] UKHL 1 AC 45 at [43] 48 Ibid at [46] 49 Home Office, Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials (Online Report 20/06) 50 R v Mukadi [2003] EWCA Crim 3765 44 45


Singapore Comparative Law Review posits that the aim of rape shield legislation is to “prohibit reliance upon a disposition to consent inferred from past sexual behavior”.51 By allowing much room to admit the complainant’s third-party sexual history evidence, the 2018 Rules runs the dangerous risk of allowing material which clearly holds no probative value and is entirely unconnected to the offence. In doing so, it distracts the Court from assessing the complainant’s credibility and shifts attention away from relevant issues. Nevertheless, the adoption of the restrictive approach under the YJCEA 1999 is arguably attractive for Singapore. The YJCEA 1999’s closedlist approach strikes the right balance between competing aims, allowing the Court to test the veracity of the complainant’s account, whilst ensuring that the complainant is not subjected to unnecessary trauma in the process. Conclusion The Singaporean criminal justice system has undoubtedly progressed in the area of sexual offences. However, it still has a long way to go in achieving its aspirations of true and proper justice. The justice needs of the complainants have been ignored for far too long and present legislative and ethical safeguards do little to remedy this. Notably, the 2018 Rules, by allowing much room for overriding judicial discretion, effectively provides for the institutional revictimization of the complainant. Furthermore, the need for such a significant degree of overriding judicial discretion is questionable. Previous lines of authority have shown that attempts to rely on the complainant’s physical appearance and third-party sexual history to determine their credibility tend to be unsuccessful. Even if allowed, such evidence and questions hold little probative value in the Court’s assessment of the complainant’s credibility, for they are largely based on unfounded rape myths. The present legislative and ethical framework is in need of urgent reform as it fails to sufficiently guard against the retraumatisation of the complainant during cross-examination. Unless and until such reform takes place, legalized victim-blaming will continue, deterring many future complainants from reporting their perpetrators. When will we stop blaming the complainant for her own rape? When will we finally recognize that she is not the accused?

Clare McGlyn, ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third-Party Evidence’ (2017) JCL 81(5) 367-92 51


Singapore Comparative Law Review

Tackling Tax Avoidance in the UK and Singapore Hng Zhan Peng Introduction The year 2020 kicked off with the COVID-19 pandemic that led to a global economic downturn. Governments all around the globe increased fiscal spending and introduced various fiscal stimulus packages in a desperate attempt to save their economies, businesses, and jobs, running substantial budget deficits. For the financial year ending 31 March 2021, the United Kingdom (‘UK’) government is projected to run into a current budget deficit of £312 billion, the largest since 1947. 1 Over the same period, the Singapore government is projected to run into an overall budget deficit of S$64.9 billion, 2 the largest since 2005.3 Both the UK and Singapore governments have reported a dip in tax revenue due to the poor economic climate, with a projected decrease of £51.5 billion and S$9 billion, respectively, compared to the financial year ending 31 March 2020. Restoring public finances will be high on the policymakers’ agenda over the next few years. A key measure that could restore public finances in a poor economic climate is the recovery of tax revenue lost to tax avoidance. In the UK, HM Revenue and Customs (‘HMRC’) reported that the tax gap 4 for the financial year ending 31 March 2019 was estimated to be £31 billion, which is 4.7% of total theoretical tax liabilities. 5 The tax gap attributable to tax avoidance has decreased by close to 50% since the financial year ending 31 March 2006, from £3.7 billion to £1.7 billion. 6 This decrease is mainly due to the statutory antiavoidance regimes implemented over the last 15 years across various sources of tax revenue, underlining the effectiveness of these regimes in protecting the tax base of the UK. Although there are no published statistics on the theoretical tax gap in Singapore, the Inland Revenue Authority of Singapore (‘IRAS’) has reported the recovery of S$367 million of taxes and penalties via tax audits during the financial year ending 31 March 2020.7 It is unclear how much of the taxes recovered is attributable to tax avoidance. However, it has been estimated that Singapore loses approximately US$2.8 billion annually due to corporate tax abuse. 8 Such a finding suggests that tax avoidance would likely continue to undermine the Singapore government’s efforts to protect the country’s tax base.

Office for Budget Responsibility, ‘Public finances databank – January 2021’ (January 2021) <> accessed 26 February 2021. 2 Ministry of Finance, ‘Analysis Of Revenue And Expenditure’ (February 2021) <> accessed 26 February 2021. 3 Department of Statistics Singapore, ‘Overall Fiscal Position, Annual’ <> accessed 26 February 2021. 4 Defined by HMRC as ‘the difference between the amount of tax that should, in theory, be paid to HMRC, and what is actually paid’: ‘Measuring tax gaps 2020 edition: Tax gap estimates for 2018 to 2019’ (July 2020) <> accessed 26 February 2021, 3. 5 HMRC, ‘Measuring tax gaps 2020 edition: Tax gap estimates for 2018 to 2019’ (July 2020) <> accessed 26 February 2021. 6 HMRC, ‘Official Statistics: Measuring tax gaps tables/ (July 2020) <> accessed 26 February 2021. 7 IRAS, ‘Tax and Penalty Arising from Investigation, Annual’ (September 2020) <> accessed 26 February 2021. 8 Tax Justice Network, ‘The State of Tax Justice 2020: Tax Justice in the time of COVID-19’ (November 2020) <> accessed 25 June 2021, 19. 1


Singapore Comparative Law Review This article will review and compare the anti-avoidance regimes employed in both the UK and Singapore jurisdictions to recommend applicable anti-avoidance regimes that Singapore could model. It will be argued that statutory penalties should be introduced to penalise intermediaries involved in the design, promotion, and implementation of tax avoidance schemes in Singapore. It will also be argued that a statutory duty to disclose tax avoidance schemes should be imposed on intermediaries and specific taxpayers in Singapore. This article will proceed as follows. Section 2 will briefly introduce the legal difficulties posed by tax avoidance. Sections 3 and 4 will provide an overview of the anti-avoidance regimes in the UK and Singapore, respectively. Section 5 will then compare and evaluate the anti-avoidance measures adopted in both jurisdictions, focusing on recommending anti-avoidance regimes Singapore could introduce to complement its current framework for tackling tax avoidance. Background Tax avoidance has been the subject of considerable public concern over the past decade worldwide. However, there is no universal definition of tax avoidance in public discourse, and any attempt at introducing an ontological account will likely turn out to be tautological. This definitional exercise has been further complicated and politicised by the use of terms in public discourse such as ‘acceptable’ and ‘unacceptable’ tax avoidance. However, this merely begs the question: acceptable to whom? Some attempts have been made to introduce a working definition to define tax avoidance. During a parliamentary debate on tax avoidance and evasion in July 2010, the Exchequer Secretary to the Treasury, David Gauke, drew the following distinction: Tax evasion occurs when someone acts against the law. Tax avoidance involves compliance with the letter but not the spirit of the law, and it is right that the Government seek to minimise that. Tax planning is a case of acting in both the spirit and the letter of the law. There is a distinction, although there will be occasions when the line is a little blurred. 9 This definition provides a principled approach in the UK to deal with tax avoidance schemes. HMRC regards tax avoidance as ‘bending the rules of the tax system to gain a tax advantage that Parliament never intended’. 10 Similarly, in Singapore, IRAS defines a tax avoidance arrangement as ‘an arrangement that is artificial, contrived or has little or no commercial substance and is designed to obtain a tax advantage that is not intended by Parliament’.11 As observed, a common theme that runs through both jurisdictions is acknowledging that tax avoidance schemes frustrate the legislative purpose of enacting various tax regimes and pose a threat to the tax bases. However, a problematic question would thus usually arise in the course of disputes: how to ascertain the objective intention of Parliament as to whether the relevant relieving provisions were meant to be applied on the arrangement in question? This is where the principle stops short of providing any further guidance, and tax avoidance cases have turned on competing interpretations on the relevant statutes where the courts have occasionally found for the taxpayers. 12 What this suggests is that, paradoxically, both unnecessarily vague and overly prescriptive legislation are key contributors to the erosion of the tax base. This may give rise to a vicious cycle whereby tax administrators have to expend resources to introduce antiavoidance legislation and implement practical measures, which in turn increases the complexity of the HC Deb 12 July 2010, vol 513, col 706. HMRC, ‘What tax avoidance is' (, 27 Sep 2016) <> accessed 21 February 2021. 11 IRAS, ‘The General Anti-avoidance Provision and its Application’ (July 2016) <> accessed 6 January 2021. 12 Currently only in the UK. The IRAS has a 100% winning rate thus far on anti-avoidance cases. 9



Singapore Comparative Law Review prevailing tax code and thus the likelihood of ‘anti-anti-avoidance measures’ being adopted by taxpayers. Shaping the behaviour of taxpayers must be the critical objective of anti-avoidance legislation to break the aforementioned vicious cycle. UK Anti-Avoidance Framework Overview The UK has been relying on Targeted Anti-Avoidance Rules (‘TAARs’) and the common law to tackle tax avoidance schemes since the early 1900s. In the UK, there are key Tax Acts that set out the tax code of the state.13 Each year, Parliament will debate the Finance Bill introduced by the Chancellor of the Exchequer that contains all the tax measures for the year ahead and re-enact certain key tax legislation such as income taxes and corporation tax. The Finance Bill eventually receives Royal Assent and is enacted as the Finance Act for the relevant tax year. Some of the Tax Acts and Finance Acts introduce specific regimes that benefit the taxpayers in line with the incumbent government’s economic policies (eg. encouraging expenditure by taxpayers to drive economic growth). However, these regimes could be subject to avoidance schemes and abuse by taxpayers to achieve excessive tax benefits that are not consistent with their legislative purpose. TAARs are enacted together with these regimes, or in subsequent years, to counteract tax advantages derived from tax avoidance schemes that exploit these specific tax regimes. It has been estimated that there are currently over 300 TAARs enacted in the UK tax code and Finance Acts. 14 As tax law has become increasingly complex over the years, so have the schemes invented by the tax avoidance industry. The industry players comprise consultants, financial institutions, lawyers, and accountants providing tax compliance and advisory services to taxpayers. Some commentators have described tax avoidance as ‘a game of cat and mouse with HMRC’15—a ‘circular game in which the taxpayer and a few hired performers act out a play; nothing happens save that the Houdini taxpayer appears to escape from the manacles of tax’. 16 Unfortunately, they are correct. Despite all the efforts expended in clamping down on tax avoidance, the fact that there are still new TAARs enacted every year to strike down avoidance strategies that come to the attention of HMRC and the Treasury clearly shows that there is still a booming industry dedicated to keeping tax revenue away from the taxman. The sections below will highlight and illustrate some critical regimes and measures that the UK government has adopted as part of the anti-avoidance framework in the UK. Judicial Approach to Tax Avoidance Before introducing the key anti-avoidance regimes, it is first necessary to examine the courts’ approach towards tax avoidance cases. The outcome of a complex tax code has led to a proliferation of tax avoidance cases heard by the courts over the years. What is certain is that the courts’ approach has evolved from a strict interpretation of the legislation to the modern liberal and contextual reading of the legislation. Long gone are the days when the English courts adopted a purely mechanistic and literal reading of legislation to confine their application to the taxpayers’ affairs narrowly. 17 Formulated in the absence of statutory anti-

Income Tax (Earnings and Pensions) Act 2003; Income Tax (Trading and Other Income) Act 2005; Income Tax Act 2009; Corporation Tax Act 2009; Corporation Tax Act 2010; Taxation (International and Other Provisions) Act 2010; Taxation of Chargeable Gains Act 1992; Social Security Contributions and Benefits Act 1992; Value Added Tax 1994; and Inheritance Tax Act 1984. 14 Graham Aaronson, GAAR Study: A study to consider whether a general anti-avoidance rule should be introduced into the UK tax system (November 2011) para 3.15. 15 Public Accounts Committee, Tax avoidance: tackling marketed avoidance schemes (HC 2012-13). 16 W. T. Ramsay Ltd. v Inland Revenue Commissioners [1979] 1 WLR 974 (CA) 979 (Templeman LJ). 17 See The Commissioners of Inland Revenue v Duke of Westminster [1936] 1 AC 1 (HL). 13


Singapore Comparative Law Review avoidance rules, the modern English courts have settled on the Ramsay principle, 18 which requires the courts to take a ‘purposive’ approach to construe tax legislation. However, the Ramsay principle does not always lead to victory for HMRC, given that the common law principle does not give the courts free-standing authority to strike down tax avoidance arrangements. For example, in Mayes v Revenue and Customs Commissioners, the Court of Appeal affirmed the High Court’s decision in holding that a tax avoidance scheme known as ‘SHIPS 2’, which employed a seven-step route to create an artificial tax loss which could be set off against their other tax liabilities, could not be defeated under the Ramsay principle. 19 In the High Court, Proudman J commented that such a scheme should not have succeeded.20 However, given the prescriptive nature of the statutory rules in question, Proudman J ultimately held that he could not find a purposive interpretation sufficient to defeat the scheme. 21 This case drove home the need to introduce a general anti-avoidance rule that would grant powers to HMRC to strike down tax avoidance arrangements without the need to enact TAARs to defeat these avoidance strategies. General Anti-Abuse Rule (‘GAAR’) Initially, the UK was divided on introducing a general anti-avoidance rule because of concerns over protecting taxpayers’ rights.22 In 2011, the UK government agreed to establish a study group chaired by Graham Aaronson QC. The group published its report finding that even TAARs, Disclosure of Tax Avoidance Schemes (‘DOTAS’) and the Ramsay approach combined were incapable of dealing with specific abusive tax avoidance schemes. The report concluded that the UK needed a general anti-avoidance rule. 23 Following the Aaronson report, the GAAR was enacted in 2013. 24 The government took care to reassure taxpayers that the GAAR is targeted at abusive tax arrangements and not mere tax avoidance. Thus, the GAAR contains various provisions protecting taxpayers from the excessive application or over-extension of the GAAR—including a ‘double reasonableness test’ in determining whether tax arrangements are abusive and counteracted by the GAAR.25 Additionally, in court or tribunal proceedings, HMRC bears the burden of proving that the taxpayer’s arrangements are abusive and that its proposed counteracting adjustments are just and reasonable. 26 These anti-avoidance measures are ex-post in nature, given that the HMRC implements them after discovering the tax arrangements. They do not necessarily address the root of the problem: taxpayers’ behaviour. As such, Parliament complemented the anti-avoidance regimes with the imposition of ex-ante duties and corresponding penalties on taxpayers and their agents to reduce the information asymmetry between HMRC and taxpayers and to deter taxpayers from entering into tax avoidance schemes. These complementary measures will be discussed below. Disclosure of Tax Avoidance Schemes DOTAS was introduced in 2004 and is now an essential part of HMRC’s arsenal to target the tax avoidance industry. 27 The DOTAS rules make it obligatory to inform HMRC about certain tax avoidance arrangements. These rules enable HMRC to identify tax avoidance schemes much earlier than under the W. T. Ramsay Ltd. v Inland Revenue Commissioners [1982] AC 300 (HL). Mayes v Revenue and Customs Commissioners [2011] EWCA Civ 407, [2011] STC 1269. 20 [2009] EWHC 2443 (Ch), [2010] STC 1, [45]. 21 Mayes v Revenue and Customs Commissioners [2011] EWCA Civ 407, [2011] STC 1269 [47]. 22 Tax Law Review Committee, Tax Avoidance (IFS 1997). 23 Graham Aaronson, GAAR Study: A study to consider whether a general anti-avoidance rule should be introduced into the UK tax system (November 2011). 24 Finance Act 2013, ss 206–215 (Pt 5). 25 Finance Act 2013, s 207(2). 26 Finance Act 2013, s 211(1). 27 Finance Act 2004, ss 306–319 (Pt 7). 18 19


Singapore Comparative Law Review tax return process, as well as discover tax avoidance schemes that might not otherwise be reported to them. They also allow HMRC to monitor how widely a scheme is being used, and if necessary, to act swiftly to close it down. The early information enables the HMRC to challenge such tax avoidance schemes, either by technical argument and assessment, or where the scheme may be legally sound, by introducing new antiavoidance legislation to counteract the scheme in question. HMRC also have powers to require information and investigate suspected non-compliance with the disclosure rules. The critical feature of DOTAS is the imposition of a statutory duty on promoters 28 of tax avoidance arrangements 29 (unless exempted under regulations 30 ), users of tax avoidance promoted by offshore promoters31 and lawyers32 to provide HMRC with information about schemes exhibiting certain prescribed ‘hallmarks’.33 Promoter of Tax Avoidance Schemes (‘POTAS’) Although the DOTAS regime has helped HMRC close some tax avoidance schemes quickly, it has been criticised for not effectively deterring promoters or penalising non-compliance.34 POTAS was thus enacted in 201435 to address this shortcoming. The POTAS regime grants HMRC statutory powers, subject to the approval of a tribunal,36 to issue conduct 37 and monitoring 38 notices to ‘high-risk promoters’ who have satisfied one of a prescribed list of threshold conditions. 39 The names of promoters subject to a monitoring notice may be published by HMRC together with details of how the conduct notice was breached, 40 and promoters are required to inform their clients of their monitored status. 41 The legislation also includes penalties of up to £1,000,000 for promoters who do not comply with the rules under the POTAS regime. 42 POTAS was further amended in 2016 to include promoters who promote a series of avoidance schemes that have been regularly defeated. 43 Penalties for Enablers of Defeated Tax Avoidance In 2017, Parliament introduced a new penalty for any person who has enabled another person or business to use an abusive tax avoidance arrangement that HMRC later defeats. 44 These penalties allow HMRC to tackle all aspects of the marketing and supply of tax avoidance schemes. They build upon the POTAS regime by extending it to those involved at any stage of developing, designing, managing, or implementing tax avoidance schemes. The legislation aims to promote behavioural change in the minority of tax agents,

Finance Act 2004, s 307. Finance Act 2004, s 306. 30 Tax Avoidance Schemes (Promoters and Prescribed Circumstances) Regulations 2004, SI 2004/1865. 31 Finance Act 2004, s 309. 32 Finance Act 2004, s 310. 33 Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2006, SI 2006/1543; Stamp Duty Land Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2005, SI 2005/1868; Annual Tax on Enveloped Dwellings Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2013, SI 2013/2571; Inheritance Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2017, SI 2017/1172. 34 Public Accounts Committee, Tax avoidance: tackling marketed avoidance schemes (HC 2012-13). 35 Finance Act 2014, ss 234–283 (Pt 5). 36 Finance Act 2014, s 244. 37 Finance Act 2014, s 237. 38 Finance Act 2014, s 242. 39 Finance Act 2014, sch 34. 40 Finance Act 2014, s 248. 41 Finance Act 2014, s 249. 42 Finance Act 2014, sch 35. 43 Finance Act 2016, s 160. 44 Finance (No.2) Act 2017, s 16 and Sch 16. 28 29


Singapore Comparative Law Review intermediaries and others who benefit financially from designing, marketing or facilitating the use of abusive tax arrangements that are defeated. 45

Singapore’s Anti-Avoidance Framework Overview Compared to the UK, Singapore does not employ extensive and complex anti-avoidance regimes and tax collection measures but relies on TAARs and a general anti-avoidance rule46 to tackle abusive arrangements. The IRAS also has broad information powers to gather intelligence on tax avoidance schemes employed by taxpayers,47 albeit these powers are usually invoked as part of a ‘routine compliance review’ of selfassessed tax returns. As for income tax, the IRAS also has powers under the Income Tax Act to issue a notice of protective assessment to collect disputed tax upfront and a notice of refusal to amend the assessment. 48 Any additional assessments have to be raised within 4 calendar years after the relevant Year of Assessment—otherwise, the IRAS will be time-barred from doing so, subject to any finding of evasion or fraud on the part of the taxpayer.49 Once the IRAS issues a notice of refusal to amend the assessment, a disgruntled taxpayer wishing to dispute the decision would only be left with recourse through the courts. 50 According to the IRAS’ annual report for the financial year ending 31 March 2020, it has recovered more than S$443.5 million in taxes and penalties from its tax audits.51 The following sections will discuss the application of the general anti-avoidance rule to defeat tax avoidance schemes. Judicial Approach to Tax Avoidance In contrast to the UK, Singapore courts have to determine whether the general anti-avoidance rule defeats a challenged tax avoidance scheme. Section 33 of the Income Tax Act, as repealed and re-enacted in its amended version in 1998, empowers the Comptroller of Income Tax (“the Comptroller”) to disregard and make adjustments to specific arrangements which are carried out for tax avoidance and not principally for bona fide commercial reasons. This provision clarifies and defines the instances whereby a transaction will be deemed as factitious for tax purposes. Comptroller of Income Tax v AQQ (‘AQQ’) is a landmark tax avoidance case in Singapore, which involved, for the first time, the application of section 33 as amended in 1998.52 The case is significant for its interpretation of section 33, which sets out the scope of the powers of the Comptroller of Income Tax under the provision and the standard of review by the courts. Taking into account the requirement under section 9A of the Interpretation Act, 53 the Court of Appeal in AQQ relied on Dr Richard Hu’s speech in Parliament to HMRC, ‘Guidance: Changes to legislation of enablers of defeated tax avoidance schemes’ (April 2018) <> accessed 25 February 2021. 46 Income Tax Act (Cap 134, 2014 Rev Ed), s 33; Goods and Services Tax Act (Cap 117A, 2005 Rev Ed), s 47; Stamp Duties Act (Cap 312, 2006 Rev Ed), s 33A. 47 Income Tax Act (Cap 134, 2014 Rev Ed), ss 65A and 65B; Goods and Services Tax Act (Cap 117A, 2005 Rev Ed), s 84; Stamp Duties Act (Cap 312, 2006 Rev Ed), ss 69, 70C, 71 and 72. 48 Income Tax Act (Cap 134, 2014 Rev Ed), s 76. 49 Income Tax Act (Cap 134, 2014 Rev Ed), s 74. 50 Income Tax Act (Cap 134, 2014 Rev Ed), ss 78–84 (Pt XVIII); Goods and Services Tax Act (Cap 117A, 2005 Rev Ed), ss 49–57 (Pt VIII); Stamp Duties Act (Cap 312, 2006 Rev Ed), ss 37–41 (Pt V). 51 IRAS, ‘IRAS Annual Report FY2019/20’ (October 2020) < 920_Oct.pdf> accessed 26 February 2021. 52 Comptroller of Income Tax v AQQ [2014] SGCA 15, [2014] 2 SLR 847 (‘AQQ’). 53 Interpretation Act (Cap 1, 2002 Rev Ed). 45


Singapore Comparative Law Review interpret section 33 in a way that furthers the purpose of the provision, namely to reduce blatant or contrived tax avoidance arrangements without affecting regular commercial transactions. 54 In construing section 33 (alongside the other specific provisions of the Income Tax Act), 55 the Court of Appeal settled on the following interpretation of the approach required: 1) consider whether an arrangement prima facie falls within any of the three threshold limbs of section 33(1) such that the taxpayer has derived a tax advantage; and if so, 2) consider whether the taxpayer may avail himself of the statutory exception under section 33(3)(b); and if not, 3) ascertain whether the taxpayer has satisfied the court that the tax advantage obtained arose from the use of a specific provision in the Income Tax Act that was within the intended scope of Parliament’s contemplation and purpose, both as a matter of legal form and economic reality in the context of the entire arrangement. 56 Surcharges to Deter Tax Avoidance A surcharge regime was introduced in 2020.57 The purpose of introducing the surcharge is to ensure that taxpayers are sufficiently deterred from entering into tax avoidance arrangements.58 Once the Comptroller imposes a liability to tax, or an additional amount of tax, on a person under the anti-avoidance provision in the respective Tax Acts, a surcharge equivalent to 50% of the amount of tax, or the additional amount of tax, is recoverable by the Comptroller from the person as a debt owed to the Government. 59 Comparative Analysis and Evaluation As discussed above, the UK and Singapore employ different combinations of anti-avoidance measures. Besides enacting legislation to counteract unintended tax advantages, both jurisdictions also grant their tax administrations broad information and investigatory powers. However, there is a stark difference in the approaches of both jurisdictions to gathering intelligence on tax avoidance schemes, as well as the imposition of penalties for non-compliance with disclosure requirements and the promotion of defeated tax avoidance schemes. This section argues that Singapore should adopt specific approaches currently employed in the UK, tailored to the local context, in order to strengthen its existing anti-avoidance framework. Intermediaries in Singapore appear to be immune from liability arising from tax disputes related to schemes they have helped design, promote, or implement. In AQQ, ‘N Bank’ played the role of a promoter and intermediary in designing and implementing the round-tripping tax avoidance scheme. ‘N Bank’ appears to have emerged unscathed from the entire saga and dropped out of the subsequent public discourse, despite being the designer, promoter, and implementor of the tax avoidance scheme employed by AQQ. AQQ [36], [108]. AQQ [106]. 56 AQQ [110]. 57 Income Tax Act (Cap 134, 2014 Rev Ed) s 33A (inserted by Income Tax (Amendment) Act 2020 (Act 41 of 2020) s 30); Goods and Services Tax Act (Cap 117A, 2005 Rev Ed) s 47A (inserted by Goods and Services Tax (Amendment) Act 2020 (Act 42 of 2020) s 9); Stamp Duties Act (Cap 312, 2006 Rev Ed) s 33B (inserted by Income Tax (Amendment) Act 2020 (Act 41 of 2020) s 63). 58 Singapore Parliamentary Debates, Official Report vol 95 (3 November 2020) (Lawrence Wong). 59 See above (n 58). 54 55


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The more recent case of GCL v Comptroller of Income Tax has also shed light on the widespread engagement of intermediaries in structuring tax avoidance strategies.60 In connection with this case, the IRAS published similar variations of the same tax avoidance schemes adopted by GCL that were compiled from the actual tax affairs of private medical practitioners to illustrate what would be regarded as unacceptable tax avoidance schemes. 61 Under the section of frequently asked questions in the said circular, a question on the role played by tax consultants was raised: Most doctors are advised by tax professionals on their business structures, but now doctors have to bear the responsibilities. Will IRAS impose any penalties on these tax agents? 62 The IRAS responded: Every individual is personally responsible for his own tax affairs. In addition, as a company director, you are responsible for ensuring the company meets its statutory obligations, including the company’s tax matters. As part of your responsibility, you will need to carefully evaluate advice given to you by consultants or advisors you choose to engage. If a tax agent has abetted a taxpayer to avoid tax, IRAS will consider taking actions against the tax agent.63 This seemingly benign question and answer touch upon multiple underlying issues. First, the exchange recognises that intermediaries have played an instrumental role in designing, promoting, and implementing the tax avoidance schemes entered into by private medical practitioners. Second, the IRAS implies that the assistance of these intermediaries in designing and implementing tax avoidance schemes to the benefit of the taxpayers is contrary to provisions under Part XX of the Income Tax Act. Thus, these intermediaries may be subject to criminal liabilities.64 Third, the IRAS appears to have taken the position that they are legally entitled to commence legal proceedings against intermediaries to recover the additional tax liabilities of their clients, who had employed and benefited from the tax avoidance schemes. 65 It is submitted that the IRAS is mistaken on the scope of their statutory powers under the respective Tax Acts. First, the IRAS cannot commence legal proceedings against intermediaries who are not legally liable for their clients’ tax liabilities as there are no express provisions to impose such liabilities in the first place. Second, the choice of words in the circular is regrettable as the IRAS appears to have equated tax avoidance with tax evasion and therefore suggests that tax advisors could face penalties and imprisonment for advising their clients to set up lawful business entities, which is tax-efficient from a structuring standpoint. Such a GCL v Comptroller of Income Tax [2020] SGITBR 1. The taxpayer lost the appeal in Wee Teng Yau v Comptroller of Income Tax [2020] SGHC 236. 61 IRAS, Circular on Incorporation of Companies by Medical Professionals and Relevant Tax Implications (November 2019) <> accessed 6 January 2021. 62 ibid p 18. 63 ibid (emphasis added). 64 Ginger Ong from the Corporate Tax – Services Branch clarified in an email with the author that the IRAS is empowered to take ‘actions’ against tax agents under sections 96 and 96A of the Income Tax Act (Cap 134, 2014 Rev Ed) for advising medical professionals on setting up business structures which have been challenged on the ground of tax avoidance. However, both provisions are targeted at tax evasion instead of tax avoidance. Section 96 states: 'Any person who wilfully with intent to evade or to assist any other person to evade tax...shall be guilty of an offence for which, on conviction, he shall pay a penalty...and shall also be liable to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both.' Section 96A states: 'Any person who wilfully with intent to evade or to assist any other person to evade tax...shall be guilty of an offence for which, on conviction, he shall pay a penalty ...and shall also be liable to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 5 years or to both.' 65 Income Tax Act (Cap 134, 2014 Rev Ed), s 89. 60


Singapore Comparative Law Review suggestion is arguably wrong in law as there are no express provisions in the Income Tax Act purporting to fix criminal liability on intermediaries for promoting or enabling tax avoidance schemes. Consequently, such intermediaries cannot be regarded as assisting their clients to evade taxes contrary to sections 96 and 96A of the Income Tax Act since their role is to design, promote and enable tax avoidance schemes that allow their clients to avoid taxes by complying with the letter but not the spirit of the law, albeit potentially subject to defeat by the general anti-avoidance regime. 66 Without any threat of legal liabilities, it is argued that intermediaries are currently not deterred from continuously inventing new schemes to circumvent the prevailing tax rules and assist their clients in benefiting from an unfair advantage over other taxpayers. Therefore, it is submitted that the UK’s approach of imposing penalties on enablers of defeated tax avoidance schemes should be adopted in Singapore to change the behaviour of intermediaries. Some intermediaries may be sufficiently deterred by the prospect of being subject to penalties and cease all forms of design, promotion and implementation of tax avoidance schemes altogether, whether these schemes may be legitimate or not. It is also submitted that the current regime of imposing surcharges on top of the anti-avoidance adjustments 67 could also be extended to intermediaries. Such an extension, which would see intermediaries severally liable for surcharges imposed on their clients, could deter intermediaries from blindly assisting their clients to enter into tax avoidance schemes without conducting a robust risk analysis of the likelihood of defeat of such schemes by the various anti-avoidance regimes. Statutory Duty to Disclose Tax Avoidance Schemes It is time-consuming to collect information and intelligence to justify using statutory powers to strike down a tax avoidance scheme. Imposing a legal duty on taxpayers and intermediaries to disclose tax avoidance would help reduce the burden on the taxman and channel enforcement efforts to cases in which tax avoidance schemes have been reported. In contrast to the UK, there is no such statutory duty on taxpayers and promoters in Singapore. Hence, the IRAS can only gather intelligence on possible tax avoidance schemes via the traditional routine desk audits. Not only is the entire process resource and time -consuming, it also carries the inherent risk that the IRAS may not detect tax avoidance schemes that ought to have been defeated by the GAAR. It may even give rise to a massive misunderstanding on the part of taxpayers that silence from the IRAS implies permission—that the tax avoidance schemes left unchallenged have the blessing of the IRAS. Some commentators have argued that transparency is a costly regulatory strategy for the providers of information and those required to process it.68 They argue that the cost of complying with and monitoring tax transparency initiatives will strain the resources of tax authorities and companies and ultimately be borne by society. 69 Promoters of tax avoidance schemes may also simply circumvent disclosure rules through the invention of anti-DOTAS devices. In response to the suggestion that the various types of costs associated with the imposition of such a duty of disclosure would be disproportionate compared to the intended benefits, it is argued that imposing such a duty would not be a burden to the IRAS and the majority of taxpayers (who have an average financial profile). Instead, the rules would generally target (a) high-net-worth individuals with complex financial profiles and portfolios, (b) large local and multinational companies that operate on complex business Income Tax Act (Cap 134, 2014 Rev Ed), s 33. Income Tax Act (Cap 134, 2014 Rev Ed), s 33A. 68 Lynne Oats and Penelope Tuck, 'Corporate tax avoidance: is tax transparency the solution?' (2019) 49 ABR 565, 567. 69 ibid, 567. 66 67


Singapore Comparative Law Review models or within complex corporate group structures, (c) tax consultants and lawyers, (d) financial institutions, (e) business trusts, (f) funds managed by fund managers, (g) family offices, and (h) variable capital companies. In addition, carve-out rules such as an income threshold could be included to exempt most taxpayers from the additional compliance costs, who would only be required to complete ‘check-thebox’ disclosures in tax returns. Furthermore, a duty to disclose tax avoidance schemes could complement the current anti-avoidance surcharge regime. The disclosure of tax avoidance schemes could be a condition precedent unlocking the IRAS’ discretion to consider remitting the surcharge. Under section 33A(7) of the Income Tax Act, the Comptroller may, for good cause, remit wholly or in part any surcharge or interest payable. As Lawrence Wong said in Parliament: We cannot anticipate what the scenarios will be but in the event that something were to happen that is meritorious, then indeed we will have a remission provision that can be exercised. 70 It is submitted that the disclosure of tax avoidance schemes would constitute a ‘meritorious’ event that should be considered in any decision to remit a surcharge. If Parliament intends to alter the behaviour of taxpayers, then granting a remission to reward timely disclosure of tax avoidance schemes would reinforce positive behaviour in taxpayers and further the legislative purpose of section 33A. Furthermore, it is noted that there is no statutory right of appeal provided for the remission of the surcharge under section 33A(7). In other words, if a taxpayer accepts a section 33 tax adjustment by the IRAS but was concurrently denied remission of the surcharge under section 33A(7), the only legal recourse left to the taxpayer is to bring a claim of judicial review to challenge IRAS’s decision. A purposive interpretation would lead one to realise that the IRAS’ discretion to remit the surcharge under section 33A(7) cannot depend on its whims and wishes. The disclosure of tax avoidance schemes under the proposed statutory duty could be a legitimate ground for the IRAS to consider the remission of the surcharge; refusal to remit despite such disclosure could invite judicial review of the IRAS’ decision on the grounds of Wednesbury unreasonableness and procedural unfairness. Conclusion This article has discussed the development and the operation of the anti-avoidance regimes employed in the UK and Singapore. Undertaking a comparative evaluation, it argued that there should be reforms to the current revenue legislation in Singapore. A new statutory penalty should be imposed on intermediaries that design, promote and implement defeated tax avoidance schemes entered by their clients. Also, a new statutory duty should be imposed on specific persons to disclose tax avoidance schemes entered into by them. Historically, the UK and Singapore revenue law has been specifically targeted rather than purposive. In tackling the exploitation of ‘loopholes’ in revenue law, the governments of both countries have legislated against specific avoidance schemes as and when they have come to the attention of the Inland Revenue. Such legislation has spurred the development of new schemes to circumvent the law, which has led to an ‘arms race’ between the Inland Revenue and taxpayers aided and enabled by the intermediaries. As a result, tax avoidance schemes have scaled up in the last two decades, which has led to various significant antiavoidance measures and encouraged a change in taxpayers’ attitudes in both jurisdictions. However, governments cannot afford to cut back on anti-avoidance efforts; evidence suggests that a minority of taxpayers and rogue intermediaries will continue to circumvent the rules or enter into avoidance schemes 70

Singapore Parliamentary Debates, Official Report vol 95 (3 November 2020).


Singapore Comparative Law Review or aggressive tax planning arrangements contravening legislative intention. At the same time, governments must recognise that their efforts have to be carefully designed and targeted, with adequate and necessary safeguards in place to ensure that the Inland Revenue exercise their powers fairly, reasonably, and correctly. What remains consistent in public discourse is that there can never be an ideal anti-avoidance framework: governments must constantly review the robustness and effectiveness of the current regimes comprising their anti-avoidance framework. This article has sought to examine the various operative anti-avoidance regimes employed in the UK and Singapore and argued for revenue law reform in Singapore modelled after some of the UK’s anti-avoidance measures. Restoring public finances will pose a challenge to the governments of both countries in the next few years. Therefore, both governments must consult with stakeholders to ensure that the law continues to strike the right balance between robustly challenging tax avoidance, evasion and other forms of deliberate non-compliance, and at the same time, treating all taxpayers fairly.


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Mental Health (Care and Treatment) Act 2008: The dangers of focusing on ‘dangerousness’ Iffah Umairah Md Farid Mental health law is aligned with medical ethics in that it attempts to strike a balance between patient autonomy and paternalistic intervention to protect the value of human life. In reality, however, mental health law fails to achieve this balance effectively. Under both Singapore’s Mental Health (Care and Treatment) Act 2008 (‘MHCTA’) and the United Kingdom’s (‘UK’) Mental Health Act 1983 (‘MHA’), medical professionals and state authorities are given a wide breadth of powers to override patient consent for treatment. Patients can be ‘sectioned’ under the MHA 1 or detained under the MHCTA for in-patient treatment under certain circumstances without the patient’s consent. Patients can also be treated without consent under these regimes. This loss of autonomy is justified, at least in part, by the public’s perception of mentally ill patients as violent, dangerous and unpredictable. 2 Societal understandings of ‘insanity’ contribute to an image of mental illness impairing all of a patient’s mental capabilities. This widely held misconception is then embedded into a legal presumption that mentally ill patients are often deemed incapacitous to make decisions relating to their mental illness. To borrow Bartlett and Sandland’s words, ‘a medical model of insanity is asserted, imposing a scientific order onto the profoundly un-ordered world of the mad.’3 The powers entrusted to medical professionals and the state are justified as necessary to ‘protect’ mentally ill patients from inflicting harm on themselves or the members of the public, resulting in the continued discrimination of mentally ill persons. Yet, by focusing on the concept of ‘dangerousness’, both the MHCTA and the MHA perpetuate a worrying stigmatisation of mental illness. In defending this claim, this essay will examine the current legislation, paying close attention to the choice of words in both acts. Consequently, it will be argued that the criticisms directed at the MHA are relevant to the necessary reformation of the MHCTA in order to safeguard patient autonomy in a manner coherent with the wider healthcare system’s respect for autonomy. Background of the MHCTA and MHA The MHA as enacted in 1983 was amended in 2007 in an attempt to better safeguard patient rights under the MHA.4 Notwithstanding the success of this attempt, the MHCTA provides medical professionals and the state wider powers to override patient autonomy in spite of the patient’s possible capacity to consent in both the admissions process and treatment. However, I argue that the existence of legal safeguards remains salient for two reasons: 1) Procedural legal safeguards ensure a robust protection of patient rights and the centralisation of patient autonomy in treatment; 5 and 2) Such protections are necessary in the pursuit of the destigmatisation of mental illness, so the autonomy of mentally ill patients must be awarded the same respect as non-mentally ill patients, rather than as ‘dangerous’ individuals to be contained.

Mental Health Act 1983 s 2-4 Jonathan Herring, Medical Law and Ethics (8th edn, OUP 2020) Chapter 5, 233-235 3 Peter Bartlett and Ralph Sandland, Mental Health Law: Policy and Practice (4th edn, OUP 2014) Chapter 1, 1-2 4 Herring (n 2) 251-254 5 Aisling Boyle, ‘The Law and Incapacity Determinations: A Conflict of Governance?’ (2008) 71(3) Modern Law Review 413, 445 1 2


Singapore Comparative Law Review The current provisions neither accord in-patients such respect in their statutory wording nor their implementation. A focus on risk How would an individual be detained or ‘sectioned’? In answering this question, this section will highlight two ways in which the MHCTA’s focus on risk and preventative detention creates a low threshold for detention based on discretionary criteria and compromises patient autonomy in treatment. Under the MHCTA, the police are granted the power to arrest individuals reasonably believed to be suffering from a mental illness or disorder which leads them to be ‘dangerous’ to themselves or others under s.7.6 In contrast, there is no explicit mention of arrests or awarding of immunity to law enforcement under the MHA. However, the MHA’s similar focus on danger7 leads to the UK police force being similarly empowered to arrest individuals if they are a risk to the public’s ‘health and safety’. 8 Preventative detention, where the detained individual has yet to commit any crime or harm but is detained due to the ‘risk’ they pose, is justified almost solely on the protection of the individual themselves or the public from any possible harm. However, the prediction of danger and risk of violence by individuals is problematic, and not nearly as accurate as one might believe. Herring notes in one research survey that only four out of sixteen research projects resulted in 60 percent or more psychiatrists agreeing on whether an individual was dangerous. 9 As Nicola Thomas observed, ‘‘risk’ is both a nebulous and fluid conception’ which is difficult to define in practice, so the definition is left to the ‘discretion of decision-makers to determine in accordance with their professional judgment and experience.’ 10 Consequently, there is a ‘significant variation in the meanings attributed to risk by decision-makers.’11 Both the MHCTA and MHA are silent as to how ‘dangerous’ an individual must be to justify involuntary detention or treatment, despite the fact that Rose (in 1998) observes that ‘the language of risk is all-pervasive’ in mental health practice. 12 Risk assessments become determinate of the scope of a patient’s choices in treatment (i.e. eligibility for supervised discharge) by attempting ‘to bring the future into the present and make it calculable.’13 The issue with such discretion does not lie in the healthcare professional’s judgment, but the fact that balancing the need for ‘governance of decision-making’ and the ‘organic’ quality of risk assessments results in the construction of ‘a risk profile before deciding whether evidence indicates the need for a compulsory detention response.’ 14 Without any guidelines or patient safeguards in legislation as to how healthcare professionals should act, the balancing exercise between patient autonomy and public protection is worryingly skewed in favour of the latter. Weight is placed completely on healthcare professionals to determine an individual’s ability to exercise their autonomy and ‘whether evidence indicates the need for a compulsory detention response, particularly for those patients with a long and tempestuous psychiatric history.’ 15 Mental Health (Care and Treatment) Act 2008 s 7 Peter Bartlett, ‘The Test of Compulsion In Mental Health Law: Capacity, Therapeutic Benefit and Dangerousness as Possible Criteria’ (2003) 11(3) 326, 331 8 Mental Health Act 1983 s 3(2) 9 Herring (n 2) 255-256 10 Nicola Glover-Thomas, ‘The Age of Risk: Risk Perception and Determination following the Mental Health Act 2007’ (2011) 19(4) Medical Law Review 581-605 11 Ibid 12 Nikolas Rose, ‘Governing Risky Individuals: The Role of Psychiatry in New Regimes of Control’ (1998) 5(2) PPL 177, 177 13 ibid 180 14 Nicola Glover-Thomas (n 10) 15 ibid 6 7


Singapore Comparative Law Review Secondly, under the MHA, an individual can only be sectioned for assessment under s.2 for a maximum of 28 days.16 Should two medical practitioners find that the patient needs to be sectioned longer for treatment under s.3,17 three criteria must be fulfilled: 1) That it is necessary to detain the patient, 2) For the purpose of treating their mental disorder; and 3) That there is an ‘appropriate treatment’ for such disorder. In contrast, the initial period of assessment for the MHCTA is 72 hours, which can then be extended to a maximum of 6 months should certain criteria be fulfilled. 18 However, there is no requirement that an appropriate treatment for the patient’s mental illness specifically exists for the individual to be detained in the MHCTA – only that treatment be provided while the patient is detained. The criticism aimed at the MHA’s ‘appropriate treatment’ test becomes even more relevant for the MHCTA than the MHA. Although the MHA is silent as to how appropriate treatment must be to fulfil the criterion for detention, the existence of such a criterion makes the MHA’s test for the renewal of sectioning a slightly higher threshold than that in the MHCTA. While this does not warrant more individuals being detained under the MHCTA than the MHA, the criterion for admission is simply easier to fulfil when used in addition to the discretion given to the police. As Ogunwale notes, ‘appropriateness of the treatment is based on its purpose of alleviation or prevention of worsening of symptoms rather than likelihood of treatment success.’ 19 Nonetheless, the MHA acknowledges patients are sectioned to benefit the individual suffering from a treatable sickness and not merely for the purposes of housing the individual from the public – a recognition the MHCTA lacks. As Bartlett and Sandland observe, mental health law plays a dual role: ‘an external mechanism’ restricting ‘medical discretion’ and a ‘source of the mental health system […] in terms of discourse, ideas, structures and so on’. 20 The MHCTA’s silence regarding the priority objective of detention is telling; it leaves open to interpretation why an individual is detained, possibly reinforcing the stigma of mentally ill people as a burden or a danger than people to be cared for. Loss of autonomy in treatment Once involuntarily detained, the in-patient has little say in their treatment. Avenues available to patients to challenge their detention are limited, so reforming the law to support patients in regaining or exercising their autonomy insofar as possible are incredibly important. There are various striking differences between the British and Singaporean legislation, but one of the sharpest distinctions is that the MHCTA has no provisions governing the prescription of invasive treatment. Sections under Part IV of the MHA,21 list the criteria to be fulfilled before certain invasive treatments (such as electro-convulsive treatment) can be imposed on the in-patient. Such criteria include gaining the approval of a ‘registered medical practitioner’ and two other persons involved in the patient’s treatment.22 Although no exhaustive list of treatments is given, s.57 states that the provision relates to ‘any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue’ and s.58 refers to the administration

Mental Health Act 1983 s 2 Mental Health Act 1983 s 3 18 Mental Health (Care and Treatment) Act 2008 s 10 19 Adegboyega Ogunwale , ‘Involuntary mental health treatment in England and Wales: A rights-based critique of current legal frameworks and recommendations for reform’ (2019) 66 International Journal of Law and Psychiatry 101, 451 20 Bartlett and Sandland (n 3) Chapter 2, 36-38 21 Mental Health Act 1983 s 57, s 58, s 63 and s 145 22 Mental Health Act 1983 s 57 16 17


Singapore Comparative Law Review of medicine. There is little doubt that in comparison to the MHCTA, the MHA, at least, acknowledges the invasiveness of the treatments which may be administered and the severity of their breach on patient autonomy. Treatment is generally much less effective if patients are uncooperative. 23 To remove consent from treatment even under involuntary detention occasionally results in detention having little positive effect overall. This was highlighted in a study conducted by Syed Ferhana Akther et al, who found that patients who were involved in their care and were given flexibility as to treatment ‘reduced the perception of coercion’ and ‘being given responsibility to make choices as soon as possible was an important part of recovery’. 24 In relation to forced medication, failure to at least inform patients of the details of their medication resulted in a perception of treatment as a ‘false choice and threatened with punishment.’ 25 Medication in mental health treatment is unique in that its effectiveness is dependent on individual characteristics. Contextual influences such as personal issues, understanding of side effects and social stigma have been identified as factors influence non-adherence to medication by patients. 26 Furthermore, a good trusting relationship between healthcare professionals and the patient increases adherence to medication. 27 As the aim of detention is treatment, it would only be sensible for legislation to facilitate greater engagement with individuals in how they should be treated as involuntary detention causes feelings of disempowerment and dehumanisation, even if the patient believes detention had been necessary. 28 Part V of the MHA also allows for in-patients to appeal to a Mental Health Review Tribunal to seek discharge from the psychiatric hospital, and are also entitled to an Independent Mental Health Advocate under s.130A. No similar form of detention review exists in the MHCTA. Without at least the ability to appeal the detention, the individual resorts to litigious proceedings they are not likely to be successful in due to the high level of discretion accorded to powers such as the police. In Mah Kiat Seng v AG, 29 the disparity between the rights of a patient under the MHCTA and the MHA are clearly demonstrated in regard to their ability to challenge their in-patient status. The claimant sought leave to bring proceedings against the two police officers who detained him under the Act under s.25(2) for abusing their powers. However, the Singapore High Court found there was no substantial ground for this application as the threshold for leave was not as low as argued by Mr Mah; furthermore, there was no evidence that the officers had acted contrary to good faith nor without reasonable care. Though the decision was thoroughly reasoned, Mah Kiat Seng demonstrates the reality that only one challenge is accessible to detained patients – litigation. As Mr Mah had no chance or ability to review his detention while detained under the MHCTA, he could only seek financial compensation post-detention for breach of his autonomy, and only if the authorities had acted in bad faith or without reasonable care. Firstly, as evidenced above, this is an incredibly difficult thing to prove. Secondly, S25 of the MHCTA is focused on whether those in authority were justified in their actions, rather than how the detention affects the patient and how treatment under the MHCTA would benefit them. Consequently, the mental health legislation becomes even less patient-centric, despite the purpose of detention being treatment for their illness. In the UK, patients found their ability to access tribunals ‘favourable’ as they felt able to be more involved in their own treatment. 30 Closing an Mary Donnelly, Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism (Cambridge University Press 2010) Chapter 6, 254 24 Syed Ferhana Akther et al, ‘Patients’ experiences of assessment and detention under mental health legislation: systematic review and qualitative meta-synthesis’ (2019) 5 BJPsych Open, e37, 1–10 25 ibid 26 Terence V McCann, Eileen Clark and Sai Lu, ‘The Self-Efficacy Model of Medication Adherence in Chronic Mental Illness’ (2008) Journal of Clinical Nursing 17 329-340, 335 27 ibid 334 28 Syed Ferhana Akther et al (n 24) 29 Mah Kiat Seng v AG [2019] SGHC 108 30 Syed Ferhana Akther et al (n 24) 23


Singapore Comparative Law Review avenue for patients to further understand and challenge their loss of autonomy and feelings of powerlessness is not beneficial to their treatment. The continued stigmatization of mental illness The MHCTA’s language and implementation only reaffirms the image of people suffering from mental illness as dangerous individuals. Without, at least, the formal recognition that the purpose of detention centres around treatment rather than public protection, the image of the mentally ill as unpredictable and dangerous will persist, contributing to the mental health crises in both jurisdictions. People with mental illness in Singapore still face stigmatization in accessing ‘basic’ life necessities such as housing and employment. 31 More than five in ten people are not willing to live or work with people with a mental health condition, while another five in ten do not believe they should be given positions of responsibility. 32 Consequently, people who are suffering from mental illness may choose not to seek treatment, and the possibility of more individuals reaching a point of crisis and being involuntarily detained so as to prevent harm to themselves or others also increases. Early intervention and access to care through knowledge has been identified as key in lowering detention rates of ethnic minorities under the MHA, 33 whose first encounter with mental health services is through the police at a time of crisis. 34 Similarly, as a large contribution to the stigmatization of mental health in Singapore are societal/cultural beliefs rooted in Asian values (such as ‘saving face’) and the negative portrayal of the media, 35 ensuring that in-patients receive treatment that empowers them and gives effect to at least some autonomy would help reframe society’s image of the mentally ill from people who must be managed and controlled to other sick patients who must simply be treated, encouraging more people to seek early intervention for mental illness. Although Singapore’s Ministry of Health has shown a clear commitment to challenging existing stigmatization and discrimination of mental health in its National Mental Health Blueprint (2007-2012) and Community Mental Health Masterplan, Singapore has yet to achieve its aim for a society that is emotionally resilient and mentally healthy. Reform The Independent Review of the Mental Health Act 198336 conducted in 2018 focused on four areas for reform in the MHA. As identified above, it becomes clear the most pertinent and pressing criticisms applicable to the MHCTA are its focus on risk aversion and failure to recognize the importance of choice and autonomy for detained patients. Among the review’s multiple recommendations, a number can and should be applied to the MHCTA to address the aforementioned issues. On risk aversion, the review committee observed that the current threshold for risk is too low as ‘a person can be detained where it is ‘necessary for’ or ‘justified in the interests of’ the patient’s health or safety or

Gregory Tee Hng Tan, ‘Causes of stigma towards mental illness in Singapore – a qualitative inquiry’ (Singapore, November 2020) <[NovJa n]2021%20FA.pdf> accessed 28 March 2021 32 Charmaine Ng, ‘Many still steer clear of people with mental illness: Poll’ (The Straits Times, Singapore, 9 September 2018) <> accessed 28 March 2021 33 HM Government (2017) Modernising the Mental Health Act—final report from the independent review 59 34 Sainsbury Centre for Mental Health. Breaking the Circles of Fear: A Review of the Relationship Between Mental Health Services and African and Caribbean Communities (2002) 38 35 Gregory Tee Hng Tan (n 31) 36 HM Government (n 33) 31


Singapore Comparative Law Review for the protection of others’. 37 This is true for both the MHA and the MHCTA. The committee recommended that the MHA be more explicit in how serious or likely the risk of harm must be for people to be detained to raise the threshold for detention. 38 Doing so would provide clearer guidance to healthcare professionals conducting risk assessments and ensures there is a robust justification for the involuntary detention of patients. When applied alongside the recommendation for the MHA to focus more on the consequences of failing to detain the patient rather than whether they could pose a risk to others/themselves, the criterion for appropriate treatment tightens. Currently, the decision in Reid v Secretary of State for Scotland remains good law in holding that ‘appropriate treatment ranged from ‘cure’ to ‘containment’.’39 If reformed, treatment under detention must benefit the patient more than failing to detain them would; detention must be purposeful, so the breach of autonomy is justified in the patient’s interests above all else. In light of how discretionary risk assessments are in practice, a patient-centric focus for admission may be paternalistic, but it places the patient’s wellbeing as a priority. Should the MHCTA be reformed in light of the aforementioned recommendations, the lack of an existing appropriate treatment criteria would become irrelevant as the effect of treatment under detention and the patient’s wellbeing is pushed to the forefront of their detention. Although the police may still be able to arrest individuals under the Act, the healthcare professionals assessing them would act as a strong barrier to detention if they focused on the treatment’s effect on the patient and risk were more strictly defined. On promoting choice and autonomy, the review committee have suggested a framework for treatment decision-makers to allow for certain circumstances where treatment decisions under the MHA can be overruled.40 Specifically, the review committee has suggested that patients be allowed to request a Second Opinion as soon as the treatment plan is finalized. Additionally, patients should be able to challenge a treatment decision in court. In relation to the MHCTA, setting up either a Mental Health Tribunal or allowing treatment decisions and their detention to be challenged in court would empower patients to better understand the reasons for their detention and make their case as to their preferences and desires. Having a voice is incredibly important in influencing the experience of detention for patients and making treatment more effective. When the inpatient’s detention is favourable, there is evidence of ‘improving patient outcomes.’41 Conclusion By applying the criticisms and suggested reforms of the Independent Mental Health Review 1983 to the MHCTA, the effectiveness of the legislation in treating mentally ill patients will be bolstered while alleviating the stigma of mental illness generally. Above all else, the aim of reform for the MHCTA should be to ensure that the provisions do not contribute to the existing image of mentally ill people as a nuisance or danger to be sectioned off from the rest of society, especially as Singapore aims to build a society that seeks to destigmatise mental illness and provide overall better mental health treatment services. Increasing the availability and accessibility of mental health services will only be effective if the community wants to use them, and the continued treatment and presentation of the mentally ill as dangerous may strongly discourage them from seeking help. By focusing less on risk as a determinant of detention and reframing the language of the MHCTA to place the in-patient’s wellbeing and treatment at the forefront, the MHCTA would secure its place as a piece of healthcare legislation coherent with Singapore’s wider healthcare system’s respect for patient autonomy.

HM Government (n 33) 110 ibid 107-113 39 Ogunwale (n 19) 40 HM Government (n 33) 74-76 41 Syed Ferhana Akther et al (n 24) 37 38


Singapore Comparative Law Review

The law as David’s stone against Goliath: the worker’s predicament in the UK and Singapore Chloe Choo Introduction The imbalance of power between employee and employer has and will always be a universal conundrum, yet some countries have attempted to bridge the gap by narrowing the broad concepts of ‘employee’ and ‘independent contractor’ with the introduction of a middle category – the worker. This is particularly relevant in light of COVID-19 and the digital age, as the norms of the average worker are shifting. Increased atypical workers, changing working environments and greater reliance on technology begs the question of whether Singapore and English statutory protection has advanced with the times. 1 At the same time, while many other countries need only concern themselves with the concept of workers, Singapore has an additional category to protect – foreign workers, particularly those holding on to work permits, working in construction, marine and process (CMP). Not only did COVID-19 shed light on the importance of technology during a global pandemic, but it also revealed the lack of statutory protection afforded to this category of workers. This essay will consider the statutory protection for workers afforded under the jurisdictions of Singapore and the United Kingdom, and how far the worker should be protected, given Singapore’s absence of a ‘worker’ category and lack of protection for foreign domestic workers. As of December 2020, the foreign workforce consists of 1.2 million people, yet the statute provides them with significantly less accessible rights compared to a local worker. 2 The fact that we can observe the shortfalls of Singapore’s labour law exemplifies how precarious the job security is for a foreign employee. The imbalance of power is akin to the biblical tale of David and Goliath, with workers being in a similar position to David against seemingly giant employers with Goliath-like strength, and this essay will question whether the law can fulfill its role as David’s stone, protecting the vulnerable employee in times of disputes. Definitions and distinctions The employee is defined in both the English and Singaporean jurisdiction to mean a person under a ‘contract of service’. 3 The common law tests for both jurisdictions are also similar, typically considering the main factors of personal service, 4 control, 5 and mutuality of obligations. 6 Failing to satisfy these employee requirements in Singapore would result in one being an independent contractor. In the UK, however, there is a safety net category of the worker before one is deemed an independent contractor. The key distinctions between the two jurisdictions are the worker category in the UK, and the particularly distinct presence of migrant workers in Singapore. The worker is defined in the Employment Rights Act Uber BV v Aslam [2021] UKSC 5. Ministry of Manpower Singapore, Foreign workforce numbers <> accessed 5 June 2021. 3 Employment Act 1968 s 2(1). 4 Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51, [78]. 5 Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance [1968] 2 QB 497, 515 C . 6 Carmichael v National Power Plc [2000] IRLR 43, 47. 1 2


Singapore Comparative Law Review 1996 as having a contract of employment contracted 7 to perform personally, 8 and generally does not market his services independently 9 or is hired by the employer as a necessary part of the operations. 10 A migrant worker is generally defined as a person engaged in a remunerated activity in a state of which he is not a national. 11 UK’s labour law English jurisdiction first dabbled with the category of workers in 1992 with the Trade Union Legislation, which widened the applicability of the Equality Act. The worker’s presence was then firmly established in the Public Interest Disclosure Act 1998 and National Minimum Wage Act 1998, in order to cover the middle ground on the ‘binary divide’12 of independent contractor and employee. The need for a worker category was further enhanced by the strict employee test, making it difficult for some to even be considered an employee, let alone atypical or ‘limb b’ workers to be protected by statute. Today, following the development of the law, workers are now able to receive protections and benefits such as discrimination, minimum wage, unlawful deduction of pay etc. 13 The monumental case of Uber v Aslam illustrated how Uber drivers would satisfy the test. 14 This case was a focal symbol of how the English common law is increasingly protective of workers against giant conglomerates. In Uber, the main dispute surrounded the question of whether these drivers were workers and therefore entitled to the statutory benefits, or performed services as independent contractors, using Uber and its app as their booking agent. If it was found that they were indeed workers, the next question to ask is whether they started work once logged into the app, or during passenger trips. The Supreme Court considered the factors of Uber’s dictation over remuneration, 15 terms, 16 acceptance rate, 17 delivery of services 18 and communication between driver and passenger 19 inter alia. Upon consideration of these factors, the Supreme Court dismissed Uber’s appeal and found that Uber drivers were indeed workers and that their working time started the moment the app was turned on. While this claim was in favour of Uber drivers, it still should be noted that the finding was based on the facts of the case that were very specific to the contractual agreements and technicalities of the app between Uber and those hired. Conversely in IWGB v Deliveroo, 20 the riders were not found to be workers, particularly due to the fact that they were able to find substitutes even where they could perform their services. Nevertheless, Uber v Aslam illustrates English law’s increasingly open view to protection for workers, especially in light of the growing gig economy and prevalence of co-operations attempting to exploit the imbalance of bargaining powers between employer and worker. Employment Rights Act s 230(3). Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51. 9 Clyde and Co LLP and another v Bates van Winkelhof [2014] UKSC 32 , [32] . 10 Hospital Medical Group v Westwood [2012] EWCA Civ 1005, [18]. 11 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Office of the United Nations High Commissioner for Human Rights, Adopted by General Assembly Resolution 45/158 of 18 December 1990. 12 Jeremias Adams-Prassl, “Pimlico Plumbers, Uber Drivers, Cycle Couriers, and Court Translators: Who is a Worker?” (2017) Oxford Legal Studies Research Paper No. 25/2017, <> accessed 13 March 2021. 13 'Employment Status' (GOV.UK) <> accessed 13 March 2021. 14 Uber BV v Aslam [2021] UKSC 5. 15 Ibid, [94]. 16 Ibid, [95]. 17 Ibid, [97]. 18 Ibid, [98]. 19 Ibid, [100.] 20 Independent Workers' Union of Great Britain (IWGB) v RooFoods Ltd. T/A Deliveroo 2016 TUR1/985. 7 8


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The English jurisdiction has recognised the changing labour landscape. In the UK, close to 30% of the labour market are part-time or temporary workers. 21 Moreover, with the growth of the gig economy, such workers are ever more prevalent. Such a development in the law is highly beneficial for the labour force, affording greater protection to the more vulnerable party in the relationship between David and Goliath. Singapore’s labour law While the UK has seemingly progressed in its employment protection laws, Singapore remains indignant to the changing labour market, retaining the two separate categories of employee and independent worker. Further, it is worth considering how the statutory protection afforded to the category of migrant workers may be insufficient. Absence of worker category

Singapore relies on a similar multi-faceted test to the UK to determine employee status. In the 2019 case of Public Prosecutor v Jurong Country Club, 22 a dispute arose surrounding whether a Mr. Yusoff was an employee at the Country Club for the purposes of receiving Central Provident Fund (CPF) contributions, along with other statutory employee benefits. The High Court reversed the District Judge’s decision and found that he was indeed an independent contractor. Applying the multi-factorial approach, this conclusion was reached after considering the three main factors of control, personal service, and mutuality of obligations, as well as various additional factors such as renegotiation of contract, commission and working benefits. Yet, factors that the District Judge found to have amounted to employee status, the High Court deemed ‘neutral factors’23 that should have been ‘properly contextualised’. 24 Despite the key factors of control, personal service and mutuality of obligations largely being satisfied, the High Court saw these as merely neutral, and not determinative 25 to either employee or independent contractor status. Instead, they focused on the additional factors, such as Mr. Yusoff and the Country Club renegotiating his contract yearly suggesting the ambiguous duration of employment, 26 him being paid largely by commission 27 and an absence of benefits enjoyed. 28 He was also seen to have not been subject to particular employee regulations of using the gym after working hours. In consideration of these factors, the High Court found him to be an independent contractor rather than an employee. This decision is problematic and hypothetically, if there were to be a worker test in Singapore, it is highly likely that Mr. Yusoff would have at least met the criteria for worker status. If the multi-faceted approach is generally seen as the main approach to find employee status, it is questionable how one is denied the status and satisfying the requirements are seen as neutral factors. Understandably, it has been established that there is no fixed test to determine employee status, and an

'Labour Market Overview, UK - Office For National Statistics' (, 2021) < uklabourmarket/february2021#labour-market-data> accessed 13 March 2021. 22 Public Prosecutor v Jurong Country Club [2019] SGHC 150. 23 Ibid, [93]. 24 Ibid. 25 Ibid, [77]. 26 Ibid, [81]. 27 Ibid, [83]. 28 Ibid, [88]. 21


Singapore Comparative Law Review overview of the facts should be considered to find the reality of the situation. 29 Hence, it is accepted that the court should look at all the factors before them in deciding employee status. Yet, the fact that there was indeed mutuality of obligations and personal service provided, two critical factors of the test that are generally difficult to satisfy, finding him to be an independent contractor seemingly negates previous case law. Moreover, several points raised in the judgement are worth discussing. The High Court judge set the threshold high for one to be found an employee, requiring a ‘clear indica… proven beyond reasonable doubt’.30 This is a similar threshold required in criminal proceedings. It is questionable why the standard to which a labourer has to meet is equivalent to the standard the prosecution has to prove before the alleged committer of crime is indicted. Furthermore, whilst the High Court noted that Mr. Yusoff failed to raise issue with the nature of his recontract post-1998, whereby his status was an employee before, this further begs the question of whether laypeople are aware of their statutory rights as an employee. Amending one’s employee status from employed to self-employed brings about greater benefits for the employer. The fact that Mr. Yusoff agreed to the terms on the basis of a salary increase suggests the difference in knowledge between employer and employee, further supporting the argument of the law’s role in bridging this imbalance between employer and employee. Protection for migrant workers On top of Singapore’s jurisdiction already taking a firm approach on employees, another group of workers receive less statutory protection. During the COVID-19 pandemic, the protection afforded to foreign domestic workers, particularly permit-holding migrant workers in Singapore, garnered significant media attention, both domestically and abroad. 31 In a joint statement by two non-governmental organisations (NGOs) Humanitarian Organisation for Migration Economics (HOME) and Transient Workers Count Too (TWC2), 32 the organisations condemned the new Employment of Foreign Manpower (Work Passes) Regulations for only permitting workers to leave the accommodation with the employers’ ‘consent’, deeming it ‘almost unfettered power over the workers’ movement’. 33 Around 30 individuals have been affected by the regulations as of July 2020, just one month after the new law was implemented. 34 Additionally, the statement probes at the issue of these workers seeking external help. It is questionable whether access to justice for migrant workers is sufficiently provided, and even then, given the imbalance of power between employee and employer, a migrant worker might be further disincentivised to bring his employer to court. This is especially so given that such a dispute would be taking place in a foreign jurisdiction for the worker, and the worker has already paid a hefty sum of agency fees to work in Singapore, Autoclenz Ltd v Belcher [2011] UKSC 41. Ibid, [93]. 31 Yvette Tan, 'Covid-19 Singapore: A ‘Pandemic Of Inequality’ Exposed' (BBC News, 2020) <> accessed 13 March 2021. 32 'Response To Post-Circuitbreaker Amendments To The Employment Of Foreign Manpower (Work Passes) Regulations — HOME & TWC2 — HOME' (HOME, 2020) <> accessed 13 March 2021. 33 Employment of Foreign Manpower (Work Passes) Regulations 2012 Fourth Schedule, Part III. 34 Chai Chin Neo, 'New Laws In Singapore Appear To Give Employers ‘Almost Unfettered Power’ Over Migrant Workers’ Movements, Say Ngos' (Eco-Business, 2020) <> accessed 13 March 2021. 29 30


Singapore Comparative Law Review reaching $12,000 in some cases. 35 Whistleblowing on the part of the employee would also very likely amount to a termination of his Work Permit and subsequently his employment. In a research report conducted in 2017, migrant interviewees raised repatriation as a very real and prevalently occurring threat.36 These two categories of workers showcase an unfortunate lack of labour protection under Singapore’s jurisdiction and government. Should Singapore implement the worker test? Despite the shortfalls of the existing law, it is arguable whether there is sufficient need for the worker test to be implemented. On the surface, considering how it opens up more ways for workers who may not necessarily fit the conventional box of employee to be afforded some sort of job security and employment benefits, it is an avenue of law that is worth considering. This is especially so given that there has been an increase in the labour market of casual workers. In a 2018 Channel News Asia article, 37 it was reported that fresh graduates are choosing jobs in the gig economy over an orthodox path of an office job, given that the starting pay is seemingly higher. As of September 2020, there were around 25,000 private-hire drivers in Singapore. 38 In light of Uber v Aslam, while there has yet to be such a dispute over worker rights arising in private-hire arrangements, having a worker category in Singapore could alleviate some worries of job insecurities that such casual workers may have. This is particularly so, considering how an independent contractor enjoys marginal statutory benefits. In comparison, a worker in the UK is covered under several bodies of law, such as the National Minimum Wage Act 199839 and Working Time Regulations 1998. 40 Alternatives to the worker test At the same time, a worker test may not be necessary in Singapore’s jurisdiction. For one, the local jurisdiction seems more willing to find employee status as compared to the English courts. Comparing the two cases of Kureoka Enterprise v CPF Board 41 and Quashie v Stringfellow Restaurant, 42 hostesses of a lounge were held to be employees in Kureoka despite being labelled as freelance hostesses. On the other hand, in Quashie, a dancer at a nightclub who worked based on a roster was not an employee, or worker, due to the amount of control she had over the job. This was in spite of her payments on the job being in the form of vouchers that could be exchanged with her employer for real cash.

Nabilah Awang, '‘I Spent Nothing On Myself For 5 Years’: Rights Group Urges Slashing Of Recruitment Fees That Burden Migrant Workers' (TODAYonline, 2021) <> accessed 13 March 2021. 36 Tamera Fillinger, Nicholas Harrigan, Nicholas Chok and others, “Labour protection for the vulnerable: An evaluation of the salary and injury claims system for migrant workers in Singapore” (2017) Research Collection School of Social Sciences, Research Paper No. 2217, < > accessed 13 March 2021. 37Adrian Tan, 'Commentary: Driving A Grab Full-Time Right After Graduation. Should You Do It?' (CNA, 2019) <> accessed 13 March 2021. 38 Clement Yong, 'New Private-Hire Drivers Must Be Singaporean, Aged 30 And Above' (The Straits Times, 2020) <> accessed 13 March 2021. 39 National Minimum Wage Act 1998 S 1(2). 40 Working Time Regulations 1998 Part I Reg 2. 41 Kureoka Enterprise v CPF Board [1992] SGHC 113. 42 Quashie v Stringfellow Restaurants Ltd 2012 EWCA Civ 1735. 35


Singapore Comparative Law Review Moreover, in cases where the worker test has been relied on such as in Carmichael v National Power 43 and O’Kelly v Trusthouse Forte Plc, 44 worker status was not found because mutual obligation was lacking. This then begs the question of the purpose of the worker test in the UK, if similar requirements are to be met for both employee and worker status. As Prassl argues, ‘one-size-fits-all solutions are thus unlikely to achieve their regulatory goals’. 45 Instead of focusing on labels and statutory benefits, one thing that the local government has done favourably was the promotion of maximum employability within the workforce through SG SkillsFuture. In particular, 540,000 locals were able to benefit from the initiative during the COVID-19 pandemic in 2020. 46 This suggests that perhaps statutory protection in the form of an expanded category may not be the most practical solution for the sake of employees, but better equipping them with relevant skills in the unexpected event of a job vulnerability. Migrant workers At the same time, there still remains a pressing need for more to be done for Singapore’s migrant workers. With them making up 56% of the non-residential population in Singapore as of 2019, 47 the economic costs that come with providing a better environment and statutory protection will not only be beneficial for them, but as Tan asserts, would benefit the nation as a whole by maintaining it as an ‘attractive destination for both short- and long-term foreign manpower’. 48 Conclusion Following the unanimous decision of the Supreme Court in Uber v Aslam that the drivers qualified as workers, the UK courts have illustrated strong judicial reception to change in terms of liberating workers lawfully from conglomerate employers by looking past what was written in the contract and observing the reality of the relationship. It also illustrated the Court’s appreciation of the role of the law in protecting the employee or worker. Although on paper, this may have been a step forward for English workers, Singapore is arguably not far behind in terms of appreciating the changing landscape of orthodox employment. Nevertheless, the introduction of a worker category brings greater boon than bane as it would permit greater protection for the labour force and bridge the imbalance of power between worker and employer. With regards to migrant workers, understandably, employers prioritise profits. This unfortunately has resulted in the inadequacies raised above, which has reached global media and may negatively impact the impression that the local workforce gives to other nations in the matters of foreign labour rights. New laws have to be implemented for the sake of increasing welfare for the foreign workforce, and non-profit organisations such as Covid-19 Migrant Support Coalition (CMSC) cannot solely be relied on. Immediate protection could be enforced, and accessible helplines should be introduced.

Carmichael v National Power Plc [1999] 1 W.L.R. 2042. O'Kelly v Trusthouse Forte Plc [1984] Q.B. 90. 45 Jeremias Adams-Prassl, “Pimlico Plumbers, Uber Drivers, Cycle Couriers, and Court Translators: Who is a Worker?” (2017) Oxford Legal Studies Research Paper No. 25/2017, <> acccessed 13 March 2021. 46 Jolene Ang, '540,000 Singaporeans Benefited From SkillsFuture Initiatives In 2020' (The Straits Times, 2021) <> accessed 13 March 2021. 47 Eugene K B Tan, 'Time For Singapore To Address Some Uncomfortable Questions On Its Migrant Workers' (TODAYonline, 2020) <> accessed 13 March 2021. 48 Ibid. 43 44


Singapore Comparative Law Review In sum, more can definitely be done for Singapore’s labour force. While it may not necessarily need to follow exactly in the footsteps of the English approach, it should nevertheless provide greater aid to David in his combat with Goliath.


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Singapore Comparative Law Review

PART D: Private Law


Singapore Comparative Law Review

The nuisance of the Rylands v Fletcher rule: why the foreseeability element positions the rule as a sub-species of nuisance Chow Yun Kei Introduction The elements of the Rylands v Fletcher rule have been debated since its establishment in the seminal English case in 1868.1 Common law jurisdictions abroad have struggled to apply and clarify the rule, especially regarding its relationship (or lack thereof) with the tort of nuisance. In 2019, the Singapore Court of Appeal (‘SGCA’) handed down the judgement in Pex International Pte Ltd v Lim Seng Chye,2 clarifying the role of the Rylands v Fletcher rule in Singapore law. In upholding the High Court’s judgement which found the defendant liable under the Rylands v Fletcher rule, the SGCA aligned the foreseeability element of the tort of nuisance with the Rylands v Fletcher rule. This article serves to analyse Pex International and the SGCA’s commentary on the role of the Rylands v Fletcher rule in Singapore law. It will be argued that the SGCA was correct to align the rule with principles of nuisance, and in doing so, helped to clarify the rule’s applicability in Singapore law despite the uncertainty that remains in English law. It is furthermore argued that the SGCA should have gone beyond its mere suggestion by making a definite statement that the Rylands v Fletcher rule is to be treated as a sub-species of the tort of nuisance. This claim is supported by the development of the rule in English and Singapore law. Part 1 canvasses Pex International and critical aspects of the judgement on the role that nuisance and subsequently the Rylands v Fletcher rule play in Singapore law. Part 2 evaluates the origin of the Rylands v Fletcher rule. Part 3 canvasses whether the rule can be treated as simply analogous to nuisance. Finally, part 4 returns to Pex International to argue why it should not be treated as analogous, and rather as a sub-species of nuisance in line with the SGCA’s decision. Part 1: Pex International and the rule of foreseeability in nuisance The case concerned a fire originating from the defendant’s factory, a piece of property which adjoined the claimant’s office and store house. The SGCA dismissed the defendant’s appeal on the basis that the sparks arising from the defendant’s construction had escaped onto the claimant’s neighbouring land. The defendant was held liable under the Rylands v Fletcher rule as the hot works producing the sparks amounted to ‘an escape of a dangerous object…and…the loss was not too remote as the type of harm was foreseeable’.3 The claimant brought claims under negligence, nuisance and the Rylands v Fletcher rule. The High Court judge rejected the claim in negligence and a non-delegable duty, but the claims under nuisance and the Rylands v Fletcher rule were accepted as the elements of unreasonable use of land and reasonable foreseeability had been established. The ruling was affirmed on appeal, but the SGCA additionally sought to clarify the approach to foreseeability in Singapore tort law. Whilst much of their discussion revolved around the relevant foreseeability rule in nuisance, much of that discussion became relevant to the subsequent assertion that the same principles applied to the Rylands v Fletcher rule.

1 2 3

Rylands v Fletcher (1865-66) L.R. 1 Ex. 265. [2019] SGCA 82. ibid [70].


Singapore Comparative Law Review Foreseeability: Risk vs Type of Harm The SGCA’s judgement, handed down by Steven Chong JA, began with a careful examination of the established distinction between foreseeability of the type of harm and foreseeability of the risk of harm. The former operates in the general consideration of liability. It is relevant to the question of remoteness (ie. whether the defendant’s liability extends to the type of damage suffered) in both negligence 4 and in nuisance. 5 The latter is the foreseeability requirement considered in negligence – whether the defendant breached their duty of care by taking a risk that would foreseeably cause harm. Such a foreseeability requirement is not present in the tort of nuisance as it applies the ‘reasonable user’ principle instead of the duty of care principle in negligence. 6 As Pex International concerned claims under both negligence and nuisance (not uncommon to bring both claims), it was critical for the SGCA to distinguish these differing foreseeability elements within each claim when determining the defendant’s appeal. Applying the distinction in Pex International The SGCA recognised two approaches that English law had taken towards the element of foreseeability of the risk of harm in the tort of nuisance. The first arose from Lord Hoffman’s judgement in Transco plc v Stockport MBC, 7 a case concerning the Rylands v Fletcher rule. He wrote: Rylands v Fletcher…was therefore an innovation in being the first clear imposition of liability for damage caused by an escape which was not alleged to be either intended or reasonably foreseeable.8 Therefore, the SGCA took the first approach as one which argues that ‘foreseeability is generally relevant in determining whether liability in nuisance is established’. 9 The second approach was propounded by Lord Goff in Cambridge Water, another case concerning both torts of nuisance and the Rylands v Fletcher rule. Lord Goff, writing the sole judgement in the House of Lords: ‘settled the law to the effect that foreseeability of harm [of the relevant type] is indeed a prerequisite of the recovery of damages in private nuisance’. 10 Therefore, the SGCA framed the second approach such that ‘foreseeability of the risk of harm is not generally relevant in establishing liability’.11 The SCGA opted for the second approach for three reasons. First, it made distinct the separate torts of nuisance and negligence which serve to protect different interests. Negligence is focused on penalising the defendant’s fault, where foreseeability of the risk of harm is critical in determining whether the aforesaid duty of care has been breached. Nuisance serves to vindicate the claimant’s property interest in not being affected, balanced alongside the defendant’s property right to use their land in the way they wish – hence the ‘reasonable user’ principle. Second, the chosen approach provides a better reflection on established nuisance principles. Where defendants have foreseen a risk of harm but have acted as a ‘reasonable user’, courts have not found them liable under nuisance. The SGCA highlighted Spicer v Smee12 as an example.

Hughes v Lord Advocate of Scotland [1963] AC 837. Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264. 6 ibid 299. 7 [2003] UKHL 61. 8 Pex International (n 2) [52] (emphasis added). 9 ibid (emphasis added). 10 Cambridge Water (n 5) 301. 11 Pex International (n 2) [53] (emphasis added). 12 Spicer v Smee [1946] 1 All ER 489. 4 5


Singapore Comparative Law Review Finally, Singapore’s land-scarce environment has made critical the judicial role to protect property owners’ rights against nuisances. The absence of a ‘foreseeability in the risk of harm’ requirement purports a stricterliability approach embraced by Singapore courts in this urban context. Taking this to be Singapore law’s position on the foreseeability element in nuisance claims, the SGCA proceeded to hold that this second approach then applied to Rylands v Fletcher rule as ‘the English authorities are united in the view that the rule in Rylands v Fletcher is a sub-species of the tort of nuisance’.13 The strength of this claim will subsequently be analysed. Part 2: The Rylands v Fletcher Rule In Rylands v Fletcher, the defendant mill-owner had erected a reservoir on their land for the storage of water. The claimant was a lessee of nearby, although not adjoining, land, who suffered extensive damage to the mines on his land by the burst of water coming from the defendant through the mine shafts. In 1876, the position of the law on nuisance was that a claim could not be brought on this isolated escape of water. Furthermore, because the flooding was ‘direct and immediate’, the claimants could not bring a claim in trespass in land. Yet, the courts believed that the damage suffered should render the defendant liable in some form. Blackburn J of the Court of Exchequer Chamber in a judgement generally accepted by the House of Lords upon appeal (with the addition of a ‘non-natural user of land’) established the test: [T]hat the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.14 Importantly, the question of the foreseeability element was not canvassed in the case arguments. However, there is a strong strict liability aspect to the rule as highlighted by the phrase ‘prima facie answerable’ – Blackburn J’s statement demonstrates the wide scope afforded to strict liability regimes at the time, where strict liability was preferred over negligence liability. Justifying its existence However, given that modern English common law has shifted its focus towards the negligence doctrine, the preservation of the Rylands v Fletcher rule seems anomalous – exactly what other common law jurisdictions struggle to reconcile.15 In England even, the notion of strict liability is understood not as a judicial creation but one that should be developed by Parliament. As versed by Lord Goff in Cambridge Water: [A]s a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the courts. If such liability is imposed by statute, the relevant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidence and scope of such liability.16

Pex International (n 2) [66]. Rylands v Fletcher (n 1) 279 (emphasis added). 15 Note Australian law which has subsumed the Rylands v Fletcher rule into the tort of negligence. 16 Cambridge Water (n 5) 305. 13 14


Singapore Comparative Law Review As such, it is clearly accepted that the Rylands v Fletcher rule is to be preserved in a context where its predominant aim is no longer applicable. This is furthered by Read v J Lyons & Co. Ltd17 where the House of Lords held that not all ‘ultra-hazardous’ activities brought about liability, only where there had been an escape from land controlled by the defendant. Cited by Lord Goff in Cambridge Water, Professor Fleming has commented that Read has ‘prematurely stunted the development of a general theory of strict liability for ultra-hazardous activities’.18 Therefore, if the preservation of the Rylands v Fletcher rule cannot be justified on its original basis as a general strict liability doctrine, it must either (1) be accepted as an analogous rule, or (2) be subsumed within the tort of nuisance. It is argued that the latter is best. Part 3: Rylands v Fletcher as an analogous rule The SGCA in Pex International did not fully consider the possibility of the Rylands v Fletcher rule as a separate tort. That seems right, as such an attempt would only bring greater confusion to the law in expanding judicial debate on the elements of the tort, especially in light of the prevailing confusion as to whether there is a foreseeability element. It is argued that the difficulty in determining this requirement justifies treating it as part of the tort of nuisance. This was the approach taken by Lord Goff in Cambridge Water. Foreseeability: Cambridge Water In Cambridge Water, the defendant had used a chlorinated solvent which had seeped into the ground in small quantities over a period of time, rendering the claimants’ water for domestic distribution unfit for consumption and use. The House of Lords allowed the defendant’s appeal on the basis that the seepage of solvent into the ground was unforeseeable under both nuisance and the Rylands v Fletcher rule. After establishing that foreseeability of the relevant type was requisite in nuisance claims (quoted above), Lord Goff continued: [Q]uite apart from the indications to be derived from the judgment of Blackburn J. in Fletcher v. Rylands, L.R. 1 Ex. 265 itself, to which I have already referred, the historical connection with the law of nuisance must now be regarded as pointing towards the conclusion that foreseeability of damage [of the relevant type] is a prerequisite of the recovery of damages under the rule. 19 The quote highlights three aspects of the Cambridge Water imposition of a foreseeability requirement on the Rylands v Fletcher rule: (1) Blackburn J alluded to such a foreseeability requirement in Rylands v Fletcher itself, (2) the Rylands v Fletcher rule possesses a ‘historical connection’ with the tort of nuisance, and (3) as a result of point 2, foreseeability of damage of the relevant type is required to succeed in a claim under the Rylands v Fletcher rule. However, this approach to the foreseeability requirement has been challenged by subsequent cases, which may lend support to the opposing claim that the Rylands v Fletcher rule should be accepted and treated as analogous. Foreseeability: Transco Plc The SGCA in Pex International struggled with reconciling Lord Goff’s clear statements on the foreseeability requirement for nuisance and on the Rylands v Fletcher rule in Cambridge Water with the obiter dicta in a subsequent House of Lords case – Transco plc. This case concerned the claimant’s installation of a gas main along a disused railway line and nearby, the defendant authority owned land upon which a tower of flats [1947] AC 156. Cambridge Water (n 5) 304. 19 Cambridge Water (n 5) 304 (emphasis added). 17 18


Singapore Comparative Law Review was constructed, water being supplied to the flats through a pipe the defendant authority had constructed. A few decades after the installation of the gas main, without negligence on the defendant’s behalf, the water pipe burst, large quantities of water escaped, and the claimant had to undergo emergency repairs to its gas main that had been exposed and unsupported. The discrepancies within the Transco Plc judgements have caused much difficulties. At paragraph 33, Lord Hoffman wrote: [T]he novel feature of Rylands v Fletcher was to create liability for an ‘isolated’ (i.e. unforeseeable) escape. But the rule was nevertheless founded on the principles of nuisance and should not otherwise impose liability for unforeseeable damage. 20 Per this statement, it seems that Lord Hoffman is making the correct distinction between (1) an unforeseeable escape (due to the risk of the escape) and (2) foreseeable damage of the type that may arise should the unforeseeable escape occur. However, earlier at paragraph 27, Lord Hoffman defined the Rylands v Fletcher rule by distinguishing it from the tort of nuisance: Rylands v Fletcher (1868) L.R. 3 H.L. 330 was therefore an innovation in being the first clear imposition of liability for damage caused by an escape which was not alleged to be either intended or reasonably foreseeable.21 In this excerpt, Lord Hoffman asserts two related claims: (1) claims in nuisance require proof of foreseeability of the escape – the reasonable foreseeability of the escape itself, and (2) Rylands v Fletcher is distinct from the tort of nuisance because foreseeability of the risk of escape is not required. They are both problematic in evaluating the argument that the Rylands v Fletcher rule is a sub-species of nuisance. Regarding the first claim, Lord Hoffman seems to have wrongly interpreted the type of foreseeability emphasised by Lord Goff in Cambridge Water – it is not foreseeability in the risk of the escape itself, but foreseeability of the type of escape. As for the second claim, distinguishing Rylands v Fletcher as an exception is not synonymous with the rule being a ‘sub-species’ of the tort of nuisance. In that regard, Lord Hoffman’s conflation of the two forms of foreseeability has clearly presented further difficulties as reflected by Pex International. This is further supported by the other dicta in Transco, where Lord Hobhouse noted that Lord Goff’s speech in Cambridge Water could be understood as conflating the two forms of foreseeability: Lord Goff saw [foreseeability of the type of harm] as a principle of the remoteness of damage but his reasoning is also consistent with it being part of the risk element in the tort. 22 The SGCA in Pex International was thereby confronted with this difficulty of reconciling English authorities. Remaining confusion on the relevant test of foreseeability for Rylands v Fletcher – Northumbrian Water [2014] In Northumbrian Water,23 the defendant failed to identify in its investigations obstructions underground that would interfere with the redevelopment works that were being undertaken, resulting in concrete escaping into the sewer and blocking it. In dismissing the claimant’s appeal on the basis that the defendant had acted

Transco (n 7) [33] (Lord Hoffman). ibid [27] (Lord Hoffman) (emphasis added). 22 ibid [64] (Lord Hobhouse). 23 [2014] EWCA Civ 685. 20 21


Singapore Comparative Law Review as a reasonable user by comprehensive assessment of the sewage system, Moore-Bick LJ of the Court of Appeal also made comments regarding the Rylands v Fletcher rule. In the same fashion as Lord Hoffman in Transco, he defined the Rylands v Fletcher rule by distinguishing it from the tort of nuisance: [Since Transco,] unless the case can be brought within the scope of the rule in Rylands v Fletcher, the defendant is not liable for damage caused by an isolated escape, i.e., one that is not intended or reasonably foreseeable.24 It is clear how Lord Hoffman’s interpretation persists in English law, lending support to the concept that the Rylands v Fletcher rule is anomalous of its own. This interpretation conflicts with Cambridge Water and diminishes Lord Goff’s attempt to harmonise the tort of nuisance and the Rylands v Fletcher rule, especially in relation to the foreseeability element. However, this is argued to be a misinterpretation of the law, rather much like the SGCA in Pex International decided, the Cambridge Water approach is to be preferred. Beyond Foreseeability The absence of complete judicial alignment of foreseeability in nuisance and in Rylands v Fletcher is not the only incompatibility established thus far between the two torts. In Halsey v Esso Petroleum Co Ltd,25 Veale J in the Queen’s Bench Division ruled that the Rylands v Fletcher rule was applicable in the case of smuts that had spilled onto ‘a motor car on the street’.26 The issue with such a finding is that the claimants were entitled to recover damages to chattels they did not occupy. This aspect of Halsey has not been explicitly overruled, and while it could represent the distinctiveness of the Rylands v Fletcher rule as opposed to nuisance’s focus on injury to the land, it is more likely that this ruling is an incorrect characterisation of the law. Furthermore, in the original application of the Rylands v Fletcher rule, it operated as a remedy even for physical injury. 27 However, as Cambridge Water and Transco plc have clearly stated, Rylands v Fletcher is concerned with the protection of property rights. The basis of the tort of nuisance’s requirement that the damage must be relevant to the land should be just as applicable to that in the Rylands v Fletcher rule – if the escape is not infringing upon a proprietary right related to the land in question, then the argument of a proprietary basis for the Rylands v Fletcher reason is challenged, and unlikely to be done so successfully simply on this one basis. Part 4: The Rylands v Fletcher as a sub-species of nuisance The stronger argument as to the true nature of the Rylands v Fletcher rule as it is preserved today is that the Rylands v Fletcher rule is a sub-species of nuisance. As pointed out by the SGCA in Pex International, English authorities are united in viewing the rule as such. 28 This was most notably affirmed in Transco by both Lord Bingham and Lord Walker.29 Although English law can no longer justify the Rylands v Fletcher rule on a general doctrine of strict liability, it would be limited to argue that the Rylands v Fletcher rule was always intended to be part of nuisance – the Court of Exchequer Chamber did not argue so in the original case. Therefore, as Choo Han Teck J held in Tesa Tape:

ibid [18]. [1961] 1 WLR 683. 26 ibid 692. 27 [1936] 1 All ER 557. 28 Pex International (n 2) [66]. 29 Transco (n 7) [9] (Lord Bingham) [92], [98] (Lord Walker). 24 25


Singapore Comparative Law Review [I am] persuaded to lean in favour of preserving the rule in Rylands v Fletcher as part of the tort of nuisance than to see it absorbed as part of the overladen and overworked tort of negligence…liability in negligence is naturally fault based whereas that is not so in all cases in nuisance, nor in Rylands v Fletcher…the concepts reasonable foresight and reasonable care in the law of negligence have already engendered much difficulty.30 As Choo Han Teck J implied in Tesa Tape, the preservation of the Rylands v Fletcher rule, if it is to be properly understood, is to subsume it within either negligence or nuisance – there is no consideration of letting the anomaly be preserved on its own. This would, as argued above, create further difficulty and uncertainty in its application. However, as noted in Tesa Tape,31 the SGCA would clearly not subsume the Rylands v Fletcher rule within the tort of negligence as is the case in Australian law.32 A ‘historic’ relationship with nuisance On the other hand, by subsuming the Rylands v Fletcher rule within the tort of nuisance, further clarity will be brought to its requirements. Such an approach is preferred rather than having it subsumed under negligence for the reasons provided above. Reconciling past cases which have applied the Rylands v Fletcher rule as anomalous33 remnants of the original conception of the Rylands v Fletcher as establishing a general strict liability rule, and slow development away from such a conception. The strength in the common law doctrine is that it is malleable in this regard – that the Rylands v Fletcher rule can be treated today as subsumed within nuisance to provide further clarity and certainty to the rule, without removing it entirely. One proposal may be that the best way forward is to get rid of the rule entirely. Yet, the respective decisions by the English and Singapore courts in Cambridge Water, Transco, Tesa Tape and Pex International are indicative that there is no intention to do so. As a result, if we are to retain the rule, the preferable approach is to focus on its clarification. Subsuming the Rylands v Fletcher rule within the tort of nuisance does not deny it of having no significance either. Dependent on certain facts, liability may nonetheless differ between the two torts. Perhaps most importantly, an ‘unreasonable user’ under nuisance is not necessarily a ‘non-natural user’ under Rylands v Fletcher. As Simon Deakin and Zoe Adams comment, ‘in nuisance, even ‘natural use’ may give rise to liability’34 as long as it is an unreasonable use in the circumstances. By implicitly accepting the subsuming of the Rylands v Fletcher rule in nuisance in Pex International, the SGCA was able to affirm the relevant foreseeability requirement and remove any prevailing confusion in this jurisdiction. As a result, the Rylands v Fletcher rule does not pose much of an anomaly under Singapore’s common law, existing independently when required. Furthermore, Pex International lays the groundwork of interpretation on the elements of the Rylands v Fletcher rule for future cases to follow, once again resolving any uncertainty about the rule with reference to nuisance. Much like Lord Goff commented in Cambridge Water:

[2006] SGHC 73 [8]. ibid. 32 Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42. 33 Schiffman v The Grand Priory of St John [1936] 1 All ER 557 where liability was found for personal injury on the Rylands v Fletcher rule and Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 (discussed above) are some examples. 34 Simon Deakin and Zoe Adams, Markesinis & Deakin’s Tort Law (8th edn, Oxford University Press 2019) 504. 30 31


Singapore Comparative Law Review It would lead to a more coherent body of common law principles if the [Rylands v Fletcher] rule were to be regarded essentially as an extension of the law of nuisance to cases of isolated escapes from land.35 In light of these benefits, it is thereby asserted that the SGCA should have gone further and stated explicitly that the Rylands v Fletcher rule is to be treated as subsumed within the tort of nuisance. Part 5: Conclusion In four parts, this article has evaluated the development of the Rylands v Fletcher rule by its background and in light of the SGCA’s recent ruling in Pex International. The SGCA’s need to clarify the law in light of conflicting English authority reflects the uncertainty that Pex International aimed to fix. It is argued they could have gone further, in explicitly holding that the Rylands v Fletcher rule is a sub-species of nuisance, and it is hoped that that direction will be clarified in the future.


Cambridge Water (n 5) 306.


Singapore Comparative Law Review

Rebuttable presumption of causation in non-custodial breaches of fiduciary duty - potentially too onerous? Edward Sim The role of causation in a breach of fiduciary duty has been complex and inconsistent. It is complicated by the different types of breaches, such as custodial and non-custodial breaches, and also their occurrence in ‘traditional’ or ‘bare commercial’ trusts. Furthermore, such breaches warrant differing liabilities. 1 In 2020, an enlarged quorum of five judges in the Singapore Court of Appeal (SGCA) clarified the role of causation in non-custodial breaches of fiduciary duty. In Sim Poh Ping, 1 the Court considered three approaches. Approach 1, where causation is not relevant once a breach has been established; Approach 2, where a claimant must always establish ‘but for’ causation; and Approach 3, a hybrid approach where the burden of proof is reversed, and the defendant has to prove the damage would have occurred in any event. The court chose Approach 3 for non-custodial breaches. It expressly declined to decide on custodial breaches since they did not arise on the facts of that case. It is important to be clear: Approach 3 still imposes a legal burden for the claimant to establish their claim. The rebuttable presumption applies only after the claimant has fulfilled this burden. In adopting Approach 3, the Court made a definitive shift away from the orthodox position in English Law. Thus, the settled position in Singapore is that when a claimant has successfully evidenced a breach of fiduciary duty and that a loss has been suffered, this creates a rebuttable presumption that the fiduciary’s breach caused the loss. The wrongdoing fiduciary can only rebut this presumption if they prove that the loss was inevitable even if there had been no breach. This essay discusses the seminal decision in Sim Poh Ping. In particular, two questions are addressed: 1) Is Approach 3 convincing? 2) Was the scope for application of Approach 3 too wide? I will first provide a summary of the prior positions in English and Singapore law regarding the general breach of fiduciary duties. Next, I will consider if the reasons adopting Approach 3 are defensible. Lastly, I will consider if the scope for Approach 3 was too wide. It is overall submitted that although most of its reasoning is welcomed, the Court should have been more cautious in expanding it to all ‘core’ breaches of fiduciary duties regardless of culpability or category of fiduciary obligations. Instead, the better approach should be to further limit Approach 3 where the fiduciary obligations are subjectively known to the defendants.

Previous positions on breaches of fiduciary duties in English law vs Singapore law A brief summary suffices as the SGCA extensively considered the topic in the Sim Poh Ping judgment. In English law, the trend is that an inquiry into causation is always relevant in cases of breaches of fiduciary duty. The burden lies on the claimant to prove causation. 2 The most relevant cases are Target Holdings3 and AIB.4 Both cases adopted a ‘but for’ test with regards to custodial breaches of trusts. Target Holdings was a case in which a solicitor had dispersed the client’s funds to the borrower before the mortgage was obtained. However, before the borrower defaulted, the mortgage was obtained, albeit belatedly. The claimant Sim Poh Ping V Winsta Holding Pte Ltd and another and other appeals [2020] SGCA 35. ibid. 2 ibid [180]. 3 Target Holdings Ltd v Redferns [1996] 1 AC 421. 4 AIB Group (UK) plc v Mark Redler & Co Solicitors [2015] AC 1503. 1 1


Singapore Comparative Law Review unsuccessfully sought to claim the value by which the mortgage had depreciated. By applying a ‘but for’ test, the court denied the claim, as the mortgage would have depreciated in any case. AIB involved similar circumstances with one important distinction. Unlike Target Holdings, the requisite security was never obtained. Similarly applying the ‘but for’ test, the court in AIB rejected the claim. It was held that even if the solicitors had performed their duties properly, the security would still have devalued In Singapore law, the position is more convoluted. In some instances, the Singapore courts have relied on Brickenden5 and attempted to segregate breaches of fiduciary duties by creating a class of breaches where Approach 1 applied. This was canvassed in QAM 6 by Vinodh Coomaraswamy JC (as he then was) as applying, at the very least, to a) a fiduciary in a well-established category of fiduciary relationships; b) who commits a culpable breach; and c) who breaches an obligation that stands at the core of the fiduciary relationship7. In other instances, the Singapore courts have applied Approach 3. The approach was first introduced in John While Springs 8 before being developed in a wide array of cases. The latest notable development was in MCH International,9 as decided in 2019. In MCH International, Thean J expressed in obiter dicta that it would have been appropriate to apply the ‘but for’ causation test to a defendant-director’s breach of not acting bona fide in the best interests of the company. 10

Reasons why the Singapore court decided on Approach 3 The Singapore court rejected Approach 1 because it exposed the wrongdoing fiduciary to too great a degree of liability to compensate the principal.11 In agreeing with Mummery LJ in Swindle,12 the court found that there should not be an ‘equitable by-pass of the need to establish causation’. The court rejected Approach 2 because the court felt the imposition of burden on the principal would have failed to give sufficient regard to the unique position of fiduciaries. 13 It was important that fiduciaries conducted themselves ‘at a level higher than that trodden by the crowd’. 14 In adopting Approach 3, the court relied on the precedents of the Singapore High Court (SGHC), such as the cases of John While Springs,15 QAM, 16 Beyonics Technology (HC)17 and Tongbao Shipping.18 However, the court also decided it to be necessary to depart from those precedents in one regard. In those precedents, it was still necessary for the principle to adduce some evidence connecting the breach and the loss. The court found that this was unsatisfactory because such evidentiary burden would be too vague to be a satisfactory test. Instead, in its adoption of Approach 3, it stressed that rebuttable presumption would apply even when the breach and the loss were separately proven. The court found that there were strong policy considerations favouring the adoption of Approach 3. Naturally, there is a need to balance between the interests of the principal and the interests of the fiduciary. Unlike Approach 2, which would have put dependent principal on the back-foot, Approach 3 ensures that Brickenden v London Loan & Savings Co et al [1934] 3 DLR 465. Quality Assurance Management Asia Pte Ltd v Zhang Qing [2013] 3 SLR 631. 7 ibid [56]. 8 John While Springs (S) Pte Ltd and another v Goh Sai Chuah Justin and others [2004] 3 SLR(R) 596. 9 MCH International Pte Ltd v YG Group Pte Ltd [2019] SGHC 43. 10 ibid [230-234]. 11 n (1) [238]. 12 Swindle v Harrison [1997] 4 All ER 705. 13 n (1) [239]. 14 Warman International Ltd v Dwyer (1995) 182 CLR 544 at 557. 15 n (9). 16 n (7). 17 Beyonics Technology Ltd v Goh Chan Peng [2016] 4 SLR 472. 18 Tongbao (Singapore) Shipping Pte Ltd v Woon Swee Huat [2019] 5 SLR 56. 5 6


Singapore Comparative Law Review the wrongdoing fiduciary has a ‘narrow escape path’. 19 The appeal is obvious – fiduciaries are relied upon by their principal to act in the latter’s best interests. At the same time, it would be contrary to basic equitable principles if a client can recover more than they had actually lost. 20 Approach 1 was rightly rejected by the courts. It is one thing for equity to demand the highest standards, and another to demand that equitable compensation could lead to inevitable losses being compensated. As a general principle, Equity is not a court of penal jurisdiction. 21Absent any unauthorised profits, a wrongdoing fiduciary should not pay for something the principal would inevitably suffer. Although we may be generally sympathetic to principals, it is important to caution against unreasonable behaviour by claimants. For instance, a claimant may secretly discover a breach of fiduciary duty, where a fiduciary may hold an investment as secure when it is actually highly speculative. It would be contrary to underlying characterisations of vulnerable and dependent principals to allow such parties to retain the investment in the belief that any loss would be borne by the wrongdoing fiduciary. 22 The rejection of Approach 1 coheres well with Professor Conaglen’s analysis 23 on the counterfactual analysis employed by the courts. Specifically, Equity is not penal insofar that it sanctions more than is needed either to give full compensation for loss or full disgorgement of gain. I would agree with Professor Conaglen that it is legitimate to ask why the fiduciary should not be able to prove that the principal would have consented even if the fiduciary had made full disclosure of the facts. It is important to stress that this analysis does not apply to recission and profit-stripping cases, but only in compensation cases. Further, as the court discussed the view of Professor Harder, 24 any concern that a fiduciary can escape liability may be addressed by way of interpreting Brickenden as an evidential rule. That is to say, Brickenden can be interpreted to exclude ‘speculation’. In addition, the evidential rule could include resolving any factual uncertainty against the fiduciary, seeing how their breach caused the uncertainty in the first place. Lastly, the court cites practical reasons for adopting Approach 3 instead of Approach 2. It is often the case that the fiduciary is in a better position to discover how the loss was caused, if at all. 25 Beyond the benefits of mere convenience, the information asymmetry creates difficulties in detection. It is therefore consistent for equity to disentitle an equitable wrongdoer from relying on the principles which limit the liability of a wrongdoer at common law.26 By extension, Approach 3 allows ‘vulnerable’ claimants to pursue claims more easily. Considering that the claimant is ‘especially vulnerable’ to the breach of fiduciary duty27, there are likely instances where a breach has occurred, yet a claim is not brought forward due to the formidable hurdle of the ‘but for’ test in Approach 2. However, one minor caveat exists. In commercial circumstances, it may be the case that both parties are typically more aware of their respective legal positions and risks, and will thus have better resources to undertake the cost and uncertainty in legal proceedings. So far, the aforementioned reasons for adopting Approach 3 are arguably welcome. The main difficulty arises when the scope of Approach 3 is considered. Here, the court referred to Coomaraswamy JC in his

New Zealand Court of Appeal decision of Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 at 687 (and approved of by Ribeiro PJ in the Hong Kong Court of Final Appeal decision of Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681 at [75]). 20 n (4), 436F. 21 Vyse v Foster (1872) LR 8 Ch App 309, 333. 22 Canson Enterprises Ltd v Boughton & Co [1991] 3 SCR 534, 555C. 23 Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 at [407], (2003) 56 NSWLR 298. 24 Sirko Harder, “Equitable compensation for a fiduciary’s non-disclosure and hypothetical courses of events” (2011) 5 Journal of Equity 22 at 26–27. 25 n (7), [59]. 26 ibid. 27 n (1), [246]. 19


Singapore Comparative Law Review QAM judgment. 28 As referenced earlier, there were three factors to consider before adopting Approach 1: 1) the fiduciary must be in a well-established category of fiduciaries, 2) who commits a culpable breach, and 3) who breaches an obligation which stands at the very core of the fiduciary relationship. Using QAM as reference, the Court decided to adopt Approach 3, instead of Approach 1. It did away from the first two requirements that Coomaraswamy JC canvassed, but added good faith as a core fiduciary obligation. With respect, I am uncertain if a strict test for a breach of duty necessitates an equally strict test for causation. The strict approach towards a breach of duty is predicated on preventing the fiduciary from acting in particular ways. However, this objective is compromised if a fiduciary has no subjective knowledge of their fiduciary duty. In Tan Yok Koon, 29 the court referred to Westdeutsche v Islington30, where there was the concern that an innocent recipient of money should not be subjected to the onerous consequences of trusteeship. Specifically, the court in Tan Yok Koon affirmed the criticism of Professor Burrows’ remarks, 31 which was that constructive trustees are not necessarily subject to the same fiduciary standards. Although these cases involved trusteeship, it was more fundamentally involved with the variant fiduciary standards. If the justification for finding fiduciary obligations was that such strict standards could be adjusted to the circumstances, it seems odd that the court should now think it apt to adopt an unwavering strict approach to causation. With respect, I think it would be a greater contradiction for the court to regard fiduciary duties as binary in terms of its standards. Instead, it would be more consistent and desirable to modify Approach 3 to require fiduciaries to possess subjective knowledge of their duties. Some commentators have criticised the demarcation in QAM. Tan Ruo Yu(‘TRY’)32 denies that a defendant who unexpectedly finds himself in a fiduciary capacity deserves to be treated more leniently. He denies such ‘leniency’, as it is implicitly involved when deciding to impose fiduciary obligations in the first place. However, as suggested earlier in Tan Yok Koon, fiduciary obligations cannot be seen in such binary functions. TRY also criticises the practical issue of defining what well-established categories of fiduciary relationships are. Instead, I think that if even courts struggle to delineate such fiduciary duties, it follows that the judiciary should tread carefully when imposing the highest standards of fiduciary obligations on unsuspecting individuals. Additionally, TRY expresses scepticism between the classification of a ‘culpable' breach as compared to a mere innocent breach of fiduciary duty. In Then Khek Koon,33 the defendants had failed to disclose their additional purchases from the other subsidiary proprietors. Coomaraswamy J looked favourably upon the fact that the defendants had sought and relied on their solicitors’ advice. TRY argues there is a plausible argument that such behaviour itself highlighted the defendants’ culpability. In light of such ambiguity, the better solution would be for the courts to require defendants to be subjectively aware of their fiduciary obligations. It is incoherent to adopt Approach 3 in circumstances where the fiduciary is unsuspecting. That would erode the practical benefits of preventing information asymmetry. In fact, in such circumstances, the information asymmetry may well be reversed, in which case, it would be prudent for the court to adopt Approach 2 instead. This is especially so in the context of non-custodial breaches, where it is more likely for unsuspecting fiduciaries to commit such breaches. In conclusion, Approach 3 is the most convincing in orthodox cases and should be adopted. However, the current scope of Approach 3 is too wide. By imposing Approach 3, regardless of the knowledge of fiduciaries, this approach imposes disproportionate burdens on them. Instead, where fiduciaries have no subjective knowledge of their fiduciary duties, Approach 2 should be adopted instead. The rebuttable presumption has merit, but such merit is circumstantial. By developing greater conceptual clarity on the

n (7), [57]. Tan Yok Koon v Tan Choo Suan [2017] 1 SLR 654, [194]. 30 [1996] AC 669. 31 ibid [200]. 32 Tan Ruo Yu, “Causation in Equitable Compensation: The Brickenden Rule in Singapore” (2014) 26 SAcLJ 724. 33 Then Khek Koon v Arjun Permanand Samtani [2014] 1 SLR 245. 28 29


Singapore Comparative Law Review rebuttable presumption, we would also have a better understanding on when such a burden is unnecessary and excessive.


Singapore Comparative Law Review

Reprogramming Copyright Law – Comparing the Copyright Regimes in Singapore and the United Kingdom and their application on AI-Generated Content Dominic Ko+

Introduction In the 2004 movie iRobot, Will Smith asks a robot the rhetorical questions “Can a robot write a symphony? Can a robot turn a canvas into a beautiful masterpiece?” The robot wittily responds, “Can you?” Decades back, technology creating art was the stuff of science fiction. However, at the turn of the millennium, there were numerous breakthroughs in the fields of robotics, computers, and artificial intelligence (‘AI’). Traditionally, robots were designed to operate remotely from humans. However, an interest in expanding AI kicked off a series of remarkable developments. Researchers began focusing on engineering robots that could interact and cooperate with humans as opposed to just taking orders from them. Increasingly, AI has been programmed for mass collection of raw data, processing them and aggregating it into databases. These data sets characterised by their size, complexity and rate of growth are known as ‘big data’, from which detailed insights can be derived to unlock enormous opportunities for individuals, corporations, and countries. These insights can be tabled and mined from a database or can be further extrapolated and used to produce original works. The relevant question is then - are there sufficient legal mechanisms for protecting databases and content generated by AI? This comparative essay focuses on comparing copyright regimes between Singapore and the United Kingdom and their application on AI-generated content. The approach both jurisdictions adopted to deal with authorship and originality issues will be evaluated. Additionally, it will be assessed if there should even be copyright protection for AI-generated works. It is hoped that this essay would call attention to the increasing prevalence of creative works involving new technologies and spotlight the need for Singapore’s framework to be reformed to bolster their development.

Types of AI-Generated Content Copyright is a property right which subsists in the following descriptions of work: (1) Original literary, dramatic, musical or artistic works; (2) Sound recordings, cinematograph films, television or sound broadcasts or cable programmes; and (3) Published edition of works In both the UK and Singapore, (1) is collectively known as “authors’ works” whilst the various types of works in (2) and (3) are known as entrepreneurial or neighbouring rights. Authors’ works have traditionally involved solely human artists in the creative process. Yet increasingly, advanced algorithms have been

The author wishes to express his heartfelt thanks to Mr. Ankur Gupta for his comments on an earlier draft of this paper. All errors that remain in this paper are mine. +


Singapore Comparative Law Review experimented with to create art with little to low human involvement, raising potential questions on the application of copyright law. To understand the copyright regimes related to AI-generated content, the two levels of artificial intelligence will be assessed.

Level 1 – Artificial Narrow Intelligence (‘ANI’) At level 1, ANI, also known as “Weak” AI, is focused on a narrow range of tasks, operating strictly based on the parameters set by the programmer. This is the level of AI in existence today and something we would have experience interacting with. For example, Siri, Alexa or Cortana on our mobile phones and personal computers. Beyond these familiar applications that help our day to day life, ANI can also be used as a tool to create literary, dramatic, musical and artistic works. In 2016, 20th Century Fox utilised IBM’s AI, Watson, to produce a trailer for the horror film, Morgan, by feeding the programme scenes from over 100 horror films. 1 Watson then identified 10 moments from Morgan it felt were the best candidates for the trailer. The only human involvement in the production of the trailer was the editing and stitching of these 10 moments. The AI alone selected the required footage, potentially saving a month’s worth of labour. Increasingly, AI is used to reproduce creative works from deceased artists, by studying the work they made while alive. One well-known example is ‘The Next Rembrandt’ project. Rembrandt is considered one of the greatest painters in the history of art, and arguably the most important in Dutch painting. In the 17th century, he painted over 300 pieces, yet the world decided it needed one more. In 2018, Microsoft, ING Bank, data scientists and art experts came together to develop an AI programme to generate and 3D print a new Rembrandt-inspired portrait.2 The software analysed all the available works of Rembrandt and paint fragments to produce a wholly original piece of art, in the esteemed style of Rembrandt. Similarly, in Japan, Yamaha used AI to write an original song with the faithful reproduction of Hibari Misora’s voice, an illustrious singer from the post-war Japan era.3 However, as mentioned earlier, ANI is limited in terms of its performance. It is only available to pull information from a specific set of data and perform tasks within predetermined parameters. By and large, they serve as a tool or a collaborator in the creation of creative works, lacking the self-awareness, consciousness and genuine intelligence that a human has.

Level 2 – Artificial Generated Intelligence (‘AGI’) In comparison, AGI, or “Strong” AI refers to machines or programmes that exhibit human intelligence, with the ability to perform any intellectual task a human being can. AGI is expected to reason, resolve problems, innovate, and create. This is the presumed state of AI depicted in many science fiction media,

John Smith, ‘IBM Research Takes Watson to Hollywood with the First “Cognitive Movie Trailer”’ (THINK Blog, 31 August 2016) <> accessed 4 March 2021 2 Marius Westhoff, ‘The Next Rembrandt’ (Competing with Data and AI Challenge, 21 April 2020) <> accessed 4 March 2021 3 Yamaha, ‘Yamaha VOCALOID:AI™ Faithfully Reproduces Singing of Legendary Japanese Vocalist Hibari Misora’ (Yamaha News Releases, 8 October 2019) <> accessed 4 March 2021 1


Singapore Comparative Law Review where AI is sentient, conscious and self-aware. As the ultimate form of AI, this level of technology is speculated to be decades away from our current state of AI development. 4 In this article, we evaluate the application of copyright law based on authors’ works - media, content, and art generated by ANI, and consider the adequacy of protection for creators.

Singapore’s Legal Position In Singapore, copyright is a creation of statute, and is governed by the Copyright Act (Cap. 63). According to s.4, no copyright or right in the nature of copyright subsists otherwise by virtue of the Copyright Act. Accordingly, the subsistence of copyright in authors’ works depends on the satisfaction of s.27. The two relevant issues that arise from s.27 are human authorship and originality.

Human Authorship According to s.27(1), the author of the work has to be a qualified person at the time when the work was made, or if the making of the work was extended over a period of time – for a substantial part of that period. The definition of a qualified person under s.27(1) was contested in the case Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Pte Ltd.5 It was held that the definition of “qualified person” could not be extended to include non-living persons. 6 The court justified that legal rights can only flow from humans as the duration of copyright protection has always been based on the author’s life expectancy. Consequently, authors must be living persons with a natural lifespan. Should non-living persons such as incorporated bodies, computers, robots or AI qualify as authors, they would be entitled to claim a perpetual monopoly over the work.7 Should copyright protection last for an unlimited duration, it would upset the balance between competing public and private interests. Consequently, AI-generated works created without human authors fail to meet the threshold required for authorship.

Originality The identification of the author of a work is closely related to the originality of the work. While there is no statutory definition of ‘originality’, there are guidelines provided by the courts in Singapore. The judges in Asia Pacific Publishing relied on the Australian case Telstra Corporation Limited v Phone Directories Company Pty Ltd 8 to elucidate the principles of originality. The originality of a work is based on the “independent intellectual effort and/or the exercise of sufficient effort of a literary nature” 9 and this is to be discerned from an identifiable author. Without the identification of a human author from whom the work originates, no “original work” exists for copyright protection. 10 In the context of compilations or databases, the court in Global Yellow Pages Ltd v Promedia Directories Pte Ltd 11 held that originality is found from the application of intellectual effort, creativity or the exercise of mental Brian Smith, The Promise of Artificial Intelligence (The MIT Press, 2019) [2011] 4 SLR 381 (hereinafter "Asia Pacific Publishing") 6 Ibid, [64-67] 7 Ibid, [64] 8 [2010] FCA 44 9 n6, [73] 10 Ibid, [82] 11 [2017] 2 SLR 185 4 5


Singapore Comparative Law Review labour, skill or judgement. For copyright to subsist, the compiler had to exercise sufficient creativity in selecting or arranging the material within the compilation, to cloak the original expression with copyright.12 The mere “sweat of the brow” would not be adequate for copyright protection to arise. A threshold degree of human intellectual effort must be present to direct or shape the expression of the work. Consequently, a literary work consisting of a database is original if by reason of the selection or arrangement of the contents of the database, the database constitutes the author’s own intellectual creation. Viewed in this manner, a database formed autonomously by an AI would not be entitled copyright protection. In a similar manner, an AI’s authors’ work created without human intellectual effort would not attract copyright protection. From the requirements of human authorship and originality, it can be conclusively stated that in Singapore, copyright does not subsist in works substantially generated by AI. Authorship cannot be attributed to a non-living person, and for originality to be present, there must be human intellectual effort. Where there is none, no originality is present, and no copyright subsists. As a result, works substantially generated by AI would fall into the public domain.

United Kingdom’s Legal Position Similarly, UK’s current copyright framework is based on statute – the Copyright, Designs and Patents Act 1988 (‘CDPA’). The key difference between UK’s approach to copyright in AI-generated works with Singapore’s approach is the presence of s.9(3) in the CDPA.

Human Authorship S.9(3) of the CDPA states that “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” S.9(3) is expanded further by s.178 that defines a computer-generated work as one that is “generated by computer in circumstances such that there is no human author of the work”. Understandably, when the CDPA was drafted in the 1980s, AI was still a concept and these sections were meant to recognise the growing prevalence of computers being used for work. Although the CPDA does not expressly provide for artificial intelligence, it could be argued that it was ahead of the curve with regards to evaluating copyright issues arising from computer-generated works. As stated by Dr Andres Guadamuz, these sections are phrased concisely and decisively, doing away with debates on what level of substantial generation is required for copyright to subsist in substantially AI-generated works.13 The answer is straight-forward; when the work is substantially generated by AI or autonomously created by AI, authorship is allocated to the person who arranged for this process to be possible However, there is some ambiguity as to the deemed authorship s.9(3) presents.14 As the statute was broadly worded to include anyone who made “the arrangements necessary for the creation of the work are undertaken”, authorship of the work could be contested between the AI programmer, user of the programme and even the sponsor of the programme. Nonetheless, this issue is a question of fact that can be resolved by the court.

Ibid, [24] Andres Guadamuz, ‘Do androids dream of electric copyright? Comparative analysis of originality in artificial intelligence generated works’ (2017) 2 Intellectual Property Qtly 169, 175 14 Ibid, 176 12 13


Singapore Comparative Law Review Originality By bypassing the requirements for human authorship, the next question to be determined is the originality of the work. This is a trickier and harder question to resolve, considering how interrelated authorship and originality are, and how there is not a unified standard between the UK and the EU, despite efforts to harmonise copyright law. Post Brexit, members of Parliament can amend or repeal some aspects of UK copyright law which are derived from EU Directives as necessary, but to a large extent, they have not been modified or revoked. There is no equivalent of s.9(3) in the major EU copyright jurisdictions. Most European jurisdictions such as Spain,15 like Singapore, require a natural person to be the author, and derive originality from the author’s intellectual investment in the work. According to the Danish court in Infopaq International A/S v Danske Dagblades Forening,16 it was held that for a work to be original it must be the “author’s own intellectual creation”. Arguably, this seems to be another vague standard. However, the court in Infopaq tried to qualify it by stating that the selection process for data could warrant originality, even if the data in isolation is not. 17 Applying Infopaq’s standard on ‘The Next Rembrandt’ project and based on the description of the process online, it is arguable that the team’s selection of the paintings and paint fragments to feed the AI programme and setting of parameters, display enough originality in the selection process to warrant copyright protection. However, the selection and curation of 100 horror movies for IBM’s Watson AI programme to study might not be deemed as creative enough to have achieve an intellectual creation. Although Brexit raises doubt on the future application of EU regulations, it can be argued that Infopaq’s standard has been assimilated into UK law after the court’s affirmation in the 2012 case, Temple Island Collections Ltd v New English Teas Ltd.18 All things considered, it can be concluded that substantially-generated AI works can be granted copyright protection under UK’s copyright regime. The wording of s.9(3) is clear and definitive on the presence of authorship even when a work has been autonomously or substantially generated by an AI programme. Applying Infopaq’s standard, it is foreseeable that the question of originality will be determined on a caseby-case basis by the courts, analysing how much input or creativity the programmer or end-user has in setting the parameters and feeding the data to the AI.

Should AI-generated works be copyrighted? When considering reforms to Singapore’s copyright regime, it is meaningful to ask if there is a need to even protect works that have been substantially or wholly created by AI. Arguments for and against copyright protection of AI-generated works can be raised based on how we justify copyright protection. According to natural rights theorists, copyright protection is granted because there is value in human creativity, and it is right and ethical to recognise the expression of each author’s personality and labour. As protection is based on the “fruits of the human mind”, without any human involved in the creation of the work, there is no need to justify copyright protection, as “there is no such thing as non-human intellectual property rights”.19 Conversely, from an economic incentive perspective, copyright protection for AI-generated works is imperative for the preservation of commercial value in a work. The legal protection provides incentives to Article 5, Spanish Copyright Act C-5/08 [2009] ECR I-6569 (hereinafter "Infopaq") 17 Ibid, [45] 18 [2012] EWPCC 1 19 n14, 173 15 16


Singapore Comparative Law Review encourage the production, investment and dissemination of AI-generated works. Only with the reassurance of copyright protection, would investors and programmers exhaust considerable time and money in producing such works, with the hope of recouping their expenditure. Even if companies may not be as eager to profit from their AI investment, it should oppose its competitors exploiting their investment, unjustly enriching itself. One such example occurred in China, where Tencent sued another tech company, Shanghai Yingxun, for copyright infringement of its AI-generated news content.20 Tencent had independently developed an AI programme, Dreamwriter, designed to collect and analyse data to write news stories on finance, sports, weather – areas that required strong timeliness. The defendant, Shanghai Yingxun, reposted a finance article created by Dreamwriter without Tencent’s permission. Understandably, Tencent sued Shanghai Yingxun for copyright infringement, but Shanghai Yingxun contested that since the work had no human author, it was not protected by copyright and fell into public domain. Ultimately, the court relying on China’s copyright statute, Implementation Regulations of the Copyright Law, held that the creation process consisted of more than the AI programme running established rules and algorithms, and also involved specialised arrangement and selection from the creative team. As such, the work in question had the threshold degree of originality and belonged to Tencent, who was responsible for the employment and sponsorship of the creative team. Tencent’s case underscores the economic implications and commercial value of AI-generated works and copyright protection. Currently, in Singapore, AI has largely been used only to interpret and manage big data. As such, the copyright regime in Singapore has only been evaluated based on AI’s primary use here – the creation of databases. In 2020, the Singapore Academy of Law’s Law Reform Committee published a report to evaluate the current legal mechanisms for protecting databases. 21 In the report, the committee held that there is no current need to change the existing statutory provisions to specifically protect databases.22 The existing copyright regime are adequate for electronic database owners.23 However, this paper aims to highlight that the copyright regime should be evaluated on more than database creation and should include other AI or computer assisted authors’ works, such as artistic or creative pieces. Understandably, the AI applications in Singapore have been less focused on creative works, hence there seems to be no urgency to reform the existing copyright regime to protect AI-generated work. However, as depicted in Tencent’s lawsuit, AI technology is increasingly being utilised for numerous commercial purposes. Analysing Singapore’s adequacy on protecting AI-generated work should look beyond database creation and consider creative works created by progressively intelligent computer programmes. Monumental advances have been made within the last decade and the days where human-generated and machine-generated content can be distinguished are numbered. As part of its Smart Nation initiatives, Singapore should take the pre-emptive steps to reform the current copyright regime and protect works substantially or wholly generated by AI programmes. Doing so would develop a more inclusive climate that recognises the increasing reliance of using AI to create. It is argued that such reform would encourage innovators, creators, big publishers, and even small and medium-sized enterprises to invest in these technologies and give them greater confidence in applying it in the creation process.

Shenzhen Tencent Computer System Co. Ltd. v. Shanghai Yingxun Technology Co. Ltd. (2019) Yue 0305 Min Chu No. 14010 21 Singapore Academy of Law, Law Reform Committee, ‘Rethinking Database Rights and Data Ownership in an AI World’ (2020), available at < book_0_1.pdf> 22 Ibid, [2.65-2.68] 23 Ibid, [2.70] 20


Singapore Comparative Law Review Recommendations for Reform As illustrated earlier, the current copyright regime in Singapore is human centric; being solely human is central to the question of determining authorship. As such, where an authors’ work is created substantially or wholly by an AI, copyright does not subsist, and the work falls into public domain. To address this limitation, it is submitted that Singapore should adopt s.9(3) of UK’s CDPA on deemed authorship for computer or AI-generated works. This approach has also been advanced by the Law Reform Committee when considering databases increasingly created by complex learning algorithms. 24 As AI technology develops in sophistication, the distinction between creative works by humans and those by computers will be blurred. Eventually, human input would be minute or virtually non-existent. Thus, granting copyright to the person who made the necessary arrangements for the operation of the AI programme would be the most sensible and straightforward approach. When contested, the determination of the person responsible would be a question of fact for the court and can be decisively resolved. Alternatively, a new sui generis right that covers authors’ work substantially generated or wholly generated by AI programmes can be created. This would be akin to EU’s current database right and create a new category of intellectual property protection for AI-generated works, with a defined period of protection. This idea was proposed by Japan in their Intellectual Property Strategic Program 2016. 25 Japan has been facing an explosion in the number of AI-generated creative works and a meteoric rise in AI innovation. To grant protection over all AI-created works might be excessive, considering the ease of how these works can be created using algorithms. Correspondingly, one potential problem with protecting all AI-generated work is the encouragement of IP squatters. The new sui generis right can resolve these potential problems by shifting protection of AI-generated content from an expression-based scheme to an unfair competition emphasis. 26 Similar to the operation of trademark protection, the degree of protection in this sui generis right will be tied to the popularity and usefulness of the AI-generated content, comparable to the concept of goodwill. Such an adjustment counters the potential problem of mercenary content creators who exploit AI programmes to flood the copyright pool with basic and simple to create content. Afterall, AI programmes significantly reduce the human labour required to create content. Nonetheless, it is conceded that until and unless they proliferate, it may not be possible to predict if IP squatters flooding the copyright pool would be a problem or not. Should a sui generis right be created, it should be pursued conservatively and with restraint, balancing the interests of all parties.

Conclusion Although there are no local examples, AI has been progressively used in creative industries around the world to challenge conventional modes of creation. With the consistent breakthroughs, disputes on issues such as authorship will be increasingly likely. It is foreseen that more collaborations will arise between AI programmes and humans, with the eventuality of little to no human input. It is vital that Singapore’s legal frameworks recognise this trend, and present clear answers with explicit recognition of AI-generated works. Adopting UK’s approach would provide greater clarity on AI-assisted creation and strengthen Singapore’s position as a global hub for innovation. Alternative reforms proposed should adopt a principles-based approach that allows copyright law to be applied flexibly to rapidly changing innovation processes. Broader application to a diverse range of circumstances would ensure inventorship processes do not present a barrier to the protection of investment in AI-generated innovation. Any argument that there is no pressing Ibid, [2.72] Intellectual Property Strategy Headquarters, ‘Intellectual Property Strategic Program 2016’ (2016), available at <> 26 Ibid, 11 24 25


Singapore Comparative Law Review impetus for Singapore to make such reforms can be countered by the contention that the law need not always be shaped by advancements in society. Instead, the law can be reprogrammed first to encourage advancements in society. As Singapore recognises the increasing impact of AI systems on creative processes, the intellectual property framework should support and incentivise AI-generated innovation.


Singapore Comparative Law Review

The Tort of Conversion – Are Electronic Certificates Chattels? Arthur Tan The tort of conversion is a lesser-known tort that has been described as ‘one of the mysteries, or perhaps embarrassments, of English law’.1 At the same time, it is viewed as the ‘principal means’ to protect the ownership of goods. 2 Conversion in English and Singaporean law are largely similar with one crucial difference: the classification of electronic certificates. This article will argue that Singapore’s more permissive attitude is undesirable and untenable in the light of the tangible/intangible distinction. This is an important discussion due to the potential ramifications of expanding conversion. If expanded, the result would be a strict liability tort that is ill-designed to deal with breaches of contract, or pure economic loss supplanting the intentional economic torts and actions for breach of contract, due to the overlapping applicability to similar fact patterns. 3 This article will first discuss the requirements to prove a claim in conversion. This includes a discussion of the normative considerations underpinning the position in England, which holds that pure intangibles cannot be the subject matter of a claim in conversion. This will then be contrasted against the position in Singapore, which allows claims in conversion for pure intangibles. It will be argued that the position in Singapore is undesirable and the position in England is to be preferred.

Establishing a claim in conversion It is widely acknowledged that the tort of conversion is ‘elusive’, and that precise definition is difficult. 4 Nevertheless, a useful starting point was provided by Lord Nicholls in Kuwait Airways. His Lordship describes conversion as having three basic features: (1) the defendant’s conduct was inconsistent with the rights of the owner; (2) the conduct was deliberate; (3) the conduct was enough of an encroachment on the rights of the owner as to exclude their use and possession. 5 Examples of conversion include the taking and detention of goods. 6 To bring a claim, a claimant will also need to prove that they have possession or at least an immediate right to possession. 7 The remedy provided at common law is monetary. 8 However, in England statute has provided that specific delivery of the goods can be ordered. 9

The goods must be capable of being converted A major restriction on the ambit of conversion is the type of goods that are capable of being converted. As the law stands after OBG v Allan (cited with approval in Alwie Handoyo), the tort of conversion protects A Tettenborn, ‘Conversion, Tort and Restitution’ in N Palmer and E McKendrick (eds), Interest in Goods (2nd Edition, Informa Law 1998), 825. 2 Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19, [2002] 2 AC 883, [77]. 3 Triplot v Wetter [2011] EWHC 931 (QB). 4 n.2, [39]; The Endurance I ex Tokai Maru [2002] 2 SLR(R) 120, [30]. 5 n.2, [39]. 6 Fouldes v Willoughby (1841) 8 M&W 540 (taking), Antariksa Logistics Pte Ltd and Others v McTrans Cargo (S) Pte Ltd [2012] SGHC 154, [2012] 4 SLR 250 (detention). 7 Armory v Delamirie 93 ER 66; Islamic Republic of Iran v The Bakarat Galleries [2008] 1 All ER 1177. 8 General and Finance Facilities v Cooks Cars [1963] 1 WLR 644, 649. 9 Torts (Interference with Goods) Act 1977, s.3. 1


Singapore Comparative Law Review against interference with tangible objects but not land. 10 Physical objects, such as books or phones and even possibly human body parts can be converted, but intangibles such as contractual rights or bank accounts generally cannot be. 11 Money, as in the physical notes, can be converted but not if they are used as currency.12 Thus, if a person uses money to purchase something, and the transaction is then voided, the seller cannot be liable for conversion. Sitting uneasily between these the categories of tangibles and intangibles are documentary intangibles. An example of a documentary intangible would be cheques. 13 On the one hand, cheques are tangible property as they are pieces of paper. On the other hand, the value of a cheque does not consist in the paper itself but in the intangible value it represents. Interestingly, the courts have extended the tort in this respect and will grant a monetary remedy not just for the value of the paper on which the cheque is written but also the intangible value that the cheque holds. 14 The inclusion of documentary intangibles strains the distinction between tangibles and intangibles and the exclusion of intangibles from conversion was criticised by the minority in OBG. Lord Nicholls advocated for conversion to cover pure intangibles as it would only be a minor extension of the law. Otherwise, His Lordship argued that the law would continue to draw an arbitrary distinction based on whether there is a physical document or not. 15 Professor Green has also argued that the distinction between tangibles and intangibles is outdated. Conversion was traditionally limited to tangible objects because those objects were the only things with value and therefore worthy of possession. 16 In the modern day, this justification is less applicable. For the majority, Lord Hoffman argued that to extend conversion to intangibles would be to undesirably increase the ability of parties to claim for pure economic loss. 17 Claims for pure economic loss are already provided for in limited circumstances by the intentional economic torts and negligence. 18 Courts have always trodden carefully when imposing liability for pure economic loss. This is because when acting in a competitive commercial environment, businesses are generally entitled to act selfishly, which ‘necessarily entails the risk of damaging the commercial interests of others’. 19 One business’ loss is another’s gain. Widening liability for pure economic loss would mean the courts limiting the ability of businesses to act in their own self-interest. Widening liability for pure economic loss through the device of conversion is particularly problematic given that conversion is a strict liability tort. In contrast, the existing torts which allow recovery for pure economic loss have subjected the availability of recovery to careful limitations. Negligence requires an assumption of responsibility while the unlawful means tort has a requirement of intent. 20 As for conversion, its limiting factor of liability is its confinement to tangible goods. As Amy Goymour notes, even in borderline cases involving documentary intangibles, the requirement of a physical document acts as a ‘well-defined practical

OBG Limited and others v Allan and others [2008] 1 AC 1, [95]; Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] SGCA 44, [131]. 11 Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2009] 2 All ER 986. 12 Lipkin Gorman v Karpnale [1991] 2 AC 548 (CA), 559. 13 International Factors v Rodriguez [1979] 3 WLR 877 (CA). 14 Midland Bank Ltd v Eastcheap Dried Fruit Co [1961] 2 Lloyd’s Rep 251. 15 OBG Limited and others v Allan and others [2008] 1 AC 1, [230]-[232]. 16 S Green ‘To have and to hold? Conversion and intangible property’ (2008) 71 MLR 114, 115-116. 17 OBG Limited and others v Allan and others [2008] 1 AC 1, [99]. 18 ibid. 19 JSC BTA Bank v Khrapunov [2018] UKSC 19, [6]. 20 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; n.10, [8]. 10


Singapore Comparative Law Review limit on the sorts of conduct that constitutes conversion’. 21 The requirement of minimal level of physical interference with a document allows for careful limitation of the scope of conversion. However, there are no similarly effective limitations once we accept the possibility of the conversion of intangibles. Hence, this creates the problem of determining what amounts to sufficient interference and leaves open the possibility that even negligible interference with an intangible right can trigger strict liability. This would potentially make conversion the most-preferred claim, obviating the need for the other torts by opening the floodgates of strict liability. 22 Until such similarly effective limitations can be suggested, whilst it might be normatively desirable to treat intangible and tangible property rights equally, the potential for abuse of the tort is too wide. The expansion of conversion would get rid of the arbitrary distinction between documentary intangibles and intangibles but come at the cost of the over-use of conversion claims. Moreover, the lack of coverage of intangible property is not necessarily a lacuna in the law. In OBG, the lack of intention meant that the economic torts failed. While Professor Green views this as a problem with the restrictive scope of conversion, the result of OBG is more consistent with the Court’s overall approach to restrictively awarding damages for pure economic loss. 23 In almost every other case in which intangible property has been “converted”, there are various alternative claims which have failed. The expansion of conversion and the successful claims that would follow could have the dangerous effect of overturning the various coherent policy reasons for not awarding a remedy that have been behind the failure of those alternative claims. In addition to the arguments in OBG, there is also difficulty with the requirement of possession. Possession has been cited as being distinct from control and inapplicable to intangibles. 24 The traditional view of possession is that it is a term of art, requiring physical control as well as the intention to exercise such control for one’s own benefit.25 The intention is not problematic for intangibles. However, the need for an ‘observable exercise of control over a physical matter’ clearly precludes intangibles, at least under the traditional view.26 Professor Green’s reply is to view possession as relative to the amount of physical control that is possible. 27 First, one would have to consider how much physical control over a given object is possible. Then, when assessing if there is possession, there is a comparison between how much physical control over the object has been exercised relative to the amount of physical control possible. In examining physical control, she suggested two key criteria: (1) exclusivity (the degree to which others can be precluded from use) and (2) exhaustibility (the degree to which the good can be used so as to deprive others of the benefit). 28 Applying these criteria, Professor Green would have found the debt in OBG, which could be exclusively controlled and exhausted, capable of being converted.29 However, while this argument would deal with the possession issue for intangibles, the arguments raised about the over-expansion of conversion and the problems of it being strict liability still apply. In particular, the worries of how overly minor acts can amount to actionable interference is still a problem. Thus, the preferred view is still that of the majority in OBG.

A Goymour ‘Conversion of Contractual Rights’ [2011] LMCLQ 67-91, 80. ibid. 23 n.16, 114. 24 Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281, [2014] 2 All ER (Comm) 899, [16]. 25 JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419, 435. 26 P W Lee ‘Inducing Breach of Contract, Conversion and Contract as Property’ [2009] 29(3) OJLS 511, 529. 27 n.16, 116. 28 n.16, 117. 29 ibid, 117-118. 21 22


Singapore Comparative Law Review Electronic Certificates In Armstrong v Winnington Networks, arguments in the spirit of Green’s were rejected in favour of strict adherence to the rule against intangibles.30 In Armstrong, an action was brought in conversion for purely intangible EU carbon emission certificates (EUA). These certificates were transferable and there was a market for them. 31 More importantly, they were clearly capable of being exhausted and exclusively controlled as each had unique registration numbers. 32 While the similarities to tangible property were noted, the judge stated that the ‘current state of the law has not developed to the point where something which exists in electronic form only is to be equated with a physical thing of which actual possession is possible’. 33 The judge continued to apply OBG and declined to extend the tort of conversion, even though the EUAs would have satisfied Green’s test of possession. In contrast, the Singaporean case of Cycle & Carriage v Hong Leong Finance (which was decided pre-OBG) held that electronic Preferential Additional Registration Fee (PARF) certificates were held to be capable of being converted.34 In Cycle, the claimant owned a car, which was hired out to a third party on a hire purchase agreement. The third party fraudulently breached the terms of the agreement by deregistering the car. Upon deregistration, a PARF certificate with a unique identification number was generated representing a rebate of the physical value of the car. The PARF certificate was then sold to the defendant who used it. The claimant successfully sued the defendant for conversion of the certificate. Following Cycle, the magistrate’s court in Kenso Leasing v Hoo Hui Seng held that a Temporary Certificate of Entitlement (TCOE), even if just electronic, was capable of being converted. 35 On the facts, the defendant agreed to buy a car from a third party and paid a deposit. The claimant then entered into an agreement with the third party, agreeing that the claimant would bid for a TCOE in the defendant’s name in return for payment. The claimant was successful in their bid and paid for the TCOE. However, the third party then failed to pay the claimant, leaving the claimant out of pocket for the cost of the TCOE. The claimant then decided to claim against the defendant (who had already used the TCOE) instead of the third party. This claim was framed in conversion and was successful. Whilst Kenso does not mention OBG, and Cycle pre-dates OBG, textbooks have continued to rationalize these cases as involving documentary intangibles. 36 Thus, it appears that the law in Singapore allows claims of conversion when the subject matter is purely intangible. It is submitted that in the light of OBG, these two cases are no longer good authority, and their reasoning is unsatisfactory.

Arguments for electronic certificates to be chattels First, the Singaporean court in Cycle argued by analogy with the English case of Douglas Valley v S Hughes.37 The gist of the argument was that the electronic certificates formed a core part of a car, and by extension, was capable of being converted.38 In Douglas, the “A” licenses that were affixed to vehicles were converted and used for other vehicles. 39 However, the suggestion that the PARF certificate in Cycle, or the licence in Douglas, is an intrinsic part of the vehicle is flawed. When a PARF certificate is generated, it is not an intrinsic Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch). ibid,[49]. 32 ibid, [50]-[51]. 33 ibid, [51]. 34 Cycle and Carriage Motor Dealer Pte Ltd v Hong Leong Finance Ltd [2004] SGHC 274. 35 Kenso Leasing v Hoo Hui Seng [2010] SGMC 8. 36 G Chan and P W Lee, The Law of Torts in Singapore (2nd Edition ,2015), [11.045]. 37 n.34, [23]. 38 Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738, [1967] 2 WLR 503, [754]. 39 ibid. 30 31


Singapore Comparative Law Review part of the car. It is a certificate that allows someone to claim value that is equivalent to the open market value of the car. Similarly, a license is not part of the vehicle. Without a license, the vehicle would be less valuable as one could not carry certain types of goods, but the license is nonetheless distinct from the vehicle. In any case, any analogy between Cycle and Douglas is false. In Douglas, the “A” licenses were discs that had to be affixed to the vehicles. 40 They would clearly qualify as documentary intangibles since they had a physical form. In contrast, the PARF certificate is an electronic certificate. Thus, while Douglas can properly be reconciled with OBG, it cannot provide support for the outcome in Cycle. Second, in Kenso, the court reached its decision in reliance on the Electronics Transaction Act 2010. The judge referred to ss.3(c), 6 and 7.41 As s.3(c) states, one of the purposes of the act was to allow for the ‘electronic filing of documents with public agencies, and to promote efficient delivery by public agencies of services by means of reliable electronic records’. 42 Additionally, s.6 states that ‘information shall not be denied legal effect, validity or enforceability’ and s.7 provides that an electronic record can suffice as writing.43 With respect, the provisions the judge referred to do not provide solid grounds for treating an electronic certificate as being capable of conversion. s.3(c) can be useful for interpreting the various provisions as it indicates that the objective of the Act is to encourage efficient public administration. Yet, even in this light, s.6 can only be interpreted as indicating that the certificate should not be denied its intended effect. Denying a claim in conversion does not prevent the TCOE from fulfilling its purpose, which is to register a vehicle for use in Singapore. It merely prevents a claimant from pursuing a specific tortious claim. In fact, in Kenso, the effective use of the TCOE (the registration of a vehicle for use) was what amounted to conversion by the defendant. Furthermore, s.7 deals with electronic documents fulfilling the formality requirement of writing that might be required for certain transactions. 44 Formalities help to ensure there is sufficient evidence to back up a claim (the evidentiary function) and make it harder to complete transactions so as to give people time to reconsider if they really want to go ahead with the transaction (the cautionary function). 45 Giving the statute the broader proposition that for all intents and purposes, electronic records are akin to physical writing would be materially different from the purpose of the statute and be a misinterpretation of parliamentary intention.

Conclusion When reconsidering the scope of conversion, the purpose of the tort must be remembered. The focus is on protecting ownership, hence the strict liability element. However, the courts have always been very careful to limit the ambit of the tort due to the potential of the tort to subsume other private law claims. This has been done through the development of stringent requirements of other parts of the tort, particularly the requirement of possession and the exclusion of intangible goods. By removing some of these limiters on conversion, the Singaporean courts have ushered in the possibility of the floodgates opening.

ibid, [747]. n.35, [20]. 42 Electronics Transaction Act 2010. 43 Electronics Transaction Act 2010. 44 See s.6 Civil Law Act for examples. 45 Lon L. Fuller, Consideration and Form [1941] 41 Colum. L. Rev. 799, 800. 40 41


Singapore Comparative Law Review Furthermore, this is particularly unjustified given the context of the cases. The claimants in both Cycle and Kenso were the victims of some form of bad faith or fraud by third parties who they could not claim against for various reasons. The courts then decided to give the claimants a second bite at the cherry by allowing claims against innocent defendants. This brings the adage “hard cases make for bad law” to mind. The Courts seemed to have rushed into making a decision to protect one innocent party over the other without sufficient consideration of the wider consequences. It is submitted that strict adherence to the rule against intangibles in OBG should remain. The two Singaporean cases are an undesirable extension of the ambit of conversion and should be limited to their facts. The position in England is more much desirable, with a clear line drawn at documentary intangibles. While, perhaps in some respects an arbitrary line, this is better than conversion subsuming the other actions for pure economic loss and imposing strict liability on parties acting in good faith.


Singapore Comparative Law Review

To have faith in the concept of good faith? Claire Li Introduction The concept of a general duty of good faith in contractual performance has been highly contested in common law. Defined as “honesty in fact and the observance of reasonable commercial standards of fair dealing” by the US’ Uniform Commercial Code, 1 some common law and most civil law jurisdictions recognise and apply a general duty of good faith to contracts. However, opponents raise concerns that this concept is inherently unclear, vague2 and against a party’s genuine right to pursue its own interests. 3 Singapore and English law have therefore maintained the stance that a general doctrine of good faith is not recognised. However, a recent string of decisions by the UK courts recognising good faith in instances of relational contracts has suggested English law’s openness to depart from the general doctrine in specific circumstances, though certainly not all. This article therefore seeks to articulate the current position of Singapore law with regard to implying good faith, assess the justifications behind the current stance in English law that has extended good faith to relational contracts, and consider whether these arguments can be employed in Singapore’s context. While it is not in the scope of this article to advocate for a general doctrine of good faith, this article argues that it would be in Singapore’s interest to take incremental steps towards emulating English law’s current recognition of an implied term of good faith specifically in relational contracts. Singapore’s current stance on implying a duty of good faith in relational contracts Singapore currently does not imply a general duty of good faith in contract law, with the authority being that of Ng Giap Hon v Westcomb Securities Pte Ltd4 (“Ng Giap Hon”). The reasoning employed in the case can be extended to the case of relational contracts. A key issue raised in the case was whether a duty of good faith was to be implied into a principal-agent relationship between the appellant and respondent. However, the Court of Appeal found that good faith could not be implied into the agency agreement as “terms implied by law”. 5 In particular, the court cited the reason that the implied term of good faith was “a fledgling doctrine” in both English and Singapore contract law,6 with the theoretical foundations and practical applications of the doctrine still being debated upon. This was also later raised in The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd, where the court commented that the law regarding the implication of good faith “continues to be in a state of flux”, although the court in in this case did not directly discuss the concept as it did not “come directly for decision before the courts”.7 Despite further developments in other jurisdictions on the implied term of good faith, the stance that good faith will not be implied has been reaffirmed in Singapore by AREIF (Singapore I) Pte Ltd v NTUC Fairprice

Uniform Commercial Code s.1-201(b)(20) Simon Whittaker, ‘Good Faith, Implied Terms and Commercial Contracts’ [2013] LQR 463, 468 3 Michael G Bridge, ‘Doubting Good Faith’ (2005) 11 NZBLQ 424, 429 4 [2009] SLR (R) 518 5 Ibid at [44] 6 Ibid at [47] 7 [2015] SGCA 21 at [44] 1 2


Singapore Comparative Law Review Co-operative Ltd.8 The Singaporean courts do however accept that an express agreement to “negotiate in good faith” can be enforceable.9 Developments in English law on implying good faith in relational contracts The UK likewise does not recognise a general doctrine of good faith. As articulated by Bingham LJ in Interfoto Picture Library Ltd v Stiletto Visual Programmes, “English law has, characteristically, committed itself to no such overriding principle [of good faith] but has developed piecemeal solutions in response to demonstrated problems of unfairness.” 10 The leading precedent is the case of Walford v Miles,11 where it was held that an agreement to negotiate in good faith was unworkable in practice as it was “inherently repugnant to the adversarial position of the parties involved in negotiations” 12 and therefore not legally enforceable. However, contemporary developments can be argued to have limited the decision in Walford v Miles.13 While an obligation to negotiate in good faith is not enforceable, the case of Yam Seng Pte Ltd v International Trade Corporation Ltd14 (“Yam Seng”) suggests the courts’ willingness to imply a duty to perform in good faith with regard to “relational contracts”. This refers to contracts that are typically long-term in nature, require a high level of communication and cooperation between the parties, as well as an intention that parties perform their duty with trust and confidence. This case is significant for the court’s in-depth consideration of recognising an implied duty of good faith under certain circumstances beyond those already implied by law. In this case, Yam Seng Pte Ltd entered into a distribution agreement with International Trade Corporation Ltd for exclusive distribution rights. In the claimant’s claim for damages for breach of agreement, it brought forth the assertion that there was an implied term for the parties to deal in good faith. In the judgment, Leggatt J emphasised the importance of good faith especially in “relational contracts” because they “require a high degree of communication, cooperation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are implicit in the parties' understanding and necessary to give business efficacy to the arrangements.” 15 This was further substantiated by the fact that English law had long established that the reasonable expectations of the contractual parties must be protected. 16 Thus, it was not against reasonable expectations to imply a term of good faith. While the concept of an implied term of good faith “has not yet reached a stage of settled clarity” 17 in English law, given the lack of a judgment from the Supreme Court, subsequent case law has sought to establish further limits on the application of an implied term of good faith to provide further coherence in this area of law. The first key development relates to what constitutes a “relational contract”. Subsequent case law has attempted to establish what contracts fall within this category, with a notable case being Bates and others v Post Office Ltd. 18 In this case, the court listed various defining characteristics of a relational contract [2015] SGHC 28 HSBC Institutional Trust Services Ltd v Toshin Development Singapore Pte Ltd [2012] 4 SLR 738 10 [1989] Q.B. 433 11 [1992] 2 AC 128 12 Ibid at [55] 13 McKendrick, Ewan. Contract Law : Text, Cases, and Materials. Eighth ed. 2018. Print. Pg 490 14 [2013] EWHC 111 15 Ibid at [142] 16 Johan Steyn, "Contract Law: Fulfilling the Reasonable Expectations of Honest Men" (1997) 113 LQR 433. 17 Cathay Pacific Airways Ltd v Lufthansa [2020] EWHC 1789 18 [2019] EWHC 606 (QB) 8 9


Singapore Comparative Law Review including, inter alia, that the contract is a long-term one, and involves a high degree of communication, cooperation and predictable performance based on mutual trust and confidence, and expectations of loyalty. 19 This has been further refined in cases such as Morley v Royal Bank of Scotland Plc20 which clarified what did not constitute a relational contract, and Essex CC v UBB Waste (Essex) Ltd21 where the identified features in the parties’ relationship served as a “paradigm example of a relational contract”. 22 Beyond the features identified in Yam Seng, the contract must have required significant investment from both parties, involving mutual exclusivity and an intention that the contract be performed with integrity and fidelity to the objectives of the contract. The second key development relates to the strict application of implying good faith, in particular only in circumstances when needed to give the contract commercial or practical coherence. This is in line with the judgment in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another, where it was held that terms are to be implied only if it is necessary to give the contract business efficacy or if it was so obvious that it goes without saying. 23 A case in point is Taqa Bratani Ltd & Ors v Rockrose UKCS8 LLC,24 where it was held that although the contract in question was a “relational contract”, the court would not imply a duty of good faith because doing so on the specific facts of the case would grant “absolute and unqualified power” 25 to one party. Additionally, no wider duty of good faith should be implied if contracts have already explicitly made reference to them. 26 The case for adopting an implied duty of good faith in relational contracts in Singapore Such developments in English law raise a strong counterargument against the rationale adopted by Singaporean courts in Ng Giap Hon opposing an implied term in good faith and support the case for implying good faith in the context of relational context. As illustrated above, it is evident that English law is approaching the concept of implying good faith in an incremental, case-by-case basis, with the focus on giving business efficacy to agreements and restricted to a duty of good faith in relational contracts rather than being applied as a general doctrine. In addition, efforts have been made at refining the ambit of what constitutes relational contracts. Given that the main concern in Ng Giap Hon was the need for greater clarification regarding the concept of implying terms of good faith, the progress in the development of English case law in the years following Ng Giap Hon should serve as a positive argument for the adoption of the UK’s position of implying good faith in Singapore law, especially with regard to relational contracts. A second argument for the adoption of a restricted application of implying good faith would be its benefits in promoting a positive business environment in Singapore. The concept of implying good faith arguably has the potential of protecting contracting parties against risks of opportunism and exploitation, allowing parties to be more willing to conduct themselves in ways that optimise their commercial interests. 27 By encouraging engagement while preserving individual autonomy to pursue self-interest, 28 the implication of good faith fosters an environment that benefits parties economically through building a foundation of trust via the law. Considering the long-term nature of relational contracts, this is also beneficial in preserving Ibid at [725] [2020] EWHC 88 (Ch) 21 [2020] EWHC 1581 22 Ibid at [113] 23 [2015] UKSC 72 at [17]-[18] 24 [2020] EWHC 58 25 Ibid at [56] 26 Teesside Gas Transportation Limited v CATS North Sea Limited and Others [2019] EWHC 1220 (Comm); Russell v Cartwright [2020] EWHC 41 (Ch) 27 R Brownsword, Contract Law: Themes for the Twenty-First Century (2nd edn, Oxford University Press, 2006), pp. 128 28 Dawkins, C. (2014). The Principle of Good Faith: Toward Substantive Stakeholder Engagement. Journal of Business Ethics, 121(2), 283-295 19 20


Singapore Comparative Law Review commercial relationships in the long run.29 Furthermore, as a country that attracts a large amount of foreign investment and international business, the promotion of trust through the legal system would lend further credence to Singapore’s continued economic growth. The concept of good faith, when implied under set circumstances for relational contracts, would therefore lend itself to this endeavour through the promotion of honesty and fair dealing between contracting parties. Third, implying good faith for relational contracts would bring Singapore one step closer towards the harmonisation of its domestic law with its international obligations. As Singapore is a signatory to the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), this means that Singaporean courts have to recognise good faith in relation to disputes involving the CISG under Article 7(1), which states the need for “the observance of good faith in international trade”.30 Ultimately, while domestic laws have to take into account factors beyond international obligations, recognising an implied term of good faith in relational contracts brings Singapore law one step closer in alignment with its international obligations without having to contest with the more complex issues of implying a general doctrine of good faith. Furthermore, the recognition of an implied duty of good faith not only ensures harmonisation within the Singapore legal system, but also promotes harmonisation with the international community at large. Given that the purpose of the CISG is “to provide a modern, uniform and fair regime for contracts for the international sale of goods”, it can be adduced that Singapore became a signatory to the CISG to align its laws governing contracts with those of its trading partners. This includes the concept of good faith which has received widespread acceptance in domestic laws, international business as well as public international law.31 For example, the US, Singapore’s third largest trading partner, 32 imposes a duty of good faith on “every contract” within the scope of the Uniform Commercial Code, 33 and reference to good faith is also found in the Restatement (Second) of Contracts, where “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” 34 Likewise, Canada recognises an “organising principle of good faith” that is present in more specific doctrines regarding relational contracts, the leading authority being Bhasin v Hrynew.35 While Australia as a whole is still determining the situations in which a term of good faith can be implied, an obligation of good faith in certain circumstances has been recognised by a substantial body of case law in New South Wales, 36 stemming from Renard Constructions (ME) Pty v Minister for Public Works.37 The concept of good faith is even more entrenched in civil law systems. For example, it is codified in statutory provisions such as paragraph 242 of the German Civil Code which states that “[a]n obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration.” Similar provisions are also found in the French, Italian and Spanish civil codes. 38 China, Singapore’s largest Ter Kah Leng, 'Good Faith in the Performance of Commercial Contracts Revisited' (2014) 26 SAcLJ 111 United Nations Convention on Contracts for the International Sale of Goods, Article 7(1), Retrieved from 31 Klaus Peter Berger, The Creeping Codification of the New Lex Mercatoria (2nd edn, KLI 2010) 277ff; Trans- Lex Principle No I.1.1 – Good faith and fair dealing in international trade 32 Singapore’s International Trade, 33 Uniform Commercial Code, Article 1 Part 2 § 1-203 34 Restatement (Second) of Contracts, § 205 35 2014 SCC 71 36 It is however worth noting that other Australian jurisdictions have been more reluctant in implying good faith, see Androvitsaneas v Members First Broker Network [2013] VSCA 212 37 [1992] 26 NSWLR 234 38 S Whittaker and R Zimmermann, ‘Good Faith in European Contract Law: Surveying the Legal Landscape’ (CUP 2000) 7ff. 29 30


Singapore Comparative Law Review trading partner,39 has also adopted the doctrine of good faith. It is worth noting that the debate surrounding the acceptance of a general doctrine of good faith is still ongoing in common law jurisdictions as compared to civil law jurisdictions, but the merits of whether Singapore or the UK should adopt it is out of scope of this essay. Nevertheless, given the widespread adoption of the concept of good faith, albeit to varying degrees and often restricted to specific circumstances in common law jurisdictions, there is a strong case for Singapore to consider take a step towards aligning its domestic laws with the international acceptance of a limited ambit of good faith to facilitate global business and economic development through implying good faith into relational contracts, where the law is the most settled in the common law context. Conclusion As with other aspects of contract law, the concept of implying good faith is continuously developing in various common law jurisdictions to varying degrees of certainty. In particular, recent developments in English law signal a gradual but concerted effort in establishing the concept of recognising an implied term of good faith in contractual performance. Given the widespread adoption of the concept of good faith in civil law jurisdictions and its growing acceptance in common law jurisdictions, it is worth considering if Singapore’s continued position of refusing to recognise an implied term of good faith is “swimming against the tide” in the words of Leggatt J in Yam Seng on English law back in 2013. Still, it is worth noting that the law surrounding the implication of good faith remains in flux and English law has yet to recognise a general doctrine of good faith, especially in the context of pre-contractual negotiations. Therefore, while this article advocates for Singapore to imply a duty of good faith in the context of contractual performance, especially with regard to relational contracts, it does not recommend that Singapore should go further to adopt a general doctrine of good faith while the foundation of such a doctrine is still unsettled on both a theoretical and practical level. It is perhaps time for Singaporean courts to start swimming with the tide when it comes to implying a duty of good faith in contractual performance.


Supra at 31


Singapore Comparative Law Review

Assumption of Responsibility in Assessing the Remoteness of Damages in Singapore: Not a Remote Role At All Nicholas Lee Introduction As it is ‘unjust’ to impose upon a defendant all losses flowing from a breach of contract, 1 the common law doctrine of remoteness of damages informs the legal test of causation in contract law to limit the amount of compensatory damages for a wrong caused by such a breach. 2 Singapore has traditionally adopted the English court’s approach to principles surrounding compensatory damages, observing established remoteness rules set out in Hadley & Anor v Baxendale & Ors to only allow recovery for losses that have ‘arisen naturally in the usual course of things’. 3 However, when the House of Lords additionally considered whether there had been an ‘assumption of responsibility’ to evaluate the remoteness of damage in Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas)4 in 2008, the Singapore Court of Appeal opted not to follow this decision, and instead raised practical and conceptual concerns that refrained it from adopting such the ‘assumption of responsibility’ requirement in MFM Restaurants and another v Fish & Co Restaurants Pte Ltd and another5 in 2010. This article examines the justifications for and factors considered in the remoteness tests practiced in both UK and Singaporean jurisdictions, and considers the advisability of integrating the assumption of responsibility principle established in The Achilleas into the Singaporean approach to evaluate the remoteness of damage for contractual breaches. Despite the advantages of the Achilleas test, the Singaporean judiciary’s theoretical outlook on contract law allows it to rationalise against and bypass the purported requirement of such a test. Background Hadley established a two-limb approach that aimed to allow claimants to recover damages from a contractual breach if the loss fell under the reasonable contemplation of the contracting parties: 1) The court will consider if the loss was one that may happen in ‘the usual course of things, from such breach of contract itself’, and 2) whether special circumstances outside the ordinary course of things have been drawn to the attention of the defendant or are known by the parties. 6 This approach was embraced by the Singapore High Court in CHS CPO GmbH v Vikas Goel,7 which provided ‘it is established law that remoteness of damage under contract law comprises two limbs…found in the seminal decision of the (English) Court of Exchequer in Hadley’.


Hadley & Anor v Baxerndale & Ors [1854] EWHC J70, [152]. Ewan McKendrick (2019), Contract Law, 13th edition MacMillan Education UK, 394. 3 Hadley (n 1). 4 Transfield Shipping Inc v Mercator Shipping Inc [2008] UKHL 48. 5 MFM Restaurants Pte Ltd and another v Fish & Co Restaurants Pte Ltd and another [2010] SGCA 36. 6 Hadley (n 1). 7 CHS CPO GmbH (in bankruptcy) and Another v Vikas Goel and Others [2005] SGHC 74 at [81]. 2


Singapore Comparative Law Review In The Achilleas, Lord Hoffmann claimed that the Hadley analysis was ‘too crude a test’ to quantify the foreseeable loss from a contractual breach, 8 endorsing Goff J’s statement in The Pegase9 to consider what the defendant took into account ‘when considering his responsibility for loss suffered by the plaintiff’. Asserting that the ‘industry’s common understanding’ was crucial to Hadley, Lord Hoffmann claimed that ‘it must be in principle wrong to hold someone liable for risks’ for which they ‘would not reasonably be considered to have undertaken’.10 Scrutinized against the ‘background of market expectation’, the resulting ‘assumption of responsibility’ requirement informed the House of Lords’ judgment in The Achilleas which declined the imposition of ‘exceptional and unnatural damage’ which ‘would be harsh to’ impose on a party.11 However, the Singapore Court of Appeal voiced that they ‘do not think that the approach advocated by Lord Hoffmann in The Achilleas ought to be followed’ in MFM Restaurant,12 except to the extent it is already embodied in the approach provided by the orthodox Hadley test. The Singaporean court alluded to a few difficulties posed by the ‘assumption of responsibility’ requirement, stating that it was arguably not part of the ratio decidendi of The Achilleas, suffered from conceptual difficulties, and was unclear in its application. This contention may be attributed to two points of interests: 1) the differing positions of theoretical interpretations of the remoteness doctrine, and 2) the practical implications of the Achilleas ‘assumption of responsibility’ requirement which differ between the two jurisdictions. Theoretical Differences The Singaporean Court of Appeal observed that the ‘assumption of responsibility’ approach was arguably not adopted by the House and ‘hence did not constitute the ratio decidendi of the case’, 13 where only Lord Hope explicitly endorsed Lord Hoffmann’s proposition in The Achilleas. In contrast, Lord Rodger and Baroness Hale were ‘disinclined to express any firm views’ on the assumption of responsibility. 14 Thus, it is assumed that the House of Lords generally based their decision in The Achilleas on the traditional principles laid down in Hadley. Consequently, the ‘assumption of responsibility’ requirement is not viewed as a sufficiently influential principle since adherence to the Hadley limbs was enough to result in a just decision. However, the Court of Appeal also admitted that Lord Walker’s statements in The Achilleas on the precise ratio decidendi ‘remain controversial’,15 and academics such as Paul C K Wee argue that speeches by other judges were ‘in line with Lord Hoffmann’s approach’. 16 The Court of Appeal accepted that the ‘only clear proposition that can be proffered…is that there is probably no clear ratio decidendi’, 17 implying that the ‘assumption of responsibility’ requirement is of an equivocal nature, but nonetheless still deserving of fair contemplation. Thus, despite the Achilleas test’s ambivalent status, academic observations and endorsement by other judges of this requirement urges the Singaporean courts to at the very least acknowledge its relevance and consider its adoption.


Transfield Shipping Inc (n 4) [84]. [1981] I L1 Rep 175. 10 Transfield Shipping Inc (n 4), [12]. 11 ibid. 12 MFM Restaurants (n 5), [89]. 13 MFM Restaurants (n 5), [90]. 14 Goh Yi Han (2009), Case Comment: Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd, Oxford University Commonwealth Law Journal. 15 MFM Restaurants (n 5), [90]. 16 Paul CK Wee (2010), Contractual interpretation and Remoteness, Lloyd’s Maritime and Commercial law Quarterly, 156-157. 17 MFM Restaurants (n 5), [90]. 9


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The Singaporean Court of Appeal in MFM Restaurants claimed that there were ‘very fundamental theoretical or conceptual difficulties with the approach advocated by Lord Hoffmann’, returning to its judgment in Robertson which provided that the test was satisfactory in evaluating remoteness of damage. 18 The judgment further posited that the ‘assumption of responsibility’ approach is ‘conceptually distinct from… the very doctrine of remoteness of damage in contract law itself’. 19 This is exemplified in Sabapathy’s observation of the Singaporean case of Out of the Box Pte Ltd v Wanin Industries Pte Ltd20 that the ‘parties’ implicit intention is a fiction’ which risks the adoption of an agreement-centred model and conflates the doctrine of remoteness with the law on contractual interpretation and the doctrine of implied terms’.21 Arguing that ‘remoteness is traditionally regarded as a doctrine which limits and cuts back prima facie liability’, the Singaporean of Appeal claimed that the agreement-centred approach of the Achilleas requirement, which allows for the element of interpretation to place ‘no limits’ on the claimant’s expectation interests, is an undesirable standard against which to scrutinise the remoteness of damage. 22 If this requirement is upheld, liability will not be reduced and there will be ‘no independent role for remoteness’.23 However, Professor Goh Yi Han contends that the Singaporean Court of Appeal and Lord Hoffmann’s approaches are not fundamentally distinct in terms of theory. Rather, they differ in the means by which they give effect to the ‘assumption of responsibility’ concept.24 Professor Goh argues that the ‘assumption of responsibility’ doctrine is a principle which has already been agreed upon in both jurisdictions. Contrastingly, Lord Hoffmann elevated ‘assumption of responsibility’ to the status of an ‘independent legal criterion’. The Court of Appeal acknowledged the principle as embodied within the two limbs of Hadley.25 The implicit adoption of this principle and the subsequent theoretical reconciliation between the Achilleas principle and the Hadley test is demonstrated by Sir David Keene’s analysis of John Grimes v Grubbins, 26 where he attributed the Hadley rule to the implied intentions of the parties — where ‘the law in effect implies a term’ that the defendant is held liable for the type of loss reasonably foreseen but not unlikely to result from the breach. In this interpretation, the assumption of liability is not an undesirable, but rather, an inherent component of the orthodox test for remoteness of damages. As discussed above, Lord Hoffman believes that something in addition to the Hadley test, in the form of a ‘wholesale interpretation of the contract’, is required to determine whether parties have assumed responsibility. 27 From this perspective, the ‘internal’ assumption of responsibility in The Achilleas has become the effective test to determine remoteness. This contrasts with the Singaporean Court of Appeal’s ‘external’ rule which, in contrast, objectively imputes an obligation to compensate due to the defenda nt’s assumed responsibility deriving from his ‘available knowledge’ as considered in the default Hadley test. Therefore, the ‘assumption of responsibility’ requirement is argued to be coherent with the conceptual underpinnings of the remoteness doctrine as argued by the Singaporean Court of Appeal. Rather, the concept is manifested in different processes between the Singaporean and English courts.


MFM Restaurants (n 5), [92]. ibid [93]. 20 Out of the Box Pte Ltd v Wanin Industries Pte Ltd [2011] SGHC 226. 21 Senthil Sabapathy (2013), ‘The Achilleas’: Struggling to stay afloat, Singapore Journal of Legal Studies, 400. 22 MFM Restaurants (n 5), [92]. 23 ibid. 24 Goh Yi Han (2011), Explaining Contractual Remoteness in Singapore, Journal of Business Law . 25 ibid. 26 John Grimes v Gubbins [2013] EWCA Civ 37 at [24]. 27 MFM Restaurants (n 5), [92]. 19


Singapore Comparative Law Review Incorporation into the Hadley test The theoretical resemblance of Hadley test and the Achilleas requirement in determining the remoteness of damages in contractual breaches leads to the rationalisation that the latter has already been incorporated into the understanding of the former in and by Singaporean courts. The Court of Appeal claimed that ‘the first limb in Hadley… embodies an implied undertaking or assumption of responsibility on the part of the defendant’.28 This imputation was previously acknowledged by Hamblen J in his judgment of The Sylvia, 29 where he observed that ‘the fact that the type of loss rises in the ordinary course of things… will carry with it the necessary assumption of responsibility’ in the majority of cases. Therefore, the first limb of Hadley is argued to render the ‘assumption of responsibility’ requirement redundant. In light of the holistic conceptualisation of the Hadley test embraced by Singaporean courts, the explicit incorporation of the Achilleas requirement into Singaporean law seems like a meaningless pursuit. The different conclusions reached in Singapore and the UK regarding the relevance of the Achilleas requirements stems from varying considerations of the role of the defendant’s actual knowledge in the second limb of Hadley. In the UK, Diplock LJ contended that the ‘implication’ that a party undertakes to bear the liability ‘need not be left to implication; it can be express’ in Robophone Facilities v Blank.30 He argued that if the contract contained an express undertaking, the defendant’s lack of knowledge regarding any special circumstances likely to cause enhancements to the plaintiff’s loss would not affect the defendant’s liability for the loss actually sustained by the plaintiff. 31 Therefore, the defendant’s actual knowledge of such special circumstances is merely a factor in ascertaining the obligation. In contrast, the Singapore Court of Appeal in MFM Restaurants took the view that the second limb in Hadley is sufficient ‘to be the basis for an implied obligation on the part of the defendant that it would assume responsibility for the (extraordinary) loss flowing from its breach’. 32 The Singaporean judiciary believes that the courts should objectively impute this obligation imposed on the defendant, as leaving the situation open to other factors ‘would lead to unnecessary speculation as well as uncertainty’. 33 This divergent opinion may be attributed to the Singaporean court’s intention not to be ‘concerned with embarking on a gap-filling exercise’. 34 Despite AR Teo’s argument in Chee Peng Kwan and Another v Toh Swee Hwee Thomas and Others 35 that ‘the law of remoteness can be said to be concerned not merely with protecting the contractual bargain but also with the wider policy consideration of placing suitable limitations on contractual liabilities’, the Court of Appeal leaned towards AR Peh’s viewpoint in Thode Gerd Walter v Mintwell Industry Pte Ltd and Others36 that from another policy perspective, it is ‘questionable why the courts should provide additional protection… by imposing a higher threshold in insisting that a defendant should only be liable for losses that he assumed responsibility for’. This parallels Andrew Phang JA’s judgment in Robertson 37 that contracting parties, unlike their tortious counterparts, have the opportunity to direct each other’s attention to the unusual risks and take extra precautions to safeguard his position.


MFM Restaurants (n 5), [103]. Sylvia Shipping Co Limited v Progress Bulk Carriers Limited [2010] EWHC 542 at [41]. 30 Robophone Facilities v Blank [1966] 1 WLR 1428 at [1448]. 31 ibid. 32 MFM Restaurants (n 5), [106]. 33 ibid [107]. 34 ibid. 35 Chee Peng Kwan and Another v Toh Swee Hwee Thomas and Others [2009] SGHC 141 at [40]. 36 Thode Gerd Walter v Mintwell Industry Pte Ltd and Others [2009] SGHC 44 at [69]. 37 Robertson Quay Investment Pte Lrd v Steen Consultants Pte Ltd and Another [2008] SGCA 8. 29


Singapore Comparative Law Review In accordance with the Robophone Facilities judgment that implication of bearing liability may be ‘express’, Lord Hoffmann felt it necessary to expressly manifest a requirement for the assumption of responsibility in The Achilleas. Meanwhile, the Singaporean courts’ unwillingness to embrace assumption of responsibility as playing an integral role derives from the intention to maintain the sanctity and freedom of contracts. This allows the Singaporean judiciary to be content with an inherently ‘external’ interpretation of the Achilleas principle as opposed to a tangible manifestation of the ‘assumption of responsibility’ within its test for remoteness of damages. Interpretations of practicality A further criticism of ‘assumption of responsibility’ requirement which reinforces the Singaporean Court of Appeal’s reluctance to adopt Lord Hoffmann’s proposal in The Achilleas is derived from the unconvincing practical effects caused by the principle. Sabapathy observes that the Singaporean court’s reluctance to adopt the Achilleas principle is because the requirement of an assumption of responsibility ‘increases the space for judicial discretion at the expense of clarity and commercial certainty’. 38 Robertson states that ‘typically there is no factual basis for judging the intentions of the parties’, 39 leaving a broad underlying issue of interpretation to each case. This is evident in the Privy Council decision (on appeal from the Court of Appeal of Belize) of Attorney General of Belize v Belize Telecom Ltd,40 where Lord Hoffmann adopted a broad application of the implication of terms which ‘eroded the distinction’ between the ‘business efficacy’ and ‘officious bystander’ tests.41 Therefore, to avoid such arbitrariness, the Singaporean Court of Appeal in MFM Restaurants decided against ‘one-size-fits-all’ doctrines such as the ‘assumption of responsibility’ requirement that ‘[would] not ultimately become legal procrustean beds’, but which would instead engender uncertainty in future cases. 42 As the implied term is ‘so often the last desperate resort of counsel in distress’, the Court of Appeal took this opportunity to additionally reiterate its aforementioned position that ‘the formulation of legal rules and principles… is intended to furnish lawyers, courts and students alike with general guidance’ and not ‘mere ad hoc, gap-filling measures’.43 Despite this, Professor Goh stressed that ‘difficulties remain’ within the sole consideration of the Hadley test.44 The Court of Appeal’s equation of special knowledge with liability in respect of the second limb of Hadley may be ‘over-inclusive in some instances’ and may render defendants liable in circumstances of mere knowledge which ‘would distinguish Singaporean law from that of other jurisdictions’. 45 Furthermore, the lack of a particular phrase to describe the degree of probability required under the Hadley rule in the Court of Appeal’s preference to ‘find refuge in the ‘idea and factors’ in the words of the rule’ could also lead to future uncertainty.46 Moreover, the practical merits of establishing a requirement for a positive assumption of responsibility should not be ignored as this would promote legal certainty. John Grimes47 demonstrated that this principle 38

Out of the Box (n 20), 400. Andrew Robertson, The Basis of the Remoteness Rule in Contract, The Journal of the Society of Legal Scholars (2008), 185. 40 Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10. 41 MFM Restaurants (n 5), [98]. 42 ibid. 43 ibid. 44 Goh Yi Han (n 14). 45 ibid. 46 ibid. 47 Goh Yi Han (n 24). 39


Singapore Comparative Law Review has practical and economic implications, as its test clarifies what risks contracting parties face and gives them the opportunity to manage allocation of said risks. As potential liabilities arising from a breach may be significantly higher than amounts payable in performance of the contract, businesses are encouraged to be more meticulous in their operations. 48 Thus, it would be in the contracting parties’ interests to establish their concerns during pre-contractual negotiations and restrict their exposure to risks.49 The flexibility of the Achilleas requirement may more clearly allow courts to arrive at just outcomes by analysing remoteness of damages. Toulson LJ observed in Siemens Building Technologies FE Ltd v Supershield Ltd50 that the test has an ‘inclusionary’ as well as an ‘exclusionary effect’, because when the loss resulting from a breach was within the scope of a party’s contractual duty, it ‘cannot be regarded as too remote, even if it would not have occurred in ordinary circumstances’. The two approaches in Hadley and Achilleas may be reconciled and could lead to the expansion and development of contract law to solve more complex disputes. The assumption of responsibility principle was established in the face of the unorthodox facts of Supershield to facilitate a just decision as it was reasoned that the defendant had ‘assumed responsibility’ for the question notwithstanding the fact that it was unlikely to occur. Consequently, Singaporean courts may find it more complex to navigate to this outcome armed with only the Hadley test. Conclusion This article reviews the justifications of the Singaporean courts vis-à-vis its dismissal of the ‘assumption of responsibility’ principle as proposed by Lord Hoffmann in The Achilleas, and explores fundamental differences in the rationalisation of the doctrine of remoteness between Singapore and the UK, as outlined in the Singaporean Court of Appeal’s judgment of MFM Restaurants and Robertson. While UK courts are concerned with developing the law to provide explicit support for unorthodox cases where ‘exceptional and natural damage’ may arise, the Singaporean courts opt to uphold the values of the sanctity and freedom of contract by maintaining an neutrally objective standard to determining remoteness of damages. Although the Singaporean Court of Appeal’s criticism of the practical consequences that come with the ‘assumption of responsibility’ is of relevance, Professor Goh perceptively notes that more is required to enhance the Hadley rules if Singapore courts intend to rely on the foreseeability test alone. There may also be further developments in Singapore law to integrate the aforementioned advantages of the Achilleas requirement into the current Hadley test. Notwithstanding its reluctance to incorporate the Achilleas principle into considering the remoteness of damage, it is argued that the Singapore Court of Appeal’s approach, although seemingly grounded in orthodoxy, is in fact ‘a step towards a more coherent understanding of the remoteness principle’. 51 It allows the courts to effectively internalise the essential idea of the Achilleas requirement while avoiding its professed complications. The Singaporean context, in which courts embrace the principles indicated in the judgment of MFM Restaurants more than the need to entertain Lord Hoffmann’s purported ‘internal’ considerations of the ‘assumption of responsibility’, is coherent with the Court of Appeal’s composed response to the Achilleas requirement. As such, only the Hadley test will most likely remain as the exclusive test for remoteness of damage for the near future in Singapore.


Stephen Brett, Remoteness of damage and assumption of responsibility — A Discussion Note (2012). ibid. 50 Siemens Building Technologies FE Ltd v Supershield Ltd [2010] EWCA Civ 7 at [43]. 51 Goh Yi Han (n 14). 49


Singapore Comparative Law Review

Remedying the Remedial Constructive Trust Allison Wu Introduction A distinction has long been drawn between an institutional constructive trust and remedial constructive trust. This article seeks to compare the remedial constructive trust under English law and Singaporean law. While English law has generally rejected the remedial constructive trust, Singaporean law has seemingly embraced the remedial constructive trust (particularly as a vehicle for proprietary restitution). Given this apparent difference in position, a comparison of the remedial constructive trust under English law and Singaporean law provides an insight into how the remedial constructive trust should be rationalised and sets up the debate as to whether the remedial constructive trust ought to be embraced. This article first analyses the theoretical distinction between the institutional constructive trust and the remedial constructive trust. It goes on to argue that there is nothing very much ‘remedial’ about the Singaporean model of the remedial constructive trust: by emphasising the need for the incremental development of rules, Singaporean law has moved away from the very essence of the remedial constructive trust. Hence, this article argues that the difference between English law and Singaporean law does not so much lie in the models of constructive trust which are recognised but rather in the substantive rules of constructive trusts. Finally, this article concludes that, in line with the English position, the idea of the remedial constructive trust should be abandoned in Singapore because it is an unhelpful distraction from refining the substantive rules which govern the imposition of a constructive trust in cases of proprietary restitution. Conceptualising the remedial constructive trust While the remedial constructive trust can be understood in different ways,1 the modern understanding of the distinction between the institutional constructive trust and remedial constructive trust is encapsulated in Lord Browne-Wilkinson’s statement in Westdeutsche Landesbank Girozentrale v Islington London BC (‘Westdeutsche’): Under an institutional constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it: the function of the court is merely to declare that such trust has arisen in the past. The consequences that flow from such trust having arisen (including the possibly unfair consequences to third parties who in the interim have received the trust property) are also determined by rules of law, not under a discretion. A remedial constructive trust, as I understand it, is different. It is a judicial remedy giving rise to an enforceable equitable obligation: the extent to which it operates retrospectively to the prejudice of third parties lies in the discretion of the court.2 The institutional constructive trust and remedial constructive trust are thus different models of constructive trusts: the difference between these trusts lies in the way in which they arise. 3 Broadly described, while an institutional constructive trust arises in response to rules, a remedial constructive trust operates at the discretion of the court. Peter Birks, ‘Rights, wrongs and remedies’ (2000) 20 Oxford Journal of Legal Studies 1. Landesbank Girozentrale v Islington London BC [1996] AC 669, 714-715. 3 Charlie Webb, ‘The myth of the remedial constructive trust’ (2016) 69(1) Current Legal Problems 353, 355. 1

2 Westdeutsche


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The notion of discretion alone, however, cannot sufficiently explain the distinction between the institutional remedial trust and remedial constructive trust. To properly conceptualise the difference between the institutional constructive trust and remedial constructive trust, there needs to be a closer examination of the sort of discretion which only the remedial constructive trust embodies. As Webb argues, some sorts of discretion are consistent with the institutional constructive trust: within a system of rules, the courts nonetheless still have a rule-making discretion to create new rules or a rule-completing discretion to provide more content to indeterminate rules.4 For the remedial constructive trust to be meaningfully distinguished from the institutional constructive trust, the remedial constructive trust necessarily entails a different sort of discretion altogether – a discretion which involves an ‘ongoing and repeated freedom of choice’ in which the courts are free to determine cases based on their notions of fairness and justice without any reference to existing principles or cases.5 The remedial constructive trust under English law and Singaporean law English law While Lord Browne-Wilkinson’s obiter dicta in Westdeutsche provided some support for the recognition of the remedial constructive trust under English law, English law has generally been lukewarm to the idea of the remedial constructive trust. In Westdeutsche, Lord Browne-Wilkinson suggested that the remedial constructive trust might ‘provide a more satisfactory road forward’ for the recognition of proprietary restitutionary remedies.6 His argument was that the discretionary nature of the remedial constructive trust allows ‘the remedy [to] be tailored to the circumstances of the particular case’, thus avoiding any potential unfairness to third parties. 7 This seemingly opened the door for the remedial constructive trust to be recognised by English law in subsequent cases, especially in the development of proprietary restitutionary remedies. However, the case law following Westdeutsche has tended to reject the remedial constructive trust. In Re Polly Peck (No 2), Mummery LJ stated that ‘[t]he insolvency road is blocked off to remedial constructive trusts, at least when judge-driven in a vehicle of discretion’.8 The Court of Appeal’s rejection of the remedial constructive trust in Re Polly Peck (No 2) was driven by the policy concern that it gave the courts an illegitimate power to arbitrarily redistribute property rights and ran the risk of usurping the role of the legislature.9 As Birks notes, the possibility for the remedial constructive trust to be recognised under English law seems to have been foreclosed after Re Polly Peck (No 2).10 More recently, in Bailey v Angove’s PTY, the court stated that English law ‘has recognised only the institutional constructive trust’ and ‘has not recognised the remedial constructive trust’.11 As the case law currently stands, there seems to be scant judicial acceptance of the remedial constructive trust under English law. Singaporean law On the other hand, the Singaporean courts have been far more receptive to the idea of the remedial constructive trust, especially as a vehicle for the development of proprietary restitutionary remedies. In Ching Mun Fong v Liu Cho Chit, the Court of Appeal laid down a few principles as to when a remedial ibid 374. ibid 371. 6 Westdeutsche (n 2) 716. 7 id. 8 Re Polly Peck (No 2) [1998] 3 All ER 812, 830. 9 id. 10 Peter Birks, ‘The End of the Remedial Constructive Trust’ (1998) 12 Tru LI 202. 11 Bailey v Angove’s Pty Ltd [2016] UKSC 47 [27]. 4 5


Singapore Comparative Law Review constructive trust might arise. Firstly, ‘[a] remedial constructive trust is a restitutionary remedy which the court, in appropriate circumstances, gives by way of equitable relief’. 12 Secondly, ‘the payees’ conscience must have been affected, while the monies in question still remain with him’. 13 The seminal case of Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (‘Anna Wee’) provides further insight into the principles governing the remedial constructive trust under Singaporean law. The Court of Appeal broadly suggested that a remedial constructive trust ‘may only be imposed where the payee’s conscience is affected’.14 The court went on to lay down a few elements which are necessary for a remedial constructive trust to arise. It seems that the fact of unjust enrichment itself is not sufficient; 15 instead, it is ‘the knowing retention of the monies in a way that affects the recipient’s conscience’ that gives rise to the court’s discretion to impose a remedial constructive trust.16 In other words, for the court to exercise its discretion to impose a remedial constructive trust, there must be an element of fault encapsulated in ‘unconscientiousness or unconscionability … affecting the knowledge of the recipient of the assets in question’.17 It should be noted that the Court of Appeal held that a remedial constructive trust was not applicable on the facts of Anna Wee, as the lack of fraud precluded a claim for a remedial constructive trust.18 On its face, Singaporean law has been willing to embrace the remedial constructive trust. While the Court of Appeal stated in Anna Wee that the principles regarding the remedial constructive trust did not constitute a ‘definitive ruling on the matter’ and are still in the process of being worked out,19 what seems to be clear is that fault is a necessary element which gives rise to the court’s discretion to impose a remedial constructive trust. Rationalising the difference between English law and Singaporean law As it was noted in the previous section, while there has been little judicial acceptance of the remedial constructive trust under English law, Singaporean law has been much more receptive to the remedial constructive trust. This would seem to suggest that the difference between English law and Singaporean law lies in the models of constructive trusts which are recognised. A closer look at the remedial constructive trust under Singaporean law, however, suggests that there is nothing very much ‘remedial’ about the way in which the Singaporean courts have formulated the remedial constructive trust. This understanding of how the ‘remedial constructive trust’ has been constructed under Singaporean law thus provides firmer ground for explicating where the difference between English law and Singaporean law as to the remedial constructive trust genuinely lies. In the first place, the Singaporean courts’ emphasis on the incremental development of the remedial constructive trust is at odds with the sort of discretion that lies at the core of the remedial constructive trust. In Anna Wee, the court stated that the remedial constructive trust ‘is not simply a response to some broad notion of unconscionability but is being developed incrementally in response to certain events and factors’.20 Such incremental development of rules is precisely central to a system of rule-based decisionChing Mun Fong (executrix of the estate of Tan Geok Tee, deceased) v Liu Cho Chit (No 2) [2001] SGCA 36 [36]. id. 14 Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) and another [2013] SGCA 36 [171]. 15 ibid [184]. 16 id. 17 ibid [182]. 18 ibid [172]. 19 ibid [185]. 20 ibid [182]. 12 13


Singapore Comparative Law Review making which characterises the institutional constructive trust. 21 On the other hand, the incremental development of rules is antithetical to a system of discretionary decision-making in which the courts ought to have the freedom to disregard any pre-existing principles when determining the outcome of particular cases.22 By emphasising the need for the rules governing the remedial constructive trust to be developed incrementally, the Singaporean courts have rejected the very sort of discretion which defines the remedial constructive trust and distinguishes it from the institutional constructive trust. Furthermore, the Singaporean courts’ dicta on the nature of discretion undermines its endorsement of the remedial constructive trust. The traditional justification for recognising the remedial constructive trust has been to engender more fairness by giving the courts the discretion to impose a trust only when it is just to do so. Yet, the Singaporean courts seem remarkably opposed to the unbridled flexibility inherent in the remedial constructive trust. In Anna Wee, the Court of Appeal stated that ‘it cannot be the case that vague notions of fairness or justice are the sole yardsticks in the exercise of the court’s discretion’. 23 The problem with discretion is that it gives ‘the court carte blanche to do whatever it likes without reference to case law or to any legal principle or doctrine’.24 On this view, the potential for the discretionary nature of the remedial constructive trust to introduce more fairness (if at all) is not to be embraced but must rather be reined in with the introduction of overarching legal principles. In rejecting the underlying justification for the remedial constructive trust, it is then unclear why there was a need for the Singaporean courts to adopt the remedial constructive trust as the model of constructive trust for the development of proprietary restitutionary remedies. In fashioning the remedial constructive trust, Singaporean law has moved away from both the core and underlying justification of the remedial constructive trust. Why, then, did the Singaporean courts nonetheless still adopt the ‘remedial constructive trust’ in developing proprietary restitutionary remedies? Yip suggests that the ‘remedial constructive trust’ under Singaporean law is indeed ‘remedial’ in nature because the trust does not ‘[arise] immediately upon the recipient acquiring knowledge of the transferor’s mistake’. 25 Instead, where there has been the knowing retention of assets such that the recipient’s conscience is affected, the courts have the discretion to ‘address the prejudice to third parties and vary the remedy to fully reflect the justice of the case’. 26 According to Yip, this ‘element of judicial tailoring is in fact the discretionary attribute of the Singapore remedial constructive trust’.27 On this view, the indeterminate nature of the circumstances in which a constructive trust will be imposed evinces a discretion on the court’s part, thus requiring the remedial constructive trust as opposed to the institutional constructive trust in the development of proprietary restitutionary remedies. This, however, conflates different sorts of discretion – in fact, not every kind of discretion is inconsistent with the institutional constructive trust and requires recourse to the remedial constructive trust. The sort of discretion envisaged under the Singaporean model of the ‘remedial constructive trust’ is essentially a rule-completing discretion, in which the courts gradually give more shape to the factors or elements (such as any unfairness to third parties) which structure the court’s inquiry into whether a constructive trust should be imposed in the case at hand. 28 As Webb argues, such a rule-completing discretion is inherent in the institutional constructive trust, in which ‘indeterminate rules are progressively made more determinate Webb (n 3) 370. ibid 371. 23 Anna Wee (n 14) [170]. 24 id. 25 Man Yip, ‘Singapore: remedialism and remedial constructive trust’ (2014) 20(4) Trust and Trustees 373, 381. 26 ibid 381. 27 id. 28 see Anna Wee (n 14) [182]. 21 22


Singapore Comparative Law Review as various questions left unanswered by those rules as initially formulated receive answers in the concrete determinations of individual decision-makers’.29 Crucially, this rule-completing discretion is distinct from the sort of discretion – the discretion to determine individual cases without reference to pre-existing principles – which defines the remedial constructive trust.30 Yet, as discussed above, it was precisely the latter kind of discretion that was eschewed by the court in Anna Wee, where the court emphasised the need for the incremental development of rules governing the remedial constructive trust. Hence, the Singaporean courts may have adopted the label of the ‘remedial constructive trust’ but are in fact introducing a new category of institutional constructive trusts for proprietary restitution which arise in response to an element of fault on the recipient’s part (such as the recipient’s knowing retention of assets). Put simply, despite the label of the ‘remedial constructive trust’ being used, there has not been a recognition of a genuine remedial constructive trust under Singaporean law. This brings us back to the distinction between English law and Singaporean law as to the remedial constructive trust and enables us to better understand where the distinction actually lies. While it was noted at the outset that English law and Singaporean law have seemingly adopted different attitudes towards the remedial constructive trust, a better way to rationalise the difference between English law and Singaporean law is that of form rather than substance. Under English law, the courts have only recognised the institutional constructive trust and have largely rejected the remedial constructive trust. Under Singaporean law, the courts have seemingly adopted the remedial constructive trust in the development of proprietary restitutionary remedies; however, a closer analysis suggests that the Singaporean courts have adopted the label of the ‘remedial constructive trust’ but are in substance introducing an institutional constructive trust for proprietary restitution. In effect, English law and Singaporean law stand in line with each other: both English law and Singaporean law have not recognised the remedial constructive trust as properly conceptualised. The difference between English law and Singaporean law, then, does not so much lie in the models of constructive trusts which have been recognised but rather than the substantive rules of constructive trusts instead. Moving forward The previous section has established that English law and Singaporean law have in substance adopted similar positions towards the remedial constructive trust: Singaporean law has actually introduced an institutional constructive trust for proprietary restitution and, similarly to English law, has not accepted a genuine remedial constructive trust. This thus frames the question as to whether the remedial constructive trust ought to be given greater recognition within English law and Singaporean law. English law is correct to reject the remedial constructive trust because the remedial constructive trust is neither facilitative of certainty nor fairness. In the first place, the flexibility of the remedial constructive trust undermines the certainty of the law.31 Furthermore, the remedial constructive trust is also likely to subvert fairness and justice; as Webb argues, the remedial constructive trust entails the kind of discretion which requires an abandonment of the commitment to treating like cases alike – this commitment, however, is a ‘basic aspect or condition of justice and to the ideas of equality and rational constancy it embodies’. 32

Webb (n 3) 370. Webb (n 3) 371. 31 see Lord Neuberger, ‘The Remedial Constructive Trust - Fact or Fiction?’ (Speech at the Banking Services and Finance Law Association Conference, 10 August 2014) <> accessed 31 March 2021. 32 Webb (n 3) 372. 29 30


Singapore Comparative Law Review In line with English law, Singaporean law should abandon the label of the ‘remedial constructive trust’. The Singaporean model of the ‘remedial constructive trust’ doubly obscures the point. In the first place, the recognition of the remedial constructive trust – when the Singaporean courts are in effect adopting an institutional constructive trust for proprietary restitution – arguably undermines the transparency of the law and muddies the waters as to the construction of a genuine remedial constructive trust. More crucially, by fashioning proprietary restitutionary remedies under the guise of the remedial constructive trust, the supposed element of discretion distracts from the need to refine the rules which determine when a constructive trust for proprietary restitution should arise. It is perhaps for this reason that Tang argues that the Singaporean courts should move away from the notion of the remedial constructive trust. 33 As Tang argues, the crucial question is determining the principles by which the law ‘evolve[s] and admit[s] new categories of situations where the declaration of a constructive trust is appropriate’. 34 Indeed, in the Singaporean context, the better solution lies in clarifying the rules of constructive trust for proprietary restitution, rather than relying on the remedial constructive trust to develop proprietary restitutionary remedies. Conclusion On its face, English law and Singaporean law have remarkably different attitudes to the remedial constructive trust: the former has largely rejected the remedial constructive trust whereas the latter has been more willing to embrace the remedial constructive trust in the development of proprietary restitutionary remedies. However, an examination of the Singaporean model of the ‘remedial constructive trust’ suggests that there is nothing very much ‘remedial’ about it. Singaporean law seems to be introducing an institutional constructive trust for proprietary restitution, with the content of those rules not having been fully determined yet. As such, properly conceptualised, both English law and Singaporean law have yet to accept the remedial constructive trust. This article has argued that English law is correct to reject the remedial constructive trust because it is neither facilitative of certainty nor justice. Furthermore, it has argued that Singaporean law should move towards abandoning the idea of the remedial constructive trust because it distracts from the need to refine the rules as to the development of the constructive trust for proprietary restitution.

33 34

Hang Wu Tang, ‘The Constructive Trust in Singapore’ (2010) 22 Singapore Academy of Law Journal 136, 140. id.


Singapore Comparative Law Review

An Inequitable Mistake? The UK’s Abolishment of Mistake in Equity Contrasted with Singapore’s Approach Isaac Ng Introduction In the case of Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd,1 the Court of Appeal of England and Wales (CA) presided over a common mistake claim and controversially denied the rescission of the contract in equity. The dissimilar applications of this ruling by Singaporean and United Kingdom (UK) courts in later cases have resulted in vast disparities in the doctrines of mistake in equity in both jurisdictions. This article seeks to recap the developments of the equitable doctrine of mistake pre-Great Peace and comparatively analyse the applications of Great Peace in Singapore and the UK. Finally, practical necessity of the doctrine and the basis of its renunciation in Great Peace will be evaluated. Mistake in Equity Pre-Great Peace In the eighteenth and nineteenth centuries, there was no clearly established doctrine of mistake in equity. There were cases in which UK courts awarded remedies for contracts formed by mistaken parties, for example Cooper v Phibbs.2 The House of Lords ruled that a common mistake between the contracting parties rendered the contract voidable, and this ability to be rescinded was an outcome markedly similar to that of mistake in equity. However, in such cases, there was no express reference to an intention to create an equitable doctrine separate from common law. Hence, it has been asserted by Lord Goff and Gareth Jones that ‘no coherent equitable doctrine of mistake can be spelt from them’. 3 The courts’ inclination to consider mistake only at common law was further reinforced in Bell v Lever Brothers, 4 where it was held that a mistake could only void a contract if it pertained to an ‘essential and integral element of the subject-matter of the contract’5 so as to ‘constitute an underlying assumption without which the parties would not have entered into the agreement’. 6 Mistake in equity later emerged in Solle v Butcher,7 where Lord Denning departed from Bell v Lever Brothers and asserted that common mistake would not void a contract at common law. 8 On the contrary, he established mistake in equity as a new, separate doctrine allowed contracts to be set aside and rendered voidable. He specified that it would apply to cases which involved a ‘common misapprehension either as to facts or as to [the parties’] relative and respective rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault’. 9

[2002] EWCA Civ 1402 (‘Great Peace’). Cooper v Phibbs [1867] UKHL 1. 3 Lord Goff of Chieveley, Gareth Jones, Goff & Jones : The Law of Restitution (5th edn, Sweet & Maxwell 1998), pg. 288-289. 4 Bell v Lever Brothers [1932] AC 161. 5 Ibid., 235. 6 Ibid., 208. 7 Solle v Butcher [1950] 1 KB 671. 8 Ibid., 693. 9 Ibid., 693. 1 2


Singapore Comparative Law Review The apparent contradiction between Solle v Butcher and Bell v Lever Brothers was subsequently addressed in Associated Japanese Bank v Credit Du Nord SA.10 By stating that common law mistake would be ‘supplemented’ by mistake in equity – whereby a common mistake which fails to void a contract at common law could still be considered under a claim in equity, 11 Lord Steyn reinstated Bell v Lever Brothers as the authoritative case for common mistake at common law.

Great Peace The disparity between mistake in equity and at common law culminated in Great Peace. The defendant, Tsavliris Salvage International, enlisted the services of the complainant, Great Peace Shipping, to assist The Providence, a damaged ship at sea. Tsavliris contracted with Great Peace, relying on its statement that it was only about 30 miles away when in reality, it was nearly 400 miles away. When Tsavliris cancelled the contract with Great Peace after discovering the mistake, the issue of whether a common mistake would void the contract between both parties arose. The CA held that the mistaken distance between the complainants and The Providence was insufficiently fundamental to void the contract at common law as performance of the contract was still possible. 12 When considering mistake in equity, the CA held that the decision in Solle v Butcher was irreconcilable with that of Bell v Lever Brothers; the creation of mistake in equity to award rescission when the stringent but clearly defined criteria in Bell v Lever Brothers could not be satisfied was seen as an attempt to overrule it, rather than supplement the doctrine of mistake at common law. 13 Furthermore, the CA noted the difficulty in distinguishing the ambit of mistake in equity and that at common law and were unable to distinguish between a ‘fundamental’ common misapprehension in equity and a mistake which renders the subject matter ‘essentially different’ from what it was perceived to be at law.14 The CA concluded for the purposes of ensuring legal consistency, it had to reject common mistake in equity as recognised in Solle v Butcher, thus asserting that ‘there is no jurisdiction to grant rescission of a contract on the ground of common mistake where that contract is valid and enforceable on ordinary principles of contract law’.15 The UK: Abolishing Mistake in Equity As a result of Great Peace, common mistake in equity definitively ceased to operate. Although Great Peace did not expressly address the issue of unilateral mistake in equity, it was generally recognised that the ruling included it. This was echoed in Statoil ASA v Louis Dreyfus Energy Services LP where Mr Justice Aikens reasoned that Great Peace ‘strongly suggests that there is no such jurisdiction in the case of a unilateral mistake’.16 Hence, Statoil effectively solidifies the UK’s position that the doctrine of mistake in equity has been completely removed.

[1989] 1 WLR 255. Ibid., 267-268. 12 Ibid., [165]. 13 Ibid., [156]. 14 Ibid., [154]. 15 Ibid., [157]. 16 [2008] EWHC 2257 (Comm), [105]. 10 11


Singapore Comparative Law Review As a result, contracting parties may only file a claim of common mistake at common law. This claim would be subject to the Bell v Lever Brothers test, that the mistake must relate to an ‘essential and integral element of the subject-matter of the contract’ to warrant rescission. As this criterion is difficult to satisfy, many claims of mistake at law are unsuccessful. This is further compounded by the court’s reluctance to allow mistakes to invalidate a contract. 17 As such, the ambit of common mistake at law is generally restricted to mistakes involving the existence, 18 and rarely the quality, 19 of the subject matter, or the possibility of contractual performance. 20 Similarly, unilateral mistake at law is limited to mistakes as to the identity of the other contracting party,21 or the existence and content of an important term.22 Singapore: Upholding Mistake in Equity As the apex court in Singapore, the Singapore Court of Appeal (SGCA) authoritatively chose to interpret Great Peace differently in the case of Digilandmall.23 The Court demonstrated its intention to uphold mistake in equity as good law by distinguishing the facts of Digilandmall from Great Peace (the former pertained to unilateral mistake and the latter common mistake), 24 to allow the continued operation of unilateral mistake in equity. The SGCA even went beyond that factual distinction and fundamentally disagreed with the Court of Appeal in Great Peace, stating that it was irrational to remove unilateral mistake in equity simply on the grounds that it was difficult to ascertain its ambit. 25 In addition, the SGCA asserted its active role in ensuring just outcomes, especially to protect innocent third parties. 26 It thus defended mistake in equity, noting its importance in providing remedial flexibility to achieve justice.27 Although it was not expressly stated, the SGCA arguably implied that it might not adhere to Great Peace and instead retain unilateral and common mistake in equity.28 This implication was echoed by Hugh Beale in ‘Chitty on Contracts’, 29 and later ruled as a definitive principle of law in Olivine Capital.30 Thus, this presents the key distinction between the doctrine of mistake in Singapore and the UK – UK courts no longer recognise mistake in equity altogether, whereas Singaporean courts retain its operation in addition to mistake at common law. Defending Mistake in Equity The differential approach in Singapore and the UK reignites discourse over the desirability of mistake in equity as a separate doctrine operating in conjunction with its common law counterpart. It is first submitted John Cartwright, ‘Unilateral Mistake in the English Courts: Reasserting The Traditional Approach’ [2009] Sing JLS 226, 231. 18 Couturier v Hastie (1856) 5 HLC 673. 19 Bell v Lever Brothers (n.3). 20 Sheikh Brothers Ltd v Ochsner [1957] AC 136; Cooper v Phibbs (1867) LR 2 HL 149; Griffith v Brymer (1903) 19 TLR 434. 21 Tiong Min Yeo, ‘Unilateral Mistake in Contract: 5 Degrees of Fusion of Common Law and Equity’ [2004] Sing JLS 227, 234; Cundy v Lindsey 3 App Cas 459; Lewis v Averay [1972] 1 QB 198. 22 Hartog v Colin & Shields [1939] 3 All ER 566. 23 Chwee Kin Keong and others v Pte Ltd [2005] SGCA 2, [2005] 1 SLR(R) 502. 24 Ibid., [74]. 25 Ibid., [74]. 26 Ibid., [76]. 27 Ibid., [77]. 28 Ibid., [66]-[73]. 29 Hugh Beale, Chitty on Contracts (33rd edn, Sweet & Maxwell 2019) 6-055, fn 236. 30 Olivine Capital Pte Ltd v Chia Chin Yan [2014] SGCA 19, [2014] 2 SLR 1371, [69], [71]. 17


Singapore Comparative Law Review that the SGCA was more judicious in the continued recognition of mistake in equity – upholding mistake in equity enables the greater achievement of just outcomes for relevant parties. Furthermore, it is argued that the CA’s rationale for removing mistake in equity in Great Peace is manifestly inadequate, as it was predicated on unwarranted concerns of legal uncertainty. Achieving Justice The doctrine of mistake in equity is arguably essential to supplement common law as it serves to better provide just outcomes not only for the contracting party who laboured under the mistake, but also for the innocent third party purchaser. The doctrine of mistake at common law has an evidently narrow scope, based on the stringent criteria established in Bell v Lever Brothers. This is further compounded by the inherent reluctance of the common law to allow mistakes to invalidate a contract. 31 As such, claimants who fail to prove mistake at law are often left without a remedy to rectify the injustice they have suffered. The merits of mistake in equity fills this gap. Its broader ambit and provision of remedies are commended by Justice Andrew Phang, who saliently contrasts its ‘enormous flexibility’ with common law that is ‘far too restrictive’.32 It is noteworthy that Justice Phang’s opinion is taken to be particularly influential in Singapore and perhaps even representative of the Singaporean judiciary’s legal position. However, this argument has been disputed by the CA in Great Peace. The Court reasoned that in unilateral mistake cases, the law does provide recourse to failed claims through the doctrines of misrepresentation, fraud and undue influence, thus negating the need for the operation of an alternative doctrine in equity. 33 Nevertheless, it must be noted that those doctrines do not automatically apply to cases where a claim of unilateral mistake fails, as each necessitates the fulfilment of distinct criteria, for example, when a contracting party remains silent about the other’s mistake throughout the conclusion of a contract. A claimant who fails to prove unilateral mistake would not be able to claim a fraudulent misrepresentation due to the lack of a general duty of disclosure. 34 Similarly, such a claimant would also be unable to claim undue influence if it cannot be proven that the other contracting party took advantage of an existing relationship of trust and confidence between them. 35 In addition, the CA failed to mention any alternative remedies at law for when a claim for common mistake fails. Thus, this reinforces the idea that the common law is inadequate as a standalone doctrine to protect mistaken parties, which suggests the need for a separate and supplementary doctrine of mistake in equity. The case for mistake in equity is further supported by its enhanced protection of bona fide third-party purchasers. As the common law doctrine renders contracts void, this results in an unjust infringement on the interests of innocent third parties who acquire rights to a property by virtue of the contract where they would not only lose the consideration they paid for such property, but also ownership of the property itself. In such cases, an equitable doctrine would be preferable to common law as it renders the contract voidable instead. The acquisition of the property by third party purchasers would serve as a bar to rescission of the contract and hence protect their interests. Although this inadequacy of the common law may arguably be mitigated by its narrow scope, this is undesirable and would undermine the achievement of justice in the multitude of cases which feature a mistaken contracting party but not a third-party purchaser.

John Cartwright, ‘Unilateral Mistake in the English Courts: Reasserting The Traditional Approach’ [2009] Sing JLS 226, 231. 32 Andrew Phang, ‘Controversy in Common Mistake: Great Peace Shipping Ltd v Tsavliris (International) Ltd’ (2003) 67 Conveyancer and Property Lawyer 247, 252-253. 33 Great Peace [156]. 34 Keates v The Earl of Cadogan (1851) 10 CB 591. 35 Royal Bank of Scotland Plc v Etridge (No. 2) [2002] UKHL 44. 31


Singapore Comparative Law Review Therefore, the necessity of mistake in equity is evident. It alleviates the attendant injustices to claimants and third-party purchasers that follow from the narrow ambit of common law. This reflects the pivotal function of equity to ‘fill the gaps of common law’. Thus, it is fairly concluded by Justice Andrew Phang that mistake in equity is deemed to be ‘conceptually desirable’ and ‘practically persuasive’. 36 Legal Uncertainty Critics of the equitable doctrine may further argue that despite its desirability, its application will introduce uncertainty in the law and create manifest difficulty when courts preside over claims of mistake. This was raised by the CA in Great Peace, which recognised Lord Toulson’s inability to distinguish between the tests at common law and in equity, and the resultant ambiguity over the precise ambit of both doctrines. 37 Upon reviewing the line of cases that followed Solle v Butcher,38 the CA found that although they suggest the operation of mistake in equity and at common law as two separate doctrines, there was in fact no clear distinction made between them. 39 Thus, this conceivably undermined the basis for upholding the operation of mistake in equity. However, fears of legal uncertainty are perhaps overstated and ill-founded. Following a similar review of the cases as the CA conducted in Great Peace, it is highly likely that the courts were willing to uphold mistake in equity despite its allegedly imperceptible differences from the common law doctrine. There was no express intention by any of the judges in such cases to challenge the validity of Solle v Butcher. In fact, it was applied readily in these cases to enable the rescission of the contracts. The CA itself in Great Peace even notes Sir Christopher Staughton’s remarks in West Sussex Properties Ltd v Chichester District Council40 that Solle v Butcher then had remained good law for over 50 years and ‘[despite] scholarly criticism it remained unchallenged in a higher court’. 41 The seemingly uncontentious application of mistake in equity in the aforementioned line of cases thus strongly suggests that the alleged difficulties in distinguishing the doctrines of common law and equity were inconsequential and did not undermine the legitimacy of the latter’s existence and application. It then follows that the CA in Great Peace should not have adopted an excessively legalistic approach42 in attempting to distil the precise differences between the common law and the equitable doctrines. The general distinctions by Lord Evans in William Sindall PLC v Cambridgeshire CC may have sufficed – the test of a ‘fundamental’ mistake in equity is wider than that of a ‘serious and radial mistake’ at common law, and that mistake at common law is restricted to mistakes that pertain to the subject-matter of the contract, whereas mistake in equity applies to a ‘wider and perhaps unlimited category of fundamental mistake’. 43 In addition, Professor Yeo Tiong Min further argues that the ‘fear that the use of ‘elastic’ equitable principles will lead to uncertainty and encourage excessive litigation is arguably exaggerated’. 44 His comments were cited by the SGCA in Digilandmall, which further asserted that courts have been ‘applying equitable principles from time immemorial’, and that the virtue of certainty does not warrant its precedence

Andrew Phang, ‘Controversy in Common Mistake: Great Peace Shipping Ltd v Tsavliris (International) Ltd’ (2003) 67 Conveyancer and Property Lawyer 247, 252. 37 Great Peace [131]. 38 Great Peace [133]-[152]. 39 Great Peace [153]. 40 [2000] EWCA Civ 205. 41 Great Peace [152]. 42 Digilandmall [77]. 43 [1994] 1 WLR 1016, 1042. 44 Yeo Tiong Min, ‘Unilateral Mistake in Contract: Five Degrees of Fusion of Common Law and Equity – Chwee Kin Keong v Pte Ltd’ [2004] SJLS 227, 239. 36


Singapore Comparative Law Review in every situation. 45 Hence, this solidifies the proposition that any uncertainty perceived from the allegedly indistinguishable doctrines of equity and common law has not been significant enough to justify the elimination of the former. Conclusion Given the arguments presented, the elimination of mistake in equity by the CA in Great Peace was arguably unjustified. The CA regrettably failed to give due consideration to the greater achievement of justice, which equity could provide by operating in tandem with common law. The CA also failed to substantiate its argument of resultant uncertainty. This has led to the UK’s undesirable elimination of mistake in equity, which is vastly different from Singapore’s position. The SGCA’s upholding of the equitable doctrine in Digilandmall is conceivably more discerning and should have been the position of the CA in Great Peace. It is perhaps timely to consolidate and review cases involving claims of mistake in the UK following the Great Peace ruling in 2002 and accord a higher level of scrutiny as to whether the parties in such cases have suffered from injustice which ought to be remedied.


Digilandmall [81].


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Refusing to Reinvent the Wheel: The Reaffirmation of the Dunlop Test in Singapore Samuel Teo & Samuel Wittberger Introduction In Denka Advantech Private Limited & another v Seraya Energy Pte Ltd & another 1 (‘Denka’), a five-judge bench of the Singapore Court of Appeal (‘SGCA’) surveyed developments in the penalties doctrine across the common law world. Rejecting the modern reformulation of the test for penalty clauses by the United Kingdom Supreme Court (‘UKSC’) in Cavendish v Makdessi; ParkingEye v Beavis2 (‘Cavendish’ or ‘Cavendish appeals’), the SGCA definitively endorsed the continued applicability of the test articulated in Dunlop Pneumatic Tyre Company, Limited v New Garage and Motor Company, Limited3 (‘Dunlop’) in Singapore. This article will set out the tests in Dunlop and Cavendish, lay out the Singaporean position pre-Denka and analyse the factual background of Denka and the decision of the SGCA regarding the application of the Dunlop and Cavendish tests in Singapore. The authors are of the view that the SGCA’s reaffirmation of the Dunlop test in Singapore is a welcomed development because doing so would be more faithful to the origin and objective of the penalties doctrine, thereby avoiding the uncertainty that the new Cavendish approach brings. Tests in Dunlop and Cavendish For close to a century, the test for determining whether a clause is an unenforceable penalty clause in most commonwealth jurisdictions was the test formulated by Lord Dunedin in Dunlop. The test consists of two parts: one, a general proposition of what differentiates an enforceable liquidated damages clause from an unenforceable penalty clause, and two, a specific articulation of four guiding principles to assist in the making of that determination. For the first part of the test, the broad question is whether the clause in question is a ‘genuine covenanted pre-estimate of damage’ or if it provides for ‘a payment of money stipulated as [in terrorem] of the offending party’.4 The clause is an enforceable liquidated damages clause only if it can be characterised as a ‘genuine covenanted pre-estimate of damage’. For the second part of the test, Lord Dunedin highlighted four guiding principles: (a) the provision would constitute a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach; (b) the provision would be considered a penalty if the breach consisted only in the non-payment of money and the sum stipulated is greater than the sum which ought to have been paid; (c) there is a rebuttable presumption that the provision would be penal if the sum stipulated for was a single lump sum made payable on a number of events of varying gravity; and (d) the sum stipulated can be a genuine pre-estimate of damage notwithstanding that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. 5 [2020] SGCA 119. [2015] UKSC 67. 3 [1915] A.C. 79. 4 Dunlop (n 3) 86 (Lord Dunedin). 5 Ibid 87-88 (Lord Dunedin). 1 2


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In Cavendish, the UKSC reflected on the development of the penalties doctrine in the 100 years since Dunlop and concluded that it had ‘become the prisoner of artificial categorisation’. 6 The UKSC concluded that the development of the law revealed the importance of taking into account ‘interests beyond the compensatory which justify the imposition on a party in breach of an additional financial burden’. 7 Hence, the UKSC reframed the penalties doctrine, holding that ‘the true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.’ 8 The Cavendish test was alternatively characterised as a two-stage test: first, whether the clause protects a legitimate business interest; and second, whether the secondary obligation is ‘extravagant, exorbitant or unconscionable’. 9 Importantly, the UKSC observed that commercial interests could fall within the ambit of ‘legitimate interests’ and justify the imposition, upon a breach of contract, of a financial burden which cannot be related directly to loss caused by the breach. Thus, even though the clause in question had no relationship with the measure of loss attributable to the breach, the UKSC held that the first Appellant had a legitimate interest in the observance of the restrictive covenants which extended beyond the recovery of that loss. 10 Ultimately, the two clauses in Cavendish were held not to fall foul of the penalty rule because the UKSC considered that they were ‘among the parties’ primary obligations’ and hence did not trigger the application of the penalty rule in the first place. 11 The Singaporean position pre-Denka Prior to Denka, the Singaporean courts grappled with the application of the penalty rule in several cases. In its most recent decision before Denka, the SGCA held in Xia Zhengyan v Geng Changqing12 that the Dunlop test “basically embodied” the law on penalties in Singapore. However, with that decision issued just seven months prior to the decision in Cavendish, the SGCA did not have the opportunity to address the new Cavendish test. Between 2015 and 2020, the Singapore High Court (“SGHC”) continued to apply the Dunlop test. Apart from stating that it was bound by stare decisis,13 the SGHC frequently rationalised its application of the Dunlop test by adopting the UKSC's reasoning that ‘in the case of a straightforward damages clause … Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity’. 14 Thus, the SGHC considered it unnecessary to apply the Cavendish test in most cases.15 However, a few SGHC decisions have nonetheless considered applying the Cavendish test alongside the Dunlop test.16 This has been justified on the basis that the end result would remain the same regardless of the test applied. In Allplus Holdings Pte Ltd and others v Phoon Wui Nyen (Pan Weiyuan)17, the SGHC considered Cavendish (n 2) [31] (Lord Neuberger and Sumption). Ibid [152] (Lord Mance). 8 Ibid [32] (Lords Neuberger and Sumption). 9 Ibid [152] (Lord Mance). 10 Ibid [76] (Lords Neuberger and Sumption). 11 Ibid [83] (Lords Neuberger and Sumption). 12 [2015] SGCA 22. 13 Allplus Holdings Pte Ltd and others v Phoon Wui Nyen (Pan Weiyuan) [2016] SGHC 144 (‘Allplus’) [33]; Hon Chin Kong v Yip Fook Mun and another [2017] SGHC 286 [62]; NSL Oilchem Waste Management Pte Ltd v Prosper Marine Pte Ltd and other suits [2020] SGHC 204 (‘NSL Oilchem’) [149]. 14 Cavendish (n 2) [32] (Lord Neuberger and Lord Sumption). 15 Allplus (n 13) [33], citing iTronic Holdings Pte Ltd v Tan Swee Leon and another suit [2016] SGHC 77 [175]. 16 Allplus (n 13) [34], [35]; NSL Oilchem (n 13) [152]. 17 [2016] SGHC 144. 6 7


Singapore Comparative Law Review a clause in a Settlement Agreement which imposed a secondary obligation on the defendant to pay $2.5 million and 12% interest per annum if the primary obligation of a $1 million payment was breached. Applying both tests, the SGHC held that the clause was both not a ‘genuine pre-estimate of the loss that could flow from the breach’ and ‘clearly out of all proportion to any legitimate interest that the Plaintiffs might have in upholding the timely payment of the settlement sum of $1m’.18 This approach was similarly adopted by the SGCA in Leiman, Ricardo and another v Noble Resources Ltd and another19 (‘Leiman SGCA’) where the SGCA declined to decide on the applicability of the Cavendish test.20 The Court was satisfied that regardless of the test applied, it would reach the same conclusion that the clause in question was a penalty clause. This was particularly interesting in light of the decision by the court below, where the SGHC was of the opinion that the Cavendish test offered ‘the most appropriate guidance’ because the disputed clause was ‘not a straightforward damages clause’. 21 However, the SGCA did not pronounce on this specific issue as it ultimately found that a different clause constituted a penalty, rather than the clause which had been considered by the SGHC. Brief factual background of Denka This bring us to the decision in Denka where, unlike its decision in Leiman SGCA seven months earlier, the SGCA firmly rejected the application of the Cavendish test in Singapore. 22 The Denka appeal arose out of a decision in the SGHC where the plaintiff, Seraya Energy Pte Ltd (‘Seraya’), commenced proceedings against the defendants, Denka Advantech Pte Ltd and Denka Singapore Pte Ltd (collectively referred to as the ‘Denka companies’), and claimed damages under the liquidated damages clause contained in the Electricity Retail Agreements (‘ERAs’) between the parties for the defendants’ alleged repudiatory breach of the agreements. The Denka companies concluded three ERAs with Seraya in 2012 for the supply of electricity to all three of the former’s plants in Singapore. Under the ERAs, the mutually agreed pricing plan was based on a formula which took into account the prevailing High Sulphur Fuel Oil prices and Foreign Exchange rates. Each of the three ERAs contained a liquidated damages clause, which was tied, inter alia, to Seraya’s express contractual right to terminate the ERAs under various scenarios and any breach by Denka of its obligations under the ERAs. The ERAs were due to expire on 31 January 2021. However, in 2014, after some discussions between the representatives of the Denka companies, Seraya, and YTL PowerSeraya Pte Ltd (the parent company of Seraya), the three ERAs were terminated. In the SGHC case, Seraya argued that the Denka companies were liable for breaching the ERAs and claimed liquidated damages for the wrongful termination of the ERAs. The Denka companies denied liability for wrongful termination of the ERAs and argued alternatively that the liquidated damages clauses in the ERAs amounted to unenforceable penalties. On the question of liability, the SGHC held in Seraya’s favour and found that the Denka companies were in repudiatory breach of the ERAs. On the question of remedies, the SGHC considered that he was bound by stare decisis to apply the Dunlop test and found that the liquidated damages clauses in the ERAs were not a genuine pre-estimate of Seraya’s damage and were therefore unenforceable penalty clauses. The SGHC

Allplus (n 13) [31], [35]. [2020] SGCA 52. 20 Ibid [98]. 21 Leiman, Ricardo and another v Noble Resources Ltd and another [2018] SGHC 166 [197]. 22 Denka (n 1) [151]. 18 19


Singapore Comparative Law Review also considered, in obiter, that even under the Cavendish test, Seraya had failed to plead and establish any legitimate interest in Denka’s continued performance of the ERAs other than financial loss. On appeal, the SGCA decided to apply the Dunlop principles to the facts of Denka and held that the liquidated damages clauses were not penalties since the sums payable under the clauses were not extravagant or unconscionable when compared with the greatest conceivable loss under the ERAs. 23 In determining the ‘loss’ to Seraya, the SGCA considered the loss of bargain damages which could have been recovered. Furthermore, the SGCA was satisfied, based on the expert evidence, that the 40% multiplier in the liquidated damages clauses was a genuine and reasonable attempt to recoup Seraya’s losses. 24 Rejection of the Cavendish test in Denka Where the rejection of the Cavendish test is concerned, it must be clarified that this rejection was limited to the content of the penalties doctrine, or in other words, the ‘applicable legal criteria in relation to the Penalty Rule’.25 The SGCA was actually in agreement with the UKSC’s holding in Cavendish regarding the scope of the penalties doctrine – that ‘the Penalty Rule applies only where there has first been a breach of contract’. 26 While the issue of the scope of the penalties doctrine merits much discussion as well, the focus of this article is on the SGCA’s analysis of the content rather than the scope of the doctrine. The SGCA had two main reasons for rejecting the Cavendish test. First, the court disagreed with the UKSC’s extension of the penalties doctrine beyond dealing with what is necessary for compensation only. The SGCA started from the premise that the consequences of breaches of contract, or secondary obligations, are ordinarily within the ‘province’ of the courts.27 Where parties include remedies to be incurred upon breach in their contract itself, these are meant to only be ‘a convenient substitute for the court’s determination of the appropriate extent of compensation’, and hence ‘are necessarily subject to judicial scrutiny’.28 Since the broad policy underlying awards of contractual remedies ‘must always be to compensate, and not punish’, the penalties doctrine can be applied to invalidate clauses that do not comply with this objective of compensation. 29 Seen in this light, the requirement for the clause to provide a ‘genuine covenanted pre-estimate of damage’ under the Dunlop test is more consistent with the underlying objective of the penalties doctrine. 30 In comparison, the tolerance of ‘commercial interests’ under the Cavendish test may lead to the enforcement of provisions that require a party to pay a sum in damages that is greater than the pre-estimate of likely loss.31 The SGCA considered that such a provision ‘must necessarily be (on a normative level) penal, as opposed to compensatory’ (emphasis added by the Court).32 Second, the SGCA recorded its concern over the concept and language of ‘legitimate interests’ in the Cavendish test. The SGCA noted that the concept of ‘legitimate interests’ was one that ‘could be utilised … too flexibly’ and could therefore lead to significant uncertainty.33 Chiefly, the SGCA was afraid that this uncertainty would affect parties at two stages. First, prior to entering into contracts, parties may be confused Ibid [309]. Ibid [307]. 25 Ibid [100]. 26 Ibid [99]. 27 Ibid [93], [94]. 28 Ibid [93]. 29 Ibid [93]. 30 Ibid [152]. 31 Ibid [152]. 32 Ibid [152], [154], citing PH Hydraulics & Engineering Pte Ltd v Airtrust (Hongkong) Ltd and another appeal [2017] 2 SLR 129 (‘PH Hydraulics’) [135]. 33 Ibid [155]. 23 24


Singapore Comparative Law Review as to whether their liquidated damages clauses would pass muster. Second, in the process of litigation, parties may similarly be uncertain about the result that the court might arrive at. As such, the SGCA shied away from the use of the ‘legitimate interest’ terminology, concluding that where the penalty rule is concerned, ‘the only ‘legitimate interest’... is that of compensation.’ 34 Nonetheless, the SGCA stressed that its rejection of the Cavendish test did not entail a rejection of the key elements that the UKSC considered in that case such as the commercial interests and relative bargaining power of the parties.35 Instead, the SGCA held that such factors should be considered within the Dunlop framework, with ‘the focus [being] on whether or not the provision or clause concerned is a genuine preestimate of the likely loss’. 36 To illustrate, in practice, how commercial interests could fit within the framework of compensation, the SGCA contrasted the facts in the first and second Cavendish appeals and discussed how they would have been resolved using the Dunlop test. In the first appeal, the SGCA noted that the same outcome would have been reached using the Dunlop test, since the damage to the company’s goodwill – a ‘commercial interest’ – caused by Mr Makdessi’s breach of the restrictive covenants could have readily been characterised as an intangible form of damage included under the clause. On the other hand, the SGCA held that the second appeal was inconsistent with the Dunlop principles since the ‘legitimate interest’ of keeping the car park available for shoppers and in turn ParkingEye’s ability to turn a profit ‘had little to do with compensation for loss’. 37 Significance of the decision in Denka In the authors’ view, the Denka decision is significant insofar as it has settled the debate on whether the Cavendish test is applicable in Singapore. The decision should hopefully also put to rest the differences in approaches employed by the SGHC – whether the Cavendish test should be avoided altogether or applied alongside the Dunlop test. As noted above, the Singaporean courts have arrived at the same conclusion in various decisions irrespective of whether the Dunlop or Cavendish test is applied. The SGCA took notice of this and concluded that ‘in the vast majority of cases, it is possible that the same result or outcome will ensue regardless of [the test applied]’.38 The approach adopted by the SGCA in Denka is to be welcomed. The reformulation of the rule against penalty clauses in Cavendish inevitably chips away at the theoretical foundations of the penalties doctrine, originally meant to render unenforceable clauses that go beyond mere compensation for loss. 39 This has been described as representing ‘a significant weakening of the doctrine’ of penalties. 40 Indeed, even supporters of the Cavendish reformulation do not deny that the new test extends beyond the compensatory principle, but instead draw attention to the ‘newfound flexibility’ of the penalties doctrine that is required by contemporary commerce. 41 This departure from the compensatory principle in Cavendish has been

Ibid [185]. Ibid [153]. 36 Ibid [153], [173] and [176]. 37 Ibid [182]. 38 Ibid [183]. 39 Wong Wen Jian, ‘Penalty Clauses: Lessons from Australia and England and Possible Legislative Reforms’ (2018) SJLS 104 113. 40 William Day, ‘A Pyrrhic victory for the doctrine against penalties: Makdessi v Cavendish Square Holding BV’ (2016) JBL 115 125. 41 Ravi Jackson, ‘The Penalty Rule: Redrawing the Lines’ (2017) 8 QMLJ 113 124; Raphael Lok Hin Leung, ‘In Defence of the Halfway House - The Cavendish Penalty Rule since 2015’ (2019) 13 HKJLS 55 59; Kal K C Leung, ‘The Penalty Rule: A Modern Interpretation’ (2017) 29 Denning LJ 41 61. 34 35


Singapore Comparative Law Review justified on two grounds – first, for being more consistent with the UK legal precedents since Dunlop,42 and second, for being more consistent with the approach taken by Lord Atkinson and the other Lordships (other than Lord Dunedin) in Dunlop itself.43 In Singapore, unlike in the UK, the departure from the compensatory principle is not as appropriate since the Singapore legal precedents have consistently emphasised the ‘strength of contract law’s commitment to the compensatory principle’. 44 This has also manifested in the ‘resounding rejection of deterrence and punishment as acceptable aims in the law of contract’.45 Thus, by reaffirming the application of the Dunlop test in Singapore and eschewing the weakening of the penalties doctrine in Cavendish, the SGCA is bringing the Singapore position more in line with principles held sacrosanct in other areas of contract law. Additionally, the departure from the simple test of determining whether a clause provides a genuine preestimate of loss further increases uncertainty in this area of the law. The continued relevance of the penalties doctrine aside – it has been acknowledged to be ‘an ancient, haphazardly constructed edifice which has not weathered well’ 46 – the shift to a ‘legitimate interests’ test has introduced further ambiguity at both stages of the test: first, what constitutes legitimate interests, and two, how does the court decide whether something is out of proportion to the legitimate interests asserted. First, the UKSC did not provide a definition of what constitutes legitimate interests. Instead, as mentioned above, it merely stated that an impugned clause will only be deemed a penalty if it is ‘a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation’ (emphasis added by the authors). 47 The only further guidance provided was that the punishing of the defaulting party cannot be considered a ‘legitimate interest’.48 Legal scholars have thus observed that the Cavendish test introduced an element that is ‘relatively abstract’,49 ‘broad’ and ‘amorphous’.50 The SGCA agreed with these criticisms, concluding that there was a ‘danger of uncertainty that could be engendered by the excessive flexibility afforded by that concept itself’. 51 One commentator even offered a suggestion that in creating the ‘profound ambiguity’ in the ‘legitimate interests’ concept, while neither the UKSC nor the Australian High Court has formally abolished the penalties doctrine, they have ‘in substance achieved the same ends’. 52 The authors posit that this abstract nature is the first source of uncertainty. With the lack of a clear definition to guide courts, the concept of ‘legitimate interests’ is open to wide (and potentially conflicting) interpretation. Commentators have suggested that the Cavendish approach ‘does not instil confidence that there is a test that can be easily applied’ due to the numerous potential formulations of a legitimate performance interest.53 The protean nature of the legitimate interests test thus means that creative parties (and counsel) will take comfort in the fact that liquidated damages clauses will usually pass the first stage of Cavendish (n 2) [152] (Lord Mance). Ibid [23], [24] (Lords Neuberger and Sumption). 44 PH Hydraulics (n 32) [73]; Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 44 [123]. 45 PH Hydraulics (n 32) [73]. 46 Cavendish (n 2) [3] (Lords Neuberger and Sumption). 47 Ibid [32]. 48 Ibid. 49 Ravi Jackson, ‘The Penalty Rule: Redrawing the Lines’ (2017) 8 QMLJ 113 121. 50 Olivia Barron, ‘The Penalty Doctrine: Reformulating New Zealand’s Regime Against Penalty Clauses’ (2018) 8 VUWLRP 79 (‘Barron’) 15. 51 Denka (n 1) [165]. 52 Sarah Worthington, ‘The Death of Penalties in Two Legal cultures?’ (2016) 7 UK Supreme Court Yearbook 129 (‘Worthington’) 151. 53 Elisabeth Peden, ‘Penalties after Paciocco – the Enigma of “Legitimate Interests”?’ (2019) 35 JCL 263 267. 42 43


Singapore Comparative Law Review the Cavendish test if they can point to a legitimate interest that it protects, even if there is clearly no real loss suffered. This can be observed by looking at cases decided by the English courts post-Cavendish. For example, in Zccm Investments Holdings Plc v Konkola Copper Mines Plc,54 the High Court of Justice (‘EWHC’) held that the clause in question was not an unenforceable penalty clause. 55 In doing so, the court stated that ‘ZCCM had a legitimate interest in requiring strict compliance with the Settlement Agreement’. 56 In the context of a liquidated damages clause for the failure to repay sums advanced, the EWHC in Cargill International Trading Pte Ltd v Uttam Galva Steels Limited 57 simply stated that the innocent party ‘had a legitimate interest in ensuring that Uttam repaid the money Cargill had advanced and at a time at which Uttam had undertaken to repay it.’58 The ‘legitimate interests’ identified in the above two cases are nothing more than an intest in securing performance of the primary obligations. This suggests that ‘legitimate interests’ will be readily found in most, if not all, cases applying the Cavendish test. In turn, this enables parties to impose contractual ‘punishments’ by disguising them as a means of safeguarding legitimate interests. As other commentators have noted, the ‘legitimate interests’ test also allows for deterrent clauses to potentially escape scrutiny under the penalties doctrine. 59 This was precisely the situation in the second Cavendish appeal – ParkingEye v Beavis – where ParkingEye charged a £85 sum to an overstaying motorist in a carpark that it managed (but did not own). The UKSC recognised that ParkingEye ‘lost nothing by the unauthorised use resulting from Mr Beavis’ overstaying’.60 Nonetheless, the clause was not struck down as an unenforceable penalty clause because ParkingEye was found to have a legitimate interest in deterring overstayers. The second source of uncertainty stems from the emphasis on unconscionability in the proportionality inquiry of the Cavendish test. The touchstone of the test is now the ‘unconscionability’ or ‘extravagance’ of the sum imposed in relation to the legitimate performance interest. 61 Legal scholars have noted that this itself creates uncertainty, not least because ‘exorbitance’ and ‘extravagance’ have no legal significance on their own, but also because unconscionability in this context ‘does not bear its usual meaning (i.e. some species of procedural misconduct)’.62 In fact, the UKSC did not articulate exactly what ‘unconscionability’ refers to, apart from the fact that it is assessed in relation to the legitimate performance interest. The authors argue that this reliance on an amorphous standard of ‘unconscionability’ muddies the water in the proportionality inquiry. It is unclear exactly how unconscionability is to be assessed under the Cavendish test. In the Dunlop test, the ‘extravagance’ or ‘unconscionability’ of the sum is measured in relation to the greatest loss that could conceivably be proved to have followed from the breach. 63 The authors argue that this enables the court to more readily ascertain whether the sum amounts to a penalty – by comparing it to a number that can objectively be arrived at through an inquiry as to the greatest possible loss that might flow from a breach. Under the Cavendish test, however, there is no similar objective reference point. By assessing the ‘unconscionability’ of a sum in relation to a ‘legitimate interest’ instead, the court is essentially tasked with weighing the commercial interest that the innocent party argues for against the consequences prescribed in [2017] EWHC 3288 (Comm). Ibid [39]. 56 Ibid [34]. 57 [2019] EWHC 476 (Com). 58 Ibid [43]. 59 Jonathan Morgan, ‘The Penalty Clause Doctrine: Unlovable but Untouchable’ (2016) CLJ 11 (‘Morgan’) 12. 60 Cavendish (n 2) [97] (Lords Neuberger and Sumption). 61 Morgan (n 59) 12. 62 Ibid 13. 63 Dunlop (n 3) 87 (Lord Dunedin). 54 55


Singapore Comparative Law Review the clause. Lord Hodge admitted as much when he considered that the court is being asking to ‘make a value judgment’ in the second stage of the Cavendish inquiry.64 The authors argue that this need for a value judgement significantly increases uncertainty; the lack of an objective reference point means that parties, counsel and judges are likely to interpret unconscionability differently as there is ‘no easy benchmark provided by compensatory damages’.65 Furthermore, this uncertainty is exacerbated by the fact that the ‘legitimate interests’ stage is easily crossed and will almost always be satisfied.66 This means that the outcome of any penalties case will ‘exclusively turn on whether a sum’s detriment is out of all proportion to those interests’. 67 This increases the risk that multiple analyses and outcomes can result from the application of the same test to the same fact scenario. 68 In comparison, while the Dunlop test similarly requires courts to assess whether and to what extent the prescribed consequences exceed the pre-estimate of loss, this exercise is less instrumental in deciding the outcome of most cases since the threshold requirement of proving that the clause represents a ‘genuine pre-estimate of loss’ is much more difficult to overcome. With Denka putting the Dunlop and Cavendish debate to rest in Singapore for the foreseeable future, it would be interesting to observe how future courts reconcile the factors identified in Cavendish like the equality of bargaining power between contracting parties within the Dunlop framework as intended by the SGCA.

Cavendish (n 2) [249], [259], and [287] (Lord Hodge). Worthington (n 52) 147. 66 Barron (n 50) 15. 67 Ibid. 68 Ibid. 64 65


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Awards Rendered in Remote Hearings in International Arbitration: To Set Aside or Not To Set Aside? Samuel Teo & Samuel Wittberger Introduction The sudden onset of the COVID-19 pandemic has fundamentally changed the way arbitration proceedings are conducted. National lockdowns and travel restrictions have necessitated a shift to remote hearings, the alternative being the prospect of lengthy delays. Despite familiarity with remote means such as teleconferencing for case management conferences and other pre-hearing proceedings, the conduct of merits hearings in a fully remote manner was significantly less common prior to the advent of COVID-19. This has thus raised concerns as to whether a tribunal’s decision to conduct hearings remotely opens the door to setting aside proceedings. For the purposes of this article, remote hearings will be defined as “hearings that are conducted using communication technology to simultaneously connect participants from two or more locations”.1 Whilst numerous arbitral institutions have issued various practice notes2 and revised their institutional rules to provide frameworks for remote hearings, 3 national arbitration legislation has mostly been silent on the matter.4 As a result, in the short span of a year, decisions to hold arbitration hearings remotely have already been challenged before national courts. 5 The authors opine that it is only a matter of time before such challenges arrive on Singaporean and English shores. Thus, this article focuses on whether setting aside regimes for international arbitration in both Singapore and England and Wales would provide for an award to be vacated on the basis of the conduct of a remote hearing. Setting Aside in Singapore and the United Kingdom: A Brief Overview Singapore International arbitration in Singapore is governed by the International Arbitration Act (“IAA”), which gives the 1985 UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) (with the exception of Chapter VIII) the “force of law” in Singapore. 6 The General Division of the High Court in Singapore is thus empowered to consider setting aside applications on the seven grounds set out in Article 34(2) of the Model Law. Maxi Scherer, ‘Chapter 4: The Legal Framework of Remote Hearings’, in Maxi Scherer, Niuscha Bassiri, and Mohamed S. Abdel Wahab (eds), International Arbitration and the COVID-19 Revolution (Kluwer Law International 2020) 69. 2 The following arbitral institutions have issued guidelines on online/remote/virtual hearings: International Centre for Settlement of Investment Disputes (ICSID), Lagos Court of Arbitration (LCA), Hong Kong International Arbitration Centre (HKIAC), International Chamber of Commerce (ICC), and Vienna International Arbitration Centre (VIAC). 3 LCIA published its LCIA Arbitration Rules 2020 which comes into effect on 1 October 2020 and ICC published its 2021 Arbitration Rules which entered into force on 1 January 2021. 4 Scherer (n 1) 74. 5 Legaspy v Fin. Indus. Regulatory Auth., Inc. No. 20 C 4700, 2020 WL 4696818. (N.D. III.); Cosmo Sanderson, ‘ICSID panel challenged over decision to hold virtual hearing’ (Global Arbitration Review, 14 August 2020) <> accessed 13 May 2021; Case T 7158-20 (Svea Court of Appeal), see Olof Olsson and Jesper Tiberg, ‘Do parties have an absolute right to dispute in person in Sweden?’ (International Law Office, 6 April 2021) <> accessed 13 May 2021. 6 International Arbitration Act (“IAA”), s 3. 1


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However, unlike other Model Law jurisdictions, the IAA contains two additional grounds for the setting aside of international arbitration awards. Section 24 of the IAA provides that awards may be set aside if: 1. the making of the award was induced or affected by fraud or corruption; or 2. a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced. Crucially, the “rules of natural justice” have not been defined in the IAA itself. At first glance, this appears to constitute a wide range of situations that may give rise to an application for setting aside. However, the Singapore courts have repeatedly stressed that “the threshold for a finding of a breach of natural justice is a high one, and that it is only in exceptional cases that a court will find that threshold crossed”.7 To this end, the courts have established a robust framework for setting aside applications on the basis of a breach of the rules of natural justice. The Court of Appeal in the seminal case of Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd8 (“Soh Beng Tee”) held that a party challenging an arbitration award as having contravened the rules of natural justice must establish the following four points: 9 1. 2. 3. 4.

The claimant must identify which rule of natural justice was breached. The claimant must also identify how the specific rule of natural justice was breached. Further, the claimant must show that the breach was connected to the making of the award. Lastly, the claimant must show the breach prejudiced its rights. A review of Singaporean jurisprudence on this issue reveals that this heading of natural justice generally encompasses the right to be heard, as well as the right to an unbiased tribunal. 10

Regarding the first issue, the Court of Appeal endorsed Marks J’s observations in Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd 11 that there are “two pillars of natural justice”. 12 First, that “an adjudicator must be disinterested and unbiased” and second, that “the parties must be given adequate notice and opportunity to be heard”. 13 England and Wales, Northern Ireland In contrast, the English Arbitration Act 1996 (“EAA 1996”) does not give effect to the Model Law. Instead, setting aside is provided for in sections 67 and 68 of the EAA 1996. In particular, section 68 empowers a court to set aside an award if it involves a “serious irregularity affecting the tribunal, the proceedings or the award” that “has caused or will cause substantial injustice to the applicant”. 14 In the context of setting aside for breaches of natural justice, section 68 of the EAA 1996 differs from the IAA in two material aspects. First, section 68 does not use the phrase “rules of natural justice” in relation to the power to set aside awards. Instead, breaches of natural justice are judicially reconciled as a form of

China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2020] 1 SLR 695 (“China Machine”) [87]; Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng Tee”) [54]. 8 [2007] 3 SLR(R) 86. 9 ibid [29]. 10 CDX and another v CDZ and another [2020] SGHC 257 [34]. 11 [1978] VR 385. 12 Soh Beng Tee (n 8) [43]. 13 ibid. 14 English Arbitration Act 1996 (“EAA 1996”), s 68. 7


Singapore Comparative Law Review “serious irregularity”.15 Second, unlike the IAA which does not define what the “rules of natural justice” are, section 68(2) of the EAA 1996 contains a closed list of nine situations that would amount to a “serious irregularity”. At first glance, this seemingly provides a narrower set of grounds on which an award can be challenged. Upon closer examination, however, section 24(b) of the IAA has been applied in Singapore generally corresponds with the first four kinds of irregularities listed in section 68(2) of the EAA 1996.16 It may thus be concluded that notwithstanding the linguistic differences between both provisions, their substantive content is rather similar. However, it is worth noting that the EAA contains the higher threshold of “substantial injustice” having been caused by the particular serious irregularity, as opposed to mere “prejudice” under the IAA. Can an Award be Set Aside on the Basis of Hearings having been Conducted Remotely? In this section, the authors consider whether a tribunal’s decision to proceed with remote hearings may form the basis of a setting aside application for arbitrations seated in Singapore and England and Wales or Northern Ireland. This section first examines whether either lex arbitri contains an explicit right to physical hearings (or prohibition against remote hearings), before exploring the situations in which a decision to conduct remote hearings on the merits may form the basis for a setting aside application. Is There a Right to Physical Hearings in the IAA and EAA 1996? Singapore a. Provisions in the IAA The IAA does not contain an express prohibition on remote hearings or the requirement that hearings be conducted in person. However, a closer review of the relevant provisions of the Model Law that it incorporates suggests that there may be an implicit requirement that hearings be held physically. First, Article 24(1) of the Model Law deals most directly with the conduct of oral hearings. It provides that “the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument” and “unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party” (emphasis added).17 This provision implies that for international arbitrations seated in Singapore, the tribunal is required to hold London Underground Ltd v Citylink Telecommunications Ltd Rev 1 [2007] EWHC 1749 (TCC) [37] (“From these decisions I derive the following propositions relevant to grounds under section 68(2)(a): (1) The underlying principle is that of fairness or, as it is sometimes described, natural justice.”). 16 As discussed above, the rules of natural justice have generally been interpreted to encompass situations in which a party was denied its right to be heard, or its right to an unbiased tribunal. Singaporean case law indicates that S 24 of the IAA maps onto S 68(2)(a), (b) and (d) of the EAA 1996. For instance, in CAI v CAJ and another [2021] SGHC 21, an award was set aside on the basis of the claimant having been deprived of a reasonable opportunity to respond to a new defence that had been raised in written closing submissions (equivalent of S 68(2)(a) EAA 1996). An arbitrator’s refusal to hold an oral hearing for the presentation of oral evidence (which resulted from a misapprehension of his powers under the applicable institutional rules) amounted to a breach of natural justice, with the SGCA thus upholding the decision below which had set aside the award in CBS v CBP [2021] SGCA 4 (equivalent of S 68(2)(b) EAA 1996). The tribunal’s failure to consider certain pieces of evidence and arguments amounted to a breach of natural justice, thus warranting a partial setting aside of the award by the SGCA in BRS v BRQ and another and another appeal [2020] SGCA 108 (equivalent of S 68(2)(d) EAA 1996). The ground for setting aside under S 68(2)(c) EAA 1996, that of a tribunal failing to conduct proceedings in accordance with the procedure that the parties had agreed upon, is expressly covered under S 34(2)(a)(iv) of the Model Law. 17 1985 UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), Article 24(1). 15


Singapore Comparative Law Review “oral hearings” as long as one party requests it. However, this terminology alone is inconclusive as to whether such hearings must be conducted in person or can proceed remotely. This is further discussed below in section (b). Second, Article 20(2) of the Model Law provides that “the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts, or the parties”. Although this does not explicitly refer to “oral hearings” (unlike Art 24(1)), the reference to a “meet[ing) at any place” (emphasis added) may similarly be interpreted as containing an implicit requirement that hearings be conducted physically. Third, Article 18 of the Model Law affords parties “a full opportunity of presenting” their cases. Despite this broad phrasing, the Singapore courts have consistently interpreted this provision as “confer[ring] no more and no less on a party than a right to have a reasonable opportunity to present its case”. 18 b. The Narrow Interpretation of IAA Provisions Although this specific issue of remote hearings has not been examined in the Singaporean context thus far, academic review of other similar arbitration legislation suggests that remote hearings may not qualify as “oral hearings”. Some academics have justified this interpretation based on the alleged curtailment of parties’ abilities to effectively present their cases that are imposed in remote hearings and the remote examination of witnesses. 19 For instance, commentators have argued that under §1047 (the equivalent of Article 24(1) of the Model Law) of the German Code of Civil Procedure (ZPO), “An oral hearing is only an oral hearing where the participants are physically present. Virtual presence does not suffice. Telephonic and video conferences are not oral hearings within §1047.”20 This bears some significance, seeing as the 10th Book of the German Code of Civil Procedure (ZPO), which contains its arbitration legislation, is “to a large extent...a direct adoption of the Model Law”. 21 Similar positions have been expressed concerning Swedish arbitration legislation, which is heavily influenced by the Model Law as well.22 Thus, there appears to be some academic support for the narrow interpretation of Article 24(1) of the Model Law to require in-person “oral hearings”. In a similar vein, it has been stated that “the second paragraph of article 20 concerns the geographical location where the tribunal’s meetings and the hearings of the arbitration take place” (emphasis added). 23 This has also been described as a “physical location of meetings and hearings”, further reinforcing the view that remote hearings (which take place online) are not provided for under the Model Law. 24 Thus, it may be concluded that for international arbitrations seated in Singapore, there is no explicit requirement for tribunals to conduct their hearings in person. However, parties may argue against remote hearings, either on the basis of the implied requirement for physical hearings in Articles 24(1) and 20(2) or

JVL Agro Industries Ltd v Agritrade International Pte Ltd [2016] SGHC 126 [145]; China Machine (n 7) [96] - [97]; CBS v CBP (n 16) [50]. 19 Gary Born, International Commercial Arbitration (3rd edn, Kluwer Law International 2021) 2433. 20 Rolf Schütze, in Bernhard Wieczorek & Rolf Schütze (eds.), Zivilprozessordnung: Großkommentar, §1047, (5th ed. 2020) 8. 21 Andreas Respondek, ‘Arbitration in Germany’, (2014) 25(2) The American Review of International Arbitration 289, 290. 22 Stefan Lindskog, Skiljeförfarande: En Kommentar (2nd edn, 2012) 653. 23 Pietro Ortolani, ‘Article 20 - Place of Arbitration’ in Ilias Bantekas and others(eds), UNCITRAL Model Law on International Commercial Arbitration: A Commentary, (Cambridge University Press 2020) 587. 24 Ortolani (n 23) 589. 18


Singapore Comparative Law Review the need to have a full opportunity to present its case under Article 18. Both these provisions will be explored in the subsequent section. c. Our Position Notwithstanding the academic arguments set out elsewhere (as discussed briefly above), we opine that remote hearings are compatible with the Model Law framework. First, Article 24(1) merely refers to “oral hearings”, without specifying the form that such hearings should take. A review of the travaux préparatoires indicates that Article 24 was designed to protect the right of parties to present their case effectively through such oral hearings. 25 Much of the debate surrounding this article thus was whether the right to oral hearings was absolute, such that a party may be able to request it at any stage of the proceedings and regardless of whether it had agreed to not request for oral hearings at an earlier date.26 The Commission recognised that although the right to an oral hearing was important and should be safeguarded, a tribunal should also be empowered to prevent delays to proceedings. 27 It was for this reason that the language of holding oral hearings at “an appropriate stage” was retained. A thorough review of the travaux préparatoires indicates that at no stage was the “physical” nature of oral hearings referenced. This is likely because no other viable means of conducting oral hearings existed at the time, thus nullifying the need for such a specification. The viability of videoconferencing technology only began in the 1990s, with significant developments occurring in the following two decades. 28 Thus, we argue that the mere reference to “oral hearings” cannot justify the reading of an in-person requirement into Article 24(1). The primary concern is whether parties can effectively present their case in an oral hearing, regardless of the form it takes. Unlike the rarity and inaccessibility of videoconferencing technology at the time of the Commission’s drafting of the Model Law, these technologies are now ubiquitous and far more advanced than they were 30 years ago. Parties are now able to participate in a remote hearing from anywhere in the world, in real-time, as long as they own laptops, web cameras and have access to a stable internet connection. The ease of holding virtual hearings has been further complemented by developments such as the formation of the International Arbitration Centre Alliance, in which three alternative dispute resolution hearing centres have collaborated to provide access to high quality “Global Hybrid Hearings”.29 Due to these developments, counsel and arbitrators alike have regarded virtual hearings as “almost as good as a physical hearing” and “not seem[ing] virtual at times”. 30 Hence, apart from remote hearings which seriously impede a party’s ability to present its case, remote hearings are generally compatible with the concept of an “oral hearing” as per Article 24(1) of the Model Law. This is further discussed in a later section.

UNCITRAL ‘Summary Records for Meetings on the UNCITRAL Model Law on International Commercial Arbitration: 323rd Meeting’ UN Doc A/CN.9/246. 26 ibid. 27 ibid; UNCITRAL ‘Summary Records for Meetings on the UNCITRAL Model Law on International Commercial Arbitration: 324th Meeting’ UN Doc A/CN.9/246. 28 Theresa M. Senft, ‘Videoconferencing’ (Encyclopedia Britannica, 1 Aug 2016) <> accessed 30 June 2021. 29 Maxwell Chambers, ‘Leading ADR-service rivals from England, Singapore, and Canada launch International Arbitration Centre Alliance’, (Maxwell Chambers, 13 May 2020) <> accessed 20 June 2021. 30 Maxwell Chambers, ‘Virtual Hearing Testimonials’ (Maxwell Chambers) <> accessed 24 June 2021. Commenting on the Maxwell Chambers Virtual Hearing Experience, Mr Low Chai Chong (a senior partner at Dentons Rodyk) stated “All 3 expert witnesses were very cooperative, so much so that it did not seem virtual at times, and it was as though we were all physically in Maxwell Chambers’ Henderson Room”. Mr Francis Xaiver SC, an arbitrator, commented that “The hearing proceeded smoothly and efficiently. It was almost as good as a physical hearing. I am now a big supporter of virtual hearings”. 25


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Second, Article 20(2) of the Model Law must be interpreted in its context. Read together with Article 20(1), it is evident that the provision was intended to decouple the concept of the arbitral seat from the location of arbitral proceedings. This was necessary because “it was not clear whether the possibility for the tribunal to meet outside of the seat would be restricted to certain activities or may potentially extend to the entire development of the arbitral proceedings”. 31 To resolve this concern, the Working Group thus adopted a broadly phrased clause in Article 20(2), ensuring that a tribunal would be empowered to conduct all activities related to the arbitration outside of the arbitral seat. 32 An expansive interpretation of Article 20(2) to require proceedings to take place in person does not find support in the travaux préparatoires; a requirement for in-person hearings was not discussed, and understandably so. We thus argue that Article 20(2) should be understood based on its plain meaning; that arbitral proceedings need not be restricted to taking place physically at the seat. Finally, Article 18 of the Model Law protects the right of parties to be “treated with equality” and the “full opportunity” to present their cases. To appreciate the intention behind what is regarded as a principle “fundamental to the rule of justice”, it is necessary to sift through the drafting history of this particular provision. 33 In the original draft of the Model Law, this principle was reflected as Article 19(3), in a section titled “Determination of rules of procedure”.34 Article 19 (of the original draft) was regarded as the “Magna Carta of Arbitral Procedure”, and described as potentially “the most important provision of the model law”.35 In that form, it was intended to emphasise the importance of party autonomy in choosing procedural rules, whilst at the same time conferring “wide discretion” on the tribunal to determine such rules of procedure in the absence of party agreement. 36 It was in this context that Article 19(3) was developed, to enshrine “fundamental principles of fairness” that should guide a tribunal in the exercise of its discretion over the rules of procedure. We thus argue that this broad-form provision could not have been intended to prescribe a right as specific as an entitlement to in-person oral hearings. This is argument is buttressed by the original official commentary to the Model Law, which specifies that Article 19(3) “adopts basic notions of fairness…[which] are to be followed in all procedural contexts”. 37 Crucially, the commentary specified that these broad principles are “put in more concrete form by provisions such as articles 24(3), (4) and 26(2)”. 38 This thus acknowledged that matters relating to the specifics of holding oral hearings (Article 24) or the presentation of expert evidence (Article 26) were not to be governed by Article 19(3), but by other provisions instead. Thus, Article 19(3) could not have been intended to enshrine a specific right to in-person hearings. Ultimately, following agreement by members of the Commission that the principle enshrined in Article 19(3) was “too important a rule to be hidden in Article 19”, it was decided that it be converted into the present-day Article 18.39 This was meant to reflect the Commission’s understanding that this provision reflected a “general principle that should govern all phases of the arbitration proceedings”. Thus, we argue Ortolani (n 23) 568. ibid. 33 Maxi Scherer, Dharshini Prasad, and Dina Prokic, ‘The Principle of Equal Treatment in International Arbitration’ (September 3, 2018) <> accessed 18 June 2021. 34 UNCITRAL ‘Summary Records for Meetings on the UNCITRAL Model Law on International Commercial Arbitration: 330th Meeting’ UN Doc A/CN.9/246; UNGA Report of the Secretary General, ‘Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration’, UN Doc A/CN.9/264. 35 ibid. 36 ibid. 37 ibid. 38 ibid. 39 UNCITRAL (n 34). 31 32


Singapore Comparative Law Review that the mere holding of a remote hearing cannot by itself be incompatible with Article 18. However, in certain situations, how a remote hearing is conducted may offend the fundamental principle of equality per Article 18, and potentially form the grounds for a setting aside application as discussed below.

England and Wales, Northern Ireland The EAA 1996 is also silent on the issue of whether physical hearings are required. Section 34 of the EAA 1996 empowers tribunals to decide on all procedural and evidential matters, including “when and where any part of the proceedings is to be held” 40 and “whether and to what extent there should be oral or written evidence or submissions”. 41 The mere use of the word “oral” evidence is inconclusive, but the reference to “where” the proceedings are to be held could be interpreted as implicitly recognising that oral hearings are to be conducted physically, in an identifiable physical location. However, there is little else in the text of the EAA 1996 to support such a position. Similar to Article 18 of the Model Law, the EAA 1996 also contains provisions providing parties with a reasonable opportunity to be heard. Section 33 of the EAA 1996 makes it mandatory for the tribunal to “act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent”.42 Thus, parties seeking to challenge awards rendered in England and Wales or Northern Ireland could rely on the implied requirement for physical hearings or the need to have a reasonable opportunity of being heard to make out a “serious irregularity” under section 68. However, the authors are of the view that tribunals can simply seek refuge under section 33(1)(b) of the EAA 1996, which states that the tribunal shall “adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined”. Hence, the provision provides sufficient flexibility for tribunals to indicate that remote hearings are necessary for the circumstances of the particular case, so long as the overriding consideration of fairness is still met. Situations in Which Awards are Likely to Be Challenged There are two situations where awards may be challenged on the basis that remote hearings were conducted. The first is where a tribunal decides to proceed with remote hearings despite objections by both parties. The second, and more likely situation, is where one party accepts the tribunal's determination that the hearing should continue virtually, and the other resists it. If the party resisting the virtual hearing eventually obtains an unfavourable award, there is a high chance that one of the grounds might include the tribunal’s decision to proceed with a virtual hearing despite its objections. Remote Hearings: Objections by Both Parties Preliminarily, it is unlikely that tribunals will insist on remote hearings over both parties’ objections. This is because of the basic principle that tribunals derive their jurisdiction and authority from parties’ consent, and hence party autonomy generally guides the determination of the procedure to be followed in an international commercial arbitration. 43 This is manifested in Article 19 of the Model Law, which provides EAA 1996, s 34(2)(a). EAA 1996, s 34(2)(h). 42 EAA 1996, s 33(1)(a) (emphasis added). 43 Alan Redfern and Martin Hunter, with Nigel Blackaby and Constantine Partasides, Law and Practice of International Commercial Arbitration (4th edn, Sweet & Maxwell 2004) 265 (“Party autonomy is the guiding principle in determining the procedure to be followed in an international commercial arbitration. It is a principle that has been endorsed not 40 41


Singapore Comparative Law Review that parties are “free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings”. Moreover, the Model Law also provides that the tribunal may only exercise its discretion to conduct the arbitration in such a manner as it considers appropriate failing such agreement.44 Similarly, under the EAA 1996, arbitral tribunals have the discretion to decide all procedural evidential matters, subject to the right of the parties to agree to any matter.45 Thus, if parties are happy to make arrangements and bear the cost of conducting in-person hearings, or if parties are willing to have the in-person hearing at a later date, tribunals are unlikely to substitute that agreement for their own. Notwithstanding the above, tribunals faced with objections by both parties to remote hearings would still have to bear in mind any mandatory rules of the lex arbitri or the applicable arbitration rules which might oblige them to disregard those objections. For example, section 33(1)(b) of the EAA 1996 requires the tribunal to adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense. 46 However, Pryles notes that while the language and nature of the provision appear to require the tribunal to make a ruling which would override the parties’ agreement if it would avoid “unnecessary delay or expense”, such an interpretation would be inconsistent with the emphasis in section 33 – fairness to the parties – which would be best served by giving effect to the parties’ agreement. 47 If a tribunal does decide to have a remote hearing on the merits despite both parties’ objections, either party may subsequently opt to set aside the award. However, the authors consider that such a situation would come under grounds to set aside other than on the basis of a breach of natural justice and hence fall outside of the scope of this article. In England and Wales or Northern Ireland, the party may rely on the “failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties” to challenge the award, provided that they can prove that it has caused them substantial injustice. 48 Remote Hearings: Objections by One Party The authors opine that this situation is perhaps the most likely to occur in practice. Parties may object to remote hearings for a variety of reasons, ranging from genuine concerns over technological equality of arms and difficulties in cross-examining witnesses to mere dilatory tactics. If a virtual hearing is nonetheless held despite one party’s objections, this party will likely apply to set aside the award once it has been rendered. Such an application would likely be grounded in section 24(b) of the IAA (or Article 34(2)(a)(iv) of the Model Law) in Singapore, and section 68(a), read with section 33(a), or section 68(c) of the EAA 1996 in England and Wales or Northern Ireland. Although the Singapore courts have not decided on this specific issue, the court’s pronouncements on parties’ reasonable opportunity to present their case provide a useful starting point for this analysis. To begin with, the courts have frequently referred to Article 18 of the Model Law, and noted that “a party’s

only in national laws, but by international arbitral institutions and organisations. The legislative history of the Model Law shows that the principle was adopted without opposition”). 44 Model Law, Article 19(2). 45 EAA 1996, s 34(1). 46 Article 14(1) of the Model Law also provides that “If an arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from his office or if the parties agree on the termination. Otherwise, if a controversy remains concerning any of these grounds, any party may request the court or other authority specified in Article 6 to decide on the termination of the mandate, which decision shall be subject to no appeal.” (emphasis added). 47 Michael Pryles, ‘Limits to Party Autonomy in Arbitral Procedure’ (2007) 24 J Intl Arb 327, 334. 48 EAA 1996, s 68(2)(c).


Singapore Comparative Law Review right to present its case and respond to the case against it – is a fundamental rule of natural justice”.49 In the recent case of China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another 50 (“China Machine”), the Court of Appeal referenced the travaux préparatoires of Article 18 of the Model Law, concluding that “the drafters were clearly conscious of the need to limit the scope of Art 18, so that it would not be abused by parties seeking to delay and prolong proceedings”. 51 As a result, the Singapore courts will generally be slow to intervene unless the conduct of proceedings were so unfair that it clearly violates the rules of natural justice.52 Another obstacle that the party seeking to set aside the award on the ground that might face is the need to show that the breach of natural justice is connected to the award. As noted by the Court of Appeal in L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd 53 (“L W Infrastructure”), an applicant would have to show that the breach of natural justice was not “merely technical and inconsequential”, and that “as a result of the breach, the arbitrator was denied the benefit of arguments or evidence that had a real as opposed to a fanciful chance of making a difference to his deliberations”. 54 Therefore, it might not be enough for a party to assert that there was a breach of natural justice because the tribunal overruled their objection. The party would have to point to specific challenges of the virtual proceedings which were unfair. On this point, a recent decision by the Austrian Supreme Court offers helpful insight on the matter. 55 The complainant had challenged the arbitral tribunal over its decision to conduct the evidentiary hearing virtually via videoconference. The Austrian Supreme Court held that arbitrator challenges on the basis of procedural irregularity must meet the threshold of causing serious procedural violations or permanent and significant disadvantages to a party. The Court determined that holding hearings virtually in itself, even if it is against the objection of one party, does not meet this threshold. In that case, the complainant alleged that they were prejudiced by the decision to hold the hearing virtually in three ways, all of which allegedly were evidence of unequal treatment of the parties: (i) the lack of preparation time, (ii) time zone difference, and (iii) failure to address the danger of witness tampering. The Supreme Court held that all the arguments were without merit. In response to the argument of different time zones, the Court considered that the alternative was to require travel for an in-person hearing, which would have similarly been disadvantageous. On the argument of the danger of witness tampering, the Court determined that the risk of witness tampering existed equally for in-person hearings, and that remote hearings had advantages over in-person hearings in this regard. In particular, the Court specified the possibility of recording the evidence in remote hearings, the option of asking the witness to show the room to make sure that he/she is alone, and the ability to observe the witness up close, including his/her eye and hand movements, to ascertain whether the witness is accessing prepared material or looking at his/her mobile device. Therefore, the Court declined to overturn the tribunal’s decision. A similar approach, albeit in a somewhat different context, was recently taken by the World Bank president in rejecting Spain’s bid to disqualify an entire tribunal for the decision to proceed with a remote hearing China Machine (n 7) [87]. China Machine (n 7). 51 China Machine (n 7) [96]. 52 CBS v CBP (n 16) [50]-[51]. 53 [2013] 1 SLR 125. 54 ibid [54]. 55 Maxi Scherer and others, ‘In a ‘First’ Worldwide, Austrian Supreme Court Confirms Arbitral Tribunal’s Power to Hold Remote Hearings Over One Party’s Objection and Rejects Due Process Concerns’ (Kluwer Arbitration Blog, 24 October 2020) <> accessed 13 May 2021. 49 50


Singapore Comparative Law Review instead of in-person hearings.56 Thus, what we see is not only the recognition that remote hearings bring about some disadvantages but also the rationalization of the corresponding advantages of remote hearings. In a way, the starting point is that as a general rule, the decision to hold a virtual hearing, even over the objection of one party, is not in violation of a rule of natural justice. An applicant could potentially rely on other effects of remote hearings, such as uneven access to technology, 57 potential security and confidentiality breaches 58 etc coupled with the “prejudice” or “substantial injustice” suffered as a result. In all, it is unlikely that we will see a case where an award is set aside for a breach of natural justice as a result of conducting hearings virtually alone. If anything, it is for the simple reason that national courts decide setting-aside applications. In a time where the Singaporean and English courts themselves have moved towards remote hearings via videoconferencing, 59 it would take a truly extraordinary set of facts for the courts to decide to set aside an award on that basis. Exceptional Circumstances Where Awards Might Be Set Aside Notwithstanding the above discussion, the authors posit that awards rendered in remote hearings might be successfully set aside on natural justice grounds where exceptional circumstances exist. The first of such circumstances would be where one party experiences significant technological disruptions and the tribunal proceeds nonetheless. Such a situation could arise to the parties’ unequal access to technology, or it could be entirely fortuitous. Nonetheless, the affected party could subsequently challenge the award on the basis that there was a breach of the parties’ right to be heard,60 or the parties’ right to be treated equally.61 Stein suggests that considering the key role that technology plays in the conduct of remote hearings, arbitrators may decide “in the face of such unequal access to technology, that it is best not to proceed with a remote hearing at all” or to take special precautions if they choose to proceed. 62 A second instance would be where the integrity of the arbitral process is affected by the nature of the remote hearing. This may occur in situations where allegations of witness coaching arise, perhaps because witness examination occurs orally but without video input. If a party can prove witness coaching in the evidential phase of the hearing, we argue that it is likely that the award would be set aside on the ground of a breach of the rules of natural justice. This is because the coaching of witnesses tarnishes the credibility of the evidence provided, which may have played a substantial role in the tribunal’s decision-making process. It is crucial to note, however, that this is not an issue exclusive to remote hearings; it is merely a phenomenon that may occur more easily in a remote environment as compared to a physical one. Nonetheless, with the proliferation of various guidelines and protocols issued by arbitration institutions on the conduct of remote hearings, we argue that it is highly unlikely that such situations would occur, if at all. For instance, Article 1.2 of the Seoul Protocol specifies that “the video conferencing system at the Venue Sebastian Perry, ‘Spain fails to unseat ICSID panel over refusal to travel’ (Global Arbitration Review, 16 December 2020) <> accessed 30 June 2021. 57 Adrianne Goins and Elena Guillet, ‘Challenges and Opportunities of Virtual Hearings in International Arbitration’, (V&E, 19 October 2020), <> accessed 25 June 2021. 58 ibid. 59 Jane Croft, ‘Courts test their online future, from dress-down lawyers to witness appearance’, (Financial Times, 23 April 2020), <> accessed 13 June 2021. 60 Scherer (n 1) 97. 61 ibid 100. 62 Erica Stein, ‘Chapter 9: Challenges to Remote Arbitration Awards in Setting Aside and Enforcement Proceedings’, in Maxi Scherer and others (eds), International Arbitration and the COVID-19 Revolution 176. 56


Singapore Comparative Law Review shall allow a reasonable part of the interior of the room in which the Witness is located to be shown on screen, while retaining sufficient proximity to clearly depict the witness”. 63 These guidelines (and similar ones published by arbitral institutions), coupled with technological developments such as 360-degree cameras, mitigate the risk of witness coaching in remote hearings. Conclusion Ultimately, the adoption of videoconferencing technology has been on the rise over the past two decades. Although it was originally used for case management conferences, the COVID-19 pandemic accelerated the use of such technologies, with a significant number of evidentiary hearings taking place remotely in 2020.64 Although remote hearings are not explicitly provided for in the Model Law and most national arbitration legislation, we argue that this is because at the time, videoconferencing technology was simply not as ubiquitous as today, and thus was not conceived of as a possible means through which evidentiary proceedings could be conducted. Having unpacked the drafting history of the Model Law and EAA 1996, we are confident that remote hearings are generally compatible with the arbitration frameworks in both Singapore and England and Wales or Northern Ireland. Apart from certain exceptional circumstances that give rise to a breach of natural justice, remote hearings are unlikely to give rise to credible grounds for setting aside proceedings in both jurisdictions.

Seoul Protocol on Video Conferencing in International Arbitration. Queen Mary School of International Arbitration, ‘2021 International Arbitration Survey: Adapting Arbitration to a Changing World’ (White & Case and Queen Mary University of London, 2021) <> accessed 2 June 2021. 63 64




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