Singapore Comparative Law Review (SCLR) 2022

SINGAPORE COMPARATIVE LAW REVIEW 2022 The United Kingdom Singapore Law Students’ Society (UKSLSS) Law Journal

SINGAPORE COMPARATIVE LAW REVIEW 2022

Editor-in-chief (Stand-In) Ethan Teo

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Singapore Comparative Law Review

Published by The United Kingdom Singapore Law Students’ Society

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

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United Kingdom Singapore Law Students’ Society – Executive Committee 2021/22

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Singapore Comparative Law Review – Editorial Committee

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President’s Address Sharon Chan

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Editorial Foreword Ethan Teo

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Articles Social Media Defamation: Can Creating, Sharing, or Liking a Post Get You Sued?

Aaron Lim

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Human Rights Dimension of COVID-19 Pandemic Measures Zi Hao Tan

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Two Roads Diverged – Taking the Road Untraveled as the Odds Stack Up Against Unmarried Cohabiting Couples Annabel Kwek and Ian Kwek

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The Law on Accessory/Joint Liability: An Examination of English Common Law and Singapore’s Penal Code Edwin Lim

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Group Relief: Liberalisation for Investment-led Recovery Zhan Peng Hng

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Can Smart Contracts Outsmart the Law: The Law of Contract in Light of Smart Contracting Kevin Nathaniel and Samuel Tey

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Talk Talk Sing Song: A Comparative Study of the Doctrine of Frustration in Singaporean and English Law Evan Chou and Priyansh Shah

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A Tale of Two Common Law Systems: Robinson and Spandeck - Comparing the ‘test’ for duties of care in Singapore and England Ryan Lee and Nickolaus Ng

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Corporate Manslaughter in the United Kingdom and Singapore: A Comparative Perspective Cherlyn Yeoh and Joey Tan 159 Practical Benefit Exceptions: A Re-Consideration of Business Need Vedant Chauhan and Scott Ngai

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Patron’s Foreword Once a year, I have the privilege to write a Foreword to the Singapore Comparative Law Review. Not only do I enjoy doing this, but the opportunity of reviewing the Journal allows me to update my knowledge on the latest developments in the judicial approaches and thinking of the courts in England, Singapore and sometimes in other Commonwealth jurisdictions. The 2022 Review is no different in this regard. The 2021 Review contained 26 articles and commentaries, but this year’s edition has cut it down to 10 articles which have been subjected to a more rigorous review process. It is also different in a more important way, through the inclusion of numerous joint collaborative contributions from students in UK law schools as well as the NUS and SMU law faculties. This is an excellent development, and will lead to a better understanding among the collaborators of each another’s perspectives in their future careers as lawyers, academics, judges, or politicians, whether that be in the United Kingdom or in Singapore.

In the Foreword to last year’s edition, I wrote that “2021 [would] go down in the history of the world as the year of the great COVID-19 epidemic, which has now become a pandemic for a variety of [non-virological] reasons, [reflecting] a world divided by societies which are engaged in ideological conflicts, power politics, and military build-ups; [as well as] economic competition, huge inequalities in wealth, and ownership of property due to unchecked capitalist practices; and [finally], the lack of progress in tackling the existential threat of climate change.” The situation has only gotten worse, with nuclear powers confronting one another for global dominance, thereby making the world more perilous, and in the process depleting and wasting the world’s natural resources that could otherwise be used to make the world a better place for all.

Fortunately, for Singapore, the Government’s sound economic policies and financial prudence have allowed it to look after the well-being of all Singaporeans, especially the poor or poorer among us, via massive financial and medical assistance, not least the provision of free vaccinations to combat the Covid-19 virus. But life must go on and so must the law, the anchor of a stable civilised society.

The ten articles in this edition cover a variety of topics, ranging from comparative human rights to the contrasting positions of the criminal law on joint / accessory liability. I review each of the articles in turn below: 1.

‘Social Media Defamation: Can Creating, Sharing or Liking a Post get you Sued?’

by Aaron Lim This article discusses the meaning of “publication” in defamation in the context of social media, which is made up of different forms of electronic communication via the Internet. If a defamatory 5

Singapore Comparative Law Review statement is made public (i.e., “publication” in its ordinary sense), it should not matter what platform is used, whether it is Facebook, Instagram, Twitter or Tik-Tok, as far as the law is concerned. Similarly, messages sent via platforms such as WhatsApp, or Signal and Telegram constitute publication, even though they are meant to allow exchange of views in private and freely between friends or family members. Publication means making public. Therefore, in law, there is no difference between modes of publication of defamatory material.

“Sharing” a defamatory statement made locally, with or without comment, is still publication of defamatory content since it involves transmission. However, providing a link, without comment, to a defamatory statement made outside the jurisdiction has been held to be publication under Singapore law, contrary to the legal position under Canadian law. Hitting the “like” button to a Facebook posting should not constitute publication since it does not involve a transmission of the post, but merely expression of emotion to it. However, the number of “likes” or “dislikes” should go to damages in relation to the extent of publication. These and other issues are discussed in this article.

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‘Human Rights Dimension of COVID-19 Pandemic Measures’ by Zi Hao Tan

This article provides an overview of the containment and mitigation measures which affect personal liberty imposed by the Governments of the UK and Singapore respectively to combat the spread of COVID-19. The analysis proceeds from the perspective of human rights laws, such as the right to privacy, the right to free movement within the country, the right to travel abroad, the right not to be vaccinated, and lawful restrictions on the enjoyment of such rights in prescribed conditions. While the UK has, inter alia, the Human Rights Act 1998 (which gives effect to Article 8 of the European Convention of Human Rights), and the possible enforcement of international law through Article 17 of the International Covenant on Civil and Political Rights (which the UK has signed and ratified), Singapore has the Constitution which guarantees many of such human rights, but not the right to privacy.

Measures discussed include the use of TraceTogether tokens (provided free of charge by the Singapore Government) for domestic freedom of movement, and also TraceTogether-only SafeEntry (for overseas arrivals), vaccination certificates, quarantine in prescribed venues, as well as total or partial lockdown. The author wisely offers no judgment on whether the Governments in question have done too much or not enough to combat the pandemic raging throughout the world, but within confines and territorial limits of their sovereignty, concludes that society (i.e., right thinking members) should be able to call out “the improper use of public health claims to violate rights as well as the improper use of rights claims to undermine legitimate pandemic measures.” The problem is always when to do so and how to do so, “having sufficient regard to [the] context”.

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‘Two Roads Diverged – Taking the Road Untraveled as the Odds Stack Up against Unmarried Cohabiting Couples’ by Annabel Kwek and Ian Kwek This article compares the divergent approaches of the UK Supreme Court and the Singapore Court of Appeal in dealing with disputes concerning the ownership of property of unmarried cohabitants 6

Singapore Comparative Law Review where, as is often the case, they have not made express arrangements of how their property is to be shared should they separate. The UK Supreme Court applies the common intention constructive trust (“CICT”), whilst in contrast, the Singapore Court of Appeal prefers the resulting trust (“RT”) solution instead. The CICT looks like a remedial constructive trust, whilst the RT looks like an institutional constructive trust. Arguably, they are essentially the same kinds of trusts by different names. English legal scholars are fond of inventing new labels for judicial solutions to what are seen to be just claims to property rights.

Which approach is fairer or does better justice to the parties? The CICT allows the court to find a common intention which is more likely to do justice to the parties, taking into account all the circumstances, e.g., whether the couple have children, or the relative economic or financial position of the parties. The RT is less flexible, but more certain, in focusing on the financial contributions of the parties in acquiring the property. The authors conclude their discussion by advocating for legislative intervention “to address the pressing need of protecting proprietary interests within the unmarried cohabitant couple dynamic in Singapore”, without indicating whether they prefer law (with certainty) or justice (with uncertainty).

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‘The Law on Accessory/Joint Liability: An Examination of English Common Law and Singapore’s Penal Code’ by Edwin Lim This article compares English common law on accessory liability, as exemplified by the Supreme Court decision in R v Jogee1 (“UK model”) and Singapore law on joint liability under the Penal Code as exemplified by the Court of Appeal decisions in Public Prosecutor v Daniel Vijay s/o Katherasan2 and Public Prosecutor v Azlin bte Arujunah 3 (“Singapore model”). Three similarities are found between the two models, namely, both models, (i) (ii)

(iii)

require that D2 intend for the offence to be committed; highlight the importance of identifying the common intention of all parties and yet, fail to provide any clear and useful guide in determining the common intention of the parties; and have “evolved” from requiring a lesser MR to the present MR requirement

Three differences have also been identified between the two models, namely, (i) In the UK, the principle of accessory liability applies consistently to all cases whereas in Singapore, the principle of joint liability is altered in a s 300(c) dual-crime situation; (ii) In relation to difference (i), whereas the Singapore model requires that D2 possess a higher MR than D1 in the case of a s 300(c) murder in a dual-crime situation, under the UK model, it is sufficient that D2 possess the same MR as D1; and

[2016] UKSC 8 [2008] SGHC 120 3 [2022] SGCA 52 1 2

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The UK model allows for D2 to be convicted of manslaughter even if D2 did not possess the same MR as D1, while the Singapore model does not as there is no manslaughter equivalent.

Daniel Vijay is criticised on the grounds that: (a) it requires D2 to possess a higher MR (i.e., mental requirement) than D1 in the case of a s 300(c) murder in a dual-crime situation; and (b) it renders s 300(c) murder obsolete. Azlin is criticised on the ground that it approved, instead of rejecting, Daniel Vijay’s approach in applying the principle of joint liability (s 34) to dual crime situations where s 300(c) is the collateral criminal act, and as held in Jogee, “there is no reason why ordinary principles of secondary liability should not be of general application”. The authors conclude that the UK model of accessory liability is more logically sound and principled, and the Singapore courts may look to it in further developing the doctrine of joint liability.

The criticisms of Daniel Vijay and Azlin are seemingly logical as an academic exercise. The facts in Daniel Vijay are relevant. Perhaps the article should have also taken into account the following considerations: a) s 34 as interpreted in Mimi Wong v Public Prosecutor4, which was a single crime case, was applied to dual crime cases, most of which were murder committed in the course of a robbery involving at least two defendants; b) when Daniel Vijay was decided, the mandatory death penalty was applicable to the four definitions of murder in s 300; c) was it unjust that D2 should suffer the death penalty if in D2’s intention was different, even in the slightest degree, from that of D1; d) as interpreted by Daniel Vijay, s 300(c) is obsolete only if it is assumed that it has the same meaning or effect as s 300(c) when s 34 is applied to it in a single-crime case; and e) would applying s 34 (as hitherto interpreted to a s 300(c) murder in dual crime case where the primary offence was robbery), render it incoherent if consideration is given to the legislative policy in the offence is gang-robbery with murder under s 396 of the Penal Code. f) The punishments for the four kinds of murder under 300 were amended in 2012. It may be relevant to the thrust of the article to discuss the reasons for the amendments.

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‘Group Relief: Liberalisation for Investment-led Recovery’ by Zhan Peng Hng

This article provides a comparison of the group relief schemes made available to businesses by the UK and Singapore Governments and suggests the liberalisation of the current schemes via the reduction of group tax liability. The author may consider sending his recommendations to the relevant Ministries of the Singapore Government to evaluate their merits..

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[1971-1973] S.L.R.(R.) 412

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‘Can Smart Contracts Outsmart the Law? The Law of Contract in Light of Smart Contracting’ by Kevin Nathaniel and Samuel Tey This article discusses the legal problems associated with the so-called “smart contract” and considers whether the established principles of contract law apply to such kinds of contracts. The authors state that a smart contract differs from a traditional contract “where some or all of the contractual terms are defined in code and contractual obligations are either partially or fully performed automatically by a computer program.”

The case of Quoine v B2C25 is cited as an example of a smart contract. However, an examination of the facts and dispute in that case is that the dispute in Quoine was the unilateral cancellation of certain trades on an online trading platform, which were executed automatically when certain predetermined conditions were met. The terms and conditions of the agreement governing the use of the Platform were set out on Quoine’s website. The Agreement provided that it was “effective on the date of electronic acceptance” and that it was “entered into by and between Quoine and the user of the Platform. In effect, on this reading, a smart contract would appear to be nothing more than a specific automated transaction, and not really a contract in the traditional sense.

This is confirmed by the entry on “smart contracts” in the IBM website which reads: ‘However, Smart Contracts are simply programs stored on a blockchain that run when predetermined conditions are met. They typically are used to automate the execution of an agreement so that all participants can be immediately certain of the outcome, without any intermediary’s involvement or time loss. They can also automate a workflow, triggering the next action when conditions are met.’

Separately, the iMi Blockchain website has this entry: ‘Understanding the meaning of smart contracts is, on the surface, a simple concept. It creates an agreement between several parties that agree on specific events in the past, present, and future. Yet, unlike a paper contract or verbal contract, a smart contract exists in a digital format.’

The authors say that smart contracts present novel difficulties and idiosyncrasies, of which the prevailing common law may on occasion be unable to address precisely. However, it is not clear what these novel difficulties are that cannot be resolved by applying the established principles of contract law and contractual interpretation.

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[2020] SGCA(I) 02

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‘Talk Talk Sing Song: A Comparative Study of the Doctrine of Frustration in English and Singaporean Law’ by Evan Chou and Priyansh Shah The authors point out the divergent positions in English law and Singapore law on the circumstances in which a contract is frustrated. English law focuses on the contractual obligations of the parties (for example, what was their common purpose; see Canary Wharf v European Medicines Agency6), whilst Singapore law “extends past English law in recognising commercial impossibility as being sufficient to frustrate a contract” (see Lim Kim Som7, Sheng Siong v Carilla8).

In Canary Wharf, the lease was intended to be used as the EU headquarters of the lessee in London.

The use of the premises for such purpose was adversely affected by Brexit. The English High Court held that there was no frustration, since the premises could be used for other purposes. In Sheng Siong, the lease was intended to be used as a supermarket and could not be used because the plaintiff failed to obtain regulatory approval. The Singapore High Court held the lease was frustrated since the premises could not be used as a supermarket. But could not the premises be used for other purposes?

The authors submit that a contract should only be considered frustrated due to the failure of a commonly-contemplated commercial intention where it is an essential part of the deal, as evidenced for example, through excluding all other possible uses of a premises, regardless of whether said deal is made in Canary Wharf or Soho, Marina Bay or Geylang. Is that the English position or the Singapore position, or a combination of element in both positions?

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‘A Tale of Two Common Law Systems: Robinson and Spandeck - Comparing the ‘test’ for duties of care in Singapore and England’ by Ryan Lee and Nickolaus Ng In this article, the authors compare the English approach and the Singapore approach on the duty of care in the law of torts, as exemplified respectively by the decisions in Robinson v CC West Yorkshire 9 and Spandeck Engineering (S) Pte Ltd v Defence Science and Technology Agency (DSTA) 10 .

Spandeck is said to subscribe to an extremely economic conception of tort law based on the fair distribution of wealth from tortfeasor to victim, and more generally increase national welfare.

Robinson is said to espouse a rights-based theory of liability - as a form of corrective justice – to redress whatever harm the tortfeasor may have caused to the plaintiff. Singaporean courts are said to have preferred utilising economic efficiency arguments over rights-based arguments in discussing duties of care. The relative merits and demerits of the two approaches are also discussed.

The authors conclude that Singapore tort law is unlikely to be influenced by the developments in English law. One way of looking at the Spandeck test is that since it applies on where there is no established precedent, and that the test may be applied incrementally, it may escape the authors’ criticism that it may be overly focused on economic policy considerations, since a decision like Robinson may be accepted as an established precedent on the imposition of a duty of care in similar fact situations in Singapore.

[2019] EWHC 335 (Ch) [1992] 2 SLR 516 8 [2011] SGHC 204 9 [2018] UKSC 4 10 [2007] SGCA 37 6 7

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‘Corporate Manslaughter in the United Kingdom and Singapore: A Comparative Perspective’ by Cherlyn Yeoh and Joey Tan The UK has a corporate manslaughter law in the form of the Corporate Manslaughter and Corporate Homicide Act 2007 (“CMCHA 2007”). Singapore does not have such a law. In this article, the authors explore this lacuna in Singapore law and considers whether Singapore should legislate for such an offence. The CMCHA 2007 was introduced to ‘overcome the limitations of the common law offence’ and to ‘widen the scope of the offence so that the focus of the offence is now on the overall management of the organisation’s activities rather than the actions of particular individuals.’ The legislation has met its objective; as of September 2017, the total number of prosecutions under the new offence has already exceeded the total number prosecuted under the common law offence11.

Is there a need for such a law in Singapore? This is obviously a policy issue for the Government.

The authors have not cited any local studies on whether such a law would reduce the incidence of worksite related deaths of employees in the construction, chemical and other industries.

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‘Practical Benefit Exceptions: A Re-Consideration of Business Needs’ by Vedant Chauhan and Scott Ngai This essay discusses the role of consideration in contract in English law, and in particular the cases of promises to take less (Foakes v Beer12 – an existing debt) and promises to pay more (Stilk v Myrick13 – an existing obligation to perform a service). Both kinds of promises are not enforceable in the absence of consideration.

In Williams v Roffey Brothers & Nicholls (Contractors) Ltd14, the English Court of Appeal introduced the concept of practical (or factual) benefit as sufficient consideration (as a legal requirement) for the varied contract to be enforceable. Williams was considered by the Singapore Court of Appeal in Sea-Land Service Inc v Cheong Fook Chee Vincent,15 and but was found not applicable on the facts of the case. However, in Gay Choon Ing v Loh Sze Ti Terence Peter16, the Court of Appeal stated, in the “coda on the doctrine of consideration” to the main judgment, that Williams could be applicable to a situation of a promise to perform (or the performance of) an existing duty owed to a third party.

The essay concludes that English law on this aspect of contract law must evolve to reflect commercial reality, if England wishes to remain a jurisdiction of choice for commercial disputes, which is the case in Singapore. The article takes no position on whether in this area of contract

Victoria Roper, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 - A 10-year review’ (2018) Journal of Criminal Law 12 [1884] UKHL 1 13 [1809] EWHC KB J58 14 [1989] EWCA Civ 5 15 [1994] 3 SLR(R) 250; [1994] SGCA 103 16 [2009] SGCA 3 11

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Singapore Comparative Law Review law, the courts, both in England and in Singapore, being international commercial centres, should abolish the requirement of consideration in cases of promises to pay more or to take less in respect of subsisting contracts, and treat the ethical principle in business that “my word is my bond” as fundamental in commercial transactions. This has the practical benefit of not wasting economic and intellectual resources in looking for consideration to give legal force to one’s promise.

Concluding Remarks To conclude, I would like to commend the editorial board for their initiative in bringing together law students from UK law schools and Singapore law schools to collaborate in writing articles for this review, and also to the writers for their contributions.

Chan Sek Keong Patron, Singapore Comparative Law Review Chief Justice 2006-2012 Attorney General 1992-2006 Judge/Judicial Commissioner 1982-1992 19 August 2022

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United Kingdom Singapore Law Student’s Society (UKSLSS) Executive Committee 2021-2022

Sharon Chan President

Isaac Ng Vice President

Fernanda Chia General Secretary

Kelvin Ng Marketing Director

Thomas Lim Editor-In-Chief

Yeo Zhi Kai Sponsorship Director

Pamela Low Finance Director

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Singapore Comparative Law Review 2022 Editorial Committee

Editor-in-Chief (Stand-In) Ethan Teo

Associate Editors Ajay Singh

Charles Lek

Christelle Sim

Dorian Chang

Kerith Cheriyan

Kristen Palmer

Pyari Chopra

Wei Heng Tan

Sia Xinyu

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President’s Address Dear Readers, This year we celebrate the 22nd anniversary of the United Kingdom Singapore Law Students’ Society (‘UKSLSS’) and with that I would like to begin by showing my appreciation to this year’s Executive Committee and their excellent accomplishments. Despite the challenging term and the challenges faced due to the uncertainty of the pandemic, I am proud to announce the publication of our Singapore Comparative Law Review.

The Singapore Comparative Law Review is our Society’s flagship student-run legal journal that has once again achieved great recognition and success. Ethan Teo, our stand in Editor-in-Chief, successfully composed this year’s journal with the help of a handful of brilliant writers and editors. The continued support of former Chief Justice Chan Sek Keong is a testament to the quality and reputation of the Singapore Comparative Law Review, which continues to be one of our society’s focal points. Aside from the Law Review, our former Editor-in-Chief creatively put together a more centralised and engaging platform for members to stay updated with the legal developments in Singapore and in the United Kingdom.

He achieved his aim of setting up our first UKSLSS Blog which has three very exciting features - Legal Developments, Commentaries, and Things That Won’t Get You a First. I am immensely grateful to all our editors and contributors for their work and perseverance through the past year.

This year has been rather successful and I am extremely proud of my team for their hard work and dedication in serving our members. The UKSLSS began its term with our annual Vacation Scheme Helpdesk. Unfortunately, with the uncertainty posed by the pandemic we were unable to have our first event in-person. Nevertheless, the Help Desk put us in a good starting position for the rest of the academic year, as we successfully connected our members with Singaporean trainees and associates working in top law firms in London. Following the Help Desk was our Practising at a Global Law Firm event, something entirely new to the society. This was particularly interesting as it showed the progress of UKSLSS in becoming less fixated on the legal path back in Singapore, but instead provided options on the career path in the United Kingdom. Before the end of 2021, our society finished off with the Bars Career Talk. Here, our members had the opportunity to hear from a panel of highly successful barristers.

We started off 2022 with the KPUM X UKSLSS Spring Gala! KPUM being the society for all Malaysians studying English law, I thought it exciting to collaborate with them. This was another new event which I was immensely proud of, as it gave our members a chance to meet and make friends with other law students in an informal setting. It was important to me that I made a positive change in the society and thus from the beginning, my goal was to help law students not just with their career choices, but also with providing a good community to learn from. The Gala was truly a night filled with singing, dancing and socialising!

The Allen & Gledhill Mini Moot was another great success. This competition was aimed at novice mooters who wanted to experience mooting at a less intense level. We drafted up handbooks to guide the participants and collaborated with Allen & Gledhill to create a competition environment suitable for the standards of our mooters. The Moot was held online in June 2022 to cater to both our members in the United Kingdom and those back in Singapore. Though our society was adapting back to ‘pre-COVID’, our efficiency with technology truly helped make this online Moot possible. We subsequently had two more back to back events, the Freshers Tea and a talk by former Attorney-General Walter Woon. The former

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Singapore Comparative Law Review was a short orientation for our incoming first year law students and the latter was for all our members who wanted to know more about the Bar Examinations back in Singapore.

With Singapore opening up we were able to hold two open houses for our sponsor firms - Shook Lin & Bok and Rajah & Tann. In addition to these open houses, we have been contacted by many of our sponsors to plan ahead for events in London. I would like to thank all our sponsor firms for their continued support over the years, without which we would not be able to conduct as many events as we have, and at the capacity we hold it in.

This year we have the biggest subcommittee in UKSLSS history. This is just a small testament to our growth and influence over the years which I can only praise our predecessors for. With almost twenty in our Editorial Committee, twelve University Representatives and three in our Marketing Committee, I am thankful for their help in running this society.

As is tradition, this year the Singapore Comparative Law Review will be published on the day of our Singapore Legal Forum (SLF). The SLF is the UKSLSS’ flagship event which involves the leading figures in the industry sharing about their experience and providing greater insights into different aspects of their work. I write this address in anticipation of the SLF, excited to have all our hard work finally come to fruition, but sad to know that my term as President will soon come to an end.

It has been a pleasure working with many other talented law students in running this society and I only hope that UKSLSS continues to help others in the same position as me who found law school extremely daunting. My one advice to the next incoming UKSLSS Executive Committee is to be resilient. It gets difficult, but it is very much worth it.

Last but not least, I would thank the rest of my Executive Committee - Isaac Ng (Vice-President), Fernanda Chia (General Secretary), Pamela Low (Finance Director), Yeo Zhi Kai (Sponsorship Director), Kelvin Ng (Marketing Director), Thomas Lim (Editor-in-Chief) and Ethan Teo (Stand-In Editor-in-Chief) for their tremendous work over this past year and for helping me conquer every obstacle.

Yours Sincerely, Sharon Chan President of the United Kingdom Singapore Law Students’ Society

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Editorial Foreword Dear Readers, It is my great pleasure to present this year’s edition of the Singapore Comparative Law Review on behalf of the United Kingdom Singapore Law Students’ Society. It is once again the Review’s privilege to have former Chief Justice Chan Sek Keong as its patron, as we mark ten years under Justice Chan’s valuable patronage and mentorship. The Review is also immensely grateful for the support of our sponsors, without whom publication would not be possible.

This year marks the 17th Edition of the Review since its original inception as Lex Loci in 2006. In the course of the last seventeen years, the Review has gone from strength to strength; drawing on the unique position of Singaporean Law students studying in the United Kingdom to analyse comparative legal issues across the two common law jurisdictions.

It is with this in mind that we embarked upon the creation of this year’s edition of the Singapore Comparative Law Review. The 17th Edition of the Review contains ten academic articles written by law students from a wide range of universities across the United Kingdom and Singapore. In particular, the Review has an unprecedented number of joint submissions, with a number of pieces co-written by authors working together from institutions across both the United Kingdom and Singapore. These partnerships allow our members to tap into the expertise of their counterparts in Singapore for a novel legal perspective, and vice versa. Just as importantly, the opportunity to work together with fellow law students from Singapore serves as a bridge between the legal community in Singapore and the United Kingdom, furthering the Society’s mission of keeping our law students close to home.

Indeed, it is this unique facet of the Singapore Comparative Law Review which enables its contributors and readers to be more aptly poised for a more nuanced understanding of the law. It is not merely enough for one to be well-acquainted with the substantive law, though that will certainly occupy centre stage in a practitioner's life. Instead, the study of Law as a lifelong discipline demands more from us; it forces us to ask not what the law is, but what the law should be. There will often be normative answers to some of these questions, though a preferable approach is by no means certain. Legal scholarship plays an important role in the facilitation of these debates, without which the law cannot do without.

Accordingly, I heartily commend the Contributors and Editors to this year’s edition of the Review for their contributions to the development and promotion of legal thought and reasoning. On a more personal level, I thank my team for all the effort they have put in to produce this year’s edition of the Singapore Comparative Law Review. I would also like to especially thank my predecessors and mentors, Thomas Lim and Phoenix Gay, for their mentorship in this endeavour, as well as my seniors in the Executive Committee for their patience and guidance.

Those of you who know me in a personal capacity will be aware of my love for books, in particular classic literature. Allow me to conclude my Foreword with one of my favourite quotes, from the Russian author Tolstoy. “It is not given to people to judge what’s right and what’s wrong. People have eternally been mistaken and will be mistaken, in nothing more than what they consider right from wrong.”

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Singapore Comparative Law Review My dear readers, it is precisely this difference in option that makes us unique individuals in the law and gives value to our journey. Unlike Tolstoy, however, I invite you to judge for yourself the law, a creature which in the long run is always open to interpretation and change. Above all, never stop questioning and determining for yourselves what the law should be, rather than taking for granted what it already is.

It is my hope that this edition of the Singapore Comparative Law Review serves as a fine accompaniment to your respective journeys in the law, wherever your paths shall take you in the future.

Yours sincerely, Ethan Jeremiah Teo Editor-In-Chief of the 17th Singapore Comparative Law Review

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Social Media Defamation: Can Creating, Sharing, or Liking a Post Get You Sued?

Aaron Lim Chor Yin

INTRODUCTION Defamation is a well-established tort which takes the form of either libel or slander. Libel consists of defamatory words in permanent form (such as a newspaper) while slander consists of defamatory words in temporal form (such as a public speech).1 Almost a thousand years ago in medieval England, a slanderer would be liable for having his tongue cut off as punishment for slander.2 Fortunately, our laws have evolved since, but so too have our means of publication – largely due to technological advances. In particular, the advent of social media is the latest development in the recent decade which could potentially change how defamation laws should deal with defamatory content on social media platforms.

In Singapore, it is estimated that 4.96 million Singaporeans use some form of social media.3 The ease and danger of being liable in defamation is now simply a click of a button away. This article explores whether certain social media activities can result in a defamation suit and several areas of controversy that may arise.

Our discussion begins with exploring the different kinds of social media activities before examining their correlation to liability in defamation.

A. What is Social Media?

Due to the constant introduction of new technological innovations, this seemingly simple question yields no easy answer. Merriam-Webster broadly defines social media as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and

The Law of Torts in Singapore, Second Edition, 2016 at 12.004 – 12.005.

Van Vechten Veeder, “The History and Theory of the Law of Defamation”, Columbia Law Review, Vol 3, No.8 (1903) at 549.

3 “Digital 2021: Singapore” website <https://datareportal.com/reports/digital-2021-singapore> (accessed 12 September 2021).

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Singapore Comparative Law Review other content (such as videos).”4 Traditionally, one would associate “social media” with wellknown platforms such as Facebook, Twitter and Instagram, which allow for individuals to communicate ideas and maintain online social circles. In recent times, a broader interpretation of social media can also encompass traditional messaging platforms such as WhatsApp and Telegram, since these platforms now allow for the creation of “insulated” communities which gives members feelings of safety, retreat and protection. 5 A study in Malaysia found that WhatsApp groups facilitate the transmission of fake news, conspiracy theories, and hate speech as members feel at ease to propagate such content within the perceived safety and insulation of these groups.6 The latter interpretation of treating messaging platforms like WhatsApp as social media (despite the traditional perception that these communities are ‘insulated’) makes perfect sense, especially if these groups have a larger number of members and a low barrier to entry.

After all, what is the practical difference between content shared on a Instagram page with a thousand followers and a Telegram group of a thousand people? Where defamation is concerned, a broad interpretation should be adopted to prevent arguments on mere technicalities. As long as defamatory content is transmitted via electronic means, there is a case for defamation.

B. Common types of Social Media Activities According to Australian Prime Minister Scott Morrison, "social media has become a coward's palace where people can go on there, not say who they are, destroy people's lives, and say the most foul and offensive things to people, and do so with impunity.”7 The potential for social media to become the main medium of defamatory content cannot be underestimated. To understand how defamatory content can transmit through the acts of a social media user and how to attribute liability, one can attempt to simplify and categorise social

Merriam-Webster Dictionary website: <https://www.merriam-webster.com/dictionary/social%20media> (accessed 10 December 2021).

5 Amelia Johns & Niki Cheong (2021): The affective pressures of WhatsApp: from safe spaces to conspiratorial publics, Continuum, DOI: 10.1080/10304312.2021.1983256 at 4, citing Treré, E. 2015. “Reclaiming, Proclaiming, and Maintaining Collective Identity in the #yosoy132 Movement in Mexico: An Examination of Digital Frontstage and Backstage Activism through Social Media and Instant Messaging Platforms.” Information, Communication & Society 18 (8), doi:10.1080/1369118X.2015.1043744 at 911.

6 Id, at 5-13.

7 Byron Kaye: 'A coward's palace': Australian PM slams social media amid defamation law controversy, Reuters.com (7 October 2021): <https://www.reuters.com/technology/australian-law-chief-wants-defamation-rules-fixedinternet-age-letter-2021-10-07/> (Accessed 9 December 2021) 4

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Singapore Comparative Law Review media activities into content “creation”, “sharing”, and “liking”.8 The following illustrates how content is transmitted across social media: “Creation” refers to the content’s original source. For example, if Justin posts a picture of his buffet lunch on Facebook, he is the post’s creator. If Justin types a message into a Whatsapp group, he is the creator of the message. “Sharing” refers to re-posting the original post to be shared with others. On messaging platforms, forwarding and sharing functions allow for content to be shared easily across communities and users. For example, Tom (Justin’s friend) decides to share Justin’s picture with his own friends as a lunch suggestion. Justin’s picture has now been accessed by others due to this act of “sharing”. In the process of sharing, Justin may also add a comment such as, “this looks delicious!” Both the comment and the original post would be visible to others.

“Liking” is a reaction to a post which allows the post to be more visible to others as social media algorithms are primed at recommending content that others would more likely be interested in. Some platforms like Twitter, allows others to view every single tweet one has “liked”,9 while others like Facebook only allows followers to temporarily view a person’s likes on their newsfeed.10 For example, Tina (Tom’s friend) sees Tom’s re-post and “likes” the post; allowing the post to be visible to even more users on the platform.

At risk of oversimplifying the myriad of social media functions and activities, these are just three broad categories which would facilitate discussion with respect to liability in defamation.

From the example above, multiple and different social media activities can arise from a single social media post. In this case, Justin’s original picture has now been seen by numerous social media users due to the different acts of Justin, Tom and Tina. This distinction might seem technical but can be crucial in reconciling their legal significance in a defamation suit.

Seiter, C. The psychology of Social Media: Why we like, comment, and share online. Buffer Resources: <https://buffer.com/resources/psychology-of-social-media/> (Accessed 23 September 2021).

9 Twitter. Likes introduction | docs | twitter developer platform: <https://developer.twitter.com/en/docs/twitterapi/tweets/likes/introduction.> (accessed 12 September 2021).

10 How news feed works: Facebook Help Center: <https://www.facebook.com/help/1155510281178725> (accessed 10 October 2021).

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Singapore Comparative Law Review C. What is Defamation?

Defamation is a legal remedy which is primarily invoked to protect a person’s reputation. 11 In reality, the tort of defamation is an exercise of balancing multiple interests in society – an individual’s reputation, the defamer’s freedom of expression, and the public’s “right to know”. 12 A learned author observed:13 “Where interests conflict, lines must be drawn, but in drawing a line between permissible and impermissible speech, some permissible speech will be restricted. The speaker, lest he cross over the line through momentary misjudgement, will tend to keep a safe distance from the dividing mark, and where the line is not, and cannot be, dearly drawn, the speaker will be even more cautious. One steers clear of a barbed wire fence, but he stays even farther away if he is not sure exactly where the fence is.”

Depending on the nature of the content and the factual circumstances of each case, where the balance of interest ought to be struck is not entirely clear. In most cases, the public’s right to know is not given weight if the defamatory content is false, since there is no public interest for the public to be informed of false information.14 This is buttressed by recent legislation primed to target the pervasiveness of malicious online falsehoods such as the Protection from Online Falsehoods and Manipulation Act.15 In a defamation suit, the plaintiff can claim to remove the defamatory social media post and for compensation. He must prove to the court that (1) the social media content is defamatory, (2) refers to him and (3) the material was published to others.16 Whether the defamation was intentional is irrelevant.17 We will now consider these in turn: (1) “Defamatory” Firstly, to determine if something is defamatory,18 the court will interpret the meaning of the content in the eyes of an “ordinary reader”, considering “the natural and ordinary meaning of The Law of Torts in Singapore, supra n 1 at 12.001.

Wright, J. (1968). Defamation, Privacy, and the Public's Right To Know: National Problem and New Approach Texas Law Review, 46(5), at 630 – 635.

13 Ibid, at 634.

14 Ibid, at 635.

15 Protection from Online Falsehoods and Manipulation Act 2019 (No 18 of 2019).

16 Lee Hsien Loong v Review Publishing Co Ltd and another and another suit [2009] 1 SLR(R) 177 at [23].

17 Ibid.

18 Ibid, at [47].

11 12

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Singapore Comparative Law Review the words”.19 This is a common-sensical and objective approach, where what is defamatory is usually obvious. Nonetheless, our courts have also imputed several characteristics onto the ordinary reader – treating him as one “who is not avid for scandal but can read between the lines and draw inferences”;20 having “read the publication as a whole in and determined its meaning”;21 “will take note of the circumstances and manner of the publication”;22 and “where there are a number of possible interpretations, some of which may be non-defamatory, such a reader will not seize on only the defamatory one.” 23 In other words, where the case is contentious on whether the content is defamatory, the court retains the flexibility to interpret the content in a reasonable and fair manner to ascertain the meaning of the allegedly defamatory post.

For something to be defamatory, the content must either “injure the reputation of another by exposing him to hatred, contempt or ridicule”,24 or which tends to “lower the claimant in the estimation of right-thinking members of society generally”25 or “cause him to be shunned or avoided”.26 When considering content posted on social media, the courts are alive to the reality that an ordinary social media user does not scrutinize content in detail and “adopts an impressionistic and fleeting response.”27 In Stocker v Stocker, a man sued his former wife for defamation after she had an exchange on Facebook with his mistress claiming that he had tried to strangle her (the former wife).28 The court found that since social media users knew that the wife was alive, they would interpret the alleged defamatory words “tried to strangle me” to mean that the plaintiff literally “grasped his wife by the throat” rather than the plaintiff “(trying) deliberately to kill her”.29 The former interpretation was a truthful factual representation and thus, the post was not defamatory.30 Undoubtedly, the fact that the wife was alive would make some users think that the husband merely got violent in the literal sense; however, it is equally possible for a fair-minded user to adopt the other interpretation, especially if the user was from a society Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 at [18].

Ibid.

21 Ibid.

22 Ibid.

23 Ibid.

24 Low Tuck Kwong v Sukamto Sia [2013] 1 SLR 1016 at [18].

25 Ibid.

26 Ibid.

27 Lee Hsien Loong v Leong Sze Hian [2021] 4 SLR 1128 at [31], citing Stocker v Stocker [2020] AC 593 at [41] – [46].

28 Stocker v Stocker [2019] UKSC 17 at [2].

29 Id, at [49].

30 Id, [61] – [62].

19 20

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Singapore Comparative Law Review where domestic violence is not common. Such contentious cases illustrate the difficulty in the court’s unenviable task to identify the true interpretation of an allegedly defamatory social media post.

For social media users, it would seem that the standard of scrutiny by a user is lowered compared to traditional forms of publications such as a newspaper. This makes practical sense, since many social media applications such as Tiktok and Twitter are primed at giving gratification through short bursts of content without the need for prolonged scrutiny and attention.31 The logical implication would be that for a social media post to be defamatory to the ordinary user, it must be clear and blatant; otherwise, the user would simply gloss over it without processing the information as defamatory. A contrasting view would be that an ordinary user would not treat social media content seriously. With content on social media such as Tiktok ranging from lip-sync videos and memes to violence and hate speech,32 it is not always apparent what an ordinary user would perceive when such a broad range of content is received in a short span of time.

(2) “Refers to plaintiff” Secondly, the ordinary user must understand the defamatory post to refer the plaintiff.33 Where the social media content expressly names the plaintiff, this is usually fulfilled. However, there might be cases where the content names several people, or where the plaintiff is only named in one part of a long article. In these cases, whether the defamatory content refers solely to the plaintiff in the eyes of an ordinary user would be a point of contention.

In Golden Season v Kairos, the plaintiff alleged that a Facebook post made by the defendant was defamatory. However, there was no reference to the plaintiff in the post but for a comment on the post left by the plaintiff himself, essentially identifying himself as the subject of the Facebook post. 34 The court found that “[a] plaintiff who goes around announcing that something published by the defendant actually refers to him cannot rely on that very same act in arguing that the defendant’s publication now refers to him.”35 Nonetheless, in responding to

J. Mitchell Vaterlaus & Madison Winter (2021): TikTok: an exploratory study of young adults’ uses and gratifications, The Social Science Journal, DOI: 10.1080/03623319.2021.1969882 at 1 – 3.

32 Gabriel Weimann & Natalie Masri (2020): Research Note: Spreading Hate on TikTok, Studies in Conflict & Terrorism, DOI: 10.1080/1057610X.2020.1780027 at 1 – 5.

33 Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52 at [49].

34 Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another [2015] 2 SLR 751 at [41].

35 Id, at [49].

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Singapore Comparative Law Review this comment, the defendant had confirmed the identity of the plaintiff and this element was satisfied on the facts of this case.36 Therefore, it is possible for an ordinary user to understand the reference to the plaintiff from additional comments made to a social media post.

(3) “Publication” Lastly, the party being sued must have “act[ed], conveyed and communicated” the defamatory material to another user, in a “comprehensible form” that has been exactly accessed and understood by that user.37 Therefore, mere uploading of defamatory content is insufficient – another user must have accessed and understood it.38 On social media, this is usually satisfied if defamatory content was posted on a page or sent as a message on messaging platforms. It would be prudent to bear in mind that most social media applications now have a “seen” function, which would be definite proof that the content published by a defamer has been seen (or at least received) by either specific recipients or a number of recipients. This is unlike traditional cases of defamation where defamatory content is published on a notice board39 or website40, and a point of contention would be on how many people had seen the defamatory content in absence of proof.

D. Social Media Activities and Liability in Defamation As social media is a recent and evolving phenomenon of the last decade, it remains unclear what forms of social media activity can attract liability in defamation. This commentary explores how the three forms of social media activities mentioned above (“creating”, “liking” and “sharing”) can attract liability in defamation.

(1) Creators of defamatory content are liable As illustrated above, creators of social media content are the original source of the content, such as the one who originally posted the content, or sent the content to others. This is unsurprising, as defamatory content creators would readily satisfy the three elements needed for a defamation suit. For example, in Hungry Busters v Jonathan Cheok, social media posts on Facebook and Instagram which alleged that the plaintiff’s beef noodles were “fake”,

Id, at [51], [52], [55] – [57].

Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another [2016] 4 SLR 977 at [35].

38 Id, at [37] – [38].

39 Byrne v Deane [1937] 1 KB 818.

40 Zhu Yong Zhen v AIA [2013] 2 SLR 478 at [45].

36 37

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Singapore Comparative Law Review “pretentious” and “imitation”41, were found to be defamatory.42 In such clear cases where the content is defamatory, the traditional principles discussed in sub-section C above will apply.

Interestingly, our court has held that even after a defamatory post had been created, the content is not necessarily stagnant due to the ability to add comments to the original post. The case of Golden Seasons v Kairos held that:43 [T]he ability to comment on a thread on a Facebook post means that potentially, the content of the publication continues to change … The reality of Facebook and other social networking sites is that every time the author of a Facebook post comments on his own post, he is essentially “building on” the original publication. The Facebook post and the thread of comments bear a passing resemblance to a conversation. Later comments really belong to a single thread of comments originating from the same post. … [I]n many cases it is most probable that they will be read together and thus should be treated as a single publication.

Therefore, creators of social media content must be wary that any subsequent additions or comments made to the original post might attract liability in defamation since these comments will be read together with the original post by the ordinary user.

(2) Sharing defamatory content might be liable This situation arises when an original post which is defamatory has been shared (or republished) by another user. Whether the sharing of defamatory content attracts liability for the sharer is not straightforward, as “sharing” can involve adding a further comment or just reposting the original post in entirety without comment. Our courts have pronounced that “[if] there were some comment from the poster either endorsing or disparaging the [original defamatory post], then the determination would be reasonably clear.”44 This statement is slightly controversial, since defamation is akin to strict liability which does not depend on the intention of the defamer. 45 Nonetheless, in interpreting the nature of the accompanying comment without regard for the defamer’s intention, this would affect whether there is defamation as the ordinary

Hungry Busters Pte Ltd v Jonathan Cheok Wei Zheng [2020] SGDC 129 at [21], [52] – [54].

Ibid.

43 Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another [2015] 2 SLR 751 at [55].

44 Id, at [40].

45 Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 at [36].

41 42

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Singapore Comparative Law Review social media user would be influenced by the comment accompanying an allegedly defamatory post. The outcome would appear to lie on a scale between four possibilities: (1) where the comment endorses the post; (2) disparages the post; or (3) where the comment is neutral; and (4) where there is no comment. a.

Sharing with endorsing comment

Firstly, if the accompanying comment endorses the original defamatory post, the user is should clearly be liable.46 After all, this becomes a “deliberate act” of publication,47 in contrast to an innocent disseminator who had might have inadvertently shared the defamatory content without full appreciation of its nature. In the Australian case of Bolton v Stoltenberg, a user was found to have endorsed a post by commenting “[anyone] else who agrees… needs to like this post”, thereby bringing attention to the defamatory post and urging other users to agree with the defamatory post.48 In such cases, the law should rightly impose liability on the user who has gone beyond mere republication, but has sought to garner support for the defamatory content. b.

Sharing with disparaging comment

At the other extreme, if the comment disparaged the original defamatory post, a more complicated case arises as much depends on the actual words of the comment. 49 The disparaging comment must be balanced as an “antidote” to the defamatory “sting” of the original post – nullifying the defamatory effect of the original post.50 In such cases where the disparaging comment has clearly brought the attention of the ordinary social media user to the defamatory sting and nullifies its defamatory sting, the sharer is arguably not liable since the ordinary reader would be aware of the contention and not likely to have thought lesser of the plaintiff. In order words, there is no longer any harm suffered by the plaintiff. However, such cases are not clear, and indeed the court might have to look into the bona fide intentions of the sharer in cases where despite a disparaging comment was made, the sharer’s true intentions were in fact to publicise the defamatory content. Such a sharer should not be allowed to hide behind his disparaging words as a defence to liability – even though defamation has traditionally been a strict liability tort.

Crookes v Newton [2011] 3 S.C.R. 269 at [48].

Gary Chan Kok Yew. Defamation via hyperlinks: More than meets the eye. (2012). Law Quarterly Review.

128, 346-351 at 350.

48 Bolton v Stoltenberg [2018] NSWSC 1518 at [173] – [175].

49 Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 at [45].

50 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 419–420 cited with approval in Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639.

46 47

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c.

Sharing with neutral comment

In the middle of the two aforementioned extremes, lies another contentious area where the sharer simply says, “make what you want of it”; shares no view on the matter but rather seeks to merely inform or invite the views of others across social media. In this case, the intention of the defamer to inform and invite viewpoints would be justified if the balance of interest tilts in favour of the sharer’s freedom of expression and the public’s right to know. After all, a purpose of social media as a platform is to inform, discuss and exchange viewpoints. At the very least, such a sharer would be akin to the role of a news reporter, who has merely reported on a point of interest which has turned out to be defamatory. It is submitted, in the interest of facilitating public discourse and the speed at which social media posts can go viral with or without the accompanying comment, a sharer who has expressed a neutral view solely to invite discussion should not be liable for defamation. Nonetheless, such a neutral stance is not easily ascertained, as surely in sharing a contentious article, there might be an implied stance of the sharer which would be interpreted by the ordinary user. In other cases, the ordinary user might interpret the neutral comment as having no comment at all. d.

Sharing without comment

Lastly, if a defamatory post has been shared in entirety without adding to it, the user could nonetheless be liable for defamation. In Lee Hsien Loong v Leong Sze Hian,51 Leong had shared on his Facebook page, a hyperlink to an article which alleged that Lee (the Prime Minister of Singapore) was deeply involved52 in the 1MDB scandal (involving embezzlement and misuse of government funds in Malaysia).53 Even though Leong did not add any comment, the court decided that Leong’s post and article were essentially the same, and that Leong had supported, endorsed and provided access to the article.54 Crucially however, the court stressed that a factcentric analysis55 would be adopted in each case. Therefore, when a user shares defamatory content without any accompanying comment, this is an act of republishing the entire original defamatory content. The court was quick to caveat this by offering a potential saving grace (no

Lee Hsien Loong v Leong Sze Hian [2021] 4 SLR 1128.

Id, at [5] – [6] and [29].

53 The Guardian (28 July 2020). “1MDB scandal explained: A tale of Malaysia's missing Billions”: <https://www.theguardian.com/world/2018/oct/25/1mdb-scandal-explained-a-tale-of-malaysias-missingbillions> (accessed 29 October 2021).

54 Lee Hsien Loong v Leong Sze Hian [2021] 4 SLR 1128 at [42].

55 Id, at [41].

51 52

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Singapore Comparative Law Review liability) if a post was made referring to the original defamatory content but no link was made to the original post for users to follow; despite the fact that “it is perhaps easier for a Facebook user to post or a share a link to the original statement than to compose and type out an entirely new statement alerting others to the original [post].”56 From this case, it is clear that the main concern for the purposes of publication, is the facilitation of access of the defamatory content to other users. It makes prudent sense that a user is free to exercise his freedom of expression in a separate post without referencing the original defamatory post (in order words no longer “sharing”). Although this goes against usual social media behaviour which facilitates and encourages the ease of sharing content, the court has said that this is no excuse.57 Therefore, it would appear that on social media, it is better to have express a view but omit referencing the defamatory content.

(3) Liking defamatory content does not attract liability In Switzerland, a man was found liable in defamation for “liking” comments on Facebook which accused the plaintiff as “anti-semantic” and “racist”. 58 The court reasoned that by “liking”, the post became more “accessible” and the man had “endorsed the unseemly content and made it his own.”59 In Singapore however, no one has been sued for “liking” a defamatory post, and for good reason.

Firstly, someone who “likes” a defamatory post arguably did not “publish” it, as there was no active act of communication to a third party. The act of “liking” is merely an expression of emotion, rather than an act of publication to others.

Secondly, the visibility of a user’s “likes” is uncertain. The visibility of one’s “likes” to others is influenced by each user’s activities and connections – for example on Facebook, a user’s likes are more likely to be seen by a close friend on their newsfeed as compared to others.60 In some cases, one’s “likes” are usually not permanently visible to others, which means that only a few people will have viewed the defamatory post. Moreover, some platforms like Instagram have Ibid.

Ibid.

58 Larson, N. (30 May 2017). “In a landmark ruling, a Swiss court has fined a man for 'liking' defamatory comments on Facebook. Business Insider: <https://www.businessinsider.com/afp-man-guilty-of-libel-over-facebook-likesswiss-court-2017-5> (accessed 05 December 2021).

59 Ibid.

60 How news feed works: Facebook Help Center: <https://www.facebook.com/help/1155510281178725> (accessed 12 September 2021).

56 57

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Singapore Comparative Law Review disallowed others from viewing one’s likes altogether. 61 Crucially, the plaintiff would face evidential difficulties proving how many people viewed the defamatory post through this person’s act of “liking”.62 The visibility of likes is therefore not always clear and might differ between users depending on their usage of social media and across differing social media platforms.

Lastly, it would seem rather harsh to view “likes” as a form of endorsement in relation to defamation since there exists a myriad of social media functions that allow users to express reactions to a post beyond the generic “like”. For example, Facebook now allows users to express reactions of “love, care, haha, wow, sad and angry” in the form of emojis to a post.63 If “likes” were seen as endorsement, then would an “angry” reaction be seen as disapproval? Such a technical distinction would be impractical given the proliferation and myriad of social media functions, where the court might have to scrutinise the meaning and effect of a reaction in each case. There also exist users who “like” posts simply to boost their number of followers and the popularity of their online profiles.64 In short, how defamation laws should deal with “likes” and reactions on social media remains an uncertain and open area of controversy.

E. Defences Having considered briefly the various social media activities and their correlation to defamation, that is not the end of the matter. When sued, the defendant is able to raise defences such as the defence of fair comment, justification and innocent dissemination.

Briefly, the defence of fair comment protects the defamer’s freedom of expression in making an “honest opinion of a fair-minded man, and in this connection every allowance or latitude is to be given for any prejudice and exaggeration entertained by such a fair-minded man.”65 The defamatory content must thus be a comment made on facts which a fair-minded person can honestly make; and the comment must be in the public interest.66

Holmes, A. (7 October 2019). Instagram is getting rid of the feature that let you see what everyone else was liking.

Business Insider: <https://www.businessinsider.com/instagram-following-activity-tab-removed-report-2019-10> (accessed 12 October 2021).

62 Bolton v Stoltenberg, supra n 49 at [176].

63 Facebook resources website, Reactions: <https://www.facebook.com/brand/resources/facebookapp/reactions> (Accessed 11 November 2021).

64 Supra n 8.

65 Gao Shuchao v Tan Kok Quan and others [2018] SGHC 115 at [74].

66 Id, at [73].

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Singapore Comparative Law Review Next, the defence of justification protects truthful content; where the substance of the alleged defamatory content is proven true, there is no liability.67 Lastly, the defence of innocent dissemination allows a defendant who had exercised all reasonable care and did not know of the defamatory nature of the content to make an offer of amends to the plaintiff and resolve the matter amicably. 68 Overall, considering the balance of interest between the reputation of the plaintiff and the freedom of expression of the defamer, the latter rightly prevails in cases where these defences are made out. However, when applied to social media cases, does this balance need to be readjusted to privilege freedom of expression? After all, the essence of social media is for users to express their views freely, exchange information and socialise in the online realm. It would appear that the answer lies in one of public policy which would differ between jurisdictions. In Singapore at least, there is little value in false information and freedom of speech does not trump the reputation of an individual. In this light, it is prudent to always verify the veracity of social media content and resist the urge to share content which could foreseeably cause harm to the reputation of another individual. When faced with a letter of demand and lawsuit, one should take preventive measures by apologizing immediately and removing the allegedly defamatory content.

CONCLUSION In summary, the increasing prevalence of social media raises questions on how defamation law should evolve to deal with the myriad of social media functions which facilitate the publication of defamatory content. This article has sought to illustrate several areas of controversy and where liability ought to be attracted. Nonetheless, as with all cases of defamation, much depends on the exact facts and circumstances of each case. The larger picture of defamation also considers the public policy and sociological subscription of each jurisdiction, such as the strength of one’s right to freedom of expression. Despite the advances in technology and social media, one thing remains unchanged – if one is truthful, reasonable and exercises due care in his actions in light of the law of defamation, he should have nothing to fear.69

Aaron Anne Joseph and others v Cheong Yip Seng and others [1996] 1 SLR(R) 258 at [73].

Defamation Act (Chapter 75, Rev 2014 Edition) Section 7.

69 Inspiration derived from Low Kee Yang, A Clear View of the Law (Candid Creation Publishing, 2021) at 30 – 37.

67 68

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Singapore Comparative Law Review

Singapore Comparative Law Review

Human Rights Dimension of COVID-19 Pandemic Measures Zi Hao Tan

INTRODUCTION The hegemonic narrative at the global level maintains that an unprecedented public health crisis demands unprecedented measures. The COVID-19 pandemic fits the bill with its universal reach in disrupting lives and livelihoods, through the inherent threat of the disease itself as well as the governmental responses to it. This article places three categories of measures (contact tracing, vaccine passport and lockdown) under scrutiny, while appreciating the differing breadth, depth and context of implementation in Singapore and in the United Kingdom (UK). This shall involve examining the availability of safeguards, the implications on human rights discourse and the impact of fundamental constitutional principles.

A. Contact Tracing Contact tracing is a containment-based measure involving activity mapping of the COVID-19 patient from incubation to diagnosis, identifying any close contacts for follow-up isolation or monitoring. 1 Countries have engaged in manual contact tracing (MCT) operations which are complemented by digital contact tracing (DCT) technologies, providing a comprehensive surveillance system designed to counter the spread of the disease.2 This can be observed by how MCT efforts are facilitated by mobile applications such as SafeEntry and TraceTogether in Singapore and NHS COVID-19 in the UK. SafeEntry is a check-in system that records the full name, identification number and mobile number of the visitor entering the relevant venue. TraceTogether is a proximity detection system that exchanges Bluetooth signals and logs the mobile number of nearby participating users.3 NHS COVID-19 is a multi-purpose system providing for visitor check-in, proximity detection, test booking and other relevant information and notifications.4 Despite the well-documented efficacy

Anash and others, ‘The effectiveness of public health policy interventions against COVID-19: Lessons from the Singapore experience’ (2021) 16(3) PLOS ONE e0248742 2 Trivedi and Vasisht, ‘Digital Contact Tracing: Technologies, Shortcomings, and the Path Forward’ (2020) 50(4) ACM SIGCOMM Computer Communication Review 75-81 3 Lai and others, ‘The experience of contact tracing in Singapore in the control of COVID-19: Highlighting the use of digital technology’ (2020) 45(1) International Orthopaedics 65-69 4 ‘What the App Does’ (NHS COVID-19 App Support, n.d.) <https://covid19.nhs.uk/what-the-app-does.html> accessed April 8, 2022 1

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Singapore Comparative Law Review of contact tracing, the use of DCT technologies has been the subject of public controversy due to accessibility issues and privacy concerns.

(1) Accessibility In Singapore, SafeEntry and TraceTogether are technically optional in that users must manually download them and input the relevant data for them to be operational. However, their use was practically mandatory to regain any semblance of a social life. TraceTogether-only SafeEntry check-in was obligatory for essentials (clinics, supermarkets), leisure (malls, restaurants) and recreation (cinemas, gyms) among others5 until 26 April 2022.6 In contrast, in the UK, there is no virtual necessity even if it is strongly encouraged to use NHS COVID-19. Visitor check-in is on an opt-in basis, with the appeal of use coming from the available functions of the application itself.7 To preface, what is not in dispute is that the right to health is a fundamental human right under Art 25 Universal Declaration of Human Rights (UDHR), referring to the right to enjoy the highest attainable standard of physical and mental health under Art 12 International Covenant of Economic, Social and Cultural Rights (ICESCR). While UDHR is not a legally binding treaty, and Singapore is not a state party to ICESCR though the UK has ratified it in 1976, it is submitted that both countries are bound by international law to respect the right to health. UDHR arguably qualifies as customary international law by embodying values of universally accepted norms, or as general principles of law recognised by civilised nations from being enshrined in numerous domestic constitutions across the globe. To comply with international legal obligations as in domestic legal obligations would demonstrate respect for the rule of law, both “rest[ing] on similar principles and pursu[ing] similar ends”.8 This is with the caveat that Singapore and the UK both operate by a dualist legal system which treats international law and domestic law as distinct and requires a domestic implementing act to set conditions and give effect to international law.

'(Updated April 2022) Places Where SafeEntry Must Be Deployed' (SafeEntry, 7 April 2022) <https://support.safeentry.gov.sg/hc/en-us/articles/900000861343--Updated-April-2022-Places-where-SafeEntrymust-be-deployed> accessed April 8, 2022 6 Chew, ‘TraceTogether and SafeEntry no longer needed for most venues from Apr 26’ (Channel News Asia, 22 Apr 2022) <https://www.channelnewsasia.com/singapore/covid19-tracetogether-safeentry-step-down-2641231> [Accessed 22 Apr 2022] 7 'Businesses Urged to Prepare for NHS Covid-19 App' (Access2Funding, 14 September 2020) <https://www.access2funding.co.uk/knowledge-base/businesses-urged-to-prepare-for-nhs-covid-19-app> accessed April 8, 2022 8 Bingham, The Rule of Law (Penguin 2011), ch. 10 5

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Singapore Comparative Law Review Coming back, a holistic appreciation of the right to health requires a recognition that it carries positive as well as negative obligations, and shares an interdependent relationship with other rights.

Asbjorn Eide’s tripartite classification is the established doctrinal device for human rights discourse, consisting of the duty to respect (and not interfere with existing levels of enjoyment), the duty to protect (and prevent violation by private actors) and the duty to fulfill (and develop policies towards the full realisation of the right).9 The right to health has largely revolved around developing policies to secure the accessibility, affordability and quality of healthcare for all, which includes preventing and controlling the spread of diseases in a pandemic. Yet, it is imprudent to operate on a “means-end” rationality to pursue infection prevention and control without regard to the accompanying risks and costs to existing levels of enjoyment of rights. Positive obligations to intervene should not be fulfilled by disproportionately undermining negative obligations not to hinder, especially where the individual rights holder might attach a greater value to the latter. This is not to say that freedoms should always prevail over responsibilities, but to surface the possibility of optimising each aspect of the right to health against the other without sacrificing any where there is a conflict.

The quasi-obligation to use DCT technologies has direct implications on the unspoken liberty of the elderly to participate in social and cultural life without discrimination. Many seniors may either lack a smartphone, or have one but face difficulties in using the relevant applications. In Singapore, 93% of all residents but only 60% of those aged 75 and above actively used a smartphone in 2020. 10 Similarly, in the UK there is a smartphone penetration rate of 79%11 but only 65% of those aged 65 and above used a smartphone.12 Interference with seniors’ capacity for involvement in the life of society has the potential to infringe the right to health when it escalates into social isolation, contributing to increased risk of premature death, dementia, depression and so forth. 13 It is selfevident that asking seniors to simply partake in virtual gatherings was not a satisfactory response.

Food as a Human Right, ed. Asbjorn Eide and others (The United Nations University, 1984) 'Individual Smartphone Usage by Age Group, 2016 - 2020' (Infocomm Media Development Authority, 19 August 2021) <https://www.imda.gov.sg/infocomm-media-landscape/research-and-statistics/Digital-Society> accessed 8 April 2022 11 'Newzoo Global Mobile Market Report 2020 - Free Version' (Newzoo, 2020) <https://newzoo.com/insights/trend-reports/newzoo-global-mobile-market-report-2020-free-version/> [Accessed 8 April 2022] 12 O'Dea, 'Do you personally use a smartphone' (statista, 2021) <https://www.statista.com/statistics/300402/smartphone-usage-in-the-uk-by-age/> [Accessed 8 April 2022] 13 Tomaka, Thompson and Palacios, 'The Relation of Social Isolation, Loneliness, and Social Support to Disease Outcomes among the Elderly' (2006) 18 Journal of Aging and Health 359 9

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Singapore Comparative Law Review Cognisant of the digital divide being a cause for concern, the Singapore Government engaged in a nationwide distribution of TraceTogether tokens as a free and convenient physical alternative that the seniors could simply tap for check-in,14 and had done so 8 months before TraceTogetheronly SafeEntry was enforced at all public venues.15 While gradually and progressively expanding the areas where TraceTogether-only SafeEntry was required, there was clear communication to the public through mainstream media in line with the fair warning principle of the rule of law. 16 Such policies ensured the digital divide did not lead to a considerably worse impact on seniors, or a disproportionate interference with the freedom of movement under Art 13 Singapore Constitution. Meanwhile, the UK Government left the use of NHS COVID-19 strictly optional and to the discretion of residents whether to scan the QR code for check-in, so such a measure does not actually hinder the freedom of movement under Art 2 Protocol 4 to the European Convention on Human Rights (ECHR) which the UK signed but has yet to ratify. In any case, the initiatives of both countries may be justified based on the legitimate interest of public health.

(2) Privacy Moving on, privacy concerns encompass the type of data collected, the duration of data retention, the level of data protection, and the purpose for which data is used.

On the type of data collected, TraceTogether and NHS COVID-19 record the degree of proximity and duration in said closeness between nearby users. TraceTogether goes further to collect identification and contact details, while NHS COVID-19 also logs test codes and results. Such information is necessary to facilitate MCT operations and notify users if they have been in close contact with a user infected with COVID-19. Neither tracks GPS coordinates.17 There is evidently a close link between the type of data collected and the public health goal of containing the spread of the disease, making this prima facie unproblematic and in fact desirable.

Lai, 'TraceTogether tokens to be distributed free to all S'pore residents from Sept 14' (Straits Times, 9 September 2020) <https://www.straitstimes.com/singapore/tracetogether-tokens-to-be-distributed-free-to-all-spore-residentsfrom-sept-14> [Accessed 8 April 2022] 15 Low, 'Mandatory TraceTogether-only SafeEntry brought forward to May 17' (Channel News Asia, 11 May 2021) <https://www.channelnewsasia.com/singapore/covid19-tracetogether-safeentry-may-17-brought-forward-tokenapp-1358126> [Accessed 8 April 2022] 16 Phua, 'TraceTogether tokens to be issued to Singapore residents; some SafeEntry points will require visitors to use TraceTogether to check in' (Channel News Asia, 10 September 2020) <https://www.channelnewsasia.com/singapore/tracetogether-tokens-be-issued-singapore-residents-somesafeentry-points-will-require-visitors-use-tracetogether-check-694761> [Accessed 8 April 2022] 17 ‘TraceTogether Privacy Safeguards’ (TraceTogether, 11 March 2021) <https://www.tracetogether.gov.sg/common/privacystatement> accessed April 9, 2022; “NHS Covid19 App: Privacy Notice” (GOV.UK, n.d.) <https://www.gov.uk/government/publications/nhs-covid-19-appprivacy-information/nhs-covid-19-app-privacy-notice> accessed 9 April 2022 14

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On the duration of data retention, proximity and duration data stored on the user’s device will be automatically deleted after 25 days for TraceTogether, and 14 days for NHS COVID-19, unless such data has been uploaded onto government servers as confirmed cases or by voluntary submission respectively.18 Before the upload, the right to erasure is safeguarded by the ability to deregister and request for all relevant data (proximity and duration data, identification and contact details) to be deleted in Singapore. Similarly, the right to be forgotten guaranteed under Art 17 UK General Data Protection Regulation (UK GDPR) grants the capacity to request for all relevant data (proximity and duration data, test codes and results) to be deleted in the UK. After the upload, once contact tracing is no longer necessary, the non-retention of collected data is covered under s25 Personal Data Protection Act 2012 (PDPA) in Singapore, and s38 Data Protection Act 2018 (DPA) in the UK. This is with the caveat that data not containing direct, indirect or consistent identifiers are not legally covered under the DPA and may be retained for 8 years.19 On the level of data protection, reasonable security arrangements to prevent unauthorised access or disclosure is demanded under s24 PDPA in Singapore, while appropriate level of protection to prevent unauthorised or unlawful processing is affirmed under ss 2, 40 and 42 DPA in the UK. Encryption is incorporated in both TraceTogether and NHS COVID-19. However, there remains concerns in relation to data anonymisation after uploading to the respective databases, and the level of security should data storage be outsourced to third party cloud providers. There has since been one data breach in Singapore,20 and at least three data breaches in the UK.21 On the purpose for which data is used, assurances were provided by the Governments of Singapore22 and the UK23 that collected data would be used strictly for contact tracing. However, it has since been revealed that TraceTogether data can be used for law enforcement under the Ibid delli Santi, “Open Rights Group Response to Data: A New Direction” (Open Rights Group, 19 November 2021) <https://www.openrightsgroup.org/publications/open-rights-group-response-to-data-a-new-direction/> accessed 9 April 2022 20 Shaffiq, “Woman who breached OSA by leaking Covid-19 data to chat group given 18 weeks’ jail” (Straits Times, 22 February 2022) <https://www.straitstimes.com/singapore/courts-crime/moh-officer-leaked-covid-19-relateddata-to-group-and-played-game-to-guess-number-of-cases> accessed 26 April 2022 21 Marsh and Hern, “ Government admits breaking privacy law with NHS test and trace” (The Guardian, 20 July 2020) <https://www.theguardian.com/technology/2020/jul/20/uk-government-admits-breaking-privacy-law-withtest-and-trace-contact-tracing-data-breaches-coronavirus> accessed 26 April 2022 22 Baharudin, ‘Contact-Tracing Device Will Not Track Location; People Can Use TraceTogether If They Prefer, Says Vivian Balakrishnan’ (Straits Times, 8 June 2020) <https://www.straitstimes.com/singapore/contact-tracingdevice-will-not-track-location-and-people-can-use-tracetogether-if-they> accessed 9 April 2022 23 ‘Protecting Your Privacy and Security’ (National Health Service, n.d.) <https://covid19.nhs.uk/privacy-anddata.html> accessed 9 April 2022 18 19

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Singapore Comparative Law Review Criminal Procedure Code 2010 (CPC), generating public backlash in Singapore. 24 This is exacerbated by how TraceTogether as a form of DCT technology affects all users, accounting for more than 70% of the general public since the end of 2020,25 in contrast to how MCT operations are limited to confirmed or suspected cases.26 It has since been clarified that the data can only be used for investigations into serious crimes such as terrorism and murder under Art 82 COVID-19 (Temporary Measures) Act 2020. This should be understood in the context of the absence of a constitutional right to privacy, neither enshrined explicitly nor understood implicitly under the Singapore Constitution as ruled in Lim Meng Suang v Attorney-General.27 Furthermore, CPC acts as a statutory exception to the right to privacy, and Singapore signed but did not ratify the International Covenant on Civil and Political Right (ICCPR). In turn, in weighing competing rights and interests, there appears to be a greater willingness by the Singapore Government to favour public order to privacy guarantees, in spite of the poor optics of ubiquitous surveillance for purposes other than contact tracing. On the other hand, in the UK, the right to privacy is secured by domestic law through the constitutional statute of the Human Rights Act 1998 (HRA) giving effect to Art 8 ECHR, and international law through Art 17 ICCPR which the UK signed and ratified. There remains a strong civil society providing scrutiny and demanding accountability. This is despite the right to protection of personal data under Art 8 Charter of Fundamental Rights of the EU (CFR) no longer applying after Brexit.

B. Vaccine Passport Vaccine passport is a mitigation-based measure involving a record of the individual’s COVID-19 vaccination status which directly affects his level of access to international travel, social participation and return to the workplace. It is usually issued as a digital proof but can be printed physically if so desired. Countries have justified separate treatment on the basis that unvaccinated individuals suffer greater health risks and have to be protected by greater restrictions on movement.

The concurrent goal is to encourage vaccination uptake through the incentive of restoring normalcy to everyday life. Depending on the ideology adopted, one might find such a measure to be reasonable differentiation or dangerous discrimination.

Tham, ‘Police Can Use TraceTogether Data for Criminal Investigations’ (Straits Times, 5 January 2021) <https://www.straitstimes.com/singapore/politics/police-can-use-tracetogether-data-for-criminal-investigations0> accessed 9 April 2022 25 Tang, ‘70% Of Singapore Residents Participating in TraceTogerther Programme: Vivian Balakrishnan’ (Channel News Asia, 24 December 2020) <https://www.channelnewsasia.com/singapore/covid-19-tracetogether-adoptionsingapore-crosses-70-percent-500596> accessed 9 April 2022 26 Kahn (ed), Digital Contact Tracing for Pandemic Response: Ethics and Governance Guidance (2020), p. 41 27 Lim Meng Suang v Attorney-General (2015) 1 SLR 26 24

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Singapore Comparative Law Review In Singapore, for international travel, COVID-19 immunisation records and pre-departure test (PDT) results can be endorsed on the Notarise website, through which a Vaccination HealthCert and a PDT HealthCert can be downloaded respectively for the relevant proof in text and QR codes.28 This forms a functional all-in-one vaccine passport. As for domestic use, whether for private life or work, COVID-19 vaccination status and any test results can be extracted from the TraceTogether application or token.29 In the UK, for international travel or domestic use, COVID19 vaccination status is verified in NHS COVID Pass, which can be downloaded on the NHS website, extracted from the NHS application, or obtained in letter form by post.30 (1) International Travel Any requirement for proof of COVID-19 vaccination status or PDT results is dependent on the country of arrival, where the traveller may be subjected to an on-arrival test (OAT), mandatory quarantine or be outright forbidden entry for lacking either or both.

For individuals travelling into Singapore, at the time of writing, those who are fully vaccinated only have to submit an Arrival Card (recent travel and health details), while those who are not have to take a PDT two days prior to departure and self-isolate at their place of accommodation for a 7day period with a polymerase chain reaction (PCR) exit test afterwards. 31 As for individuals travelling into the UK, at the time of writing, all travel restrictions (Passenger Locator Form, PDT, OAT) have been lifted for both the fully vaccinated and the non-fully vaccinated.32 Prior to this, there have been requirements such as PDT, OAT and mandatory quarantine according to vaccination status and country of departure.33 Border control measures on the basis of vaccination status adopted by Singapore and the UK are justified on public health considerations. Putting aside conflicting studies on disease transmissibility, empirical studies have shown that being non-fully vaccinated contributes to higher

‘Notarise - Digital Authentication and Endorsement for Travellers’ (Notarise, n.d.) <https://www.notarise.gov.sg/> accessed 10 April 2022 29 ‘What Will My Vaccination Status Show after I've Taken My Booster?’ (TraceTogether, February 2022) <https://support.tracetogether.gov.sg/hc/en-sg/articles/4406847806361--Booster-What-will-my-Vaccinationstatus-show-after-I-ve-taken-my-booster-> accessed 10 April 2022 30 'Get an NHS COVID Pass' (National Health Service, n.d.) <https://www.nhs.uk/conditions/coronavirus-covid19/nhs-covid-pass/get-an-nhs-covid-pass/> accessed 10 April 2022 31 'Travelling to Singapore - Overview' (Immigration and Checkpoints Authority, n.d.) <https://safetravel.ica.gov.sg/arriving/overview> accessed 10 April 2022 32 'Covid Travel Restrictions Have Ended in the UK' (British Broadcasting Corporation, 18 March 2022) <https://www.bbc.com/news/uk-60789979> accessed 10 April 2022 33 Ibid 28

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Singapore Comparative Law Review hospitalisation rates34 and hence puts severe strain on the healthcare system of the host country.

Should healthcare facilities exceed capacity and be unable to adequately accommodate and treat more patients, it would be detrimental to the right to health of all residents.

Furthermore, such measures should not be regarded as discriminatory as they parallel conditions imposed on residents’ freedom of movement. There is simultaneous domestic implementation of containment measures such as contact tracing and mitigation measures such as safe distancing.

This is not a situation of treating unvaccinated non-citizens as “others” while citizens are free not to follow internal protection measures. Such a situation would otherwise create an absurd circumstance of countries insisting on the right to protect citizens from being infected by others as well as the freedom of citizens to infect others.35 (2) Social Participation Moving on, proof of COVID-19 vaccination status has affected an individual’s right to participate in social and cultural life, though to varying degrees by country.

In Singapore, vaccination-differentiated safe management measures (VDS) have been introduced since 10 August 2021, substantially expanded by 1 January 2022, and significantly rolled back after 26 April 2022.36 At the time of writing, VDS has been lifted for all venues except dining outlets, nightlife establishments and large-scale events exceeding 500 participants. Prior to this, to participate in retail, dining and recreational activities among others, an individual must be (i) fully vaccinated, (ii) unvaccinated but infected by COVID-19 in the past 180 days and have since recovered, (iii) unvaccinated but aged twelve or below, or (iv) unvaccinated but medically ineligible for all vaccines under the National Vaccination Programme. 37 This was enforced through TraceTogether-only SafeEntry check-in, whether by application or token, before entry into included areas.

Thompson and others, ‘Effectiveness of COVID-19 vaccines in ambulatory and inpatient care settings’ (2021) 385 N Engl J Med 1355-1371 35 Danchin and others, ‘The Pandemic Paradox in International Law’ in International Legal Order and the Global Pandemic (2020) 36 Ang, ‘Vaccination-differentiated measures to be lifted except for F&B outlets, some nightlife activities and large events’ (Channel News Asia, 22 Apr 2022) <https://www.channelnewsasia.com/singapore/vaccinationdifferentiated-measures-fb-nightlife-large-events-covid-19-2641221> [Accessed 22 Apr 2022] 37 “Information on Vaccination-Differentiated Safe Management Measures” (Ministry of Health, 27 January 2022) <https://www.moh.gov.sg/docs/librariesprovider5/2019-ncov/220127-vds-info-sheet_booster_for-uploadingv2.pdf> accessed 11 April 2022 34

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Singapore Comparative Law Review In the UK, all vaccination-differentiated measures have been withdrawn, as part of the nationwide relaxation of COVID-19 restrictions. Prior to this, from 15 December 2021 to 27 January 2022, NHS COVID Pass to prove vaccination status or a recent negative lateral flow test (LFT) result was mandated for entry into nightlife establishments, unseated indoor events exceeding 500 participants, unseated outdoor events exceeding 4000 participants, and any large-scale events exceeding 10,000 participants.38 Otherwise, the use of NHS COVID Pass was always on an optin basis.

The particularly severe restriction on the unvaccinated individual’s capacity for social participation is not arbitrary for both countries when understood in the context of a national surge in Omicron variant infections. Singapore experienced exponential growth in daily confirmed cases, with 456 cases at the start of January 2022 and peaking at 24,080 cases at the start of March 2022, according to the COVID-19 Data Repository by the Centre for Systems Science and Engineering at Johns Hopkins University. Similarly, the UK experienced massive growth in daily infections from 47,536 cases at the start of December 2021 and peaking at 219,290 cases at the start of January 2022, according to Our World in Data by the Oxford Martin Programme on Global Development at University of Oxford. There was clearly a dire need to flatten the curve and alleviate the strain on the healthcare system of both countries, to protect the right to health of all residents.

That said, it is necessary to address the broader and more intrusive measure regarding vaccine passports adopted by the Singapore Government which makes vaccination de jure optional but de facto compulsory. Refusal to be vaccinated effectively cuts off the individual from most in-person social activities, interfering with the individual’s right to bodily integrity and to refuse medical treatment. However, this has to be reconciled with the community’s right to health by preventing hospital overcrowding, and all residents’ right to life from COVID-related death even if it means being more paternalistic, a sentiment best expressed as “society above self”. 39 Moreover, allowances were then made for children under the age of 12 who are ineligible for vaccination and hence securing their right to play, and those who are medically ineligible for vaccination to avoid an unjust blanket ban that imposes penalties for circumstances outside of the individual’s control.

'Prime Minister Confirms Move to Plan B in England' (GOV.UK, 8 December 2021) <https://www.gov.uk/government/news/prime-minister-confirms-move-to-plan-b-in-england> accessed 11 April 2022 39 Shared Values’ (Singapore Infopedia, 13 July 2015) <https://eresources.nlb.gov.sg/infopedia/articles/SIP_542_2004-1218.html#:~:text=The%20first%20component%2C%20%E2%80%9Cnation%20before,Singapore's%20racial%20an d%20religious%20harmony> accessed 16 April 2022 38

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While the UK Government did adopt a more targeted approach limited to venues with particularly high risk of “superspreader” events due to high density and close proximity of participants, NHS COVID Pass was still met with public hostility. This can be understood as arising from fears of it becoming a gateway to a national identification system, especially as it facilitates a digital infrastructure of health credentials.40 Consolidation of personal data into a centralised database heightens surveillance and affects the individual’s right to privacy, which the British have traditionally been and continue to be protective of.41 In contrast, identification numbers are part and parcel of the Singaporean’s daily life, used for accessing essential government services such as to apply for public housing and look up education records. As such, the well-entrenched national identification system does not contribute to criticism of the role of TraceTogether as a vaccine passport.

(3) Return to Workplace Moving on, COVID-19 vaccination status has been used to determine which employees are allowed to return to on-site working and which must remain in remote working.

At the time of writing, workforce vaccination measures (WVM) have been lifted since 26 April 2022, with non-fully vaccinated employees no longer prohibited from returning to the workplace under the Workplace Safety and Health (COVID-19 Safe Workplace) Regulations 2021.42 Prior to this, the Singapore Government implemented WVMs where only fully vaccinated employees or unvaccinated employees who recovered from COVID-19 in the past 180 days were allowed to return to the workplace.43 This directly affects the right to work, as it puts unvaccinated individuals’ job retention and prospects at risk. In turn, there is a risk of exacerbating existing economic inequalities, especially since blue- and pink-collar workers face greater job insecurity as the nature of their jobs require in-person work or face-to-face human interaction as compared to white collar workers who are more likely to be able to work from home. This is only partly mitigated by Wood, “Government Accused of Ushering in National ID Cards 'by the Backdoor' after Jab Passport Deal” (iNews, 12 July 2021) <https://inews.co.uk/news/government-accused-of-ushering-in-national-id-cards-by-thebackdoor-after-covid-vaccine-passport-contract-1062476> accessed 11 April 2022 41 Pirie, “The Abolition of Identity Cards” (Adam Smith Institute, 21 February 2019) <https://www.adamsmith.org/blog/the-abolition-of-identity-cards> accessed 11 April 2022 42 “Updated Advisory on COVID-19 Vaccination at the Workplace” (Ministry of Manpower, 25 April 2022) <https://www.mom.gov.sg/covid-19/advisory-on-covid-19-vaccination-in-employment-settings> accessed 26 April 2022 43 “Information on Vaccination-Differentiated Safe Management Measures” (Ministry of Health, 27 January 2022) <https://www.moh.gov.sg/docs/librariesprovider5/2019-ncov/220127-vds-info-sheet_booster_for-uploadingv2.pdf> accessed 12 April 2022 40

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Singapore Comparative Law Review schemes such as the COVID-19 Recovery Grant and the Courage Fund aimed at providing temporary financial assistance for lower income households affected by pandemic-related job displacement.44 With the exception of those who are medically ineligible, unvaccinated employees who are terminated according to the terms of their employment contracts would not be regarded as having suffered wrongful dismissal.45 On concerns of unlawful discrimination, Han Hui Hui v Attorney-General found that the non-fully vaccinated and the fully vaccinated are “not equally situated” such that differentiated treatment requires justification, with “at least three material differences” such as “higher risks of serious illness and death, increased likelihood of COVID-19 infection and transmission, and greater strain on healthcare resources”.46 In contrast, the UK Government did not implement any equivalent measure. This can be understood from the possibility of facing a HRA compliance review for interfering with the prohibition of discrimination guaranteed under Art 14 ECHR, especially if implemented as a blanket policy where disproportionality is more likely to be found. Furthermore, unvaccinated employees enjoy greater protection from retrenchment on the basis of vaccination status, which is more likely to be regarded as wrongful dismissal. Such indirect discrimination would put individuals sharing the protected characteristic of religion or belief against taking the COVID-19 vaccine at a disadvantage,47 and can only be lawful if it is proportionate to achieve a legitimate aim under s19 Equality Act 2010. While protecting the health of employees in the workplace is a legitimate aim, it is likely to be disproportionate to simply dismiss employees refusing to vaccinate due to availability of other less severe alternatives such as regular testing, mask wearing and social distancing.48 C. Lockdown Lockdown is a mitigation-based measure restricting movement and activity, commonly involving nationwide stay-at-home orders. This limits person-to-person interactions and exposure, aimed at ‘Support for Singaporeans Affected by COVID-19’ (Ministry of Social and Family Development, n.d.) <https://www.msf.gov.sg/assistance/Pages/covid19relief.aspx> accessed 12 April 2022 45 ‘Written Answer to PQ on Workplace Discrimination and Wrongful Termination’ (Ministry of Manpower, 12 January 2022) <https://www.mom.gov.sg/newsroom/parliament-questions-and-replies/2022/0111-writtenanswer-to-pq-on-workplace-discrimination-and-wrongful-termination> accessed 12 April 2022 46 Han Hui Hui v Attorney-General [2022] SGHC 141 47 ‘Covid-19 Vaccine Policies in the Workplace – Potential for Litigation?’ (Capital Law, 3 August 2021) <https://www.capitallaw.co.uk/news/2021/08/03/covid-19-vaccine-policies-in-the-workplace-potential-forlitigation/> accessed 12 April 2022 48 ‘Can Refusing to Be Vaccinated Be Protected on Religion or Belief Grounds under the Equality Act 2010?’

(Addleshaw Goddard, 21 January 2021) <https://www.addleshawgoddard.com/en/insights/insightsbriefings/2021/employment/can-refusing-to-be-vaccinated-be-protected-under-the-equality-act-2010/> accessed 12 April 2022 44

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Singapore Comparative Law Review reducing COVID-19 transmissibility and flattening the pandemic curve. Despite lockdowns being highly effective, the substantial disruption to everyday life has caused them to attain a notorious reputation, sparking off heated protests around the world. 49 In defence of lockdowns, it is submitted that to do otherwise following an exponential growth in daily cases with the healthcare system under unbearable strain, when countries are not yet ready to treat COVID-19 as endemic and to live with the disease, would be a disastrous demonstration of executive underreach.50 (1) Necessity From 7 April 2020 to 1 June 2020, Singapore entered partial lockdown through a series of circuit breaker measures, where limited essential activities such as collecting takeaways, buying groceries and visiting the doctor were permitted, while private gatherings were banned and non-essential professions had to work from home.51 The decision was made in light of a surge in imported cases from Singaporeans and long-term pass holders returning from abroad52 and a concerning trend of unlinked cases.53 By 1 June 2020, daily community cases were successfully suppressed to zero according to the Local Situation Report from the Ministry of Health.

Meanwhile, the UK imposed three nationwide lockdowns, namely from 23 March 2020 to 23 June 2020, 5 November 2020 to 2 December 2020, and 6 January 2021 to 17 May 2021.54 The first was to deal with exponential growth in daily COVID cases from 40 cases at the start of March 2020 and peaking at 5493 cases at the end of April 2020, which successfully brought daily cases back Haddad, 'Mapping Coronavirus Anti-Lockdown Protests around the World' (Al Jazeera, 2 February 2021) <https://www.aljazeera.com/news/2021/2/2/mapping-coronavirus-anti-lockdown-protests-around-the-world> accessed 13 April 2022 50 Pozen and Scheppele, ‘Executive Underreach in Pandemics and Otherwise’ in International Legal Order and the Global Pandemic (2020) 51 Mohan, ‘Covid-19 Circuit Breaker Extended until Jun 1 as Singapore Aims to Bring down Community Cases 'Decisively': PM Lee’ (Channel News Asia, 21 April 2020) <https://www.channelnewsasia.com/singapore/covid-19circuit-breaker-extended-june-pm-lee-speech-apr-21-765811> accessed 13 April 2022 52 Lin, ‘Over 70% of Singapore's New COVID-19 Cases the Past 4 Days Were Imported – and Most Were Singapore Residents and Long-Term Pass Holders’ (Business Insider Singapore, 20 March 2020) <https://web.archive.org/web/20200425045611/https://www.businessinsider.sg/70-of-singapores-new-covid-19cases-the-past-3-days-were-imported-and-most-were-singapore-residents-and-long-term-pass-holders> accessed 13 April 2022 53 Ng, ‘Covid-19: Worrying Trend of Unlinked Cases Was Why Singapore's Leaders Activated 'Circuit Breakers'’(Today, 4 April 2020) <https://www.todayonline.com/covid-19-worrying-trend-unlinked-cases-was-whysingapore-leaders-activated-circuit-breakers> accessed 13 April 2022 54 McKeever and Higgins-Dunn, ‘British Prime Minister Boris Johnson Imposes National Lockdown on England to Combat New Covid Variant’ (Consumer News and Business Channel, 5 January 2021) <https://www.cnbc.com/2021/01/04/british-prime-boris-johnson-imposes-national-lockdown-for-england-tocombat-new-covid-variant.html> accessed 13 April 2022 49

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Singapore Comparative Law Review down to 882 cases on 23 June 2020 according to Our World in Data. The second was to address consistent daily infections at five figures, which successfully halved daily cases between start and end of the lockdown. The third was to manage the surge in Delta variant infections,55 leading to a drastic downward trajectory from 62,350 cases to 1979 cases by 17 May 2021.

These were all reasonable pre-emptive moves to reduce disease transmission and buy time to ramp up the health infrastructure. This would provide continued access to medical assistance and avoid ever reaching the point where hospitals are overwhelmed and critical care has to be rationed, protecting the right to health of all residents. By extension, the right to life of hospitalised patients is secured with prompt treatment reducing the probability of COVID-related deaths. The right to life as guaranteed under Art 9 Singapore Constitution and Art 2 ECHR obliges the state to interfere to protect residents from such real and immediate threats to life. To do otherwise could be regarded as a “wilful failure to address a significant public problem”, especially since the Singapore and the UK Governments had foresight of the threat with statutory power (whether by public health laws or emergency constitutional powers) to initiate lockdowns backed by their respective command of parliamentary majorities.56 It takes courage to adopt a potentially unpopular measure rather than downplay the COVID-19 pandemic and jeopardise residents’ rights to safety and security.

(2) Unintended Consequences While lockdowns as a measure are reasonable and in fact desirable in the above circumstances, there are unsatisfactory aspects in terms of the manner of implementation.

In Singapore, unintended consequences arose for the rights of vulnerable groups such as abused wives and overlooked migrants, aggravated by pre-existing inequalities. With the circuit breaker entering into force less than a week after the public announcement, it is unlikely that maltreated wives could find alternative living arrangements before being forced to live with their abusers for much longer durations each day. The phenomenon of intensified domestic violence against women has been dubbed the shadow pandemic by UN Women. This is problematic in view of an increase in police reports on domestic abuse, a serious human right violation against women that

‘Timeline of UK Government Coronavirus Lockdowns and Restrictions’ (Institute for Government, n.d.) <https://www.instituteforgovernment.org.uk/charts/uk-government-coronavirus-lockdowns> accessed 13 April 2022 56 Pozen and Scheppele, ‘Executive Underreach in Pandemics and Otherwise’ in International Legal Order and the Global Pandemic (2020) 55

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Singapore Comparative Law Review is only partly addressed with measures such as crisis shelters and heightened police protection. 57 Meanwhile, migrant workers are forced to remain in cramped and unhygienic dormitories, which is not only an infringement on the right to adequate housing but also the right to health as such poor living conditions results in greater susceptibility to disease transmission. These overlooked migrants would soon prove to be a substantial vector for the spread of disease with rapid formation of COVID-19 clusters, quickly encompassing the majority of all infected cases by the end of April 2020.58 This has since been tackled through the building of improved living spaces and relocation of migrant workers.59 In the UK, Prime Minister Boris Johnson was fined for flouting COVID restrictions by participating in lockdown parties, causing public outcry.60 While his actions were inexcusable for undermining the rule of law by behaving as if political elites were above the law, this does not detract from the merits of lockdowns in principle. Additionally, in R (Dolan) v Health Secretary, the lockdown regulations were ruled to be intra vires, deferring to the political judgement of the executive in relation to the balance between public health concerns and individual liberty in a time of emergency.61 CONCLUSION A crisis is where human rights guarantees and fundamental constitutional principles are put to the test, where the option to circumvent them for political expediency is made available. State authorities are challenged not just to provide a fair balance of competing interests between individuals and between individuals and the community, but also face the temptation to keep and normalise the extraordinary powers tolerated or even supported by the citizenry to deal with the pandemic. As a society, it is imperative that we remain vigilant against the improper use of public health claims to violate rights as well as the improper use of rights claims to undermine legitimate pandemic measures. The line between what is proper and what is improper further requires sufficient regard to context.

‘22% Increase in Family Violence Reports since Start of Circuit Breaker Period: SPF’ (Channel News Asia, 14 May 2020) <https://www.channelnewsasia.com/singapore/family-violence-domestic-abuse-police-reports-circuitbreaker-940316> accessed 13 April 2022 58 Koh, ‘Migrant Workers and COVID-19’ (2020) 77 Occupational and Environmental Medicine 634-636 59 Kok, “Larger Living Spaces, Better Ventilation among Improved Standards for New Migrant Worker Dorms” (The Straits Times, 17 September 2021) <https://www.straitstimes.com/singapore/improved-standards-for-newmigrant-worker-dormitories> accessed 13 April 2022 60 Jewers, ‘Two Thirds of Britons Want Boris Johnson to Resign If He Is Handed Another Partygate Fine” (Daily Mail, 16 April, 2022) <https://www.dailymail.co.uk/news/article-10723413/Two-thirds-Britons-want-BorisJohnson-resign-handed-Partygate-fine.html> accessed 17 April 2022 61 R (Dolan) v Health Secretary [2020] EWCA Civ 1605 57

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Two Roads Diverged – Taking the Road Untraveled as the Odds Stack Up Against Unmarried Cohabiting Couples Annabel Kwek and Ian Kwek

INTRODUCTION “The law has indeed moved on in response to changing social and economic conditions. The search is to ascertain the parties' shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it”.1 Lady Hale’s comment acts as a necessary compass to navigate the muddy waters of this specific and niche category of couples within society – unmarried cohabiting couples.2 As a result of the complex dynamics of these relationships and the absence of statutory protection, the judiciary was left to navigate this undeveloped aspect of trusts law. Specifically, in domestic contexts, it is reasonable to assume that happily unmarried cohabitants may not necessarily make explicit arrangements of how their property is to be shared following a separation. Recognising this, the court in Stack v Dowden3 adopted a common intention constructive trust (“CICT”) to resolve this uncertainty in the absence of an express agreement made. As the name suggests, the CICT requires courts to look for a common intention between parties in deciding how beneficial interest in the property is to be split.

Here, the court has the liberty to take into consideration a host of factors other than financial contributions to determine parties’ true intentions. Conversely, Lord Neuberger, in his dissenting argument, preferred resulting trusts (“RT”), which focuses on financial contributions towards the purchase price of the property. Two roads diverged in a wood. While the common intention constructive trust has been warmly welcomed by the House of Lords and the Supreme Court following the rulings in Stack v Dowden4 and Jones v Kernott,5 it is hard to say the same for the Singapore courts. The Singapore courts remain conservative with their position, effectively adopting the RT approach. This paper argues that the move towards the CICT is indeed a welcome one in addressing the niche category of unmarried cohabiting couples. However, the CICT espoused by the majority in the House of Lords produces unpredictable results because of its flexible starting point relying too heavily on judicial discretion. Comparatively, the Singapore courts’ adoption of the RT solution, while ideal, should be further refined to ensure it does not

Stack v Dowden [2007] 2 AC 432 at [46] per Baroness Hale.

Ibid.

3 Stack (n 1) [107] per Lord Neuberger.

4 Stack (n 1) [107] per Lord Neuberger.

5 Stack (n 1) [110].

1 2

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Singapore Comparative Law Review marginalise unmarried cohabitants. Ultimately, the two methodologies are unsatisfactory because of the conflict between consistency and certainty with context and fairness. Thus, this paper emphasises the need for the legislature to step in to strike the necessary delicate balance to adequately protect unmarried cohabitant couples.

A. Differing Starting Positions Comparatively, RTs provide a default starting position while CICTs have a contextual starting position. The RT solution advocates that 'in the absence of statutory provisions to the contrary', the same principles should apply regardless of relationship. Thus, ownership of the beneficial interest in a property should be determined according to parties’ contribution to its 'acquisition, retention, or value'.6 This approach prioritises the relevance of the contribution to the purchase price, attributing beneficial ownership in that proportion. 7 More importantly, Lord Neuberger argued that an intention may be express as well as inferred, but may not be imputed, as imputation would result in an exercise which is 'difficult, subjective, and uncertain'. 8 However, the CICT approach places more emphasis on the circumstances, distinguishing domestic and commercial contexts.9 This is viewed following a non-exhaustive list of factors where shared intention can either be actual or inferred. Otherwise, the court can impute an intention that did not necessarily exist when the proprietary right was created.10 These factors include the purpose for which the home was acquired, the nature of the parties’ relationship and how their finances were arranged.11 Arguably, a non-exhaustive list of factors may be too uncertain in failing to provide a stable framework for its application.12 It is argued that the lack of a definitive starting point affords the courts too much discretion to enable certain and consistent outcomes. Hence, the RT solution would maintain consistency and certainty because of its starting point alone.

Following Stack, Lord Walker and Lady Hale in Jones denounced the application of RTs advocated for in Lord Neuberger’s judgment 13 and re-stated the starting point of CICTs – drawing a distinction between single name and joint name properties. Accordingly, in single name cases, the person whose name is not on the register would bear the burden of establishing a CICT, while the

Stack (n 1) [107] per Lord Neuberger.

Stack (n 1) [110].

8 Stack (n 1) [125].

9 Stack (n 1) [69] per Lady Hale.

10 Stack (n 1) [70] Lady Hale.

11 Stack (n 1).

12 A Dyson, ‘All’s Fair in Love and Law: An Analysis of the Common Intention Constructive Trust’ (2008) CSLR 4(2), 162.

13 Jones v Kernott [2012] 1 AC 776, [25].

6 7

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Singapore Comparative Law Review person whose name is on the register would begin with the presumption of a beneficial joint tenancy, where the burden to discharge is heavy.14 Conversely, the presumption for joint name cases is that the parties intended a joint tenancy both in law and in equity, but this can be rebutted by evidence of a contrary intention deduced from their conduct. 15 Furthermore, the court reconfirmed that where there is an intention to share the beneficial interests, but the proportions are unclear, the court may impute an intention regarding the proportion, considering what it deems fair regarding to the whole course of dealing.16 Therefore, the two fundamental tenets of CICTs are “context” and “fairness”, the determination of which relies on judicial discretion. The absence of a framework to navigate the expanded boundary of non-financial contributions, alongside the court’s discretion on what is fair, can be problematic in being unable to produce consistent and certain case-law.

On the other hand, the RT approach ascertains intention according to financial contributions made to the purchase price. Thereafter, an intention, whether express or inferred, can rebut this presumption. Conversely, Lady Hale’s holding that “the search is to ascertain the parties’ shared intentions, actual, inferred or imputed with respect to the property in the light of their whole course of conduct in relation to it”17 has not clearly defined the two stages of inquiry.18 In recent cases such as Capehorn,19 it was emphasized that the two stages of inquiry have to be distinct – the first requires an actual agreement to be made between the parties as to the sharing of the beneficial interest, which can be inferred but not imputed. The second is where the court can impute an intention that each party is entitled to a share of the beneficial interest that the court considers is fair regarding the whole course of dealings in relation to the property. 20 This was confirmed in Geary,21 where imputation was held only to be relevant in quantification cases, and consequently only an honest common intention will enable a non-legal owner to establish that a beneficial share has been acquired. 22 The difficulty of this endeavour, therefore, is for the court to allocate proprietary interests in the absence of a prior agreement that reflects the parties’ intention. 23 Consequently, how the courts ascertain intention, and when imputation applies, will differ according to how it prioritises certainty in agreement or flexibility in the course of dealing.

Ibid [17] and [24].

Jones (n 13) [25].

16 Jones (n 13) [31]-[32].

17 Stack (n 1) [60].

18 Rebecca Lee, ‘Stack v Dowden: A Sequel’ (2008) 214 LQR 209, 210.

19 Capehorn v Harris [2015] EWCA Civ 955.

20 Ibid at [17] per Sales LJ. 21 Geary v Rankine [2012] EWCA Civ 555.

22 ibid [19].

23 Lee (n 18) 212.

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B. CICT’s Problematic Development Furthermore, the problematic development of the CICT is apparent in its inconsistent outcomes as compared to RTs. This is seen from the differing levels of judicial discretion in each approach, where CICTs are eerily similar to a remedial constructive trust when contrasted against an institutional constructive trust. Institutional constructive trusts arise by law where the court merely declares pre-existing property rights off prior conduct, whereas remedial constructive trusts operate retrospectively. It is a judicial remedy giving rise to an enforceable equitable obligation which operates retrospectively, depending on the discretion of the court. 24 Previously, Lord Denning previously proposed a ‘new model’ of constructive trusts, where whenever justice and good conscience require it, a trust may arise when the property is acquired, or later, as the circumstance may require. It is an equitable remedy through which the court can enable an aggrieved party to obtain restitution.25 The issue, however, is that remedial constructive trusts give the court discretion to vary proprietary rights, something no English court has ever had the power to do except with the authority of Parliament.26 Property rights are determined by fixed rules and settled principles. They are not discretionary and do not depend upon ideas of what is “fair, just and reasonable”.27 As such, it is argued that the reasoning of the majority in Stack overstepped, as it is irreconcilable with an institutional constructive trust which gives rise to an identifiable property right before judgement.28 Hence, the RT approach would produce more certainty and consistency as the rule-based approach utilises well-established trust principles, whereas the imputation of intention in CICTs requires retrospective judicial actions to ascertain fairness. Consequently, the CICT advocated for by the majority creates uncertainty as it is a subjective exercise which jeopardises the consistent application of legal principles.

Fundamentally, an understanding of this difference is essential in distinguishing why the RT approach is more consistent, and the extent of judicial discretion which is permittable. As soon as inferring an intention is not possible, the focus of the court’s attention diverts to what is fair and it undertakes a different examination that involves deciding what the parties actually intended.29 However, imputing the common intention is driven by equity, which means it is done by searching

Westdeutsche v Islington LBC [1996] AC 669 at 714-715 per Lord Browne-Wilkinson.

Hussey v Palmer [1972] 3 All ER 744 at 747 per Lord Denning.

26 Re Polly Peck [1998] EWCA Civ 789 at 830 per Nourse LJ. 27 Foskett v McKeown [2000] 1 AC 102 at 127 per Lord Millet.

28 Terence Etherton, 'Constructive Trusts: A New Model for Equity and Unjust Enrichment'. [2008] 67(2) CLJ 278.

29 Jones (n 13) [75] per Lord Kerr.

24 25

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Singapore Comparative Law Review for the result which the court itself considers fair. 30 Accordingly, the distinction between imputation and inference is that it marks the dividing line between the constructive trust as a discretionary remedy arising out of the judgement of the court, and an institutional trust giving rise to a pre-judgment proprietary interest.31 The function of imputation is to achieve a fair and just result by filling in the missing gaps when the court cannot deduce what shares were intended. 32 Imputation occurs in the absence of an intended outcome between the parties and the court decides what would be fair in “light of their whole course of conduct”.33 This resembles a remedial constructive trust. As such, it is argued that the reasoning of the majority in Stack overstepped as it is irreconcilable with an institutional constructive trust which gives rise to an identifiable property right before judgement.34 The inference of intention in the absence of an express agreement poses practical problems for judges in determining a fair apportionment of proprietary interest as it is inherently difficult to quantify non-financial contributions. The difference in determining a fair apportionment of proprietary interest between financial and non-financial contributions is apparent in the unusual case of Aspden v Elvy.35 The dispute involved the beneficial ownership of a barn which had Mr Aspden transferred to Ms Elvy following their separation. Behrens HHJ found that it was contentious whether the household contribution by Ms Elvy could give rise to an inference that the common intention of the parties had changed, intending for her to have some interest in Outlaithe Farm.36 On the contrary, Mr Aspden made substantial contributions in both financial and physical terms to the property.37 In the absence of an express agreement, Behrens HHJ found that the financial contributions was a substantial part of his assets and this was sufficient for inferring a common interest that he should have some interest in the property. 38 Accordingly, common intention derived from non-financial contributions is evidently contentious whereas inferring a common intention from financial contributions are ascertainable and evokes lesser debate. Indeed, Behrens HJJ later described the award as “arbitrary”.39 Therefore, the absence of a framework to compute non-financial contributions to determine what is fair will be practically

Jones (n 13) [87] per Lord Wilson.

Etherton (n 28) 272-273.

32 Sarah Greer and Mark Pawloski, ‘Imputation, Fairness and the Family Home’ [2015] (6) Conveyancer and Property Lawyer 512.

33 Stack (n 1), [60] per Lady Hale.

34 Etherton (n 28) 278.

35 [2012] EWHC 1387.

36 Ibid [109-110].

37 Ibid [123].

38 Ibid [125].

39 Ibid [127-128].

30 31

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Singapore Comparative Law Review challenging if the computation of financial contributions, in the absence of an express agreement, is already considered to be arbitrary. This is further exacerbated by the different starting points of single-name and joint-name properties, particularly in single-name properties where there is an absence of equitable proprietary interest for the claimant. As established in Curran,40 in single-name cases, it is not enough to establish the common intention; the party who is asserting a share in beneficial interest must have detrimentally relied on this common intention, a requirement that does not apply in joint-name cases.41 In a legal juxtaposition, single-name cases are subjected to a more stringent pre-Stack approach of law that resembles Rosset,42 where in order to establish a constructive trust, both parties must share a common intention that the claimant detrimentally relied on.43 On the other hand, joint-name cases resemble the more holistic approach advocated in Hiscock,44 where it is accepted that each party is entitled to a share the court considers fair having regard to the whole course of dealing between them in the property,45 except Stack and Jones have developed “the whole course of dealing” to including non-financial contributions. Accordingly, the CICT approach is flawed because not only is the reallocation of beneficial interests without the authority of Parliament arbitrary, it is also incapable of providing consistent outcomes for all cohabitants – single or jointly owned. Consequently, the differences in approach between singlename and joint-name cases excludes parties that the majority in HOL sought to protect with the CICT approach.

Furthermore, Marr v Collie46 highlights the apparent absence of a statutory framework through the lack of definition and guidance on what property is familial and commercial. It is arguably also an egregious expansion of the law providing for unfettered judicial discretion in the pursuit of ‘fairness’. As previously noted, the purported reasoning for the CICT approach was to protect cohabiting couples in their “familial” property. This created a clear distinction between “the domestic context” and the “commercial world.”47 However, the most apparent expansion in Marr is its acceptance of CICTs’ applicability to real property not intended for habitation, discarding the “purpose” requirement.48 This was established in Laskar,49 in line with the earlier distinction in Stack that a CICT does not apply when the purpose of the purchase of property was commercial, Curran v Collins [2015] EWCA Civ 404 Ibid per Lewison LJ. 42 Lloyds Bank Plc v Rosset [1990] 1 AC 107.

43 Ibid at [131].

44 Oxley v Hiscock [2004] EWCA 546.

45 Ibid at [69] per Chadwick LJ. 46 [2017] UKPC 17.

47 Stack (n 1) [69] per Lady Hale.

48 Marr (n 46) [40].

49 Laskar v Laskar [2008] EWCA 347.

40 41

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Singapore Comparative Law Review such as investments.50 Lord Kerr broadened the scope even further to include chattels – the truck and the boat.51 The expanding applicability of CICTs with unfettered judicial discretion presents great uncertainty as to what will be included upon the breakdown of a relationship. More concerningly, as discussed earlier, English courts do not possess the discretion to vary proprietary rights. 52 In expanding the scope to include commercial properties and chattels, the court is undermining fixed rules and settled principles of property rights.53 Furthermore, Marr goes beyond previous understandings of the relationship between the CICT and RT. The dividing line was the purpose for which the relevant rights were required – if for habitation, the CICT doctrine applied; if for investment, the RT doctrine instead.54 Lord Kerr’s test confines RTs to circumstances where parties ‘have not formed any intention as to beneficial ownership’ 55 . This development is problematic because it is unsupported by legal principle and creates incongruous divisions within the law of intentionally created trusts.56 The irrational expansion of scope to include commercial property, and the exclusion of long-standing legal principles, can only be evidence that trusts law is inadequate to reach fair and equitable solutions for cohabiting couples.

C. Applying the Context in Deciding the Road Taken?

A notable characteristic and trend of these cases which center around CICTs pertain to women in unmarried, cohabitating relationships who have not made financial contributions towards the property. The RT approach, albeit certain and consistent, excludes such women by placing an expectation of financial contributions towards the purchase price. In reality, the contribution of a woman in a relationship or familial setting can extend beyond financial payments. Lord Neuberger’s stance against imputation was challenged in Jones, where it was contended that the RT solution also imputed intention to parties based on a broad generalisation of human motivation.57 From this perspective, ‘common intention’ is a fiction in being a judicial exercise of “inventing agreement” with facts being stretched to find the necessary intention.58 Consequently, when substantial and important non-financial contributions, such as homemaking and childcare,

Ibid [17].

Marr (n 46) [60].

52 Greer and Pawloski (n32).

53 Marr (n 46) [60].

54 Alexander Georgiou, ‘Marr v Collie: The Ballooning of the Common Intention Constructive Trust’ (2019) 82(1) MLR 145, 151.

55 Marr (n 46) [53]-[54].

56 Georgiou (n 54) 155.

57 Jones (n 13) [29] per Lord Walker and Lady Hale.

58 S. Gardner, “Rethinking Family Property” (1993) 109 LQR 263, 265.

50 51

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Singapore Comparative Law Review are completely ignored in assessing whether an implied intention can be found, 59 these tendences lead to unfairness and discount the contributions of the female party. 60 Following this, the law surrounding unmarried cohabitants is gender biased and discriminates disproportionately against women, since it ignores the gender division of labour, and the fact that women are more likely to make a substantial portion of the non-financial contributions in the family.61 Although RTs may produce more certain and consistent outcomes, its rule-based approach is inadequate for levelling the unequal gender imbalance in relationships to provide just outcomes for women whose contributions are wholly or largely non-financial.

For instance, in Graham-York, 62 the issue was whether the award was a fair reflection of the woman’s contributions, financial and non-financial, over the years. Of which, the court focused narrowly on contributions made in relation to the property. 63 Interestingly, Graham-York exemplifies the difficulties of requiring the court to pin its findings to an imagined intention of the parties. The reality of most human situations is that intention does not exist in a vacuum: it is intimately connected to the nature of the parties’ relationship and their personalities.64 Advocating for a more “robust” approach to quantification, Greet and Pawloski compared Graham-York to Midland Bank Plc,65 where the court considered the whole course of dealing between parties, and their sharing of its burdens and considerations.66 A number of factors were taken into account which would not have fallen under orthodox RT principles.67 The court, therefore, took the view that there was not a “clearer example of a couple who had agreed to share everything equally”. 68 Instead, what emerged in Graham-York was a desire to marginalise the various non-financial factors in Stack into purely background elements whilst, at the same time, focusing heavily on matters which relate directly to the acquisition of the property. 69 Hence, the RT solution will most consistently marginalise a segment of society as it utilises an overly parochial outlook in ascertaining intention purely by monetary contribution towards the purchase of the property.

Simone Wong, ‘The Iniquity of Equity: A Home-sharer’s Tale” (2008) Singapore Journal of Legal Studies 326, 330.

60 Greer and Pawloski (n 32) 519.

61 Wong (n 59) 329.

62 Graham-York v York [2015] EWCA 72.

63 Ibid [9] per Tomlinson LJ. 64 Greer and Pawloski (n 32) 519.

65 [1995] 4 All ER 562.

66 Ibid 745 per Waite LJ. 67 Greer and Pawloski (n 32) 521.

68 Midland Bank (n 65) 747.

69 Greer and Pawloski (n 32) 521.

59

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Singapore Comparative Law Review Pertinently, the issue is whether the RT approach can be sufficiently flexible to be both certain and consistent, while protecting the interests of women. As discussed previously, the starting point for quantification of the RT solution, where there is no other relevant evidence except the parties’ differential contributions, is the percentage of contribution. 70 However, a constructive trust analysis may conceivably arise where there is, in addition to financial contributions, other relevant evidence that would enable the court to deduce the parties’ actual or implied intention regarding beneficial ownership.71 Presumably, in a situation similar to Graham-York as mentioned above, the original RT is overtaken by a constructive trust based on the parties’ subsequent words and deeds, but in some contexts it seems like a specifically enforceable agreement is required.72 This means that the woman’s contribution of raising their child and the financial contribution to the general household expenditures would not matter unless there is an enforceable agreement. Unlike commercial relationships, the intimate nature of couple relationships, married and cohabiting, is such that the parties to the relationship do not deal with each other with organised thinking like strangers negotiating at arm’s length.73 Therefore, it is not entirely realistic to expect couples to have a specifically enforceable agreement during a relationship, dictating the outcome of its breakdown.

To determine the effectiveness of the RT solution, it is posited that an analysis of Singapore’s adoption of Lord Neuberger’s dissenting judgment in Stack and its narrow adoption of the CICT is necessary. The leading case discussing CICT in Singapore is that of Chan Yuen Lan.74 This case involved a property that was held in the wife’s sole name. Her husband sought a declaration that his wife held beneficial interest in the property on a resulting trust for him. However, the wife argued that both her and her husband agreed that she would own the property solely.

Unfortunately, the couple did not have a good relationship. While the court was presented with a good opportunity to assess the applicability of Stack and Jones in Singapore, it instead reaffirmed the resulting trust approach to domestic cases. In the recent case of Geok Hong Co Pte Ltd,75 the court once again held that CICT could not arise on the facts. In Geok Hong, the property in question was under the defendant company which was founded by the claimants’ father and other family members. It was argued that there was a common agreement, by way of oral agreement, between

Stack (n 1) [122] per Lord Neuberger.

Stack (n 1) [125] per Lord Neuberger.

72 Graham Battersby, ‘Ownership of the Family Home: Stack v Dowden in the House of Lords’ (2008) 20(2) Child and Family LQ 255, 263.

73 Wong (n 59) 328.

74 [2014] SGCA 36.

75 Geok Hong Co Pte Ltd v Koh Ai Gek [2019] SGCA 15.

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Singapore Comparative Law Review the father and the claimant son, that the son will have beneficial interest of the property in the company’s name in order to protect the property from the claimant’s wife if they ever divorced.

Even if the court could find any common intention on the facts, which they did not, the Court of Appeal found that other factors vitiated any common intention. For example, the claimant had not inform any of his siblings of the said arrangement, and the father had made sure each children had an equal stake in the company as opposed to solely benefitting the son. Pertinently, the court rejected the argument that the son had undertaken renovation works to improve the property by implying that it was necessary for some detriment to be suffered for any common intention to be made out. This strict assessment definitely deviates from the UK court’s analysis which may have arguably accepted the son’s renovation of the property as a factor in inferring or even imputing a common intention. Thus, following Geok Hong, it seems like the court has hammered the nail in the coffin on the CICT doctrine in Singapore. Curiously, however, Singapore left the door ajar for the recognition of the remedial constructive trust in the commercial arena. 76 Undeniably, this calls for further evaluation – should the court not be more open in the approach to family home cases as opposed to commercial cases? It most certainly would not be the first thought in many family members, couples, or cohabitating partners’ minds regarding how a beneficial interest in their property should be allocated. This is not the case with commercial parties, where such considerations remain one of their main priorities when conducting business. This suggests that it is necessary to reconsider either Singapore’s position on the CICT. However, does this necessarily mean that Stack and Jones remain the best road to take by default?

Although the RT solution is likely to produce consistency and certainty because it is well established in trusts law, it still needs to be developed for its application in practice. Therefore, it is difficult to posit that the courts should have followed Lord Neuberger’s solution because its practical implementation needs to be developed, and it is evidently inadequate to provide satisfactory solutions for the cohabitant dynamic. This can be seen through the contrast between English law upholding individual justice in the case at the expense of certainty, whereas Singapore law privileges certainty at the expense of flexibility. 77 However, Man Yip purports that the difference in approach is shaped by the different kind of socio-family issues, since unmarried cohabitants are not the norm in Singapore.78 In fact, in rejecting the CICT, the Singapore court made clear that it was largely due to pragmatic reasons. Out of the many reasons, it is important

Wee Chiaw Sek Anna v Ng Li-Ann Genevieve [2013] SGCA 36.

Man Yip, ‘Comparing family property disputes in English and Singapore law: ‘context is everything’’ (2021) 41 Legal Studies 474, 480.

78 Ibid at 482.

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Singapore Comparative Law Review to note that the court opined that the acceptance of CICT in UK was but a consequence of changing economic and social conditions in England, specifically the rise in the number of unmarried cohabiting couples, inferring its irrelevance in the Singapore context. 79 This article argues that such a reasoning fails to account for the fact that cohabitation remains on the rise in Singapore. More than 7 years ago, majority of the public opinion was in favour of cohabitation as an acceptable lifestyle,80 and it is suspected that these numbers have since risen.

Nonetheless, it must be acknowledged that there has yet to be a case where the court had to decide the applicability of CICT concerning unmarried cohabitants. Rightfully, then, it may be justified that the court did not venture too far in rooting the applicability of CICT in Singapore on purely socio-economic contexts. Indeed, as the Court of Appeal had cautioned in UKM v AG,81 judges have no special expertise in socio-economic matters and must be extremely cautious in resting decisions in this area of trust law, which is largely judicial-driven. Moreover, specifically in matrimonial cases which constituted most of the cases on CICT in Singapore, there exists the Women’s Charter82 which, in substance, gives effect to Stack and Jones’ inference or imputation of a common intention. Notably, s 112(2) of the Women’s Charter lists factors that were similarly considered by the court in Stack and Jones when determining common intention. 83 It is now evident that by restricting the applicability of CICTs following Geok Hong, while maintaining flexibility to do so through the Women’s Charter, the court effectively drew a distinction between cases coming before the common law, and those coming before the family courts. As observed astutely by Jonathan Muk, “the refusal to impute a common intention to parties possibly might not lead to a just and equitable outcome, but it certainly coheres with the CA’s intentions to develop the law of equity of trusts in a manner that is consistent with precedent, principle, policy and pragmatism” while maintaining the traditional family unit that exists strictly within the confines of marriage.84 D. The Road Not Taken All things considered; it is opined that more should be done to afford adequate protection to unmarried cohabitating couples. While it is undisputable that the CICT analysis remains uncertain Wee Chiaw Sek (n 76) at [127].

Institute of Policy Studies, IPS Perception of Polices in Singapore (POPS) Survey 6: Perceptions of Singles on Marriage and having Children (June 2013).

81 UKM v AG [2018] SGHCF 18 at [112].

82 Women’s Charter 1961.

83 S 112 of the Women’s Charter (Cap 353, 2020 Rev Ed); see also J Muk, Chan Yuen Lan v See Fong Mun (2015) 27 SAcLJ 230-249.

84 Ibid at 233.

79 80

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Singapore Comparative Law Review and affords too wide a discretion to judges, this paper is of the view that the law simply cannot stop at ensuring only those bonded by the sanctity of marriage are protected. With the emphasised distinction of the common law and marital law by the Court of Appeal in Singapore, it is opined that the courts should consider the possibility of inferring or imputing a common intention, if necessary, for unmarried cohabiting couples, if ever the opportunity arises. It is argued that this is not an unjustified expectation. In fact, one of the rare cases where common intention succeeded was that of BMM v BMN,85 with the unusual factual matrix remaining as close to an unmarried couple as possible. Here, a man had bought a house in 1997 in his sole name before getting married to a woman he thought was carrying his twins some two years later. In 2001, they put the same house in their joint names. However, in 2005, they tried to get a divorce only to find out that their marriage was invalid, and the children were not his. The court found that there was sufficient evidence of direct financial contributions by the man given that he had paid the entire purchase price of the property. Thus, the presumption of resulting trust arose. Moreover, the presumption of advancement applied as the man and woman thought that they were indeed married and were in a strong and happy relationship at the time of their supposed marriage before it went to shambles. The woman was also financially dependent on the man. As a result, the court found that there was a common intention between the two – the man would have the entire beneficial interest in the property. In so holding, the court found that the two had kept their finances very separated and they had never lived in the property. Moreover, the property had been acquired before they got “married” and the sole reason for putting it under joint names was to save on interest. On this strange factual matrix, CICT succeeded. It is submitted that the man and woman’s relationship remain similar to an unmarried cohabitant couple, for indeed, their marriage was invalid. This may therefore suggest that the possibility of applying the substance of the CICT doctrine when the case concerns unmarried cohabitant couples.

Nonetheless, it must be recognised that the findings in BMM v BMN86 were solely rooted in the man’s direct financial contributions to the purchase price. Thus, it is suggested that a modified approach of both Stack and the RT analysis as adopted by the Singapore courts is developed to ensure that there is no marginalisation of parties in unmarried cohabitant couples, and more importantly to ensure that the law developed in a clear, consistent, and certain manner. Thus, while maintaining and developing the framework set out in Chan Yuen Lan, it is submitted that the factors considered by Stack and Jones should not be overlooked when deciding whether the courts should

85 86

[2017] SGHC 131.

Ibid at [82].

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Singapore Comparative Law Review look beyond direct financial contributions. At this juncture, guidance from the UK may be considered. Summarily, the Law Commission in the UK proposed legal principles that should be applied upon the demise of a cohabitating relationship.87 Specifically, cohabitants who have had a child together are automatically eligible to apply for financial relief. On the other hand, couples without children must have minimally cohabitated together for a duration between two and five years to receive relief.88 This proposed scheme would require the court to assess whether that presumption left either party with a retained benefit or an economic disadvantage in the event of separation.89 This provides scope for not only direct and indirect financial contributions but also non-financial contributions such as domestic contributions to be considered. Furthermore, the proposal confers wide discretionary powers on the court to make orders for property adjustment, having regard to the circumstances of the case.90 Consequently, the adjustive powers provide the courts with legitimacy to reallocate beneficial interests where it is reasonable and practical to do so. Although valuating “economic disadvantage” will have its practical difficulties, the Law Commission’s proposal will bring much needed certainty and consistency in the protection of cohabitants’ rights upon the demise of a relationship.91 It offers a framework for the judiciary to operate within, while considering the reality and contexts of the cohabitant’s relationship, addressing the iniquity faced by female claimants under the existing law.92 However, it is critical to note that the UK Parliament has not adopted this proposal.

Within Singapore’s context, this proposal does not seem far off from the court’s distinction between common law cases and marital law cases through the Women’s Charter. Following this distinction, it makes sense for a similar proposal to be legislated to ensure that the law of equity and trusts develops “in a manner that is consistent with precedent, principle, policy and pragmatism”.93 However, it is recognised that doing so may countervail against strong public policy in favour of a traditional family unit in Singapore. While said in a different context, Prime Minister Lee Hsien Loong’s endorsement of the traditional understanding of a family unit as being “one man one woman, marrying…”,94 proves that proposing such legislation in Singapore remains no easy feat. Yet, as alluded to earlier, it should be recognised that Singaporean society is slowly Cohabitation: The Financial Consequences of Relationship Breakdown, Law Com No. 307 (London: HMSO, 2007).

88 Ibid [3.13].

89 Ibid [4.139].

90 Ibid [4.5].

91 R.J. Probert, ‘A Review of “Cohabitation: The Financial Consequences of Relationship Breakdown” (2007) 41(3) FLQ 521, 532.

92 Wong (n 59) 346.

93 Ibid (n 80).

94 Singapore Parliamentary Debates, Official Report (23 October 2007) vol 83 at cols 2397–2400 (emphasis added).

87

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Singapore Comparative Law Review moving away from its once conservative state to one that is now more acceptable of unmarried cohabitant couples, with 49% of those surveyed stating their likelihood of adopting such an arrangement.95 Ultimately, this is a Herculean task that must be taken up by the legislature, lest the courts be transformed into policy-making bodies and “make” law in an area that is not for them,96 much like what was witnessed in Stack. Until then, courts should not be quick to reject the possibility adopting the factors used in finding a CICT under its current adoption of the RT solution, especially when it is just and reasonable to do so.

CONCLUSION Two woods have diverged in a wood. Despite the CICT’s problematic reliance on judicial discretion, this paper has shown that the factors used in the CICT approach may be needed to address the niche category of unmarried cohabitant couples. Therefore, the Singapore courts’ adoption of the RT solution should be further refined to ensure it does not marginalise unmarried cohabitants. However, while trying to find an equilibrium in the conflict between consistency and certainty with context and fairness, the Singapore courts must be wary of transforming into a policy-making body. Otherwise, it risks going down the turbulent road of cases constantly expanding the application of CICT, dispensing of legal certainty in search of fairness, as explored above. In conclusion, this paper advocates for the legislature to address the pressing need of protecting proprietary interests within the unmarried cohabitant couple dynamic in Singapore.

Yip (n 77) at 482.

Sundaresh Menon CJ, ‘Taming the Unruly Horse: The Treatment of Public Policy Arguments in the Courts’, 19 February 2019.

95 96

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Singapore Comparative Law Review

The Law on Accessory/Joint Liability: An Examination of English Common Law and Singapore’s Penal Code Edwin Lim

INTRODUCTION This article seeks to critically compare the law on accessory liability in the United Kingdom (“UK”) and the law of joint liability in Singapore, and determine what, if anything, either jurisdiction can adopt from the other.

This article will first set out the law as it is in the UK as stated in the seminal case of R v Jogee; Ruddock v The Queen (“Jogee”), followed by the current law in Singapore as laid down in the cases of Daniel Vijay s/o Katherasan v Public Prosecutor (“Daniel Vijay”) and Public Prosecutor v Azlin bte Arujunah (“Azlin”). Then, a critical comparison of the law in the two jurisdictions will be done through a comparison of the similarities and the differences sequentially. It will be argued that although the highest courts in both jurisdictions have had the opportunity to determine this issue multiple times, there remain several flaws in the doctrine of joint and accessory liability.

A. The United Kingdom Model of Accessory Liability Before going into the principle of accessory liability for murder cases, it is apposite to first set out the laws surrounding murder in the UK to provide some context to the following discussion.

It is well-established law that an individual will be guilty of murder if that individual does an act that causes the death of the victim with the intention to kill or to cause grievous bodily harm.1 Equally well-settled is the law surrounding manslaughter: “[m]anslaughter is the unlawful killing without an intent to kill or do grievous bodily harm”.2 Thus, if an individual does an act that causes the death of the victim, but only with the intention of causing hurt, and nothing more, to the victim, that individual is only guilty of manslaughter.

1 2

R v Cunningham [1982] AC 566.

R v Smith (Wesley) [1963] 1 WLR 1200 1205.

Singapore Comparative Law Review The punishment for an individual convicted of murder is the mandatory life imprisonment. The sentencing Judge(s) sets a minimum term,3 for which is the period the individual must serve before they become eligible for parole. In contrast, there is no mandatory punishment for an individual convicted of manslaughter.

Turning to the doctrine of accessory liability, in a situation where an individual (“D2”) is to be held liable for the offence actually committed by another individual (“D1”), it must be proven: (i)

that D2 had participated in the crime in one way or another (i.e.: did D2 assist or encourage the commission of the offence); and

(ii)

that D2 had intended to assist or encourage D1 to commit the offence with the requisite mental element (“MR”) the offence requires D1 to have.4

This principle applies to all types of cases.5 In setting out element (ii), the UK Supreme Court (“UKSC”) held that in some murder cases, there may “often be no practical distinction to draw between an intention by D2 to assist D1 to act with the intention of causing grievous bodily harm at least and D2 having an intention himself that such harm be caused”.6 Nonetheless, the UKSC maintained that there is still a distinction as a matter of law, and that “it is enough that D2 intended to assist D1 to act with the requisite intent”.7 To illustrate the distinction, the UKSC gave an example purportedly of when D2 intended to assist D1 to act with the requisite intent but did not intend the specific offence: “where D2 supplies a weapon to D1, who has no lawful purpose in having it, intending to help D1 by giving him the means to commit a crime (or one of a range of crimes), but having no further interest in what he does, or indeed whether he uses it at all”.8 However, if D2 did not himself know what D1 had meant to do, it is difficult to see how it can be proven beyond reasonable doubt that D2 had intended to assist D1 to act with requisite intent.

Thus, the legal distinction seems to be a fictitious one. For D2 to intend to assist or encourage D1 to commit the offence, D2 must have intended D1 to commit the physical element (“AR”) of the

R v Rahman [2008] UKHL 45 [32] (Lord Scott of Foscote).

R v Jogee; Ruddok v The Queen [2017] AC 387 (“Jogee”) [88]-[90].

5 Jogee (n 5) [88]. See Jogee (n 5) [76] for an even more explicit statement: “We prefer the view … there is no reason why ordinary principles of secondary liability should not be of general application”.

6 Jogee (n 5) [90].

7 Ibid.

8 Ibid.

3 4

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Singapore Comparative Law Review offence. Then, if D2 intended to assist or encourage D1 to commit the AR of the offence together with the requisite MR, it must be said that D2 intended D1 to commit the offence as a whole. If D2 intended D1 to commit the offence, then it must follow that D2 had intended the offence.

Accordingly, there can be no situations where element (ii) is satisfied where D2 had not intended such harm to be caused.

Therefore, it appears that the real requirement is to show that D2 had assisted or encouraged D1 to commit the offence, with D2 having the intention of causing the harm.

B. The Singapore Model of Joint Liability Similarly, it is apposite to first set out the law on murder in Singapore to provide context. In Singapore, the Penal Code 1871 (“Penal Code”) is the primary statute that governs criminal law offences. Section 300 of the Penal Code lays out the law for murder, which is separated into four different types distinguished by the MR of the defendant. The four different types of MR are: (i)

an intention to cause death;

(ii)

an intention of causing such bodily injury that the offender knows is likely to cause death;

(iii)

an intention of causing the particular bodily injury actually inflicted on the victim, and that separately, on an objective inquiry, the bodily injury is sufficient in the ordinary course of nature to cause death; and

(iv)

knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury that is likely to cause death.

Unlike the UK, there is no manslaughter equivalent in Singapore.

The punishment for an individual convicted of section 300(a) of the Penal Code is the mandatory death penalty, whereas the punishment for an individual convicted of either section 300(b), section 300(c) or section 300(d) is the death penalty or life imprisonment. In sentencing an offender to life imprisonment, the sentencing Judge(s) does not need to prescribe a minimum term that the offender has to serve before that offender is eligible for parole; all offenders on life imprisonment are eligible for parole after 20 years.

Turning to the doctrine of joint liability, the first point of reference is section 34 of the Penal Code (“s 34”), which states that “[w]hen a criminal act is done by several persons, in furtherance of the 68

Singapore Comparative Law Review common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone”. The Singapore Court of Appeal (“SGCA”) had multiple opportunities to re-examine the scope of application of s 34.

In the most recent case of Azlin, the SGCA, sitting with a special coram of 5 Judges including the Chief Justice, pronounced that there are three situations where s 34 is applicable: (i) in a dual-crime situation;9 (ii) in a single-crime situation;10 and (iii) where s 34 is employed to attribute liability for component acts committed by another person to the offender so as to aggregate these component acts with other acts personally committed by the offender to form a “larger” criminal act that is the actual basis of the offence the offender is charged with (“the Novel Third Situation”).11 In all three situations, the elements of s 34 are as follows: (i) There must be a criminal act done by several persons (D1 and D2, for example) (“the criminal act element”); (ii) that criminal act must have been done in furtherance of the common intention of all (“the common intention element”); and (iii) that D2 must have participated in the criminal act (“the participation element”).12 The focus of this article is on the common intention element, specifically in the context of section 300(c) of the Penal Code (“s 300(c)”).

Leaving aside the Novel Third Situation which is not the issue this article seeks to address,13 in respect of dual-crime situations where s 300(c) has been committed as the collateral criminal act, the SGCA held that the common intention element is satisfied by the test set out in Daniel Vijay.14 The test requires that, for D2 to be held constructively liable for D1’s act of committing a s 300(c) The definition of a “dual-crime” or “twin-crime” situation is not contentious. It is defined as a situation in which D1 and D2 commonly intend to commit a primary criminal act, but in the course of committing the primary criminal act, D1 commits an additional collateral criminal act: see Public Prosecutor v Azlin bte Arujunah [2022] SGCA 52 (“Azlin”) [87], Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Singapore, LexisNexis, 4th Ed, 2022 (“YMC 2022”) [34.14], and Jogee (n 5) [2].

10 Again, the definition of a “single-crime” situation is not contentious. It is defined as a situation in which D1 and D2 commonly intend to commit a criminal act and that criminal act is actually committed through a variety of constituent acts by D1 and D2: see Azlin (n 10) [101], YMC 2022 (n 10) [34.13], and Chan Wing-Siu v The Queen [1985] AC 168 (“Chan Wing-Siu”) 175 (Sir Robin Cooke).

11 Azlin (n 10) [180(a)], [180(b)], [180(e)].

12 Azlin (n 10) [85(a)].

13 The author of this article is of the opinion that the SGCA erred in this finding. The applicable provision in the Penal Code to the Novel Third Situation is section 37 of the Penal Code and not s 34. In any case, this analysis and argument is best left for a separate occasion.

14 Azlin (n 10) [180(a)].

9

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Singapore Comparative Law Review murder, D2 must have intended the infliction of the particular bodily injury actually inflicted on the victim that D2 knew was sufficient in the ordinary course of nature to cause death (“s 300(c) injury”). It must be noted that this is different from the MR required of D1 in committing the s 300(c) murder as it is sufficient that D1 intended to inflict the particular bodily injury that was actually inflicted on the victim, and that separately, the bodily injury is objectively proven to be sufficient in the ordinary course of nature to cause death.

By contrast, in a single-crime situation where s 300(c) is the offence commonly intended by both D1 and D2 and was actually committed, the common intention element is simply satisfied by proving that both D1 and D2 intended to inflict the particular bodily injury that was actually inflicted on the victim, and that separately, the bodily injury is objectively proven to be sufficient in the ordinary course of nature to cause death.

The most significant difference is that unlike the UK, in Singapore, a different test is applied for dual-crime and single-crime situations. This will be discussed in depth below.

C. Similarities between the UK Model and the Singapore Model Similarity 1: Both models require that D2 intend for the offence to be committed Under the UK model, the MR required of D2 for D2 to be held constructively liable for the offence actually committed by D1 is that D2 must have intended the offence. Similarly, in the Singapore model, the common intention element (i.e. the MR required of D2 for D2 to be held constructively liable by virtue of s 34), save for dual-crime situations where s 300(c) is the collateral criminal act, is that D2 must have intended to do the “criminal act” (i.e. the offence D1 committed).

Both models are similar in this respect.

However, it is doubtful whether this requisite MR is appropriate. The requisite MR, that D2 intended the offence that D1 committed, results in an automatic acquittal of D2 in a dual-crime situation. By definition, a dual-crime situation is a situation where D1 and D2 commonly intended to commit an offence, and in the course of committing the offence, a separate collateral offence was committed by D1. Accordingly, in all dual-crime situations, D2 did not intend for the separate collateral offence and will be acquitted of that separate collateral offence under both models. In contrast, if D2 did intend the separate collateral offence, then it must be said that both D1 and D2 intended to commit the separate collateral offence, and the separate collateral offence is no longer

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Singapore Comparative Law Review a separate collateral offence, but rather the primary offence both parties set out to commit.

Accordingly, that would be a single-crime situation. Therefore, the requisite MR under both models would result in an automatic acquittal of D2 in respect of the separate collateral offence in a dual-crime situation.

The automatic acquittal of D2 in respect of the separate collateral offence in a dual-crime situation is undesirable as it would go against the fundamental and theoretical justifications for the principle of accessory/joint liability. A substantial number of crimes are not committed by individuals alone, but a group of individuals.15 Joint criminal enterprises can easily escalate into the commission of more serious offences or increase the likelihood of the crime being committed.16 “Group violence feeds upon itself and often engenders even greater violence”.17 As a matter of policy, there is a clear need for deterrence which can be achieved by punishing all members of the group as actual perpetrators for the crime actually committed by just one of them.18 Such a strict MR requirement is insufficient for achieving deterrence.

Similarity 2: Both models highlight the importance of identifying the common intention of all parties and yet, have failed to provide any clear and useful guide in determining the common intention of the parties Related to the above point is that in any given case where the principle of accessory/joint liability is invoked, the determination of whether it is a dual-crime or single-crime situation is critically important. This is because under the present law, in a dual-crime situation, there would be an automatic acquittal of D2 and in a single-crime situation, there would be a conviction of D2. Thus, the verdict of a case turns on this determination of whether the present case is a single-crime or dual-crime situation.

Based on the definitions of a dual-crime situation and a single-crime situation, the determination is thus on whether the separate collateral offence was part of the common intention of D1 and D2 (i.e., what is the common intention of D1 and D2). Seen from a different perspective, the determination of the common intention of D1 and D2 would necessarily determine if D2 intended the separate collateral offence (i.e. whether D2 has the requisite MR) and thus whether D2 is guilty

15 16 17 18

R v Rahman [2008] UKHL 45 [7] (Lord Bingham of Cornhill).

YMC 2022 (n 10) [34.1].

PP v Leong Soon Kheong [2009] 4 SLR(R) 63 [62]; Jogee (n 5) [56].

YMC 2022 (n 10) [34.1]; Penal Code Committee Review Report, August 2018, [32] of page 422.

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Singapore Comparative Law Review or not. Therefore, the determination of the common intention of D1 and D2 is critically important, so important that in fact, under the present state of law, it determines the verdict of the case.

The courts have also recognised the importance of determining the common intention of the parties. In Jogee, at [22], the court held that the case of R v Collison “highlighted the importance of identifying the common purpose. If it was only to steal apples, the defendant was not guilty of the greater offence with which he was charged. He was guilty of that offence only if the common purpose included using severe violence to resist arrest, should the occasion arise”. Similarly, in Azlin, at [113]: “that the different circumstances between “dual crime” and “single crime” scenarios will have to be firmly borne in mind because these are material in developing and applying the correct analytical framework”, and further in Daniel Vijay, at [97]: “It is therefore crucial, in every case, to identify the common intention in furtherance of which the criminal act was done”.

Yet, though it is clear that it is of utmost importance to determine the common intention of the parties, both jurisdictions have failed to provide a specific test to determine this issue, save the passing statement made in [97] of Daniel Vijay that “the existence (or otherwise) of such a common intention must frequently be inferred from the offenders’ conduct and all the other relevant circumstances of the case.” Even if this issue is a finding of fact, neither jurisdiction has explicitly stated as such, nor provided any guidelines on the evidential issues that would point towards the common intention of both parties.

Similarity 3: Both models have “evolved” from requiring a lesser MR to the present MR requirement Prior to the ruling in Jogee, the UK model, as set out in R v Rahman, was that D2’s foresight that D1 is likely to commit the separate collateral offence is sufficient to render D2 constructively liable for D1’s actions.

Similarly, before the ruling in Daniel Vijay, the Singapore model, as set out in Lee Chez Kee v PP, was that D2’s subjective knowledge that D1 may likely commit the criminal act constituting the collateral offence in furtherance of the common intention of carrying out the primary offence is sufficient to render D2 constructively liable for D1’s actions.

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Singapore Comparative Law Review However, in Jogee and Daniel Vijay, the UKSC and SGCA (respectively) held that subjective knowledge/foresight (both are the same and there are no material differences) is not sufficient.

Interestingly, both courts performed a comprehensive review of past case law and held that at some point in time, the previous courts had wrongly interpreted and relied on a case (Chan WingSiu v The Queen (“Chan Wing-Siu”) in the UK and Wong Mimi v PP in Singapore) as basis for this new rule that subjective knowledge/foresight was sufficient.

However, it is uncertain whether the models have indeed evolved from the previous requirement of subjective knowledge/foresight to the present requirement of intention. Rather, it appears that the courts are hiding behind legal semantics, creating a legal fiction when in fact, the requirements remain largely unchanged. In essence, both jurisdictions have held that subjective knowledge is good evidence of foresight which then is good evidence of intention, or at the very least, conditional intention.

The SGCA in [89] of Daniel Vijay held that “the line between subjective knowledge that a particular criminal act might likely occur and a common intention to do that particular act may be rather thin.

Depending on the circumstances of the case, subjective knowledge may be evidence of the existence of a particular intention”. Similarly, the UKSC in [94] of Jogee held that “[i]f the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose”.

Therefore, it seems that in most cases, subjective knowledge/foresight is still a good requirement to determine if D2 had the requisite intention. The only difference between the past and present models for both jurisdictions is that Judges are now forced to explain the inferences that were made. It is indeed a positive development, though it begs the question of whether the requirement has really evolved, or if it is simply an issue of legal semantics. In any case, it is questionable whether there was a need to completely abandon the requirement of subjective knowledge/foresight.

Both the UKSC and the SGCA provided the same justification for moving away from subjective knowledge/foresight as a test: that it is unjust that a lower MR is required of D2 when D2 was not

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Singapore Comparative Law Review the one who actually committed the offence.19 However, this seems to be at odds with, or at least inconsistent with, the fundamental theoretical justification behind the principle of accessory/joint liability aforementioned, which is to deter group crimes and to adequately punish the secondary offenders in group crimes.

This tension was well put by the SGCA in Azlin, at [165]: “[w]e acknowledge that it is also an important general principle of the criminal law that an offender should not be punished beyond his or her personal culpability. This may at times seem to pull in the opposite direction from the purpose of deterring group crimes. The question for the court in such circumstances is how to strike the right balance between the foregoing two principles.” Similarly, the UK House of Lords in R v Powell (Anthony); R v English20 noted that “if the law required proof of the specific intention on the part of a secondary party, the utility of the accessory principle would be gravely undermined. … the criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises.”

Arguably, the best way to balance the tension is to employ the test of subjective knowledge/foresight in the context of dual-crimes. As explained, the present approach of requiring that D2 has the MR of intending that the collateral offence is committed results in an automatic acquittal of D2 in dual-crime situations. Instead, it is suggested that in a dual-crime situation (where D2 is already determined to not have intended the collateral offence), the test should be whether D2 had subjective knowledge or foresight that D1 was likely to commit the collateral offence. If D2 did, then D2 should be held constructively liable for the collateral offence.

To address the potentially lower culpability of D2 and hence the principle of proportionality, the sentence passed on D2 should be lower than that of D1. In the context of murder and in the UK, this would be reflected by a lower minimum term of imprisonment for life imprisonment. The power given to Judges in the UK to impose a minimum term of imprisonment for life imprisonment relative to the culpability of the offenders is a highly sensible one. The Singapore Judiciary should be awarded this power as well.

It might be argued that the Singapore model already has some semblance of this differentiation of culpability among offenders convicted homicide, by virtue of the fact that there are 4 different MRs that make up the 4 different “types” of murder. However, the Singapore model only

19 20

Jogee (n 5) [84]; Daniel Vijay s/o Katherasan v Public Prosecutor [2010] 4 SLR 1119 (“Daniel Vijay”) [76].

[1999] 1 AC 1

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Singapore Comparative Law Review differentiates “an intention to kill”, which attracts the mandatory death penalty, from the rest of the murders, which attract either life imprisonment or the death penalty. Therefore, by giving the Singapore Judiciary the power to impose a minimum term of imprisonment for life imprisonment, the Singapore model will be able to differentiate the rest of the murders from each other and even within each type of murder.

D. Differences between the UK and Singapore Models

Difference 1: In the UK, the principle of accessory liability applies consistently to all cases whereas in Singapore, the principle of joint liability is altered in a s 300(c) dual-crime situation Under the UK model, the principle of accessory liability applies consistently to all cases; 21 that is, for all cases involving an accessory (or secondary offender), the same test is applied to determine whether D2 is criminally responsible. However, under the Singapore model, when the principle of joint liability (s 34) is applied to dual crime situations where s 300(c) is the collateral criminal act, the Daniel Vijay test is applied which requires D2 to have a higher requisite MR than D1’s MR for the offence.22 Such a framework is questionable. Why should the same principle, in the same section of the Penal Code, be applied differently simply by virtue of whether it is a single-crime or dual-crime situation?

Or why should it be applied differently depending on whether it is a s 300(c) murder or not? As the UKSC put it, “there is no reason why ordinary principles of secondary liability should not be of general application”.23 As a matter of consistency and fairness, principles should be of general application.

To address this apparent inconsistency, the SGCA gave the following reasons at [109]-[117] of Azlin. In summary the reasons given are: (i)

That Daniel Vijay was a case regarding dual-crime situations and accordingly only changed the law with regards to such situation;24

Supra note 6; Jogee (n 5) [76] for an even more explicit statement: “We prefer the view … there is no reason why ordinary principles of secondary liability should not be of general application”.

22 Supra note 15.

23 Jogee (n 5) [76].

24 Azlin (n 10) [109]-[110].

21

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Singapore Comparative Law Review (ii)

that the Daniel Vijay test was meant to “address the potential injustice of holding a secondary offender liable for a collateral offence in a dual-crime situation which he did not intend … [which] has no application to single crime cases of s 300(c) common intention murder charges”;25

(iii)

that it is inappropriate the apply the Daniel Vijay test (which imposes a stricter MR test) to an offender charged with a s 300(c) common intention murder charge in a singlecrime situation because it would go against the purpose of s 3426; and

(iv)

that the Daniel Vijay test raises the MR requirement, making it harder to convict the offender, even though the offender may well be equally, if not more, culpable than the person who physically committed the s 300(c) murder.27

Firstly, the fact that Daniel Vijay was deciding on a dual-crime situation does not necessarily mean that the decision of the court there on a general principle of joint liability should be limited only to those situations. A court making pronouncements on general principles of the criminal law should be taken as changing the application of such principles in general, and not merely limited only to those situations. With respect, it seems that the court was attempting to limit the applicability of Daniel Vijay without expressly overruling it.

The second reason given by the court is similarly unconvincing, and rather, is illogical and selfcontradictory. The Daniel Vijay test cannot address the potential injustice of holding a secondary offender liable for a collateral offence in a dual-crime situation which he did not intend because the only way the Daniel Vijay test can be satisfied is if the secondary offender did intend the collateral offence. Unless the SGCA meant that the way to address such injustice was to automatically acquit such secondary offenders, which is doubtful, the Daniel Vijay test does not address their own concerns.

Under the second reason, the SGCA also decided that a stricter MR test was not required in a single crime situation as there is unlikely to be potential injustice in holding the secondary offender liable in a single-crime situation. However, this begs the question: how does the SGCA decide whether there will be potential injustice or not? Even before applying any test whatsoever, the SGCA has decided whether there was potential injustice. It is dangerous to determine whether a stricter test should be applied simply due to a mysterious determination of whether there was

Ibid [111].

Ibid [114], [117(a)].

27 Ibid [117(c)].

25 26

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Singapore Comparative Law Review “potential injustice”. This will shade into the criticism against the SGCA’s fourth reason, which will be discussed further below.

Under the third reason, the SGCA pointed out that the purpose of s 34 is to deter group crimes and that this is done by expanding, rather than restricting, the scope of liability of secondary offenders who commonly intend and participate in the group crimes. This is indeed a strong argument as to why the Daniel Vijay test should not apply to single-crime situations. However, this does not mean that the Daniel Vijay test should not be of general application and extended to dualcrime situations. Why should the scope of liability of secondary offenders be restricted in dualcrime situations and yet expanded in single-crime situations? If the answer lies in the difference in the intention of the secondary offenders in dual-crime and single-crime situation, then it becomes a circular argument: in dual-crime situations, liability should be restricted because the secondary offenders did not intend the collateral offence and because the secondary offenders did not intend the collateral offence, it is a dual-crime situation.

The same criticism to the second reason applies to the fourth reason given by the SGCA. In a single-crime situation, the SGCA ruled that the secondary offender is equally as culpable, if not more so, as the primary offender and hence the stricter MR test should not be applied. This is dangerous because the SGCA has yet to even apply any test to determine the culpability of the secondary offender but has decided the culpability of the secondary offender. It seems that the SGCA has employed backward reasoning; that the D2 in a single-crime situation is more culpable than the D2 in a dual-crime situation and thus a stricter test should be employed for the latter so that it would be harder to convict the latter.

In light of the foregoing, the UK model is correct insofar that the principle of accessory/joint liability should be of general application. In this regard, the Singapore model should adopt the approach taken by the UKSC or alternatively, the SGCA should hold that a completely different principle applies to single-crime situations. It is noted in passing, since this is not within the scope of this article, that section 37 of the Penal Code provides a feasible principle that can, and should, be applied to single-crime situations.

Difference 2: Related to Difference 1, whereas the Singapore model requires that D2 possess a higher MR than D1 in the case of a s 300(c) murder in a dual-crime situation, under the UK model, it is sufficient that D2 possess the same MR as D1

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It is incoherent for the Singapore model to require D2 to possess a higher MR than D1 in the case of a s 300(c) murder in a dual-crime situation. Instead, the UK model of requiring D2 to possess the same MR as D1 is preferable.

To illustrate, in a dual-crime s 300(c) murder situation, it will have been decided that D2 did not intend for D1 to inflict the particular bodily injury that was actually inflicted on the victim. How, then, can the subsequent test to determine whether D2 is liable, be a test that is even more exacting than the previous? To be clear, the subsequent test (i.e. the Daniel Vijay test) requires D2 to have intended that the particular bodily injury would be inflicted and with the knowledge that such bodily injury is sufficient to cause death in the ordinary course of nature. It is illogical to require D2 to have a higher MR to be held liable when it is already known that D2 would fail the lower MR requirement.

Furthermore, as the SGCA rightly noted, by requiring a higher MR from D2, it blurs the line between a section 300(a) murder and a s 300(c) murder. 28 This is because the higher MR required from D2 under the Daniel Vijay test (an intention to cause a bodily injury that D2 knew is sufficient in the ordinary cause of nature to cause death) is equivalent to an intention to cause death, which is the MR for s 300(a) murder. The blurring of the lines between the two types of murder would defeat the purpose of differentiating the two types of murder to begin with.

Finally, the Daniel Vijay test renders s 300(c) obsolete. It must be recalled that the wording of s 34 is “the common intention of all”. If D2 is required to have the intention to cause death, it must also be proven that D1 had such an intention, otherwise it would not be the common intention of all. However, if D1 had such an intention and D1 was the one who did the act that caused death, then D1 can simply be charged with section 300(a) as well. D2 can thus similarly be charged with section 300(a). In essence, there will be a complete overlap between section 300(a) murder and section 300(c) murder whenever the Daniel Vijay test is applied. Therefore, the Singapore model should adopt the UK model insofar as the MR required of D2 should not be elevated.29

Ibid [117(b)].

See Alan Tan, Pairing Section 300(c) Murder with Section 34 Common Intention: The Case for a “Co-Terminous” Approach, 38 Sing L Rev (2020-2021), where Professor Alan Tan explained in detail why the MR required of D2 should be the same as D1.

28 29

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Singapore Comparative Law Review Difference 3: The UK model allows for D2 to be convicted of manslaughter even if D2 did not possess the same MR as D1, while the Singapore model does not as there is no manslaughter equivalent Under the UK model, where accessory liability cannot be established for D2 because D2 did not have an intention to kill or to cause grievous bodily harm, D2 can still be convicted of manslaughter if D2 had participated in the group crime which resulted in a death.30 In contrast, under the Singapore model, where joint liability cannot be established for D2, D2 would be convicted of a different, often less serious offence altogether, such as voluntarily causing grievous hurt with dangerous weapons or means31 or robbery with hurt.32 In this regard, the Singapore model is again lacking because under the UK model, D2 would still be convicted of a homicide offence whereas D2 in Singapore would be labelled simply as someone who caused grievous hurt. It is clear that the labelling of an offender is an important aspect of the criminal justice system, and the Singapore model fails to accurately label the offender.

However, the presence of a manslaughter offence in the UK model has also given rise to a troubling issue. One of the reasons the UKSC overturned Chan Wing-Siu was because the UKSC found that the reasoning given within Chan Wing-Siu “implies that [D2] would escape all criminal liability but for the Chan Wing-Siu principle”.33 The UKSC explained that “[D2] would be guilty of homicide in the form of manslaughter”34 and thus the reasoning given within Chan Wing-Siu was inadequate. It seems as though the UKSC was justifying that it is acceptable to have a strict test for accessory liability to murder on the basis that even if the strict test fails, D2 may still be convicted of manslaughter.

While at first glance this practical consideration seems to do justice, it is an erroneous conclusion.

To hold that the requirements for accessory liability can be strict simply because D2 may be convicted of a separate offence would be tantamount to claiming that it is acceptable that the requirements for murder are strict because the accused may always be convicted of a lesser offence of voluntarily causing grievous hurt. Whether the accused can be convicted of a lesser offence should have no bearing on whether the test for the more serious offence should be strict. It is one Jogee (n 5) [49], [74]-[75].

As was the case in Public Prosecutor v Azlin Bte Arujunah [2020] SGHC 168.

32 As was the case in Daniel Vijay (n 20).

33 Jogee (n 5) [74].

34 Ibid.

30 31

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Singapore Comparative Law Review thing to say that a more serious offence should have a stricter requirement than a lesser offence of the same, but another to say that the more serious offence should have a stricter requirement because in any case the accused can be convicted of the lesser offence. For one, the labelling of the offenders is different, and furthermore, the punishment prescribed for the offences are also different. Of course, the UKSC did not simply base their decision to overturn Chan Wing-Siu on this point alone, however, it is necessary to point out that such reasoning is logically flawed and unprincipled.

CONCLUSION In conclusion, although the law on accessory/joint liability in the UK and Singapore are generally similar, differences in the legal formulation of murder and the existence of the offence of manslaughter have led to a significant divergence in the law of accessory and joint liability.

Although far from perfect, this article found that the UK model of accessory liability was more logically sound and principled, and the Singapore courts may look to it in further developing the doctrine of joint liability.

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Singapore Comparative Law Review

Group Relief: Liberalisation for Investment-led Recovery Zhan Peng Hng

INTRODUCTION Since the start of the global pandemic in 2020, governments have imposed various restrictions on their people to minimise the spread of the COVID-19 virus. The restrictions inevitably resulted in businesses taking a hit and countries suffering economic downturns. The relatively slow development and administration of vaccines, coupled with the continued emergence of new virus variants, means that governments have been unable to lift all such restrictions. Hence, businesses could not recover quickly to pre-pandemic levels, and many were forced to scale down or permanently cease trading operations. Motivated by the bearish state of the global economy following the onslaught of the pandemic, this article will compare the group relief schemes available for companies in the UK and Singapore and consider a liberalisation of the current group relief schemes in Singapore as a tax-related measure of post-pandemic economy recovery through the reduction of group tax liability. Section 2 will introduce the purpose of group relief and the key differences between the UK and Singapore group relief schemes. The key differences will be considered for adoption, customisation, and incorporation in the Singapore tax system under sections 3 and 4 before concluding in section 5.

A. Group Relief In both jurisdictions, group relief is a relief for corporate taxpayers from UK’s Corporation Tax and Singapore’s Income Tax. The fundamental idea of group relief is to allow the transfer of losses between companies in a group, thereby treating the group as a single economic unit. 1 However, only qualifying losses can be utilised for policy reasons to set off specified taxable profits. Further, only specified corporate ownership structures qualify as a group under which the relief would be available for corporate taxpayers. Such restrictions can be explained through a combination of the following reasons: •

Prevention of revenue leakage;

HMRC, ‘CTM80105 - Groups: group relief: structural outline’ (gov.uk, 13 June 2022). <www.gov.uk/hmrcinternal-manuals/company-taxation-manual/ctm80105> accessed 19 July 2022.

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Encourage legitimate diversification of capital and trading activities;

•

Encourage investments under the corporate umbrella

•

Anti-abuse and anti-avoidance

As there are no statistics from the tax authorities on the number of corporate groups that claim group relief in both jurisdictions, it is not possible to evaluate the effectiveness of the group relief scheme (i.e. whether the group relief schemes are working as intended to relieve corporate tax liabilities of the group and whether the restrictions to the group relief schemes are hindering investments and thereby defeating the purpose of implementing such schemes in the outset).

However, it can be assumed that there must be corporate taxpayers that have benefited from such schemes to reduce their group tax liabilities and liberalising any restrictions would benefit the taxpayer. Therefore, it would be up to the relevant decision-making authority (i.e. HM Treasury and Ministry of Finance) to decide whether it is worth liberalising ongoing restrictions at the cost of lower revenue collection in return for a more efficient application of capital in the current lacklustre economy faced with inflationary headwinds. Finally, in context of the recession following the onslaught of the pandemic, it is submitted that any form of liberalisation to the group relief schemes could help to facilitate an investment-led economic recovery by encouraging corporate groups to invest their idling capital to productive use, and it would lead to a mutually beneficial situation for the government and the taxpayer.

This article has identified two key aspects of the UK group relief schemes which are not currently present in the Singapore tax legislation: group relief for carried forward losses and consortium relief. The following sections will analyse the legislative mechanism of these schemes and seek to argue for the adaption and incorporation of these schemes into the Singapore tax loss relief framework.

B. Group Relief of Carried Forward Losses The UK government introduced group relief of carried forward losses in 2017 to increase companies’ flexibility in using their losses while ensuring that companies pay tax in each accounting period to make substantial profits.2 Where losses are made in accounting periods beginning on or

2

Explanatory Notes to the Finance (No. 2) Act 2017, para 383.

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Singapore Comparative Law Review after 1 April 2017 and are not utilised in the year they are incurred, a group company can surrender brought forward losses to other group companies.

However, not all current year losses are available for group relief of carried forward losses. The types of carried forward losses (which arose in an accounting period beginning on or after 1 April 2017) that are available for group relief are: •

non-trading deficits on loan relationships;3

•

non-trading losses on intangible fixed assets;4

•

management expenses, 5 excluding qualifying charitable donations carried forward as expenses of management;6

•

trade losses that are eligible to be set against total profits;7 and

•

UK property business losses.8

In contrast to a UK group company, a Singapore group company can only surrender its current year’s unutilised capital allowances, trading losses, and charitable donations to another group company.9 During the annual Budget Statement in 2002, the then-Deputy Prime Minister and Minister for Finance Lee Hsien Loong said that the Singapore government would need to study the “more complex group relief measures” before deciding whether to adopt them.10 This is likely because the proposed group relief scheme was projected to cost the government S$170 million per year,11 and hence it is reasonable to presume the government would want to observe whether the group relief scheme would work as intended before further liberalising the scheme. In the absence of any published assessment from the Singapore government on the effectiveness of the group relief scheme to “encourage more risk-taking and enterprise”,12 a UK assessment report could act as a proxy for such effectiveness. However, since are also no such published reports for comparison and extrapolation, this article will proceed with non-statistical arguments underpinned Corporation Tax Act 2010 (“CTA 2010”), s 188BB(1)(a)(i) CTA 2010, s 188BB(1)(a)(ii) 5 CTA 2010, s 188BB(1)(a)(iii) 6 CTA 2010, s 188BC(2).

7 CTA 2010, s 188BB(1)(a)(iv) 8 CTA 2010, s 188BB(1)(a)(v) 9 Income Tax Act 1947 (2020 Rev Ed) (“ITA 1947”), ss 37B(1) and 37B(14(a)-(c).

10 Singapore Parliamentary Debates, Official Report (3 May 2002) vol 74 (Lee Hsien Loong, Deputy Prime Minister and Minister for Finance) cols 699-700.

11 ibid.

12 ibid.

3 4

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Singapore Comparative Law Review by conventional economics theory to justify the liberalisation of the current group relief scheme to allow the surrendering of carried forward losses in a qualifying group.

(1) Group relief of carried forward losses as a means of post-pandemic economic recovery The liberalisation of the group relief scheme to allow the surrendering of carried forward losses would be beneficial to Singaporean groups of companies during a pandemic that shares the following two circumstances: ● Loss-making companies in the group with substantial losses from prior years; and ● Dormant companies in the group with losses from prior years remain incorporated because management has no clue what to do with these entities.

The key objective should be to assist groups of companies in reducing their overall tax liabilities as an indirect government support measure in light of the challenges faced by businesses during an evolving pandemic. The impacts of the pandemic on business are likely to remain as new variants emerge,13 and current social distancing and safety measures in Singapore are unlikely to be removed in the foreseeable future; therefore, it is likely that businesses will continue to need additional support for the pandemic-related losses they face during the transition to a post-Covid era. Businesses need all the support available to retain workers, transit to a post-covid era, transform existing business models, and be resilient against pandemics. The introduction of the proposed reform would allow existing group companies, especially groups with the abovementioned circumstances, to tap onto these reserves of tax losses that arose when the pandemic hits but were previously disallowed from utilising such loss reserves, thereby reducing their tax liabilities and allowing businesses to direct scarce resources in emerging more resilient from the pandemic.

(2) An unhelpful arbitrary distinction of current year unabsorbed losses and carried forward losses It appears that the distinction made between current year unabsorbed qualifying losses and carried forward losses for Singapore group relief purposes is arbitrary and should be reviewed since the introduction of the group relief scheme in 2002. Carried forward losses are current year

As of July 2022, the WHO is monitoring 7 subvariants of the Omicron SARS-CoV-2. https://www.who.int/activities/tracking-SARS-CoV-2-variants 13

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Singapore Comparative Law Review unabsorbed qualifying losses carried forward to offset future taxable income. These are undoubtedly expenditures incurred by the companies, which would be subject to scrutiny before agreement by the IRAS on the quantum to carry forward. Hence, there seems to be no good reason why a group company should not be allowed to surrender its carried forward losses.

There may be concerns about the potential abuse of the group relief of carried forward losses.

However, these concerns could be addressed by the specific provision under the group relief scheme that confers powers upon the Comptroller to deny an excessive qualifying deduction. 14 There is also a general anti-avoidance rule in the Income Tax Act, which grants the Comptroller powers to disallow a claim of losses under the group relief scheme if the group applies any tax avoidance schemes and arrangements to reduce its group tax liability.15 The Comptroller is thereby empowered under the Act to tackle abusive measures and avoidance schemes such as: ● Generating artificial losses (e.g. charging excessive management fees to subsidiaries) and transferring to companies in the group in future YAs when the group is expected to be profitable; ● Aggressive transfer pricing strategies that shift losses from overseas entities to local companies in a group and utilising these losses to offset assessable income in future YAs; and ● Aggressive corporatisation schemes converting sole-proprietorships to corporate entities and setting up sister subsidiaries for no commercial purposes other than solely to take advantage of the carried forward group relief scheme.

(3) Adapting group relief of carried forward losses to Singapore’s tax loss relief framework In the UK, with effect from 1 April 2017, there is a restriction on the amount of profits against which carried forward losses can be offset where a company or group has profits above £5 million.

A company’s profits after any in-year reliefs, such as group relief over the deductions allowance (£5 million),16 can only be reduced by up to 50% by carried forward losses.17 For group companies, the deductions allowance is allocated as the group sees fit. 18 The maximum amount of the ITA 1947, s 37B(16).

ITA 1947, s 33(3).

16 CTA 2010, s 269ZW(2).

17 CTA 2010, ss 269ZB(5), 269ZC(3), 269ZD(4).

18 CTA 2010, s 269ZR(2).

14 15

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Singapore Comparative Law Review allowance available to be shared amongst all group companies is £5 million, and the types of carried forward loss items available for group relief do not include excess capital allowances. Such restrictions could lead to losses being drip-fed to companies over several years, and companies may still end up in a taxable position even though they have troves of losses and capital allowances which they are not restricted from tapping on to reduce their tax liabilities.

If the Singaporean government decides to liberalise the group relief scheme to allow the surrender of carried forward losses, it is submitted that the abovementioned restrictions should not be adopted. Such restrictions appear to be unprincipled and driven purely by the desire to ensure consistent revenue collection without considering the economics behind the losses. These losses result from companies incurring expenditure for their trade or business. An arbitrary restriction on the type and quantum of losses for group relief would be contrary to the objective of driving an investment-led economic recovery and promoting enterprise risk-taking.

However, taking into consideration of the legitimate need to protect tax revenues, it is, therefore, suggested that the proper legal restrictions in place to prevent excessive tax leakage in return for organic growth should be a limitation period for group relief of carried forward losses so that the losses are either capped for relief by a specific period (e.g. only losses incurred and carried forward in the last 5 YAs would be allowed for group relief in the current YA) or a specific YA (e.g. only losses incurred and carried forward from YA 2020 onwards would be allowed to be surrendered to related companies in future YAs). Another potential form of limitation could be the implementation of sunset clauses (e.g. the carried forward group relief scheme will lapse by YA 2025) to inject flexibility into the government’s tax policy and ensure the effectiveness of the group relief of carried forward losses is monitored

C. Consortium Relief During the annual Budget Statement in 2002, the then-Deputy Prime Minister and Minister for Finance Lee Hsien Loong said that the Singapore government would also need to study the use of “consortium relief” before deciding whether to adopt them. 19 The Singapore government

Singapore Parliamentary Debates, Official Report (3 May 2002) vol 74 (Lee Hsien Loong, Deputy Prime Minister and Minister for Finance) cols 699-700.

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Singapore Comparative Law Review should now consider introducing consortium relief to lead an investment-led post-pandemic recovery in the context of high inflation driven partly due to supply-chain headwinds from the war in Ukraine and the prevailing global oil shortage.

(1) What is a Consortium?

In certain circumstances, two or more unconnected companies may decide to form or acquire a company which they own jointly. Such circumstances include joint ventures where the investors agree to set up a special purpose vehicle (SPV) to pool resources for a specific pursuit, project, or business activity. Such a corporate structure is typical in public infrastructure projects where several participants agree to pool resources and contribute expertise via an SPV set up for the construction of the public infrastructure upon being awarded the tender for the project. The investing companies are referred to as consortium members, with the company they own referred to as the consortium company. As with groups, only companies can form a consortium for these purposes.

In the UK, a company is a consortium company for consortium relief purposes if:20 •

it is not a 75% subsidiary of any company (otherwise, group relief would apply)

•

two or more consortium members beneficially own at least 75% of its ordinary share capital; and

•

each consortium member owns at least 5% of that share capital.

As a consortium member can hold between 5% and 74% of the consortium company, it is possible to have a maximum of 20 consortium members.

(2) Quantum of Relief Where the claimant company is a consortium member, the amount of the loss which may be claimed is the lower of the:21

20 21

CTA 2010, s 153.

CTA 2010, s 143.

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consortium company’s loss multiplied by the consortium member’s interest in that consortium; and

•

consortium member’s available profit.

Where the claimant company is a consortium company, the amount of relief which may be given is the lower of the:22 •

consortium member’s ownership proportion of the claimant company’s relevant profits; and

•

consortium member’s actual losses.

(3) Consortium Relief to Encourage Foreign Direct Investment and Enterprise Risk-Taking Consortium relief is unavailable in Singapore because the current group relief scheme requires the claimant and surrendering company to maintain a minimum 75% shareholding ownership structure. 23 It is submitted that introducing consortium relief in Singapore could encourage cooperation between unrelated entities to pursue projects in uncharted and risky ventures that would have been dismissed from the outset from an organic standpoint. Such cooperation and collaboration may ignite new economic opportunities in emerging sectors, share expertise, and create synergies by reducing the cost of innovation and investments. Coupled with the possibility of allowing consortium relief during the first few years of making losses by the consortium company, such relief would help reduce the consortium member’s tax liability and allow higher repatriation of profits to the consortium members in the form of dividends. The same reasoning applies to foreign investors contemplating cross-border collaboration with a local partner to reduce the quantum and the cost of capital for investment. The applicability of a consortium relief to increase post-tax return on capital could be attractive for investors to consider.

However, it is worth noting that Singapore is an investment hub where foreign investors use Singapore as a base for regional investments and regional headquarters. In other words, the revenue-generating activity often occurs beyond the borders of Singapore. Consortium relief will not be applicable if the losses are generated beyond the tax jurisdiction of Singapore, as such relief

22 23

CTA 2010, s 144.

ITA 1947, s 37B(2)(a).

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Singapore Comparative Law Review using offshore losses would constitute tax leakage from the government’s perspective. As pointed out by then-DPM Lee Hsien Loong in 2002:24 …foreign income is not taxed unless it is remitted to Singapore. If you can offset foreign losses against local profits, but you do not tax foreign income because foreign profit may not be remitted to Singapore, then we are actually subsidising foreign ventures from domestic tax revenue and this revenue loss could be significant.

Does this mean that the consortium relief is not helpful as a tool for attracting foreign investment?

Not quite. It could act as a complementary tool to foster cross-border partnerships with foreign direct investors that have established a significant presence in Singapore. In 2010, the Partnerships for Capability Transformation (PACT) programme was introduced, where subsidies administered

by Economic Development Board are granted to incentivise large companies to work with smaller companies to raise the capabilities of the smaller companies and enable them to become preferred providers or suppliers.25 PACT has helped large firms identify and partner with local suppliers and SMEs and helps these smaller suppliers learn and adopt best practices in return.26 By introducing consortium relief into the Singapore tax framework, foreign companies establishing a local presence could be further incentivised to enter into consortium arrangements with local partners to utilise the consortium relief. The consortium relief would then complement the PACT grants to increase post-tax return on capital through the reduction of tax liability of the consortium members via the surrendering of the losses, if any, from the consortium company.

CONCLUSION This article has discussed the group relief schemes available for companies in the UK and Singapore. Currently, the Singapore tax legislative framework does not provide for the group relief of carried forward losses and consortium relief present in the UK tax legislative framework. It is submitted that in the context of a global pandemic, geopolitical instability, global supply-chain headwinds, and record high domestic and worldwide inflationary pressures, the Singapore government should review its current group relief schemes and consider tailoring and incorporating the UK’s group relief of carried forward losses and consortium relief in the domestic

Singapore Parliamentary Debates, Official Report (15 May 2002) vol 74 (Lee Hsien Loong, Deputy Prime Minister and Minister for Finance) col 1153.

25 Singapore Parliamentary Debates, Official Report (14 April 2014) vol 91 (Teo Ser Luck, Minister of State for Trade and Industry) Question 18.

26 ibid.

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Singapore Comparative Law Review

Can Smart Contracts Outsmart the Law: The Law of Contract in Light of Smart Contracting Kevin Nathaniel and Samuel Tey

INTRODUCTION With the increasing influence of the internet on the free market, the past decades have seen a surge in the popularity of online transactions. Owing to the relative simplicity of instantaneous communications over the internet, alongside rapid development in the capabilities and security merits of internet services and artificial intelligence, individuals and businesses alike have increasingly favoured commercial contracting via the internet. Consequently, the modality of contracting has expanded. Whereas the traditional contract is formed between (human) entities and performed by them, now prevalent in the age of artificial intelligence are the automated “smart” contracts, which can operate on parameters set by programs, reducing or potentially even eliminating the need for human activation.

This essay seeks to define and provide a comprehensive overview of the law in relation to Smart Contracts. We first identify the merits and challenges that Smart Contracts introduce to contracting parties. Thereafter, we discuss the legality and enforceability of Smart Contracts in relation to the prevailing law, outlining novel issues which they might present, as well as possible solutions to circumvent them.

So, what exactly is a Smart Contract, and what are its legal merits? A traditional contact typically consists of contractual terms agreed upon by parties and consequently executed. A Smart Contract differs from this where some or all of the contractual terms are defined in code and contractual obligations are either partially or fully performed automatically by a computer program. 1 Take for example two parties seeking to contract on an online trading platform for Bitcoin, much like a Quoine v B2C2 scenario.2 A contracting party designates and uploads program code with a set of predefined parameters upon which a contract would be entered into and performed when the requisite conditions are met, without human intervention. Here, the contract would only be

United Kingdom, Law Commission, Smart legal contracts Advice to Government (November 2021) at 11-12 (Chairman: Phil Golding) (“Smart legal contracts Advice to Government”).

2 Quoine Pte Ltd v B2C2 Ltd [2020] 2 SLR 20.

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Singapore Comparative Law Review initiated when the prevailing market conditions, such as a target price for Bitcoin, meet the conditions of the program. Otherwise, when the target price is not met, the code is not triggered, and no contract is formed.

Further, evinced from the abovementioned definition is the notion that Smart Contracts may be classified into distinct categories depending on the extent to which their terms are defined by the computer program. Naturally, this gives rise to different legal implications on these distinct classes, which will be elaborated on later in this essay. Though various legal jurisdictions have responded uniquely to Smart Contracts, the consensus in the UK and Singapore jurisdictions seems to be that the prevailing common law rules are sufficiently equipped to deal with the peculiarities of Smart Contracts. Yet, Smart Contracting can, and indeed has, introduced novel legal issues. As evinced by heated judicial and academic debate on such issues, it ultimately seems that the common law remains wanting in its flexibility to adapt to said issues given the speed at which Smart Contracting is evolving. Given the prospects of the (seemingly) impending automation of contracting, we thus advocate for further development in the common law, as well as statutory intervention where appropriate, so as to achieve fair, just, and reasonable outcomes that are up to date with the business sensibilities and expectations of businesspeople in the new age of Smart Contracts.

A. An Introduction to Smart Contracts (1) Classification of Smart Contracts The premise for Smart Contracts begins with the digitalisation of the ownership of assets and data represented by computer code.3 Blockchain technology allows for the relationships between these assets to be defined and enforced by computer code (without intermediary human intervention) once pre-defined conditions are fulfilled.4 Smart Contracts may be classified based on the amount of code involved, ranging on a spectrum whereby either or both contractual terms and performance of the contract may be represented in code (as compared to natural language). At one end of the spectrum, the code itself may not define any contractual obligations, but may simply be utilised by parties for the automated execution of obligations (“Automated Performance Contracts”). On the other end, no natural language version

Pierluigi Cuccuru, “Beyond bitcoin: an early overview on smart contracts” (2017) Int J Law Info Tech (2017) 25 (3) at 186.

4 Ibid.

3

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Singapore Comparative Law Review of the contract exists, whereby all contractual terms are defined in, and automatically performed by a computerised Deterministic Code,5 and the contract is entered into when certain conditions are met, without human intervention (“Fully Coded Contracts”). Between these two ends lies smart contracts which are partially defined in code and partially in natural language (“Hybrid Contracts)”. 6 Indeed, it is the set of Fully Coded Contracts which seems the most likely to challenge the traditional laws governing contract, as discussed below. Although it is worthwhile to note that Fully Coded contracts may not be as prevalent presently due to the inherent complexities and nuances of commercial contracts, its analysis in this paper remains paramount as artificial intelligence and the underlying technology surrounding Smart Contracts continues to grow at an exponential rate, paving the way for Fully Coded Contracts to be increasingly dominant in the world of Smart Contracting.

(2) Benefits and Challenges Smart Contracts are attractive to the commercial eye due to the immutability of records, transparency and decentralisation provided.7 These benefits are offered by blockchain technology, a key medium of Smart Contracting.

Blockchain technology involves the stacking of individually encrypted “blocks” of data, viewable and verifiable by every user on the platform. As transaction information is thus consolidated, archived, and updated with each new transaction, there is a degree of security afforded in ensuring that these records are not altered or deleted. Further, given that execution of Smart Contacts is automatic, there is left no room for parties to breach their obligations intentionally, whereas traditionally, with commercial entities acting in their business interests, breaches would be part and parcel of contracting. Online fraud is also an unlikely occurrence with Smart Contracts since the transfers of assets will be enforced automatically and instantaneously,8 rendering the design of penalty clauses unnecessary.

However, Smart Contracts present their own set of challenges as well, namely in their understandability, and their rigidity. Understanding computer code requires a field of expertise separate from conventional legal expertise. Drafting coded online agreements might therefore

Quoine, supra n 2 at [15]. Code which responds in the same way to any given set of conditions (“Deterministic Code”).

Smart legal contracts Advice to Government, supra n 1, at 25-30.

7 Yeong Zee Kin, “Blockchain Records under Singapore Law” Singapore Law Gazette (September 2018) <https://lawgazette.com.sg/feature/blockchain-records-under-singapore-law/> (accessed 22 July 2022).

8 Smart legal contracts Advice to Government, supra n 1, at 35.

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Singapore Comparative Law Review require double the expertise, compared to conventional contracting. This is especially the case for Smart Contracts with terms which exist entirely in code, which must be interpreted into human language, so as to evince legal contracts between human entities. Smart Contracts also fail to allow the establishment and maintenance of long-term commercial relationships between parties, which are of great value in the traditional contracting world. Such relationships often require compromise, in a sense where parties are mutually willing to alter certain terms of their agreements so as to accommodate for lasting business relationships. However, such alterations, especially those that are relatively ad-hoc (such as discounts and delays in delivery of goods/services), are difficult to enact in Smart Contracts, as they would have to be specifically programmed for. This is, however, counterintuitive considering the instantaneous nature of contract formation and performance in Smart Contracts.9 Indubitably, the discussion on the benefits and challenges of Smart Contracts are extensive. As such, these will be expounded further as we delve into the intricacies of Smart Contracts in the following parts of the essay.

B. The Legality of Smart Contracts It is trite that there are several requirements for the formation of a legally binding contract under common law: an agreement, consideration, certainty and completeness, and an intention to create legal relations. This part of the essay will thus analyse several potentially contentious requirements in determining whether a Smart Contract could be comparable to a traditional legal contract.

(1) Agreement The first requirement would be that of an identifiable agreement, whereby the traditional tools of analysis typically centre around the concepts of an offer to be bound on specified terms and an unequivocal and unqualified acceptance of said terms.10 It can be expected that parties would, as in the case of most contracts, have engaged in natural language negotiations or other forms of correspondence, before entry into said contracts. By basing the offer and acceptance analysis on parties’ conduct before entry into contracts, we find that the traditional tools utilised would likely suffice in finding an identifiable agreement. Even in the case of Fully Coded Contracts, it is likely Ben Chester Cheong and Harry Kishen, “Legal Risks Beneath Blockchain-enabled Smart Contracts” Singapore Law Gazette (January 2021) <https://lawgazette.com.sg/feature/legal-risks-beneath-blockchain-enabled-smartcontracts/> (accessed 22 July 2022) 10 Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332 at [47].

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Singapore Comparative Law Review that an agreement could be identified by analogy to a unilateral contract. In fact, support for such a proposition may be found in the seminal case of Thornton v Shoe Lane Parking Ltd.11 There, Lord Denning explained that the installation of a machine to collect tolls was an offer for customers to use the car park in exchange for payment, while acceptance was effected when a customer paid a toll, thus concluding the agreement. 12 Similarly, in principle, it is possible for one party’s deployment of codes to constitute a unilateral offer, whereby the other party’s interaction with said code could constitute acceptance by conduct.

(2) Certainty and Completeness The contract must also be certain and complete. A contract is uncertain if its terms are too vague to be interpreted and incomplete if parties have failed to agree on essential terms.13 It is submitted that Automated Performance Contracts may be readily governed by the conventional set of rules in contract relating to certainty and completeness, given that courts may readily analyse the natural language terms of such contracts. The issue is, however, more apparent in the case of Hybrid and Fully Coded Contracts. A potential source of uncertainty in Hybrid Contracts is the issue of conflicting natural language terms and code. Nevertheless, as contradictory provisions are part and parcel of even natural language contracts, it is likely that the courts are well-equipped to resolve such issues via the interpretive exercise, with the aid of the relevant specialists. With regards to Fully Coded Contracts, it has been suggested that the performance of a line of code is indicative of its certainty and completeness, given that said code would not run without the correct syntax or essential instructions.14 However, various sources of uncertainty and incompleteness have been identified, such as the uncertainty in identifying the boundaries of the Smart Contract due to the presence of multiple layers of code deployed on a complicated digital infrastructure,15 and the inability to determine the nature of the legal argument from a reading or the execution of the code. 16 Nonetheless, given that execution of code, and thus the execution of such contracts, follows a largely binary rule system,17 we concur with the UK Law Commission that such issues fall under the ambit of contractual interpretation, rather than certainty and completeness.

[1971] 2 QB 163 (“Thornton”).

Thornton, supra n 10, at 169.

13 Norwest Holdings Pte Ltd v Newport Mining Ltd [2010] 3 SLR 956 at [28].

14 Smart legal contracts Advice to Government, supra n 1, at [3.49].

15 Smart legal contracts Advice to Government, supra n 1, at 53.

16 Smart legal contracts Advice to Government, supra n 1, at pp 52-53.

17 See T Schrepel, European Commission, Smart Contracts and the Digital Single Market Through the Lens of a "Law + Technology" Approach (September 2021) p 32 for a similar view, and where the point is made that “certainty” is not particularly problematic in the smart legal contract context because such contracts are “if/then” systems requiring binary rules.

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(3) Consensus ad Idem Another pillar of contracting outside of the formal requirements above is consensus ad idem – the meeting of minds. The automation of contracts presents an avenue for contracting parties to claim ignorance of the contract being entered into. The grey area of intentionality in Smart Contracting thus challenges the conditional requirement of consensus ad idem, without which the contract can be avoided on the grounds that there was no identifiable agreement. Regarding this, several jurisdictions have provided clarifications on, and adopted rules unique to Smart Contracts, in efforts to manage the legal issues that arise from them. For example, Belarus’s Decree on Development of Digital Economy institutes a rebuttable presumption that a person who transacted using a smart contract knows of its terms and conditions, even if the contract is represented in computer code.18 It is thus submitted that such an approach could be adopted, placing the onus of ensuring that contracts entered into have been carefully considered and analysed by contracting parties.

Therefore, it seems that prima facie, the rules of contract law are sufficiently broad to accommodate the inclusion of Smart Contracts, though judicial or legislative clarification is required of some aspects.

B. The Enforceability of Smart Contracts The element of automaticity introduced by Smart Contracts brings with it novel issues that may challenge the well-established boundaries of contract law. Namely, it would be pertinent to analyse the enforceability of Smart Contracts.

(1) Identification The first (and potentially largest) barrier to the enforceability of Smart Contracts relates to the lack of reciprocal identification by contracting parties. One attractive benefit of online transactions would be the anonymity afforded, which assures privacy and allows parties to transact without risk to reputation. However, it is this same limited identification which poses an obstacle to legal recourse in the event of a malfunction or breach, given that an action cannot be filed if the Alexander Savelyev, ‘Commentaries on Blockchain and Cryptocurrency-Related Provisions of the Decree of Belarus President No 8 on Development of Digital Economy)', (29 December 2017).

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Singapore Comparative Law Review defendants are not identified. Although it could be possible to identify the online address of the parties to a Smart Contract or even the contract’s drafter through websites such as “etherscan.io”, such information would be marginally helpful at best in uncovering the real-world identity of contracting parties.19 Although relevant solutions have been suggested to resolve this issue, they remain impractical at the current juncture. Firstly, although alternative open platform dispute resolution systems could be instituted for partially identified parties, 20 this requires honest participation amongst all blockchain users – a pipe dream. Another solution would be to institute requirements for the disclosure of verified contact details of contracting parties. 21 This would, however, require legislative intervention for widespread implementation and enforcement and would indeed wholly defeat the aforementioned benefit of privacy. Ultimately, it seems that the issue of limited identification in online contracts remains beyond the ambit of contract law but rather for the crypto-sphere (or future legislation concerning it) to address.

(2) Jurisdiction Logically posterior to the issue of identification is the issue of jurisdiction. Seeing that Smart Contracts often utilise distributed ledger technology, a key functionality of Smart Contracts involves the ease of cross-border commerce. This naturally opens such transactions to being governed by different legal jurisdictions. An obvious issue arises; which jurisdiction(s) should the contract in question be governed by? Where a court is confronted with a cross-border contractual dispute, it is pertinent for it to ask two questions; firstly, whether there is a jurisdictional basis for the court to adjudicate upon said dispute, and secondly, whether the respective jurisdiction is the proper place for the claim to be brought.22 The English Law Commission has provided direction regarding these questions. In the context of a claim being brought in England and Wales, the former will be satisfied if: “the defendant was served with the claim form whilst physically present in England and Wales, the court grants permission to serve the claim form on a defendant who is not physically present in England and Wales, because there is a good arguable case that the claim falls within one or more of the jurisdictional gateways set out in paragraph 3.1 of Practice Direction 6B in the Civil Procedure Rules 1998, and there is a serious issue to be tried, or the defendant submits to the jurisdiction of Nataliia Filatova, “Smart contracts from the contract law perspective: outlining new regulative strategies” Int J Law Info Tech (2020) 28 (3), at 237.

20 Id, at 238.

21 Ibid.

22 Smart legal contracts Advice to Government, supra n 1, at 169.

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Singapore Comparative Law Review the court.”23 Regarding the latter, the principle of forum conveniens applies. If the dispute could more appropriately be resolved in another jurisdiction, the present court will not adjudicate it.

Understandably, this is not an unusual approach, and is by no means unique to the sphere of Smart Contracts.

However, there are novel issues regarding jurisdiction that are brought about by Smart Contracts, specifically, bilateral Fully Coded Contracts. Hypothesizing two parties living in different countries, one offeree and one offeror, there are several definitions of place of contract formation that may be gleaned from the possibilities presented. Contract formation can be said to occur at either the offeror or offeree’s location upon the offeree’s acceptance, or at either the offeror or offeree’s location upon the offeree’s communication of their acceptance to the offeror. Moreover, certain programs run on blockchain technology, whereby the database of information is spread across several nodes in the peer-peer network. For a Smart Contract formed using such programs, the location of a significant quantity of participating nodes may be determinative of the place of contract formation. If more nodes are found at the location where Party A’s program is deployed, then that location could be deemed as the appropriate jurisdiction under which the contract is governed. These scenarios alone present several different possibilities in determining the place of contract formation, which is an anterior question to determining the appropriate jurisdiction to bring a claim.

We submit that the law in this regard seems wanting of clarity. Given that there are merits to each of the aforementioned definitions, it is a tall order for the law to definitively favour one of these definitions over the others. It seems that all the disgruntled academic can do presently is remain hopeful that the increased usage of Smart Contracts and the inevitable increase in resulting litigation would direct the courts and legislatures to provide a definitive stance in the interests of commercial certainty.

(3) Interpretation Assuming that a contract is formed legally and that contracting parties have been duly identified, the courts would now look towards interpret Smart Contracts. Interpretation is the ascertainment of the meaning of expressions in a contract as understood by a reasonable person with all the

23

Ibid.

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Singapore Comparative Law Review background knowledge reasonably available to the contracting parties at the time of formation. 24 It is unlikely that unorthodox interpretive issues will arise in the case of Automated Performance Contracts as the courts may apply the well-developed principles of interpretation to the natural language agreements, referring only to the code to determine if it reflects said terms of the agreement. Hybrid and Fully Coded Contracts, however, carry their own sets of challenges. At this juncture, program code is not a language which we can expect judges to be familiar with. Although this may be resolved by analogising coded terms to a form of “foreign language”, understood by coders, there remain at least two ancillary issues regarding the interpretation of program code.

Firstly, if there is even any room for the exercise contractual interpretation of program code, and secondly, should contractual interpretation be conducted with respect to how the reasonable coder would understand the code, as compared to a computer or the infamous reasonable man.

Firstly, the exercise of contractual interpretation is only applied when the terms of a contract are ambiguous or contradictory. The clearer the natural meanings of the words, the more difficult it is for a court to justify its departure from said meaning. 25 Given that it is likely that Deterministic Codes in Smart Contracts will only provide a singular “meaning” to a computer compiling the code, this might lead to the inference that code is generally clear and unambiguous, unsusceptible to further interpretation.26 Yet, we find that there is no need to delineate Hybrid Contracts or Fully Coded Contracts as special types of contracts to which the conventional interpretive exercise should not be applied. Rather, the courts may rely on the traditional position that in the presence of clear and unambiguous contractual terms or code, judges should be slow to find that parties intended otherwise than the objective meaning of the contract. Further, it should be noted that judges should always be able to reference admissible extrinsic evidence to best determine parties’ intentions, be it in the case of faulty code or other vitiating factors as explained below.

Secondly, given that it is a computer that is executing program code in Smart Contracts, a potential approach to interpreting coded terms would be to determine what the code would “mean” to a computer. Yet, to simply observe the outcome of the code as perceived by a computer would add no value in identifying parties’ intentions, and potentially even disregard them, 27 largely rendering this approach impractical. We therefore submit that Smart Contracts should not be excused from the exercise of contractual interpretation despite their seemingly “clear” coded terms. The next Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 at [27] – [28] and [33].

Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38 at [18].

26 United Kingdom Jurisdiction Taskforce, Legal statement on cryptoassets and smart contracts (November 2019) at 35 (“Legal statement on cryptoassets and smart contracts”).

27 Smart legal contracts Advice to Government, supra n 1, at 95.

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Singapore Comparative Law Review issue would be to determine the state of knowledge to be attributed to contracting parties.

Notwithstanding that there is a stronger case to be made than as with judges earlier, it is unlikely that a reasonable man with the relevant background knowledge would be able to decipher and interpret program code. This task is best left to coders with knowledge and understanding of such codes. Similar to the Bolam Test in the Tort of Negligence,28 this allows the courts to tap into the expertise of the programming industry in deciphering what would otherwise be gibberish to the “ordinary reasonable man”. The appointed coder would then also have to provide his reasoned opinion as to the effect of the code to the court. Subsequently, the courts will be better equipped to compare this with contracting parties’ intentions, completing the exercise of contractual interpretation. We further submit that this does not deviate far from the conventional interpretive exercise as it is really different in form rather than substance. The coder is, after all, an appendage of the contracting party in question, and acts on its behalf. Similarly, the reasonable coder standard is but a mere extrapolation of the reasonable man standard used in the traditional interpretive exercise.

(4) Discharge There are 4 ways to discharge a contract: agreement, performance, breach, and frustration. Smart Contracts differ from traditional legal contracts in that they are performed automatically without human intervention. With automated execution by code once certain conditions are met, there is much less room for parties to intentionally breach or repudiate Smart Contracts, as we shall see below. As a result, it is likely that the analysis for the discharge of Smart Contracts may not differ much from that of traditional contracts and may even be considered simplified. i) Discharge by Agreement Here, parties are still likely able to mutually agree on terminating or preventing the execution of the code before its execution. By ensuring that the specified conditions are not met or otherwise upon agreement, it remains that the traditional rules for discharge by agreement will likely suffice.

This issue arises, however, in the case where parties agree to terminate the contract after it has begun execution, as we will discuss further below.29

28 29

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

See The Enforceability of Contracts, Part E.

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Discharge by Performance

It is next submitted that contentions regarding discharge by performance may be less applicable in the context of Smart Contracts, save in extenuating circumstances. Circling back to a major benefit of Smart Contracts, such contracts, once executed, are able to deter and prevent opportunistic behaviour by preventing technical deviations from the initial agreement.

30

Performance of the contract would, in all likelihood, therefore be precise and complete, allowing for a clear-cut discharge by performance, save in extenuating circumstances. iii)

Discharge by Breach

Given that intentional breaches after the execution of Smart Contracts have begun are unlikely due to the limited scope for human intervention,31 the two pertinent scenarios of breaches would be either a breach occurring due to the failure of program code or repudiatory anticipatory breaches. With regards to the former, breach of contract falls under strict liability. Parties would be liable for any failures or defects in the performance of contractual obligations arising from the deployment of defective code, which is attributable to said parties. Regarding Fully Automated Contracts, there is no reason why the existing principles of repudiatory breaches cannot be applied to Automated contracts once the terms have been duly identified and interpreted by the courts. A potential issue arises however, in the application of the Condition-Warranty Approach to Hybrid or Fully Coded Contracts.32 Here, the express terms of the contract are likely to simply be lines of code, whereas reference to extrinsic evidence may not be entirely useful as information would unlikely be available to both contracting parties given the automatic nature of the contract and hence, inadmissible.33 It is thus likely that the current rules for determining whether a term is a condition or a warranty, as set out in Man Financial,34 may require refining or tailoring towards interpreting coded terms. In this regard, it is likely that the Hong Kong Fir Approach would pose a more helpful alternative in distinguishing the severity of a breach. Further, this would be in line with the current principle of contractual interpretation, whereby “innominate terms” are analysed under the Hong Kong Fir Approach, as laid out in both RDC Concrete and Bunge SA v Nidera BV. See T Schrepel, European Commission, Smart Contracts and the Digital Single Market Through the Lens of a "Law + Technology" Approach (September 2021) p 17.

31 Smart legal contracts Advice to Government, supra n 5, at [5.131].

32 Per RDC Concrete v Sato Kogyo [2007] 4 SLR 413 in Singapore and Bunge SA v Nidera BV [2015] UKSC 43 in the UK, both endorsing the application of the condition warranty approach followed by the HongKong Fir Approach in determining if the right to terminate arises. See also Andrew Phang and Goh Yihan, “Contract Law in Commonwealth Countries: Uniformity or Divergence” (2019) 31 SAcLJ 170 at 211.

33 Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029, at [56].

34 Man Financial (S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR(R) 663, at [158] – [174].

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iv)

Discharge by Frustration

Lastly, frustration occurs when a supervening event “radically changes” the obligations of parties or renders the contract’s completion virtually impossible.35 Despite the fact that novel frustrating events might arise in the case of Smart Contracts, we are of the view that the Courts will have little to no difficulty in applying the existing principles of frustration; namely the identification of the supervening event and subsequently, if the event had resulted in the contract’s performance being impossible or a “radical change” in how the code was/will be executed. It is further argued that the courts may expect increased instances of frustration being argued due to the smaller role parties have to play in the execution of the contract, allowing for increased instances of occurrences which are “outside of the control of parties” to happen. Nevertheless, it remains that frustration is a doctrine which is only invoked in exceptional circumstances and that the current principles for defining such circumstances remain sufficient to resolve such issues when they arise.

C. Remedies (1) Termination The first type of contractual remedies deals with the first question regarding party’s rights after a breach – termination. The conditions for termination are straightforward enough.36 It stands that there is no reason why these traditional principles should face any difficulties in the face of Smart Contracts. Although the instantaneous automated execution of Smart Contracts might result in performance occurring before the breach is identified, this does not pose an issue, as is often the case with traditional contracts. The more challenging issue would be in effecting termination before complete execution of Smart Contracts. Here, the lack of human intervention acts as a double-edged sword. On one hand it protects against intentional breaches, while on the other, it hinders parties from stepping in to prevent the program from continuing to execute transactions or confer benefits even after termination. Manual override solutions such as coded “kill-switches”, operated by either the overarching platform moderators or by contracting parties themselves, have been identified as a potential solution. 37 Yet, the latter would indeed seem to undermine the

Adani Wilmar Ltd v Cooperatieve Centrale Raiffeisen-Boerenleenbank BA [2002] 2 SLR(R) 216 at [44].

Geys v Societe Generale [2012] UKSC 63 at [15]. Termination is effected where there has been a repudiatory breach, followed by an acceptance of this breach by the innocent party and the communication of its choice to terminate the contract.

37 Smart legal contracts Advice to Government, supra n 1, at [5.128].

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Singapore Comparative Law Review security of Smart Contracts and leave them open to abuse by a party unilaterally pulling the plug.

Therefore, any such “kill-switches” would have to be properly coded and devised such that they accord the relevant flexibility to parties while also ensuring that the security of Smart Contracts is not compromised. Ultimately however, the difficulty presented by the instantaneity of the execution of Smart Contracts seems more a practical difficulty rather than a legal hurdle.

(2) Damages and Equitable Remedies Next, we move to damages, the most common form and sought after of contractual remedies.

The aim of damages is to place the innocent party in the position which he would have been if the contract had been performed. 38 Here, the court’s focus is on the terms and substance of the contract, as compared to its execution. By undertaking the task of contractual interpretation of terms, notwithstanding if they are in natural language or program code, the courts will consider the intended net change in position of the innocent party. It is therefore submitted that the automated execution of Smart Contracts does not give rise to any unprecedented difficulties in the calculation of damages.

In the event where damages may not be adequate, the court will then turn to equitable remedies such as Specific Performance. The learned authors of the English Law Commission suggests that awards of Specific Performance are likely to be uncommon in Smart Contracts as the nature of potential breaches are likely to result in defective performance, rather than non-performance, of which damages are typically an adequate remedy. 39 We humbly suggest otherwise, finding that anticipatory breaches, in the form of unilateral activations of the “kill-switch” or otherwise, or an entire failure of execution due to severe code defects, are more than capable of causing situations of non-performance of the Smart Contract. It would then not be difficult to envisage a situation where a unique asset such as non-fungible tokens, a trending subject matter in the current cryptosphere, would have failed to be conferred onto the innocent party. In such a situation, equitable remedies such as Specific Performance may well be the appropriate remedy in place of damages, subject to the requirements of it being a just and equitable grant, 40 and the lack of the need for courts’ supervision.41

Robinson v Harman [1848] 1 Ex 850 at 855.

Smart legal contracts Advice to Government, supra n 1, at [5.136].

40 E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd [2012] 1 SLR 32 at [103].

41 Co-operative Insurance Society v Argyll Stores (Holding) Ltd [1998] AC 1.

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Singapore Comparative Law Review (3) Rescission Lastly, the third type of contractual remedies deals with situations where the courts aim to put parties back to their original position when the contract had never occurred; namely, rescission and frustration. Rescission is the dissolution of the contract ab initio on the grounds that a contracting party’s assent was vitiated by one or more of the factors recognised by law. 42 Subsequently, as provided by the Frustrated Contracts Act,43 upon frustration of a contract, there is a transfer of money or benefits paid pursuant to the contract prior to the frustrating event. In the context of Smart Contracts utilising blockchains, it is submitted that it would be near impossible to amend the blockchain to reverse the effects of the contract. However, there have been potential remedies suggested to circumvent such issues. Here, the courts could order parties to enter into a second “equal and opposite” transaction on the blockchain, effectively reversing the effects of the contract.44 Alternatively, the courts could also take reference from Section 2(4) of the Frustrated Contracts Act by identifying the benefits transferred, valuing said benefits in monetary terms, and then ordering parties to make restitution of the value of those benefits. 45 Further, other equitable remedies such as accounts of profits, equitable compensation, equitable liens and asset tracing, have also been identified as potential avenues in place of rescission to undo the execution of Smart Contracts in achieving practical justice.46 Hence, while the instantaneous execution of Smart Contracts might result in instances where the courts are unable to rescind or dissolve such contracts in the traditional sense, we find that this is more of a practical difficulty which may be circumvented by restitutionary principles.

(4) Vitiating Factors Vitiating factors largely apply to smart contracts as they do to conventional contracts. Common law vitiating factors, along with statutory provisions such as the Misrepresentation Act, 47 render contracts either void or voidable when they are operative. It is submitted that the rules governing most of the common law vitiating factors seamlessly apply to smart contracts as well, though some

CDX and another v CDZ and another [2020] SGHC 257.

Frustrated Contracts Act 1959 (2020 Rev Ed), in pari materia with the UK Law Reform (Frustrated Contracts) Act 1945.

44 N Yeo and A Taylor, “Avoiding blockchain contracts” (2019) 9 Butterworths Journal of International Banking and Financial Law 586.

45 Frustrated Contracts Act 1959 (2020 Rev Ed) S 2(4).

46 Rachel Lidgate and Charlie Morgan, “Hashing out the implications of Smart Contracting under English law” Herbert Smith Freehills (2 October 2018) < https://www.herbertsmithfreehills.com/latest-thinking/hashing-out-theimplications-of-smart-contracting-under-english-law> (accessed 22 July 2022).

47 Misrepresentation Act 1967 (2020 Rev Ed), in pari materia with the UK Misrepresentation Act 1967.

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Singapore Comparative Law Review present points of contention or difficulties in application to the novelties presented by Smart Contracts.

(5) Misrepresentation Smart Contracts often throw third parties not privy to the contract into the mix, especially so in the case of Hybrid or Fully Coded Contracts. Where two commercial entities contract on coded terms, the programs of the code may neither be the contracting parties themselves nor acting as agents of the contracting parties. This allows for misrepresentations to be made (in code), which may not be represented by the parties privy to said contract themselves. Where a party is materially induced by a third party’s negligent misrepresentation to enter into a contract, however, they are unable to seek statutory relief against the other party privy to the contract under the misrepresentation act, due to issues of agency and privity.48 However, it is nevertheless possible to seek relief under tort law. The innocent party may bring an action against the representor under the tort of negligence for negligent misrepresentation (or deceit, as the case may be). In the case of negligence, as long as a sufficiently proximate relationship is found between the tortfeasor (programmer) and the claimant, the claimant may be entitled to relief, subject to foreseeability, remoteness, causation, and public policy factors.49 (6) Illegality The only issue presented by the application of the doctrine of illegality to Smart Contracts is really an issue of identification. The anonymity offered to transacting parties by some distributed ledger technologies, such as in allowing parties to transact using pseudonyms, along with the lack of transparency afforded by some Smart Contracts result in a challenge in identifying illegal contracts and the parties privy to such contracts. Smart Contracting for the same reason may also act as grounds for the propagation of illegal contracts, as they can incentivise the entering into of illegal contracts. This phenomenon is exemplified by the dark web, an illicit forum accessed using special search engines which use anonymised and decentralised nodes, in which contracts for classified drugs, pornography and even hired killings are (allegedly) entered into, due to the security afforded by the anonymity of users, and untraceable online transactions, usually using cryptocurrency as

48 49

Smart legal contracts Advice to Government, supra n 1, at 126.

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

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Singapore Comparative Law Review consideration.50 However, it is submitted that this does not extend to legal difficulties in applying the prevailing law51 to Smart Contracts but are rather practical difficulties which are under the purview of policing and investigative authorities. Thus, the common law is sufficiently equipped to deal with issues of illegality regarding Smart Contracts.

On a separate point, where a contract entered into is void for common law illegality, a restitutionary remedy under either the “Range of Factors” approach in Patel52 or the Second Stage of Ochroid, subject to the principle of stultification,53 is available to aggrieved parties who have conferred benefits pursuant to the contract and where it may be impossible for the aggrieved party to be restored to their original position. Seeing that certain Smart Contracts (such as Fully Coded Contracts) are often instantaneous in their execution, along with the difficulties in identification and policing brought about by the anonymity offered by such contracts, it is easier for parties who have so benefitted to abscond. As alluded to above, however, this seems more of a practical difficulty than a legal one.

(7) Mistake The doctrine of Mistake is rather narrow in its operation and is really saved for “exceptional circumstances”. Though Singapore adopts a view entailing the wider operation of the doctrine in equity, it is nevertheless a rare occasion in practice where the common law or equitable doctrine is triggered. It is now apposite to contextualise the doctrine of mistake to the realm of Smart Contracts. We shall assume that the parties are operating on a fully coded smart contract for ease of illustration.

We shall first analyse common mistake. Upon entering a Smart Contract, parties will expect their code to perform a set of functions. It is when the code is executed in a manner contrary to such expectations where there is a common mistake found. Additionally, the parties must not have allocated the risk of mistakes about code performance in any natural language contract that subsists between them.54

Arbër S. Beshiri and Arsim Susuri, “Dark Web and Its Impact in Online Anonymity and Privacy: A Critical Analysis and Review” (2019) Journal of Computer and Communications, at 37.

51 See Ochroid Trading Ltd v Chua Siok Lui [2018] 1 SLR 363 (“Ochroid”) and Patel v Mirza [2016] UKSC 42 (“Patel”).

52 Patel, supra n 50.

53 Ochroid, supra n 50 at [161] – [168].

54 Smart legal contracts Advice to Government, supra n 5, at 113.

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Singapore Comparative Law Review The law on common mistake differs slightly between Singapore and the UK. In The Great Peace,55 the Court of Appeal of England and Wales overruled the wider operation of common mistake in equity as espoused by Lord Denning in Solle v Butcher,56 which would be triggered by the parties’ fundamental misapprehension regarding the terms of the contract or their rights.

Singapore’s position is outlined in Olivine Capital57 and Digilandmall. 58 The key difference (that is rather semantical) in Singapore is in the requirement for the mistake to have rendered the subject matter of the contract fundamentally different, as opposed to the requirement of impossibility espoused in The Great Peace. More significantly, Singapore recognises the doctrine’s operation in equity. It is however explained in obiter in Olivine Capital that the tests for common mistake in common law and equity are similar, the difference being in the remedies – an operative common mistake in common law renders the contract void, while that in equity renders it voidable, subject to bars to rescission.

It has been submitted that the prevailing common law rules remain applicable to common mistake in smart contracts. Hybrid contracts would partly comprise of natural language contracts, which can in turn be interpreted to determine whether the contracts in question are void/voidable for common mistake. Risk allocation is more apparent in such contracts, and it is relatively easier for courts to glean from a hybrid contract whether it satisfies the requirements for a finding of common mistake.

Fully coded contracts, however, require further judicial/legislative direction in assessing whether they are void/voidable for common mistake. It has been submitted that common mistake could be found where the code in a fully coded contract is faulty and yields performance that is sufficiently different from the parties’ expectations, rendering the performance of said contract impossible (or the parties’ obligations fundamentally different).59 Again, it is worth emphasising that the operation of the doctrine (especially at common law), is saved for the most exceptional circumstances, and would likely not be triggered easily.

Great Peace Shipping Ltd v Tsavliris (International) Ltd [2002] EWCA Civ 1407 (“The Great Peace”).

[1950] 1 KB 671.

57 Olivine Capital Pte Ltd v Chia Chin Yan [2014] SGCA 19 (“Olivine Capital”).

58 Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502 (“Digilandmall”).

59 Smart legal contracts Advice to Government, supra n 1, at 113.

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Singapore Comparative Law Review We move on to unilateral mistake. Contentious in the application of unilateral mistake to Smart Contracts is when the mistake in question arises out of a fully coded contract. A very pertinent example was presented to the Singapore Court of Appeal in Quoine v B2C2.

D. A Faultline Appears: An Analysis of Quoine v B2C2 Quoine explores the rarely treaded waters of unilateral mistake in the context of automated contracts.

Namely, its dissenting judgement by Mance IJ is convincing. The factual matrix of Quoine is as such: The case concerned the Respondent and multiple third parties transacting on the Appellant’s cryptocurrency platform. Upon a failure in the Appellant’s program, the Respondent’s deterministic trading software enacted a built-in fail-safe program which concluded sale offers of 1 Ethereum for 10 Bitcoin from third party buyers, a rate that varied greatly from market rate at the time.60 The majority found that the test for finding unconscionability under unilateral mistake ought to be extended to an assessment of the state of mind of the coder of the programs in question, rather than the parties, who were found to have little involvement with the formation of the contracts themselves.61 It focussed on the presence of unconscionability in attempting to take advantage of a party operating under a mistake in the future, by assessing whether the program had actual or constructive knowledge at the time he had created the algorithm.62 This test, however, rendered the doctrine of mistake inoperable in both common law and equity respectively on the facts, and the majority upheld the contract. Conversely, Mance IJ, dissenting, was of the view that the contract was indeed voidable in equity. He advocated for a test which asks the hypothetical question – what the reasonable trader would have thought, given knowledge of the particular circumstances surrounding the contract.63 He applied constructive notice, where the non-mistaken party, in behaving in a manner conducing the mistaken party to continue to operate in the mistake, should be found to have acted unconscionably.64 The application of this test to the facts of Quoine would undoubtedly have rendered the contract voidable, since the reasonable trader would attribute the deviant price at which the trade occurred to an egregious error. 65 Though this approach seeks to achieve a more just outcome, it is submitted that it analyses the consequences

Quoine, supra n 2.

Quoine, supra n 2, at [98].

62 Ibid.

63 Ibid, at [200].

64 Ibid, at [173].

65 Ibid, at [187].

60 61

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Singapore Comparative Law Review of the contract, rather than its formation. Broadening the operation of equity to this extent may result in the courts essentially rewriting contracts, which is detrimental to commercial certainty in contracting, as Mance IJ himself recognised, while giving greater weight to the interests of justice.66 It is nevertheless submitted that such an approach is promising in achieving the ends of justice and may well lead to future alteration in the law, or legislative addressment. More significantly, Quoine has exposed a key contention in the prevailing law’s ability to adapt to Smart Contracts.

Ideally, this would attract the attention of lawmakers and courts alike and pave the way for greater adaptation in the law to suit the novelties of Smart Contracting.

E. The Way Forward It is apparent that Smart Contracts present novel difficulties and idiosyncrasies, of which the prevailing common law may on occasion be unable to address precisely. At present, we see Smart Contracts being utilised in fairly simple transactions – online algorithmic trading67 or the sale of insurance policies, 68 amongst others. Yet, as we stand on the brink of the advent of artificial intelligence, it is likely that Smart Contracts will blossom into use in other commercial fields such as healthcare, supply chain, or perhaps even find application in domestic government functions.

In his keynote address to the Oxford Digital Assets Conference 2022, Justice Jeyaretnam argued that the common law’s incrementalism, reliance on principles, and usage of legal fictions make it well suited to find fair and just solutions to the novel situations brought by Smart Contracts.69 While we find that the flexibility and adaptability of the common law is indeed attractive at first instance, Justice Jeyaretnam himself has recognised that the common law develops at a slower pace, requiring precise situations to arise before even glaring issues may be resolved.70 Considering the exponential developments in the usage and utility of Smart Contracts, there is an urgent need for legislative intent to be directed towards this new mode of contracting. Businesses flourish in commercial certainty, which can be achieved through increased clarity in the law. The Quoine, supra n 2, at [184].

A Quoine v B2C2 situation, for example.

68 Ben Chester Cheong and Harry Kishen, “Legal Risks Beneath Blockchain-enabled Smart Contracts” Singapore Law Gazette (January 2021) < https://lawgazette.com.sg/feature/legal-risks-beneath-blockchain-enabled-smartcontracts/> (accessed 22 July 2022).

69 Justice Philip Jeyaretnam, Judge of the Supreme Court of Singapore, Keynote Address at the Oxford Digital Assets Conference 2022 (29 June 2022) <https://www.judiciary.gov.sg/docs/default-source/news-docs/oxford-digitalassets-keynote-address---justice-jeyaretnam.pdf> at para [27] – [29].

70 Id, at [27].

66 67

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Singapore Comparative Law Review means for achieving such clarity, however, is where contention may arise. There are merits to both the incremental expansion of common law, as well as legislative provision which allows for localised developments in the law. Picking between the two requires one to understand firstly the objectives of Smart Contracts, and how they could change the commercial landscape on a global scale. Though the common law is equipped in providing a relatively universal standard to follow, its incremental nature does render it tardy in its ability to adapt to tomorrow’s business demands, especially considering the contrastingly rapid evolution of global commerce as a result of Smart Contracts. This is in contrast to the Legislature, which is well-placed to consider which future policy options are in a society’s best interests, especially on the contentious and divisive issues of the day,71 of which many are likely to arise in the context of Smart Contracts.

In totality, it seems that judicial and statutory guidance is required in the interpretation of the current law to fit the context of smart contracts. Further, where the law seems wanting in achieving the ends of justice, development, both in case law and legislation, is due. This would serve to provide the much-needed certainty and security to individuals conducting their businesses over the ever-expanding internet, to whom Smart Contracts would sooner or later become the lifeblood of business.

71

Eugene Tan, “Curial Deference in Singapore Public Law” (2017) 29 SAcLJ 800 at 804.

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Singapore Comparative Law Review

Talk Talk Sing Song: A Comparative Study of the Doctrine of Frustration in Singaporean and English Law Evan Chou and Priyansh Shah1

INTRODUCTION The doctrine of frustration makes for fascinating academic study but is often confusing in practice.2 It holds that when a supervening event (not caused by default of either party) occurs that renders the obligations fundamentally different from that contracted for, parties are discharged from their obligations. The doctrine has since adapted and expanded, but remains a narrow one.

If the essence of contract is performance,3 what happens if the contract cannot be performed due to the fault of either party? The answer seems obvious: the contract is frustrated. However, the matter is made more complicated if the parties can fulfil their obligations, but to do so would be of no use to either party. Taking reference to the aforementioned KTV, should parties enter into a lease in the knowledge that the lessee intends to run a KTV, an interesting academic question is posed as to whether their contractual obligations following COVID could be discharged by frustration.

The majority of KTVs and similar entertainment outlets were forced to close due to COVID-19 regulations. The lessees were left with no access, but their obligations remained. They were in a position where they were paying for the right to premises that they could not access or use.

Without revenue, many were forced to close. It is unclear whether these contracts should be considered frustrated, and the answer might well differ between jurisdictions.

First, we discuss the law on frustration in England and Singapore, and the differences between the jurisdictions. Then, we consider the effects of COVID-19 on commerce and the law, as well as the cases in which COVID-19 has been pleaded as frustrating a contract. Finally, we consider the ways in which the doctrine of frustration may be developed following COVID-19, and suggest

1

We would like to thank the editors for their excellent work and caveat that whatever mistakes that still remain be wholly our own.

2 JE Stannard, “Frustrating Delay” (1983) 46 Modern Law Review 738 3 Daniel Friedmann “The Performance Interest in Contract Damages” (1995) 111 Law Quarterly Review 628

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Singapore Comparative Law Review certain steps that the courts may take in considering whether a contract has been frustrated due to COVID-19 and resultant regulations.

A. An Overview of English Law As we are so often forced to do, we must begin with the law of the Romans. Pomponius wrote that if a slave was sold, but died before he was due to be delivered, the contracting parties would be released from their obligations.4 The idea that self-induced frustration should not terminate obligations under a contract is also present in Pomponius’ writings, that in the above situation the parties were not released from their obligations if one was “to blame”.5 Though Pomponius used the example of a slave, common to the jurists, these principles applied equally to chattel or land.

The English courts did not take particularly long to recognise that a contract should be discharged by the death of a party from whom performance was owed, though it may have been that this only applied where performance was personal in nature.6 The rule was extended in Taylor v Caldwell,7 to include situations where the subject matter of a contract is destroyed, and the contract had made no provision for where such risk should fall. 8 Blackburn J analysed the influence of Roman and Civil law over the principles of contemporary English law.9 Rather than holding that the principles of Hyde applied only to contracts for personal services and performance, Blackburn J approached the issue as one where there was an implied term in the contract. This implied term was not limited to the continued survival of the promisor, or his physical ability to perform.10 Instead, the parties had contracted on the basis of an implied term that the subject matter (the Surrey Music Hall) would continue to exist, given that it was essential to the performance of the contract. The destruction of the Music Hall constituted a failure of the implied term, without fault from either party, so both parties were “excused” from their obligations.11

Digest 45.1.33 Digest 45.1.23 6 Hyde v Dean of Windsor [1597] Cro Eliz 552 7 Taylor v Caldwell [1863] 3 B & S 826 8 Taylor, 832-833 9 Taylor, 834-835 10 Hall v Wright [1859] E. B. & E. 765 11 Taylor, 840 4 5

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Singapore Comparative Law Review The treatment of frustration as a search for a condition express or implied, fiction though it may have been,12 led to a pair of decisions with seemingly contradictory results. Herne Bay Steam Boat Co v Hutton13 and Krell v Henry14 both involved contracts entered-into surrounding royal events. In Herne Bay, the contract was for the hire of a steamship during the review of the Fleet, with King Edward VII to appear. In Krell, it was for the hire of the flat from which the claimant was to view the King’s coronation procession. The King was taken ill, and both events were postponed. The Court of Appeal was constituted identically in both cases. Vaughan Williams LJ even used the same analogy of a passenger hiring a cab to Epsom when the race was cancelled.15 Yet in Krell the claim was refused, whereas in Herne Bay it was allowed.

The closest thing to an explanation given by the court was that the procession went to the “foundation” of the contract in Krell, but the naval review did not go to the foundation of the contract in Herne Bay. Distinguishing the cases is complicated by the fact that in Herne Bay, Vaughan Williams LJ16 and Stirling LJ17 both rejected the idea that the review went to the foundation of the contract, while refusing to identify what that foundation was, or what might constitute the foundation of a contract. Vaughan Williams LJ expressed the view that there was nothing to be gained by giving such an answer (presumably other than simplifying matters for lawyers and academics for the next century).

One possible explanation for the difference in judgments is that in Herne Bay, the fleet could still be viewed, meaning the contract was limited, but not frustrated. 18 On the other hand, the cancellation of the procession in Krell meant that the contract was not just limited, but rendered impossible. In other words, while there might have been less to see in Herne Bay, in Krell there was nothing to see at all.

Another explanation is that in Krell, the parties had contracted on the basis that the flat in question would be let out for the purpose of viewing the procession, whereas in Herne the intention was C’s alone.19 This is supported by Romer LJ’s judgement that in Herne Bay the importance of the naval

William Herbert Page, “The Development of the Doctrine of Impossibility of Performance” (1920) 18 Michigan Law Review 590, 605 13 Herne Bay Steam Boat Co v Hutton [1903] 2 KB 683 14 Krell v Henry [1903] 2 KB 740 15 Herne Bay, 689, Krell 750-751 16 Herne Bay, 689 17 Herne Bay, 692 18 Herne Bay, 692 19 Andrew Burrows, A Casebook On Contract (7th edn, Bloomsbury Publishing Plc 2020), 762.

12

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Singapore Comparative Law Review review was “a matter for the hirer alone”, whereas in Krell the claimant had advertised the flat for the purpose of viewing the procession, which induced the defendant to enter into the contract. 20 It is submitted that this is the more likely explanation, leading to the conclusion that whilst the failure of a common purpose may constitute frustration of a contract, if the event or purpose was only a matter for one party, the contract will not be considered frustrated.

Thankfully, the above issues were subsumed by the test set out by Lord Reid in Davis v Fareham UDC;21 “Frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”22 In addition, the courts will consider the true meaning of the contract, and whether parties have undertaken the obligations before them.23 The test from Davis has been directly incorporated into Singapore law, specifically in Lim Kim Som v Sheriffa Taibah bte Abdul Rahman.24 Furthermore, an increase in expense or onerousness is not in itself sufficient to frustrate a contract.

Performance would have to be “of a character so different from anything contemplated”, 25 “radically different”,26 or “fundamentally different” to what the parties had initially agreed.27 In addition, it must be “positively unjust” to hold the parties to the contract.28 This injustice can take many forms, including physical impossibility, 29 as well as legal impossibility. 30 However, this impossibility or injustice cannot be self-induced. Per Maritime National Fish v Ocean Trawlers,31 it would be difficult to recognise that an “act and election” of one the parties could cause a contract

Krell, 750 Davis Contractors v Fareham UDC [1956] AC 696 22 Davis, 729 23 Panalpina, 688 24 Lim Kim Som v Sheriffa Taibah bte Abdul Rahman [1994] SGCA 15, [25] - [29] 25 Davis, 724 26 Davis, 729 27 British Movietonews Ltd v London and District Cinemas Ltd [1952] AC 166, 185 28 The Eugenia [1964] 2 QB 226, 239 29 Taylor (n 6) 30 Metropolitan Water Board v Dick Kerr and Co [1916] AC 119 31 Maritime National Fish v Ocean Trawlers [1935] AC 524 20 21

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Singapore Comparative Law Review to be frustrated,32 given that the doctrine is reserved for external events. In addition, given that the doctrine was developed as a “special exception which justice demands”,33 it would hardly be just to allow one party’s own decision to terminate a contract without further obligation. It is also “immaterial to speculate” the reasons,34 and so long as the party could have fulfilled its obligations “if they had so minded”, the contract would stand.35 The rule was applied to its clearest extent in The Super Servant Two, 36 involving a contract for transport of an oil rig. Wijsmuller, the transporters, could choose between either of two vessels for the task. One was chosen, but later sank. The second vessel had already been contracted for other voyages, and Wijsmuller argued that the loss of the ship therefore constituted frustration.

This argument was rejected in the Court of Appeal. As there was an alternative vessel available, the obligations under the contract had not radically changed. Applying Maritime National Fish, the “frustrating” event was fundamentally Wijsmuller’s election not to use the other vessel. It did not matter that fulfilling this contract might have meant breaking the others, with Bingham and Dillon LJJ both citing Lord Wright’s speech from the aforementioned case, of it being “immaterial to speculate” as to the reasons for the self-induced frustration. While Dillon LJ appeared to use it as authority for the proposition that the reasons for Wijsmuller’s inability to fulfil its obligations were irrelevant,37 Bingham LJ explained the decision as the courts viewing “the interposition of human choice after the allegedly frustrating event as fatal to the plea of frustration”. In The Super Servant Two, Wijsmuller’s decision not to use the alternative vessel after reviewing its schedule for two weeks was the “fatal” choice.38 Dillon LJ also noted that Wijsmuller had negotiated extra fees with its other clients for usage of the alternative vessel after the first had sank, before confirming those contracts. 39 Though undiscussed in the judgement, it is possible that by doing so, Wijsmuller had accepted the risk that they would be in breach by not using the second vessel to transport the oil rig, and the events could thus be seen as self-induced frustration. This is supported by the description that “the parallel [with Maritime National Fish] seems to be even closer” once the negotiation for the extra

Maritime National Fish, 527-529 Hirji Muli v Cheong Yue Steamship Co [1926] AC 497, 510 34 Maritime National Fish, 530 35 ibid 36 The Super Servant Two [1990] 1 Lloyd’s Rep 1 37 The Super Servant Two [1990] 1 Lloyd’s Rep 1 38 The Super Servant Two [1990] 1 Lloyd’s Rep 1 39 The Super Servant Two [1990] 1 Lloyd’s Rep 1 32 33

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Singapore Comparative Law Review fees were taken into account.40 Thus, the general rule in English law is that a contract is not considered frustrated if a party can still legally (if not practically) fulfil its obligations.

In addition, not all external supervening events will frustrate a contract. In particular, we wish to identify three that do not in themselves render a contract frustrated in English law.

(1) Failure of a commonly-contemplated source The Mary Nour involved a contract for the sale and delivery of cement from Asia to Mexico,41 with the parties both contemplating (and assuming) that the cement would be sourced from Asia, though the specific source was not included in the contract. Despite the failure of the commonlycontemplated source and the seller not having alternative sources in Asia, 42 the contract was not deemed frustrated. The Court of Appeal held that in such a contract, the obligation to supply the goods was a personal obligation for the vendor, with the buyer not being concerned who the exact supplier was.43 So long as delivery remained physically and legally possible, the contract would still be in force.44 This would apply even if the parties were aware of who the likely or intended supplier would be. However, the court did recognise that certain scenarios, such as the total failure of a specified source due to legal impossibility, could constitute frustration.45 (2) Delay or impediment of performance for part of the contract Even if a delay is substantial, the contract is not considered frustrated if the core obligations are unchanged. In The Eugenia,46 the voyage in question would have been extended from a planned 108 days to 138 days.47 In National Carriers Ltd v Panalpina,48 a warehouse was rendered useless for nearly two years of a ten-year lease period. In neither case was any change in obligations “so radical as to produce a frustration”,49 with the obligation to pay rent remaining intact.50 Instead, the courts will utilise a multi-factorial approach,51 considering factors such as the contemplation of the parties, The Super Servant Two [1990] 1 Lloyd’s Rep 1 The Mary Nour [2008] EWCA Civ 856 42 The Mary Nour, [3] - [4], [12] 43 The Mary Nour, [23] - [24] 44 The Mary Nour, [23] 45 ibid 46 The Eugenia [1964] 2 QB 226 47 The Eugenia, 240 48 National Carriers Ltd v Panalpina [1981] AC 675 49 The Eugenia, 240 50 Panalpina, 698 51 The Sea Angel [2007] EWCA Civ 547 40 41

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Singapore Comparative Law Review the extent of future obligations, and the risk borne by each party under the contract. Applying this analysis, it was found that a three month holdup of a twenty day charter does not in itself constitute frustration.52 (3) Failure of an apparent common purpose Though English courts have long held that “failure of the adventure” can frustrate a contract,53 it appears that the courts interpret the “adventure” narrowly. Canary Wharf v European Medicines Agency demonstrates just how narrow the doctrine of frustration is.54 The contract was for a lease of a building, for use as commercial and professional offices, with the understanding that it would serve as the EMA’s headquarters.55 Per the EMA’s Regulations, its headquarters had to be within the EU, posing some difficulty regarding the premises following the Brexit referendum. The EMA pleaded frustration, and there were several factors that would, at first glance, support their case.

Firstly, there were issues of supervening illegality, in that it was likely impossible for the EMA to maintain its headquarters outside of the EU under its regulations, though it could still “deal with” the property.56 Secondly, it was claimed that the parties’ common purpose had been thwarted. 57 Thirdly, the common purpose had been thwarted for much of the agreed lease period. 58 Fourthly, the building had been altered to fit the EMA’s requirements, such that it was deemed, at least partially, “bespoke”.59 In an eloquent judgement, Marcus Smith J rejected the EMA’s claims, and clarified the scope of frustration in English law. It was found that the supposed common commercial intention was merely for the lease of the property, rather than the building being used as the EMA’s headquarters specifically. 60 In addition, the EMA could still derive some other benefit from the contract, including being able to sublet the premises.61 Crucially, the obligation to pay rent was intact and unaffected.62 Thus, it appears that the approach in English law is to take a restrictive view of what the “common intention” of the parties is. So long as the obligation to pay rent is intact and the

The Sea Angel, [111] - [120] Hirji Muli, 506 54 Canary Wharf v European Medicines Agency [2019] EWHC 335 55 Canary Wharf, [92] - [93] 56 Canary Wharf, [146] - [165] 57 Canary Wharf, [41] 58 Canary Wharf, [1] - [4] 59 Canary Wharf, [56] - [61], [217] - [220] 60 Canary Wharf, [244] - [245] 61 Canary Wharf, [92], [196] - [200] 62 Canary Wharf, [159] 52 53

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Singapore Comparative Law Review parties able to derive some benefit,63 even if not initially contemplated or agreed-upon, the contract will remain in force. This approach has since been applied in several other first-instance cases that shall be discussed in Part B.

B. Overview of Singaporean Law The doctrine of contract frustration in Singapore closely follows the English tradition. The Frustrated Contracts Act 1959 is, for all practical purposes, a plain restatement of the Law Reform (Frustrated Contracts) Act 1943.64 As in English law, the raison d’etre for the doctrine in Singapore is fair and just apportionment of risk in situations that are so extreme as to be beyond the scope of the contract, and specifically in places where the contract does not make provisions for such extreme scenarios.65 These “extreme scenarios” in Singapore law are those that “renders it physically and commercially impossible to be fulfilled or transforms the obligation to perform into a radically different obligation.”66 This is largely similar to English law, save the extension of “commercial impossibility” being sufficient to constitute frustration. The frustrating event could thus be one that renders the common purpose impossible, as opposed to the stricter English requirement that performance of the parties’ contractual obligations be impossible.

The construction approach, adopted from Panalpina, was incorporated into Singaporean law in Lim Kim Som.67 A plot of land had been purchased shortly before the government announced that the land would be requisitioned. The purchaser pleaded frustration, succeeding before the Court of Appeal. The court found that the sale of land was, in fact, subject to the doctrine of frustration, referencing the idea of “frustration of a common venture”.68 The court then incorporated the test from Davis and the idea of non haec in foedera veni into Singaporean law. It was found that the compulsory acquisition had indeed frustrated the purchase agreement as such an occurrence was not provided for in the true construction of the contract and that crucially, the compulsory acquisition had fundamentally altered the ‘face of things’.69 The purchaser had bargained not for the ownership of the land in silo but also the use of the property. Instead, “what he would get London and Northern Estates Company v Schlesinger [1916] 1 KB 20 Andrew Phang (ed), The Law Of Contract In Singapore (2nd edn, Singapore Academy of Law 2022) 1580 65 ibid 1590 66 Adani Wilmar Ltd v Cooperatieve Centrale Raiffeisen-Boerenleenbank BA [2002] 2 SLR (R) 216, [44] 67 Lim Kim Som v Sheriffa Taibah bte Abdul Rahman [1994] SGCA 15 68 Lim Kim Som, [23] 69 ibid 63 64

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Singapore Comparative Law Review would be an estate which was ‘unusable and unsaleable’”.70 As a result of the supervening event (compulsory acquisition), the purpose of Lim’s purchase had become commercially impossible.

The court also found it material that the price the government would pay for the land was far below the market rate, at about one-fifth of what the purchaser had committed to paying in the agreement.71 In the Singaporean conception of frustration, the fact that the land could not be used commercially by the buyer due to the impending requisition was enough to make the obligation radically different to purchasing the land for ordinary commercial use. In English law, this would have been immaterial. That the government would requisition the land for a far lower price does not mean that it was impossible for a buyer to pay the higher price as contracted for. An English court would more likely hold that although the buyer might be said to have made a bad bargain, the parties’ obligations to make payment and transfer title remained intact.72 Whilst it is obvious that, where the common purpose of a contract becomes impossible due to destruction of the subject matter or supervening illegality, parties are discharged from their obligations,73 Singaporean law extends past English law in recognising commercial impossibility as being sufficient to frustrate a contract. At its core, the concept of commercial impossibility as set out in Singapore law is an extension of the construction approach, for contracts where the common commercial intent has been hindered by circumstances such that performance is commercially-pointless.74 This approach is illustrated in Sheng Siong v Carilla.75 Therein, the lessee intended to lease the lessor’s property for the purpose of operating a supermarket, an intention they could demonstrate was captured in the construction of the lease agreement.76 However, the proposal for the usage of the premises as a supermarket did not receive regulatory approval.77 The lessee pleaded frustration, a claim accepted by the High Court.

ibid Lim Kim Som, [45] 72 Canary Wharf, [159] 73 Taylor, 840 74 Phang (n 63) 1556 75 Sheng Siong Supermarket Pte Ltd v Carilla Pte Ltd [2011] SGHC 204 76 Sheng Siong, [63] 77 Sheng Siong, [12] 70 71

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Singapore Comparative Law Review Whilst the intention to use the space as a supermarket was not explicitly included in the contract, 78 there was evidence to support the claim that there was “an express provision that the lease was conditional on the Premises being permitted to be used as a supermarket”.79 With this established common purpose of leasing the property for use as a supermarket, and the rejection of such a proposal by the HDB, the court cited Panalpina;

‘If there was one principal use contemplated by the lessee, known to the lessor, and one that played a large part in fixing rental value, a governmental prohibition or prevention of that use has been held to discharge the lessee from his duty to pay the rent. It is otherwise if other substantial uses, permitted by the lease and in the contemplation of the parties, remain possible to the lessee.’80

The rental price and contract terms were affected by the assumption that Sheng Siong would be operating a supermarket, and the fact that the lessee entered the contract at all was found to be based on that assumption.81

In accepting that commercial impossibility can be a marker for frustration of a common purpose, Singapore has effectively widened the ambit of the doctrine of frustration. In doing so, a tightrope is walked. Treitel argued that “the doctrine should not be so widely applied as to undermine the sanctity of contract”,82 a sentiment quoted with approval by Andrew Phang JA of the Singaporean Court of Appeal in RDC Concrete Pte Ltd v Sato Kogyo. 83 As such, the Court of Appeal therein clarified the limits on the economic conditions that could constitute commercial impossibility. The case concerned the LTA’s rejection of concrete supplied by RDC as unfit for structural use, meaning that the buyer was forced to source concrete from elsewhere, claiming the difference in cost from the vendor.84 The claim that the LTA’s rejection of the concrete constituted frustration was rejected, as the fulfilment of the obligation to supply concrete had not been made “impossible, [but] merely onerous,” by the LTA’s rejection.85 They looked favourably upon an interpretation invoked from Continental Grain that RDC was simply obligated to procure the concrete “by the Sheng Siong, [71] Sheng Siong, [57] 80 Panalpina, 703 81 Sheng Siong, [77] 82 G. H Treitel, Frustration And Force Majeure (Sweet and Maxwell 1994), 12-001 83 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd. [2007] 4 SLR (R) 413, [55] 84 RDC Concrete, [4] - [10] 85 RDC Concrete, [80] 78 79

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Singapore Comparative Law Review exercise of any means reasonably open to it”.86 Simply put, the failure of one party’s contemplated source did not frustrate the contract.87 This is in line with English law, where the obligation to supply goods is often a personal one, with the buyer unconcerned as to the ultimate source. 88 The Court of Appeal later re-affirmed that “a mere increase in price is generally insufficient (in itself) to constitute a ‘hindrance’ or ‘prevention’”.89 However, the court also recognised (in obiter) that an “astronomical increase in price” could constitute frustration. This is in line with Lim Kim Som where the fact that the buyer would be forced to sell for one-fifth of what he had paid shortly after the purchase entered into force was held as a factor in the court’s verdict.90

The Singaporean approach to a commonly-contemplated source also differs from English law. In Alliance Concrete Singapore Pte. Ltd. v Sato Kogyo,91 the supply of Indonesian sand for use in concrete mixing was halted due to an export ban by the Indonesian government.92 This led to the suppliers of concrete losing access to their usual source of sand, and their inability to fulfil their contractual obligations in the manner that was envisioned. It was known that Indonesian sand was the only practical source of sand, especially for the type of concrete required for the project. 93 There were also concerns with delays in delivery due to regulatory requirements for testing new mixes. 94 For these reasons, as well as the consideration of the true construction of the contract, in which the use of Indonesian sand was seen as a mutually contemplated implied term,95 the Court of Appeal ruled that the contract had been frustrated. Alliance Concrete is thus distinguished from RDC Concrete as a specific source was contemplated in the former but not the latter, and performance was considered practically-impossible in the former case due to the above issues.

Alliance Concrete contrasts the Singaporean and English approaches to frustration due to failure of a commonly-contemplated source. While English courts will uphold a contract if fulfilment of obligations is legally, but not practically, possible, 96 a Singaporean court will likely hold that a contract is frustrated where fulfilment of obligations is practically-impossible. In addition, English

Continental Grain Export Corporation v STM Grain Ltd [1979] 2 Lloyd’s Rep 460, 473 Alliance Concrete Singapore Pte. Ltd. v Sato Kogyo Pte. Ltd. [2014] SGCA 35, [52] 88 The Mary Nour, [23] - [24] 89 Holcim (Singapore) Pte Ltd v Precise Development Pte Ltd [2011] SGCA 1, [53] 90 Lim Kim Som, [45] 91 Alliance Concrete Singapore Pte. Ltd. v Sato Kogyo Pte. Ltd. [2014] SGCA 35 92 Alliance Concrete, [5] 93 Alliance Concrete, [72] - [77] 94 Alliance Concrete, [76] - [79] 95 Alliance Concrete, [81] 96 The Super Servant Two [1990] 1 Lloyd’s Rep 1 86 87

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Singapore Comparative Law Review law does not view the failure of a commonly-contemplated source as sufficient to frustrate a contract, 97 whereas Alliance Concrete held that such a failure may constitute frustration under Singapore law.

Singaporean courts have also shown a willingness to accept commercial arguments towards frustration, interpreting the doctrine not from the impossibility of performing obligations, but from the impossibility of achieving the common purpose of the contract.98 Additionally, while they accept that the contract’s performance becoming more expensive or onerous for one party does not constitute frustration,99 they may be sympathetic in the event that a massive change in price is observed, as that would also render the contract commercially impossible to perform.100 101 These extensions of the law are precisely what differentiates Singaporean law from English law on this subject. The concept of non haec in foedera veni, while derived from English law, has been extended to situations where the performance of contractual obligations has not been made impossible, but the achievement of a commonly contemplated end has been made impossible, 102 most obviously in lease agreements.

C: The Impact of COVID-19 The COVID-19 virus, by its very nature, has forced us to reconsider the manner in which we interact with the world, and raises several questions of law.

The first issue is with leases. As illustrated by moratoriums put on leases by various governments all over the world,103 it is understood that, purely as a result of the economic tribulations of the pandemic, many leases would be unserviceable for the lessees.104 However, these moratoriums may be unclear as to the existence or extent of parties’ continuing obligations under leases. Per Canary

The Mary Nour, [3] - [4] Sheng Siong, [76] 99 RDC Concrete, [80] 100 ibid 101 Lim Kim Som, [45] 102 ibid 103 Examples of legislation enacting such moratoriums include the COVID-19 (Temporary Measures) Act 2020 in Singapore and Coronavirus Act 2020 in the United Kingdom.

104 Whitney Airgood-Obrycki, Ben Demers, Solomon Greene, Chris Herbert, Alexander Hermann, David Luberoff, Sophia Wedeen, “Renters’ Responses to Financial Stress During the Pandemic” (2021) Jchs.harvard.edu. <https://www.jchs.harvard.edu/research-areas/working-papers/renters-responses-financial-stress-duringpandemic> [Accessed 25 June 2022].

97 98

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Singapore Comparative Law Review Wharf, though leases can certainly be frustrated,105 the primary obligation will usually be nothing more than the letting and hiring of the premises, which COVID regulations prima facie leave intact.106 However, in Singapore law, it is possible for a lease to be considered frustrated if it can be established that the lease was entered into for an express purpose that was made impossible. 107 We also note that the English authorities do not explicitly contradict this position.

The second issue is of the commercial considerations in play. Though lessors and lessees may collaborate towards a certain end, that does not necessarily mean that there is a “common purpose” per se. While COVID-19 may have devastated the business aspirations of lessees operating businesses, a lessor’s intention or purpose may be nothing more than the collection of rent, largely without reference or preference for how the lessee utilises the premises, as seen in English law.

The courts will thus have to consider the contrasting interests of lessors and lessees, and the impact on businesses from recognising or rejecting frustration due to COVID.

(1) Cases decided since the Pandemic With the understanding of how English and Singaporean courts have ruled on claims of frustration in the past, and of the issues raised by COVID, we will now address cases that have already been decided.108 Most of these are first-instance cases, and generally follow the trends set out above.

Salam Air SAOC v Latam Airlines109 and Wilmington Trust v Spicejet110 both involved the lease of aircraft, and claims of frustration due to various nations’ COVID regulations. Both contracts were “dry leases”, where the lessors undertook almost no obligations other than ensuring quiet possession, and the lessees assumed the commercial risks.111 In neither case was the length of time that the contracts were impeded recognised as being long enough to constitute frustration. 112 Further, Foxton J in Salam Air held that even where the lessor knew of the lessee’s purpose for leasing property, that did not mean that that purpose was the foundation of the contract. 113 Though COVID regulations might cut into profits, or impede the lessee’s intended usage of the

Panalpina, 688-689 Canary Wharf, [159] 107 Sheng Siong, [79] 108 We note that there have been several cases with similar factual backgrounds, where frustration was not pleaded; see Commerz Real Investmentgesellschaft mbh v TFS Stores Limited [2021] EWHC 863 (Ch) 109 Salam Air SAOC v Latam Airlines Groups SA [2020] EWHC 2414 110 Wilmington Trust SP Services (Dublin) Ltd v. Spicejet Ltd [2021] EWHC 1117 111 Salam Air, [48] 112 Spicejet, [64] - [65], Salam Air, [55] 113 Salam Air, [47] - [50] 105 106

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Singapore Comparative Law Review property, they did not frustrate the contract, especially because the contractual obligation to pay rent was not impeded.114 Bank of New York Mellon v Cine-UK Ltd concerned the lease of a commercial premises.115 Aside from rejecting the idea that “temporary frustration” exists in English law, 116 the case was decided similarly to Canary Wharf, that supposed supervening illegality of the commercial purpose behind the contract does not suspend or terminate the obligation to pay rent.117 At time of writing, Singaporean courts have only addressed COVID-19 and frustration in two cases. The first is Dathena Science v Justco which concerned the lease of an office building. The second is Lachman’s Emporium v Kang,118 which concerned the lease of premises to be used as a karaoke lounge. In Dathena Science, the contract in question was frustrated due to a four-month delay caused

by COVID-19 regulations, and the lessor’s inability to provide alternative premises.119 In Lachman’s, the imposition of COVID-19 regulations that prevented the operation of the premises as a KTV was identified as the potential frustrating factor.120 It is noted that Lachman’s involved an application for summary judgement rather than a full decision, and that Choo J held that there was a bona fide defence of frustration of shared purpose, rather than that the contract was actually frustrated.121 Nonetheless, the decision is instructive as to how Singaporean courts will rule on such issues.

Taking cues from the Singaporean approach in Alliance Concrete and Sheng Siong, it would appear that there was a strong case for frustration in Lachman’s. In both Alliance Concrete and Sheng Siong, there was found to be a common purpose which had been frustrated by supervening events. 122 123 In Lachman’s, since all other purposes were excluded in the contract,124 it can be safely presumed,

Salam Air, [52] - [54] Bank of New York Mellon (International) Ltd v. Cine-UK Ltd [2021] EWHC 1013; The authors note that at time of writing, an appeal is pending.

116 Cine-UK, [211] 117 Cine-UK, [213] - [218] 118 Lachman’s Emporium Pte. Ltd. v Kang Tien Kuan [2022] SGHC 19 119 Dathena Science Pte Ltd v Justco (Singapore) Pte Ltd [2021] SGHC 219, [186] - [187] 120 Lachman’s Emporium Pte Ltd v Kang Tien Kuan [2022] SGHC(A) 13, [11] 121 Lachman’s (n 117), [13] 122 Sheng Siong, [71] 123 Alliance Concrete, [81] 124 Lachman (n 117), [5] 114 115

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Singapore Comparative Law Review similar to Sheng Siong,125 that the lessee’s entry into the contract was based on the sole intent to operate a KTV on the premises.

While Dathena Science can be held as a clear-cut case of frustration given that the leased premises could not be delivered in the contractually-agreed condition, 126 the premises in Lachman’s was clearly “fit for rental”.127 However, the contract had excluded the usage of the premises for other purposes. That the defendant could have converted the business and otherwise fulfil his lease payment obligations was thus irrelevant.128 It should also be noted that the leases in these two cases were each for two years only, much shorter than those in the English cases cited above.129 130

D. The Next Steps From cases in which COVID-19 or resultant regulations have been pleaded as frustrating a contract, English and Singaporean courts have followed the trends from earlier cases. Given the different methods likely to be adopted by English and Singaporean courts, cases in different jurisdictions will have differing commercial outcomes. A lessor is more likely to have an action for unpaid rent succeed in an English court than a Singaporean one. Conversely, a business owner is more likely to be granted relief for difficulties following from COVID-19 in Singaporean courts than in an English court.

Singaporean courts will likely follow the decisions in Alliance Concrete and Sheng Siong, in that when a specific common purpose can be identified in the construction of a contract (as it was in Lachman’s), the courts are entitled to consider a contract frustrated based on the frustration of that purpose alone. In contrast, English courts will likely follow the decision in Canary Wharf, that “for supervening illegality to frustrate, it must remove all or substantially all of the benefit that one party receives from the contract”.131 The doctrine of frustration is likely to be kept as narrow as before, being reserved for rare cases where performance is totally impossible. In most cases, the lessee is unlikely to be relieved from his obligations.

Sheng Siong, [77] Dathena Science, [13] 127 Lachman’s (n 117), [10] 128 Lachman’s (n 117), [5] 129 Lachman’s (n 117), [1] 130 Dathena Science, [6] 131 Canary Wharf, [195] 125 126

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Singapore Comparative Law Review Lachman’s presents a type of clause that does not appear in Canary Wharf or Schlesinger, or even Salam Air and Spicejet. The building cases did not exclude other usage or benefit to lessee (unlike in Lachman’s), and in the aircraft cases there was no common purpose between parties to the exclusion of all others (also unlike in Lachman’s). As such, Lachman’s presents a different problem with no clear answer on how courts should proceed.

It is undisputed that the doctrine of frustration is one rooted in justice.132 But justice in the doctrine of frustration will unfortunately not come from bright-line rules and rigid dogmatism. As such, we submit that a multi-factorial analysis, as applied in the English Court of Appeal and New Zealand Supreme Court,133 134 should continue to be used in determining whether a contract is frustrated.

On this issue, we respectfully depart from Professor Rex Adhar and Andrew Phang JA.135 136 Tests such as non haec in foedera veni or “fundamentally different” are clear, workable, and memorable,137 and the existing Singaporean cases are easily-explicable and defendable. Either the premises in question was not delivered or deliverable, 138 or the parties had excluded all other possible uses in the contract. 139 Such cases make it easy to say that the obligations were “fundamentally different” than those contracted for, and make bright-line rules more attractive.

But we note, as Lord Hailsham did, that whether a supervening event is a frustrating event is often a question of degree.140 In most cases where leases appear frustrated due to COVID and resultant regulations, the premises will still be intact, existent, and at least theoretically “fit for rental”, as it was in Lachman’s. Contracting parties do not always exclude all other uses of a premises in a contract, and not all leases will be as short as those in Dathena Science or Lachman’s. In such cases, a bright-line rule may not always be the optimal solution.

As for Professor Adhar and Phang JA’s concerns that a multi-factorial or discretionary approach will force the courts to consider “an indeterminate number of considerations of uncertain weight”,141 we would also note that courts are used to dealing with questions of fact that require

The Sea Angel, [112] The Sea Angel, [111] 134 Planet Kids Ltd v Auckland Council [2013] NZSC 147, [60] 135 Rex Adhar, “Frustration of Contract in the New Zealand Supreme Court” (2014) 42 Australian Business Law Review 249 136 Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd [2008] SGCA 8, [64] - [65] 137 Burrows (n 18) 777 138 Dathena Science, [12] - [13], [186] - [188] 139 Lachman’s (n 116), [5] 140 Panalpina, 688 141 Adhar (n 134) 132 133

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Singapore Comparative Law Review the weighing of “an indeterminate number of considerations”, such as whether there is a duty of care in tort,142 or whether a misrepresentation “induced” a party to enter into a contract.143 Though a multi-factorial approach may engender uncertainty,144 and what is required for the demands of justice to be satisfied will vary, we suggest that such an approach can be successfully-used, with two general considerations that the courts should account for that would lead to more just outcomes.

(1) Role of force majeure clauses The first consideration is the primary role of force majeure clauses in governing contractual obligations after COVID, especially given that such clauses may exclude the doctrine of frustration, and set out avenues to proceed that parties had agreed-upon.145 In most cases, a suitably-drafted force majeure clause will set out each parties’ obligations in the event of unforeseen circumstances, in a way that the parties will have objectively and subjectively agreed to.146 If the matter had been addressed “on the true construction of the terms”, the terms will apply.147 As for contracts where there is no such clause, or a scenario is not covered, although an argument could be made that it might be more just from a loss-apportionment perspective to have parties share losses than have one party bear all losses on account of both parties’ innocence,148 we submit that where parties have failed, or refused, to allocate risk, it may be more just to allow the loss to lie where it falls than have the courts re-allocate them. The doctrine of frustration should not be used as a tool for parties to escape a bad bargain, especially where parties have the option to regulate their rights and obligations.149 (2) Common intention of the parties The second consideration is that parties rarely have a true “common intention”, even though they may cooperate on a certain venture or direction. In most cases, the lessor’s intention is to profit from the letting of the premises, and the lessee’s business model or commercial intentions are their

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 Hayward v Zurich Insurance [2016] UKSC 48, [29] 144 Adhar (n 134) 145 RDC Concrete, [60] - [62] 146 Ewan McKendrick: Force Majeure Clauses in Burrows and Peel, eds, Contract Terms [2007], 240-243 147 Davis, 720 148 Ewan McKendrick, Frustration, Restitution, and Loss Apportionment in Burrows ed, Essays on the Law of Restitution [1991], 168-170 149 McKendrick, Force Majeure Clauses, 238-239 142 143

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Singapore Comparative Law Review concern alone.150 As such, we submit that a lessor’s knowledge of a lessee’s business model or requirements, as in Dathena Science,151 should only be relevant in rare cases, such as where the lessee has incorporated those requirements into the contract.

Similarly, we submit that even where a lessor may assist a lessee in reaching their commercial aims, such as through modifying a premises, that does not necessarily mean that the parties have a common commercial intention.152 In such cases, the lessor is simply working towards making his or her property more attractive to the lessor, rather than the lessor and lessee having a common commercial intention per se. Even where parties have specified the purpose for which a premises is to be used, obstruction of this purpose should not necessarily constitute frustration, so long as the lessee could derive some other benefit. 153 Rather, frustration should only be found where parties have excluded all other avenues (which would signal that the venture specified in the contract was the exact one that the parties intended to undertake), and not simply where there is a more general common intention to do business. We submit that this is consistent with the approach of Romer LJ’s judgement in Krell, that in most cases, what appears to be the parties’ common intention is merely relevant to one party alone.

A similar consideration, as mentioned above, is that a narrow view of “common intention” should be adopted for policy and commercial reasons. Adopting a wide definition of “common intention” similar to Dathena Science, based on a party’s knowledge of the other’s business needs,154 would have significant downstream effects where all businesses prevented from accessing a leased premise could claim that their common purpose of entering into lease agreements had been made impossible, given that access to a premises is an almost-universal business need, and therefore plead frustration. We submit that this would not only lead to uncertainty, but also have catastrophic effects on the wider economy if all leases where tenants were affected by COVID-19, ostensibly covering most leases, were to be considered terminated circa 2020. In addition, we submit that it would not be “positively unjust” to enforce a contract in most cases, 155 and that recognising frustration where there is no true common purpose would be akin to allowing lessors to escape a bad bargain. We submit that it is commercially-necessary to give effect to commercial certainty,

Salam Air, [49] - [51] Dathena Science, [159] 152 Canary Wharf, [56] - [61], [217] - [220] 153 Canary Wharf, [92], [196] - [200] 154 Dathena Science, [159] 155 The Eugenia [1964] 2 QB 226, 239 150 151

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Singapore Comparative Law Review holding that the obligations under most leases (save those where all other uses have been excluded, as in Lachman’s) are still in force.

CONCLUSION In this article, we have set out the doctrine of frustration in English and Singaporean law, and the differences between the jurisdictions’ approaches. Though the basis and background of the doctrine of frustration are similar, there is some disparity between Singaporean and English law on what constitutes a common purpose, and whether a contract can be frustrated where the obligations are technically possible but commercially unviable. This difference primarily surfaces in lease agreements. English courts seldom find common intention besides the simple transaction of letting and hiring, even when there is evidence that a commercial intention has been contemplated and provided for.156 Singaporean courts find that additional common intentions can be found in a true construction of the agreements and the frustration of such an intention can frustrate the contract as a whole.157 Though we will not come to a conclusion on whether either jurisdiction is right or wrong, we would suggest that the doctrine of frustration should remain narrow. Frustration is the “special exception which justice demands” to the sanctity of contract.158 In that light, the Singaporean approach risks establishing frustration as an easily-invoked remedy to commercial failures, especially in the realm of leases affected by COVID regulations. We submit that obligations in cases of “failure of the adventure” in a commercial sense should primarily be governed by force majeure clauses that show parties’ objective and subjective consensus on how to proceed, as opposed to having the courts use a traditionally-narrow doctrine to re-allocate risk. In addition, broadening the scope of the doctrine in this way would have wide-ranging commercial ramifications and cause not-insignificant disruption.

We submit that a contract should only be considered frustrated due to the failure of a commonlycontemplated commercial intention where it is an essential part of the deal, as evidenced for example, through excluding all other possible uses of a premises, regardless of whether said deal is made in Canary Wharf or Marina Bay.

Canary Wharf, [159] Lim Kim Som, [32], [45] 158 Hirji Muli, 510 156 157

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A Tale of Two Common Law Systems: Robinson and Spandeck Comparing the ‘test’ for duties of care in Singapore and England Ryan Lee and Nickolaus Ng

INTRODUCTION Reduced to its barest essentials, tort law triggers the transfer of resources from one party to another in response to wrongdoing by the first.1 However, there are differences between theories as to what should be the aim of these transfers. Economic theories see tort primarily as a way of promoting economic efficiency, by reducing the cost of accidents to society. The threat of tort liability incentivises people not to take unnecessary risks that would generate accidents. 2 On the other hand, we have the view of tort as rights. These theories emphasise the rights people possess, and that tort law should function to protect and vindicate these rights.3 A specific subset of tort law is negligence. For practical reasons, legal systems must develop a means of determining when liability for one’s negligent acts can be imposed. This is the ‘test’ by which duties of care can be determined. The precise method by which the duties of care are determined inevitably reflects a legal system’s conception of tort law, whether it be economic efficiency or rights protection. Which of these approaches is selected by a legal system would profoundly alter the shape of its tort law.

In this article, we shall compare the English and Singaporean approaches to determining the duty of care in negligence through a close analysis of leading cases on the duty of care in their respective jurisdictions. Singapore’s Spandeck Engineering (S) Pte Ltd v Defence Science and Technology Agency (DSTA) 4

in which the court advocated a two-step test for determining duties of care, and England’s

Robinson v CC West Yorkshire5, where incremental development was preferred, and the desirability of

a

test

was

categorically

denied

Ernest Weinrib, The Idea of Private Law (Revised edn, OUP, 2012) 56 Stephen Perry, ‘Torts, Rights and Risk’ in John Oberdek ed , Philosophical foundations of the Law of Torts, (Paperback edn, OUP, 2014) 41 3 Weinrib (n 1), 136 4 [2007] SGCA 37, [2007] 1 SLR(R) 720 (“Spandeck”) 5 [2018] UKSC 4, [2018] AC 736 (“Robinson”) 1 2

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Singapore Comparative Law Review A. The Singaporean Approach: Spandeck In this case, the tortfeasor was a statutory board, DSTA, who wanted to build an army base. DSTA submitted a base tender, which was inaccurate. Spandeck Engineering, the claimant, submitted the contract based on this inaccurate base tender. Because of the inaccuracy, the costs of contracting turned out to be greater than expected. Spandeck wanted to revise the contract, but in the meantime, the contract was awarded to a new party. Spandeck attempted to sue in negligence (this is possible because recovery of pure economic loss is permitted as a matter of course in Singaporean law). The court held that DSTA did not owe a duty of care to Spandeck. Thus, their claim failed.

In Spandeck, the court proposed two approaches for determining novel duty situations: either incrementally – through analogy with preceding cases, or by application of a test, to determine the duty de novo. In Spandeck, the courts came down heavily on the side of a test. The test approach was critically contrasted with incrementalism. With an incremental approach, duties of care would be created on a case-by-case basis,6 though precedent. Instead of having one unified duty of care, the court felt this would create a highly fragmented tort law, an undesirable result. Incrementalism is also declared to be an empty term, for the very nature of the common law is that it is incremental.7 Broad principles, as embodied in the test approach also have the advantage of being able to provide answers when the common law is silent.8 The test approach espoused by Spandeck has two stages: Proximity and policy, with a preliminary requirement of factual foreseeability.9 This two-stage test is to be applied in novel duty of care situations.10 When the test is deployed, the test is also to be used incrementally by observing how judges in previous, analogous cases applied it.

“We would add that this test is to be applied incrementally, in the sense that when applying the test in each stage, it would be desirable to refer to decided cases in analogous situations to see how the courts have reached their conclusions in terms of proximity and/or policy.

As is obvious, the existence of analogous precedents, which determines the current limits

Spandeck (n 4), [43] Ibid [35] 8 Ibid [43] 9 Ibid [73] 10 Ibid [73] 6 7

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Singapore Comparative Law Review of liability, would make it easier for the later court to determine whether or not to extend its limits”.11 All in all, the Spandeck test channels incrementalism into neatly defined streams of policy and proximity: indeed, this neatness is explicitly stated in Ngiam,12 where the requirement of proximity was characterised as legal policy, whereas the second limb embodied public or social policy. In Spandeck, the court subscribes to an extremely economic conception of tort law. The court tells us that tort law should cause the fair distribution of wealth from tortfeasor to victim, 13 and more generally increase national welfare.14 When discussing policy factors in the second stage of the Spandeck test, one of the factors mentioned is the presence of a pre-existing contractual relationship between the parties.15 A final theme of the Spandeck test is its universality. The court hoped to create a test that would apply to all negligence law, thereby making it one united whole in contrast to the fragmented state English law was in.16 Later judges carried this out, applying the test to cases of psychiatric harm, 17 occupiers’ liability,18 as well as refining its various limbs. However, whether this universality occurs, or indeed, is a desirable thing– is another matter.

B. The New English Approach: Robinson In this case, the tortfeasor was a police force in the United Kingdom. They wished to arrest a drug dealer. They waited till the dealer arrived at a shopping mall. To arrest him, the police officers jumped onto him. In the process of doing so, an elderly passer-by, Ms. Robinson was knocked down, and badly injured. The court held that the police force owed a duty of care to Ms Robinson and was liable for the injury done to Ms. Robinson.

In deciding this duty of care, the court rejected the use of any test, and favoured incrementalism.

This radical rejection of the test is best understood as a reaction against the inappropriate use of

Ibid [73] (emphasis added) Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 [43]-[44] (“Ngiam”) 13 Spandeck (n 4), at [29] and [49] 14 Ibid [85] 15 Ibid [83] 16 Ibid [49] 17 Ngiam (n 12) 18 See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2013] SGCA 29, [2013] 3 SLR 284 (“Ho Ah Lam”); Singapore Rifle Association v Singapore Shooting Association [2018] SGCA 42, [2018] 2 SLR 616 11 12

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Singapore Comparative Law Review the previous leading case, Caparo v Dickman (“Caparo”)19 as a test for determining duties of care.

Ironically, Caparo called for incrementalism in tort law, criticising the Anns case which advocated a test approach. Lord Bridge stated the “inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed”.20 To aid judges in determining whether each subsequent case was a suitable increment, Lord Bridge set forth three factors to aid in the decision: foreseeability of the damage, proximity between the parties, and whether it is fair, just, and reasonable to impose the duty.21 In time, these factors became treated as parts of a “test” that were used to independently determine whether a duty of care should or should not be imposed, regardless of precedent.

The effect of this misinterpretation of Caparo was twofold. First, the test was too broad. Courts felt they could simply ignore precedent and use the “test” directly in deciding duty of care.

Furthermore, the wide discretion afforded by the ‘fair, just and reasonable’ stage offered them a wide discretion to deny imposing a duty of care, causing the law to develop in unprincipled directions. 22 Secondly, the ‘test’ gave undue significance on policy grounds. Because policy grounds alone could negate a duty of care, this “encouraged litigants to reach for more or less any policy argument that weighed in favour of, or against the existence of denial of the duty of care”. 23 Public bodies exploited this line of argument fully.24 They claimed that imposing tort liability on them would divert their resources towards litigation, rather than performing their public function, and hence going against liability.25 Nevertheless, doubts about this use of the Caparo formula persisted. In Michael v CC of South Wales,26 Lord Toulson reiterated that Caparo’s factors were intended to be “little more than labels to attach to features of situations which the law recognised as giving rise to a duty of care.”27 They came to a head in Robinson, where rejection of any form of test is apparent. Lord Keith expressed scepticism that a general test even existed.28 Lord Reed added “the existence of a duty of care does Caparo v Dickman [1990] 2 AC 605 (“Caparo”) Ibid 618 21 Ibid 618-619 22 James Goudkamp and Donal Nolan, Winfield & Jolowicz, (20th edn, Sweet and Maxwell, 2020) [5-025] 23 Ibid [5-024] 24X v Bedfordshire CC 1995] 2 AC 633; Hill v CC of West Yorkshire [1989] AC 53 25 Hill v CC of West Yorkshire [1989] AC 53, 63-64 26 [2015] UKSC 2 27 ibid [106] 28 Robinson (n 5), [24] 19 20

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Singapore Comparative Law Review not depend on the application of a “Caparo test” to the facts of the particular case.”29 Rather, the approach Robinson advocated for was bare incrementalism, unconstrained by any test: “In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.” 30 In other words, the court must reason by analogy with previous cases; rather than restricting themselves with ‘policy’ and ‘proximity’ they must engage in a general inquiry to determine if the duty should be imposed. More importantly, the fact that imposing the duty would have negative policy impacts by itself does not negate its imposition. This is in contrast to Spandeck (and indeed, under Anns and the Caparo test) where the presence of a negative policy factor denies the duty’s imposition.

The incremental approach espoused by Robinson was decried in Spandeck as causing an unacceptable fragmentation of the duty of care. The court in Robinson did not address this problem, or for that matter felt it was a problem at all. The English case law around psychiatric harm, occupiers’ liability or pure economic loss (PEL) remain untouched by the new Robinson approach, and remain distinct bodies of case-law. This is in contrast with the situation in Singapore, where, as we shall see, there has been a concerted attempt to draw in these disparate areas under the Spandeck umbrella. In Robinson, incrementalism solved a bigger problem than lack of doctrinal coherence: removing the excessive formalism which prevailed under Caparo.

That said, the court found the police force owed a duty of care to Ms. Robinson. That duty being breached, the police force was found liable in negligence. Subsequent jurisprudence in England about the case has only served to confirm the new approach. Cases like Darnley v Croydon NHS Trust31- whose previous iterations utilised Hill-like arguments, were similarly dismissed before the supreme court using the Robinson approach.

Ibid [30] Ibid [29] 31 [2018] UKSC 50 (“Darnley”) 29 30

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C. Preliminary Comparison: The Divergence in Approaches Between Spandeck and

Robinson in Context To start, it is worth noting that Spandeck is a legal transplant: the acceptance of the Anns test in a Singaporean context. The success of Anns might be partially because the proprietary aspects of Anns were already accepted as part of Singaporean property law.32 Coupled with the perceived redundancy of the third step of Caparo, this allowed the Anns approach to dominate. However, the court modified the Anns approach, The difference between Spandeck and Anns was studied by Goh. 33 Both approaches are ‘universal’ but in different senses. An approach that partakes of broad universality claims to be an independent and exhaustive test that can be used to decide cases without precedents; for example the misused Caparo test in England, and indeed, Anns itself.34 With narrow universality, the same framework for deciding factual situations applies, even though the considerations operating within the framework are not universally applicable.35 As we will see later, the Spandeck test falls under this approach.

Again, Spandeck and Robinson both agree that precedent should form the basis of the everyday operation of negligence law. Where they disagree is what happens when precedent is silent.

Spandeck advocates the use of a test – a set of general principles – to determine if imposing a duty of care is proper. By contrast, in Robinson, the judge does not use a test, but rather must draw analogies with previous cases, and more importantly exercise their own judgement,36 to determine the propriety of imposing the duty of care.

As much as both cases involve the tort of government bodies, both the nature of the tort, and the nature of the injury are very different. This is reflected in the way the two cases are structured, as well as their contents. In Spandeck the damaged party voluntarily entered into the contractual agreement and could sue in contract had its claim in tort failed. In such an economic context, it is no surprise that the image of tort law it presents is ultimately based on economic efficiency. The test approach upheld in Spandeck can be compared to a scale, which weighs up the costs and benefits to society for imposing a tortious duty – a fundamentally economic mode of analysis. The discussion of the policy limb of the test was geared primarily to economic aspects of policy; and RSP Architects, Planners & Engineers v Ocean Front Pte Ltd [1995] SGCA 79, [1995] 3 SLR (R) 653 Yihan, ‘The Promise of Universality: The Spandeck Formulation Half a Decade on’ (2013) 25 SAcLJ 510 34 ibid [6] 35 ibid [4] 36 Robinson (n 5), [27] 32

33Goh

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Singapore Comparative Law Review only later Singaporean cases addressed questions of social policy – and indeed, the question of social policy has never been discussed in Singapore in the form it has been in England.

On the other hand, in Robinson, the damaged party was a mere passer-by, and did not at all voluntarily enter the relationship. The conflict between contract and tort that was so prominent in Spandeck simply does not exist within Robinson, and consequently, the vindication of bodily autonomy comes to the fore; the court sees this, above all as a quest for justice, to recompense an injury.37 This perspective is even more strongly seen in a case decided shortly after Robinson – the case of Darnley. Here, the defendant hospital’s attempt to deny imposition of a duty of care on policy grounds was dismissed.38 The new Robinson approach thus allows judges to engage in more open-ended inquiry about what it perceives to be fair. However, economic policy arguments– so maligned by Caparo – nonetheless may find a resurgence in the future, as counsel may (hopefully) apply them to more appropriate cases.

However, as much as these factors explain the divergences between the cases, they do not show why Singapore persists in using a test, despite the problems that may arise from the test. It is submitted that Singapore can safely adopt the test approach because of the unique nature of tort law in Singapore: a focus on economic aspects of tort, as well as the reduced role of policy arguments. Combined, these factors allow the test approach to finding duties of care to be used without danger.

D. Economic Efficiency and Rights Protection – Divergence Between the English and Singaporean Approaches to Tort Law There are two major theories of tort: Economic-instrumentalist theories and rights-based theories. 39 Economic theories hold that tort should aim to minimise the costs or extent of accidents. Tort law is able to do this, because imposing liability on people who take excessive risks deters them from taking such risks.40 Thus accidents are less likely to occur, and society as a whole benefit from this reduced likelihood of accidents. Those who support this view argue that

ibid [27] Darnley (n 31), [22] 39 Perry (n 2), 38 40 William Landes and Richard Posner, ‘The Positive Economic Theory of Tort Law’ (1981) 15 Georgia LR 851, 854 37 38

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Singapore Comparative Law Review distributive justice – the distribution of resources based on the harm that victims suffer41 - should be prioritised in tort law. This process thus produces wealth maximisation and economic efficiency for society at large.42 By contrast, rights-based theories conceive of tort law as a means of protecting rights that individuals possess,43 and redressing whatever harm the tortfeasor generated by interfering with said rights.44 The form of justice so espoused here is corrective justice – righting wrongs individuals do to each other. Proponents of such theories usually hold that social policy should not be involved in the enforcement of rights, and that corrective justice is an end to itself.45 This contrasts with the economic theories of tort, which are instrumentalist: 46 To the economic theorist, an award of damages is not an end to itself, but rather merely a means to promote economic efficiency across society. By contrast, rights-based theories hold that the rights upheld by the law of torts are, to an extent, demanded by morality, rather than mere economic efficiency – such as the rights to bodily integrity and property47 and that imposing damage on tortfeasors is a means by which these rights are acknowledged,48 and harm done to those rights is repaired.49 Spandeck clearly espouses the economic theory of tort. Negligence law is stated to be a useful tool “ for the redistribution of economic wealth fairly between tortfeasors and their victims”. 50 This viewpoint was continued in subsequent cases, like Ho Ah Lam.51 In this case the court justified subsuming occupiers liability under the general law of negligence due to pragmatic and economic reasons: the high population density of Singapore means that the property occupier becomes the person that is in the best position to prevent accidents at the lowest cost to society as a whole, thus maintaining the comprehensive protections of occupiers at English law is unwarranted. 52 From this we can see how Singaporean courts have preferred utilising economic efficiency arguments over rights-based arguments in discussing duties of care.

Weinrib (n 1), at 62 Richard Posner, ‘Wealth Maximisation and Tort Law: A Philosophical Inquiry” in David Owen (ed), Philosophical Foundations of Tort Law (1st Reprint, OUP, 2001) at 99 43 Weinrib (n 1), 134 44 ibid, at 136 45 Robert Stevens, Torts and Rights (1st edn., OUP, 2007) at 333 46 Perry (n 2), 41 47 Stevens (n 45), 332 48 Weinrib (n 1), 134 49 Ibid 135 50 Spandeck (n 4), [29] 51 Ho Ah Lam [2013] SGCA 29, [2013] 3 SLR 284 52 Ibid [96] 41 42

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Singapore Comparative Law Review Robinson’s conception of tort law can be examined by looking at the facts of the case itself. As mentioned above, Ms. Robinson was injured in the course of an arrest by police. By suing the police, Ms. Robinson asserts a Hohfeldian claim-right:53 The police have a duty not to injure her in the process of carrying out an arrest. Furthermore, by asserting the right against the police she wishes to have that right vindicated – as an interview with her proves.54 When the court ultimately held in her favour, it stated that judges should “decide whether the existence of a duty of care would be just and reasonable.”55 There is no mention of ‘economic efficiency’ in this case. Indeed, the line of cases following from Robinson has shown that rights can be asserted in the face of whatever arguments of economic efficiency– distributive justice– that may be made against them.

Returning to Darnley, the claimant’s claim prevailed over an NHS hospital’s objections that imposing such a liability would add to the running cost of the hospital.

The differing purpose of tort law in Singaporean and English legal culture, is reflected in the approach used by each legal system to determine whether a duty of care exists. The instrumentalisteconomic view in Singapore favours the development of the test approach while the rights protection view in England provides for the development of incrementalism. Singaporean tort law is heavily economic in nature. Unlike England, PEL is recoverable as a matter of course in Singapore. Indeed, this subject is heavily litigated. Goh, writing in 2013, noted that in the five years after Spandeck was decided, the Court of Appeal handled 21 cases on the duty of care. Of these, twelve concerned economic loss.56 Thus, on a purely pragmatic level, there will be an emphasis on economic loss in Singaporean negligence law– something that would doubtless model the law after its image.

The unique nature of PEL also encourages the development of a test. A major risk of recovery of PEL for negligence is indeterminate liability for an indeterminate number of people. Fear of this is what traditionally constrained English law’s recovery of PEL. The court was also very aware of this danger in Spandeck. The judges stated ‘indeterminate liability’ as one factor weighing against the duty of care.57 In turn, the judges in Spandeck were well alive to the problems of policy, warning of how it may create arbitrary decisions,58 and that policy factors must be carefully separated from Jason Varuhas, ‘The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages’ (2014) Oxford Journal of Legal Studies, Vol. 34, No. 2, pp. 253–293, 256 54 BBC, ‘West Yorkshire Police liable for knocking over elderly woman’ (BBC News, 8 February 2018) <https://www.bbc.com/news/uk-england-leeds-42988972> (Accessed 10 August 2022) 55 Robinson (n 5), [29] 56 Goh (n 33), [21] 57 Spandeck (n 4), [73] 58 Ibid [84] 53

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Singapore Comparative Law Review proximity factors, lest the test becomes distorted. The test thus imposes a structure into negligence.

By imposing a structure, it prevents undue expansions of duty of care, and hence undue expansions of tort liability: Coupled with the admonitions of the judges to use the Spandeck test incrementally, this allows the Spandeck test to stabilise tort law, and avoid the unprincipled developments that afflicted the Caparo approach. In short, the economic emphasis of Singaporean negligence law encourages the use of a test approach due to its stabilising effect of such an approach on the development of new duties of care.

By contrast, English negligence law is notoriously reluctant to recover PEL. Hence English tort law does not need to deal with the wide-ranging policy impacts of PEL to an extent that Singaporean law has to. Thus, there is no pressing impetus to develop a general test that would create certainty in PEL cases, and in turn, no need to transform this test into one universally applicable to negligence. It is worth noting that the nature of PEL cases make them susceptible to analysis by way of test. PEL cases – like Caparo– typically involve only one kind of right– the right to property- rather than the more complex cases like Robinson which involve competing rights, such as the functioning of the police and the right to bodily integrity. Applied to such noneconomic cases the test approach rapidly becomes untenable. Thus, English courts reject the test approach and stick to incrementalism.

The flip side of the need for certainty in Singapore is the slow growth of negligence. As shown in Spandeck, Judges are obliged to follow precedent, and when there’s no precedent to follow, they must rely on the relatively restrictive Spandeck test. Contrast this with the English situation, where the judge is now free to consider solely based on precedent and their own judgement. Unlike in Singapore, The English courts can afford such flexibility because recovery for PEL is tightly constrained But Singapore’s stability also comes at a cost, for duties of care also grow slowly in Singapore. Due to this slow growth, there will be a restricted number of duties of care, and, hence, less comprehensive protections of rights for individuals. It is worth noting that the slow growth of duties of care is also in line with some economic theories of tort. Since tort and first-party insurance ultimately do the same thing – repairing harm to individuals,59 tort liability should not be imposed when there is first party insurance to cover the damage.60 Whilst no statement as

59Jane 60

Stapleton 'Tort, Insurance and Ideology' (1995) 58 Mod L Rev 820, 821 Ibid, 836

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Singapore Comparative Law Review extreme as this has been made in Singapore, Spandeck states that the presence of a contractual matrix which allows recovery, is a policy factor against tortious liability. 61 All in all, the slow development of duties of care is understandable, and indeed beneficial if negligence was solely concerned with damage arising from contracts and economic rights more generally. But at the same time, this approach would also lead to lessened protection of non-pecuniary rights, rights which are often morally mandated. Many would find this unsatisfactory.

A second effect of the Spandeck test is to make tort law grow in a largely economic direction. Given the economic nature of the damage in the cases litigated, the fairness, justice and reasonableness of imposing a duty of care under Spandeck will largely be considered from an economic perspective– i.e. what is the best outcome from a perspective of distributive justice. This develops the case law surrounding PEL torts, which would make litigating in PEL cases easier (for the Spandeck test also teaches one to look at case law unless there is no case), thus propagating an emphasis on economic torts in legal culture.

The converse is true in England: Given the diminished role in the recovery of PEL in negligence, negligence law becomes preoccupied with other forms of damage. Under these circumstances, the competition between various kinds of interest cannot be so easily balanced. For example, a simple bipartite or tripartite test would not be sufficient to resolve the balance between bodily autonomy and public function (as was the case in Robinson). By contrast, incrementalism would allow the court to take a wider range of factors, not necessarily economic ones, into play. Hence England’s rights-based legal culture propagates itself through English tort law.

E. Does Spandeck really unify negligence law?

One of the things that the judges in Spandeck promised in their rejection of incrementalism is the unification of all negligence law under one test. The first advantage of using a test is doctrinal consistency. From the outset the court in Spandeck expressed its dislike at the then current English approach, which was perceived to have created multiple distinct duties of care, creating confusion, uncertainty and increasing the cost in litigation. By promulgating a unified test which was to apply to all negligence, the court sought to avoid these things. This line has been accepted in later cases.

Some judges have gone so far as to declare Spandeck is the Singaporean tort law’s Grundnorm.62

61 62

Spandeck (n 4), [83] Ho Ah Lam (n 51), [54]

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Singapore Comparative Law Review However, it is submitted that this is not the case. The Spandeck test – or indeed, any form of test – does not unify negligence law. The Spandeck test is only apparently capable of unifying tort law only because of its flexibility. Furthermore, instead of creating simplicity, this approach has created a hidden complexity to tort law. It is hence submitted that the current English approach – incrementalism – is a far better way of managing tort law. The apparent disunity of tort law created by incrementalism creates clarity rather than confusion.

For a test to be properly called a test, there must be some consistency to the content and application of its limbs. This is not the case with Spandeck, as can be seen from how the ‘proximity’ limb is defined. Per Spandeck, proximity broadly encompasses physical, circumstantial, and relational proximity. 63 However, this broad categorisation should be made more concrete when deployed in cases, where judges should specify what is meant by proximity, 64 for example, in appropriate cases, being equated with voluntary assumption of liability and reliance.65 It was upon these two factors which Spandeck was ultimately decided.66 When it came to Ngiam’s67 case, which concerned psychiatric harm, proximity manifested in a different manner. 68 This time the court equated ‘proximity’ with the factors stated by McLoughlin,69namely a limit to the class of persons recognised, the proximity of the claimants to the accident, and finally the means by which the shock was produced. These factors are very different from the assumption of responsibility and reliance which characterised proximity in Spandeck70 even though they still fit broadly within the categories of physical, circumstantial and relational proximity. 71 To complicate matters further, the court admitted assumption of responsibility and reliance could be used in psychiatric harm cases when the facts made them relevant:72 Ultimately the relevant factors that make up proximity must depend on the factual matrix of each case.73

Spandeck (n 4), [81] ibid [80] 65 ibid [81] 66 ibid [99] - [108] 67 Ngiam (n 12) 68 David Tan ‘The Salient Features of Proximity’ [2010] Singapore Journal of Legal Studies 459-483, 461-463, which discusses this issue in great depth.

69 McLoughlin v O’Brian [1983] 1 AC 410 70 Ngiam (n 12), [123] 71 Ibid [101]-[104] 72 Ibid [100] 73 Ibid [123] 63 64

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Singapore Comparative Law Review This also happened with occupiers’ liability. In Singapore Rifle Association,74 proximity manifested in the form of the extent of the control the defendant had over the property,75 The court noted that whether an occupier possesses a duty of care is largely a fact sensitive one. Even the degree of control over property is merely one factor to be considered “in the overall assessment of whether the requirement of legal proximity is satisfied.76 Thus, the Spandeck test relies on a case-by-case analysis of factual situations, rather than application of hard and fast rules. Only the general framework– the Spandeck test – remains constant.77 Put in another way, Spandeck test’s universality is predicated on the flexibility of its limbs. In other words, rather than clarifying tort law, Spandeck merely conceals its inherent complexity.

Returning to the terminology of Goh, ‘Broad Universality’ most closely adheres to the naturallanguage meaning of a ‘test’. The Spandeck test is not of this nature, but rather narrow universality, a mere framework. It follows that the Spandeck test is not a test, but rather a broad framework to structure discussions of liability. Far from dispensing with incrementalism, the Spandeck test merely directs the incrementalist inquiry into two channels of policy and proximity. Recall that the court, in Spandeck, stated the Spandeck test was to be only used when there is no established precedent, and when the Spandeck test is used, it is to be deployed incrementally: incrementalism thus is the substance of the Spandeck test. The judges in Spandeck did not consider this odd, for to them incrementalism was how the common law worked. 78 Indeed, perhaps because of these initial admonitions to apply Spandeck incrementally, Singaporean law happily escaped the disaster in which English tort law found itself under Caparo – where the test became a charter for the courts to create or deny new duties of care de novo.

Thus, as can be seen through the experience with Caparo, broad universality is problematic to implement in practice. However, the temptation to create a test – which would massively simplify tort law if it did exist- remains. English judges were well aware of how taking the two-stage Anns test too rigidly would cause other factors that may be relevant to whether a duty of care should be imposed be ignored,79 potentially creating injustice. These warnings did nothing to avert the rigid application of Caparo – as indeed, did all the statements in Caparo itself that it was not creating a Singapore Rifle Association (n 18) Justin Tan, ‘Proximity as Reasonable Expectations’ (2019) Singapore Journal of Legal Studies 147-176, at 154 76 Singapore Rifle Association (n 18), [25] 77 Goh (n 33), [4] 78 Spandeck (n 4), [43] 79 Rowling v Caparo [1988] 1 AC 473, 501; cf also Yuen Kun Yeu v Attorney-general of Hong Kong [1988] 1 AC 175 74 75

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Singapore Comparative Law Review test. The danger with any test-like arrangement is that its stages would end up being the only factors accounted for when taking duties of care - the temptation is simply too great. If the law succumbs to this temptation, it descends into crude formalism. Happily, Singaporean judges have so far been immune to it.

In turn, the test can create its own form of complexity in the law by obliging the varied factual situations to be contorted in a way that would allow for easy analysis by the test. An example is Ho Ah Lam. This case concerned occupiers’ liability, specifically involving berthing of ships. The court understandably criticised the common law approach to occupiers’ liability, stating that it was overly complicated, and should be subsumed under the general law of negligence. However, the majority did not feel occupiers’ liability should be completely subsumed under negligence. They felt some aspects of occupiers’ liability should be preserved, most notably the division of entrances to property into licensee and trespasser. To allow this traditional distinction to be implemented through the Spandeck test, the majority judgement created the classes of “lawful entrants” and “residual entrants” to property. To the former, the occupier owes a prima facie duty of care. To residual entrants, the occupier only owes a duty of care if the criteria to the first stage of the Spandeck test was satisfied.80 The majority admitted “is not a true classificatory dichotomy logically mandated by Spandeck, but is merely a convenient (shorthand) way of applying the Spandeck test to particular facts”.81 All in all, new forms of property relationship must be created to serve the Spandeck test.

With both psychiatric injury and occupiers’ liability, Spandeck’s use as a ‘universal test’ does come at a cost: it complicates tort law. In the case of psychiatric injury, universality was only obtained by using a flexible definition of ‘proximity’. In the case of occupiers’ liability, universality was achieved by creating new factual distinctions. All in all, cases become increasingly hard to distinguish from one another. Because of this, the test becomes harder to operate because there are so many ways it can be applied – disunity concealed under the cloak of doctrinal unity. These are avoided under incrementalism. Incrementalism is after all the way the common law functions on its own; the organic development of cases from one to another. Rather than creating a large and vague universal test, clarity would be better achieved if negligence-related psychiatric harm or occupiers’ liability would be and treated as separate areas of law, with specific tests proper to the peculiarities of each type of damage.

80 81

Ho Ah Lam (n 51), [77]-[82]; Singapore Rifle Association (n 18), [23] Spandeck (n 4), [82]

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F. Evaluation On the other hand, focusing on certainty in tort law is unproductive. As argued by Oliphant, judges have spent a disproportionate amount of time on rendering tort law certain, through regulating the duty of Care.82 This is clearly the case with Spandeck, where the duty of care is regulated by way of a test, and is also the case to a lesser extent with Robinson, where the regulatory factor is common law incrementalism, confining cases to previously decided decisions. Both approaches are lacking.

With a test approach, the law has to contend with the fact that the permutations of fact are basically infinite, compared to the finite number of steps in a test. Oliphant, like the judges in Spandeck, observed that English negligence law had disintegrated “into a number of barely connected ‘pigeon holes’ or ‘pockets’ of liability”,83 with duties of care given as specific to a certain factual situation.

Thus, in practice, the test tended towards the mere description of “common elements of past cases in which a duty of care has been found to arise” rather than developing any broader principles behind the law.84 As we have seen, The Singaporean experience with the test has fared no better: where the first limb of the Spandeck test was unusually expanded to deal with psychiatric harm and occupiers’ liability.

But bare incrementalism does have its disadvantages. Incrementalism, after all, merely reproduces previous judgments, making rights dependent solely on ‘accident of birth’. 85 On the other hand, incrementalism prevents the law from developing in unprincipled directions– as can be seen in the aftermath of Caparo. Furthermore, it reduces the likelihood of the law being bogged down by excessive formalism, obliging the courts to channel their discussions about duty of care into the two stages of the Spandeck test.

In light of the results created by attempts to regulate the duty of care, Oliphant argues that it might be better to clearly articulate what values should tort law strive towards, and model negligence after that, rather than to descend into the arbitrary and formalistic distinctions made by operating on the duty of care.86 Fortunately for us, both Spandeck and Robinson have told us what the courts Ken Oliphant, ‘Against Certainty in Tort Law’ in Stephenand Priel et.al. (ed.) Tort Law: Challenging Orthodoxy (Hart Publishing, 2013) 1, 4 83 ibid 6 84 ibid 7 85 ibid 9 86 Ibid 11 82

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Singapore Comparative Law Review value in tort law. In Spandeck, as shown above, economic efficiency is ultimately what should drive tort law. By contrast in Robinson, there is an implied prioritising of protecting rights, and vindicating them when they are breached.

Economic efficiency has its advantages. Posner argues that a system of tort based on wealth maximisation resonates with several moral systems and offends none.87 This is doubtless an even more attractive proposition in Singapore, for it is a famously diverse society. If one moral framework was to be legally prioritised, persons of a different moral persuasion would not be able to use the courts without internal anguish. Finally, compensation is what the average victim of a tort desires above all else,88 and it would be senseless if tort law was not structured around that aim.

On the other hand, these difficulties may be overstated. For one, as much as there may be differences in moral systems, when it comes to tort law these differences vanish. For another, there are certain forms of harm – such as bodily injury - that all moral systems would agree on as being worthy of protection; the law protects people from these harms, by giving people rights. For all the economic emphasis in Singapore, trespass against the person and suchlike torts are still actionable in Singapore. Singaporean courts have found no difficulty in finding duty of care in situations involving bodily injury (eg: Amutha Valli).

By imposing a duty of care on a particular relationship, the law provides that the tortfeasor has a duty not to interfere with the victim’s right, and by recognising the action for breach of this duty, they vindicate the existence of the right.89 If the victim does not vindicate his right, the message inherent in this non-action is a decrease in the victim’s status: the tortfeasor may use the victim for their own purposes; that the victim’s rights don’t matter.90 To use the facts of Robinson, the non-imposition of the duty of care on the police signifies that the police are free to conduct arrests as violently and carelessly as they find expedient, whilst the rights of anyone in the vicinity of that arrest count for nothing. By contrast, when a duty of care is affirmed and damages awarded, the

Posner (n 42), 103 Dan Priel “Torts, Rights and Right-Wing Ideology’ (2011) Torts Law Journal Vol.19 No.1, 7 89 Jason Varuhas, ‘The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages’ (2014) 34 Oxford Journal of Legal Studies 253, 258 90 Scott Herschovitz, “Tort as a substitute for revenge” in Oberdeik’s philosophical foundations of the law of torts 86, 93-94.

87 88

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Thus, failing to acknowledge this vindicatory role of tort law– even though it may fly in the face of economic efficiency– is to deprive victims of torts with socially meaningful redress. Indeed, such vindication may transcend whatever monetary value the injury is equated to. This is the case for Robinson, for after her success in the Supreme Court, Ms Robinson told a BBC interviewer: "It's never been about the money, I want the two police officers to come to my house and apologise deeply to me." 92

In focusing on economic aspects of tort, Singaporean tort

jurisprudence neglects this vindicatory function of tort law.

G. The Role of Policy in Spandeck and Robinson Both Spandeck and Robinson concern themselves with policy, and the extent to which policy can be used to negate duties of care. However, on examination the precise nature of policy discussed in English and Singaporean law differs. The sort of policy that is most extensively discussed in Robinson is the efficiency of public services, and whether this demands blanket immunity of public bodies against negligence claims. The court concluded that there was no general rule that granted a blanket immunity for the police against acts they commit.93 The way policy appears in Spandeck is rather different. Rather than focusing on one particular aspect of public life– public services – policy is defined more broadly. Judges deciding whether to impose a duty of care must weigh and balance competing social welfare goals.94 The court then gives examples of such factors, as for example “whether the imposition of duty of care is likely to lead to an unmanageable expansion of liability for negligent acts or omissions that may be detrimental to the national welfare”,95 or “the presence of a contractual matrix which has clearly defined the rights and liabilities of the parties and the relative bargaining positions of the parties.” 96

Varuhas (n 89), 258 ‘West Yorkshire Police liable for knocking over elderly woman’ BBC (8 February 2018) <https://www.bbc.com/news/uk-england-leeds-42988972> (Accessed 10 August 2022) 93 Robinson (n 5), [70] 94 Spandeck (n 4), [85] 95 Spandeck (n 4), [48] 96 Ibid [83] 91 92

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Singapore Comparative Law Review Thus, in this earliest strata of Singaporean case law, policy is seen in private terms: the interactions between individuals, as opposed to interactions between the state and the individual, which is what Robinson is concerned with. This theme is carried on in Ho Ah Lam, where the judges state one of the functions of tort law to the community is to provide recourse for interpersonal wrongs. 97 Post-Spandeck cases have also seen the judges using non-economic factors in policy decisions. For example, in ACB’s case,98 the court invoked the concept of ‘social policy’, which concerned what the particular impact of imposing the duty of care would have on wider society,99 This may include non-pecuniary factors, as was the case in Zurich Insurance.100 Here the court denied recovery for fertility treatment to ‘replace’ a child killed in a car accident, which was regarded as revolting to conventional morality. 101 Similarly in ACB, where judges declined to award damages for the wrongful birth of a child, for the birth of a child should not be regarded as something worthy of damages. The court nonetheless permitted damages for loss of paternity, which they felt was a head of recovery more comfortable to conventional morality Thus, in some cases, the courts are open to analysing moral arguments against recovery. However, as far as determination of duty of care is concerned, the analysis of policy has so far been dedicated to more conventional economic arguments.

Singaporean cases show that the courts are also willing to consider positive policy considerations: An example can be seen in Anwar Patrick Adrian v Ng Chong & Hue LLC. The court declared that “upholding high standards of competence and diligence should be an ambition that [legal professionals] should strive towards and be proud of”,

102

and the imposition of a duty on

solicitors to exercise reasonable care even towards third parties in particular situations advances that desirable policy.103 The complexity of the policy considerations can be seen in Animal Concerns.104 This case concerned, inter alia, the duty of care of a Clerk of Works.105 Phang JA began by assessing the foundational premises of the Spandeck test and its subsequent application in following cases, observing that the

Ho Ah Lam (n 12), [87]-[89] ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 (ACB) 99 ibid [50] 100 Man Mohan Singh s/o Jothirambal Singh v Zurich Insurance (Singapore) Pte Ltd [2008] 3 SLR(R) 735 101 Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] SGCA 27, [2008] 3 SLR(R) 1029 102 Anwar Patrick Adrian v Ng Chong & Hue LLC [2014] SGCA 34, [2014] 3 SLR 761 (“Anwar”) [166] 103 ibid [165]-[166] 104 Animal Concerns Research & Education Society v Tan Boon Kwee [2011] SGCA 2, [2011] 2 SLR 146 105 “Clerk of works” was an unusual position that the Defendant in Animal Concerns was appointed to.

97 98

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Singapore Comparative Law Review Singapore test was similar to that in Canada. 106 He considered that there were no policy reasons militating against the imposition of a wider common law duty onto the duties under the Building Control Act. In that case the Court of Appeal decided that due to the varying certifications and qualifications that an individual in the position of Clerk of Works 107 could hold, it would be inevitable that the duty of care imposed upon a clerk of works would also differ depending on the nature of projects carried out.108 Notably, case law shows that the duty of care and standards are dependent upon the skills that are characteristic of the specific trade or profession. 109 Phang JA emphasised in Animal Concerns that the level of care and skill required of a Defendant is not referenced according to his qualifications, but rather his place in a given profession. 110 Therefore, a clerk of works will still be assessed objectively to another reasonably competent clerk of works.111 This will be the way despite a clerk of works often being a general term given to an overseer or supervisor of a project, and that clerk of works usually hail from various trades and professional backgrounds. Because of this, the application of a ‘policy’ factor to encourage the Clerk of Works to act in a proper manner is meaningless, for there is nothing that is common to the job-scope of the Clerk of Works other than the title.

With regards to policy, Animal Concerns shows the extent to which the judiciary has opened its doors to the discussion of policy-related issues that were previously left “covert”.112 In Animal Concerns, Phang JA analysed the “fair, just and reasonable” limb of the Caparo test, which he compared to the policy limb of the Spandeck test. He was of the view that the Spandeck policy limb was “essentially negative”113 whilst the “fair, just and reasonable” limb of Caparo was positive.114 While Phang JA is right about the Spandeck policy limb serving as a consideration to negative duty,115 we wonder whether the Caparo limb obliges the claimant to prove a positive impact on the Note that while Singapore utilises a criterion of factual foreseeability as part of the Spandeck test, Canada uses reasonable foreseeability.

107 “Clerk of works” was an unusual position that the Defendant in Animal Concerns was appointed to.

108 Animal Concerns (n 104), [53] 109 eg: Phillips v William Whiteley Ltd [1938] 1 All E.R. 566 (King’s Bench Division),(a jeweller’s duty of care would be compared to a reasonably competent jeweller.); Wilsher v Essex Area Health Authority [1987] 1 QB 730 (EWCA) (junior doctor owed a duty of care to a patient to carry out medical care and treatment to the standards and skills expected of a reasonably competent junior doctor) 110 Animal Concerns (n 104), [61] 111 Margaret Fordham, “The Duty of Care of a Clerk of Works” (2011) Singapore Journal of Legal Studies 260-269, 268 112 ibid 113 Animal Concerns (n 104), [77] 114 ibid 115 Fordham (n 111), 268 106

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Singapore Comparative Law Review duty of care, for it to be imposed. Fordham observes that these positive considerations are often relevant at the proximity stage of the Caparo test instead of the “fair, just and reasonable” stage.116 The latter requires a claimant who has proven reasonable foreseeability and proximity to cross the final obstacle to satisfy the judges that it would not be unfair to impose a duty of care upon the Defendant. In The Nicholas H, 117 the House of Lords held that it would not be fair, just and reasonable for a certification society that had certified a ship as seaworthy, when it was not, to owe a duty of care to the claimants for the economic loss arising from their cargo being lost at sea when the ship sank. In this case, the certification society’s huge liability to compensate for all the cargo lost at sea would have been disproportionate as compared to its negligent certification.

In summary, Animal Concerns shows how there are difficulties in defining and interpreting when it would be appropriate to impose a duty of care upon Defendants in light of the tests available under the common law.

Returning to the discussion of Robinson and Spandeck, policy as expressed in Robinson mostly concerns interactions between the state and the individual, and in terms of negative policy considerations, against the duty of care. By contrast policy in Spandeck, Singaporean case law is primarily expressed in interactions between individuals, and also more generally positive considerations, such as upholding moral values/ standards of conduct. However, the status of negative policy considerations in Singaporean law – especially with regards to public bodies – is far more complex.

H. Policy and public bodies in Singapore: Hill-like arguments Much of the controversy over the English test approach centred on the role of policy in the Caparo test. As mentioned above, the Caparo test allowed “Ad hoc invention of policy arguments to lend spurious support to whatever outcome is intuitively believed to be correct”,118 and fostered the development of what the authors would call Hill-like arguments: If a duty of care was found, it would interfere with the public body’s proper function by imposing extra costs on the body. This is a negative policy factor, which would deny imposition of the duty of care. Rejecting the Caparo test- and hence the power of such arguments- cleared the way for liability to be re-established in situations where it was arbitrarily denied. ibid, 268-269 March Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211 118 Oliphant (82), 7 116 117

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The situation in Singapore is rather different. Hill-like arguments are not made with the regularity of England under Caparo. Several reasons are behind this. Public authority liability in Singapore is confined by the Government Proceedings Act 1956. Section 3 of this Act provides that the Government is, in general, liable for any torts it commits. However, Section 14 of the Government Proceedings Act grants immunity to the Singapore Armed forces from tort claims.119 Section 14 proved pivotal in the case of Najib Hanuk.120 Here, a Platoon Commander conducted a training exercise in breach of the army’s regulations, causing the death of a serviceman. As much as the Commander’s conduct was negligent, the section operated to bar any claim in negligence.121 The Court emphasised the fact that an immunity was granted to the Armed Forces because of the army’s special position: they are tasked with protecting Singapore, and hence should not be burdened with tort liability.122 Singaporean case law suggests that other bodies may avail themselves of similar arguments. In Anpazhakan, 123 the claimant, a prisoner, was grievously assaulted by another prisoner whilst working in the prison kitchens. Anpazhakan sued the Attorney General for negligence, citing the improper supervision of the prisoners by the guards. The Court of Appeal reversed the High Court’s findings, holding that the state was not liable. It noted that the amount of resources available to the prison was a relevant factor in determining the appropriate level of supervision that the prison should provide (and conversely, when the Duty would be breached). 124 A Hill-like argument for private bodies was even considered obiter in Anwar Patrick Adrian:

125

that the

potential rise in legal costs from imposing an overly strict standard of care on lawyers would increase costs of litigation and hence decrease access to justice. 126 However, it must be remembered that these cases are exceptional. Najib Hanuk provides the only explicit approval of a Hill-like argument in Singapore, and indeed such an argument is only made because of its statutory backing. Anpazhakan may be contrasted with Ho Tee Ming,127 where the prison authorities were found liable for negligent supervision of prisoners.

Estate of Dominic Lee v Najib Hanuk [2016] SGHC 119, [2016] 4 SLR 438 (“Najib Hanuk”) [37] ibid 121 ibid [50] 122 ibid [51] 123Attorney-General v R. Anpazhakan [1999] 3 SLR(R) 810 (“Anpazhakan”) 124 ibid [39]-[40], 125 Anwar (n 102) 126 Ibid [166] 127 Attorney-General v Ho Tee Ming [1969] 1 MLJ 203 119 120

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Singapore Comparative Law Review The Singaporean courts’ scepticism of negative policy arguments may be seen in Amutha Valli.128 where a Hill-like argument was denied in the context of religious bodies. In this case, the plaintiff sued a church for, inter alia, negligently conducting an exorcism on her. Attempts were made to defeat the duty of care on grounds of policy, inter alia, that imposing such a duty would cause “men of faith [to make] excuses to avoid rendering spiritual assistance, which would not be in the public interest”, and also cause inter-religious conflict.129 The judge dismissed these arguments summarily, stating that “the imposition of similar duties have not posed a problem in relation to medical or rescue personnel whose activities pose a higher risk of direct physical consequences”, and finding inter-religious conflict an improbable consequence thereof.130 As there was more than sufficient proximity between the exorcist and the person being exorcised, such a duty of care was permitted.

This general scepticism of negative policy arguments and Hill-like arguments more generally may also be the reason why Singapore manages to use a test approach without descending into the chaos that Caparo and its offspring wrought. In contrast, the heavy use of such negative policy arguments in England necessitated the abandonment of a test approach.

CONCLUSION To what extent will Singaporean tort law be influenced by these new developments in England remains to be seen. We are of the opinion that this is unlikely to be the case. The features that drove England away from the test approach did not occur in Singapore. Singaporean courts did not utilise the test to decide tort law in absence of any precedents (unlike the case in Caparo) nor were the policy arguments that so beleaguered English law ever raised to the same extent in Singapore.

In turn, Singapore’s attitude towards tort law is very different to England. The universality of the Spandeck test is cherished by the Singaporean courts, and does not appear to be abandoned any time soon, as much as the success of the universality is predicated on the flexibility with which the Spandeck test can be applied; In Singapore, a key feature of tort law is the strong focus on economic efficiency. Economic efficiency has its advantages in a society that is as diverse as Singapore, for

128Amutha

Valli d/o Krishnan v Titular Superior of the Redemptorist Fathers in Singapore and others [2009] SGHC 35, [2009] 2 SLR(R) 1091 129 ibid [79] 130 ibid [81]

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Corporate Manslaughter in the United Kingdom and Singapore: A Comparative Perspective Cherlyn Yeoh and Joey Tan

INTRODUCTION Earlier in May this year, Singapore saw a record high number of workplace-related deaths with over twenty such incidents being reported. 1 This sudden spike in accidents has posed serious questions of liability and accountability with respect to safety in the workplace, casting the spotlight on the legal questions as to how, and to what extent, liability ought to extend onto corporations who perpetrate negligent acts and practices at work.

It is at this juncture that we see how Singapore’s laws undergirding corporate liability are not welldeveloped as there is no distinct offence or law governing corporations’ liability. One would have to dig deep and rely on common law principles for the legal basis in holding corporations liable for such accidents that occur within the scope of an employee’s work. This is in stark contrast with the law in the United Kingdom (UK). The UK has a distinct offence for corporate manslaughter codified in the Corporate Manslaughter and Corporate Homicide Act 2007 (“CMCHA 2007”).

In light of what seems to be a lacuna in Singapore’s law, this essay seeks to explore if the current law on corporate manslaughter (or, its equivalent) in Singapore is adequate and considers whether Singapore should adopt a separate offence for the law in this area, perhaps even emulating the UK in incorporating the offence within a distinct piece of legislation.

A. The Law on Corporate Manslaughter in the United Kingdom The law on corporate manslaughter in the UK is set out in s1(1) of the Corporate Manslaughter and Corporate Homicide Act 2007, this creates a separate offence for corporate defendants and companies. This Act was a result of the Law Commission’s numerous recommendations following

Shermaine Ang, ‘recent spate of workplace deaths is “far too many, and not acceptable”: PM Lee’ Straits Times (Singapore, 9 May 2022) <https://www.straitstimes.com/singapore/recent-spate-of-workplace-deaths-is-far-toomany-and-not-acceptable-pm-lee> 1

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Prior to the CMCHA 2007, cases fell under the general common law order of English Criminal Law. It has been long understood that a corporation can be charged under the criminal law, following cases such as ICR v Haulage. 2 Under the common law, criminal responsibility was founded on the ‘identification doctrine’ (“DOI”): Corporations were only guilty where the criminal acts were committed by persons who ‘represent the directing mind and will’ of the company.

Essentially, this referred to individuals who were considered senior management and who were the ‘head and hands’ in charge and had substantial control over the company. As such, the liability and subsequent conviction of the corporation would depend on the mens rea of senior management. This idea was developed analogously with these 3 cases in 1944, DPP v Kent and Sussex Contractors Ltd,3 ICR Haulage 4 and lastly Moore v Bresler5 6, with the leading and key case being Tesco v Nattrass. 7 8 However, the identification doctrine proved to be highly problematic as there could be criminal acts occurring throughout the corporation but no direct link to the senior level management.9 This was exemplified in several cases including Tesco Supermarkets Ltd v Nattrass.10 In this case, the defendant supermarket was found not guilty of an offence under the Trade Descriptions Act 1968 as the offence had been committed by the branch manager, an individual who was not considered the ‘directing mind’ of the company.11 The mens rea of the corporation is dependent on senior management, and where they are ‘acting as the company and his mind which directs his acts is the mind of the company… it is a guilty mind then that guilty is the guilty of the company.’12 Lord Reid further explained that the ‘board of directors, the managing director and perhaps other superior officers of a company…speak and act as the company. Their subordinates do not’.13 This case made clear that only senior management who were the ‘directing mind’ could form the necessary guilty mens rea of the corporation, but those who performed such acts may not.

R v ICR Haulage Ltd [1944] KB 551 DPP v Kent and Sussex Contractors Ltd [1944] KB 146 4 R v ICR Haulage Ltd [1944] KB 551 5 Moore v Bresler [1944] 2 All ER 515 6 Law Commission, Legislating the Criminal Code: Involuntary Manslaughter (Law Com No 237, 1996) 7 Tesco v Nattrass [1972] AC 153 8 Ibid (n 6) 9 John Child and David Ormerod, Smith, Hogan and Ormerod’s Essentials of Criminal Law (4th edn, Oxford University Press 2021) 10 Ibid (n 7) 11 Ibid (per Lord Reid) [190] 12 Ibid (per Lord Reid) [170] 13 Ibid (per Lord Reid) [171] 2 3

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Yet, this pre-2007 law had restricted corporate liability to a very senior level in the company.14 This was further highlighted in the high-profile case of the Herald Free Enterprise, where a car ferry had capsized and 188 people drowned. This was addressed in R v HM Coroner East Kent, Ex parte Spooner,15 where the court had to decide if the corporation was guilty of manslaughter or unlawful killing. In the formal investigation, Justice Sheen had found that the company, P&O Ferries, was ‘from top to bottom the body corporate was infected with the disease of sloppiness’ and there was a blatant failure to maintain safe regulations in company management. 16 Despite the glaringly obvious grossly negligent practices, P&O Ferries and five senior level executives were eventually acquitted as no individual with a ‘directing mind and will’ was found responsible. This issue was also presented in the Southall Rail crash in 1997. The identification doctrine often fails as the decision-making processes in large companies are ‘complex and multi-layered’. 17 The DOI inadvertently created a ‘loophole’ allowing corporations to escape liability: Given that most corporations adopt a more ‘diffused’ working structure, where the top-level executives are rarely involved in safety management practices, companies could easily get away scot-free by arguing that the requisite mens rea component is not satisfied. This resulted in hugely unjust outcomes in multiple cases such as the Southall Rail Crash and Herald Free Enterprise, in which the corporations were acquitted.

Following these high profile cases, the Law Commissions 199618 made several recommendations aimed towards eradicating these issues. The Law Commission recommended: (1) introducing a separate offence for corporate killing and that ‘a death should be regarded as having been caused by the conduct of a corporation if it is caused by a failure…corporation’s activities are managed or organised’.19 The CMCHA 2007 was eventually codified in order to address these issues. Under the CMCHA 2007 s 1(1), a corporation is guilty of corporate manslaughter if the way in which its activities are managed or organised (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation. The activities have to be managed or organised by ‘senior management’ and this requirement constitutes a substantial element under s1(3).

Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd edn, Cambridge University Press 2014) 15 R v HM coroner East Kent, Ex parte Spooner [1987] 10 WLUK 39 16 Justice Sheen, ‘Department of Transport, The Merchant Shipping Act, Herald Free enterprise formal investigation’ Report of Court No. 8074 17 Simon Tingle, ‘is the corporate manslaughter regime now redundant’ (2020) Safety Management magazine<https://www.britsafe.org/publications/safety-management-magazine/safety-managementmagazine/2020/is-the-corporate-manslaughter-regime-now-redundant/> 18 Ibid (n 6) 19 Ibid (n 6) 14

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The CMCHA 2007 represents a significant shift away from the identification doctrine, making it more feasible for corporations to be held liable under the Act. The Crown Prosecution Service has noted that the CMCHA 2007 was created to ‘overcome the limitations of the common law offence’ and to ‘widen the scope of the offence so that the focus of the offence is now on the overall management of the organisation’s activities rather than the actions of particular individuals.’20 This has proved to be somewhat effective in the UK, as of September 2017, the total number of prosecutions under the new offence has already exceeded the total number prosecuted under the common law offence.21 Under the CMCHA 2007, senior management is defined under s 1(4) as ‘persons who play significant roles in the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or the actual managing or organising of the whole or a substantial part of those activities.’

The relaxation of the identification doctrine was seen in R v Dr Cornish (Errol), Maidstone and Tunbridge Wells NHS Trust,22 where the defendant hospital was charged under the offence following the death of a patient after an emergency c-section. In considering the requirement for ‘senior management’, the judge suggested that the prosecution did not have to name or identify specific individuals involved – they only needed to refer to the ‘lowest tier of management with an involvement.’23 Justice Coulsen also noted that the prosecution was not expected to ‘“delve deep” into the labyrinthine management structures’.24 This was especially useful given the sheer size of a large corporation such as the NHS and highlights the flexibility afforded in the English court’s application of the doctrine. This is supported by the compelling increase in conviction rates under CMCHA 2007, under the common law the conviction rate was a mere 27%, while under CMCHA 2007, this has climbed to an impressive 67%. This is further bolstered by s 8(3) of the CMCHA 2007 which elaborates that the jury may also consider other factors including ‘the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure…’. This marks an overall shift in

Crown prosecution Service, ‘Corporate Manslaughter’ Legal Guidance, violent crime (2018) Victoria Roper, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 - A 10 year review’ (2018) Journal of Criminal Law 22 R v Dr Cornish (Errol) [2016] EWHC 779 (QB) 23 Ibid (n 24) [74] 24 Roper (n 21) 20 21

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Singapore Comparative Law Review viewing the overall health and safety management of the corporation and an organisational approach as opposed to the identification doctrine.

However, while a step in the right direction, CMCHA 2007 still has its shortcomings. This has been highlighted by several academics who have opined that the requirement for ‘senior management’ creates a substantial barrier in charging corporations under the CMCHA 2007.

Parsons notes that this requirement ‘appears to restrict its ambit’25 and Field remarks it has ‘acted as an insurmountable obstacle to the prosecution of more complex cases’.26 While Maidstone,27 is undoubtedly proof that large corporations can be charged under the new Act, this appears to be an anomaly. It was remarked that in CAV Aerospace, there was clear evidence of emails being sent to senior management proving that they had continuously failed to address safety issues, showing that there is still a need to fulfil the ‘senior management’ requirement.28 This highlights the court’s clear focus on the need for ‘senior management’ and while a departure from the strict interpretation of DOI, is still present. This has been emphasised by an ‘overwhelming majority’ of prosecutions being that of small and medium sized corporations, which would have been charged under the DOI anyways.29 One such example would be R v Cotswold Geotechnical Holdings Ltd, 30 the first company held liable under CMCHA 2007, a small company of 8 employees, whose managing director had control over the management of the company. This was also the case in R v JMW farm, R v Lion Steel Equipment Ltd and Koseoglu Ltd, which were all companies that had small or medium-sized companies with ‘no other layers of management and the directors were so handson’ that they would have been convicted under DOI.31 Given that many of these companies could have been convicted under the common law, it appears that CMCHA 2007 is not as revolutionary as had been hoped. In total, 42 corporations have been prosecuted under CMCHA 2007, with 29 companies being convicted.32 This has fallen short of the predicted numbers and is an unfortunate testament to the still restricted scope of the CMCHA 2007. Furthermore, while the conviction rate marks an improvement, it is still insufficient. It is evident that CMCHA 2007 cannot be considered

Simon Parsons, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 Ten Years On: fit for purpose.’

(2018) Journal of Criminal Law 26 Sarah Field, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 and Human rights: Part 1 - has universal protection of the right to life been advanced?’ (2019) International Company and Commercial Law review 27 Ibid (n 22) 28 Roper (n 21) 29 Field (n 26) 30 [2011] EWCA Crim 1337 31 Parsons (n 25) 32 Victoria Roper, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 - A re-evaluation 10 years on from the first case’ (2018) Criminal law review 25

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Under UK law, the courts can impose a punishment of unlimited fines, remedial orders and/or publicity orders. More specifically, under s. 10 of the Corporate Manslaughter and Corporate Homicide Act 2007, the court may also impose a publicity order, requiring the organisation to publicise certain facts such as the conviction and particulars of the offence such as what led to the injury or death. Under CMCHA 2007, the average fine is now approximately 10x more than that under the common law.33 Furthermore, 55% of corporations charged under CMCHA 2007 have been liquidated or removed from the Companies House register following their conviction. 34 In examining the statistics provided by the Health and Safety Executive, the number of fatal injuries per 100,000 workers in Great Britain has been reduced from 0.84 under the common law to 0.34 in 2019/2020, 12 years after the CMCHA 2007. 35 However, the lack of research leads to speculations as to the extent in which the punishments have resulted in the insolvencies and decrease in fatal injuries. There is a possibility that companies who are facing financial difficulties are more likely to feel the need to generate income at the expense of health and safety, and thus the unlimited fines have no real impact on businesses.36 Furthermore, the decrease in fatalities cannot be entirely attributed to the deterrent effect of CMCHA 2007 as there may be other factors at play such as a general change in attitude acknowledging the importance of health and safety practices and shift in industries within the UK. B. The Law on Corporate Manslaughter in Singapore Unlike the UK, Singapore does not have a distinct legislation that specifically addresses corporate manslaughter. Singapore’s Penal Code, though an omnibus legislation, neither contains provisions targeting corporate manslaughter nor creates a separate offence for corporations as the aforementioned legislations in the UK have.

While the offence of corporate manslaughter is not sufficiently represented in form in Singapore, perhaps it is somewhat represented in substance as there have already been legal provisions for the nature of such a crime at common law – namely, Singapore adopts the common law principles

Ibid Ibid 35 Ibid 36 Ibid 33 34

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These common law doctrines were recognised by the High Court of Singapore in the 2001 case of Tom-Reck Security Services Pte Ltd v Public Prosecutor (“Tom-Reck v PP”).37 The judge cited Tesco v Nattrass 38 (as mentioned above) in the discussion of vicarious liability, explaining it as a doctrine where the company in question could be held liable if the “company’s servant” performed some guilty acts or possessed the requisite guilty knowledge. This employee’s acts must be within the scope of the function of management properly delegated to him, in order for the company to be held liable. The High Court also alluded to the concept of DOI as it also relied on Lord Reid’s speech in Tesco v Nattrass that a person could “act” as the company and “his mind which directs his acts is the mind of the company”, removing the need to rely on the vicarious liability doctrine in such an instance.39 Therefore, the implication of the difference in Singapore and the UK’s law lies in the manner in which liability is imputed to the corporation.

At this juncture, it is trite to also note the concept of non-delegable duty (“NDD”) in Singapore, which is an exception to the general principles of vicarious liability. Though this concept of NDD relates more to tortious liability than criminal liability, this is an additional point that applicants can argue on in order to accrue liability to the corporation – similar to the workings of the offence of corporate manslaughter. Essentially, the defendant corporation (the principal) will owe a duty of care to the complainant where such a duty is non-delegable, such as where the defendant corporation engaged in an ultra-hazardous activity or where employee safety is concerned. Such a duty of care cannot be delegated to the employee because of stipulations of public policy. The implication of NDD is that, when said duty is breached, the defendant corporation shall be fully liable for any loss incurred. The Singapore High Court in the 2017 case of MCST No 3322 v Tiong Aik (“Tiong Aik”)40 endorsed the UK position and approach toward NDD cases in Woodland v Swimming Teachers Association.41 As such, the law in both Singapore and the UK pertaining to NDDs are aligned. But the harmonisation of Singapore and the UK’s laws pertaining to NDDs alone is insufficient, given that the NDD concept only plays a minor role in the spectrum of legal issues surrounding corporate liability. As is further discussed below, it is submitted that more should be

Tom-Reck v PP [2001] SGHC 32 Ibid (n 7) 39 Tom-Reck v PP [2001] SGHC 32 at [17] 40 MCST No 3322 v Tiong Aik [2016] SGCA 40.

41 Woodland v Swimming Teachers Association [2013] 3 WLR 1227.

37 38

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However, there are important distinctions between the doctrines of vicarious liability and DOI as opposed to corporate manslaughter. In a case of corporate manslaughter, the deceased person in question is the employee of the defendant corporation. Whereas in a case where the defendant company is held to be vicariously liable, the deceased need not necessarily be its employee. The crux in vicarious liability cases is merely that the corporation’s own employee is involved in the accident, causing the corporation to be sued for the employee’s conduct or misfeasance.

The position in Singapore is supplemented by the Workplace Safety and Health Act 2006 (the “WSHA”) which relates to the ‘safety, health and welfare of persons at work in workplaces’, including death and serious bodily injury. Under s. 48, where the offence has been committed by a corporation, an officer of the corporation is held liable. Under s. 48(5), the definition of officer includes ‘any director, partner, member of the committee of management, Chief Executive, manager, secretary or other similar officer of the body corporate.’ This highlights the emphasis on the DOI and the need for a senior level executive to satisfy the requisite mens rea component of the company, before any liability shall be imputed to it.

Furthermore, although these common law principles are not expressed in the Penal Code, elements of corporate manslaughter are embedded within the Code in disjunct parts. It has been argued that liability for every offence within the Penal Code pertaining to crimes committed by ‘persons’ could be extended to corporations. This is due to s. 11 of the Penal Code, which provides that the word ‘person’ includes any company or association of persons. However, it is also noted that such an application of s. 11 of the Penal Code has not been tested in Singapore’s courts.

As such, there is a high threshold in order for the corporation to be liable for its employees’ wrongdoings, with this area of law mainly existing at common law rather than being cast in legislation.

C. Comparing the law on Corporate Manslaughter in Singapore and the UK In light of the position in Singapore vis-à-vis that in the UK, the question is three-fold. First, should Singapore adopt and even embrace corporate manslaughter as a distinct criminal offence?

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Finally, if the doctrine of corporate manslaughter is adopted in Singapore, should it be brought within the Penal Code or exist at common law?

Singapore appears to rely largely on the identification doctrine, as it is cemented in the WSHA. By emulating the UK and adopting a separate offence for corporate manslaughter, Singapore would be moving away from its current framework which comprises both the identification doctrine and vicarious liability. And as can be seen from the English case law, such a departure ought to be welcome. In removing the identification doctrine or adopting a flexible interpretation into the definition of ‘officer’, the corporation can be held liable for failure in the overall structure and safety management that led to the conduct that was not ‘reasonably practicable.’ This leads to an inquiry into the systemic failures of the company as opposed to acts of specific individuals that led to such practices, which can often be difficult to prove or find and may not be the root of the problem. However, when we take into account the current issues that the CMCHA 2007 faces, it is apparent that merely emulating the UK position is not enough. Instead, Singapore should consider a complete overhaul of the current law on establishing corporate liability by abolishing the identification doctrine.

As the world becomes more globalized, multinational corporations and conglomerates engage in offshoring and outsourcing work more frequently. As a result, work becomes increasingly decentralised, and this is likely to present significant difficulties in convicting companies by virtue of the identification doctrine. 42 Adopting a more flexible interpretation is essential given Singapore’s unique position as a global business centre, with 7,000 MNCs currently. Though favoured under Singapore law, the identification doctrine favoured fails to account for the nature of the work in such larger corporations – viz., where the responsibility is delegated to a large number of individuals and therefore several individuals may be responsible for the acts of gross negligence.43 Therefore, it faces the same issues that the UK faced when the law on corporate manslaughter was governed by the common law. However, the current issues that the UK faces has made it evident that the mere requirement for ‘senior management’ presents a significant barrier to charging corporations, and completely abolishing the requirement is likely to complement Singapore’s business landscape and position as a global business hub.

42 43

Norrie (n 14) Child and Ormerod (n 9)

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The Singapore government has had a long-standing pragmatic approach towards economic development, therefore priding business efficiency and providing concessions to corporations in order to boost the business sectors’ overall profitability. However, this pragmatic focus is seemingly at odds with the government’s role in protecting its citizens’ social welfare in light of this discussion on corporate liability laws. With an overhaul in the law on corporate liability, corporations are more susceptible to being held liable for workplace-related mishaps and accidents.

This means that corporations will end up diverting more resources to ensure that all aspects of their business are up to par with potentially more stringent workplace safety standards – which runs contrary to corporations’ goals of profit maximisation, and the Singapore government’s economic development goals.

Yet, it is submitted that the government ought to give more weight to safeguarding employees’ social welfare and rights, even at the expense of business development. Making compromises in its financial goals is necessary for the government to better fulfil its role in protecting its peoples’ social welfare – especially that of the working population. It is indisputable that all employed persons are entitled to a safe working environment, and such an entitlement has been recognized by the International Labour Office of the UN as a basic (fundamental) human right.44 As such, the Government is obligated to provide for this by implementing and enforcing safeguards to ensure that employers comply with safe working standards. The need to provide such safeguards is even more pressing as employees are in a vulnerable position and are oftentimes unable to voice out about unsafe work practices, as employers typically have the upper hand in the company. Therefore, it is paramount for the Government to tip the balance in favour of safeguarding employees’ social welfare and rights, even at the expense of business development.

D. Evaluation: The Goals of Punishment Singapore and the UK are likely looking to achieve the same goals in meting out punishment and in achieving the aims of punishment, a deterrent effect and retribution to recognise the extent of wrongdoing. The enforcement of punishment seeks to signal and warn other corporations against following such practices and to also acknowledge the wrongfulness of the corporation’s conduct.

It is recognised that government intervention in corporate and work-related deaths are relied upon 44

International Labour Office, ‘Health and life at work: A basic human right’

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Under s. 21 of Singapore’s WSHA, the Commissioner may serve a remedial order or stop-work order, and failure of the company to comply can lead to a fine not exceeding $50,000 or $500,000 respectively. The imposition of a fixed fine can be problematic as it disproportionately affects smaller firms, while allowing larger firms to get away with a slap on the wrist. Therefore, Singapore should look to adopt the UK’s position on the imposition of unlimited fines, which are given to acknowledge the extent of wrongdoing and seriousness of the offence and has a deterrent effect.

This form of punishment has been effective as seen in R v Princes Sporting Club, where the defendant corporation was fined an amount equivalent to the entire value of its assets. The judge in Princes further observed that should the corporation have still been trading, he would have imposed a fine which would put it out of business. The judge went so far as to comment that he would ‘fine this defendant company every penny that it has’, demonstrating the extent which courts can go in imposing unlimited fines. In cases where the company has a grossly negligent safety management structure and a continued failure to address such issues, it is appropriate to impose upon the company a hefty fine or even have it put out of business, given the extent of the harm it has indirectly or directly caused. This would further strengthen the deterrent effect and serve as a warning to other companies to address their workplace safety issues and improve their safety standard, which has an overall beneficial effect. Furthermore, it shows that saving or stinging on safety management and practices is not financially beneficial as the monetary ‘benefits’ of poor safety management are significantly outweighed by its costs in fines. However, it has to be noted that the imposition of fines are most effective where the corporation’s conduct was aimed at

Paul Almond, ‘The Palgrave Macmillan Corporate Manslaughter and Regulatory Reform’ Paul Almond, ‘The Palgrave Macmillan Corporate Manslaughter and Regulatory Reform’ 47 Paul Almond, ‘The Palgrave Macmillan Corporate Manslaughter and Regulatory Reform’ 48 Paul Almond, ‘The Palgrave Macmillan Corporate Manslaughter and Regulatory Reform’ 45 46

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The imposition of a publicity order is a punishment that Singapore should consider adopting. As a whole, a publicity order is more appropriate in fulfilling the aims of punishment. This was first imposed on Princes Sporting Club, and is likely to have a profound impact on the company’s reputation and thus revenue. The publicity order allows for the public to not only be aware of the company’s wrongdoing but also gives businesses and clients the information needed to make an informed decision when looking to hire the company. This is supported by Macrory which acknowledges that ‘reputational sanctions have more of an impact than even the largest penalties’, 50 this is given the importance of a company’s reputation. Damage to a company’s reputation can result in loss of ‘consumer confidence, market share and equity value.’ 51 A publicity order, including comments on the inquiry into the work-related death will be effective in allowing the public to build an understanding as to why such conduct is morally indefensible and worthy of punishment. A publicity order is likely to appeal to the public’s emotive side and evoke widespread indignation. This works to achieve the government’s aim to inculcate voluntary compliance through a universal and common understanding of the importance of health and safety in the workplace. This undoubtedly goes a long way in legitimising the law and contributing to an improvement in the overall culture of workplace safety. Therefore, the effectiveness and impact of a publicity order provides strong grounds for its implementation in Singapore.

CONCLUSION While this area of law is largely unexplored in Singapore, there remains much space for change and improvement. As we have attempted to argue in this paper, it is even more important now for Singapore to look to the UK in either adopting corporate manslaughter as a separate offence or certain aspects of the UK law under its criminal law framework. In particular, abolishing the identification doctrine and the implementation of more stringent punishments such as unlimited fines and publicity orders. Pinning liability on the defendant corporation through corporate manslaughter as a distinct offence benefits the complainant, the future employees of the defendant

PJ Visser, Mcmare, ‘Visser & Vorster’s General Principles of Criminal Law through the cases’ (3rd edn, Butterworths 1990) 50 Regulatory Justice: Making Sanctions Effective, Nov 2006 by prof richard B MacRory 51 Ibid 49

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Singapore Comparative Law Review corporation, and society at large. First, the complainant has a higher chance of recovering the quantum claimed. Second, this alleviates future and current employees’ and fear and uncertainty that stem from mistakes that they may potentially make over the course of their employment.

Finally, society as a whole benefits – corporations bear more responsibility, are held accountable and are encouraged to have higher safety standards.

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Practical Benefit Exceptions: A Re-consideration of Business Needs Vedant Chauhan and Scott Ngai INTRODUCTION The act of participating in a contractual variation is part and parcel of commercial reality. Parties often vary their pre-existing obligations to fill gaps and cure defects discoverable only in the course of performance.1 A noteworthy scenario relates to one-sided contractual variations where only one party’s undertaking remains the same while the other party’s undertaking becomes more or less onerous. To determine whether such new agreements are enforceable, the court will determine if a sufficient value is obtained from a practical benefit.2 This article will first provide an overview of contract formation and the doctrine of consideration.

Indeed, such an overview facilitates an appreciation of the practical benefit exception in the doctrine of consideration. This will then segue into a discussion on the difference in the jurisdiction on practical benefit between Singapore and the UK, culminating with a verdict on whether consideration should be abolished. It is submitted that in a contractual variation, where the practical benefit has been identified in a quantifiable state, it should serve as valid consideration regardless of the variation being a promise to pay more or less.

A. An Overview of Consideration The exact historical origins of consideration are contentious.3 While several viewpoints have been articulated by various judges and academics, consideration is traditionally associated with two definitions. The first definition is the “benefit-detriment” analysis while the alternative “bargain theory” relies on the “purchase and sale” language.

Firstly, the “benefit-detriment” analysis can be traced back to Lush J’s formulation in Currie v Misa4:

P W Lee, Contract Modifications - Reflections on Two Commonwealth Cases (Oxford University Commonwealth Law Journal, 2012, 12 (2)) at 201 2 Williams v Roffey Brothers [1991] 1 QB 1 3 A W B Simpson, Cheshire, Fifoot and Furmston’s Law Of Contract (Oxford University press, 15th Ed, 2007), 10 4 (1875) LR 10 Exch 153 (at 162) 1

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Singapore Comparative Law Review “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.”

In other words, sufficient consideration is established if there is either detriment incurred by the promisee (at the request of the promisor) or a benefit conferred by the promisee on the promisor5.

Meanwhile, the alternative “bargain theory” was set out by Sir Frederick Pollock in Dunlop Pneumatic Tyre Company Limited v Selfridge and Company Limited6 wherein the promise “purchases” the promisor’s promise by either doing something or offering a counter-promise.7 In modern times, consideration is seen as a way to put legal limits on the enforceability of agreements, even where they would otherwise be legally binding8. Most commonly, consideration is regarded as similar to formality requirements by performing an evidentiary, cautionary and channelling function. In other words, this ensures that promises are actually made with care and that their consequences are understood by the parties9. Therefore, consideration to date is seen as one of the key elements of contract formation and its absence places the sanctity of a contract in question.

Deviating from this fundamental understanding, both the UK Law Revision Committee10 and the New Zealand Court of Appeal11 have echoed that consideration becomes unnecessary when a party’s serious intention to be bound can be proven by writing or other evidentiary means.

However, it is submitted that the role of consideration cannot be further contracted as this will invalidate oral agreements. Such a course runs the risk of creating more problems as undertakings concluded in social arrangements become unenforceable even if they have sufficient valuable consideration.

These dismissive attitudes towards the doctrine of consideration are symptomatic of its waning influence. In fact, consideration has come under heavy objection from the UK Law Revision

E Peel, Trietel: The Law of Contract (Sweet & Maxwell, 12th Ed, 2007) at para 3-005 [1915] AC 847 at 855 7 [2009] SGCA 3 at [68].

8 P S Atiyah, Essays on Contract (Clarendon Press, 1986), Essay 8 at p181 9 L Fuller, ‘Consideration and Form’ (1941) 31 Columbia L Rev 799; M Chen-Wishart Contract Law 6th Edition at 110 10 UK Law Reform Committee, Sixth Interim Report (The Statute of Frauds and the Doctrine of Consideration) (Cmd5449, 1937) at [28]-[30], as published in (1937) 15 Can Bar Rev 585 11 Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23 (CA); M Chen-Wishart Contract Law 6th Edition at 110 5 6

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Singapore Comparative Law Review Committee12 and judges13 who have recommended its abolition because of inherent theoretical and practical difficulties. Some of the justifications will be explored after further canvassing of the practical benefit exception.

B. Historical Development of the Practical Benefit Exception The issue of one-sided contractual variation was first explored in Stilk v Myrick14(“Stilk”). In Stilk, a ship captain contracted with sailors for a return voyage between London and the Baltics. During the course of the voyage, two of the sailors deserted. Owing to the added burden on the remaining sailors, the captain promised them an increased wage if they completed the voyage. This promise was not eventually honoured. At trial, the court held in favour of the ship captain.

Owing to the divergence of published court reports, Stilk stands as authority for competing interpretations. In Campbell’s report, the court failed to find fresh consideration since the sailors were already contractually obligated to sail the ship back to London shorthanded15. In essence, mere fulfilment of one's contractual obligation did not warrant a valid consideration.

This interpretation was subsequently endorsed by Mocatta J in North Ocean Shipping Co v Hyundai Construction Co.16 However, this interpretation acquiesces to unprincipled uncertainty in contractual variations and holds the ship captain’s promises to a lower standard. In fact, the scope of the precedent set out in Stilk has been further contracted by Hartley v Ponsonby17 which held that the aggrieved sail crew could enforce their agreement for extra pay since the conditions of their new contracts were sufficiently altered.

Conversely, the Espinasse report contends that the sailor’s claim failed as the court sought to mitigate the policy concern that sailors may hold their ship hostage at high seas unless they were promised more pay to bring the ship to port safely. However, if the Espinasse report were to be accepted as the right basis for the decision, this rationale is irrelevant as extortion may be dealt with via the doctrine of duress.

12UK

Law Reform Committee, supra n.10 [2004] 2 SGHC 71, V.K. Rajah at [139] 14 (1809) EWHC KB J58 15 J Poole, Casebook on Contract Law (13th Edition) at 140.

16 [1979] QB 705 17 1857] 26 LJ QB 322 13

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Singapore Comparative Law Review Eliminating the rationale raised from the Espinasse report, it appears that Stilk can only stand for the rule that where a promise to perform an existing contractual duty is in response to an additional promise to be paid more, the performance of the contractual duty cannot constitute valid consideration and thus the contract is not valid. This position is one that is unanimously agreed upon with little debate in both Singapore and the UK. C. The United Kingdom: Contractual Variations Stilk remained a valid authority in the UK until the emergence of Williams v Roffey Brothers & Nicholls (Contractors) Ltd18 (“Williams”) which introduced the concept of a “practical benefit”.

(1) Promises to pay More: Williams v Roffey Roffey was a builder who had contracted to refurbish a building for a housing association. Roffey sub-contracted carpentry work to Williams, who later ran into financial difficulties and told Roffey that he would be unable to continue. Roffey promised him a payment of extra money to complete the work on time to avoid a late penalty fee. When William’s completed the works, Roffey refused payment for want of consideration. The case was decided to consist of valid consideration due to the presence of a practical or commercial benefit as Roffey would benefit by avoiding penalty payments due to a delay in work, the hassle of finding an alternative contractor and having the work completed - as a product of the additional payment he was making.

Therefore, the concept of a practical benefit as an exception to consideration via the mere fulfilment of one’s contractual obligation began to exist. However, it is worth considering what exactly entails a practical benefit. UK law at present does not provide a clear criterion or category of what constitutes a practical benefit. It is arguable that the court’s discernment of such a benefit is intangible at times. As will be explored below, such a blurred line seems to raise questions over the sanctity of the economics of contracts against the need for contract law to reflect present commercial realities experienced by businesses.

18

[1991] 1 QB 1

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Singapore Comparative Law Review (2) Promises to Pay Less: Foakes v Beer Unlike a promise to pay more, in the UK, a promise to pay less raises two distinct schools of thought. The traditional understanding upholds the idea that where there is a promise to pay less, no valid consideration exists. The principle is upheld by Foakes v Beer19 (“Foakes”) which takes precedence from Pinnel’s rule. 20 Such a principle was affirmed by subsequent cases such as re Selectmove.21 However, in 2016, the relatively neat distinction between a promise to pay more and to pay less was disrupted by the case of MWB Business Exchange Centres Ltd v Rock Advertising Ltd (“MWB”).22 In MWB, the Court of Appeal ruled that the variation agreement gave “practical benefits” to MWB and thus could be said to be supported by sufficient consideration. Kitchin LJ identified the practical benefit to MWB to be firstly its ability to recover some of the arrears immediately and secondly its retention of Rock Advertising as a licensee to prevent the property from being left empty. In essence, Kitchin LJ had adopted the language and approach of the Court in Williams (a case that was not to do with a promise to pay less). In MWB, a clear distinction was made from Foakes and Reselectmove where Arden LJ concludes that the contract was enforceable as there was “consideration in the form of practical benefit to the creditor which he sought and which is an identifiable benefit over and above the mere fact of accommodating the debtor and not having to enforce payment of debt”.23 From Arden LJ’s words, it appears that practical benefit seems to have been given characteristics such as “identifiable” and one that is “over and above” - possible direction for future cases dealing with characterising practical benefit.

It is noteworthy to acknowledge that both MWB and Foakes were cases of similar legal standing.

Foakes was a case from the House of Lords while MWB was a case addressed in the Court of Appeal. Furthermore, some may contend that MWB on its surface does have a Supreme Court ruling,24 and thus supersedes the archaic authority of Foakes. This assumption is flawed, as the Supreme Court in deliberating the case of MWB ruled upon the basis that the “no oral modification” clause was valid and binding. Therefore, the area of consideration was unnecessary to be decided

(1884) 9 App Cas 605 (HL) Pinnel’s Case, sub nom Penny v Core [1558-1774] All ER Rep 612 (Court of Common Pleas) 21 [1993] EWCA Civ 8 22 [2016] EWCA Civ 553; [2016] 3 WLR 1519 23 Ibid at [87] 24 [2018] UKSC 24 19 20

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Singapore Comparative Law Review upon.25 Lord Sumption, however, provided some obiter in the area of consideration, “The reality is that any decision on this point is likely to involve a re-examination of the decision in Foakes v Beer. It is probably ripe for re-examination. But if it is to be overruled or its effect substantially modified, it should be an enlarged panel of court and in a case where the decision would be more than obiter dictum.”26 What is evident from Lord Sumption’s words is that Foakes is ripe for re-examination. On this note, it is apposite to examine the Foakes position with MWB in relation to the practical benefit exception.

(3) The United Kingdom: Foakes or MWB? While Foakes has been under tremendous academic criticism, Janet O’Sullivan recognises that this rule may still be applicable. While accepting that it is in the creditor’s best interest to minimize their losses, O’ Sullivan points out that this may not be applicable when the debtor is a company facing the prospect of bankruptcy.27 This is because compromise payments made just prior to bankruptcy are liable to be set aside as “preferences” in accordance with the Insolvency Act 1986, ss. 239 and 340. As a consequence, a creditor is not exactly allowed to cut its losses in this context, making the less for the same arrangement nugatory.

However, it is necessary to acknowledge that the possibility of going bust and recovering losses are time-sensitive. Should a business not go bust, the creditor could recover the balance originally owed through a breach of contract - unless there is an estoppel defence.

Secondly, O’Sullivan posits that the idea of money as an “incontrovertible benefit” is fundamental in the law of restitution.28 She has a strong claim that states that money is a universal unit of measurement of the value of everything else. Thus, suggesting that someone with “less money” is at a benefit is an idea that places society in severe danger of undermining the whole basis of an exchange-based market economy accompanied by its underlying legal rules. To illustrate, saying someone with 600 dollars is better off than someone with a legal right to 1000 dollars opens up a can of worms.

Ibid Ibid at [18] 27 Janet O’Sullivan, “In Defence of Foakes v Beer”, The Cambridge Law Journal, Vol. 55 No.2 (1996), pp. 219-228 28 Ibid 25 26

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In O’Sullivan’s words, “A capitalist legal system simply cannot give credence to the claim of a recipient of cash that they were ‘better off without it’”. Thereby positing that the law must recognise this concept for it would be simply too dangerous for the law to acknowledge “practical benefit” as a legal benefit.29 While Foakes has been defended by O’Sullivan, the defence has been considered arguably “forced rationalisations” 30 as critiqued by Nicholas Hill and Patrick Tomison to inhibit the effective development of common law. Additionally, Ferson argues that “[Foakes] is not only… absurd but it is inconvenient to commercial dealings, and… distasteful to the courts”. 31 Despite valiantly arguing for Foakes, O’Sullivan herself acknowledges that her reasonings are far removed from the context of businessman dealings.32 Thus, albeit fair concerns, this essay agrees that such a criticism is valid as being far removed from the nature of contracts in such business dealings.

Aside from the failure to reflect commercial realities, Foakes raises certain doubts in its depth of legal reasoning. The case boasts a strong regard for the tenet of stare decisis in the common law.

As Lord Watson explains, “I do not think… open to this house… to overrule Pinnel’s, because I am not prepared to disturb that doctrine”33 This was subsequently affirmed by Lord Fitzgerald who went on to state, “it would have been wiser… if the resolution in Pinnel’s had never been come to”.34 Such statements question the legal foundation of Foakes and cast further doubt on Pinnel's case. The reasoning by Lord Coke for part payment was that the judges felt that “by no possibility” was a lesser sum satisfactory for a greater sum. This reasoning seems highly subjective and has been criticised by Lord Blackburn on the possibility that “Coke made a mistake of fact”. 35 Such an appeal to the tenet of stare decisis in a controversial area of law is further challenged by Lord Leggatt’s statement that “The doctrine of precedent, which gives law its coherence, can also act as an obstruction”.36

Ibid Nicholas Hill and Patrick Tomision, “REVISITING FOAKES V BEER: What role for practical benefit in a world recovering from a pandemic?”

31 Merton Ferson ‘The Rule of Foakes v Beer’ (1921) 31(1) Yale Law Journal 15 (Ferson) 32 Janet O’Sullivan, “In Defence of Foakes v Beer”, The Cambridge Law Journal, Vol. 55 No.2 (1996), pp. 225 33 (1884) 9 App Cas 605 (HL) 623-624 34 Ibid, 630 35 Ibid, 617 36 Lord Leggatt, ‘Negotiation in Good Faith: Adapting to Changing Circumstances in Contracts and English Contract Law’ (Jill Poole Memorial Lecture , Aston University: 19 October 2018) <https://www.judiciary.uk/wpcontent/uploads/2018/10/leggatt-jill-poole-memorial-lecture-2018.pdf> accessed 17 August 2022 29 30

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Singapore Comparative Law Review What is evident is that Foakes as an authority has been subject to criticism and a supposed “forced” defence. However, does the alternative of MWB pose a solution?

It is necessary to acknowledge that MWB rests heavily on the absence of duress. The doctrine of duress in itself at present is arguably vague. Heavy academic debate exists over the issue of economic duress and the exact outline of what constitutes economic duress. Different criteria across Pao on v Lau Yiu Long, and North Ocean Shipping Co display such a lack of clarity on what exactly qualifies as duress. While academics like Treitel question Foakes’s relevance considering the doctrine of duress, the inaccessibility to protection may be the protection that Foakes intended to uphold.37 This notion is supported by the leniency displayed by the majority decision in Pakistan International Airline Corporation v Times Travel (UK)38 (“Times Travel”) where it was admitted that “It will be a rare circumstance that a court will find lawful act duress in the context of commercial negotiation”.39 This raises the question, in a circumstance of commercial negotiation: how does the law provide adequate protection to the respective parties in the absence of Foakes? Issues arising in what constitutes illegitimate pressure are difficult to ascertain especially because the requirement of identifying “reprehensible characteristics” was established in Times Travels. While the concept of lawful act duress is partly addressed by Times Travels, the ruling relies upon the distinction between good and bad faith. At present, contract law does not have explicit requirements that provide a direction towards such a distinction, primarily due to the difficulty courts face in deciphering various parties' intentions and behaviour within a commercial transaction.

Aside from the issue of duress, there is also a lack of clarity on what constitutes Practical Benefit.

Arden LJ argues that the benefit identified in MWB was one that was ‘avoiding the void’.40 The lack of clarity in what constitutes “over and above” benefit was illustrated by Lord Kitchin in Simantob v Shavleyan 41 (Simantob) which varied from the “Prestige and Standing” Mr Simantob gained, to a commercial benefit of Mr Simantob’s “expertise” and contacts in the marketplace, to forbearance to dispute a previous claim on duress.42

37D

Thampapillai, ‘Practical Benefits and Promises to pay lesser sums: Reconsidering the Relationship between the rule in Foakes v Beer and the rule in Williams v Roffey’ (2015) University of Queensland Law Journal Vol 34(2), 309 38 [2021] UKSC 40 39 Ibid at [30] 40 [2016] EWCA Civ 553 at [72] 41 [2019] EWCA Civ 1105 42 [2019] EWCA Civ 1105 at [32]

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Additionally, Lord Sumption established a difference in identified practical benefit in the case of Foakes and that in Williams, thus cautioning the extension of this principle to part-payment circumstances. Furthermore, the criticism of MWB is identified by Lord Sumption who states that while MWB might have received the practical benefits pursuant to Williams, but those benefits are precisely the very thing Foakes prevented. Such a lack of clarity in duress and practical benefit, two key elements of Williams, may not warrant an immediate gravitation away from the certainty of protection, albeit strict, that Foakes provides. The lack of clarity in the reach of practical benefit tests is also echoed by academics such as Marcus Roberts.43 In view of reform, a possible objective approach could be favoured as seen in the common law jurisdiction of Singapore in the case of BOM v BOK.44 It posits a need to have a practical workable legal criterion for the courts in areas such as duress and undue influence and that an approach that relies upon excessive subjectivity “would engender excessive uncertainty and unpredictability and would undermine the sanctity of contract”.45 Foakes “is probably ripe for re-examination”.46 However, keeping in mind the state of case law for both Foakes and MWB, what is needed is clarity. While the case authority for consideration in a promise to pay more is clear, a similar reasoning has not been extended to be accepted in circumstances where there is a promise to pay less. In Simantob, it was evident that Foakes, naturally not being overruled, is still good law and the authority for circumstances of a promise to pay less.

While it may not appear as commercially viable, and the recent circumstance of a pandemic where more creditors and debtors have been involved in business survival decisions, a divided, lack of clarity in a key area of contract law needs to be addressed. Linking back to Stilk and the idea of consideration to begin with, Stilk appears to be out of touch with the reality that contract law is not hostile to renegotiations.47 As Carter has pointed out, contract law’s rules on the mitigation of damages, as well as the rules on certainty and completeness effectively require the parties to engage in some form of contractual renegotiation.48

Marcus Roberts “Foakes v Beer: Bloodied, Bowed, but Still Binding Authority” [2018] [2018] SGCA 83 45 [2021] UKSC 40 at [35] 46 [2018] UKSC 24 at [18] 47 D Thampapillai, supra n.35, 306 48 John Carter, ‘The Renegotiation of Contracts’ (1998) 13 Journal of Contract Law 3 43 44

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Singapore Comparative Law Review D. The Singapore Position: Contractual Variation In Singapore, Williams is accepted as part of the law relating to the doctrine of consideration. 49 However, what separates both jurisdictions is Singapore’s openness to accommodate less for the same bargains as part of a practical benefit. Since the Court of Appeal’s decision in Gay Choon Ing v Loh Sze Ti Terence Peter (“Gay Choon Ing”), it has been established that Singaporean courts are not prevented from extending the reach of Williams to situations which it deemed minded to do so.50 In fact, this position cements the High Court’s prior holding in Fong Holdings Pte Ltd v Computer Library (S) Pte Ltd 51 (“Fong Holdings”) where the court found the existence of a practical benefit from the defendant’s concession to take less. In Fong Holdings, a landlord agreed to end the lease early for payment of arrears. In effect, this amounted to accepting a lesser debt than what was originally owed. The court found that the landlord attained a practical benefit as he could relet the premises and recover arrears when they would not have gotten any. This position heralds the emergence of MWB whilst being antithetical to Foakes.

E. Supporting Practical Benefit Exception in “Less for the Same” Scenarios It is submitted that qualifying a ‘less for the same’ arrangement as a practical benefit is a welcomed inclusion in the law. This is because accepting less in a contractual renegotiation is not logically different52 from an arrangement to accept more. Both one-sided modifications still involve the exchange of value that gives promises its legal force.

More importantly, this enlargement to the doctrine of consideration suits business practicality. As noted by Judd J in MP Investments Nominees v Bank of WA Ltd, there are circumstances in which it will be more favourable for a creditor to secure certainty of payment and avoid the cost, inconvenience and loss associated with the recovery action.53 Therefore, if we accept the premise that actual performance is more valuable than a mere right to performance, an increased chance of performance provides actual value.

Ma Hongjin v SCP Holdings Pte Ltd [2020] SGCA 106 at [65] [2009] SGCA 3 at [106] 51 [1991] SGHC 61 52 D Thampapillai, supra n.35, 316 53 MP Investments Nominees v Bank of WA Ltd [2012] VSC 43 at [112] 49 50

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Singapore Comparative Law Review Furthermore, the law regularly gives effect to bargains struck for the acquisition of a chance. For example, a person who has already purchased a lottery ticket may also increase his or her chance of winning by purchasing more tickets of the same series. No one can disagree that the subsequent purchase of additional lottery tickets is void for want of consideration.54 Lastly, the rule that bars part payment of debts in Foakes is redundant since it can be displaced by a variety of means in UK jurisdiction. In fact, it has been noted by Dilan Thampapillai that there are at least seven carve-outs to circumvent the operation of Foakes.55 Tellingly, the very exception of early repayment56 relays the law’s priority in recovering payment. Drawing from a popular adage, a bird in the hands is worth two in the bush.57 It must be recognised that the realization of a contractual obligation through performance far outweighs the value of the obligation itself. 58 Admittedly, this position is not without its detractors. Firstly, Professor Chen-Wishart has criticized ‘practical benefits’ as a concept that comprises nothing more than what was already promised. By finding a practical benefit, the court may blur the line between consideration and any matter that is subjectively valued by the promisor. In effect, this introduces uncertainty and make contractual variation vulnerable to abuse.59 Additionally, the Singapore Court of Appeal has also highlighted that the endorsement of the wider concept of consideration to the effect that a practical benefit or detriment could constitute sufficient consideration in law; combined with the principle that consideration must be sufficient but not necessarily adequate makes it too easy to establish consideration between contracting parties.60 Granted, these are cogent arguments that correctly point out the inadequacies inherent in consideration. However, as Blair and Hird have enlightened: ‘[It is a] mistake to imagine that the world of business is entirely comprised of hard players who will take advantage of favourable aspects of the law to steal the march, not only on 54 P

W Lee, supra n.1, 199-200 Thampapillai supra n.35, 311 56 Nick Seddon, Rick Bigwood & Manfred Ellinghaus, Cheshire & Fifoot – Law of Contract (10th ed), (LexisNexis, 2014), 216.

57 Arthur Corbin, Corbin on Contracts (West Publishing, (1952) at [172]).

58 D Thampapillai, supra n.35, 303 59 Chen-Wishart (n 39) 123–24, 131–32, 138. See also P W Lee at 196 60 [2009] SGCA 3 at [106] 55 D

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Singapore Comparative Law Review their competitors, but also on anyone with whom they have dealings. If goodwill and a reputation for fair play are valuable business assets then the majority of business people will presumably seek to cultivate them’.61 Nonetheless, the aforementioned criticism remains valid. This points towards the fact that the ‘practical benefit’ needs to be applied in a more watertight manner to prevent exploitation. It is therefore submitted that a debtor must aim to make a substantial payment on the existing debt.

This ensures that a commercial benefit rather than one that is too de minimis to be real, qualifies as a practical benefit. From the creditor’s perspective, this ensures that they are also not captive to the fortunes of the debtor and may still reclaim a sum of money that provides them with a benefit.

Another defence is that the rule in Foakes serves the purpose of protecting the creditor from a defaulting debtor.62 By failing to find fresh consideration, the promisor is protected from having to pay twice for the same promise. However, maintaining this position tips the balance too favourably towards the creditor as it effectively gives him or her two sets of choices at two different points in time.63 Initially, the creditor can suggest that he or she will accept a lesser sum of money, then subsequently retract and demand full payment of the debt. Worryingly, this will hinder certainty and completeness in contractual dealings as the creditor can simply resile their promise.

On a theoretical level, this position sits uneasily with the equitable doctrine of promissory estoppel.

In a scenario where a creditor agrees to accept partial payment, it is likely that the debtor will proceed to order their finances around this promise. If the creditor proceeds to resile his promise and brandish the rule in Foakes, this will create unfairness as the debtor may not have enough cash on hand. Thus, allowing Foakes to override promissory estoppel will create large inequity in instances where there is detrimental reliance. Thus, Foakes ought not to be maintained as it creates an unequal power dynamic for creditors to exploit.

Perhaps the most challenging objection to the practical benefit exception is the concern that economic duress may not be an adequate safeguard. 64 Where the court fails to find economic duress, the promisee effectively benefits from his own wrong. This point is best illustrated through

61 Ann

Blair and Norma Hird ‘Minding your own business – Williams v Roffey re visited: consideration reconsidered’ (1996) Journal of Business Law 254, 260.

62 D Thampapillai, supra n.35, 304-307 63 Ibid, 316 64 Ibid, 307

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Singapore Comparative Law Review the facts in Sharon Global Solutions Pte Ltd v LG International (Singapore) Pte Ltd (“Sharon Global”).65 In Sharon Global, the claimant was a small Singaporean company with no significant assets or records. It had entered into an agreement with the defendant to secure vessels to ship the latter’s steel to its clients. The claimant underestimated the cost of securing a shipment vessel and struggled to find a vessel. By the time the claimant secured a vessel, it was at a significantly higher price. The claimant told the defendant that unless they agreed to share out the increased freight cost, the charter would be relinquished. Facing the prospect of negative commercial and reputational consequences if they failed to deliver the shipment on time, the defendant acquiesced to the arrangement.

However, the judge found that the claimant’s demand to share in the additional freight cost was a legitimate notice of its inability to perform rather than an illegitimate threat. This verdict was predicated on two points. First, the court noted that the plaintiff was not acting unconscionably as it did not seek to profit from the transaction. Rather, the plaintiff had agreed to bear a share of it even when it did not have the funds for that purpose.66 Second, the court was not satisfied that the defendant “had its back pushed against the wall”.67 The holding in Sharon Global accords no protection to a promisor that is placed in an exploitable position because of a promisee’s very incompetence. This highlights the limitations of the doctrine of duress, opening up a plausible argument that there is a lacuna in contract law that needs to be filled.

Yet seen from another perspective, this might point towards the court’s desire to uphold contract law’s rules on the mitigation of damage, which require parties to renegotiate in light of changing circumstances. It must be recognised that the law of contract serves the marketplace and that it does not exist to lawyers’ desires for neat rules.68 To stimulate economic vibrancy, the law should complement commercial reality and extend what may be considered as a practical benefit. This will go towards negating the traditionally unjust and harsh operation of consideration and promote greater certainty in fulfilling contractual promises.

[2001] SGHC 139 Ibid, 377 67 Ibid, 377 68 Coal Cliff Collieries v Sijehama Pty Ltd Coal Cliff Collieries v Sijehama Pty Ltd, (1991) 24 NSWLR 1 22 65 66

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Singapore Comparative Law Review CONCLUSION To summarise, promises to pay less have been accepted as valid consideration to varying degrees.

While promises to pay less in tenancy cases have been accepted as a practical benefit in both jurisdictions, cases concerning a reduced debt recovery remain contentious in the United Kingdom.

Using MWB as a reference point, this essay suggests that an arrangement which would allow for some financial benefit should be recognised as a practical benefit. This would include some financial gain through an immediate payment, even if it is lower than the agreed upon amount.

Additionally, this benefit should not be an obscure intangible benefit. As explored by Kerr J in Simantob, intangible benefits such as prestige, standing, forbearance and one's expertise and contacts in a marketplace should not constitute as a valid practical benefit. This separation is crucial as it ensures judicial consistency with recent cases and that claims with a practicable financial basis get the necessary attention from the courts.

Thus, as mentioned at the beginning of this essay, the need for identifiable, quantifiable benefits preferably one that have an economical characteristic, would most likely be necessary for courts to consider its qualification as an “over and above” practical benefit. While the above criteria may imply that not fulfilling your contractual obligations goes unpunished, as elaborated in Singapore’s approach in contractual variations, keeping in my mind the economics of business decisions and relations, such an identification of practical benefit even in a promise to pay less, could still be viewed as beneficial. Rather, the practice of renegotiation may deter the expense of time and resources on recovery action.69 These negotiations will also allow parties to tailor resolutions which are better suited to their interests as opposed to a court verdict, thereby promoting commercial efficacy.

Thus, this paper concludes in agreement with academics such as Hill and Tominson that if England and Wales would like to remain a jurisdiction of choice for commercial disputes, the law must evolve to reflect the commercial reality. Lord Blackburn had already recognised this 127 years ago that the law did not reflect business reality.70 The need for such a reflection of commercial reality has only become more apparent, especially highlighted by the loans and debts incurred during the

69 70

[2012] VSC 43 (1884) 9 App Cas 605 (HL) at 662

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Singapore Comparative Law Review pandemic. Singapore has maintained its ability to reflect such a reality and it is only a matter of time before the UK evokes change.

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