Admissibility of Electronic Evidence

Transcription

An Official Publication of The Law Society of Singapore | July 2012
Admissibility of
Electronic Evidence
R
R
www.lawgazette.com.sg
President’s
Message
Lawyers and the Rule of Law
Some people have said that lawyers are descended from
the Sophists of ancient Greece. That is of course being
provocative, as there is no clear evidence of that ancestry
and in today’s context, Sophists are not very nice people.
Part of the bad reputation of the Sophists comes about
because of the critical things written about them by Socrates
and Plato. It is all right to be described as “sophisticated”,
but you would not want to be described as “sophistic” in
your arguments.
Anyway, there were no lawyers as such in the ancient world.
Although codes of law existed from as early as the days of
Hammurabi, it is difficult to find any reference to a class of
professionals called “lawyers”. Instead, we know that the
Greeks forbade the use of paid representatives in a Court of
law. If a litigant could not appear on his own, he was allowed
to ask a “friend” to represent him, and this friend received
no fees. Perhaps this was the origin of the “amicus curaie”.
The Romans adopted this practice and fees were still not
allowed. But it was obvious to all that the ban was being
broken all the time, and so Emperor Claudius finally allowed
a fee of 10,000 sesterces to be paid. I do not know how much
this translates into in modern currency, but by all accounts
it was a pittance. And of course everyone broke the rule
again. But Claudius also created a professional class of
“advocates”. Up to that time, only the rich could afford to
give their services free, so the creation of this “paid” class
meant that even the poor could now be represented. But the irony regarding lawyers and the Rule of Law was that
on many occasions, no lawyer was required in ensuring that
the Rule of Law was adhered to. After the death of Augustus
Caesar, there was a whole line of rather despicable people
coming after him to become Emperor. Augustus is generally
suspected to have been poisoned by his wife Livia who
had become rather impatient in getting her son (not by
Augustus) to be Emperor. (She had poisoned all possible
rivals in the meantime, including Augustus’ own sons and
grandchildren). Her son Tiberius was the first in a line of
debauched Emperors. After him came Caligula, famed for
organising orgies in his palace, and for marrying his sister.
After that came Claudius who was not bad, but who had a
wife called Messalina. When Claudius was busy in Britain
bringing that country into the Roman fold, she organised a
contest between herself and the city’s best known prostitute
to see who had the better staying power and stamina.
History has solemnly recorded that Messalina won the
contest. After Claudius came Nero, who set fire to Rome.
What is fascinating about these emperors is that despite
all their excesses, they were concerned about the Rule of
Law. When Tiberius succeeded Augustus, Livia was quick
to ensure that the Roman Senate blessed the accession.
If not, Tiberius would have been an illegal Emperor. The
same went for Caligula. Not only did he brandish the will of
Tiberius, he got the Senate to affirm him as heir to Tiberius.
And in one of the most ludicrous exercises of his powers,
when he made his horse Pro-Counsel of Rome, he got the
Senate to also approve that! So mad or not, each Emperor
was careful to ensure that he had the Rule of Law on his
side. That was how strong the concept of Rule of Law had
taken hold in the Roman psyche by this time.
After Caligula was assassinated, the Praetorian Guards (the
Emperor’s personal bodyguard) decided to make Claudius
Emperor. Claudius was a very reluctant Emperor (he was
Caligula’s uncle and he probably survived by showing no
interest in being emperor). Even the Praetorian Guards
knew that the Senate’s approval was required if their
candidate was to be Emperor. So the Senate formally gave
its approval. Of course on that day, there were probably
more Praetorian Guards in the Senate than Senators.
What this series of events illustrates is that legitimacy of
office was paramount to the Emperors. And the way to
receive legitimacy was to obtain the approval of the Senate.
It did not matter that the substance was farcical (as in the
case of Caligula’s horse), or that the Senators did not give
their free vote. What mattered was that the Senate did give
its consent.
And in all these proceedings, the Emperor did not require
any lawyers. The Senate knew exactly what was required
of them. In most of these episodes, two groups of people
played very important roles. First, the Emperor’s secretaries
and personal advisors. By and large these people were
Greeks, partly because of their great learning, and partly
because they were not beholden to any Roman faction.
They played a discreet but extremely important role behind
the scenes. But when the heavy artillery was needed, the
Emperor would call out his Praetorian Guards. Most of them
were Germans, and most knew that if their Emperor were
deposed or killed, they would need a new patron, or they
would be killed themselves. Hence the Praetorian Guards
moved quickly to ensure that their new Emperor Claudius
would be legitimised.
From the above narration, you would by now have an idea
that the lawyer was largely superfluous when the Emperor
Continued on page 4
Singapore Law Gazette July 2012
Contents
President’s
Message
News
Features
Columns
Lawyers and the Rule of Law
01
Introducing the Singapore Law Gazette Awards04
Council and Committee Bulletin
06
Diary07
Council's Practice Direction 2 of 2012 07
A Commentary on the Amendments to the Electronic Evidence Provisions in the Singapore Evidence Act
Takaful (Islamic Insurance) Concepts and Perspectives
Reflections: Recapturing the Rule of Law in the Practice of Law
11
22
28
Tea with the Law Gazette — Conversation with Robert Todd and Gordon Hughes of Ashurst: Insights into the Impact of Social Media on
Defamation Law and Legal Practice
The Young Lawyer — Amicus Agony
The Young Lawyer — Sinking to New Depths
Viewpoint — Women’s Rights: The Road to Women’s Liberation
31
Legal Updates
41
Lifestyle
Alter Ego — Learning the Practice of Law
42
Notices
Disciplinary Committee Reports
Professional Moves Information on Wills
44
48
50
In Practice
Appointments
51
The Singapore Law Gazette
The Law Society’s Mission Statement
To serve our members and the
communitty by sustaining a
competent and independent Bar
which upholds the rule of law and
ensures access to justice.
An Official Publication of The Law Society of Singapore
The Law Society of Singapore
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Tel: (65) 6538 2500
Fax: (65) 6533 5700
Website: http://www.lawsociety.org.sg
E-mail: [email protected]
The Council of The Law Society of Singapore
President Mr Wong Meng Meng, SC
Vice Presidents Mr Lok Vi Ming, SC
Mr Leo Cheng Suan
Treasurer Mr Kelvin Wong
Mr Rajan Menon, Mr Young Chee Foong, Mr Lim Seng Siew,
Ms Kuah Boon Theng, Ms Eng Yaag Ngee Rachel, Mr Thio
Shen Yi, SC, Ms Lisa Sam Hui Min, Mr Michael S Chia,
35
36
38
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President’s
Message
Continued from page 1
resorted to the Rule of Law. Nonetheless, in personal affairs
and commerce, the lawyers began to exert their influence.
Lawyers would be retained to further the causes of clients
in commercial disputes. Matrimonial disputes did not quite
need a lawyer. If you were related to the Emperor (or his
scheming wife), you certainly did not need a lawyer. In
any event, a man could divorce his wife without any right
on her part to challenge by simply returning one-eighth of
the dowry she had paid him! Some honourable Romans
sometimes would return the whole or bulk of the dowry, but
that was rare. After all, the law did not require more.
The Rule of Law extended as the Empire extended its
reach. By the time of the so-called “Holy Roman Empire” in
late 900CE [it was neither Holy nor Roman (its first elected
Emperor was a German called Otto!)], Roman concepts of
law had gone to the British Isles, Northern Europe, North
Africa and the Middle East. But the need for some form of
legitimacy went beyond the Rule of Law. The Holy Roman
Empire sought legitimacy as the successor of the old
Roman Empire. But the original Roman Empire had already
broken up when the Eastern Roman Empire officially
took root in 285CE in Byzantium or Constantinople (now
Istanbul). The ascent of Roman Law east of the Bosphorus
was established.
But the ravages of wars and the advances of the barbarians
meant that the Rule of Law which the Romans so loved
and developed slowly died. The Byzantine Empire resorted
to less Roman ideas, although today we have the Laws
of Justinian to tell us that (theoretically at least) much of
Roman Law was preserved. By about 1140, one observer
felt that there was no longer a class of lawyers.
But as Europe prospered and city-kingdoms developed,
the need for lawyers to take care of commercial matters
became obvious. In the 13th century, various European
cities passed legislation for the training of lawyers, and the
imposition of ethical standards. Lawyers were required to
swear an oath of admission. In 1275, the English Courts
prescribed punishment for lawyers guilty of deceit. As
Europe extended its sphere of influence, so the Rule of Law
was extended beyond Europe. Of course to the natives that
were the recipients of such Rule, quite often it seemed like
Caligula all over again. Nonetheless, there is no doubt that
the Rule of Law brought with it a new culture and way of life.
The rest is history, as they say. The British Empire spread the
Rule of Law to India, North America and parts of Asia. And
by this time, the lawyer had replaced the Greek secretary
and the German Praetorian. And of course the lawyer would
get well paid for all his troubles.
► Wong Meng Meng, Senior Counsel
President
Introducing the Singapore Law Gazette Awards
The Law Society will be awarding two awards for best
feature article in the Singapore Law Gazette in 2013. Two
awards, namely, “Best Feature Article” and “Best Feature
Article by a Young Lawyer”* will be awarded for the best two
articles published in the “Features” section of the Singapore
Law Gazette during the period July 2012 to June 2013.
Articles published in the “Features” section are required
to have substantive law content. The judging process will
commence in June 2013 and the winners will be announced
in the 4th quarter of 2013.
The Feature articles will be judged based on the following:
1. Depth of analysis, display of thought leadership and
whether cited in a judgment (30% weightage);
2. Depth of research (30% weightage);
on an area of law of interest to you and
the satisfaction of seeing your name in
print, you might stand a chance to win the
coveted award as well. If you are interested
in contributing an article to the Singapore
Law Gazette, please contact Publications
Director, Sharmaine Lau, at publications@
lawsoc.org.sg
* “Best Feature Article” by a Singaporean
or PR above 35 years of age at the time of
submission of the article, and who is a practising
member, former member, member of the
Judiciary/AGC/government body, law academic,
or in-house counsel. Articles written jointly by two
or more persons qualify as well.
“Best Feature Article by a Young Lawyer” who is
a Singaporean or PR and is 35 years of age or
below at the time of submission of the article, and
who is a practising member or former member.
3. Writing style (20% weightage); and
4. Votes by members (20% weightage).
We welcome article contributions to the Singapore Law
Gazette. Apart from the opportunity to share your views
News
Council and Committee Bulletin
Council and Committee Update
Budget of the Law Society for the Financial Period 1 April 2012 to 31 March 2013
Council approved the budget for the financial year ending 31 March 2013.
Dialogue with the Minister for Law for Young Practitioners
The Law Society is assisting to facilitate a dialogue session between the Minister for Law and young practitioners of 10
years’ standing and below to discuss issues relating to the law. The dialogue is scheduled to be held on 16 July 2012.
Conveyancing Practice Committee Circular 1 of 2012 – Handover of Access Card Keys on Completion
The Law Society’s Conveyancing Practice Committee issued a circular concerning the handover of access card keys
on completion for new developments which utilise card key access systems for direct access to the individual units of
the development.
Circular 1 of 2012 is available at the Law Society’s website (www.lawsociety.org.sg) > Resource Library > Practice
Matters > Conveyancing.
Compilation of Conveyancing Best Practices
The Conveyancing Practice Committee is planning to issue a compilation of best practices for conveyancing practice
for members’ benefit and to that end, invited conveyancing practitioners to contribute suggestions on best practices for
conveyancing practice to be considered for inclusion in the compilation.
Pro Bono Research Initiative
The Pro Bono Services Office is launching a Pro Bono Research Initiative (“PBRI”) to provide research support to
pro bono practitioners undertaking complex and/or important criminal and civil cases (including family law) before the
Courts. The cases that will be considered will include assignments from the Criminal Legal Aid Scheme (“CLAS”), Legal
Assistance Scheme for Capital Offences (“LASCO”), Legal Aid Bureau (“LAB”), or the Law Society’s Ad Hoc Pro Bono
Referral/Assessment Scheme.
Singapore Law Gazette Awards
The Law Society will be awarding two awards for best feature article in the Singapore Law Gazette in 2013. Two
awards, namely, “Best Feature Article” and “Best Feature Article by a Young Lawyer” will be awarded for the best two
articles published in the “Features” section of the Singapore Law Gazette during the period July 2012 to June 2013.
The winners will be announced in the 4th quarter of 2013.
For more information, please refer to page 4.
News
Council's Practice Direction 2 of 2012
Diary
June 2012
June 2012
June 2012
Seminar on Developing
Commercial Acumen
Primers on Professional Ethics
for Practice Trainees
Primers on Legal Profession
(Solicitors’ Accounts) Rules for
Practice Trainees Organised by the Continuing
Professional Development
Committee
11.30am-1.30pm
URA Centre, Function Hall
Level 5
Organised by the Continuing
Committee
9.15am-12.30pm
NTUC Business Centre
Organised by the Continuing
Committee
9.15pm-12.30pm
NTUC Business Centre
Council’s Practice Direction 2 of 2012: Ethical
Propriety of Fee Arrangements with Clients
Where Payment of Solicitor and Client Costs
and Disbursements is Contingent on Recovery
of Party and Party Costs & Disbursements
Introduction
1. Members are reminded that in any contentious matter,
it is improper for solicitors to have an interest in the
subject matter of the litigation or to purchase an interest
of a client. Members have a duty to comply with the
relevant legislative provisions concerning the propriety
of fee arrangements, in particular:
a. Section 107 Legal Profession Act (the “LPA”)
Prohibition of certain stipulations
107.—(1) No solicitor shall —
(a) purchase or agree to purchase the interest or any
part of the interest of his client or of any party in
any suit, action or other contentious proceeding
brought or to be brought or maintained; or
(b) enter into any agreement by which he is retained
or employed to prosecute any suit or action or
other contentious proceeding which stipulates
for or contemplates payment only in the event of
success in that suit, action or proceeding.
(2) Nothing in this Act shall be construed to give
validity to any purchase or agreement prohibited
by subsection (1) or to any disposition, contract,
settlement, conveyance, delivery, dealing or
transfer which is void or invalid against —
(a) the Official Assignee under the law relating to
bankruptcy;
(b) a liquidator or receiver under the law relating to
the winding up of companies or limited liability
partnerships; or
(c) a creditor in any composition.
(3) A solicitor shall, notwithstanding any provision
of this Act, be subject to the law of maintenance
and champerty like any other person.
News
Council's Practice Direction 2 of 2012
(4) This section shall apply, with the necessary
modifications, to a law corporation or a limited
liability law partnership.
b. Rule 37 Legal Profession (Professional Conduct)
Rules (“PCR”)
Contingency fees prohibited
37. An advocate and solicitor shall not enter into
any negotiations with a client —
(a) for an interest in the subject matter of litigation;
or
(b) except to the extent permitted by any scale of
costs which may be applicable, for remuneration
proportionate to the amount which may be
recovered by the client in the proceedings.
2. On 15 May 2012, the Council issued Practice Direction
2 of 2012 (“Council’s PD 2 of 2012”) which provides
that in any contentious matter, a fee arrangement that
provides for payment of solicitor-and-client costs that
is contingent on the amount of party-and-party costs
recovered by a client would render a solicitor in breach
of s 107 LPA and r 37 PCR and liable for professional
misconduct under s 83(2) LPA. The solicitor would also
be subject to the law of maintenance and champerty
under s 107(3) LPA.
3. Consequently, a fee arrangement that “solicitor and
client costs & disbursements would be limited to
whatever party & party costs & disbursements are
recovered from the other party” and “in the event that
no costs are recovered from the other party, solicitor &
client costs will be waived & only disbursements billed”
would be improper.
in the event that no costs are recovered from the
other party, solicitor & client costs will be waived &
only disbursements billed.
3. Council has taken the position that such a fee
arrangement would be improper for the following
reasons:
a. Any fee arrangement that provides for payment of
solicitor-and-client costs that is contingent on the
amount of party-and-party costs recovered by a
client would render a solicitor in breach of s 107
of the Legal Profession Act (“LPA”) and r 37 Legal
Profession (Professional Conduct) Rules (“PCR”)
because the solicitor would have an interest in the
subject matter of the litigation or be purchasing an
interest in the client; and
b. The Council has deemed a fee arrangement similar
to the guideline referred to in para 2 herein as
improper under Council’s Practice Directions 3 of
2004 and 4 of 2004 (both dated 6 December 2004)
(see: Appendix) in the context of a solicitor acting
for a client in obtaining a judgment in default of
appearance or defence.
4. Council continues to be of the view that in any
contentious matter, it is improper for solicitors to have
an interest in the subject matter of the litigation or to
purchase an interest of a client. Therefore, such a fee
arrangement would result in any solicitor acting for the
client being in breach of s 107 LPA and r 37 PCR and
liable for professional misconduct under s 83(2) LPA.
Further, s 107(3) LPA provides that a solicitor, like any
other person, shall be subject to the law of maintenance
and champerty.
Date: 15 May 2012
4. The full text of the Council’s PD 2 of 2012 is set out
below.
The Council of the Law Society of Singapore
Full Text of Council’s PD 2 of 2012
Appendix
1. This Practice Direction takes effect on 15 May 2012.
Council’s Practice Direction 3 of 2004 dated 6 December
2004
2. It has come to the attention of the Council that a client of
a member has set the following guideline on the billing
of solicitor and client costs:
and
solicitor and client costs & disbursements would
be limited to whatever party & party costs &
disbursements are recovered from the other party
Council’s Practice Direction 4 of 2004 dated 6 December
2004
The Practice Directions referred in the Appendix above may
be accessed via member login at the Law Society’s website
www.lawsociety.org.sg > Resource Library > Council’s
Practice Directions, Rulings and Guidance Notes > Practice
Directions.
T
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Launching Soon.
An initiative by prevview.com
This inaugural Conference aims to promote awareness of Alternative Dispute Resolution (“ADR”) processes, and provides
a forum for both local and international ADR practitioners to share their practices. It will bring together members of the
judiciary, experienced practitioners, renowned academics and key policy-makers from Singapore and beyond to reflect on
existing policies and shape policies for the future. In recent years, ADR has been used widely in Singapore and globally to
resolve personal and business conflicts. New ADR initiatives have also emerged, such as Collaborative Law, which enables
parties to co-operate to achieve a consensual settlement which best meets the specific needs of all affected parties, by
working with their lawyers and other professionals without resorting to litigation.
The Conference will feature a Public Forum on “Amicable ADR and You” with presentations by distinguished speakers
including Chief District Judge Tan Siong Thye, Associate Professor Ho Peng Kee, and Member of Parliament Ellen Lee.
An ADR Awareness Exhibition will also be held in conjunction with the Public Forum showcasing the various ADR options
available.
Some of the topics which will be discussed at the Conference include:
• The Future of ADR in 2020
• Comparative ADR in the Asia-Pacific Region
• Collaborative Law – Resolving Disputes without Trial
• Mediation Advocacy: Getting the Best Results for Your Clients Without Going to Trial
• ADR and the Criminal Justice System
• Through the Mirror of Experience: Advanced Mediation Tools and Techniques
• Collaborative Law Workshop
• Lawyers as Negotiators – The Good and Bad News
• Developing the Arbitration Scene: Access to Justice
• Mediation: Evaluative or Facilitative or Both
• The Court’s Role in Promoting ADR: Trends and Developments Around the World
Conference speakers include:
•
•
•
•
•
•
•
•
•
•
•
•
•
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The Honourable Justice Belinda Ang, Chairperson, Singapore Mediation Centre
The Honourable Justice Judith Prakash, Judge, Supreme Court of Singapore
Wong Meng Meng SC, President, Law Society of Singapore
Vinodh Coomaraswamy SC, Partner, Shook Lin & Bok LLP
George Lim SC, Partner, Wee Tay & Lim
Senior District Judge Leslie Chew, Subordinate Courts
Lok Vi Ming SC, Partner (Litigation & Arbitration), Rodyk & Davidson LLP
Michael Leathes, Honorary Chair, International Mediation Institute
David Hodson, Partner at The International Family Law Group LLP
Catherine Gale, Law Council President, Australia
Dr Colin Ong, President of the Arbitration Association, Brunei Darussalam
Judge Montri Sillapamahabundit, Thai Mediation Centre
Gunavathi Subramaniam, Malaysian Mediation Centre
Campbell Bridges SC, Chairman, Maurice Byers Chambers, Australia
Visit our conference website for more details: http://www.lawsociety.org.sg/conference/ADR/
For queries, please contact the Conference Secretariat at [email protected]
or 6530 0230 / 239.
For Singapore Advocates and Solicitors:
This event is an SILE-Accredited CPD event for which eligible registrants may accumulate 12 CPD point (subject to confirmation).
Feature
This article examines the benefits of the amendments introduced by the Evidence
(Amendment) Bill 2012 but highlights as well the potential risks associated with
admission of electronic evidence. Comparison is made with the Canadian approach
to admission of electronic evidence to suggest a possible way forward.
A Commentary on the Amendments to the
Electronic Evidence Provisions in the Singapore
Evidence Act
Introduction
The creation and storage of documents have, over the
decades, been dramatically altered with the advent of the
digital revolution. In one study, it was reported that over 90
per cent of the documents produced in many organisations
today originate in digital format, of which 70 per cent are
never printed.1 In addition, a vast new array of computer
evidence,2 which would have been unheard of years ago,
has surfaced in courtrooms in recent years.
Such evidence differs from documentary evidence in several
ways. First, the contents of a physical document, including
any handwritten notations, will be immediately visible on
its face. In contrast, an electronic document will contain
information generated by, or stored in the computer, which
will be readable, but it will also contain other information
– metadata – which is not immediately viewable.3 Second,
the computer material can be modified in the process of
collecting it as evidence. Common examples include
instances where the file or application is opened, or copied
from the computer system into an external hard drive.
These acts in fact create changes although they are not
immediately visible.4 Further, it is easy to modify computer
data without leaving any obvious trace of such alteration.5
Given the unique nature of computer evidence, its
admissibility raises practical considerations such as the
appropriate threshold for admitting it as evidence; the burden
of proof on the proponent or opponent of the evidence; and
the procedural requirements and/or safeguards that need
to be put in place to ensure that the electronic evidence
tendered before the Court is properly examined.
These considerations are particularly important because
technology today “has become the habitat of modern
humanity”.6 Cognisant of this fact, numerous jurisdictions
around the world, including Singapore, have taken steps
to address the admissibility of computer output, with many
making changes to their respective legislations to facilitate
the admission of computer output.
This article will discuss the recently proposed amendments
to the provisions relating to the admissibility of computer
output in the Singapore Evidence Act and analyse its
implications vis-à-vis the current evidential rules.
Amendment to Computer Output Provisions in the
Singapore Evidence Act
Admissibility of Computer Output Pre-amendment
Prior to the amendments introduced by the Evidence
(Amendment) Bill 2012,7 ss 35 and 36 of the Evidence
Act governed the admissibility of what was then known
as “computer output” evidence. Sections 35 and 36 of
the Evidence Act were intended to apply to “traditional
computer print-outs as well as multi-media and graphical
outputs”.8 The provisions would also “cover outputs from a
stand-alone or portable computer and those from local area
or wide area networks. They also apply to both civil and
criminal proceedings”.9
Under s 35(1) of the Evidence Act, computer output is
admissible if it is relevant and if it falls under any of the three
modes of admissibility, namely:
1. Where parties to the proceedings expressly agree that
neither the authenticity of the computer output nor the
accuracy of its contents are disputed;
2. Where the output is produced in an approved process;10
or
Feature
3. Where the party tendering the output shows that the
output is accurate and reliable, having been produced
by a properly operating computer which was properly
used.
similarly become increasingly digitized. It gradually became
apparent that Singapore’s evidentiary provisions were fast
falling behind the pace at which record-making and recordstoring systems were developing.
Section 36 of the Evidence Act consists of supplementary
provisions to s 35 and relates, inter alia, to the calling of
further evidence where the Court is not satisfied as to the
accuracy of the computer output.11
The above were recognised by the Singapore Parliament
at the Second Reading of the Evidence (Amendment) Bill,
where the Minister for Law Mr K. Shanmugam said that the
processes for determining the admissibility of computer
output evidence was a “somewhat cumbersome process
not consonant with modern realities”, and that “computer
output evidence should not be treated differently from other
evidence”.18
The s 35 admissibility provisions are not easily applicable on
a practical level. For example, where the computer output
contains information which is adverse to the opposing
party’s interests, that party would inevitably refuse to agree
that the computer output is authentic or that its contents are
accurate.
The second admissibility criterion also poses difficulties for
parties. In order for the process to be approved, the party
must take steps to have the process audited and certified by
an agency that is appointed by the Minister in accordance
with the regulations.12 The audit will need to be carried out
by an independent body whose audit will be based on a
set of compliance criteria established by the authority. Not
only is this process lengthy and tedious, it is also costly
to appoint an auditor to evaluate the process. This is very
prohibitive for parties who do not have the resources or time
to have the process audited and certified.
The third admissibility criterion requires the party tendering
such output to “show through an affidavit and certificate from
the Systems Operator or Information Systems Manager
that there is no reason to doubt the truth or reliability of
the output, and that at all material times, the system was
operating properly or, if not, that the accuracy of the output
was not adversely affected”.13 It would appear that over the
years, Courts have recognised the practical difficulties of
getting a specialist or expert in the system to testify, and
have relaxed the criterion by requiring only persons who
are familiar with the operations of the system to be the
witness.14 Despite this, in a report by the Law Commission of
the UK discussing, inter alia, the admissibility requirements
of computer evidence, the Commissioners highlighted the
practical problems of assessing the reliability of computers
and their output, noting that it was becoming “increasingly
impractical to examine (and therefore certify) all the
intricacies of computer operation”.15
Sections 35 and 36 EA were introduced in 1996, at a time
when “computer technology was then in its infancy”.16 As
such, a “cautious approach”17 had to be taken. However,
since then, the variety and complexity of digital information
systems have increased, and record-keeping systems have
Cognisant of the need to update the provisions in the
Evidence Act to meet the changing demands of technological
advances, the Singapore Parliament passed the Evidence
(Amendment) Bill 2012 on 14 February 2012, which would
introduce, amongst other amendments, major changes
to the provisions governing the admissibility of computer
output evidence.
Admissibility of Computer Output Post-amendment
The Evidence (Amendment) Bill 2012 sought to repeal ss
35 and 36 of the Evidence Act and introduce three new
presumptions to the Evidence Act.
The three new presumptions relating to electronic records
will be found in s 116A of the amended Evidence Act, and
are as follows:
Presumption relating to accuracy and reliability
1. Where the device or process is of a kind that ordinarily
produces or communicates an electronic record when
properly used, then the Court will presume that in
producing or communicating the record, the device or
process had produced or accurately communicated that
record;
Presumptions relating to authenticity
2. Where the electronic record was created in the usual
and ordinary Court of business by a person who was
not party to the proceedings, and the proponent of the
record did not control the making of the record, the
record will be presumed to be authentic; or
3. Where the electronic record was created by a party who
is adverse in interest to the proponent of the record, and
the record is being used against the adverse party, the
record will be presumed to be authentic.
The first two presumptions were based on the Canadian
Uniform Electronic Evidence Act 1998 (“UEEA”) and the
Income Tax Act &
Economic Expansion
Incentives Act
ISBN 978-981-236-919-2
LexisNexis Annotated Statutes
of Singapore:
By Tang Siau Yan
SG$
168
*
*excludes GST
This work is a section by section commentary of the Income
Tax Act and the Economic Expansion Incentives (Relief from
Income Tax) Act. It pulls together updated and convenient
reference information from various sources inclusive of
subsidiary legislation, court judgments, board of review
decisions, Inland Revenue Authority of Singapore circulars,
Monetary Authority of Singapore circulars and Institute of
Certified Public Accountants of Singapore guidelines . These
are relevant to the interpretation and application of
provisions of the Income Tax Act and the Economic
Expansion Incentive (Relief from Income Tax) as of 29
February 2012, inclusive of changes proposed in the Budget
2012.
Key Features
• Includes extensive cross-references to various sources of
information which are relevant to the interpretation of the
two Acts in practice.
• Includes key cases from jurisdictions, ie: Australia, United
Kingdom, Hong Kong and Malaysia.
About the Author
Tang Siau Yan is a Partner at Allen & Gledhill LLP’s Tax
Practice Group. He specializes in tax dispute resolution.
Covering all aspects of Singapore taxation, his expertise lies
in cross-border tax structures, tax litigation, tax compliance
and regulatory matters. Amongst others, Siau Yan regularly
assists clients in negotiating and resolving tax disputes with
the Inland Revenue Authority of Singapore.
Siau Yan graduated from The London School of Economics
and Political Science with an LLB (Hons) degree (First Class)
in 1999 and obtained an LLM from Cambridge University in
2000. After graduation, he joined the Inland Revenue
Authority of Singapore and was the Deputy Director of the
Legislation branch when he left in 2007. He is also a
non-practising member of the Institute of Certified Public
Accountants of Singapore.
Key cases
•
•
•
•
•
•
•
•
ACC v Comptroller of Income Tax [2011] 1 SLR 1217
ATG v Comptroller of Income Tax [2011] SGITBR 2
AQP v Comptroller of Income Tax [2011] SGHC 229
ZF v Comptroller of Income Tax [2011] 1 SLR 1044
AVD v Comptroller of Income Tax [2011] SGITBR 3
AQQ v Comptroller of Income Tax [2011] SGITBR 1
CIR v HK-TVB International [1992] STC 723
Kwong Mile Services Ltd (in members’ voluntary winding up)
v CIR (HK FACV No. 20 of 2003)
• ING Baring Securities (Hong Kong) Ltd v CIR (HK FACV No.
19 of 2006)
• International Investment Ltd v Comptroller-General of
Inland Revenue [1979] 1 MLJ 4
• CIR v Orion Caribbean Ltd (in voluntary liquidation) [1997]
STC 923
• Kim Eng Securities (Hong Kong) Limited v CIR (HK FACV No.
11 of 2006)
• American Lead Blending case [1979] 2 MLJ 1
• Ketua Pengarah Hasil Dalam Negeri v Penang Realty Sdn
Bhd [2006] 3 MLJ 597
• Perak Constructuion Sdn Bhd v Ketua Pengarah Hasil Dalam
Negeri [2002] 1 MLJ 363
• Director-General of Inland Revenue v Hypergrowth Sdn Bhd
[2008] 1 MLJ 417
• Ketua Pengarah Hasil Dalam Negeri v Hock Lee Holdings
Sdn Bhd [2008] 2 MLJ 547
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Feature
third and last presumption was based on the Australian
Commonwealth Evidence Act 1995.19
The definition of “computer” and “computer output” or
“output” was also deleted, and substituted with the definition
for “copy of document”, which includes a transcript of sound
or other data embodied in a document,20 a reproduction
or still reproduction of images embodied in a document,
a transcript together with a still reproduction and a
reproduction of a visual image embodied in a document.
The definition of “electronic record”, which was previously
not available in the old Evidence Act, was also introduced
by the Evidence (Amendment) Bill 2012, and it refers to
a record that is generated, communicated, received or
stored in an information system, or transmitted from one
information system to another.
Implications of Amendments
Modification of Traditional Rules of Admissibility
It was stated in the Ministry of Law website that following
the amendments to the Evidence Act, electronic evidence
will “be subject to the same rules of admission as all other
types of evidence, such as the hearsay rule and the rules
on authentication”.21
However, owing to the very nature of electronic evidence,
it is doubtful whether the traditional evidentiary rules of
admissibility will similarly apply to electronic evidence as
they do to other types of evidence. As numerous authors and
law reform committees22 have noted, the nature of electronic
records present unique challenges to the traditional rules of
admissibility and have “complicated matters of establishing
authenticity and foundation.”23
Best evidence rule
Under the best evidence rule, the proponent of the document
must prove its contents by producing the original document
for verification by the Court,24 unless the exceptions apply,
in which case secondary evidence may be used to prove
the contents of a document.25 The purpose of the rule
is to “eliminate the possibility of admitting an erroneous
fabrication or inaccurate document”26 and to enable the
Court to determine whether the integrity of the record has
been compromised such that there are differences between
the record and its original version.27
In the context of electronic records, it is unclear what an
“original document” is for the purposes of the best evidence
rule. It has been argued that where the electronic print-out
Feature
is accurate, it would qualify as an “original” and, therefore,
overcome any objections based on the best evidence rule.28
It is perhaps for this reason that a new “Explanation 3” will
be added under s 64 of the Evidence Act, stating that “if a
copy of a document in the form of an electronic record is
shown to reflect that document accurately, then the copy
is primary evidence”.29 As such, where electronic records
are concerned, it is likely that the best evidence rule will
eventually be redundant when the proposed amendments
take effect.
Although the modern-day, technologically progressive
approach to storing, retrieving and creating documents
may lead to the best evidence rule being obsolete, this
concurrently presents new challenges and risks relating in
particular to the question as to whether the electronic record
reflects the actual document accurately. In the absence
of forensic evidence being presented concurrently, there
remains a possibility that the contents of such electronic
documents could have been fabricated or tampered with
and presented as unadulterated “originals”.30
In a report31 summarising the responses from the public
consultation for the proposed amendments to the Evidence
Act, the Technology Law Development Group (“TLDG”)
acknowledged that there can be no “pure legal solution” to
this, and that this is “still largely an issue for systems and
records management”.32
The difficulty for an opposing party is that it seldom has
knowledge of or access to understanding how the electronic
records of the proponent are kept. It can only assume the
originality of the electronic records unless there is evidence
on the face of record which suggests that it had been
altered or tampered with. However, with the advance of
technology especially, it may be extremely difficult to detect
such unlawful modifications to documents.
Further, even where one seeks to trace the origins of a copy
of an electronic record, there could be problems arising,
say, for example, where such record had been deleted.
While recently deleted files may be recovered using tools
built into the operating system, files which have been
deleted for sometime may become partially overwritten
by newer files. This is because the specific disk space
which has been allocated to the older file may have been
re-used by a new file. Although digital forensic specialists
may recover fragments of the older file, interpretation of the
file fragments would be required to ascertain its contents.
The inherent risk in interpreting such fragments is that a
specialist, in the course of reconstructing a document, may
become influenced by other aspects of the investigation,33
with the result that the reconstructed document may not be
completely accurate.
The presumptions that come with the amendments to
the Evidence Act may, therefore, remove one level of
deterrence to the falsification of documents where the best
evidence rule had previously presented at least a measure
of safeguard against a party seeking to admit a document.
Authentication rule
Given the ubiquitous nature of computer-generated
and computer-stored documents, the newly introduced
s 116A of the amended Evidence Act reduces the burden
on the proponent of such records by introducing three
presumptions, two of which relate to the authenticity of the
electronic record.
The authentication presumptions are, however, not without
their limitations.
For one, online communications pose several challenges
as to verifying their authenticity.34 With the ease of
impersonation over the internet, as well as the falsification
of information in the digital realm, this gives rise to issues
of verifying the authenticity and integrity of the information
put up on various social media platforms.35 In general,
it is insufficient to prove that the online post or electronic
communication was created or transmitted by one party,
simply by showing that the party’s name was displayed as
the author of the post or message.36 It may be necessary to
require the authentication of such electronic communications
as it is easy for a user to masquerade as another user’s
online persona or otherwise gain access to another user’s
social media account.
Moreover, with the multitude of various types of photoediting software readily available on the market,
photographs posted online can be easily altered.37 Without
proper detection software at hand, it would be difficult to
verify whether the photograph has been modified or not.
Rule against hearsay evidence
The hearsay rule is premised on the principle that a maker
of a statement must be examined in Court on the truth of
the statements made. Out-of-court statements which are
not verified by its maker cannot otherwise be used to affirm
the truth of the facts contained in these statements.
Generally, computer-generated records which do not
contain human information are not subject to the hearsay
rule. Computer records may also be admitted in evidence
Sponsored Feature
The Courts confirm that the official launch of the
Integrated Electronic Litigation System (“eLitigation”) will
happen during the last quarter of 2012. This eagerly
awaited replacement for the Electronic Filing System
(“EFS”) has been over three years in development. It
promises much. This article examines its background,
the reasons behind its introduction, and the objectives
that shaped its development.
Next month we will look at the details of eLitigation
itself: its improvements, new features, and the benefits it
is expected to provide.
Singapore enjoys an enviable reputation for the speed and
efficiency of its Courts. Many factors contribute to this. They include
a professional, carefully selected and highly qualified Judiciary, well
trained and experienced practitioners, highly competent support
staff in the Courts, and the general efficiency of the Governmental
framework within which the Courts operate.
One of the most critical factors is the continuing effort to ensure that
the legal profession and the Courts have an efficient, cost effective
technological framework that takes best advantage of Singapore’s
experience in operating a knowledge economy, actively learns
from the experience of other developed jurisdictions, and innovates
when necessary and appropriate.
EFS epitomised this. At the time of its formal introduction in 2000 it
was the most advanced electronic filing system in the world.
The development of EFS began in the mid 1990’s. At the International
Conference on Electronic Litigation 2012, Chief Justice Chan Sek
Keong described it as “a journey into uncharted territory for us, and
we had to continually remind ourselves not to develop a system that
gave the edge to speed and efficiency over justice”.
He noted that the driving motivation for EFS was Singapore’s
aspirations to become an international business hub – it was already
a regional financial centre – not, as many have assumed, to clear a
backlog of cases. That had been done; fully computerised systems
to track the disposal of Court cases were already in place.
EFS was pilot tested for three years before the 2000 launch. Even
so, as the Chief Justice noted “one of our biggest challenges was
to change the mindset of the lawyers and their initial resistance to
change … there were many teething problems”.
The teething problems were duly overcome, refinements and
upgrades progressively introduced. Today EFS is in mandatory
use nationwide. The Chief Justice described it as a “customised,
effective and efficient end-to-end electronic filing system which is
an essential component of our machinery of justice”. Alongside
this, the legal profession has increasingly embraced electronic
technology, most notably the LawNet research portal and various
office productivity tools.
Internationally, electronic filing systems modelled on Singapore’s
EFS have been adopted by a number of other jurisdictions. At
home, by the middle of this year, over eight million documents had
been filed and processed through EFS since its introduction twelve
years ago. EFS is a success story.
So why change?
Because the rate of change in technological areas is exponential.
This has multiple impacts.
First, it affects capabilities. The cumulative effect of improvements in
hardware and software means potential computing power doubles
every year. This results in rates of change that are beyond normal
human experience. Only twelve years ago, EFS was state of the art
– today it is like driving a horse and buggy when others are driving
Porches and Ferraris.
Second, it affects requirements. In the years since EFS was first
introduced, there has been a massive increase in the volume of
information that has to be sourced, submitted and disclosed due
to the cumulative impact of new forms of media such as social
networks, computerised search and referral data systems, and
e-mail. It is exacerbated by the huge expansion in the volume of
human knowledge and expertise and increasing ease of document
production. The time and cost involved in producing, processing,
evaluating and eventually storing all this information is expanding
at an alarming rate.
Third, it affects user expectations and attitudes. Greater processing
power and more advanced programming techniques mean faster
and more user-friendly features and facilities can be provided.
Fifteen years is a long time in information technology. In a world
in which EFS users take the facilities of smart phones and tablet
devices for granted, EFS seems dated and clumsy.
This last point was mentioned frequently in our discussions with users
and others familiar with EFS. There were frequent comments on the
many small irritants and inconveniences evident when using it. Ms
Tay Bee Lian, Senior Director, LawNet, Singapore Academy of Law
noted:
A New Wave
of Processes
One of the key disadvantages of the existing EFS is the
cumbersome smartcard authentication method and the need
for software to be installed in local computers. Lawyers
currently require a smartcard reader and a smartcard to access
the EFS software installed in their work computers. These
are limitations which hinder the legal profession’s access to
e-litigation services. The mobile and web technology available
today make services easily accessible anytime, anywhere.
So the legal profession has come to expect the same level of
portability and flexibility for electronic filing.
The new eLitigation system is a paperless system. This results in a
number of efficiencies, particularly in relation to effective capture
and use of data that will result in greater productivity for law firms
and Court users.
She contrasted this with the ease of access SingPass provides to the
many Government-linked resources available today on the internet.
There is no requirement for the installation of special software or
hardware for secure identification.
These significant advances in functionality, power, ease of use and
cost efficiency address the main charges usually levied at EFS today
– comparatively poor ease of use, inflexible, and too costly for
many smaller practices.
Another sign of the age of EFS is that it is paper-based. This is
out of step with modern practice. Paper-based systems involve
considerable cost and inconvenience, not only in the production
and delivery of multiple hard copies but also in the filing and
storage of record copies. Also, they are inconsistent with today’s
environmental and ecological concerns.
Thus, it is likely there will be a significant increase in the number of
practices who take up eLitigation as compared to those taking up
EFS. Currently, larger practices invariably use EFS but many smaller
firms prefer to use service bureaux. As the Chief Justice noted
when talking about the impact of the latest technology, “… these
developments will reduce somewhat the inequity of arms between
advocates in the large firms and those in the small firms”.
Mr Tan Sian Lip, Vice-President, Domains and Technology at
Crimson Logic Pte Ltd, the developers of both the original EFS and
the new eLitigation noted another consideration with paper-based
systems:
Paper-based systems are very limiting - in the first instance, they
are constrained by the physical aspects of paper: the inability to
be in more than one place at a time, the physical degradation
of the material, and (lack of) speed in transportation. But
paper by itself is unimportant - what matters is the information
on it. Today we have sufficient power to be able to design the
system so it is concerned with capturing the data directly and
then using it for whatever purpose and in whatever way you
need it to be used.
The considerable increase in power and capacity since the
days when EFS was developed means eLitigation will be able to
incorporate a variety of useful ancillary features such as calendaring
and automated generation and completion of forms that will further
enhance its user-friendliness.
EFS was an ambitious and revolutionary development. It has served
jurisprudence in Singapore well and will continue to do so until it
is replaced by eLitigation. In many other jurisdictions, EFS based
systems will continue to help smooth the course of justice in the
immediately foreseeable future.
eLitigation is an even more ambitious undertaking. It has taken
three years to develop, reflecting the challenge of bringing to
jurisprudence in Singapore all the benefits of the advances in
technology over the past 15 years. Expectations are high.
In next month’s issue, we will take a close look at eLitigation and
see just how well it has succeeded in meeting these expectations.
Feature
as business records (see s 32(1)(b) of the amended
Evidence Act). Where electronic records include statements made by
humans, however, it may not always be possible to have the
maker attend in Court. Problems may arise, for example,
in internet communications where authors of various
statements remain anonymous. Records of online group
discussions may also involve multiple parties from different
jurisdictions and it may not always be possible or practical
to locate or subpoena all the makers of these statements to
verify the truth of such statements recorded electronically.
The traditional exceptions to the hearsay rule are, however,
likely to remain applicable and electronic records may
still fall within such exceptions to constitute admissible
evidence. In Perfect 10, Inc. v Cybernet Ventures, Inc.,38 the
plaintiff sought to rely on approximately 2,000 e-mails sent
by a third party to the defendant notifying the defendant of
copyright infringement on its system, as evidence that he
had knowingly provided material assistance to operators of
websites that contained infringing images. The defendant’s
objection to the admission of these e-mails was overruled
by the Court which held that it was admissible for the limited
purpose of showing knowledge of infringing or potentially
infringing activity.
Reliability of Electronic Records May Remain to
be Challenged, and Increasingly Complicate Trial
Proceedings
Despite the presumption of reliability and accuracy of
records generated by a device or process that ordinarily
produces or communicates an electronic record, it is crucial
that this presumption must be premised on a device or
process that was functioning properly. That a computer
record had been generated without any human intervention
increases the probability that the resulting record is reliable
and accurate but this reliability remains to be challenged if
a party believes that a specific computer program or device
which generated the record was not functioning properly at
the material time.
A related concern is that errors of computer-generated
records such as login time entries are difficult to detect
unless there is an obvious error on the face of record, or
if there are circumstantial evidence which point towards a
mistake in record. Otherwise, it may be difficult for a party
to seek further evidence on the functioning of a computer
device or process which generated the record sought to be
admitted against a statutory presumption of accuracy and
reliability.
The statutory presumption of reliability is introduced as
part of the new amendments to facilitate the admission of
electronic evidence. However, this remains a rebuttable
presumption. As more and more crucial evidence is tendered
in electronic form, there may increasingly be “trials” within a
trial to determine the reliability or authenticity of electronic
records.
For example, in McKeown v DPP39 the Court in interpreting
s 69 of the Police and Criminal Evidence Act 1984,40 had
to determine whether the print-out from a machine which
had malfunctioned was admissible, if the malfunction did
not affect the accuracy of the print-out.
On appeal, the House of Lords overturned the decision of
the Judge below and allowed admission of the evidence
in question. It was held that the electronic evidence is
inadmissible only if the malfunction had affected the way the
computer had processed, stored or retrieved information
used to generate the print-out. In this case, however, it was
found that while the clock in the Intoximeter machine had
malfunctioned, the print-out reflecting the alcohol reading
was found to be accurate and the evidence was, therefore,
admissible.
Weight of Electronic Evidence to be Assessed by
Reference to Technology Involved
Apart from the statutory presumptions on reliability and
authenticity introduced by the new amendments, the
admission of electronic evidence should also be considered
by reference to the technology involved.
Software and programs which are subjected to encryption
are likely to be an accurate copy of the original. Electronic
communications which are password protected are also
more likely to be correctly attributable to the author who had
electronically signed off.
Conversely, data or records generated by means of human
intervention using computer program or device should be
assessed with circumspection. For example, a series of
calculations generated in an Excel sheet program may not
necessarily be accurate as the computations are based on
mathematical formulae created by a human author.
The Future for the New Electronic Evidence
Provisions in Singapore’s Evidence Act
Given the rapid development of information and
communication technologies, and the increasing reliance
on and use of electronic devices, it is clear that the trend
amongst various jurisdictions is to facilitate the admission
of electronic evidence.
Feature
In as early as 1998, Canada had reformed its evidentiary
provisions on the admissibility of electronic evidence, as
they were inadequate in dealing with evidence derived from
a computer.41 The Uniform Law Conference of Canada42 had
officially adopted the UEEA as its model legislation, which
sought to reform the traditional evidential requirements
of proof of authenticity and best evidence to make them
applicable to electronic records. The new approach taken by
the UEEA was well-received by most Canadian jurisdictions,
and it governed the admissibility of electronic records in all
criminal and most civil, quasi-criminal, and administrative
proceedings.43 However, despite the widespread adoption
of the UEEA in Canada, one study44 has reported that the
UEEA has in fact “received very little judicial consideration
or application”45 since it first came into force. This is largely
due in part to the fact that the UEEA still places particular
emphasis on requiring proof of authentication and the
best evidence rule, which have been criticized to be an
incomplete codification of the common law principles.46 The
UEEA also does not adequately address the hearsay rule or
the business records exceptions.
The 2012 amendments to Singapore’s Evidence Act avoid
the pitfalls encountered by Canada’s UEEA. As explained
above, Singapore’s proposed amendments presume the
authenticity and reliability of the electronic record where the
proponent of the record can satisfy the Court that it falls
within the three presumptions in s 116A of the Evidence
Act. Further, Singapore’s Evidence Act sets out clearly the
various hearsay exceptions in s 32.
Nevertheless, as desirable as it is to have our evidentiary
provisions current with the times, this should not result in an
over-compromise of the standard of proof of the cogency
and integrity of the evidence to be adduced in Court. It
should be borne in mind that there always exists the danger
that electronic evidence can be fraudulently created,
tampered with, or manipulated, and such evidence, when
wrongly admitted, will cause injustice to the party opposing
the evidence. Further, if the rules of evidence are overliberalised to make it easier to introduce electronic evidence
(without ensuring that there are proper safeguards), there
is the risk of a “trial by ambush”,47 as the opponent of
the electronic record may not have sufficient warning
or resources to investigate the reliability, accuracy and
authenticity of the record prior to trial.48
On the other hand, it is also recognised that having
specific standards of admissibility for electronic evidence is
counterproductive. Where there is no evidence or suspicion
of tampering, interception or manipulation, it is inefficient to
require proponents of the record to produce further proof
that the evidence is admissible. Not only would unnecessary
time at trial be wasted, the legal costs of proving such
evidence would also be increased. Further, in the event that,
for some reason, the specific admissibility requirements are
not met, this would result in the loss of reliable evidence.49
It is suggested that the practical benefits of the amendments
introduced by the Evidence (Amendment) Bill 2012 outweigh
the costs, and the safeguard introduced in s 116A(5)50
ensures, to some extent, that the evidence adduced in
Court is accurate. Further, Courts still retain the discretion
to accord little or no weight to evidence which it deems to
have insufficient probative value.
The 2012 amendments to the Evidence Act are of course not
an end-all, be-all to the admissibility of electronic evidence.
As Canada’s experience demonstrates, there is a need to
ensure the continued relevance of the electronic evidence
provisions, given the pace of technological development.51
As one Court has said, “[t]he potentially limitless application
of computer technology to evidentiary questions will
continually require legal adaptation”.52
► Wendy Low*
Rajah & Tann LLP
* Wendy Low is a partner of the iTec practice group in Rajah & Tann
LLP. She specialises in all aspects of IT and IP law. Her strength lies in
contentious IP litigation, particularly patent litigation and enforcement
against media piracy. Some of her most interesting work had involved
representing one of the defendants against the proprietor of the
thumbdrive patent and acting for Japanese anime copyright owners
in copyright infringement claims against BitTorrent downloaders. Other
cases which she had handled includes the recent Court of Appeal
decisions reported in Martek Biosciences Corp v Cargill International
Trading Pte Ltd [2010] SGCA 51 and MFM Restaurant Pte Ltd and another
v Fish & Co Restaurants Pte Ltd and another appeal [2010] SGCA 36.
Notes
1
Julian Gillespie, Patrick Fair, Adrian Lawrence, David Vaile, “Coping When Everything
is Digital? Digital Documents and Issues in Document Retention” (2004) Baker and
McKenzie Cyberspace Law and Policy Centre White Paper, at p 4.
2
These include metadata, e-mails, instant messages, multi-media material downloaded
from websites, and digitally enhanced photographs. The Court in Aguilar v
Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D.
350 (S.D.N.Y. 2008) (No. 07 Civ. 8224 (JGK)(FM)) identified three categories of
metadata:
(a) Substantive metadata – data reflecting “modifications to a document, such as
prior edits or editorial comments, and data that instructs the computer how to
display the fonts and spacing in a document”;
(b) System metadata – details about the document such as “the author, date and
time of creation, and the date a document was modified”; and
Feature
(c) Embedded metadata – such as “spreadsheet formulas, hidden columns,
externally or internally linked files (such as sound files), hyperlinks, references
and fields, and database information”.
21
Ministry of Law website, “Proposed amendments to the Evidence Act” (16 Jan 2012),
available at <http://app2.mlaw.gov.sg/News/tabid/204/Default.aspx?ItemId=604>
(accessed 3 June 2012).
3
For example, metadata embedded within an e-mail can reveal information about the
sender, the recipient(s), the creation date, whether there are attachments, as well as
the string of users involved in the e-mail exchange. See Setec Investigations, “The
Importance of Metadata”, available at <http://www.setecinvestigations.com/resources/
whitepapers/The_Importance_of_Metadata.pdf>. See also Mark L. Krotoski,
“Effectively Using Electronic Evidence Before and at Trial” (November 2011) Vol 59,
No 6 The United States Attorneys’ Bulletin (accessed 3 June 2012).
22
4
Peter Sommer, “Downloads, Logs and Captures: Evidence from Cyberspace” (2002)
8(2) Computer and Telecommunications Law Review, pp 33-42.
Chris Reed, The Admissibility and Authentication of Computer Evidence – A Confusion
of Issues 5th BILETA Conference British and Irish Legal Technology Association, p
2, available at <http://www.bileta.ac.uk/content/files/conference%20papers/1990/
The%2520Admissibility%2520and%2520Authentication%2520of%2520Compu
ter%2520Evidence%2520-%2520A%2520Confusion%2520of%2520Issues.pdf>.
See also Law Reform Commission of Ireland, Consultation Paper: Documentary
and Electronic Evidence (December 2009), available at <http://www.lawreform.
ie/_fileupload/consultation%20papers/cpDocumentaryandElectronicEvidence.pdf>
(accessed 5 June 2012).
5
Ibid.
23
6
S. Strijbos, “Ethics and the Systemic Character of Modern Technology”, Society for
Philosophy and Technology (1998); 3(4), p 22.
Jonathan D. Frieden & Leigh M. Murray, “The Admissibility of Electronic Evidence
Under the Federal Rules of Evidence” (2011) Vol 17 No 5 Richmond Journal of Law &
Technology, available at <http://jolt.richmond.edu/vl7i2/article5.pdf> (accessed 2 June
2012).
7
Evidence (Amendment) Bill 2012 (Bill 2 of 2012) (hereinafter “Evidence (Amendment)
Bill 2012”).
24
Section 66 of the old EA. For the definition of “primary evidence”, refer to s 64 of the
old EA.
8
Singapore Parliamentary Debates, Official Report (14 February 2012) vol 88, at col
451 (hereinafter “Evidence (Amendment) Bill 2012 Parliamentary Debates”).
9
Ibid.
25 Where the exceptions under s 67 of the old EA apply, then the contents of the
document may be proved by way of secondary evidence. Secondary evidence is defined
under s 65 of the old EA.
10 Section 35(3) EA provides that where a certificate signed by a person holding a
responsible position in relation to the operation or management of a certifying
authority appointed under sub-s (5) and purporting to identify the approved process,
including that part of the process that is relevant to the proceedings, shall be sufficient
evidence that the process is an approved process for the purposes of that section.
26
Law Reform Commission of Ireland, Consultation Paper: Documentary and Electronic
Evidence (LRC CP 57, 2009), p 30 (hereinafter “Ireland Consultation Paper”).
27
Nance, Dale A., “The Best Evidence Principle” (1987-1988) 73 Iowa Law Review p
227.
28
Steven Goode, The Admissibility of Electronic Evidence” (2009-2010) Vol 29 No 1
Rev. Litig. p 58.
11
Section 36(1)-(3) of the unamended Evidence Act (Cap 97) (hereinafter “old EA”).
12
Singapore Parliamentary Debates, Official Report (18 January 1996) vol 65, at col
452.
29
Evidence (Amendment) Bill 2012, “Amendment of section 64”, cl 64 (at p 11).
30
Supra n 26, Ireland Consultation Paper, p 36.
13
Ibid, at cols 452-453.
31
Supra n 19, TLDG Final Report.
14See Ng Koo Kay Benedict and another v Zim Integrated Shipping Services Ltd
[2010] 2 SLR 860, citing R v Shephard [1993] AC 380, where Lord Griffiths held as
follows (at 387):
32 Ibid, at p 13.
33
Peter Sommer, “Digital Footprints: Assessing Computer Evidence” (December 1998)
Criminal Law Review Special Edition pp 61-78, available at <http://www.pmsommer.
com/CrimLR01.PDF>
34
Electronic communications refers to e-mails, text messages, blogs posts, posts on social
media platforms such as Twitter, Facebook, MySpace, and LinkedIn.
35
Richard Raysman and Peter Brown, “Authentication of Social Media Evidence” (2011)
New York Law Journal, available at <http://www.newyorklawjournal.com/>.
Documents produced by computers are an increasingly common feature of all business
and more and more people are becoming familiar with their uses and operation.
Computers vary immensely in their complexity and in the operations they perform.
The nature of the evidence to discharge the burden of showing that there has been no
improper use of the computer and that it was operating properly will inevitably vary
from case to case. The evidence must be tailored to suit the needs of the case. I suspect
that it will very rarely be necessary to call an expert and that in the vast majority of
cases it will be possible to discharge the burden by calling a witness who is familiar
with the operation of the computer in the sense of knowing what the computer is
required to do and who can say that it is doing it properly. (Emphasis added).
36
Ibid.
37
15 United Kingdom Law Commission, Evidence in Criminal Proceedings: Hearsay
and Related Topics (Consultation Paper No 138), citing S. Castell, “Evidence and
Authorisation: Is EDI [Electronic Data Interchange] ‘Legally Reliable’?” (1990) 6(5)
Computer Law and Security Report, p 2.
For example, see People v Lenihan (2009) 30 Misc.3d 289 (N.Y. Sup. Ct.), where
the defendant was precluded from confronting witnesses with printouts of MySpace
photos depicting him in gang clothing because of the easy ability to digitally edit
photographs on the computer.
38
CV 01-2595 LBG (SHx), 2002 U.S. Dist. LEXIS 7333 (C.D. Cal. Apr. 22, 2002).
16
Supra n 8, Evidence (Amendment) Bill 2012 Parliamentary Debates, at col 45.
39
[1995] Crim LR 69.
17
Ibid.
40
The section provides that:
18
Ibid.
19
Technology Law Development Group, Computer Output as Evidence: Final Report
(September 2003) (hereinafter “TLDG Final Report”), p 9.
20
The illustrations under the old definition of “document” have been incorporated into
the new definition of “document” such that it is now more specific. “Document” would
include maps, drawings, photographs, devices capable of storing and reproducing
sounds such as discs, devices capable of storing and reproducing visual images such
as films and negatives, and paper or other material on which there are marks, figures,
letters, symbol having a meaning for persons qualified to interpret them.
In any proceedings, a statement in a document produced by a computer shall
not be admissible as evidence of any fact stated therein unless it is shown:
(a)
that there are no reasonable grounds for believing that the statement is
inaccurate because of improper use of the computer;
(b)
that at all material times the computer was operating properly, or if not,
that any respect in which it was not operating properly or was out of
operation was not such as to affect the production of the document or the
accuracy of its contents; and
Feature
(c)
that any relevant conditions specified in rules of court under subsection
(2) below are satisfied.
48
Ibid, citing R. Garcia, “Garbage In, Gospel Out: Criminal Discovery, Computer
Reliability, and the Constitution” (1991) 38 UCLA Law Review, p 1043.
41
For a discussion of the background to the UEEA, see Ken Chasse, “Electronic Records
As Documentary Evidence,” (2007) 6(3) Canadian Journal of Law and Technology pp
141–62, available at <http://cjlt.dal.ca/vol6_no3>.
49
Steven Goode, “The Admissibility of Electronic Evidence” (2009-2010) 29 Review of
Litigation 1.
50
42
This is the major law reform agency in Canada and it is made up of representatives of
the federal, provincial and territorial governments of Canada, and various law reform
agencies.
This section empowers the Minister to make regulations providing for a process by
which a document is recorded or stored through the use of an imaging system. This
may also include appointing persons or organisations to certify these systems and their
use.
43
Luciana Duranti, Corinne Rogers and Anthony Sheppard, “Electronic Records and
the Law of Evidence in Canada: the Uniform Electronic Evidence Act Twelve Years
Later” (Fall 2010) 70 Archivaria 70 pp 95-124 (hereinafter “UEEA 12 Years Later”).
51
44
Ibid.
45
Ibid, at p 104, citing Coco Paving (1990) Inc. v Ontario (Transportation) [2009] ONCA
503; College of Opticians of British Columbia v Coastal Contacts Inc. [2008] BCSC 617;
and R. v Blumes [2002] BCPC 45.
46
Ibid, at p 111.
In Teeuw, W B and Vedder, A H, “Security Applications for Converging Technologies
– Impact on the Constitutional State and the Legal Order” Telematica Instituut,
Enschede, Report TI/RS/2007/039, 50, the authors postulate that “in the future, we
may expect our laws to have to deal with quantum computing, miniaturization on
near to atomic levels, printable electronic appliances, power-scavenging technologies
integrated in sensor networks (sometimes called ‘smart dust‘), body sensors and
implantable drug dispensers, household robots and new computing paradigms and
sensor networks within the living body”. Such is the level of technology that may
confront our evidentiary laws in the future.
47
C.C. Nicoll, “Should Computers be Trusted? Hearsay and Authentication with Special
Reference to Electronic Commerce” (Jul 1999) Journal of Business Law 332, p 359.
52
Penny v Commonwealth, 370 S.E.2d 314, 317 (Va. Ct. App. 1988).
Feature
Whereas insurance business under the conventional system is based upon
uncertainty – which is prohibited in Islamic society under Islamic principles –
insurance in Islam is essentially based on the concept of mutual help. The article
highlights the differences based on the conceptual and operational frameworks.
Takaful (Islamic Insurance) Concepts and
Perspectives
Introduction
In a contract of conventional insurance, the insurer
assumes a legally binding obligation against the payment
of a premium by the insured to pay money or money’s
worth as compensation for the insured's loss if and when
an uncertain event occurs and where the insured has an
insurable interest in the subject matter of the insurance,
whether this is the life or the property in question.
This gives rise to an insurance mechanism that can be
summarised in the diagram below.
SimplifiedModel–ConventionalInsurance
Insurer
Premiums
Premiums+
Profits
Claims
Underwriting
Surplus
Clients
1. The clients pay the premiums.
2. The insurer invests the available funds (and generates
profits) and settles the claims with the clients.
3. Any net underwriting surpluses are profits that accrue to
the insurer.
Source: Paul Wouters
As we will see in what follows, conventional insurance poses
a number of problems when reviewed under the conditions
of Islamic law.
Risk mitigation and preservation of wealth are commendable
in Islamic teaching. The answer to the aforementioned
problems, however, had to be structured in a way that was
acceptable in Islam. Takaful is derived from the Arabic rootword Kafala, wich means guarantee, bail, warrant or an act
of securing one’s need. Takafala means the joint guarantee,
whereby a group of participants agree to mutually guarantee
and protect each other.1 The Quranic term for mutual help
or co-operation is Ta’awun. Islamic insurance, therefore, will
be construed as Takaful Ta’awuni.
It is construed on the distribution of loss (in the community
of policyholders rather than the transfer of the risk for a
profit (as in conventional insurance). Since the December
22-28, 1985 Resolution of the Islamic Fiqh Academy of the
Organization of Islamic Countries ("OIC"),2 Takaful and
Re-Takaful have obtained the full support of the Islamic
community. Built upon the solidarity of the policyholders
rather than the profit hunger of the shareholders of
conventional insurance companies and investing the
premium pool in Islamic compliant financial instruments
rather than fixed income bonds, the Takaful market can
appeal to a much broader user potential than the Muslim
communities sensu stricto, whilst at the same time finding
in Southeast Asia, a massive potential of so-far not or
underinsured Muslim community. A growing awareness for
the underlying values of the offered alternative combined
with the present day pulse of economic development will
prove Takaful to be a massive protector of wealth and driver
of sustainable economic growth for years to come.
The Unlawful Elements in Conventional Insurance
As we have seen in the previous articles by this author,3 the
Shari’ah provides a source-based framework4 – preset rules
and limitations that have to be abided by per sé – within
the borders of which, however, a broad flexibility is granted
(what is not forbidden is basically allowed).
This means that certain conditions have to be addressed
on the following levels of the insurance activities: internal
organisation/functions of the Takaful Company, investment
of the collected premiums, content and form of the client
contracts and payouts.
Feature
Comparison of Contemporary Insurance Markets
Australia
Premium
(per capita)
USD B
Premium
(volume)
USD billion B
GDP
(PPP per capita)
USD A
Total population
Million A
Muslim
population
Million A
2,833.0
60.3
40,233
22.9
0.4
Indonesia
32.0
7.3
4,666
238.0
207.6
Malaysia
322.0
8.8
15,568
28.4
17.4
Singapore
2,558.0
14.2
59,711
5.2
0.8
Thailand
154.0
10.5
9,396
66.8
3.1
Source: Wiki B
Source: Australia A Global Financial Services Centre Benchmark Report 2010
A
Some Islamic restrictions caused the conventional insurance
model to be questioned and, therefore, required acceptable
alternatives.
From their side, the insurers will weigh the bets (and
determine the premiums) using educated guesses based
upon statistical data and deal volume.
The major unlawful elements that play within the conceptual
insurance framework are Riba (generally referred to as
interests), Maysir (gambling) and Gharar (uncertainty).
The uncertainty occurs because both the payout and
premium are dependent on the occurrence of the uncertain
event. The insurer does not know if and when and how
much he needs to pay out. And the client pays the premium
but does not know whether any financial benefit will flow
back.
Riba
The most accessible to the novice reader will be the element
of Riba, when this concept is narrowed down to the common
understanding of interests.
Where the conventional insurance companies will pool
the premiums mainly in fixed income financial instruments
(conventional bonds that are “sleeping” and by the mere
laps of time generate a fix and guaranteed interest revenue),
such investment is prohibited to the Islamic insurance/
investment activity.
The available funds will need to be pooled and “put to work"
to generate a possibly stable (but not fixed) revenue and in
acceptable industries using compliant financial instruments.
Maysir (Gambling) and Gharar (Uncertainty)
Less obvious for the conventional reader will be the
prohibitions of gambling and uncertainty.
Conventional insurance indeed boils down – looked at
from an objective distance – to gambling. One premium
payment could give right to a payout (provided the insured
event occurs soon after) or one could pay all his/her life
without any result.
The insured puts up some money, hoping to get more back
than his input. This could be compared to buying a lottery
ticket. Because of this, conventional insurance is also prone
to moral hazard (fraud).
The way out will be formed by replacing the contract of sale
(of the risk) against the price (of the premium) against a
contract of donation (Tabarru) and a spreading of the risk
over the participants. The donation is often accompanied
by an additional saving, which then also gets pooled and
invested.
Some Elements of Controversy
Since the donation actually is conditional (upon claim for
recuperation if and when the insured event takes place),5,
the practice remains slightly controversial in minority schools
of Islamic law, in the same way as the principle of insurance
itself (as the insured event by necessity is uncertain – and,
therefore, arguably subject to minor or even excessive
Gharar).6
Depending on jurisdiction, it may be noted that (as for
instance in Family/Life Takaful) that a policy taken out by
a non-Muslim (as such not excluded from subscribing to a
Takaful policy), might contravene the Islamic principles of
inheritance (Faraid) and perhaps even the personal law of
faith of the insured. This aspect deserves the attention of all
parties concerned.7
Further, discrimination built against the conventional
practice of statistical life expectancy of the policyholders
sometimes rests debated as the life expectancy of a human
being is determined only by Allah (swt) regardless of the sex
of the creature and, therefore, no creature should overrule
the power of Allah (swt).8
Feature
The Qard Hassan or benevolent loan – as we will see below
– to which the Takaful operator can be called in case of
deficiency of the pool of the premiums is arguably some
kind of a capital guarantee, which in turn could be argued
as unlawful under Islamic law.9
It may be stated, however, that in the Southeast Asian
region (and actually near globally), the present day Takaful
operations are legally sanctioned and rest under limited
scrutiny for these issues; where there is such scrutiny, it is
done primarily for apparent academic research.
Takaful
Insurance
Conceptual
elements
Based on the
concepts of Ta’awun
(mutual help or cooperation), Aaqilah
(shared liability),
solidarity, trusteeship,
and brotherhood.
Based on seeking
material gain on
behalf of other.
Contract
A combination of
Tabarru contract
(donation), Dhaman
(indemnity) and
usually an agency
or profit sharing
contract.
Contract of
exchange (sale
and purchase)
between insurer
and insured.
Ownership
Policyholders –
will try minimise
operational costs
– operator receives
fees or profit share.
Profit generation is
not main goal.
Shareholders of
the insurer– will
try to maximise
profits.
Responsibility
• Participants make
the contributions to
policy holders /
participants
the scheme.
• Participants
mutually guarantee
each other under
the scheme.
Liability insurer
/ operator
• Takaful operator
acts as the
administrator of the
scheme and pays
the Takaful benefits
from the Takaful
funds.
• In the event of
deficiency in the
Takaful funds, the
Takaful operator
will provide an
interest-free loan
to rectify the
deficiency.
Access to
capital
Access to share
capital by Takaful
operator but not
to debt, except for
interest free loan
from operator to
underwriting fund.
Access to share
capital and debt
possible use of
subordinated debt.
Investment of
fund
Assets of the Takaful
funds are invested in
Shari’ah compliant
instruments.
There is no
restriction
apart from
those imposed
for prudential
reasons.
Operating
profits
Operating profit may
be re-distributed
to the eligible
policyholders or is
sometimes shared
with the operator
based on the preagreed ratio.
All the operating
profit will be
allocated to
the insurers’
shareholders fund.
Winding up
Reserves and
surpluses donated
to charity or returned
to the eligible
policyholders.
Reserves and
surpluses
belong to the
shareholders of
the insurance
company.
Source: Central Bank Malaysia - Concepts and Operations
of General Takaful Business in Malaysia (Special Article)10
– and Engku, o.c., p 26 – and Daud Vicary, o.c., p 21311 and Mher Mushtaq Hussain and Ahmad Tisman Pasha, o.c.,
p 25.
Major Takaful Models
Policyholders
pay premium to
the insurer who
assumes the risk
of the uncertain,
future event.
Both the legal structuring of the pool of funds (choice
of vehicle), the investment of those funds (investment
strategy) as per the agreement with the Takaful operator
(usually a partnership/agency contract) and the client
contracts (insurance policy and resulting payouts) have to
be according to the requirements of the Shari’ah.
Insurer is liable
to pay the
insurance benefits
as promised
from its assets
(insurance funds
and shareholders’
fund).
Whereas, the conceptual framework of the co-operation
will be based upon the Islamic principles as set forth
hereunder with respect to the partnership, agency and
insurance contract. In general, the use of (slightly adapted)
conventional legal structures has been accepted in most
jurisdictions.
Investments in interest bearing bonds not being allowed,
stable income will be generated through investment in
such income generating instruments or placements (mostly
Murabaha – sales against mark up – or Ijara – leasing
operations). If any public listed stock would be acquired,
then this needs to be deemed Shari’ah compliant.12
The most common used structures are the Mudaraba, the
Wakala or a combination thereof.13
Feature
Mudaraba (Partnership with Profit Sharing)
The Mudaraba is a true Islamic partnership structure. The
clients/policyholders (Rab-al-Mal or capital providers)
provide for the funds through Tabarru or donations that are
managed/invested by the operator (Mudarib or working
partner). The clients (capital providers) bear all the financial
losses. Any financial profits on the investments are split
according to a pre-agreed key between the clients and the
operator (working partner). Whilst the operator may receive
advances on any projected profits, those will have to be set
off against the actual profits and eventually paid back on the
settlement dates should there be no (or not enough) overall
profit to justify the advance payments.
Usually, the operator backs any temporary shortfalls in the
premium pool with recoverable Qard Hasan (interest free
loans/advances).
The Mudaraba (profit sharing) Takaful model was the first
one with wide spread use in Malaysia in the early days of
the introduction of Takaful.
1. An operator is selected and a Mudaraba partnership is
entered into.
2. The clients/policy holders feed the Tabarru Fund with
contributions and the operator invests these funds on
their behalf.
3. Profits split on those investments are according to
pre-agreed ratio, losses (on investments and through
claims) are charged to the Tabarru Fund.14
4. Insurance claims are honored.
5. At various times, underwriting surpluses may be
computed and distributed between the eligible clients
/ policyholders (or donated to a charitable cause) and
sometimes also the operator.15
SimplifiedModel–PureMudaraba Takaful
3. The operator will receive a pre-agreed part of the
investment profits as stipulated in the Mudarabapartnership.
4. Any claims will be paid out to the clients which will leave
a net profit or underwriting surplus.
5. The net profit/underwriting surpluses (residue of the
contributions/donations fund) may be distributed back
to the clients or ultimately to a charitable cause.
Wakala (Agency with Fees)
The Wakala variation is based upon the concept of agency
and not that of a partnership. The operator (Wakiel or agent)
will receive fees for his intervention.
1. An operator is selected.
2.The clients / policyholders feed the Tabarru Fund with
contributions and the operator (agent) invests these
funds.
3. Insurance claims are honoured.
4. The operator receives a fee for his efforts, usually a
fixed amount or a remuneration linked to the gross
contributions received.
5. At various times, underwriting surpluses may be
computed and distributed amongst the clients/
policyholders16 or ultimately donated to a charitable
cause.
SimplifiedModel–PureWakala Takaful
Operator
Donations
+Fees
Donations+
Profits
Claims
Underwriting
Surplus
Operator
Clients
Donations
Donations+
Profits
Claims
Underwriting
Surplus
Clients
1. The clients pay the premium that comprises actual
contributions (Tabarru or donations) and fees.
2. The fees go to the operator as compensation for his
efforts.
1. The clients pay the contributions (Tabarru or donations).
2. The operator will invest those contributions according to
the instructions of the Mudaraba-partnership  result:
contributions + profits.
3. The operator will invest the contributions which will give
rise to investment profits.
4. Any claims of the clients are honoured.
Feature
5. The net profits/underwriting surpluses are distributed
back to the clients or to a charitable cause.
International Framework
The Malaysia based IFSB Islamic Financial Services Board
to date has issued the following documents, specifically
dedicated to Takaful:
Hybrid (Profit Sharing/Fees)17
In this modus, the operator generates a fee for smooth
operations and underwriting activities (Wakala) and a preagreed profit share for good fund management (Mudaraba).
Product Lines, Bancatakaful and Re-Takaful
As can be expected, Takaful covers both General (motor
vehicles, third party legal liabilities, fire, accident and the
likes) and Family (life, disability) product lines. It is to be
noted that in the Life contracts, the Takaful company only
delivers payouts to the participant or their beneficiaries
that will consist out of balance due (contributions and their
revenue) and unpaid amounts (contributions that would have
been paid till the age of 65). One, therefore, cannot insure
the life of someone else and derive personal benefit of the
policy, which again limits possibilities of moral hazard and
unjust enrichment as compared to conventional insurance.
In order to optimise the use of the available distribution
channels as well, Bancassurance/Bancatakaful has
emerged with some success. The same as for the
conventional counterparts, Bancatakaful faces hurdles
such as lack of insurance industry specific competence by
the bankers and overall governance challenges.
Of course Re-Takaful has emerged with the same
characteristics
as
the
conventional
Reinsurance
counterpart.18 Same as or the Takaful, the conceptual
model is based upon the Mudaraba, the Wakala or a hybrid
thereof.
December 2009: IFSB-8: Guiding Principles on Governance
for Takâful (Islamic Insurance).19
December 2010: IFSB-11: Standard on Solvency
Requirements for Takâful (Islamic Insurance) Undertakings. 20
August 2006: Issues in Regulation and Supervision of
Takâful (Islamic Insurance) by IFSB and International
Association of Insurance Supervisors.21
The Bahraini based AAOIFI Accounting and Auditing
Organization for Islamic Financial Institutions has issued
a number of standards that can be obtained through
their website22 and recently announced a review of the
outstanding Takaful standards; however, they will not be
ready before the end of this calendar year.23
Conclusion
As with Islamic banking developments, the Takaful market
has been outgrowing the conventional insurance markets
for some years now, both from a global as well as a regional
Southeast Asian perspective.
An exponential growing middle class in the Southeast
Asian region consists largely of Muslims with no access to
savings/insurance and a growing awareness of using their
financial means in line with Islamic injunctions. Next to that,
there is an expanding potential of conventional/non-Muslim
clients that are inclined towards the ethical alternative that is
Global Gross Takaful Contributions
8,329
CAGR (2005 - 2009) = 29%
Growth (2010) = 19%
6,975
5,315
4,122
76
22
276
901
557
3,068
1,988
2005
11
18
258
695
238
8
17
181
544
173
2006
202
79
413
1,951
1,313
193
39
377
1,480
990
123
33
295
1,110
842
CAGR
2005-2009
Indian
Subcontinent
122%
Levant
23%
102%
Africa
20%
10%
South
East Asia
28%
32%
(excluding Saudi) 54%
33%
Saudi
cooperative
12%
GCC-
2007
2008
2009
2010(e)
Source: E&Y World Takaful Report 2012 (figures above include Saudi coops)
2010
growth
38%
5%
Feature
comprised within the Islamic finance/insurance products or
simply willing to accept the alternative/competitive offering.
According to the World Bank,24 Indonesia’s swelling number
of middle-class consumers grew from 1999-2011 by 50
million (mostly Muslim) to more than 130 million and –
economic growth staying what it is – another 50 million are
coming up in the next decade.
As a result thereof, Great Eastern is already eyeing regional
expansion to weigh against the mature Singapore insurance
market25 and also ETIQA announced an expansion in
regional activities considerably (in Singapore, Indonesia,
Brunei etc ).26
At the center of the Southeast Asian markets, proficient
lawyers should prepare to service Takaful companies and/
or accompanying their clients overseas, particularly those
who service clients with footprints in Indonesia. If Singapore
intends to stay a regional, financial powerhouse in this
shifting environment, strategic and regulatory decisions
need to be taken and implemented fast.
► Paul Wouters
Lawyer, Antwerp Bar Association
(Belgium)
Senior Foreign Counsel AZMI &
Associates Advocates and Solicitors
(Malaysia – Singapore)
Further Literature:
Aside of the books / articles as quoted in the text, there is abundant
literature available on the subject:,
Ernst & Young – World Takaful Report (annual editions) – availabe at
http://www.ey.com/ID/en/SearchResults?query=world+takaful+report&
search_options=country_name
AM Best – Rating Takaful (Shari’a Compliant) Insurance Companies,
2012 – available at http://www.ambest.com/ratings/methodology/
TakafulInsurance.pdf
AM Best, Takaful Poised for Growth, But Greater Focus is
Required, 2011 – available at http://www.ambest.com/press/
TAKAFULMARKETREVIEW.pdf
Notes
1
Dr Engku Rabiah Adawiah Engku Ali, Hassan Sctott P. Odierno and Azman Ismail,
Essential Guide to Takaful (Islamic Insurance), (2008, CERT Publications) p 3. See
also Mher Mushtaq Hussain and Ahmad Tisman Pasha, “Conceptual and Operational
Differences between Takaful and Conventional Insurance” (Nov 2011) Vol 1 No 8
Australian Journal of Business and Management Research p 23-28. – available at http://
www.ajbmr.com/articlepdf/AJBMR_17_41i1n8a4.pdf
2 Resolution No 9 (9/2) Concerning insurance and re-insurance, as compiled in
Resolutions and Recommendations of the Council of the Islamic Fiqh Academy 19852000, p 13 and available at http://www.google.co.id/url?sa=t&rct=j&q=fiqh%20
academy%20oic%201985&source=web&cd=1&ved=0CFEQFjAA&url=http%3A%
2F%2Fwww.irtipms.org%2FOpenSave.asp%3Fpub%3D73.pdf&ei=olnCT8m6E5C
zrAewu4nGCQ&usg=AFQjCNFYvFPAYyz0ZUmjUuQ_gFFTZKraAA&cad=rja
3
Paul Wouters, “Sukuk ! Sukuk ! My Kingdom for a Sukuk ! – A Brief Introduction in
Sukuk Concepts”, Singapore Law Gazette, May 2011, Paul Wouters, “The Use of the
Contract of Sale in Islamic Finance – General Concepts”, Singapore Law Gazette, Sept
2010 and Paul Wouters, “Islamic Private Equity Funds”, Singapore Law Gazette, March
2009.
4
The primary sources being Al Qur’an, the Sunnah (sayings, actions and tacit approvals
of the Prophet PbuH), and the general accepted secondary sources being Ijma
(consensus) and Qiyas (analogy).
5
If the claim for insured compensation would not exist, than most insured would most
probably not be inclined to pay the premium. It, however, arguably changes the nature
of a gift to a contract of exchange (I give you something for something else you give
to me). The various schools of Islamic thought develop different points of view, too
elaborate to be part of this summary article.
6
For instance Dr. Asyraf Wajdi Dusuki, Revisiting the Fundamental Structure of Takaful,
(01 Oct 2011, New Horizon). See also footnote 8.
7
The author here refers for instance to the provisions in the Malaysian Act 312 –
Takaful Act 1984 allowing the participation of non-Muslim in Takaful schemes,
available at http://www.pytheas.net/docs/malaysia/TakafulAct1984.pdf
8 Consult for instance Mohd. Ma’sum Billah, TAKĀFUL (Islamic Insurance): An
Economic Paradigm, available at
http://www.takaful.coop/doc_store/takaful/
economicParadigm.pdf,who amongst others suggests to abandon the Tabarru-concept
and go for the Musahamah (contribution).
9
Dr. Muhammad Imran Usmani, Takaful, SECP Takaful Conference, March 14, 2007,
available at http://www.secp.gov.pk/Events/IssuesInTakafulByImranUsmani.pdf
10 Available at http://www.bnm.gov.my/files/publication/tkf/en/2005/booklet.en.pdf
11 Daud Vicary Abdullah and Keon Lee, Islamic Finance – Why it Makes Sense –
Understanding its Principles and Practices (2010, Marshall Cavendish International).
12 The author refers for more details to the previous published articles as listed in endnote
3 here above.
13 Some of the other available options are the Ju’alah or hire of the operator against
success fee only and the Wadi’ah yad Damanah or custody and guarantee where the
fund is entrusted to the operator who can invest it and keep any proceeds (profits
and losses) for own account, sometimes combined with a Hibah or gift to the policy
holders of some of the profits. It may be stressed that the Mudarabah and Wakala (and
hybrids) are by far the most commonly used.
14 In an Islamic Mudarabah partnership, financial losses are borne by the capital provider.
The working partner invests his labour and only risks to work for free, provided there
is no profit.
15 In the pure Mudaraba model, the operator will not share in the surpluses. The
donations belong to the clients (they are not part of the Mudaraba capital) and are
serving the pool of mutual guarantee (of which the operator is not party). In the
variation Modified Mudaraba he will nevertheless be granted a part of the underwriting
surpluses.
16 Pure reasoning further will explain the resistance to award the operator a part in
the underwriting surplus, since this will be smaller than the original contributions,
which means that the Mudaraba partnership actually ended up with a loss, as a simple
formula will show:
Donation - Costs - Profit Share - Claims = Net Surplus
1,000,000 - 250,000 - 100,000 - 450,000 = 200,000
17 Just as is the case in the Mudaraba model, sometimes the operator (Wakiel) negotiates
a part of the underwriting surplus , what can be referred to as the “modified Wakala
model”. It is similarly uncharacteristic.
18 Mainly in Pakistan, there also is the Wakala-Waqf combination, where the policy
holders fund is a Waqf or charitable endowment according to Islamic law. See Mher
Mushtaq Hussain and Ahmad Tisman Pasha, o.c., p 24.
19 Treaty or Facultative/Proportional (Quota or Surplus) or Non-Proportional (Excess of
Loss or Stop Loss).
20 Available at http://www.ifsb.org/standard/ED8Takaful%20Governance%20Standard.
pdf
21 Available at http://www.ifsb.org/standard/IFSB-11%20-%20Standard%20on%20
Solvency%20Requirements%20for%20Takaful%20(Islamic%20Insurance)%20
Undertakings.pdf
22 Available at http://www.ifsb.org/docs/takaful_2006.pdf
23 Available at http://www.aaoifi.com
24 See for instance Francesca Nyman, AAOIFI Plans Reform of Takaful Standards, 02 May
2012, http://www.insuranceinsight.eu/insurance-insight/news/2171906/aaoifi-plansreform-takaful-standards
25 William Mellor and Femi Adi, Indonesia Chases China As Middle-Class Consumption
Soars, 2 May 2012, available at http://www.bloomberg.com/news/2012-05-01/
indonesia-chases-china-as-middle-class-consumption-soars.html
26 See for instance Francesca Nyman, Great Eastern CEO Optimistic about Southeast
Asian Market, 13 Feb 2012, available at http://www.insuranceinsight.eu/insuranceinsight/news/2151872/eastern-ceo-optimistic-southeast-asian-market and Premalatha
Jayaramange, “Great Eastern Takaful Eyes Top 3 Spot in Indonesia”, 28 Nov 2011, The
Sun Daily, available at http://www.thesundaily.my/news/221751
27 See for instance Rupinder Singh, “Etiqa Takaful to Expand Ops”, 22 Aug 2011,
Business Times available at http://www.btimes.com.my/articles/tikatiki/Article/
Feature
This article considers what the Rule of Law means to legal practitioners in practical
terms and the outworking of the Rule of Law in actual practice. It is intended to
prompt reflections on the importance of the Rule of Law to the development of
an evolving society and the recognition of the Rule of Law as part of a lawyer’s
vocational calling.
Reflections: Recapturing the Rule of Law in the
Practice of Law
“I, A.B., do solemnly and sincerely declare (and swear)
that I will truly and honestly conduct myself in the practice
of an advocate and solicitor according to the best of my
knowledge and ability and according to law. (So help me
God).”1
Do you recall making this declaration when you were
admitted as an advocate and solicitor of the Supreme
Court?
Taking a broad interpretation of the words “according to law”,
we may take the declaration to mean that advocates and
solicitors should conduct their practice, not only according
to relevant legislation, regulations and protocols, but also in
keeping with the Rule of Law.
Why does the Rule of Law Even Matter?
As a practising lawyer, legal counsel, judicial officer or legal
policy officer, what exactly does the Rule of Law mean
to you in practical terms? Does the Rule of Law, which is
often regarded as an amorphous and elusive concept, even
matter at all?
My personal view is it does and I hope that this article may
prompt some reflection on the importance and practical
outworking of the Rule of Law in actual practice.
we will soon find in-roads being made to the governance
of the Rule of Law, leading us down the slippery path of
contempt of laws, disorder, corruption, arbitrariness and
perversion of justice before we even realise it. Indeed, legal
practitioners can only operate in an environment where the
Rule of Law is upheld by the Government, institutions, legal
stakeholders and citizenry as a common commitment to
respect the law and the due process of the law.
What is the Rule of Law?
Traditionally, the Rule of Law has been considered to
include the principles of justice and equity by proponents
of natural law (ie, thick conception of the Rule of Law),
while the proponents of positive law incline towards a
conception of the Rule of Law that focuses on due process
and accountability of government institutions, without a
consideration of the substantive merits of the law (ie, thin
conception of the Rule of Law). Consistent with a “thin”
conception of the Rule of Law is Professor Brian Tamanha’s
definition of the rule of law to mean that “government
officials and citizens are bound by and abide by the law”
without incorporating any element of democracy or human
rights.2
It has been widely acknowledged that the Rule of Law is
essential to a robust legal system and the integrity of our
public institutions. Its impact is perhaps most felt by its
absence than its presence, as the experiences of various
countries have shown.
The “thin” conception of the Rule of Law has, however,
not been readily accepted and there is a strong inclination
to infuse in the definition of the Rule of Law, the lessons
learned from historical events such as World War II. For
example, Professor Joseph Weiler argues that in light of
the horrors of World War II and the events leading up to
it in Germany, the modern conception of the Rule of Law
should be reconceptualized to incorporate two principal
elements: (i) democratic legitimisation as the source of
authority and authorship of the legal rules and procedures;
and (ii) fundamental individual rights protected at the state,
regional and international levels.3 Thus, Professor Weiler
believes that both democracy and human rights are integral
components of the Rule of Law.
However, if all legal stakeholders do not play their part in
collaborating to safeguard the Rule of Law with vigilance,
Nonetheless, the diverging views on the proper definition
of the Rule of Law are not so much about whether the Rule
The Rule of Law can be seen as the genesis of all
substantive laws and procedural requirements, which ties
together the different offices within the legal framework –
advocates and solicitors, the Judiciary, legal counsel and
legal policy officers.
Feature
There are a number of ways that the WJP’s definition of the
Rule of Law can be applied in legal practice in Singapore.
Accessibility and Affordability of Legal Advice and
Representation
of Law would benefit society at large, but rather about the
best method of attaining the social good. Whether one is
inclined towards the thick or thin conception of the Rule of
Law, the Rule of Law lends legitimacy to the legal construct
of a nation and the legal community at large.
In this article, I will adopt a definition of the Rule of Law
which the World Justice Project (“WJP”) describes
as encompassing principles which are derived from
international sources that enjoy broad acceptance across
countries with differing social, cultural, economic, and
political systems, and incorporate both substantive (thick)
and procedural (thin) elements. This formulation of the Rule
of Law refers to a rules-based system in which the following
four principles are upheld:
1. The Government and its officials are accountable under
the law.
2. The laws are clear, publicised, stable and fair, and
protect human rights, including the security of persons
and property.
3. The process by which the laws are enacted, administered
and enforced is accessible, fair and efficient.
4. Access to justice is provided by competent, independent
and ethical adjudicators, lawyers or representatives,
and judicial officers who are of sufficient number, have
adequate resources, and reflect the makeup of the
communities they serve.4
How does the Rule of Law Apply to Legal Practice?
The WJP Rule of Law index, based on indicators of the Rule
of Law from the perspective of the ordinary person (which
WJP states are drawn from international standards and
norms), forms a good starting point for our consideration of
the specific areas contributing to the Rule of Law that calls
for active participation from legal practitioners.
It is interesting to note that according to the WJP Rule of
Law Index 2011 Report, Singapore scored 0.67 (over 1.0)
for the factor on access to civil justice (ranking 15th out of
66 countries), 0.83 for the factor on effective criminal justice
(ranking 5th) and 0.59 for the factor on open government
(ranking 19th).5 The factor on open government included
sub-factors such as whether laws are comprehensible to the
public, whether laws are publicised and widely accessible
and whether laws are stable.
One of the essential markers of access to justice is
that people can access and afford legal advice and
representation. By making available their legal services and
regularly assisting in pro bono work, legal practitioners have
been indispensible in contributing to the accessibility and
affordability of legal advice and representation. Some of the
key avenues through which legal practitioners provide legal
assistance to those in need in our community are the Law
Society’s Pro Bono Schemes (such as the Community Legal
Clinic, the Criminal Legal Aid Scheme and the Project Law
Help Scheme),6 the Legal Aid Bureau and various pro bono
initiatives undertaken by law firms and individual lawyers.
The legal fraternity’s pledge to donate at least 25 hours per
lawyer per year towards pro bono work can be considered
an affirmation of their investment to upkeep this aspect of
the Rule of Law.
Raising Public Awareness of the Law
The public’s awareness of available remedies is another
necessary ingredient to the access of justice, as well as
open government. To be effective, this must be coupled with
making laws comprehensible to the public. By participating
in public education initiatives to raise public awareness of
the law through seminars, exhibitions and publication of
educational information, legal practitioners can contribute
their legal expertise in raising public awareness of legal
rights, remedies and available avenues. The Law Society’s
Law Awareness programme is one such public education
initiative. This recognises that legal rights and remedies
which exist (whether through legislation or common law) are
only as useful as they are known and effectively enforced.
Access to Civil Justice and Effective Criminal Justice
As persons given the privilege of practising law in Singapore,
lawyers have an exclusive and unique role to be robust
advocates and defenders of the freedom of civil justice from
discrimination, corruption, improper government influence,
and unreasonable delays. This requires working together
with law makers, law enforcers and the Judiciary to ensure
that the necessary safeguards are put in place, that there
is effective enforcement of civil justice and that Alternative
Dispute Resolution systems are accessible, impartial and
effective.
In particular, criminal law practitioners play a crucial role
in advocating the rights of the accused (such as the right
to counsel), the efficacious and timely adjudication of
criminal charges and due process of law within the criminal
law system. For example, one initiative which contributes
to promoting due process and effective criminal justice is
Feature
the joint code of conduct for the conduct of criminal cases
encapsulating a set of understandings and best practices
for conduct of criminal proceedings, which is currently being
worked on by criminal law practitioners in collaboration with
the Attorney-General’s Chambers (“AGC”). Also, criminal
law practitioners have participated actively in consultations
on criminal procedural issues such as the review of the
Criminal Procedure Code.
Constitutional and Administrative Law
Legal practitioners can also play a role in the upkeep of the
Rule of Law by raising important constitutional/administrative
law issues before the Court and advocating the protection
of fundamental rights enshrined in our Constitution,
where appropriate and relevant. The instrumental role
of the Courts in upholding the Rule of Law in Singapore
undoubtedly includes addressing fundamental questions on
the constitutionality of Singapore’s laws and whether they
have been enacted ultra vires the powers of the Legislature.
The Court of Appeal in PP v Taw Cheng Kong7 had held that
the Singapore Courts will no doubt readily invalidate laws
that derogate from the Constitution, which is the supreme
law of our land.
In order to be able to raise such issues effectively, legal
practitioners should make efforts to be actively engaged in
a continuing dialogue on constitutional and administrative
law. While it is clear that all power has legal limits and
the Rule of Law demands that the Courts be able to
examine the exercise of discretionary power,8 the Courts
have recognised that “the framework of the Constitution
deems it crucial and necessary to authorise the imposition
of restrictions in the wider and larger interests of the
community and country”.9 The challenge for constitutional/
administrative law practitioners is to engage in the robust
defense of constitutional rights in the upkeep of the Rule
of Law within Singapore’s cultural context and public policy
considerations.
insistence of our own rights and entitlements, which will
help to promote a more vibrant and nuanced values-centric
society.
As one of the key players in the legal landscape, legal
practitioners are well placed to promote an enduring culture
of the Rule of Law in Singapore, as a legacy to our future
generations. What we need to ask ourselves is: Does the
commitment to promote the Rule of Law form part of our
vocational calling and are we prepared to work together to
uphold the Rule of Law?
► Jasmine Foong*
* The author is a Senior Executive Officer of the Representation and
Law Reform Department, the Law Society of Singapore. The author
graduated from the National University of Singapore with L.L.B (Hons)
in 2006 and was called to the Singapore Bar in 2007. She practised
general and commercial litigation with a Singapore Law Practice before
moving to her current appointment.
The views expressed in this article are the author’s personal reflections,
some of which were gleaned from the Rule of Law Symposium held on
14-15 February 2012 which the author attended. The author is grateful
to Mr Alvin Chen (Chief Legal Officer and Director, Representation &
Law Reform, the Law Society of Singapore) for his comments and
suggestions on this article. This article does not in any way reflect the
views of the Law Society of Singapore.
Notes
1
Rule 30 of the Legal Profession (Admission) Rules 2011 read with the First Schedule
therein.
2
Professor Brian Z. Tamanaha, “The History And Elements Of The Rule Of Law”
(Public Lecture, Singapore Academy of Law, February 14, 2012) Legal Studies
Research Paper Series, Paper No. 12-02-07 (electronic copy available at: http://ssrn.
com/abstract=2012845).
3
Professor JHH Weiler, “The Rule of Law and the Tension between Individual and
Public Goods”, Abstract (Public Lecture, Singapore Academy of Law Rule of Law
Symposium 2012, February 15, 2012).
4
Mark David Agrast, Juan Carlos Botero and Alejandro Ponce, The World Justice
Project Rule of Law Index, 2011 (Washington D.C. World Justice Project 2011) at 9
5
Ibid at 92
6
For more information of Law Society’s Pro Bono Schemes, see: http://www.lawsociety.
org.sg/probono/Default.aspx
7
Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 0489 at [89].
8
Chng Suan Tze v Ministry of Home Affairs [1988] SLR 132 at [86].
Rule of Law – A Vocational Calling?
While recognising the Rule of Law as integral to good
governance and development of an evolving society, the
challenge is to go beyond identifying the Rule of Law as
merely a means to an end and perceiving it as part of
the virtue and ethos of legal practice that sustains the
aspirational role of an advocate and solicitor.
If the Constitution represents the letter of the Rule of Law,
the spirit which gives it life is the culture of the Rule of Law.
The starting point of establishing a culture of the Rule of Law
is to build a culture of legality, which has been described as
society’s broad recognition that respect of law must become
a basic standard of human behaviour.10 Going beyond a
culture of legality, I would suggest that the culture of the
Rule of Law also encompasses a commitment to look out
for and safeguard the rights and interests of others before
Representation and Law Reform Department
9Chee Siok Chin v Minister of Home Affairs and another [2006] 1 SLR(R) 0582 at [54].
10
See: Dr Augusto Zimmerman, “The Rule of Law as a Culture of Legality: Legal and
Extra-Legal Elements for the Realisation of the Rule of Law in Society”, (2001) Vol 14
No 10 eLaw J, p 11 citing Herbert L.A. Hart, The Concept of Law, (Oxford: Oxford
University Press, 1961), p 116. (electronic copy available at www.heinonline.org).
Columns
Tea with the Law Gazette
Mr Robert Todd and Dr Gordon Hughes of Ashurst were speakers on the topics of
social media and defamation, and cloud computing respectively at the Law SocietyLAWASIA International Conference on eCommerce and Communications 2012
held in Singapore on 4-5 May 2012. Jasmine Foong of the Law Society had the
opportunity to meet Mr Todd and Dr Hughes over coffee a day before the Conference.
They shared their insights on various topics of interest, ranging from the impact
of social media on defamation law to the use of alternative dispute resolution for
defamation, IP and IT disputes.
Conversation with Robert Todd and Gordon
Hughes of Ashurst: Insights into the Impact
of Social Media on Defamation Law and Legal
Practice
Does the advent of social media bring new challenges
to the practice of defamation law, for example, the
enforceability of injunctive remedies on service
providers based in other jurisdictions, or the
quantification of damages recoverable for a defamatory
comment made through social media publicly
accessible by all?
Robert Todd: It leads to the problem of defamation tourism
ie, forum shopping. A recent example is where a party
chose to sue in Belgium because there is a right of reply
in the original journal under Belgium’s law. However, the
Belgium Courts disallowed the claim as it had insufficient
connection with Belgium. In fact, damages were awarded
against the plaintiff. This shows the difficulty which arises
from the ubiquitous nature of defamation through social
media because the cause of action in defamation can arise
in different jurisdictions.
The EU is now trying to reform this area of law to require the
action to be brought in the place of closest connection. In the
UK case of Jameel [Jameel and others v Wall Street Journal
Europe Sprl [2006] UKHL 44], the UK Courts found that the
allegedly defamatory comment only had limited publication
in the UK and this was not sufficient to found a claim in the
UK Courts. This is partially being resolved in Australia by the
Uniform Defamation Law, s 11, which provides that you can
only bring proceedings in the place of closest connection to
the publisher or the plaintiff. While the section was meant to
deal with the problem across various states, it may well be
interpreted to cover private international law.
The difficulty of publishing material on the Internet is that it
is published to the world subject to all applicable laws.
In Australia and the UK, the cause of action is complete
where it is perceived, not where it is put on the Internet.
This may not be the best approach as it does not eliminate
multiplicity of suits in different jurisdictions and the applicable
law may be the lowest common denominator ie, the most
restrictive law. In contrast, in parts of the US, the cause of
action arises at the place where the material is put on the
Internet. One difficulty with the US approach is that it does
not sit well with the law of damages. Another problem is that
the publisher could pick the most favourable jurisdiction to
upload their materials.
The issue of injunctive remedies is a huge problem. As
most Courts do not have an extra-territorial reach, the
enforcement of injunctive remedies is virtually impossible
if the defendant does not submit to your jurisdiction. Even
if attempts are made to block the material, there are now
Internet groups that have emerged particularly throughout
the Middle East, as a result of the Arab Spring, that will
assist in circumventing the blocking procedures in certain
countries.
Parties may face difficulty trying to enforce judgments
against a publisher in another jurisdiction, particularly one
where the culture highly values free speech. For example,
in the US, the bias towards free speech is very pronounced
and the First Amendment makes it practically very difficult to
Columns
Robert Todd
Dr Gordon Hughes
enforce a judgment from a foreign jurisdiction against a US
publisher in the US.
This illustrates the problem of the Internet not capturing the
nuances of culture and thus not addressing the different
contexts in which the material was published. This makes
having a single policy answer to this question very difficult.
Damages are always assessed having regard to the extent
and nature of the publication. If the material is published in
a major newspaper or on TV, its impact is perceived to be
greater. An example is a case where a person commented
about a doctor in a letter sent to his professional body.
Although the letter was only seen by less than 10 persons,
they were all people with whom he had his real reputation.
This doctor managed to obtain a large award of damages
because the Court said that this attacked the heartland of
his reputation and the damage was great. It is no different
for defamation through social media. The risk of publishing
in social media is that the material may become viral and be
seen by, not the 10 persons you intended, but two million
people across the world. The average person may also
not know that he would be subject to liability in different
jurisdictions.
However, while defamatory material through social
media can have a very huge impact with a wide scope of
readership/viewership, it also depends on the context in
which the comment was made. I will be less concerned
about a comment made in the social media context than say,
your Law Gazette. You will also have to take into account
the enduring nature of the damage if the online post is not
removed.
It appears that with the rise of social media, there is an
increasing trend of lawyers making certain comments
about their work or giving informal guidance on legal
issues on social networking sites, online forums and
other websites. Do you think that this blurs the line
between personal and professional conduct?
Robert Todd: There is nothing wrong about discussing
issues and guiding people about the dos and don’ts.
However, every person’s situation is different and you do not
know all the nuances of the matter so giving advice can be
difficult and unwise. Good lawyers will have to exercise the
necessary judgment and wisdom and be very circumspect
about what they say on a social networking site especially
in giving any advice.
Does it matter that the lawyer uses qualifications,
such as a caveat that the comment is just the lawyer’s
personal opinion and does not constitute legal advice?
Robert Todd: No, my opinion is that you have to exercise
what I call the top drawer approach. In the old days, you
would put a letter you were not sure about in the top drawer,
leave it overnight, before taking it out and looking at it again.
You have to be very careful, as a lawyer, of what you say
on social media, even if it is in your personal capacity. Your
currency is your legal knowledge and the fact that you treat
your client’s information with great respect. It is valuable
that clients know you as someone who is careful, rather
than cavalier, with what you say.
If a comment was made on social media in a personal
capacity that might be perceived to be unbefitting of the
legal profession, would a disclaimer that it was made in
a personal capacity be sufficient?
Gordon Hughes: I do not think a qualification is sufficient to
protect you from an allegation of professional misconduct.
For example, if you expressed an opinion about a certain
Judge or fellow lawyer, you cannot avoid your professional
responsibility.
Columns
Robert Todd: I agree with that. You have to be very
circumspect about the comments you make on social
media, even if qualifications are given.
How do you think law firms can best use social media
for the promotion of their businesses?
Robert Todd: We encourage lawyers in the firm to have
a LinkedIn profile. This should be used to service existing
clients to allow them to find out more information about you
and for you to provide relevant up-to-date information to
them. Beyond that, I do not think you should be using social
media for advertising. The issue about advertising using
social media is that you will have to comply with all laws for
all types of media. The firm will have to be focused in how
it uses social media and make sure that it is done ethically.
It has been recently reported in the local press that
the Singapore Government had called for the Internet
community here to come up with a code of conduct
on responsible online behaviour. Several well-known
bloggers and owners of socio-political websites had
reportedly expressed that they do not support this
proposal, one of the reasons being that a "one-size-fitsall" approach would be ineffective.
Has this issue also been debated in Australia? If so, what
are some of the arguments that have been canvassed?
Robert Todd: This issue has been debated in Australia.
Within Australia, there are very diverse views on what a
code of conduct should be. This concerns uniquely cultural
issues and any legal response should be considered in
this context. Social media tends to be agnostic to cultural
differences.
In Australia, the Final Report of the Convergence Review
has been released earlier this week. The purpose of the
review was to look at all media platforms and work out
issues such as licensing, ownership laws and content
regulation in a converged environment. They have come
to the answer that there would be one super regulator for
content service enterprises (“CSE”) that would deal with all
issues of licensing and there would be an independent body
that will deal with content issues and determine questions
of whether there is a breach of fairness, etc. To be a CSE,
it has been suggested that there should be a threshold of
the enterprise’s reach into the community and the income
generated from the services provided. This will potentially
put all the Internet service providers below the line, and
all the TV and newspapers companies above the line.
Individuals and bloggers will be well below the line.
As such, the review has not resolved the issue you have
raised. Individuals are only controlled by existing applicable
laws. For individual Internet service providers/bloggers
there is a voluntary code of conduct that can be subscribed
to by the industry. Otherwise, it is a matter of own site selfcontrol. We will have to observe where the Convergence
Review leads us to. Perhaps Singapore can teach us the
way to go.
While there may be some difficulty controlling international
sites, many international sites have very clear codes of their
own. This is a difficult question because again it comes down
to cultural questions of what is acceptable on a certain site.
Another legal issue which has attracted attention is
the grant of gag orders or “super injunctions” by UK
Courts. How much weight do you think should be given
to the public interest of having “open justice” as against
considerations such as privacy and confidentiality?
Robert Todd: In Australia, there is a trend of people trying
to protect their perceived privacy by obtaining suppression
orders. In New South Wales, they have the Federal Court
Suppression Act, which consolidates all the powers in one
Act. We have seen an increase in the number of suppression
orders made by Judges. However, it appears that while
the Judges at first instance are quite amenable to making
suppression orders, the appellate Courts take the approach
that it must be absolutely necessary for the attainment of
justice before an order suppressing information is made.
Otherwise, they take the view that it is fundamentally
important that the Courts are open and accessible. The
pertinent issue is whether the information is truly private
and this issue engenders a diversity of views. Generally, it
is less likely for “super injunctions” to be granted in Australia
than in the UK. I think it is important that the public interest
in open justice is given a primary position in the resolution
of the competing interests.
Do you think that the release of audio visual recordings
of Court proceedings online, through social media
platforms such as Youtube, promotes the concept of
“open justice”?
Robert Todd: Yes. It need not be a video clip, as long as
it gives you a fair representation of what happens in Court.
In the UK, they are moving towards allowing broadcasting
of Court proceedings. They also allow the use of social
media such as Twitter from the Courtroom. The Twitter
commentaries are treated like a live running summary of
the Court proceedings reported by the journalist in Court.
By the end of the day, these commentaries will contain a lot
more information than what would usually be contained in
Columns
a TV broadcast or the newspapers. This potentially gives a
fairer view of the proceedings (depending on the skill of the
journalist).
In Australia, there is still reluctance to broadcasting of
Court proceedings although in some cases, there is a live
broadcast of the delivery of contentious judgments. In the
Victorian and Federal Court, a press release statement of
the summary of the case prepared by the judiciary will be
released for significant decisions.
Personally, I am in favour of a more open approach because
it is better for the public to understand how the justice system
works so that greater confidence can be built up in the Court
system. Some Australian Judges are concerned that this
may lead to some lawyers behaving badly in the courtroom.
I do not think that is an issue, because the Judge can control
such behavior and most lawyers are responsible. I think our
Courts should embrace the idea of being more open and
accessible to the public.
I understand that you are an accredited mediator. In
your experience, are there particular types of disputes
which are more difficult to mediate than others? If so, is
there a better way to resolve such disputes?
Robert Todd: I am an accredited mediator but I have not
practised as a mediator. Gordon is both a mediator and an
arbitrator.
Gordon Hughes: I think mediation proves to be a useful
exercise in a majority of disputes, arbitration not always
so. Arbitration is appropriate in certain instances and,
properly conducted, can result in an efficient resolution of
the dispute. It is important, however, to avoid conducting
an arbitration like a Court hearing, or the benefits can too
easily be lost. A poorly conducted arbitration can become
complex, expensive and tied down by procedure.
Robert Todd: I do not think arbitrations are necessarily
cheaper or quicker than resolving disputes in the Australian
Courts. It is interesting to note that in Victoria and the
Federal Courts, it is a breach of professional conduct if you
do not advise your clients to attempt ADR before you start
proceedings.
Do you think that the nature of defamation, IP and IT
disputes lend themselves to mediation?
Robert Todd: In my experience, most defamation cases are
resolved before Court proceedings are started. In Australia,
for defamation cases involving publishers, the claimant will
have to send a formal notice to the publisher. The publisher
usually responds with an offer to make amends specifying
what they are prepared to do (or otherwise face costs
consequences). In a majority of the cases, the publisher
responds properly and the other party takes the publisher
up on his response. This leads to about 80 per cent of such
complaints being dealt with before litigation. Therefore,
most defamation cases are resolved by this process rather
than in a formal mediation setting.
IT disputes are different from other commercial disputes
because the parties are often supplier and customer with
an ongoing relationship that is very hard to untangle unless
the customer can afford to walk away from their existing IT
system. Often, mediation or arbitration will be attempted.
Most IT disputes are settled by some form of re-negotiation
in the contract, requiring a degree of creativity and flexibility
on the part of the lawyers.
Gordon Hughes: It is very common for IT contract disputes
to proceed to mediation and almost 80 per cent of such
cases would be settled at or following mediation. Parties
like the idea of being able to choose a mediator, and an
arbitrator for that matter, who has a good grasp of the
subject.
IP disputes associated with IT transactions, such as a
dispute over authorship and ownership of software rights,
lend themselves to arbitration, as opposed to mediation, and
generally arbitration is the most effective means of reaching
a relatively quick and relatively cost effective resolution.
What is one piece of advice that you would give to young
lawyers who have just stepped into the increasingly
competitive and demanding profession of law?
Robert Todd: Enjoy yourself! Find your area of interest
and engage with the subject. As a lawyer, you have great
exposure to all walks of life and this is fascinating. Whilst
there is a need to specialise, you need to be engaged
with the law generally and be prepared to be surprised at
different areas of practice. This will make you a more wellbalanced lawyer.
Gordon Hughes: You should enjoy the challenge of keeping
up with new legal issues. This will keep you interested in the
law longer, and avoid the prospect of becoming stale and
disillusioned at an early age.
► Jasmine Foong
Representation and Law Reform
Department
Columns
The Young Lawyer
As the representative body for young lawyers in Singapore, the Young Lawyers
Committee (“YLC”) focuses on issues relevant to those new to legal practice. Stay
tuned to this monthly column for useful tips and advice, features and updates on
YLC’s social and professional events.
Amicus Agony
Life Expectation
Dear Amicus Agony,
documents myself if I needed them urgently. She did not
even apologise for her inability to help. I was so shocked!
What should I do?!
I have learnt to take cues from my peers in the conduct of my
work. That being said, my peers all seem to be busy looking
busy at work. They appear committed to staying back late
at work every day – often until midnight at the very earliest.
I would like to think that I am an efficient young lawyer, and
because of this, I tend to complete my duties at the end of
the day before the rest of my peers. Should I nevertheless
be staying back late at work? Will I be at a disadvantage if
that is the case? I would like to have a personal life of some
sort after work. Is that so wrong?
Loss of control,
Over myself or others
Seeking personal salvation,
Larger than life
The first thing you need to do is speak to your secretary and
try to understand her position as well as explain yours. From
the incident you have related, it does sound like you do need
to set up a system of communication and accountability
between the two of you. Perhaps have everything down in
writing to ensure that she gets your instructions, or let her
know she should feel free to approach you if she has any
problems with her work/workload. In this way, both of you
will have the comfort of knowing that messages are not lost
and you have something to look to as a basis for resolving
any future conflict.
Dear Larger than life,
I am not entirely certain you should waste too much time
thinking about what others around you are doing, but I do
understand. If you are finishing your work promptly, it should
not be necessary for you to stay around in the office, or
worse, try to take longer than necessary to do the work. In
this context, what you should be doing is ensuring that you
are producing flawless work, at a timely rate.
That said, if you intend to leave the office at 6pm, I would
suggest you check with your partners or superiors before
leaving. If they require your assistance or expect you to stay
later, they will let you know. This way, your superiors should
not be able to find fault with you, even if you do go home at
a decent hour, or at least earlier than your peers. Frankly,
partners and seniors are only human and they, too, should
understand that subordinates do have a life outside of work.
What others do shouldn’t matter,
Amicus Agony
Under Subordination
Dear Amicus Agony,
I have just been given, for the first time, a secretary to call
my own. Well, to be honest, I have to share her with another
Associate, but I’m grateful for the help nonetheless! The
problem is, my secretary does not listen to me, does not
follow my instructions and has a rather rebellious attitude.
For example, last week, I asked her to photocopy some
documents, but she told me rudely that she was “too busy”
with other work, and that I could easily photocopy the
Dear Over myself or others,
Congratulations on becoming a “boss” for the first time!
However, with great power comes great responsibility.
You are in charge of your secretary, and are responsible
for supervising her performance in the workplace. As her
supervisor, you also need to ensure she is happy in her role.
Also, you should try to understand from her if there is
anything you are doing wrong or could improve upon. Or
if her overall workload is getting too much for her, which
could well be the case if she is working for two very busy
Associates. It would definitely make her feel better if she
knows that you are concerned with her welfare.
Don’t be bossy,
Amicus Agony
Young lawyers, the solutions to your problems are now just
an e-mail away! If you are having difficulties coping with the
pressures of practice, need career advice or would like some
perspective on personal matters in the workplace, the Young
Lawyers Committee’s Amicus Agony is here for you. E-mail
your problems to [email protected].
The views expressed in “The Young Lawyer” and the “YLC’s
Amicus Agony” column are the personal views and opinions
of the author(s) in their individual capacity. They do not reflect
the views and opinions of the Law Society of Singapore, the
Young Lawyers Committee or the Singapore Law Gazette and
are not sponsored or endorsed by them in any way. The views,
opinions expressed and information contained do not amount
to legal advice and the reader is solely responsible for any
action taken in reliance of such view, opinion or information.
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The Young Lawyer
Sinking to New Depths
Why do people dive?
coast of our very own sunny Singapore holds plenty of
hidden wonders.
For those who love diving, it’s a moot question. It’s a way of
life rather than a sport. For everyone else, it’s as good a place
to start this article as any. What makes a human being, who
is not genetically engineered to breathe underwater, put on
a mask and fins, lug around bulky breathing apparatus, and
merrily leap into the sea?
I often hear this question from my friends (of the non-diving
variety), and usually when I tell them I’m off on yet another
dive trip. They don’t understand why I would spend money
on a trip whereby I stay at an island resort (and the word
“resort” is used relatively loosely here) or live on a boat for
a week or so, sometimes with no connection to the outside
world (not that that’s always a bad thing), occasionally wake
at ungodly hours (just to dive at the break of dawn and
hopefully see more interesting things), and engage in what
they regard as a dangerous activity, just for the mere chance
to see what you could easily see at any large aquarium in the
world or on the Discovery Channel or National Geographic
from the comfort of your couch at home. Putting matters in
context, the same amount of money would probably net you
a relaxing scenic retreat in some nice villa in Bali or Phuket
or a shopping trip in the heart of Paris or Milan, so I suppose
one can see where they are coming from.
So why do I dive? Well, for one, because I like the sea.
There is something about the sun on your face, the wind
in your hair and the sound of waves in the background that
makes you feel more alive. As for my insatiable addiction to
breathing compressed air at depth, while I could wax lyrical
about the sheer wonder of floating weightless above a
coral reef bursting with action and colour, surrounded by an
assortment of fish, with the sunlight streaming down from
the surface, there is one, sole, compelling reason to dive
which overshadows the rest, which is the one I give all the
time (and which nobody ever believes). To see fish.
Part of the charm of diving lies in the adventure and surprise
inherent in diving. The first thing you learn about diving
(other than your basic open water skills to ensure that
you’re allowed to dive and that you’ll be fine underwater) is
that there are no guarantees when diving. The only certainty
is that you are going to get wet. A particular dive location
may be famous for, say, a 99 per cent chance of sighting
a certain species of fish, but unless you are looking for tiny
critters in the muck that don’t really move around much
(such as a pygmy seahorse on a sea fan, and even so you
might never spot them due to their camouflage), you are
left banking on luck and chance for the big fish (i.e. pelagic
species). You may very well spend an entire dive out in the
blue looking for sharks, and not seeing anything bigger than
an angelfish. Or you could just hop into the water, ready
to descend and look for said sharks, only to see a turtle
lazing around barely five metres below you, and a manta
ray gracefully gliding towards you to find out what all that
commotion is about (both happened recently, by the way).
The action doesn’t always occur under the surface. Take for
example, a recent trip I made to Layang Layang (which is a
small island in the middle of the South China Sea, and can
be reached by an hour’s flight from Kota Kinabalu Airport).
True, I’ll admit the term is used rather generically, since I
also (rather inaccurately) refer to other forms of marine life,
such as dolphins, turtles, crustaceans … well, you get the
idea. But for convenience, let’s stick to the term “fish”.
At any dive trip, in any location, anywhere in the world, all
a diver really wants to do is to see fish (or, in my case,
take photos of fish). If you ask a diver where his or her next
trip will be, the answer will invariably be a location, followed
by fish. It could be the elusive whale shark in (maybe)
Christmas Island or the Similan Islands, sunfish and manta
rays in Bali, thresher sharks in Malapascua or even just a
clownfish (finding Nemo!) or turtle in the nearby shores of
Tioman. Certain hardcore divers would go one step further
and tell you that the murky waters of Pulau Hantu off the
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The Young Lawyer
The plan was to go there to look for hammerhead sharks
(refer to above reason for diving). Thankfully, we succeeded
on more than one occasion, but that’s not the point here.
On our way back to the resort after one of our dives, the
speedboat crossed paths with a pod of wild spinner dolphins.
We then spent about 20 minutes just travelling along with
the dolphins, watching them frolic in the water, and some of
us even grabbed our masks and fins and gleefully leapt into
the water to join in the fun. True, you could probably pay to
swim with dolphins at an aquarium or marine theme park,
but this was 20 minutes of unplanned and unadulterated
“National Geographic”-style fun, which served to complete
what was already a great trip.
So what’s stopping everyone from grabbing a pair of
fins and jumping on that first flight to the nearest diving
destination? Well, a lot of people worry about the dangers
and risks of diving, which impression has not been improved
by Hollywood (think shark attacks in Jaws and being
abandoned and lost at sea in Open Water, for instance).
Is diving risky? Definitely. Diving is generally regarded as
a high-risk activity, which is why a fair number of insurance
policies do not cover diving (although that trend is shifting
gradually in recent years to allow coverage for recreational
diving up to a certain depth). There are the risks of diving
related injuries, such as the chance of decompression
sickness (bubbles forming in your bloodstream, which
is generally not a good thing) if you ascend too quickly,
or nitrogen narcosis (think of it as getting drunk deep
underwater, also not generally a good thing) if you descend
too deep. Then there are the risks of being under the sea
(such as changeable ocean currents and poisonous and
venomous creatures that should not be handled). And
of course, being totally reliant on mechanical breathing
apparatus and a tank of compressed air is always a cause
for concern.
However, if you are careful, listen closely to the dive guide
and check your equipment properly before use, these risks
can all be managed. With diving, there is the luxury of time
to properly check and test your equipment before you jump
into the water each day, and to learn of any potential hazards
at the dive site to watch out for from the more experienced
dive guides. In fact, I have heard it said that diving is no
more dangerous than crossing the road or driving a car. In
all cases, as long as you check carefully and are cautious,
you will generally be fine. You could just as easily get bitten
by a shark when diving as you could get hit by a speeding
car or drunk driver. Actually, given the ratio of shark attacks
and road traffic accidents recently, statistically speaking, the
latter might be more likely.
► Yeo Boon Kiat
Allen & Gledhill LLP
Columns
Viewpoint
Women’s rights have come a long way since 1912, when the first International
Women’s Day was celebrated. How far have laws progressed to protect women,
and what more can be done?
Women’s Rights: The Road to Women’s
Liberation
March 8, 2012 marked the 100th anniversary of International
Women’s Day. Looking back, it’s remarkable to note the
progress women all over the world have made. From
the Women’s Strike for Equality in August 1970 in New
York, where over 20,000 women rallied for their rights in
conjunction with the 50th anniversary of the passing of the
Nineteenth Amendment to the United States Constitution,
which effectively gave American women the right to vote,
to a similar gathering two years ago, again in New York,
but this time against war, women’s voices have become
stronger.
Last year alone consisted of several milestones. Singapore
witnessed its first SlutWalk in December, following many
others around the world, the first being in Toronto in April
2011. Opinion on these marches may be divided; the name
alone is controversial. Seen in the light of an expression
of women rallying together for a cause of some meaning,
however, the walk succeeded in bringing the issue of victimblaming into the public arena. In the Middle East, often
derided as a highly patriarchal society, women protested
alongside men on the frontlines of anti-government
demonstrations and helped bring about a revolution.
Compared to 20 years ago, Singaporean women definitely
have more power and freedom today. We see them in maledominated professions, heading companies, and having the
choice to dictate their paths in life. However, is it really all
rosy? As progressive a society as Singapore is, women
still face discrimination at work, in social settings and on
occasions, even at home. Sexual harassment in the office is
a very real issue that is, unfortunately, not taken as seriously
as it should be. All too often, women endure inappropriate
comments made by their male colleagues but are afraid
to come forward for fear of losing their jobs. A 2008 study
by the Association of Women for Action and Research
(“AWARE”) found that 54 per cent of those surveyed had
experienced workplace sexual harassment.1 What’s more
cause for concern is the lack of specific laws in Singapore
that protect against sexual harassment.
This is in sharp contrast to the US, where there are
abundant laws dedicated to help victims of workplace
sexual harassment. Federal law against sexual harassment
falls under Title VII of the Civil Rights Act of 1964.2 Under
this law,3 “unwelcome sexual advances, requests for sexual
favours, and other verbal or physical conduct of a sexual
nature constitutes sexual harassment when submission to
or rejection of this conduct explicitly or implicitly affects an
individual’s employment, unreasonably interferes with an
individual’s work performance or creates an intimidating,
hostile or offensive work environment”.
An important aspect of Title VII is that it protects employees
who file sexual harassment charges. Where a major
concern is the fear of losing a job, this law allows for and
encourages victims to come forward. In fact, not only
is sexual harassment against the law in the US, so is
retaliating against someone who comes forward. Another
noteworthy point is that the complainant or plaintiff does not
necessarily have to be a victim of the harassment in order
to file a complaint.
In Australia, the Commonwealth Sex Discrimination Act
1984 prohibits “unwelcome sexual advances” or “conduct
of a sexual nature” in a wide variety of situations, including
at the workplace.4 In Britain, Prime Minister David Cameron
recently announced plans to criminalise “verbal, non-verbal
or physical” sexual harassment in the UK.5
Even other Asian countries have distinct laws protecting
against sexual harassment. India’s Prohibition of Sexual
Harassment of Women in the Workplace Bill was passed in
2010.6 In 2005, China amended its law7 on Women’s Rights
Protection to include a prohibition of sexual harassment,
and empowering them to lodge a report in such instances.
These countries are not entirely known for their strong
stance on women’s rights, but they have clearly made
efforts to initiate a fair system for women. Considering this
global trend and the fact that statistics from AWARE does
evidence that sexual harassment is prevalent in Singapore,
it does beg the question as to why we are not instituting
laws to protect against such conduct specifically?
Currently, the only options available to victims are civil suits.
Under s 13A or 13B8 of the Miscellaneous Offences (Public
Order and Nuisance) Act, offenders may be prosecuted for
using threatening or abusive words, or displays of writing,
Columns
Viewpoint
signs or visual representations in order to cause harassment,
alarm or distress. Police can further classify the case under
s 354 or s 509 of the Penal Code9 if the victim’s modesty
has been outraged through assault or use of criminal force
or through a word or gesture that is intended to insult the
modesty of a woman. However, the victim is not adequately
protected and may even lose her job. The adequacy of the
criminal law may not quite apply to such cases, if outright
violence is not used. In many instances, sexual harassment
comprises lewd comments or gestures, which arguably
means these cases may not fall for prosecution.
Some international multinational corporations here have
internal frameworks and guidelines in place, that educate
their Human Resources Department on how to deal with
sexual harassment complaints. Unfortunately, statistics
are bare as to how many local organisations adopt such
measures. Perhaps there should also be a law that makes
it compulsory for companies to do so.
Sexual violence or rape has received its fair share of
limelight of late. SlutWalk Singapore, held last December,
helped bring the issue of victim-blaming to the forefront.
The event was so highly publicised that the topic caught the
attention of the Government. During the February 14 sitting
of Parliament, s 157(d) of the Evidence Act was officially
repealed.10
It provides:
The credit of a witness may be impeached in the
following ways by the adverse party or, with the consent
of the court, by the party who calls him: ….
(d) when a man is prosecuted for rape or an attempt
to ravish, it may be shown that the prosecutrix was of
generally immoral character.
Essentially, it meant that a woman’s sexual history can be
held against her in rape cases. The repeal of this section
took some time, but it signals a step in the right direction.
Rape victims should not have to justify their actions or defend
themselves. The law is seized adequately of safeguards for
the accused.
A majority of rape cases go unreported because victims are
afraid to come forward. This may be due to embarrassment,
fear of being ridiculed or the state of trauma they may still
be in. According to the 2010 International Violence Against
Women survey11 conducted by the Society Against Family
Violence and the National University of Singapore, 72 per
cent of abused women would not file a report. Almost 59
per cent of them were repeat victims. Those figures are
shocking but, sadly, there is still a social stigma surrounding
rape. Society often vilifies these women, judging them by
their outfits or behaviour or allowing for other indulgent
comment/proclivities. It is not difficult to imagine why many
would not have the courage to be open about their ordeal.
Those who do report the crime are subjected to humiliating
and insensitive cross-examination in Court. The repeal
of the provisions allowing for this is the tip of the iceberg.
Social perceptions will take a longer time to change.
As women become more educated, many choose to spend
time focusing on their careers. According to a 2010 UN
Labour Agency report,12 women made up about 40 per cent
of the workforce. It is poignant to ask if the glass ceiling
has been broken or scratched in light of statistics. Globally,
just 12 FORTUNE 500 businesses are led by women.13
In Singapore, only 6.8 per cent of directors on SGX-listed
boardrooms are females according to a 2010 study by the
NUS Business School.14 Women still face pay differentials
with men comparatively, though I acknowledge within the
professions this may not entirely hold sway.
In the political arena, official statistics worldwide show
that just 19.3 per cent of parliamentary seats were held by
women last year.15 In Singapore, that number stands at 20
out of a total of 90 seats.16
Women living in developing countries are plagued by a
different sort of injustice. Rape and sexual violence are
widespread in countries like Pakistan, India, Bangladesh,
Nepal and Burma. Weak legislation, cultural/rural divides
and attitudes prevent these women from seeking justice.
Women’s rights are not akin to human rights in these
nations, where Governments choose to spend more time
discussing issues such as economic development and
national security. Many young girls are still denied education
and made to work instead. They are forced into marriages
or sold off as slaves. These women do not even have the
privilege of basic healthcare.
In Thailand, approximately 48 per cent of the around 2.5
million low-skilled migrant workers are women, according
to the Bangkok office of the International Organisation for
Migration (“IOM”).17 Thailand is not a signatory of the UN
Convention Relating to the Status of Refugees,18 which
many of these migrant workers are, so they have few legal
rights. While these workers earn below minimum wage and
do not enjoy the same benefits as Thai workers, women
have it much worse. According to an IOM spokesperson,
‘’women generally get paid less than male migrants in the
same jobs.19 Pregnant women are often viewed as less
productive and can rarely access maternity leave benefits,
which has caused some migrant women to have unsafe
abortions’’.
Coming back to the first world, gender stereotypes still hold
true. Would many bat an eyelid when a woman decides to
become a homemaker? Not many, I am sure, because it is
Columns
Viewpoint
considered more the norm. But let us think about our reaction
if a man decides to do the same. Analysis by UK-based
think-tank, the Institute for Public Policy Research, shows
that eight out of 10 married women do more household
chores than their husbands.20 Just one in 10 married men
does an equal amount of housework as his wife. Women
often have to juggle a full-time job, household chores and
taking care of the family.
more to go. I have no doubt that women will fight for the
power and opportunities they deserve. But men should also
fight alongside them to ensure that society evolves into one
that believes in true equality of the sexes. The benefits are
to be revered. Not feared.
Michele Bachelet, head of the newly-formed UN Women
agency, recently said, “No country can claim to be entirely
free from gender-based discrimination.”
*The writer is Director for Corporate Affairs in the QI Group of
Companies. The writer significantly acknowledges and credits Ms Tesh
Kaur for the research and study in this article. The opinions and views
in this article are the writer’s own.
Can we work to narrow the gap in gender inequality?
► Zaheer K. Merchant*
E-mail: mailto:[email protected]
Notes
A sound legal framework helps. To that end, several
legislations are being passed all over the world that help
protect the rights of women. For instance, the Ministry of
Labour in Kenya recently passed a law setting a monthly
minimum wage for domestic workers.21 The law also entitles
domestic workers to at least two days of rest per week and 21
days of paid leave per year. In Singapore, domestic workers
are now entitled to a mandatory day off. Laws have been
strengthened in Zimbabwe to protect rape victims. Turkey,
too, approved laws on International Women’s Day, aimed
at protecting women and children from abuse. These laws
also force abusers to wear electronic monitoring devices.
For the first time since 1995, UN leaders have proposed
to hold a global conference in 2015, to discuss emerging
issues relating to women. While it is important, legislation
alone cannot liberate. Women, themselves, have to stand
up for justice. Perhaps we can borrow a page from the
roles Middle-eastern women have played in the Arab
Spring. During last year’s elections, 984 women contested.
Only two per cent of the seats in the new Parliament were
awarded to them but that did not stop Egyptian women from
marching to the Parliament building in Cairo to demand for
more freedom and equality on International Women’s Day.
Of course, the struggle is far from over for them, but the
point is they have started and are undeterred from achieving
the future they desire.
This article was brought about upon much reflection and
insinuation as to my perceived misogynistic attitude. But
the research and studies are compelling food for thought
– and the ineluctable conclusion that perhaps we as men
need to challenge the norms that society has propagated
about women. I am confident that “man” kind, especially
in a society as developed as Singapore, does not simply
place women in a box. I think the pervading bias has given
way and that women are respected for their intellect and not
vilified for their opinions, yet we seem to have some way
1.
http://www.ethicsworld.org/ethicsandemployees/PDF%20links/sexual_harassment_
singapore.pdf (Page 18)
2
http://www.eeoc.gov/laws/statutes/titlevii.cfm
3
http://www.eeoc.gov/eeoc/publications/fs-sex.cfm
4
http://www.comlaw.gov.au/Details/C2012C00313
5http://www.telegraph.co.uk/news/uknews/9130864/Wolf-whistling-could-be-madeillegal-under-new-European-convention.html
6http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf
7
http://www.china.org.cn/english/government/207405.htm (Chapter VI Article 40)
8http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=9bb71092-67bd-4beca7a6-873c0376c4a0,b4293c65-fa72-45af-9a87-dd123f71fa5c;page=0;query=CompI
d%3A5ec7f8d5-e5f9-4d6d-b8de-8a8586f7bfe4;rec=0;resUrl=http%3A%2F%2Fstat
utes.agc.gov.sg%2Faol%2Fbrowse%2FtitleResults.w3p%3Bletter%3DM%3Btype%
3DactsAll
9http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=560bf49c-3466-401aa381-3da0ca696e6b,dc5dcf0f-6bca-4fa8-80b3-1cbf588dfffc,8f242892-399b-424f939b-c2bf2fbe2f39;page=0;query=CompId%3Aeb12a2d5-b0dd-40ff-a416-d68fe4be
dfbc;rec=0;resUrl=http%3A%2F%2Fstatutes.agc.gov.sg%2Faol%2Fbrowse%2FtitleR
esults.w3p%3Bletter%3DP%3BpNum%3D1%3Btype%3DactsAll
10http://app2.mlaw.gov.sg/News/tabid/204/currentpage/2/Default.aspx?ItemId=615
11http://www.ncss.org.sg/vwocorner/research_gateway/Family_abstract_12.pdf
12http://www.ilo.org/empelm/pubs/WCMS_123835/lang--es/index.htm
13http://money.cnn.com/magazines/fortune/fortune500/2011/womenceos/
14http://www.boardagender.org/wp-content/uploads/2010/12/Press-Release-SingaporeBoard-Diversity-Index-2011March7.pdf
15http://www.channelnewsasia.com/stories/afp_world/print/1187896/1/.html
16http://www.ipu.org/wmn-e/classif.htm
17http://www.iom.int/jahia/Jahia/thailand
18http://www.unhcr.org/refworld/publisher,IRBC,,THA,3ae6abd61c,0.html
19http://www.bangkokpost.com/news/investigation/283835/voices-of-the-silent
20http://www.ippr.org/press-releases/111/8831/eight-out-of-ten-married-women-domore-housework-than-their-husbands
21http://www.globalpressinstitute.org/global-news/africa/kenya/wage-equality-timehorizon-domestic-workers-kenya
In
Practice
Legal Updates
Legislation
Foreign Limitation Periods Act (Commencement)
Notification 2012 (S234/2012) International
Arbitration (Amendment) Act (Commencement)
Notification 2012 (S235/2012)
On 28 May 2012, the International Arbitration (Amendment)
Act 2012 and the Foreign Limitation Periods Act 2012 (the
“FLPA”) were gazetted, notifying commencement for 1 June
2012.
1 June 2012: What Changed
1. Relaxation of the writing requirement in concluding a
valid arbitration agreement.
civil litigation, and then attempt to revert to a WICA claim
more than a year later.
2. Courts allowed to review an arbitral tribunal’s negative
jurisdictional rulings and order costs.
3. Enhancing requirements for work injury compensation
insurance: The employer’s insurer is not entitled to raise
any objection or defence on the ground that there is in
force another policy of insurance issued by another party
covering the same liability as the policy issued by the
employer’s insurer. However, in view of prevailing industry
practice in sectors where the main contractor’s insurer
compensates the injured worker, the Ministry of Manpower
(the “MOM”) will allow third parties to pay compensation
as long as they inform the MOM in writing of the intent to
pay compensation on behalf of the employer’s insurer,
before the notice of assessment is issued.
3. Clarification that arbitral tribunals are able to award interest.
4. Clarification that emergency arbitrator operates as an
arbitral tribunal.
5.FLPA: The applicable limitation period will be the rules of
the law that govern the dispute. This will apply not only
to arbitrations, but also to disputes litigated in Court.
Work Injury Compensation (Amendment) Act
(Commencement) Notification 2012 (S197/2012)
Pursuant to the Work Injury Compensation (Amendment)
Act 2012(A21/2011), the Work Injury Compensation Act (the
“WICA”) has been amended with effect from 1 June 2012 to
implement changes aimed at striking a fair balance between
compensation for injured employees and the obligations placed
on employers/insurers, as well as ensuring that the WICA
framework remains expeditious and employees may receive
compensation promptly.
Key Changes
1. The following are the key changes to the WICA:Higher
compensation limits: The minimum compensation for
death and total permanent incapacity will be increased to
S$57,000 (from S$47,000) and S$73,000 (from S$60,000)
respectively. The maximum compensation will also be
raised to S$170,000 (from S$140,000) and S$218,000
(from S$180,000) respectively.
2. Time limit for filing claims: Workers who file a common
law suit may not subsequently file a WICA claim for that
accident more than one year from the accident. This
amendment remedies the previous situation where an
employee who lodged a WICA claim within the one-year
timeframe, may subsequently withdraw the claim to pursue
4. Compensation for occupational diseases: Compensation
will be allowed for diseases resulting from exposure at
work to chemical or biological agents.
5. Work-related fights: Employer will no longer be liable
to compensate workers who are injured in a work-related
fight. However, employers remain liable to compensate if
the injuries are sustained in work-related fights while the
employee is acting in self-defence, acting in the defence of
another or under the instruction or consent of the employer
to break up the fight.
Relevant Subsidiary Legislations Issued
To further implement the changes to the Work Injury Compensation
Act, the following subsidiary legislation have been issued and
are all effective from 1 June 2012:
1. Work Injury Compensation (Amendment) Regulations
2012 (S198/2012).
2. Work Injury Compensation Insurance (Amendment)
Regulations 2012 (S199/2012).
3. Work Injury Compensation Act (Amendment of Second
and Third Schedules) Order 2012 (S200/2012).
► Elizabeth Wong
Allen & Gledhill LLP
Lifestyle
Alter Ego
Learning the Practice of Law
Dear Friends Who Have Just Been Called to the Bar
By the time you read this column, you would have
been admitted as an Advocate and Solicitor to our Bar.
Congratulations! Welcome to one of the most honourable
and privileged professions in the world. After completing
five years of legal training, you must be excited to finally
embark on your legal career. You would have heard a lot
about the practice of law from your seniors in law school,
your supervising solicitor and colleagues.
I am now in my 16th year of practice but I still recall very
clearly my own trials and tribulations in my journey to
becoming a lawyer. I remember being totally frustrated from
the stress of studying for the English Bar examinations. Is
it all worthwhile? I asked myself one day whilst preparing
for the Bar examinations. I will just qualify and practise for
three years and do something more interesting with my life
thereafter, I promised myself then.
Pupillage (the predecessor to the legal training contract)
was uneventful. Caught up in the hustle and bustle of
practice in one of the oldest and most prestigious law firms,
I soon forgot the three-year timeline I had set myself and
before I knew it, I had completed six years. In my sixth year,
fatigue set in. I started to re-examine my life. What should
I do next? I decided to leave my job in August 2002, much
to the surprise of my supervising partner who, when he
realised that I did not have another job, asked, “Don’t you
have a mortgage to pay?” Luckily for me, I had no liabilities
of any sort, except to support myself. The entrepreneurial
bug had infected me very badly by then. But I decided to
put the next phase of my professional life on hold, as I had
decided to spend some time resting and travelling. I did just
that for the next few months, and after several months of
travel, I came back and decided to start my own law firm.
That was in April 2003. I chronicled this period of my life in
my April 2004 column.
My pupil master (the predecessor to supervising solicitor),
Ronnie Quek had imparted certain life lessons which I
admittedly did not understand then but which I am constantly
reminded of untill today. Here are two of the lessons I learnt
from him and some others which I discovered myself along
the way.
“Life is Nothing but About Working Hard”
One day in 1997, over coffee, he uttered this phrase. I
looked at him blankly. It took me 16 years to fully understand
what he meant.
The practice of law requires nothing less than that. That is
why it is neither a job nor a career. It is a calling. It requires
the maximum output and sacrifice. It is hardly a nine-to-five
job. It is a privilege of being held in confidence by clients
and being given the honour to help them to reach solutions
to their legal problems. It is never boring but always
challenging and interesting. It is hectic and often consumes
all our time and life. It leads to fatigue and loss of personal
time.
I further interpret what Ronnie said to mean that not only
should we work hard at our jobs but in other aspects of our
life as well. To be an effective lawyer, one must have other
interests which we enjoy, are committed to and work hard
at. It could be anything from playing soccer, golf, bowling,
to fishing, brewing beer, doing volunteer or pro bono work,
cooking, reading, writing or cultivating strong personal
relationships with loved ones.
“Treat the Client’s Problem As If it is Your Own”
Ronnie lamented how young lawyers do not seem to come
up with practical and creative legal solutions and preferred
to run to their partners for the answers. “If you treat the
problem as if it were yours, you will find solutions to it,” he
said firmly.
To do so, a lawyer must take serious ownership of his
work, be prepared to spend time and effort to do extensive
research and work hard at finding a solution to the problem
at hand.
I have held only three jobs in my entire life – in a boutique
family law firm before I went to law school, in a large firm,
and now in mine. The previous two jobs taught me valuable
lessons which made me realise that working in good law
firms and continuously learning on the job are crucial.
Good Drafting Skills
I am glad to have been trained well in this very important
skill in my previous jobs. The lessons that I have learnt
from my former bosses are: think through carefully before
drafting, consider the legal issues very carefully, draft tightly
and cover all possibilities, implications and queries (“there
should not be holes for a train to go through your draft,” one
said). A good command of the language is so very important
in law practice.
Accuracy in the Work
In both firms, I was taught over and over again painfully
to check my work very carefully. The standards were very
high. It is considered a good day if my partner merely gives
me a look after spotting a mistake and tells me to check
my work! Typographical errors are a big no-no and even
punctuation marks should be in the right place. There was
no back door to blame a secretary for the mistakes.
Excellent Work Ethics
Punctuality in reporting to work, submission of work and
attending Court hearings are also the order of the day.
Lifestyle
Alter Ego
More young lawyers now wish to create niche practices,
be it in criminal law or family law, at the beginning of their
practice and choose the boutique firms they wish to practise
in. Others feel that working in small law firms is a better
option for them.
Striking the Balance
Nowadays, I understand that even uniformity in dress code
is essential in some law firms.
A new lawyer requires further training and guidance even
after completion of the training contract. Adopting the right
attitude towards such guidance from your supervising
partners or seniors will put you in good stead and enable
you to complete your work in the most productive manner.
You would have heard many kinds of stories about law
practice. Some of you may want a cushy job – perhaps an
in-house position or the legal service. To me, the starting
question is “why?”.
Why be a Lawyer?
Nowadays, career options are plenty and a law degree is a
good entry to many jobs. I would go further back and ask
why one went to law school in the first place. It could be
encouragement or even pressure from parents or perhaps
there were no other viable options, as some interns have
shared with me.
One must be very clear about the purpose of practising law.
Is it for the status or the money or helping to make the world
a better place to live in? I do not think that lawyers enjoy
such a high status in society today. Frankly, the financial
rewards do not compensate for the opportunity cost of law
practice. And, believe me, the idealism of changing the
world will quickly erode in the initial years of your practice.
So, there must be a personal conviction for being a lawyer.
It can be a very simple reason. For me, it is because I
can use my legal training to help people solve their legal
problems. Second, I enjoy the business of law. The reasons
may evolve over time, but it is so important to find them.
You have to remind yourself of those very reasons during
the lows of law practice – when you are working late nights
and weekends. Even today, I remind myself of the reasons
during my very busy spells where I work 14-hour days, six
days a week. Sometimes I tell myself there must be an
easier way to live life and make money.
Creating Your Own Individual Law Practice
Knowing and creating the type of law practice which
interests and excites you is a good starting point. As it was
in the past and is today, it is very attractive to work in the
large law firms or be a corporate lawyer. I was one such
young lawyer then and it did not take me long to realise that
neither suited me.
Having interacted with many young interns, trainees and
lawyers over the years, I understand the value they place
on work-life harmony. Burn-out is a common phenomenon
nowadays. Recently, my paralegal experienced burn-out
after working 14-hours days for about three months and she
topped it by working during the weekend as well despite my
advice not to do so.
It is difficult to strike this elusive balance. But it is an important
and a very delicate, personal balance which you must
strike. There is no one way or right way. Some leave work
early and continue working at home later in the evening. A
young lawyer in a medium size law firm was sharing with me
recently that he works 13 hours, four days of the week and
leaves at 6.00pm sharp on one other day. Others come into
the office early. I know of a friend who comes in at 6.00am.
Others spread out their work by coming in for a few hours
on a weekend.
The Initial Years
No matter how well you performed in law school, in your
Part B and the kind of supervision you received during your
training contract, the beginning is very difficult. You will be
spending a lot of time to get your work completed and to find
your way around. You may have very busy and demanding
bosses whom you feel are difficult to work with. Do not lose
heart and hope. Talk to your seniors, your friends or drop
me an e-mail. Quitting must only be a last resort. Take an
occasional break to rest and take time to discover the kind
of legal work that you enjoy. If you love what you do, you will
do it at all costs.
Like all things in life, dedication, hard work and continuous
practice will help you to become a good lawyer. The journey
to becoming a good lawyer is a lifelong learning process.
Sincerely,
Rajan
► Rajan Chettiar
Rajan Chettiar & Co
Notices
Pursuant to s 93(5) of the Legal Profession Act, the Council of the Law Society is
required to publish the findings and determination of the Disciplinary Committee in
the Singapore Law Gazette or in such other media as the Council may determine to
adequately inform the public of the findings and determination.
This summary is published pursuant to the requirement of s 93(5) of the Legal
Profession Act.
Findings and Determination of the Disciplinary
Committee
In the Matter Gopalan Nair (aka Pallichadath
Gopalan Nair), an Advocate and Solicitor
The respondent was a non-practising advocate and solicitor
who had committed two offences under the Miscellaneous
Offences (Public Order and Nuisance) Act (Cap 184,
1997 Rev Ed) for using abusive words and behaving in a
disorderly manner towards officers of the Singapore Police
Force. Additionally, the respondent’s conduct amounting to
contempt of Court and of insulting members of the judiciary
via blog postings resulted in the Law Society preferring five
charges against the respondent for misconduct unbefitting
an advocate and solicitor as an officer of the Supreme Court
or as a member of an honourable profession under s 82(A)
(3)(a) of the Legal Profession Act.
The following are the five charges that were brought against
the respondent: First Charge
That you on the 4th day of July 2008, at or about 10.35pm,
near the junction of Bukit Timah Road and Race Course
Road, Singapore, which is a public place, did use abusive
words towards certain public servants, namely, police
officers of the Singapore Police Force, in particular Senior
Staff Sergeant Kang Wei Chian and Sergeant Noor Azhar
Daud, by shouting:
1. “Fuck off you policeman, don’t waste my fucking time.
You go and do your job properly and go catch thieves
and I did nothing wrong. I am waiting for the fucking
taxi”
2. “Fuck off, forget about my name, you fucking bastard”
3. “You fucking Malay bastard”
at the said police officers in the execution of their duties as
such public servants, and you had thereby committed an
offence punishable under s 13D(1)(a) of the Miscellaneous
Offences (Public Order and Nuisance) Act, Chapter 184
for which on 5 September 2008 you were convicted and
sentenced to a fine of $2,000 in default of two weeks’
imprisonment, and you are hereby guilty of conduct
unbefitting an advocate and solicitor as an officer of the
Supreme Court or as a member of an honourable profession
which warrants disciplinary proceedings against you within
the meaning of s 82A(3)(a) of the Legal Profession Act.
Second Charge
That you on the 4th day of July 2008 at or about 10.35pm
near the junction of Bukit Timah Road and Race Course
Road, Singapore, which is a public place, did behave in a
disorderly manner, to wit, by gesticulating with your hands
and shouting loudly, and you had thereby committed an
offence punishable under s 20 of the Miscellaneous Offences
(Public Order and Nuisance) Act, Chapter 184 for which on
5 September 2008 you were convicted and sentenced to a
fine of $1,000 in default of one week’s imprisonment, and
you are hereby guilty of conduct unbefitting an advocate and
solicitor as an officer of the Supreme Court or as a member
of an honourable profession which warrants disciplinary
proceedings against you within the meaning of s 82A(3)(a)
of the Legal Profession Act.
Third Charge
That you in your blog post at http://singaporedissident.
blogspot.com dated 29 May 2008 entitled Singapore, Judge
Belinda Ang’s Kangaroo Court, did make the following
offending statement insulting the judiciary of Singapore,
namely, the Honourable Justice Belinda Ang: “The judge
Belinda Ang was throughout prostituting herself during
the entire proceedings, by being nothing more than an
employee of Mr Lee Kuan Yew and his son and carrying out
their orders”.
and you had thereby committed an offence punishable
under s 228 of the Penal Code, Chapter 224 for which on
Notices
17 September 2008 you were convicted and sentenced to
three months’ imprisonment, and you are hereby guilty of
conduct unbefitting an advocate and solicitor as an officer
of the Supreme Court or as a member of an honourable
profession which warrants disciplinary proceedings
against you within the meaning of s 82A(3)(a) of the Legal
Profession Act.
Fourth Charge
blogspot.com dated 28 November 2008 entitled Hello from
Fremont, near San Francisco, California, did make the
following offending statement amounting to contempt of
Court: “… I am defying the undertaking that I gave in court
on September 12, 2008 when I admitted being in contempt
of court. … I had also given an undertaking to remove the 2
blog spots, of Sept 1, 2008 and Sept 6, 2008 which referred
to my trial and conviction before Judge James Leong in the
Subordinate Courts for disorderly behaviour and insulting
a policeman, charges entirely made up by the police to
discredit me. I will be re-posting those 2 blog posts and
stand by every word that I had written in them …” (sic).
and you are hereby guilty of conduct unbefitting an
advocate and solicitor as an officer of the Supreme Court or
as a member of an honourable profession which warrants
disciplinary proceedings against you within the meaning of
s 82A(3)(a) of the Legal Profession Act.
Fifth Charge
blogspot.com dated 30 November 2008 entitled Justice
Judith Prakash. Another Kangaroo Judge, did make the
following offending statement insulting the judiciary of
Singapore, namely, the Honourable Justice Judith Prakash:
“Judge Judith Prakash of the Supreme Court Singapore
has prostituted herself in her capacity as a judge hearing
the Kangaroo T shirt case on November 24, 2008 by being
nothing more than an employee of Lee Kuan Yew and his
son, whom he appointed Prime Minister. By her actions in
sending these young men to prison and making them pay
crippling court costs of $5,000.00 each, she has shamelessly
disgraced herself, her office of a judge, disgraced the
Singapore Constitution and disgraced Singapore”.
and you are hereby guilty of conduct unbefitting an
advocate and solicitor as an officer of the Supreme Court or
as a member of an honourable profession which warrants
disciplinary proceedings against you within the meaning of
s 82A(3)(a) of the Legal Profession Act.
Findings of the Disciplinary Tribunal
The respondent was not acting in the discharge of any
professional duty as an advocate or solicitor on 4 July
2008. Under s 82(A)(3)(a) of the Legal Profession Act,
“misconduct unbefitting an advocate and solicitor” is not
confined to misconduct in the discharge of a solicitor’s
professional capacity but also extends to misconduct in
the solicitor’s personal capacity as seen in Law Society of
Singapore v Heng Guan Hong, Geoffrey [1999] 3 SLR(R)
966 , at [25] and Law Society of Singapore v Ng Chee Sing
[2000] 2 SLR 165 at [40]. The Disciplinary Tribunal was,
therefore, entitled to take into account the nature of the
offence committed as well as the penalty that was meted
out. The Disciplinary Tribunal noted that not every violation
of criminal law makes the offender unfit to be a member
of the legal profession. However, while, the circumstances
under which the offence was committed are relevant,
whether or not the offence was committed in the course of
discharging his professional duty was not.
The Disciplinary Tribunal took a very dim view of the
respondent’s conduct, in particular the verbal abuses
which diminished the professionalism of members of
the police force. Further, the fact that these abuses were
spewed in public aggravated the gravity of the respondent’s
misconduct. In relation to the blog postings, the Disciplinary Tribunal
found that there was absolutely no doubt that the respondent
had conducted himself in an utterly unpardonable,
contemptuous and reprehensible manner in the accusations
he had made against the High Court Judges. The language
used throughout the blog of 29 May 2008 as well as
the respondent’s statement of 1 June 2008 was totally
demeaning, provocative and offensive towards the Judge
as well as the political leaders. The respondent’s authorship
and posting of such a blog amounted to scandalising the
Court and was calculated to lower the dignity, reputation
and esteem of the Singapore judiciary to a potentially wide
internet audience. This created a real risk of the postings
undermining public confidence in the administration of
justice and had, therefore, an inherent tendency to interfere
with the administration of justice and such an act was a
contempt of Court.
The Disciplinary Tribunal noted that in Attorney-General
v Times Newspaper Ltd [1974] AC 273 the justification
behind the law on contempt of Court lies in maintaining
public confidence in the administration of justice, rather
than in protecting the personal dignity or sensibilities of the
Judges. It is to the effect of an act or statement that one
should look. It does not matter that there is no intention to
undermine public confidence so long as the act or statement
itself is intentional. Any act done or writing published which
is calculated to bring a Court or a Judge of the Court
into contempt or to lower his or her authority, amounts to
contempt of Court.
At the end of the proceedings, the Disciplinary Tribunal
found the respondent guilty of all five charges and found
under s 82A(10) (as opposed to s 93(1) as the respondent
was a non-practising solicitor) of the Legal Profession Act
that cause of sufficient gravity for disciplinary action exists
against the respondent. Pursuant to s 82(A)(13) of the
Legal Profession Act, the respondent was also ordered to
pay costs.
Notices
Council’s Decision
Council accepted the findings and determination of the
Disciplinary Committee and pursuant to s 94 of the Legal
Profession Act, applied under s 98 of the said Act for “show
cause” proceedings against the respondent.
The Court of Three Judges
entrusted to you by the complainants in accordance with
the terms of the Stakeholder Agreement as set out in paras
3 to 13 of the Statement of Case and such breach of the
Rules amounts to misconduct unbefitting an advocate and
of an honourable profession within the meaning of s 83(2)
(h) of the Legal Profession Act.
Second Charge
After taking all charges into account, the Court of Three
Judges was of the view the facts in the third, fourth and fifth
charges in particular disclosed a contemptuous disrespect
on the part of the respondent towards the Judges concerned
and such egregious misconduct was totally unacceptable.
The respondent was accordingly struck off the Roll of
advocates and solicitors of the Supreme Court of Singapore
and costs were awarded to the Law Society.
In the Matter of Ng Bock Hoh Dixon, an Advocate
and Solicitor
The proceedings arose from a complaint by Messrs Integrax
Berhad (the “Complainant”), a listed company on the Kuala
Lumpur Stock Exchange, made on its behalf by its chairman
Encik Harun bin Halim Rasip, to the Council on the conduct
of the respondent for non refund of US$100,000 alleged to
have been held by the respondent as a stakeholder. The
complainant had initially engaged the respondent to help
it secure port development projects in Cambodia and had
paid him the disputed sum of US$100,000 in relation to this.
That you, Dixon Ng Bock Hoh, an Advocate and Solicitor at
the material time, willfully and knowingly rendered a bill to
the complainant (being Bill No. B.0001.CAM.06) stating in
the said bill that it was rendered in respect of your “Agreed
costs in introducing and working towards turn key project
for the operations and management of Sihanoukville
Port, Cambodia” knowing that statement to be false and
such conduct amounts to grossly improper conduct in the
discharge of your professional duty within the meaning of
s 83(2) (b) of the Legal Profession Act.
Third Charge
The following charges were preferred against the respondent
at the onset of the proceedings.
the material time, are guilty of a breach of r 3 of the Legal
Profession (Solicitors’ Accounts) Rules, Legal Profession
Act (the “Solicitors’ Accounts Rules”), in that you failed to
pay client’s money (as defined in the Solicitors’ Accounts
Rules) ie, the US$100,000 paid to the law firm by the
Complainant, into a client account and such breach of the
Rules amounts to grossly improper conduct in the discharge
of your professional duty within the meaning of s 83(2) (b) of
the Legal Profession Act.
First Charge
Fourth Charge
the material time, are guilty of a breach of r 12 of the Legal
Profession (Professional Conduct) Rules, Legal Profession
Act (the “Rules”), in that you failed to use all reasonably
available legal means consistent with your retainer to
advance the interests of the complainants in the matter
entrusted to you by the complainants ie, in carrying out
your obligations as a stakeholder of monies entrusted to
you by the complainants in accordance with the terms of
the Stakeholder Agreement and such breach of the Rules
amounts to grossly improper conduct in the discharge of
your professional duty within the meaning of s 83(2) (b) of
the Legal Profession Act.
the material time, failed to honestly co-operate and willfully
failed to provide accurate information and explanations
to your accountants for the purposes of their preparation
of the Accountant’s Report provided for under s 73 of the
Legal Profession Act by providing inaccurate information
to them about the Bill and/or the nature of the payment
of US$100,000 to the law firm by the complainant and
such conduct amounts to grossly improper conduct in the
discharge of your professional duty within the meaning of s
83(2) (b) of the Legal Profession Act.
Alternative First Charge
the material time, failed to honestly co-operate and willfully
failed to provide accurate information and explanations
to your accountants for the purposes of their preparation
of the Accountant’s Report provided for under s 73 of the
Legal Profession Act by providing inaccurate information
to them about the Bill and/or the nature of the payment of
US$100,000 to the law firm by the complainant and such
conduct amounts to conduct unbefitting an advocate and
That you, Dixon Ng Bock Hoh, an Advocate and Solicitor
at the material time, are guilty of a breach of r 12 of the
Legal Profession (Professional Conduct) Rules, Legal
Profession Act (Chapter 16) (the “Rules”), in that you failed
to use all reasonably available legal means consistent with
your retainer to advance the interests of the complainant
in the matter entrusted to you by the complainant ie, in
carrying out your obligations as a stakeholder of monies
Alternative Fourth Charge
Notices
Fifth Charge
Solicitors’ Account Rules, in that you failed to honestly cooperate and willfully failed to provide accurate information
and explanations to the Council for their purposes of their
inspection of the law firm’s book of account and other
relevant accounting documents by providing inaccurate
information to them about the Bill and/or the nature of the
payment of US$100,000 to the law firm by the complainant
and such conduct amounts to grossly improper conduct in
the discharge of your professional duty within the meaning
of s 83(2)(b) of the Legal Profession Act.
Alternative Fifth Charge
Solicitors’ Account Rules, in that you failed to honestly cooperate and willfully failed to provide accurate information
and explanations to the Council for their purposes of their
inspection of the law firm’s book of account and other relevant
accounting documents by providing inaccurate information
to them about the Bill and/or the nature of the payment of
US$100,000 to the law firm by the complainant and such
conduct amounts to conduct unbefitting an advocate and
Findings of the Disciplinary Tribunal
The Disciplinary Tribunal noted that the key factual dispute
relates to the nature of the deposit of US$100,000 (the
“deposit”), with the respondent. The Disciplinary Tribunal
had to determine whether the deposit was, as alleged by the
complainant, a straightforward stakeholding arrangement,
or whether it was instead, as asserted by the respondent,
a device to enable the complainant to effect payment to
the ambodian ruling party or government to demonstrate
goodwill and/or seriousness of intent. The Law Society’s
case was that the sum of US$100,000 had been paid
towards a stakeholding arrangement.
The Disciplinary Tribunal determined that the burden of
proof was on the Law Society to prove its case beyond a
reasonable doubt.
The Disciplinary Tribunal found that the First Charge,
Alternative First Charge and the Third Charge were not made
out as the Law Society did not manage to prove beyond a
reasonable doubt that the true arrangement between the
parties was to enter into a stakeholding agreement.
In relation to the Bill No. B0001.CAM.06 (the “Bill”), which
had been ostensibly rendered to the complainant, the
Disciplinary Tribunal found that it was a sham; as it was
not for professional charges or costs incurred by the
respondent for professional legal work. It was found to have
been used to pay a third party, believed to have influence
within the Cambodian government or the ruling party. It was
also determined that there was no willful falsity vis-à-vis the
complainant.
The gravamen of the Second Charge was that the Bill
rendered by the respondent contained a statement known
by him to be false. The respondent admitted being a party to
a (possibly illicit) arrangement to secure a port concession
and that the bill rendered by him was part of the scheme to
mask this (possibly illicit) arrangement.
Moreover, by admitting that the Bill was a sham, the
respondent had thus failed to provide accurate information
and explanations to the law firm’s accountant and the Law
Society about the true nature of the said Bill. This caused
the law firm’s auditors to prepare and issue an unqualified
Accountant’s Report for the financial year 2006 and 2007
based on the assumption that the said Bill was accurate.
Similarly, when the Council of the Law Society conducted
an investigation in 2007 of the law firm’s accounts and files,
Council also proceeded on the basis that the said Bill was
accurate.
In the circumstances, the Disciplinary Tribunal determined
under s 93(1) (c) of the Legal Profession Act that cause of
sufficient gravity for disciplinary action exists under s 83(2)
(b) of the Legal Profession Act and that the Second, Fourth
and Fifth charges preferred against him by the Law Society
were made out.
Given the Disciplinary Tribunal’s determinations in respect of
the Fourth and Fifth Charges, no determinations were made
on the Alternative Fourth and Alternative Fifth Charges.
Council’s Decision
Council accepted the findings and determination of the
Disciplinary Tribunal and pursuant to s 94 of the Act, applied
under s 98 of the said Act for “show cause” proceedings
against the respondent.
The Court of Three Judges
The Court of Three Judges found that the Law Society
had proved the charges and ordered that the respondent
be struck off the Roll of advocates and solicitors of the
Supreme Court of Singapore.
Notices
Professional Moves
New Law Practices
Mr Peter Moe (formerly of Sim Teck
& Associates) has, with effect from 26
April 2012, commenced practice under
the name and style of Peter Moe Law
Practice at the following address and
contact numbers:
150 South Bridge Road
#02-30 Fook Hai Building
Singapore 068727
Tel: 6532 4518
Fax: 6532 5410
Mr Yuen Wei Loon Samuel (formerly
of David Lim & Partners LLP) has, with
effect from 2 May 2012, commenced
practice under the name and style of
Yuen Law LLC at the following address
and contact numbers:
Tel: 6222 3390
Fax: 6226 7096
Mr Teo Kwan Soon Paul and Mr
Chan Ju-Lian (both formerly of J Chan
& Associates) have, with effect from
1 June 2012, commenced practice
under the name and style of Thomson
Legal LLP at the following address and
contact numbers:
1 Thomson Road
#04-336G
Singapore 300001
Tel: 6353 5352
Fax: 6353 5139
105 Cecil Street
#03-02 The Octagon
Singapore 069534
Tel: 6337 6191
Mr Narayanan Sangkoo David
(formerly of S K Kumar Law Practice
LLP) has, with effect from 17 May
2012, commenced practice under the
name and style of David Nara Law
Practice at the following address and
contact numbers:
Kothadhabani
Parasuram
Mr
(formerly of Roy & Partners) has, with
effect from 3 May 2012, commenced
practice under the name and style of
Param & Co at the following address
and contact numbers:
27 Foch Road
#03-02 Hoa Nam Building
Singapore 209264
Tel: 6396 4347
Fax: 6392 2960
101A Upper Cross Street
#04-31 People’s Park Centre
Singapore 058358
Tel: 9627 2952
Fax: 6533 0658
Mr Chang Shern Hin and Mr Edward
Stanley Tay Wey Kok (both formerly
of Wong Chang & Tay Partnership)
have, with effect from 24 May 2012,
commenced practice under the name
and style of Continental Law LLP
at the following address and contact
numbers:
101 Cecil Street
#12-09 Tong Eng Building
Singapore 069533
Conversion of Law Practices
The sole practice of Yap Loh &
Partners converted to a partnership,
Yap Loh & Partners, on 10 May 2012.
The address and contact numbers of
the firm remain unchanged.
The following are Partners of the
partnership of Yap Loh & Partners: Mr
Loh Kim Kee and Mr Justin Tan Wei
Loong.
Dissolution of Law Practices
The law practice of H H Lim dissolved
on 1 April 2012. The Law Society
has been advised that there are no
outstanding matters pertaining to the
former law practice.
The law practice of J Chan &
Associates dissolved on 1 April 2012.
Outstanding matters of the former law
practice of J Chan & Associates have,
with effect from 1 June 2012, been
taken over by:
Thomson Legal LLP
1 Thomson Road
#04-336G
Singapore 300001
Tel: 6353 5352
Fax: 6353 5139
New Branch Office
Aziz Tayabali & Associates (Branch)
133 New Bridge Road
#11-10 Chinatown Point
Singapore 059413
Tel: 6533 0505 / 0572
Fax: 6535 3867
(wef 1 May 2012)
Change of Law Practices’
Addresses
Abraham Logan & Partners
101A Upper Cross Street
#09-07 People’s Park Centre
Singapore 058357
Tel: 6536 2119
Fax: 6536 2129
(wef 1 June 2012)
AbrahamLow LLC
24 Raffles Place
#07-02 Clifford Centre
Singapore 048621
Tel: 6535 6688
Fax: 6534 3606
(wef 9 May 2012)
Angela Chen
9 Raffles Place
#58-00 Republic Plaza
Singapore 048619
Tel: 6823 1462
Fax: 6823 1416
(wef 3 May 2012)
Notices
Professional Moves
B L Ang & Co
133 New Bridge Road
Singapore 059413
Tel: 6535 2577
Fax: 6535 7009
(wef 1 May 2012)
Lau & Gur
133 New Bridge Road
Singapore 059413
Tel: 6327 5477
Fax: 6532 5477
(wef 21 May 2012)
UniLegal LLC
112 Robinson Road
#06-03
Singapore 068902
Tel: 6236 2949
Fax: 6226 1993
(wef 28 May 2012)
Balasubramaniam & Associate
141 Middle Road
#04-02/03 GSM Building
Singapore 188976
Tel: 6236 2001
Fax: 6438 4031
(wef 1 June 2012)
LegalStandard LLP
3 Church Street
#23-02 Samsung Hub
Singapore 049483
Tel: 6535 7422
Fax: 6535 7170
(wef 4 June 2012)
Vision Law LLC (Main)
133 New Bridge Road
#18-01/02 & #10-03 Chinatown Point
Singapore 059413
Tel: 6534 2811
Fax: 6534 1120
(wef 16 May 2012)
G Mohan Singh
3 Church Street
#23-02 Samsung Hub
Singapore 049483
Tel: 6735 5736
Fax: 6737 4537
(wef 5 June 2012)
R S Balan & Co
151 Chin Swee Road
#03-08 Manhattan House
Singapore 169876
Tel: 6734 4207
Fax: 6734 4207
(wef 21 May 2012)
Vision Law LLC (Branch)
490 Lorong 6 Toa Payoh
#03-11 HDB Hub (Biz 3 Lobby 1)
Singapore 310490
Tel: 6358 0703
Fax: 6358 0448
(wef 16 May 2012)
H.A. & Chung Partnership
6001 Beach Road
#17-01 Golden Mile Tower
Singapore 199589
Tel: 6533 1824
Fax: 6532 3269
(wef 7 May 2012)
Rabi Ahmad & Co
180 Cecil Street
#07-04 Bangkok Bank Building
Singapore 069546
Tel: 6220 1451
Fax: 6220 1452
(wef 28 May 2012)
Change of Contact Numbers
Johan Ismail & Company
195 Pearl’s Hill Terrace
#01-36
Singapore 168976
Tel: 6538 8106
Fax: 6538 8081
(wef 19 May 2012)
Tan, Oei & Oei LLC
17 Carpenter Street
#04-01
Singapore 059906
Tel: 6532 5911
Fax: 6532 5966
(wef 2 May 2012)
William Oh & Partners
E-mail: williamohpartners@yahoo.
com.sg
Kelvin Lim & Partners
133 New Bridge Road
Singapore 059413
Tel: 6538 1198
Fax: 6538 1108
(wef 28 May 2012)
Dorothy Chai Law Practice
Tel: 6513 1348
Fax: 6535 2265
Change of E-mail Address
Notices
Information on Wills
Information on Wills
Name of Deceased (Sex)
NRIC
Date of Death
Last Known Address
Solicitors/Contact
Person
Reference
Yew Tian Sam (M)
S0642930J
4 September 2011
1A Chiltern Drive
Singapore 359766
Lee Bon Leong & Co
6222 3122
IL.6376.2012.ib.(DCP)
Wong Keng Chiong, Winston (M) Blk 813 Tampines Street 81
S1789535D
#06-552
16 March 2012
Singapore 520813
C B Yeow & Co
6737 5783
CBY.tt.misc.2012
Chua Chew Eng (F)
S1005792B
22 March 2012
Blk 266 Boon Lay Drive
#11-617
Singapore 640266
Advent Law Corporation
6332 8262
PCYP/03/04/2012/II
Ee Chong Ling Evelyn (F)
S0379236F
17 April 2012
244 Dunearn Road
Singapore 299535
ATMD Bird & Bird
6428 9860
CHAHD.0001/JLN
Leow Lucy (F)
S1068304A
5 May 2012
Blk 33 Bishan Street 21
#08-11
Singapore 579801
Lee & Lee
6220 0666
VKY/MAF/2012.2053
Sin Ah Tai @Sin Chai Wah (F)
S0792132B
5 May 2012
Blk 35 Circuit Road
#11-448
Singapore 370035
Belinda Ang Tang &
Partners
6379 5757
BA/C/12-216483
Liu Chui Yau (M)
S2573484Z
7 May 2012
Blk 570 Ang Mo Kio Avenue 3
#06-3351
Singapore 560570
Ling Das & Partners
6533 7887
DL/128460/LA/ct
Shaun Chan Ngok Seng (M)
S1542576H
22 May 2012
1A Siglap Plain
Singapore 455991
DSPP Law Corporation
6323 0030
DAVID/jt
Tay Kwang Chua (M)
S0452754B
12 December 2011
40 Sea Avenue
Singapore 424257
L S Tan & Co
6339 1088
TLS/be/10033/1/12
To place a notice in this section, please write to the Publications Department at The Law Society of Singapore, 39 South Bridge Road, Singapore 058673, Fax: 6533 5700,
with the deceased’s particulars, a copy of the death certificate and cheque payment of S$85.60 per notice made in favour of ‘The Law Society of Singapore‘. All
submissions must reach us by the 5th day of the preceding month.
51
Appointments
Appointments
52
SENIOR LEGAL COUNSEL / LEGAL COUNSEL
(Ref Code: S/LC/LD/230612/01)
You will be responsible for the following:
•
•
•
•
•
•
•
Oversee the Legal Department’s new Warrant Enforcement Section in providing legal support to
enforcement departments in NEA in respect of the enforcement of warrants of arrest issued by the Courts
Assist and support the Legal Department’s Prosecution Section
Provide legal advice on legislation, environmental regulations, legal risk management, compliance issues
and all matters under NEA’s purview
Advise NEA’s departments on civil and criminal matters, train enforcement officers on investigation and
enforcement of environmental laws
Assist in vetting and drafting contracts and other legal documents
Interpret, review and draft legislation
Conduct prosecutions of offences, deal with insurance claims and liaise with external counsels
Requirements:
•
•
•
At least a 2nd Class Lower LLB (Honours) Degree from the National University of Singapore or a reputable
university and be eligible for admission to the Singapore Bar. Those with equivalent qualifications in
overseas common law jurisdictions and admitted or eligible to practice in their jurisdictions may also apply
Applicants for the position of Senior Legal Counsel must have at least 3 years or more of post qualification
experience in corporate / commercial work (whether in practice or in-house) or in the public sector as a
legal officer. Specific exposure to insurance work including procurement and claims administration or in the
area of local environmental law and related legal work will be advantageous
Fresh graduates currently attending or have completed their practice training contract may apply for the
entry level Legal Counsel position
Interested candidates are invited to apply online at www.nea.gov.sg/careers or
the Singapore Public Service Job Portal at www.careers.gov.sg
53
Appointments
Appointments
54
55
Appointments
In-House
Private Practice
Legal Counsel (5+ PQE), Singapore
Corporate Associate (1-5 PQE), Singapore
Leading diversified European company, with interests ranging
from energy, healthcare, telecommunications to electronics,
seeks a commercial lawyer to support the business leaders in
the region and to handle a wide range of transactions relating
to the company's regional operations. Candidates must be
Singapore qualified, have sound legal grounding and be able
to balance business interests against legal risks. Prior
experience in a fast paced multi stream company is desired.
[S3099]
International law firm seeks junior-level corporate lawyer
to be part of their corporate department. The successful
candidate can expect to be trained and involved in
a diverse range of corporate matters such as M&A,
capital markets, employment, private equity, funds
and some regulatory/advisory work. The successful
candidate must be called to the Singapore Bar, with good
academic qualifications and excellent inter-personal
skills. [S3039]
Compliance Manager (8+ PQE), Kuala Lumpur,
Malaysia
Corporate
Singapore
Insurance MNC specialising in serving the fast-growing
pan-Asian region, seeks a compliance manager to support
the entity with all its compliance requirements, including
monitoring and keeping abreast of regulatory changes,
applicable laws and corporate governance policies,
undertaking regular compliance and operational risk reviews,
conducting compliance awareness training and investigating
potential breaches. Degree in finance, accounting or
business administration required. A CPA qualification would
be advantageous. Some travel involved. [S3104]
Join the corporate and securities department of a leading
Singapore law firm and cover a wide range of work including
M&A, equity capital markets and funds. Good training
and mentoring will be provided. Good opportunity for
high-calibre lawyers who are looking to sink roots and
grow within a friendly and supportive team. Singapore
qualified lawyers preferred. Travel in the region is expected.
[S3103]
Senior Legal Counsel (9+ PQE), Hong Kong
A unique opportunity for a litigator to join a US law firm with
an established presence in Asia. This is a strategic need to
complement the firm's strong corporate and intellectual
property practices. The right candidate will have
demonstrative skills managing multi-national corporate client
relationships and be a leader to the firm's litigation practice in
Asia. Solid track record in commercial litigation and
arbitration required. Firm's litigation matters have an
international element and work is generated by other global
offices. Book of business attractive but not essential.
Excellent remuneration on offer. [S2603]
A multi-faceted role with Greater China coverage and
occasional APAC regional work, reporting to the Legal
Director in Asia. The successful candidate will advise
business leadership on legal and risk management issues
and develop and implement business initiatives. This position
seeks a proactive and innovative professional with strong oral
and written communication skills in English and Chinese
(Cantonese and Mandarin). High levels of confidence and
competence are essential, as the candidate will be working
closely with the Group's regional and global legal and
business teams. Knowledge of Hong Kong law a huge plus.
Excellent remuneration on offer to the right candidate.
[S3092]
Head of Legal, India (12+ PQE), Mumbai, India
Global professional services company seeks a senior lawyer
to head a team of four. The successful candidate will work in
a fast paced environment, provide legal input and support to
senior management and business teams and have overall
legal and compliance responsibility for India operations.
Candidates with strong corporate/commercial, real estate
and compliance management experience will have an
advantage. Good interpersonal and communication skills
required. [S3101]
Singapore Office: 24 Raffles Place, #17-06 Clifford Centre,
Singapore 048621 | Tel: +65 6236 0166
Licence no. 07C5739
Hong Kong Office: Suite 901, Level 9, The Hong Kong Club
Building, 3A Chater Road, Central, Hong Kong | Tel: + 852
2526 2981
Finance
Associate
(1-5
PQE),
Litigation Partner (10+ PQE), Hong Kong
Construction Associate (3+ PQE), Beijing, China
A renowned international law firm in the construction industry
seeks a common law qualified lawyer to join their team.
This is an excellent opportunity for young and dynamic
lawyers to learn from and work with very experienced and
dedicated senior lawyers in the construction industry and be
exposed to large scale contentious and non-contentious
matters. The ideal candidate should be bilingual in English
and Mandarin and must have either contentious or
non-contentious construction experience from a reputable
law firm. [S2784]
Appointments
56
Stand Out With
Hughes-Castell
In-house
Sr. Legal Counsel (10-15 yrs pqe)
REF: 10770/SLG
A dynamic & experienced lawyer is needed to take on this senior
regional position at this global industrial corporation. Based in
Singapore, the role has wide-reaching responsibilities across North
Asia. The ideal candidate will have top-notch legal experience (in
Korea will be a plus) and a track record in managing a small team and
helping to drive business strategy; excellent business management
insights & international perspective combined with local know-how
is sought. Fluency in Japanese and/or Korean will be an advantage.
Cross Border Compliance (7-12 yrs pqe)
REF: 10898/SLG
Take on a challenging role at this top-tier banking corporation.
You should have very good compliance advisory, regulatory,
cross border financial services, wealth management products &
services knowledge gained at an international private bank or
wealth management business. To qualify, you must be a qualified
lawyer with solid 7-12 yrs of experience in compliance and have
a proven ability to make risk-related decisions effectively. Added
know-how in dealing with Indian legal and regulatory regime
would be a plus.
ASEAN Counsel (5+ yrs pqe)
REF: 10888/SLG
A unique chance for an experienced & polished lawyer to take up a
regional role with this very exclusive and prestigious luxury brand.
The role is based in Hong Kong, will support the company’s GC and
you will be involved in general commercial activities in Asia-Pacific
including: leasing, employment, data privacy, tax planning and tax
structuring. Ideally, you will be a qualified lawyer with relevant legal
background & experience. Strong bi-lingual skills are desired with
excellent command over English and drafting skills in Mandarin
and/or Bahasa. This is a key role for this high profile brand and
responsibilities and package will be commensurate.
Legal Counsel (4-8 yrs pqe)
REF: 10910/SLG
This well known medical services business based in Singapore is
looking for a talented lawyer to support the general corporate/
commercial matters and help deal with legal matters pertaining
to vendor contracts, nondisclosure/servicing agreements, IP
& licensing agreements, joint ventures etc. Ideal incumbent
will possess solid drafting and negotiation skills who can work
independently, autonomously and proactively to support the
business operations in a family oriented, team centered culture. You
are required to possess 4-8 yrs of relevant experience preferably
from MNC’s or top-tier law firms.
Analyst, Anti-Money Laundering (3 yrs pqe)
REF: 10907/SLG
Provide advisory support to business units and overseas offices
at this listed global bank. Based in singapore, this role develops
and monitors the AML/CFT compliance program by leading training
and periodic updates. Ideal incumbents should possess 3yrs exp in
compliance, AML/CFT, transaction monitoring & surveillance along
with the ability to be a strong team player.
Private Practice
Project Associate (3-4 yrs pqe)
REF: 10860/SLG
Top tier U.S. firm is looking for a project associate to join them
in Singapore. You will have strong academics and project
experience gained from a reputed firm. Experience in project
finance agreements for infrastructure projects, energy and natural
resources is highly desired.
Capital Markets Associate (2-5 yrs pqe)
REF: 10790/SLG
Our client, a leading US law firm is seeking an associate with
proven capital markets and transactional experience. Strong
communication skills and the ability to work with top clients along
with solid academic credentials. US or common law qualification
and excellent English language skills are a must.
Corporate Associate (2-3 yrs pqe)
REF: 10692/SLG
Our client, this leading international firm seeks US-qualified capital
markets senior associate/or counsel to join their growing team.
Magic Circle/White Shoe firm experience preferred, Mandarin
written/spoken skills are a must.
Disputes Associate (2 yrs pqe)
REF: 10900/SLG
This international law firm is seeking an associate to join their
established dispute resolution practice. You will have an opportunity
to work with international clients and learn from a strong team of
lawyers. You should have at least 2 years of experience. SG qualified
lawyers are strongly encouraged to apply.
Contact our consultants and learn how we can help you today.
SINGAPORE - Tel: (65) 6220 2722
| Email: [email protected]
HONG KONG - Tel: (852) 2520 1168 | Email: [email protected]
BEIJING - Tel: (86) 10 6581 1781
| Email: [email protected]
INTERNATIONAL LEGAL RECRUITMENT
SHANGHAI - Tel: (86) 21 2206 1200 | Email: [email protected]
SLG Jul12 Stand.indd 1
7/5/2012 5:11:31 PM
57
Our Singapore office is
Pure Search International is a global recruiter, specialising in opportunities across
Legal & Compliance, Tax, Wealth Management, Finance & Operations.
Following the success of our Hong Kong launch in 2008, the opening of our Singapore
office firmly establishes Pure as the leading multi-disciplinary recruitment firm in the
Asia Pacific region.
For more information on developments in the market, bespoke benchmarking, your recruitment
needs or the options available in making your next career move, please contact:
Private Practice:
In-House:
Charlotte Brooks
Rebecca Collins
+852 2168 0784
+65 6407 1207
[email protected]
[email protected]
Listen. Understand. Deliver.
Offices in London +44 20 7429 4400 | Hong Kong +852 2168 0798 | Singapore +65 6407 1205
www.puresearch.com
Appointments
Helen Howard
Senior Consultant
Singapore
Expect professional advice
from real professionals
At Taylor Root, most of our consultants have trained and practiced as lawyers. That’s
why they’re well qualified to advise you on your next career move. And it’s one of
the reasons we’ve been the market leader in legal recruitment for almost 25 years.
For the widest range of opportunities, both in-house and private practice, contact us
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THE SR GROUP . BREWER MORRIS . CARTER MURRAY . FRAZER JONES . PARKER WELLS . SR SEARCH . TAYLOR ROOT
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Private Practice Roles
IP Litigation
Singapore
Arbitration
Singapore
Projects
Jakarta
This international firm is keen to hire an NQ-2
years' PQE Singapore qualified lawyer to join its
IP litigation team. You will undertake a very
broad range of work. Non-IP lawyers who are
keen to change practice area will be considered.
Ref: 186061.
NQ-2 years
A superb opportunity for an associate to join this
top ranked arbitration practice. The 3 Partner
team undertakes a range of energy, trade,
shipping, construction and commodity disputes
across SE Asia. Good partnership track on offer.
Ref: 185771.
5-8 years
This leading international firm seeks a projects/
project finance lawyer to join its associate office
in Jakarta. You should have solid experience
gained in some or all of the infrastructure,
mining, power, oil & gas and petrochemicals
sectors. Ref: 186741.
2-5 years
Corporate Partner
Corporate (M&A)
Banking/Projects
Singapore
Singapore
Bangkok
A rare role exists at this top international firm. It is
keen to hire an associate/Partner into its corporate
team. You will need public M&A experience
(preferably gained in Singapore) and be keen to
help build the practice further. An excellent
opportunity. Ref: 151501.
6-10 years
Rare opportunity for a NQ-2 years' PQE Singapore
qualified lawyer to make the move to a leading
international firm. It boasts one of the best
established offices in the region. Great mix of
M&A/private equity work and excellent training
are on offer. Ref: 185871.
NQ-2 years
The top ranked international firm in Bangkok is
now keen to hire a banking associate. It
undertakes work for a variety of lenders and
borrowers in the region. Genuine opportunity for
progression through to partnership. Apply now
for details. Ref: 184931.
4-8 years
Shipping Litigation
Energy/Oil & Gas
Corporate
Singapore
A rare role has arisen at this leading international
firm. Its 3 partner team handles headline wet
shipping disputes and acts on the biggest collision
/total loss cases in the region. It is now keen to
hire an associate to aid expansion. Apply now.
Ref: 187251.
3-7 years
Singapore
This top ranked international firm is looking to hire
an associate to join its energy team. You will need
oil & gas/LNG/M&A experience in relation to
major projects and be comfortable taking a lead on
transactions. Great career prospects on offer.
Ref: 186031.
4-8 years
Vietnam
Top global firm is looking for a corporate lawyer in
Hanoi. You will work for one of the leading
partners in the region on a broad range of M&A
deals. The office is very well established giving
you the perfect platform to progress.
Ref: 186801.
2-4 years
To discuss Private Practice roles, call Jamie Newbold or Alex Wiseman on +65 6420 0500
or email [email protected] or [email protected]
In-House Roles
Head of Legal/Compliance Singapore
Commercial Counsel
Based in Singapore, this global Swiss financial
services provider and asset manager seeks an
experienced head of legal & compliance. The firm
is currently growing its structured products and
asset management business in Asia. IB experience
is preferred. Ref: 187231.
10+ years
Global electronics giant seeks a commercial
counsel for its Singapore business. You will be
confident and articulate with great drafting and
negotiating skills. This role sits with the regional
team with sole responsibility for Singapore work.
Ref: 187141.
5+ years
Investment bank seeks new legal recruit to focus
on OTC derivatives and master agreements for
south east jurisdictions. Applicants require a
strong knowledge of ISDA®, related agreements
and a minimum 3 years’ experience negotiating
ISDA®. Ref: 186721.
2+ years
Comm/Corp Legal Counsel Singapore
Contract Manager
Shipping Transport
This internationally renowned insurer seeks a
legal counsel for its growing team in Singapore.
General corporate/commercial experience is
required, whilst insurance experience is ideal but
not a pre-requisite. Candidates must be Singapore
qualified. Ref: 142301.
6-8 years
This is an excellent chance for a lawyer to step
into a more commercial role in an international
consultancy firm. It is looking for a contract
manager with a legal background to join the team
covering ASEAN. Approx SG$8,000-9,000 per
month. Ref: 153201.
4+ years
A rare opportunity for an experienced shipping
lawyer to join a renowned international financial
institution advising on physical commodities
transactions and documentation. Experience with
physical commodities/transport experience is
essential. Ref: 186911.
5+ years
Finance/Securitisation
Corporate Counsel
Business Role (Mandarin)
Singapore
An international financial institution seeks general
banking/finance lawyers who are interested
in pursuing a dynamic and unique opportunity
with the business team. Expect to carry out
securitisation and structuring work. An excellent
opportunity. Ref: 186111.
2+ years
Singapore
Singapore
Singapore
Oil & gas major seeks a counsel for its downstream
business. Based in Singapore, you will advise
business units on commercial issues across Asia.
Corporate M&A/energy background preferred.
This role will involve at least 25% travel.
Ref: 186951.
6+ years
ISDA®
Singapore/Hong Kong
Singapore
HK/PRC
Opportunity for a Mandarin speaking lawyer to
move in to a commercial banking/legal role
focusing on structured trade finance solutions.
The role involves end-to-end development,
structuring and execution of structured finance
solutions. Apply now. Ref: 187271.
4+ years
To discuss In-House roles, call Helen Howard on +65 6420 0500 or email [email protected]
ISDA® is a registered mark of the International Swaps and Derivatives Association
Please note our advertisements use PQE/salary levels purely as a guide. However, we are happy to consider
applications from all candidates who are able to demonstrate the skills necessary to fulfil the role. | EA Licence No: 10C4100.
LONDON . DUBAI . HONG KONG . SINGAPORE . SYDNEY . MELBOURNE
PRIVATE PRACTICE – SINGAPORE
PRIVATE PRACTICE – WORLDWIDE
BANKING & FINANCE
ENERGY / PROJECT FINANCE ASSOCIATE – TOKYO
With this international practice, you will have the chance to
undertake high end banking & finance matters. Suitable candidates
will be qualified in Singapore and are likely to be working with a top
Singapore firm or an international firm. (PTSAJ2409) 1-5 YRS PQE
A wonderful opportunity for an experienced energy projects
specialist at a leading UK firm. You will ideally have gained excellent
experience in power projects and be committed to Japan for the mid
to long term. (PTJAK0054)
MIN 4 YRS+ PQE
REGULATORY / ADVISORY
ENERGY ASSOCIATE – TOKYO
This is an advisory role with a magic circle firm and the successful
candidate will work with outstanding lawyers in a more predictable
work environment. Candidates can come from in-house or PP
environments. (PTSAJ2403)
JUNIOR TO MID-LEVEL
Major US firm is offering a chance to join their leading Japan energy
practice. The team handles a wide spectrum of projects from LNG to
renewables. The role will offer fast promotion and rewards for a
capable associate. (PTJAK0048)
4-7 YRS PQE
PROJECTS
MID LEVEL CORPORATE ASSOCIATE – RIYADH
An outstanding mid-senior projects lawyer will be given the
opportunity to join one of the region’s leading international teams.
You should have non-contentious projects experience with another
international or local firm. (PTSAJ2407)
3-7 YRS PQE
This international firm is consistently ranked among the top tier in the
kingdom. You will work on both regional and international transactions
and come from a similar international environment. Outstanding
package and relocation provided. (PTMB3068)
3-5 YRS PQE
ARBITRATION
SNR CONSTRUCTION & ENGINEERING ASSOCIATE – DUBAI
To secure this arbitration role, working with one of the region’s top
international firms, you must be Singapore and/or UK qualified. This
role offers an opportunity to become involved in high end arbitration
work with a renowned team. (PTSAJ2406)
3-9 YRS PQE
This regional powerhouse is seeking a senior lawyer who has both
contentious and non-contentious experience. Their clients include
government entities and major public & privately owned companies
in the region. Fantastic tax free salary. (PTMB3069)
5-8 YRS PQE
PUBLIC COMPANY M&A
CAPITAL MARKETS ASSOCIATE – HONG KONG
Our magic circle firm client is looking for a candidate with public
company takeover experience, a commonwealth qualification and
good academics. Excellent opportunity to work on complex cross
border matters. (PTSAJ2399)
4-6 YRS PQE
Top tier team seeks an associate with experience of handling debt,
equity and equity-related issues. With their first-class client base and
heavyweight partners, you will gain broad experience and a promising
career path. Open to all jurisdictions. (PTVT3064)
3 YRS PQE+
CAPITAL MARKETS
ASSET FINANCE – HONG KONG
A capable Singapore qualified lawyer with strong ECM experience is
sought by top UK firm. Suitable candidates will have good academics
and a solid grounding in ECM work. Excellent training, work and
package on offer. (PTSAJ2405)
1-5 YRS PQE
Respected team with broad client base seeks an associate with
extensive transaction experience. You will be involved in lease
transactions, financing and regulatory matters. Challenging work
and fantastic rewards. (PTVT3065)
2 YRS PQE+
DISPUTES
DEBT CAPITAL MARKETS – SINGAPORE
A premier UK law firm is seeking a lawyer to be part of the expansion
of its practice in Singapore. The successful candidate will ideally
have construction disputes experience, but candidates with general
arbitration experience can also apply. (PTSAJ2411)
3-7 YRS PQE
Work on high end matters with eminent partners of this top tier
international firm. You must have strong experience in B&F and DCM
work, and should be a team player confident in dealing with key clients,
as well as mentoring/supervising juniors. (PTSAJ2387) 4-6 YRS PQE
SINGAPORE OFFICE
HONG KONG OFFICE
TOKYO OFFICE
Please contact Matthew Gardner at (65) 6603 1999
Please contact Conor Greene at (852) 2521 0306
Please contact Amir Khan at (81) 3 4550 1526
or email [email protected]
IN-HOUSE – SINGAPORE
IN-HOUSE – SINGAPORE / S.E.A.
COMMERCIAL COUNSEL APAC - MNC
HEAD OF LEGAL AND COMPLIANCE - FUNDS, HONG KONG
Our client is a technology player with a new desk for a legal counsel
based in Singapore. They seek a corporate generalist for the role.
This represents an excellent opportunity for a lawyer in an
autonomous setup with a regional remit. (ISSMG1634) 4-7 YRS PQE
Join this large global institutional investor as the Head of Legal to
manage all legal and regulatory issues for the Group’s businesses in
Asia. You will be advising on a range of financial products including
equity and fixed income securities. (ISEW1510)
8 YRS+ PQE
LEGAL COUNSEL - PROPERTY
REGIONAL COUNSEL - FINANCIAL SERVICES, HONG KONG
A property developer with a major regional portfolio is adding to its
team. They seek a corporate real-estate lawyer for the role. This
represents a good opportunity to join a solid team and excellent
name in the industry. (ISSMG1635)
5-7 YRS PQE
Renowned global financial services company seeks an experienced
insurance lawyer to join its APAC legal team based in Hong Kong.
Prior regional experience in regulatory work would be
advantageous. (ISEW1504)
6 YRS+ PQE
CORPORATE COUNSEL - HOSPITALITY
LEGAL COUNSEL - CORPORATE / IP
This household name in the resorts space is searching for a senior
legal counsel. A standalone legal role with paralegal support, this
will suit a lawyer with commercial real-estate or previous in-house
experience. (ISSMG1628)
6-10 YRS+ PQE
A seasoned corporate lawyer with commendable inter-personal/EQ
skills would suit this role which promises a coveted balance of
interesting legal work, and good hours. You will join a sizeable team of
lawyers, each handling a unique portfolio. (ISSRB1625) 6 YRS+ PQE
LEGAL COUNSEL - SHIPPING
LEGAL COUNSEL - US MNC
Our client is a market leading rig builder and you can expect to work
with a senior lawyer well versed in the offshore rig construction
market. Expect to handle contracts and negotiations autonomously
in the lucrative oil & gas market. (ISSRB1631)
5 YRS+ PQE
This role revolves around issues relating to data protection,
maintenance and IP matters. Ideal background is in the credit card
or IT/Telco industry. You will work in tandem with the Senior Counsel
based in Singapore. (ISSRB1627)
4 YRS+ PQE
LEGAL COUNSEL - MNC
COMPLIANCE MANAGER - FUNDS
With a strong regional business, this entity is looking to engage a
legal counsel for its existing legal department. As this reports to a
senior legal counsel, it represents an opportunity for a junior lawyer
to transition in-house with support. (ISSMG1624)
2-4 YRS PQE
If you possess substantial knowledge of the Securities & Futures
Act, and are an effective communicator, do apply to be part of this
firm. In this standalone role you will coordinate policies across three
jurisdictions. (ISSRB1633)
5 YRS+ PQE
SENIOR IT COUNSEL - MNC
SENIOR LEGAL COUNSEL - SHIPPING
Our client is now on the lookout for a lawyer to add to its existing
team. You will be working hand in hand with the business partners on
deals of considerable size. Flexibility and commercial acumen are
required for this position. (ISSMG1621)
5 YRS+ PQE
Working with a global leader in the energy and maritime solutions
industry and reporting directly to the MD, you will step in as a Senior
Legal Counsel in what promises to be a role that has an impact on key
decisions. (ISSRB1614)
6 YRS+ PQE
DATA GOVERNANCE MANAGER - BANK
SENIOR LEGAL COUNSEL - CONTRACTOR – JAKARTA
Exciting role for a lawyer experienced in dealing with data protection
You will ensure the Bank complies with all applicable legal and
regulatory requirements relating to data and information management,
technology, operations, IP and brand. (ISSMG1632)
5 YRS+ PQE
Our client is doing some of the largest infrastructure and mining
deals in Indonesia and the region. They now seek a senior legal
counsel with a strong disputes background, likely gained in
construction, for top-level role. (ISSMG1623)
5-8 YRS PQE
Licence no. – 04C2894
www.law-alliance.com
Visit our website to see the latest in-house and private practice vacancies worldwide.
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Admissibility of Electronic Evidence

Transcription

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