Singapore Comparative Law Review (UKSLSS Law Journal) 2024

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Eyes Wide Shut: A comparison of how courts treat ousters of judicial review in cases of national security in the UK and Singapore.

Brandenburg v Singapore: Exorcising the Quidnunc Mentality From Singapore’s Law of Incitement

Force Awakens: A Comparative Review of Private Defence and Self-Defence in Response to the Use of Force

One SEPP Forward, Two Steps Back?: Charting the Potential Impacts of the New Scheme of Sentences for Enhanced Public Protection

Wong Jun Xiang and Jabez Teng Zhi Xian 221

The Necessity Exception to Litigation Privilege: Examining an Accused Person’s Right to Rely on Privileged Communications in the United Kingdom, Canada, and Singapore

Nicholas Chin 259

Punitive Damages: Intradisciplinary and Comparative Perspectives

Andre Chua Tze Ming and MirellaAng Yuan Ning 291

All Are Punished: Vicarious Liability and Punitive Damages in Common Law

Evan Chou 333

To Get-thy Images: Comparing the Fair Use of Copyright in AI Machine Learning in Singapore & UK

Liew Li Ren and Luke Zhang 372

PATRON’S FOREWORD

It has always been for me an immense pleasure and a great continuing education to be able to review the articles and essays of Singapore law students studying in UK law schools on current legal developments in Singapore and the UK. In addition to legislation, English common law continues to influence how our courts develop our own common law. Everytime a comparative study is published on an important area of private law or public law, there may be something in it that may be of interest to Singapore lawyers, law academics, judges or lawmakers, even if only confined to discerning how our future lawyers think about our legal system. This year’s edition of the SCLR has gone further to expand its scope of a comparative legal studies to between Singapore law and US law, which of course has a rich and diverse jurisprudence and caselawonconstitutionalrightsaswellascriminal laws,especiallyinareasofeconomiccrime. The editors of the SCLR have done an excellent job in putting together a diverse collection of well-argued articles on public law, criminal law and private law on fundamental issues of law, public policy and politics that will continue to test the legal philosophy of the Singapore courts, especially that of the apex court, which will set the trajectory of Singapore law for years to come.

Society does not stand still, especially a society like Singapore, where one of its most popular national songs is the evergreen conviction that “We can achieve”, which applies also to the goal of developing a legal system that is respected and envied for its adherence to the rule of law in all its manifestations,whetherin international relations ormunicipalrelations between thestate and the people in politics or economics, and social relationships. Singapore is an ordered state by design of the government, and seeks to be an enlightened state, politically and socially, within the framework of laws that deter and punish disorder within its physical as well as the digital space of social media. What can happen in physical space can be better and easier regulated for the public good than digital space which, because of its technological nature, has become a jungle of limitless space for anyone who can use a smart phone or a computer to say or do what they desire in this space.

The potential chaos that can result from an unchecked social media in Singapore has resulted in the Government enacting legislation to curb and regulate its excesses, as well as the response ofthejudiciaryininterpretingitsmeaningandpurpose,especiallyinareas wherethelegislation impacts the constitutionally protected fundamental liberties of free speech, peaceful assembly and freedom of religious belief and association. The current edition of the SCLR has a number

of interesting articles on this area of constitutional law, especially in connection with limiting or even ousting the judicial power of the court to review administrative actions or decisions that effectively make the government or its ministry the sole judgment of what is permitted or not permitted to the citizen or resident to do or not to do.

1. The Basic Structure Doctrine (Winner of the Chan Sek Keong Prize 2024)

In a well written, researched and argued article, Does the Constitution Have a Basic Structure? Koh Jia Hao explores the question whether there are any substantive limitations on the legislature’s power to amend the constitution under the Constitutions of India, Singapore and Malaysia, and surprisingly, the unwritten UK constitution. The basic structure doctrine (“BSD”) as developed by the Indian Supreme Court in 1973 denies the Indian Parliament the power to abrogate certain written or unwritten features that are so fundamental or basic to its identity or structure as a constitution that only the Constituent Assembly that that constituted the constitution had the power to amend it.

Under English law, the BSD is not relevant in the context of the sovereignty of the UK Parliament.However,Kohdetects, andargues thatthereis, aseismicshiftinjudicialperception of this hallowed doctrine by the UK Supreme Court Judges seemingly treating the doctrine as a creature of the common law, and not as extra-legal rule of recognition, and thereby arrogate themselves as the guardian of the constitution. Reference is made is made the unanimous judgment of all the Judges of the Supreme Court in R (Miller) v The Prime Minister 1 (“Miller II”) that parliamentary sovereignty and the principles of the UK constitution are creatures of the common law, and that ‘it is [the courts’] particular responsibility to determine the legal limits of the powers conferred on each branch of government’, reminiscent of Marshall CJ’s declaration in Marbury v Madison that ‘it is emphatically the province and duty of the judicial department to say what the law is’. This view is hotly contested by many constitutional law scholars who regard the judgment in Miller II as unconstitutional.

Whatever may be its jurisprudential foundation, the BSD may be said to be in a state of limbo, despitetheHighCourtjudgment in Teo Soh Lung v Minister of Home Affairs2 (“Teo Soh Lung”) which was uncritically followed by another High Court in Cheng Vincent v Minister for Home Affairs3 (“Vincent Cheng”) that the BSD does not apply to the Singapore Constitution. These

1 [2019] UKSC 41

2 [1988] 2 S.L.R.(R) 30

3 [1990] 1 S.L.R.(R.) 38

two decisions were decided in the context of a constitutional amendment to Article 1494 that authorises Parliament to amend the Internal Security Act to neutralise the Court of Appeal’s momentous decision in Chng Suan Tze v Minister of Home Affairs5 that the subjective discretionary power of the President to detain a person without trial under the Internal Security Act is contrary to the rule of law, and is subject to judicial review on objective grounds. Given the reasons and the specific nature or scope of the amendment, which showed that it was not Parliament’s intention to abrogate the judicial power as a feature of the BSD in safeguarding the integrity of a democratic political system of government embedded in the Constitution, the Court of Appeal did not consider it appropriate to decide whether the amendment was inconsistent with the BSD. In his article, Koh, after examining academic writings and judicial and extra-judicial pronouncements since then, concludes that despite the appearance of a rejection of the doctrine, the judicial reception of the BSD in Singapore has evolved from outright scepticism to an increasing acceptance, and that the path forward is clearly lit. The real testfortheSingaporeJudiciarywillcome,ifParliamentweretoamendArticle93inthemanner that the Malaysian Parliament amendedArticle 121(1) of the Federal Constitution.

In contrast, the Malaysian Federal Court (by a large majority, led by a dynamic Chief Justice), in a series of important decisions, has held that the Federal Constitution has a basic structure, one of whose features in the separation of powers. Hence, the judicial power of the Federation, as a co-equal power to the legislative and executive power may not be abrogated by Parliament by amending Article 121(1) to make the judicial power subordinate to the legislative or executive power, even if done in accordance with the procedural requirements of the amending power. Instead of declaring the amendment inconsistent with the BSA, the Federal Court read down the amendment so as not the affect the continuing existence of the judicial power in Article 121(1). The consequence is that any statute passed by Parliament that purports to oust the judicial power of the courts to review the validity or propriety of legislative and administrative action for unconstitutionality is null and void.

2. Ouster clauses in UK and Singapore

In this interesting article, Keyur and Nathanael contrast the approach of the UK and the Singapore courts in their treatment of ouster clauses, with particular reference to national security cases. The article starts with a summary of the development of the UK beginning with

4 Article 149 provides for legislation against subversion (as described in five broad categories).

5 [1988] 2 SLR(R) 525.

Anisminic6 (1969), Cart7 (2011),and Privacy International8 (2019).In Anisminic,theissuewas whethertheouster clause in section4(4) oftheForeign CompensationAct 19504whichstated:

“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”

was effective in ousting the supervisory jurisdiction of the court to review set it aside if it was wrong in law. The House of Lords held that an error of law was a jurisdictional error, i.e., it went to the jurisdictional of the Commission, and therefore such a determination was null and void. In Cart, the UKSC reaffirmed Anisminic, holding that only “the most clear and explicit language” could completely oust the High Court’s jurisdiction. This, of course, was a recognition that Parliament was sovereign.

However, in Privacy International, the UKSC held that section 67(8) of Regulation of Investigatory PowersAct (RIPA) which provides:

“...determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”

was not effective to oust judicial review in cases of error law but effective in errors of fact, again affirming Anisminic. However, one of the judges, Lord Carnwarth proposed a more flexible approach that considers both the statutory context and the nature of the legal issue in determining the level of scrutiny required by the rule of law, and that “it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review”. This proposition has led the authors to say that the general position of the doctrinal framework for ouster clause analysis in the UK is muddled, and that the law in UK on ouster clauses is neither formalistic reasoning in Anisminic nor the flexible approach of Lord Carnwarth. However, the authors did not deal with the decision of the UKSC in Miller II (see: Koh Jia Hao’s article on Basic Structure).

However, the main thrust of this article is about ouster clauses and national security, and in this context, the authors consider whether Chng Kin is correct in concluding in his article, ‘Microcontextual Considerations in Ouster Clause Analysis: A Comparative Study of Parallel

6 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

7 R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28

8 R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22

Trends in the United Kingdom and Singapore’, that national security concerns are only pragmatically taken into account, but will not “cause the courts to take an entirely different approach to ouster clause analysis”. After examining the judgments in Privacy International and some academic articles, the authors concur with Chng that national security considerations raise, at most, ‘practical concerns’ when determining the effect of an ouster clause, and that Scott is right to assert that there is no “national security exceptionalism” in the UK, and the court’s interpretation of ouster clauses is largely informed by constitutional principle rather than pragmatic concerns.

As to the position in Singapore, the authors examine the decision in Teo Soh lung v. Minister for Home Affairs and Others9, where Chua J held that the ouster clause in section 8B of the ISA73 had the effect of ousting the jurisdiction of the court to review the subjective discretion of the President in detaining a person without trial under the Internal SecurityAct. The authors conclude that (a) Chua J’s analysis was based on the language of the provision itself, not the fact that the statutory power in question concerns national security; (b) Chua J did not take any steps to interpretively neutralise the ouster clause, especially considering the constitutional rights at stake; and (c) section 8B was authorised by an amendment to Article 149 of the Constitution which provided that any Act concerning national security will be valid notwithstanding that “it is inconsistent with Articles 9, 11, 12, 13 or 14”, it provides that the court cannot set aside such an act based on such inconsistencies; it does not stipulate how the courts ought to interpret such acts. However, the language of section 8B is very clear, as it provides that “the law governing the judicial review of any decision made or act done… shall be the same as was applicable and declared in Singapore on the 13th day of July 1971”.

That was the law that Chua J had to apply, i.e., section 8B ousted the jurisdiction of the court to review the President’s subjective satisfaction. The actual ouster clause in the ISA is found in section 8B(2) which reads:

“There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of thisAct save in regard to any question relating to compliance with any procedural requirement of thisAct governing such act or decision.”

Teo Soh Lung argued that section 8B(2) was invalid on the ground that the destroyed the judicial power vested in the courts under Article 93 of the Constitution, and therefore was

9 [1989] 1 S.L.R.(R.) 461

contrary to the basic structure doctrine. Chua J held that the of the basic structure doctrine had no application in Singapore, and that in any case section 8B permitted judicial review for procedural impropriety. What of subsequent ouster clauses enacted under the Foreign Interference (Countermeasures)Act 2021 (FICA) and the Significant Investments ReviewAct 2024 (SIRA)?

Section 46 of SIRAand Section 106 of FICAare based on this drafting formula, and unless the relevant Acts are protected byArticle 149, may well be open to challenge for contravention of Article 93. Whether this formulation of ouster clauses that permits judicial review only on procedural grounds is invalid remains unsettled. The Court of Appeal avoided deciding this issue by holding that the ouster clause in the Misuse of Drugs Act was an immunity clause. However, in substance, there is no difference in law between an immunity clause and an ouster clause. Notwithstanding a constitutional amendment to Article 93, sooner or later the courts will have to decide whether or not an ouster clause, however it is framed, is consistent with Article 93.

3. Detention Without Trial of Criminals

In their joint article “An instrument of last resort”? A New Perspective on the Criminal Law (Temporary Provisions) Act 1955”, Nickolaus Ng and Ryan Lee provide a useful summary of the socio-political history of the CLTPAfrom its enactment in 1955 up to its recent renewal as amended for another 5 years up to 2029.Although meant to be a temporary law for only 3 years initially, it has been renewed ever periodically ever since. As observed by the authors, the CLTPA was enacted in response to the threat to law and order by secret societies, which it has succeeded brilliantly. The law now targets criminal activities of all kinds. The CLTPA was, and is, not meant a preventive law against threats to national security – for that we have the ISA.

Nevertheless, the abiding concern or fear among right-thinking people is not so much that the lawwill be abused,but that it mayensnare theinnocent onthe basis of hearsayevidence,unless sufficientprocedural and evidentiarysafeguards areput in place to ensurethat only the “guilty” are detained or supervised. The CLTPA cannot be criticised on this score, given its elaborate procedural safeguards. Between 2019 and 2024, 86 DOs and 37 PSOs were issued under the CLTPA. These statistics suggest that the CLTPA has been used judiciously in accordance with its purpose. Given that a DO or a PSO is subject to judicial review on the ground that there is no factual basis to detain a person on the grounds stated in the DO or the PSO, there is adequate

judicial safeguard for any wrongful detention. Singapore’s reputation as a safe society is legendary, and that is largely due to good governance, good policing and the presence of a law like the CLTPA. If a poll were taken as to whether the CLTPA has outlived its utilitarian purpose, and should be repealed, and that all suspected or known criminals must be charged in court before he can be deprived of his liberty, the result is likely to be to retain it. The CLTPA is likely to become a permanent feature of our criminal justice system, if only as a reminder to criminal elements that Singaporeans want their society to be safe.

4. What is the scope of section 267C of the Penal Code?10

Inhis ambitious article Brandenburg v Singapore:ExorcisingtheQuidnuncMentalityfrom Singapore’s Law of Incitement, Muzainy Shahiefisally refers to the law of incitement as developedunderUSlawin Brandenburg v Ohio11,(“Brandenburg”)toarguethattheSingapore High Court’s observations in PP v Yue Mun Yew Gary,12 (“Gary Yue”) on the scope of section 267C on incitement to violence, etc., is erroneous as it rests on a misguided approach to freedom of expression. Adopting Matthew Kramer’s theory of freedom of expression,13

10 Section 267C provides:

267C(1) This section applies where a person

(a) utters any words, or makes any sign or visible representation;

(b) places before a person any object;

(c) posts, publishes, distributes, sells or offers for sale any document; or

(d) communicates any electronic record, containing any incitement to violence, counselling disobedience to the law or to a lawful order of a public servant, or likely to lead to any breach of the peace, and the person does so

(e) intending for violence, disobedience to the law or such lawful order, or breach of the peace to occur; or (f) knowingorhavingreasontobelievethatviolence,disobediencetothelaworsuchlawfulorder,orbreach of the peace, is likely to occur as a result.

(2) This section also applies where a person (a) makes,printsorotherwisereproduces,imports,possessesorhasundertheperson’scontrolanydocument mentioned in subsection (1), for the purpose of posting, publishing, distributing, selling or offering for sale that document; or

(b) makes any electronic record mentioned in subsection (1) for the purpose of communicating that electronic record, and the person does so

(c) intending for violence, disobedience to the law or such lawful order, or breach of the peace to occur by the carrying out of the purpose mentioned in paragraph (a) or (b), as the case may be; or

(d) knowingorhavingreasontobelievethatviolence,disobediencetothelaworsuchlawfulorder,orbreach of the peace, is likely to occur by the carrying out of that purpose.

(3) The person in subsection (1) or (2) shall be guilty of an offence and shall be punished on conviction with imprisonment for a term which may extend to 5 years, or with fine, or with both.

(4) In subsection (1), “counselling disobedience to the law or to a lawful order of a public servant” includes (but is not limited to) providing instruction, advice or information that promotes disobedience to the law or such order.

11 (1969) 395 US 444.

12 [2012] SGHC 188.

13 Mathew Kramer, Freedom of Expression as Self-Restraint (Oxford University Press, 2001). Kramer’s argues that regulating communication (via speech or expression) qua communication violates freedom of speech or expression.

Muzainy seeks to demonstrate that the absence of the factors set out by Brandenburg render the Singapore approach inconsistent with the principle of freedom of expression. This is because such an approach expresses a quidnunc mentality which is at once both selfaggrandizing and self-abasing. Consequently, Muzainy argues for a Brandenburg-based approach to incitement under section 267C

In Gary Yue, the accused was convicted by the District Court14 of incitement under s 267C in respect of a comment he posted on Facebook on 9August 2010 with aYouTube link to a video of a former Egyptian president being assassinated. The comment stated: “We should re-enact a live version of this on our own grand-stand during our national’s [sic] parade !!!!!!” The High Court, on an appeal by the PP on sentence, held that (a) the District Court erred in interpreting s 267C as a strict liability offence, (b) mens rea was required to commit the offence, (c) the accused had intended to incite violence with his post, (d) the dominant purpose of the post was no more than to depict and suggest an act of violence against officials at a public parade, (e) his conduct was not frivolous but serious as it was a targeted outburst which was timed to coincide with National Day celebration. In relation to mens rea, the Judge said at [14]:

14 The … District Judge … made the substantive legal finding that, based on the “clear language” of the statute, s 267C created a strict liability offence. However, s 267C is conspicuously silent on the issue of the offender’s intention, and it is settled law that the mere omission of a mens rea requirement does not automatically entail strict liability.

Given that freedom of expression is a constitutional right under Article 14(2), albeit qualified underArticle 14(2), the Judge said at [38] and [45]:

38 Given the political context of the present case, I have been particularly mindful of the need to give sufficient weight to the value of free expression. A free and open discourse is indispensable to the proper functioning of any democracy, and provisions like s 267C may potentially have an adverse chilling effect on this vital civic conversation. That is not what s 267C was meant to achieve. Hence in my judgment s 267C cannot be a strict liability offence. The Prosecution must prove the mens rea beyond a reasonable doubt. …however, free expression cannot be so unfettered as to allow individuals at the fringes of society to cause harm under the guise of expression. While the personal and public benefits of free expression would sufficiently recompense for inevitable encounters with the rude, the obstinate, the obtuse

14 [2012] SGDC 115.

and even the offensive, it is no part of the constitutional bargain that citizens must bear violence or disobedience to law and order – or the threat thereof – as the price of free expression.Those who incite violence and disorder do not contribute to the national conversation – indeed, the effect of such provocation is to subvert the free exchange of ideas and to replace reason with violence. That has no place in a democratic society based on the rule of law. As such, the balance between the individual’s right to free expression and the public’s right to be free from harm must tilt towards the latter. It is also imperative that the courts who have discretion over sentencing exercise their power for the protection of the public and society as a whole.

45 … Section 267C is not targeted at any specific form of hate speech, nor does it amount to a provision specifically aimed at sedition. The purpose of s 267C is to prosecute and thereby deter those who, for whatever motive or purpose, seek to threaten public order by instigating and causing others to act with violence 15

(emphasis added).

In Brandenburg, the leader of a Ku Klux Klan group was convicted under an Ohio statute for criminal syndicalism. He had been filmed at a rally stating that “if our President … continues to suppress the white … race, it’s possible that there might have to be some revengeance taken.” The offender appealed against his conviction on the basis that the statute violated his right to free expression under the First Amendment of the US Constitution. The Supreme Court held that free speech under the FirstAmendment could be prohibited where it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Muzainy argues that the Brandenburg three-stage test in criminalizing incitement is normatively superior to Singapore’s two-stage test under s 267C as interpreted in Gary Yue: (1)acommunicationtoincitetoviolenceorlawlessness;and(2)eitheranintentionforviolence or lawlessness to occur or knowledge or reason to believe that violence or lawlessness is likely to occur. He argues that incitement under s 267C of the Penal Code should therefore be interpreted as providing a three-stage test: (1) a communication contains an incitement to violence or lawlessness which possess directive illocutionary force (corresponding with s

15 In PP v Tang Koon Huat [2017] SGDC 221, the accused made two incendiary Facebook posts about white people, with the latter post demanding that a “vigilante group” be formed to “beat up troublesome drunk WHITE bastards” and to “[t]each these bumps [sic] a lesson.”15 The District Judge, despite citing and accepting15 Loh J’s conjunctive characterization of s 267C’s purpose, held that “the offence of inciting violence clearly rules out the necessity for actual violence to have resulted in consequence of the incitement.” This decision has no precedent value.

267C(1)(a) to (d) and s 267C(2)(a) to (b)); (2) the communicator must have subjectively intended to incite violence or lawlessness (corresponding with s 267C(1)(e) and s 267C(2)(c)); and (c) the communicator must either know or ought to have known that violence or lawlessness was likely to occur (corresponding with s 267C(1)(f) and s 267C(2)(d)).

This reviewer takes the view that s 267C should be read as a whole, and if so read, sets out the three elements or stages identified or proposed by Muzainy. There is nothing in the High Court’s analysis in Gary Yew which suggests otherwise, since the Judge held that s 267C requires mens rea, as clearly provided in paragraphs (e) and (f) of s 267(1) and paragraphs (c) and(d)ofs 267(2),which refersto subjectiveintention andsubjectiveknowledge,respectively.

However, after stating his preferred test, Muzainy does not attempt to review Gary Yu, to consider whether the accused was correctly convicted of incitement on the facts of that case. Since the comment and offensive link were posted on National Day itself, arguably he had no intention to incite a similar act on the same day since it would not be possible for any would be assassin to carry out the threat successfully on the same day. An assassination needs meticulous planning.

This short review does not touch on (and therefore cannot do justice to) Muzainy’s defence of Matthew Kramer’s theory of free expression from its critics or its application to varying approaches to incitement, however intellectually challenging and interesting they are.After all, Kramer himself accepts that regulating speech or expression to prohibit or proscribe incite to violence is permissible under his theory because incitement itself constitutes a noncommunicative harm.16

5. Private Defence under the Penal Code and Self-Defence under the UK law

In their joint article, The Force Awakens: A Comparative Review of Private Defence and Self-Defence in Response to the Use of Force, Thomas Loke Zhih Hahn and Mark Theng Kaijun discuss the substantive differences between ‘private defence’ under Section 97 of the Penal Code 1871 (PC)17 and ‘self-defence’ under Section 76 of the Criminal Justice and

16 For a clear analysis of Kramer’s principle of free speech or expression, see Sebastien Bishop: Back to School: Matthew Kramer's Freedom of Expression as Self-Restraint (2023) 86 MLR 564-587. 17 PC 1871, s 97.

ImmigrationAct 2008 (CJIA).18 Both defences involve an immediate and instant need to react. Both provisions call for a fact-sensitive balancing exercise, weighing the accused’s conduct against the threat posed by the victim or any other relevant circumstances. The CJIA values subjectivity by using the accused’s honest belief in the circumstances as the starting point, while the PC demands his belief to be reasonable an objective standard.

These differences can be explained, first, by a more liberal application of personal partiality theory under English law, prioritising self-preservation over the victim’s right to physical integrity. Second, the margin of appreciation given to an accused’s use of force is narrower for private defence than for self-defence. This can be explained by Singapore’s exclusive partial defences, EPD and sudden fight, which more readily embrace cases of unreasonable force that fall out ofthescopeofprivatedefence.Whiles 102PC appearsto designateadifferent measure of reasonableness when death is caused for private defence, in practice, this is unlikely to yield different results compared to self-defence. Overall, private defence, together with EPD, covers a wider range of the defendant’s conduct, since the latter is uninhibited by any ‘reasonable force’ requirement. However, the complete acquittal in self-defence, compared to the downgrading of charges in EPD, demonstrates a more lenient treatment towards the defendant. Whether private defence or self-defence will be more beneficial to a defendant depends on the particular factual matrix.

The authors argue that highlighting these differences allows Singapore and the UK to consider new reforms to remedy their distinct issues. To avoid a binary, restrictive choice of electing between a murder conviction and a full acquittal in cases of homicide, the UK could adopt a partial defence similar to Singapore EPD, which recognises different shades of culpability. For Singapore, it could accord greater importance to the accused’s honest belief. This would appropriately show sympathy for an accused acting under pressure and accurately match the court’s decision to their culpability.

Thomas Loke and Mark Theng have made out a reasonable case on moral grounds for private defence that gives more latitude to an accused’s honest belief, since it is difficult, if not practically impossible, to determine whether, on recalled evidence, the accused has exceeded his right of private defence. This evidentiary problem is especially problematical under a

18 Criminal Justice and ImmigrationAct 2008, s 76(2)(a).

regime where s 300 murder is punishable with mandatory death, as was the case in Singapore before 2015. Now except for s 300(a) murder, punishment for murder under s 300 (b) to (d) is discretionary death, but mandatory life imprisonment, the situation is less dire for the accused in relying on private defence to a charge of murder.

6 Nature of non-charitable purpose trusts and their utility in wealth management

Intheirjointarticle,WhoDoWeTrust:PrincipledandPragmaticObstaclestoRecognising Non-Charitable PurposeTrusts in Singapore, Ang Li Hui, Kenneth Poh discuss the pros and consofrecognisingthenon-charitablepurposetrusts(‘NCPTs’)underSingaporelawfollowing a Law Reform Committee Report calling for their recognition in order to enhance Singapore as a wealth management hub. under Singapore law.19 NCPTs are trusts established for public or private purposes, without identifiable beneficiaries, and whose purposes do not fall under an established head of charity. They present issues of ownership (the beneficiary principle) and enforcement (the enforcement principle). In Morice v The Bishop of Durham,20 the Master of the Rolls held “There must be somebody in whose favour the Court can decree performance”. On appeal,21 the Lord Chancellor held that the trust must be of such a nature that its execution could be controlled by the court, and if the trustee dies, the court itself could execute the trust.

In Re Denley’s Trust Deed22, the settlor company created a trust over a plot of land for the ‘purpose of a recreation or sports ground primarily for the benefit of the employees of the company’.23 Goff J held that the trust was not affected by the beneficiary principle as the trust is not so abstract or impersonal that it cannot be enforced against the trustees. Goff J’s decision remains controversial and not fully accepted by other Judges. In a later case, Re Grant24 Vinelott J characterised the Denley trust as a discretionary trust.

19 YL Tan & V Wu, 'Report on the Enactment of Non-Charitable Purpose Trusts', Law Reform Committee (May 2021) (‘Law Reform Committee Report’) at 5.2. This Report should be required reading for all law students who wish to have a full understanding of the nature of non-charitable purpose trusts.

20 (1804) 9 Ves Jr 399, 402-405.

21 Morice v The Bishop of Durham (1805) 10 Ves Jr 522. See also Re Astor’s Settlement Trusts [1952] Ch 534, 542, and Bowman v Secular Society Ltd [1917] AC 406, 441.

22 [1969] 1 Ch 373

23 Ibid at 373

24 [1980] 1 WLR 360,

Ang and Kenneth argue that while enforcement is important, the presence of a beneficiary is still the core of the principle, and that fundamentally, absent a beneficiary there is no trust, and absent a trust, there can be no enforcement. The two principles are the two sides of the same coin. In relation to the law in Singapore, they also argue the High Court in Goi Wang Firn25 has not expressly accepted the Denley trust by casting doubt on its persuasive value, and boldly predict that in future “it is manifestly likely that the proprietary construction will reign in Singapore”. They then examine the practical problems with using an enforcer, rather than a beneficiary or rights-holder, to enforce a purpose trust. Whilst a beneficiary may waive his rights under a trust, or permit or ratify a trustee to breach the trust by the trustee, an enforcer has no such right. This gives rise to the so-called “endless enforcement problem”, since the enforcer’s “duty to enforce the trustee’s obligations subsists at all times”, without a corresponding right of enforcement in any person to hold him to account for failure of enforcement. This theoretical problem does not arise in a Denley trust since the factual beneficiaries would have locus standi to obtain a court order to compel execution of the trust or even to remove him as trustee.

Ang and Kenneth also examine the merits of statutory NCPTs which they acknowledge can benefit immensely Singapore’s wealth management industry. Here, they compare the NCPT legislation of the Caymen Islands, Bermuda, Bahamas, Guernsey and Mauritius and found them all wanting for various reasons in the context of enforcement. They then examine the statutory scheme proposed in the SLRC Report which recommends, inter alia, a list of enforcers, including the Attorney-General and an enforcer appointed by the settlor. Any listed enforcer may intervene to compel performance of the NCPT. However, they argue that more enforcers do not necessarily mean more enforcement, and even the imposition of duties and sanctions do not generate obligations to enforce. In short, the problem remains who will move the mover if the mover himself does not move?

What then is the remedy to provide a surrogate beneficiary to enforce a NCPT? The authors find inspiration in Prof Kelvin Low’s suggestion of employing a public law official to enforce NCPTs, and in that vein propose the creation of a regulatory authority, similar to the Commissioner of Charities, who is able to audit the records of NCPTs, investigate irregularities and report cases of wrongdoing to the Attorney-General. By investing the trust enforcer with

25 Goi Wang Firn v Chee Kow Ngee Sing Pte Ltd [2015] 1 SLR 1049 (‘Goi Wang Firn’)

a public law dimension, the private law scheme of rights and duties (and its associated host of problems) may be circumvented. The obligation for this regulatory authority to act would be its public law duty to properly regulate the market for NCPTs. However, the authors also find it necessary to highlight three concerns associated with using a regulatory authority to enforce such trusts, which are as follows: (a) it must have adequate powers to check whether the trust is properlyexecuted;(b) it must beadequatelyfunded; and(c)theregulatory regimemust serve to promote Singapore as a wealth management hub, and not drive such trusts, especially family trusts) to other competing jurisdictions.

The authors’ conclusion from their examination of the doctrinal and economic aspects of NCPTs is neither positive or negative, or rather both positive and negative. They conclude that the recognition of NCPTs, whether by legislative or judicial creation, should be approached with caution. Of course, prudence says that too. The recent discovery of the largest ever case of money laundering in Singapore by a group of Chinese nationals is testimony of the hazards of purpose trusts without identifiable beneficiaries.

7. Principle and Policy: Reconsidering theApplication of Trusts in Family Property

In this article, Alec Chen examines the Singapore Court of Appeal’s judgment in Chan Yuen Lan v See Fong Mun26 (“Chan Yuen Lan”) which preferred the minority approach (based on resulting trust (“RT”) principles) to the majority decision (based on the common intention constructive trust (“CICT”) of the UK Supreme Court in Stack v Dowden27 (“Stack”) to determine the beneficial interests in non-commercial property of parties who have contributed unequally to the purchase price.28 The common intention was described by Lady Hale in Stack as being 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”.

The Court of Appeal in Chan Yuen Lan gave five reasons for preferring the minority resulting analysis over the majority analysis as follows: (1) it provides “pragmatic and clear guidance” on when resulting and common intention constructive trusts arise, and thus facilitates out of court settlements and prevents unnecessary and costly litigation; (2) it removes the distinction between the domestic and commercial contexts, which ensures better consistency of outcomes; (3) it prevents the court from imputing to (or foisting on) the parties a common intention which

26 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048.

27 [2007] UKHL 17.

28 Ibid at [160].

they never had; (4) it removes the distinction between the domestic and commercial context and means that either trust analysis can become relevant in any situation; and (5) it is consistent with situations where the transferors lack intention to benefit the transferees. The Court of Appeal held that the resulting trust approach is principled, fair and predictable, whereas the majority approach smacks of “palm tree justice in an unprincipled and arbitrary manner” since it is based on what the court thinks would have been their intention if they had thought about it at the time of transfer.

However, the author argues in favour of the majority CICTapproach as it rests on the equitable principleofunconscionableconduct,whereastheconceptualbasisoftheresultingtrustremains “as clear as mud, and provides the courts with no reason in principle as to why they arise in the domestic context”. The author rejects any suggestion that there are convincing policy reasons to support the minority RT analysis, as there are major flaws with the twin presumptions approach that arguably no longer reflect contemporary societal norms and expectations when it comes to family property.

Quo vadis? These kinds of family or partnership or close friend disputes are invariably highly fact sensitive as to their intentions. Hence, the remedy is to narrow the potential for such disputes, and this can be done easily and readily by imposing a professional duty or obligation on all conveyancing and family law practitioners advise their clients and document their instructions. The Law Society has the power to make any omission to do so a disciplinary offence which would also render the defaulting lawyer liable for negligence.Alec Chen should send his article to the Law Society as his contribution to making our legal profession more efficient in serving the public.

8. The New Sentencing Regime of SEPP

In their joint article, One SEPPForward, Two Steps Back? Charting the Potential Impacts of the New Scheme of Sentences for Enhanced Public Protection, Jun Xiang and Jabez examine one feature of the Criminal Procedure (Miscellaneous Amendments) Act 2024 (“CPMAA2024”) which is awide-rangingAct designedto improve the criminaljusticesystem to enhance public protection by (a) strengthening the levers to tackle crime, including serious sexual crime, and (b) enhancing transparency, fairness and coherence in the criminal process. The Act introduced, among other measures, a new scheme of “sentences for enhanced public protection (SEPP) under section s 304B of the Criminal Procedure Code which permits the continued detention of offenders considered to be “dangerous” after the expiry of a minimum

term set by the courts until the offender is found suitable for release. If so found, the offender would be released on licence first, and then subsequently unconditionally discharged, if appropriate. The courts have power to decide whether a SEPP is appropriate after considering riskassessmentreports forexperts,including mental health experts from the InstituteofMental Health (IMH).

The authors compare the SEPP scheme with the comparable sentencing model, the Imprisonment for Public Protection scheme, under the UK Criminal Justice Act (CJA) 2003, which was repealed in 2012, due to serious problems arising from (a) bureaucratic complexity, leading to increased delays and costs in operating the scheme; (b) lack of clarity in the way that prison sentences were explained to victims and public, and confusion about how the IPP scheme operated, creating a lack of public trust in the IPP scheme; (c) the excessively wide scope of applicable offences to 153 listed offences, compared with the previous scheme of automatic life sentences covering only 11 offences: and (d) lack of flexibility, discretion, and guidance for the courts in applying the sentencing scheme to prisoners considered sufficiently “dangerous”foran IPPsentenceto beimposed, and leaving it to theCourtofAppeal to develop a test of dangerousness based on future risk to members of the public generally.

The authors also point out that the IPPregime was also successfully challenged in certain cases by means of judicial review, and in the consolidated cases of James, Wells and Lee v United Kingdom, the European Court of Human Rights (ECHR) held that their rights had been breached.

The authors are optimistic that the SEPP will not suffer the deficiencies of the abandoned UK Public Protection scheme in view of the Government’s support for the scheme, and in leaving it to the courts to implement and develop the SEPP scheme, which the courts are likely to do so on a case-by-case basis according to the varied needs and conditions of offenders, and that the courts are unlikely to impose a SEPP sentence unless there is a good case, supported by sufficient medical and psychiatric evidence, to do so.

9. Is the Prosecution entitled to claim litigation privilege?

In his article, The Necessity Exception to Litigation Privilege: Examining anAccused Person’s Right to Rely on Privileged Communications in the United Kingdom, Canada, and Singapore, Nicholas Chin examines the judgment of the High Court in Public Prosecutor v Soh Chee Wen

and another29 that the Public Prosecutor was entitled to claim litigation privilege in respect of statements taken by prosecutors or police investigators in the preparation of conditioned statements and the preparation of witnesses for giving evidence in court (collectively, “witness interview sessions”). This was the first High Court decision that accorded litigation privilege to the Public Prosecutor. The decision was based on the judgment of the Court of Appeal in Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals30 (“Skandinaviska”) on the nature of litigation privilege, and the rationales of the two forms of privilege given by the Supreme Court of Canada in Minister of Justice v Sheldon Blank (Attorney General of Ontario, The Advocates’ Society and Information Commissioner of Canada (Interveners))31. However, the Court also held that the litigation privilege is subject to the crime or fraud exception, implied waiver, or the necessity exception.

The author accepts that since the Prosecution is a party to criminal proceedings, it should be permitted to assert litigation privilege, subject to a necessity exception which the Prosecution itself accepted in Soh Chee Wen, in view of Article 9(1) of the Constitution,32 which assumes that the accused is entitled to a fair trial and the right to defend himself with relevant and reliable evidence. For this reason, the Defence is entitled to the Prosecution’s litigation privilege being lifted in appropriate circumstances arise, as such exception would not undermineits purpose.Tworeasons aregiven: (a) theconcernis, to someextent,moreapparent than real, given the experience in Canada in recognising exceptions to legal professional privilege, and (b) the courts in the UK have recognised certain exceptions to legal professional privilege.

Soh Chee Wen isasurprisingdecisioninthatitfailingtoconsiderwhetherthePublicProsecutor can claim of litigation privilege in relation to police statements, which by their nature are not legal advice given by the Prosecution to the witnesses. Sections 128, 128A, 129, 130, 131 and 132 of the Evidence Act accord legal professional legal privilege only to advocates and solicitors, in-house counsel (including State Counsel giving advice to the Organs of State, the Government and its agencies), and interpreters and other persons who work under the

29 [2020] 3 SLR 1435

30 [2007] 2 SLR(R) 367

31 [2006] 2 SCR 319

32 Article 9)1) provides that ‘no person shall be deprived of his life or personal liberty save in accordance with law’.

supervision of legal professional advisers. These provisions do not apply to the Public Prosecutor or police investigators. Furthermore, section 2(2) provides that “All rules of evidence not contained in any written law, so far as such rules are inconsistent with any of the provisions of thisAct, are repealed.”

In Skandinaviska, which was a civil case, the Court ofAppeal observed that since sections 128 and 131 were modelled on the Indian Evidence Act of 1872 (Act I of 1872), which itself had its roots in English law, English decisions on legal professional privilege were relevant to ascertain the scope of the said provisions, bearing in mind s 2(2) of the Act. The Court of Appeal referred to the statement from Blank for a neat and succinct exposition of the different rationales of the two related privileges under Canadian law (which was similar to English law). Given this legal history, it should follow that, far from being entitled to claim litigation privilege under the common law, it is barred by the EvidenceAct, and instead, it has a statutory duty of disclosure under s 162 and s 214 of the Criminal Procedure Code 2010, as well as the twin Kadar decisions of the Court ofAppeal.33

10. The rationale of Punitive Damages in Private Law

In their joint article, Punitive Damages: Intradisciplinary and Comparative Perspectives, Andre Chua Tze Ming, Mirella Ang Yuan Ning discuss the comparative roles of punitive damages under Singapore law and US law, and also their doctrinal bases in breach of contract and tort claims under Singapore law, English law and Malaysian. Due to its length, this review will address only the doctrinal issues in awarding punitive damages in such claims.

Punitive or exemplary damages are a form of damages awarded in civil matters where the defendant’s conduct is found to be particularly harmful, reckless, or egregious. The philosophical basis for such damages may be a court’s way of conveying its disapproval of such conduct (which could include malicious conduct) and to deter similar conduct in the future. The description of the damages is self-explanatory. It is meant to punish the defendant commensurate to his conduct as an example to other defendants in like cases to show society’s condemnation or disapproval of such conduct, irrespective of the actual injury or monetary loss

33 Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 and Muhammad bin Kadar and another v Public Prosecutor and another matter [2011] 4 SLR 791.

suffered by the plaintiff. Hence, punitive damages may be said to be open-ended, depending on the court’s view of how egregious the defendant’s conduct is in each case.

The authors point out that punitive damages have been granted by English courts since the 18th century in a large variety of cases of assault, false imprisonment, defamation, malicious prosecution, trespass to land, trespass to goods, the rationale of punitive damages remains confusing and contentious, referring to the example of the convoluted case history of A v Bottrill [2003] 1AC 449 (“Bottrill”). The authors also suggest that punitive damages appear to be firmly rooted in the foundations of the law of restitution, and the remedy is likely to remain a necessary tool in any judiciary’s arsenal to effect justice. However, it is not clear to the reviewer what is lost that is being restituted or restored to the plaintiff, since by definition, the punitive damages are meant to punish and not to restitute loss, except the defendant has been unjustly enriched at the expense of or to the detriment of the plaintiff. Punitive damages are obviously different ordinary compensatory damages in contract or tort. That is why penalties in contract are unenforceable.

However, in ACB v Thomson Medical, the Court of Appeal declined to consider whether punitive damages can be awarded in contract, as the issue is extremely difficult, and it can be decided in tort in the factual circumstances of the case. The Court traced the development of punitive damages under English law from the 18th century up to Rookes v Barnard [1964] AC 1129 (“Rookes”), where the House of Lords, in the Court’s opinion, restricted punitive damages34 to three extremely limited situations in the tortious context. The Court, after referring to the rejection of Rookes by the Australian, New Zealand and Canadian courts, and also the decisions of the courts in Malaysia (which were ambiguous) and Hong Kong (which affirmed Rookes), held that Rookes, although previously applied by Singapore courts as the received common law, was no longer applicable to the circumstances of Singapore and, in any event, “ought to be modified by being replaced with a more logical as well as appropriate rule.”

After a close and extensive analysis of the divergent rationales for awarding punitive damages given or proposed by judicial pronouncements and legal scholars, the Court held that the law of tort should serve not only as a tool for the protection of private rights and interests and but also adopt a more “communitarian” approach in Singapore and accord it a wider role in

34 The Court also distinguished “aggravated damages” from “punitive damages”, referencing its decision in in Koh Sin Chong Freddie v Chan Cheng Wah Bernard [2013] 4 SLR 629 at [75]–[77])..

promoting societal welfare35. Punitive damages should therefore be imposed “not only to punish the defendant, but … also …legitimately… [to perform] wider social functions”. Citing an academic article,36 the Court accepted that the retributive function of punitive damages is both “forward looking”, and “backward looking”. It looks forward to making an example of the particular defendant to deter would-be tortfeasors from committing similar transgressions, and it looks backwards at the conduct of the defendant and imposes a condign sanction.

In this light, the Court concluded that for Singapore, punitive damages may be awarded in tort where the totality of the defendant’s conduct was so outrageous that it warranted punishment, deterrence, and condemnation. The fact that the defendant may have been punished by the criminal law or professional disciplinary sanction is a weighty factor to be taken into consideration when deciding whether to award punitive damages but it is neither determinative nor conclusive. The overarching principle is that the court should not make a punitive award when there is no need to do so. In short, whether punitive damages should be awarded in a tortious situation is really a policy issue for the courts to determine on a case-by-case basis.

Theauthorsconcludebystating thatmorecanbedonebyinter-disciplinaryorempirical studies to determine whether punitive damages is effective in its role of deterring, and thereby reducing, unacceptable societal conduct in social and commercial relations.

11. Does Vicarious Liability Cover Punitive Damages?

In his article, All Are Punished: Vicarious Liability and Punitive Damages in Common Law, Evan Chou examines the law as to whether an award of punitive damages against a vicariously liable employer. He referred to Kuddus v Chief Constable of Leicestershire Constabulary, 37 where the majority of the House of Lords discussed the categories set out in Rookes v Barnard in which such damages could be awarded, but declined to consider whether an employer could be saddled with punitive damages that could awarded against his servant or agent for his tortious acts. However, Lord Scott alone argued that the doctrine of vicarious liability for punitive damages against the employer was bound to fail as contrary to principle.

The author agrees with Lord Scott, for the vicarious liability and punitive damages cannot be applied to the employer for the same act of the employee, as held in several English decisions.

35 Andrew Phang and Pey-Woan Lee, “Exemplary Damages – Two Commonwealth Cases” [2003] CLJ 32

36 Bruce Feldthusen, “Punitive Damages: Hard Choices and High Stakes” [1998] NZLJ 741 at 750

37 [2002] 2AC 122.

Herejects thetheory,propoundedbyProfessorRobertStevens38 thatvicariousliabilityis based onattributingtheemployee’sacts andnothisliabilitytotheemployer,makingittheemployer’s act. He prefers the theory that vicarious liability is based on attributing the employee’s liability to the employer, and not on his acts to the employer. On that theory or principle, it is difficult to accept that the employee’s egregious conduct is somehow part of his obligations to the employer. Although there is no Singapore decision on this issue, the author did not examine whether the “communitarian” approach espoused in ACB to vicarious liability would permit the court to spread its wings, as a matter of policy, and render the employer vicariously liable for punitive damages to which the victim is entitled against the employee, who may not be in a position to pay such damages, whereas the employer’s liability for the employee’s acts could be covered by insurance.

39

12 AI and Copyright

In their joint article “AI image-generation and Copyright”, Li Ren and Luke provide a useful introductiontothepotentialbenefitsofartificialintelligence(“AI”)tomankindintheunlimited variety of ways it can advance knowledge and research in every field human activity. However, the article is only concerned with the potential impact of generative AI (“gAI”) in the context of intellectual property and infringement of intellectual property rights.

“gAI is artificial intelligence capable of generating text, images, videos, or other data using generative models, often in response to prompts. Generative AI models learn the patterns and structure of their input training data and then generate new data that has similar characteristics.”40

gAI generates content which may infringe the copyright of other content creators by virtue of copying or other restricted acts. This kind of infringement questions the paradigm of copyright infringement, where the act of infringement is necessarily understood to have been committed by a conscious natural person. SinceAI is neither conscious nor a natural person, infringement liability is an important issue to copyright owners. Who bears the liability of such infringement? How is liability apportioned among gAI developers and/or genAI users?

38 R Stevens, Torts and Rights (2007)

39 See Skandinaviska at [77].

40 See Wikipedia, and articles on the Internet.

The article focuses on two kinds of copyright infringements, primary and secondary, in relation to AI. Reference is made to relevant provisions (sections 16 and 22) of the UK Copyright, Designs and Patents Act 1988, which approach the Singaporean Copyright Act 2021 (“SCA”) have broadly adopted. For primary infringements, the claimant must show on the balance of probabilities, that the defendant carried out a restricted act, that there was a causal connection, and that the restricted act was carried out in relation to at least a substantial part of the work. In contrast, secondary infringements are acts by those that aid or abet the primary infringer of copyright i.e., those who facilitate copyright infringement. The essential difference is that liabilityforsecondaryinfringement furtherrequires aknowledgeelement (“kneworhadreason to believe”), whereas primary infringements are acts of strict liability.

The article discusses the copyright issues in (1) developing a training dataset and (2) the training of an artificial intelligence, from the perspective of UK and Singapore law, and (3) the issue of territoriality in claims for copyright and database right infringements. The difficulty for the claimant adducing evidence to prove database infringement is noted as the training database of AI systems is not generally publicly available due to its commercial value. A claimant would be unable to show proof of access i.e., that the defendant did actually access the claimant’s copyrighted content. Instead, the claimant would have to rely on similarities between works to persuade the court to infer copying. Once such an inference has been made, the defendant then has an evidential burden to discharge showing the work was independently created. The authors referred to the case of Getty Images (US) Inc v Stability AI Ltd, 41 where this issue as to whether the defendant infringed the plaintiff’s copyright by reason of the copying andcommunicationto thepublicwhereStableDiffusion(thedefendant’sAI)was used to generate an image that reproduces the whole or a substantial part of Getty Images’ copyrighted material, contrary to ss 16(2) and 17 of the CDPAwill be considered in a full trial.

This is the year ofAI and gAI. For law students,AI may be a boon, as it will assist them to find answers to legal problems easily, quickly and readily, and ease the burden of having to refer to textbooks, articles and troves of case law, provided they use their common sense, and some diligence, to spot so-called the hallucinatory responses in the AI generated answers. For lawyers, especially corporate lawyers, AI may be a bane to them. An article in the Financial Times (Monday 5 August 2024 at p 20) reports that AI will have a negative impact on profits

41 Getty Images (US), Inc. v. Stability AI, Inc., 1:23-cv-00135, (D. Del.)

and margins, as time is not on the side of the billable hours, and AI will slash the lawyer’s ability to bill long hours for in research, drafting and reviewing legal work for clients.

Concluding Remarks

This year’s collection of articles is one of the best I have had the privilege to review. They continue to teach me more than I ever need to know in my present circumstances. They are also stimulating to the inquiring mind as to where Singapore law is going, which is to say, where the Judiciary is going. I am glad that our law students in the UK continue to keep up with Singapore law while studying English law. It is heartening to know that they have found the time and made the effort to do so. The editors also deserve to be commended for making this edition possible

Chan Sek Keong Patron 17August 2024.

Named from left to right: Sujatha Baskaran, Celeste Chai, Lucia Marie Ng, PriyanshShah,TitusSoh,Ky-LynneToh,andTakashiBiswas.

GillianChoy

EDITORIALTEAM

AlldonGarrenTan

HuiLingTay

JiaHaoKoh

Editor-in-Chief

PriyanshShah

Managing

Editors

LiewLiRen NickolausNgCongHin

Editors

KaiZhenTek

KennethPoh

MatthewRamli

SherMaeGoh

YeoChoonWee

Dear Readers,

PRESIDENT’SADDRESS

This year we celebrate the 26th anniversary of the United KingdomSingaporeLawStudents’Society(“UKSLSS”)andthe publication of the 19th Edition of the Singapore Comparative Law Review (“SCLR”). I would like to begin by commending and thanking our Editor-in-Chief, Priyansh Shah, who has been spearheading the UKSLSS Editorial; from the recruitment of the UKSLSS’Blog team and SCLR’s Editorial team to the debut of this year’s SCLR, to which I am more than pleased to write an address for. I would like to also commendtheSCLR’sEditorialteamandwritersfortheircontributionsasthisyear’ssuccessful publication would not have been possible without them.

Year Recap

With a history of more than two and a half decades, the UKSLSS has flourished as a society for all Singaporean Law Students studying in the United Kingdom, with many of our seniors still contributing to our society as advisors, such as Nicole Lim for our Vacation Scheme Helpdesk,Andrew Ng for the Bar Careers Talk and my direct predecessor, Ethan Teo, who has formally joined the UKSLSS’ Board of Advisors. I believe that our seniors embody the spirit of community that the UKSLSS aims to provide and it is my hope that we take inspiration from them, passing on the passion, by providing support to each other and our juniors.

Throughout theacademic year,the 24th ExecutiveCommitteehas followedin ourpredecessors’ footsteps, to not just continue our career-centric events but to also continue building a sense of community and camaraderie among our members. In London, the UKSLSS continued inperson recruitment events with law firms such as WongPartnership, Rajah & Tann, Allen & Gledhill and Baker McKenzie. Wong & Leow. Apart from highlighting our deep relationship with these firms, the time and effort taken by our sponsors to travel to the UK also reminds us of their active and deliberate investments in our society’s members.We also executed our usual high-key events such as the Vacation Scheme Helpdesk, which brings together Singaporeans solicitorsbasedin Londonto adviseourmembers ontheirown paths, and ourBarCareersTalk, which brings together Singaporean and Malaysian barristers for the same purpose. Lastly, we

continued our annual Chinese New Year celebrations, where our University Representatives organised meals for our members within their respective regions.

Back home in Singapore over the summer, the society continued to operate with both firms’ and UKSLSS’events.Apart from our usual events with Shook Lin & Bok and TSMP, we also welcomed our newest sponsor, TKQP, with their Networking Night. The UKSLSS also organised our annual Freshers’ Tea for the newest addition to our society, the incoming Freshers, to prepare them for their sojourn abroad. Last but not least, the UKSLSS executed our annual flagship event, the Singapore Legal Forum where this Edition of the SCLR is scheduled to be published.

The 19th Edition of the Review

This segues to the subject at hand, the 19th Edition of the SCLR. Over the past (almost) two decades, the Review has returned annually with a wide diversity of submissions. As a comparative review, the SCLR inherently draws on the unique position of Singaporean Law students studying abroad to analyse and compare legal issues across the two jurisdictions. It is once again the Review’s privilege to have former Chief Justice Chan Sek Keong as its patron, as we mark twelve years under Justice Chan’s valuable patronage and mentorship.

The SCLR bears special significance to me personally as it is also my second year of being involved with the SCLR publication. Last year, I had the privilege of sitting as the Managing Editor of the 18th Edition and it is my pleasure to see the SCLR’s renewal as the UKSLSS president this year. The SCLR refocuses our attention as law students, reminding us that our legal education is different from legal practice as we are not confined to just what the law is. On the contrary, we, as students of a learned and rigorous discipline, should not take the law for granted or at face value. Instead, we ought to question the law’s underlying jurisprudence and consider what the law should be and what it can be. While many credit the judiciary and legislature for effecting changes in the law, it is also worth reiterating that such changes usually begin with the legal scholarship generating debates that eventually contribute to such impacts. Contrary to popular belief (especially in mainstream media), the law student is not distinguished from their contemporaries because they are trained in legal research, writing or advocacy but because of the way they are trained to think.

Before I allow Priyansh to formally introduce the contents of this year’s SCLR, I would like to conclude by borrowing the words of James Russell Lowell, an American poet and diplomat,

who was also a law graduate, “True scholarship consists in knowing not what things exist, but what they mean; it is not memory but judgment”.

Your

President,

Soh Yi Fei Titus

24th President of the United Kingdom Singapore Law Students’Society

Dear Readers,

EDITOR-IN-CHIEF’SADDRESS

It is my great honour and privilege to present the 19th edition of the Singapore Comparative Law Review on behalf of the United Kingdom Singapore Law Students’Society.As he has for over a decade, Chief Justice Chan Sek Keong has continued to grace our publication with his patronage and guidance, which we are immensely grateful to receive. He has once again provided analysis in his foreword that adds further insight to the fascinating pieces herein. Our writers will surely take these valuable thoughts forward in their academic and legal careers. The Review is also grateful for the continued support of its sponsors, without whom its publication would not be possible in the first place.

The Review has come a long way from its humble origins in 2006. The current edition has taken the focus on Comparative Law another step further, by inviting submissions not only from Singaporean Law students in the United Kingdom but also those in Singaporean universities. This step forward is crucial in that we now not only discuss the perspective of those Singaporeans educated in English Law, but also those of Singaporeans educated in Singaporean Law. The combination of these perspectives brings a depth and texture to the edition that we hope will enrich all our readers. The 19th edition contains pieces from students in English Law as well as those in Singapore Law, and even alumni. We hope that the diversity of perspectives involved, often addressing similar areas of law, will be as illuminating for readers as it was for me.

2024 has been a year of highs and lows. For many, it is a year in which desolation ruled and solidarity has yet to prevail. For others, it is a year of immense hope. To me, it is a year in which it has become abundantly clear that there are no islands (if you will pardon the pun). In a world where we are so connected with each other, we must also now learn to understand each other. If we can do that, we can learn from each other, critique each other, advise each other, a grow a better future together. This is, in my view, the message of comparative law.

Comparative law takes one basic assumption: that the law in any jurisdiction referenced by the comparativelawyeris, at theminimum,avalidperspectivetohold.Fromthisbasicassumption, the comparative lawyer seeks out the better position, or even the happy medium. This process occurs equally for students, advocates, and even judges. There is an acknowledgement by all of us in the legal profession that there is wisdom in our counterparts beyond our shores that must be considered for the benefit of our own community. It is this fraternity of nations that I believe is most crucial.

Comparativelegal study is thereforeastudy ofpluralism, andrepresents anacademicdiscourse that treats us all as equals in a global community. In a world of division and polarity, it is a welcome breath of fresh air. We, as joint tenants of the planet, have many challenges ahead of us. These challenges we can only truly face together. Solidarity and mutual respect must guide us if we are to truly collaborate.

But this is not just about the world. This is also about the little island of Singapore. What has become abundantly clear is that not only does Singapore have much to learn from the world (indeed, there is no nation which is done learning), but also the common law world has come to learn much from Singapore.As Singapore emerges as a leader in commercial legal thought, and Singaporeans sitting on the bench, or as arbitrators, or as professors in schools of Law around the world continue to invest great thought and care into the jurisprudence they develop, it is now more than ever crucial to recognise the role each and every one of us holds to argue for not only what is, but what ought to be, in whichever jurisdiction we find ourselves in. We must learn, but we must also teach. Understanding is hard-fought, so it is all the more critical that it is shared. I hope that all the writers featured here and all of those reading this will continue fighting to understand and will continue working to explain.

Having waxed poetic about the state of the world, nation, and law, I must now move on to more important matters. I would like to extend my greatest thanks to my editorial team, who have worked fast, hard, and diligently to ensure that the pieces in this edition are up to the mark. They would be a credit in any organisation. I would also like to thank my predecessors for their continued guidance and support. Moreover, I would like to thank our society’s president, Titus, for lending his experience to the editorial (indeed, more than mine prior to this year) and for being an excellent aid in making complicated or difficult decisions. I am grateful too for the whole Executive Committee, who have necessarily helped along the way with all of our

publications, including the Review. Lastly, I thank you, dear readers, for ensuring that the insights in this Review do not go unread.

I hope that you will find in these pages something interesting, or something bizarre, or something brilliant, and I hope that you will never stop talking about those things and whichever others in the law take your fancy. The law is as old as history and almost as rich, and I hope all those who are lucky enough to be educated in it would also pursue the enjoyment of its wisdom. If you come away from this Review learning one new idea, or coming up with one of your own, and sharing that understanding, I believe this Review will have been a resounding success.

I received my position as the Editor-In-Chief on the back of an application in which I stated that what I bring to the role is love. Love of the law, love of the comparative law approach, and love of all people. That is also what I hang up my hat with. Whatever you do, do it with love.

With Love,

Priyansh Shah

Editor-In-Chief of the 19th Singapore Comparative Law Review

Success built on passion. A firm where great careers flourish.

Does the Constitution Have a Basic Structure?

Koh Jia Hao1

INTRODUCTION

This article explores the question: Are there any substantive limitations on the legislature’s power to amend the constitution? The basic structure doctrine (“BSD”) answers in the affirmative, positing that ‘a constitution has certain written or unwritten features so fundamental that they cannot be abrogated through constitutional amendments.’2 Part I takes a comparative lens and examines implicit substantive limitations on amendment power in the Indian, British, and Singaporean contexts. Part II explores the theoretical foundations of the BSD and the constituent/constituted powers dichotomy.

I. The Basic Structure Doctrine

1.1 India

The BSD was first accepted in the case of Kesavananda Bharati v State of Kerala3 (“Kesavananda”), where the Indian Supreme Court held by a 7-6 majority that ‘one cannot legally use the Constitution to destroy itself’.4 The BSD was used as a means to protect the “basic structure” or essential core of the constitution from any legislative amendment seeking to alter or destroy it. Hence, in addition to procedural limitations on constitutional amendment power, the BSD imposes substantive limitations on what amendments to the constitution Parliament can validly make. In support of the BSD, the judges advanced two main strands of argument.

1 London School of Economics and Political Science (LSE) (LLB Class of 2026)

2 Calvin Liang & Sarah Shi, ‘The Constitution of Our Constitution:AVindication of the Basic Structure Doctrine’, Singapore Law Gazette (August 2014), p 12, preamble

3 AIR 1973 SC 1461

4 Kesavananda (n. 3) at [690]

The first strand was the textualist argument that there exist logical limits on constitutional amendment. The use of the word “amend” in Article 368 of the Indian Constitution implied that ‘[t]he personality of the Constitution must remain unchanged’.5 Otherwise, the Constitution would be “destroyed”, which was not what the framers intended by “amend”. Hence, if the Constitution were to be amended so drastically that it ceased to be the same Constitution, such an amendment would fall beyond the scope of Parliament’s amendment powers conferred underArticle 368.

The second strand employed the constituent power theory, which will be examined further in Part II. Sikri CJ referred to the invocation of popular sovereignty in the preamble of the Constitution, that it is the people who ‘conferred this Constitution on themselves’ based on a ‘common understanding that fundamental rights would remain in substance as they are’.6 Shelat and Grover JJ highlighted that being a ‘body constituted under the Constitution’, Parliament’spowerofconstitutionalamendmentismerelya‘conferred’one,notingthat‘[t]wothirds of the members of the two Houses of Parliament need not necessarily represent even the majority of the people’.7 Regardless, the Constitution was ‘framed on the basis of consensus and not on the basis of majority votes’, pointing to the exercise of constituent power by “the people”. Hence, there exist legal limits on Parliament’s constitutional amendment power, notwithstanding the absence of express limits in the Indian constitution.

Traditionally, Indian jurisprudence, rooted in the British tradition, rejected the BSD. However, following the anti-constitutionalism associated with Indira Gandhi’s land reforms of the 1960s, the BSD was developed as a judicial counterbalance to the specific problem of a rogue legislature attempting to infringe fundamental rights and limit judicial review. Kesavananda was decided in response to the 24th Amendment, which amended Article 368 to expressly provide that Parliament has the power to amend any provision of the Constitution contrary to fundamental rights. Following Kesavananda, the BSD has continued to enjoy wide acceptance in Indian constitutional law. Notably, the 42nd and 39thAmendments were struck down using the doctrine. The former tried to undo the BSD and the latter attempted to place the election of

5 Kesavananda (n. 3) at [690]

6 Kesavananda (n. 3) at [307]

7 Kesavananda (n. 3) at [691]-[692]

the Prime Minister and others beyond judicial review. However, Indian courts have been criticised for the over-use of this nuclear option, as they have deployed it not only with respect to constitutional amendments but ordinary statutes as well.8

1.2 United Kingdom

The United Kingdom is famous for its uncodified, or “unwritten” constitution, lacking a single document labelled “the Constitution”. On one view, both the BSD and the notion of constitutional amendments have no application. Constitutional amendments may simply take the form of an Act of Parliament, with no additional formal requirement for its passage,9 such that the constitution may be described as ‘uncontrolled’.10 In the absence of a constitutional document for some basic features to be implied into, the BSD is not strictly applicable to uncodified constitutions. However, this does not prevent judicial review of legislation in a manner which is analogous to the BSD.

In this section, I argue that a seismic shift has occurred in judicial self-perception in the United Kingdom. Traditionally, parliamentary sovereignty was viewed as an extra-legal rule of recognition, described by Sir William Wade as the ‘ultimate political fact’.11 On this view, the BSD is wholly inapplicable. However, the last two decades have seen the Supreme Court turn parliamentary sovereignty into a creature of the common law, with courts emerging as ‘the guardians of the constitution’.12 Following Brexit and the accompanying political upheaval, Lady Hale observed that the Supreme Court is looking ‘more and more like a constitutional

8 See L. Chandra Kumar v Union of India [1997] 3 SCC 261; Ismail Faruqui v Union of India [1994] 6 SCC 360; G.C. Kanungo v State of Orissa [1995] 5 SCC 96

9 Although “first class constitutional bills” are considered by a committee of the whole House of Commons rather than sent to a standing committee at the committee stage, this represents merely a procedural requirement: Select Committee on the Modernisation of the House of Commons, “First Report” [H.C.81 (2007-2008)] at [74]-[76]

10McCrawley v The King [1920]AC 691, Privy Council

11 H.W.R Wade 'The Basis of Legal Sovereignty' [1955] CLJ 172, 188

12 Brenda Hale, Deputy President of the Supreme Court, ‘The Supreme Court: Guardian of the Constitution?’ (Speech at The SultanAzlan Shah Lecture, 9 Nov 2016)

court’.13 Nevertheless, the content of any emergent basic structure has been relatively desolate, onlyencompassingparliamentarysovereignty(albeitfundamentallydifferentfromitsorthodox conception), as well as arguably some possibility of judicial review of administrative action. The potential emergence of common law constitutionalism protecting fundamental rights and liberties does not, however, resemble the BSD since the judiciary has only insisted (in obiter) that these rights not be completely extinguished.

1.2.1 Diceyan “rule of recognition”

Under the traditional account of the British constitution, parliamentary sovereignty forms the bedrock of the British constitution. In the hallowed words ofA.V. Dicey, Parliament ‘can make or unmake any law whatever’ and ‘no person or body is recognised by the law of England as havingarighttooverrideorsetasidethelegislationofParliament’.14 However,asWadeargues, a logical corollary to parliamentary sovereignty is that there is ‘one, and only one, limit to Parliament’s legal power: it cannot detract from its own continuing sovereignty’.15 Forming the rule of recognition, the doctrine of parliamentary sovereignty is the ‘basic, legally unalterableruleof[theBritish]system[which]recognises Parliament’s substantivelyunlimited law-making authority’.16 As Avory J said in Vauxhall Estates Ltd v Liverpool Corporation, 17 ‘no Act of Parliament can effectively provide that no future Act shall interfere with its provisions’.18 And as Laws LJ put it in Thoburn v Sunderland City Council, ‘being sovereign, [Parliament] cannot abandon its sovereignty’. However, the rule of recognition is a social fact and not a legal rule. Although this rule of recognition cannot be amended by Parliament, it

13 Brenda Hale, ‘Should the Law Lords have left the House of Lords?’ (AddressBefore the Michael Ryle Memorial Lecture, 14 Nov 2018)

14 A.V. Dicey, An Introduction to the Study of the Law of the Constitution (first published 1885), 10th edn, 1959, London: Macmillan, p.39–40

15 H.W.R Wade, The Basis of Legal Sovereignty, 174

16 Richard Ekins, ‘The Relevance of the Rule of Recognition’(2006) 31 Australian Journal of Legal Philosophy, 95,102

17 [1932] 1 K.B. 733

18 Ibid p.743

would not be appropriate to characterise it as the UK’s BSD since the BSD is a legal doctrine originating from the common law.

1.2.2 Parliamentary sovereignty as a rule of the common law

Although it is uncontroversial that the principle of parliamentary sovereignty has evolved with the decisions in Jackson v Attorney General19 and R (Factortame Ltd) v Sec. of State for Transport, 20 it will be argued that it has been modified by the common law, transforming parliamentary sovereignty from the rule of recognition into a juridical principle and a creature of the common law, the first step required before any reasoning analogous to the BSD may be deployed.

First established by Laws LJ in the 2002 case of Thoburn v Sunderland City Council, 21 the doctrine of constitutional statutes paints a picture of the British constitution radically different from its orthodox conception. In contrast to a “flat” constitution where all statutes are equal and can be impliedly repealed, Laws LJ depicted a hierarchical constitution, where some ‘constitutional’ statutes are immune from implied repeal. In addition to statutes, Laws LJ recognised the existence of constitutional norms arising from the common law which also cannot be abrogated impliedly.

Although constitutional norms are only protected from implied repeal, and not specific or express repeal, of crucial importance is his view that the source of legislative authority is ‘derived from, and thus conferred by, the common law’.22 Hence, parliamentary sovereignty’s nature and scope are ‘ultimately confided’ to the courts, with the doctrine of implied repeal being the ‘common law’s own creature’.23 On this view, parliamentary sovereignty is not the ‘ultimate political fact’as per Wade, but a creation of the courts and hence prone to change as the common law itself changes. As Laws LJ notes in his judgment, the traditional doctrine of parliamentary sovereignty has been ‘modified … by the common law’, stripping Parliament of

19 [2005] UKHL 56

20 [1990] UKHL 7

21 [2002] EWHC 195 (Admin) (“Thoburn”)

22 Mark Elliott, ‘Embracing “Constitutional” Legislation: Towards Fundamental Law?’(2003) 54(1) NILQ 25, 33

23 Thoburn (n. 21) at [60]

the competence to abrogate certain fundamental rights and legislative provisions implicitly, althoughtheymustgivewaytoParliament’swillif‘itdoessobyexpress,oratanyratespecific, provision’.24 However, as Mark Elliott notes, just as the common law has evolved to arrive at its current position, it ‘may, at some future point, arrive at the conclusion that there are certain constitutional values or constitutional arrangements whose normative value are so great as to place them beyond any interference – specific or otherwise – by the legislature’.25

Later, in the 2005 case of Jackson v Attorney General, Lord Hope and Lord Steyn forthrightly argue that the principle of parliamentary sovereignty is a judge-made principle of the common law. Lord Steyn contends:26

‘Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle.’

Similarly, Lord Hope states:27

‘The principle of parliamentary sovereignty which in the absence of higher authority, has been created by the common law is built upon the assumption that Parliament represents the people whom it exists to serve.’

Conversely, Richard Ekins has strongly objected to the proposition that the judges created the doctrine of parliamentary sovereignty, calling it ‘bad history and bad jurisprudence’.28 Rather than a common law rule, parliamentary sovereignty is part of the rule of recognition which officials and citizens accept and affirm. On this view, the doctrine of parliamentary sovereignty represents the master meta-rule of the British legal system not created by the common law nor validated by any other rule. On the other hand, TRS Allan argues that the idea of the rule of recognition fails to explain legal reasoning in practice, showing that judges in fact rely on common law methods of statutory interpretation to integrate statutes with Dworkinian

24 Thoburn (n. 21) at [60]

25 Mark Elliott, ‘Embracing “Constitutional” Legislation: Towards Fundamental Law?’(2003) 54 NILQ 25, 34

26 Jackson (n. 19) at [102]

27 Jackson (n. 19) at [126]

28 Richard Ekins, ‘Legislative Freedom in the United Kingdom’(2017) 133 LQR 582, 601

principles of political morality.29 Hence, the principle of parliamentary sovereignty is not an empty vessel, but rather contains within it the deeper hypothesis of constitutional democracy protected from legislative abolition. Nonetheless, I argue that while parliamentary sovereignty is indeed not an empty vessel, its contents do not find their roots in natural law or political morality as TRS Allan argues. The principle of parliamentary sovereignty does not gain its legal authority from any political or moral virtue inherently possessed by aWestminster system of liberal democracy, but rather, it is a reflection of the constituent will of the British nation, as will be elaborated further in section 2.6.

Finally, the 2019 case of R (Miller) v The Prime Minister30 (“Miller II”) represented the final declaration by the Supreme Court that parliamentary sovereignty and the principles of the UK constitution are creatures of the common law. Despite the Supreme Court characterising Miller II as incremental and based on entirely well-established orthodox principles, it in fact represented a sea change that established the courts as the ultimate arbiters of the limits of parliamentary sovereignty. As Lady Hale remarked in the judgment, ‘it is [the courts’] particular responsibility to determine the legal limits of the powers conferred on each branch of government’,31 which echoes Marshall CJ’s declaration in Marbury v Madison that ‘it is emphatically the province and duty of the judicial department to say what the law is’.32 In extending their jurisdiction to the prerogative, the court exercised ‘argumentational sleights of hand’33 and a ‘card-shuffle’34 by distinguishing between the limits and the exercise of the prerogative, the former of which was held to be justiciable. Although the court affirmed parliamentary sovereignty as a foundational principle of the UK constitution, it went on to confer upon itself the authority to delineate the limits of the constitution’s basic principles,

29 T.R.S. Allan, ‘Legislative Supremacy and Legislative Intention: Interpretation, Meaning andAuthority’(2004) 63 Cambridge Law Journal 685, 686-687

30 [2019] UKSC 41

31 Miller II (n. 30) at [39]

32 Marbury v Madison [1803] 5 U.S. 137, 177

33 Aileen McHarg, ‘The Supreme Court’s Prorogation Judgment: Guardian of the Constitution orArchitect of the Constitution?’(2020) 24 Edinb. Law Rev. 88, 89

34 John Finnis, ‘The Unconstitutionality of the Supreme Court’s Prorogation Judgment’ (Sept. 28, 2019) Policy Exchange 5, 15

undermining the UK’s traditional political constitutionalism. Of importance is the fact that Miller II was an unprecedented unanimous judgment of all eleven Justices, the maximum number of serving Justices who are permitted to sit. The judgment was of only twenty-four pages long and written in ‘crystal-clear’ language meant for the general public,35 a move to firmly bring parliamentary sovereignty (among other constitutional principles) under the authority of the common law.

1.2.3 The content of the UK’s basic structure

If the British constitution can have a basic structure, what content would be imbued in it? Beyond the uncontroversial feature of parliamentary sovereignty, are there other unamendable features of the British constitution? Flying in the face of the Diceyan orthodoxy of parliamentary sovereignty, British courts have increasingly moved towards common law constitutionalism, aspiring to ‘convert the rule of law from a political aspiration into a juridical principle’.

36 A significant step was taken by Lord Bridge in X v Morgan-Grampian, where he argued that the rule of law rests on the twin foundations of the sovereignty of the Queen in Parliament and the sovereignty of the Queen’s courts. The following few decades have seen fiery and ‘revolutionary’ obiter dicta pronouncing the death of Diceyan parliamentary sovereignty. In Jackson v Attorney General, Lord Hope held that ‘the rule of law as enforced by the courts is the ultimate controlling factor on which our constitution is based’, while Baroness Hale hinted at strong-form judicial review in the event of legislative abrogation of fundamental rights. Subsequently, in R (Privacy International) v Investigatory Powers Tribunal, 37 Lord Carnwarth said that ‘in all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which [an ouster] clause should be upheld’.38

However, it is clear that, as of now, the rule of law (both in its thin or thick conception) is not an unalterable rule of the British constitution. In the context of ouster clauses, courts have allowed major incursions into the rule of law. Rather than treating the rule of law as an

35 Aileen McHarg, ‘TheArt of Judicial Disguise’(Sept. 30, 2019) Judicial Power Project

36 Martin Loughlin, The British Constitution:AVery Short Introduction (2nd edn, OUP 2023) 99

37 [2019] UKSC 22

38 Ibid [144]

unalterable rule of the constitution, courts have assessed the impact of the ouster clause on the rule of law. First, courts look at whether it leaves open some (albeit limited) possibility of judicial review. Secondly, courts evaluate the extent to which the public body, whose decisions are protected by the ouster clause, resembles a traditional court. In R (Oceana) v Upper Tribunal, 39 later affirmed by the Court of Appeal in R (LA (Albania)) v Upper Tribunal, 40 the High Court upheld the effectiveness of the ouster clause in section 11Aof the Tribunals, Courts and Enforcement Act 2007, introduced by section 2 of the Judicial Review and Courts Act 2022, with Saini J in Oceana and Dingemans LJ in LA (Albania) accepted that the wording of section 11Awas ‘sufficiently clear to change the scope of judicial review’,41 affirming that ‘the most fundamental rule of our constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme’.42 The courts have shown that the rule of law can be altered by Parliament, although they have insisted (in obiter) that Parliament not completely oust judicial review.

Therefore, following the shift from parliamentary sovereignty being the extra-legal rule of recognition to a creature of the common law, the BSD is now, in principle, applicable to the United Kingdom. However, an examination into the content of the British constitution’s basic structure yields a bare landscape populated only by parliamentary sovereignty and a highly impoverished version of the rule of law.

1.3 Singapore

Other than the one explicit substantive limitation that any bill restricting the sovereignty of Singapore must be approved in a referendum,43 are there implicit substantive limitations on Parliament’s constitutional amendment power? Despite the appearance of a rejection of the doctrine, the judicial reception of the BSD in Singapore has evolved from outright scepticism

39 [2023] EWHC 791 (“Oceania”)

40 [2023] EWCACiv 1337 (“LA (Albania)”)

41 LA (Albania) (n. 40) at [31]

42 Oceania (n. 39) at [52]

43 Constitution of Singapore,Article 6

to an increasing acceptance. First, I will present a brief sketch of Singapore’s constitutional history, before laying out the evolution of the judicial response to the BSD in Singapore.

From 1958, Singapore had a constitution of a self-governing British colony, which formed the basis of the State Constitution of Singapore of 1963 when it merged with the Federation of Malaya. In 1965, Singapore left the Federation and Parliament passed the Republic of Singapore Independence Act 1965, which declared that the State Constitution continue to apply,as well as certain provisions oftheMalaysianConstitution,suchasthoseonfundamental rights and citizenship. Thereafter, in 1980, the relevant documents were consolidated into a single document named ‘the Constitution of the Republic of Singapore’. Following that, fundamental changes have been made to the Constitution with the introduction of nonconstituency members of parliament (“NCMP”), group representation constituency (“GRC”), nominated members of parliament (“NMP”), and the elected presidency.

Due to the unexpected and abrupt nature of Singapore’s exit from Malaysia, its independence documents were negotiated hastily. Hence, the Singapore Constitution ‘did not have a storied birth’.44 Rather than enacting a wholly new constitution, a piecemeal approach was taken instead, which ‘knitted together, largely from existing sources, a renovated rather than a wholly new constitution’.45 Thus,Andrew Harding contends that the lack of a ‘constitutional moment’ in Singapore meant that there is no process to determine the intentions of the constitutionmakers.As such, it cannot be determined if the constitution-makers expressly or impliedly laid down a basic structure for the Singapore Constitution. Rather than being an action of a constituent assembly speaking for ‘the people’, as in India, the Singapore Constitution was born from a ‘gradual legislative process’, an evolution which is still ongoing.46

44 V.K. Rajah, ‘Interpreting the Singapore Constitution’ in Jaclyn Neo (ed.) Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2017) 23, 23

45 AndrewHarding,‘Doesthe‘BasicStructureDoctrine’ApplyinSingapore’sConstitution?AnInquiryintoSome Fundamental Constitutional Premises’in Jaclyn Neo (ed.), Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2017) 32, 35

46 Ibid 35

In Teo Soh Lung v Minister of Home Affairs (“Teo Soh Lung”),47 Chua J rejected the submission that there are constitutional amendments that Parliament has no legal power to make. On appeal, the Court of Appeal dismissed the application on a factual basis, but declined to consider whether the BSD was applicable to Singapore. Later, Chua J’s reasons were endorsed by another High Court decision in Cheng Vincent v Minister for Home Affairs (“Vincent Cheng”).48 In his judgment, Chua J relied on two main arguments, one textual and the other historical.

First, he held that judicial imposition of limits on Parliament’s amendment powers would be ‘usurping Parliament’s legislative function contrary toArt 58 of the Singapore Constitution’.49 He further pointed to the absence of express limits on amendment power, finding that:

‘If the framers of the Singapore Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations. But Art 5 of the Constitution does not put any limitation on the amending power.’50

However, the absence of express limits does not preclude the presence of implied limits, but rather points to the presence of implied limits.51 Starting from an assumption that no governmental power is unlimited, the lack of express limits implies that some limits exist but go unsaid. In any event, the absence of express limits does not, as Chua J seems to argue, point to the absence of implied limits. Rather, it is precisely because no express limitation exists ‘that an issue of law arises as to whether there is an implied limitation’.52 Moreover, the basic structure doctrine is rooted not in the intent of the framers, but in the inherent nature or foundational structure of a Westminster-style constitution.

47 [1989] 1 S.L.R.(R.) 461, H.C.

48 [1990] 1 SLR(R) 38

49 Teo Soh Lung (n. 47) at [35]

50 Ibid [34]

51 Liang & Shi (n 1) at [9]

52 Chan Sek Keong, ‘Basic Structure and Supremacy of the Singapore Constitution’(2017) 29 SAcLJ 619, 625

ChuaJ’ssecondargumentfocusesonthehistorical differencesbetweenIndia’sandSingapore’s constitutional history in an attempt to distinguish Kesavananda. Although these differences were not elaborated in his judgment, academics have subsequently expanded on this line of argument. Benjamin Joshua Ong argues that the legal power of constitutional amendment does not rest on popular sovereignty in Singapore. 53 Unlike in India, constitutional amendment in Singapore is not made explicitly contingent on the approval of ‘the people’. Similarly,Andrew Harding argues, as mentioned above, that the lack of a constitutional moment in Singaporean constitutional history precludes the application of the BSD.

Still, there has been signs of increasing judicial acceptance towards the BSD. In a 2012 lecture, Chan CJ argued, seemingly, that the BSD is applicable in Singapore, declaring that ‘judicial power is part of the basic structure of the Constitution and its exercise through judicial review is the cornerstone of the rule of law’.54 Furthermore, in the 2012 case of Mohammad Faizal bin Sabtu v Public Prosecutor (“Mohammad Faizal”),55 Chan CJ declared that the ‘principle of separation of powers, whether conceived as a sharing or division of sovereign power between thesethreeorgansofstate,isthereforepartofthebasicstructureoftheSingaporeConstitution’. Nevertheless, although there has arguably been open acknowledgement that the Constitution possesses a basic structure, Singapore courts ‘tend to use the [BSD] as an interpretive tool, as opposed to … a trump to strike down errant constitutional amendments.’56

However, major differences exist between the Kesavananda doctrine and the basic structure mentioned in Mohammad Faizal. Rather than reading in a constellation of extra-constitutional fundamental rights into the constitution as the Indian judges did, Chan CJ deployed a structural argument identifying the necessary structural form of Westminster-style constitutions, which will be elaborated further in Part II. Hence, as Kevin YL Tan highlights, the Kesavananda

53 Benjamin Joshua Ong, ‘The Basic Structure Doctrine in Singapore: A Reply’ (2014) Singapore Law Gazette (November 2014)

54 Chan Sek Keong, ‘The Courts and the “Rule of Law” in Singapore’(2012) Sing. JLS. 209, 223

55 [2012] 4 SLR 947

56 Liang & Shi (n 1) at [27]

doctrine is considerably more expansive than the ‘basic structure’ that Chan CJ spoke of in Mohammad Faizal. 57

1.4 International trend towards acceptance

It is clear that the international trend is moving towards accepting the BSD. Courts from differentlegaltraditions, inter alia inKenya,58 Bangladesh,59 Belize,60 andSouthAfrica,61 have identified an essential constitutional core beyond the reach of the legislature and which forms the constitutional identity. I next examine the story of Malaysia’s acceptance of the BSD, particularly given that one of Chua J’s reasons in Teo Soh Lung was that other jurisdictions with a Westminster model constitution, in particular Malaysia, had rejected the BSD.

Malaysia’s constitutionalstorybearscloseresemblanceto Singapore’s, with muchofits history being under hegemonic party rule. Despite social, cultural, and political differences between their respective constitutions, the Singapore and Malaysian constitution are both post-colonial Westminster model constitutions. In fact, certain applicable provisions of the Malaysian Constitution remained in force by the Republic of Singapore Independence Act 1965 (RSIA) after Singapore’s separation from Malaysia in 1965. Although Malaysian courts have traditionally shown a high degree of deference towards the political branches, employing an ‘insular, rigidly formalistic approach’,62 the story has changed following two decisions in 2017

57 Kevin YL Tan, ‘Interpreting the Westminster model constitution’ in Jaclyn Neo (ed.), Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2017) 47

58 Njoya & Others vAttorney General & Others [2004] LLR 4788

59 Anwar Hossain Chowdhury v Bangladesh [1989] 41 DLRApp. Div. 165

60 Bowen vAttorney-General [2009] BZ 2009 SC 2

61 Premier of Kwazuly Natal v President of SouthAfrica [1995] 12 BCLR 1561 at [47]-[49]

62 Yvonne Tew, ‘Strategic Judicial Empowerment’ (2021) 71(3) American Journal of Comparative Law (forthcoming) 35

and 2018, with Yvonne Tew characterising the decisions as Malaysia’s Marbury v Madison63 and Cooper v Aaron64 respectively.65

In the 2017 decision of Semeniyh Jaya, the Federal Court unanimously overturned the 1988 constitutional amendment for encroaching on judicial power and undermining the separation of powers. In 1988, the Malaysian Parliament amended Article 121(1) of the Constitution to provide that courts ‘shall have such jurisdiction and powers as may be conferred by or under federal law’. Subsequently, the courts adopted a highly literalist interpretation of the amendment, accepting that the scope of judicial authority is subject ‘entirely to the behest of the legislature’.66 However, citing Kesavananda, the Federal Court in Semeniyh Jaya endorsed theBSD,holdingthatParliamentdoes not havethe powerto abrogate‘critical’and‘sacrosanct’ features of the constitution, such as the separation of powers and the independence of the judiciary.67 Subsequently, in the 2018 decision of Indira Gandhi, 68 the Federal Court reasserted the basic structure doctrine with respect to the jurisdiction of Sharia courts, a highly sensitive area. Justice Zainun Ali wrote: ‘As part of the basic structure of the constitution, [judicial review] cannot be abrogated from the civil courts or conferred upon the Syariah Courts, whether by constitutional amendment,Act of Parliament or state legislation.’69

II. Theoretical Foundations

63 [1803] 5 U.S. 137 (in which the US Supreme Court established the power for the judiciary to strike down unconstitutional statutes)

64 [1958] 358 U.S. 1 (in which the US Supreme Court asserted the judicial supremacy established in Marbury v Madison)

65 Yvonne Tew, ‘Strategic Judicial Empowerment’ (2021) 71(3) American Journal of Comparative Law (forthcoming) 41

66 Yvonne Tew, ‘Strategic Judicial Empowerment’ (2021) 71(3) American Journal of Comparative Law (forthcoming) 36

67 Semeniyh Jayah [90]

68 Indira Gandhi [2018] 1 Malayan L.J. 545

69 Ibid [48]

2.1 Intention of the “Framers”?

Does the basis of the doctrine rest on an ‘unexpressed intention of the constitution-makers’70 or a ‘function inherent to any constitution’?71 I argue that rather than focusing on the elusive intentions of what John Hart Ely termed the ‘dead hand of the past’, it is both more accurate and preferable to take a functionalist view. Following Aristotle’s lead, such an account would argue that the purpose of a constitution is an aspect of its nature. A constitution that fails to advance its defining purpose is not merely a bad constitution, but fails to be a constitution at all. I first argue against the use of the ‘intention of the framers’, before setting out the constituted/constituent dichotomy and the argument from foundational structuralism. First, the intentions of the framers of the Singapore and British constitutions are elusive and practically impossible to ascertain. Writing in the context of legislative intent, Sir John Laws72 and Andrew Burrows73 have argued that it is impossible to identify any actual intention of a collective body such as Parliament beyond the vacuous and ‘barren’ sense set out by Richard Ekins that all parliamentarians intend to ‘change the law in the complex and reasoned way set out in the open proposal for legislative action’.74 Such an intent does not specify what those reasons are, and hence provide us with ‘no guide whatsoever’. It is a fig-leaf, a fiction. As Sir John Laws argues, if the intention of Parliament is truly what legitimises judicial review, ‘it mustbeanactual,notafictional,intent’.75 Thesamelogicholdswhenoneinvokestheintention of the framers of the constitution. Moreover, even if such an intent could be found, it would be impossible to discern an identifiable group called “the framers” in both the Singapore and UK contexts from which an intent can be drawn. In the absence of a constituent assembly, the “framers” of the Singapore Constitution might have been the parliamentarians of 1965-1979, while the “framers” of the UK Constitution might have been the parliamentarians and judges

70 Chan (n. 52) at 625

71 Liang & Shi (n 1) at [14]

72 John Laws, Statutory Interpretation – The Myth of Parliamentary Intent (Renton Lecture, November 2017)

73 Andrew Burrows, ‘Statutory Interpretation’ in Thinking about Statutes: Interpretation, Interaction, Improvement (The Hamlyn Lectures, Cambridge University Press, 2018) 1-44

74 Richard Ekins, The Nature of Legislative Intent (OUP, 2012)

75 John Laws, Statutory Interpretation – The Myth of Parliamentary Intent (Renton Lecture, November 2017) 15

of the past 300 years since the Glorious Revolution of 1688, or even the past 800 years since the Magna Carta was issued in 1215. In the Singapore context, Andrew Harding’s argument against the BSD’s applicability in Singapore rests on a fundamental (mistaken) assumption that the BSD must find its foundations in an intention of the constitution-makers.

2.2 Constituent power theory

The distinction between constituent and constituted powers was first highlighted by Abbe Sieyes, a political theorist of the French Revolution. In his famous political pamphlet ‘What is the Third Estate?’, Sieyes writes that the organs of the state are ‘constituted’ and empowered by positive fundamental laws, which are established by the ‘will of the nation’, a ‘constituent’ extra-legal power which is ‘prior to everything’.76 While constituent power is extra-legal with no limits, constituted power is a legal one whose scope is necessarily limited.

Further developing Sieyes’idea of constituent and constituted power, Carl Schmitt provided a defence of unconstitutional constitutional amendments deriving from his theory of the state as a political unity of a people prior to the existence of law, which comes into existence through a historical process. As he contends, ‘the concept of the state presupposes the concept of the political’.77 So too does the concept of the constitution presuppose the concept of the state. Hence, for Schmitt, the constitution, at its foundation, is an exercise of the political will ‘capable of making the concrete, comprehensive decision over the type and form of its own political existence’.78 He then distinguishes ‘the constitution’and ‘constitutional laws’, where the former represents a nation’s constitutional identity which cannot be amended. For Schmitt, the authority for constitutional amendment arises from the sovereign will of the people and hence operates ‘under the presupposition that the identity and continuity of the constitution as an entirety is preserved’.79

76 Emmanual Joseph Sieyes, ‘Qu’est-ce qui le Tier-Etat’(political pamphlet, Paris, January 1789)

77 Carl Schmitt, The Concept of the Political (trans Schwab) (first published 1927, University of Chicago Press, 1996) 19

78 Carl Schmitt, Constitutional Theory (first published 1928, Duke University Press, 2008) 76

79 Ibid 150

However,as Martin Loughlinhighlights, alargeswath ofAnglo-Americanjurisprudenceviews the concept of constituent power as redundant.80 In the positivist legal science of Hans Kelsen, law is simply a system of norms which bottoms out at the Grundnorm (founding norm), whose authority can only be presupposed. For HLA Hart, legal validity bottoms out at the rule of recognition, a social fact of consensus among law-applying officials.81 Hence, for both Kelsen andHart,theconcept ofconstituent poweris apolitical ormetaphysical concept with nojuristic significance.82 Similarly, in anti-positivist normative legal theory founded on the intrinsic morality of law, the concept of constituent power is redundant as well.83 For scholars like Lon Fuller and Ronald Dworkin, the authority of law flows from its intrinsic qualities of political morality, rendering superfluous the need for an authorising agent termed “the people”. However, this is ‘constitutional thought in blinkers’.84 Any examination of constitutional ordering must necessarily involve examining its origins, which bottoms out at the political choice made by a people. Hence, in generating legal authority from politics, the concept of constituent power must come into play.

2.3 The Ship of Theseus: Foundational Structuralism

Building on the understanding that amendment power is conferred or delegated, we may now ask: what are the limits on this power? Due to its delegated nature, we may imply the following limitation: the amendment power cannot be used to destroy the constitution. Under whatYaniv Roznai termed the foundational structuralist perception of constitutions, constitutions ‘are not merely ‘power maps’ that reflect the political power distribution within the polity’, but they ‘reflect certain basic political-philosophical principles, which form the constitution’s

80 Martin Loughlin, ‘The Concept of Constituent Power’(2014) 13(2) European Journal of Political Theory 218–237

81 HLAHart, The Concept of Law (2nd edn, OUP 1994)

82 Hans Kelsen, Introduction to the Problems of Legal Theory (trans, BL Paulson & SL Paulson) (Oxford Clarendon Press, 1992 [1934])

83 David Dyzenhaus, ‘The Question of Constituent Power’ in Loughlin & Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP, 2007) 129-145

84 Martin Loughlin, ‘The Concept of Constituent Power’(2014) 13(2) European Journal of Political Theory 218, 223

foundational substance, its essence’.85 These fundamental principles form a necessary component of that constitution, without which it would cease to be the same constitution. Hence, if one destroys these principles, one destroys the constitution. This idea finds its roots in theAristotelian claim that the identity of a polis is found in its constitution. Hence, ‘a change in the polis’identity cannot be considered a mere reform, but the birth of a new regime’.86

It is important to note that foundational structuralism does not necessarily rely on natural law rights. Prima facie, the BSD seems rooted in natural law theory. As Benjamin Joshua Ong writes, voiding amendments contrary to the basic structure is simply to ‘denounce a piece of legislation as “not law”’.87 However, as Roznai highlights, it does not necessarily follow from the proposition that there are principles with supra-constitutional status that these principles derive from natural law (i.e a superior and autonomous set of norms external from the constitutional order).88 The foundational pillars of the constitution are not found in natural law, but rather in the ‘“spirit” of legality that pervades the forms of constitutionalism to which societies commit themselves’.89

2.4 Necessary or contingent?

How broadly applicable is the BSD?Andrew Harding has distinguished two distinct senses of the BSD.90 On one view, the BSD is a necessary phenomenon, an inevitable consequence of a constitution being a constitution and adhering to constitutionalism.As Calvin Liang and Sarah Shi argue, the basic structure ‘represents the core minimum of what is required for any

85 Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017) 118-119

86 Aristotle, The Politics of Aristotle (Ernest Barker trans, OUP 1962) 98

87 Benjamin Joshua Ong, ‘The Basic Structure Doctrine in Singapore: A Reply’ (2014) Singapore Law Gazette (November 2014)

88 Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017) 78-79

89 MarkWalters, ‘Written Constitutions and Unwritten Constitutionalism’in Grant Huscroft (ed.), Expounding the Constitution – Essays in Constitutional Theory (Cambridge University Press 2008), 245, 261

90 Andrew Harding, ‘Is the “basic structure doctrine” a basic structure doctrine?’ in Rehan Abeyratne and Ngoc Son Bui (eds.), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge 2022)

[Westminster] constitution to work’.91 On another view, the BSD is contingent on a nation’s particular constitutional history.

It is submitted that in Westminster model constitutions the BSD is necessary in a ‘thin’sense, incorporating what KevinYLTan termed the ‘matrix’of Westminster-style constitutions, even if it is contingent on the exercise of constituent power in a strict sense.92 This matrix includes a ‘particular structural form’ of government and is imbued with fundamental rules of natural justice found in the substantive rules of the common law. Concerning the foundational structural form for a Westminster-style to work, it must specify a fair spread of powers and limits on each branch of the State. Hence, constitutional supremacy and the principle of separation of powers form part of the basic structure of any Westminster model constitution. However, beyond this, the content of the basic structure would differ from case to case. While it has been argued that Islam may be part of the basic structure of Pakistan’s constitution,93 secularism is part of the basic structure of the Indian constitution.94

2.5 Locus of constituent power in Singapore

Andrew Harding provides a critique of the view that the locus of constituent power rests in “the people”, arguing that without a constitutional-drafting process, Singapore’s Parliament stepped in and exercised constituent power in enacting the Constitution, in a way analytically similar to the English Parliament legislating for royal succession in the Glorious Revolution of 1688 after the abdication of King James II.95 Hence, since he argues that parliamentary sovereignty (and not constitutional supremacy) forms the grundnorm of Singapore, Harding contends that there is no reason why Parliament, the holder of constituent power, could not exercise this

91 Liang & Shi (n 1) at [14] (emphasis added)

92 Kevin YL Tan, ‘Interpreting the Westminster model constitution’ in Jaclyn Neo (ed.), Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2017) 47, 66

93 Mathew Nelson, ‘Amending constitutional standards of parliamentary piety in Pakistan? Political and judicial debates’ in Rehan Abeyratne and Ngoc Son Bui (eds.), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge 2022)

94 Kesavananda (n. 3) at [307]

95 Andrew Harding, ‘Parliament and the Grundnorm in Singapore’(1983) 25 Malaya Law Review 351

constituent power again to amend the basic features of the Constitution, or, a fortiori, enact a wholly new Constitution altogether.

However, in the modern era, the holder of constituent power is ‘the people’ as a political and legal unity, rather than a divine Monarch. Even in constitutions such as the Singapore Constitutionwhichlackexplicitmentionofthesovereigntyofthepeople, itisfromthepolitical will of ‘the people’ that a constitution of a modern democracy receives its normative status.96 Hence, although Chua J was correct in Teo Soh Lung that the Singapore Constitution lacked the invocation of popular sovereignty which was present in the Indian Constitution, it does not follow that the Singapore Constitution does not derive its normative authority from the constituent power of ‘the people’. Just as the Preamble of the Indian Constitution did not establish the constituent power of ‘the people’but merely recognised its existence, the lack of a similar provision in the Singapore Constitution does not preclude the existence of such a constituent power in the Singapore context.

2.6

Locus of constituent power in the UK

Despite the concept of constituent power rising to prominence in British constitutional argument during the mid-17th century, it has been ‘almost entirely eradicated from the constitutional discourse of modern Britain’.97 Martin Loughlin argues that historical reasons such as the restoration of the monarchy in 1660 and the reaction to the French Revolution led to an active suppression of the concept of a constituent power in British constitutional understanding. Emerging from the Leveller movement in the English Civil War and developed by Lockean ideas of popular sovereignty, late 17th century Whig thought posited that the supreme power vested in the legislature is held in trust for ‘the people’, who retain the supreme constituent power to change the constitutional framework of government. However, in the centuries after which saw the growth in the modern system of parliamentary government, the claim of the people as the originating power of government was eroded by the ‘conscious effort of British state-craft’. By the time of Sir William Blackstone’s Commentaries on the Laws of England in the 1760s, parliamentary sovereignty was unitary, absolute, and divine, with

96 Rene Barents, The Autonomy of Community Law (Kluwer Law International 2004) 89-90

97 Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’in Martin Loughlin & Neil Walker (eds), The Paradox of Constitutionalism (OUP 2007) 27

Blackstone emphasising the conceptual unity of King, Lord, and Commons in Parliament. In making the shift from law as custom to law as command, Blackstone severed the link between the constitution and the ‘fundamental liberties of the freeborn Englishman’.98 Following centuries of ‘repress[ion]’ and ‘subversion’, the resulting ‘obfuscation … came to be adopted as a main characteristic of the British genius for statecraft’.99 However, with the British constitution in major flux, it is perhaps time to re-examine the ‘elementary precepts of constitutional ordering based on the principle of popular sovereignty’ that have been ignored thus far.

In the British context, Parliament does not possess a priori formally conferred legal authority. Rather, it ‘progressively acquired its authority by accumulating legitimacy over the years … [and] overcom[ing] the prevailing authority of the monarchs’.100 Even Sir Ivor Jennings, himselfanadherent oforthodoxparliamentarysovereignty,said that‘thefundamental principle [of the UK constitution] is that of democracy’.101 Hence, standing behind the principle of parliamentary sovereignty lies a contemporary conception of a constitutional democracy. Nonetheless, it is highly contentious to term ‘the people’as the holders of constituent power in the UK. Although Martin Loughlin raises the question of constituent power in the UK, he is reluctant to point to ‘the people’ as its possessor, simply holding that the question has ‘never entirely been resolved, and that we are still living with these ambiguities’.

102

2.7 Comparative Evaluation

IncontrastwithIndiaandSingapore,thepotentialemergenceofcommonlawconstitutionalism in theUKdoes not rest ontheextra-legal authorityofaconstituent powerin enactingasupreme

98 J.C.D. Clark, The Language of Liberty 1660–1832 (Cambridge: Cambridge University Press, 1994), 83

99 Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’in Martin Loughlin & Neil Walker (eds), The Paradox of Constitutionalism (OUP 2007) 27, 38, 47, 48

100 Jowell, ‘Parliamentary sovereignty under the new constitutional hypothesis’(2006) PL, 562, 565

101 Jennings, Cabinet Government (3rd edn, Cambridge University Press, 1961), p.13

102 Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’in Martin Loughlin & Neil Walker (eds), The Paradox of Constitutionalism (OUP 2007) 27, 28

constitution. Rather, it is rooted in natural law theory.As per T.R.S.Allan, a key proponent of common law constitutionalism, the rule of law ‘denies the legal validity’of assertions of power contrary to the ‘standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity’.103 For Allan, ‘positive law is, at root, an instantiation of natural law’.104 Additionally, Jeffrey Jowell contends that in the absence of a constitutional text, the ‘allocation of authority is assumed not by reference to any formal grant, … but on the basis of a moral claim to its exercise (or limitation)’.105 However, as argued in Section 2.2, given that ‘constitutional legality is not self-generating’,106 a free-standing, autonomous, or ‘pure’theory of law cannot be achieved, neither by a founding norm whose authority is pre-supposed nor by appealing to a morality of law that adheres to intrinsically good moral or political values. Therefore, this essay argues for a re-examination of the British constitutional settlement in terms of the concept of constituent power.

In comparison with India, the (arguable) emergence of the BSD in Singapore only supports a basic structure that requires that a Westminster-style constitution have a necessary fabric that delineates a fair spread of powers. Like the ship of Theseus, a Westminster-style constitution fails to be a Westminster-style constitution if it lacks its necessary features such as representative government, constitutional supremacy, and a separation of powers. In comparison, Indian courts have folded a broad constellation of substantive human rights into the basic structure of the Indian Constitution.

Lastly, I briefly consider the normative question of whether courts should employ the BSD to strike down unconstitutional constitutional amendments. In mature democracies such as the UK,‘weak-form’dialogicreviewmaybepreferable,while astronger constitutional framework may be preferable (albeit difficult to achieve) in dominant-party democracies such as Singapore.Acknowledging that judges are neither ‘solitary crusaders for moral enlightenment

103 T.R.S. Allan, ‘Constitutionalism at Common Law: The Rule of Law and Judicial Review’ (2023) 82(2) The Cambridge Law Journal 236, 236

104 Ibid.

105 Jeffrey Jowell, ‘Parliamentary sovereignty under the new constitutional hypothesis’(2006) PL, 562, 565

106 Martin Loughlin, ‘The Concept of Constituent Power’(2014) 13(2) European Journal of Political Theory 218, 223

nor our saviours from democratic depravity’,107 we ought not to trust the moral judgments of judges over legislators. While some may argue that courts are institutionally better placed to be the final adjudicator on rights since they are insulated from the majoritarian whims of politics, they fail to take seriously the courts’ many institutional disadvantages, such as a limited access to empirical evidence to make informed decisions, and an unrepresentative, relatively homogenous judiciary. The appropriate point on the sliding scale of legal/political constitutionalism is not a universal one, but should be dependent on the ability of the particular country’s political process in preventingthepolitical branches infringing on rights. Ina country with strong political checks, the appropriate point may be closer to the political end of the legal/political constitutionalism scale. The UK Human Rights Act 1998 represents the paradigmatic weak-form, dialogic, or hybrid model of judicial review. For example, a section 4 declaration of incompatibility is not legally binding, but as Mark Tushnet observed, it effectively turns Parliament’s ‘last word’into a theoretical possibility that is never exercised in practice, assuming sufficiently high political costs.108 Hence, Parliament has (almost) always respected a declaration of incompatibility and has never modified a section 3 interpretation, even with evidence of substantial political dissatisfaction.109 In such a system, constitutionalism may be seen as a ‘collaborative’ endeavour, with the courts engaging in dialogue with Parliament.110

In contrast, Singapore’s People’sAction Party (PAP) enjoys a super-majority in Parliament and would likely suffer minimal political costs if the courts were to adopt HRA-style review, defanging the effectiveness of dialogic judicial review. Hence, as Yvonne Tew highlights, the vision of constitutional governance as a ‘shared endeavour’is simply an ideal which does not reflect constitutional reality in practice.111 Moreover, judicial passivity and restraint ‘shields

107 Aileen Kavanaugh, The Collaborative Constitution (Cambridge University Press, 2023) 24

108 Mark Tushnet, Weak Courts, Strong Rights (PUP 2009)

109 Aileen Kavanaugh, ‘What’s so weak about “weak-form review”? The case of the UK Human RightsAct 1998’ (2015) 13 ICON 1008, 1037

110 Aileen Kavanaugh, The Collaborative Constitution (Cambridge University Press, 2023)

111 Yvonne Tew, Constitutional Statecraft inAsian Courts (OUP, 2020) 131

constitutional transgressions with a cloak of legal legitimacy’.112 Rather than a dialogic role, courts in dominant-party democracies have a protective and constructive role to play. With the increased threat of majoritarianism arising from the PAP’s supermajority in Parliament, there is a greater need for courts to protect the political processes and preserve democracy. Furthermore, courts should take on a constructive role with a forward-looking approach to judicial review which aims to shape the constitutional landscape and build a culture of constitutionalism.113 Although the task may be a Sisyphean one given the potential damaging backlash from the government,114 the Malaysian experience following Semeniyh Jaya and Indira Gandhi has shown it to be an achievable one.

III. Conclusion

This article first introduced the origins of the BSD in Indian jurisprudence, before examining its relevance in the British and Singaporean contexts. In the former, it is argued that the BSD is applicable in principle, owing to a transformation of parliamentary sovereignty from an extra-legal rule of recognition to a rule of the common law. However, its content remains relatively barren, lacking the rich constellation of rights that feature in the Indian basic structure. As for Singapore, it is argued that the BSD is applicable, albeit in a less expansive way than in the Indian context. In Singapore, a more structural argument is advanced, which focuses on the particular form that is demanded from aWestminster-style constitution.Assuch, theprincipleofseparationofpowersfeatures prominentlyin theSingaporeConstitution’s basic structure. Nonetheless, Singaporean courts have failed to cross the Rubicon and strike down constitutional amendments as invalid. Next, the article laid out the theoretical foundations of the BSD, exploring questions of constituent power and constitutional identity. Lastly, it is argued that ‘weak-form’ dialogic review is preferable in mature democracies such as the UK, whileastrongerconstitutionalframeworkgroundedintheBSDmaybepreferableindominant-

112 Ibid.

113 See David Law & Hsiang-Yang Hsieh, ‘Judicial Review of ConstitutionalAmendments:Taiwan’in David Law (ed.), Constitutionalism in Context (Cambridge University Press, 2022): arguing for ‘transformative amendment review’to ‘precipitate or facilitate regime transformation’

114 Po Jen Yap, Constitutional Dialogue in Common LawAsia (OUP, 2015) 78

party democracies such as Singapore. While the exact contours and scope of Singapore’s BSD may yet be uncertain, the path forward is clearly lit.

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EyesWideShut:Acomparisonofhowcourtstreatoustersof judicialreviewincasesofnationalsecurityintheUKand Singapore.

KeyurGongulur*andNathanaelTung**

INTRODUCTION

Recent concerns over the Safety of Rwanda (Asylum and ImmigrationAct) 2024 in the UK and both the Significant Investments Review Act 2024 (SIRA) and Foreign Interference (Countermeasures) Act 2021 (FICA) in Singapore have thrust ouster clauses back into relevancy.Ononehand,thesedevelopmentscanbeseenastheexecutivedecidingthatcertain mattersarenotsuitedtothecourtsandarebetterservedwithspecialisttribunals.Ontheother hand,ousterclausesrestrictthecourtsfromensuringthatexecutivebodiesactwithintheirlegal limits, threatening the rule of law. This conflict is especially significant in cases of national security, where fundamental rights such as liberty and autonomy are threatened by the administrator’s decisions. While it is widely acknowledged that Singapore's jurisprudence mirrors thatof the UK, Chng1 briefly highlights a departure in thetreatment of ouster clauses in national security cases. Giventhenormative significanceof thesecases, this article seeks a deeper investigation into these disparities. This article will first investigate if and how the contextofnationalsecurityaffectsthejudicialtreatmentofousterclausesinbothjurisdictions, andsubsequentlyexploresthedifferencesbetweentheirrespectivestances.

A:UKPOSITION

1. Judicialtreatmentofousterclausesingeneral

*UniversityofCambridge,BA(Hons)inLaw,Classof2026

**UniversityofCambridge,BA(Hons)inLaw,Classof2027

1 Chng K, ‘Microcontextual Considerations in Ouster Clause Analysis: A Comparative Study of Parallel Trends intheUnitedKingdomandSingapore’(2022)20InternationalJournalofConstitutionalLaw1257-1280.

The first significant milestone in the general treatment of ouster clauses in the United Kingdom is Anisminic Ltd v Foreign Compensation Commission (hereinafter known as Anisminic)2 . Anisminic Ltd applied for compensation regarding mining properties it owned in Egypt which were nationalised during the Suez crisis and subsequently sold to an Egyptian state-owned enterprise. However, the Commission rejected this claim on the basis that the “successors in title”3 ofsaidpropertiesneededtobeBritish.Anisminicthussoughtjudicialreview,contending that the Commission made an error of law in interpreting the meaning of “successors in title”.

However, this was complicated by the ouster clause in section 4(4) of the Foreign Compensation Act 19504 which stated: “The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”5 The Lords interpreted the term “determination” to only refer to real, legally valid determinations and not purported determinations. A determination made with an error of law would place the deciding body outside of its jurisdiction, rendering the decision null and unprotected by the ouster clause. Lord Wilberforce argued that this interpretation actually upholds parliamentary sovereignty, since preventing a body from acting outside the powers allocated to them by Parliament is simply “carrying out the intention of the legislature”.6 It would defeat the purpose of a statute defining the limits of a body’s powers if those limits could be bypassed by an ouster clause.

The next significant development in ouster clause doctrine is the case of R (Cart) v Upper Tribunal (hereinafter Cart).7 Although no party argued that the decisions made by the Upper Tribunalwerenotamenabletojudicialreview,thedebateontheextenttowhichUpperTribunal decisions were open to judicial review did influence the judicial treatment of ouster clauses. Section 13(6) of the Tribunals, Courts and EnforcementAct 2007 (TCEA)8 allows individuals toappealUpperTribunaldecisionstotheCourtofAppealunderthesecond-tierappealscriteria.

2 Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147.

3 Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1962, art 4(1).

4 Foreign Compensation Act 1950.

5 Ibid, s4(4).

6 Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147, 208-209.

7 R (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663.

8 Tribunals, Courts and Enforcement Act 2007.

However, theAct is unclear as to whether Upper Tribunal decisions are open to judicial review by the High Court - which is especially significant in cases that do not meet the second-tier appeals criteria.

Lady Hale affirmed that only “the most clear and explicit language”9 can completely oust the High Court’s jurisdiction, affirming the interpretive presumption laid down in Anisminic Furthermore, as Lord Carnwarth notes, Cart represented a shift away from the formalistic approach in Anisminic to a more evaluative approach.10 Lady Hale’s judgment was based on establishing an appropriate level of independent scrutiny outside the tribunal system that was required by the rule of law. The court considered several contextual factors such as the new tribunal structure requiring a more “restrained”11 approach to judicial review, the need for sufficient protection against errors of law and the risk of overwhelming the judicial system should unrestricted judicial review be allowed. The court concluded that allowing judicial review only in cases which meet the second-tier appeals criteria would be a “rational and proportionate”12decision.

The impact of Lady Hale’s speech in Cart was released in the case of Privacy International v Investigatory Powers Tribunal (hereinafter known as Privacy International)13. There were two issue before the Supreme Court- (1) whether section 67(8) of Regulation of Investigatory PowersAct (RIPA) “ousts” the supervisory jurisdiction of the High Court for a judgment given by the IPT and (2) “whether, and, if so, in accordance with what principles, Parliament may by statute “oust” the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction”.14 Critically, section 67(8) was a more strongly worded ouster clause than that in Anisminic, stating that: “...determinations, awards

9 R (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663 [30].

10 Regina (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] A.C. 491 [84].

11 R (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663 [57].

12 Ibid

13 Regina (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] A.C. 491.

14 Regina (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] A.C. 491 [21].

and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”.15 It appeared that the parenthetical words were aimed at circumventing Anisminic-style reasoning.

Regarding the first question, the Supreme Court decided that the clause did not oust judicial review for errors of law as Parliament’s language was not sufficiently clear. Lord Carnwarth explained that although the plain words of the statute may aim to exclude judicial review, this “ordinary meaning had to yield”16 to the common law presumption against ouster established in Anisminic.Thus,thepoint oflawwas anarrow one -when read in thelanguageof Anisminic, the words in the parentheses would refer only to legally valid decisions. However, the clause is not rendered otiose as it would still be effective if the tribunal made a jurisdictional error of fact.17

In response to the second question, Lord Carnwarth advocated for a more flexible approach that considers both the statutory context and the nature of the legal issue in determining the level of scrutiny required by the rule of law.18 His Lordship further argued that the Anisminic principle was not applied uniformly in previous cases. Instead, courts “felt free to adapt or limit the scope and form of judicial review”19 even if such decisions were not justified explicitly in this manner. Thus, his now controversial remarks “it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review”20 can be seen as simply clarifying what was implicit in previous cases. However, this ‘flexible approach’, having not received support from the majority, is not constitutional orthodoxy. Nevertheless, it does indicate a shift away from formalist reasoning when dealing with ouster clauses.

15 Regulation of Investigatory Powers Act 2000, s67(8).

16 Regina (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] A.C. 491 [107].

17 Ibid [110].

18 Ibid [131].

19 Ibid [130].

20 Ibid [131].

The general position of the doctrinal framework for ouster clause analysis in the UK is muddled, especially after Privacy International. Ekins believes that Privacy International was ruled incorrectly, arguing that the Supreme Court misinterpreted section 67(8) of the RIPA. He submits that the judgment ‘warrants express reversal’, and that Parliament should emphasise that judges ought to interpret ouster clauses in the same way as any other enactment.21 Conversely, Allan believes that Lord Carnwath’s dicta - “binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court ''should be treated as a general legal principle.22 As the pioneer of the theory of ‘shared sovereignty’,Allan submits that law is ascertained by reference to both the words of the statute and the common law; in that sense, the law can never be in contradiction with the rule of law. However, naturally, the courts’treatment of Privacy International appears to be somewhere in between the two academics’positions. Neither do the courts regard Lord Carnwath’s judgment as incorrect, nor do they treat it as gospel. It appears that the position is somewhere in between the formalistic Anisminic reasoning and Lord Carnwath’s flexible approach - although the courts rely on formalist interpretation in determining the effect of the ouster clause, they are clearly informed by broader constitutional considerations.

2. Judicial treatment of ouster clauses in cases concerning National Security

The question for our purposes is whether the treatment of ouster clauses in cases raising National Security concerns departs from the ‘general position’. Chng submits that National Security concerns are only pragmatically taken into account, but will not “cause the courts to take an entirely different approach to ouster clause analysis”.23 We will now investigate

21 Policy Exchange, Richard Ekins, The Limits of Judicial Power: A program of Constitutional Reform (2022), pages 16-17

22 TSR Allan, ‘CONSTITUTIONALISM AT COMMON LAW: THE RULE OF LAW AND JUDICIAL REVIEW’ [2023] CLJ 82, 253

23 Chng K, ‘Microcontextual Considerations in Ouster Clause Analysis: A Comparative Study of Parallel Trends in the United Kingdom and Singapore’ (2022) 20 International Journal of Constitutional Law 1257, 1275

whether or not this assertion is right. The main authority for our purposes is the decision in Privacy International.24

The Investigatory PowersTribunal (IPT) was established under the Regulation of Investigatory Powers Act 2000 (RIPA); it was created to examine, inter alia, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.25 As observed by Lord Sumption, the IPTwas specifically designed to handle disputes where the subject matter raised national security and intelligence issues26; the detailed rules as to the procedure allowed Parliament to strike “a balance between fairness to a complainant and the need to safeguard the relevant security interests”. 27 In Privacy International, the claimant argued that the IPT had misinterpreted section 5 of the Intelligence Service Act 1994 (ISA), leading it to wrongly conclude that the Minister could authorise thematic computer hacking. However, as per s67(8) of the RIPA, unless otherwise provided by the Secretary of State, “determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”. As noted above, s67(8) presented the courts with two issues - whether s67(8) completely ousts the High Court’s jurisdiction and when can Parliament completely oust the jurisdiction of the High Court.28

When tackling these issues, the fact that the IPT deals with issues raising national security concerns was given different importance in the different stages of appeal. Sir Brian Levenson, in the Divisional Court, held that s67(8) does oust judicial review of the decision. He held that the IPT already exercises a supervisory jurisdiction over the actions of public authorities, and so there was no compelling reason to preserve the High Court’s jurisdiction in this case.29 Sales

24 Regina (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] A.C. 491

25 Regina (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] A.C. 491 [1]

26 Ibid. [169]

27 R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 [48]

28 Ibid. [21]

29 Ibid. [15]

LJ in the court of appeal, ruled against the claimants, affirming that the effect of the parenthetical words in s67(8) is to oust the supervisory jurisdiction of the High Courts for decisions made without jurisdiction because of an error of law, i.e. a purported decision.30 He also notes how Parliament’s intention when creating the IPT, was to “set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure of sensitive confidential information about their activities”.31 In particular, he relied on Dyson LJ’s judgment in Re (A), who held that considering the intense regulatory regime the IPT is subject to, it is “inherently unlikely” that Parliament “contemplated that such proceedings might be brought before the courts without any rules”.32 This is what prompted Sales LJ to accept Lord Brown’s dicta in Re (A)- that s67(8) was an unambiguous ouster clause- affirming that it was the only way to prevent the “the special procedural regime established for the IPT to be bypassed”.

It is clear that both the Divisional Court and the Court ofAppeal gave significant weight to the fact that the IPT handled cases that raised national security concerns; although it was not the only reason why they regarded s67(8) as ousting the High Court’s jurisdiction in the case, it was indeed one of the primary reasons. However, when the case reached the Supreme Court, the importance given to national security concerns changed drastically.

As noted above, Lord Carnwath and Lord Lloyd-Jones read s67(8) as only removing judicial review over jurisdictional errors of fact. For the majority, Parliament had not used sufficiently explicit and clear words to oust the review of the courts; the effect of the parenthesis, for them, was that it only excluded a legally valid decision relating to jurisdiction.33 When determining the effect of the ouster clause, Lord Carnwath dismissed arguments based on the security issues involved in many of the IPT’s cases. He affirmed that the IPT itself is able to “organise its procedures to ensure that a material point of law can be considered separately without

30 Ibid. [17]

31 Ibid. [18]

32 R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 [48]

33 Ibid. [111]

threatening any security interests”.34 For him, the fact that there was significant overlap between the IPT’s functions and general legal issues which may be considered by the ordinary courts, emphasised the importance of preventing the IPT from developing its own “island” of law. In essence, the fact that there are several safeguards in place to mitigate security concerns whilst dealing with the legal issues raised is the main reason why Lord Carnwath held that the arguments on national security are unconvincing. Scott attributes the difference in judicial emphasis on the subject matter of the IPT’s cases to the judgment in R (Haralambous) v. Crown Court at St Albans [2018], which was passed down before the Supreme Court rendered its decision on Privacy International.35 In that case, the Supreme Court held that judicial review of decisions rendered after closed hearings could also be performed through a closed procedure.36 Therefore, the risk of sensitive information being publicly aired was mitigated by the time Privacy International reached the supreme court; this rendered the reasoning of the lower courts obsolete.

However, considering the ‘flexible approach’ advocated by Lord Carnwath, maybe national security considerations still have a place in the ouster clause analysis. Lord Carnwath took the absence of a definition of the ‘rule of law’in section 1 of the Constitutional ReformAct 2005, as parliament empowering the courts to determine the contents of the rule of law.37 He also observed how the application of the Anisminic Principle has not been uniform, noting the inconsistent treatment of very similar ouster clauses. For instance, in the cases of Smith and Ostler, the courts gave effect to an ouster clause that was identical to the one in Anisminic. As noted above, Lord Carnwath believes that this inconsistency can be explained as the courts freely adapting or limiting “the scope and form of judicial review, so as to ensure respect on the one hand for the particular statutory context and the inferred intention of the legislature, and on the other for the fundamental principles of the rule of law”.38 According to Lord Carnwath, Cart established the idea that the level of judicial oversight required is determined

34 Ibid. [112]

35 Paul F. Scott, Once More unto the Breach: R. (Privacy International) v Investigatory Powers Tribunal, 24 EDINBURGH L. REV. 103, 104–05 (2020)

36 R (Haralambous) v. Crown Court at St Albans [2018] UKSC 1 [59]

37 Ibid. [120]

38 Ibid. [130]

by the rule of law. Nevertheless, national security is not a factor considered when determining the level of scrutiny required by the rule of law.39 For Lord Carnwath, the rule of law requires that the law applied by a specialist tribunal is not developed in isolation; it is crucial that it conforms to the general law of the land. He observed how the IPT not only decided cases of general public importance, but its rulings also had implications on legal rights and remedies; the rule of law requires that these issues be “susceptible” to review by the ordinary courts of the land.40 Importantly, the fact that the IPTdealt with issues raising national security concerns did not influence his analysis.This lends credence to Scott’s argument that there is no ‘national security exceptionalism’when interpreting an ouster clause.

But apart from the creation of “legal islands”, what factors are relevant when determining the level of judicial oversight demanded by the rule of law? First, it is clear that the courts are willing to give effect to an ouster clause when the statutory regime provides for alternative review mechanisms. As observed by Elliott, the ouster clauses in the Smith and Ostler cases bore a striking resemblance to that in Anisminic in terms of their textual language.41 However, whilethe"shall not bequestioned" clausein Anisminic was construedin amannerthatrendered it substantially ineffective, the equivalent provisions in Smith and Ostler were given full force, effectively precluding any judicial intervention by the High Court. Nevertheless, this denial of judicialreviewin Smith and Ostler was deemedconstitutionally acceptabledueto theprovision ofalternativestatutoryreviewmechanisms.Elliottcontendsthatthishighlightsthesignificance of not only textual interpretation but also the constitutional ‘palatability’of the ouster clause in the courts' application of it.42 Although the ouster clause was held to displace the jurisdiction of the high court for all reviewable errors, the threat to the rule of law was largely diminished by the creation of a statutory power of review. This idea is supported by the judgments in R (LA (Albania)) v Upper Tribunal (LA Albania) and R. (on the application of Oceana) v Upper

39 Ibid. [132]

40 Ibid [139]

41 Elliott, Mark C., Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution (January 5, 2018). Chris Hunt, Lorne Neudorf and Micah Rankin (eds), Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell, 2018) , University of Cambridge Faculty of Law Research Paper No. 4/2018

42 Ibid.

Tribunal (Immigration and Asylum Chamber) (Oceana). Dingemans LJ, ruling for the respondents, held that Lord Carnwath’s dicta in Privacy International“binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal"- did not apply since the section 11

Aof the TCEAdid not wholly exclude judicial review; rather judicial review was still possible on limited grounds.43 Similarly, Saini J, in Oceana, affirmed that the fact that Section 11A “allows for some judicial review ... means that the threat to the rule of law is not as great here as it might otherwise be”.44

Additionally, the courts consider the characteristics of the decision-maker and the statutory functions it performs. Elliott notes how in Cart, Lady Hale went to extraordinary lengths to conclude that only in exceptional cases will the High Court review a decision of theTribunal.45 This was because the UpperTribunal was a judicial body that exercised a judicial function, and so, judicial review should be limited to the grounds upon which permission would be granted to make a second-tier appeal to the Court ofAppeal. The view of the majority in Cart was that the rule of law requires sufficient, but not endless opportunities to challenge official’s decisions. They concede that no judiciary is ‘infallible’, and it was appropriate to accept some degree of error as long as the system worked efficiently and that decisions made were final.46

Considering the independence and judicial character of the tribunals, the court recognised that the constitutional need for ‘curial oversight’was very limited.47

43 R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337 [2024] 1 W.L.R. 1673 [30]-[34]

44 R. (on the application of Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 [2023] EWHC 791

45 Ibid

46 Regina (Cart) v Upper Tribunal (Public Law Project and another intervening) [2011] UKSC 28 [2012] 1 A.C. 663

47 Mark Elliott, Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution (January 5, 2018). Chris Hunt, Lorne Neudorf and Micah Rankin (eds), Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell, 2018) , University of Cambridge Faculty of Law Research Paper No. 4/2018

For the UK courts, factors like the characteristics of the decision-maker and the availability of alternative grounds of review are more important in determining the level of curial oversight required. Even if Lord Carnwath’s ‘flexible approach’is not yet constitutional orthodoxy - it is apparent that these factors still influence judicial reasoning.

Would it then be safe to conclude, as Scott does, that national security concerns play no role in the court's analysis of ouster clauses? Well, from the evidence above it seems safe to answer this in the positive. However, that would be presumptuous. The content of the rule of law is not fixed; indeed each of four speeches in Privacy International understood the demands of the rule of law differently. As Elliott and Young48 observe- Lord Carnwath believed that the rule of law required that judicial review should be available over decisions made by lower courts and tribunals. This includes situations where these decisions exceed or abuse their jurisdiction and where there is a risk that the lower tribunal or courts operate as independent legal entities, creating their own “legal rsight by the High Court, especially when the inferior tribunal is akin to a court, and is performing a legal function.49 Additionally, another reason why he believed that s67(8) ousted merit review of the Tribunal’s decisions is that the IPT deals with issues concerning security intelligence- disclosure of which would “contrary to an obvious and powerful public interest”; for him, it was entirely rational for parliament to have confined the “the examination of these matters to a secure Tribunal and to prevent resort to the High Court, whether by way of appeal or review”.50 Lord Sumption’s speech is evidence of the fact that in some circumstances, it is entirely possible that national security concerns would be relevant in assessing the demands of the rule of law. For instance, if the empowering legislation confers a minister the authority to make decisions on the basis of national security, it is possible that the courts will adopt Lord Sumption’s interpretation of s67(8)- merits review of the decision is completely ousted. This is because making such a decision requires broader policy, political and security considerations- making it constitutionally inappropriate for the courts to pursue certain substantive grounds of review. Nevertheless, its importance is dependent on the statutory functions in questions, and the characteristics of the administrator. We thus concur

48 Mark Elliott and Alison L. Young, Privacy International in the Supreme Court: Jurisdiction, the Rule of Law and Parliamentary Sovereignty, 78 CAMBRIDGE L.J. 490, 494–96 (2019)

49 Ibid

50 Ibid. [203]

with Chng that national security considerations raise, at most, ‘practical concerns’ when determining the effect of an ouster clause.

Therefore, National security concerns are rarely the focal point in the courts’ analysis of the effect of the ouster clause. Even if it is possible to envision cases where national security concerns may be relevant to therule of law’s requirements for judicial oversight, its importance is dependent on the nature of the statutory power in question, and the characteristics of the decision-maker. Therefore, Scott is right to assert that there is no “national security exceptionalism”51 in the UK, and the court’s interpretation of ouster clauses is largely informed by constitutional principle rather than pragmatic concerns.

B: Singapore Position

1. Judicial treatment of ouster clauses in general

In Singapore, courts have “viewed ouster clauses with circumspection”52 and have a similar approach to that in Anisminic in terms of upholding the common law presumption against ouster clauses.

The cases of Re Application by Yee Yut Ee (hereinafter Yee)53 and Stansfield Business International v Minister for Manpower (hereinafter Stansfield)54 are significant in understanding the application of Anisminic in Singapore. In Yee, the applicant Yee applied for judicialreviewaftertheIndustrialArbitrationCourtfoundherpersonallyliableforthepayment of retrenchment benefits to three former employees. Questions arose as to whether the High Court had jurisdiction to hear the appeal due to the ouster clause present in s46 of the Industrial RelationsAct.55

51 Ibid.

52 Per Ah Seng Robin and Another v. Housing and Development Board and Another [2016] 1 SLR 1020 [64].

53 Re Application by Yee Yut Ee [1977-1978] SLR(R) 490.

54 Stansfield Business International v. Minister for Manpower [1999] 2 SLR(R) 866.

55 Industrial Relations Act 1960, s46.

The court ruled that the ouster clause did not deprive the applicant from bringing a judicial review application, as it was found that the Industrial Arbitration Court had made a “patent error”thatcauseditto exceeditsjurisdiction.56 Inhisjudgment,ChoorSingh Jheldthat“courts rely onthe proposition thatParliamentcould not haveintended atribunal of limitedjurisdiction to be permitted to exceed its authority without the possibility of direct correction by a superior court”.57 He then proceeded to note a number of cases which show that an ouster clause is denied effect if the inferior tribunal had made certain errors (such as excess of jurisdiction, failure to comply with essential preliminaries, breach of natural justice etc.), of which Anisminic was one of them.58

In Stansfield, the applicant company applied for judicial review against the Minister for Manpower’s decision that it had unfairly dismissed an employee and required payment. However, the ouster clause in section 14(5) of the EmploymentAct stated that “[t]he decision of the Minister on any representation made under this section shall be final and conclusive and shall not be challenged in any court”.59 The High Court denied effect to the ouster clause as they found that the Minister had breached the rules of natural justice in reaching his decision. In his judgment, Khoo J mentions that this “broad principle” was established in Anisminic and restated in the Malaysian case of South East Asia Fire Bricks. 60 In Nagaenthran a/l K. Dharmalingam v Public Prosecutor (hereinafter known as Nagaenthran)61, Justice Chan Seng Onn references Stansfield, saying that Khoo J was relying on “the holding in Anisminic that the breach of the rules of natural justice could be considered a jurisdictional error that accordingly rendered the Minister’s decision a nullity”.62

56 Re Application by Yee Yut Ee [1977-1978] SLR(R) 490 [15]-[17].

57 Ibid [20].

58 Ibid [21]-[30].

59 Employment Act 1968, s14(5).

60 Stansfield Business International v. Minister for Manpower [1999] 2 SLR(R) 866 [21].

61 Nagaenthran a/l K. Dharmalingam v. Public Prosecutor [2018] SGHC 112

62 Ibid [114].

Importantly, the shift away from formalistic reasoning, that appears to have happened in the UK, has also happened in Singapore. Chng, citing Chief Justice Menon’s judgment in Nagaethran, submits that the courts in both the UK and Singapore have exhibited parallel trends in ouster clause analysis.63 Chief Justice Menon held that “there will (or should) be few, if any, legal disputes between the State and the people from which the judicial power is excluded”64; this follows from the fact that the Supreme Court’s judicial power is guaranteed by the Constitution of Singapore. More interestingly, the Court of Appeal in this case made reference to the rule of law - affirming that “[a]ll power has legal limits and the rule of law demands that the courts should be able to examinethe exercise of discretionary power”.65 Chng submits that Chief Justice Menon’s comments indicate a significant shift in the legal approach to ouster clauses in Singapore; it paves the way for a more flexible approach to ouster clauses, relying on the rule of law and substantive reasons for and against upholding the effectiveness of the ouster clause66 - not unlike the approach championed by Lord Carnwath in Privacy International. Therefore, in general, the treatment of the ouster clauses in Singapore largely mirrors that in the UK.

2. Judicial treatment of ouster clauses in cases concerning National Security

However, Chng notes that, contrary to the UK, in Singapore, national security considerations are deemed ‘highly material’ to the ouster clause analysis. In this part of the paper, we will explore whether Chng is right to assert this. We will first consider the treatment of the ouster

63 Chng K, ‘Microcontextual Considerations in Ouster Clause Analysis: A Comparative Study of Parallel Trends in the United Kingdom and Singapore’ (2022) 20 International Journal of Constitutional Law 1257, 1276

64 Ibid [73]

65 Ibid. [73]

66 Ibid [76]

clause in section 8 of the Internal Security Act (ISA), before predicting how the Singapore Courts will treat the ouster clauses in the Foreign Interference Counter-measures Act 2021 (FICA) and the Significant Investments ReviewAct 2024 (SIRA).

The main authority for the treatment of the ouster clause in s8B of the Internal Security Act (ISA) is Teo Soh Lung v Minister for Home Affairs (hereinafter Teo Soh Lung).67 Teo and several others were detained under the ISAfor a supposed Marxist conspiracy to overthrow the government. Teo successfully applied for a writ of habeas corpus in Chng Suan Tze v Minister for Home Affairs68 as the Court of Appeal held that the executive’s discretion was subject to the objective test and the Minister “had not adduced admissible evidence of the President’s satisfaction”.69 In response, Parliament amended both Article 149 of the constitution and section 8 of the ISA before redetaining Teo. In Teo Soh Lung, she reapplied for habeas corpus in the High Court and subsequently, the Court of Appeal. The Court of Appeal judgment did not consider the effect of the ouster clause, preferring instead to hold that the decision of the minister was within the scope of the ISA. However, the Court of Appeal did not overrule the High Court’s ruling on the scope of the ouster clause; indeed there has been no subsequent case that overruled Chua J’s judgment. Chua J held that the amendments toArt 149 of the Singapore Constitution and the addition of Section 8B(1) and 8B(2) had the effect of ‘depriving the applicant of her right to judicial review of her detention under the ISA’.70 Section 8B(1), according to Chua J, made clear that the law governing Judicial Review of powers under the ISAwas as laid down in Lee Mau Seng v Minister for Home Affairs (“Lee Mau Seng”), i.e. the courts are expected to apply the subjective test when determining the ‘proper exercise of the discretionary power of the President or the Minister under the ISA’.Additionally, section 8B(2) provides that there is to be judicial review only in regard to any question relating to compliance with any procedural requirements of the ISA. Chua J held that the imposition of the subjective test, coupledwith the express ouster in section8B(2),has the effect ofpreventingtheminister’s decision from being reviewed on the grounds of illegality, irrationality and procedural impropriety, and burden of proof.

67 Teo Soh lung v. Minister for Home Affairs and Others [1989] 1 SLR(R) 461 (HC).

68 Chng Suan Tze v. Minister for Home Affairs and Others [1988] 2 SLR(R) 525 (CA).

69 Teo Soh lung v. Minister for Home Affairs and Others [1989] 1 SLR(R) 461 (HC) [13].

70 Ibid [9].

Chua J went further to say that the principles in Anisminic were not applicable to the ISA due to the differences in the two pieces of legislation. In the Foreign CompensationAct, Parliament had clearly defined “interpretatory power”71 conferred on the Commission whereas the ISA does not “define activities which are prejudicial to national security”.72 Instead, Parliament “has left to the Cabinet and the President acting in accordance with the advice of the Cabinet to determine whether it is necessary in the interests of national security to detain a person.” Thus,Teo’s argumentto invoke Anisminic as theMinisterhadexceededthelimits ofhis powers could not apply.

The question arises as to whether Chua J’s interpretation of the ouster clause in the ISA was influenced by national security concerns, or if it was a product of the language of the clause itself. It is submitted that the ouster clause in section 8B of the ISA73 is as express as clause 11 oftheAsylumandImmigration(TreatmentofClaimantsetc)Bill2003,whichLordCarnwath74 and Paul Scott75 suggest uses sufficiently express language to complete oust the court’s jurisdiction. Although section 8B does not explicitly list out the grounds of review that have been excluded (unlike Clause 11 of theAsylum and Immigration (Treatment of Claimants etc) Bill), by using the phrase- “the law governing the judicial review of any decision made or act done… shall be the same as was applicable and declared in Singapore on the 13th day of July 1971”, the Singapore Parliament makes it clear that it is the subjective test, as articulated in Lee Mau Seng76 , that applies. The subjective test means that the “sufficiency and relevancy of the considerations upon which the Executive detained the applicant under s 8 (1) of the ISA were matters for the subjective satisfaction of the President” (Chua J, Teo Soh Lung).77 Imposing a subjective test of review has the same effect as sub-section (a) of Clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill, i.e, expressly stipulating which

71 Ibid [17].

72 Ibid [19].

73 Internal Security Act 1960, section 8B.

74 Ibid [101]

75 PaulF.Scott,OusterClausesandNationalSecurity:JudicialReviewoftheInvestigatoryPowers Tribunal, PUB. L., 2017, 355, 357

76 Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135

77 Teo Soh lung v. Minister for Home Affairs and Others [1989] 1 SLR(R) 461 (HC) [8]

grounds of review do not apply. Coupled with the affirmation that “(t)here shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act” in Section 8B(2), it would appear that Chua J’s analysis was based on the language of the provision itself, not the fact that the statutory power in question concerns national security.

However, it is striking how Chua J did not take any steps to interpretively neutralise the ouster clause, especially considering the constitutional rights at stake. The minister is allowed to detain a person without a trial for up to two years- a significant restriction on the right to liberty under Article 9 of the Singapore Constitution. As Elliott observes, where legislation confers powers that appear to allow the administrator to violate fundamental constitutional rights, the courts (in the UK) have avidly sought to interpret the empowering provision in such a way that prevents the administrator from breaching these rights, i.e, the principle of legality.78 For instance, in R (on the application of UNISON) v Lord Chancellor (Unison),79 pursuant (purportedly) to his powers under section 42 of the TCEA, the Lord Chancellor enacted the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (ETA), which set fees to bring a claim to the Employment Tribunals. Lord Reed, with whom the rest of the court agreed, held that access to the courts was a fundamental constitutional right, inherent in the rule of law; the right of access to the courts could only be curtailed by clear and express statutory enactment.80 Since s42 of the TCEA did not expressly authorise the prevention or restriction of access to the relevant tribunals, Lord Reed held that the Lord Chancellor could only set fees insofar as it was affordable by everyone. Since the number of claims drastically fell after the making of the order the ETA was ultra vires. Similarly, in Regina v. Secretary of State for the Home Department, ex parte Pierson, 81 Lord Steyn reiterated that unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law.Although these cases do not concern ouster clauses, they demonstrate the extent to which the UK courts are willing to stretch the principles of interpretation to prevent an

78 Elliott, Mark C., Beyond the European Convention:Human Rights and the Common Law, Current Legal Problems, Vol. 68, (2015), 85, 96-105

79 R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.

80 Ibid. [66]

81 R v Secretary for the Home Department, ex parte Pierson [1998] AC 539.

administrator from breaching fundamental constitutional values. Indeed, Lord Philips speaking extra-judicially, posited that in the face of an express and complete ouster clause “the court would [prefer to] say, ‘Parliament couldn’t possibly have meant that’”, and to go on to assign “an interpretation to the legislation that it couldn’t [linguistically] bear”. In doing so, said Lord Phillips, the court “would have chucked the gauntlet back to Parliament”.82

It is therefore surprising that Chua J treated section 8B with such solicitude83 considering that the appellant’s right of liberty, underArticle 9 of the constitution, was gravely interfered with. Indeed, he goes so far as to distinguish the present case from Anisminic, to justify why Anisminic reasoning would not apply to section 8B of the ISA. It would be safe to say that a UK court, in a similar position, would have gone a lot farther than Chua J did to not only preserve the court’s jurisdiction but to also find that the minister’s decision to detain was ultra vires. It could be argued that the amendments under Article 149 of the Constitution, made before the amendments to Section 8 of the ISA, prevented the Singapore Courts from placing much importance on Article 9 when determining the effect of Section 8B. In essence, article 149 affirms that any Act concerning national security will be valid notwithstanding that “it is inconsistent with Articles 9, 11, 12, 13 or 14”.84 However, this merely provides that the court cannot set aside such an act based on such inconsistencies; it does not stipulate how the courts ought to interpret such acts. Indeed, we submit that the counsel for the applicant (Mr Lester), was right to argue that per OngAh Chuan v PP [1979-1980],Art 149 “should be given a strict interpretation against the state and a generous interpretation in favour of the individual”.85

So, it is clear that Chua J, when interpreting section 8B of the ISA, exhibited a striking amount of curial deference to both Parliament and the minister. The question is whether this can be attributed to national security concerns. Chng observes that at the time Teo Soh Lung was

82 House of Commons Political and Constitutional Reform Committee Report, Role of the judiciary if there were a codified constitution, pg17.

83 Chng K, ‘Microcontextual Considerations in Ouster Clause Analysis: A Comparative Study of Parallel Trends in the United Kingdom and Singapore’ (2022) 20 International Journal of Constitutional Law 1257, 1276

84 Constitution of the Republic of Singapore, Article 149

85 Teo Soh lung v. Minister for Home Affairs and Others [1989] 1 SLR(R) 461 (HC) [22]

determined, the courts were particularly permissive towards ouster clauses - citing Tey Tsun Hang v. Attorney-General.86 In this case, the claimant (a permanent resident) was denied a reentry permit by the Singapore ImmigrationAuthority due to a corruption conviction.After the claimant’s conviction was overturned on appeal, he sought to challenge the immigration authority’s decision to reject his re-entry permit application through judicial review. However, section 39Aof the ImmigrationAct provided that “there shall be no judicial review in any court of any act done or decision made by the Minister or the Controller under any provision of this Act”. The High Court gave effect to this ouster clause. While this case does not concern national security, the High Court’s reasoning is particularly enlightening for our purposes. The Court held that in certain areas of national policy, “there are good and self-evident reasons why these matters are best left to the executive arm and not the courts which are ill-equipped to make such decisions”.87 Additionally, it was found that a "reasonable balance” had been struck by still permitting judicial review in respect of compliance with procedural requirements of the Act. This judgment demonstrates how, in areas where the administrator makes decisions which raise policy and political concerns, the Singapore courts exercise significant curial deference. Indeed, the fact that in Teo Soh Lung the courts quite willingly accepted and applied the subjective test is a testament to this deference. Therefore, apart from just the phrasing of the statute, National Security consideration does play a significant role in the Singapore court’s analysis of an ouster clause. This is because determining what is in the interests of national security requires the decision-maker to rely on broader policy considerations, something that Singapore Courts believe to be a compelling reason to give effect to almost complete ouster clauses.

However, Chng observes how recent case law suggests that Singapore Courts are “becoming less accepting of ouster clauses”;88 they are more willing to find ouster clauses ineffective. For instance, in Nagaenthran, Chief Justice Menon held that “there will (or should) be few if any, legal disputes between the State and the people from which the judicial power is excluded”89; this follows from the fact that the Supreme Court’s judicial power is guaranteed by the Constitution of Singapore. Interestingly, the Court ofAppeal in this case referred to the rule of

86 Tey Tsun Hang v. Attorney-General [2015] 1SLR856

87 Ibid. [44].

88 Chng K, ‘Microcontextual Considerations in Ouster Clause Analysis: A Comparative Study of Parallel Trends in the United Kingdom and Singapore’ (2022) 20 International Journal of Constitutional Law 1257, 1270

89 Ibid. [73]

law- affirming that “[a]ll power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”.90 Chng submits that Chief Justice Menon’s comments indicate a significant shift in the legal approach to ouster clauses in Singapore; it paves the way for a more flexible approach to ouster clauses, relying on the rule of law and substantive reasons for and against upholding the effectiveness of the ouster clause.

The question arises as to whether this approach will change the way the Singapore Courts will interpret Section 8B of the ISAnow.It seems clear that if Chief Justice Menon’s more ‘flexible’ and ‘rule-of-law based’approach is applied to section 8B, a court will be compelled to preserve grounds of review beyond just the procedural requirements of the act. However, this question will have to be answered in the negative. Firstly, Chief Justice Menon’s comments were obiter; indeed he found that the section in question was not an ouster clause but an immunity clause.91 Additionally, the case concerned the Misuse of Drugs Act (MDA)- a Penal legislation that hardly concerns national security interests. Finally, and most importantly, Chief Justice Menon at Paragraph 71 affirms that “the court’s power of judicial review..would not ordinarily be capableofbeing excludedbyordinarylegislationliketheMDA”.TheISAishardlyanordinary piece of legislation considering its significant constitutional impact. Chief Justice Menon envisioned his dicta to apply to ouster clauses in more ‘ordinary’legislative schemes, not ones in legislation that have significant political and constitutional significance.

Therefore, notwithstanding a shift towards a more flexible approach to ouster clauses, it is unlikely that the courts will treat the ouster in the ISA any differently than they did almost 40 years ago. Even if it does, the courts will likely still give preponderant weight to the fact that the minister decides based on national security, which serves as a compelling substantive reason for giving effect to the ordinary reading of the ouster clause.

3. Implications on FICAand SIRA

90 Ibid [73]

91 Ibid. [67]

But will the Singapore Court’s treatment of the ouster in the ISA apply equally to that in the Foreign Interference (Countermeasures) Act 2021 (FICA) and the Significant Investments ReviewAct 2024 (SIRA)? Section 46 of SIRAand Section 106 of FICAuse the same wording; however, the language used is different from section 8B of the ISA. We have concluded earlier that national security concerns play a more important part in the Singapore Court’s analysis of ouster clauses than their UK counterparts. However, that does not mean the wording of the ouster clause becomes completely irrelevant. Section 46 SIRAand Section 106 FICAhold that “every determination, order and other decision of a Reviewing Tribunal, the Minister.. made or purportedly made under thisAct” is not to be “challenged, appealed against, reviewed, quashed or called in question in any court, except in regard to any question relating to compliance with any procedural requirement” of the act. The wording of the first part of the clause is not unlike Clause 11 of theAsylum and Immigration Bill, which Scott and Lord Carnwath concede serves to preclude Anisminic Reasoning. The second part of the clause is similar to that of section 8B(2) of the ISA, as it quite expressly holds that the decision is not subject to judicial review, except on the grounds concerning the procedural requirements of the act itself. Therefore, it would be unsurprising if the ouster clause would be treated largely in the same way as section 8B in the ISA. Indeed, both FICAand SIRAconcern national security, and thus, fall underArt 149 of the Singapore Constitution.

C: Evaluation and Conclusion

Chng believed that it was surprising that both UK and Singapore Jurisprudence concerning ouster clause treatment was largely the same considering the differences in macro-contextual factors.92 For the same reasons, we also conclude that the difference in treatment of ouster clauses in cases raising national security concerns is surprising.

The constitutional fundamental of Singapore is constitutional sovereignty; perArticle 4 of the Singapore Constitution, the constitution is "the supreme law of the Republic of Singapore”.93

92 Ibid. 1268

93 Constitution of the Republic of Singapore, Article 4.

More importantly, article 4 also reaffirms that “any law enacted by the Legislature… which is inconsistent with this Constitution shall to the extent of the inconsistency, be void”.94 This should be contrasted with the Parliamentary Sovereignty of the UK, which at its simplest, means that any law passed by Parliament will be treated by the courts as the highest form of law, and noAct of Parliament could be set aside by the courts.95 The importance of the doctrine of parliamentary sovereignty as a constitutional fundamental is made evident when the UK courts, whilst interpretively neutralising a constitutionally offensive provision, reaffirm that Parliament can, if it wants to, legislate to abrogate the rule of law, but can only do so using the most express and unambiguous language possible. Indeed, this was the reasoning used by Lord Carnwath and Lord Lloyd-Jones when deciding that s67(8) of the RIPAdidnot completely oust theHighCourt’s jurisdiction.TheUKcourtshavetoconstantlyreconciletheireffortsto uphold the rule of law with parliamentary sovereignty a burden not experienced by their Singapore counterparts. Therefore, is it not strange that the Singapore Courts adopt a far more permissive attitude towards ouster clauses than the UK courts- especially for those where the statutory power in question concerns national security? Indeed, the presence of a constitution, and the fact that the courts have the power to set aside constitutionally offensive legislation, suggest that on paper, the power dynamic between the Singapore Courts and the Singapore Parliament is more equal than that in the UK.

The Singapore Courts should ideally be more emboldened to uphold fundamental constitutional rights in the face of an express provision to the contrary- even if the matter concerns national security and raises broader policy questions. It is therefore clear that the constitutional structure does not explain the difference in the treatment of ouster clauses in cases involving national security concerns.

One possible explanation is proposed by Harding,96 who suggests that the grundnorm of Singapore’s legal system is legislative supremacy, not the constitution. In Kelsen’s theory, a

94 Ibid.

95 Wade, ‘The Basis of Legal Sovereignty’ [1955] CLJ 172

96 A.J. Harding, 'Parliament and the Grundnorm in Singapore' [1983] 25(2) Malaya Law Review 351-367

grundnorm refers to a norm which forms the basis of an entire legal system.97 Kelsen describes law as a hierarchy of binding norms, and all norms in a legal system can be traced back to and derive their validity from the grundnorm. Singapore’s legal system was subject to the British grundnorm until 1963 when it joined Malaysia. Following merger, Singapore became subject to the grundnorm of the Malaysian constitution - the validity of which was established following the relinquishing of sovereignty by Her Majesty under the Federation of Malaya Independence Act.98 When Singapore gained independence, one might think that the grundnorm became Singapore’s own constitution following the Constitution and Malaysia (Singapore Amendment) Act 1965.99 However, Harding observes that the Singapore Amendment failed to transfer plenary powers from the Malaysian Parliament to the Singapore Parliament. Thus, when Singapore’s Parliament enacted its post-independence constitution via the Republic of Singapore Independence Act (RSIA), it was acting on plenary powers it did not possess.100 Harding concludes that Parliament assumed plenary powers “as an assertion of fact”101 through section 5 of the RSIAwhich corrects the SingaporeAmendment by vesting the legislative powers of the Malaysian Parliament in the Singapore Parliament. In so doing, Parliament “assumed the mantle of supremacy in Singapore”102 and the resulting constitution was “not the grundnorm, but merely the manifestation of the grundnorm”103. However, this might be speculative, and undermines the importance of the Constitution. If the grundnorm of Singapore’s legal system is parliamentary sovereignty, then Parliament would not need to amend the constitution before they enact something that is “constitutionally dubious”. Indeed, there would have been no need for the amendments to Article 149 of the Constitution before introducing section 8B in the ISAand rearresting Teo Soh Lung.

Perhaps the difference lies in the broader political dynamics between the legislature and the judiciary in the two nations. Yap Po Jen argues that Singapore practises a variant of

97 Hans Kelsen, Pure Theory of Law (2nd edn, University of California Press 1967) 8.

98 Federation of Malaya Independence Act 1957.

99 Constitution and Malaysia (Singapore Amendment) Act 1965.

100 .J. Harding, 'Parliament and the Grundnorm in Singapore' [1983] 25(2) Malaya Law Review 364.

101 Ibid 366

‘authoritarian constitutionalism’, where a ‘semi-permanent party’ that has consolidated most legislativeandexecutivepowers,responds fiercely against unfavourablejudicial review,taking either constitutional or unconstitutional means to “to punish the courts”.104 This is seen with the overuling of Chng through legislative and constitutional amendments. Considering that the current ruling party (the People’sAction Party) holds 83 of the 93 seats in Parliament, it makes it almost too easy for the executive, through parliament, to enact legislation that reverses an unfavourable judicial decision. This makes it incredibly difficult for a judiciary to hold the government to account. Yap Po Jen also argues that even when the courts rise up against the executive and take a more bold constitutional stance, they often water down their decisions by conceding that the administrator is entitled to depart from their constitutional duties on the basisofpolicyconsiderations.105 Forinstance,in Vellama d/ o Marie Muthu v. Attorney General (2013),106 the Court of Appeal held that Article 49 of the Singapore Constitution imposed a constitutional duty on the Prime Minister to fill a casual vacancy within a ‘ reasonable time’. However, the court conceded that the PM could ‘justifiably take into account matters relating to policy … [and] it is impossible to lay down the specific considerations or factors..’; so while this case is regarded as a ‘watershed event’107 in Singapore constitutional history, it could equally be viewed as an affirmation of the judiciary’s deferential stance towards a dominant political party.Therefore, the hyper-incumbency of the ruling party compels the courts to adopt a more deferential position when it comes to ouster clauses, especially in cases involving national security.Even if thecourtsdo take amore robuststance it will likely bemet with fierce political backlash, and a swift reversal of the decision.

Yvonne Tew argues that notwithstanding a dominant political party there is a strong basis for the Singapore courts to adopt a proportionality analysis when reviewing the exercises of administrative power in national security cases.108 As held in Chng109 and affirmed recently in Tan Seet Eng110 - “[a]ll power has legal limits and therule of law demands that the courts should

104 Yap Po Jen, Courts and Democracies in Asia (1st edn, Cambridge University Press 2017), Chapter 2, 1-14

105 Ibid 6

106 Vellama d/ o Marie Muthu v. Attorney General [2013] SGCA 39 [85]

107 Yap Po Jen, Courts and Democracies in Asia (1st edn, Cambridge University Press 2017), Chapter 2, 1-14

108 YvonneTew,Constitutional StatecraftinAsian Courts(Oxford UniversityPress2020), Chapter 8.

109 Ibid.

110 Tan Seet Eng v. Attorney General [2016] 1 S.L.R 779

be able to examine the exercise of discretionary power”; Tew111 and Jaclyn Neo112 argue that the reference to legal limits on discretionary power is evidence that the proportionality analysis is a legitimate way of ensuring the constitutionality of legislative and executive action. However, Tew and Neo might be grasping at straws here; although the principle of legality is a doctrine recognised in Singapore it has never been deployed in a manner that balances individuals rights against the administrator’s considerations. Indeed, especially in cases concerning national security, the judicial ethos in Singapore has been that ‘matters of public policy are the proper remit of the Executive’.113 So while there is a strong normative argument for adopting a proportionality based review, there is no basis within the Singapore common law for the courts to start employing such a ground of review. Even if the courts do take that step, in a dominant political party system, the weight accorded to the administrator's considerations will likely outweigh the interests and the rights of the individual, depriving the proportionality analysis of any value.

It is clear that the courts in the UK regard themselves as the protectors of fundamental constitutional rights and rely on the idea that the UK is a “Western liberal democracy” to justify their sometimes radical interpretations. Conversely, although Singapore Courts, perArticle 93 oftheconstitution,aretheultimateinterpretersoftheconstitution,theyclearlyviewthemselves as enforcers of parliament’s intent rather than guardians of the rule of law. The differences in the political balance of powers offers the most convincing explanation of the difference in treatment of ouster clauses in cases concerning national security in the UK and Singapore.

111 YvonneTew,Constitutional StatecraftinAsian Courts(Oxford UniversityPress2020),Chapter 8

112 Neo,Balancing Act,supra note111,at168

113 Chan Sek Keong, ‘Judicial Review – From Angst to Empathy ’ (2010) 22 Singapore Academy of Law Journal 469, 480

ANew

“Aninstrumentoflastresort”?

PerspectiveontheCriminalLaw(TemporaryProvisions)Act1955

NickolausNg*

andRyanLee**

1.Seventyyearsof“Fifty-five”

On21st October2024,theCriminalLaw(TemporaryProvisions)Act1955(“CLTPA”)willbe extendedforthe15th time.FirstpassedasOrdinance26of1955,1 thisextensionwillbringthe Act into its seventh decade. The CLTPA’s most prominent feature is to grant the Executive wide-rangingpowerstodetainpersonsallegedtohavecommittedcertaincrimeswithouttrial.

Asitsnameimplies,theActistemporary.Section1(2)oftheActprovidesthatitwouldexpire after afive-yearterm,unlessitisrenewed—andtheActhasbeen continuouslyrenewedsince 1955. The previous renewal of the CLTPA occurred in 2018. This renewal, which has been reviewed in a previous volume of this journal,2 made substantial changes to the Act. Most significantly, it made the Minister’s decision3 on the period of indefinite detention of individuals final, prevented individuals from appealing against the Minister’s decision to imposeindefinitedetention,andlimitedthenumberofcrimesthatactivatetheAct.Bycontrast, thepresentrenewal4 only extendedtheAct’soperationto 2029anddid not makeany changes totheAct’ssubstance.

2.AnoverviewoftheCLTPA

*UniversityofBirmingham,LLBClassof2021

**NationalUniversityofSingapore,LLBClassof2022

1 The year 1955 gives the Act its Hokkien name, Go-Chap-Go, which means “55” in Hokkien. The Act is sometimes referred to as “Section 55” (eg: “Law allowing detention without trial renewed for 5 more years to fight gangs, secret societies” (The Straits Times , 3 April 2024), accessible at <https://www.straitstimes.com/singapore/politics/law-allowing-detention-without-trial-renewed-for-5-moreyears-to-fight-gangs-secret-societies>)eventhoughtheCLTPAonlyhas49sections.

2 NoelLow “CriminalLaw(Temporary Provisions) (Amendment) Bill—an unjustified infringementon theright toafairtrial?”,(2019) SingaporeComparativeLawReview, 234.

3 Inthiscase,theMinisterforHomeAffairs.

4 CriminalLaw(TemporaryProvisions)(Amendment)Act2024(No.18Of2024)

The CLTPA is rather heterogeneous. Part 2 of theAct criminalises “offences relating to public safety”, such as giving supplies to those who would act in a manner contrary to the safety of Singapore,5 and making subversive documents.6 Part 3 of theAct prohibits strikes by workers of essential services,7 whilst Part 4 gives wide-ranging powers to the police, as for example, dispersing public assemblies when the Minister declares there is an “immediate threat to public peace exists within Singapore”,8 to search and board vessels,9 and to dispose of subversive documents. 10

However, the most prominent part of the Act is Part 5, which gives the Minister extremely wide-ranging powers to detain a person who “has been associated with activities of a criminal nature” without trial.11 Although each detention order has a maximum period of 12 months, the Act allows the President to make extensions to the orders.12 Furthermore, there is no limit to the number of extensions that can be made. In short, there is nothing that stops a person from being detained for life under the Act. The Act also does not prevent an individual being redetained after being released from a period of detention, if the individual is deemed as still a threat to national security. In addition to detention without trial, Section 32 gives the Minister the power to substitute detention for police supervision. Section 35 provides that a person so supervised is liable to double penalties if he commits a crime of violence when out on supervision.

5 CLTPAs 3.

6 CLTPAs 4.

7 CLTPAs 6(1).

8 CLTPAs 12.

9 CLTPAs 14.

10 CLTPAs 15.

11 CLTPAs 30.

12 CLTPAs 38.

Prior to the 2018 amendments, there was no limit as to what kind of crime would attract the Act. The Act post-2018 defines crimes that invoke these powers in the Fourth Schedule. The schedulelistseightoffences,13 butnotablyincorporates48(1)oftheOrganised CrimeAct2015. This has the effect of making approximately two hundred offences spread across twenty-seven Acts activate the CLTPA, if they are done by a criminal group.

The wide-ranging powers given to the Minister is constrained in several ways. Firstly, the Public Prosecutor’s consent must be obtained before any order is made, 14 and judges are on the panel of advisers that review detentions under the Act.15 This indicates that the standards of the usual criminal legal process are being followed, even though the CLTPA is an extrajudicial process. Secondly, Section 31 CLTPA provides a review procedure. Each order must be provided with a written statement of the grounds on which the Minister makes the order. This is scrutinised by an Advisory Committee, which reports to the President. The President considers the report and either confirms or cancels it. Thus, the Minister’s decision to detain someone is not final.

Finally,as mentionedabove,theAct’s operationis limitedto afive-yearperiod.Assuch,unless it dominated the legislature, a rogue government’s ability to use the Act against the previous government or its opponents would be limited. Along with the now-restricted definition of criminal offences, this prevents the CLTPAfrom being abused for political purposes.

3.

13 Unlicensed moneylending, drug trafficking, involvement in a secret society, human trafficking, robbery with firearms, murder, gang rape, and kidnapping.

14 Zaihan Mohamed Yusof, ‘Renewing Last Resort Law That Allows Detention of Criminal Suspects Without Trial’ (The Straits Times 30 March 2024,), accessible at <https://www.straitstimes.com/singapore/renewing-lastresort-law-that-allows-detention-of-criminal-suspects-without-trial>.

15 ibid.

The CLTPAin comparative perspective

From a comparative perspective, schemes of detention without trial are not unusual in times of national crisis. Uruguay's State SecurityAct (Law No. 14068) (and InstitutionalActs No. 4 and No. 8.) was enacted in the face of political unrest and a military coup in Uruguay, allowing authorities to arrest individuals without warrants. These Acts permitted warrantless arrests (known in Uruguay as "prompt security measures''), indefinite detention, and trials by military courts for charges like "subversive association" and "conspiracy against the constitution" without the need for a traditional trial.16

Nor are these schemes alien to common law systems. In Northern Ireland, the CivilAuthorities (Special Powers)Act (Northern Ireland) 1922, (“CASPA”), had provisions allowing persons to be interned (i.e. detained) if they were suspected of having acted, or about to act, against “the preservation of peace and the maintenance of order in Northern Ireland”. Similarly, during the Troubles in Northern Ireland, detention without trial was also implemented, justified in terms strikingly similar to how the Singaporean state justifies the CLTPA: widespread intimidation of the population by the IRA.17 Detention without trial – albeit in attenuated form - was again re-implemented in the UKAnti-terrorism, Crime and SecurityAct 2001, (“ACTA”).

The CLTPA itself was enacted in response to the rise of secret societies18 that spread “terrorism”.19 over the land. However, it is also worth noting that the Act was enacted in the middle of the Malayan Emergency (1948-1960), and the secret societies may very well have had a political dimension to them as well. At any rate, this might also explain the presence of sections dealing with subversion in parts 2 and 3.

16 International Review of the Red Cross, “Indefinite Detention” (2005) volume 87 number 857, at pg 25.

17 Ireland V. The United Kingdom (2018)Application no. 5310/71, at [36].

18 Singapore Parliamentary Debates, Official Report (3 October 1956) vol 2 at cols 234–235 (W A C Goode, Chief Secretary)

19 Singapore Parliamentary Debates, Official Report (2 September 1959) vol 11 at cols 575–576 (Mr Ong Pang Boon, Minister for Home Affairs)

In summary, all of these Acts were enacted in a similar context: they were responses to momentsofnational crisis.However,theCLTPA’s differsfromtheseActsin itssheerlongevity. Whilst most of the above Acts were abolished within several years of their enactment, the CLTPAis now existing for its seventh decade. Doubtless this was because the CLTPAdoes not respond to any acute political threat (even though it might have been enacted, at least partially in response to one) but rather against the chronic threat of organised crime.

4. Sources and materials.

Information about how the CLTPA is deployed is a vital part of any analysis of the Act. However, getting such information is no easy task. The first source is information released by the government. For example, the number of detainees under the CLTPA is published by the Singapore Prison Service in its annual report. As shown in the table below, since the CLTPA was re-enacted in 2018, the number of detainees has been declining, and it has not risen above 100 (or around 1% of the Convicted Penal Inmate Population). The vast majority of such detainees were for secret society offences.

20 Singapore Prison Service - Annual Report 2019 – accessible at <https://www.sps.gov.sg/resource/annualreports/2019/>.

21 Singapore Prison Service - Annual Report 2019 – accessible at <https://www.sps.gov.sg/resource/annualreports/2019/>.

22 Singapore Prison Service - Annual Report 2020 – accessible at <https://www.sps.gov.sg/resource/annualreports/2020/>.

Again, shortly before the 2024 debate about the Act’s renewal, the Ministry of Home Affairs published a document outlining four cases where the CLTPA was used. All four were sanguinary gang brawls with numerous participants.25 But despite the rather precise times and locations, the report did not indicate whether the participants were “dealt with” via detention or police surveillance. It follows that such official sources at best provide a partial picture at best of how the CLTPAis used.

A second source is provided by case-law. This is also an imperfect source. Detention without trial naturally does not produce reported cases, save in very exceptional circumstances. The relatively small number persons subject to such detention does not provide many opportunities forlitigationeither.Nonetheless,themajorcaseonthepre-2018CLTPA, Tan Seet Eng,remains a valuable source of information about the doctrine of the CLTPA when it was decided. However, since the 2018 amendments to the CLTPA, there have been no further cases on detention. As such, the judiciary’s response to those amendments remains to be seen. Nonetheless, more recent cases dealt with other aspects of the CLTPA. A brief search of LawNet shows that between 2020 and July 2024, five cases involved persons subject to police supervision under the Act.26 Notably, no cases in that period directly concerned reviews of

23 Singapore Prison Service - Annual Report 2021 – accessible at <https://www.sps.gov.sg/resource/annualreports/2021/>.

24 Singapore Prison Serviec- Annual Report 2022 – accessible at <https://www.sps.gov.sg/resource/annualreports/2022/>.

25 Ministry of HomeAffairs, ‘Annex – Recent Cases WhereAction Was Taken Under The CLTPAas Prosecution Was Not Viable Because Witnesses Refused to Give Evidence in Open Court for Fear of Reprisal’(undated press release), accessible at <https://www.mha.gov.sg/docs/default-source/default-document-library/recent-caseswhere-action-was-taken-under-the-cltpa-as-prosecution-was-not-viable-because-witnesses-refused-to-giveevidence-in-open-court-for-fear-of-reprisal.pdf>.

26 Public Prosecutor v Suhaizad Bin Fadlilalaili [2020] SGDC 255; Public Prosecutor v Sashikumar Rathakrishnana and others [2021] SGMC 18; Public Prosecutor v Tan Chi (Chen Qi) and another [2021] SGDC 240; Public Prosecutor v Niranjan s/o Muthupalani [2022] SGDC 291; Public Prosecutor v Vengadeswaran Seenivasan [2024] SGDC 96.

detention under Section 30. From this, we might infer that the non-custodial aspects of the CLTPAare regularly used in practice

The third and final source is Hansard which, as of date, provides the most statements of state doctrine, as well as criticism of the CLTPA. For this article, we shall consider the most recent debateontheCLTPA,held3April 2024.27 However, this is also animperfect source:Apolitical deliberation does not give the best indication on how the law is used in practice, and as before, the government can be reticent. For example, a request for further details about the detainees28 was turned down29 on security grounds.

From this, we can also see that any study on the CLTPA, in particular as to its proportionality and deployment must remain to a degree, uncertain.

5. Singapore’s Safeguard: Justifications for the CLTPA

27 Singapore Parliament Hansard, “Criminal Law (Temporary Provisions) (Amendment) Bill” (3rd April 2024), Second Reading Bills, Parliament 14, Session 2, Volume 95, Sitting 134 (“3 April debate”). Accessible at < https://sprs.parl.gov.sg/search/#/sprs3topic?reportid=bill-691 >

28 3 April 2024 Parliamentary Debate, speech of Mr Dennis Tan Lip Fong: “I would also like to ask the Minister of State, in the last fiveyears, since October2019, what is thetotal number ofpeople who,one, havebeendetained under the CLTPA and two, have been subject to Police supervision under the CLTPA? Can the Minister of State give a breakdown of the number of persons subject to CLTPAorders, organised according to the different category of criminal activities?”

29 3 April Debate, speech of Assoc Prof Dr Muhammad Faisal Ibrahim: “Mr Dennis Tan has asked for various statistics on how the Act has been used in the past. MHA does not generally release information about the use of theAct as we need to balance the call for transparency against the need to prevent prejudice to investigations and to keep witnesses safe. That said, the Singapore Prisons Service (SPS) publishes statistics on detainees annually and I would refer Mr Tan to those annual statistics.”

The Singaporean state justifies the CLTPA on grounds of proportionality. The wide-ranging powers given to the Minister are necessary to deal with an equally extreme problem that was prevalent in Singapore in the past, and which continues to be a problem: Gang violence.

The Act is considered by the Singapore government to be necessary to preserve Singapore’s stability from the extreme violence brought about by organised crime30. The main function of the Act is evidentiary. The very nature of organised crime makes witnesses or accomplices unwilling to testify for fear of reprisals.31 The Act fills this evidentiary gap, allowing such persons to be detained when the usual legal processes fail. TheAct is necessary, because gangs remain a threat in Singapore and the wider region.32 Nor has witness intimidation ceased, with Instagram now becoming a means of witness intimidation in the United States of America.33

30 3April 2024 Debate, Speech of Dr. Muhammed Faisal Ibrahim: “TheAct is a critical piece of legislation for us to deal with egregious criminalactivities which threaten the sense of safety and security in Singapore, in particular the activities of gangs and secret societies”.

31 3 April 2024 Debate, Speech of Dr. Muhammed Faisal Ibrahim: “Because of the way gangs operate, witness intimidation in gang trials is a serious concern for many jurisdictions and an obstacle to justice. The true extent of this is impossible to measure, because witness intimidation is often not reported…”

32 3April 2024 Debate, Speech of Dr. Muhammed Faisal Ibrahim:

“In Singapore, there are still active secret societies, although not in the numbers and scale in some other countries. Nevertheless,theyarestillamenacetolawandorder,publicsafetyandsecurity.TheyrecruityoungSingaporeans, and engage in illicit activities and violent conduct. That is why we must continue to clamp down on them.”

Mr Speaker in the Chair:

“In the interests of good public order, safety and security, this legal instrument must be availed to our Police force. The extension has become even more necessary in view of recent developments. The INTERPOL has been warning all its member countries about the urgent need to combat the scourge of organised crime, which is "at risk of spreading at an epidemic level". Crime syndicates are forming alliances across borders and developing into international groups. The offences spelled out in the Act – drug trafficking, kidnapping, organised crime, unlicensed moneylending and secret society activities – in fact, are among the most common crimes committed by such syndicates.”

33 3April 2024 Debate, Speech of Dr. Muhammed Faisal Ibrahim:

Witnessprotectionschemesarecharacterisedasbeingimpractical toimplementinSingapore.34 Finally,detaining violentcriminals allowsthecycleofgangviolence to bebroken,contributing to the safety of the community.35 All these factors meant that Singapore must persist in using this Act: it is Singapore’s safeguard against gangs. Indeed, the Act’s continued operation is of existential importance:

“When criminals, such as gangs and secret societies, cannot be brought to justice for their crimes, then the criminal justice system has failed. Instead of the people feeling protected, a climate of fear envelopes the society.The people lose confidence in the criminal justice system and, ultimately, the state.

[…]

Without theAct, we face a real risk of an uncontrolled gang situation and a rise in violent and other serious crimes. We cannot afford to have this in Singapore”.36

While many crimes covered by the CLTPAcould be handled through regular criminal charges, the CLTPAoffers distinct advantages that may not be as effectively achieved through standard

“In a recent incident in Virginia, US, a member of a street gang intimidated witnesses by posting their names on Instagram and calling for gang members to gather in the court room to “watch the snitches snitching”.As a result, some witnesses pulled out of testifying and the trial had to be postponed.”

34 3 April 2024 Debate, Speech of Dr. Muhammed Faisal Ibrahim: “As I explained earlier, the Act is used where prosecution is not viable, because witnesses are unwilling to testify in court for fear of reprisal. Witness intimidation is a problem in Singapore too. Some countries have witness relocation and protection programmes. However, because Singapore is so small, witness relocation would not be feasible or effective. Even in big countries, these measures are not always foolproof. Moreover, witness protection programmes take a very heavy toll on the protected witnesses.”

35 Ministry of HomeAffairs, ‘Introduction of the Criminal Law (Temporary Provisions) (Amendment) Bill 2024’ (Mediaroom Press Releases), at [4], accessible at <https://www.mha.gov.sg/mediaroom/pressreleases/introduction-of-the-criminal-law-temporary-provisions-amendment-bill-2024/>.

36 3April 2024 Debate, Speech of Dr. Muhammed Faisal Ibrahim.

legal processes. The Act permits preventive detention, allowing authorities to detain individuals suspected of serious criminal activities without trial, which is crucial for disrupting organized crime and secret societies. These preventive measures are particularly useful for crimes where obtaining sufficient evidence for prosecution is difficult due to the secretive nature of the activities. Additionally, the CLTPA provides a quicker process for addressing imminent threats to public safety, something regular criminal proceedings, which are often lengthy, may not facilitate.

However, several important issues were unstated in the debate. There is a lack of evidence to support the claims about the risks of increased gang activity and crime rates, should theAct be abolished.Additionally, it is an oversimplificationto assume an inevitable rise in crime without the Act, without considering other contributing factors. Claims of “climate of fear” and “uncontrolled gang situation”, should the Act be repealed remain similarly vague. In turn, the broad assertion that the criminal justice system will fail without the Act does not account for countries that are similarly safe, but do not possess legislation like the CLTPA.

6.Against the CLTPA

While the CLTPA enhances public safety by swiftly removing potential threats, it also raises concerns about its proportionality to the threat of gangs, due process, and potential abuse.

Firstly, the Act’s basis a continual existential struggle against gangs has been problematised almost since theAct’s inception. In 1958, Chief Secretary E.B. David expressed hope that the Act would be unnecessary within three years through diminishing gang violence.37 Three decades later, MPs likewise raised concerns about the relevance of the Act, given the drastically changed social conditions, where gang violence was no longer a great a

37 Singapore Parliamentary Debates, Official Report (8 October 1958) col 831, accessible at < https://sprs.parl.gov.sg/search/#/topic?reportid=012_19581008_S0003_T0003 >

threat as it was backthen.38 Similarconcernswereechoedin the2024debatesbytheopposition MP, Mr. Leong Mun Wai.39

Secondly, the wide power of the Act is also inconsistent with a right to a fair trial, and more generally, with open justice. Indeed, to some, far from showing a legal system that acts decisively against gangs, the continued use of CLTPA may indicate the legal system is illequipped to investigate organised crime by its usual methods, and must instead resort to this expedient. Indeed, one could go so far as to argue that by bringing proceedings against gangs out of the justice system through the CLTPA, the public or indeed, the victims of gangs, cannot see their lawless oppressors brought to justice

The government is well aware of this criticism, and has repeatedly emphasised how it is an “instrument of last resort”,40 with numerous safeguards to prevent abuse: for example, the accused can have legal representation, the Public Prosecutor’s consent is needed for an order. Finally, legal judges are on the panel of advisers.41 Notably, at no point in the 4 April 2024 debate, did any MP suggest that the CLTPAwas being abused, or alleged cases of such abuse.

38 Singapore Parliamentary Debates, Official Report (4August 1989) cols 458–460.

39 3 April 2024 Debate, Speech of Mr. Leong Mun Wai: “[D]oes the Ministry intend to continually renew this piece of legislation for as long as crime in Singapore is not completely eradicated? Otherwise, can the Ministry share with this House under what circumstances it is prepared to do away with this piece of legislation, which was intended to be temporary when it was first enacted in 1955?”

40 3April 2024 debate,Assoc Prof Dr Muhammad Faishal Ibrahim: “.. However, as we have emphasised, theAct is an instrument of last resort” .Mr. Murali Pillai; “ These powers are meant to be used as a matter of last resort because of the difficulty in securing evidence against such persons, as explained by the hon Minister of State; primarily by reason of their association with secret societies.””

41 Zaihan Mohamed Yusof, ‘Renewing Last Resort Law That Allows Detention of Criminal Suspects Without Trial’ (30 March 2024, Straits Times), accessible at <https://www.straitstimes.com/singapore/renewing-lastresort-law-that-allows-detention-of-criminal-suspects-without-trial>.

In turn, The Singaporean courts have also not been passive in the face of the CLTPA, even though their responses to the Act differ from English and European courts. Singapore lacks a charter of rights, which precludes arguments of the nature found in Ireland v UK or A v Secretary of State for the Home Department 42.As such, the review of Tan Seet Eng, proceeded on standard judicial review principles, and did not use rights-based arguments directly. However, as shown above, it is wrong to say that rights abased arguments hold no water in the wider discussion on the CLTPA: even though the CLTPAis inconsistent with the right to a trial and individual liberty, the government continually shows how the Act’s inconsistency with such rights is carefully constrained by law and practice.

Whilst this rights-based discourse may be important from a theoretical perspective, the authors feel that the CLTPA’s persistence is due to other factors, which are not captured when the Act is analysed solely through the perspective of rights.

7.An instrument of last resort?

As shown above, the power of detention against violent, organised criminals is the CLTPA’s most prominent feature and dominates discourse on the Act. The act has certainly been amended to reflect this function, as can be shown by its incorporation of section 48(1) of the Organised CrimeAct 2015.

However, this power is not the Act’s only function, nor might it be its primary function in practice. Far from being an instrument of last resort, in some cases, provisions of theAct are a first resort. For example, the sections prohibiting strikes by ‘essential service providers’ are used to define what these providers are.43 Again, the Act allows the government to deal with subversive documents and strikes of essential service workers.

42 [2004] UKHL 56

43 Employment Act s 38(2)(f); Lee Chye Chong and others v SBS Transit Ltd [2021] 5 SLR 821; [2021] SGHC 139 at [6].

Secondly, whilst the CLTPA’s most justifiable use may be against violent crime, not every “activity of a criminal nature” that activates theAct involves physical violence.As mentioned above, the Serious Offences found in the Schedule of the Organised Crime Act, include computer hacking,44 copyright infringement,45 illegal gambling,46 and counterfeiting trademarks.47

Finally, and perhaps most significantly, the CLTPAhas a powerful deterrent function. This was articulated in the 1959 debate on theAct, where the Minister for HomeAffairs stated:

“Furthermore, the knowledge that the Ordinance will be in force for another five years will be a deterrent to both present and potential gangsters and, I hope, will also make them seriously consider the advantages of reforming themselves.” 48

As mentioned above, there is no limit to the number of extensions to a detainee’s period of detention. Whilst a prisoner convicted in a court of law at least has the certainty of a definite date of release however far away it may be in the future, a detainee under the CLTPA does not have this comfort. There is nothing in the CLTPAthat stops him from being imprisoned for the rest of his natural life. Thus, if even non-violent, peripheral involvement with secret society exposes one to the risk of indefinite detention without trial, detention under the CLTPA forms a powerful deterrent against joining such societies indeed.Although not acknowledged in most public discourse, this threat does seem to have an effect on the wider public: A Straits Times

44 Organised CrimeAct, Schedule 1 19-25A.

45 Organised CrimeAct, Schedule 1, 25B, 25C.

46 Organised CrimeAct, Schedule 1, 32A-32J.

47 Organised CrimeAct, Schedule 1, 190-193.

48 Singapore Parliamentary Debates, Official Report (2 September 1959) vol 11 at cols 576 (Minister Ong Pang Boon, accessible at https://sprs.parl.gov.sg/search/#/topic?reportid=012_19590902_S0003_T0003 >

interview with a former detainee describes how he did not expect his life to be “destroyed” due to his involvement in a gang fight and subsequent imprisonment.49

The fact that the government possesses this power and publicly displays the fact by extending the Act every five years, produces a deterrent effect by itself, regardless of how often the CLTPA is implemented in practise. This would explain the Act’s persistence despite the relatively small number of detainees relative to the prison population, and the long-standing decline in absolute number of detainees.50 The deterrent power of detention further explains why more Detention orders (86) than Police supervision orders (37) were issued between 2019 and 2023,51 despite the former being a more resource-intensive for the government: a detention order has a greater deterrent effect that simple police supervision.

In light of the above, the standard narrative of the CLTPA as well as criticism as to its impact on human rights remains incomplete. From what is shown above, in addition to being a practical tool to combat disorder through strikes and subversion, the Act possesses a potent symbolic value, both as a deterrent, and as a visible demonstration of the Government’s willingness to eradicate gang violence

8. The future of theAct

49 Zaihan Mohamed Yusof, ‘Renewing Last Resort Law That Allows Detention of Criminal Suspects Without Trial’ (30 March 2024, Straits Times), accessible at <https://www.straitstimes.com/singapore/renewing-lastresort-law-that-allows-detention-of-criminal-suspects-without-trial>.

50 Neo Chai Chin, ‘Law allowing detention without trial extended’(Today Online, November12, 2013), accessible at <https://www.todayonline.com/singapore/law-allowing-detention-without-trial-extended>.

51 3 April 2024 Debate, Speech of Dr. Muhammed Faisal Ibrahim. “Over the years, the number of detention and supervision orders issued under the Act has declined. From 21 October 2019 to 31 December 2023, 123 persons were dealt with under theAct – 86 Detention Orders (DOs) and 37 Police Supervision Orders (PSOs) were issued. This was fewer than the number of cases in the same period of the previous term of theAct.”

Looking ahead to the future of the CLTPA, several complex dynamics and evolving societal trends will shape its trajectory in Singaporean law and governance.

Firstly, the evolving nature of criminal threats demands a flexible legislative response. Originally designed to combat organised crime, the CLTPA has undergone amendments to address a wider spectrum of offences, from financial crimes to cyber threats. This adaptation reflects Singapore's proactive stance in combating emerging criminal activities that pose significant risks to national security and societal well-being. However, ensuring these expansions do not compromise due process rights or disproportionately target vulnerable communities remains a crucial challenge.

Secondly, technological advancements continue to transform surveillance capabilities, there will be heightened scrutiny over theAct's methods of enforcement and their compatibility with contemporary standards of privacy and civil liberties. The integration of digital surveillance tools, including AI-powered analytics and expansive data collection, raises fundamental questions about the necessity and proportionality of the Act's more intrusive provisions. Balancing effectivelawenforcement with safeguards against abuseofpower will beparamount in maintaining public trust and ensuring compliance with international human rights norms.

Finally, technological advancements have transformed the state’s surveillance capabilities. CCTV cameras have proliferated. Phone forensics may determine a person’s location with considerable accuracy. Digital surveillance tools, and data collection have expanded greatly, therebyallowingonlinechatstobemonitoredwithease.Assuch,directevidencecanbereadily procured against organised criminals, reducing, or even making redundant the need for witnesses. The state has also shown its capacity to prosecute complex criminal networks through the ordinary justice system, for example, in a recent Billion-Dollar money laundering case.52

52 Kok Xinghui . "Suspects back in court over Singapore's swoop on major money laundering ring". (Reuters, 30 August 2023) , accessible at https://www.reuters.com/world/asia-pacific/suspects-back-court-over-singaporesswoop-major-money-laundering-ring-2023-08-30/

Having enjoyed the fruits ofa peacefulsociety afterover half a century ofCLTPAenforcement, Singaporeans might want to maintain and uphold the status quo through retaining theAct. On the other hand, the generation that saw the depredations of triads first-hand is fading day-byday. Later generations of Singaporeans, living in a more peaceful society, might see the CLTPA as an outdated relic of a more lawless age, as quaint as laws against highwaymen and pirates.

Nonetheless, even if the CLTPAis repealed, the authors believe Singaporeans in general would still largely be compliant with the law, and not be daunted in the face of witness intimidation, given the environment that the CLTPA has helped to shape in Singapore: a country founded upon strict enforcement of law, and a dedication to collective safety.

9. Conclusion Navigating the future trajectory of the CLTPA requires a sophisticated and multifaceted approach. If the CLTPA is to remain a useful statute, it must evolve in response to emerging threats and societal changes, all while maintaining a principled approach that balances security imperatives with the principles of proportionality and necessity. The government must harmonise the imperative of security, and the imperative to uphold civil liberties. This is best accomplished through a robust framework of consultation and transparency with the public. Only by doing so can policymakers effectively address concerns and refine the CLTPA so it may continue to combat threats to order whilst still underscoring Singapore's commitment to justice, fairness, and the rule of law.

Ashortarticlelike this cannot dojusticeto the complexAct thatis theCLTPA.TheAct remains understudied in many respects. Further research needs to be done in how the CLTPA is implemented in practice, and what effect it has on youth at risk of organised crime, and how

significant is the CLTPA’s deterrent effect in practice. This could conceivably be done through ethnographic research of youth. 53

Another avenue would be an analysis of the CLTPAin historical perspective: how much of the Act was a response to politicised violence, whether Singapore was unique amongst British colonies in having such anAct, and what sources were drawn upon when creating theAct may prove fruitful in this regard. It is hoped that the fresh perspectives given here may spur research into the CLTPA, and shed new light on this extraordinary statute as it enters its seventh decade of service.

53 It is worth noting that to the authors’ knowledge, no CLTPA detainee has produced an extended account of his detention. This stands in contrast to Internal Security Act detainees, several of whom have published accounts of their detention.

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Brandenburg v Singapore: Exorcising the Quidnunc Mentality from Singapore’s Law of Incitement

Muzainy Shahiefisally1*

This article undertakes a comparative approach to contrast the law of incitement as it has been developed in the United States and in Singapore. Focussing on the seminal case of Brandenburg v Ohio, 395 US 444 (1969), the article will demonstrate how the requirements of imminence of harm and likeliness of harm production do not need to be demonstrated beyond a reasonable doubt in the Singapore context. Instead, it has been asserted in PP v Yue Mun Yew Gary [2012]SGHC188,thatallthatisrequiredforalawprohibitingincitementtobeconsistent with the principle of freedom of expression is for it to possess a mens rea requirement. It will be argued that the reasoning of the Singapore courts is erroneous as it rests on a misguided approach to freedom of expression. Adopting Matthew Kramer’s theory of freedom of expression, it will be demonstrated that the absence of the factors set out by Brandenburg render the Singapore approach inconsistent with the principle of freedom of expression. This is because such an approach expresses a quidnunc mentality which is at once both selfaggrandizing and self-abasing. Consequently, the article will conclude by arguing for a Brandenburg-based approach to incitement.

I. Introduction

1* Third Year Student (LLB), Faculty of Law, National University of Singapore. I would like to extend my sincere gratitude to Owen Phua, Faculty of Law, Singapore Management University, for going out of his way to critique numerous drafts of this article. I would also like to thank Oh Jin Han, Faculty of Law, Singapore University of Social Sciences, and Eddy Sim Chia Yaw, Faculty of Arts and Social Sciences (Political Science), National University of Singapore. Without their constant support, this article would never have become a reality. Finally, I am grateful to the numerous other individuals who have read, commented on, and otherwise helped me during the drafting of this article. With that said, all errors that may be contained herein remain my own.

Since coming into force in 2008, there have only been four individuals2 who have been convictedforincitement unders267CofthePenal Code(“s267C”).3 Perhapsduetoitsrelative infancy or the dearth of cases discussing it, the law of incitement and the potential chilling effects it has on free expression4 in Singapore has received a startling paucity of scholarly scrutiny.

This essay seeks to fill this lacuna by suggesting that, in order for s 267C to comply with the principle of freedom of expression, the test for incitement5 should be a tripartite test requiring (1) that a communication possess directive illocutionary force; (2) that the speaker possess a subjective intention to incite violence; and (3) that the speaker also possess knowledge or a reasonable belief that violence, disobedience to the law, or a breach of the peace is likely to occur.

2 See PP v Yue Mun Yew Gary [2012] SGHC 188 (hereinafter ‘PP v Yue Mun Yew Gary’); PP v Tang Koon Huat [2017] SGDC 221 (hereinafter ‘PP v Tang Koon Huat’); Elena Chong, ‘Man jailed 6 months for online posting inciting violence against cops who arrested teen Benjamin Lim’, The Straits Times (Singapore, 20 October 2016) https://www.straitstimes.com/singapore/courts-crime/man-jailed-for-online-posting-inciting-violence-againstcops-involved-in> accessed <26 June2024>;NadineChua,‘Man jailedoverFacebook comment on ShinzoAbe’s shooting, asking someone to “do the same” to PM Lee’ , The Straits Times (Singapore, 14 April 2024) <https://www.straitstimes.com/singapore/courts-crime/jail-for-man-who-commented-on-shinzo-abe-s-shootingasked-for-someone-to-do-the-same-to-pm-lee> accessed <26 June 2024>.

3 Penal Code 1871 (Singapore, 2020 rev ed) s 267C.

4 The liberty to speak freely is often interpreted to be a qualified right guaranteed by the Constitution: see Constitution of the Republic of Singapore (Singapore, 2020 rev ed) art 14.

5 At present, a person is convicted of incitement if he (1) “utters any words, or makes any sign or visible representation; places before a person any object; posts, publishes, distributes, sells or offers for sale any document; or communicates any electronic record, containing any incitement to violence”; (2) either “intending for violence, disobedience to the law … , or breach of the peace to occur; or … knowing or having reason to believe that violence disobedience to the law … , or breach of the peace, is likely to occur as a result.” The test thus requires only that the speaker (1) communicated something capable of inciting violence or disobedience to the law; and (2) either intended to incite violence or disobedience to law or that he had knowledge or reason to believe that violence or disobedience to law was likely to occur. There is, at present, no need to prove both an intention and knowledge that violence was reasonably likely to occur: see Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1)(a)-(f) (emphasis added).

Inorderto demonstratethenecessityofthistest,thisessaywillcontrast theSingaporeapproach with the rich jurisprudence which has emerged around the law of incitement in the United States. In particular, this essay will undertake a defence of the test established by the United States Supreme Court in Brandenburg v Ohio, 395 US 444 (1969) (“Brandenburg”).6 In doing so, it will clarify the meaning of the various terms of art which the United States Supreme Court developed when it handed down its decision in Brandenburg

Of course, without a proper yardstick in place, there would be absolutely no objective basis for comparing the two approaches and deciding which ought to be applied. Given that the central concern underlying incitement laws is the effect they have on freedom of expression,7 it is

6 Brandenburg v Ohio, 395 US 444 (1969) (hereinafter ‘Brandenburg’).

7 TheinextricablelinkbetweenincitementandfreeexpressioncanbeobservedfromhowSingapore’sConstitution explicitly lists the offence of incitement as an exception to the fundamental liberty of free expression. “Parliament may by law impose on the [right to free expression], such restrictions … to provide against … incitement to any offence.”: see Constitution of the Republic of Singapore (Singapore, 2020 rev ed) art 14(2)(a). The relationship between free expression and incitement has also been recognized in both Singapore and foreign courts: see, for instance, PP v Yue Mun Yew Gary (n 1) [38]: “Given the political context of the present case [on incitement], I have been particularly mindful of the need to give sufficient weight to the value of free expression.”; Hess v Indiana, 414 US 105, 108 (1973): “[T]he constitutional guarantees of free speech … do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”; Samuel v Oromia Media Network, 569 F Supp 3d 904, 910 (Doty J) (2021): “[Plaintiff] broadly asserts that the First Amendment does not pre-empt his claim because OMN’s speech constituted incitement, a categorical exception to the First Amendment’s Free Speech Clause.”; United States v Rundo, 497 F Supp 3d 872, 877 (Carney J) (2019): “Not all speech is protected under the First Amendment. Here, the government asserts that speech criminalized by the Anti-Riot Act falls under the incitement exception to the First Amendment.”; Whitney v California, 274 US 357, 376 (Brandeis J concurring) (1927): “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt,

necessary to develop a theory of freedom of expression. In this regard, this essay will adapt and defend Matthew Kramer’s theory of free expression.8

Having sketched and defended the core tenets of that theory, it will be demonstrated how Singapore’s approach conflicts with it, while the approach taken in the United States is consistent with the theory.

Despite the Brandenburg approach possessing a moral edge, it might nevertheless be objected, as it typically is, that Singapore’s cultural context9 demands we eschew such a “rightist”10 approach. It will be demonstrated that the concerns which animate s 267C can and will still be protected under a revised approach. Furthermore, it will be demonstrated that a pivot to a more free-speech friendly, Brandenburg-esque approach can be supported with reference to the existing legal materials.

The structure of this essay is as follows. The next part will sketch the state of Singapore’s incitement jurisprudence with a particular emphasis on how the courts have dealt with the statutory provision and its interaction with the principle of free expression. The third part will then move to theAmerican context, setting out the Brandenburg test and its development. The fourth part will expound on Matthew Kramer’s theory of free expression and defend it from recent criticism.11 The fifth part will apply the theory to the varying approaches to incitement.

between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”

8 Matthew H Kramer, Freedom of Expression as Self-Restraint (Oxford University Press, 2021) (hereinafter Kramer, Freedom of Expression).

9 “Context shapes the contours of free speech [in Singapore].”: KevinYLTan and Li-annThio, Constitutional and Administrative Law in Singapore: Cases, Materials and Commentary (Academy Publishing, 4th ed, 2021) 865, para 17.012.

10 Ibid 861-2, para 17.002-3, 875, para 17.015. See also Li-ann Thio, ‘Rights as Trumps and Order as CounterTrumps: Re-Examining Free Speech Theory in an Era of Fear, Hate and Lies’ (Conference Paper, Asian Constitutional Law Forum, 6-7 December 2019) 380 (hereinafter Thio, ‘Rights as Trumps’).

11 For criticism of Kramer’s theory: see, for instance, Christopher Kutz, ‘Kramer’s Razor and the Freedom of Expression’ in Mark McBride and Visa AJ Kurki (eds), Without Trimmings: The Legal, Moral, and Political Philosophy of Matthew Kramer (Oxford University Press, 2022) ch 17 (hereinafter Kutz, ‘Kramer’s Razor’);

Finally, the sixth part will justify why and how an approach that is more consonant with free expression should be adopted in Singapore.

II. Singapore’sApproach to Incitement

S267Cwasintroducedaspartofaslewofamendmentsto,inthewordsofthen-SeniorMinister of State for Home Affairs, Associate Professor Ho Peng Kee, address the “darker side” of technological advancements “as law-breakers, criminals and terrorists also leverage on these tools to further their objectives.”12 In this regard, s 267C was an expansion on the means through which incitement could be perpetrated.13 At present, incitement can also be committed by making “any sign or visual representation”14 or “communicat[ing] any electronic record”.15

Thefirst caseconcerning theupdateds 267C was that of PP v Yue Mun Yew Gary [2012]SGHC 188 (“PP v Yue Mun Yew Gary”). There, the respondent had been convicted of incitement on the basis that he posted a comment on Facebook with a YouTube link to a video of a former Egyptian president being assassinated. This was accompanied by his own comment which stated: “We should re-enact a live version of this on our own grand-stand during our national’s [sic] parade !!!!!!”16

At the time, s 267C did not require a mens rea element for the offence to be made out.Aliteral interpretation of the provision would therefore have turned incitement into a strict liability

Collis Tahzib, A Perfectionist Theory of Justice (Oxford University Press, 2022) ch 10 (hereinafter Tahzib, A Perfectionist Theory of Justice).

12 Singapore, Parliamentary Debates, 22 October 2007, vol 83, col 2175 (Ho Peng Kee, Senior Minister of State for HomeAffairs).

13 Prior to the 2007 amendments, it was an offence to “make[], print[], possess[], post[], distribute[] or ha[ve] under [one’s] control any document containing any incitement”: see Penal Code 1871 (Singapore, cap 119, 1955 rev ed) s 151A.

14 Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1)(a).

15 Ibid s 267C(1)(d).

16 PP v Yue Mun Yew Gary (n 1) [3] (Quentin Loh J) (High Court).

offence which would have grave downstream implications for free expression. Thus, Quentin Loh J observed that, “[S]tatutory derogations from the right to free expression are typically circumscribed by a mens rea element or by a more objective requirement that there is likely harm to society.”17 He went on to hold that this was no different in the case of s 267C which “as tortuous as it is, also supports the presumption of mens rea.”18

Loh J also made comments in obiter about the interaction between s 267C and the value of free expression. Loh J recognized that any provision like s 267C “may potentially have an adverse chilling effect on [free and open discourse].”19 However, he noted that “free expression cannot be so unfettered as to allow individuals to cause harm under the guise of expression.”20 Perhaps noticing that the respondent had not in fact caused any harm, Loh J continued:21

While the personal and public benefits of free expression would sufficiently recompense for encounters with the rude, the obstinate, the obtuse and even the offensive, it is no part of the constitutional bargain that citizens must bear violence … or the threat thereof as the price of free expression. In this last statement, Loh J’s adoption of a consequentialist scheme of balancing the value of free expression against the public interest exemplified the approach to free expression that has typified Singapore jurisprudence.22 Loh J informs us that the cost of rudeness is overborne by the value of free expression, but the value of free expression cannot bear the cost

17 Ibid [23] (Quentin Loh J) (High Court).

18 Ibid [25] (Quentin Loh J) (High Court).

19 Ibid [38] (Quentin Loh J) (High Court).

20 Ibid.

21 Ibid.

22 “In the final analysis, it is imperative to appreciate that a balance must be found between the competing interests at stake.”: see, especially, Wham Kwok Han Jolovan v PP [2021] 1 SLR 476, 488 [33] (Judith Prakash JAfor the Court) (Court ofAppeal).

of the threat of violence. As in all other balancing exercises, how Loh J arrived at these handwaving conclusions remains opaque.

Finally,it is worth payingregardto thefact thatLohJ, in dicta,stressedthat thepurpose of s 267C was to “prosecute and thereby deter those who, for whatever motive or purpose, seek to threaten public order by instigating and causing others to act with violence.”23 This observation is notable since Loh J had previously stated that the test for incitement was solely whether the speaker intended to incite violence or disobedience to the law, such that it was inconsequential whether said speaker actually succeeded in doing so.24 Yet, when stating the law’s underlying purpose, Loh J opined that a threat to public order was constituted not only by a speaker’s instigation but also by the causation of violence.

The next reported case was that of PP v Tang Koon Huat [2017] SGDC 221 (“PP v Tang Koon Huat”). There, the accused made two incendiary Facebook posts about white people, with the latter post demanding that a “vigilante group” be formed to “beat up troublesome drunk WHITE bastards” and to “[t]each these bumps [sic] a lesson.”25 Despite citing and accepting26 Loh J’s conjunctive characterization of s 267C’s purpose, District Judge Mathew Joseph held that “the offence of inciting violence clearly rules out the necessity for actual violence to have resulted in consequence of the incitement.”27

Counsel for the accused had stated that a conviction would violate the accused’s right to free expression as “[t]here must be a space where people can express negative comments … and it cannot be expected of everyone to sing the same tune as everyone else.”28 Despite rebutting counsel for the accused by stating that “this case is not about being not able to

23 PP v Yue Mun Yew Gary (n 1) [45] (Quentin Loh J) (High Court) (emphasis added).

24 Ibid [40], [44] (Quentin Loh J) (High Court).

25 PP v Tang Koon Huat (n 1) [4] (Mathew Joseph DJ) (District Court).

26 Ibid [20] (Mathew Joseph DJ) (District Court).

27 Ibid [24] (Mathew Joseph DJ) (District Court).

28 Ibid [29] (Mathew Joseph DJ) (District Court).

disagree” or “about not making hate speech”,29 such averments contradict his earlier admonishments of the accused:30

Every democratic society needs protection from individuals who deliberately post offensive or extreme commentsontheInternet.Suchextremepostsmaybe racial,seditious, discriminatory, promote terrorism or even just be uncivil

Evidently, the case was indeed about disbarring individuals from making hate speech so as to protect “democratic society”. To be sure, where Loh J had dismissed encounters with rude and even offensive speech as being the price of free expression, District Judge Joseph went further by declaring that we “need[] protection” from “uncivil” posts.

To summarize, the Singapore approach to reconciling incitement with free expression requires simply that a speaker communicate an incitement to violence or lawlessness and have intended to incite either violence or lawlessness. Although Loh J stated that s 267C’s purpose was to criminalize conduct which instigated and caused violence, this injunction has largely been disregarded in practice.

Asthings stand,disparaterationaleshavebeenpropoundedbythecourtsforthecriminalization of inciteful language. On the one hand, the criminalization of incitement is said to be justified by a utilitarian calculus, holding that the harms of incitement outweigh free expression’s value. Ontheotherhand,thecriminalizationofincitement is said to beanimatedbymorepaternalistic concerns of protecting democratic society from encounters with the offensive or extreme.

III. TheAmericanApproach to Incitement

TheAmerican jurisprudential approach to bringing incitement within the ambit of the principle of free expression was birthed in the seminal case of Brandenburg v Ohio, 395 US 444 (1969) (“Brandenburg”). There, the leader of a Ku Klux Klan group was convicted under an Ohio

29 Ibid (emphasis in original).

30 Ibid [27] (Mathew Joseph DJ) (District Court) (emphasis added).

statute for criminal syndicalism.31 The Klan member had been filmed at a rally stating that “if our President … continues to suppress the white … race, it’s possible that there might have to be some revengeance taken.”32

The Klan member, with the aid of the American Civil Liberties Union, appealed on the basis that the statute violated his right to free expression under the First Amendment of the United States Constitution. The Supreme Court, per curiam, developed a new test for assessing whether statutes prohibiting incitement violated the right to free expression. On the basis of this test, speech can only be prohibited as incitement where it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.33

This test remains definitive in the United States for determining whether a statutory prohibition of incitement falls foul of free expression. Contemporarily, the Brandenburg test has been interpreted as imposing three cumulative requirements which a statutory provision, impugning speech purported to incite violence, must satisfy: (1) The speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that his speech will result in the use of violence or lawless action; and (3) the imminent use of violence or lawless action is the likely result of his speech.34

In relation to the first limb, the speaker’s words must “specifically advocate” for listeners to take unlawful action. Therefore, “the mere abstract teaching of the moral propriety … for resort to … violence, is not the same as preparing a group for violent action and steeling it to such action.”35 This was why Donald Trump’s repeated invocation to “get ’em out of here” with regard to protestors at his rally, was held to be constitutionally protected. For although it “had a tendency to encourage unlawful use of force, [it] did not specifically advocate for listeners to take unlawful action”.36 His invocations could not be interpreted as implicitly

31 Brandenburg (n 5) 444-5.

32 Ibid 446.

33 Ibid 447.

34 Bible Believers v Wayne County, Michigan, 805 F 3d 228, 246 (Clay J) (2015) (hereinafter ‘Bible Believers’).

35 Noto v United States, 367 US 290, 298 (Harlan J for the Court) (1961).

36 Nwanguma v Trump, 903 F 3d 604, 610 (McKeague J for the court) (2018) (hereinafter ‘Trump’).

37

advocating unlawful action either as they were accompanied by his admonition: “Don’t hurt ’em.”

Indeed, despite the fact that the plaintiffs were in fact assaulted by members of the audience, the Sixth Circuit maintained that the impugned speech did not constitute an incitement to riot as “the subjective reaction of any particular listener cannot dictate whether the speaker's words enjoy constitutional protection. It is the words used by the speaker that must be at the focus of the incitement inquiry, not how they may be heard by a listener.”38

In relation to the second limb, the speaker must subjectively intend “to spur their audience to violence.”

39 Hence, when a group of evangelical Christians turned up to an Arab Festival in Dearborn, Michigan, holding placards reading, inter alia, “Islam is a Religion of Blood and Murder”; “Turn or Burn”; and “Your prophet is a pedophile”,40 the fact that these offensive messages drew a hostile reaction from Muslim attendees could be disregarded. This is because the evangelical demonstrators were merely “advocat[ing] for their Christian beliefs and … harboring contempt for Islam. This advocacy was purportedly intended to convince Muslims at the Festival that they should convert to Christianity.”

41

The fact that the evangelical demonstrators did not possess an intention to stoke violence or lawlessness was reinforced by drawing inferences from their actions. They had “contacted Wayne County prior to their visit, requesting that the WCSO keep the public at bay so that [they] could ‘engage in their peaceful expression’.” Therefore, “[a]lthough it might be inferred that the [evangelicals’] speech was intended to anger their target audience, the record is devoid of any indication that they intended imminent lawlessness to ensue.”42

37 Ibid 609 (McKeague J for the Court).

38 Ibid 613 (McKeague J for the Court).

39 Bible Believers (n 33) 246 (Clay J).

40 Ibid 244 (Clay J).

41 Ibid.

42 Ibid.

Finally,in relation to thethirdlimb, thethreat ofviolenceorlawlessnessposedbythe speaker’s rhetoric must be “likely to incite or produce such action.”43 Thus, in NAACP v Claiborne Hardware Co, 458 US 886 (1982) (“NAACP”), the fact that Charles Evers had, at two separate speeches, declared that blackAmericans who defied a boycott of allegedly racist stores would be “disciplined” and that their “necks would be broken”44 was ruled to be constitutionally protected. This was because:45

“[t]he lengthy addresses generally contained an impassioned plea for black citizens to unify … and to realize the political and economic power available to them. In the course of those pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct.

Even where violence does occur, it also needs to be proximate with and causally linked to the alleged inciting language. Where there is neither proximity or causality, however, “[a]n advocate [will] be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause.”46

To summarize, where Singapore has eschewed any attempt at defining the kind of speech that incites,Americanjurisprudencehassoughttofillthisgapbydenyingprotectiononlyforspeech which “specifically advocates” violence or lawlessness. Secondly, much like Singapore, American courts require that the speaker must have subjectively intended for violence or lawlessness to occur.47 However, the analysis of said intention is independent of whether any

43 Brandenburg (n 5) 447.

44 NAACP v Claiborne Hardware Co, 458 US 886, 927 (Stevens J for the Court) (1982) (hereinafter ‘NAACP’).

45 Ibid 928 (Stevens J for the Court).

46 Ibid.

47 Said intention is to be divined from the speaker’s words and the context surrounding his speech.: See, for instance, Trump (n 35) 609-10 (McKeague J for the Court). Cf Thompson v Trump, 590 F Supp 3d 46, 117 (Mehta J) (2022) where the United States District Court gave short shrift to evidence of a contrary intention.

actual violence or lawlessness does occur. Finally, unlike Singapore’s approach, American courts have found that for speech to be deemed incitement, it must be likely to produce such action. Where violence or lawlessness does occur, it must also be temporally proximate and causally linked to the speech.

IV. AKramerianApproach to Free Expression

From the comparative above, it remains unclear whether the final step of the American analysis that is, that the impugned speech must be likely to incite violence is necessary or if the considerations adverted to by Singapore courts are sufficiently weighty to make it such that a speaker need only intend to instigate violence or lawlessness for him to be guilty of incitement. Indeed, the mere observation thatAmerican courts differ from Singapore courts in their approach to the criminalization of incitement is an insufficient reason to decide that one approach is superior to the other.

Settling on a given approach on this basis would not only be premature, it would also constitute a violation of Hume’s law of relevance which holds that simply because “something is ... the case lends, in and of itself, no support to the claim that it–that very ‘something’–ought to be the case, or that it ought to be either preserved or upheld.”48 In this case, the statement that American courts have deemed it necessary for incitement to be tethered to harm-production or the likelihood thereof is an entirely non-normative premise and is thus incapable of generating the normative conclusion that Singapore ought to adopt this approach and vice versa. Therefore, the question of which country’s approach to incitement ought to be recognized can only be settled by normative argumentation as opposed to descriptive statements about what is the case in each jurisdiction.As such, in order to adjudicate between these two approaches, we must first grasp the value of free expression. This part will hence be devoted to expounding on said value by adapting and defending Matthew Kramer’s theory of free expression.

48 Luís Duarte D’Almeida, ‘Hume’s Law (In Gardner and Otherwise)’in Michelle Madden Dempsey and François Tanguay-Renaud (eds), From Morality to Law and Back Again: A Liber Amicorum for John Gardner (Oxford University Press, 2023) 85 (emphasis in original).

Kramer assumes an absolutist stance to the principle of free expression. He is, however, quick to point out that absolutism on free expression does not refer to the farcical “thesis that no type or instance of communicative conduct can ever legitimately be prohibited by a system of governance.”49 Instead, although the principle of free expression “is applicable always and everywhere to all modes of communication”, it does not “morally exempt” all types of communicative activities from governmental restriction.50 It only “morally disallows all such restrictions that are directed against the communicative character of any of those activities.”51 Thus, communication-independence is crucial to Kramer’s account of free expression.

Kramer illustrates this notion by drawing on the infamous example of a firebrand orator who goads a starving mob into lynching a corn-dealer.Although the “fulminations of the orator are communicative”, it is “through them [that] he conveys both a clear-cut message and some malign sentiments to the members of the mob.”52 The proximity between his exhortations and the subsequent violence against the corn-dealer as well as “the role of his utterances in deliberately spurring the mob to proceed with those exertions”, enables us to characterize his tirade as being “constitutive of his direct participation in the lynching.”53

The reason why the firebrand’s tirade is aptly characterized as being communicationindependent is because the wrongness therein, that is, the wrongness of directly participating in a lynching, can be engaged in through both communicative and non-communicative means.54 As Kramer puts it, “[a]n inflammatory tirade that stirs up a mob into a frenzy is one

49 Kramer, Freedom of Expression (n7)1.See also GrégoireWebber, ‘Proportionality and Limitations onFreedom of Speech’inAdrienne Stone and Frederick Schauer (eds), The Oxford Handbook of Freedom of Speech (Oxford UniversityPress,2021)191-2explainingthemisconceptionsincritiquesofabsolutistpositionsonfreeexpression. Cf Thio, ‘Rights as Trumps’ (n 7) 391 for precisely this sort of parodying of the absolutist position on free expression.

50 Kramer, Freedom of Expression (n 7) 30.

51 Ibid.

52 Ibid 67.

53 Ibid.

54 For the avoidance of doubt, what exactly allows for a given communication to be subsumed into a generalized category of wrongdoing and thereby achieves communication-independence will differ with the type of communication under analysis. In the context of incitement, it is the subjective intentions of the speaker coupled

way in which somebody can directly contribute to the perpetration of a lynching, and the placing of a rope around the victim’s neck is another such way.”55

These two acts are grouped together in the same genus of evildoing due to the wrong-making properties which they both share. The tirade’s “membership in that genus of wrongdoing is what accounts for its legitimate prohibitability.”56 The sanctioning of the tirade is thus legitimate for it does not target the utterances qua mode of communication but rather qua participation in a deadly act of violence.57

To defend his theory of absolute free expression, Kramer starts with an aspirational perfectionist view of a system of governance’s duty to its subjects. Said system is morally obligated to bring about “the legal-governmental and socioeconomic arrangements under which every citizen can be warranted in harboring a strong sense of self-respect.”58 It is, in Kramer’s words, a government’s “paramount moral responsibility.”59

with the proximity which his fulminations have to violence or the likelihood thereof which allow his communicative conduct to be subsumed into the wrongness of perpetrating or attempting to perpetrate violence and/or lawlessness. As explained in the text, a communicator’s subjective intention and the proximity it has to violence allows us to characterize his communication as some of the early stages of the violence subsequently perpetrated. Given that the wrong which inheres in the communication is the perpetration of violence, criminalizing the communication is legitimate as violence can be perpetrated by other means such as physically accosting another. What exactly is required for other laws proscribing communications such as solicitation to commit a crime, perjury, defamatory allegations, fraudulent statements, advertising of illegalities, disclosure of state secrets, true threats, negligent misstatements and child pornography to achieve communicationindependence will differ given the fact that the wrong being perpetrated therein differs from the wrong being perpetrated by incitement. For an elucidation of how these myriad communication-types can achieve communication-independence, see Kramer, Freedom of Expression (n 7) 69-111.

55 Ibid 68.

56 Ibid.

57 By contrast, the prohibition of the mere advocacy of lynching others would fail the test of communicationindependence as such communicative acts cannot be subsumed into the wrongness of directly perpetrating a lynching.

58 Matthew H Kramer, Liberalism with Excellence (Oxford University Press, 2017) 341 (hereinafter Kramer, Liberalism with Excellence).

59 Kramer, Freedom of Expression (n 7) 129.

Kramer posits that the level of warranted self-respect which each person enjoys is heightened by the occurrence of outstanding feats within that society.60 Though the postulate that one’s level of self-respect is justifiably improved through the achievements of others might seem queer at first blush, vicarious pride is in fact a ubiquitous feature of everyday life.61

Consider for instance the phrase “Proud to be Singaporean”, one who invokes it is taking pride in the island-nation’s rapid development from a third-world country to a vibrant economic hub. As Kramer observes, “[g]iven the importance of a society in affecting the overall course of the life of each individual who belongs thereto, its members have good reason to feel better about themselves when other members enhance the society’s stature through their accomplishments.”

62

The nexus between the occurrence of outstanding feats within one’s society and the warrantedness of self-respect can further be proven through a converse proposition. Given that one can take vicarious pride in the achievements of others in one’s society, a dearth of achievements within one’s society entails that one would be warranted in “feeling worse about herself by virtue of belonging to a society that is devoid of excellence.”63 Indeed, in light of the fact that one’s connection with one’s country is an “important constituent of the overall trajectory of [one’s] life”, should one belongs to a country that is rife with degeneracy, one will be warranted in one’s estimation of how poorly one’s life has gone.64

One of the foremost accomplishments of a society citizens can vicariously take pride in is the establishment of a liberal-democratic ethos. This is because a liberal-democratic ethos emphasizes self-restraint, marked by an insistence on “[p]atterns of reciprocal forbearance

60 Kramer, Liberalism with Excellence (n 57) 351-2.

61 See, for instance, Muzainy Shahiefisally, ‘Bringing Coherence to the Law: The Internal Basis for Vicarious Liability’(2022-2023) 40 Singapore Law Review 94, 120 illustrating how vicariously taking responsibility for the faults of others is ubiquitous in everyday experience.

62 Kramer, Liberalism with Excellence (n 57) 359.

63 Ibid 366.

64 Ibid.

amongcitizens,andpatternsofforbearanceinagovernment’sinteractionwithcitizens”.65 This, in turn, “enables … citizens to realize their nature as free and equal persons.”66

Having outlined how a state’s paramount responsibility is to foster a liberal-democratic ethos in order to amplify each individual’s sense of warranted self-respect, we are now in a position to evaluate the problematic nature of laws targeting communicative activities qua communication. Such laws are redolent of, in Kramer’s terms, a self-aggrandizing and selfabasing quidnunc mentality.67

The quidnunc mentality is that which is displayed in the way “a busybody of a village interacts with her fellow villagers.”68 The extent to which the busybody judges her life to be going well is “dependent on the patterns of conduct adopted by those other villagers, notwithstanding that [they]affect heronly throughherownsentiments ofoffendedness andgratification.”69 Because she “gauges the success of her doings partly by the extent to which she secures the conformity ofthoseinhabitantstoherstandards”,shefeelsitismorallynecessaryto“hector[]orostracize[] or importunately cajole[] anyone whom she believes to be falling significantly short”.

70

Such behaviour is self-aggrandizing because “it takes for granted that one’s fellows can permissibly be prevailed upon … to modify patterns of communicative behavior that are not harmful to anybody ….”71 It is also self-abasing “since it makes one’s own sense of satisfaction partly dependent ontheresponsiveness ofone’s fellowsto one’s officious badgeringabout their private pursuits.”72

65 Ibid. See also Ernest J Weinrib, Reciprocal Freedom: From Private Right to Public Law (Oxford University Press, 2022).

66 Kramer, Liberalism with Excellence (n 57) 371.

67 Kramer, Freedom of Expression (n 7) 136, 139-42.

68 Ibid 140.

69 Ibid.

70 Ibid.

71 Ibid.

72 Ibid.

Similarly,laws whichtarget communicativeactivities qua acts ofcommunication73 andnot qua communication-independent misconduct, are a “meddlesome” form of self-aggrandizement as they “are not aimed at prohibiting or preventing the occurrence of any communicationindependent misconduct. Rather, those laws or policies are aimed at prohibiting … communications thatare not constitutiveofanysuchmisconduct.”74 Simultaneously,suchlaws areamanifestationofthesystem’sself-abasing ethicalweakness astheleadersofsuchasystem “have tied the success of the system’s endeavors partly to its effectiveness in not lettingcitizens arrive at disfavored decisions about the types of communications in which they will engage”.75

It might, at this point, be objected that certain communications, such as hate-speech and pornography, are harmful and we should prohibit such modes of communication due to their harmful content. Even if we assume, arguendo, these types of communicative activities can cause real-world harm, laws which target such activities qua modes of expression nevertheless replicate the aforementioned patterns of overweeningness and demeaningness which plague other laws targeting communications for their communicative character. Such laws are demeaning “because they presuppose the failure of the system to bring about the societal ethos that would effectively counter the noxiousness of any pornographic materials and hateful utterances that are not constitutive of communication-independent misconduct.”

76

Such laws are likewise overweening because they are inextricably tied to that system’s failure to abide by its “moral obligation to foster and entrench an ethos of liberal-democratic values in the society over which it presides.” That is, “because the system of governance has left itself and its society needlessly vulnerable to the baneful effects that can ultimately flow from certain types of communications where the effects have not been adequately warded off, the officials in the system feel obliged to offset their remissness with illiberality.”77 As such, the

73 One can think of hate speech laws or laws which ban target specific classes of communication, such as laws prohibiting the distribution of communist propaganda.

74 Kramer, Freedom of Expression (n 7) 141.

75 Ibid.

76 Ibid 147.

77 Ibid.

promulgation of laws to quell the propagation of harmful communications, qua violations of the principle of free expression, is impermissible everywhere and always.

Returning to the paramount responsibility of a government to foster the conditions for citizens to feel an ample sense of warranted self-respect, contraventions of the principle of freedom of expression, as deviations from a deontological ethic of self-restraint, “derogate from the level of self-respect that is warranted of each person in the society”.78

This is because such violations of the principle of free expression “debase the moral integrity of any system of governance that perpetrates them.”79 Thus, given that the level of self-respect an individual is warranted in feeling is inextricably linked to the occurrence of outstanding featswithinone’ssociety,thedegradationofthemoraltenorofthatsociety“directlydiminishes the extent to which each [individual] can warrantedly take pride in the prevailing system of governance as something with which each [] is associated.”80

A. AFirst Objection: Whither Other Theories of Free Expression?

Despite the preceding discussion on the principle of free expression, it may be argued that the account adopted herein is not the only conceptualization of free expression, and thus it would beerroneous to disproportionatelyfavourthis particularconceptualizationoverits competitors. Though refuting the various conceptualizations of free expression would require book-length treatment, this part will be more modest in scope and take aim at the instrumental conceptualizations representative of the views espoused by leading Singaporean academicians. Thio Li-ann asserts that the central role of free expression is to serve “the objectives of promoting democracy and truth.”81 Though little effort is put into justifying why free

78 Ibid 152.

79 Ibid.

80 Ibid.

81 Li-ann Thio, ‘The Virtual and the Real: Article 14, Political Speech and the Calibrated Management of Deliberative Democracy in Singapore’[2008] 1 Singapore Journal of Legal Studies 25, 26 (hereinafterThio, ‘The

Given the instrumental foundations of her theory, Thio inveighs against absolutism on free expression. Instead, she advocates for a “calibrated” 84 approach to free expression, allowing governments to outlaw modes of expression inimical to the conditions of “civil discourse.”85 Accordingly,freeexpressioncanbederogatedfrom“tosecureothergoods likedignitaryrights, community harmony, inclusive environments, pluralism, and civility” insofar as these other values are conducive to producing “sustainable democracy.”86

Quite apart from the fact that Thio supplies no justification as to why free expression in the service of democratic debate should be exalted over modes of expression that further other goods such as artistic expression87 or commercial communication, such instrumental reasoning creates massive lacunas in terms of the types of speech it protects.

To see this, one must first observe that, in line with the Meiklejohnian tradition88 from which she argues, Thio’s argument from democracy is addressee-focused. Speech is hence only

Virtual and the Real’). Cf Thio, ‘Rights as Trumps’(n 9) where she critiques the marketplace of ideas and truthbased justifications for free expression.

82 Thio, ‘Rights as Trumps’(n 9) 387.

83 Ibid 388.

84 Thio, ‘The Virtual and the Real’(n 80) 57.

85 Ibid.

86 Thio, ‘Rights as Trumps’(n 9) 404.

87 In fact, Thio expressly countenances that the value of free artistic expression can be readily discounted. Lamentably, however, she fails yet again to supply any justification for why this ought to be so. See Thio, ‘The Virtual and the Real’(n 80) 26.

88 “The final aim of [a democratic community] is the voting ofwise decisions.The voters, therefore, must be made as wise as possible. The welfare of the community requires that those who decide issues shall understand them. They must know what they are voting about. And this, in turn, requires that so far as time allows, all facts and interests relevant to the problem shall be fully and fairly presented to the meeting. . . . As the self-governing

120 expression is only valuable for its ability to promote deliberative democracy, she does direct our attention to the fact that free expression in this sense “facilitates informed, … wise choices.”82 We are told that “individual citizens as part of self-development should be empowered to participate actively to shape the democratic decision-making process.”83

protected insofar as it is addressed to an audience. The problem with this is that speech can be made with no audience at all.

Consider the example of a delusional Maoist who preaches about the merits of implementing a destructive Cultural Revolution in an empty room. Though such speech could potentially incite violence and anarchy if made in a suitable public setting, it is wholly benign when made in isolation.Yet, given that such speech was made to no one in particular,Thio’s argument from democracy would offer it no protection whatsoever against potential criminalization. Indeed, givenMaoism’sstaunchoppositiontodemocracy,Thiowouldprobablybeinfavourofmeeting such benign fulminations with the coercive force of the law.

This insight gives rise to a related problem that Thio’s rendition of the argument from democracy is dogged by.AsThio writes, “a distinction must be drawn between political speech which promotes democratic debate and truth, and political speech which undermines these objectives ….”89 Though this passage appears to have been written in connection with her theory’s protection of only factual truths, it would appear that Thio would also fail to extend protection to certain evaluative judgments.

Indeed, given that totalitarian systems like Maoism, communism, fascism and Nazism aim to bring about the death of democracy and, by extension, democratic debate, Thio’s argument from democracy wouldpresumably offerno protectionto theadvocacyofsuchanti-democratic ideologies. In doing so, she exposes her theory to the quidnunc mentality objection, laying bare the shuddersome paranoia and insecurity which plagues her ideal of democracy.

Bycontrast, dueto its emphasis oncommunication-independence,thetheoryoffreeexpression that has heretofore been expounded upon will afford the lone Maoist protection against government incursion, allowing him to propagate Maoism in private. Likewise, where the fulminations of anti-democratic actors are not likely to lead to harm-production, society must abide by such advocacy to eschew the quidnunc mentality. community seeks, by the method of voting, to gain wisdom in action, it can find it only in the minds of its individual citizens. If they fail, it fails. That is why freedom of discussion for those minds may not be abridged.”: Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (Oxford University Press, 1965) 25.

89 Thio, ‘The Virtual and the Real’(n 80) 41.

B. ASecond Objection: Begging the Question

Collis Tahzib has criticized Kramer’s quidnunc mentality objection to edificatory perfectionist policies, such as those proscribing hate speech and pornography as a means to ward off their noxious effects and elevate societal discourse. Tahzib asserts that such an objection “fails because it begs the question against perfectionism by assuming precisely what needs to be shown, namely that the edification of the citizenry falls outside the proper bounds of government.”90

Tahzib asserts that the quidnunc mentality analysis is “morally epiphenomenal” in that “it cannot explain or even illuminate why edificatory perfectionism is illegitimate because it already assumes that the illegitimacy of edificatory perfectionism has been demonstrated by means of other very different sorts of arguments.”91 This assertion of Tahzib’s relies for its force on the claim that “it is unclear how the value[] of … warranted self-respect fit[s] within, or draw[s] upon, the quidnunc mentality machinery.”92

Tahzib’s objection is thus two-fold: (1) it is unclear why edificatory perfectionism is impermissible; and (2) the relationship between warranted self-respect and the quidnunc mentality objection stands in need of elucidation.

To begin to see why edificatory perfectionism is impermissible, we first need to understand the obligations which a system of governance owes to its citizens. As Kramer describes it, the paramount responsibility of any system of governance is to foster the conditions under which citizens can be warranted in feeling an ample amount of self-respect. In order to dispatch such an obligation, a system’s laws must be structured in ways conducive to the occurrence of outstanding feats for citizens to vicariously take pride in.

90 Tahzib,APerfectionist Theory of Justice (n 10) 294-5.

91 Ibid 316.

92 Ibid.

One of the foremost achievements which a government can seek to foster is the promotion of a liberal ethos marked by a deontological ethic of self-restraint.93 Self-evidently, the fact that laws enacted by that system of governance conform to that same deontological constraint is integral to the fostering of such an ethos.

From here, the link between warranted self-respect and the quidnunc mentality objection becomes obvious. To recapitulate, laws whose attitudes are redolent of the quidnunc mentality tarnish the ethical strength of a community. The self-aggrandizing and self-abasing nature of such laws “implicitly avows the tenuousness of [a system of governance’s] achievements in its efforts (if any) to gain currency for the values of liberal democracy within its society.”94 Qua self-aggrandizing and self-abasing, such laws constitute derogations from an ethic of selfrestraint.

Given that the moral tenor of a system of governance can elicit either vicarious pride or consternation among citizens, the existence of laws in possession of the quidnunc mentality forms a moral blight on that system. Qua moral blight, the degree to which each citizen can warrantedly take pride in being a member of that system is thereby diminished. Thus, laws espousing the quidnunc mentality entail a system’s failure to dispatch its paramount moral obligation to foster conditions for warranted self-respect.

Tahzib, however, objects that attitudes of self-aggrandizement and self-abasement are relevant to “character evaluation” as opposed to “permissibility”.95 As Tahzib puts it, “[w]hy not say thatvillagebusybodies act permissiblyyet possessflawed characters?”96 The problem with this line of criticism is thatTahzib has failed to account for the change in perspective which Kramer has adopted. Although, it is true that the village busybody acts permissibly, the same cannot, however, be extrapolated and applied to edificatory policies of a government.

This is because, unlike individuals, a system of governance is bound by its paramount obligation to cultivate the conditions for warranted self-respect. As an absolute deontological

93 See Matthew H Kramer, ‘On Political Morality and the Conditions for Warranted Self-Respect’ (2017) 21 Journal of Ethics 335, 338-40.

94 Kramer, Freedom of Expression (n 6) 146.

95 Tahzib,APerfectionist Theory of Justice (n 10) 300.

96 Ibid.

obligation, it binds always and everywhere in all possible worlds.97 In a word, such an obligation is exceptionless.98 Derogations from such an obligation through, for instance, legislation of edificatory policies are always impermissible.

There is hence, pace Tahzib, a straightforward and non-question-begging sense in which edificatory perfectionist policies are morally illegitimate: their espousal of a quidnunc mentality violates the ethic of self-restraint and presupposes a failure to foster a liberal ethos, thereby diminishing the level of self-respect citizens of systems with such laws are warranted in feeling. This, in turn, entails that a system of governance which enacts such laws or policies impermissibly breach their paramount moral obligation.

C. AThird Objection: The Coherence of Communication-Independence

Christopher Kutz is sceptical about whether communication-independence can form a coherent heuristic for distinguishing between speech which can be legitimately proscribed and speech

97 On the absoluteness of duties, see generally Matthew H Kramer, Torture and Moral Integrity: A Philosophical Inquiry (Oxford University Press, 2014); Matthew H Kramer, ‘The Demandingness of Deontological Duties: Is the Absolute Impermissibility of Placatory Torture Irrational?’ (2019) 6(1) Moral Philosophy and Politics 9; Matthew H Kramer, ‘Moral Conflicts, the “Ought” Implies “Can” Principle and Moral Demandingness’in Marcel vanAckerenandMichaelKühler(eds), The Limits of Moral Obligation: Moral Demandingness and Ought Implies Can (Routledge, 2015) ch 11.

98 Tahzib’s objection, that “even if self-aggrandizement and self-abasement are relevant to permissibility, it is unclear why these vices are so great and why manifesting them is so wrong that they could form the basis of a deontological prohibition of the particularly stringent kind” since “[a]ctions that involve self-aggrandizement and self-abasement are presumably all-things-considered permissible when some- thing more important is at stake”, conflates stringency and absoluteness. Qua absolute obligation, said obligation is always binding. However, such an obligation, call it ‘O1’, can potentially be less stringent than other countervailing obligations, call them ‘O2’. In such circumstances, it is morally optimal and, in fact, fully justified for an actor to pursue O2 over O1. Nevertheless, given that O1 was an absolute obligation, its non-performance by the actor entails that it was breached.As such,the actor now incurs secondary obligations of repair toremedy his breach of O1.Therefore, even when one is embroiled in a moral conflict, one’s performance of a self-aggrandizing and self-abasing act remains impermissible even though it might be morally optimal. For Tahzib’s objection, see Tahzib, A Perfectionist Theory of Justice (n 10) 300.

which cannot. To Kutz, freedom of expression cannot form an absolute principle of political morality. Instead, “[w]here exactly th[e] line falls [between protected and unprotected speech] is a matter of judging a very specific trade-off … and applying the difficult egalitarian calculus when different individual interests oppose each other.”99

Kutz asserts that there is no easy way to distinguish between communicative and noncommunicative types of conduct. As such, the work to delineate the two is not done by the theoryofcommunication-independence,butratherbymoresubstantiveconsiderations.Heputs the point thus:100

“[T]he question is how to sort and individuate wrongs. At a certain level of description, all wrongs might be thought to blend together for example, crimes against the state, or crimes against persons, or attacks on the public trust. … The test itself can do nothing, since it rests on a necessarily under-specified theory of act-individuation ….”

Kutz largely overstates the problem which individuating wrongs poses to the theory of communication-independence. For instance, individuating the category of communicationindependent wrongdoing for incitement is relatively straightforward. An utterance of that sort adopts the wrong-making properties of the conduct which it is targeted at producing. Such utterances can be criminalized either because they constitute attempts at participating in violence or lawlessness (where such a result is likely to but has not yet eventuated) or direct participation in violence or lawlessness (where such a result has eventuated).101

Indeed, the fact that Kutz does not have a clear grasp on the concept of communicationindependence is evident at various junctures. For instance, Kutz states that the notion of communication-independence “means to point to the wrong-making features of a situation or

99 Kutz, ‘Kramer’s Razor’(n 10) 358.

100 Ibid 352.

101 Kramer, Freedom of Expression (n 7) 36-7.

courseof conduct, andwhethertheyinherein thespeech itself… orin some set of (presumably physical) causes and effects that can be cleaved off from the speech”.102

Yet, this is not at all what Kramer means when he describes communication-independence. Rather, to determine whether a legal proscription on certain modes of communication is truly communication-independent, one has to assess whether the acts it prohibits are inherently or merely contingently communicative.103 That is, in order to classify the impugned legislation as communication-independent, we have to assess whether the misconduct targeted by said legislation can be perpetrated by both communicative and non-communicative means.

Kutz’s complete misapprehension of the theory becomes even more evident when he asserts that Kramer would criminalize the orator who instigates an angry mob to lynch the corn-dealer because such speech “has a tendency to cause others to commit physical acts of violence upon

102 Kutz, ‘Kramer’s Razor’(n 10) 344.

103 Kramer, Freedom of Expression (n 7) 66-7. It might be objected that the line drawn here is overinclusive as we can think of sundry non-communicative activities which can be associated with communicative conduct. For instance, mere advocacy of communism can lead to violence. One might wonder why this advocacy cannot be tied to the violence that subsequently ensues.After all, a communist revolutionary does foresee and intend for the violent overthrow of the capitalist system. Such an objection, however, is wrongheaded as we are not concerned with mere association with a non-communicative act-type. Rather, we are concerned with subsumption. That is, whether the communicative conduct can be incorporated into the violence that ensues. In the case of communism now under consideration, whether the advocacy can be so subsumed turns on the proximity of the violence (since the communicator’s intention was for violence to occur). Were this not the case, bookseller’s can be found criminally liable for incitement for offering copies of Mein Kampf, Karl Marx’s Communist Manifesto, or Mao’s Little Red Book for sale. To take another example, though hate-speech is deplorable in the extreme, criminalization of hate-speech qua hate-speech violates communication-independence. By contrast, hate-speech can be criminalized where it is utilized to instigate hate-crimes. Once again, whether the impugned speech can be subsumed into the subsequent hate-crime turns on the speaker’s intent and the proximity which his utterances have to the violence against the victim. The intent of the speaker matters due to the fact that words that constitute ‘hate-speech’ can be uttered negligently and without any violent intent on the part of the speaker. As a final example, one can consider child pornography. Though pornography is argued to have expressive aspects, the criminalization of childpornography does not seek totarget the materialforitscommunicative characterbut rather to prevent the exploitation of children and to punish those who do perpetrate such heinous acts. Thus, the criminalization child pornography is eminently communication-independent as the exploitation and abuse of children can be perpetrated by multifarious means.

the grain dealer.”104 Had Kramer described the orator’s blameworthiness in such a manner, his theory of communication-independence would indeed be untenable.

Fortunately, he did not. Instead, he described the blameworthiness of the orator’s conduct as lying in the “proximity of his utterances to the exertions of violence against the corn-dealer, and given the role of his utterances in deliberately spurring the mob to proceed with those exertions, his declamations are properly classified as some of the initial stages of the violence.”105 By this, Kramer means that the orator’s subjective intention that violence occur and the proximity his utterances had to the violence wrought upon the corn-dealer allows his utterances to be subsumed into the criminality which eventuates.

That is, “[p]unishment is administered upon [the orator] not because of the communicative character of [his] fulminations, but because of their having constituted his direct and deliberate involvement in the perpetration of a lynching.”106 The punishment thereby meted out against the orator is therefore communication-independent as he could have perpetrated the lynching of the corn-dealing not only through his impassioned rhetoric but also by placing a noose around the corn-dealer’s neck. Thus, with a proper grasp of the theory of communicationindependence in mind, it becomes apparent that such communications are legitimately proscribable.

It is precisely Kutz’s failure to come to grips with communication-independence that allows him to assert that the reason for protecting speeches which unintentionally lead to violence and permissibly prohibiting “the speech delivered to the hot crowd” is because “we judge that the dangers posed by immediate exhortation outweigh the dangers of reduced scope for political rhetoric.”

107

Needless to say, Kramer does not undertake such hand-waving consequentialist balancing exercises. Rather, he makes an ethical, value-laden judgment, grounded in the empirical characteristics (context and content) of the communications in question to arrive at the answer

104 Kutz, ‘Kramer’s Razor’(n 10) 345.

105 Kramer, Freedom of Expression (n 7) 67-8.

106 Ibid 36-7.

107 Kutz, ‘Kramer’s Razor’(n 10) 348.

to whether an impugned communication can be proscribed in conformity with his principle of free expression.

Therefore, contra Kutz, Kramer has not “attempt[ed] to render absolute a principle whose exceptions he rightly acknowledges”.108 The principle as elucidated by Kramer is indeed absolute and exceptionless. Communicative activities can only be legitimately restricted when they constitute acts of communication-independent wrongdoing. What is more, contrary to what Kutz is implicitly suggesting, Kramer has never defended a principle of free expression that disbars any governmental restrictions on speech.109 Rather, as he repeatedly avers, speech can only be legitimately proscribed when it shares the wrong-making properties of other types of non-communicative misconduct.

V. Applying the Theory to the VariousApproaches to Incitement

Having elaborated on and defended Kramer’s theory of free expression as self-restraint, we are now in a position to evaluate the extent to which the approaches to incitement in Singapore and the United States are congruent with that theory. Though perfect congruence is undoubtedly unattainable,thegreatertheextentofagivenapproach’scongruencewiththetheory,thegreater its moral legitimacy.

A. Assessing Singapore’sApproach to Incitement

To recapitulate, Singapore’s approach to incitement requires that a person (1) communicate110 an incitement to violence or lawlessness; and (2) either intends for violence or lawlessness to

108 Ibid 360.

109 Kramer, Freedom of Expression (n 7) 1.

110 Such communication can be effected by way of an utterance; the making of signs or visual representations; placing an object before other persons; posting, publishing, distributing, selling or offering for sale any document; or communicating any electronic record: see Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1)(a)-(d).

Though the language of the statutory provision codifies a two-stage test, in practice, the first stage is under-analysed, with the bulk of the analysis focussing on the second stage.112 Worryingly, where the seminal case on incitement in Singapore focussed squarely on the communicator’s subjective intention, contemporary cases have widened the scope of the inquiry to focus on the objective meaning of words used as opposed to what the communicator subjectively intended those words to mean.113

Patently, Singapore’s approach, especially in more recent iterations, to incitement runs athwart the principle of free expression. The increasing role which Singapore jurisprudence has provided for the objective meaning of words used, as opposed to a speaker’s subjective intention, falls foul of communication-independence. Here, we should recall the discussion of communication-independence in part IV. In an ordinary sense, as illustrated in that discussion, an incitement and its effects are of course not communication-independent. Any significant injury or disturbance to the peace is brought about through the communicative content of the impugned communication to its addressees. However, the conception communicationindependence at issue when we are enquiring into compliance with the principle of free expression is not this mundane sort of communication-independence.

Rather,thetest ofcommunication-independenceconcerns“whetherornot thatmodeofactivity is constitutive of misconduct that is generally perpetrated through non-expressive endeavors as well as through expressive endeavors. When a mode of expressive activity is constitutive of such misconduct, its wrongness is communication- independent in the sense that is decisive under the principle of freedom of expression. Any measure by a system of governance that prohibits or prevents the occurrence of that mode of activity is morally legitimate only if it is directed against the wrong-making properties that are shared by the communicative instances and the non-communicative instances of the misconduct.”114

111 Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1)(a)-(f); s 267C(2)(a)-(d).

112 PP v Yue Mun Yew Gary (n 1) [40]-[41] (Quentin Loh J) (High Court).

113 PP v Tang Koon Huat (n 1) [26] (Mathew Joseph DJ) (District Court).

114 Kramer, Freedom of Expression (n 7) 84.

129 occur or knows or has reason to believe that violence or lawlessness is likely to occur.111

That a purely objective approach to incitement fails the test of communication-independence becomes manifest when we reckon with the chief purpose of laws proscribing incitement: namely, the prevention of the attempted or direct perpetration of violence or lawlessness. In its non-communicative form, the wrong being perpetrated is that of violence or lawlessness which inherently requires a culpable mental state. Thus, for a course of communicative conduct to be subsumed into this form of wrongdoing, it is not only necessary for the impugned communication to be proximate to violence or lawlessness but it is also necessary for the communicator to possess a culpable state of mind.

As such, given the diminishing role of a speaker’s subjective intention in favour of an objective analysis of the words used, Singapore law is targeting speech qua speech and is therefore susceptible to the quidnunc mentality objection. In turn, this means that Singapore’s system of governance is in breach of its paramount moral obligation to foster conditions of warranted self-respect.

In focussing solely on the content of the words employed, Singapore’s contemporary approach too facilely discounts the paramount importance of the communicator’s subjective intent. Its importance comes to the fore when one considers a thought-experiment:

Huckleberry Finn: Having forewarned her class about the reprehensibly racist phrases they are about to hear, a teacher proceeds to read, the text of ‘Huckleberry Finn’ and the deplorable phrases written therein, aloud. Despite her prior admonitions, her class of mostly African American students erupt in throes of anger and begin to riot in the school causing property damage and injuries to others.

Based on the analysis of the District Judge in PP v Tang Koon Huat, the fact that the teacher ought to have known the historically-entrenched racist connotations of the words is enough for her to be guilty of inciting the violence and lawlessness that ensued.

Yet, there is a clear sense that not only would convicting the teacher offend the principle of free expression, but it would also be manifestly unjust. The teacher was simply reading from the text and could even have been conducting a lesson on the hackneyed attitudes towards minorities that were rife during the era in which thetext was written. In essence, deviating from

the subjective intention of the speaker to focus predominantly on the objective meaning of words risks imposing criminal liability devoid of any culpability.115

This is especially objectionablewhen,viewed from a communication-independent perspective, the wrong being circumscribed by laws against incitement is that of the potential harm to the well-being of others (where what is being incited is violence) or potential societal tumult (where what is being incited is lawlessness). It is impossible to say, denuded of a subjective intentiononthepartofthecommunicator,thatthe communicationin this casecanbesubsumed into the violence that eventuates. Therefore, the dearth of a mens rea element for incitement would inhibit an impugned communication from being deemed “as some of the initial stages [of violence or lawlessness] thereof” and would instead trigger the quidnunc mentality objection due to its targeting of communications qua communication.116

Perhaps, then, a simple reversion to a focus on the subjective intent of the speaker will be sufficient to satiate the principle of free expression? Not quite so. To be sure, focussing on the subjective intention of the speaker is a necessary condition for compliance with the principle of free expression, but it is not a sufficient one.

A singular focus on the communicator’s intent criminalizes what the communicator subjectively seeks to communicate, thereby failing the test of communication-independence. Punishment would be imposed on the basis of the communicative character of the communicator’s fulminations as opposed to any likely or direct involvement in harm-

115 It might be argued that criminal liability can (and, in this case, should) be imposed where the communicator ought to have known that his utterance would lead to lawlessness or violence. Such an objection, however, misses the mark entirely. This article and the theory expounded herein is not premised on criminal liability per se, rather it fastens upon criminal liability as it relates specifically to offences which carry an immanently communicative character. With regard to this particular class of offences, and even more particularly the offence of incitement, criminalization can only be legitimate where the communicative act can be subsumed into a non-communicative form of wrongdoing. As explained at n 102, the paragraph following n 113, and in the paragraph which follows this footnote, the only way for an utterance to be subsumed into the wrong of incitement is for the speaker to have subjectively intended for violence or lawlessness to ensue.

116 Ibid 36.

production.As Kramer puts it, “mere advocacy is not subsumed into the misconduct for which it calls; it is not sufficiently proximate to that misconduct to be so subsumed.”117

The Singapore approach to incitement is thus redolent of the quidnunc mentality that is simultaneously overweening and degrading. It is overweening because it subjects citizens to “humiliating infantilization”118 by seeking to outlaw communications that “are not constitutive of any [communication-independent] misconduct.”119 Such an approach also degrades the system itself “by conveying the impression that [its] sway over citizens is shuddersomely precarious.”120

This approach therefore tarnishes the moral integrity of Singapore’s system of governance and reduces the degree of self-respect which citizens are warranted in feeling, thereby resulting in Singapore’s system of governance being in breach of its paramount obligation. To remedy this, it must be possible for Singapore’s approach to incitement to not only focus on a communicator’s subjective intent but also the likelihood of harm-production.

1. Quaere: Is Harm-Production (or the Likelihood Thereof) Truly Necessary for Incitement to be Criminalized?

At this juncture, it might be objected that harm-production or the likelihood thereof is unnecessary for the criminalization of incitement as such conduct can instead be proscribed on the basis of other considerations. For instance, it might be asserted that preventing malicious speakers from calling for violence averts the horizontal chilling effects that such speech may generate.121 Or perhaps, it might be that criminalization of communications sans likelihood of

117 Ibid 37.

118 Ibid 138.

119 Ibid 141.

120 Ibid 138-9.

121 For an illustration of the phenomenon, see especially Thio, ‘The Virtual and the Real’ (n 80) 54-5. Though, even in the example she gives (that of anti-homosexual academics being shouted down by social media users), it is unclear how exactly the victims of the horizontal chilling in question were silenced. Indeed,Thio describes how

harm-production is necessary to “stabilise the population’s legal loyalty …”.122 I will deal with each objection in turn.

Firstly, the notion that silence is the default response to violent speech is extremely puzzling. It is unclear what exactly is being proposed here. It cannot, for instance, be that the person on the receiving end of such speech miraculously loses the ability to speak. Even if we assume, arguendo, that this were the case, it fails to demonstrate how such a consideration allows a system of governance to overcome the moral ignominy that is properly attributed to it when it interferes with the liberties of such speakers. That is, it takes us nowhere closer to demonstrating that the patronizing attitude it displays towards the rest of its society by judging that they must, like infants, be shielded from the baleful effects of such communications is justified.

Indeed, adducing such a consideration to justify criminalizing incitement solely on the basis of the speaker’s subjective intentions constitutes a derogation from the state’s paramount responsibility to foster conditions in which each citizen can warrantedly feel an ample amount of self-respect. It would, in effect, mean that communications which are merely uncivil or offensive are treated as being on the same level of culpability as communications that are actually capable of giving rise to violence or lawlessness. Criminalization of such communications eviscerates the concept of liberty.As HLAHart forcefully stated:123

“[A] right to be protected from the distress which is inseparable from the bare knowledge that others are acting in ways you think wrong, cannot be acknowledged by anyone who recognises individual liberty as a value. ... If distress incident to the belief that others are doing wrong is the academics were subject to name-calling and abusive speech but this does not explain how their ability to speak was taken away. It seems that the example she uses is more apt to illustrate how unfettered speech undermines reasoned debate as opposed to ‘silencing’speakers, since the speakers in question remained free to speak both de jure and de facto

122 Stefanie Bock and Findlay Stark, ‘Preparatory Offences’in KaiAmbos,Antony Duff, Julian Roberts, Thomas Weigend and Alexander Heinze (eds), Core Concepts in Criminal Law and Criminal Justice (Cambridge University Press, 2019) 55.

123 HLAHart, Law, Liberty, and Morality (Stanford University Press, 1963) 46-7.

harm, so also is the distress incident to the belief that others are doing what you do not want themtodo.Topunishpeopleforcausing thisform ofdistresswouldbetantamounttopunishing them simply because others object to what they do; and the only liberty that could coexist with this extension of the utilitarian principle is liberty to do those things to which no one seriously objects. Such liberty plainly is quite nugatory.”

Turning now to the objection that the criminalization of incitement on grounds of the communicator’s intentions alone can be justified by the need to maintain fealty to a given legal system (the “stability-maximizing rationale”). Such a rationale for criminalizing incitement sans likelihood of harm-production is morally abhorrent on two counts: (1) it is morally abhorrent from a societal standpoint; and (2) it is morally abhorrent from the perspective of the communicator.

From a societal standpoint, this rationale evinces a marked distrust of citizens, indeed it presupposes the “moral viciousness of the public of that society.”124 This assertion about a presupposition of moral viciousness does not rest on the fact that the incitement legislation takes as a given that there are very likely some people in the society inclined to engage in the advocacy of violence or lawlessness if such utterances are legally tolerated.125

Rather, what does demean society as a whole is a further assumption which undergirds any incitement provisions that are grounded by this rationale. If the advocacy of violence or lawlessness were to impair the stability of a nation, it would do so “principally through the

124 Kramer, Freedom of Expression (n 7) 278.

125 If the prohibition of incitement were to rest on such a premise, it would be no more objectionable than a prohibition against murder or arson. As “[m]embers of the general public are not belittled when legalgovernmental officials recognize that some nefarious people among those members would be strongly inclined to perpetrate murders or acts of arson if no legal sanctions werein prospect. Similarly, members of the general public are not belittled by the sheer fact that legal-governmental officials have recognized that the extremists among those members would be strongly inclined to express repellent ideas and sentiments if no legal sanctions were in prospect.”: Ibid.

reactions of third parties.”126 It is the reactions of third-parties “in sympathy with the pronouncements” that would destabilize the society against which the provocateur inveighs.127

To see how this further assumption makes it such that the stability-maximizing rationale presupposes the moral viciousness of society, consider the example of a neo-Nazi extremist who proclaims at the National Day parade that the government of Singapore must be overthrown to usher in the Fourth Reich. Can those who hear the proclamations of the neoNazi reasonably give credence to his invective? As should be self-evident, the answer to that question is negative. No reasonable person could credit the proposition just broached. “Anybody who does credit the proposition[] … is pro tanto morally vicious.”128 Yet, the stability of society’s legal loyalty will only be eroded by the neo-Nazi’s fulminations if a substantial number of listeners are inclined to be persuaded by his views. Ergo, the weakening of the stability of a society’s legal loyalty will occur only if substantial numbers of people in the neo-Nazi’s society are morally vicious. By thus criminalizing the neo-Nazi’s fulminations, the stability-maximizing rationale presupposes that society at large is inclined to share in his moral viciousness.

Consequently, when incitement laws are enacted on grounds on maintaining citizens’fealty to a given system, they presuppose that “[u]nless the thoughts of the addressees are successfully controlled by [incitement laws promotive of loyalty], those laws will fail to achieve the aim” of“guard[ing]againstanydebasingofpeople’soutlooksthroughtheirexposuretotheeffusions of extremists.”129 That is, “[t]hey presuppose that substantial numbers of people in that society are highly receptive to egregiously malevolent doctrines. In other words, [incitement] laws [grounded on maintaining loyalty] presuppose that the overall tenor of the society is morally vicious.”130

From the standpoint of the communicator, the stability-maximizing rationale is likewise thoroughly morally illegitimate. As a rationale grounded by a consequentialist maximizing

126 Ibid.

127 Ibid.

128 Ibid 281.

129 Ibid 277.

130 Ibid 279.

imperative, it is subject to the same critique that all other theories which subscribe to consequentialism are vulnerable to. That is, there is an absence of any intrinsic limits to what can be prescribed. In the words of John Finnis, a proponent of consequentialist ideologies “holds himself ready to do anything”.131

Most problematically, the stability-maximizing rationale for incitement discounts the significance of moral responsibility, entailing that “its applicability [is not] conditional on the occurrence of misdeeds.”132 If a polarizing speaker is peculiarly predisposed to instigate disobedience to the strictures of the current regime, and if there are solid grounds for knowing of his predisposition, then the stability-maximizing rationale would call for his imprisonment irrespective of whether he has actually attempted to instigate violence or lawlessness.

The simple fact that he poses a credible threat to the stability of citizens’ legal loyalty is a sufficient reason, on this rationale, for imposing punitive sanctions on him. “In other words, that rationale can efface the role of moral responsibility altogether. … [I]t can … prescribe [punishment] for … a person even though he has not yet done anything seriously amiss.”

133

The linchpin of such a rationale is a person’s predisposition to provoke anti-establishment or barbarous sentiments. Thus, the sole decisive reason for imprisoning someone despite his not having actually communicated anything to instigate violence or lawlessness is that his predisposition to do so gravely imperils the stability of legal loyalty within the society.

To summarize, unmooring harm-production (or the likelihood thereof) from the law of incitement derogates from the state’s paramount responsibility to foster conditions for warranted self-respect. By running athwart communication-independence and instead being grounded on averting horizontal chilling effects, it would tar offensive or uncivil communications with the same moral brush as communications that actually instigate violence or lawlessness.

131 John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011) 121 (emphasis in original). For a more general critique of consequentialist theories, see Ibid 112-119.

132 Matthew H Kramer, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences (Oxford University Press, 2011) 147.

133 Ibid.

If instead such an incitement provision is to be rationalized on grounds of maintaining the stability of legal loyalty, it would presuppose that large swathes of the society are susceptible to be swayed to lawlessness or violence which, in turn, presupposes that the moral tenor of such a society is vicious. Furthermore, such a rationale would countenance the imprisonment of those who are merely inclined to provoke such reactions, and is therefore incongruent with the value of moral responsibility.

Hence, to ensure that the state complies with its paramount obligation, it is necessary for incitement to be tethered to harm-production. Only by so fettering the law of incitement can it conform to the notion of communication-independence which is essential for a state to obviate the moral ignominy associated with the quidnunc mentality.

2. Quaere: Is it Fair toAttribute the Quidnunc Mentality to Singapore’s Functionaries?

It might be further objected that such an attribution of outlooks inaccurately captures the intentions of those in charge of applying the law. Two points should be noted. First, the attribution of the quidnunc mentality is not an empirical hypothesis to be tested against the actual intentions of Singapore’s functionaries. Rather, the analysis of the decisions made by Singaporecourtsis undertakenin orderto ethicallyevaluateSingapore’s system ofgovernance. As Kramer puts it, “[e]thical properties of such a system supervene on the outlooks that are encapsulated in the public conduct of its officials.”134

Second, even when we do peer into the minds of the relevant functionaries, namely judges, their opinions are evocative of precisely the outlook ascribed herein. Consider, for instance, the dicta of the District Judge in PP v Tang Koon Huat, stating that, “[e]very democratic society needs protection from individuals who deliberately post offensive or extreme comments on the Internet.”135

Given that the impugned communication in that case was neither likely to nor actually did result in real-world harm, the District Judge’s statement evinces his distrust of Singaporeans’

134 Kramer, Freedom of Expression (n 7) 138.

135 PP v Tang Koon Huat (n 1) [27] (Mathew Joseph DJ) (District Court).

deliberative faculties. That is, instead of “allowing sane adults to reach their own judgments about the ideas or sentiments in question, [he] lump[s] those adults together with infants and lunatics as people from whom such judgments are to be taken away.”136

Such an attitude and the ignominiousness of the measures thereby taken presuppose the failure of Singapore’s system of governance to cultivate an ethos which would allow for the effects of such communications to be defused. This approach consequently constitutes a moral blemish on the ethical strength of Singapore as a community. Singaporeans are consequently warranted in lowering their level of self-respect given that their lives have been rendered worse off by being subjected to such treatment.

B. AssessingAmerica’sApproach to Incitement

The American approach to incitement denies protection only for speech which “specifically advocates”137 violence or lawlessness. Secondly,American courts require that the speaker must have subjectively intended for violence or lawlessness to occur, independent of its actual occurrence.138 Said intention is to be divined from the speaker’s words and the context surrounding his speech.139 Finally,American courts have found that the impugned speech must also be likely to produce or incite such action. Indeed, where violence or lawlessness does occur, it must also be temporally proximate and causally linked to the alleged inciting speech.140

The American approach, with its twin requirements of a subjective intent to incite and likelihood of harm-production, fares much better with the principle of free expression. By requiring that a speaker’s subjective intention must be tethered to actual or likely harm

136 Kramer, Freedom of Expression (n 7) 148.

137 Trump (n 35) 610 (McKeague J for the Court).

138 Bible Believers (n 33) 246 (Clay J).

139 Trump (n 35) 609-10 (McKeague J for the Court).

140 NAACP (n 43) 927-8 (Stevens J for the Court).

production, such a prohibition allows for the impugned speech to share in the wrong-making properties of non-communicative instances of such misconduct.

Although theAmerican approach has much to commend it, it is not, however, without its flaws. Firstly, Brandenburg’s first limb is severely under-determined. To be sure, although contemporary cases have interpreted this to mean that the speaker must “specifically advocate” violence or lawlessness, this merely states an outcome without providing guidance about how said outcome is arrived at. Thus, while Brandenburg is largely congruent with the principle of free expression, failure to clarify how this first limb is to be applied will provide much latitude for creative judicial interpretation which, in turn, leaves the door open to the erosion of free expression.

Secondly, although, in theory, the final limb of Brandenburg requires the likelihood of harmproduction, in practice, American courts seem to misinterpret this requirement as demanding that harm need actually occur. Nowhere is this more evident than in NAACP, where it was observedthat“[i]f[theimpugnedlanguage]hadbeenfollowedbyactsofviolence,asubstantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct.”141 This appears to be a clear misconstruction of the Brandenburg approach.

This is because the original approach was far more nuanced than simply adopting a backwardlooking lens to search for evidence of real-world harm. On a proper interpretation of Brandenburg’s third limb, a court’s first port of call is to assess whether the speech was reasonably likely to producereal-world harm,not whether it did.Theremoteness of harm alone is not the end of the inquiry, however. For, if, despite its remoteness, real-world harm does eventuate, a court must then proceed to evaluate if said harm can be causally linked to the impugned speech.

C. Comparing the TwoApproaches

From the foregoing, it can thus be observed that Singapore should adopt a moreAmerican-like approach towards the criminalization of incitement in two respects. First, it should take

141 Ibid 928 (Stevens J for the Court).

direction from the Brandenburg test in paying greater regard to whether the impugned communication is actually capable of inciting violence or lawlessness. It is thus submitted that the first limb for incitement laid down in s 267C should no longer be judicially disregarded.

That said, as advertedto above,theAmericanapproachto defining words capableofincitement suffers from the vice of merely stating a conclusion rather than explaining how the particular words used are endowed with such capacity.As such, Singapore’s approach to defining which communications “contain an[] incitement”142 should not be a wholesale replication of the American approach, but rather involve a process of conscious adoption.

Secondly, Singapore courts, in order to exorcise the quidnunc mentality plaguing the extant law on incitement, should adopt the third limb of the Brandenburg test. As elucidated above, the third limb of Brandenburg is crucial to ensuring that communications are not targeted qua communication but rather qua instances of communication-independent wrongdoing. Conversely, Singapore’s failure to tether communications to harm-production or the likelihood thereof is what causes its incitement provision to be tainted with moral blight. To escape moral ignominy, it is hence necessary for Singapore to adopt something akin to Brandenburg’s third limb.

VI. DoingAway with the Quidnunc Mentality in Singapore’s Law of Incitement

The previous part laid down various threads which will now be woven together to formulate a new test for incitement in Singapore. The test we are seeking to adopt is a modified version of Brandenburg.Torecapitulate, Brandenburg’selementsareasfollows:(1)Thespeechexplicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that his speech will result in the use of violence or lawless action; and (3) the imminent use of violence or lawless action is the likely result of his speech.143

As noted above, however, Brandenburg’s first limb is severely under-determined, standing in need of clarification.As for Brandenburg’s third limb, while it is unobjectionable to prescribe,

142 Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1).

143 Bible Believers (n 33) 246 (Clay J).

from a normative perspective, that it ought to be incorporated into our law, it remains an open question whether this is possible from a purely legal perspective.

This part will therefore aim to rework Brandenburg’s first limb into something capable of practical application, while justifying the incorporation of Brandenburg’s third limb from a purely legal standpoint.This part will end by delineating the implications of such a position for Singapore jurisprudence.

A. Reworking the First Limb in Brandenburg

The first limb in Brandenburg made advocacy of violence impermissible where it was “directed” to producing such violence.144 Similarly, the first limb of Singapore’s approach to incitement under s 267C requires the accused to have made a communication “containing any incitement” to violence or lawlessness.145

As recounted above, this limb has suffered from a dearth of scrutiny in Singapore. Likewise, althoughAmerican courts have sought to recharacterize Brandenburg’s first limb as requiring speakers to “specifically advocate”146 or “explicitly or implicitly encourage”147 the use of violence, problems arise when determining what these labels are intended to mean in practice. That is, they suffer from the vice of underdetermination which makes them amorphous and impossible to apply consistently in practice.

It is submitted that content can be poured into Brandenburg’s first limb by applying speech-act theory from linguistic philosophy.148 Austin and Searle believed that every utterance has illocutionary force. Here, we have shifted our attention “from the meaning of a sentence to its

144 Brandenburg (n 5) 447.

145 Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1)(a)-(d).

146 Trump (n 35) 610 (McKeague J for the Court).

147 Bible Believers (n 33) 246 (Clay J).

148 See generally JLAustin, How to Do Things with Words (Oxford University Press, 1962); John R Searle, Speech Acts: Essays in the Philosophy of Language (Cambridge University Press, 1969) (hereinafter Searle, Speech Acts).

force.”149 As Solan explains, it is “the distinction between what is said and what the speaker is doing with what is said.”150 Thus, when someone is saying something, they are also doing something.

Additionally, Searle informs us that certain words perform the function of an “illocutionary force-indicating device”.151 Thus, when I say to you, ‘Do not do φ’, the phrase ‘do not’has the force of a warning. Searle goes on to explain that there are only five things we can do with such propositions:152

“We tell people how things are (assertives), We try to get them to do things (directives), We commit ourselves to doing things (commissives), We express our feelings and attitudes (expressives), and We bring about changes in the world so that the world matches the proposition just in virtue of the utterance (declarations).”

For present purposes, we can fasten our attention on speech-acts expressed in the form of directives.

That is, the first limb of the test for incitement will only be satisfied where the communicator utters words that possess directive illocutionary force. Thus, a communicator who uses incomprehensible symbols intending to convey that he hopes Singapore’s government will be overthrown in order to usher in a new era of Fascist dictatorship cannot be convicted under s 267C, notwithstanding his violent intentions.

Similarly, where someone comments on a post made by the Prime Minister, ‘I hope you die a most violent and painful death’, such an utterance would not count as a communication

149 Hock Lai Ho,APhilosophy of Evidence Law: Justice in the Search for Truth (Oxford University Press, 2008) 17.

150 Lawrence M Solan, ‘Linguistic Evidentials and the Law of Hearsay’ in Christian Dahlman, Alex Stein and Giovanni Tuzet (eds), Philosophical Foundations of Evidence Law (Oxford University Press, 2021) 162.

151 Searle, Speech Acts (n 147) 30.

152 John R Searle, ‘Epilogue to the Taxonomy of Illocutionary Acts’ in Donal Carbaugh (ed), Cultural Communication and Intercultural Contact (Routledge, 1991) 410.

“containing an[] incitement” under s 267C. This is because it lacked the necessary directive illocutionary force. Rather, it possessed expressive illocutionary force as it was intended to convey the communicator’s feeling of deep-seated hatred towards the Prime Minister. It might be objected that this limb can continue to be disregarded in practice as it will, in the majority of cases, be easily satisfied. While it is indeed conceded that such an objection has weight, it must also be acknowledged that there exist cases on the margins which will needlessly be criminalized should the status quo persist. Consider:

X-Anon: Eddy idiosyncratically believes that Singapore is ruled by a cabal of paedophiles and the only way to rescue the country is to call upon a revolutionary figure, X, whose role it is to overthrow the government. He thus tweets, “X! X! X!”, intending for X to appear and fulfil his revolutionary destiny.

Such an outburst is transparently incapable of inciting anything at all.153 Yet, the speaker in XAnon will be liable to criminal punishment under Singapore’s present approach to incitement under s 267C. Even if, as I will argue forthwith it should be, the third limb of Brandenburg is incorporated into Singapore law, defining what it means to ‘incite’ retains practical utility. In this regard, a first limb which requires utterances to possess directive illocutionary force would be akin to the threshold condition of factual foreseeability in the Spandeck framework for establishing a duty of care in Singapore tort law.154 Although such a threshold condition is likely to be “fulfilled in almost all cases”,155 this does not detract from the fact of its necessity

153 Needless to say, if there was evidence of others who shared in such idiosyncratic beliefs, that could potentially alter the analysis depending, inter alia, on how widespread the adoption of such beliefs are and whether those who espouse such beliefs are in the same or similar geographical location as the speaker. However, the analysis here is confined to idiosyncratic beliefs which are purely personal.

154 Spandeck Engineering (S) Pte Ltd v Defence Science and Technology Agency [2007] 4 SLR(R) 100, 130 [73] (Chan Sek Keong CJ for the Court) (Court ofAppeal).

155 Ibid 131 [75] (Chan Sek Keong CJ for the Court) (Court ofAppeal).

as “a threshold question which the court must be satisfied is fulfilled, failing which the claim does not even take off.”156

It would “boggle[] the imagination and stretch[] the realms of reality”157 for idiosyncratic communications, such as those in X-Anon, to possess the requisite directive illocutionary force to be capable of inciting violence or lawlessness. A court confronted with such a communication ought to be barred from considering the communicator’s intention or the likelihood of harm production as there would be no “factual foundation”158 upon which incitement can be grounded.

Therefore, it is submitted that Singapore law should treat the first limb of its test to incitement as a threshold condition which necessitates that an impugned communication must possess directive illocutionary force. Failure to establish this would entail that a communicator, ipso facto, cannot be guilty of incitement as he was not, despite his own intentions, inciting anything at all.

B. Incorporating Brandenburg’s Third Limb Into Singapore Law

As adverted to above, Brandenburg complies with the principle of free expression as its third limb allows for impugned communications to share in the wrong-making properties of noncommunicative forms of harm-production. By contrast, what makes Singapore’s law on incitement constitute a moral stain on the country’s system of governance is that by singularly focussing on a communicator’s subjective intent, it criminalizes communications qua communication thereby contravening the principle of free expression.

The problem with s 267C is that it criminalizes communications made “intending for violence [or lawlessness] to occur; or … knowing or having reason to believe that violence [or

156 Ibid 131 [76] (Chan Sek Keong CJ for the Court) (Court ofAppeal).

157 Ngiam Kong Seng v Lim Chiew Hock [2008] 3 SLR(R) 674, 730 [132] (Andrew Phang Boon Leong JAfor the Court) (Court ofAppeal).

158 Ibid 717 [104] (Andrew Phang Boon Leong JAfor the Court) (Court ofAppeal).

lawlessness] is likely to occur as a result.”

159 The major hurdle which must be overcome is the fact that, interpreted literally, the provision unambiguously supports a disjunctive construction.

However, applying a reductio ad absurdum, a literal interpretation of s 267C(1)(f) would make it possible for journalists to be guilty of incitement for simply reporting the news. Consider:

Zamunda: Owen, a Straits Times journalist who previously reported about growing student unrest in Singapore at the plight of the people of the kingdom of Zamunda, accurately reports that Zamunda’s king, Jaffe Joffer, is ethnically cleansing minorities. Singapore students, upon hearing Owen’s report, proceed to conduct a hunger strike on the lawn of the Istana to compel the Singapore government to provide aid to affected Zamundans.

On a literal interpretation of s 267C, although Owen did not possess a subjective intention to incite the student protests, he knew about the growing discontent among Singapore students with regard the plight of the Zamundans. Thus, he had reason to believe that a breach of the peace was likely to occur should he continue relaying information about the intensification of violence there.As such, by simply having the misfortune of being assigned to report about the plight of Zamunda, Owen is guilty of inciting a “breach of the peace”.

160

Furthermore, in the absence of a conjunctive reading of s 267C, a person can ridiculously be found guilty of inciting violence against himself. Consider the following:

Kekistan:KekistanisworshiptheancientEgyptian deity,Kek.Anita,avirulentlyanti-Kekistani bigot, enters a Kekistani temple during their day of worship and declares that all Kekistanis ought to be liquidated and proceeds to trample on miniature stone idols of Kek that line the temple.Anita is subsequently violently mobbed by the temple’s congregants.

159 Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1)(e)-(f) (emphasis added). See similarly Penal Code 1871 (Singapore, 2020 rev ed) s 267C(2)(a)-(d).

160 Penal Code 1871 (Singapore, 2020 rev ed) s 267C(1)(f).

Evidently, it would be absurd to say thatAnita subjectively intended to incite violence against herself. Nevertheless, she ought to have known that openly advocating for the genocide of Kekistanis in their temple during a period of worship would inevitably draw a hostile reaction. Thus, ceteris paribus, she ought to be convicted for inciting violence against herself based on s 267C(1)(f).161

It is apposite to note that in Tan Cheng Bock v AG [2017] 2 SLR 850 (“Tan Cheng Bock”), Menon CJ held that when a text’s ordinary meaning would “lead[] to a result that is manifestly absurdorunreasonable”,saidordinarymeaningcanbesupplantedbyapurposiveinterpretation guided by extraneous material.162

Frustratingly, however, consulting extrinsic material does not take us any further from the absurd results countenanced by a disjunctive reading of s 267C. This is because when s 267C was amended in 2020, Minister K Shanmugam, during the Second Reading of the Sedition (Repeal) Bill, merely reiterated this problematic reading of the provision.163

Given that both the intrinsic and extrinsic material lead to the same absurd results, Tan Cheng Bock counsels that the statutory defect ought to be cured by having recourse to the common law.164 As observed earlier, a conjunctive reading of s 267C is normatively superior in light of the strides it makes to bring Singapore’s law of incitement in line with the principle of free

161 Admittedly, it might be objected that he can be more straightforwardly convicted under s 298 of the Penal Code. Though it is conceded that a charge under s 298 would indeed be more straightforwardly made out, the objection,nevertheless, misses the point entirely.The point isnot about decidingupon the most appropriate charge for Carl. Rather, the point is that a disjunctive reading of s 267C lends supports to the absurd result of Carl being convicted for inciting violenceagainst himself and it is only prosecutorial discretion inopting to charge Carl under a different provision in the Penal Code that allows Singaporeans to avoid living with the reality that they can be guilty of inciting violence against themselves on the basis of how the text is presently construed.

162 Tan Cheng Bock v AG [2017] 2 SLR 850, 872 [54(c)(iii)(C)] (Sundaresh Menon CJ for the Court) (Court of Appeal). See also Interpretation Act 1965 (Singapore, 2020 rev ed) s 9A(2)(b)(ii). For an application of the absurdity doctrine in statutory construction, see especially Hong Leong Bank Bhd v Soh Seow Poh [2009] 4 SLR(R) 525, 540-1 [40]-[43] (Chao Hick Tin JAfor the Court) (Court ofAppeal).

163 Singapore, Parliamentary Debates, 5 October 2021, vol 95 (K Shanmugam, Minister for HomeAffairs).

164 Benny Tan Zhi Peng, ‘Statutory Interpretation in Singapore Another 10 Years On: A Synthesis of Current Law and Review of Developments’(2021) 33 Singapore Academy of Law Journal 1, 23-4 [38].

expression. Furthermore, common sense dictates that Parliament did not intend to legislate absurd consequences into being. Thus, s 267C ought to be “judicially corrected as an error” given that “failing to do so w[ill] result in a disposition that no reasonable person could approve.”165

Consequently, s 267C should be read as requiring both a subjective intention on the part of the communicator and knowledge that violence or lawlessness was likely to occur.166 Given that the statute provides that the communicator can either know or have reason to believe that his communication is likely to produce harm, it is submitted that this state of knowledge can permissibly be imputed onto an accused person.

Incitement under s 267C of the Penal Code should therefore be interpreted as requiring a threestage test:

1. A communication contains an incitement to violence or lawlessness, which is proven by demonstrating that the impugned communication possessed directive illocutionary force (corresponding with s 267C(1)(a) to (d) and s 267C(2)(a) to (b));

2. The communicator must have subjectively intended to incite violence or lawlessness (corresponding with s 267C(1)(e) and s 267C(2)(c)); and

3. The communicator must either know or ought to have known that violence or lawlessness was likely to occur (corresponding with s 267C(1)(f) and s 267C(2)(d)).

C. Implications of Free Expression as Communication-Independence

165 Antonin Scalia and Bryan A Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012) 234.

166 For local cases thathave interpreted ‘or’non-disjunctively, see especially PP v Low Kok Heng [2007]4 SLR(R) 183; Kuah Kok Kim v Ernst & Young [1996] 3 SLR(R) 485.

The implications of adopting the moral principle of free expression defended here are, admittedly, far-reaching for Singapore. Though such implications are too numerous to exhaustively discuss in the present context, one pertinent implication can briefly be elucidated. That is, adoption of the theory of free expression as communication-independence entails that the Singapore Court of Appeal’s (“SGCA”) narrow interpretation of ‘expression’ in Art 14(1)(a) of the Constitution in Tan Seng Kee v AG [2022] 1 SLR 1347 is untenable.167

There, the SGCAasserted thatArt 14(1)(a)’s reference to ‘expression’was to be interpreted as protecting speech, “that is to say, any communication that is expressed in words, whether spoken or written that conveys meaning , opinions, beliefs or ideas.”168 This was justified on the basis that interpreting ‘expression’ literally would lead to the absurd result that repugnant communicative “acts such as necrophilia and bestiality do fall within ‘the rights conferred by [Art 14(1)(a)]’”.169

Yet, the SGCA’s restrictive interpretation is no less preposterous and morally reprehensible. Its preposterousness becomes evident when one substitutes the SGCA’s interpretation of ‘expression’intoArt 14(1)(a): “[E]very citizen of Singapore has the right to freedom of speech and speech”. Surely, Parliament never intended to repeat the word ‘speech’ twice. For, if they had, they could simply have excluded any references to expression and ended the provision after the initial invocation of the word ‘speech’.

Further,theSGCA’scurrentinterpretationismorallyopprobrious.Thisisbecause,byconfining the ambit of the protections conferred to communications “expressed in words … spoken or written”, the SGCAessentially made it such that the Constitution affords no protection to nonverbal communications. In particular, a steadfast application of this reading would entail that communications made by those, such as the deaf or mute, who can only communicate nonverbally, through sign language for instance, fall outside the scope of constitutional protection.

167 Tan Seng Kee v AG [2022] 1 SLR 1347, 1436 [284], 1439 [294] (Sundaresh Menon CJ for the Court) (Court ofAppeal).

168 Ibid 1436 [284] (Sundaresh Menon CJ for the Court) (emphasis in original).

169 Ibid 1437 [286] (Sundaresh Menon CJ for the Court) (emphasis in original).

Given that Singapore is home to at least 500,000 deaf individuals,170 a restrictive interpretation of Art 14(1)(a) would mean that close to 10 percent of Singaporeans do not enjoy the same liberties as the rest of the able-bodied population. Such an interpretation reeks of ableism and denies the less able the equal dignity which other members of the community can take for granted.

Correcting the interpretation of Art 14(1)(a) to accommodate sign language, however, entails that other non-verbal modes of communication are similarly protected. That is, the expressive aspects of necrophilia and bestiality are thus covered byArt 14(1)(a).

Such a proposition, however, is not as outlandish as it might ostensibly appear. As Kramer highlights, punching someone in the face can be a means of communicating one’s extreme revulsion towards the victim.171 Despite this, any contestation of a law prohibiting battery on the basis of free expression “would be risible”.172 This is because “every ordinary law that prohibits the perpetration of battery is clearly not directed against any communicative import of the proscribed conduct (and is instead directed against its physically violent and psychologically harmful aspects), the application of such a law to [such] thuggery is straightforwardly consistent with the principle of freedom of expression.”

173

Likewise, laws criminalizing necrophilia and bestiality are not targeted at the communicative character of such misconduct, that is, such acts are not criminalized qua expressions of sexual liberation. Rather, they are targeted at the communication-independent wrongdoing thereby perpetrated.

In the case of necrophilia, the wrong is that of desecrating a corpse which can similarly be perpetrated by non-communicative means such as decapitating said corpse. In the case of bestiality, the wrong is that of cruelty to animals which can be perpetrated by noncommunicative means such as flogging. Thus, although the communicative aspects of such

170 ‘FAQ on Number of Deaf in Singapore’, Singapore Association for the Deaf (online, 2018) <https://sadeaf.org.sg/faq-on-sadeaf-and-about-the-deaf-and-hard-of-hearing/faq-on-number-of-deaf-insingapore/>.

171 Kramer, Freedom of Expression (n 7) 32.

172 Ibid.

173 Ibid 33.

rebarbative misconduct is covered by free expression, yet the legitimacy of governmental restrictions on such misconduct is “unmistakably manifest”.174

Consequently, one of the implications of the theory adopted here is that ‘expression’ in Art 14(1)(a) should be interpreted literally to refer to any communicative act. In turn, the test of communication-independence can be utilized to demarcate the boundaries of legitimate prohibitions on expressive conduct.

VII. Conclusion

In conclusion, America’s Brandenburg approach to criminalizing incitement is normatively superior to Singapore two-stage test under s 267C. This is because Brandenburg exudes selfrestraint by targeting the communication-independent wrongdoing instantiated by such communications. By contrast, Singapore’s approach of targeting communications qua communication is redolent of a self-aggrandizing and self-abasing quidnunc mentality. As such, to bring its incitement provision in compliance with the normative principle of free expression, Singapore should aim to approximate and improve upon the Brandenburg framework.

In this regard, Singapore should clarify the first limb of Brandenburg by requiring that a communication must possess directive illocutionary force before it can be deemed to have contained an incitement. Additionally, s 267C(1)(e) and (f) should be read conjunctively as imposing a requirement that the communicator both subjectively intended to incite violence or lawlessness and she must have known, or be deemed to have known, that her communication was likely to produce harm.

174 Ibid 32.

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The ForceAwakens:AComparative Review of Private Defence and Self-Defence in Response to the Use of Force

Thomas Loke Zhih Hahn,1 Mark Theng Kaijun2

I. Introduction

The recognition of self-defence as an exculpatory defence in the criminal law is a common characteristic of all developed jurisdictions 3 Singapore and the United Kingdom (UK) are no exceptions. The ‘broad’ reason for why self-defence absolves criminal liability in these two jurisdictions is that the right to self-defence is conceived as a fundamental human right that respects the protection of physical autonomy and integrity against a culpable aggressor. The law would be at odds with morality if it asked individuals to submit to any and all physical threats and punished them should they understandably protect themselves or others 4 Selfdefence is also a legal norm recognised historically and internationally, explaining the continued recognition of self-defence in both jurisdictions to this day.5 The ‘narrow’reason is thatSingaporeinheritedtheIndianPenal Code, whichwas draftedbyBritishpoliticianThomas Macaulay.6 TheinfluenceofBritishcriminallawin Macaulay’sdraftingthus indirectlyresulted

1 Year 1 BA (Hons) Law, University of Cambridge

2 Year 1 LLB (Hons), National University of Singapore

3 Schlomit Wallerstein, “Justifying the Right to Self-Defense: ATheory of Forced Consequences” [2005] VALR 999, 999.

4 Christian Coons and Michael Weber, ‘The Ethics of Self-Defence: The Current Debate’in Christian Coons and Michael Weber (eds), The Ethics of Self-Defence: The Current Debate (online edn, Oxford Academic 2016) 1 https://doi.org/10.1093/acprof:oso/9780190206086.003.0001, accessed 1 July 2024.

5 David Kopel, Paul Gallant and Joanne Eisen, “The Human Right of Self-Defense” (2007) 22(1) Brigham Young University Journal of Public Law <https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1396&context=jpl> accessed 1 July 2024.

6 Thomas Macaulay et al, A PC Prepared by the Indian Law Commissioners (Pelham Richardson 1838) 110.

in Singapore inheriting the UK’s common law basis for self-defence 7 Both reasons account for similar core tenets of the defence between Singapore and the UK, termed ‘private defence’ under Section 97 of the Penal Code 1871 (PC)8 and ‘self-defence’ under Section 76 of the Criminal Justice and ImmigrationAct 2008 (CJIA) 9

Both defences require an immediate and instant need to act; if law enforcement could reasonably be relied upon, this would exclude the defence.1011 Hence, a defendant acting solely out of vengeance.12 where the threat is no longer imminent,13 is generally fatal because the circumstances would not have impelled a reasonable defendant to act in that manner. Both also mandate that reasonable force be applied,1415 and should ‘unreasonable’ force be applied, termed forthwith as ‘excessive self-defence’, partial defences such as loss of control16 (in the UK) and exceeding private defence (EPD)17 or sudden fight18 (in Singapore) may be available.

While there are similarities owing to their shared purpose, this paper aims to discern the key differences between the necessary conditions for private defence and self-defence to apply, evaluating the relative ease for defendants to invoke one defence over the other, and how this

7 Criminal Justice and ImmigrationAct 2008, s 76(2)(a).

8 PC 1871, s 97.

9 Criminal Justice and ImmigrationAct 2008, s 76(2)(a).

10 R v Jones [2006] UKHL 16.

11 PC 1871, s 98(2).

12 R v Williams (DeMario) [2020] EWCACrim 193.

13 Tan Chor Jin v Public Prosecutor [2008] 4 SLR(R) 306.

14 CJIA2008, s 76(3).

15 PC 1871, s 98(1).

16 Coroners and JusticeAct 2009, s 54.

17 PC 1871, s 300 exception 2.

18 ibid, s 300 exception 4.

is informed by underlying doctrinal differences. Adjacently, there are defences closely linked to self-defence and private defence such as defence of property1920 and prevention of crime,21 but the scope of this paper will be confined to the context of physical harm to persons.

There are two main differences: first, different considerations factor into the evaluation of whether force applied was reasonable in the circumstances, such as the relevance of a defendant’s honest belief, the interpretation of the word ‘reasonable’and the presence of listed offences when death is caused. Singapore’s formulation of self-defence in this area is more restrictive and less lenient to a defendant’s actions.

Second, the treatment of excessive self-defence diverges in cases of homicide. Though private defence is more limited, Singapore provides two partial defences in cases of ‘unreasonable force’to achieve just and equitable outcomes. In the UK, loss of control imperfectly embraces cases of excessive self-defence. The comparatively generous approach in the UK can be explainedbytheabsence ofapartial defencetailor-madeto handlecases of unreasonableforce.

This comparison could shed light on possible law reforms for both jurisdictions, especially because Singapore and the UK have adopted diametrically opposing approaches. Examining salient differences will facilitate a more penetrating inquiry of the basic premises and justifications for each defence. For instance, the CJIA values subjectivity by using the defendant’s honest belief in the circumstances as the starting point,22 while the PC demands a defendant’s belief to be reasonable an objective standard.23 The UK’s self-defence may be too charitable to the defendant due to its unwillingness to accommodate different shades of

19 ibid, s 104.

20 R v Hussey [1924] 18 CrApp R 160.

21 Criminal JusticeAct 1967, s 3(1).

22 CJIA2008, s 76(3).

23 PC 1871, s 101.

culpability: creating a partial defence akin to Singapore’s EPD may be necessary. In comparison, Singapore’s private defence regime carries a greater potential to penalise defendants disproportionately: like the UK, there could be more consideration for the defendant’s honest subjective belief. Highlighting the stark differences between Singapore and the UK allows both jurisdictions to consider “meeting in the middle”, and embrace the individual strengths of each defence in the next wave of law reform.

II. Reasonable Force

At a first glance, the requirement that the force applied by the defendant must be ‘reasonable’ points towards a similarity between both jurisdictions as opposed to an obvious difference. In Singapore, this requirement finds expression in Section 98(1) of the PC:

“In defending his body or the body of a third party, the accused had not inflicted on the victim more harm than was reasonably necessary in the circumstances.”24

In the UK, the same principle is outlined with reference to the concept of ‘proportionality’ as per Section 76(6) of the CJIA:

“The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances ”25

Thus, the UK’s concept of the force being ‘reasonable’and ‘proportionate’is broadly mirrored in Singapore’s concept of force being ‘reasonably necessary’. Both statutes call for a factsensitive balancing exercise, weighing the defendant’s conduct against the threat posed by the

24 PC 1871, s 98(1).

25 Criminal Justice and ImmigrationAct 2008, s 76(6).

victim or any other relevant circumstances. In R v Martin (Anthony), the Court ofAppeal held that shooting another was not reasonable such that self-defence did not apply, even though the victim was in fact a burglar in the defendant’s home.26 The same principle applied in the Singaporean case PP v Soosay,27 where inflicting five knife stab wounds in response to an unarmed victim charging at the defendant was considered “more harm than necessary.”28 This can be explained by a broad agreement between that self-defence and private defence are conceived as justificatory defences: the defendant’s use of force has to be lawfully permissible29 and perhaps even socially desirable 30 This acknowledges the defences’ conceptual limits: while there exists a right to avert a physical threat, this is not absolute – it is qualified by the reasonableness of the defendant’s actions.31 Yet, different considerations go into what is ‘reasonable’, revealing a distinction between the normative underpinnings of private defence and self-defence.

A.An Honest, Unreasonable Belief in the Circumstances

In the UK, the defendant’s honest belief is centrally relevant to whether a claim of self-defence will succeed, as it determines the circumstances that the defendant’s actions are judged against. Under Section 76(3) of the CJIA:

26 R v Martin (Anthony) [2001] EWCACrim 2245

27 Soosay v Public Prosecutor [1993] 2 SLR(R) 670.

28 ibid at [32].

29 PC Committee Report 2019 p 264: ‘Private defence permits a person to ward off imminent dangers that cannot be averted otherwise than by a counter-attack’.

30 Guyora Binder, 'Justification and Excuse' in Criminal Law (online edn, Oxford Academic 2016) 2 https://doi.org/10.1093/acprof:oso/9780195321203.003.0009, accessed 1 July 2024.

31 Suzanne Uniacke, ‘Proportionality and Self-Defence’ (2011) 30(3) Law and Philosophy 253, 253 <http://www.jstor.org/stable/41486983> accessed 1 July 2024.

“The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be.”32

It is clarified in Section 76(4)(a) of the CJIAthat the “belie[f]” in this context does not refer to a“reasonablebelief”, whichonly feeds into whetherthe belief is in fact genuine,33 with Section 76(4)(b) of the CJIAextending protection to defendants who hold a mistaken and unreasonable belief as long as it was honestly held34. A belief is unreasonable if an ordinary person in the defendant’s position would not have drawn the same conclusions35 .

In private defence, the accused’s subjective appreciation of the circumstances as dangerous must be reasonable.

“The right of private defence of the body starts as soon as the defender reasonably believes that there is danger to the body (either his own or that of any other person) arising from any act which is an offence against the human body or an attempt or a threat to commit the offence.”36

This ‘threshold inquiry’ in private defence involves a two-part test comprising subjective and objective elements. First, what circumstances did the defendant subjectively appreciate? Second, was whatever the defendant apprehended reasonable?

32 Criminal Justice and ImmigrationAct 2008, s 76(3).

33 ibid, s 76(4)(a).

34 ibid, s 76(4)(b).

35 Jai Dev v. State of Punjab AIR 1963 SC 612 at 617: ‘ If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right… this perception must be reasonable’.

36 PC 1871, s 101.

The objective limb of the test requiring a “reasonable apprehension” distinguishes private defence from the primacy of a subjective, honest belief in self-defence. In Public Prosecutor v Vijayakumar s/o Veeriah,37 the court stated that “the first stab to the deceased’s head would surely have stopped the deceased in his tracks already” such that there could be no justification for the offender’s further attacks.38 Whether he honestly believed that the threat was still operative was irrelevant.

The significance of this difference is illustrated by contrasting PP v Soosay39 (Singapore) against R v Beckford40 (UK). In Soosay, it was held that a defendant who possessed a knife could not reasonably apprehend that an unarmed person charging at him would inflict death or grievous bodily harm; his reaction to stab the victim was thus unreasonable in the circumstances and private defence did not apply.41 In Beckford, a police officer shot a suspect dead, as he was informed that the suspect was armed and witnessed the victim carrying a firearm-like object 42 Under the jurisdiction of the UK, the police officer only needed to adduce evidence proving his honest belief. Similarly, the Soosay defendant may be exonerated under thetest in self-defence.Conversely,the Beckford defendant mayface anuphill battlein proving that his belief in the circumstances (that the suspect was indeed armed) was reasonable for the purposes of private defence. He lacked visual confirmation of the victim’s possession of a firearm, such that another police officer in his position could not have been reasonably certain of the threat posed to life. This is supported by Cham Yang Song v PP,43 where apprehension is unlikely to be found to be reasonable where the accused did not know for sure that the victim was going to attack him. Private defence would likely not succeed in cases like Beckford. At

37 Public Prosecutor v Vijayakumar s/o Veeriah [2005] SGHC 221.

38 ibid at [52].

39 [1993] 2 SLR(R) 670.

40 R v Beckford [1988]AC 130.

41 [1993] 2 SLR(R) 670 at [31].

42 [1988]AC 130.

43 Chang Yam Song v Public Prosecutor [2005] SGHC 142.

this juncture, private defence is more restrictive than self-defence and exacting against the defendant. Different theories attempt to illuminate reasons as to why self-defence is a justification that excludes guilt, and they could explain this divergence between private defence and selfdefence. Both defences accommodate mistaken beliefs, where what is believed does not correspond with reality.4445 Theytheoreticallyallow a defendant to escape liabilityforapplying force against an innocent. Since the victim may not be culpable, it is difficult to differentiate self-defence and private defence on a purely rights-based or consequentialist approach, which posit that force against an aggressor is allowable as he either forfeits his own rights or devalues his own life by virtue of his moral blameworthiness 46

Yet, the range of acceptable ‘mistaken beliefs’ is much narrower in private defence, as an honest, unreasonable belief that more dire circumstances exist cannot justify more violent uses of force.This could be informed by different emphases on the application of personal partiality theory to justify self-defence. Davis argues that ‘because of the greater value that each of us understandably attaches to the continuation of his or her own life, we are (in certain circumstances) permitted to kill [an aggressor] to preserve our own life ’47

For the UK, these ‘certain circumstances’ are construed more broadly to accept any honestly held belief. This approach accords greater primacy to the defendant’s personal autonomy, for it acknowledges that personal partiality can apply whenever the defendant perceives a ‘choice’ between his own life and the victim’s life.

44 Criminal Justice and ImmigrationAct 2008, s 76(3).

45 PC 1871, s 101.

46 Fiona Leverick, 'The Justification of Self-Defence' in Killing in Self-Defence (online edn, Oxford Academic 2009) 43, 50 https://doi.org/10.1093/acprof:oso/9780199283460.003.0003, accessed 1 July 2024.

47 Nancy Davis, ‘Abortion and Self-Defence’[1984] 13 Philosophy and PublicAffairs 171, 189.

For Singapore, the relevance of personal partiality that protects the defendant’s rights is, however, qualified by a stronger consideration for the victim’s own right to physical safety. Since the defendant’s belief that physical harm is imminent must be reasonable,48 ‘reasonableness’ can be seen as a discretionary tool for courts to take matters into their own hands and strike a balance between the rights of the defendant and victim.

With reference to personal partiality theory, the different approaches taken can be explained by a different assignment of weights to the defendant’s right to self-preservation and the victim’s right to physical integrity.

B. Margin ofAppreciation

While the force applied must be reasonable for both defences to apply,4950 the interpretation of what constitutes ‘reasonable force’is another point of divergence.

Both jurisdictions embrace a degree of flexibility in determining if the act was reasonable. In Singapore, the harm that the offender inflicts must be “reasonably necessary in the circumstances.”51 The word “reasonably” was intentionally added by the PC Review Committee 2019 (PCRC) as only allowing for a minimum necessary response would be “harsh and exacting”52 instead accepting a breadth of responses. Through this addition, the PCRC intended to codify the holding in Tan Chor Jin v PP that “due allowance should be given to the

48 PC 1871, s 101.

49 ibid, s 98.

50 Criminal Justice and ImmigrationAct 2008, s 76(3).

51 PC 1871, s 98.

52 PC Review Committee Report 2019, p 267.

dire circumstances under which the defender was acting ”53 The PCRC drew this allowable standard of harm from Dai Jev,54 which states that “it would be inappropriate to adopt tests of detached objectivity” such that the standard of allowable harm “should not be weighed on golden scales”. This suggests that courts generally do not lay out abstract parameters to determine the propriety of force applied. Such due allowance for the offender’s circumstances has been demonstrated in Malaysian jurisprudence, which features the same standard of due allowance as that in Singapore.55 For instance, in Musa bin Yusof v PP,56 even though the deceased was disarmed at the time of the accused’s fatal attack, it was not required for the accused to adopt an alternative course of action that involved less violence such as running away.

57

In the UK, there is a margin of appreciation afforded to a defendant claiming self-defence. However, this margin is more comprehensively laid out in the CJIAand may be wider than that of private defence. This is evidenced by these two provisions:

Section 76(7)(a): “that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action.”

58

Section 76(7)(b): “that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose ”59

53 [2008] 4 SLR(R) 306 at [46(d)].

54 AIR 1963 SC 612 at 617.

55 PC Review Committee Report 2019, p267.

56 Musa bin Yusof v PP [1953] MLJ 70.

57 ibid at [71].

58 Criminal Justice and ImmigrationAct 2008, s 76(7)(a).

59 ibid, s 76(7)(b).

AsRogersbreaks down,theseprovisions readilyfavourthedefendant’s interests.60 Taking both provisions together, Section 76(7) of the CJIAreiterates that the honest belief is determinative of the reasonableness of D’s conduct. Rogers explains that a failure to de-escalate the situation in the heat of the moment may be ignored by virtue of Section 76(7)(a) of the CJIA, while a less forceful option may be ignored by virtue of Section 76(7)(b) of the CJIA if the defendant made an honest mistake in the seriousness of the threat.61 The acceptable breadth of acts in self-defence could embrace more violent responses.

Two cases are helpful in illustrating this point. In Brady v UK, a police officer thought the victim was ‘armed’and shot him, when he was only ‘armed’with a torch.62 Similarly, in Ashley v Chief Constable of Sussex Police, a police officer was acquitted after breaking down a door andshooting anakedsuspect as hewalkedout ofhis bedroom,believing him to bedangerous.63 In both cases, the defendants’ beliefs that the suspects were dangerous were spurious.64 However, since an honest belief is a recognised ground for assessing reasonableness under Section 76(7)(b) of the CJIA, the defendants in Ashley and Brady benefited from the defence, noting the difficulty for the prosecution to disprove the absence of an honest belief 65 Once it hasbeenacceptedthatthedefendantsperceivedthesuspectstobedangerous, itcouldbeargued that in retrospect a less violent option, such as a warning shot, was a more proportionate action to take.Yet, Section 76(7)(a) of the CJIAwill operate to grant the Ashley and Brady defendants significant leeway: save for extreme cases such as knowingly shooting an unarmed burglar,66

60 Jonathan Rogers, ‘Culpability in Self-defence and Crime Prevention’in Gerald Sullivan and Ian Dennis (eds), Seeking Security: Pre-Empting the Commission of Criminal Harms (Bloomsbury 2012) 268, 268.

61 ibid, 272.

62 Brady v UK (1997) 24 EHRR CD 38.

63 Ashley v Chief Constable of Sussex Police [2008] UKHL 25.

64 Rogers (n 60) 283.

65 ibid, 270.

66 [2001] EWCACrim 2245

the defendant will not be blamed for choosing the more violent option as they are not expected to “weigh to a nicety the exact measure of any necessary action.”

In contrast, Singapore’s departure from “detached objectivity” is far less charitable to the defendant. While the standard of allowable harm is said to exceed that of a “minimum necessary response,”67 this does not permit a substantial divergence. Reasonableness is often measured with reference to the benefit of hindsight. This is clear in the Court of Appeal case of Roshdi v PP.68 It should be noted that although Roshdi was decided prior to the inclusion of “reasonably necessary” in the statute, this inclusion was merely intended to codify the existing law.69 In Roshdi, the court engaged in a temporal slicing of events between blows, despite short intervals between each blow. This led to the conclusion that subsequent blows beyond the first were not necessary and thus unreasonable70. This illustrates two key differences in the determination of ‘reasonableness’. First, unlike the UK’s Section 76(7)(b) of the CJIA, this disregarded the defendant’s honest belief in the heat of the moment that the threat posed by the victim remained operative. Second, the court’s blow-by-blow evaluation was essentially a retrospective analysis of what unfolded: the defendant was expected to exert greater control over the force he applied unlike the looser expectation set out in Section 76(7)(a) of the CJIA. Even after setting aside ‘detached’ objectivity, the standard of “reasonableness” that features in private defence is more exacting against the offender as compared to self-defence.

As will be explained in Chapter III, the existence of the partial defences of EPD and sudden fight in Singapore, compared to the UK’s only recourse to loss of control when force is disproportionate, explains this difference in interpreting ‘reasonableness’.

67 PC Review Committee Report 2019, p 267.

68 Roshdi v Public Prosecutor [1994] 3 SLR(R) 1.

69 PC Review Committee Report, p 267.

70 Roshdi (n 68) [42].

C. Treatment of Homicide

As discussed above under ‘Section B: Reasonableness of Force’, courts generally do not lay out abstract parameters to determine whether force was reasonable in private defence. However, there is a notable exception laid out in Section 102 of the PC71. If the defendant is charged with murder under Section 300 of the PC, private defence only applies if the offence committed, attempted or threatened to be committed by the victim is an assault where the defendant reasonably believed that death, grievous hurt, rape, kidnapping or wrongful imprisonment would follow72. For self-defence, causing death only goes to evaluating reasonableness: no different method is applied.

In comparing the scope of private defence to self-defence, the effect of Section 102 of the PC appears to be double-edged. On one hand, Section 102 of the PC could be viewed as giving a defendant maximal freedom to use as much force as desired as long as the listed offence is made out. However, this distinction is likely untenable in practice. Firstly, the listed offences only militate in favour of finding a right to private defence, which may still fail on the inquiry of whether the force was ‘reasonable’.Additionally, Section 102 of the PC intends to prescribe the most heinous of crimes that infringe upon the defendant’s rights to bodily autonomy, sexual autonomy and freedom of movement before said defendant is entitled to use deadly force73. It is difficult to imagine when a UK court would not accept a claim for self-defence in the event that death resulted from the protection of such rights.

71 PC 1871, s 102.

72 ibid.

73 Wing-Cheong Chan, Barry Wright, and Stanley Yeo, Codification, Macaulay and the Indian PC: The Legacies and Modern Challenges of Criminal Law Reform (2013), chapter 8 p7: ‘In India, local authorities had generally taken a strict approach to regulating sexual behaviour which was not far off from then-prevailing attitudes in Britain.’

On the other hand, where the defendant has killed the victim, the offence which occasioned the exercise of the right of private defence must be one of the listed offences.74 In the UK, the inquiry does not explicitly discriminate between different levels of harm. There may be cases where self-defence exonerates a defendant for murder as long as the force was reasonable in the circumstances, whereas private defence would necessarily fail if the victim’s assault fell outside of the listed offences. It is conceded that these cases will inevitably be rare: in R v Martin (Anthony), the failure to invoke the defence could be viewed through the lens that there was no apprehension by the defendant that he would suffer any grievous hurt or death given that he himself was armed. Causing death was unreasonable because his fundamental rights were not under threat: protecting his right to property from burglars was insufficient. Examining recent case law, courts are generally reluctant to accept the taking of life as a proportionate response if the defendant's fundamental rights are not perceivably under threat.75 In practice, this may not be a significant difference between self-defence and private defence.

III. Excessive Self-Defence

Under ‘Chapter II: Reasonableness of Force,’it was noted that self-defence and private defence are often conceptualised as justifications for conduct that would otherwise be criminal. Hence, if the force applied was disproportionate in the circumstances, a defendant’s claim that his act was in private defence or self-defence would lack a justificatory character. While R v Palmer76 maintains that self-defence operates in its entirety or not at all, there have been recommendations to create an excusatory strand of self-defence that functions as a partial defence to murder, similar to Singapore’s EPD 77

74 ibid.

75 R (Collins) v SS Justice [2016] EWHC 33 (Admin).

76 [1971]AC 814.

77 John Child et al, ‘Chapter 21: Permissible Conduct’ in Simester and Sullivan's Criminal Law: Theory and Doctrine (8th edn, Hart Publishing 2022) 722, 737.

The conclusion in the previous chapter that UK courts accords more weight to the defendant’s interests than that in Singapore would be premature without examining the partial defences available. Although private defence catches a smaller range of cases than self-defence, Singapore’s partial defences could operate to narrow this gap. Private defence’s prima facie more limited scope may be justified by its recourse to the partial defences when the defendant unintentionally applies disproportionate force. As will be explained below, introducing a similar partial defence for the UK could help achieve fairer and more equitable outcomes.

A. Exceeding Private Defence

Exceeding private defence is a special exception to murder pursuant to Exception 2 of Section 300 of the PC.78 It is applicable to situations where the offender is found objectively to have inflictedmore harm than “reasonably necessary” (as per Section98) but did not intendto inflict disproportionate harm. If successfully pleaded, a murder charge is reduced to a charge of culpable homicide not amounting to murder (CHNAM).79 Much like pleading private defence, at the time of committing the offence, the offender must have a reasonable belief that physical harm would be inflicted, and the accused must not have had a reasonable opportunity to seek protection from public authorities 80 However, in place of the objective limb that the harm inflicted must have been “reasonably necessary,” the offender must have acted without premeditation and must not have intended to inflict more harm than necessary. This essentially refuses the defence to malicious wrongdoers 81

78 PC 1871, s 300 exception 2.

79 ibid.

80 ibid.

81 ibid.

Exceeding private defence was conceived to serve as a bridge between the mere “singe step” between “perfect impunity” and “liability for capital punishment” that would otherwise exist.82 In Macaulay’s drafting of the defence, he suggested that EPD would be applicable where the accused, acting in private defence, kills a victim instead of merely fracturing them 83 In such a situation, the accused’s conduct is morally culpable for inflicting force disproportionate to his right of private defence, but less so than acting without the right in the first place 84

The existence of EPD as a partial defence draws out a difference in the normative foundations of private defence and self-defence. Wasik writes that a partial defence is developed when a more serious offence carries significant moral stigma (such as murder), so that it is more appropriate to allow a jury the option of convicting of a lesser offence, rather than being forced to decide between a conviction for a greater offence seen to be morally inappropriate and a perverse acquittal 85 EPD acknowledges that acting under a motive of self-preservation alone already mitigates a defendant’s culpability to the point where a murder conviction is ill-fitting. The role of proportionality is to determine whether the defence lies within the realm of a full justification or partial one. Such a concept is currently not recognised under English law. A defendant attacking a perceived threat out of self-preservation alone is insufficient to attenuate culpability in the slightest: it must be accompanied by a reasonable use of force 86 Examining R v Collins, while a defendant holding the victim-burglar in a headlock was considered disproportionate and thus unreasonable under self-defence, as long as it can be proven that the defendant did not act maliciously, EPD will be operative. In Singapore, the Collins defendant

82 Macaulay et. al (n 4).

83 ibid.

84 Stanley Yeo, Neil Morgan and Wing Cheon Chan, Criminal Law in Singapore (2022) at [21.7]: ‘(Macaulay’s illustrations show the) moral distinction between murder and killings done in EPD and declare that a person who has killed as a result of applying excessive force in defence… is morally less culpable than one who has killed in circumstances which provide no extenuating circumstances whatsoever’.

85 Martin Wasik, ‘Partial Excuses in the Criminal Law’ (1982) 45(5) MLR 516, 530 <http://www.jstor.org/stable/1095193> accessed 15 July 2024.

86 With the exception of householder cases under CJIAS76(5A).

would likely have had his charge of murder downgraded to manslaughter (since his belief in some physical threat was reasonable).

However, where EPD covers the same factual matrices as self-defence, but not private defence, the same facts will yield dramatically different outcomes. Self-defence secures a full acquittal, butEPDmerelyreduces murderchargestothatofCHNAM.Onthis point,theUK’sapplication of self-defence still favours the defendant’s rights to a greater degree. The foregoing analysis roughlylevelstheplayingfieldintermsofhowbothjurisdictionsbalancethedefendant’srights against the victim’s: even if EPD covers more factual matrices, self-defence imposes a lighter sentence for the factual matrices it shares with EPD.

Yet, Singaporean courts often use an objective assessment of placing a reasonable person in the shoes in the circumstances as an evidential proxy for subjective knowledge. For instance, to determine whether the offender “intended to inflict more harm than necessary” in PP v Soosay, 87 the court reasoned that the use of a knife on an enraged but unarmed person, in our view,“cannot bejustified”whenthat person can surely bequietenedby othermeans 88 Assuch, rather than directly making inferences regarding the offender’s subjective intention to “inflict more harm than necessary”, an objective assessment of the offender’s available options was instead used as a proxy. It is noted that Soosay is the only presently available precedent in Singapore that explores this limb of EPD, such that it is difficult to pinpoint the boundaries of how readily courts employ subjective knowledge to infer the existence of this intention. However, should an objective analysis consistently bleed into determining this subjective limb, it is worth questioning whether the partial defence truly covers a substantial range of factual matrices which would not succeed under private defence. This concern is amplified by the complete dearth of case law where EPD was successfully pleaded. Therefore, the leniency of self-defence to the defendant could still be said to be greater than private defence.

87 [1993] 2 SLR(R) 670.

88 Ibid at [41].

The extent to which EPD ameliorates the harshness of private defence by providing a ‘middle ground’ is subject to courts preserving the subjectivity of the EPD requirements. Only future case law can tell.

B. Sudden Fight

Sudden fight is another partial defence of an excusatory character available to offenders under Exception 4 of Section 300 of the PC, reducing a charge for murder to CHNAM. It must be shown that there was:89

(a) a sudden fight in the heat of passion upon a sudden quarrel;

(b) the absence of premeditation; and

(c) the accused had no undue advantage and did not act in a cruel or unusual manner

Unlike EPD, raising sudden fight is not contingent on a right of private defence being available to the accused: it examines the respective blameworthiness of the defendant and victim where there is mutual provocation.90 Should the victim be more blameworthy, it is recognised that the defendant is less culpable for the harm inflicted onto the victim 91 While the normative underpinnings for sudden fight appears distinct from private defence, sudden fight is often raisedalongsideEPD.Presently,EPDandsuddenfight havebeenraisedbythedefencecounsel in two Singaporean cases- Soosay92 and Seow Khoon Kwee,93 where only sudden fight was

89 PC 1871, s 300 exception 4.

90 PC Review Committee Report 2019 p 303.

91 ibid.

92 [1993] 2 SLR(R) 670.

93 Public Prosecutor v Seow Khoon Kwee [1988] 2 SLR(R) 310.

successfullypleadedin both 94 Itmaybesurmisedthat suddenfight shares manysimilarfactual matrices with private defence since they arise where there is a physical confrontation between the accused and the deceased, which could encompass an “exchange of blows.”95 Where force is not “reasonably necessary”, sudden fight could serve as an alternative to EPD with a more certain success rate.

However, sudden fight does not cover all situations where the only reason private defence fails is because the force was not “reasonably necessary”: for example, if the attack by the deceased was on someone apart from the accused or no exchange of blows. In Ya bin Daud v PP,96 the accused had been chased home by the deceased prior to the physical confrontation in which he took a gun to shoot the accused. There was arguably no ‘exchange of blows’, as there was a temporal gap between the victim’s initial attack and the defendant’s fatal attack.

Overall, both EPD and sudden fight can embrace cases of ‘excessive self-defence’, but imperfectly so. There is one further qualification: the track record of the partial defences must be treated with caution as the cases discussed above were all decided prior to the revocation of the mandatory death penalty for murder. It is unclear whether the application of these defences may be more stringent following the revocation 97

C. Loss of Control

94 [1993] 2 SLR(R) 670 at [44].

95 PC 1871, s 300 exception 4.

96 Ya bin Daud v PP [1997] 4 MLJ 322.

97 [1988] 2 SLR(R) 310 at [35].

In contrast, the only available option for an English defendant who has applied unreasonable force is the partial defence of loss of control. Under the Section 54(1) of the Coroners and JusticeAct:

(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control;

(b) the loss of self-control had a qualifying trigger; and

(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D98

Under Section 55(3) of the Coroners and Justice Act, a qualifying trigger includes a ‘fear of serious violence’from the victim:99 an area of overlap between the factual matrices covered by self-defence and loss of control. There is also no reasonableness requirement for the force inflicted by the defendant, suggesting that a defendant who has applied disproportionate force due to a ‘fear of serious violence’may benefit. Notably, under Section 54(1)(c) of the Coroners and Justice Act, it is a requirement that someone of a normal degree of tolerance and selfrestraint ‘might’have reacted similarly. This restricts the kinds of unreasonable force that can fall within the scope of loss of control, but the interpretative significance of the word ‘might’ (as opposed to ‘would’) suggests that the range of acceptable force applied by the defendant is much wider than the standard ‘reasonable person’test.

There may be two reasons why loss of control may not move the needle. First, loss of control imperfectly embraces cases of excessive self-defence. The defence does not apply if there is no loss of normal powers of reasoning;100 this is a high bar, where a panicky or scared response to aggressive conduct is insufficient.101 However, many cases of self-defence will involve a

98 Coroners and JusticeAct, s 54(1).

99 ibid, s 55(3).

100 R v Jewell [2014] EWCACrim 414.

101 R v Martin [2017] EWCACrim 1359.

defendant acting rationally out of self-preservation. Many cases of disproportionate force will not fall within the scope of loss of control; certainly less so compared to EPD and sudden fight. Second, Singapore offers the partial defence of provocation102 which has a broadly similar scope: it likely does not offer an exclusive advantage for UK courts to handle cases of ‘excessive self-defence’.

D. Partial Defences andAchieving Just and Equitable Outcomes

The partial defences inform the different positions on private defence and self-defence outlined in Chapter II, as both jurisdictions strive to reach just and equitable outcomes. Nevertheless, both fall short in different respects.

1. TheAbsence of a Partial Defence for the United Kingdom

Adopting a more relaxed definition of reasonableness in self-defence attempts to preserve a distinction between different shades of culpability. Without a partial defence specifically purposed as a middle ground, English courts appear more willing to use reasonableness as a “fudge factor”103 to acquit a defendant who may have applied unreasonable force (according to the standards of private defence) than convict him of murder. This is because murder is a monolithic offence that carries a mandatory life sentence;104 the social stigma of a murder

102 PC 1871, s 300 exception 1: ‘Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation’.

103 Rogers (n 60) 269.

104 Sally Lipscombe and Jacqueline Beard, ‘Mandatory Life Sentences for Murder’(House of Commons Library, 12 November 2015) <https://researchbriefings.files.parliament.uk/documents/SN03626/SN03626.pdf> accessed 15 July 2024.

conviction follows the defendant for the rest of his life 105 Yet, in R v Howe, it was acknowledged that murder problematically groups together acts of disparate culpability, ranging from ‘brutal, cynical and repeated offences […] to the almost venial, if objectively immoral, “mercy killing” of a beloved partner’106. Similarly, causing death to a perceived aggressorto protect oneselfis afarcryawayfrom acold-bloodedpremeditatedmurderin terms of culpability. Courts thus prefer to acquit rather than convict.

However, there may be some discomfort in allowing a full acquittal, especially if the defendant acted irresponsibly107. In Ashley v Chief Constable, the police officer’s history of misbehaviour and trigger-happy behaviour at the scene were not enough to bring the case to trial: there was no case to answer without sufficient evidence to overturn the primacy of an honest belief108 Such an outcome involving the irresponsible use of state force is likely at odds with our own moral intuitions. This begs the question: why does the UK not have a partial defence to murder for excessive self-defence, and correspondingly tighten the definition of ‘reasonableness’?

This could be explained by differences in sentencing outcomes imposed for murder. In Singapore, the ceiling for criminal punishments goes up to the death penalty, which was abolished by the UK in 1998 109 A conviction under Section 300 for murder carries the mandatory death penalty110 (if convicted under Section 300a) or discretionary death penalty.111

105 Marti Rovira, ‘Invisible Stripes? A Field Experiment on the Disclosure of a Criminal Record in the British Labour Market and the Potential Effects of Introducing Ban-The-Box Policies’(2024) 64(4) The British Journal of Criminology 827, 828 <https://doi.org/10.1093/bjc/azad063> accessed 15 July 2024.

106 R v Howe [1987]AC 417.

107 Rogers (n 60).

108 [2006] EWCACiv 1085.

109 Thomas Brown, ‘Murder (Abolition of DeathPenalty)Act 1965: 50Years’(House of Lords, 9 November 2015) <https://lordslibrary.parliament.uk/research-briefings/lif-2015-0044/> accessed 15 July 2024.

110 PC 1871, s302(1).

111 PC 1871, s302(2).

Differentiating between murder and CHNAM in Singapore may be a matter of life and death: a bright-line test via EPD and sudden fight is essential. In contrast, the difference between the sentencing outcomes for murder and manslaughter is less drastic, only varying in lengths of prison stays 112 In the UK, the lack of a push to implement such a partial defence could be informed by the lesser significance of differentiating between murder and manslaughter.

In addition, mitigated sentencing within the commission of the same offence may serve as a reasonable alternative to partial defences to achieve just and equitable outcomes. In cases of murder, a starting point for the minimum prison term is determined on certain facts before mitigating factors operate to reduce the term period.113 Where EPD may be applicable, the diminished moral culpability is recognised by the mitigating factor of “acting to any extent in self-defence”.114 Mitigating factors fulfil a similar role to Singapore’s partial defences.

Nevertheless, the abolishment of capital punishment is an insufficient reason to negate the utility of a new partial defence for excessive self-defence. It would acknowledge finer differences in culpability.This is in theinterests of fairlabelling: ifwe weretoconceivemurder as the most heinous criminal offence, the description of ‘murder’arguably does not match the wrong of applying excessive force in self-defence 115 Furthermore, the aforementioned mitigating factors still leave the offender convicted with “murder”: the mandatory life sentence means that the defendant remains on licence and faces stigmatisation for the remainder of his life. While the minimum jail term may decrease, the ‘label’ of murder persists and could

112 Sentencing Council, ‘Sentencing for Manslaughter’ (Metropolitan Police) <https://www.sentencingcouncil.org.uk/wp-content/uploads/FINAL-Manslaughter-sentencing-leaflet-forweb1.pdf> accessed 15 July 2024.

113 Sentencing Council, Sentencing for Murder’ (Metropolitan Police) <https://www.sentencingcouncil.org.uk/wp-content/uploads/FINAL-Murder-sentencing-leaflet-forweb1.pdf%255> accessed 15 July 2024.

114 ibid.

115 Jeremy Horder, ‘Criminal Law Fabric’in Ashworth's Principles of Criminal Law (10th edn, OUP2022) 88-89.

potentially be incommensurate with moral culpability. Thus, the UK would benefit from a partial defence akin to Singapore’s EPD.

2. TheAbandonment of Subjectivity in Singapore

Conversely, the scope of private defence may be justified by how EPD is specially purposed to ‘catch’ defendants who applied unreasonable force. Singapore’s position appears to be more nuanced by clearly delineating three levels of culpability: exculpation, partial defence or no defence. Courts can afford to adopt a tighter formulation of the relevant circumstances (Section A) and reasonableness of force (Section B), while knowing that defendants who fail to plead self-defence will not be charged with murder indiscriminately.

Even so, it is argued that Singapore courts should consider providing increased leeway in finding that the force used was “reasonable” based on the circumstances as subjectively experienced by the victim to more accurately reflect their moral culpability. Presently, it is judicially recognised that decisions made by offenders in the heat of the moment cannot be judged by the ‘detached objectivity’ that is ‘so natural’116 in a courtroom. Yet, it is unclear whether the PCRC’s addition of ‘reasonably necessary’ instead of ‘necessary’ makes any practical difference, since the same ‘detached objectivity’ that the PCRC claims to be undesirable seems to have resurfaced in case law, such as the mechanical dissection of the offender’s actions in Roshdi 117 The current provisions are inadequate in properly assigning moral culpability to the defendant acting in the heat of a physical confrontation. He is effectively judged against the standards of the reasonable person, equipped with unrealistic composure and the benefit of hindsight. Consequently, this may prove to be too high a standard to expect from the ordinary person in those circumstances.

116 PC Review Committee Report 2019 p 267.

117 Roshdi (n 68).

Instead,aclearerintegrationofthesubjectiveexperienceoftheoffenderought to beconsidered to more accurately reflect the defendant’s culpability. The UK’s approach offers two possible means through which Singapore courts can truly depart from detached objectivity. Firstly, Singapore may amend the circumstances on which the offender’s actions are judged to the circumstances as he honestly believed them in the moment.A more moderate approach would be to clarify what it means for force to be ‘reasonably necessary’ beyond the vague notion of ‘due allowance’.118 Singapore could adopt the UK’s clearer formulation that what the offender honestly and instinctively thought was necessary is relevant to finding whether the force was reasonable 119

IV. Conclusion

There are two main points of difference between private defence and self-defence. First, the circumstances are decided by reference to the defendant’s honest belief in self-defence, as opposed to the need for the defendant’s subjective belief to be ‘reasonable’ in the threshold question in private defence. This can be explained by a more liberal application of personal partiality theory, where the defendant can always prioritise his own rights over that of the perceived threat. Second, the margin of appreciation given to a defendant’s use of force is narrower for private defence. This can be explained by Singapore’s exclusive partial defences, EPD and sudden fight, which more readily embrace cases of unreasonable force that fall out of the scope of private defence. Of note, while Section 102 appears to designate a different measure ofreasonableness whendeath is caused forprivate defence, in practice,this is unlikely to yielddifferent results comparedto self-defence. Overall,privatedefence, togetherwith EPD, covers a wider range of the defendant’s conduct, since the latter is uninhibited by any ‘reasonable force’ requirement. However, the complete acquittal in self-defence, compared to the downgrading of charges in EPD, demonstrates a more lenient treatment towards the defendant. Whether private defence or self-defence will be more beneficial to a defendant depends on the particular factual matrix.

118 PC Review Committee Report 2019 p 267.

119 CJIA2008, s 76(7)(b).

Highlightingthesedifferences allowsSingaporeandtheUKto considernewreformsto remedy their distinct issues. To avoid a binary, restrictive choice of electing between a murder conviction and a full acquittal in cases of homicide, the UK could adopt a partial defence similar to Singapore EPD, which recognises different shades of culpability. For Singapore, it could accord greater importance to the defendant’s honest belief. This would appropriately show sympathy for defendants acting under pressure and accurately match the court’s decision to their culpability.

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Antitrust

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In Who Do We Trust: Principled and Pragmatic Obstacles to Recognising Non-Charitable

Purpose

Trusts in Singapore

Ang Li Hui1, Kenneth Poh2

1Abstract

The long-standing debate surrounding non-charitable purpose trusts (‘NCPTs’) in Singapore has been thrust back into the limelight by a recent Law Reform Committee report calling for their recognition. This is unsurprising given the burgeoning demand for NCPTs in offshore jurisdictions that have recognised them. However, this paper submits that the old principled objection against NCPTs, namely the requirement of a beneficiary, is underaddressed in academic commentary and poorly resolved by existing offshore statutory schemes. In particular, existing schemes that purport to supplant the beneficiary with an enforcer sorely misunderstand the beneficiary principle and hence fail to adequately address it. Nevertheless, this paper acknowledges the immense pragmatic benefit NCPTs can bring to Singapore’s wealth management industry and proposes a more robust statutory regime that satisfies pragmatism and circumvents principle.

2 Introduction

Non-charitable purpose trusts are those trusts established for certain purposes, without identifiable beneficiaries, and whose purposes do not fall under an established head of charity.

1 LLB Candidate (Class of 2026), National University of Singapore, Faculty of Law

2 BAJurisprudence Candidate (Class of 2026), University of Oxford, Faculty of Law

Orthodoxy used to dismiss NCPTs as unimportant or altogether impossible:3 it has been said that ‘[n]o principle, perhaps, has greater sanction or authority behind it than the general proposition that a trust… not being a charitable trust, in order to be effective must have ascertained or ascertainable beneficiaries’.4 This principle, customarily described as the beneficiary principle, is so long-settled that it has been suggested that a broad recognition of NCPTs would violate the coherence and stability of settled trust law.5 Singapore’s trust law reflects this restrictive attitude, with courts consistently holding that NCPTs are void for their failure to comply with the beneficiary principle.6

Yet everything old is new again: today NCPTs are big business7, with major offshore trust jurisdictions including Bermuda, the Cayman Islands, and the British Virgin Islands recognising them by force of statute.8 Closer to home, a recent Law Reform Committee Report acknowledged the practical benefits of the NCPT and called for statutory reform authorising the creation and enforcement of NCPTs in Singapore.9

3 See, e.g., Morice v The Bishop of Durham (1804) 9 Ves Jr 399, 402-405 (‘Morice (Court of Chancery)’), which was later affirmed on appeal by Lord Eldon LC in Morice vThe Bishop of Durham (1805) 10 Ves Jr 522 (‘Morice (High Court of Chancery)’, Re Astor’s Settlement Trusts [1952] Ch 534, 542 (‘Re Astor’). See also Bowman v Secular Society Ltd [1917]AC 406, 441 (Lord Parker).

4 Re Endacott [1960] Ch. 232, 246 (‘Endacott’)

5 YL Tan & V Wu, 'Report on the Enactment of Non-Charitable Purpose Trusts', Law Reform Committee (May 2021) (‘Law Reform Committee Report’) at 5.2

6 Koh Lau Keow and others v Attorney-General [2014] 2 SLR 1165 at 18(b), affirmed as recently as 2019 by Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd [2019] SGHC 68

7 See Paul Matthews, ‘From Obligation to Property and Back Again? The Future of the Non-charitable Purpose Trust’, in David J Hayton (ed), Extending the Boundaries of Trusts and Similar Ring-Fenced Funds (Kluwer Law Intl, 2002)

8 See Cayman Islands’ Special Trusts (Alternative Regime) Law 1997, Bermuda’s Trusts (Special Provisions) Amendment Act 1998, and Virgin Islands Special Trusts Act 2003. See also The Trusts (Guernsey) Law 2007, Brunei’s International Trusts Order 2000 (17 July 2000), and Mauritius TrustsAct 2001 s 21

9 As recommended in the Law Reform Committee Report (n 2)

Unfortunately,modern commentaryhas largely glossedovertheold principledobjectionraised by the beneficiary principle. Despite the detailed analysis of the benefits, risks and mechanism for implementing a statutory scheme for NCPTs, the Law Reform Committee paid surprisingly little attention to whether an enforcer is a conceptually defensible substitute for a beneficiary. ItwassimplyassertedthatastatutoryprovisionforNCPTsbypassestheissuebecause‘itwould not purport to be either an exception to the beneficiary principle nor a new general proposition’.10 The same is true of offshore trust jurisdictions, whose statutory schemes have altogether jettisoned the requirement of a beneficiary in favour of the office of the enforcer.11 The tide of academic opinion has evidently turned in favour of substituting beneficiaries with enforcers. This article questions the viability of said approach. We argue that the adoption of an enforcer obfuscates the essence of the beneficiary principle; being that the core of a trust is the existence of a beneficial holder of the interest in the trust property, not merely an enforcer of the trust duties. Indeed, without a beneficiary, no trust duties exist to be enforced. As aptly put by Matthews, the statutory enforcer is a ‘conjuring trick’ that allows beneficial enjoyment to ‘dissolve into thin air’– not a genuine alternative to the beneficiary.12

The first part of this paper will examine the two dominant constructions of the beneficiary principle and demonstrate that the weight of doctrinal authority rests with the proprietary construction. In this light, it will become evident that statutory reform in Singapore cannot possibly take place without confronting the principled obstacles posed by the requirement of a beneficiary.

10 Law Reform Committee Report (n 2), [20]

11 This article explores the limitations of a statutory enforcer by offshore jurisidictions in Section 6

12 PaulMatthews,‘TheNewTrust:ObligationswithoutRights?’in Trends in Contemporary Trust Law (edOakley) (Oxford: Clarendon Press, 1996), p19 (‘Matthews’)

Next, this paper will examine statutory reform across various offshore jurisdictions and the proposed model by the Law Reform Committee in Singapore, and demonstrate that each is an inadequate solution to the lack of a beneficiary.

Finally, this paper will highlight the unique pragmatic benefits of recognising NCPTs in Singaporeandweighthemagainsttheprincipledobjections.Givensignificantpracticalbenefit, we submit that the search for an appropriate solution to recognise NCPTs is a worthy one. While the law of equity will not be appropriate to enact such a reform, we propose an appropriate statutory solution that addresses the principled issues while reaping the pragmatic benefits.

3 What is the ‘beneficiary principle’?

One major source of confusion lies in the question of what the beneficiary principle really is. Judicial authorities may be split into two camps: those that adopt the (1) enforcement construction, and those which prefer the (2) proprietary construction. To the extent that either is accepted, they set the conceptual threshold that a NCPT must cross in order to be doctrinally consistent with the common law.

The enforcement construction focuses on the enforceable obligations owed by the trustee, the legal title-holder to the property, irrespective of who these obligations are owed to. In contrast, under the proprietary construction, the focus is on the trustee holding property for the beneficiary, who has the right to benefit from said property (either as the equitable owner or by holding some beneficial interest in it).

The confusion is unsurprising, given that both constructions find support in what is commonly regarded as the very first expression of the beneficiary principle in Morice v The Bishop of

Durham 13 At first instance hearing, Sir William Grant MR stated the principle that ‘[t]here must be somebody, in whose favour the Court can decree performance’.14 The focus was evidently on some beneficiary to whom the beneficial interest in the trust property belongs. Though affirmed on appeal by Lord Eldon LC, conceptual slippage was afoot: Lord Eldon’s pronouncement was that ‘the execution of a trust shall be under the controul of the Court, it must be of such a nature, that it can be under that controul; so that the administration of it can be reviewed by the Court; or, if the trustee dies, the Court itself can execute the trust’.15 In effect, the focus had shifted from the existence of the beneficiary to the enforceability of obligations under the trust.

Later developments in the common law appear to vacillate between the two constructions, but closer examination reveals that the weight of authority rests with the proprietary construction. Moreover, an analysis of jural relations declaws the enforcement construction, which becomes rather hollow in the absence of a beneficiary.

3.1 The enforcement construction

We turn first to the enforcement construction. This construction first reared its head in Re Denley’s Trust Deed,16 where a settlor company created a trust over a plot of land for the ‘purpose of a recreation or sports ground primarily for the benefit of the employees of the company’.17 Though this was clearly a private purpose trust with no beneficiaries, the employees werefactual beneficiaries, personswith ‘locus standi to applyto thecourtto enforce

13 Morice (Court of Chancery) (n 3). Commonly regarded as the first expression of this principle, see Matthews (n 12), 2

14 Morice (Court of Chancery) (n 3) 402-405

15 Morice (High Court of Chancery) (n 3) (Lord Eldon LC)

16 [1969] 1 Ch 373

17 Ibid at 373

the trust’.18 Therefore, Goff J held that where ‘the trust, though expressed as a purpose, is directly or indirectly for the benefit of an individual or individuals, it seems [...] it is in general outside the mischief of the beneficiary principle’.19 In other words, there is no need for the trust to have beneficiaries, so long as it involves enforceable obligations on the trustees. On this construction, simply appointing an enforcer would be sufficient to satisfy the beneficiary principle.

Undergirding the enforcement construction is a strictly obligational view wherein obligations are the core of trust law. It finds support in Armitage v Nurse, under which the irreducible core of the trust consists in the duties owed by trustees: ‘If the beneficiaries have no rights enforceable against thetrustees therearenotrusts’.20 AsarguedbyHayton, this pronouncement byMilletLJ’s indicatesthat ‘thetrust is anobligation’,ergothebeneficiary principleis actually a principle of enforcement.21

3.2 The proprietary construction

Yet the picture is incomplete without the rival proprietary construction, without which obligations become toothless and elusive. In essence, this construction sees the trust as one where interest in the trust property must vest in a beneficiary: the trust is the ‘beneficial interest… [given] away to another’.22 It should be noted at this juncture that the legal impulse to find a beneficiary also runs through other doctrines in trust law, including the creation of a resulting trusts. Without a beneficiary, the effect is to ‘leave the beneficial interest in

18 Ibid at 383

19 Ibid at 374

20 Armitage v Nurse [1998] Ch 24 at p. 253

21 D Hayton, ‘Developing the Obligation Characteristic of the Trust’(2001) 117 LQR 96, 103

22 Vandervell v IRC [1967] 2AC 291, 313 (Lord Upjohn)

suspense… which is unorthodox and should in fact generate a resulting trust so as to restore the continuity of the beneficial interest’.23

Where there is convergence between the proprietary and enforcement constructions, the proprietary construction appears to dominate. Consider Re Shaw, where Harman J held that the putative trust for non-charitable purposes related to the development of a new alphabet was invalid. There, he framed the requirement of a beneficiary as necessary because the beneficiary may ‘complain to the court [and give it opportunity to] control the trust’.24 Yet the focus was not entirely on control: the court was not truly deprived of any means of controlling the trust, since the persons taking in residue would still be interested in bringing actions to police the trust.25 Even so, Roxburgh J maintained that the essence of the beneficiary principle required him to hold that the NCPT was invalid.26 In other words, while enforcement is important, the presence of a beneficiary is at still the core of the principle.

We would go a step further and argue that the enforcement construction simply does not exist without the proprietary construction. In fact, viewing each as entirely distinct from the other does injustice to the powerful conceptual link drawn by Roxburgh J in Re Astor, that enforceableobligationsonlyexistinthepresenceofacorrelativeright-holder.There,Roxburgh J described the typical case of a trust as one where the ‘legal owner of property is constrained by a court of equity so to deal with it as to give effect to the equitable rights of another… Prima facie, therefore, a trustee would not be expected to be subject to an equitable obligation unless there was somebody who could enforce a correlative equitable right’.27 While not explicit, this link bears distinct resemblance to the Hohfeldian scheme of jural relations, where duties must

23 Twinsectra Ltd v Yardley [2002] 2AC 164, [90] (Lord Millett)

24 Re Shaw’s Will Trust [1957] 1 WLR 729, 745 (‘Re Shaw’)

25 Ibid

26 Re Shaw (n 24), 746

27 Re Astor (n 3), 541

correspond to rights, and neither exists without the other.28 The correlativity stipulation commands that if A has a right against B, then B owes a duty to A; so if A has a right that B return his cow, then B has a duty to deliver said cow toA.

By Hohfeldian definition, where there is no beneficiary, the trustee’s correlative duty disappears into the ether. And since uncontrollable power of disposition is ownership,29 so too does the very existence of the trust vanish altogether. Put another way, the Re Denley framing which centres on needing someone with standing to enforce the trust obligations is a ‘distinctly second-order way of framing the beneficiary principle’.30 The question of enforcement is null and void because there is no trust, much less any trust obligation to enforce.

4 Whither beneficiary principle in Singapore?

In Singapore, the position remains open, without any judicial recognition or rejection of Re Denley. In Goi Wang Firn,31 the SGHC considered submissions on the case, and appeared implicitly to accept that the beneficiary principle is intended to ‘ensure that a trust can both be enforced against the trustee and controlled by the courts’, and ‘the aim of this is to nullify those trusts which have as their objects purely private purposes that… cannot conceivably be enforced or policed (indicating acceptance of the enforcement construction)’.32 However, it is submitted that this statement merely represents – as in Re Shaw – the courts’ recognition that enforcement of the trustee’s obligations is an important aspect of a trust. Additionally, it was

28 W. Hohfeld, ‘Some Fundamental Legal ConceptionsAsApplied in Judicial Reasoning’ 23 Yale L.J. 16, 28–59 (1913). See also J W Harris, ‘Trust, Power and Duty’(1971) 87 LQR 31, 52 where he argues that the trust can be understood in the Hohfeldian sense of there being a right held by beneficiaries which is correlative to the trustee’s duty

29 Morice (Court of Chancery) (n 3), 658

30 JE Penner, The Law of Trusts (Oxford University Press) 12th Edn (2021), [7.6] (‘Penner, The Law of Trusts’)

31 Goi Wang Firn v Chee Kow Ngee Sing Pte Ltd [2015] 1 SLR 1049 (‘Goi Wang Firn’)

32 Goi Wang Firn (n 31), [27]

set out as a direct response to counsel’s misguided argument that the beneficiary principle required a human beneficiary (as opposed to a non-human entity, such as a company), making it necessary to point out the similarities between the two.33 Indeed, in the very same paragraph, the focus fell squarely on ‘the insistence on the presence of some identifiable beneficiary’34 –at no point could this be jettisoned simply because the enforcement of the trust was otherwise possible. In other words, while the decision straddled the two constructions, there seemed to be a preference for the proprietary construction.

Moreover, a closer examination of Goi Wang Firn indicates that future courts in Singapore are unlikely to adopt the Re Denley enforcement construction. In ensuing paragraphs of the decision, Steven Chong J casted doubt on the persuasive value of Re Denley, observing that subsequent cases have failed to parse the decision, which is ‘not straightforward… [and] has given rise to quite contrasting interpretations over the years’.35

The observation is rightly made. Despite Re Denley having been decided in 1969, there has yet to be straightforward appellate authority endorsing this expansion of the beneficiary principle. Lower court cases attempting to reconcile the decision with the weight of the authorities also appear to have ‘[killed] Re Denley with kindness’.36 In Re Grant’s Will Trusts,37 Vinelott J analogised the trust in Re Denley to a discretionary trust, observing that both cases allow a member of the class to compel the trustee to administer the trust. However, this comparison is unconvincing since the latter case gives trustees wholly dispositive discretion as to how each member of the class shall benefit. By contrast, the power of the trustees in Re Denley was merely to make rules governing enjoyment of the land, with no discretion as to which employeeswouldbenefit.Similarly,in Re Lipinski, thecourtheldthatagifttreatedasapurpose

33 Goi Wang Firn (n 31), [26]

34 Goi Wang Firn (n 31), [27]

35 Goi Wang Firn (n 31), [36]

36 Penner, The Law of Trusts (n 30), [7.16]

37 [1980] 1 W.L.R. 360; see also Penner, The Law of Trusts (n 30), [7.13-14]

trust is the same as an absolute gift with a superadded direction, or a gift where the trustees and the beneficiaries are the same persons.38 However, in the latter two situations, the testator’s purpose may be entirely ignored, since a superadded direction merely expresses a motive for the gift, and the trustees and beneficiaries being the same person means they own the property absolutely and may collapse the trust under the rule in Saunders v Vautier. 39 This blatant disregard for the purpose of the purported trust is entirely at odds with the result in Re Denley, where the trustees were obligated to carry out the purpose for the benefit of the factual beneficiaries.

We have yet to see further litigation which would invite a clear endorsement or rejection of Re Denley in Singapore. In the absence of such a decision, and with the observation by Stephen Chong J taken to its logical conclusion, it is manifestly likely that the proprietary construction will reign in Singapore.

5 Why an enforcer is no substitute for the beneficiary

The above discussion raises the natural questions: is there truly a meaningful distinction between the proprietary and enforcement constructions? Why, in principle, can’t an enforcer be appointed who holds the correlative equitable right to the trustee’s duties, who polices the proper administration of the trust? The answer lies primarily in the twofold difference between enforcer and beneficiary: (1) the endless enforcer problem, and (2) the beneficial property ‘vacuum’.

5.1 The endless enforcer problem

38 [1976] Ch 235; see also Penner, The Law of Trusts (n 30), [7.15-16]

39 [1841] EWHC J82, (1841) 4 Beav 115

The first key difference is that rights-holders may, by definition, waive any of their own rights. Otherwise they are not truly unencumbered rights-holders and hold them subject to duties of their own. Therefore ‘the beneficiary, being the beneficial holder of the right [in the trust property], is under no obligation himself to enforce the same’.40 This is why beneficiaries are free to waive their rights to enforce the trustee’s duties – and hence why concurrence of the beneficiary exists as a meaningful defence in an action for a trustee’s breach of trust.41

By contrast, an enforcer is not such a right-holder. His duty to enforce the trustee’s obligations subsists at all times.Yet the existence of that same duty demands a corresponding right, leaving open the question of who has the right to hold the enforcer to account. In effect, the problem of enforcement is endlessly replicated,42 and the enforcer is not an answer, but a mere placeholder that postpones the problem to the next enforcer (and the next, and the next, and…).

Infinite regression to absurdity aside, the ‘final’ enforcer’s duty is effectively unchecked by a corresponding right, making the office of the enforcer much ado about nothing at all.

Two suggestions may be considered at this juncture. The first is to simply specify in the trust deed that the enforcer owes no duties. But the law will probably then regard him as the beneficiary in the traditional sense, defeating the intention behind setting up a purpose trust. This enforcer ‘resembles a beneficiary under a trust [where] the trustee has been conferred a power [(but, notably, not an obligation)] to use the trust property to further a particular purpose’.43 As such, it would not be possible for an enforcer to exist without owing duties.

The second suggestion is for the ‘final’ enforcer not to be a person but a series of sanctions. Admittedly, an enforcer faced with criminal liability for breaches of trust may be compelled to

40 Kelvin Low, ‘Non-charitable purpose trusts’, in Richard Nolan, Kelvin Low & Tang Hang Wu (eds) Trusts and Modern Wealth Management (Cambridge University Press Online, 2018) (‘Low’), 490-491

41 Re Pauling’s Settlement Trusts [1962] 1 WLR 86

42 Low (n 40), 492

43 Ibid

police the trust vigorously, thereby ending the endless enforcer problem. But a fine conceptual distinction exists between being obliged and having an obligation.To borrow from the Hartian account of legal obligation, where a gunman coerces an individual to hand him money, the individual is obliged to hand him the money, but it would be erroneous to say he has an obligation to hand him the money.44 His submission is an impulse that depends on external forces, without any internal source on the part of the individual. In the context of a trust, the beneficiary’s desire to prevent misappropriation of trust property would be characterised as a Hartian obligation, given his internal desire to protect his equitable property. By contrast, an appointed enforcer is merely obliged under the threat of external sanctions to enforce the trustee’s duties. His performance depends entirely on the force behind sanctions. Where these sanctions aretoothless,as theyarein existing statutoryregimes,45 it is unlikelythattheenforcer will be obliged to comply.

5.2 The beneficial property ‘vacuum’

Equally important is the beneficial property vacuum left by the office of the enforcer.46 Unlike the beneficiary of a trust, the enforcer does not become entitled to beneficial enjoyment of the trust property, leaving an open question as to where the full gamut of rights and remedies that ordinary beneficiaries have is held. Take the case of Re Denley, where it is evidently unclear what rights the factual beneficiaries were entitled to under the trust: standing to enforce the trust may be limited to making the trustees carry out the purpose, or include other conventional rights of beneficiaries such as invoking the rule in Saunders v Vautier to require distribution of the trust, or seeking proprietary remedies against third parties if the land is misappropriated. It is deeply unsatisfactorytoleavealacunaas to the otherconventional rights ofthebeneficiaries, which are held by no one.

44 Nigel Simmonds, Central Issues on Jurisprudence (5th edition, Thomson Reuters, 2018), 169

45 Section 6.3 argues that sanctions are essentially ineffectual without a person to identify and report wrongdoings

46 Paul Matthews, ‘From Obligation to Property, and Back Again? The Future of the Non-Charitable Purpose Trust’ in David Hayton (ed.), Extending the Boundaries of Trusts and Similar Ring-Fenced Funds (The Hague; Kluwer Law International, 200), 230. See also Penner, The Law of Trusts (n 30), [7.12]

The vacuum must be even larger where the enforcer is merely appointed and not even a factual beneficiary (as in Re Denley). As argued by Lionel Smith, without any beneficiary to receive the benefits of a trust, a clever settlor creates unowned property.47 Smith borrows John Langbein’s hypothetical48 of a trust of a Rembrandt – if the Rembrandt is placed on trust for beneficiaries, a trust term to burn it (and hence deprive the beneficiaries of it) would be invalid. Heldontrust,theRembrandtisentirelyoutofthehandsofthesettlor,whocannolongerdictate what happens to it. Yet where NCPTs are allowed, a settlor can place property in a NCPT and dictate what happens to it through skilfully drafted purposes, all while relinquishing ownership of the property.As such, Smith argues that NCPTs unacceptably allow one to dictate the use of property without owning it, and can be exploited to deprive a creditor from recourse to their property.

49 It should be no surprise that the abhorrence of unowned property runs through other areas of trust law, including the rule against perpetuities, where property can be kept in trust for only so long before it must once again return to the hands of a straightforward owner.50

6 The enforcement construction writ large: Statutory NCPTs It has been argued that the enforcement construction that supplants the beneficiary with an enforcer is misguided, and comes up against the two principled objections above. Given also that Singapore’s common law is aligned with the proprietary construction of the beneficiary principle, the recognition of NCPTs in Singapore is bound to run up against these objections.

47 Lionel Smith, ‘Give the People What They Want: The Onshoring of the Offshore’(2018) 103 Iowa LRev 2155, 2157 (‘Lionel Smith’)

48 John Langbein, ‘Mandatory Rules in the Law of Trusts’, (2004) 98 NW UL REV 1105, 2170

49 Lionel Smith (n 47), 2158

50 Singapore’s Civil Law Act 1909 s. 32: The perpetuity period ‘shall be 100 years or such shorter period as may be specified in the instrument by which the settlement or disposition is made.’

AnyNCPTstatutoryregimethatweproposeforSingaporemusthencecontendwiththeendless enforcer problem and address abuses of the beneficial property “vacuum” in order to be principally defensible.

In this section, we consider the statutory regimes of two offshore jurisdictions where NCPTs are permissible. In these jurisdictions, the enforcement construction has been implicitly adopted, with the office of the enforcer introduced to hold NCPT trustees to their duties.51 We will demonstrate that in doing so, each regime fails to understand or address the beneficiary principle, thereby reifying the abovementioned problems with the enforcement construction.52 Moreover, describing a duty as fiduciary merely changes its name, but not its substance.

6.1 The Cayman Islands model: an endless (and circular) enforcer problem

The first and most popularly known regime is implemented under the Cayman Islands Special Trusts (Alternative Regime) Law (‘STAR’). Under this regime, only the enforcer appointed by the settlor has locus standi to enforce the trust; beneficiaries do not automatically have locus standi unless they are appointed as enforcers.53 Like many offshore jurisdictions,54 it is mandatory to name an enforcer.

51 See, eg, Cayman Islands’ Special Trusts (Alternative Regime) Law 1997, s 8; Bermuda’s Trusts (Special Provisions) Amendment Act 1998, s 12; The Trusts (Guernsey) Law 2007, s 12; Brunei’s International Trusts Order 2000 (17 July 2000), s 8; Mauritius TrustsAct 2001, s 21

52 As argued in Section 5

53 Cayman Islands’s Special Trusts (Alternative Regime) Law 1997, s 7(1) and s 7(2)

54 See Bahamas Purpose Trusts Act 2004, s 6; Bermuda’s Trusts (Special Provisions) Amendment Act 1998, s 12B(1); British Virgin Island’s Trustee (Amendment)Act 2003, s 84A; Mauritius’s The TrustsAct 2001, s 19(b)

Who checks said enforcer? The answer lies in the statutory scheme developed under the STAR regime. The court may appoint new enforcers to replace ineffective ones upon the trustee’s application, and the knowing failure of a trustee to do so is subject to criminal sanction.55

However, the mandatory appointment of an enforcer and abovementioned checks against the enforcer are poor substitutes for the absent beneficiary. The endless enforcer problem is replicated here: where one enforcer is ineffective, it is replaced by another, and so on.56 In fact, the problem is rendered even more absurd in its circularity– the enforcer checks the trustee, who has the responsibility of replacing an ineffective enforcer. Given that that an errant trustee is hardlylikely to replace anenforcerwhois asleep at thewheel, this system ofchecks becomes rather feeble. In the absence of a competent or reliable enforcer, STAR trusts are clearly susceptible to significant risk of maladministration.

6.2 The Bermuda model: insufficient interest, inadequate notice

The second model for consideration is the Bermuda special purpose trust. Under this model, anyone with sufficient interest, or theAttorney-General, may enforce the purposes (there is no need to appoint a specific enforcer).57 Prima facie, this model creates greater flexibility and hence more opportunities for enforcement than the STAR trust, since actions may be brought by an appointed enforcer, third parties with a sufficient interest, or theAttorney-General.

However, mere flexibility does not mean the problems with the enforcement construction have been addressed. Firstly, a key aspect of having flexible enforcement is not defining ‘sufficient interest’, yet this comes with inherent problems. It is unclear which individuals would have ‘sufficient interest’to enforce the trust and litigation surrounding the issue has not produced a

55 Cayman Islands’s Special Trusts (Alternative Regime) Law 1997 ss 7(4)–7(5)

56 The endless enforcer problem is elaborated upon in Section 5.1

57 Bermuda’s Trusts (Special Provisions)AmendmentAct 1998 s 12B(1)

clear test.58 Not only is this a practical deterrence to potential claimants, cases which proceed to the courts will be bogged down by questions of sufficient interest.

A reliance on the Attorney-General may be enticing, since that is the enforcement mechanism for charitable purpose trusts. However, as observed by Low, the analogy to charitable trusts is more imaginary than real. In a charitable trust, the Attorney-General is aided by the Commissioner of Charities who audits all charities and is spurred on by public pressure to investigate improper charities, both of which are absent in a private trust.59 It is the Commissioner of Charities who brings notice of maladministration to the Attorney-General andcreatestheopportunityforenforcement.Incontrast,itisunclearhowtheAttorney-General, naked and alone, ‘will have notice of any breach of trust or of the need to make an application to the court in respect of any matter connected with the enforcement of the trust’.60 In any case, while the Attorney-General is empowered to bring actions to enforce the purposes, he is not requiredto doso evenifwrongdoing is reportedto him.61 Inthis regard,theprovision is‘poorly drafted and vaguely daft’, akin to ‘confer[ring] locus standi upon the Attorney-General and then rest[ing] all hopes of enforcement upon a Hail Mary prayer’.62 Clearly, the principled problems posed by the beneficiary principle are ill-addressed simply by introducing more potential enforcers.

6.3 Fiduciary duties: in name but not in substance

The next argument in favour of the enforcer that his obligations are more strongly owed because they are fiduciary. However, this can be dismissed outright as yet another duty with no

58 Trustee 1 v Attorney General of Bermuda [2014] CA(Bda) 3 Civ. (15August 2014)

59 Low (n 40), 497

60 Adam Doyle and Matthew Carn, ‘Purpose Trusts’ in David Hayton (ed.), The International Trust, 3rd edn (Bristol: Jordan Publishing Ltd, 2011), pp. 286-287

61 Low (n 40), 507

62 Low (n 40), 508

serious possibility of being complied with. In the Cayman Islands and Guernsey, the enforcer is deemedto havea fiduciaryduty to act responsiblywith regards to theexecutionofthetrust.63 In Mauritius, although there is no express provision, the enforcer is required to refuse any positions which may conflict with his duties to further the purpose of the trust.64 However, as Tey argues, in the absence of a beneficiary, it is unclear (and not answered by any of the statutes) who or what the fiduciary duty is owed to.65 This makes it unclear to enforcers who or what their loyalties are bound to and makes it challenging to identify where a fiduciary duty has been breached. However you slice it, describing a duty as fiduciary (or red, blue, polkadotted and striped) does no more than change its name, but not its substance.

One argument of considerable vintage is that a lattice of safeguards which combine fiduciary duties and criminal sanction would practically deter abuse. Even without a beneficial interest, so goes the argument, these safeguards align the interests of the enforcer with the purpose of the trust. However, the endless enforcer problem reverberates here too– in the absence of a second enforcer, a breach of duty by the first enforcer has no real consequence.66 Consider, by contrast, the paradigm example of a fiduciary duty owed by a director to his company.67 The fiduciary duty comes with the concomitant prospect of enforcement because investors are incentivised to ensure directors act in the best interests of the company, and have the necessary standing to bring actions against errant directors. Where the equivalent mechanism is absent in the NCPT, the imposition of any fiduciary duty lacks substance.

63 Cayman Islands’s Special Trusts (Alternative Regime) Law 1997 s 8(2) and The Trusts (Guernsey) Law 2007 s 12(2)

64 Mauritius Trusts Act 2001 s 21(4)(a)–21(4)(c). Although, not all statutory schemes impose fiduciary duties on enforcers. In Bermuda and Bahamas, the statutes do not elaborate on the duties of an enforcer (See Bahamas’s Purpose TrustsAct 2004 s 6 and Bermuda’s Trusts (Special Provisions)AmendmentAct 1998 s 12)

65 Tsun Hang Tey, ‘The Duties of a Trust Enforcer’(2010) 22 SAcLJ 371

66 This is the result of the endless enforcer problem as argued in Section 5.1

67 Lee Joyce, Yeo Victor and Fernandez Navprakash, Guide to Company Law in Singapore (1st edn, Wolters Kluwer 2022) 129

6.4: The Law Commission’s proposed statutory scheme: more enforcers but not more enforcement

Having dismissed the regimes of offshore jurisdictions, we can finally turn to the statutory scheme proposed by Singapore’s Law Reform Committee. The scheme proposes a list of enforcers, including the Attorney-General and an enforcer appointed by the settlor. Any listed enforcermayinterveneto compelperformanceoftheNCPT.68 TheCommitteedoesnotprovide much support for this approach, only that this provides a wide ‘latitude’for enforcement of the trust.69 The Committee also supports the imposition of duties on enforcers, including fiduciary duties.

70 However, it is clear that the proposed scheme does not entirely cure the ills of the offshore models. We have shown that more enforcers does not mean more enforcement if all the enforcers lack a beneficial interest71 and that the imposition of duties and sanctions do not generate obligations to enforce72 .

In the absence of appropriate statutory schemes, whether offshore or in the Law Reform Committee’s recommendation, the double-barrelled problem of the missing beneficiary remains unsolved.

68 Law Reform Committee Report (n 2), [5.33]: ‘The committee recommends following the model embodied in s.74(11)oftheCanadianUTAwiththelistofenforcersincluding:(a)theAttorney-General,(b)apersonappointed specifically in the trust instrument to enforce the trust, (c) the settlor or his personal representative, (d) a trustee or co-trustee, and (e) a person appearing to the court to have a sufficient interest in the matter.’

69 Ibid, 41

70 Law Reform Committee Report (n 2), 5.35

71 As argued in Section 6.2

72 As argued in Section 6.3

7 NCPTs should be recognised in statute, even if not in the current schemes available

Having considered the principled obstacles to recognising NCPTs, this section turns to more pragmatic considerations.We begin with the simple proposition that when considering whether NCPTs should be valid, adequate weight should also be given to pragmatic concerns.73 Given significant practical benefit, we submit that the search for an appropriate solution to recognise NCPTs is a worthy one. In the final analysis, we propose a statutory solution that satisfies pragmatism and circumvents principle.

7.1: NCPTs are a net gain to Singapore’s economic growth

The economic potential of NCPTs should not be disregarded. NCPTs provide great flexibility for the structuring of trusts as wealth management tools, attracting wealthy settlors to jurisdictions where they are available.74 Notably, NCPTs allow wealthy settlors to run family businesses without the fear of asset fragmentation. In an ordinary trust where shares of the business are held for family members as beneficiaries, members of the family are able to terminate the trust and liquidate the company or force the sale of the shares. This is a common concern for wealthy settlors as second and third generation family members seek to split assets among themselves.75 Without beneficiaries and with the sole purpose of retaining shares, the trustees of a NCPT will keep the business within the family. Members of the family are then free to take on directorships in the business to run it and enhance its long-term value. Hence, NCPTs play a crucial role in wealth management through preventing asset fragmentation.

73 See Yeo and Liu (n 42). See also Lionel Smith, ‘Give the People What They Want? The Onshoring of the Offshore’(2018) 103 Iowa L Rev 2155, 2157–2158

74 Grant Stein, ‘Cayman STAR Trusts: Three Years On’(2000) 7(1) Trusts & Trustees 28, 29

75 Ibid, 59

This would be a timely proposition given the influx of family offices and high net worth individuals into Singapore, chasing low tax rates and political stability.76 Within the next decade, there will be an expected inheritance of more than USD 15 trillion of assets within Asia, the bulk of which will be in high net worth households where assets are often sheltered in trusts.77 Within Asia, Singapore faces stiff competition from Hong Kong, which is introducing residency schemes, tax incentives and even fine art storage facilities in a bid to attract the wealthy.78 The adoption of NCPTs provides an edge in this fight, given Hong Kong’s reluctance to recognise their validity.79

Recognising NCPTs would also be perfectly consistent with Singapore’s innovations to remain relevant in the financial markets. A recent example is the introduction of the Variable Capital Company (‘VCC’) to meet the complex needs of fund managers. VCCs allow a single entity to hold segregated assets, thereby allowing for the ease of establishing separate investment funds without constantly incorporating new funds, and allowing easy redemption of shares without shareholder approval.80 It is argued in some quarters that the statutory recognition of private purpose trusts may not be necessary to achieve these goals. In a widely reported speech, former Chief Justice Chan Sek Keong considered pragmatism poor grounds for drastic changes to the Trustees Act,

76 Dominic Volek et. al, ‘The Henley Private Wealth Migration Report 2024’(Henley & Partners, 18 June 2024) <https://www.henleyglobal.com/publications/henley-private-wealth-migration-report-2024> accessed 10 June 2024

77 ‘Money Relationships Monitor 2022 - Wealth Through the Generations’ (St James Place, 29 Nov 2022) <https://www.sjp.asia/sites/sjp-asia/files/sjpasia/news/reports/SJP_Money_Relationship_Monitor_Singapore.pdf>, accessed 10 June 2024

78 Dylan Loh and Echo Wong, ‘Singapore loses China’s rich to Hong Kong in family office rush’ <https://asia.nikkei.com/Business/Markets/Wealth-Management/Singapore-loses-China-s-rich-to-Hong-Kongin-family-office-rush> accessed 10 June 2024

79 Hiranand v Harilela [2004] 4 HKC 231; [2004] HKCU 1259.

80 Variable Capital Companies Act 2018

particularly in recognising NCPTs. He contested the belief that a more liberal trust regime would bolster the private wealth management industry81, particularly as Singapore courts already recognise and enforce trusts established in more liberal trust jurisdictions.82 Since private bankers and trusts lawyers can establish funds in offshore jurisdictions and seek recognition and enforcement for their clients in Singapore, liberalising trust law will do little for the wealth management industry.83 Combined with the otherwise favourable state of trust law in Singapore, recognising NCPTs is neither ‘necessary nor sufficient’for the expansion of the private wealth management industry.84 By contrast, liberalising trust law introduces the risk of improper and illegal use of funds, threatening Singapore’s reputation as a reliable financial hub that has been hard-earned through ‘over thirty years of conservative, prudent and timely financial policies’.85

Indeed, there appears to be a strong correlation between offshore jurisdictions with the most liberal trusts laws and global perception of their status as hubs for money laundering and terrorism financing.86 If the adoption of NCPTs puts Singapore on the path towards attaining such a reputation, there will be harms not just to the wealth management industry, but also Singapore’s core industries in trade and finance.

81 Chan Sek Keong, ‘Trusts and the Rule of Law in Singapore’(2013) 25 SAcLJ 365 (‘Chan’), 375. See also the support for Chan’s argument in Jeremiah Lau and Kelvin Low, ‘Reforming the Singapore Trust: Pushing or Breaking Boundaries?’ in Ying Khai Liew and Masuyaki Tamaruya (eds.), Asia-Pacific Trusts Law, Volume 3: Boundaries in Context (Hart Publishing, Forthcoming) (‘Lau and Low’)

82 See Sir Cornelius Sean Sullivan v Hill Capital Pte Ltd and Ban Su Mei [2024] SGHC 157, which cited Crociani v Crociani [2014] UKPC 40 at [28]. See also the Hague Convention on the Recognition of Trusts; Brightwell, Lewin on Trusts (Sweet & Maxwell, 20th Ed, 2020), [11–065] (‘Lewin on Trusts’)

83 Chan (n 73), 376

84 Chan (n 73), 375

85 Ibid

86 Sue Grossey, ‘Love all, trust a few’ (2011) Money L.B. 180, 11-13. This correlation is the result of trust laws that protect the privacy of settlors and trustees while lowering restrictions on forming trusts

Nevertheless, this article submits that the pragmatic benefits of recognising NCPTs should not be dismissed. The argument presented by Chan will be dissected in the following three paragraphs.

Firstly, while it is true that offshore jurisdictions are often singled out for their role in illegal and improper movement of funds, they have been able to minimise such occurrences by working closely with global authorities. Driven to stay off the Financial Action Task Force’s (‘FATF’) ‘Non Compliant Country’and ‘Jurisdictions Under Increased Monitoring’lists, these jurisdictions have actively taken steps to comply with global standards for regulating the flow of funds.87 Singapore, as a FATF member, would certainly be able to hold itself to the standards required. Additionally, if Chan’s argument is that NCPTs are subject to lax restrictions and more likely to be used for illicit purposes, onshoring an offshore NCPT will not solve the problem since illicit funds will continue to flow through Singapore. Instead, an ideal approach is to have an onshore NCPT governed by Singapore law, with a trustee as a licensed trust company based in Singapore, with at least part of its assets held in Singapore and part of its purposes related to Singapore.88 This ensures that the Monetary Authority of Singapore (‘MAS’) is able to apply sufficient scrutiny to the administration of NCPTs, preventing and deterring wrongdoing.

89

Secondly, there can be statutory mechanisms for NCPTs which prevent illegal and improper movement of funds. This includes the power to request information and documents, conduct inquiries, impose civil penalties and revoke licences.90 A typical reason trusts and foundations

87 Tey Tsun Hang, ‘Cayman Islands’ wealth industry pressures and responses’ (2011) 17(8) Trusts & Trustees 739

88 As recommended in Law Reform Committee Report (n 2), [5.48]

89 See Trust Companies Regulation 2006 s. 10: The Directors of Trust Companies are accountable to MAS, including on operational and financial policies as well as the duty to keep detailed records for MAS surveillance

90 Bermuda’s Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing) Regulations 2008 Ch3 and Ch4

are ripe for illicit activities is laws guaranteeing anonymity and confidentiality.91 But the same problems surrounding confidentiality do not have to apply to purpose trusts. As it stands, Singapore has robust statutory mechanisms preventing the abuse of charitable purpose trusts, requiring the registration of all charitable purpose trusts and for the trusts to provide for supervision and enforcement by the Attorney-General and Commissioner of Charities.92 Furthermore, Tang argues that the solution to the risks of money laundering is not through restrictive trusts law but through enhancement of regulations such as adopting Common Reporting Standards.93 Hence, Singapore can prevent the abuse of its NCPTs through imposing requirements for transparency and regulatory checks within its statute.

Thirdly, Singapore has undergone a marked shift in its attitude towards the financial markets, from a ‘tough on crime’ stance in the early 1990s to the recent ‘international norm compliance’.94 This suggests that Singapore’s policy has intentionally departed from a focus on prudence and crime prevention at all costs to facilitating the flow of funds, accompanied by global-standard checks. Hence, even if Chan is correct that the recognition of NCPTs introduces new risks, Singapore’s current public policy objective is to mitigate such risks to reap the benefits of an inflow of funds.

It is clear that the risks of introducing a statutory NCPTs regime in Singapore can be mitigated. By contrast, the pragmatic gains are more pronounced than Chan suggests. Admittedly, onshoring offshore funds appears to be the ‘best of both worlds’, since the wealth of the trust is administered in Singapore while the trust itself is domiciled abroad. However, the statutory models of NCPTs in offshore jurisdictions may require or encourage professional trustees to

91 Goran Studen, ‘Swiss foundations caught between compliance, control and complaints’(2023) 29(6) Trusts & Trustees 620–623

92 See Singapore’s CharitiesAct 1994

93 Tang HangWu, ‘FromWaqf,AncestorWorship to the Rise of the GlobalTrust:AHistory of the Use of theTrust as a Vehicle for Wealth Transfer in Singapore’(2018) 103(5) Iowa L Rev 2263, 2291

94 Menon, R.E. (2023), "From crime prevention to norm compliance: anti-money laundering (AML) policy adoption in Singapore from 1989–2021" 26(1) Journal of Money Laundering Control, 69-92

administer funds out of those jurisdictions.95 Trustees and wealth managers also prefer to administer trusts out of the jurisdictions they are domiciled in, for ease of sourcing clients and meeting regulatory requirements.96 Moreover, where the trust is governed by Singapore law, Singapore can attract the human infrastructure surrounding NCPTs, including lawyers, professional trustees and wealth managers. This elevates Singapore’s reputation as a sophisticated global wealth management hub.97 On balance, the pragmatic benefits to recognising NCPTs are undeniable.

7.2: Recognition of NCPTs: in equity or in statute?

Notwithstanding practical benefits, the inquiry is not over. If NCPTs are doctrinally problematic, is having a pragmatic benefit sufficient to justify their recognition? This section argues that practical benefits can only justify a solution in statute, but not in equity.

Admittedly,itwouldnotbethefirsttimethatthelawofequityfavourspragmatismoverdogma, as it had done so in the ever-contentious Quistclose trusts. In the namesake case, money was lent for a particular purpose which became impossible to fulfil following the borrower’s insolvency.Exceptionally,theHouseofLords held thatatrust hadbeenformed,with beneficial interests vesting in the lenders.98 This prevented the money from being dissipated for other purposes, or used to repay the borrower’s other creditors.

95 See Cayman Islands’s Special Trusts (Alternative Regime) Law 1997 s 12 which requires that the trustee is licensed and based in the Cayman Islands

96 John Goldsworth, ‘World Trust Survey 2001: The Governing Law of a Trust’(2001) 7(6) Trusts & Trustees 34

97 Yeo and Liu (n 42) 646

98 Barclays Bank Ltd v Quistclose Investments Ltd [1970]AC 567

In the years that followed, commentary has been starkly polarised. Extrajudicially, Lord Millett has argued that the beneficial interest remained throughout in the lender, though this view is yet to be widely accepted.99 On the contrary, Swadling has argued that the discovery of Quistclose is erroneous because the objects of the trust cannot be identified.100 In a bid to reconcile the contrasting views, academics like Davies and Virgo argue that despite contention over whether the Quistclose trust is doctrinally consistent with the law of equity, the significant pragmatic benefits are sufficient to justify their validity. 101 Firstly, the Quistclose trust ensures that money explicitly intended for a purpose returns to the lender when the purpose can no longer be fulfilled and the lender is not deprived beyond their consent. Secondly, it encourages lending to companies in crisis since lenders know their money can be shielded from other creditors if not used for the agreed purpose, leading to the commercially desirable outcome of fewerinsolvencies.102 ToPawlowskiandGoldby,the‘clearpolicybenefit’ofprotectinglenders can be analogised to the policy benefit of allowing assets to be enforced towards a purpose, justifying the broader acceptance of NCPTs even if they violate the beneficiary principle.

103

Nevertheless, there are clear differences between the nature of the benefits in Quistclose trusts andNCPTs. Quistclose trusts derivefrommanifest injustice: alendershould beableto get their money back if they lent it for a purpose which the money was not used for.104 In contrast, NCPTs are intended to shield assets and manage wealth, and hardly generate the same moral impulse. Moreover, the degree of injustice necessary to create a Quistclose trust is steep. Merely paying money for a purpose is insufficient, the money must be paid on the condition

99 Millett, ‘The Quistclose Trust: Who Can Enforce It?’(1985) 101 LQR 269

100 Swadling, ‘Orthodoxy’in The Quistclose Trust: Critical Essays (ed Swadling) (Oxford; Hart, 2004) pp 38-9

101 Paul Davis and Graham Virgo, ‘Quistclose Trusts’, in Paul Davis and Virgo Graham (ed), Equity and Trusts Text, Cases and Materials (Oxford University Press 2019), 417

102 Ibid

103 Jo Goldby & Mark Pawlowski, ‘English and Offshore Purpose Trusts:AComparative Study’(2005) 11 Trusts & Trustees 8, 13

104 Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164, [68] - [76] (Lord Millett): ‘It is unconscionable for a man to obtain money on terms as to its application and then disregard the terms on which he received it’

that it is used for the specified purpose 105 As the equitable maxim goes, ‘equity will not suffer a wrong without a remedy’. Without said wrong, the intervention of equity is unjustified. As such, it is not entirely defensible for the practical benefits of NCPTs to override the principled objections posed by the beneficiary principle.

However, while it would be inappropriate for the law of equity to recognise NCPTs, it remains open to create a scheme in statute for the recognition of NCPTs, provided as Matthews exhorts ‘we understand what we are doing’.106

7.3: The search for an appropriate statutory solution continues

We applaud the detail to which the SAL’s Law Reform Committee debated the benefits and risks of NCPTs and support their conclusion that recognising their validity is a step in the right direction for Singapore. But, as we have argued above,107 the report misses a critical step in the analysis – that a statutory enforcer, however numerously accompanied by alternative enforcers or sanctions, cannot replace a beneficiary.

The best solution we have is implied by the conclusion of Kelvin Low’s seminal article on NCPTs.108 He suggests that employing a public law official to enforce NCPTs may be viable, but such mechanisms must be ‘serious and substantive’, much unlike the models currently

105 Bieber v Teathers Ltd (In Liquidation) [2012] EWHC 190 (Ch); 14 ITELR 814, [16] - [23], cited at [2012] EWCACiv 1466, [14] (Patten LJ)

106 Matthews (n 12), 19: Purpose trusts are ‘a product, serving a commercial need…[and] there is nothing wrong in any of this, provided that we understand what we are doing’

107 See Section 6.4

108 Low (n 40), 509 This argument is made again in a forthcoming article with Jeremiah Lau in Lau and Low (n 81)

adopted by offshore jurisidictions.109 In this vein, what we propose is the creation of a regulatory authority, similar to the Commissioner of Charities, who is able to audit the records of NCPTs, investigate irregularities and report cases of wrongdoing to theAttorney-General.110 By investing the trust enforcer with a public law dimension, the private law scheme of rights and duties (and its associated host of problems) may be circumvented. The obligation for this regulatory authority to act would be its public law duty to properly regulate the market for NCPTs. Forfuturestatutoryreformers,thisarticlesubmitsthreeconcernsin associatedwiththecreation of this regulatory authority.

Firstly, though this model draws inspiration from the model of enforcement for charitable trusts, the checks for charitable trusts are indubitably more robust. Because charities make their accounting public, it is possible for members of the public, including donors and other nongovernmental organisations, to check them and make reports.111 By contrast, as NCPTs do not have named beneficiaries, the trustees are not accountable to anyone other than the regulator, nor do they have to publicise the accounts of the trust.Arequirement to make their accounting public would defeat the purpose of private trusts as this would divulge sensitive personal information about the families using such trusts. Hence, when implementing an appropriate statutory scheme for checking NCPTs, the reduced avenues of checks compared to charities has to be accounted for.

109 Ibid: The model currently adopted by offshore jurisdictions represent a ‘halfway-incoherent lip service’. See also Section 6.2

110 S 4(1) of the Charities Act 1995: The Commissioner of Charities has the ‘general function of promoting the effective use of charitable resources… by investigating and checking abuses’

111 S19of Charities(InstitutionsofAPublicCharacter)Regulations2008imposesoncharitiesthedutytopublicly disclose activities and financial statements as required by the Commissioner of Charities

Secondly, this mechanism relies on strong funding for the regulator. The Commissioner of Charities is well-funded and able to conduct thorough checks on charities because a misuse of charitable fundsis more troublingto thegovernment thanthe misuseof privatefunds. Charities and their donors receive tax breaks and so funds in charities are in part subsidised by the government, and their misuse would be tantamount to misappropriating public funds.112 By contrast, there is a weaker impetus to prevent the misuse of other private funds, yet the range and scale of NCPTs are likely to surpass that of charitable trusts.113 Hence, the ideal statutory scheme to check NCPTs has to be well-funded and adequately prioritised by the government.

Thirdly, the attractiveness of Singapore’s trusts regime is always relative to other jurisdictions (especially the offshore jurisdictions). The more stringent our regulations, the lower the appeal will to be to settlors. It is important that in Singapore’s pursuit of a robust regulatory regime, we do not drastically raise the costs of incorporating NCPTs or compromise significantly on the privacy of the trusts. Hence, an appropriate statutory solution has to ensure Singapore still has an attractive trusts regime while not compromising on prudence and crime prevention.

To this end, the search for an appropriate statutory solution continues. This article concludes that the best approach lies in an enforcer with public law obligations and whose powers and obligations are balanced against the concerns raised above.

8 Conclusion

112‘Donations and Tax Deductions’ (IRAS, 30 Apr 2024) <https://www.iras.gov.sg/taxes/othertaxes/charities/donations-tax-deductions> accessed 20 June 2024

113 Many models for NCPTs, such as the Cayman Islands STAR trusts, are broad regimes for purpose trusts. This allows a wide range of charitable, non-charitable and mixed purpose trusts to be incorporated under the statutory scheme

While the pragmatic benefits of recognising the validity of NCPTs are clear, the sounding of doctrinal alarms cannot be ignored.114 Until an adequate solution can be raised to address the beneficiary principle, it remains our recommendation that an expansive scheme for NCPTs, whether in statute or in equity, should be approached with caution.

114 See Sections 3 to 6

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Principle and Policy: Reconsidering theApplication of Trusts in Family Property

Alec Chen*

I. Introduction

The decision by the Singapore Court ofAppeal in Chan Yuen Lan v See Fong Mun is generally considered a watershed moment for the law on equity and trusts in Singapore.1 The Court unequivocally refused to follow the House of Lords majority in Stack v Dowden [2007] UKHL 17,2 and set out an alternative framework of analysis to ascertain the beneficial interests in property ownership disputes where parties have contributed unequally to the purchase price.3 The Court clarified the interplay between the resulting trust (‘RT’) and the common intention constructive trust (‘CICT’), holding that the default approach in Singapore reflects Lord Neuberger’s minority approach in Stack. 4 The courts will focus on the direct financial contributions oftheparties undera resulting trust analysis, unlessthereis an express or inferred common intention between the parties as to where the beneficial interest is to lie and to what extent.5 Conversely, the majority in Stack held that the resulting trust is inapplicable in the domestic context because the law has “moved on in response to changing social and economic conditions”,6 and the CICT was established as the default analysis.

This article first sets out the current framework of analysis in England & Wales and in Singapore, noting the key similarities and differences in approach. Thereafter, the article evaluates the doctrinal basis of the resulting and constructive trust. The analysis suggests that whereas the RT is riddled with academic disagreement and conceptual uncertainty, the CICT has a firm conceptual basis rooted in the ability of equity to respond to unconscionability. Finally, the article considers the policy arguments in favour of the twin presumptions analysis adopted in Singapore, and suggests that the benefits of the RT may be overstated and

* LLB Class of 2025, London School of Economics

1 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048.

2 Ibid at [154] – [159].

3 Ibid at [160].

4 Ibid.

5 Rachel Leow, ‘The death of Stack in Singapore’ (2019) 135 LQR 535.

6 Stack v Dowden [2007] UKHL 17 at [60] per Lady Hale.

undermined by the consequences of its arithmetic rigour. The article suggests that the CICT approach is preferable as a matter of principle and as a matter of policy, but warns against the unprincipled jurisprudential development towards imputing common intention.

II. The current approach in England & Wales and in Singapore

It is important to set out the common starting presumptions for both approaches before turning to the point at which the analysis diverges. Where property is shared by legal joint tenants and there is no express declaration of the beneficial interests, the starting point is that ‘equity follows the law’, and the parties are presumed to have an equal beneficial share.7 Where the property is registered in the name of one party only, the other is presumed to have no beneficial interest.8 However, this is where the agreement ends.

As noted above, the Singapore Court of Appeal in Chen Yuen Lan endorsed the resulting trust as the preferred method to ascertain beneficial interests in property disputes. The presumption of resulting trust (‘PRT’) arises where the parties have made direct contributions to the purchase price, and attributes beneficial interest to the parties in proportion to their financial contributions.9 However, indirect and non-financial contributions to the family home cannot change the apportionment of beneficial interests under the resulting trust. For example, payment of household expenses will not suffice even if it enables the other to pay the mortgage,10 and neither will non-financial contributions to the maintenance of the family home.11 The PRT may be rebutted by the counter-presumption of advancement which applies to certain relationships.12 The PRT can also be rebutted by an express or inferred common intention that the beneficial interests were to be held in different proportions to their contributions, in which case the property would be held on a CICT.13 Crucially, VK Rajah JA in Chan Yuen Lan agreed with Lord Neuberger that common intention cannot be imputed even at the quantification stage, contrary to the majority in Stack 14 The process of imputation does

7 Ibid at [54] – [56] per Baroness Hale, at [4] – [5] per Lord Hope, at [14] per Lord Walker and at [109] per Lord Neuberger.

8 Oxley v Hiscock [2004] EWCA Civ 546 at [38] per Chadwick LJ.

9 Stack v Dowden (n 6) at [110] per Lord Neuberger.

10 Gissing v Gissing [1971] AC 886.

11 Burns v Burns [1984] Ch 317.

12 Pettit v Pettit [1970] AC 777.

13 Graham Virgo, The Principles of Equity & Trusts (Oxford: Oxford University Press, 2023) 328.

14 Chan Yuen Lan v See Fong Mun (n 1) at [156] per VK Rajah JA.

not involve proving an actual intent shared by the parties. Instead, imputation involves the attribution of an intention that they might not have shared, but which the court considers they would have had they thought about the allocation of the beneficial interest.15

Conversely, the CICT has been welcomed by the House of Lords and the Supreme Court following the decisions of Stack v Dowden and Jones v Kernott 16 The House of Lords held in Stack thattheCICTdisplaces theresulting trust asthedefault frameworkin addressingdisputes relating to beneficial interests in family homes. Moreover, the parties’ common intention –actual, inferred or imputed – is determined ‘in the light of their whole course of conduct in relation to it’,17 thus departing from the traditional focus on financial contribution. The resulting trust will apply in the commercial context, as Lord Sumption in Prest v Petrodel Resources Ltd implies.18

III. The conceptual basis of RT

This article now turns to consider whether there is any reason in principle why RTs would arise in the context of non-commercial shared property.

The conceptual basis of RTs has been the subject of continuous academic debate in England and Wales and in Singapore, with seemingly “no consensus on the principle by which the resulting trust operates”.19 The leading judicial statement on RT in England & Wales can be found in Westdeutsche Landesbank Girozentrale v Islington London Borough Council, 20 where the House of Lords unanimously endorsed the view that RTs arise on the basis of a presumed intention to create a trust (the ‘positive intention’ analysis).21 The House of Lords explicitly rejected the analysis by Robert Chambers, which the court held to be “avowedly experimental”.22 According to Chambers, RTs arise when the transferor lacks intention to benefit the transferee (the ‘lack of intention’ analysis), with the ultimate objective being to “reverse unjust enrichment”.23 The lack of intention analysis reaches the same conclusion as

15 Virgo (n 13) at 325.

16 Stack v Dowden (n 6); Jones v Kernott [2011] UKSC 53.

17 Stack v Dowden (n 6) at [60] per Lady Hale.

18 Prest v Petrodel Resources Ltd [2013] UKSC 34 at [51] per Lord Sumption.

19 Robert Chambers, Resulting Trusts (Oxford: Oxford University Press, 1997) 1.

20 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669.

21 Ibid at 708 per Lord Browne-Wilkinson.

22 Ibid at 709 per Lord Browne-Wilkinson.

23 Chambers (n 19) at 104.

the positive intention analysis in cases where the transferor intended for property to be held on trust, since the transferor would have no intention for the recipient to receive the beneficial interest of the property transferred.24

Although the Chambers analysis has been rejected by Lord Browne-Wilkinson in Westdeutsche, his analysis does seem to provide a more coherent explanation for cases where the RT was held to arise even though the transferor did not form an intention for the property to be held on trust.25 Moreover, a version of the lack of intention analysis resurfaced in Air Jamaica Ltd v Charlton, 26 where Lord Millett held that RTs can arise even where the transferor does not intend to retain a beneficial interest in the property transferred, and hence even where the transferor intends no trust.27 However, William Swadling distinguishes Air Jamaica on the basis that the trust arose in response to a failed express trust, which is a separate category of RTas recognised in Westdeutsche 28 Nevertheless, regardless of whether Lord Millett is correct on the conceptual basis of the RT or not, his dictum in Air Jamaica in no way qualifies the authority of Westdeutsche, and just goes to show that the conceptual basis of the RT remains unsettled.29 The overall picture that emerges reveals that the English courts have struggled to find a conclusive conceptual understanding of the RT, with no consensus reached as to whether the RT responds to positive intentions or the lack thereof. Luckily, the role of the RT has been significantly diminished following Stack and Jones.

However, the PRT remains the default legal mechanism in the context of non-commercial shared property in Singapore, even though the conceptual basis is equally unclear given the judicial tendency to avoid clarifying the principles underlying RTs. One example is the High Court decision of Chan Gek Yong v Chan Gek Lan, 30 where Woo Bih Li J held that the claimant’s contribution to the purchase price raises the PRTwithout reference to authority from trust law or further discussion on the principle underlying the presumption.31 Moreover, the Court ofAppeal have at times adopted more than one doctrinal basis within a single decision, further adding to the conceptual uncertainty of RTs in Singapore.32 In Cheong Yoke Kuen v

24 Tey Tsun Hang, ‘Resulting Trusts in Singapore’ (2011) 23 SAcLJ 607, 610.

25 See Vandervell v Inland Revenue Commissioners [1967] 2 AC 291.

26 Air Jamaica Ltd v Charlton [1999] 1 WLR 1399.

27 Ibid at 1412 per Lord Millett.

28 William Swadling, ‘Explaining Resulting Trusts’ (2008) 124 LQR 72 at 84; see also Westdeutsche (n 20) at 689 per Lord Goff.

29 Charlie Webb and Tim Akkouh, Trusts Law (London: Palgrave Macmillan, 2017) 188.

30 Chan Gek Yong v Chan Gek Lan [2009] SGHC 20.

31 Ibid at [34] per Woo Bih Li J.

32 Tsun Hang (n 24) at 612.

Cheong Kwok Kiong, 33 Thean JA initially seemed to endorse the lack of intention analysis based on a presumption that the son of the deceased did not intend to make a gift when he provided the purchase money for a HBD apartment.34 A few paragraphs later, Thean JA goes on to suggest that “the court infers an intention to create a trust in favour of a party”,35 leading to the approval of competing presumptions between positive intention to create a trust and lack of intention to make a gift.

While the conceptual basis of RTs has not been fully settled, the emerging jurisprudence seems to suggest that RTs arise from a lack of intention to benefit the recipient of the property.36 Chan Yuen Lan provided the Singapore Court of Appeal with an opportunity to reconsider the question on what the RT responds to. Chan Yuen Lan appears to provide clear judicial support for Chambers’ view of the resulting trust, which VK Rajah JA suggests “may potentially provide a more sensible basis for the principled yet pragmatic development of this equitable doctrine”.37

However, closer analysis reveals that VK Rajah JA never explicitly accepted the second part of Chambers’account that the RT responds to unjust enrichment. This should be welcomed as it avoids the conceptual difficulties of reconciling resulting trusts with the unjust enrichment rationale. Singapore has adopted the ‘unjust factors’ approach to unjust enrichment,38 which requires the claimant to establish an ‘unjust factor’ such as a mistake, failure of consideration and so on, in order to invalidate the transfer and justify the reversal of the defendant’s enrichment.39 However, if the RT arises in response to unjust enrichment, then there is uncertainty as to which unjust factors would apply to unequal contributions towards the purchase price. Etherton LJ, writing extra-judicially, explained that a situation like Stack involves a new unjust factor of “unconscionability”, which Etherton LJ thought ought to be recognised for policy reasons.40 VK Rajah JA swiftly dispensed of that possibility for it “appears to be unduly vague and uncertain”.41 Chambers admits that we might be “struggling

33 Cheong Yoke Kuen v Cheong Kwok Kiong [1999] 1 SLR(R) 1126.

34 Ibid at [12] per Thean JA.

35 Ibid at [17] per Thean JA.

36 Moh Tai Siang v Moh Tai Tong and another [2018] SGHC 280 at [72] per Aedit Abdullah J.

37 Ibid at [44] per VK Rajah JA.

38 Esben Finance Ltd v Wong Hou‐Lianq Neil [2022] SGCA(I) 1.

39 Chris D.L. Hunt, ‘Unjust Enrichment Understood as Absence of Basis: a Critical Evaluation with Lessons from Canada’ (2009) Oxford U Comparative L Forum 6 at ouclf.law.ox.ac.uk.

40 Sir Terence Etherton, ‘Constructive trusts: a new model for equity and unjust enrichment’ [2008] 67(2) CLJ 265, 280.

41 Chan Yuen Lan (n 1) at [150] per VK Rajah JA.

in vain” to fit the resulting trust within the recognised list of unjust factors.42 Perhaps it is for this reason that Chan Yuen Lan accepts Chambers’analysis only as to when RTs arise (lack of intention to benefit the transferee), but not as to why they arise (reverse unjust enrichment). This approach seems to adopt a similar line of reasoning to Lord Millett’s dictum in Air Jamaica, which relies on Chambers’ lack of intention account without accepting the unjust enrichment rationale.

An issue of contention is that if there is no unjust enrichment rationale, then the nexus between the absence of intention to benefit the transferee and the justification for an equitable response might be missing. Rachel Leow and Timothy Liau suggest the equitable response may simply be justified on the basis that one retains what one fails to give away, though that suggestion has not been considered judicially.43 It is submitted that the Singaporean courts should engage in a more detailed discussion on why they prefer the absence of intention approach rather than the positive intention analysis, especially given that both approaches would reach the same conclusion in the context of unequal contributions to purchase price.

Overall, the foregoing analysis suggests that the nature of the resulting trust remains conceptually uncertain and controversial, with various competing accounts in both England & Wales and in Singapore. Neither the English positive intention analysis nor the Singaporean absence of intention analysis provides a solid conceptual foundation for why the resulting trust arises, and thus there is weak doctrinal support for its imposition to determine the beneficial interests in non-commercial shared property.

IV. The conceptual basis of the CICT

This article now turns to consider whether there is any reason in principle why the CICTwould arise in the context of non-commercial shared property.

The CICT is conceptually rooted in the ability of equity to respond to unconscionability in a broad sense. Unconscionability in the CICT context is derived from the claimant’s detrimental reliance on an agreement or common intention which promised an interest or enlarged interest

42 Robert Chambers, ‘Is There a Presumption of Resulting Trust?’ in Charles Mitchell (Ed.), Constructive and Resulting Trusts (Hart Publishing, 2010) 287.

43 Rachel Leow and Timothy Liau, ‘Resulting trusts: A Victory for Unjust Enrichment?’ [2014] 73(3) CLJ 500, 502.

in the property that has subsequently been retracted.44 The unconscionability of detrimental reliance on common intention enables the agreement or promise to be enforced in equity.45

This conceptual basis of the CICT has been accepted by both English and Singaporean courts. In Hudson v Hathway, Lewison LJ held that the English law on equity responds to circumstances where the application of the common law would produce an unconscionable result.46 Similarly, in Zaiton Binte Adom v Nafsiah Bte Wagiman, the High Court of Singapore held that unconscionability is a necessary condition for a constructive trust to arise, and that the CICT specifically is an equitable response to detrimental reliance on common intention.47

However, closer analysis reveals that though the conceptual foundations of the CICTare firmly rooted in principles of equity, the jurisprudential development has significantly weakened the unconscionability thatequityresponds to, andthesedevelopments rest onuntenableconceptual foundations. The article now proceeds to examine the two requirements of detrimental reliance and common intention in turn.

Detrimental reliance:

Although detrimental reliance forms an indispensable part of unconscionability, requiring genuine detrimental reliance would be particularly problematic in the context of trusts for the family home. The financial and non-financial contributions that people make towards family life are made with the intention of sustaining the relationship rather than for beneficial interests in the property upon the breakdown of the relationship. Therefore, the detrimental reliance requirement will almost never be satisfied if the court applied it strictly, leaving most unregistered cohabitants without any beneficial interest. The courts have since watered down the requirement such that there is no need to show ‘genuine’detrimental reliance, and it can be inferred in certain instances where financial contributions have been made. One illustrative example is the approach taken by the Court ofAppeal in Grant v Edwards 48 Edwards bought a house for himself and his partner Grant, but Grant was not included in the conveyance as Edwards convinced her that it might prejudice her in divorce proceedings. Nourse LJ inferred

44 Virgo (n 13) at 319

45 Ibid.

46 Hudson v Hathway [2022] EWCA Civ 1648 at [72] per Lewison LJ.

47 Zaiton Binte Adom v Nafsiah Bte Wagiman [2022] SGHC 189 at [104] – [119] per Debbie Ong Siew Ling JAD.

48 Grant v Edwards [1986] Ch 638.

that Grant made substantial contributions to the mortgage payments by her contributions towards housekeeping and raising the children, given that these actions assisted Edwards in making the mortgage payments. These indirect contributions were also treated as evidence of detrimental reliance, even though Grant most likely made them with the intention of maintaining the home she shared with Edwards and with nothing else in mind. However, if detrimental reliance is merely a concept that makes little substantive difference, the unconscionability of the parties’ conduct that justifies the equitable intervention of the constructive trust becomes less obvious, which may undermine the doctrinal support for the CICT.

Common intention and imputation:

The common intention aspect of unconscionability has also been affected by the jurisprudence developing in England & Wales, which has recognised the possibility of imputing intention to the parties concerning the quantification of their beneficial interest.The common intention was described by Lady Hale in Stack as being 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”.49 In Jones, Lord Kerr and LordWilson both thought that it would be preferable to deal with the quantification issue on the basis of imputation where it was not possible to infer that the parties had an actual common intention.

50

However,imputinganintentionwhichdoes not exist shouldbeconsidered incorrect as amatter of authority and as a matter of principle.51 As a matter of authority, the imputation of intention is inconsistent with earlier decisions of the House of Lords, which have held that the court should only be concerned with identifying actual or inferred common intention.52 As a matter of principle, imputing common intention weakens the integrity of unconscionability that equity responds to.The courts are attributing to the parties a common intention that they may not have shared, departure from which may be difficult to consider truly unconscionable.After all, how can someone renege on an agreement they never made?

The exercise of imputation could also be very difficult in practice and allow the courts to reach unrealistic and fictive assessments on the beneficial shares, as the English case of Aspden v

49 Stack v Dowden (n 6) at [60] per Lady Hale.

50 Jones v Kernott (n 16) at [72] per Lord Kerr, at [84] per Lord Wilson.

51 Stack v Dowden (n 6) at [144] per Lord Neuberger.

52 Pettitt v Pettitt (n 12); Gissing v Gissing (n 10) at 898 per Lord Morris, at 900 per Viscount Dilhorne and at 904 per Lord Diplock.

Elvy demonstrates.53 Mr Aspden claimed a beneficial share in the barn that he transferred to Ms Elvy following their separation on the basis that he had contributed substantially to its renovation and thereby increased the value of the property. However, there were no express discussions between the parties, and the only available evidence was the current valuation of the barn and MrAspden’s financial contributions.At the quantification stage, Behrens J had to impute an intention to arrive at the assessment of 25 percent interest in favour of Mr Aspden, a result that he admitted to being “somewhat arbitrary”.54

However, some commentators support imputation on the basis that it is always a residual option, available only when there is an express or inferred common intention to depart from equal beneficial shares but the precise shares that the parties’intended cannot be identified by the court.55 The possibility to impute an intention at the quantification stage offers the courts the ability to adopt a reasonable solution that takes into consideration the domestic context and the available evidence in a flexible manner.56 Nevertheless, the courts engage perhaps too readily in the controversial process of imputing fair shares, which is perhaps attributable to the fact that the precise distinctions between express, inferred and imputed intentions remain exceedinglydifficult to apply in practice.57 Inmany cases, it will bedifficult to showanexpress or inferred common intention between the parties, because discussion or thought about the beneficial ownership upon the dissolution of the relationship is almost a contradiction for couples intending to maintain a serious relationship.58

Remedial constructive trust:

Moreover, imputing common intention undermines the English position against remedial constructive trusts. The leading modern judicial statement on the distinction between institutional constructive trust (‘ICT’) and remedial constructive trust (‘RCT’) comes from Lord Browne-Wilkinson in Westdeutsche According to Lord Browne-Wilkinson, institutional trusts arise as a result of the application of rules of law, whereas the existence of remedial trusts depend upon the exercise of judicial discretion.59 Another difference is that institutional trusts

53 Aspden v Elvy [2012] EWHC 1387 (Ch).

54 Ibid at [128] per Behrens J.

55 Andrew Hayward, ‘Common Intention Constructive Trusts and the Role of Imputation in Theory and Practice’ (2016) 80(3) Conveyancer and Property Lawyer 233.

56 Ibid at 242.

57 Ibid.

58 Midland Bank v Cooke [1995] 4 All ER 562 at 575 per Waite LJ.

59 Westdeutsche (n 20) at 714 – 715 per Lord Browne-Wilkinson.

60

arise automatically once all the necessary facts are present, and the court merely has to confirm their existence, whereas remedial constructive trusts will arise and take effect when the court orders.

In Angove’s Pty Ltd v Bailey, the UK Supreme Court has emphasised that English law “has recognised only the institutional constructive trust” and does not recognise the remedial constructive trust because English law is generally averse to the discretionary adjustment of property rights.61 However, the acceptance of the CICT based on imputation of common intention effectively allows courts to redistribute property rights based on judicial discretion, which undermines the refusal to recognise RCTs. The process of imputation could reduce the evidence of common intention into a determination of the beneficial interest that the court considers to be fair, which would be inconsistent with a rule-based determination of unconscionability.62 As Etherton observes, “there is now a hair’s breadth between the [common intention constructive trust] … and a remedial constructive trust”.63 The preferable view is that an imputed intention cannot be justified as a matter of authority or as a matter of principle, and should therefore be rejected.

It is rather ironic that Singapore, which has been receptive to the remedial constructive trust, refuses to entertain discretionary remedialism when it comes to adjudications on property disputes, even more so than England &Wales.64 The RCThas already been used in commercial cases involving mistaken payments made to companies,65 and the courts in Singapore have left the door open for recognising the trust in the commercial sphere.66 Yet in the realm of family homes and property acquired by cohabiting couples, the decision in Chan Yuen Lan that common intention cannot be imputed even at the quantification stage strengthens the commitment in Singapore to facilitate the clear and principled development of property rights.67

Nevertheless, both Singapore and England & Wales have come to accept unconscionability as the conceptual basis of the CICT, which indeed means that its imposition in the analysis of

60 Ibid.

61 Angove’s Pty Ltd v Bailey [2016] UKSC 47 at [27] per Lord Sumption.

62 Virgo (n 13) 325.

63 Etherton (n 40) 125.

64 Man Yip, ‘Singapore: remedialism and remedial constructive trust’ (2014) 20(4) Trusts & Trustees 373, 382.

65 Comboni Vincenzo v Shankar's Emporium (Pte) Ltd [2007] 2 SLR(R) 1020.

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

67 Chan Yuen Lan v See Fong Mun (n 1) at [156] per VK Rajah JA.

beneficial interests in property disputes can be justified as a matter of principle. This aspect is missing from the resulting trust analysis. The foregoing analysis warns against developments in the English courts towards the watering down of detrimental reliance and imputing common intention, for these developments rest on unstable doctrinal foundations.

V. Policy arguments

Notwithstanding the conceptual uncertainty of the RT, perhaps there are policy reasons to endorse its imposition in property disputes. The final section of this article will critically evaluate the advantages and disadvantages of either approach to suggest that the advantages of the RT analysis are overstated in light of its consequences.

The Singaporean family context:

Yip Man argues that the RT analysis reflects the contemporary socio-economic and cultural conditions of Singaporean society, and thus serves as the more appropriate default approach for Singapore.68 The typical case that arises in Singapore does not concern family members who have contributed financially or non-financially to a shared home, but rather informal family agreements often formed between multiple generations concerning how parents provide for their adult children or disputes between siblings.69 For instance, in Lau Siew Kim, though the relationship considered was that between a married couple, the dispute was driven by the deceased wife’s estranged son claiming an interest in the property, and the Court of Appeal exercised restraint in its assessment in light of the underlying vertical family relational dynamics.70 Similarly, in Chan Yuen Lan, both the husband and wife were in their eighties at the time of trial, and the ‘real’ dispute was the contest between their two sons over family property. Thus, the English RT approach has been subtly adapted to suit the contours of the Singaporean context that rarely encounters the socio-family issues that the English courts grappled with. Nevertheless, even if Yip’s argument is persuasive, Singapore would still encounter disputes between cohabiting couples in horizontal relationships, and in these

68 Man Yip, ‘Resulting and constructive trusts in the contemporary Singaporean family context’ (2022) 2 AsiaPacific Trusts Law: Adaptation in Context 15, 32.

69 Ibid at 16.

70 Lau Siew Kim v Yeo Guan Chye Terence [2008] 2 SLR(R) 108.

circumstances, the courts should not continue with the RT analysis, and instead consider a separate analysis as English courts have done with the CICT for the domestic context.

Resulting trust advantages identified in Chan Yuen Lan:

In Chan Yuen Lan, VK Rajah JA identified five reasons to prefer Lord Neuberger’s RT approach in Stack over the CICT approach. First, the approach provides “pragmatic and clear guidance” on when resulting and common intention constructive trusts arise.71 Second, the approach removes the distinction between the domestic and commercial contexts, which ensures better consistency of results.72 Third, the approach prevents the court from imputing the common intention of the parties in relation to the quantification of their respective shares of the beneficial interest in the property concerned.73 Fourth, the removal of the distinction between the domestic and commercial context means that either trust analysis can become relevant in any situation.74 VK Rajah JA saw this as a welcome development of the law since there is no reason why a presumed resulting trust in the commercial context cannot be rebutted by the common intention of the parties.75 Fifth, the approach is consistent with Chambers’lack of intention analysis.76

Although the approach might be perceived as ‘unfair’ in certain cases, VK Rajah JA submits that “determining each party’s share of the beneficial interest in the property in a principled and fairly predictable manner” is the court’s priority.77 The CICT approach can be seen as the court effecting “palm tree justice in an unprincipled and arbitrary manner”.78 VK Rajah JAthus embraces the value of certainty, clarity and coherence in property rights over the need to secure fair and equitable outcomes.

Avoid costly litigation:

VK Rajah JAsuggests that greater clarity on when resulting and constructive trusts arise would facilitate informed negotiations after the breakdown of the relationship, which in turn prevents

71 Chan Yuen Lan v See Fong Mun (n 1) at [154].

72 Ibid at [155].

73 Ibid at [156].

74 Paul S Davies and Graham Virgo, Equity & Trusts: Text, Cases and Materials (Oxford: Oxford University Press, 2013), 447.

75 Chan Yuen Lan v See Fong Mun (n 1) at [157].

76 Ibid at [158].

77 Ibid at [159].

78 Ibid.

unnecessary and costly litigation.79 Conversely, the approach by the majority in Stack is seen to encourage litigation because of the large degree of subjectivity and uncertainty that the decision introduced into the realm of domestic property disputes.80 Specifically, Lady Hale alludedto anon-exhaustivelist ofcontextual factorsthatcanbetakenintoconsideration,which appears more promising for the claimant.81

However, Lady Hale emphasised in Stack that there is a strong presumption that registered coowners are also equal beneficial owners, and that it “will be very unusual” for one party to establish a greater beneficial interest in the property than the other.82 Therefore, a full examination of the facts is likely to involve “disproportionate costs” and disincentivise claimants from bringing claims unless they are confident that they can meet the heavy burden to rebut the presumption.83 The strong presumption may also disincentivise claims that seek only to establish a marginal difference in the beneficial interest in the property from the presumption of equal shares (e.g., claims for beneficial interests of 60 percent). In fact, the RT approach might actually encourage litigation given that the trust arises once there are unequal contributions to purchase price, which is a much lower evidential threshold than the one to establish a CICT. Therefore, in the absence of empirical evidence, we cannot assume that the RT analysis confers the benefit of avoiding litigation.

Commercial and domestic context:

The approach endorsed by VK Rajah JA in Chan Yuen Lan advocates for the indiscriminate application of RT analysis in both the domestic and commercial context, which may avoid the difficulty of maintaining a clear-cut distinction between the two.84 However, the advantage of removing the distinction between the contexts may be overstated and disproportionate in light of the consequences for its removal. The distinction between the commercial and domestic context is not as arbitrary as VK Rajah JA believes it to be. The domestic context is characterised by much more informality compared to the commercial context. Couples in a serious relationship will not often think about how the beneficial interests in the property

79 Ibid at [154].

80 Ibid at [136].

81 Stack v Dowden (n 6) at [69] per Lady Hale.

82 Ibid at [69] per Lady Hale.

83 Ibid at [68] per Lady Hale.

84 Alexander Georgiou, ‘Marr v Collie: The Ballooning of the Common Intention Constructive Trust’ (2019) 82(1) MLR 129, 158.

should be allocated, and may make financial and non-financial contributions without a great deal of forethought or careful planning and precision.85

In contrast, commercial parties deal with each other at arm’s length and can be reasonably expected to be more prudent and cautious when conducting their affairs.86 The RT would be more suitable for the commercial context, where it is reasonable to expect that financial contributions cover the extent of a commercial relationship. The emphasis on financial contributions andthe ‘solid tug ofmoney’generates prejudice towards womenseeking to claim a beneficial interest in the family home, insofar as women statistically earn less compared to men.87 Moreover, the woman bears the burden to prove the presumption of advancement and its strength, which can be a daunting and complex task.88 Although the line between the domestic and commercial context may be hard to draw at times, the overall weight of the analysis still favours maintaining the distinction and rejecting the RT analysis in the noncommercial shared property context.

Presumption ofAdvancement:

One often overlooked aspect when evaluating the PRT is the counter-presumption of advancement (‘POA’). The POA traditionally presumes that a purchaser or transferor of property intended to transfer the beneficial interest to the recipient in certain relationships.89 The POA applies has been recognised to apply where the recipient is the male purchaser or transferor’s wife,90 fiancée or child;91 or if the purchaser or transferor stands in loco parentis totherecipient.92 ThecontinuedapplicationofthePOArevealsfurtherconceptualandpractical difficulties with the twin presumptions under the RT analysis.

The Singapore courts have offered differing and competing rationales for triggering the presumption, which unsettles the conceptual basis of the presumption. In Low Gim Siah v Low

85 Leow (n 5) 540.

86 Ibid.

87 Nick Piska, ‘Intention, Fairness and the Presumption of Resulting Trust after Stack v Dowden’ (2008) 71 (1) MLR 114, 131.

88 Ruth Yeo, ‘The Presumptions of Resulting Trust and Advancement in Singapore: Unfairness to the woman?’ (2010) 24(2) International Journal of Law, Policy and the Family 123.

89 Alysia Blackham, ‘The presumption of advancement: a lingering shadow in UK Law?’ (2015) 21(7) Trusts & Trustees 786, 801.

90 Pettitt v Pettitt (n 12); Lee Kuan Yew v Tang Liang Hong and Another and Other Actions [1997] 2 SLR(R) 862; Teo Siew Har v Lee Kuan Yew [1999] 3 SLR(R) 410.

91 Low Gim Siah v Low Geok Khim [2007] 1 SLR(R) 795.

92 Pettitt v Pettitt (n 12).

Geok Khim, 93 the Singapore Court ofAppeal held that the presumption is premised on a moral or equitable duty to provide for another, which reflects the early judicial statements on the POA.94 However, later on in Lau Siew Kim, the Court ofAppeal held that the POA applies to certain recognised categories of relationships.95 The court should not treat the dependency relationship and the moral obligation to care for another as interchangeable rationales, as certain categories of relationships may give rise to weaker moral obligations to provide. For example, the strength of the presumption would presumably be weaker when the child is an adult as opposed to when the child is still a minor.96 Categories of relationships are fixed, whereas moral obligation to care is a matter of degree.

The POA has also been criticised as an outmoded concept based on outdated assumptions because it arbitrarily distinguishes between different types of relationships.97 For example, the presumption does not apply where property has been transferred to a mistress,98 or where a wife purchases property for her husband.99 Although the POA may have at one point been justified as reflecting societal norms and expectations particularly for the nuclear family, contemporary relationships such as unmarried cohabitation means that the POA has become increasingly difficult to defend, especially in light of its discriminatory effect as between men and women. In England & Wales, the House of Lords has de-emphasised the importance of the POA, and it is no longer appropriate for determining property disputes.100 It is perhaps time for Singapore to follow suit.

VI. Conclusion

Chan Yuen Lan provided the Singapore Court of Appeal with the opportunity to reconsider its approach towards ascertaining beneficial interests in property disputes. The Court rejected the chance to move towards the alternative framework in England & Wales that introduced the CICT as the default tool of analysis. The CICT indeed rests on conceptual foundations that are

93 Low Gim Siah v Low Geok Khim (n 90).

94 See Bennet v Bennet (1879) 10 Ch D 474 at 476.

95 Lau Siew Kim v Yeo Guan Chye Terence (n 70) at [77].

96 Jonathan Muk, ‘Proposed improvements to the division of the parties' beneficial interests beyond the Women's Charter: Chan Yuen Lan v See Fong Mun’ (2015) 27 SAcLJ 256.

97 Ibid.

98 Lowson v Coombes [1999] Ch 373.

99 Heseltine v Heseltine [1971] 1 WLR 342.

100 Stack v Dowden (n 6) at [16] per Lord Hope.

supported by principles of equity, although the courts are warned against the imputation of common intention.

By contrast, the conceptual basis of the RT remains as clear as mud, and provides the courts with no reason in principle as to why they arise in the domestic context. The suggestion that there are convincing policy reasons to support the RT analysis must also be rejected, as there are major flaws with the twin presumptions approach that arguably no longer reflect contemporary societal norms and expectations when it comes to family property. Looking forward, should the Singaporean courts wish to maintain the RT analysis, the courts should engage with the discussion on the conceptual basis of the RT, and more importantly, identify more persuasive reasons for why such analysis should prevail over the fairness achieved by the common intention constructive trust.

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OneSEPPForward,TwoStepsBack?

ChartingthePotentialImpactsoftheNewSchemeofSentences forEnhancedPublicProtection

WongJunXiang*andJabezTengZhiXian**

I. Introduction

On 10 January 2024, Singapore’s Minister for Law and Home Affairs K Shanmugam introducedtheCriminalProcedure(MiscellaneousAmendments)BillinParliamentforitsFirst Reading.Itspurposewas“(A)protectingthepublicbystrengtheningourleverstotacklecrime, includingserioussexualcrime,and(B)enhancingtransparency,fairnessandcoherenceinour criminalcourtprocesses.”1 ItreceivedPresidentialassenton22February2024,astheCriminal Procedure(MiscellaneousAmendments)Act2024(hereafter,theCPMAA2024).2

InfocuswithinthisarticlewillbethenewschemeofSentencesforEnhancedPublicProtection (SEPPs), which allow for continued detention of certain offenders considered to be “dangerous” after the expiry of a minimum term set by the courts until the offender is found suitableforrelease.Ontheotherhand,iffoundsuitableforreleaseattheendoftheminimum term, the offender would be released on licence first, and then subsequently unconditionally discharged, if appropriate.3 The government sought to limit the scope of the SEPPscheme by promising regular reviews forprisoners undergoing aSEPP, as well as by allowing thecourts

*HughesHall,UniversityofCambridge,BA(Hons)inLawClassof2026

**YongPungHowSchoolofLaw,SingaporeManagementUniversity,LLBClassof2027

1 ‘Criminal Procedure (MiscellaneousAmendments) Bill 2024’(Ministry of Law Singapore, 10 January 2024) <https://www.mlaw.gov.sg/news/press-releases/criminal-procedure-miscellaneous-amendments-bill-2024/> accessed19June2024

2 CriminalProcedure(MiscellaneousAmendments)Act2024(“CPMAA2024”)(SG)

3 CPMAA2024(n2)s36

to decide if a SEPP would be appropriate after considering risk assessment reports for experts, including mental health experts from the Institute of Mental Health (IMH).4

The recency of the amendment, and that it had not become operational at the time of writing, mean a lack of precedent for this regime. Nevertheless, a comparable approach has been taken in the United Kingdom to which the Singaporean scheme bears considerable similarity. This was Imprisonment for Public Protection (IPP), introduced in the Criminal Justice Act (CJA) 2003,5 likewise predicated on indeterminate detention of potentially dangerous offenders. The twoschemesstand detachedin terms of time,andtheEnglish approachwas long sincerepealed bytheLegalAid,Sentencing andPunishmentofOffendersAct 2012,6 but theEnglish approach is highly similar in form and function, and it is useful to compare its impacts as well as the reasons for its repeal to chart the potential dangers in the path of the new SEPP scheme.

We will consider the recently introduced SEPPscheme per the CPMAA2024, contained within s 304B of the amended Criminal Procedure Code (CPC) 2010.7 We shall compare this to the former English approach to the same problem of dangerous offending; namely the former system of Imprisonment for Public Protection governed by s 225 of the CJA 2003,8 similar in many ways to the SEPP.We shall consider whether there are lessons to be learned by Singapore in the implementation of its new policy, based on the past and present experiences faced by the UK in their implementation of the IPP scheme. This would entail considering the difficulties faced by the British Government over the 7 years of the IPP scheme’s operation from 2005 to 2012, as well as the reasons raised for its repeal, and examining whether they apply to the Singaporean context, as well as what could possibly be done to mitigate them if the SEPP scheme is not to go the way of its English counterpart. In doing so, we shall attempt to forecast

4 ‘Criminal Procedure (MiscellaneousAmendments) Bill 2024’(n 1).

5 Criminal JusticeAct 2003 (“CJA2003”) s 225 (UK)

6 LegalAid, Sentencing and Punishment of OffendersAct 2012, s 123 (UK)

7 CPMAA2024 (n 2) s 36

8 CJA2003 (n 5) s 225

the SEPP’s future by looking at the way it may be received and developed in Singaporean law, with reference to the criticisms and developments of the English IPP.

II. The Problem: Dangerous Offenders

For a sentencing judge, fitting the sentence to the crime involves a balancing exercise between the different priorities of criminal sentencing; namely, retribution, deterrence, prevention, and rehabilitation.9

Firstly, a sentence is meant to be punitive, taking into account the damage done to the victim and to society as a whole, and actively punishing the accused for his morally culpable behaviour. Lawton LJ held that “society, through the courts, must show its abhorrence of particular types of crime” through the passing of sentences by courts.10 Such retribution should be proportionate to, and thereby reflect, the severity of the offence.11

Secondly, the criminal sentence fulfils a deterrent role. Most criminals would not wish to be subjected to criminal punishment, or to otherwise have their normal lives interfered with by the law. The sentiment of self-preservation is what motivates citizens to live their lives on the right side of the law. This is especially so in Singapore, where it is commonly accepted that the criminal justice system follows a crime control model that prioritises the deterrence of crime

9 R v Sargeant (James Henry) (1974) 60 Cr App R 74; Kasiviswanathan Shanmugam, ‘Ministerial Statement on the Review of Sentencing Framework for Sexual and Hurt Offences - Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law’ (Parliamentary speech, Singapore, 5 March 2021) <https://www.mha.gov.sg/mediaroom/parliamentary/ministerial-statement-on-the-review-of-sentencingframework-for-sexual-and-hurt-offences-speech-by-mr-k-shanmugam-minister-for-home-affairs-and-ministerfor-law> accessed 18 June 2024

10 Sargeant (n 9)

11 Sargeant (n 9)

through the use of relatively harsher punishments.12 Severe penalties may also serve to deter other people in wider society from committing the same offence. This is most effective when the crime is premeditated, but of little value when the crime is committed “on the spur of the moment” due to some lapse in control.13

Prevention is a priority when an offender is deemed incapable of deterrence from future offending, or of rehabilitation, due to a high rate of recidivism.14 This goal may lead a court to opt to impose longer sentences on such an offender for the purposes of protecting the public.15 This aim has been of particular importance to the introduction of schemes of indefinite imprisonmentforespecially“dangerous”offendersuntiltheynolongerposeariskto thepublic by the governments of Singapore and the UK.

Finally, but certainly not least, the criminal sentence may allow the accused persons to undergo a process by which they are able to leave behind their criminal past, as far as they are able to. Rehabilitation can take the form of courses targeted at inmates, or consultations with staff providing therapeutic services, allowing offenders to directly address their errant behaviour. The ultimate goal, of course, is to effect a change in the character of the imprisoned criminal, so that he may be reformed into a productive member of society.

In both the British and Singaporean legal systems, it is for a sentencing judge to weigh the four core priorities of sentencing and determine which of them is of most importance in the case with which he is dealing.16 For instance, in cases involving young offenders, rehabilitation is

12 Keith Jieren Thirumaran, ‘The Evolution of the Singapore Criminal Justice Process’, (2019) 31 SAcLJ 1042

13 Sargeant (n 9)

14 Sargeant (n 9)

15 Sargeant (n 9)

16 Sargeant (n 9); PP v Tan Fook Sum [1999] 2 SLR 523 [15] (“Tan Fook Sum”)

the predominant consideration of the sentencing judge in Singapore,17 unless it is displaced as the primary consideration by deterrence due to the circumstances of the case.18 Meanwhile, in another case where the accused “played a pivotal role in a sophisticated foreign syndicate” that perpetrated “fraud on a massive scale”, V K Rajah J deemed that the principles of deterrence and retribution would instead be the primary considerations of sentencing.19

However, there invariably arise individuals who are not amenable to deterrence or rehabilitation, and the “dangerous” character of such offenders may not be mitigable by normal sentences of imprisonment. These offenders may well merit a different approach, where prevention becomes the main priority. One solution that Singapore will adopt in the near future is to keep the accused “in” until a responsible body can be convinced of their fitness to be released back into society without posing a threat to good order and other citizens’safety: the newly introduced Sentence for Enhanced Public Protection.

III. The current Singaporean approach

3.1 TheAmendments

On 10 January 2024, the CPMAA was introduced20 and brought with it the programme of Sentencing for Enhanced Public Protection (SEPP), with the addition of a new s 304B to the CPC 2010.21 Its effect is to grant the option to impose sentences of indeterminate length with a minimum duration, subject to termination only when a responsible body is assured of the accused’s rehabilitation. In other words, the length of the imprisonment would not be any

17 PP v MohammadAl-Ansari bin Basri [2007] SGHC 187 [28], [77]-[78] (“Al-Ansari”)

18 Al-Ansari (n 17) [77]; PP v Koh Wen Jie Boaz [2015] SGHC 277, [2016] 1 SLR 334 [30]

19 PP v Law Aik Meng [2007] SGHC 33, [2007] 2 SLR 814 [17]

20 ‘Criminal Procedure (MiscellaneousAmendments) Bill 2024’(n 1).

21 CPMAA2024 (n 2) s 36; Criminal Procedure Code 2010 (“CPC 2010”) s 304B (SG)

determinate length of time, and would be subject to the approval of the Ministry of Home Affairs.22 The new s 304B of the CPC further sets out the requirements for the imposition of such a sentence. The offender must be above 21 years of age (ss 304B(2)(a)(ii) and 304B(2)(b)(ii)),23 been previously convicted of two or more specified serious offences in the new Seventh Schedule of the CPC 2010 ever since 16 years of age (s 304B(2)(a)),24 or pose “a substantial threat of causing serious physical or sexual harm to any other person or persons” (s 304B(2)(b)).25 The present offence committed must also be one that falls within the new Seventh Schedule to the CPC 2010 (ss 304(b)(2)(a)-(b)).26

Before sentencing, the sentencing judge may consider reports on the offender’s risk of serious physical or sexual harm to others submitted by an appointed psychiatrist (s 304B(4)(a)) and by the defendant (s 304B(4)(b)).27 The sentencing judge must be satisfied that imposing an SEPP sentence is in the public interest and that there are no special reasons not to impose such a sentence.28 Examples of such reasons are given in s 304B(9)(a) of the CPC 2010, as cases where the imposition of such sentences would be gravely disproportionate, or where the court is satisfied that a lesser sentence would adequately fulfil the aim of public protection.29 However, the “special reasons” for deferring a SEPP sentence are not limited by those stated

22 CPC 2010 (n 21) s 304B(3)

23 CPC 2010 (n 21) ss 304B(2)(a)(ii), 304B(2)(b)(ii)

24 CPC 2010 (n 21) s 304B(2)(a)

25 CPC 2010 (n 21) s 304B(2)(b)

26 CPC 2010 (n 21) ss 304B(2)(a)-(b)

27 CPC 2010 (n 21) ss 304B(4)(a)-(b)

28 CPC 2010 (n 21) s 304B(1)

29 CPC 2010 (n 21) s 304B(9)(a)

in s 304B(9)(a)(i) and (ii), as seen from the statutory wording: “includes, but is not limited to”.

30

The implication is that courts are left with the freedom to determine and develop new reasons as individual cases may require. These grants of judicial discretion provide a significant “back door” to introduce further restrictions on the imposition of such sentences through the common law. This makes sense: the judiciary primarily performs the role of sentencing and processes all considerations essential to that role. Giving the courts the option of SEPPsentencing, while also not curtailing their discretion to tailor sentencing to the specific case at hand, may well be beneficial to dealing with possible “dangerous offenders” in a fair, principled way. This may serve to allow the courts to mitigate the risk of overapplication of the SEPP scheme, but this is merely a prediction, as the SEPP scheme has not yet come into effect at the time of writing.

OncethedecisiontoimposeaSEPPismade,thecourtwouldneedtospecifyaminimumperiod of imprisonment of between 5 to 20 years, which the accused must serve.31 Only after this can the accused be considered for release, with the decision as to the accused’s release made by the Minister of Home Affairs,32 under the advice of a Detention Review Board. Representations regarding the fitness of the accused for release can be made, to the above body, and this fitness for release is something that the Minister would review annually.

33

3.2 Constitutional Concerns

A litany of issues arises in practice in the execution of a scheme of indefinite imprisonment. First and foremost, it must be examined whether the executive could be said to be infringing

30 CPC 2010 (n 21) s 304B(9)(a)

31 CPC 2010 (n 21) s 304B(3)(b)

32 CPMAA2024 (n 2) s 47(n); PrisonsAct 1933, s 50ZG (SG)

33 Singapore Parliamentary Debates, Official Report (5February2024)vol95(KShanmugam,MinisterforHome Affairs and Law)

on the role of sentencing in a criminal case, which is traditionally a function served by the judiciary.

In deciding whether a certain accused is fit for release, the Ministry of HomeAffairs could be said to be playing an essentially judicial role. This recalls similar cases where the executive’s “playing judge” has been looked upon with great caution by the judiciary in Britain. For instance, both the cases of R v Secretary of State for the Home Department, ex p Pierson34 and R v Secretary of State for the Home Department, ex p Venables and Thompson35 both concerned the power of the Home Secretary to adjust sentences for convicted offenders and the Home Secretary’s discretion to release long-term or life prisoners under s. 35 of the Criminal Justice Act 1991 (now repealed).

In both cases, it was held that the Home Secretary was performing a judicial role in increasing sentences. In Venables and Thompson, Lord Goff held that the Home Secretary was acting “in a judicial manner” by “exercising a function which is closely analogous to a sentencing function”, and therefore “under a duty to act within the same constraints as a judge”.36 That the Home Secretary took into account the “public clamour” petitions and public correspondence to raisetheapplicants’sentences was “having regardto anirrelevant considerationwhichwill render the exercise of his discretion unlawful”, as a sentencing judge would not have regard to public opinion irrelevant to the facts of the case in determining a sentence.37

Subsequently, in Pierson, Lord Steyn held as a general principle that a lawful sentence pronounced by a judge may not be retrospectively increased.38 This was to ensure prisoners

34 R v Secretary of State for the Home Department, ex p Pierson [1997] UKHL 37, [1998]AC 539

35 R v Secretary of State for the Home Department, ex p Venables and Thompson [1997] UKHL 25, [1998] AC 407

36 Venables and Thompson (n 35) 490

37 Venables and Thompson (n 35) 490-491

38 Pierson (n 34) 585

were only deprived of their freedom by, and only so long as authorised by, due process of law, and not arbitrarily. In granting a statutory power to adjust sentences to the Home Secretary, it was taken that Parliament had intended that the Home Secretary would “act in conformity with fundamental principles of our law governing the imposition of criminal punishment” in granting a power to adjust criminal sentences under s. 35(2) of the Criminal JusticeAct 1991.39 This meant the Home Secretary did not have the “general power” to retroactively increase sentences, which he had asserted.40 Lord Hope agreed, stating that the Home Secretary could take a different view from judges with his statutory discretion, but was bound by the same considerations of substantive fairness as judges in determining sentences, precluding retrospective increases of sentences lawfully laid down simply because the Home Secretary had, on reflection, found their durations inadequate.41

Will the problems involved in the Home Secretary’s exercise of his powers over sentencing arise with the Singaporean authorities in such a scenario? The SEPP scheme is closer to the English IPP scheme than the ministerial exercise of powers under s. 35 of the Criminal Justice Act 1991, and the minimum duration of the imprisonment term is circumscribed by the courts, not a member of the executive. Lord Judge CJ held in R (James) v Secretary of State for Justice (Parole Board intervening) that the courts had effectively marked out a prisoner for indefinite detention by imposing an IPP sentence, “making a predictive judgment whether the offender represents a significant risk to public safety” in advance, without any kind of “broad judicial discretion”42 the judiciary thus exercised its usual role in relation to the sentencing function, effectively authorising the executive’s subsequent steps.

The Detention Review Board for assessing prisoners after the expiry of the minimum term, however, performs an arguably “judicial” role as an “executive” body. This gave rise to a

39 Pierson (n 34) 588-589

40 Pierson (n 34) 591

41 Pierson (n 34) 603-604

42 R (James) v Secretary of State for Justice (Parole Board intervening) [2009] UKHL 22, [2010] 1 AC 553 [95] (“James”)

potential concern raised by Mr Raj Joshua Thomas, Nominated Member of Parliament, in the Second Reading of the Criminal Procedure (Miscellaneous Amendments) Bill: it was “an abdication of the sentencing powers of the Court at the end of the minimum period of the sentence to the executive”, in practice, even if the court’s role of setting the minimum sentence served to “disguise” the “decision of the Executive”.43 Furthermore, the decision to release a SEPP prisoner is made by the Minister, who may delegate it to the Second Minister, any Minister of State or Senior Minister of State, or any Parliamentary Secretary or Senior Parliamentary Secretary.44 Both the Detention Review Board and the Minister, or those he delegates the decision-making power to, are part of the Executive, and their extending or terminating periods of indeterminate detention amount to what has been held to be the exercise of judicial powers. This raises the question of whether separation of powers concerns would arise in the operation of this scheme.

The SEPP system’s Detention Review Board will be in a similar position to the English Parole Board, which was in itself unproblematic. In performing its “sentencing” role, it would, much like a judge, have to impartially consider a limited range of objective matters relating to the dangerousness of an offender to determine their fitness for release. Moreover, Minister for Home Affairs and Law K Shanmugam prescribed that the review board would include retired members of the judiciary experienced in carrying out sentencing functions.45 Any concerns of an executive body taking into account improper considerations in its performance of a judicial function would thus only be engaged, in specific scenarios, by the Minister or the review board considering factors and evidence that were beyond their power to consider. This would take them ultra vires and make them liable to have their decisions quashed by the courts. Therefore, the SEPP scheme does not, generally, contravene established principles of public law, but

43 Singapore Parliamentary Debates, Official Report (5 February 2024) vol 95 (Raj Joshua Thomas, Nominated Member)

44 PrisonsAct 1933, s 50ZG(9)

45 Singapore Parliamentary Debates, Official Report (5February2024)vol95(KShanmugam,MinisterforHome Affairs and Law)

specific decisions to release, or not to release, SEPP prisoners might be found unlawful under the head of judicial review of “irrelevant considerations” in particular cases.

However, there is one area in which retroactive changes to a prisoner’s sentence by the introduction of the SEPPscheme may become a concern, and that is in relation to sentences for rape under the old s. 376 of the Penal Code 1871 (prior to amendment on 1 February 2008).46 This issue will be examined in greater detail below.

IV. The UKApproach

The SEPP scheme is comparable to the sentencing model introduced by the Labour Government in 2003 via the Criminal Justice Act (CJA) 2003: the Imprisonment for Public Protection scheme, governed by s. 225 of the CJA 2003.47 Under this scheme, offenders convicted of any of 153 offences specified under Schedule 15 of the 2003Act48 would be liable to be sentenced to Imprisonment for Public Protection (IPP), if “the court is of the opinion that there is a significant risk to members of the public of serious harm” occasioned by further reoffending (s. 225(1)(b) CJA 2003).49 This sentence involved setting a minimum imprisonment term (a “tariff”), during which a prisoner would be required to complete rehabilitative activities, following the definition of indeterminate sentences under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997.50 At the tariff’s expiry, they would be reviewed by

46 CPC 2010 (n 21) sch 7, para 4

47 CJA2003 (n 5) s 225

48 CJA2003 (n 5) s 224(3), sch 15

49 CJA2003 (n 5) s 225(1)(b)

50 CJA 2003 (n 5) s 225(4); HM Chief Inspector of Prisons and HM Chief Inspector of Probation, The indeterminate sentence for public protection: a thematic review (HM Chief Inspector of Prisons and HM Chief Inspector of Probation 2008) (“HMIP Report”)

the Parole Board to assess their suitability for release, based on factors including whether they had completed the required behavioural courses during their tariffs.51

Like the Singaporean scheme, if the Parole Board deemed them fit for release, IPP prisoners would then be released on licence, but if they were deemed unfit, they would be kept in prison until their next review, with applications able to be made by prisoners on yearly intervals.52 Prisoners released on licence would remain on licence (during which they were still subject to the sentence and could be recalled to prison at any point) until at least 10 years after release, at which point they could apply for cancellation of their licence.53 Supervision could be terminated by the Parole Board, if the prisoner was deemed sufficiently non-dangerous.54

Or so the government envisioned.After IPPs came into force in 2005, it soon became clear that the IPP scheme was unfit for purpose, flooding the Prison Service, Parole Board and courts with a deluge of bureaucratic tedium their resources could not handle.

The scheme was finally repealed by the Legal Aid, Sentencing and Punishment of Offenders (LASPO)Act 201255 introduced by David Cameron’s Government. It would serve this analysis well to consider the criticisms raised against the IPP which led to its ultimate demise, in the hope that these problems not be repeated by Singapore as it embarks upon a highly similar sentencing scheme.

51 HMIP Report (n 50)

52 The Howard League for Penal Reform, Indeterminate Sentences for Public Protection (Prison Information Bulletin 3, The Howard League for Penal Reform 2007) (“Howard League Report”) 7

53 HMIP Report (n 50) 11

54 Howard League Report (n 52) 7

55 LegalAid, Sentencing and Punishment of OffendersAct 2012, s 123

Four principal issues may be identified from criticism raised against the IPP scheme in Parliamentary debate, as well as in reports by the Howard League for Penal Reform and HM Inspectorates of Prisons and Probation. These issues are bureaucratic complexity, a lack of information for prisoners and their families about the nature of the sentence, the excessively wide scope of applicable offences, and the lack of flexibility, discretion and guidelines for sentencing courts. Finally, we also note successful challenges against the IPP scheme and the domestic UK and wider European contexts.

4.1 Bureaucratic Complexity

Bureaucratic complexity, leading to increased delays and costs, appears to have been the most egregious problem with the scheme and the most significant motive for its repeal.

The Howard League identified early potential risks of the IPP scheme, describing it as a “bureaucratic nightmare” in the making which would affect future successive governments.

56 As the Prison Service became unable to provide the rehabilitative courses to prisoners that they needed for release,57 prisoners were unable to secure their release on review by the Parole Board once their tariff periods were up, leading to continued imprisonment beyond the minimum term for an indefinite period. As Lord Goodhart stated in a debate in the House of Lords in 2011 on the LASPO Bill, the IPP scheme had been “a failure from the beginning” because “It relied on the ability to train prisoners while in prison, and there has been no such ability.”58 Prisoners became frustrated with their lack of progress through the system, which HM Inspectorates of Prisons and Probation described as a “Kafka-esque predicament”.59

56 Howard League Report (n 52) 3

57 Howard League Report (n 52)

58 HL Deb 21 November 2011, vol 732, col 853

59 HMIP Report (n 50) 3, 6, 8, 25

The problems with the IPP scheme were further worsened by short tariff periods some as short as a mere 28 days.60 In 2007, the Prison Governors Association had already described assisting short-term tariff IPPs as an “impossible task”.61 The courses were impossible to complete within such a short timeframe, making it also impossible to cobble together the materials needed to demonstrate a prisoner’s fitness for release to the Parole Board, who defaulted to continuing their detention.62 Another problem caused by short tariff periods was prioritising short-tariff IPPprisoners over longer-term life-sentence prisoners, causing tensions among longer-term “lifers” and turning them into “a control problem” over long periods of time in prison without constructive progress.63

In addition, prisoners might be required to be transferred to a different prison that was better suited to handling their indefinite sentence but were not permitted to start on any rehabilitation courses at their original prison pending transfer, for fear of leaving them unfinished when they left even if long waiting lists for transfers to other prisons meant that prisoners were waiting for transfers for an even longer duration than it would have taken them to complete a course. Prisoners saw this as a wholly unnecessary delay. In some cases, prisoners’transfers were even cancelled after waiting for long periods without being able to progress in their rehabilitation, leaving them feeling deeply “disappointed and aggrieved”.64

All of the above problems led to an ever-increasing “stockpile” of prisoners within the system awaiting release (further bolstered by numbers who had been recalled from release on licence). This exceeded the capacity of the criminal justice system to manage. In R (James) v Secretary of State for Justice (Parole Board intervening), Lord Brown noted that the IPP scheme

60 Howard League Report (n 52) 13-14

61 ‘Memorandum submitted by the Prison Governors Association’ (www.parliament.uk, 13 March 2007) <https://publications.parliament.uk/pa/cm200607/cmselect/cmhaff/467/467we37.htm> accessed 20 June 2024

62 Howard League Report (n 52) 15; HL Deb 11 December 2007, vol 697, col 199; HL Deb 21 November 2011, vol 732, col 854

63 HMIP Report (n 50) 3, 6, 22, 27

64 Howard League Report (n 52) 18-20, 23

“swamped” the prison system with an ever-increasing number of prisoners with short tariffs, making it impossible to give all IPP prisoners “every opportunity to demonstrate their safety for release at tariff expiry” as the Home Secretary had initially envisioned.65 The large and ever-increasingnumberofprisoners,inturn,placedanincreasedburdenonthePrisonService’s resources, having a compounded effect on its inability to make arrangements for their rehabilitation66 one of the reasons for the IPPs repeal.67 It did not help that, as the Howard League reported, IPPs were in practice imposed almost automatically upon any individual who committed one of the specified offences, despite the discretion and careful consideration that courts should have been able to apply in the use of IPP sentences.68

A scheme like the IPP requires commitment, support and sustained funding from the Government in order to keep up, or else it risks falling into an ever-intensifying bureaucratic logjam that will never clear up until the scheme is abolished (and, if the UK is any indication, even beyond that as of 31 March 2023, over 10 years after the IPP’s abolishment, there were 1355 IPP prisoners who had not been released, and a further 1561 IPP prisoners who had been recalled into custody).69 Even at present, years after the IPP’s abolition, the bureaucratic delays andresourceconstraints associatedwithithavecontinuedtoplaguetheEnglishcriminaljustice system. It should be noted that it was not only the executive parts of the criminal justice system that faced bureaucratic delays. It had been raised in both the House of Commons, by Stephen

65 James (n 42) [134], [138], [150]

66 Ministry of Justice, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (Cm 7972, 2010) para 188 (“Breaking the Cycle”)

67 Sir Christopher Rose, ‘RIPthe IPP:ALook Back at the Sentence of Imprisonment for Public Protection’(2012)

76 J Crim L 303

68 Howard League Report (n 52) 8

69 ‘Sentences of imprisonment for public protection: Updated action plan’ (UK Parliament, 19 May 2023) <https://lordslibrary.parliament.uk/sentences-of-imprisonment-for-public-protection-updated-action-plan/> accessed 12 June 2024

Phillips, andtheHouse of Lords, by LordThomas ofGresford, thatjudges wouldneed to spend additional time preparing and giving reasons beyond those they were previously required to give in order to justify the imposition of IPP sentences.70 Far from making the system more expedient, this would lead to extra court time, and hence extra costs for both the defendant and the criminal justice system.

4.2 Lack of Information on the Nature of the Sentence

The policy was observed to have a tendency of keeping prisoners, victims, and their families uninformed as to the nature of the sentence, leading to confusion on their part. In December 2010, a Green Paper released under the new Government, titled Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, noted that “There has not been enough clarity in the way that prison sentences have been explained to victims and public”, and that there was confusion about how the IPP scheme operated due to the public.71 In particular, there was a tendency by the public to confuse the tariff with the entire indefinite sentence, creating a lack of public trust in the IPPscheme.72 Most damningly, HM Inspectorate of Prisons and HM Inspectorate of Probation found that some prisoners were not even told that they had been sentenced to an IPP, or what an IPP sentence was, until some days after their sentence had been handed down.73

The lack of understanding hit prisoners incredibly hard. Prisoners would enter custody with the understanding that there was an opportunity to better themselves through rehabilitative activities, that they would only be held for the duration of the sentence, and that they would be released without delay after they had satisfied the demands of their rehabilitation. However, when these preconceptions were shattered, hopelessness began to set in. The Howard League

70 HC Deb 29 June 2011, vol 530, col 1019; HL Deb 11 December 2007, vol 697, col 195

71 Breaking the Cycle (n 66) paras 173, 187

72 Sir Christopher Rose, ‘RIPthe IPP:ALook Back at the Sentence of Imprisonment for Public Protection’(2012) 76 J Crim L 303

73 HMIP Report (n 50) 24

reported that prisoners were frustrated with the lack of progress, and with the long delays, feeling that prisons were incapable of catering to their needs.74 Prisoners felt that there was a lack of constructive support and information from the Prison Service, that the criminal justice system was unprepared to deal with IPP prisoners, that courses had been added to their requirements on a whim and the “goalposts” for release were constantly being moved, that they were in an uncomfortable state of “limbo” within which it was impossible to plan ahead or move forward, and that their expectations had been dashed due to the implications of their sentence not being outlined clearly enough.75

Furthermore,the shorttariffperiodswerealso criticisedbythe HowardLeaguefor thenegative implications generated by designating such purportedly “dangerous” offenders with such light sentences. It was deeply confusing to prisoners and their families that they could receive a sentenceasshortas28days(onthefaceofit)withtheexpectationthattheycouldbeconsidered for release after that period, and yet be labelled as “dangerous”, classified as “lifers” and continue under detention indefinitely after the expiry of the tariff period.76

This lackofinformation andfairwarningraised aparticularconcernabout incompatibility with the “rule of law”. It has been widely agreed by learned commentators that clarity and openness are essential to the rule of law. Indeed, Dicey writes that individuals should only be “lawfully made to suffer in body or goods…for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”77 Meanwhile, Raz writes that prospectiveness, clarity, and openness in the law are essential to enabling the law to guide human behaviour.78 An indefinite sentence, as opposed to one whose duration is accurately circumscribed according to law with a fixed conclusion determined from the start, creates confusion about the

74 Howard League Report (n 52) 18-24

75 Howard League Report (n 52) 18-24

76 Howard League Report (n 52) 13-14

77 Albert Venn Dicey, The Law of the Constitution (10th ed., 1959) 188

78 Joseph Raz, TheAuthority of Law: Essays on Law and Morality (OUP 1979) 214

future.This subverts the expectations and plans of prisoners and their families, interfering with the law’s ability to guide human behaviour.

The purpose of sentences is also to address the level of wrongdoing inherent in the nature of the offence itself, and so a sentence for a supposedly “dangerous” offender lasting a mere 28 days is incongruent and leads to a lack of faith and understanding in the justice system, even if the possibility for indefinite detention is open thereafter. What, then, of the indefinite detention itself? It accords with natural justice that a sentence which has not been explicitly made out to be for life should reach its conclusion as determined by due legal process. Therefore, the ambiguity that prisoners had to deal with in navigating the complexities and delays of the IPP scheme could be considered detrimental to the rule of law, in the sense that they obstructed the certainty of the process and the requirements of natural justice.

4.3 Excessively Wide Scope ofApplicable Offences

The excessively wide scope of relevant offences was also highlighted as a criticism of the scheme.Theprevious schemeofautomaticlifesentences coveredonly 11offences.79 However, the new IPP scheme dramatically widened the scope of offences covered to 153 listed offences.80 These included less severe offences such as assault occasioning actual bodily harm (Offences Against the Person Act (OAPA) 1861, s 47), sexual assault (Sexual Offences Act 2003, s 3), putting people in fear of violence (Protection from Harassment Act 1997, s 4) and brothel-keeping (Sexual Offences Act 1956, s 33).81 Many prisoners were effectively being sentenced to life sentences (which they and their families did not always recognise as being such) in exchange for offences of insufficient severity to normally warrant a life sentence.

79 HMIP Report (n 50) 11

80 CJA2003 (n 5) sch 15

81 CJA2003 (n 5) s 224(3), sch 15

Baroness Linklater of Butterstone, in the House of Lords, deemed this “a classic and blatant case of net-widening”.82 In the same debate, Lord Carlile of Berriew expressed that the large number of applicable offences, combined with the obligation judges felt to sentence offenders to IPPs, made the purpose and operation of the IPPscheme unpredictable and confusing.83 This did not aid in enhancing the clarity and certainty of the law, a problem already identified above.

The House of Commons Standing Committee also raised concerns early on about the wide reach of the SEPP scheme with such a wide scope for sentencing, a much higher number of offenders would be sentenced with IPPs. This, of course, would inflate prisoner numbers, worsening the bureaucratic issues examined above.84

4.4 Lack of Flexibility, Discretion, and Guidance for Courts

Finally, there had been a lack of flexibility, discretion, and guidance for the courts in applying the sentencing scheme. This problem was worse when the IPP was initially introduced, as it was vague when an offender could be considered sufficiently “dangerous” for an IPP sentence to be imposed. The Court ofAppeal therefore had to develop a test of dangerousness, based on future risk to members of the public generally, across the cases of Lang and Johnson 85

Furthermore, the Howard League reported that the statutory provisions and appeal court guidance that had been given still led to IPPs being given in almost every case where the offender had been convicted of the specified offences, at about 120 prisoners per month a rapidly increasing burden for prisons.86

82 HL Deb 11 December 2007, vol 697, col 193

83 HL Deb 11 December 2007, vol 697, cols 189-191

84 Howard League Report (n 52) 10

85 R v Lang [2005] EWCA Crim 2864, [2006] 1 WLR 2509 [19]; R v Johnson [2006] EWCA Crim 2486, [2007] 1 WLR 585 [3]

86 Howard League Report (n 52) 8

In Johnson, the Court of Appeal even described the provisions of the IPP scheme as “labyrinthine”,87 aclearsignofthecourts’difficultiesin navigating thedemandsofthescheme. This point was also brought up in debate in the House of Lords in 2007: Baroness Linklater of Butterstone stated that there were no detailed guidelines from the Sentencing Guidelines Council available to govern IPPs,88 while even the Parliamentary Under-Secretary of State at the Ministry of Justice, Lord Hunt of Kings Heath, stated that a structured sentencing framework was required to better guide courts in delivering IPP sentences.89

The IPP was notably amended in 2008 by the Criminal Justice and Immigration Act (CJIA) 2008 to become no longer mandatory,90 and covering only cases which would have a tariff of over two years.91 The 2008 Act granted courts far more discretion to control when an IPP sentence could be imposed, adjusting the sentence to the contingencies of the specific case. However, even in comments in the House of Lords in 2011, the Lords still found that IPPs led to “inconsistent sentences for similar crimes” (Lord McNally)92 and that, after consultation with Crown Court judges, the judges had not been used to IPP sentences and found them unsatisfactory to apply (The Lord Bishop of St Edmundsbury and Ipswich).93 Increased clarity in sentencing laws was welcomed as a consequence of reviewing and repealing the IPPscheme (Baroness Newlove).94

It should also be noted that the issue of bureaucratic complexity above may overlap with the lack of guidance to courts. In the UK, before sentencing a prisoner to an IPP, the sentencing

87 Johnson (n 85) [11]

88 HL Deb 11 December 2007, vol 697, col 194

89 HL Deb 11 December 2007, vol 697, cols 199-200

90 Criminal Justice and ImmigrationAct 2008 (“CJIA2008”) s 13 (UK)

91 CJIA2008 (n 90) s 14

92 HL Deb 21 November 2011, vol 732, col 825

93 HL Deb 21 November 2011, vol 732, cols 835-836

94 HL Deb 21 November 2011, vol 732, col 884

court was required to have regard to an accurate pre-sentence report produced by the Probation Service.95 Yet the Probation Service, too, was overstretched and its ability to fully and accurately assess a prisoner’s risk was negatively affected in many cases. In such cases, the Probation Service tended to err on the side of caution with regard to potential risk to the public andclassifyprisoners as higher-risk.AreportbyHM ChiefInspectorforPrisons andHMChief Inspector for Probations found that the risk assessments were too high in 40% of examined cases.96

4.5 Successful Challenges

The IPP regime had not gone without challenge in the courts, by means of judicial review, and at times, these challenges have been successful. The most notable of these were the cases of James, Wells and Lee v United Kingdom, 97 amalgamating three different challenges at the European Court of Human Rights (ECtHR) in Strasbourg brought by IPP prisoners who had been detained far longer than their tariffs, unable to progress in their rehabilitation.

Themajorityof the ECtHR held thatthe rights of theapplicants underArt.5(1)oftheEuropean Convention on Human Rights (ECHR) had been breached. The causal link between the initial convictionandalaterdeprivationoflibertygraduallybecamelessstrong,causingtheprisoners’ initially lawful detention to become arbitrary.98 This could occur if the continuing detention of a prisoner was based on grounds inconsistent with the objectives of the initial decision by the sentencing court, or on an assessment that was unreasonable in terms of those objectives.99 The ECtHR then held that “a real opportunity for rehabilitation is a necessary element of any part of the detention” and the legislation was premised on the understanding that rehabilitative treatment would be made available. Where resource shortages allowed no realistic chance for

95 HMIP Report (n 50)

96 HMIP Report (n 50) 3

97 James, Wells and Lee v United Kingdom (2013) 56 EHRR 12 (“James, Wells and Lee”)

98 James, Wells and Lee (n 97) [194], [221]

99 James, Wells and Lee (n 97) [189]

applicants to progress on their rehabilitation, even after their tariffs expired, the justification of continued detention on grounds of risk posed to the public and the need for access to rehabilitation “become all the more pressing.”100

The ECHR is not part of Singaporean law. However, reflecting on the case of James, Wells and Lee reveal important points regarding SEPP’s restriction and operation. The ECtHR rightly concluded that natural justice requires stronger justifications for continued detention after the initial tariff period has expired and such justification would necessitate the proper provision of rehabilitative programmes for prisoners who need them.

We further note criticisms of the IPP scheme by British judges in domestic courts. Laws LJ in R (Wells) v Parole Board101 noted that continued detention after the end of the tariff period could only be justified by the risk of danger posed by the offender to the public yet this could “only be ascertained on a continuing basis, by periodic assessment”.102 Therefore, it was unlawful and unjustified for a prisoner to remain incarcerated after the expiry of the tariff without “current and effective assessment of the danger he does or does not pose”. Periodic reviews needed to be carried out, and they would only be valuable if informed by up-to-date information on the prisoner’s rehabilitative progress.103

On appeal to the House of Lords, the Law Lords disagreed with Laws LJ’s analysis and held that the ongoing detention was lawful.104 However, Laws LJ’s attempt to constrain the operation of the IPP shows that schemes of indeterminate detention for public protection are capable of raising principled criticisms from the judiciary on account of their threats to natural

100 James, Wells and Lee (n 97) [208]-[209], [220]

101 R (Wells) v Parole Board [2007] EWHC 1835 (Admin), [2008] 1All ER 138 (“Wells”)

102 Wells (n 101) [46]

103 Wells (n 101) [47], [49]

104 James (n 42)

and procedural justice. It should thus be of additional importance that the safeguards legislated for in the new scheme are followed closely, and capable of being followed closely as more prisoners enterthesystem, lest they riskwanderingout of legal boundaries thatdomesticcourts are likely to place upon them.

V. An evaluation of the SEPP compared with the IPP

5.1 The Similarities

The two systems are, on their face, quite similar in several ways. As identified earlier, both of these systems were implemented to address much the same issue: recalcitrant offenders that cannot be properly dealt with by the normal systems of criminal sentencing.105 Additionally, both of these systems seek to solve the problem in much the same way: having the prison service detain the problematic individual for as long as required to have him be rehabilitated until the government can be convinced that he is safe to release back into society.106 There is no specific length of time specified for the sentence, other than a minimum term of imprisonment after which a first review by a responsible panel must be done, as the very nature of the sentence is that it is indeterminate.107

As mentioned above, the core principles, and judicial balancing of those principles, involved in sentencing in Singapore and the UK are also similar.108

105 Singapore Parliamentary Debates, Official Report (5 February 2024) vol 95 (K Shanmugam, Minister for HomeAffairs and Law)

106 Singapore Parliamentary Debates, Official Report (5 February 2024) vol 95 (K Shanmugam, Minister for HomeAffairs and Law)

107 CPC 2010 (n 21) s 304B(3)

108 Tan Fook Sum (n 16)

5.2 Will the IPP’s issues resurface in relation to the SEPP?

We return nowto the central questionofthis paper.Will theSEPPsurvive as alegitimatemodel and method of dealing with “dangerous” offenders who pose a risk of re-offending, or will it go the way of the English IPP?We must consider whether the four chief issues that were raised with regard to the IPPscheme above would apply similarly to the Singaporean scheme, as well as whether successful challenges might be brought in Singaporean courts in respect of the scheme. Due to the similarity of the two regimes, we may take the issues raised with the IPP system as a forecast of sorts for the issues that the SEPP may well face within its lifetime. We will also distinguish the SEPP system from the IPP system in several areas, to discern where the aforementioned criticisms might not apply equally (or at all).

5.2.1 Bureaucratic Complexity and Resource Issues

We regret that we cannot offer a clear and detailed economic analysis of SPS’s capability to offer rehabilitative programmes with its current resources. However, we may highlight certain differences betweenthe Singaporean prisonsystem andthe UK’s, andhow bureaucratictedium and resource constraints in handling SEPPs may be reduced. We hope to offer reasoned predictions as to how Singapore might tackle the scheme in practice.

Singapore's largest prison, Changi Prison Complex, is where a large number of prisoners, including high-risk prisoners, are detained. It is likely that Changi Prison Complex becomes the sole detention site for prisoners deemed “dangerous” and sentenced under the SEPP scheme. Unlike in the UK, where prisoners might have to wait for months to be transferred to another prison (during which they could not progress in their rehabilitative courses) or cannot access courses at their initial prison, these problems seem far less likely to occur in Singapore, where it should be far easier to provide rehabilitative programmes for prisoners within Changi Prison Complex as soon as they start their minimum sentence.

Inter-prison transfers (and access to rehabilitative programmes) should be easier to manage due to sharing the same complex or, at worst, being less than an hour’s drive away. Of course, it is possible that there may be waiting lists to move prisoners between clusters within Changi Prison Complex, yet this should not get in the way of prisoners accessing the required rehabilitative programmes within the same complex.

Furthermore, the minimum terms imposed by the SEPP scheme appear to be longer than those of the IPP scheme, at a minimum of 5 years. This is justifiable, looking at the severity of the offences it covers. This might be able to avoid the problems posed by the IPP’s short tariffs by ensuring that the prisoner is given sufficient time to reassess their behaviour, embark on the path of rehabilitation, and complete their rehabilitative tasks satisfactorily while accounting for potential delays along the way.

The Singaporean scheme’s promise to offer regular yearly reviews of prisoners, especially whencoupled with thelongerminimum periods,unfortunately has nodifference from theIPP’s annual reviews of “lifer” prisoners by the Parole Board.109 The period may offer sufficient time for prisoners to make meaningful progress while planning steadily for their release, but one year may be a very long time for a prisoner who has failed to satisfy the review board to wait for another chance to plead for his release before them. This may nonetheless be a necessary sacrifice to ensure all prisoners can be accommodated, and that prisoners can commit to completing their rehabilitation within the one-year “grace period”, yet none of these factors were able to fully rescue the IPPfrom its own bureaucratic messes, nor alleviate the constraints that the Parole Board was faced with. The Singaporean Government would do well to take care to ensure that it keeps its promises in this particular area, lest it fall into the same quagmire as the British Government did in becoming unable to regularly review offenders under ongoing detention.

109 HMIP Report (n 50) para 2.18

Ultimately, we would advise the Singaporean Government to take care that the provision of rehabilitative programmes is done in an expedient way without detracting from their effectiveness at inducing moral and behavioural transformations in prisoners. This is, without a doubt, a difficult task.

When considering the question of resource constraints, we should consider two key differences in the Singaporean and English contexts. Firstly, Singapore is known to have a relatively low rate of physical crime. According to the Singapore Police Force’s (SPF) Annual Crime Brief for 2023, the total number of reported physical crimes decreased slightly by 1.1% from 20,193 in 2022 to 19,966 in 2023.110 Only 4673 were crimes against the person, 63 were violent or serious property crimes, and 191 were housebreaking and related crimes.111 Meanwhile, the levels of corresponding physical offences (i.e. not inclusive of computer misuse and fraud) in England and Wales rose by 5% from 2022 to 2023, up to 5.5 million cases.112 It should also be noted that not all reported sentences might result in the imposition of a SEPP, as SPF’s classification of physical crime also includes less severe offences such as shop theft and theft in dwelling (both charged under s 380 of the Penal Code 1871).

Secondly, we have earlier addressed the greater breadth of discretion that Singaporean courts haveinimposingSEPPsentences.Thedraftingofs304BoftheCPC2010viewstheimposition of SEPPs as being appropriate only in certain select circumstances, where the natures of the offences are sufficiently grave that the court can be convinced that normal sentencing options are insufficient. In fact, as earlier mentioned, the open-ended wording of ss 304B(1) and (9) regarding reasons that the court must give may well be intentional, as it is Parliament’s wish to

110 Singapore Police Force, Annual Crime Brief 2023 (Singapore Police Force 2024)

111 ‘Crime Cases Recorded’ (Department of Statistics Singapore, 18 March 2024) <https://tablebuilder.singstat.gov.sg/table/TS/M891481> accessed 22 June 2024

112 Home Office, ‘Crime outcomes in England and Wales 2022 to 2023’ (GOV.UK, 20 July 2023) <https://www.gov.uk/government/statistics/crime-outcomes-in-england-and-wales-2022-to-2023/crimeoutcomes-in-england-and-wales-2022-to-2023> accessed 22 June 2024

leave this matter in the jurisdiction of the courts. No qualification is given, other than that the reason is “special” and sufficient to convince the Court not to impose the sentence.

The relatively small reach of SEPP offences, compared to the IPP, means that the number of cases in which SEPPs are even considered would be small. They would be restricted to those gravely serious offences in the Seventh Schedule of the CPC 2010. Taken together with the grant of judicial discretion, in addition to the requirement in s 304B(9) that the court must be convinced that an ordinary sentence is inappropriate,113 this would lead to the likelihood of SEPPs being imposed only in a small number of egregious cases, involving the gravest offenders posing the most obvious risks to public safety.

Furthermore,thecourts mayfeel much more inclinedto exercisetheirdiscretionto tightlylimit the application of the SEPP scheme by citing the uncertain and prolonged nature of indeterminate sentences, as well as the incapacity of the prison system to properly accommodate and rehabilitate too many offenders, as policy reasons against the imposition of aSEPPsentence.Withtheconsequences ofextending theambit ofindeterminateimprisonment in England and Wales in view, this would serve as enough justification to limit the imposition of SEPPs to select and specific cases.

On the other hand, we should be slow to conclude that this will automatically mean it is a cakewalk for Singapore to process all of the potential offenders that will come its way. Singapore has far less prison space than HM Prison Service, with most offenders still placed within the same prison complex.And, as mentioned previously, the compounding effect of an ever-increasing number of prisoners entering the system through an indefinite detention scheme,coupledwith logjamsintheprocess bywhichtheymightleave,can quicklyovercrowd prisons and overwhelm prisons and probation staff. It would therefore be best for Singapore not to be too complacent in its ability to deal with SEPP prisoners on the basis of there being

113 CPC 2010 (n 21) s 304B(9)

lessthantheUK. Oncetheirnumbers startbuilding up,theycould leadto alogistical nightmare for the Singaporean criminal justice system all the same.

5.2.2 Provision of Information, the Rule of Law and the Needs of Prisoners

The idea that the criminal can be detained not for “x years”, but for “however long it takes for him to become good again, after a certain minimum period” may be quite different from the public conception of an imprisonment sentence. Better information to the public and the Press regarding the nature of these sentences, as well as the safeguards in place and how they can be applied by courts to defer an indefinite sentence, might go some way towards allowing these sentences to be better understood and accepted by the ordinary person, and by those subject to them. As mentioned above, clarity and openness of the new sentencing laws would help to strengthen the rule of law, and naturally, public confidence in the law.

Ultimately, how well the SEPP scheme serves its purpose and aligns with the rule of law depends on how clearly the courts and SPS are able to explain the nature, purpose and expected duration of the sentence clearly to prisoners, victims and their families, as well as how often SPS is able to follow up with prisoners to enable them to plan towards their eventual release.

That the SEPPscheme provides for regular reviews to be taken to determine whether prisoners maybeunconditionallyreleasedispromising,asisMinisterofStateSunXueling’scomment114 that “[a] scientific and regular rigorous approach will be taken for the risk assessment.” Such regular contact with the prisoner is intended to give a constant stream of information and guidance and allow them to continually plan each step of the way up to their eventual release, avoiding the faults of the IPPscheme.Yet, it remains to be seen how SPS will grapple with this scheme when the time comes to apply it in practice, and whether such regular contact time and information-sharing will become the norm, or an overly ambitious goal, sadly too high to

114 Singapore Parliamentary Debates, Official Report (5 February 2024) vol 95 (Sun Xueling, Minister for Social and Family Development)

achieve, due to the operational limitations from dealing with an ever-expanding number of SEPP prisoners.

Finally, the Singaporean Government should be sensitive to the particular impact of the new SEPPschemeonprisonerswith learningdisabilities, whomight not beabletoreachthesupport and services they need a problem identified by Lord Rix in a 2011 debate on the LASPO Bill,115 and by HM Inspectorates of Prisons and Probation in a case study reported in 2008.116 Such prisoners may face difficulties in engaging with rehabilitative programmes, even as they seek to change their behaviour and secure their release. It is for the SPS to ensure that rehabilitative programmes are able to adapt to their needs and make accessibility arrangements to ensure that they, too, can make real possibility of positive change for the better. In fact, it would be advised that the Government take special care to monitor and safeguard the psychological wellbeing of SEPP prisoners in general it was found that IPP prisoners had more mental health problems, and a 14% higher risk of suicide and self-harm, compared to other prisoners.117

5.2.3 Excessively Wide Reach

The reach of the SEPP regime is significantly smaller in terms of the number and types of offences that it covers118 than the 153 different offences covered by the IPP regime.119 The Seventh Schedule of the Criminal Procedure Code, added by the CPMAA 2024, outlines the offences in respect of which SEPPs may be imposed: all offences of culpable homicide other than murder, attempts to commit murder and culpable homicide, and aggravated forms of outraging modesty under s 354A of the Penal Code 1871. It also includes more severe forms of rape (as well as sentences for rape under the older law prior to 1 February 2008) and sexual

115 HL Deb 21 November 2011, vol 732, cols 914-915

116 HMIP Report (n 50) 35

117 HMIP Report (n 50) paras 2.15-2.16

118 CPC 2010 (n 21) sch 7

119 CJA2003 (n 5) sch 15

assault by penetration under ss 375(2)-(3) and 376, and some sexual offences against the young and those with mental disabilities under ss 376A(2)(a) or (3), 276AAand 376F(3). In addition, several offences involving the causing of grievous hurt against another are included, including ss 325, 326, 329, 331 and 333 of the Penal Code 1871. Offences involving non-consensual “carnal intercourse against the order of nature” under the old s 377 of the Penal Code (prior to 1 February 2008) are liable to receive SEPP sentences too. Lastly, the SEPP scheme extends inchoately to attempting, abetting or being party to a conspiracy to commit any of these offences.120 This similarity in sentencing between the inchoate version and the real offence is consistent with the general approach taken by Singapore’s criminal law.121

Singapore’s smaller circumscription of SEPP sentences than the IPP scheme shows promise, with a tighter focus on widely known offences that would be considered “severe” and “dangerous” (and would have a lower rate of commission). Still, there is some disparity in sentence-length between the specified SEPP offences, and so care must nevertheless be taken by courts to ensure that SEPPs are sufficiently justified by the danger of the act.

The SEPP applies retroactively to sentences under the older law of rape (s. 376 of the Penal Code 1871, prior to 2008) and carnal intercourse against the order of nature (s. 377 of the Penal Code1871,priorto2008).122 Normally,theretroactivenatureofthesentencewouldbecontrary to the rule of law but any sentences still continuing under the old s. 377 would be life sentences (as the alternative was a 10-year sentence and a fine, and 10 years have passed since the last possible date in 2008 on which they could be given).123 Given that the worst possible outcome of a SEPP sentence would be indefinite detention anyway, and the best possible outcome would be to secure the release of the prisoner, the application of the SEPP to the old s. 377 can be seen as advantageous.

120 CPC 2010 (n 21) sch 7

121 Penal Code 1871 (2020 Rev Ed) ss 109-116, 120B, 512(2) (SG)

122 CPC 2010 (n 21) sch 7 paras 4-5

123 Penal Code 1871 (1985 Rev Ed) s 377 (SG)

The SEPP could also apply to ongoing rape sentences before 2008 that had not reached completion, as their maximum term of imprisonment was 20 years. Therefore, the last 20-year rape sentence that could have been handed down under the old law, before it was amended in 2008, would still be ongoing (ending only in 2028).124 This implies that Parliament’s intention in including this area of application for the SEPP was to allow prisoners serving definite 20year rape sentences under the old law to have their sentences increased to SEPPs, potentially leaving certain prisoners liable to being resentenced to an indefinite term. But this raises the same concerns highlighted in Pierson with regard to retroactive increases in sentencing. Rape is extremely serious and punished with life imprisonment in other jurisdictions such as the UK,125 but it is best to treat the retroactive application of the SEPP here with great caution. Even unsympathetic prisoners deserve procedural justice, and for the sentences they were initiallygivento be completableas prescribed without retrospective extension.Todootherwise contravenes the certainty that the rule of law requires.At the very least, these prisoners should be given the highest possible priority to ensure that they can complete their new sentences within the terms of their original sentences (which may now become tariffs for a much longer indefinite sentence).

5.2.4 Judicial Guidance and Discretion

Inflexibility may not pose as large a problem with the SEPP scheme as the IPP scheme. The Singaporean law, notwithstanding its similarly using the word “must”, qualifies it with a grant of discretion to the court to deny imposing such a sentence if it has “special reasons” under CPC 2010, s 304B(9)(a) for doing so.126 While some examples of these reasons are given in the new CPC 2010, s 304B(9)(a), it is also stated that these are not exhaustive,127 and the categories of reasons for which SEPP sentences can be denied are not closed. This may be

124 Penal Code 1871 (1985 Rev Ed) s 376

125 Sexual OffencesAct 2003, s 1(4) (UK)

126 CPC 2010 (n 21) s 304B(9)(a)

127 CPC 2010 (n 21) s 304B(9)(a)

representative of Parliament’s intention to leave the independent and flexible development of the SEPP sentencing regime to the judiciary. The courts may, in a case-by-case way and with regard to the varied needs and conditions of offenders, formulate a method by which to determine whether a pleaded reason is sufficiently “special” so as to not impose a SEPP. Courts may therefore be less likely to be shoehorned into giving a SEPPsentence where there are good reasons not to do so.

The regime may however be criticised on these very grounds as being too vague. Other than giving two examples of what might constitute “special reasons”, the CPC 2010 did not define in any detail what would constitute “special reasons” or any test of the “specialness” of factors.

Accordingly, we may examine the Singaporean courts’ current approach to weighing the four sentencing priorities of retribution, deterrence, punishment and rehabilitation to determine in what cases they might deem there to be “special reasons” against the imposition of a SEPP. For adult offenders, Singaporean courts will hold deterrence to be the primary consideration, with rehabilitation overtaking it as a priority (and hence, a rehabilitative sentence imposed) if “the particular offender concerned happens to demonstrate an extremely strong propensity for reform or there exist other exceptional circumstances”.

128 The test of “an extremely strong propensity for reform” imposes a high threshold: in PP v Siow Kai Yuan Terence, Sundaresh Menon CJ held that an accused’s significant reduction in pornography use was inadequate to showthathehadasufficientlystrongpropensityforreform,suggestingthatthethresholdmight only be met by a complete cessation of pornography consumption.129

The SEPP, as mentioned above, is a sentence primarily focused on the principle of prevention. The rigid Singaporean approach to weighing sentencing considerations in this area suggests that Singaporean courts dealing with SEPP-applicable offences would be slow to allow other

128 PP v Siow Kai Yuan Terence [2020] SGHC 82, [2020] 4 SLR 1412 [42] (“Terence Siow”)

129 Terence Siow (n 128) [72]

sentencing principles to displace prevention as a priority, and reject an SEPP in favour of an alternative, lighter sentence.

The courts may therefore, in a case-by-case way and with regard to the varied needs and conditions of offenders, formulate a method by which to determine whether a pleaded reason is sufficiently “special” so as to not impose a SEPP.

It should also be noted that better guidance to courts overlaps with the problem of bureaucratic delays. The SEPP scheme will require the sentencing court to have regard to prepared reports, including by the Institute of Mental Health (IMH), to determine if an offender is fit for an SEPP.130 However, producing such reports may quickly become a heavy burden for the responsible bodies, who will likely also choose toerr on the side of caution to cover themselves and give effect to the Government’s intention to act “tough on crime”, just like the UK’s Probation Service before them. It is thus a challenge to be addressed by the Singaporean Government that the responsible bodies issuing reports at the sentencing stage (as well as at the post-minimum term review stage) will be able to cope with the number of SEPP prisoners, alongside the rest of their caseload in other areas. The preparation and provision of detailed evidence at all stages must be handled with due care, without sacrificing thoroughness in the name of convenience.

5.3 Successful Challenges

Though the applicants succeeded in James, Wells and Lee in their contention as to the unlawfulness of their detention, the success of the application in James, Wells and Lee was premised on certain specific failures of the IPP system to provide for particular inmates, even if their struggles were a result of the wider systemic flaws in the IPP regime (which was not, in and of itself, deemed unlawful). It is hoped that these systemic failures will not repeat themselvesin Singapore, andthatthe SEPPwill be sufficiently tightlycircumscribedto aselect

130 ‘CriminalProcedure(MiscellaneousAmendments)Bill2024’(n1); Singapore Parliamentary Debates, Official Report (5 February 2024) vol 95 (K Shanmugam, Minister for HomeAffairs and Law)

few classes of cases where the courts are sufficiently convinced that they must resort to it to do justice. On the other hand, the Singaporean Government should still seek to syphon the valuable lessons mentioned above from Laws LJ’s judgment in Wells, as well as the criticisms of the Strasbourg Court in James, Wells and Lee, and take care to avoid them as a matter of procedural justice. If the Government does not manage to justify extending a sentence for enhanced public protection with a sufficiently robust reason, or takes into account irrelevant considerations in deciding to release or retain a prisoner, then even a domestic court might be able to enforce the rule of law against them and hold them responsible by way of judicial review.

VI. Other indefinite detention schemes a chance of success?

If the Singaporean government does push ahead with the SEPP scheme, it is certainly not automaticallydoomedto failure.Othercountries haveestablishedsimilarschemesofindefinite detention for dangerous offenders, and kept them running longer than the lifespan of the English IPP. New Zealand has established a similar scheme of preventive detention for sexual or violent offenders under s 87 of the Sentencing Act 2002,131 as has Canada, under s 753 of the Criminal Code,132 which was introduced in its current form in 1997.133 Even within the same country where the IPP met with failure, a Scottish scheme of Orders for Lifelong Restriction (OLRs) for prisoners assessed to be of a high risk, passed into law in the same year as the IPP scheme via s 1 of the Criminal Justice (Scotland) Act 2003, remains on the statute books under s 210F of the Criminal Procedure (Scotland) Act 1995 continuing in force even today.134

131 SentencingAct 2002, s 87 (NZ)

132 Criminal Code, RSC 1985, c C-46, s 753. (CA)

133 Bill C-55, An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, 2nd Sess, 35th Parl, 1997. (CA)

134 Criminal Justice (Scotland)Act 2003, s 1; Criminal Procedure (Scotland)Act 1995, s 210F (UK)

Yet, the existence of similar indefinite sentencing schemes in other countries should not mean that it is smooth sailing for Singapore if they can get the scheme off the ground. These other schemes have also run into problems and criticisms of their own. Of the issues that the New Zealand Law Commission identified with their scheme, those that might be applicable to Singapore include breaching UN human rights protections, and young adults being eligible for indeterminate imprisonment even though they would change cognitively and emotionally as they matured.135 Singapore’s SEPP scheme has a higher age threshold than the scheme from New Zealand, with the former applying to persons of at least 21 years of age,136 while the New Zealander scheme applies to persons of 18 years of age and above.137 However, it would still do the Singaporean courts well to take a more sensitive approach to weighing sentencing priorities in deciding whether to impose an SEPP on the youngest offenders at the lower end of the age threshold.

Meanwhile, the Supreme Court of Canada was willing to consider their scheme of indefinite detention for dangerous offenders constitutional on the basis that it did not constitute cruel and unusual punishment, arbitrary detention, or a contravention of the principles of fundamental justice,138 and the number of designated dangerous offenders has been kept within the mere hundreds.139 However, it has also been noted by researchers from the Correctional Service of CanadathatthenumberofdesignatedDangerous Offendersunderfederal supervision hadbeen

135 ‘Public safety and serious offenders: A review of preventive detention and post-sentence orders’ (Law Commission) <https://www.lawcom.govt.nz/our-work/public-safety-and-serious-offenders-a-review-ofpreventive-detention-and-post-sentence-orders/> accessed 2 July 2024

136 CPC 2010 (n 21) s 304B(2)(a)(ii), 304B(2)(b)(ii)

137 SentencingAct 2002, s 87(2)(b)

138 R v Lyons, [1987] 2 SCR 309

139 Larry Motiuk and Mike Hayden, ‘Dangerous offenders under federal supervision: 2014-15 to 2019-20’ (Government of Canada, 20 April 2021) <https://www.canada.ca/en/correctionalservice/corporate/library/research/research-brief/21-10.html> accessed 2 July 2024

increasing, with a relatively high proportion of Dangerous Offenders being Indigenous140 an issue that should serve as a warning sign to Singapore about the potential of such a sentencing scheme to discriminate unfairly against already-disadvantaged groups in society and worsen racial tensions.

Back on the British Isles, although the Scottish OLR scheme has survived the death of its neighbouring counterpart, it has been similarly criticised for widening the net to relatively minor offences if a potential future risk was assessed to be likely.141 Campaigners in Scotland have also complained about a lack of meaningful consideration by the Parole Board for Scotland and productive progress in rehabilitation, as well as delays in the processing of paperwork preciselythesameproblemsthatplaguedtheIPPscheme.142 Alloftheseareissues that Singapore would do well to avoid in the rollout of its new scheme.

On the other hand, it is likely that the government already knows of the existence of such schemes in other countries. Minister for Law and HomeAffairs K Shanmugam, in Parliament, made explicit reference to the implementation of similar regimes in other countries. He then noted their success as a motivating factor to implementing such a regime in Singapore.143 It may therefore be reasonably speculated that the Government will act with the benefit of hindsight to avoid the mistakes made by other countries.

VII. Conclusion

140 ‘Dangerous offenders under federal supervision: 2014-15 to 2019-20’(n 139).

141 Dirk van Zyl Smit and Katrina Morrison, ‘The Paradox of Scottish Life Imprisonment’ (2020) 28 European Journal of Crime, Criminal Law and Criminal Justice 76, 89

142 Raymond Smith, ‘‘Worse than IPP’’ (InsideTime, 2 April 2024) <https://insidetime.org/comment/worse-thanipp/> accessed 2 July 2024

143 Singapore Parliamentary Debates, Official Report (5 February 2024) vol 95 (K Shanmugam, Minister for HomeAffairs and Law)

The SEPP scheme has not yet been brought into force, and once it is, it will immediately have consequences for state resources, and on the lives of prisoners, victims, and their families, all of whom deserve the utmost clarity, dedication to their procedural rights, and humane treatment. It is visible that apart from the potential impacts of indefinite sentences on the penal system, the greatest possible solution to many of the flaws of such a system is transparency, guidance and information. Once again, the rule of law ought to reign supreme, and its requirements that the law be clear and accessible should guide policy in relation to the SEPP scheme. Every person or public body involved in the sentencing process and bound up with the impact of the SEPP scheme deserves to be able to plan their future courses of action based on clear guidance from the law.

Bureaucratic concerns, however, will likely remain one of the biggest problems with SEPPs, as they were with IPPs. At a time when the Ministry of Home Affairs has been facing issues with manpower, it may struggle to roll out the SEPP scheme and deal with an influx of indefinite sentences which may just continue to increase gradually with time. Indeed, the writershavenoticedthat othersegments of theCPMAA2024,suchas theprovisions onseizure of evidence at the scene of a crime without a warrant (CPMAA2024, s 5)144 and the powers of the police to compel victims to undergo forensic testing, (CPMAA2024, s 7, introducing a new Division 5 of Part 4 of the CPC 2010 containing new sections 40E to 40K)145 as well as other policies within the Ministry of HomeAffairs (such as its recruitment of foreign auxiliary police officers to bolster Singapore’s law enforcement capabilities)146 all seem directed at one particular problem: a manpower crunch within the Ministry of HomeAffairs, leading to policy and organisational changes to patch up the deficiencies, expedite criminal procedure and maintain operational capacity. Now that the Singaporean Government is rolling out a scheme

144 CPMAA2024 (n 2) s 5

145 CPMAA2024 (n 2) s 7

146 Nicole Lam, ‘S’pore looking to hire Auxiliary Police from China, India, the Philippines, Myanmar as Taiwan recruits dwindle: Shanmugam’ (TODAY, 11 January 2024) <https://www.todayonline.com/singapore/sporerecruit-auxiliary-police-china-india-philippines-myanmar-meet-demand-shanmugam-2339541> accessed 22 June 2024

which has incurred proven and severe bureaucratic demands overseas, will it struggle to deal with the blow it has dealt to its own operational capacity and, in doing so, actually hinder rather than expedite the process of criminal justice (as was its intention) by introducing the SEPP scheme? Time will tell if this comes to pass, but the Government should be wary of such obstacles, and should not go ahead to run that risk if it will be incapable of following through. The Canadian, Scottish, and New Zealander schemes discussed above show that such a scheme might not necessarily be doomed to fail, yet it might nevertheless be faced with a range of issues that hinder its fair and effective operation.

The Captains of Lives, and their fellow-travellers in the criminal justice system, face a rough sea ahead but not one that has been untravelled. The English IPP scheme that came before may have foundered, but the lessons it has provided, and the continuing impact it has wrought on the English criminal justice system, should help the Singaporean courts, Ministry of Home Affairs and Ministry of Law navigate these rough waters. It is of paramount importance that they steer with caution, and avoid the same icebergs and maelstroms that sank the IPP scheme or turn back and not embark on this voyage at all, if they are unfit to weather these risks.

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TheNecessityExceptiontoLitigationPrivilege:Examiningan AccusedPerson’sRighttoRelyonPrivilegedCommunicationsin theUnitedKingdom,Canada,

andSingapore

INTRODUCTION

NicholasChin*

Forthefirsttime,the Singapore HighCourtrecognisedthe“necessity exception”tolitigation privilege in criminal proceedings (see Public Prosecutor v Soh Chee Wen and another1 (“Soh”)).

Litigation privilege, one of two components of legal professional privilege, protects from disclosure communications made between a client and his lawyer or a third party for the primarypurposeofpendingoranticipatedcourtproceedings.Theprivilegeiscloselylinkedto thenatureoftheadversarialprocessandtheautonomyofapartytopreparehiscaseashesees fit. Hence,the rationale for theprivilege is that in order for partiesto exercise that autonomy, thecommunicationsmustbegivenanecessarydegreeofconfidentiality2 .

Underthe necessity exception, ifan accused person showsthatit would benecessary for him torelyoncommunicationsbetweentheProsecution(orinvestigators)andthewitnesses(which is protected by litigation privilege) to defend himself in criminal proceedings, and that his interestoutweighsthatoftheProsecutionclaimingtheprivilege,thenprivilegemaybelifted.

However,asthecourtin Soh didnotoffermuchexplanationastothefactorstobeconsidered by the courts when deciding whether to lift the privilege, the necessity exception is still very muchinitsinfancy.The courtin Soh merelystatedthatfortheexceptiontoapply,anaccused

*NationalUniversityofSingapore,LLBClassof2026

1PublicProsecutorvSohCheeWenandanother[2020]3SLR1435(“Soh").

2 JeffreyPinsler, EvidenceandtheLitigationProcess (7thedn,LexisNexis2020)(“Pinsler, Evidence”)at[14.002].

person may show that “his interest outweighs that of the Prosecution claiming the privilege”3 Hence, the case of Soh is unlikely to be the final word on the subject. This article submits that the Singapore courts should adopt an approach similar to that of Canada, where an accused would be permitted to rely on a privileged communication provided that the accused satisfies clearly defined requirements.

This article will first set out the law in Singapore in relation to legal professional privilege, and the recognised exceptions to this privilege, under which one may rely on privileged communications.Thedecisionof Soh anditsshortcomingswillthenbeexaminedmoreclosely. Thereafter, this article will survey the relevant law on legal professional privilege and an accused’s right to rely on privileged communications in the UK and Canada, which have taken vastly different positions. Finally, this article will show why the Singapore courts should adopt a position like that of Canada, and not the UK.

A. AnAccused Person’s Right to Rely on Privileged Communications in Singapore

1. An Overview of Legal Professional Privilege and its Exceptions (Before Soh)

Before discussing the law in Singapore in relation to an accused’s right to rely on privileged communications, anexaminationofthenatureoflegal professional privilegeandits exceptions would be appropriate.

Legal professional privilege exists primarily in two forms: legal advice privilege and litigation privilege4. It concerns the “proper and effective representation of the client in the administration of justice”5. It accords the client a right to withhold disclosure of the contents

3 Soh (n 1) at [20].

4 Skandinaviska Enskilda BankenAB (Publ), Singapore Branch vAsia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR(R) 367 (“Skanidnaviska”) at [23].

5 JeffreyPinsler, Evidence and the Litigation Process (7thedn,LexisNexis2020)(“Pinsler, Evidence”)at[14.003].

ofclient-lawyer communications, whichwouldor might prejudicehim6.Legal advice privilege protects the confidentiality of the communications between the client and his lawyer7, and litigation privilege protects information passing between a third party and the client or his lawyer for the dominant purpose of pending or anticipated court proceedings8

As a preliminary note, it is worth noting that although the courts in each of the three jurisdictions have often drawn a distinction between legal advice privilege and litigation privilege when discussing applicable exceptions to legal professional privilege, they have found that the recognised exceptions are equally applicable to both forms of legal professional privilege.

The courts in Singapore have also appeared to approve the view of legal professional privilege as being a “fundamental human right” and a “basic tenet of the common law”9.Therefore, prior to Soh, legal professional privilege could only be lifted under a limited range of circumstances. For instance, where a client discloses privileged information to third parties, the privilege is waived by an express or an implied waiver10. Another instance is when the communication is made in furtherance of any illegal purpose, or where any advocate or solicitor in the course of his employment observes any fact showing that a crime or fraud has been committed since the commencement of his employment11 .

6 Skandinaviska (n 2) at [25].

7 Pinsler (n 3) at [14.001].

8 Ibid at [14.002].

9 Yap Sing Lee v Management Corporation Strata Title Plan No 1267 [2011] 2 SLR 998 at [42].

10 For a discussion of waiver in the context of legal advice privilege, see Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and Others [2009] 1 SLR(R) and ARX v Comptroller of Income Tax [2016] 5 SLR 590, and for a discussionofwaiverinthecontextoflitigationprivilege,see Rahimah Bte Mohd Salim v Public Prosecutor [2016] 5 SLR 1259.

11 Evidence Act 1893 s 128(2)(a) and (b); Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd [2010] 1 SLR 833 at [29].

While s 128 of the EvidenceAct 1893 (“the EA”) is clear in stating that communications made in furtheranceof anillegal purposewill not beprotectedin thecontext oflegal adviceprivilege, the EA appears to be silent on litigation privilege as a whole12. Nevertheless, as Professor Pinsler had submitted, the court should, in the interest of the administration of justice and in the absence of any provision in the EA governing the operation of litigation privilege, act purposively by extending theprinciple in s 128(2)(a)EAto litigationprivilege13.If legal advice privilege may not be used to conceal unlawful conduct, then neither should litigation privilege14 .

2. AnAccused’s Right to Rely on Privileged Communications

The EAdoes not address the issue of whether an accused person is entitled to rely on privileged communications between another person and his lawyer, for the purpose of defending himself.15 Such an issue has not been raised before the Singapore courts until Soh

The decision of Soh arose from the Prosecution’s application for further arguments on two evidential issues: firstly, whether the Prosecution is entitled to assert litigation privilege and secondly, whether litigation privilege protects communications between prosecutors (or investigators) and witnesses in the preparation of conditioned statements and in the preparation of witnesses for giving evidence in court16 .

12 Colin Liew, Legal Professional Privilege (2nd edn, Academy Publishing 2020) (“Liew, Legal Professional Privilege”) at [5.73]; Pinsler, (n 3) at [14.113].

13 Pinsler, (n 3) at [14.115].

14 Ibid at [14.113].

15 Ibid at [14.075].

16 Soh (n 1) at [1].

WhiletheProsecutionsubmittedthatthecommunications in thepresent case shouldbecovered by litigation privilege, they caveated that litigation privilege is not absolute in nature, and that the law should be developed to “recognise that litigation privilege should not apply where a party can show that it is necessary that he be allowed to adduce otherwise privileged evidence, because the probative value of the evidence outweighs the interest of the other party in preserving the confidentiality of the information”. The court then referred to this as “the necessity exception”17 .

After considering the Prosecution’s submissions and undertaking a brief survey of the approaches of other common law jurisdictions, the court was persuaded that the Prosecution has the right to assert litigation privilege18. The court also accepted that certain established exceptions, such as the fraud exception and implied waiver, would also be applicable to litigation privilege19

Given the serious consequences of criminal proceedings for accused persons, the court also found the Prosecution’s proposition that the law should recognise the necessity exception to be a fair one. The court stated that even if the communication fulfils the conditions of litigation privilege, an accused person may then show that it would be necessary for him to rely on the evidence, and that his interest outweighs that of the Prosecution claiming the privilege20 .

Thus, the decision in Soh has paved the way, not only for the Prosecution to claim litigation privilege over communications during witness interviews or preparation sessions, but also for the court to lift the privilege where the defence wishes to rely on the communications for his defence and the court finds it appropriate to do so.

17 Soh (n 1) at [7].

18 Soh (n 1) at [11].

19 Soh (n 1) at [17]-[19].

20 Soh (n 1) at [20].

Respectfully,however,thedecisionin Soh facesafewdifficulties.Asnoted byLiew,theauthor of Legal Professional Privilege21, it is unclear how the necessity exception would operate in practice. For instance, the Prosecution and the court agreed that, in relation to a witness’s account of what he was shown or told during an interview, the threshold for establishing the necessity exception was “not high” (at [24]). On this basis, Liew opined that this suggests that the threshold of “necessity” is an arbitrary one 22 .

There was also no further explanation provided as to when the threshold might be met, nor were there any relevant factors suggested which might help guide a future court in deciding when an accused’s interest outweighs that of the Prosecution. The court in Soh simply stated that an accused person may show that it would be necessary for him to rely on the privileged communication, and that “his interest outweighs that of the Prosecution claiming the privilege”23 . Further, the necessity exception appears to have been recognised without considering any case law or authority on this point.The only authority which the court referred to was a passage from Professor Pinsler’s book, Evidence and the Litigation Process, stating that “the Prosecution accepted that “litigation privilege may have to be subjected to a balancing operation where there is a competing interest of importance, such as the need of an accused person to rely on evidence for his defence””24 .

Therefore, in light of the difficulties in Soh, a future court would likely have to decide on the development or the abandonment of the exception. This article will now proceed to examine the approaches of the other two jurisdictions towards this issue.

21 Liew (n 10) at [7.11].

22 Ibid at [2.108].

23 Soh (n 1) at [20].

24 Liew, (n 10) at [2.106].

B. AnAccused Person’s Right to Rely on Privileged Communications in the UK

1. An Overview of Legal Professional Privilege and its Exceptions

In the UK, legal professional privilege is regarded as a single privilege, whose sub-heads are legal advice privilege and litigation privilege25.The UK courts have explained the rationale for legal professional privilege in a similar manner as Singapore26: as a fundamental condition to the administration of justice, “a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth”27 .

Exceptions to legal professional privilege includes the waiving of privilege by the client, or where the communication or document in question was created for the purpose of furthering or facilitating crime or fraud (“the fraud exception”)28 .

In Kuwait Airways, the court found that the fraud exception would apply to both litigation privilege as well as legal advice privilege. The court in Kuwait Airways quoted Rix J’s words in Dubai Aluminium Co29, who held that “criminal or fraudulent conduct undertaken for the purpose of litigation falls on the same side of the line as advising on or setting up criminal or fraudulent transactions yet to be undertaken.”

30

2. AnAccused’s Right to Rely on Privileged Communications (“The English Approach”)

25 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at [105].

26 Skandinaviska (n 2).

27 R v Derby Magistrates’ Court, ex parte B [1996] 1AC 487 at 507; Liew (n 10) at [5.09].

28 Kuwait Airways Corporation v Iraqi Airways Company [2005] EWCACiv 286 at 21 (“KuwaitAirways”) .

29 Dubai Aluminium Co Ltd v Al Alawi [1999] 1 WLR 1964.

30 Kuwait (n 20) at [33].

To best understand the UK’s position on the accused’s right to rely on privileged communications, it would be helpful to examine the key decisions that have dealt with this issue.

In the English Court of Appeal decision of R v Ataou31 (“Ataou”), the appellant was charged with conspiring to supply and supplying a controlled drug. A co-accused, H, pleaded guilty to the conspiracy charge, and gave evidence for the prosecution. Counsel for the appellant wanted to cross-examine H about a statement he had made to a representative of his solicitors, which wasfavourabletotheappellant,butHclaimedthat thestatementwasprivileged.Thetrialjudge ruled that without H’s consent to waive his claim of privilege, such a cross-examination would be a breach of privilege, and the appellant was later convicted.

The English Court of Appeal (“CA”) allowed the appeal against the conviction, holding that where a defendant seeks to rely on a document over which a client claims privilege, the defendant must show on a balance of probabilities that the claim cannot be sustained, and the judge must then balance the interests of the parties, and determine whether the interest of the defendant in seeking to lift the privilege outweighs that of the client in seeking to maintain it

32 .

Atwo-stage test was essentially laid down by the CA: first, it had to be determined whether the client continued to have any recognisable interest in asserting legal professional privilege and second, whether his interest outweighed the public interest that relevant and admissible documents should be made available to the defendant33 .

Applying the test, on the facts, the CAin Ataou identified only two factors which might show that H continued to have a recognisable interest in asserting the privilege: first, that if the

31 R v Ataou [1988] QB 798.

32 Ibid at 807.

33 Liew (n 9) at [2.76].

statementwere disclosed, it might have an adverse influence onthe judgeduringhis sentencing and second, that the disclosure might expose him to a risk of prosecution for perjury. The CA found that the first risk could have been avoided by arranging for a different judge to sentence H, and as for the second risk, the court found it too theoretical to carry much weight. Accordingly, the appeal was allowed34 .

The decision in Ataou appeared to suggest that the courts should adopt a balancing approach, and this case signalled the court’s willingness to examine the needs of each party and to decide through the balancing of these interests35. However, this approach was subsequently rejected by the House of Lords (“HL”) in R v Derby Magistrate’s Court Ex p B36 (“Derby Magistrate’s”).

In Derby Magistrate’s, the applicant was formerly charged with the murder of a 16-year-old girl, and he made a statement to the police admitting to the murder. Later, before his trial, he retracted that statement and alleged that his stepfather had killed the girl. The applicant was acquitted, and the stepfather was later charged with the girl’s murder. The applicant gave evidence for the prosecution and the counsel for the stepfather, in cross-examining the applicant, asked about the instructions he had initially given to his solicitors when admitting to the murder. The applicant declined to answer on the basis that the instructions were privileged material. An application for a witness summons was then made by counsel for the stepfather for, inter alia, the production of the attendance notes by the applicant’s solicitor and the application was allowed. The applicant then appealed37 .

The HL held that such a witness summons could not be issued as the principle that a client should be free to consult his legal advisers without fear of his communications being revealed

34 Ataou, (n 23) at 808.

35 Pinsler (n 3) at [14.078].

36 R v Derby Magistrate’s Court Ex p B [1996] 1AC 487.

37 Ibid at 495 to 497.

was a fundamental condition on which the administration of justice rested38. The HL also held that notwithstanding the public interest in ensuring that all relevant evidence was made available to the defence, legal professional privilege was to be upheld in all cases as the predominant public interest, even if the witness no longer has a recognisable interest in preserving the confidentiality39 .

The HLalso took the opportunity to determine if R v Ataou was decided correctly. The HLhad stated that it was in the wider interests of clients who might otherwise be deterred from telling the whole truth to their solicitors that “no exception should be allowed to the absolute nature of legal professional privilege, once established” and accordingly, the HL overruled R v Ataou40 Further, Lord Nicholls explained that, given that a balancing exercise necessarily entails weighing one interest against another, the courts would be faced with an impossible task41 How would the court deal with, for instance, a minor civil claim, vis-a-vis a serious criminal charge? Taking it one step further, could the prosecution also seek disclosure, on the ground that there is a public interest in convicting the accused? Lord Nicholls opined that confidence in non-disclosure is essential if the privilege is to achieve its raison d'etre, and if the limits to the balancing test are unclear, then that confidence cannot exist42. Hence, the HL had rejected the balancing exercise in the context of legal professional privilege.

38 Derby Magistrate’s (n 28) at 507.

39 Ibid at 509.

40 Derby Magistrate’s, (n 28) at 508-509.

41 Ibid at 511 to 512.

42 Derby Magistrate’s, (n 28) at 512.

The decision of Derby Magistrate’s has remained good law in the UK, and the seminal case for the proposition that where the material in question is subject to legal professional privilege, the person who can claim that privilege has an absolute right to do so43 .

It is noteworthy that the case of In re L. (A Minor) (Police Investigation: Privilege)44 (“Re L”) had distinguished Derby Magistrate’s. In Re L, a child of heroin addicts was admitted to ahospitalafterconsumingalargenumberofdrugs.Themother’s explanationwas thatthechild had accidentally consumed the drugs. The local authority instituted care proceedings under the Children Act 1989 and the mother filed a report by a pathologist which cast serious doubt on the mother’s account of accidental ingestion. The police learned about the report and applied for a copy of it, in order to investigate possible criminal offences. The mother then sought to prevent this, arguing that the report was protected by legal professional privilege.

The HL rejected the mother’s argument and appeared to reject the absolute nature of legal professional privilege as established in Derby Magistrate’s. The HL stated that there was a “clear distinction” between the privilege attaching to communications between solicitor and client, and that of reports by third parties prepared for the purposes of litigation45. The HLalso held thatsinceproceedings undertheChildrenAct 1989wereinvestigative andnon-adversarial in nature, and that the welfare of the child was the primary consideration in such proceedings, litigation privilege was necessarily excluded from the terms and overall purpose of theAct and did not extend to reports obtained by a party to care proceedings46

43 Liew (n 9) at [2.103]; S County Council v B [2000] Fam 76 at 87.

44 re L. (A Minor) (Police Investigation: Privilege) [1997]AC 16.

45 Liew (n 10) at [2.99].

46 re L. (n 36) at 16 and 17.

The decision in Re L appeared to suggest that litigation privilege was not as absolute as legal advice privilege and can always be overridden by a stronger public interest47. Further, the decision in Re L also appears to be a reversion to the balancing test in Ataou, at least in the context of litigation privilege. Nevertheless, apart from this decision, there is no other English authority that suggests that litigation privilege is any less absolute than legal advice privilege.

In fact, it was in S County Council v B48 that the court concluded that both legal advice privilege and litigation privilege were integral parts of a single privilege and that Derby Magistrate’s was not confined merely to legal advice privilege. Hence, Derby Magistrate’s is still authorityfortheproposition thatwheretherelevant material is subject to legal professional privilege, which includes litigation privilege, the person entitled to raise the privilege has an absolute right to do so49 .

C. AnAccused Person’s Right to Rely on Privileged Communications in Canada

1. An Overview of Legal Professional Privilege and its Exceptions

Like the UK and Singapore, in Canada, the concept of solicitor-client privilege has long been recognised as “fundamental to the due administration of justice50

The courts in Canada have drawn a distinction between legal advice privilege and litigation privilege, stating that, given the difference in scope, purpose and rationale, they are “distinct conceptual animals” and are not two branches of the same tree”51. In Blank v Canada, the Supreme Court of Canada had ruled that unlike legal advice privilege, litigation privilege was

47 Liew, Legal Professional Privilege supra note 9 at [2.100].

48 S County Council v B [2000] Fam 76.

49 S County (n 40); Liew (n 10) at [2.103].

50 Canada v Solosky [1980] 1 SCR 821.

51 Blank v Canada (Minister of Justice) [2006] 2 SCR 319 (“Blank v Canada”) at [7].

of limited duration. Nevertheless, the court reiterated that they both serve a common cause, the secure and effective administration of justice52 .

There are afewexceptions to thesolicitor-client privilege,oneofwhichis what Canadiancases refer to as the “innocence at stake” exception, which shall be further addressed later in this article. The other two main exceptions include the crime or fraud exception and the exception involving matters of public safety.

The crime or fraud exception applies where any solicitor-client communications are criminal in themselves, or the communications are made in order to obtain legal advice to facilitate the commission of a crime53. The latter is also referred to the “future crimes exception”, which covers a situation whereby a client deliberately uses his lawyer to facilitate any unlawful conduct that is simply not within the proper functional scope of the privilege54

As for the exception relating to public safety, the Canadian courts have stated that society recognises the importance of the safety of the public and that in appropriate circumstances, this would warrant the lifting of solicitor-client privilege55. Where the interest in the safety of members of the public is engaged, the privilege would have to be balanced against this compelling public need.The courts have also explained that in rare circumstances, these public interests may be so compelling that the privilege must be displaced56 .

In deciding when the solicitor-client privilege should be displaced, three factors will be considered bythe courts: first, is there aclear risktoanidentifiablepersonorgroup of persons?

52 Ibid at [31].

53 Smith v Jones [1999] 1 SCR 455 at [55]; R v Mierzwinski [1982] 1 SCR 860; R v Campbell [1999] 1 SCR 565.

54 McDermott v McDermott 2013 BCSC 534 at [74].

55 Smith v Jones [1999] 1 SCR 455 at [76].

56 Ibid at [74].

Second, is there a risk of serious bodily harm or death? Third, is the danger imminent? If the risk is imminent, the danger is serious57 .

While these cases have discussed the exceptions mainly in the context of solicitor-client privilege,thecourtshave madeitclearthattheexceptionsthatapplytosolicitor-clientprivilege are all applicable to litigation privilege58

2. An Accused’s Right to Rely on Privileged Communications (“The Canadian Approach”)

Unlike the courts in the UK, the Canadian courts have recognised that solicitor-client privilege must yield to the right of accused persons to fully defend themselves59, and have referred to this as the “innocence at stake” exception60

Anexaminationoftheseminal casefortheinnocenceat stakeexception, R v McClure61,would be relevant and helpful at this juncture. In R v McClure, M was a librarian and teacher at a school in the 1970s and in 1977, M was charged with sexual offences against 11 former students. After reading about M’s arrest, the appellant gave a statement to the police making allegations against M, and these allegations were later added to the indictment against M. The appellant also brought a civil action against M, and M sought production of the civil litigation file to determine the nature of the allegations and to assess the appellant’s motive to exaggerate

57 Smith (n 48) at [77].

58 Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521 at [41].

59 Smith v Jones [1999] 1 SCR 455 at [52] - [53]; R v Dunbar and Logan 1982 CanLII 3324; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 607 (per McLachlin J.); and in A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536 (per L’Heureux-Dubé J.).

60 R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445; R v Brown, 2002 SCC 32 (CanLII), [2002] 2 SCR 185, per Major J.

61 R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14.

incidents of abuse. An order for production of the file was initially granted and the appellant appealed against this order.

The court allowed the appeal and ordered that the order for production be set aside62.The court began its analysis by acknowledging the competing interests at play: that the policy justifying the solicitor-client privilege might clash with an accused’s right under s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence63 .

After analysingthe evolutionofthesolicitor-client privilege andits status in theCanadian legal system64, the court stated that the privilege is not absolute and is subject to certain exceptions65 . The court also held that the privilege must be “as close to absolute as possible to ensure public confidence and retain relevance” and that accordingly, the privilege would only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis66. This statement of law is interesting, given that it appears to be at odds with what the courts have said earlier in Smith v Jones about the need to balance the interest in the protection of the innocent accused against the solicitor-client privilege67

The court then emphasised the importance of an accused person’s right to make full answer and defence as a principle of fundamental justice. The right of an accused to full answer and defence engages the right to life, liberty, security of the person and the right of an innocent

62 Ibid at [67].

63 McClure (n 54) at [3].

64 McClure (n 54)at [17] - [33].

65 McClure (n 54) at [34].

66 McClure (n 54) at [35].

67 Smith (n 48) at [74].

person not to be convicted68. Therefore, given the importance of this right, as well as the right to solicitor-client privilege, neither can always prevail69 .

In light of the foregoing considerations, the court devised a new stringent “innocence at stake” test, where the privilege would only be infringed if it involves core issues going to the guilt of the accused and there is a genuine risk of a wrongful conviction70

Before going into the test, at the threshold stage, the accused must first establish that the information he is seeking in the privileged document is not available from any other source and he is otherwise unable to raise a reasonable doubt as to his guilt in any other way71. By way of example, if the accused could raise a reasonable doubt by access to the solicitor-client file but could also raise a reasonable doubt through alibi and identification, then it would not be necessary to use the file.

If the accused can establish that the information he is seeking is not available elsewhere and is otherwise unable to raise a reasonable doubt, then the test will be applied in two stages.At the first stage, the accused must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt, upon which the judge will then decide whether to review the evidence72.This stage seeks to prevent “fishing expeditions”, and to not make it too easy for an accused to demand examination of the privileged file. Hence, mere speculation as to what the said file might contain will be insufficient73

68 McClure (n 54) at [41].

69 Ibid at [42].

70 McClure (n 54) at [47].

71 McClure (n 54) at [48].

72 McClure (n 54) at [50].

73 McClure (n 54) at [52]-[53].

At the same time, the court recognised that stage 1 is to be assessed in light of what the accused knows, as the accused would likely only be able to provide a description of a possible communication, and it would be unfair and difficult for an accused to produce anything more precise

74

If the judge is satisfied that such an evidentiary basis exists, then the judge will proceed to examine the file to determine whether there is, in fact, a communication that is likely to raise a reasonable doubt. If the second stage is met, then the judge should order the production of the file, but only the portion that is needed to raise the defence claimed by the accused75. The court explained that for this stage, in most cases, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement. If, for instance, the evidence simply advances an ancillary attack on the Crown’s case by destroying the credibility of a witness or shows that the evidence was obtained unconstitutionally, this requirement will seldom be met

76

On the facts, the court in R v McClure held that the first stage of the innocence at stake test wasnotmet,astherewas noevidencethattheinformationsoughtbyMcouldraiseareasonable doubt as to his guilt77. Further, the accused would have been able to raise the issue of the appellant’s motive to fabricate events from another source other than the privileged file, by pointing out the sequence of events leading up to the civil action78 .

74 McClure (n 54) at [54].

75 McClure (n 54) at [51].

76 McClure (n 54) at [58].

77 Ibid at [64].

78 Ibid at [65].

The landmark decision in R v McClure remains good law in Canada, and the test has been applied in later cases79. While the Canadian court in R v McClure appeared to reject the balancing of interests on a case-by-case basis, the nature of legal professional privilege is not as absolute as in the UK80. The Canadian courts’ rejection of the balancing test for the lifting of legal professional privilege was not because legal professional privilege is absolute, but rather, because a balancing test would lead to “unnecessary uncertainty and a proliferation of pre-trial motions in civil litigation”81. The court noted in Lizotte that what must be done, where appropriate, is to identify specific exceptions to litigation privilege rather than to conduct a balancing exercise in each case, and these exceptions should be clearly defined82

D. SummaryofSingapore,UKandCanada’s approaches towardsanaccused’s right to rely on privileged communications

79 R v Brown, 2002 SCC 32 (CanLII), [2002] 2 SCR 185.

80 Liew (n 10) at [2.84].

81 Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (CanLII), [2016] 2 SCR 521 (“Lizotte”) at [39].

82 Ibid at [39] and [41].

The diagram above neatly summarises the positions of the various jurisdictions towards an accused’s right to rely on privileged communications.

Singapore’s approach, at least as envisaged in Soh, encompasses a balancing approach, where the accused would have to show that his interest outweighs that of the Prosecution’s interest in upholding the privilege.

The UK’s approach towards the issue may be termed as “absolutist”, given that the HL had made it clear that no balancing exercise was to be carried out in the context of an accused’s need to rely on privileged documents83. In the interests of allowing persons to consult their

83 Derby Magistrate’s, (n 28) at 512.

legal advisors without fear of his communications being disclosed, the HL had held that no exception should be allowed to the absolute nature of legal professional privilege84 .

The Canadian approach, while not entailing a balancing approach, involves a two-stage test that the court would apply based on the individual circumstances of the case. While the Canadian courts have rejected the balancing of interests on a case-by-case basis85, the courts have recognised the equal importance of an accused’s right to make full answer and defence and the right to uphold solicitor-client privilege.

Having laid out the approaches of each jurisdiction, the next section will address the reasons why the Singapore courts should adopt an approach like that of Canada’s two-stage test.

E. Should the Singapore courts develop or abandon the necessity exception?

This article argues that the Singapore courts should further develop the necessity exception, rather than abandon it. Further, this article argues that the Singapore courts should establish a test akin to that of Canada’s innocence-at-stake test, as opposed to a balancing test. Before going any further, this article will first consider if there is even a need for such an exception in Singapore.

1. Is there a need for the necessity exception?

It is submitted that there is certainly a need for the necessity exception, and there are two main reasons for this.

Firstly, the necessity exception serves as a safeguard against the prosecution’s right to claim litigation privilege. The exception was recognised in Soh as the court, keeping in mind the

84 Ibid at 511 to 512.

85 McClure (n 54) at [35].

serious consequences of criminal proceedings for accused persons, accepted the Prosecution’s proposition that a claim by the Prosecution to litigation privilege is subject to the necessity exception86.Itis clear from this thatthe courthad recognisedthe potentialharm thatan accused person may face if the Prosecution were to have an absolute claim to litigation privilege, such as the risk of an innocent person being denied a fair trial. Thus, the court had sought to recognisethe exceptionas aform ofsafeguard against theProsecution’s right to claim litigation privilege, so as to ensure that an accused person would not be prejudiced should he require the privileged communications in order to mount a defence.

As explained by Professor Pinsler, the Singapore Constitution is concerned with a fair trial and equality between the parties in criminal proceedings. The underlying assumption of art 9(1) of the Constitution, that ‘no person shall be deprived of his life or personal liberty save in accordance with law’, is a fair trial and a law which provides the accused with a proper opportunity to respond to the prosecution’s case with relevant and reliable evidence87

Hence, the recognition of such an exception is certainly necessary in view of the Prosecution’s right to claim litigation privilege, to ensure that the accused would not be deprived of an opportunity to rely on privileged communications for his defence.

The second reason why the necessity exception would be needed in Singapore is because it empowers the courts to do what is necessary based on the facts of the case before it, to ensure that justice is done. As may be observed from the fact patterns of the UK and Canadian cases set out in this article earlier, there are myriad of factual scenarios in which the accused may wish to rely on the privileged document. By recognising the necessity exception, the courts can then consider the accused’s need to rely on the privileged document based on the facts before the courts.

86 Soh (n 1) at [20].

87 Pinsler (n 3) at [14.078].

This article will now deal with the strongest arguments against recognising the necessity exception as envisaged in Soh, which shall be dealt with in turn.

2. Arguments against recognising the necessity exception in Singapore

a) Uncertainties surrounding the operation of the necessity exception

There has been much academic commentary on Soh highlighting the lack of clarity on how the necessity exception is to be applied. For instance, Liew explained that there was no explanation given as to what other types of interest would be of sufficient “necessity” to override litigation privilege88. Similarly, Lim had noted in his article that the only guidance provided by the court in Soh is merely for the accused to “show that it would be necessary for him to rely on the evidence, and that his interest outweighs that of the Prosecution claiming the privilege”89 .

To summarise the authors’arguments on this point, the necessity exception as set out in Soh is lacking in guidelines on the application of various aspects of the exception, including how the accused can show that his need to rely on the evidence outweighs the prosecution’s need to uphold the privilege, the threshold of proof, and whether it is open to the prosecution to show that the evidence should remain privileged to secure a conviction90

While the court in Soh may not have fully fleshed out the necessity exception, given that there are good reasons for recognising the exception (as alluded to in the previous section), the

88 Liew (n 10) at [2.106].

89 Aaron Lim Chor Yin, 'The Extension of Legal Privilege to Communications between the Prosecution and Witnesses for the Prosecution' (2020-2021) 38 Sing L Rev 106 at 116.

90 Liew (n 10) at [2.106] and [7.11]; Lim (n 89) at 116.

uncertainty of the operation of the exception alone should not justify the abandonment of the exception. To abandon the necessity exception simply for its lack of elaboration in Soh would be to throw the baby out with the bathwater.

b) The Prosecution cannot claim litigation privilege

Liew also suggests that the decision to recognise a necessity exception in Soh appears to have been a “quid pro quo” for recognising that the Prosecution could claim litigation privilege in criminal proceedings, and that the better view is that the Prosecution cannot claim litigation privilege, given that the duty of disclosure that the Prosecution owes would be “completely inconsistent” with any right to claim litigation privilege91. Hence, he submits that because the Prosecution does not have such a right, the necessity exception should not be recognised.

It is submitted that the Prosecution can claim litigation privilege in criminal proceedings as the rationale of litigation privilege is as applicable to the Prosecution as any other party in civil or criminal litigation. As noted in Soh, in other common law jurisdictions, such as Canada, Australia and New Zealand, the prosecution can indeed claim litigation privilege92. This is not surprising, given the rationale for litigation privilege: to ensure the efficacy of the adversarial process. To achieve this, parties to litigation must be left to prepare their contending positions in private, without fear of premature disclosure.This rationale was set out by the court in Blank v Canada, which has been endorsed by the SGCA in Skandinaviska. Hence, as a party to criminal proceedings, it follows that the Prosecution should be permitted to assert litigation privilege.

The Prosecution’s duty of disclosure would also not be “completely inconsistent” with the prosecution’s right to claim litigation privilege. Under Singapore law, pursuant to s 162 and s

91 Liew (n 10) at [7.09].

92 Soh (n 1) at [5].

214 of the Criminal Procedure Code 2010, the Prosecution must disclose the listed items, including the summary of facts, list of names of the witnesses for the prosecution, exhibits, conditioned statements, and so forth.

Further, the leading decisions on the duty of disclosure by the Prosecution, the twin Kadar decisions93, have stated that the Prosecution has a duty to disclose unused material that is (a) likely to be admissible and that might reasonably be regarded as credible and relevant to the accused’s guilt or innocence or (b) any unused material that is likely to be inadmissible but would provide a real (as opposed to fanciful) chance of pursuing a line of inquiry that leads to material in (a)94 .

These obligations, also commonly referred to as the “Kadar obligations”, were further developed in Muhammad Nabill95, where the SGCA held that the Prosecution ought to be under a duty to disclose a material witness’s statement to the Defence, which was referred to as the “additional disclosure obligations”96 .

Though the Prosecution’s disclosure obligations appear to be onerous and broad, they notably do not include any communications between the Prosecution and the Prosecution witnesses, which was what the court in Soh sought to address. The SGCAeven reiterated in Muhammad Nabill that for the avoidance of doubt, none of the Kadar obligations, nor the additional disclosure obligations, affect the operation of any ground for non-disclosure recognised by law.

93 Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 and Muhammad bin Kadar and another v Public Prosecutor and another matter [2011] 4 SLR 791.

94 Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 at [113].

95 Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984.

96 Ibid at [39].

Therefore, there is no reason why the Prosecution’s duty of disclosure would be “completely inconsistent” with the prosecution’s right to claim privilege, and accordingly, the Prosecution should be entitled to claim privilege.

Inlight oftheforegoing, it is submittedthatit is likely thattheSingapore courtswouldcontinue to recognise that the Prosecution is entitled to claim litigation privilege.Accordingly, it would follow that there should be a safeguard against such a claim to litigation privilege, by providing an avenue for the Defence to apply for the lifting of the privilege should the appropriate circumstances arise.

c) Recognising the exception would undermine the purpose of legal professional privilege

One of the commonly raised arguments against recognising any such exception to legal professional privilege is that its recognition would defeat the purpose of having such privilege in the first place.

As Liew explains, the main justification for the absolute approach in the UK is that any exception would “destroy the very rationale of legal professional privilege…people will be deterred from being completely frank with their legal advisors” out of fear that such candour may be used against them, which would “undermine the proper functioning of a society that is premised on people understanding their legal rights and obligations”97

Indeed, it was in Derby Magistrate’s where the HL had stated that a client must be sure that what he tells his lawyer in confidence will never be revealed without his consent98, and that “confidence in non-disclosure is essential if the privilege is to achieve its raison d’etre. If the boundary of the new incursion into the hitherto privileged area is not principled and clear, that

97 Liew (n 10) at [2.133].

98 R v Derby Magistrates’ Court, ex parte B [1996] 1AC 487 at 507.

confidence cannot exist.”99. As Lord Taylor states, “once any exception to the general rule is allowed, the client’s confidence is necessarily lost”100 .

Even in Canada, where the innocence-at-stake test was recognised, the Supreme Court in Lizotte (which concerned the issue of litigation privilege) stated how any uncertainty in how the privilege is to operate could have a chilling effect on parties preparing for litigation, who may fear that the privileged documents could be made public. The court cited a US Supreme court decision, which dealt with the US’ equivalent of the innocence-at-stake exception, to explain the consequences of such a chilling effect, such as unfairness, sharp practices and inefficiency in the preparation of cases101 .

Therefore, the courts in these jurisdictions have been mindful of the dangers of introducing any exceptions to legal professional privilege, which might lower the confidence of clients wishing to seek advice from their legal advisors.

However, it is submitted that this argument does not hold water for two reasons.

Firstly,thefearthatanyexceptionto legal professional privilegewouldunderminetherationale of the privilege is, to some extent, more apparent than real. As Liew stated, “it is not obvious…that the administration of justice in Canada has suffered in any appreciable way as a result of the exceptions to legal professional privilege introduced into Canadian law.”102

99 Ibid at 512.

100 Ibid at 508.

101 Lizotte at [53].

102 Liew (n 10) at [2.133].

The fact that the courts in the UK have recognised certain exceptions to legal professional privilege, even in the UK, shows that the introduction of exceptions per se would not necessarily undermine the rationale of the privilege.

Secondly, the HL’s rejection of such an exception in Derby Magistrate’s stems from the uncertainties surrounding a balancing approach. This means that what is being rejected, is not the existence of such an exception, but rather, a balancing approach when dealing with claims of legal professional privilege. This is evident from Lord Nicholls’ analysis of the balancing approach, where he had explained that in the absence of a method by which judges can ascribe weight to each competing interest, it is unavoidable that the prospect of a balancing exercise is illusory and that “any development in the law needs a sounder base than this”103

Therefore, it is submitted that if there is a clearly defined test like the innocence-at-stake test, with intelligible and logical steps that both the court and the parties could follow when determining or arguing when the privilege should be lifted, then the issue of uncertainty would be resolved.

d) Existing exceptions could address the issues in Soh

Liew also submitted that it was not clear why a necessity exception was needed to deal with the situation in Soh, as it would have been open to the defendant to utilise the fraud exception to questiontheprosecution’s witnessonthepreparationoftheirtestimonyiftherewas evidence of improper witness coaching, or to rely on the ground of waiver if the communications were expressly referred to by the witnesses in their testimony104 .

103 R v Derby Magistrates’ Court, ex parte B [1996] 1AC 487 at 512.

104 Liew (n 10) at [7.12].

Itissubmittedthatthisargumentdoesnotbearscrutinyasitisclearthattheexistingexceptions, such as waiver or the fraud exception, apply only to very particular and narrow factual situations. One could see how, should a factual scenario come before the courts, which falls short of a “furtherance of an illegal purpose” or “a disclosure of information to third parties”, the accused, who might have a genuine claim or need to rely on the privileged information, would have no way to show that the privilege should be lifted.

Given the various fact patterns of the UK and Canadian cases set out in this article earlier, there are many factual scenarios in which the accused may wish to rely on the privileged document. By recognising the necessityexception,the courts wouldbe ableto consider theaccused’s need to rely on the privileged document based on the facts before it and would not have to resort to pigeonholing the case into one of the existing exceptions to legal professional privilege.

To conclude this section on arguments against recognising the necessity exception, it is submitted that there are good reasons for the necessity exception to be further developed. The issues raised in relation to the lack of clarity on how to apply the necessity exception can be remedied by formulating a test that is clearly defined and easily applicable by the courts, regardless of the factual matrix before it.

3. Singapore ShouldAdopt the CanadianApproach

The court in Soh had recognised the necessity exception in the form of a balancing test, citing ProfessorPinsler’ssubmissionthat“litigationprivilegemayhavetobesubjectedto abalancing operation where there is a competing interest of importance, such as the need of an accused person to rely on evidence for his defence”.

Before Soh was decided, Professor Pinsler had proposed that the courts should adopt the balancing approach as applied in R v Ataou, as it would be the “fairest method of determining whether the privilege should operate”, given that it considers the interests of both the privilege

holder and the accused in the context of overall justice105. In an article published after Soh, Professor Pinsler even went one step further to state that the rationale of litigation privilege justifies the application of the balancing test to civil cases as well106 .

In support of his submission that a balancing test should be adopted, Professor Pinsler stated107 thattheuse of abalancingtest as amechanism for weighinglegal professional privilege against countervailing factors which militate against the privilege was favoured by the court in Gelatissimo108, though the test was not actually applied in that case.

In Gelatissimo, where the court discussed the ambit of the “fraud” exception and the need to strike a balance between the protection of legal privilege and the importance of preventing the commission of fraudulent or criminal acts, the Singapore High Court found that the balancing approach is best suited for resolving the question of the extent to which legal privilege should give way to other countervailing public policy considerations109. The court noted that legal privilegecannotexistinavacuumandmustnecessarilyco-existwithotherimportantprinciples and, accordingly, the court was inclined to incorporate some form of balancing exercise.

Similarly in Law Society of Singapore v Tan Guat Neo Phyllis110, which concerns Singapore’s approach to entrapment evidence, the court explained that because criminal conduct spans a large number and spectrum of offences in terms of harm to society, it would be undesirable to treat all preceding illegal conduct as sufficient to exclude the evidence obtained. The court

105 Pinsler (n 3) at [14.082].

106 Jeffrey Pinsler, ‘Status of Privileged Communications Inadvertently Disclosed in Civil or Criminal Proceedings’(2021) 33 SAcLJ 959 at [32].

107 Pinsler (n 3) at [14.119].

108 Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd [2010] 1 SLR 833.

109 Ibid at [61].

110 Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239.

noted that the very existence of competing or conflicting public interests requires the court to make a choice as to whether, in a particular case, one interest outweighs the other. Hence, the court decided that the appropriate test, if such a test was necessary to determine whether or not entrapment or illegally obtained evidence should be excluded, would be a balancing test that takes into account all the relevant factors111 .

Hence,theSingaporecourtshavemootedtheideaofabalancingtestwheretherearecompeting interests at play. At first blush, the balancing test appears to be an appropriate test to decide when legal professional privilege should be lifted for the accused to rely on a privileged document, given that there are two competing public interests at play and there is a myriad of situations whereby the accused may need to rely on the privileged communication.

However, it is submitted that the nature of the competing interests at play here are different than that in Gelatissimo and Phyllis and therefore, this warrants a more calibrated and clearly defined test than a basic balancing test. As noted by the UK courts, the hallmark of legal professional privilege is the confidence of clients that the information that they disclose to their legal advisors would not be disclosed. Therefore, unless the exception is clearly defined, no exception should be permitted to legal professional privilege. While this article argues against the UK’s absolutist approach, the concerns raised by the UK courts about the balancing approach are valid.

As explained by Professor Patrick in his article on balancing tests in general112, the balancing test does not ensure that like cases will be treated alike. If the balancing test was to be adopted, the law on legal professional privilege would be left unclear, as a decision to lift the privilege would be decided on a case-by-case basis. There would be no certainty or predictability in outcomes, and parties to proceedings cannot be assured that what they say will be protected by

111 Ibid at [113].

112 Patrick M McFadden, ‘The Balancing Test’ (1988) Boston College Law Review Vol 29 585 at 642.

legal professional privilege. It is also for this reason that both the UK and Canada have rejected the balancing test for issues relating to legal professional privilege.

Therefore, it is submitted that the innocence at stake test, or a test akin to that, should be adopted by the Singapore courts in deciding when an accused person may rely on privileged communications. Byhavingaclearprocedurebywhichtheaccusedmayapply fortheprivilege to be lifted, it ensures predictability and certainty in the law, and that all relevant parties to proceedings can be assured that their information would be kept protected by privilege.

However, the application of the innocence at stake test is not without its challenges. In one of Professor Pinsler’s older articles, he had raised several concerns about the test113. For instance, among other concerns, he explained that the standard of proof of the innocence at stake test appears to be higher than that of the test in cases such as Ataou114. He noted that there may be circumstances in which the judge concludes that the privileged evidence could make a difference in securing an acquittal but cannot conclude that it is likely to do so (as required in the second stage of the innocence at stake test). Hence, in such circumstances, the court cannot lift the privilege despite the privilege-holder no longer having any interest in upholding the privilege115 While the threshold for lifting the privilege, as laid out in McClure, appears to be unduly high, it is submitted that such a high threshold is justified on account of a client’s confidence that whatever information he shares with his legal advisors would not be disclosed, as well as the necessity of that confidence for the effective discharge of his counsel’s duty to him and the court.

113 Jeffrey Pinsler, ‘New Twists in Legal Professional Privilege: Communications for the Purpose of Litigation and between the Lawyer and Client’ (2002) 14 SACLJ 195 at [56] – [63].

114 Ibid at [58].

115 Ibid at [63].

As for the concern that the test does not allow for the consideration of certain factors, such as the privilege-holder’s continuing interest in upholding the privilege, it is submitted that these factors are not the most relevant factors for the court’s decision. Rather, the inquiry that the court must ultimately undertake is the extent to which the accused needs to rely on the evidence in order to make out his defence and whether there is any other way to mount his defence. Hence, the fact that the test may not permit the court to consider certain factors should not be considered a fatal flaw of the test, as the exception is ultimately concerned with the accused’s need to rely on the privileged document, and the document’s impact on his case.

CONCLUSION

In conclusion, the English approach towards legal professional privilege may be described as absolutist, as HOLhad rejected the balancing approach, emphasising on the need for parties to be assured that their communications with their solicitors would be protected by privilege. On theflip side,theCanadianapproachis not absolutist, andrecognises various situations whereby the privilege ought to be lifted in order for an accused person to raise a full defence.

Given that Singapore law has developed towards recognising the Prosecution’s entitlement to claim litigation privilege, there is a need to impose a safeguard on this entitlement in the form of the necessity exception. Notwithstanding the issues that have been highlighted about the decision in Soh, the necessity exception is worth retaining and developing, as it would serve to protect future accused persons who may need to rely on privileged materials for their defence.

Further, a test that is akin to the Canadian innocence at stake test is more suitable rather than a balancing test, as it would ensure certainty in outcomes, which also accords with the idea that partiestoproceedingsshouldbeabletoconfidein theirlegal advisorswithoutfearofdisclosure of the conveyed information.

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Punitive Damages: Intradisciplinary and Comparative Perspectives

Andre CHUATze Ming1, MirellaANG Yuan Ning2

I. Introduction

This article aims to elucidate the reasons for an award for punitive damages in private law. In particular, two research methods are employed simultaneously. First, employing a comparative approachbetweenSingaporeandtheUnitedStates,variousnuancesinjudicialattitudesemerge and give rise to a trove of data for interpretation. Second, an intra-disciplinary examination of tort law and contract law highlights the common purposes of punitive damages across different areas of law. The findings of these two methods are subsequently juxtaposed which uncovers novel insights upon examination. A balance between deterrence and proportionality in the remedy of punitive damages can be achieved through the use of principled judicial discretion.

After a survey of the Singapore and United States cases in the area and its subsequent analysis, this articledevelops atwo-stepframeworkonwhen punitivedamages shouldbeawarded.First, the requirement of “reprehensibility” or “outrageousness” must be satisfied. Second, the public policy aims of imposing punitive damages must be achieved, having sufficient regard for the nature and aims of contract or tort law at large.

As the law continues to evolve in the 21st century, the future of legal studies appears to correspondingly elevate in complexity. This article examining punitive damages is therefore the first of its kind in legal research methodology, through the use of both intra-disciplinary andcomparativemethods.Taking abroaderviewin terms ofprivatelawas awhole(as opposed

1 LLB Candidate (Class of 2026), National University of Singapore, Faculty of Law

2 LLB Candidate (Class of 2027), National University of Singapore, Faculty of Law

to a strictly contractual or tortious perspective) encourages a paradigm shift for greater consistency across legal disciplines. Additionally, responding to Minister for Law Mr. Shanmugam’s call to be “sensitive to [the] circumstances and the challenges” of the local legal landscape,3 this method of cross-jurisdictional comparisons enables courts to fashion legal remedies as it deems fit in the interests of justice.

This two-pronged approach advances legal studies by ensuring the law responds effectively to our increasingly globalised world. Credit for upholding the rule of law in Singapore goes to the judges and practitioners who prudently keep abreast of the latest developments across jurisdictions. Indeed, it “takes courage and wisdom on the party of each judge personally and the Judiciary as an institution”4 to resist the temptations of unprincipled reasoning. Comparative analyses remain one way to humbly learn from the rich experiences of others.

The contributions of this article are twofold. First, it clarifies the philosophical reasons for an award of punitive damages. Given the state of uncertainty in this area of law, this article consolidates the diverse range of jurisprudential views on the purpose of punitive damages. By examining the intra-disciplinary areas of torts and contracts, the doctrinal elements and motivations of courts are clarified.

Second, this article also makes contributions on a practical front. By elucidating the theoretical underpinnings of an award for punitive damages, legal practitioners are better able to consolidate the positions of their client as to whether an award for punitive damages is suitable. This clarifies the positions of litigants and their rights and/or liabilities for greater legal certainty. Practitioners and members of the judiciary also benefit from the cross-jurisdictional comparisons made in this article.They may make submissions by analogising or distinguishing their respective cases within their jurisdiction as they think appropriate to make advancements in the law.

3 K Shanmugam, ‘The Rule of Law in Singapore’(2012) SJLS 357 at 362

4 Chan Sek Keong, ‘The Courts and the ‘Rule of Law’in Singapore’(2012) SJLS 209, 231

3.3

law perspective, and the contract law perspective. The third section critically examines the functions of tort law and how punitive damages operates in the light of those functions. The Singapore jurisprudence is then juxtaposed with the cases from the United States. Briefly, for tort, this article argues that both Singapore and the United States appears to award punitive damages where punishment is warranted or deterrence is necessary, while they differ in the scope of the discretion of the courts.

Turning the attention to contract law, the fourth section adopts a similar structure to the third. After a brief literature review, the Singapore and United States perspectives are similarly compared and analysed. It is noteworthy that this article finds that both Singapore and the United States prize the sanctity of contracts very highly, yet they diverge the level of protection offered for vulnerable classes who enter into contracts without equal bargaining power. In the penultimatesection,thekeysimilaritiesanddifferencesbetweencontractsandtortsarestudied, and notable findings across jurisdictions are also presented. Interestingly, judicial attitudes lean towards a general reluctance to award punitive damages. However, they adjust appropriately towards the specific litigant, bearing in mind the human element of torts and criminal law versus the transactional nature of contract law. Finally, the article concludes with possible future extensions in this area of law.

II. Background

Punitive damages are a form of damages awarded in civil matters where the defendant’s conduct is found to be particularly harmful, reckless, or egregious. Also referred to as exemplary, retributory, or vindictive damages, punitive damages are distinguished from the plain meaning of “damages” in that punitive damages are non-compensatory.5 The philosophical basis for such damages may be a court’s way of conveying their intention to punish the defendant, with the aim of deterring similar conduct in the future.6 Others have

5 KB Soh, ‘Exemplary or Punitive Damages’(1998) Sing JLS 63, 63

6 J Goudkamp, E Katsampouka, ‘Punitive Damages and the Place of Punishment in Private Law’ (2021) 84:6 MLR 1257, 1258

opined that an award of punitive damages should also be considered in contexts where the defendant had acted with malice.7

The origins of punitive damages extend as far back to the 1760s in England.8 Since then, English courtshaveawardedpunitivedamages occasionallyin avariety ofcases.Theseinclude assault, false imprisonment, defamation, malicious prosecution, trespass to land, trespass to goods.9 Scholars have argued that punitive damages are likely to remain part of English law for the foreseeable future.10

Nonetheless, despite the relatively long jurisprudence, the philosophies undergirding punitive damages remains a confusing and contentious issue. Take for example the convoluted case history of A v Bottrill [2003] 1AC 449 (“Bottrill”) which was reversed thrice. Initially, the first decision denied the claimant an award of punitive damages given that the defendant was only plainly negligent. Upon further investigation, the first decision was allowed a re-trial upon the discovery of repeated and alarmingly negligent conduct, and punitive damages were granted. However, upon appeal at the New Zealand Court of Appeal, punitive damages were held to only be available in case where the defendant had been subjectively aware of the risk which their conduct posed. Punitive damages were thus denied. Upon appeal again, now at the Privy Council, the Privy Council ruled that no such awareness requirement was necessary for an award of punitive damages, and ultimately granted it.

The law on punitive damages is convoluted partly due to the confusion that exists as to the true purpose of punitive damages. Despite the lack of clarity in this area of the law, the Bottrill decision gave rise to Lord Nicholls’s famous remark that “‘Never say never’is a sound judicial

7 D Markel, ‘How Should Punitive Damages Work’(2009) 157 U. Pa. L. Rev. 1383, 1436

8 Henry Brooke, ‘A Brief Introduction: The Origin of Punitive Damages’in Helmut Koziol and Vanessa Wilcox (eds), Punitive Damages: Common Law and Civil Law Perspectives (New York Springer, 2009)

9 ibid

10 Vanessa Wilcox, ‘Punitive Damages in England’ in Helmut Koziol and Vanessa Wilcox (eds), Punitive Damages: Common Law and Civil Law Perspectives (New York Springer, 2009) at p53: “it appears that the scope... to go beyond purely compensatory damages and to award ‘exemplary’ damages will remain a part of English law for a while to come”.

admonition”.11 By taking the approach which allows the court to pursue decisions that it thinks fit in the appropriate circumstances (as opposed to limiting the court’s options by imposing strict rules), Lord Nicholls appears to be advocating for a flexible exercise of judicial power. Lord Nicholls bore flexibility at the forefront of his mind by starting his analysis with the source of the court’s jurisdiction to award punitive damages in the need to punish, deter, and mark society’s disapproval of outrageous conduct.12

However, Lord Nicholls’s flexible judicial approach does not appear to have been adopted universally. Interesting variations emerge across jurisdictions as to the judicial attitudes toward an award of punitive damages. For example, in Singapore, the Court ofAppeal in Sim Poh Ping v Winsta Holding Pte Ltd and another and other appeals [2020] 1 SLR 1199; [2020] SGCA35 (“Winsta”) contrasted common law remedies with that in equity. It held that common law remedies are compensatory in nature with punitive damages to be awarded in exceptional cases.13 The reason for the compensatory focus in Singapore is the starting point that the innocent party and the wrongdoing party are independent actors who stand on equal footing and are legally capableofprotectingtheirrespectiveinterests andpositions.14 Extending thisprincipleofequal actors, the common law awards damages to compensate the innocent party with sufficient regard to the wrongdoing party’s interests. This means that a contract breaker or a tortfeasor has their interests considered in the court’s decision despite their wrongdoing, which keeps the wrongdoing party’s liability within reasonable limits. In the absence of special circumstances, deterrence is not the main aim in the remedy that the court fashions under common law.15

On the other hand, the United States takes a different approach. Notably, five states prohibit commonlawpunitivedamages,namely,Louisiana,Massachusetts,Nebraska,NewHampshire,

11 Bottrill at [26]

12 Bottrill at [21]

13 Winsta at [245]

14 Winsta at [245]

15 Winsta at [245]. See also Quality Assurance Management Asia Pte Ltd v Zhang Qing and others [2013] 3 SLR 631 at [37] and [40], and Canson Enterprises Ltd v Boughton & Co [1991] 3 SCR 534 at [3] per McLachlin J

andWashington.16 The prohibition of common law punitive damages inAmerica is noteworthy and possibly surprising to some, in the light of the wider scope of personal injury litigation in America compared to Singapore (for example, in product liability, motor vehicle, and medical negligence claims). For instance, the United States adopts a strict liability standard in some contexts.17 The United States also employs the ”consumer expectations test” where a claimant may establish their right to recover by proving that the product did not perform in keeping with the reasonable expectations of the user.18 On the other hand in Singapore, there “is no single comprehensive legislation... governing the manufacture, import, or supply of a defective product”19 and claims are limited to that in common law.20

Beyond differing approaches across jurisdictions, an award of punitive damages may vary depending on the contractual or the tortious context. Given that punitive damages have generally been discussed in the context of common law and the law of obligations, it is worthwhile to pursue an intradisciplinary study into the doctrines behind punitive damages in tort and contract law.

Preliminarily, the aims of tort law to compensate an injured party do not appear to directly cohere with the non-compensatory aims of a punitive damage award. As such, courts have attempted to bridge this gap by illustrating that punitive damages serve exemplary purposes (giving rise to the term “exemplary damages”) as well as deterrent functions.21 Thus, reexamining the fundamental purpose of punitive damages and tort law is likely to prove fruitful.

16 AJ Sebok, ‘Punitive Damages in the United States’ in Helmut Koziol and Vanessa Wilcox (eds), Punitive Damages, Common Law and Civil Law Perspectives (New York Springer, 2009).

17 ‘Product Liability’ (Legal Information Institute Wex, August 2020) <https://www.law.cornell.edu/wex/product_liability#:~:text=Product%20liability%20is%20a%20doctrine,of%2 0their%20intent%20or%20knowledge> accessed 5th July 2024

18 See Lassen v. Nissan N. Am., Inc., 211 F. Supp.3d 1267(C.D. Cal. 2016). In Re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices and Products Liability Litigation, 754 F. Supp. 2d1208 (C.D. Cal. 2010).

See also Miele v. American Tobacco Co., 2A.D.3d 799, 770 N.Y.S.2d 386 (N.Y.App. Div. 2003)

19 Lim Chong Kin and Bejamin Gaw, ‘Product Liability and Safety in Singapore: Overview’, Thomson Reuters Practical Law 2023 https://uk.practicallaw.thomsonreuters.com/w-013-0001 (accessed 26 June 2024)

20 Statutory protection in contracts appears to be indirectly conferred from the Sale of GoodsAct 1979, Supply of Goods Act 1982, Hire-Purchase Act 1969, Unfair Contract Terms Act 1977 and the Consumer Protection (Fair Trading)Act 2003.

21 United KingdomLaw Commission, Report on Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 11 September 1997) at para 1.15

Punitive damages appear to be firmly rooted in the foundations of the law of restitution and are likely to remain a necessary tool in any judiciary’s arsenal to effect justice.

In contrast, in contract law, punitive damages are wholly at odds with the compensatory principle, based on the agreement reached by parties in each respective contract. In an effort to uphold the sanctity of contract by holding parties bound to what they agreed to, punishment and deterrence are already concepts that are entirely foreign.22 Hence, courts are hesitant to enforce liquidated damages that are so high such that they constitute a penalty, even though such “penalties” had been previously agreed on by parties 23 Nonetheless, such a rigid approach to punitive damages should be re-evaluated as the intrinsic bargaining power imbalance between large conglomerates and weaker individuals becomes distended. More can be done to protect these individuals than the legislative continuously playing catch-up, and punitive damages may be the prime candidate for such a solution.

III. Punitive Damages in Torts

3.1 Literature Review

Punitive damages are more commonly associated with tort law than contract law. The Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd and others [2017] 1 SLR 918 (“ACB”) astutely noted that the issues surrounding tortious punitive damages is a difficult question of legal principle and policy. Further, ACB justifies this paper’s comparative approach in their observation that “courts in different jurisdictions have arrived at different conclusions”.24Specifically, the purpose of awarding punitive damages in tort as well as the rule for whether an award of punitive damages should be awarded are two fundamental questions that courts of different jurisdictions and levels may diverge on.

22 Frank J Cavico Jr, ‘Punitive Damages for Breach of Contract A Principled Approach’ (1990) 22 St. Mary's L.J. 357

23 Denka Advantech Pte Ltd v Seraya Energy Pte Ltd [2021] 1 SLR 631

24 ACB at [153]

Despite the confusion surrounding the purpose of punitive damages in tort specifically, the general aims of tort law are relatively undisputed. Historically, the four possible bases of the action for damages in tort include appeasement, justice, deterrence and compensation.25 These aims havebeenreclassifiedintothetwocategories ofhaving “backwardlooking”and“forward looking” functions.26 Under the “backward looking” function, tort law examines the conduct of the tortfeasor. It aims to redress the wrongs of the tortfeasor and impose liability upon them. The “backward looking” function also aims to compensate the injured party for their losses and provide relief or vindication. The “forward looking” function on the other hand has the aim of deterrence in mind, which discourages would-be tortfeasors from committing harmful acts.

Punitive damages stand at the crossroads of both the “backward looking” and “forward looking” functions. While it punishes the tortfeasor, it also makes an example of them and warns others of the gravity and severity of the wrong committed. Punitive damages imposed in the form of additional financial penalties on tortfeasors (ie. on top of general damages) who engage in particularly harmful behaviour has the aim of discouraging such behaviour. There may be a wider, communitarian aim of promoting conduct that is more widely acceptable to the public underlying the imposition of punitive damages too.

Therefore, in examining the Singapore and United States perspectives, the general judicial attitudes towards torts and an award of punitive damages are identified. The tort of negligence is selected as the criteria for comparison between the jurisdictions. Negligence is of special interest to this study given its appearances in cases high on the judicial hierarchy of Singapore Courts – such as the Court ofAppeal and theAppellate Division of the High Court. Similarly, negligence is one of, if not the most prevalent branches of tort law inAmerica.27 These reasons form the basis of comparing the Singaporean and the American versions of the tort of negligence. While it is acknowledged that negligence may be a limited case study, the subject of analysis of this article speaks to concepts in tort law that are common across all torts. The

25 Glanville Williams, ‘TheAims of the Law of Tort’(1951) 4:1 C.L.P. at 137–176

26 Bruce Feldthusen, ‘Punitive Damages: Hard Choices and High Stakes’[1998] NZLJ 741 at 750

27 Keeton, W. Page, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on Torts. (5th ed. West Publishing Co., 1984)

principles of compensation, blameworthiness, fault and harm are universal. In addition, punitive damages have been considered in the context of negligence more so than other torts.

3.2 The Singapore Perspective

Preliminarily, the position in Singapore regarding the award of punitive damages appears to be generally flexible. Based on the Court ofAppeal’s proposition in Esben Finance Ltd and others v Wong Hou-Lianq Neil [2022] SGCA(I) 1 (“Esben”) (albeit in the context of unjust enrichment), the Singapore stance is that a “never say never” judicial posture is the appropriate one, which also mirrors the position in PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd and another appeal [2017] 2 SLR 129 (“PH Hydraulics”).28 The well-known “never say never” passage by Lord Nicholls as cited earlier in the introduction was also acknowledged in ACB.29 The reasons for such a position include the principle of incrementalism, of which its application necessitates a flexible judicial attitude to respond to a variety of fact situations.Any rigid rules or blanket principles would be an “endeavour fraught with the risk of inadvertent over- or under-inclusiveness”.

30

This open position in Singapore is commendable for its flexibility. Such a judicial attitude not only allows justice to be done but also allows justice to be seen to be done. This can also be praised as a manifestation of the “substance over form” principle, where the court wisely discerns the true nature of the claims instead of being fettered by blanket rules. Indeed, the Singapore’s judicial toolkit in this regard seems to offer the necessary precision for aggrieved claimants but also protects defendants from excessive liability. Between the two perpetually competing systemic values of certainty and flexibility, flexibility should not always be sacrificed on the altar of certainty, as the Singaporean position has rightly done.

The application of punitive damages in tort cases is somewhat more established than that in contracts, although an award remains exceedingly rare. While there is a general attitude of

28 Esben at [240], PH Hydraulics at [136]

29 ACB at [192]

30 Esben at [240]

openness to the availability of punitive damages, the courts are cautious that punitive damages are only to be awarded in exceptional circumstances. Specifically, only cases of outrageous conduct seem to attract punitive damages. The following three cases demonstrate the scope of an award of punitive damages under tort law in Singapore. Namely, in the Singapore Court of Appeal, Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2022] 1 SLR 689; [2021] SGCA 111 (“Noor 2022”) and ACB are two decisions of interest to this section. For comprehensiveness, a third case of Phua Seng Hua and others v Kwee Seng Chio Peter and another [2022] 2 SLR 98; [2022] SGHC(A) 11 (“Phua”) is also examined.Although Phua is not a Court of Appeal decision, it is still selected for analysis for two reasons. First, since Phua is a case that was decided in theAppellate Division of the High Court in Singapore, it still bears significant precedential value. Second, the decision of Phua is more recent than Noor 2022 and ACB. It offers helpful commentary on the law on special damages by referring to Noor 2022.

3.2.1 Noor 2022

Noor 2022 is the most recent Singapore Court of Appeal case on tortious punitive damages. The Noor 2022 decision followed the first Court of Appeal decision in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd [2019] 1 SLR 834 ("Noor 2019"). In this first Court ofAppeal judgment, the Court held that Changi General Hospital Pte Ltd ("CGH"), the defendant, had breached its duty of care to Ms Noor Azlin bte Abdul Rahman ("Ms Azlin"), the claimant. The court found that CGH's negligence led to a delayed diagnosis of Ms Azlin's lung cancer, which allowed the cancer to progress from stage I to stage IIA. Subsequently, Ms Azlin’s cancerous nodule had grown and metastasised.31 Consequently, the Court of Appeal referred the issue of loss and damage, including the quantum of damages to be awarded, back to the High Court for determination.32

Amonth after the Noor 2019 judgment was issued, MsAzlin passed away from cancer.33 This significantly altered the factual and evidential context of the case against CGH and influenced

31 Noor 2019 at [96]-[101] and [115]-[123]

32 Noor 2019 at [125]

33 Noor 2022 at [2]

the assessment of MsAzlin's claims.34 After a six-day assessment of damages hearing, a causal link was found to be established between CGH's negligence and Ms Azlin's death from lung cancer.35 The sequel to the Noor 2019 case, Noor 2022, focused solely on the quantification of damages. The claimants appealed that, inter alia, Ms Azlin's claims for punitive damages should not have been rejected and determined to be twice the quantum of general damages. Counsel for the claimants argued that punitive damages should be awarded for four reasons:36 (i) there is a strong impetus to deter similar conduct by other healthcare providers; (ii) CGH’s conduct was outrageous; (iii) CGH displayed a sustained pattern of indifference and deceit; and (iv) its conduct showed a sustained pattern of systemic errors which were life threatening and did, in fact, led to death. Counsel’s reason for the quantification are not reflected in the judgment, seemingly without any “foothold whatsoever in the pleadings”.37

Theargument forpunitivedamages was rejected forthree reasons in Noor 2022 38 First, section 10(3)(a)(i) of the Singapore Civil Law Act 1909 provides that a cause of action that survives for the benefit for the estate of any person shall not include any exemplary damages. Since punitive damages fall under the category of exemplary damages, the claim is statutorily barred. Nonetheless, despite the statutory bar which Noor 2022 did not elaborate much further about, the court continued to examine two additional reasons for the non-award of punitive damages.

Second, punitive damages were not specifically pleaded in the statement of claim, which precludes the claim. Punitive damages must be specifically pleaded in order for them to be claimed and granted39. The claim must be particularised.40 The basis for the need to plead punitive damages is its “exceptional” nature which does not follow in the ordinary course of a

34 Noor 2022 at [3]

35 Noor 2022 at [3]

36 Noor 2022 at [241]

37 Noor 2022 at [245]

38 Noor 2022 at [244]

39 Noor 2022 at [246] and [254]

40 AKRO Group DMCC v Discovery Drilling Pte Ltd [2019] 4 SLR 222 at [164]–[165]

claim.41 Punitive damages are not necessarily a form of damage which is a natural and probable consequence of the wrong suffered.42

Third, even if punitive damages are claimable notwithstanding the statutory restriction and the claimant’s failure to plead such damages, the claim would still fail since the defendant’s conduct is simply and self-evidently not “reprehensible”.43 The claimant attempted to argue that (a) there is a strong impetus to deter similar conduct by other healthcare providers; (b) CGH’s conduct was outrageous; (c) CGH displayed a sustained pattern of indifference and deceit; and (d) its conduct showed a sustained pattern of systemic errors which were life threatening and did, in fact, led to death.44 However, no evidence of any contumelious or exceptional conduct or motive on CGH’s part was found in inflicting the injury.45 The claim for punitive damages was viewed as “contrived” and “nothing more than an attempt to increase the quantum of recoverable damages for the Estate”.46

Further, the claimant’s argument for an award of punitive damages due to the stresses of litigation was also rejected. Having to suffer the pressures of litigation, being required to prove their claims on the stand, and having their claims contested by the defendant is part and parcel of the ordinary process of litigation in the courts. This reason alone was not sufficient to convince the court to grant an award of punitive damages.47

3.2.2 ACB

The second leading Singapore Court ofAppeal case that deals with punitive damages in tort is ACB. In ACB, the claimant underwent in-vitro fertilisation treatment at a fertility clinic operated by the second defendant, ultimately delivering a daughter. The claimant’s ovum had

41 Noor 2022 at [247] and [267]

42 Noor 2022 at [253]. See also Jeffrey Pinsler, Singapore Court Practice (LexisNexis, 2021) at para 18.15.1

43 Noor 2022 at [277]

44 Noor 2022 at [241]

45 Noor 2022 at [237], Noor 2019 at [194]-[195]

46 Noor 2022 at [236], Noor 2019 at [193]

47 Noor 2022 at [277]

been fertilised using sperm from an unknown third party instead of her husband. A senior embryologist and the chief embryologist were also named as defendants. The claimant pursued actions in tort and contract.Thedefendants concededliabilitybut contested theclaimant’s right to claim certain damages.Although the principal issue in the appeal was whether upkeep costs were a compensable head of damage, further submissions dealt with the issue of, inter alia, whether the claimant was entitled to punitive damages.

ACB had the challenge of dealing with four legal issues in the claim for punitive damages. First, ACB acknowledged the complexity of the issue as to whether punitive damages can be awarded for a breach of contract. Preferring to consider the issue of contractual punitive damages when the issue is squarely raised on the facts ACB preferred to consider the scope for an award of punitive damages in the law of tort only.

Second, ACB dealt with the issue of departing from English precedent on punitive damages, in particular, Cassell & Co Ltd v Broome [1972] 2 WLR 645 (“Broome”) and Rookes v Barnard [1964] AC 1129 (“Rookes”). Broome was addressed in ACB as a terminological issue. In analysing the justification for an award of punitive damages, the court in ACB noted that the English position of Broome in may have conflated the compensatory function of civil law and the deterrent and punishment function of criminal law.48 As such, ACB definitively pronounced that punitive and exemplary damages may be interchangeable, but the court prefers to use the “punitive” term for consistency. ACB also distinguished the differences between “punitive” and “aggravated” damages here. Next, Rookes proved to be an issue given that it “has been hitherto at least tacitly assumed that Singapore courts would follow Rookes”,49 with reference to past cases in Singapore. Rookes laid down three extremely limited situations in which punitive damages may be awarded in tort.50 The court decided, after careful reference to Australian, New Zealand, and Canadian cases that Rookes should no longer be part of Singapore law.

48 Broome at 638B per Lord Reid. See also ACB at [156]

49 ACB at [153] and [170]

50 ACB at [153]

ACB clarified that the function of tort law may be primarily compensatory, but it may not be exclusively so.51 The purposes of punishment, deterrence, or condemnation may also be fulfilled secondarily.52 Affirming the New Zealand Court of Appeal decision of Daniels v Thomson [1998] 3 NZLR 22 at [68] - [70], the wider functions of the law of tort in “vindicating and appeasing the victim of wrongs, condemning socially disreputable conduct, giving a voice to the victims of civil wrongs (its “therapeutic function”), and in signalling society’s commitment to retributive justice” are entirely valid and reasonable. With the disposal of an award of punitive damages in the judiciary’s arsenal to deliver justice, the courts can make orders as the facts require and as the court thinks fit

Third, the court examined the fundamental question: When should punitive damages be awarded?53 The court expressed a preference for the expression “outrageous” because it “relates not to the manner of the commission of the act, but to its gravity”.54 Under this third issue, the court subdivided the issue into (i) whether punitive damages can be awarded when the defendant has been punished under the criminal law and (ii) whether a punitive award can be made in respect of a negligent (as opposed to a deliberate or intentional) act.

For (i), the Singapore position appears to prefer a less rigid approach. In other words, even if the defendant has already faced criminal or disciplinary proceedings, the court is still conferred thediscretionto decidewhetherpunitivedamages arewarranted.55 Criminal sentencing reflects public interests, whereas punitive awards primarily aim to vindicate the plaintiff’s private interests.56 Additionally, criminal prosecution is inherently a matter between the State and the accused and is not intended as a mechanism for victims to seek personal vindication.57 Although a defendant may have already been punished under criminal law or through disciplinary sanctions, it is not determinative nor conclusive as to the availability of a punitive

51 ACB at [172]

52 ACB at [172]

53 ACB at [176]

54 ACB at [176]

55 ACB at [182]

56 ACB at [183]

57 ACB at [185]

penalty.58 Nonetheless, the court is minded that it should avoid making a punitive award when unnecessary.59 This mirrors the principle of parsimony in criminal sentencing – that the penalty must be no more severe than is necessary to meet the purposes of sentencing.

For (ii), the court approached the matter with the “true purpose of punitive damages” in mind.60 Recognizing a deeper philosophical divide, the court acknowledges two perspectives: a "liberal" view that sees tort law as protecting private rights and interests, and a "communitarian" view that assigns it a broader role in promoting societal welfare.61 Consequently, the court determined that the purpose of punitive damages in Singapore is to serve both punitive and broader social goals.62 In so doing, the court provides a clear jurisprudential basis as to the intentions in awarding punitive damages. Notably, the court's decision to avoid a "state of mind requirement" helps maintain its flexibility and preserves the "vitality" of its punitive damages' jurisdiction.63

3.2.3 Phua

The third case study for analysis in Singapore is Phua.The claimant, a member of a social club, felt aggrieved that the defendants wanted to redevelop and demolish the clubhouse, sell the property and relocate to another clubhouse. The claimant brought an action against the defendants for deceit, negligence, and breach of contract, and sought compensatory and punitive damages, among others.

However, three reasons worked against an award for compensatory damages and punitive damages.64 First, punitive damages for tort must be specifically pleaded but were not pleaded by the claimants. There were also no good reasons to depart from this rule of civil procedure

58 ACB at [187]

59 ACB at [187]

60 ACB at [199]

61 ABL Phang and Pey-Woan Lee, ‘Exemplary Damages – Two Commonwealth Cases’[2003] CLJ 32. See also ACB at [199]

62 ACB at [200]

63 ACB at [200]

64 Phua at [38]

of the necessity to plead punitive damages as a particular claim of its own. Second, the claimant’s claim for the tort of deceit failed on the facts, nor were the defendants found negligent. Third, even if the defendants were negligent, their negligence did not come close to constitute such reprehensible conduct as would warrant the imposition of punitive damages.65

Phua, although a relatively simple case compared to Noor 2022 and ACB, is illustrative of the reluctance of the courts to award punitive damages, especially where compensatory damages are not even available. The threshold of conduct that attracts an award of punitive damages is clearly a high one. Referring to Noor 2022, the Court of Appeal’s views on the need to plead special damages as a head of its own were also repeated.66

3.2.4 Summary of the Singapore Position

InSingapore,punitivedamagesare“meanttopunish,deter,andcondemn”andmaybeawarded “where the totality of the defendant’s conduct is so outrageous that it warrants punishment, deterrence and condemnation”.67 The award of punitive damages is generally “anomalous”.68 Punitive damages must be distinguished from aggravated damages.69 Aggravated damages function by augmenting the sum awarded in general damages and are distinctly compensatory in nature,70 whereas punitive damages have been repeatedly stated to be non-compensatory.

72

71

To better reflect these distinct purposes, an award of punitive damages would be additional to and not in lieu of any compensatory award made.

In upholding the principles of natural justice, defendants must know of the case that they have to meet for any claim and be given an adequate opportunity to respond to a claim that they had

65 Phua at [60]

66 Phua at [45]

67 Noor 2022 at [234]

68 ACB at [171]

69 Noor 2022 at [235]

70 See Koh Sin Chong Freddie v Chan Cheng Wah Bernard and others [2013] 4 SLR 629 at [75], and Lee Hsien Loong v Xu Yuan Chen and another [2021] SGHC 206 at [68], and Li Siu Lun v Looi Kok Poh and another [2015] 4 SLR 667 at [156]

71 Noor 2022 at [256]

72 ACB at [209]

acted in an outrageous fashion.73 Further, since an award of punitive damages serves a condemnatory function in respect of defendants and even makes an example out of them, the rules of natural justice to be applied would similarly be of a stricter nature or a higher threshold.74 It is noteworthy that Singapore expressly defines “outrageous” to not refer to a punitive award being dependent on public distaste or some sort of emotional response, which is a highly subjective inquiry. Instead, the court favors a principled normative standard which requires a process of reasoned judgment.75 The rejection of a mens rea requirement or intentional misconduct or deliberate recklessness ultimately allows the court to retain much judicial discretion.76 Therefore, the Singapore position clearly prioritises judicial discretion highly, since the agreement ofparties in ACB not to awardpunitive damages is not an absolutebarto its award.77 Adefendant who faces regulatorypunishments or disciplinaryactionmay still,in thediscretion ofthecourt,bepenalised with punitivedamages.Therefore,thecourtis veryclearthatit retains ultimate judicial discretion and autonomy. Neither public outcry, strong emotions, nor the state of mind of the defendant strictly prohibits the court from awarding punitive damages.

Nonetheless,despitethestrongemphasisontheflexibilityofthecourt,thecourtremainsrooted in the live facts and issues of the dispute. The court does not extrapolate a single instance of negligence alone to be representative of conduct that was of such a character to be considered outrageous.78 In protecting judicial autonomy and soundness of legal reasoning, the Singapore view that courts “should not have to disguise their true reasons for imposing a punitive award

73 Noor 2022 at [273]

74 Noor 2022 at [273]

75 ACB at [205]

76 ACB at [206]

77 ACB at [207]

78 ACB at [208]

by recharacterising cases of inadvertent conduct as cases involving subjective recklessness to justify a punitive award” is highly commendable.

79

The courts preference for reasoning with a legal realist view keeps the court’s legal theories grounded in a uniquely Singaporean form of pragmatism.80 This enables the court to stay true to the facts of any case that comes before the court, and also strengthens the integrity of the judiciarybyavoidingawkwardlyshoehorninginappropriatecasesintoarbitrarycategories.The resistance to ex post facto reasoning (ie reasoning without the application of logic and/or principle) must be commended as to do otherwise would be to fall prey to unprincipled argumentation. Therefore, the state of the law in Singapore is one that must be praised for its avoidance of artificiality in reasoning. Specifically, rejecting the temptation to impute intention in a situation where there was none to begin with upholds a principled judicial approach.81

3.3 The United States Perspective

To construct an overarching doctrine of punitive damages in American tort law across states proves challenging. This is partly due to the hierarchy of the United States courts and the mechanism of regulating punitive damages through both state and federal law.82 Nonetheless, the United States has been recognised as the country with the most widespread use of punitive damages.83 Therefore, this article attempts to identify the most salient points on punitive damages and summarise them to serve as a short comparison to the Singapore system.

Scholars in the United States have noted that punitive damages have not only grown commonplace but had grown excessive as early as in 1987.84 In fact, large punitive damage awardsarefrequentdespitealackofreasonablerelationshiptotheactualdamages.85 Theaward

79 ACB at [202]

80 As seen from the words “As a practical matter” in ACB at [202]

81 ACB at [203]

82 JYGotanda, ‘Punitive Damages:AComparativeAnalysis’(2003) Villanova University Charles Widger School of Law Working Paper Series at 31

83 Ibid

84 Griffin B. Bell & Perry E. Pearce, ‘Punitive Damages and the Tort System’(1987) 22 U. Rich. L. Rev. 1 at p1

85 Ibid at p2

of punitive damages has thus given rise to many criticisms, even being called “one of the major problems in tort law”86 and “one of the most controversial features of American tort law”87 Since excessive punitive damages have become such a “national problem” in the US,88 some critics argue that it has become a necessity to acknowledge that punitive damages have been awarded far too easily, far too often and far too excessively. Given the proliferation of diverse viewpoints across states, the United States legal landscape has attempted to limit such inconsistencies through legislation.89

Statistical analysis and empirical studies in the United States reveal that punitive damages have been awarded in 1%-5% in all cases which a verdict was rendered.90 Cases where punitive damages were awarded with extraordinarily high discrepancies between the punitive and compensatory awards are rare. On appeal, the quantum has also been reduced. For example, the case of BMW of North America, Inc. v Gore 517 U.S. 559, 583 (1996) (“Gore”) saw a reduction in the ratio of punitive damages awarded to ensure punitive damages are better tethered to the quantum of compensatory damages awarded.

By way of a brief historical background, the case of Atlantic Sounding Co., Inc., et al., Petitioners v. Edgar L. Townsend 557 U.S. 404, 410 (2009) is helpful.Although decided in the maritime context, the case is a landmark one for surveying the history of punitive damages in the United States. The court held punitive damages have long been an accepted remedy under general maritime law. Crucially, it held that neither Miles v. Apex Marine Corp. (89-1158), 498 U.S. 19 (1990) nor any statute altered the availability of punitive damages in that context. Therefore, a willful and wanton disregard of obligations would allow punitive damages to be awarded. Notably, in having to interpret the word “damages”, the court took the view that since

86 Ibid at p2

87 AJ Sebok, ‘Punitive Damages in the United States’ in Helmut Koziol and Vanessa Wilcox (eds.), Punitive Damages, Common Law and Civil Law Perspectives (New York Springer, 2009) at 156

88 Griffin B. Bell & Perry E. Pearce, ‘Punitive Damages and the Tort System’(1987) 22 U. Rich. L. Rev. 1 at p17

89 M.L. Rustad, ‘Happy No More: Federalism Derailed by the Court That Would be King of Punitive Damages’ (2005) 64 Md. L. Rev. 462

90 T. Eisenberg et al., ‘Juries, Judges, and Punitive Damages:An Empirical Study’(2002) 87 Cornell L. Rev. 743, 749

3.4 Key Findings

Having reviewed the Singapore position in detail and the views of the United States briefly, two key similarities and two key differences emerge. First, the most noteworthy similarity is that both jurisdictions share near identical reasons for an award of punitive damages in tort. The reasons for punitive damages in the United States echo that in Singapore: an award of punitive damages is appropriate where punishment is warranted, or deterrence is necessary.91 Interestingly, both jurisdictions form part of a relatively small group of countries whose courts that find punitive damages are appropriate as an award. This group of countries include other common law countries such as England, Wales, Ireland, Northern Ireland, Australia, New Zealand and Canada.92 In a similar vein, the second similarity is that instances of awards of punitive damages in both jurisdictions remain a rare and predictable occurrence.93 Both jurisdictions also allow punitive damages even though a defendant has been subject to criminal or disciplinary proceedings.94

These similarities suggest that both jurisdictions appreciate the gravity of an award of punitive damages. In line with the exceptional nature of punitive damages, it can be said that the award of punitive damages is understood to be a careful exercise. In doing so, courts from both jurisdictions appear to preserve the exemplary character of punitive damages. The rarity of an award of punitive damages in both jurisdictions can be said to enhance its effectiveness and function on the whole.

91 Griffin B. Bell & Perry E. Pearce, ‘Punitive Damages and the Tort System’(1987) 22 U. Rich. L. Rev. 1 at 17

92 Vincent R. Johnson, ‘Punitive Damages, Chinese Tort Law, and the American Experience’ (2014) 9 Frontiers of Law in China 321.

93 A.J. Sebok, ‘Punitive Damages: From Myth to Theory’(2007) 92 Iowa L. Rev. 957

94 See the followingAmerican cases for some examples: E.F. Hutton & Co., Inc. v. Anderson, 596 P.2d 413 (Col. 1979); Olson v. Walker, 781 P.2d 1015 (Ariz. Ct.App. Div. 1989), Wittman v. Gilson, 530 N.E.2d 514 (NY 1988); Moody v. Payne, 355 So. 2d 116 (Ala. 1978).

312 the United States Congress avoided the use of the terms “pecuniary” or “non-pecuniary”, the intention of Congress was that punitive damages remain available.

However, although both jurisdictions do not award punitive damages frequently, the reasons for their non-award differs. While the Singapore courts readily emphasise the wide discretion of the Singapore judiciary,95 the United States courtsappear to impose rigid considerations. For example, in the earlier citedAmerican case of Gore, the rule for a review of punitive damages is guided by (1) the degree of reprehensibility of the defendant’s misconduct, (2) the ratio between compensatory and punitive damages, and (3) the difference between the punitive damages award and the penalties that could be imposed for similar conduct (“the Gore guideposts”).96

The Gore guideposts are illustrative as to the motivations of the courts in developing more structure in their analysis. Gore, being an American-tried case, could be a contributing factor to the observation thatAmerican parties engaged in litigation outside of the United States may not succeed in enforcing theirAmerican-granted punitive damages claim.97 Other jurisdictions may simply be reluctant to enforce an award of punitive damages that they have not tried in their own courts, out of worry that the grant of punitive damages itself may not be meritorious in their own view.

The second difference that this article identifies concerns the availability of punitive damages based on the tort of negligence. While Singapore’s ACB suggests (albeit in obiter) that negligence may be sufficient to attract punitive damages in certain scenarios, not a single state in the United States allows punitive damages based solely on mere negligence.98 One possible explanation for this difference is that Singapore has developed a distinct brand ofAsian values and Singaporean pragmatism that guides the development of the law. Sociologically, the wide discretion of the Singapore courts is met with a healthy dose of conservatism in the exercise of that discretion. This places Singapore in a state of legal homeostasis in line with the principles of incrementalism and proportionality. In contrast, the preference for the focus on intention in

95 As seen in how the only touchstone is one of outrageousness in ACB at [176]

96 Gore at 575

97 JYGotanda, ‘Charting Developments Concerning Punitive Damages: Is the Tide Changing?’(2007) 45 Colum. J. Transnat’l L. 507 at 528

98 AJ Sebok, ‘Punitive Damages in the United States’ in Helmut Koziol and Vanessa Wilcox (eds.) Punitive Damages, Common Law and Civil Law Perspectives (New York Springer, 2009) at 155

the United States is more conduct-centric, unlike the more consequentialist (or outcomecentric) perspective in Singapore.

IV. Punitive Damages in Contracts

4.1 Literature Review

It is tritelaw that the main remedial goal of contract law is to compensate the injured plaintiff.99 Thus, traditionally, the court would not award non-compensatory damages, no matter how egregious the contractual breach.100

Similar to the “backwards looking” and “forwards looking” functions of tort remedies, contract, too, recognises this reclassification but with one major difference. Unlike tort, which deals with “wrongful interference [of a] status quo interest”101 caused by human frailty, contract examines breaches regardless of its cause, whether by human frailty or force majeure Contract need only “look forward” to elevate the plaintiff to the position they should have been in had the contractual breach not occurred.102 Thus, in adjudicating a broken deal that had already been agreed upon by individual parties, rather than there being a sort of social contract or moral boundary broken by the tortfeasor’s misbehaviour, whether awarding damages that “look backward” is within the court’s purview becomes a looming question mark.

Moreover, contract law faces the additional burden of proving that “private law has legitimate remedial purposes that compensation alone cannot fulfil”.103 To justify punishment, aside from compensation, is to demonstrate that the defendant’s misconduct was so outrageous and wrong that merely giving the plaintiff what he is owed is not enough. But what sort of misconduct in a previously-agreed contract could be outrageous to such an extent? This standard is often

99 Robinson v Harman (1848) 154 ER 363 at 855

100 Addis v Gramophone Co Ltd [1909]AC 488 at 497

101 Andrew Burrows, ‘Understanding the Law of Obligations: Essays on Contract, Tort and Restitution’ (1998)

19 LS 127

102 PH Hydraulics at [69]

103 EJ Weinrib, ‘Punishment and Disgorgement as Contract Remedies’(2003) 78 Chi-Kent L. Rev. 55 at 55

indeterminable without first considering compensation and how compensation alone remains lacking.104

An increasing trend of non-compensatory damages in recent years, such as non-pecuniary damages and Wrotham Park damages being awarded to various plaintiffs, has been observed. However, punitive damages specifically been dismissed entirely in most Commonwealth countries,includingSingapore.InstarkcontrastistheUnitedStatesofAmerica,wherepunitive damages seem to border on the excessive.

Nonetheless, one of the initial instances of an award of punitive damages was with the aim of placating the claimant’s feelings of injustice over the defendant’s egregious, deliberate, and maliciousbreachofcontract.105 Moreover,althoughtruethatcontractualbreachesarerelatively less likely to evoke outbursts of negative emotions as compared to tortious malfeasance, the courts have compensated non-commercial interests in the past.106 Therefore, while contractual breaches alone do not justify punitive damages, the associated or collateral losses just might.

4.2 The Singapore Perspective

In Singapore, punitive damages for contractual breaches have been all but prohibited in the seminal case of PH Hydraulics v Airtrust (Hong Kong) Ltd [2017] 2 SLR 129 (“PH Hydraulics”), save for “a truly exceptional case” that could “surmount the many reasons of principle and policy set out in this judgment against doing so”.107 This reflects the position adopted in tort law, where the “never say never” approach is observed in the Court ofAppeal’s hesitance to conclusively rule against awarding punitive damages in contract law.

Nevertheless, unlike the more flexible judicial attitude in tort law, which has indeed given rise

104 Ibid at 56

105 Wilkes v Wood (1763) Lofft. 1

106 See Ruxley Electronics v Forsyth [1996]AC 344, and Kay Swee Pin v Singapore Island Country Club [2010] SGHC 175

107 PH Hydraulics at [136]

to the award of punitive damages in exceedingly negligent cases, this is unlikely to be the case in contract law.Above all, contract law is bound by the requisite preservation of the sanctity of agreement and respecting parties’ contractual intentions. In essence, there is a comparative dearth of judicial wiggle room in contract law since the “rules” here are decided by parties themselves. Further, the law generally does not interfere in a “bad bargain” situation.108 Thus, in contract law, an award of punitive damages, although not definitively overruled in Singapore, will never truly be a remedial option for the vast majority of injured claimants.

4.2.1 PH Hydraulics

The claimant (Airtrust) engaged in a transaction with the defendant (PH) involving the acquisition of a reel drive unit (RDU) intended for lease to an Australian entity for undersea umbilical cable operations, as per the Sale and Purchase Agreement (SPA). PH was obligated under the SPAto design and provide the RDU with certification from theAmerican Bureau of Shipping (ABS). Due to ABS's inability to certify the RDU, PH proposed an alternative certification through an ABS subsidiary, which Airtrust accepted. Subsequently, during the cable laying operations, the RDU encountered operational issues revealing numerous design and manufacturing defects. In response, Airtrust initiated legal action against PH, alleging fraudulent misrepresentation and seeking punitive damages.

The trial judge found that PH had indeed been fraudulent regarding the ABS certification and granted punitive damages against PH, citing both PH's fraudulent behaviour and additional instances of negligent designing, engineering, and manufacturing as contributing factors. However, on appeal, this was wholly overruled.

Holding

Three arguments militated against an award of punitive damages in contract in this case. First, there was concern that allowing courts to penalise a breaching party conflicted with the notion of a contract as a voluntary binding agreement. Imposing punitive damages implied applying

108 William Sindall plc v Cambridgeshire County Council [1994] 1 WLR 1016, endorsed in Singapore in RBC Properties Pte Ltd v Defu Furniture Pte Ltd [2015] 1 SLR 997

an external standard, which reflects the court's own disapproval of the breaching party's actions and its view on acceptable commercial behaviour, contrary to the fundamental principles and remedial framework of contract law. In contrast, tort law provided greater leeway for courts to establish norms of behaviour between unrelated parties (see discussion on punitive damages in tort above).109

Second, the Court ofAppeal dismissed the argument suggesting there was a “remedial gap” in contract law. In any case, this perceived gap could potentially be addressed by alternative remedies: Wrotham Park damages110, account of profits111 (which has recently been applied to private contractual contexts112 as well as national security), or damages for mental distress113 . These alternatives have punitive effects, despite primarily serving compensatory purposes by protecting the plaintiff's interest in contractual performance.114

Finally, punitive damages for contractual breaches were rejected because of the lack of definitive criteria for determining when such damages should be granted, leading to potential uncertainty.Thenotionofwhat constitutesan"outrageous"breachwasparticularlychallenging to define in the commercial sphere, where self-interested behaviour is commonly accepted as part of contractual norms.115 Establishing clear and practical criteria to distinguish when a party's actions shift from serving their own interests to being deemed "outrageous" would be exceedingly difficult.116

Policy considerations also weigh against awarding punitive damages in contractual disputes alone. Doing so might complicate litigation by prolonging proceedings, increasing costs, and

109 PH Hydraulics at [68], [71], [72] and [74]

110 Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798, endorsed in Singapore in Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua [2018] SGCA44 at [168] (“Turf Club Auto”)

111 Attorney-General v Blake [2001] 1AC 268, tentatively endorsed in Singapore in Turf Club Auto at [254]

112 Esso Petroleum v Niad Ltd [2001] EWHC 6 (Ch)

113 PH Hydraulics at [69]

114 Ibid at [78] to [84]

115 Solene Rowan, ‘Reflections on the Introduction of Punitive Damages for Breach of Contract’ (2010) 30(3) OJLS

116 PH Hydraulics at [85], [86] and [89]

potentially favouring plaintiffs in negotiating larger settlements. Moreover, punitive damages are typically reserved for cases involving a significant risk of repeated misconduct, particularly in situations of unequal bargaining power such as in insurance, employment, and consumer transactions. Addressing these risks is often more appropriately managed through regulatory measures rather than judicial remedies like punitive damages.117

4.2.2 OtherAuthorities

Prior to PH Hydraulics, the Singapore International Commercial Court had also briefly considered the issue of punitive damages for contractual breaches. In Telemedia Pacific Group Ltd v Yuanta Asset Management International Ltd [2017] 3 SLR 47, the appeal judge noted that despite the ruling of PH Hydraulics (pre-appeal), which had been a landmark case awarding punitive damages for contractual breaches, the present case was not deserving of the same treatment. Rather than parties having behaved abhorrently, with “highhanded” behaviour that warranted punitive damages, this was merely a complex contract that had been further complicated by parties’ lack of communication.118 It appears, therefore, that the Singapore position on punitive damages has always been cautious: punishment cannot be warranted for what is considered “normal contracting behaviour” where parties’ only goal is to maximise their own utility and prospects.

For completeness, the only local case post-PH Hydraulics that discusses punitive damages serves to support it as “the law of contract generally eschews the concept of punishment”.119 Thus, the Singapore position on punitive damages has been set in stone, where the potential of a case succeeding in such a claim would be extraordinary. Nonetheless, what constitutes “exceptional” cases that may warrant punitive damages in spite of the strong ruling in PH Hydraulics may still be open for discussion. While criticising the subjective “outrageousness” criterion, the court paradoxically hinted that exceptionally severe

117 Ibid at [102], [104] and [106]

118 Telemedia Pacific Group Ltd v Yuanta Asset Management International Ltd [2017] 3 SLR 47 at [35]

119 Turf Club Auto at [198]

breaches might warrant punitive damages, thus leaving the optionopen. Moreover, by rejecting punitive damages, the court prioritised the need for coherence in private law, such as consistency and autonomy in contractual relations. The question of whether judges can disregard these principles when faced with exceptionally egregious breaches is unanswered. This approach therefore favours the need to promote justice, accountability and consistency in contract law.120

The stance on punitive damages is unique, given the many departures from the rigid compensatory principle found in doctrines such as frustration, misrepresentation and mistake. Notably, the court is permitted to rule that the contract has come to an end, despite the parties’ lack of desire to end it. These doctrines ultimately lend themselves to the pursuit of the overarching ideal of fairness, where compensation is merely a singular facet.121 Thus, punitive damages in “outrageous” contractual breaches may merit a second look when such a case presents itself.

4.3 The United States Perspective

In the US, punitive damages cases have been far more prevalent for contract breaches specifically, plaintiffs in product liability suits.

While results vary from state to state, plaintiffs rarely succeed in their claims for punitive damages unless the court found an affront to democratic liberty. Thus, it seems likely that the US adopts the same approach to punitive damages in contract as in tort: that awards have become excessive. Generally, US courts examine the defendant’s degree of reprehensibility. First, they may award compensatory damages for the harm done to the plaintiff in breaching the contract. Next, the

120 SJ Hickey, ‘Punitive damages for breach of contract: A Singaporean perspective’(2017) 46(3) C.W.L.R. 239 at 243

121 ABL Phang, ‘Doctrine and Fairness in the Law of Contract’(2009) 29(4) LS 534 at 539

courts look at the defendant’s misconduct and may decide to impose further sanctions in the form of punitive damages to attain punishment and deterrence.122 Much like Singapore, then, the difficulty comes in determining what reprehensibility is, and what nebulous standards does policy dictate these defendants be held to.

Akey consideration that arises in US cases is whether the defendant would be prejudiced from the lack of proper safeguards available. Under criminal law, the accused is protected by a variety of measures123 including the Bill of Rights under the Constitution. One well-known example is the Miranda warning given to those placed under arrest that they have the right to remain silent and to request legal representation.124 No such legislation is available in civil law. The defendant would be deprived of fair notice regarding the potential severity of penalties, arising from the undefined limits of punitive damages.125

In promoting procedural fairness, certain US cases have outlined an approach that seems to mimic the criminal process by examining why the contract was breached. This is reminiscent of the mens rea element in criminal law. The following US cases demonstrate this focus on the defendant’s subjective intentions, which is a departure from Singapore’s approach to contract law. In Singapore, the inquiry has always been an objective one that simply looks at parties’ objective intentions at the point of contracting.126

4.3.1 Consumers, Insurees, and Employees

Although it seems that, like in Singapore, punitive damages are not to be awarded for ordinary contractual breaches, the US courts differ when they also consider the plaintiff’s vulnerable positions, rather than simply the defendant’s culpability in breaching the contract.

122 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)

123 ‘The American System of Criminal Justice’ (Stimmel Law) <https://www.stimmellaw.com/en/articles/american-system-criminal-justice> accessed 5th July 2024

124 Ibid

125 BMW of North America, Inc. v. Gore, 517 U.S. 559

126 Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029

Asbrieflynotedin PH Hydraulics,anargumentmaybemadethatforcertainvulnerablegroups in society, such as insurees, employees, and consumers, punitive damages are more likely to be justified given the inherent imbalance of power at the point in contracting. This approach is more cognisant of hierarchies that are omnipresent in a capitalistic world, where certain groups remain at risk of exploitation despite the legislation’s best efforts to protect them.

4.3.1.1 Consumers: Masaki v. General Motors Corp., 71 Haw. 1 (1989) (“Masaki”) –Hawai’i127

Masaki was tasked to jump start a 1976 Chevrolet van manufactured by General Motors ("GM"). After the van failed to start, Masaki opted to use a “remote starter” to bypass the ignition switch. Without securing the van with the parking brake or wheel blocks, and unsure of whether the gear shift was in park, Masaki jump started the van. Later, while he was disconnecting the remote starter underneath the van, it unexpectedly shifted into reverse, strikingMasaki onthebackofhis head.This causedasevereneckinjurythat left himparalyzed from the neck down. Masaki filed a lawsuit against GM, alleging that the van's transmission was defectively designed and manufactured, and that he had not been adequately warned about the transmission defect.

Holding

Punitive damages are permissible only when the defendant's actions display wantonness, oppression, or malice suggesting a disregard for civil obligations, or involve deliberate misconduct or a complete lack of care that implies indifference to foreseeable consequences.

Adopting the holdings by the Wisconsin Supreme Court128 and Alaska Supreme Court129 , insofar as the plaintiff has established the requisite reprehensible or outrageous misconduct, there is no reason to prohibit an award of punitive damages in a products liability lawsuit. Although examining contractual breaches is, in essence, a strict liability approach, which

127 Masaki v. General Motors Corp., 71 Haw. 1 (1989)

128 Wangen v Ford Motor Co., 97 Wis.2d 260, 266-67, 294 N.W.2d 437, 442 (1980)

129 Sturm, Ruger & Co., Inc. v Day, 594 P.2d 38, 46-47 (1979)

eliminatestherequirement to provefault for establishing defendant liability,it does not exclude the assessment of defendant misconduct when considering punitive damages. Therefore, there is no inherent inconsistency in permitting a claim for punitive damages in a products liability lawsuit under strict liability principles.130

To determine the appropriateness of an award of punitive damages, the court should first and foremost examine the defendant’s mental state; thereafter, and to a lesser extent, the nature of his misconduct.131

Finally, because the nature of punitive damages is a penal one that stigmatises the defendant if awarded, it is more appropriate for the standard of proof to be akin to a criminal case132 i.e.

beyond a reasonable doubt. In this case, the Hawaii Supreme Court held that the standard of proof required was, however, not met; thus, it dismissed the punitive damages awarded to Masaki and ordered a retrial.

4.3.1.2 Insurees: State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (“State Farm”) – Utah133

Campbell was involved in a fatal accident. State Farm, his insurer, disputed liability and rejectedsettlement offerswithinthe$50,000policylimit. Instead,it proceededto trial, assuring Campbell that he bore no liability and would be represented, further advising against separate counsel. The jury awarded damages against Campbell, exceeding the policy limit by over three times, which State Farm refused to appeal.

Campbell sued State Farm for bad faith, fraud, and emotional distress. The trial court initially ruled in State Farm's favour, but an appeal introduced evidence of State Farm's national business practices unrelated to Campbell's claims. A jury subsequently awarded $145 million

130 Masaki at [9]

131 Ibid at [6]

132 Masaki at [11]

133 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)

in punitive damages, upheld by the Utah Supreme Court, leading State Farm to appeal the amount.

Holding

Under the Fourteenth Amendment, the Due Process Clause disallows any punishment that is manifestly excessive or arbitrary.134 Thus, the Utah Supreme Court elected to reduce the quantum to one that was more appropriate for the Campbells to receive.

Nonetheless, it was acknowledged that the case was “used as a platform to expose, and punish, the perceived deficiencies of State Farm’s operations throughout the country”.135 The Utah Supreme Court clarified that its award of $145 million in punitive damages against State Farm was due to its outrageous nation-wide policies rather than solely for its actions toward the Campbells. As such, it seems that the US courts do make exceptions for specific groups of people in society who are at a disadvantage in contracting from the very start.

4.3.2 Rehabilitation andADA

Nonetheless, punitive damages have been wholly prohibited in cases involving a dispensation to citizens with certain disabled characteristics under the Rehabilitation Act, Americans with DisabilitiesAct (“ADA”), and theAffordable CareAct (“ACA”). The Supreme Court held that such dispensation functions much like a contract where the recipients agree to comply with federally-imposed terms in exchange for funds under these legislative provisions.136 Moreover, since damages are not provided for under Title IV of the 1964 Civil Rights Act, it logically follows that damages in general should not be an available remedy under these acts.137

134 Cooper Industries inc v Leatherman Tool Group Inc, 532 US 424

135 State Farm at 420

136 Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 at 1568

137 Barnes v. Gorman, 536 U.S. 181 at 190

However, in cases where there is a simultaneous case to be made in tort, the Supreme Court ruled that punitive damages could be claimed under tort instead.138

4.3.3 Jurisprudence

Briefly, American jurisprudence views punitive damages in a highly practical manner. Preliminarily,Fullerand Perdue view expectation damages as servingaquasi-criminal function by penalising the party who breaches the contract. This perspective suggests that a punitivemotivemayunderlieeven routineawards ofcontract damages. Genuinecompensatory evaluations of contract damages are relatively uncommon, whereas non-compensatory damages primarily reinforce and clarify the non-compensatory principles already prevalent in contract law.139

Meanwhile, Posner’s efficient breach theory argues that contracting parties should not be punished. A party should be able to violate a contract and pay compensation if it is more economically advantageous than fulfilling the contract.140 Punishing efficient breaches deters valuable transactions, while compensating inefficient breaches leads to overpayment by the defendant.141

4.4 Key Findings

Punitive damages are generally not a readily available remedy in both Singaporean and American contract law due to the fundamental principle of upholding the sanctity of contracts. In both jurisdictions, contracts are seen as agreements voluntarily entered into by parties, and courts are reluctant to disturb these agreements except in exceptional circumstances. In such cases, doctrines like frustration and illegality provide avenues for addressing breaches, thereby making punitive damages unnecessary.142

138 Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 at 1572

139 LL Fuller and WR Perdue, Jr., ‘The Reliance Interest in Contract Damages’(1936) 46 Yale LJ 52 at 373

140 RAPosner, Economic Analysis of Law (9th ed., Wolters Kluwer Law & Business 2014)

141 Lake River Corp. v. Carborundum Co., 769 F.2d 1284

142 ABL Phang, ‘Doctrine and Fairness in the Law of Contract’29(4) LS 534

However, the United States takes a more proactive stance in safeguarding vulnerable groups such as insurance policyholders, employees, and consumers against potential exploitation by powerful corporate entities. Courts in the US recognize the potential for abuse by large corporations leveraging their market dominance to impose unfair terms in contracts. This has led to judicial doctrines that allow punitive damages in cases where egregious misconduct or bad faith is demonstrated, particularly in contracts involving unequal bargaining power.

Conversely, Singaporean courts acknowledge the importance of protecting consumers but primarily defer to legislative measures like the Unfair Contract Terms Act 1977 and the Consumer Protection (Fair Trading Act) 2003 to address unfairness in contracts. In practice, consumers are encourage to approach the Consumers Association of Singapore (CASE), a charity that resolves customer complaints against exploitative business practices. This approach reflects Singapore's emphasis on maintaining a fair and open economy, crucial for its small, trade-dependent stature compared to the economic scale of the United States. By relying on legislative frameworks, Singapore seeks to strike a balance between protecting consumer rights and promoting economic growth, while leaving punitive damages as a less frequently invoked remedy in contractual disputes.

143

Ascountries continuetoenjoyeconomicboomsthatpredominantlyleadto animprovedquality of life, so too must the law evolve to protect the more vulnerable members of a modern contractual society: the insurees, the consumers, and the employees. Against the might of globalised, international conglomerates, a single individual belonging to these groups is more likely to be exploited without hope for legal recourse. Thus, perhaps it is high time that Singapore relaxes her rigid rule against punitive damages, particularly in cases where individuals may unfortunately fall through the cracks.Although it is a valid argument that any protection against exploitative behaviours should be left to the legislature to promulgate, the judiciary should not hesitate to draw the line at an outrageous enough misconduct indeed, onethatovercomesthemanyarguments outlinedin PH Hydaulics.Damages shouldbeallowed

143 Singapore Parliamentary Debates, Official Report (11 November 2003) [Raymond Lim Siang Keat, Minister of State for Trade and Industry]

to perform their punitive and deterrent functions when the powerful take full advantage of their strength against the powerless.

V.Analysis between Contracts and Torts

Two key points of comparison are observable when the contractual and tortious perspective are juxtaposed. These points are (1) the purpose and justification for awarding punitive damages, and (2) the judicial attitude and criteria for an award of punitive damages.

5.1 Purpose and Justification

Punitive damages serve distinct purposes in contract and tort law, bearing in mind the wider aims of each area. In tort law generally, the primary goal has been said to redress wrongs, deter harmful behaviour and promote human flourishing. In this context, punitive damages can be seen to align with those wider aims. Punitive damages within the realm of tort law may adequately punish the defendant for particularly egregious conduct and to serve as a deterrent to others. This deterrent effect is seen as essential in cases where the defendant's actions demonstrate a blatant disregard for the rights or safety of others.

Contract law, in comparison, regulates the relationship between contracting parties, with the general aim of enforcing agreements. In disputes, it ensures that the injured party is compensated for their losses. Within this context, punitive damages are generally seen as incompatible with the compensatory nature of contract law. The principle of freedom of contract suggests that parties should be able to negotiate terms and remedies without the interference of punitive measures, except in cases where the breach involves fraudulent or malicious conduct that overlaps with tortious behaviour.

5.2 Judicial Attitude and the Criteria for Punitive Damages

Both Singapore and the United States exhibit judicial reluctance to award punitive damages, reflecting a preference for compensatory remedies.Across both contract and tort law, concerns about proportionality and fairness are paramount. Courts in both Singapore and the United

States are cautious to ensure that punitive damages are appropriate in the contractual and/or tortious circumstances and proportionate to the defendant's misconduct. This caution is particularly pronounced in Singapore, where the courts emphasise the need to avoid excessive punishment and ensure that any award of punitive damages is justified by the outrageousness of the defendant's conduct.

Unique to tort law, however, is the more established and accepted criteria for awarding punitive damages. Singapore sets their focus on the “outrageousness” of the circumstances.144 This could be because tort law resembles criminal law more closely, where principles such as parsimony can be drawn.Additionally, the humaneness of tort and criminal law both advocates respecting the dignity of the defendant. This is slightly unlike in contract, which assumes the equality of bargaining power between contracting parties, and advocates the caveat emptor principle. Contract law thus bears less resemblance to criminal law and seems to take on less similarcharacteristics-oneofwhichbeingtheroleofthecourttoenactjusticethroughpunitive damages.

144 ACB at [176]

5.3 Key Findings Summarised and Proposed Framework

The findings of this article are presented in the table below.

AnAward of Punitive Damages

Contract Law Tort Law

Singapore Not applicable, except in “truly outrageous” situations that “surmount the many reasons of principle and policy set out in this judgment against doing so” (PH Hydraulics)

United States Limited applicability to specific vulnerable groups in society (State Farm), following Gore guideposts in tort law

Flexible, determined based on “outrageousness” (ACB) and “reprehensibility” (Noor 2022)

Structured, determined based on Gore guideposts, which include reprehensibility, ratio of compensatory and punitive damages, and penalties for similar conduct

Having surveyed the Singapore and United States cases in this area and analysed them, this article argues that the following two-step framework should be adopted to guide the courts and litigants on whether an award of punitive damages is warranted.

1) Touchstone of “reprehensibility” or “outrageousness”

First, it is submitted that the touchstone for an award of punitive damages should be Singapore’s test of “reprehensibility” or “outrageousness”– that the defendant’s conduct must

be sufficiently reprehensible or outrageous to attract punitive liabilities.145 The content of this test is left open given the fact-specific nature of each case, although due regard to the exceptional nature of punitive damages would certainly be appropriate. This limb may include an assessment into the mental state of the defendant in their alleged wrongdoing. For example, it is submitted that acts that are intentional, repeated on multiple instances, or that which are indicative of recalcitrant behaviour should warrant punitive damages. Whether punitive damages should arise solely out of strict liability alone is recognised to be an unlikely situation. It may be worthwhile to approach that question on first principles. Otherwise, a claimant may argue that certain actions must necessarily impute the sufficient constructive knowledge or mental state to warrant a punitive remedy.

2) Contextualising the Claim and Identifying its Public Policy Outcomes

Second, the claim should be contextualised in the realm of tort or contract law (or both, should the case arise) and the relevant public policy outcomes that follow. In other words, the specific aims of what an award of punitive damages does for that area of law in terms of “signalling” should be made clear. In tort for example, a claimant’s case would be stronger should they be able to identify the deterrent effect that a punitive award would have in the public sphere.Also, it is respectfully submitted that considerations of special vulnerabilities as in Gore would be an incremental development from the “special vulnerability” considerations under the existing duty of care framework in negligence.

For contract law, a claimant has a slightly more difficult claim than in tort. To show that an award of punitive damages serves a reasonable aim of contract law may be challenging with the current recognised principles of restitution and/or contract. Further, Gore’s special vulnerability is a leap in the contractual realm, given that special vulnerability has not been a concept that is express in Singapore’s contract law. Possible avenues for expansion in this area include arguments from unconscionability and undue influence. This second step ensures that an award of punitive damages is tethered to a public element and achieves its intended deterrent/signalling function. Conversely, an award of punitive damages should be rejected

145

where no wider policy aims are served. Further, these propositions are not unprecedented, following PH Hydraulics.

Of the many advantages of this framework, three distinct ones include: (i) consideration for the broader unifying function across the laws of obligations and its public policy aims, (ii) amalgamating the concepts of Singapore and American jurisprudence, and (iii) developing a principled but flexible framework for whether punitive damages should be imposed. Notably, this article does not fully support the Gore guidepost of the ratio of compensatory and punitive damages. The ratio of compensatory and punitive damages finds limited application in assessing whether punitive damages should be awarded. Indeed, in Singapore’s system of bifurcated trials for liability and assessment of damages in torts, an examination of the ratio of compensatory and punitive damages would only be relevant after the determination of liability and the appropriateness of punitive damages. Nonetheless, the ratio of compensatory and punitive damages may be useful in assessing the quantum of punitive damages awardable, should the courts be minded to consider this factor in an appropriate fact scenario.

Being a framework, it is respectfully submitted that the courts and litigants are free to vary the weight accorded to each limb of the framework as they see fit. This framework is developed based on the limited jurisprudence on this area in Singapore and United States cases. It is meaningful in assessing the “outrageousness” of a given defendant’s actions first, before considering if public policy aims are also achieved. In so doing, it recognises that public policy cannot be the sole reason for an imposition of punitive damages and the fundamental element of “outrageousness” is necessary.

VI. Conclusion

The comparative analysis of punitive damages in tort and contract law between Singapore and theUnitedStates highlights thenuanced and cautious approachadopted by Singaporeancourts. While punitive damages are more readily accepted in tort law due to their deterrent effect, their application in contract law remains limited and possibly contingent on concurrent tortious conduct.

This article has elucidated the reasons for an award for punitive damages in private law. In employing a comparative approach between Singapore and the United States, various nuances in judicial attitudes have emerged and were analysed. Overall, the status of punitive damages in contract and tort law demonstrates a balance between the need to deter wrongful conduct and the principle of ensuring fairness and proportionality in legal remedies. This balance is carefully maintained through judicial discretion, adherence to established principles, and consideration of the specific circumstances of each case. The comparative perspective underscores the importance of context and legal tradition in shaping the application of punitive damages, highlighting the diverse approaches taken by different jurisdictions in addressing similar legal issues.

The question of how punitive damages should evolve in the future of jurisprudence can therefore be answered with the following framework. First, the requirement of “reprehensibility” or “outrageousness” must be satisfied. Second, the public policy aims of imposing punitive damages must be achieved, having sufficient regard for the nature and aims of contract or tort law at large.

In conclusion, as the law develops, taking a broader view in terms of private law as a whole (as opposed to a strictly contractual or tortious perspective) encourages a paradigm shift for greater consistency legal disciplines. Similarly, the method of cross-jurisdictional comparisons allows each court to decide the most appropriate rules to adopt in each case, on an as-needed basis. This advances legal studies to the extent that the law responds appropriately to the increasingly transnational nature of business. Taking these similarities and differences as valuable learning opportunities would enhance any judiciary to better protect the rule of law.

For further studies, this article suggests broadening the scope of the comparisons made. Findings seem promising for comparisons made with even more common law countries or civil law countries. Additionally, more work into other areas of law or even interdisciplinary areas may prove worthwhile, given the private law nature, restitutionary characteristics, and sociological elements of punitive damages. Finally, this article suggests that future work on

punitive damages can be conducted empirically to determine if the deterrent function of punitive damages is effective.

Why Dentons Rodyk?

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AllArePunished:VicariousLiabilityandPunitiveDamagesin CommonLaw

EvanChou*

1. Introduction

In remedies for torts, the norm is that the remedy serves to compensate the victim for harm done.1 However, the law of tort also recognises that there are exceptions to this rule. For example,itisgenerally-recognisedthattherearewrongsthatinvolvenoharmwhatsoever2 for which there can be a remedy (such as nominal damages), or remedies against future harms (such as quia timet injunctions). There are also cases where the defendant’s conduct is of the sortthatthecourtseesfit todepartfromthis “fundamental” 3 principle and choosesinsteadto punishthedefendantfortheirconduct.

Anothergeneralprincipleintortisfortheretobeadirectrelationshipbetweenthecommission ofthetortandthedefendantbeingheldresponsible.Simultaneously,thelawacceptsthatthere are situations where it is not the direct tortfeasor who has to pay. Vicarious liability permits recoveryagainstanemployer(orapartyakintoanemployer),eventhoughtheymaynothave any direct involvement in, or knowledge of, the tortious act. In this sense, vicarious liability canbeseenasstrict,imposedevenwithoutfaultbytheemployer.4

* Universityof Oxford, BA(Jurisprudence) Classof 2024.Iwould liketo thank the editorsof this article for the invaluablefeedbackandcontributionstothisarticle.IwouldalsoliketothankJoshuaNgandAlexanderYeanfor theirastuteobservationsandfeedback.Allerrorsremainmyown.

1 Shawv Kovac [2017] EWCACiv 1028; Chartered ElectronicsIndustriesPte Ltd v Comtech ITPte Ltd [1998] SGCA43(“CharteredElectronics”),[16].

2 ARipstein,‘BeyondtheHarmPrinciple’(2006)34Philosophy&PublicAffairs215.

3 CharteredElectronics,[17].

4 LeeandChan,19.004.

As far as I am aware, there is no case in English or Singaporean law where the interaction of the two doctrines has been conclusively addressed. There is no clarity on whether it is conceptually possiblefor thereto havebeenan awardofpunitivedamages against avicariously liable employer.The closest case is Kuddus v Chief Constable of Leicestershire Constabulary, 5 where the matter was discussed at some length, though this was obiter. A possible reason for this is that in cases where there is a claim in vicarious liability, parties are generally in agreement that punitive damages are inappropriate for the case at hand.6 However, undesirability in litigation is not necessarily borne out of conceptual impossibility. This is an issue that may someday arise, and goes to the normative heart of each doctrine.

In this article, I will explore the relationship between the two exceptions mentioned above. I first explore the rules on punitive damages in England and Singapore, and the situations in which they may be awarded. I then consider the scope of vicarious liability.7 The availability of punitive damages against a vicariously liable employer will depend on the extent to which the conduct of the employee can be seen as the conduct of the employer. To this end, I consider what vicarious liability “transfers”: whether it is the act or the liability which is attributed to the employer. This involves setting out and responding to Professor Robert Stevens’argument that it is the employer’s act which is attributed, as it is the clearest and most detailed discussion on the matter. Contrary to Professor Stevens, I will argue that vicarious liability involves attributing the employee’s liability to the employer.

5 [2002] 2AC 122 (“Kuddus”).

6 See for example ACB v Thomson Medical Pte Ltd and Ors [2017]SGCA20 (“ACB”); Mah Kiat Seng v AttorneyGeneral [2023] SGHC 14; Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11.

7 I do not intend to discuss the precise juridical foundations of vicarious liability (in the sense of why it exists in the first place), for there are numerous possibilities that would make this article many times longer than it already is. On the basis of vicarious liability, variously M Cappelletti, ‘A Pluralist View of Vicarious Liability in Tort’ (2024) 140 LQR 61; R Stevens, Torts and Rights (2007) 20–43 (“Stevens”); J Goudkamp and D Nolan (eds), Winfield & Jolowicz on Tort, 20th edn (Sweet & Maxwell, 2020) (“Winfield & Jolowicz”).

After setting out the scope and rules on punitive damages and vicarious liability, I will consider cases where the two doctrines appear to interact. I argue that the cases which appear to recognise the availability of punitive damages against vicariously liable employers are in fact examples of punitive damages authorised by statute, rather than due to availability in common law. I intend to show that the theoretical basis of vicarious liability as it stands in England and Singapore is inconsistent with an award of punitive damages against employers who are not independently liable. It will be argued that in cases where punitive damages against the employee are available, it would be difficult to say that the employer is ipso facto open to punitive damages too. In cases where punitive damages may be awarded against an employer, that is because of some conduct in their own right, rather than because of the employeremployee relationship. To put it shortly, if an employer is "merely" vicariously liable, there is no conceptual reason to grant punitive damages against them.

2. Punitive Damages

In Wilkes v Wood, 8 the aims of punitive damages were set out. They are:

“designed not solely as a satisfaction to the injured person, but likewise as a punishment for the guilty, to deter any such proceeding for the future, and as proof of the detestation of the jury to the action itself”

The position is the same in Singapore law, where the Court of Appeal in ACB v Thomson Medical Pte Ltd and Ors9 described the purpose of such remedies as to “punish, deter, and condemn”.10 Whiletheintent isthesame,thespecificrules differbetweenthetwojurisdictions.

8 (1763) 98 ER 489.

9 [2017] SGCA20 (“ACB”).

10 ACB, [155].

2.1 English Law

In English law, punitive damages are only available in three limited categories of cases, set out by Lord Devlin in Rookes v Barnard 11

“The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category I say this with particular reference to the facts of this case to oppressive action by private corporations or individuals.

…

Cases in the second category are those in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.

…

To these two categories which are established as part of the common law there must of course be added any category in which exemplary damages are expressly authorised by statute.”

12

The reason for this limitation was that Lord Devlin (giving the only reasoned speech on the issue) considered that even though punitive damages would defy the usually-compensatory nature of tort damages, previous decisions set out clear precedent for awarding punitive damages. The fact that the prior cases were generally confined to the categories above meant that punitive damages could be confined. However, punitive damages are not limited to causes of action where punitive damages had previously been awarded, but are available so long as any of the categories above are satisfied.13 Once a case falls within the three categories

11 [1964]AC 1129 (“Rookes”).

12 Rookes, 1226-1227.

13 Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2AC 122 (“Kuddus”).

mentioned above, they can be awarded, though only if and to the extent that compensatory damages are inadequate to punish and deter the defendant.14

An example of the first category is Thompson v Commissioner of Police of The Metropolis 15 That case concerned the grant of punitive damages for false imprisonment and malicious prosecution by police officers. Another example involving similar facts is Rowlands v Chief Constable of Merseyside Police. 16 It should be noted at this point that both cases involved the PoliceAct 1996, but this will be discussed in section 4.1 below.

An illustration of the second category is Cassell & Co v Broome, 17 The defendant author and publisher had presented what was reportedly an authentic wartime account of the loss of Convoy PQ 17 in WorldWar II, which alleged that the claimant (one of the senior officers) was partly responsible. It was proved that the claimant had objected to the passages from an early stage, and that experts had considered them libellous, but they were published anyway. It was held that insofar as the case fell into Lord Devlin’s second category in Rookes, the defendants were liable for exemplary damages. It was held that a tort committed in the course of business is insufficient to attract punitive damages, which requires “guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic, or perhaps physical, penalty”.18 However, there is no need for there to have been an exact calculation of concomitant risk from the tortious act. In libel cases, all that needs to be shown is that the defendant published a statement it knew to be false, or did so recklessly or carelessly, and had calculated that profits would likely exceed liability.

14 Rookes, 1221-1236.

15 [1997] 3 WLR 403 (“Thompson”), 517.

16 [2006] EWCACiv 1773 (“Rowlands”), [33].

17 [1972]AC 1027.

18 Broome, 1079.

The third category (punitive damages where authorised by statute) is straightforward, and will be discussed in section 4 below.

2.2 Singapore Law

The leading case on punitive damages in Singapore law is ACB.The intent ofpunitive damages is similar to English law. Punitive damages are backwards-looking (punishing the defendant and vindicating the victim’s rights), as well as forwards-looking (making an example of the particular defendant to deter potential future tortfeasors).19 The key difference is that unlike under Rookes, there is no strict “categories” test limiting the availability of punitive damages:

“the test is unprincipled because it imposes an arbitrary limitation on the jurisdiction of the court to award punitive damages which does not correspond to the underlying principle of its grant (that is, to punish, deter, and condemn).”

20

The categories were also described as illogical, unnecessarily and inexplicably excluding cases which might be equally or even more in need of punishment and deterrence.21 The Court of Appealquestionedwhytortsbypublicofficialsorwithaprofitmotivewere seenasparticularly deserving of condemnation. For instance, malicious conduct, or torts involving use of significant private power could be seen as similarly repugnant, but are excluded from punitive damages under Rookes. Weight was also given to the fact that Australia, New Zealand, and Canada had also rejected the “categories” approach.22

19 ACB, [200].

20 ACB, [174].

21 ACB, [174].

22 ACB, [162]-[167].

In the absence of the categories from Rookes, punitive damages are available in Singapore law “where the totality of the defendant’s conduct is so outrageous that it warrants punishment, deterrence, and condemnation”.23 However, this does not necessarily require intentional wrongdoing or conscious recklessness (though this would likely form the bulk of cases where punitive damages were available). The Court ofAppeal left open the possibility of cases where the defendant’s negligence was so egregious as to be described as “outrageous” conduct.24

3. Vicarious Liability

Vicarious liability involves an employer (or quasi-employer) being held liable for an employee’s wrongdoing. It has variously been described as based on the employer’s greater ability to pay compared to an employee,25 the efficiency of spreading losses,26 and the “enterprise liability” view, that the employer takes the benefit of the employer’s acts, so must take the risk of the employee committing a tort in the course of their employment.

27

No matter which basis one subscribes to, the requirements for vicarious liability in English law are a relationship akin to employment, and that the employee was acting in the course of his employment when he committed the tortious act.28

23 ACB, [176].

24 ACB, [199]-[206].

25 Bazley v Curry [1999] 2 SCR 534 (“Bazley”), [34]; GWilliams, ‘Vicarious Liability and the Master's Indemnity’ (1957) 20 MLR 220.

26 PSAtiyah, Vicarious Liability in the Law of Torts (Butterworths 1967), 22-28.

27 Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 (“BXB”); J Stapleton Product Liability (CUP 1994), 193.

28 Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (“Christian Brothers”).

The first limb does not require a strict employer-employee relationship, though the relationship must be analogous.29 This does not require commercial motivation. An example is Cox v Ministry of Justice, 30 where the Ministry was vicariously liable for injuries sustained by a catering manager due to the negligence of a prisoner. Whether there is a relationship “akin to employment” will depend on whether the primary tortfeasor has been incorporated into the “employer’s” hierarchy, is under their control, and whether the work is done for their benefit.

On the second limb, the test in English law for “course of employment” is whether there is a “very close connection” between the torts and the employment.31 This requires that the wrongful conduct is

“so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor”32

This involves (among other factors) consideration of whether the tort was committed when carrying out work for the employer, whether (and to what extent) the tortious act furthered the employer’s aims, the power conferred by the employer over the victim, and the victim’s vulnerability in relation to said power.33

The approach in Singapore law is substantially the same, of whether the act is “so closely connected with his employment that it is fair and just that the employer should be held

29 Ng Huat Seng v Munib Mohammad Madni [2017] SGCA58.

30 [2016] UKSC 10.

31 Lister v Hesley Hall Ltd [2001] UKHL 22.

32 BXB, [58].

33 Bazley

vicariously liable for the employee’s [tort]”.34 While vicarious liability as a doctrine has taken a slightly different direction in Singapore, these core tenets remain identical between the jurisdictions. The use of “fair just and reasonable” and the like does not set out any particularly distinct test, but is a conclusionary label that has also been used in English law.35

While it is tolerably clear when vicarious liability arises, it is less clear what is “transferred” or attributed to the employer, including whether the employer is treated as a primary tortfeasor, or merely standing in the employee’s shoes for the purpose of liability.

Deciding whether punitive damages should be awarded in cases of vicarious liability will dependonwhetheritistheact,ormerelytheliability,oftheemployeethatis attributed.Despite the comparative rarity of punitive damages, this is a necessary distinction, given the moral dimension behind an award of punitive damages. If the act is attributed, the employer has the same moral responsibility, and deserves the same moral opprobrium, as the employee (given that the employer did the punishable-thing). If the liability is attributed, the employer is not fixed with any moral responsibility (or only a lesser responsibility), and simply has to pay up.

3.1AttributingAction

Professor Stevens’s view is that vicarious liability involves attributing the act of the employee to the employer. It is a persuasive and well-thought argument, but I am unsure of whether it is a true reflection of what the law is, or should be. I will analyse the issue of attribution by setting out Stevens’argument and raising certain objections to it.

At one point in time, the “master’s tort” theory was the prevalent view. The master acted through the servant, so the acts of the servant were seen as the acts of the master directly. Because of this relationship, the acts, not the liability, are imputed to the employer. This was

34 Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2011] SGCA22, [86].

35 BXB, [30]-[33], [82].

recognised as the basis of vicarious liability, viewed in Launchbury v Morgans as an extension of the agency principle.36 The attribution of the act is generally unpopular nowadays, on grounds that it involves a fiction, as the exercise of will is by the employee, not the employer (who might not desire the commission of the tort in question).

Stevens argues that it is nonetheless possible to attribute acts to employers, including acts that are not intended or strictly within the scope of duties. His view can be broadly grouped into four key arguments.

First, Stevens argues that employees’acts can be attributed to employers even if the employer does not intend for them because we can be responsible for acts that we did not intend, such as where we knock over a vase on accident. Even if this can be described as fictitious, this is no different to authorisation, ratification, procurement, or conspiracy. The example Stevens gives is that in the same way a university can authorise a professor to speak on its behalf such that the professor’s words are deemed the university’s, the professor’s acts can be attributed to the university.

Stevens suggests that attribution is common in real life. In football, we can attribute a player’s physical actions to his team. This allows us to say that “England scored a goal”, when it was Harry Kane (the player) who kicked the ball into the net. This applies even though England (or its head coach) could not choose who scored, other than choosing which players were on the field at any one point in time.Attribution applies equally where the player scores an own goal. Even if this was contrary to instructions, or done deliberately, the act will be attributed to the team, such that England is viewed as having conceded a goal.

37

36 [1973]AC 127 (“Launchbury”), 140 (Viscount Dilhorne), 142 (Lord Pearson).

37 Stevens, 261.

Second, Stevens raises the fact that an employer can be held vicariously liable even though no claim can be brought against the employee. The case cited for this proposition is Broom v Morgan. 38 In that case, C was carelessly injured by her husband, at a time when spouses could not sue each other. However, D (their employer) was vicariously liable. Stevens argues that the act was attributed, since there was no liability that could be attributed. Contrary to Atiyah’s suggestion of procedural immunity,39 Stevens argues that, since there is no revival of claims post-divorce, immunity from liability in this case was substantive. 40

Third, Stevens raises procedural rules which weigh in favour of attributing the act. One such procedural rule is the treatment of vicariously liable employers who bring contribution claims. Stevens cites Dubai Aluminium Co Ltd v Salaam41 for this point. In brief, innocent partners in a firm of solicitors were held responsible (to use a neutral term) for fraud by another partner. In contribution claims against fellow wrongdoers, the partners were treated as having committed the wrong, not as innocent parties liable for wrongs of another. This indicates that it is the act (not just liability) which is attributed to the employer in vicarious liability.

Another procedural rule is the possibility of an employee relying on the employer’s privilege. An employee can rely on the employer’s right to eject a trespasser, whereas a non-employee obviously cannot. In the same way, an employee publishing something can rely on their employer’s privilege, even if the employee has no independent privilege of their own. This extends to privilege accorded by subsequent ratification.42 This supports the view that the employee’s acts are treated as acts of the employer.

38 [1953] 1 QB 597. (“Broom”)

39 Atiyah, 8.

40 Stevens, 263.

41 [2002] UKHL 48.

42 Buron v Denman (1848) 2 Exch 167,

Fourth, Stevens argues that his view has been recognised as the correct approach in positive law. In addition to Launchbury (mentioned above), Stevens cites the Australian case Darling Island Stevedoring & Lighterage v Long, 43 as demonstrating that vicarious liability involves imputing acts. Launchbury contained mention by Viscount Dilhorne and Lord Pearson that vicarious liability can be explained by the maxim qui facit per alium, facit per se, that he who acts through another does the act himself. This understanding would indicate that judges (insofar as they are familiar with and fluent in Latin, and Stevens himself admits that most lawyers are not44) see vicarious liability as attributing acts to the employer. Darling Island involved a personal statutory duty on a “person in charge” of loading. The defendant in that case was held liable for breach of duty, but not their employer, which Stevens argues means that acts are attributed. If liability was attributed, it should have followed (on Stevens’ characterisation) that the employer would be responsible, even though the breach was by the employee.

3.2Attributing Liability

Stevens takes the above to provide conclusive support for vicarious liability involving attribution of the act, rather than liability. However, each of the four categories above contain serious weaknesses.

In response to the first argument, it is submitted that Stevens assumes that it is always possible for us to attribute acts (as a matter of language and common sense), whereas this is not always the case. While we are responsible for inadvertent acts by our own bodies, this does not mean that we can ipso facto be equally responsible for acts by another’s body that we may not ourselves intend. In the former, the starting point is that we are responsible, because the act was ours. In the latter, the starting point is generally that we are not responsible, because the act was by another. Just because our responsibilities are not limited to those consequences

43 (1957) 97 CLR 36 (“Darling Island”).

44 Stevens, 260.

which we intend,45 does not mean that we should be held responsible for all consequences which we do not intend.46

Even though in both cases the act may not have been desired, the involvement of an external party(theemployee)alters thesituation,suchthatitis notimmediatelyclearwhytheact (rather than just the liability) of another should be attributed. It is submitted that an antecedent relationship (akin to employment) is insufficient. Previously, vicarious liability was limited to authorised acts, or a wrongful and unauthorised mode of doing an authorised act.47 Under such rules, it would be easy in vicarious liability to attribute the act to the employer. However, that is not the present state of the law.48 The present scope of vicarious liability is such that the acts there are acts (of the employee) that can be separated from the intent of the employer. To be clear, this is not to say that vicarious liability as a whole should be overhauled, or returned to a pre-Christian Brothers world. Rather, it simply means that the current rules on vicarious liability significantly weaken the extent to which Stevens’ can argue that it is the act that is attributed.The position would be different if vicarious liability was limited to actions only ever within the employee’s actual ambit, but this is not the case.

A further flaw with Stevens’ view is that even if attribution is possible in some situations (as seen from the football example above), it overestimates the extent of this possibility. While “England scored a goal” is a common-sense description of events on the field, it would be somewhat more difficult to say that “England racially-abused the referee”, at least in all cases. In both scenarios, England (or the Football Association) will be deemed “responsible” (taking the benefit or burden, as the case may be), but it is not immediately clear that both can involve

45 Stevens, 260.

46 For a general discussion on this distinction see T Madigan, ‘Two Dimensions of Responsibility: Quality and Competence of Will’ (2023) 10 Journal of the American Philosophical Association 281.

47 Trotman v North Yorkshire County Council [1999] LGR 584; Salmond, Law ofTorts, 1st ed (1907) 83; Salmond & Heuston on the Law of Torts, 21st ed (1996), 443.

48 Christian Brothers; Lister v Hesley Hall Ltd [2001] UKHL 22.

attributing acts. While this does not mean that acts can never be attributed, the strength and relevance of Stevens’ renvoi to games is weakened.

Inaddition,attributingtheacttotheemployerisanimpermissiblefiction.WhileStevensargues that liability on the basis of conspiracy or authorisation is also fictional, this ignores the different moral positions in play. An employer that authorises, ratifies, procures, or conspires has adopted and endorsed the act. In such cases, the “fiction” of attribution is permissible because there is some responsibility assumed by the employer for the act. This is different from cases of vicarious liability, where the employer often has (as Stevens notes49) no “exercise of will” in favour of the act in question.The examples that Stevens deems permissible fictions are cases wheretheemployer has invariablytreatedthe act as theirown(orin pursuit oftheirends), whereas vicarious liability does not involve such treatment by the employer. There is no issue with the fiction of attribution. The issue is deploying it in an inconsistent manner. Because the reasons for the fiction applying do not arise in vicarious liability, it would be incorrect to use it here to attribute the act to the employer.

Regarding Stevens’ second argument, a significant issue with saying that vicarious liability involves attributing action is that it does not address the fact that vicarious liability does not arise where there is no tort by the employee. To establish vicarious liability, the claimant must show that the employee specifically committed the tort. If a defence is available to the employee (or an employee had not committed any tort), there would similarly be no claim against the employer.50 This shows that it is the employee’s liability that is attributed. If it was the act that was attributed, there would be no need to show a tort by the employee (since the acts would only need to be a tort by the employer). It is respectfully submitted that Stevens is attempting to integrate the rules on agency (which he explicitly-argues to involve the same exercise51) to the employer-employee context. However, agency concerns authorisation to

49 Stevens, 260

50 Lee and Chan, 19.034-19.035.

51 Stevens, 245.

carry on acts on behalf of the principal, and not all employees are considered agents.52 That Stevens argues that the exercise should be the same, does not mean that it actually is the same in the vicarious liability and agency contexts.

In any case, the cases cited by Stevens do not really support his view. Broom does not indicate that there was some “substantive immunity” in play such that there was no liability to attribute to the employer (such that the act was attributed). Rather, Broom supportsAtiyah’s “procedural immunity” view.As Singleton LJ noted:

“It is right to say that if he failed in the duty which he owed to her as an employee, she could not succeed in an action against him in respect of that breach of duty or negligence, for a wife cannot sue her husband in tort; but that is not the same as saying that he cannot be guilty of a breach of duty towards her.”53

The extract above indicates that there was indeed a breach of duty as between husband and wife. That the husband could not be sued by his wife does not mean that there is no liability to be attributed in situations where a claim can be brought (e.g. against the employer). The possibility of the husband’s immunity being substantive was rejected.54 The husband remained liable, though the liability was not one which was enforceable against the husband. There was still liability, and this could be enforced against the employer. This shows that Stevens’ argument is conceptually unsatisfying, and not supported by positive law.

As for Stevens’ third argument (on procedure), Dubai Aluminium does appear to support his view. In fact, the case instead militates against attributing the employee’s act to the employer. This is seen by the fact that the employer (or partnership, as it was in Dubai Aluminium) is

52 Lee and Chan, 19.077 et seq

53 Broom, 604.

54 Specifically by Denning LJ at 609, and by Hodson LJ at 611.

vicariously liable for the “fault of another”.55 The reason why the partners were not treated as innocent parties for the purpose of contribution claims was also explained:

“The employer is not a wrongdoer; he is not liable in respect of his own conduct. He is answerable for his employee's wrongdoing, and his liability is coextensive with that of his employee. He is personally innocent, but he is liable because his employee is guilty.”56

Given that the House of Lords held that vicarious liability involves the “fault of another”, and that responsibility is not due to the employer’s own conduct, it is difficult to say that they nonetheless are attributing the employee’s acts to the employer (given that there has been a clear separation of the employer and employee’s behaviour).

Perhaps the most significant issue is with Stevens’ fourth argument, that it may not properly reflect the present state of the law. It is submitted that as a matter of positive law, vicarious liability involves attribution of the employee’s liability to the employer, not the act.

However, these cases do not lend too much support for Stevens’view. In Bartonshill Coal Co v McGuire, 57 Lord Chelmsford LC had explained vicarious liability:

“the master is liable to third persons for any injury or damage done through the negligence or unskilfulness of a servant acting in his master's employ… every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it were the master’s own act”58 (emphasis added)`

55 Dubai Aluminium, [47] (Lord Nicholls).

56 Dubai Aluminium, [155] (Lord Millett).

57 (1858) 3 Macq 300 (“Bartsonhill Coal”).

58 Bartsonshill Coal, 306.

This indicates that vicarious liability involves attribution of liability, not actions. While the above extract might be read as attributing the act (“the master’s own act”), as Stevens does,59 the use of “as if” indicates that the acts of the employer and employee are distinct. This interpretation is reinforced by reference to Lord Reid’s judgment in Staveley Iron & Chemical Co v Jones. 60 Lord Reid held that an employer will not be held liable for something that was not a wrong by the servant.61 It necessarily follows from this statement that it is the liability, not the act, which is attributed in vicarious liability.

Lord Reid also addressed the use of qui facit per alium facit per se (later used in Launchbury, and relied-on by Stevens62). The phrase was not being used in the literal sense, or to show that the vicarious liability involves the attribution of acts. Rather it was a “fictional explanation”.63 Where an employer is held vicariously liable, their own fault (e.g. hiring an incompetent or negligent employee) will be different to the fault of the employee (the tortious act). This, when read with the statement that an employer would not be held liable if the employee was not themselves at fault, means that vicarious liability involves attributing liability, not acts.

It should be noted that Stevens refers to all of the above as obiter. 64 I would disagree, as the above sections were integral to Lord Reid’s reasoning, as part of his response to Denning LJ in the Court of Appeal and explanation as to why he disagreed with the latter’s interpretation of cases such as Bartonshill Coal. 65 Lord Tucker (with whom the rest of the House of Lords

59 Stevens, 260.

60 [1956]AC 627 (“Staveley Iron”).

61 Staveley Iron, 643.

62 Stevens, 260.

63 Staveley Iron, 643.

64 Stevens, 261.

65 Staveley Iron, 642-644.

agreed) adopted the same approach. Lord Tucker specifically adopted and quoted Hodson LJ’s reasoning before the Court ofAppeal:

“I cannot agree that the act or omission of the employers' servant ought, as the trial judge thought, to be looked at exactly in the same way as the act or omission of the plaintiff”.66

Vicarious liability was positioned as attributing liability, not acts. Even if it was obiter, it was a point on which all five Law Lords were agreed.

In addition to the above, Majrowski v Guy's and St Thomas's NHS Trust67 poses the greatest difficulty to Stevens’view. Majrowski was clear that vicarious liability is based on attributing to the employer the liability for the employer’s tort. Vicarious liability does not involve attribution of the act itself.68 Stevens attempted to distinguish this as based on statutory duty which applied generally, so the issue of whether attribution of liability or action supposedly did not arise.69 The issue with this is that the judgments did not confine themselves to breach of statutory duty, but involved recognition by the entire panel that the principles for vicarious liability in common law applied equally to breach of statutory duty.70 It was also held in the Court ofAppeal (and conceded by counsel before the House of Lords) that an employer can be vicariously liable for breach of duty imposed on an employee.71 Given that the act could not be attributed to the employer, the fact that vicarious liability was recognised indicates that the

66 Staveley Iron, 646.

67 [2006] UKHL 34 (“Majrowski”).

68 Majrowski, [15] (Lord Nicholls), [52]-[59] (Lord Hope), [68] (Baroness Hale), [81] (Lord Brown).

69 Stevens, 264-265.

70 Majrowski, [10] (Lord Nicholls), [58] (Lord Hope), [72]-[73] (Baroness Hale), [77] (Lord Carswell), [81] (Lord Brown).

71 Majrowski, [42].

liability is attributed. Darling Island was also explained as based on the particular language of theAustralian regulations.72

In summary, vicarious liability involves, and should involve, attribution of liability, rather than the act, of the employee to the employer. This distinction means that the employer is a secondary, rather than primary, tortfeasor. This would prima facie limit their moral responsibility for the tort, which will be relevant for whether punitive damages can be awarded against them.

4. Potential Interaction

As stated above, there is no clear direction on how courts will approach the issue of punitive damages forvicariousliability.Thatbeingsaid,therearecaseswherethetwoappeartointeract.

4.1 English Law

The closest that the senior appellate courts have come to ruling on the availability of punitive damages for vicarious liability was in Kuddus Kuddus involved a claim for misfeasance in public office, for a constable forging the claimant’s signature to withdraw a claimant. In obiter remarks, Lord Scott cast doubt on whether punitive damages should be available for cases involving vicarious liability. Relying on Broome, Lord Scott stated that a vicariously liable employer is jointly liable alongside the employee (if the employee is sued). Because of this joint liability, punitive damages against one party ought to be justifiable against any and all parties. Punitive damages should thus be capped at the highest common bar, so if the behaviour of one party did not attract punitive damages, no such award should be made at all. This means that in cases of vicarious liability, there should not be punitive damages unless the employer’s conduct also attracted punitive damages. Lord Scott also looked in favour of a rule that in the same way that a plaintiff could not be awarded punitive damages unless they were the victim

72 Majrowski, [14].

of the acts complained of, a defendant should not have punitive damages awarded against them unless they had committed said acts.73

Notwithstanding Kuddus, punitive damages have at times been awarded to vicariously liable employers. Thompson has been viewed as express recognition that awards of punitive damages could be made in vicarious liability claims.74 This is not the case. Thompson was governed by statute, specifically s.88 of the Police Act 1996, which makes chief police officers liable for torts of their employees, treating them as a “joint” tortfeasor. Thompson is thus an example of the third category from Rookes, of there being statutory authorisation to award punitive damages. Under the 1996Act, the employer is treated as being a primary tortfeasor, rather than being vicariously liable in the “true” sense.

The same explanation applies to Rowlands. The availability of punitive damages in Rowlands wassaidtobebecausetheyare“simplyameansofexpressingthejury's“vigorousdisapproval” of the conduct of the police force as an institution, as well as of the individual police officers, on the occasion in question”.75 In addition, the decision to grant punitive damages against the defendant was explicitly stated to be based on policy, that it was the only way for an adequate remedy to be made against those who bear “public responsibility” for primary tortfeasors.76 Whileexplaining the intent ofpunitivedamages against chief policeofficers foractions of their subordinates, this does not explain their availability. Rather than being generally-available, it was recognised that the claim against the chief officer was by operation of statute, and unavailable in common law.77

73 Kuddus, [123]-[139].

74 Winfield and Jolowicz, 23-020.

75 Rowlands, [42].

76 Rowlands, [47].

77 Rowlands, [35], [48].

The above cases indicate that an employer’s vicarious liability does not extend to punitive damages in English common law. Where vicarious liability is so extended, they generally appear to be based on statute.

4.2 Singapore Law

Similarly to English law, it is unclear whether Singapore law will recognise the application of vicarious liability to punitive damages, though the cases lean towards vicariously liable employers not being susceptible to punitive damages.

ACB did involve vicarious liability, but the court noted that the only area of common ground in the case was that punitive damages against the First and Second Respondents was unavailable, and it was recognised that the facts before the court were insufficient to make such an award.78 This was because no party had ever actually made any claim for punitive damages, but it was instead raised by the court (which directed the parties to file submissions on the issue, and then delivered exhaustive grounds).79 As a result, the lack of award of punitive damages was not because of a general rule, but because parties were in agreement that there was no conduct which would entail punitive damages.

Li Siu Lun v Looi Kok Poh and another80 involved Gleneagles Hospital being held vicariously liable for an error of judgment by a nurse. Punitive damages were rejected as the hospital had already been given a stern warning by the Ministry of Health, and its senior management was not involved in some conspiracy or deliberate misconduct, but was merely vicariously liable. While this may appear to involve acceptance that vicarious liability can include punitive damages, this case also involves judicial recognition that it would be inappropriate for punitive

78 ACB, [207]-[209].

79 ACB, Headnote, [19]-[25].

80 [2015] SGHC 149 (“Li Siu Lun”).

damages to be awarded where the case involves vicarious liability without further involvement or independent wrongdoing by the employer.81

Similarly, in Goel Adesh Kumar v Resorts World at Sentosa Pte Ltd, 82 a claim for punitive damagesagainstavicariouslyliableemployer(forintentionaltortsbyemployees)was rejected. The employees themselves were not party to the case, only the employer. Punitive damages against the casino were rejected, as notwithstanding the intentional torts against the claimant, the casino itself had not abused its powers or acted in a way deserving of punishment. Once again, a Singapore court recognised that punitive damages are not justified against vicariously liable employers who are otherwise innocent. The intent of punitive damages is not activated where there is no independent wrongdoing by the employer. Furthermore, Goel Adesh Kumar involved clear recognition by the court that vicarious liability in Singapore law distinguishes the acts of the employee from that of the employer (as has been argued above).

Thepositionfrom thepreceding paragraphs indicatesthatin both English andSingaporeanlaw, vicariously liable employers will not usually be susceptible to punitive damages. Where punitive damages are awarded against employers, this is due to the operation of statute (as it is in the English cases) rather than because of a general rule of law.

4.3 Other Commonwealth Jurisdictions

At this point, I briefly consider the approach in Australian and Malaysian law, as they provide further insight into when and why punitive damages might be awarded where there is vicarious liability.

Like in English law, Australian law recognises the availability of punitive damages where the chief police officer of the relevant area is vicariously liable. However, this is by operation of

81 Li Siu Lun, [210]-[219]

82 [2015] SGHC 289, (“Goel Adesh Kumar”).

statute. New South Wales v Ibbett83 concerned police officers entering a home at night, pointing a gun at the residents, and arresting a resident without proper basis.84 The High Court of Australia held the defendant vicariously liable for the officers’ acts, and awarded punitive damages. Itshouldbenotedthatthisdoesnotprovideanyindicationofthegeneralavailabilityofpunitive damages for vicarious liability cases. Rather, it was based on the specific statutory context. Ibbett was litigated based on s9B Police Legislation Amendment (Civil Liability) Act 2003 (NSW). The relevant extracts are:

“(1)Apolice tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort.”

83 [2006] HCA57 (“Ibbett”)..

84 Ibbett, [8]-[19].

In Ibbett, the State had admitted vicarious liability for any tortious conduct by the officers.85 Two points arise. First, the 2003 Act leads to similar results as the English Police Act 1996, that the possibility of punitive damages is because of the operation of statute. The claim is “instead” against the Crown because there is no possibility of suing the officer personally, rather than the common law position, where there can be a claim against the employee (which this article is specifically concerned with). Second, the specific concession on vicarious liability for any torts committed meant that the officers were not joined as defendants, so there was no discussion on whether, in cases where there could be punitive damages in a claim against the officers specifically, the vicarious liability of their employer extended to punitive damages.

As for Malaysia, the position appears to be that punitive damages are generally available in cases where there is vicarious liability. This was borne out in Datuk Seri Khalid bin Abu Bakar & Ors v N Indra a/p P Nallathamby (the administrator of the estate and dependent of Kugan a/l Ananthan, deceased) and another appeal, 86 whichconcernedadeathwhileinpolicecustody andbreachofrights undertheFederal Constitution,as well as thesubsequent coverupbysenior officers. The fourth and fifth defendants in that case were held vicariously liable, and there appears to have been no issue with their being liable for punitive damages in addition to compensatory damages.

While Malaysian law appears to afford one way for vicarious liability to include punitive damages, it is submitted that this does not apply to English and Singaporean law, and cannot easily be adopted. The Malaysian approach is somewhat different to the English and Singaporean approaches, and is somewhat inconsistent on the principles that apply to the doctrine.87 For example, the “categories” test from Rookes was called the “best reference for a consideration of an award of exemplary damages” by the Malaysian Court ofAppeal, but also referenced the lack of the categories test in Australian and Canadian law without clearly

85 Ibbett, [7].

86 [2015] 1 MLJ 353.

87 ACB, [168].

rejecting that approach.88 Later that same year, a differently-constituted panel of the same court made a similar reference to Rookes without citing jurisdictions that had done away with the categories test.89 The Malaysian High Court had previously awarded punitive damages in a case that does not appear to fit any of the categories from Rookes 90 Crucially, none of the Malaysian cases cited here mention each other, despite purporting to proceed from the same starting principle (from Rookes). This greatly-limits the possibility of either English or Singaporean courts adopting the approach from Malaysian law, because it is unclear what the basis of the Malaysian approach actually is.

Another reason is that Malaysian law appears to view vicarious liability as attributing the act, rather than the liability, to the employer.91 On this approach (which I have argued is not the case in England and Singapore), there would be no conceptual difficulty with punitive damages where there is vicarious liability. Since the employer is seen as a primary tortfeasor, there is no issue with their being open to punitive damages, since they are fixed with the same moral responsibility for the tort, and are treated as having actually done it themselves. However, because it is not the case in England and Singapore (which as I have argued attributes liability rather than the act so the employer is a secondary tortfeasor), the Malaysian approach cannot easily be transposed or referenced to make employers’ vicarious liability extend to punitive damages.

5. Tort as Punishment

There being no clear answer on whether punitive damages are available for vicarious liability, it must be considered, based on the principles set out above, whether it would be conceptually possible to award of punitive damages against a vicariously liable employer.

88 Zulkiply bin Taib v Prabakar a/l Bala Krishna [2015] 2 MLJ 607.

89 Sistem Televisyen Malaysia Bhd v Nurullah bt Zawawi [2015] 6 MLJ 703.

90 Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd [2011] 4 MLJ 354.

91 Roshairee bin Abdul Wahab v Mejar Mustafa bin Omar & Ors [1996] 3 MLJ 337.

5.1 Punishment in Tort

The first stage of this analysis is whether punishment should even be a function of tort law in the first place. If punitive damages cannot be justified, it would necessarily follow that punitive damages should not be available for vicarious liability.

Remedies in tort are usually compensatory, and victim-focused, in that they return the victim (so far as money can do it) to the position they would have been in but-for the tort.92 The position of the tortfeasor is not usually considered. This means, as Lord Devlin recognised in Rookes, that punitive damages are an “anomaly”,93 and thus need continued justification.

Of course, a simple descriptivist argument would be that tort damages are not purely compensatory, as seen by the fact that punitive damages are available at all. On this view, that punitive damages exist at all would indicate that tort admits a punitive dimension, so there is in-principle no issue with punitive damages for vicarious liability. However, this would be a principle lifting itself up by its bootstraps, offering no explanation as to why tort should entail punishment.An external justification for punishment in tort is needed.

5.1.1 Tort as Complementary Punishment

A justification common to England and Singapore is that civil law has a distinct role, as a complementary avenue for punishment to criminal law. This was expressed by the Law Commission:

92 Lee and Chan, 20.006-20.009; Winfield & Jolowicz, 1-007, and Ch. 23 generally.

93 Rookes, 122.

“In general terms, one can regard the gaps as flowing from the fact that the criminal law and criminal process do not work perfectly (and inevitably so).”94

On this view, criminal and civil punishment are different, with different standing requirements and results.95 The former involves the interests of the state, and carries with it a greater stigma for the same sanction, and potentially more restrictive consequences (e.g. imprisonment). The latter involves the pursuit of private interests. If that view is accepted, any objection based on the overlap with criminal law is no longer a necessary one; punitive damages will simply depend on whether punishment is necessary for a particular case.

Convincing as this might be, it is unclear whether they support the continued existence of punishment in tort, at least in the form of punitive damages. In relation to the difference between the criminal and civil processes, and the possibility of punitive damages filling gaps or insufficiencies left by the criminal justice system, it can be questioned whether these gaps should be filled, and whether punitive damages are the appropriate tool for this task.

The very fact that there are different and concurrent processes between criminal and civil law indicates that tort law should not have an expansive punitive dimension. If the point of tort was to punish, as in criminal law, it is unclear why the two systems coexist. It is questionable why, in cases where the legal system has determined that criminal punishment should not be imposed, there should be a second go-round with a lower burden of proof.

Furthermore, if punitive damages were intended to fill a complementary punitive function (which would primarily be filled by criminal law on the Law Commission’s view), it would stand to reason that there would be situations where the existence of a civil award (potentially

94 Law Commission, Aggravated, Exemplary and Restitutionary Damages (Law Com No. 247 1997) (“LC 247”) Part IV, para. 4.15.

95 LC 247 Part IV, para.4.15; LC 247 Part V, paras. 5.16-5.28.

with punitive damages) would be deemed sufficient punishment that a criminal conviction would be unnecessary. However, this is not the case.

Take the example of me striking someone. I would also be to the victim in tort, for trespass to theperson.96 Let us further imaginethatthereis no compensatoryaward (e.g. dueto nomedical expenses), but punitive damages were available and awarded, such that the entire award consisted of punitive damages. If punitive damages really are justified on the basis of their complementary function, there should be cases where a civil award of damages prevented criminal prosecution on the basis that the tortfeasor/defendant has already been punished. This is not the case, and in the above scenario, I would probably be open also to criminal sanction. As a matter of law (disregarding prosecutorial discretion), there would be nothing to prevent me from being charged and convicted, even though I might have already been successfully sued. This is the case even though the civil and criminal sanctions might well be the same (an identical monetary payment/fine). The fact that this possibility (of a civil award preventing criminal sanction) never arises as a matter of law shows that punitive damages cannot be justified on the basis of playing a complementary role to criminal law.

5.1.2 Tort as Parallel Punishment

An alternative justification for punitive damages is that the “punishment” is not complementary, but parallel, to criminal law. The Singapore Court ofAppeal took this view in ACB. Punitive damages were stated to permit private enforcement of interests, especially “personality” interests, without need to bring a private prosecution. This was contrasted with criminal prosecution, which involves societal pursuit of punishment.97 In addition, punitive damages also had a bridging role between compensatory damages and criminal charges:

“theawardofpunitivedamageshasadistinctandimportantroletoplayinthecontextofprivate law by filling that important interstitial space that exists between those cases where the

96 See for example Letang v Cooper [1965] 1 QB 232.

97 ACB, [183]-[184].

demands of justice are served purely by the award of a compensatory sum, and those cases which properly attract criminal sanction”98

Furthermore, tort was held to be mostly, though not exclusively, compensatory. Reference was made to LordWilberforce in Broome, who in turn had raised defamation as an example of there being a “delictual element which contemplates some penalty for the defendant”.99 Punitive damages were thus an extension of this, an area where tort was fulfilling its non-compensatory functions. The types of punishment were also held to be different in civil and criminal law. While criminal sentencing involves punishment (amongst other things) vis a vis society, punitive damages represent the claimant’s private interests in punishment.100

However, it is unclear why the vindication of rights/outcome of the outrageous behaviour should sound in damages to the victim specifically. The payment could just as well be to the state, or a charity. It does not follow from the claimant having an interest in punishment that the result of that punishment (the enhanced award) in tort should go to the claimant.

Other than the procedural difficulties (to whom the money should be paid), there is a greater conceptual difficulty with the justification for punitive damages from ACB. The argument that punitivedamages andcriminal lawpursue different interests (as statedbytheLaw Commission and in ACB) is inconsistent with the possibility in ACB that punitive damages fill the gap between compensation (which is for civil law) and criminal sanction (which is obviously for criminal law), or the use of punitive damages to make up for the failures of criminal law as raised by the Law Commission. It would be difficult to say that they serve different aims while having one fill in for any weaknesses or insufficiencies in the other.This internal inconsistency is shown by the recognition in ACB of the different procedures, burden of proof, and role of the claimant/complainant in civil and criminal law, which was used to demonstrate that the two

98 ACB, [173].

99 ACB, [171]; Broome, 708-709.

100 ACB, [183]-[184].

systems pursue different aims and interests.101 If this is the case, it is questionable how punitive damages can fill any “important interstitial space” left by the criminal justice process as claimed,102 given that they ex hypothesi operate on different planes and respond to different interests.

5.1.3 The Inherent Punitive Nature of Tort Remedies

Although the explanations above do not justify the punitive dimension of tort, this does not mean that tort cannot involve punishment. It is submitted that the easiest justification, both as a matter of positive law and principle, is that every award in tort includes some inherent punitive element.

Legal sanctions can be defined as “a threat, on behalf of a group, attached to the breach of a norm with the intent of discouraging such breaches”.103 Setting aside the debate of whether every law requires a sanction, it is clear and obvious that in tort, every norm includes a sanction (the remedy). Legal sanctions are inherently punitive, in that they respond to a violation of some legal norm by imposing a “threatened detriment”.104 It does not matter that the sanction may not be coercive, in the sense that it might not actually deter the act in question.105 So long as there is condemnatory character that is otherwise-undesired, there is punishment, even if the offender/tortfeasor can live with it.106 This is in line with the common understanding of what a “punishment” is, that it does not require subjective deterrent or coercive effect, but only

101 ACB, [183]-[185].

102 ACB, [173]; LC 247 Part IV, para 4.15.

103 H Oberdiek, ‘The Role of Sanctions and Coercion in Understanding Law and Legal Systems’(1976) American Journal of Jurisprudence, Vol. 21 Iss. 1, 71, 75.

104 K Himma, Coercion and the Nature of Law (OUP 2020), 8.

105 Himma, 8.

106Z Hoskins and A Duff, ‘Legal Punishment’ in E Zalta and U Nodelman (eds), The Stanford Encyclopedia of Philosophy (Spring 2024 Edition).

requires an otherwise-undesirable outcome in response to a certain act, omission, or state of affairs. Despite punishment not being the aim (or at least not the primary aim) of tort, I would argue that any award against any party in tort includes an inherent punitive dimension. This was recognised by LordAtkin:

“Theliabilityfornegligence,whetheryoustyleit suchortreat it as in othersystems as aspecies of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.”107

I would argue that this applies equally to the remedies for other torts. Even if monetary remedies in tort usually involve restoring the victim to their position but-for the tort, this does not mean that the tortfeasor is not punished. While the innocent party is usually returned to the status quo, the tortfeasor is not returned to their corresponding status quo, as would be the case in unjust enrichment. Rather, even a compensatory award involves detrimentally altering the tortfeasor’s position, as the tortfeasor is left with less money than if they had not committed the tort. This is an example of punishment, regardless of whether it actually affects behaviour in any form.

Once this is recognised, there is no difficulty with punishment being an aspect of the remedies for tort. Any award in tort involves punishment, even if the effect on the victim is merely compensatory.Thisbeing thecase,thereisnoconceptualproblemwithpunitivedamages,since punishment is an inherent part of any award in tort. There is no issue with a head of damages that is intended specifically to punish, since all awards in tort punish in some way. The only remaining issue would be what level of punishment is required in response to any particular

107 Donoghue v Stevenson [1932]AC 562, 580.

tort. It is submitted that the rarity of punitive damages across the common law jurisdictions is simply because a compensatory award is usually seen as sufficient punishment.

5.2 Punishing Employers

That any and all tort awards are punitive means that the mere fact of an employer being fixed with vicarious liability for the tort of an employee entails punishment of the employer – the employer is always punished under any award. Given this position, the question of whether vicarious liability should extend to punitive damages no longer involves questioning whether an employer is or should be punished, but is a question of whether any additional punishment (in the form of punitive damages) is necessary. To justify punitive damages for vicarious liability would require showing that employers deserve additional punishment to being liable at all. I argue that the case for punitive damages in vicarious liability fails here.

5.2.1

“If but only if”

As said by Lord Reid in Broome, 108 the final award where punitive damages are granted does not involve two heads of loss (one for compensation and one for punishment). Rather, it involves a single sum that serves the dual purposes of punishment and compensation. If the purely-compensatory sum sufficiently satisfies the punitive aim of a tort remedy, there is no need for an enhanced sum to punish the defendant. The same approach is taken in Singapore law.109 While it is clear that one can distinguish the amount awarded as “punitive damages” sopleaded (the final award minus the amount awarded as compensatory damages for the claimant’s loss), this does not mean that a compensatory award serves no punitive function. This is especially so given the recognition above that any award in tort constitutes punishment.

If the point of punitive damages is to punish and deter, there is no immediate reason why vicarious liability should involve punitive damages, because the punishable act is the act of

108 Broome, 685-686.

109 ACB, [179].

another. Given that vicarious liability involves being financially liable for the acts of another, it is submitted that this liability will in itself be sufficient to fulfil the punitive element of an award in tort. Where the employer is not independently responsible (i.e. if they had not ordered the action or adopted it), the fact that they are liable in the first place should be sufficient punishment for any actual wrongdoing on their part, such as their failure to take greater precautions. Thisholdstruenotonlywheretheemployeristhesoledefendant,butalsowherebothemployer and employee are sued. As was noted in Kuddus, 110 a vicariously liable employer is jointly liable alongside the employee where both are sued.Where an award is against joint defendants, the award must be justifiable against all. This follows from the fact that joint liability (in the absence of separate awards) involves defendants each being liable for the whole.111 As a result, punitive damages can only be awarded for the highest common factor between the defendants (i.e. the lowest amount awardable against any single defendant).112 Once it is accepted that the employer is not a primary tortfeasor (given that the act is not attributed), punitive damages are only justified if and to the extent that the employer’s acts warrant punitive damages. This will rarely be the case, as the only thing the employer has done “wrong” (barring independent wrongdoing) is to employ the tortfeasor. In cases where this is the only basis for liability on the employer, the employer themselves would rarely have committed any independent wrongs. In such cases, there is no clear reason why punitive damages should be available against the employer. This was recognised in ACB:

“As has been stressed in the various decisions cited above, if the award of punitive damages is a response to conduct which is beyond the pale and therefore deserving of special condemnation, then any restrictions imposed must be related to the character of the offending conduct.Inourjudgment, therefore,punitivedamagesmaybeawardedintortwherethetotality

110 Kuddus, [128].

111 J Edelman, S Colton, J Varuhas (eds), McGregor on Damages 21st edn (Sweet & Maxwell 2022), 52-080.

112 Broome, 1063.

of the defendant’s conduct is so outrageous that it warrants punishment, deterrence, and condemnation.”113

The mere fact that an award is made against an employer means that they are punished. In “true” cases of vicarious liability (i.e. where there is no independent wrong by the employer), the employer’s conduct by definition would not be“beyond the pale”, nor “deserving of special condemnation”. This follows from vicarious liability attributing liability rather than acts, such that in the absence of independent wrongdoing there is no act of the employer that is worthy of moral condemnation. This means that punitive damages are conceptually incompatible with vicarious liability.

One possible objection to this argument is that deliberate wrongdoing is not necessary for an award of punitive damages, and that inadvertent conduct may be so gross as to warrant punitive damages.114 If this is correct, it could be argued that there remains the possibility that an employer may have conducted themselves such that punitive damages should be awarded against them. Even though this issue would rarely arise, since most punitive damages cases would involve deliberate conduct or subjective recklessness,115 this conceptual possibility would theoretically mean that punitive damages should be available in cases of vicarious liability, though it would be rare.

However, even if inadvertent conduct can be punished by punitive damages, it is questionable whether this should extend to vicarious liability. To recapitulate, vicarious liability involves attributingto theemployerthe employee’s liability,not theiracts. Given this position,vicarious liability properly called will not involve any “conduct” by the employer, even inadvertent. In such cases, the deterrence function of punitive damages mentioned above cannot come into play, because there is no conduct of the employer to be deterred (since vicarious liability does

113 ACB, [176].

114 ACB, [199]-[206].

115 ACB, [202].

not attribute the employee’s acts). In addition, if the employer’s own acts reach the level of outrageousness required, it is likely that they would have been independently negligent, which is sufficient for the imposition of punitive damages.116 Such cases should not be classified as an award of punitive damages based on vicarious liability, but punitive damages for acts which the employer themself committed. While punitive damages can be awarded against employers, this does not mean that vicarious liability itself can conceptually include punitive damages.

A second possible objection to ruling out punitive damages for vicarious liability is policybased, that this exclusion would prevent accountability and allow public officials to escape responsibility. This was the justification for extending vicarious liability to include punitive damages in Rowlands (discussed above). However, it is difficult to see how punitive damages would achieve this result. In cases where there is statutory authorisation for punitive damages for vicarious liability (as it is for claims against police officers in English law), it has been acknowledged that the employer will rarely be directly responsible (only liable), with their actual responsibility (due to lack of care or oversight) being relatively rare.117 In addition, cases wheretheclaimisagainst agovernmentofficialwillusuallyinvolvedamagespaidoutofpublic funds.118 That being the case, it is difficult to see how punitive damages will enable accountability.

It could be argued that this should spur structural reform, but in-depth discussion of such an issue is outside the scope of this article. It is also difficult to see how there could be a proposal that does not result in adverse incidental effects (such as increased insurance costs) and is politically feasible, though proposals in this area would be welcome. In addition, I suspect that there are relatively few such cases, so that structural reform would be unlikely. Of course, this issue is not as severe where the employer is a private party, but it does show that the case for punitive damages in general is weaker than it first appears.

116 ACB, [205].

117 Thompson, 512-513.

118 Thompson, 517.

In summary, punitive damages are available “if but only if” they are necessary to punish. In cases of vicarious liability, employers are already punished by dint of there being an award against them. I argue that this liability is sufficient to punish employers, absent independent wrongdoing, and that the potential objections to this cannot stand. Because vicarious liability involves attribution of liability, not action, absent independent wrongdoing the employer’s conduct can never be so outrageous that additional punishment in the form of punitive damages is needed.

5.3 Categorisation & Punishment

With the above in mind, it must next be considered when employers should be susceptible to punitive damages, and whether there are classes of cases (especially in English law with the “categories”test from Rookes)whereit is presumedthatpunitivedamages will beliableagainst employers. I would argue that in both Singapore and English law, punitive damages are, and should continue to be, as a general rule, only available where there is independent wrongdoing bytheemployer.Theonlyexceptiontothisiswherepunitivedamages areauthorisedbystatute, but even in such cases a lack of wrongdoing by the employer will militate against punitive damages.

That this is likely the position in Singapore law can be briefly stated. The aims of punitive damages are to punish, deter, and condemn the defendant’s conduct.Where an employer is held vicariously liable, cases such as Li Siu Lun and Goel Adesh Kumar (discussed above) indicate that a lack of wrongdoing by the employer will mean that no punitive damages will be awarded againstthem.Thisistherightapproach,giventhatanemployerwillalreadybepunishedsimply by being vicariously liable. In the absence of independent wrongdoing, there is no need for additional punishment. This accords with the conclusion above that vicarious liability involves attribution of liability, not the employee’s acts. The employer is a secondary tortfeasor, so their conduct (or lack thereof, given that the act is not attributed) is insufficient to sustain an award of punitive damages.

More complex is the position in English law. It might be argued that Lord Devlin’s first category from Rookes envisions and assumes the availability of punitive damages, for which the employer will be responsible due to vicarious liability. This is not necessarily the case. If vicarious liability extended generally to the first category of punitive damages from Rookes, there would have been no need for the observation in Rowlands that the claim in vicarious liabilityagainstthechiefofficerwas availableonly duetothePoliceAct,ratherthanthegeneral rules on vicarious liability.119 In fact, English law is not far different from Singapore law, in that a lack of wrongdoing by the employer will militate against (if not totally exclude) punitive damages against them.

KD v Chief Constable of Hampshire included a claim for punitive damages against the Chief Constable, for the actions of one of his officers.120 This part of the claim failed. Punitive damages were not rejected on grounds that punitive damages are never available where there is vicarious liability, but because the officer had already been punished.121 Tugendhat J indicated that the officer might have had punitive damages awarded against them.122 Counsel for the Chief Constable seems to have accepted the possibility of punitive damages for vicarious liability.123

However, the reason for the rejection of punitive damages was that the Chief Constable had acted properly, the only wrongdoing being by the officer.124 This means that KD is not far from my overall conclusion, that punitive damages should not be available for vicarious liability, because the employer would not (unless there is some independent wrong) have acted in such a way that they would “deserve” punitive damages. In addition, the relevance of KD is further

119 Rowlands, [35], [48].

120 [2005] EWHC 2550.

121 KD, [184]-[193].

122 KD, [193].

123 KD, [184].

124 KD, [193].

complicated by the fact that there was no direct claim against the officer. Rather, the officer was joined as a defendant in a claim that was initially made against the Chief Constable, for the purpose of an indemnity under the Civil Procedure Rules. KD therefore does not support the argument that punitive damages should carry over from employees to employers in the first category of cases. Rather, it suggests that the conduct of the employer (i.e. whether there is independent wrongdoing) is what determines whether punitive damages should be awarded in vicarious liability cases. This is consistent with the view that vicarious liability does not attribute the acts of the employee.As recognised in KD, where the employer has acted properly throughout, punitive damages will not be awarded against them.

The same applies to the second category of cases, such as Broome. While Broome itself did not concern vicarious liability, both the author and the publisher in that case were guilty of defamation, which is why they were jointly liable. It was recognised that in such cases, where multiple parties were sued, punitive damages could only be awarded for the highest common factor. This meant that if one party had conducted themselves such that punitive damages should not be awarded, punitive damages could not be awarded against any other defendant party to the case, even if they “deserved” (or deserved of a higher amount) of punitive damages.

125

This principle can be seen to apply where there is a claim based on vicarious liability, as demonstrated in Parabola Investments Ltd v Browallia Cal Ltd (formerly Union Cal Ltd) 126 That case involved fraud by a broker, for which his employer accepted vicarious liability.Flaux J declined to award punitive damages. Even if Lord Scott’s comments in Kuddus were obiter, where an employer is only liable vicariously, it would be inappropriate to grant punitive damages against them. Flaux J recognised that it was “something faintly absurd” that if the court wished to express outrage and displeasure at punishable behaviour, punitive damages would be payable by the employer.127 This is correct, given that the punishable act is not

125 Broome, 1063.

126 [2009] EWHC 901.

127 Parabola, [209].

attributable to the employer, only the liability. Counsel for the claimant also realised this, criticising the employer’s conduct specifically following the fraud as the basis for punitive damages, ratherthanthe fact thattheemployer was vicariously liable.128 This showsonceagain that because vicarious liability makes the employer a secondary tortfeasor, there cannot be punitivedamages basedontheconduct oftheemployee(sincenoact is attributed),suchawards only being available for acts of the employer themselves.

The cases above indicate that where an employer is sued on the basis of vicarious liability, something more is needed before punitive damages are awarded against them. Simply being vicariously liable is not enough. This is the right approach, given that vicarious liability involves attributing the employee’s liability to the employer, not their act. Where there is an independent wrong by the employer which attracts punitive damages, there is no issue with such an award. In cases where the employer is merely vicariously liable, punitive damages will not, and should not, be awarded, since the employer has not themselves committed any wrong, but is only liable.

6. Conclusion

There has not yet been a case that has conclusively decided whether punitive damages should be available for claims against employers based solely on their vicarious liability. Despite this lack of authority, I argue that the principles behind the two doctrines should preclude their simultaneous deployment. The fact that vicarious liability involves attributing liability, not the act, means that a vicariously liable employer has not, without independent wrongdoing, conducted themselves such that punitive damages are necessary in either English or Singaporean law. While courts in both jurisdictions have at times proceeded on the basis that punitive damages may be liable in principle against vicariously liable employers, it has already been recognised that vicarious liability alone should not warrant punitive damages.This should not merely be a maxim, but a point of principle.

128 Parabola, [208].

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ToGet-thyImages:ComparingtheFairUseofCopyrightinAI MachineLearninginSingapore&UK

LiewLiRen*andLukeZhang**

Introduction

The potential of artificial intelligence (“AI”) in a wide variety of commercial and consumer contexts has become increasingly apparent, with it now being deployed in healthcare, lawenforcement,finance,etc.1 Thishasattractedsignificantinvestorinterest,withinvestmentinto AIpredictedtoreach200billiondollarsinvaluegloballyby2025.2 Withsuchmarketlargesse, itisnotimplausiblethatinthenearfuture,AIwillbecomeembeddedindailylife.

Consequently, legislatures have takena forward-looking approach to regulating the use ofAI. In particular, the EUAIAct has sought to differentiateAI regulation based on the risk ofAI applicationindifferentfields;forinstance,AIsystemsusedinlawenforcementareconsidered “high-risk” and so must be registered in an EU database and assessed before market introduction.3

However, what has been the subject of comparatively more neglect from legislative bodies is thepotentialimpactofgenerativeAIinthecontextofintellectualpropertyandinfringementof intellectual property rights.Yet, as evidenced by the copious amounts of litigation in the US and UK, whether generative AI can infringe copyright, and who bears the liability of such infringement, remains a contentious and ambiguous issue.This article hopes to provide more

*UniversityofCambridge,BA(Hons)inLaw,Classof2025

**UniversityofCambridge,BA(Hons)inLaw,Classof2024

1 MarrB,‘15AmazingReal-WorldApplicationsofAIEveryoneShouldKnowAbout’(Forbes,20February2024) <https://www.forbes.com/sites/bernardmarr/2023/05/10/15-amazing-real-world-applications-of-ai-everyoneshould-know-about/>accessed14July2024

2 ‘AI Investment Forecast to Approach $200 Billion Globally by 2025’ (Goldman Sachs, 1 August 2023) <https://www.goldmansachs.com/intelligence/pages/ai-investment-forecast-to-approach-200-billion-globallyby-2025.html>accessed14July2024

3 Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonisedrulesonartificialintelligenceandamendingRegulations(EC)No300/2008,(EU)No167/2013,(EU) No 168/2013, (EU) 2018/858,(EU) 2018/1139 and (EU)2019/2144 and Directives2014/90/EU,(EU) 2016/797 and(EU)2020/1828(ArtificialIntelligenceAct)[2024]OJL,2024/1689

clarity into this nascent area of intellectual property law with perspectives from the UK and Singapore.

Definition ofAI

It is important to begin this article with a robust definition of AI. Yet, as highlighted by the UK’s National AI Strategy, there is no “single definition” ofAI that will go to every scenario. This probably is in large part due to the entrance of “AI” into common vernacular and the common misunderstandings that consumers and businesses have in approaching this relatively new technology.

Nonetheless, there is a legal definition provided by the National Security and Investment Act 2021, which defines “artificial intelligence” as a sector of high-risk with respect to national security as:

“1. In this Schedule

“artificial intelligence” means technology enabling the programming or training of a device or software to

(i) perceive environments through the use of data;

(ii) interpret data using automated processing designed to approximate cognitive abilities; and

(iii) make recommendations, predictions or decisions; with a view to achieving a specific objective;”

(Schedule 3 Para 1 National Security and Investment Act 2021 (Notifiable Acquisition) (Specification of Qualifying Entities) Regulations 2021)

Consequently, future legislation may mirror this definition in an effort to harmonise regulation of artificial intelligence.

However, this definition runs the risk of being overly specific.Asimpler definition for artificial intelligence might be “Machines that perform tasks normally performed by human intelligence, especially when the machines learn from data how to do those tasks.” (UK’s NationalAI Strategy).

A similar approach is adopted in Singapore. Albeit there is no legal definition in Singapore statutes, the Infocomm Media Development Authority classified AI as the ‘use of intelligent machines to mimic human action and thought’.4

Moving forward with this definition ofAI, we can attempt a short scientific explanation of the AI training process. In general, AI is developed when an AI developer accrues large amounts of training data and uploads the data to the AI software. The AI software will “train” itself to accurately recognise patterns; more data and greater time given for training cause the AI software to make increasingly accurate predictions, including predictions that cannot be ordinarily perceived by human intelligence.

We will briefly examine the copyright issues in (1) developing a training dataset and (2) the training of an artificial intelligence.

These copyright rights issues are relevant in all artificial intelligence. However, this study is particularly concerned with generative artificial intelligence, as defined by UNESCO as “an artificial intelligence (AI) technology that automatically generates content in response to prompts written in natural-language conversational interfaces”. Art 3 of the aforementioned EUAI Act further defines it as a system that ‘generate[s] outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments’.5

This is because this type of AI (“genAI”) is capable, by user prompt and without developer input (i.e., it responds to the user by itself) of generating content; this content is capable of infringing the copyright of other content creators by virtue of copying or other restricted acts. This kind of infringement questions the paradigm of copyright infringement, where the act of infringementisnecessarilyunderstoodtohavebeencommittedbyaconsciousnaturalperson. However, an artificial intelligence is neither conscious or a natural person in itself; infringement liability is an issue of academic interest, including the apportionment of liability to genAI developers and/or genAI users,

4 ‘Artificial Intelligence: SG Digital’(Infocomm Media Development Authority) <https://www.imda.gov.sg/aboutimda/research-and-statistics/sgdigital/tech-pillars/artificialintelligence#:~:text=About%20Artificial%20Intelligence%20Singapore%20(AI,mimic%20human%20action%2 0and%20thought.> accessed 14 July 2024

5 Art3(1)

Primary and Secondary Infringements

Forourpurposes,wewill discusstwokindsofcopyrightinfringements,primaryandsecondary, in relation toAI.

For primary infringements, the claimant must show on the balance of probabilities, that the defendant carried out a restricted act, that there was a causal connection, and that the restricted act was carried out in relation to at least a substantial part of the work.

A restricted act under s 16 of the UK’s Copyright, Designs and Patents Act 1988 (“CDPA”) includes:

1. Copying the work (s 17)

2. Issuing copies of the work to the public (s 18)

3. Renting or lending the work to the public (s 18A)

4. Performing, showing, or playing the work in public (s 18A)

5. Communicating the work to the public (s 20)

6. Making an adaptation of the work or do any or the above in relation to an adaptation (s 21)

Furthermore, s 16(2) clarifies that authorisation of another person to commit a restricted act also amounts to copyright infringement.

In contrast, secondary infringements are acts by those that aid or abet the primary infringer of copyright i.e., those who facilitate copyright infringement. The essential difference is that liabilityforsecondaryinfringement furtherrequires aknowledge element (“kneworhadreason to believe”), whereas primary infringements are acts of strict liability.

Secondary infringements under the UK’s CDPAincludes:

1. Importing an infringing copy (s 22)

2. Possessing or dealing with infringing copy (s 23)

3. Providing means for making infringing copies (s 24)

4. Permitting use of premises for infringing performance (s 25)

5. Provision of apparatus for infringing performance (s 26)

The Singaporean equivalent under the Copyright Act 2021 (“SCA”) adopts a broadly similar approach.

The SCAstipulates that reproducing, publishing, or making adaptations of the work constitutes primary infringement. Individuals who trade or import articles while possessing the requisite knowledge that it is an infringing article will constitute secondary infringement.

Creation of Training Database

Generally, if the training data is the subject of copyright, copying of the data into a training database, such as from the scraping of copyrighted content from online websites, will amount to a primary infringement.

However, there exists a very limited text and data-mining exception (TDM) in s 29A CDPA which provides that where such data-mining is to “carry out a computational analysis of anythingrecordedin the workforthe solepurpose ofresearch for anon-commercial purpose” and “the copy is accompanied by a sufficient acknowledgement”. Only where such an exception has been met would the copying of data to build a training database not amount to a primary infringement.

Unsurprisingly, in Singapore, a similar exception exists. Indeed, per s 244(2) of SCA, a copy is permissible if it is ‘made for the purpose of computational data analysis’, which, as defined in s 243, is to ‘identify, extract and analyse information or data’. Likewise, this must be the only purpose, as made clear in s 244(2)(b): ‘does not use the copy for any other purpose’.

It is also important to note that the resultant databases themselves (i.e., the arrangement and structure of the data) may not just be protected under copyright as a literary work,6 but is definitely protectedby a sui generis database right bytheEU DatabaseDirective(EU Directive 96/9/EC). In the UK, the EU Directive was implemented by the Database Regulations.

Consequently, where anAI developer copies another database which they do not have a license for, they do not just commit a primary infringement with respect to the copyrighted data, but also infringe on the sui generis database right with respect to the arrangement of the data.

6 Bookmakers Afternoon Greyhound Services Ltd and Ors v Amalgamated Racing Ltd and Ors [1994] 5 WLUK

In contrast, there is no sui generis database right in Singapore. The Singapore Law Reform Committee in 2020 argued that there is ‘no real impetus’ to have such a right. This was confirmed in Global Yellow Pages Ltd v Promedia Directories Pte Ltd, that this decision not to implement such a right was a ‘conscious’one, leading to a stark divide from the UK position. Thus, in Singapore, such acts would only be a primary infringement.

It is interesting to note that at one point, the UK Government was considering expanding the TDM exception to include such extraction for “all purposes”7, with the result that there would be no infringement of copyright where the copyrighted material was legally available to theAI developer (e.g., if it was freely available online). Nonetheless, the Government ultimately abandoned that approach in 2023.8 Indeed, at the House of Lords Communications and Digital Committee,9 it was considered that the proposed changes were “misguided” as they took “insufficient account of the potential harm to the creative industries”.

Training of theAI

In the process of training, the AI may inevitably reproduce in computer memory the copyrighted work in order to derive vectors necessary for AI learning. In this respect, s 28A CDPAprovides an exception to infringement i.e., the making of temporary copies.

This exception was amended into the CDPA by the Copyright and Related Rights Regulations 2003 and has been judicially decided to catch copies stored in browser cache and produced onscreen.10 However, it is less clear whether it would apply to the making of such temporary copies as within theAI training process.

7 Intellectual Property Office, ‘Consultation outcome: Artificial Intelligence and Intellectual Property: copyright and patents’ (June 2022): https://www.gov.uk/government/consultations/artificial-intelligence-and-ip-copyrightand-patents/artificial-intelligence-and-intellectual-property-copyright-and-patents [accessed 3 December 2022]

8 (UK withdraws plans for broader text and Data Mining (TDM) copyright and database right exception | Herbert Smith Freehills | Global Law Firm) <https://www.herbertsmithfreehills.com/notes/ip/2023-03/uk-withdrawsplans-for-broader-text-and-data-mining-tdm-copyright-and-database-right-exception> accessed 14 July 2024

9 (House of Lords - Digital Exclusion - communications and Digital Committee) <https://publications.parliament.uk/pa/ld5803/ldselect/ldcomm/219/21906.htm> accessed 14 July 2024

10 Public Relations Consultants Association Limited (Appellant) v The Newspaper Licensing Agency Limited and others [2013] UKSC 18

Nonetheless, it seems likely that that the exception would apply to the copies made during AI training. Applying the requirements under s 28A CDPA, the copies are indeed (i) transient or incidental, (ii) are an integral and essential part of a technological process (that of training the AI) and (iii) has no independent economic significance. The only difficulty which emerges is over whether (iv) the sole purpose of the copying is to enable a transmission of the work in a network between third parties by an intermediary or a lawful use of the work. It is not immediately clear whetherAI training would fall under such a purpose and would likely be an issue to be canvassed before the courts.

The Issue of Territoriality

The above analysis has proceeded on the assumption that the creation of the training database occurs in the local jurisdiction (i.e., the creation of the training database and the area where the claim is commenced are both in UK/Singapore). However, if the creation of the database and training of theAI occurs entirely outside of the relevant jurisdiction, then no action can arise.

Indeed, in Getty Images (US) Inc v Stability AI Ltd11 , the defendant Stability AI Ltd sought an order dismissing a claim of copyright and database right infringement in training the defendant’s AI, Stable Diffusion, because there was no prima facie evidence that the training anddevelopmentofStableDiffusiontookplaceintheUnitedKingdom.Indeed,itwascommon ground between parties that copyright and database right was a territorial right which conferred protection on its holder only within the territory of the UK.

Nonetheless, thelearned JoannaSmith J refusedto giveanorderof reversesummary judgment. On one hand, the claimants admittedly did not make “any positive averment of fact [that the infringement occurred in the UK], but rather by inviting an inference [of such an infringement having occurred in the UK]”12 on the pure basis that the defendant’s development team was located in the UK, which was acknowledged by the judge to be “somewhat weak”.13 Indeed, evidence given by the defendants, including inter alia witness testimony that the none of the human resources in the UK had worked on Stable Diffusion and all computational resources used to train Stable Diffusion were located in the US, provided “strong support for a finding

11 [2023] EWHC 3090 (Ch)

12 Ibid at [52a]

13 Ibid at [61]

that, on the balance of probabilities, no development or training of Stable Diffusion has taken place in the United Kingdom.”14

However, on the lower standard of “more than fanciful prospect of success” regarding the relevant application, the evidence was not sufficiently convincing. In particular, the judge highlighted that the defendant’s evidence may have been conflicted or incomplete, which would require a fuller investigation with respect to the jurisdictional question.

Reflecting on this, this case reveals claims alleging copyright infringement in respect of creating a database and training the AI, the jurisdictional issue remains plainly relevant and it is difficult for an AI developer to resist at an early stage an application regarding copyright infringement on the basis of no jurisdictional nexus.

AI-generated content (Developer Liability regarding Primary Infringements)

Unlike a patent, copyright does not protect a copyright owner against independent creation, so it must be shown that the defendant’s work was derived from the claimant’s work: i.e., the causal connection.15

Given that the training database of AI systems is not generally publicly available due to its commercial value, a claimant would be unable to show proof of access i.e., that the defendant did actually access the claimant’s copyrighted content. Instead, the claimant would have to rely on similarities between works to persuade the court to infer copying.16 Once such an inference has been made, the defendant then has an evidential burden to discharge showing the work was independently created.

Of course, “committing a restricted act” as conventionally understood would be a conscious act e,g., the defendant consciously referring to the claimant’s work and actively copying it. However, in the case of anAI system, which cannot be said to have “consciousness”, it is less clear whether generation by anAI system can be properly understood as “referencing”.

14 Ibid at [59]

15 Sawkins v. Hyperion [2005] 1 WLR 3281, 3288, [30]

16 Designers Guild v. Russell Williams [1998] FSR 803

To be clear, “copying” can also be conducted “subconsciously”17; such an example might be a composer listening to bar music while composing and subconsciously using the same melody as the copyrighted work.

Nonetheless, it is difficult to conclude the lesser threshold of subconsciousness with respect to AI systems. The majority of artificial intelligence, including large language models, can be inherently complex and its decision-making process unexplainable; thus, how it generates its responses becomes a “black box”.18 Thus, even if the copyrighted material is part of an AI’s training dataset, it is unclear whether in the actual generation of content the AI has actually referred to the copyrighted material.

What this means is if the evidential burden has been shifted to theAI developer, so long as the copyrightedmaterial is within thetrainingdata,it is unlikely thatanAIdevelopercandischarge the evidential burden.

Indeed, this issue will be considered at full trial in the aforementioned Getty Images (US) Inc v Stability AI Ltd, where the applicant alleged copyright infringement by reason of the copying and communication to the public where Stable Diffusion was used to generate an image that reproduces the whole or a substantial part of Getty Images’ copyrighted material, contrary to ss 16(2) and 17 of the CDPA.19

AI-generated content (Developer Liability regarding Secondary Infringements)

In Getty Images (US) Inc v Stability AI Ltd, Getty Images argue that there was a prima facie secondary infringement per s 22, since ‘Stable Diffusion’ as a software is an ‘article’ constituting as an ‘infringing copy’which was imported into the UK. In so doing, StabilityAI ‘possesses’the ‘infringing copy’and breaches s 23.

As accepted by Joanna Smith J, this ‘stands or falls on one point of law’, which is the meaning of the word ‘article’in the CDPA. There is some guidance on the meaning of ‘infringing copy’ in s 27 of the statute. Crucially, per s 27(2), it is an ‘infringing copy’so long as it infringes the

17 Francis Day & Hunter v Bron [1963] 1 Ch 587

18 Hassija, V. et al. (2023) ‘Interpreting black-box models: A review on Explainable Artificial Intelligence’, Cognitive Computation, 16(1), pp. 45–74. doi:10.1007/s12559-023-10179-8

19 Getty Images v Stability AI [2023] EWHC 3090 (Ch) at [20]

copyright of the original work. Yet, nothing in this section pertains to whether an ‘article’has to be ‘tangible’or ‘intangible’- a fact accepted by Joanna Smith J at [87]. This pertains to the issue at hand since ‘Stable Diffusion’ as argued by Stability AI is an Open Source software which merely allows ‘users to generate images’ - an intangible software which cannot be ‘capable of being “imported” [or] “possessed”’(at [87]). The argument proposed is that Stable Diffusion is not ‘tangible’ like orthodox cases of actually importing/possessing infringing copies of the relevant artwork itself.

Necessarily, if it was decided that an ‘article’ can only be ‘tangible’, then Stable Diffusion would be seen only as ‘abstract information’and not property, which would then legally not be seen as an ‘infringing copy’. This position is supported in case law (in cases such as Your Response Limited v Datateam Business Media Limited), where information lacks the hallmarks of property.

In the judgment, Joanna Smith J decided that this issue should go to trial and rejected Stability AI’s contention that Getty Images’case is ‘bound to fail’on three grounds: First, the judge found the cases of Sony v Ball and Wheat v Google as unconvincing in terms of deciding whether ‘article’ relates only to ‘tangible’ things. Second, the issue is ‘novel’ (at [93]) and had not been ‘determined previously’. Third, there are possible policy reasons for accepting ‘article’ to encompass intangible articles (at [94]), due to the rapid development of technology - for e.g. importing Stable Diffusion through cloud-based storage.

ThiscasehighlightsthedifficultissuesoflawthatarisesfromincreasingdevelopmentofgenAI technology. The factual situation here is difficult owing to the complicated technology present in the Stable Diffusion software. As noted, such softwares do not itself contain infringing properties i.e., the finished software product does not, in silo, infringe on the defendant’s copyrighted works. Yet, while Stable Diffusion is merely a software, it was created by reproducing copyrighted works in breach of the CDPA - its very existence is a product of infringingcopies.Indeed,StabilityAIconcededthatsomecopyrightedimagesbyGettyImages were used in ‘training’theAI model. In terms of statutory interpretation then, it is possible that this falls within s 27(2), since the ‘making’ of which infringed on pre-existing copyrights. Although the distinction between tangibles and intangibles are established principles of copyright law, it is entirely possible that since s 27 is silent on this distinction, the judges might

not read such concepts into s 27. Indeed, on normative grounds, Hardy20 convincingly argues that this distinction is arbitrary. Wyman21 also argues that owing to the growing economic importance of intangible property and developing technology, the law should also extend protection to intangible property.This explains the shifting attitude adopted by the Court in this decision, which Goossens, Skrein and Kacprzak22 argue shows the ‘openness’of the Courts to ‘depart’ from such established principles. In our view, Getty Images’ case is legally and normatively sound.

Similar issues might possibly arise in the Singaporean regime. Since under s98 SCA, it would be an ‘infringing copy’if ‘made’outside Singapore (which is more likely the case), without the appropriatelicence.AlthoughSingaporealso recognisesthetangibleandintangibledistinction, a similar argument espoused above could apply.

AI-generated content (User Liability)

As mentioned, genAI generates its (potentially) copyright-infringing material in response to a user’s prompt. It therefore is relevant as to whether the user, by providing this prompt, has committed a primary or secondary infringement.

To be clear, this would be a more academic point as copyright holders would almost certainly prefer to litigate against the identifiable, likely insured and likely more solvent AI developer. Nonetheless, this may become a relevant point in the apportionment of liability with respect to consumer contracts between the AI developer and the AI user, where the former may seek to contractually limit or indemnify their own liability against the AI user. Of course, the

20Hardy, I. Trotter, "Not So Different: Tangible, Intangible, Digital, andAnalog Works and Their Comparison for Copyright Purposes" (2001). Faculty Publications. 40.

21 Wyman,KatrinaM.,'PropertyasIntangibleProperty',inPaulBMiller,andJohnOberdiek(eds),OxfordStudies in Private Law Theory: Volume I (Oxford, 2020; online edn, Oxford Academic, 18 Feb. 2021), https://doi.org/10.1093/oso/9780198851356.003.0004, accessed 14 July 2024.

22 Goossens S, Skrein M and Kacprzak O, ‘Getty v. StabilityAI Case Goes to Trial in the UK – What We Learned: Perspectives: Reed Smith LLP’(Getty v. Stability AI case goes to trial in the UK – what we learned | Perspectives) <https://www.reedsmith.com/en/perspectives/2024/02/getty-v-stability-ai-case-goes-to-trial-in-the-uk-what-welearned> accessed 28August 2024

effectiveness of such terms limiting business liability would be subject to the test of reasonableness in the Consumer RightsAct.

Primary Infringement by User

A distinction must be drawn between text-to-image features and image-to-image features. For the former, an image is generated by virtue of the user inputting a textual prompt to generate an image. In the latter, the user uploads an image which infringes on copyright to generate the image.

As observed above, causal link is crucial in finding primary infringement. Indeed, it was observed in Kleeneze Ltd v DRG Ltd23 that one of the main defences to copyright infringements is independent creation distinct from the original material. Thus, it is plausible that the user of genAI commits an act of primary copyright infringement when they enter a prompt into the genAI interface and so cause the genAI to create an infringing copy.

However, for text-to-image generation, the factual nexus might not be sufficient to establish the necessary causal link. When a user inputs a textual prompt: (i) there is no direct evidence that they used the copyrighted work when producing their own, since the image is generated by Stable Diffusion; (ii) there is also no evidence that the user had the access and opportunity to copy the work, since the copyrighted works are parsed through Stable Diffusion. Indeed, Karapapa and McDonagh24 observe that the courts must ‘assume’ that the user knows of the copyrighted work. This would be difficult to meet factually since the typical user would have no knowledge of any work used to train Stable Diffusion. In such a case then, the better view would be that there is no user liability and liability is rightly impinged on the developer.

A more compelling case may be had for image-to-image generation. In Getty Images, the applicant sought and was granted permission to amend their application to introduce a new case of copyright infringement in respect of its image-to-image feature, which enables Stable Diffusion to generate a synthetic image output in response to an image uploaded by the user (either with or without a text prompt). Essentially, the user would be able to determine how closely the synthetic image output from the genAI would match the image prompt by the use

23 [1984] FSR 399

24 Stavroula Karapapa and Luke McDonagh, Intellectual Property Law (1st edn, OUP 2019)

of an "image strength" slider, with the maximum image strength and/or values approaching the maximum image strength providing images which comprise the whole, or a substantial part, of the image prompt. Thus, when the image prompt is a copyrighted work of the applicant, and the “image strength” slider is set at high or maximum, the copy would be infringing.

In response to the amended application, StabilityAI Ltd’s key argument was that when a copy of Stable Diffusion is downloaded by a user from GitHub with a view to then entering the image prompt, it is in fact the user who brings about the copying (i.e. by voluntarily entering into Stable Diffusion a copyrighted work of Getty Images.)As Henderson et al.25 observe, this would be analogous to a ‘photo editing software’, since the software merely ‘transforms’ the copyrighted material by working directly on it. Stable Diffusion is thus seen as a tool for the user. However, it is submitted that the better view is of concurrent liability. Although there is clear direct evidence that the user used copyrighted work when producing their own, the genAI tools still servedas the means to modifysuchimages.As argued above,ifprimaryinfringement by the developer of such tools is found following Getty Images, the requisite infringement is necessarily shared between the user and the genAI tool, since on a factual test, there is a causal link between both parties and the derived work. Intuitively, the liability to be ‘shared’between the two parties is variable based on the modification levels by such tools. To contrast two examples, the liability by genAI tools is logically negligible if all that is done is to apply a mere filter over the copyrighted image, vis-a-vis a complete overhaul of the image by the tool with only a small snippet of the original work being retained in the completed product, where the user liability pales in comparison with the tool.

On our view, Stability AI’s argument that the image produced is ‘unequivocally an act of the user alone’is unlikely to be accepted. Even if it is a mere ‘partial reproduction’, the other parts of the image are produced by Stable Diffusion through a primary infringement.

Should genAI developers and users be worried?

This case is a logical development following the recent excitement over genAI technology. However, it is our view that this case is a mere rebalancing of rights between original work creators and genAI developers.

25 HendersonPand others, ‘Foundation Models andFair Use’[2023], 1-79, Journal of Machine Learning Research

StabilityAI has suggested that they intend on relying on the ‘pastiche’fair dealing26 exception to challenge Getty Images’claim- which Dyer27 defined as ‘a kind of aesthetic imitation’.Their argument being that (i) the copyrighted works were used in a fair dealing situation to create the ‘pastiche’ as imitations of the original work; (ii) it does not encroach significantly on the original creator’s rights since the finalised product is ‘not a substitute’of the original creation; (iii) and thus does not ‘interfere in the market’for the original work.

The jurisprudence on this exception is scant. However, in Shazam v Only Fools The Dining Experience [2022] EWHC 1379, it was held by Kimbell QC that pastiches encompass any imitations of a style of work as long as the product is noticeably different from the original work. This would likely apply to genAI products since (i) the original work is used to ‘train’ models in a style, which then use the noise in generating the product which is often very different from the original work in question. Hudson28 thus observes how this broad exception could extend to multiple forms of ‘mash-ups’. Taking the technology of Stable Diffusion at face-value where the final product is a combination of random noise images using the trained database, it is plausible that Stability AI’s case might succeed on this ground. Although complicated legal questions of what constitutes a ‘style’ and factual questions of the exact machinations of Stable Diffusion would have to be answered.

Under the US’s regime, the ‘fair use’ exception could be triggered if the final product is ‘transformative’. Lemley and Casey29 argue that mere training of models could constitute as fair use - a view echoed by Sobel30 - only if the final product is not ‘expressive’. Lemley and

26 s 30A(1)

27 Dyer R, Pastiche (Routledge 2007)

28 Hudson E, ‘The Pastiche Exception in Copyright Law: A Case of Mashed-up Drafting?’ [2017] Intellectual Property Quarterly 346 <https://uk.practicallaw.thomsonreuters.com/Document/I2A9AF2B0BAEE11E7998AD6C4B840BA40/View/Fu llText.html?originationContext=document&transitionType=DocumentItem&contextData=%28sc.Default%29& comp=wluk> accessed 28August 2024 Hudson, E. (2017)..

29Lemley, Mark A. and Casey, Bryan, Fair Learning (January 30, 2020). Available at SSRN: https://ssrn.com/abstract=3528447 or http://dx.doi.org/10.2139/ssrn.3528447

30 Sobel, B. L. W. (2017). Artificial Intelligence’s Fair Use Crisis. The Columbia Journal of Law & The Arts, 41(1), 45–97. https://doi.org/10.7916/jla.v41i1.2036

Casey suggests that such exceptions may not extend to genAI since it is similar to the original work and risks economically interfering with the market the original work operates in. This clearly applies to image genAI since the image generated could be substitutive within the artistic industry31. Indeed, StabilityAI is also facing lawsuits in the US32

It is submitted that this is the better position. As observed, s 30A risks being too broad, as cautioned by Hudson, which risks permeating into multiple industries and disregarding its economic impact. On a normative view, s 30A must have upper limits to prevent abuse and ensure effective protection of original creators. Thus, the law must necessarily rebalance the rights of such creators and genAI developers. In doing so, restricting the fair dealing exception from genAI is normatively sound.

This would not prejudice genAI developers. Rather, it merely requires said developers to actively seek out and procure licences of the original work used to train the models and ensure that the licence covers the final product produced.This means that developers can still innovate technologically while artists remain protected legally. This would inevitably facilitate a new industry and an economic model that would potentially benefit both developers and creators. It would thus be difficult to see how a positive ruling in favour of Getty Images would be disastrous for genAI development.

31 ibid.

32 Andersen v. Stability AI Ltd. (No. 23-cv-00201-WHO) (N.D. Cal. Oct. 30, 2023)

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