May 2015 - The Law Society of Singapore

Transcription

Legal & Compliance In-House
L0415 - 2395 – Senior Legal Counsel – Holding Company ->
10-15 PQE A Singapore-based holding company with diverse
business interests including Real Estate, Logistics, and offshore
operations is looking for a Senior Counsel to join its team. The
well-established brand has been geared towards growing beyond
Singapore’s shores in the past 2 decades and now has successful
global operations. The selected candidate can expect to work on
highly valued projects. Contact Helmi
L0115 - 2371 – Senior Legal Counsel - Technology - >10 PQE
An established US MNC in the technology industry is seeking for
a Senior Legal Counsel. Reporting to the General Counsel, you
will be expected provide legal advice to the region including all
commercial, antitrust, compliance as well as IP matters. As a Key
Counsel in the team and as a senior advisor to the business units,
you should have at least 13 - 15 years of PQE and have had prior
in-house experience. Prior industry background in the IT
industry will be advantageous. Interested candidates please
contact Eileen
L0415-2392 – Senior Legal Counsel – Energy/Utilities – 10PQE
A Singapore listed company is looking for a Legal Counsel to join
their legal team. You can expect to provide a wide range of legal
support for the Group’s business (both local and overseas)
including drafting of contracts, providing legal advice, ensuring
statutory and regulatory compliance. Preferably you should have
prior experience in the telecommunications industry. Interested
candidates please contact Eileen
L0415-2391 - Senior Legal Counsel - Aviation - 8-10 PQE A
listed company in the aviation industry is seeking a Senior Legal
Counsel to join its established legal team. You will be required to
handle substantial M&A matters as well as lead IP projects
including drafting, reviewing and negotiation licensing and
technology contracts. You should have at least 8-10 years of PQE
with strong in-house experience. Interested candidates please
contact Eileen
L0315-2387 - Regulatory Compliance Manager - >8-10PQE A
British multinational institution specialising in Insurance is
looking to hire a Regulatory Compliance Manager. You would be
expected to ensure that monitoring and advisory activities are
effectively managed and review and update Compliance Policies.
You should have 8 years of experience with at least 5 years in
compliance. Contact Jane
L0415-2394- Legal Counsel – Brokerage firm - 8-10 PQE ->
Established global brokerage firm is looking for a legal counsel to
join their team. Candidates called to a Common Law bar with
brokerage or banking experience will be considered favourably.
Contact Daniel
L0415 – 2397 – Legal Counsel – Oil & Gas - > 5 PQE A global
MNC is seeking a Legal Counsel. Candidates with APAC working
experience will be considered favourably. Contact Adeline
L0415 – 2398 – FMCG - > 5 PQE A prominent player in the
FMCG industry is seeking a Legal Counsel to join their
expanding team. Candidates with supply chain management
experience will be considered favorably. Contact Adeline
L0415 - 2400 - Automotive - >5PQE – My client, in the
automotive industry is seeking a Legal Counsel with at least
5PQE. As a sole Legal Counsel, you are required to provide legal
advice to the business units, drafting and negotiating agreements,
as well as policy development. Candidates with knowledge of
PDPA, Anti-Corruption law or Lemon law will be highly
considered. Interested, please contact Kate
L0415-2396 - Legal Counsel - Real Estate - > 4 PQE My client, an
MNC in the real estate industry, is looking for a Legal Counsel.
Responsibilities include drafting and negotiating a variety of
commercial agreements and managing risks as well as litigation
matters. The role covers a regional scope and will involve
travelling. Contact Yasmeen
L0415-2389 - Legal Counsel - Telco - 3- 7 PQE My , client, an
International telecommunications company it looking for a Legal
Counsel to join its team. You should have 3-6 years of legal
experience within a telecommunications company or law firm,
with solid skills in the drafting of commercial contracts. The ideal
candidate is a team player, who thrives in a multicultural
environment. Contact Yasmeen
L0415 - 2399 - Hospitality - 3-6PQE – One of the world’s largest
hotel group is looking for a mid level Legal Counsel, 3-6PQE.
Main responsibilities include drafting, reviewing and negotiating
hotel related contracts and providing legal advice to the business
units, covering the Asia Pacific region. Candidates with general
corporate experience, with hospitality or real estate exposure is
highly preferred. Please contact Kate
Interested? Please contact Claire Lin Xiuxin (R1103711) at [email protected], Muhammad Helmi Ali (R1113285) at [email protected],
Eileen Low Yi Lin (R1330643) at [email protected], Yasmeen Fatmah Hussain (R1327217) at [email protected],
Daniel Yoong Jiarong (R1332481) at [email protected], Adeline Lim Chan Yin (R1324939) at [email protected],
Kate Chang Chu Yan (R1332479) at [email protected], or Jane See Si Hui (R1332480) at [email protected]
or (65) 6535 8255 for more information
Please visit www.recruit-legal.com for a full list of our positions
Alternatively, contact us at (65) 6535 8255 or 391A Orchard Road, #11-03 Ngee Ann City Tower A, Singapore 238873
Recruit Legal
391A Orchard Road
#11-03 Ngee Ann City Tower A
Singapore 238873
01
President’s
Message
Sui Generis
"One of the asymmetries of history, is the lack of
correspondence between the ability of some leaders and
the power of their countries”.
relentlessly advocated and demanded zero tolerance where
corruption was concerned. He aimed, quite idealistically, for
elimination rather than amelioration.
Henry Kissinger on Lee Kuan Yew
Did he succeed? How do we define success? Corruption
still exists, albeit sporadic and confined, but the wholesale
eradication of a human vice is a wholly inappropriate
measure of success. What is more significant is the vast
majority of us intellectually and viscerally disavow and
repudiate corrupt acts. In Singapore, corruption is considered
morally reprehensible, unlike other parts of the world, where
it operates in a sort of moral demilitarised zone.
Prime Minister. Global Statesman. Founding Father. His
story is an inextricable part of Singapore's remarkable
narrative, and the quintessence of Singapore’s pioneering
spirit. He did win hearts and minds, and in many ways,
belonged to the nation. But he was also an advocate and
solicitor, the first Honorary Member of the Law Society. We,
the profession, proudly claim him as one of us.
It is clear that his training in the law, and as a lawyer, was
foundational to his thinking and the shaping of his policies.
The idea of the Rule of Law, justice and fairness, were
fundamental, and never far from sight. They may have
been tempered by realpolitik, qualified by pragmatism, and
occasionally subordinated to national development, but he
was a realist, concerned with what worked and what didn’t
– in his words, he “always tried to be correct, not politically
correct”. While there have been criticisms over where the
right balance was struck, as a practising lawyer, I witness,
first hand, every day, the reality and effective operation of
the Rule of Law, and the attitudes of mind supporting this.
More importantly for us as lawyers, we enjoy the benefit
of a system where we have one of the most incorruptible
judiciaries in the world. Disputes can be adjudicated fairly,
transparently and predictably, in accordance with law and due
process, instead of being influenced by factors exogenous
to the legal system. The concept of payment for outcomes is
not only anathema, it is alien. No dispute resolution system
is perfect, miscarriages of justice may still happen because
Judges are human and can make mistakes. Our comfort is
two-fold; these mistakes are not mala fide, and the option
to appeal is usually available. What Mr Lee has left behind
is a judiciary that can be trusted to uphold the law and that
cannot be manipulated. It has given our Courts exceptional
credibility, and on that foundation, allowed it to raise judicial
standards to a level that is universally respected. That
has allowed the profession to flourish, to attract and retain
top minds in the dispute resolution space, and allow us
the almost audacious ambition to create an international
commercial court in Singapore.
I speak of Mr Lee's approach to corruption. This is in fact an
area where his pragmatism did give way to ideology. There
was no grudging acceptance of the inherent weakness
of human nature, or any allowance for entrenched social
and cultural norms where rules against corruption were
more honoured in the breach than in their observance. He
Another perhaps more enduring legacy was aspirational.
Lee Kuan Yew taught us that we could dare to dream, to
imagine, and to achieve excellence, and beyond. Richard
Nixon said of Lee Kuan Yew that had he lived in another
time and place, he may have "attained the world stature of a
Churchill, a Disraeli, or a Gladstone”. After witnessing world
Much has been and will be written about his legacy to
Singapore, and that is too large a canvass for me to even
sketch. I will only attempt to articulate a part of the legacy
that he left to our profession. One is foundational, for us to
maintain. The other is visionary, for us to attain.
Continued on page 4
Singapore Law Gazette May 2015
Contents
President’s
Message
News
Features
Columns
Lifestyle
Notices
Appointments
M
N
F
C
L
N
Sui Generis
01
Diary and Upcoming Events
From the Desk of the CEO
Law Society Members Remember Mr Lee Kuan Yew
The Changing Role of Lawyers in the Next Few Years:
Singapore Legal Career Forum 2015
Know Your CPD Requirements – Phase 2 of CPD Scheme
05
06
08
11
Consent: Time to Say Goodbye to Bolam and Sidaway?
An Offender’s Lack of Antecedents: A Closer Look at its Role in Sentencing
Singapore Merger Regime: Notification Not Compulsory but Highly Recommended?
16
24
30
The Young Lawyer — The Fundamentals of International Legal Business Practice
Practice Support — Forensic Reconstruction – A Primer for Lawyers
35
38
Alter Ego — Business and Law
Food — A Kyushu Seven Star Experience on Rail
43
45
In Memoriam — Lee Kuan Yew's Legacy as Lawyer
Professional Moves
Information on Wills
50
54
56
57
A
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The Council of The Law Society of Singapore
President
Mr Thio Shen Yi, SC
Vice Presidents Mr Kelvin Wong
Mr Gregory Vijayendran
Treasurer
Ms Kuah Boon Theng
Mr Lok Vi Ming, SC (Immediate Past President), Mr Lim
Seng Siew, Mr Adrian Tan, Mr Steven Lam, Ms Parhar Sunita
15
Sonya, Ms Lisa Sam, Mr Anand Nalachandran, Mr Chiam Tao
Koon, Ms Usha Chandradas, Mr Sunil Sudheesan, Mr Yeo Chuan
Tat, Ms Katie Chung, Ms Wendy Lin, Mr Paul Tan, Mr Arvindran
s/o Manoosegaran, Ms Simran Kaur Toor, Mr Grismond Tien
Editorial Board
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Kaur Toor, Mr Benjamin Teo, Mr Cameron Ford, Ms Debby Lim, Mr
Evans Ng, Mr Kishan Pillay, Ms Lye Hui Xian, Mr Marcus Yip, Mr
Prakash Pillai, Ms Shen Xiaoyin, Mr Vincent Leow
The Law Society Secretariat
Chief Executive Officer Ms Tan Su-Yin
Communications & Membership Interests Mr Shawn Toh
Compliance Mr Kenneth Goh
Conduct Ms Ambika Rajendram, Mr K Gopalan
Continuing Professional Development Ms Jean Wong
Finance Ms Jasmine Liew, Mr Clifford Hang
Information Technology Mr Michael Ho
Pro Bono Services Mr Tanguy Lim, Ms Babara Seet, Mr Choy
Weng Leong, Mr Eoin Ó Muimhneacháin
Publications Ms Sharmaine Lau
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President’s
Message
04
Continued from page 1
leaders over the last 20 years confer on him the status of
global statesmen, and the unqualified accolades visited on
him during his wake and funeral, we Singaporeans would
be forgiven a little chutzpah in saying that he did. They
did great things, but Mr Lee was a great man. He had the
vision to build a first world global city when there was no
expectation that we would even survive. Mr Lee made a
mockery of the tag once attached to him, "a big man on a
small stage". Look around you. Our stage, this country, is
no longer that small.
Shortly after Singapore separated from Malaysia, Mr Lee
said “Over 100 years ago, this was a mud-flat swamp.
Today, this is a modern city. Ten years from now, this will
be a metropolis. Never fear”. Indeed. We are a global city
today, and one of the most influential cities in the world. We
have come a long way. When I was growing up, we were
in the midst of building the Singapore miracle, and we still
characterised ourselves as part of the third world. Our claim
to significance was that we had the fourth busiest port in the
world. That statistic was our assurance of a tentative place
on the global stage, that we were ascending the economic
ladder.
It sounds surreal, almost ridiculous, when viewed with
today’s eyes. Today, we top multiple economic, judicial,
trade and other rankings, often deservedly, and we have
come to expect that in some areas, we will remain at those
pinnacles. We have become world class in many areas. We
have learnt our lessons from the best in the world. Now, in
many aspects, we have something to teach the rest of the
world.
As I reflected on this over the course of the national week of
mourning, I recalled the sentiments that I expressed in my
speech at the Opening of the Legal Year – that our lawyers
need to be world class. And there is no reason why we can't
be. Our entire nation is evidence of what can be achieved
with vision, gumption, self-belief, desire and commitment.
Rising to the challenge must be our response to his legacy.
We can be world class lawyers, whether in our own domestic
firms or in international firms. We can build great domestic
law firms, in every arena – professional, organised,
effective, committed and ethical; with the concerted belief
that Singapore lawyers can put Singapore on the legal
world map. The belief that we can be the choice of law for
this region and beyond. That we can be a major global legal
centre, for disputes and transactions. That our law firms can
and will one day build globally respected brands.
It's not too big a vision to aspire to the highest standards.
Singapore in many ways, has been there, done that. We've
done the improbable, maybe even the impossible already.
We owe it to ourselves, and to Mr Lee, to try.
► Thio Shen Yi, Senior Counsel
President
Update of the Guide to the Legal Profession
(Solicitors’ Accounts) Rules
The Solicitors Accounts Rules (“SAR”) Committee of
the Law Society has updated the existing Guide to the
SAR. This task was undertaken in recognition of the
importance of SAR compliance when running a law
practice. The Committee has accordingly updated the
Guide and made it available on the Law Society website
for easy access to members. The Guide provides a
useful brief on each of the Rules in the SAR and includes
information on the application of the Rules. The Guide
was launched on 8 May 2015 and can be downloaded at
no charge at http://www.lawsociety.org.sg/forMembers/
ResourceCentre/EShop/Store.aspx
05
News
Diary and Upcoming Events
Diary
1 April 2015
Topical Issues in International Arbitration: Singapore Case Law
Through a Comparative Lens
Co-organised by Young International Arbitration Group
(of the London Court of International Arbitration) and the
Arbitration Committee of the Law Society
2.45pm-4.40pm
Maxwell Chambers
10 April 2015
The Annual Law Fraternity Golf Tournament 2015
Organised by the Sports Committee
From 12.30pm
Keppel Club
20 April 2015
Seminar on the Psychology of Vulnerable Witnesses and Victims
Organised by the Continuing Professional Development Department
3.30pm-5.40pm
28 April 2015
Recent Developments in the Singapore Legal Industry
Organised by the Continuing Professional Development Department
12.30pm-1.30pm
100 High Street, The Treasury
30 April - 2 May 2015
Annual Malaysia/Singapore Bench & Bar Games 2015
Organised by the Sports Committee
Upcoming Events
13 & 14 July 2015
Module 1: Mediation: Strategic Conflict Management for Professionals
3, 4 & 5 August 2015
Mediation: Strategic Conflict Management for Professionals (Module 2)
7 September 2015
Associate Mediator Accreditation Assessment
13 November 2015
Law Society Annual Dinner & Dance
06
News
CEO's Message
From the Desk of the CEO
Dear Member
We are proud to announce that Team Singapore has won
the 46th Annual Bench & Bar Games held in Singapore from
30 April to 2 May 2015. Out of 15 competitive sports and
three non-competitive games played, the final score came
in at Team Singapore 9.5 and Team Malaysia 5.5. Our
congratulations go out to all the athletes for their excellent
performance this year, which enabled us to bring the Judges’
Cup back to Singapore during our SG50 Jubilee Year!
The Games would not have been possible without a large
group of people who worked tirelessly behind the scenes to
make this event a success. Our Sports Committee, supported
by our Membership Services team at the Secretariat, have
spent the last few months toiling over the organisation of the
Bench & Bar Games. Credit goes to the Sports Committee,
the individual conveners of the 18 sports and all players
and officials, for training hard and gearing up for the much
anticipated games. Many of the intensive training sessions
ramped up as early as December 2014, with some sports
training all year round. The passion and commitment of all
our sportsmen has been extremely inspiring, with some
sports organising their own friendly matches against other
bar associations, to gear up for the Bench & Bar Games.
In addition, the close co-operation between our Bench and
our Bar over sports (and a common goal!) has continued
to grow over the years, and we look forward to deepening
these ties going forward.
In addition to the Bench & Bar Games, our Membership
Services team supports Council on several less high profile
but no less important events. These events include the
regular bi-monthly Council luncheons with members at the
State Courts Bar Room. These lunches have been a good
opportunity for members to meet with Council members and
an avenue by which to share feedback with the Law Society.
Dates and details of the lunches are put out through our
e-mail blasts and on announcements in the Bar Rooms.
Please do sign up and join us for lunch if you are available.
Our Membership Services team also works hard to ink
sponsorship arrangements with a myriad of corporate
organisations for the benefit of members. Previous and
current retail and lifestyle privileges include preferential
rates at hotels locally and abroad, attractive dining benefits
and IT software packages. Information on the latest
membership privileges can be found in the weekly eJus
News bulletin and on the Law Society website. Our team
looks forward to bringing you other promotions and benefits
throughout the year.
► Tan Su-Yin
Chief Executive Officer
News
08
Condolence Book Signing
Law Society Members Remember Mr Lee Kuan Yew
The Condolence table at the Law Society. We are grateful to Alice Chan and Irene of Alice Tailoring for sewing the table cloth at short notice at no charge.
Upon the passing of our founding father Mr Lee Kuan Yew
on 23 March 2015, the Law Society opened a Condolence
Book for members to pen their tributes and condolences
during the week of national mourning. Two hundred and
sixty five members took time off their schedules to come
to the Law Society office to spend moments in thought, as
they expressed their heartfelt gratitude and sadness, and
pondered the loss to our nation.
We were honoured to invite Mrs Lee Suet Fern, Senior
Director of Morgan Lewis Stamford LLC and daughter-inlaw of the late Mr Lee to the Law Society on 14 April 2015,
where President Mr Thio Shen Yi, SC, presented the three
Condolence Books to Mrs Lee. At the simple ceremony Mrs
Lee thanked members for their kind thoughts in remembering
Mr Lee. She said, “I’d like to think that all his skills as a
lawyer stood him in good stead as a leader. Because a lot
of the skills that we have, the ability to persuade, the ability
to bring people with us, the clear thinking, the logic; a lot of
the skills that make for a good lawyer helped make him the
wonderful leader that he is.”
The Law Gazette will be publishing some of the tributes
from members in its SG50 edition in August. Read the In
Memoriam for Mr Lee on page 50 of this issue.
President Mr Thio Shen Yi, SC, presenting the Condolence Books to Mrs
Lee Suet Fern
09
News
Mr Thio and Mrs Lee reading the messages in the Condolence Books
News
10
11
News
Legal Career Forum
The Changing Role of Lawyers in the Next Few
Years: Singapore Legal Career Forum 2015
From left to right: Mr Kabir Singh, Mrs Stefanie Yuen Thio, Mr Adrian Tan, the Honourable Judicial Commissioner Chua Lee Ming, the Honourable Justice Quentin
Loh, Mr Wong Taur-Jiun, Mr Harpreet Singh Nehal, SC, Ms Thng Shin Min
Introduction
Since the start of the year, the legal fraternity has been
involved in much debate. There has been the on-going
discussion about the glut of lawyers in Singapore. There
was also a big debate over the dropping of certain UK
universities from the approved list of overseas law schools.
These discussions have spurred much thought about the
attractiveness of lawyering as a career (especially among
fresh-faced undergraduates) and the changing role of
lawyers in society.
Thus, it was fortuitous that on Friday, 13 March 2015, the
Young Member’s Chapter under the Professional Affairs
Committee of the Singapore Academy of Law and SCCA
PEERS Sub-Committee jointly organised the Singapore
Legal Career Forum 2015, entitled, Being a Lawyer in the
Next Five Years. Mirroring the on-going discussion in the
wider fraternity, the aim of the Forum was to give those
present an idea about the changing role of Singapore’s
lawyers amidst the fast-evolving legal landscape. Held
at the Viewing Gallery on the eighth floor of the Supreme
Court, the impressive skyline of the Central Business
District provided a fitting backdrop to the Forum.
The Forum brought together a panel consisting of
distinguished practitioners from different fields of legal
work. The high-powered panel, chaired by the Honourable
Justice Quentin Loh from the Supreme Court, consisted
of: the Honourable Judicial Commissioner Chua Lee
Ming, Mr Harpreet Singh Nehal, SC (Managing Partner,
Cavenagh Law LLP), Mr Adrian Tan (Director, Stamford Law
Corporation (now known as Morgan Lewis Stamford LLC)),
Mrs Stefanie Yuen Thio (Joint Managing Director, TSMP
Law Corporation), and Mr Wong Taur-Jiun (President,
Singapore Corporate Counsel Association).
Local Lawyers, Global Practitioners
Kicking off the forum, Mr Singh spoke about where business
opportunities were going to be, and what skill-sets would
be needed to make the most of such opportunities. He
News
12
Legal Career Forum
first reminded the audience to think about where the real
lawyering opportunities were going to be in 15 to 20 years,
rather than deciding one’s career path based on short-term
interests.
initial discussion together, Chua JC pointed out that law is
a flexible discipline which equips one to work in different
fields. Chua JC reminded the audience to be adaptable and
to be willing to take up any opportunity that came one’s way.
With the region becoming the world’s next economic centre
of gravity, the real opportunities in lawyering were going to
be cross-border in nature. In particular, these opportunities
would be Asia-centric. Further, given the nature of Asian
economies, areas such as international investment,
construction, energy and resources, international regulatory
work, and international dispute resolution would be fertile
areas for growth.
Upcoming Changes in the Next Ten Years
Thus, lawyers had to prime themselves with skills that would
help them take advantage of these opportunities. Besides
having proficient lawyering skills, a crucial differentiator
would be the willingness to spend time outside of Singapore.
This was because, Mr Singh noted, “the real opportunities
to shine will lie in places that right now might seem less
comfortable compared to Singapore”. Moreover, lawyers
should have a broad mindset, cross-cultural awareness,
and business skills. This meant that lawyers had to read
widely, be able to work well with cross-cultural teams,
develop long-term skills by thinking like a businessman, and
understand how macroeconomic and geo-political events
could impact business.
Adding on to Mr Singh’s views, Mrs Yuen Thio said that
practitioners had to learn how to be “technology lawyers”.
In other words, lawyers had to understand how technology
could enable or disrupt clients’ businesses. Mrs Yuen Thio
also noted that Singapore lawyers were no longer the
lowest rung in the global legal pecking order. Increasingly,
Singaporean lawyers were heading international teams.
This meant that one had to be a good leader and manager,
on top of being a good worker.
Being Adaptable Decision-makers
The notion of being a good leader also resonated strongly
in Mr Wong’s views. Representing the perspectives of inhouse counsel, Mr Wong pointed out that in-house counsel
was, more than anything else, about solving problems.
Unfortunately, Mr Wong noted that “people nowadays like
to give everyone else options, and nobody wants to make a
decision”. Thus, to Mr Wong, the most important quality of
lawyers was to be able to make good decisions.
Furthermore, Judicial Commissioner Chua observed that inhouse work was another hotbed of lawyering opportunities.
The in-house legal profession continues to develop and
the demand for in-house counsel will increase. Tying the
A Change in How Clients View Lawyers
In response to a question by Justice Loh, Mrs Yuen Thio
quipped that lawyers were no longer treated as Gods. The
idea that people went to lawyers to receive sage advice was
no longer relevant today. Rather, clients today saw lawyers
as just another service provider. Clients expect lawyers to
help them look at their situations, and explain the best way
to sort things out. Thus, for lawyers to develop long-term
business relationships with clients, lawyers had to adopt a
client-centric, service-minded approach.
Adapting to Computerisation and Commoditisation
A big topic that garnered discussion was the commoditisation
and computerisation of work. The fear was that this would
end up diminishing the demand for lawyers. For example,
as Justice Loh pointed out, using the example of IBM’s
Watson supercomputer, data-mining could already be done
so well by computers, at a fraction of the cost of hiring three
trainees to do the same amount of work. Would law firms
and clients still need lawyers?
Thankfully, the answer was that lawyers would still be in
demand. Lawyers must, however, be prepared to change
their mindset fundamentally. With regard to commoditisation
of legal work, Chua JC noted that lawyers must upgrade
themselves to be as productive and efficient as possible.
To make his point, Chua JC referred to an article about
the former General Counsel of Kia who developed a test
to assess the digital productivity of lawyers (how efficient
they were in using productivity tools, like Microsoft Word).
More than half of the lawyers who took the test failed. Thus,
lawyers had to do a lot more to ensure that they provide
their clients “more bang for the buck”.
Mrs Yuen Thio added that “everyday work will get
commoditised, but what law firms need to provide as much
as possible is customisable work” – in other words, work that
computers and non-lawyers could never do. Computers, for
example, still could not devise a good litigation strategy for
clients. They could not tell clients how to best frame their
case. Thus, as long as lawyers were able to tap on the
power of computers to enhance their services, there was no
need to be afraid. Moreover, as Mr Wong noted, computers
could never completely replace humans. That is because,
13
News
Legal Career Forum
to build a sustainable practice, law firms would still need to
groom their own trainees and associates to be successful
lawyers and directors in the future.
To have a leg up over others with regard to experience in
Court, Mr Tan suggested trying the public service route –
in other words, becoming a DPP in the AGC. To Mr Tan,
while this was “not a route to riches”, it would give young
lawyers a good grounding as regards Court processes.
Mr Tan also warned that traditional law firms may one
day become extinct. Thus, to him, it also made sense to
explore opportunities provided by international law firms in
Singapore.
How Law Students and Lawyers Can Respond to
the Changing Structure of the Legal Industry
Responding to a question about changes in the structure
of the legal industry, Mr Singh noted that the legal industry
in Singapore is experiencing substantial change, with local
law firms facing increasing competition and reviewing their
growth strategies to remain relevant and competitive for the
longer term.
In his view, firms that focused purely or heavily on the
domestic Singaporean market would find themselves
plateauing and risk missing the real growth opportunities
– cross-border work. Given shifting economic trends
and growth opportunities, he foresees increased tie ups
between Singaporean and international firms. Adding on to
Mr Singh’s views, Mrs Yuen Thio believed that overseas tieups would help the partnering firms build on each other’s
resources to serve a larger client base.
With this glimpse into the future of the legal industry, Mr
Singh encouraged law students and young lawyers to
pursue opportunities with firms that had a systematic
growth strategy. Nonetheless, Mrs Yuen Thio added a touch
of pragmatic idealism when she counselled law students to
find a law firm that “allows them to end each day a better
lawyer than they started it”.
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14
Legal Career Forum
Mr Wong added that law students and young lawyers had to
be aware of their personal branding. To Mr Wong, the reality
of practice was that, regardless of one’s brilliance, one would
probably still not get far staying in a relatively unknown firm.
Getting into well-known firms adds to personal branding,
however, that also meant having the pre-requisite abilities
and potential to do so.
Turning from big and medium-sized firms to small firms,
Mr Singh believed that there was no need to fear for the
viability of small firms in Singapore. This was because small
firms would continue to play a key role of providing legal
services that were accessible to many people in Singapore.
Where and What Kind of Education Should
Lawyers Seek?
On to the topic of hiring, the panel touched on two topics:
first, whether there was a need to expand one’s knowledge
base, and second, the removal of approved overseas
universities.
In response to a question of whether it was prudent to learn
things outside of law through a second degree, Mrs Yuen
Thio pointed out that it was ultimately up to each individual.
This was because it was more important to focus on what
one was personally interested in, and what one thought
would make him or her, a better thinker and person.
Mr Singh and Mr Wong, however, pointed out that there
were specific areas that could be useful to study. Mr Singh
felt that it was useful for lawyers to be dual qualified in
Singapore law and either English or New York law. This was
tied to his belief that the real growth opportunities of the
future would be cross-border in nature. Similarly, Mr Wong
advised the audience to be able to speak and understand
the lingo of one’s clients. In that respect, an MBA could be
helpful.
On the issue of approved overseas universities, the panel
had a consistent view: it did not substantially matter if one
came from a local or overseas university. This was for three
reasons. First, firms were on the lookout for people who
had good aptitudes and were a good fit with the firm, not
necessarily the university name that appeared on their
CV. Second, firms were sufficiently sophisticated to judge
people by what they brought to the table. Third, even if one’s
school were taken into account at the point of entry, a lawyer
would eventually be judged by his/her ultimate performance
at work. After all, as Mr Tan, pointed out, partners and
firms quickly forget which university you come from. This
must come as a welcome relief to everyone, especially to
overseas law graduates. Nevertheless, Chua JC raised a
caveat (as was the case with anything that had to do with
law): in practice, HR (especially in large organisations) may
filter and short-list applicants based on their degrees. As a
result, talented individuals may not have the opportunity to
be interviewed. Chua JC noted that the short-listing criterion
depends on each organisation’s policies.
A Word of Encouragement from the Panellists
Justice Loh wrapped up the entertaining and informative
discussion by asking the panellists for their concluding
thoughts. In response, Mr Wong reminded the audience
to pursue their dreams if they could afford it and if their
circumstances allowed them to do so. This was because
everybody is “only young once”.
Mr Singh noted that in spite of the uncertainties that lay
ahead, young lawyers should not be overly anxious or
fearful. After all, as he quipped, “life always has a way of
working out.” He reminded everybody that being legallytrained made lawyers one of the most adaptable groups
of people. He also reminded the attendees to pursue their
long-term goals, and not be afraid to take the road less
travelled.
Mrs Yuen Thio had perhaps the most heart-warming advice
of all: “Do something that you love, and live life with the
goal that you want to know that when you look back, you’re
happy about the journey that you walked. Life is made up
of the relationships you’ve formed, the friends you’ve made,
the times you’ve had. If you live your life every day with that
in mind, then that’s fine. Do something that’s for you. Stand
up for what you believe in.”
Concluding Thoughts
As Mrs Yuen Thio ended the discussion with that sentence, I
almost expected the audience to actually stand up and clap
– such were the conviction in her words. It was an inspiring
finish to an informative and entertaining session. Even as a
salary-less student, the $20 admission fee I had paid felt fully
justified. It was a meaningful night spent interacting face-toface with so many formidable and respectable individuals.
I thank the Academy and SCCA for putting the Singapore
Legal Career Forum together for the legal fraternity.
► Lee Kok Thong
Graduating Senior
SMU School of Law
15
News
CPD Requirements
Know Your CPD Requirements – Phase 2 of
CPD Scheme
With the Singapore Institute of Legal Education’s (“SILE”)
implementation of Phase 2 of the CPD Scheme from 1
January 2015, we would like to remind all advocates and
solicitors (including those practising as locum solicitors) of
your CPD Requirements. An Advisory from SILE was sent
in December 2014 to all advocates and solicitors who need
to fulfil the mandatory CPD requirement for 2015. The same
was published on SILE’s website (since December 2014)
and eJus News in January 2015.
All advocates and solicitors (including those practising as
locum solicitors) admitted to the Singapore Bar on or after
2 January 2010 (“Newly-Qualified Lawyers”) OR Senior
Lawyers admitted to the Singapore Bar between 2 January
2000 and 1 January 2010 (both dates inclusive) and holding
a Singapore practising certificate (“Practising Certificate”)
must meet the CPD Requirements set out in the CPD Rules
for this CPD year, ie 1 January 2015-31 December 2015.
Newly-Qualified Lawyers
If you are a Newly-Qualified Lawyer, between 1 January
2015 and 31 December 2015, you are required to fulfil the
following CPD Points Requirements:
a.
If you hold a Practising You need to obtain 16
Certificate for more than CPD Points. At least
eight must be Public
eight months
CPD Points
b.
If you hold a Practising
Certificate for more than
five months up to eight
months
c.
If you hold a Practising You do not need to obtain
Certificate
for
five any
minimum
CPD
months or less
Points
Senior Lawyers
If you are a Senior Lawyer, between 1 January 2015 and 31
December 2015, you are required to fulfil the following CPD
Points Requirements:
a.
If you hold a Practising You need to obtain eight
Certificate for more than CPD Points. At least
four must be Public CPD
eight months
Points
b.
If you hold a Practising
Certificate for more than
five months up to eight
months
c.
If you hold a Practising You do not need to obtain
minimum
CPD
Certificate
for
five any
Points
months or less
You need to obtain four
CPD Points. At least
two must be Public CPD
Points
The Law Society of Singapore organises CPD activities
throughout the year to assist members to achieve the
required public and private CPD points. Please refer to
the CPD portal for more information about our suite of
programmes: http://www.lawsoc.org.sg/. For enquiries
about our CPD programmes, please contact the CPD team
at: [email protected]/6538 2500.
You need to obtain eight
CPD Points. At least
four must be Public CPD
Points
Feature
Earlier this year, the UK Supreme Court handed down a landmark decision
modernising the law on consent with a focus on patient autonomy, and changing the
doctor-patient relationship. This article examines the UK decision and discusses its
implications in Singapore.
Consent: Time to Say Goodbye to Bolam and
Sidaway?
risks of proposed treatment falls outside the scope of the
Bolam test.3
Background
In 1999, Nadine Montgomery, the appellant, became
pregnant with her first child. She was 1.55 metres tall and
suffered from insulin dependent diabetes mellitus. Women
suffering from diabetes are likely to have babies that
are larger than normal, and they are at increased risk of
problems such foetal abnormalities and shoulder dystocia
(the baby’s shoulders becoming stuck above the pelvis). For
these reasons, Mrs Montgomery’s pregnancy was defined
as a high risk pregnancy requiring intensive monitoring.
The medico-legal community in the UK was in a terrific
tizzy when the UK Supreme Court issued its judgment in
Montgomery v Lanarkshire Health Board1 (“Montgomery”)
on 11 March 2015.
Before Montgomery, the law on consent was established
by two cases: Bolam v Friern Hospital Management
Committee [1957] WLR 582 (“Bolam”), and Sidaway v
Board of Governors of the Bethlem Royal Hospital and the
Maudsley Hospital [1985] AC 871 (“Sidaway”).
Under the Bolam test, a doctor would not be found to be
negligent if “he … acted in accordance with a practice
accepted as proper by a responsible body of medical men
skilled in that particular art”.2 In Sidaway, a majority of the
House of Lords confirmed the application of the Bolam test,
which had been applied in the context of the diagnosis and
treatment of a patient, to a failure to advise a patient of risks
involved in treatment.
In Montgomery however, the UK Supreme Court reversed
the judgments at first instance and on appeal, making clear
that in the UK, the doctor’s duty to advise her patient of the
During her pregnancy, Mrs Montgomery attended regularly at
a combined obstetric and diabetic clinic at Bellshill Maternity
Hospital. One Dr McLellan, a consultant obstetrician, was
in charge of her antenatal care and labour. Ultrasound
examinations were performed regularly to assess foetal
size and growth.
At her 36-week appointment, Mrs Montgomery expressed
concern about the size of her baby and that the baby would
be too big to deliver vaginally, and in her evidence, Dr
McLellan accepted that Mrs Montgomery’s concerns had
been raised with her more than once.
At trial, Dr McLellan gave evidence that the risk of shoulder
dystocia in diabetic mothers was 9-10 Per cent. In a vast
majority of shoulder dystocia cases, the shoulder dystocia
was dealt with by simple procedures. The chance of a
severe injury to the baby during such a delivery was
approximately 1 in 500 for a brachial plexus injury, and of
that number, approximately 1-2 per cent would be at risk of
cerebral palsy.4
However, Dr McLellan said that her practice was not to
spend any time discussing the potential risks of shoulder
dystocia. This was because the risk of a grave outcome
for the baby was very small. Dr McLellan said that if the
risk of shoulder dystocia was mentioned to every diabetic
Feature
patient, and the very small risk of the baby dying in labour
was mentioned to any mother, then everyone would ask for
a caesarean section, and it was not in the maternal interests
for women to have caesarean sections. Of course, if Mrs
Montgomery had raised the issue of risks with vaginal
delivery, Dr McLellan said that she would have advised
Mrs Montgomery about the risk of shoulder dystocia. Since
Mrs Montgomery had not done so, all Dr McLellan said to
Mrs Montgomery was that she should be able to deliver
vaginally, and that if there were difficulties during labour,
a caesarean section could be performed. Dr McLellan
contended that Mrs Montgomery accepted her advice,
and that if Mrs Montgomery had requested for an elective
caesarean section, Mrs Montgomery would have been
given one. Additionally, Dr McLellan decided that as a result
of these expressions of concerns, it was not psychologically
beneficial for Mrs Montgomery to have an ultrasound scan
at the 38th week.
Soon after her 38th week of pregnancy, Mrs Montgomery
underwent induction of labour at the Hospital. After some
time, the baby’s head was delivered. However, for the next
12 minutes, Dr McLellan attempted without success to
deliver the rest of the baby’s body. The baby’s shoulders
were obstructing delivery (shoulder dystocia), and during
those 12 minutes, his umbilical cord was occluded, depriving
him of oxygen. After his birth, the child was diagnosed
as suffering from cerebral palsy. He had also suffered a
brachial plexus injury resulting in paralysis of the arm.
Mrs Montgomery brought an action for damages in the
Scottish Courts on behalf of the child for the injuries he
sustained. She argued that she should have been informed
of the risk of shoulder dystocia, and that she should have
been offered and advised about the alternative of delivery
by caesarean section. If she had been informed of the risks
of shoulder dystocia, she would have wanted Dr McLellan
to explain what that meant, and the possible risks of the
outcomes. If she had considered that it was a significant
risk to her, she would have elected to deliver her baby by
caesarean section.
UK Supreme Court
All seven Judges of the UK Supreme Court allowed Mrs
Montgomery’s appeal. Lord Kerr and Lord Reed gave the
leading judgment, with which Lady Hale, Lord Neuberger,
Lord Clarke, Lord Wilson and Lord Hodge agreed. Lady
Hale gave a concurring judgment.
In their extensive review of the post-Bolam cases relating to
informed consent, Lord Kerr and Lord Reed commented that
the views and circumstances of an individual patient may
affect their attitude towards a proposed form of treatment and
the reasonable alternatives, and that the relative importance
attached by patients to the consequences (or lack thereof)
of medical treatment will vary as between patients. They
said that “[t]he doctor cannot form an objective ‘medical’
view of these matters, and is therefore not in a position to
take the ‘right’ decision as a matter of clinical judgment”.5
Lord Kerr and Lord Reed criticised the significance attached
in Sidaway to a patient’s failure to question the doctor
as “profoundly unsatisfactory”, taking the view that this
approach would lead, as in the case before them, to the
drawing of excessively fine distinctions between questioning
and expressions of concern falling short of questioning.6
They said that there was “something unreal about placing
the onus of asking upon a patient who may not know that
there is anything to ask about”. In their view, it was those
who lacked knowledge about the risks they faced, and who
were as a consequence unable to ask specific questions
about those risks and instead expressed their anxiety
in more general terms, who were in the greatest need of
information. The Sidaway approach also disregarded
the “social and psychological realities of the relationship
between a patient and her doctor”, where patients might
feel too intimidated or inhibited to question their doctor.
Lord Kerr and Lord Reed noted that the English Courts
had been moving away from Sidaway’s adoption of the
Bolam test as the measure of a doctor’s duty to disclose
information about the potential risks of proposed medical
treatment, and towards recognising the right of patients to
know of significant risks in the treatment proposed to them.7
In their view, it had become clear since Sidaway that “the
paradigm of the doctor-patient relationship implicit in the
speeches in that case [had] ceased to reflect the reality
and complexity of the way in which healthcare services are
provided or the way in which the providers and recipients of
such services view their relationship”.8 Patients had become
“widely regarded as persons holding rights, rather than as
the passive recipients of the care of the medical profession”,
and were “widely treated as consumers exercising choices”.
It had also become far easier and far more common
for members of the public to obtain information about
symptoms, investigations, treatment options risks and sideeffects. Given the changes in the provision of healthcare
services and society, “[i]t would therefore be a mistake to
view patients as uninformed, incapable of understanding
medical matters or wholly dependent upon a flow of
information from doctors”.9
All these social and legal developments pointed away from
a model of the relationship between the doctor and the
patient based upon medical paternalism, and pointed away
Continued on page 20
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Feature
Continued from page 17
from a model based upon a view of the patient as being
entirely dependent on information provided by the doctor.10
What they pointed towards was an approach to the law
which treats patients so far as possible as adults capable
of understanding that medical treatment is uncertain of
success and may involve risks, of accepting responsibility for
the taking of risks affecting their own lives, and of living with
the consequences of their choices. This approach entailed
a duty on doctors to take reasonable care to ensure that
patients are aware of material risks inherent in treatment.11
Lord Kerr and Lord Reed continued to hammer nails in
Bolam’s coffin, commenting that because the extent to
which a doctor may be inclined to discuss risks with a patient
is not determined by medical learning or experience, the
application of the Bolam test could result in the sanctioning
of differences in practice, which would be attributable not to
divergent schools of thought in medical science, but merely
to divergent attitudes among doctors as to the degree of
respect owed to their patients’ autonomy.12
Finally, Lord Kerr and Lord Reed set out what they opined
was the correct position in relation to the risks of injury
involved in treatment:13
An adult of sound mind is entitled to decide which, if any,
of the available forms of treatment to undergo, and her
consent must be obtained before treatment interfering
with her bodily integrity is undertaken. The doctor is
therefore under a duty to take reasonable care to
ensure that the patient is aware of any material
risks involved in any recommended treatment,
and of any reasonable alternative or variant
treatments. The test of materiality is whether, in the
circumstances of the particular case, a reasonable
person in the patient’s position would be likely
to attach significance to the risk, or the doctor is
or should reasonably be aware that the particular
patient would be likely to attach significance to it14
(emphasis added).
Lord Kerr and Lord Reed added that the assessment of
whether a risk is material is fact-sensitive and cannot
be reduced to percentages.15 The factors affecting the
significance of a given risk may include the nature of the
risk, the effect which its occurrence would have upon the life
of the patient, the importance to the patient of the benefits
sought to be achieved by the treatment, the alternatives
available, and the risks involved in those alternatives. Also,
the therapeutic exception should not be abused.16
On the facts, Lord Kerr and Lord Reed took the view that Dr
McLellan should have advised Mrs Montgomery of the risk
of shoulder dystocia if she were to have her baby by vaginal
delivery, and to discuss with her the alternative of delivery
by caesarean section.17 Even though the risk that the baby
might suffer a grave injury was small, shoulder dystocia was
a major obstetric emergency requiring procedures which
might be traumatic for the mother and involving significant
risks to her health. In stark contrast, the risk involved in an
elective caesarean section for the mother was extremely
small, and for the baby, virtually non-existent.
Lord Kerr and Lord Reed concluded that if Dr McLellan
advised Mrs Montgomery of the risk of shoulder dystocia
and discussed with her the potential consequences, and the
alternative of a caesarean section, Mrs Montgomery would
probably have elected to deliver by caesarean section.18
The baby would then have been born unharmed.
In her judgment, Lady Hale emphasised the right of
autonomy, the freedom to decide what shall and shall not be
done with one’s body. She said that the issue is not whether
enough information was given to ensure consent to the
procedure, but whether there is enough information given
so that the doctor is not acting negligently, and is giving due
protection to the patient’s right of autonomy.19
Following from this, it is not possible to consider a particular
medical procedure in isolation from its alternatives;
sufficient information must be given so that arguments for
and against each of the options can be considered.20 In
pregnancy, for example, doctors should volunteer the pros
and cons of each option where either the mother or the child
is at heightened risk from a vaginal delivery.21
In Lady Hale’s opinion, Dr McLellan’s view that it was not in
the interests of women to have caesarean sections, did not
look like a purely medical judgment, but a value judgment.22
Lady Hale opined that once purely medical considerations
are departed from, and value judgments are involved, the
Bolam test of conduct supported by a responsible body of
medical opinion becomes quite inapposite.23
Lady Hale said that a patient is entitled to take into account
their own values, and they are entitled to the information
which will enable them to take part in deciding on the
treatment they are to receive.24 The medical profession
must respect the patient’s choice, unless the patient lacks
the legal capacity to decide.
Commentary
In Singapore, there appears to be a divergence between
what the position might be in law, and what the position is
in medical practice. In 2002, the Singapore Court of Appeal
Feature
affirmed in Khoo James v Gunapathy d/o Muniandy [2002]
2 SLR 414 (“Gunapathy”) that the Bolam test applied to the
issue of advice. Notwithstanding that the Court of Appeal
clarified in Gunapathy that it was not actually making a
pronouncement on the doctrine of consent, since the issue
had not been fully addressed in submissions,25 a line of
subsequent High Court cases followed, applying the Bolam
test to the issue of advice. 26 The High Court considered
itself bound by Gunapathy.
In Montgomery, Lord Kerr and Lord Reed noted that
developments in the doctor-patient relationship, seeing
patients as “persons holding rights” and “consumers
exercising choices” had been reflected in the guidance
given to doctors by the General Medical Council (“GMC”) (a
body similar to the Singapore Medical Council (“SMC”)).27
To the extent that guidelines issued by the SMC on consent
can be said to be an indication of the attitude of society
towards patient autonomy at that time, it is submitted that
the SMC had as early as 2002 when it published its Ethical
Code and Ethical Guidelines, recognised patient autonomy
as being as broad as described in Montgomery:
4.2.2
Informed consent
It is a doctor’s responsibility to ensure that a patient
under his care is adequately informed about his
medical condition and options for treatment so that he
is able to participate in decisions about his treatment.
If a procedure needs to be performed, the patient shall
be made aware of the benefits, risks and possible
complications of the procedure and any alternatives
available to him…
…
4.2.4
Patient’s right to information
determination
4.2.4.1
Right to information
and
self
A doctor shall provide adequate information to a patient
so that he can make informed choices about his further
medical management. A doctor shall provide information
to the best of his ability, communicate clearly and in a
language that is understood by the patient.
A doctor shall respect a patient’s choice of accepting or
rejecting advice / treatment that is offered, after steps
have been taken to ensure that there is no language
barrier and the patient understands the consequences
of his choice … 28
It is submitted that this breadth of patient autonomy in
Singapore has also been recognised by the medical
profession in newsletters published in the Singapore Medical
Association (“SMA”).29 In their July 2011 newsletter, it was
noted that “[r]ecent judgments in hearings of professional
disciplinary tribunals have suggested a move to a more
patient-centred standard of disclosure, as being the
preferred professional standard”, and that the “professional
standards of consent have clearly moved [so that] patients
must be given options to choose, and not just information
of one line of treatment”.30 Their July 2013 newsletter listed
information that a patient may need to know and understand
in making an informed decision, including the risks and
likelihood of risks materialising, and the risks and benefits of
other options, and exhorted medical practitioners to discuss
“serious risks, even those of low frequency”.31
Our High Court had commented in D’Conceicao Jeanie
Doris v Tong Ming Chuan [2011] SGHC 193 that the growing
emphasis on human rights and autonomy in the UK could
be attributed to the European Convention of Human Rights
(“ECHR”), which the English Courts were bound by, but not
the Singapore Courts.32 With respect, it is submitted that
there is a difference between diagnosing and treating, and
discussing with a patient the risks of a treatment plan and
possible alternatives. As recognised by the UK Supreme
Court and the High Court of Australia, the former involves
the exercise of professional skill and judgment and is “a
matter falling within the expertise of members of the medical
profession”.33 The latter does not depend upon medical
standards or practices, and does not involve the exercise
of any special medical skill, the kind with which the Bolam
test is concerned.34 Diagnosis and treatment is something
that is performed on the patient, whereas medical advice is
meant to enable the patient to make an informed decision.35
The UK Supreme Court added, rather scathingly, that
“because the extent to which a doctor may be inclined to
discuss risks with a patient is not determined by medical
learning or experience”, the application of the Bolam test to
the issue of advice was “liable to result in the sanctioning
of differences in practice which are attributable not to
divergent schools of thought in medical science, but merely
to divergent attitudes among doctors as to the degree of
respect owed to their patients”.36
Practical Implications in Singapore
It may take some time for a definitive ruling by our Court
of Appeal on whether the Bolam test should continue to
be applicable to medical advice, or whether society has
changed such that a patient’s right to decide whether or not
to submit to the medical treatment proposed now takes the
Feature
forefront, giving rise in turn to their right to know of material
risks inherent in the treatment and alternatives.
Meanwhile, it is submitted that medical practitioners in
Singapore should adopt a patient-centred approach in
obtaining consent, with the aim of “empowering patients to
make their own decisions about important procedures to be
undertaken on their bodies on the basis of information about
material risks relevant to them”,37 bearing in mind that what
may seem immaterial to them because of the low probability
of the risk eventuating may be material to the particular
patient because of the nature of the risk involved.38
The test of materiality has already been set out above39
(refer to the portion in bold), and the factors affecting the
significance of a risk set out immediately after. Additionally, if
it is agreed that patient autonomy and patient empowerment
should now guide the extent of disclosure to be performed,
then it is suggested that medical practitioners consider
informing patients also of any information that the medical
practitioner himself or herself considers material, taking
into account the nature of the matter to be disclosed, the
nature and/or the necessity of the proposed treatment, the
patient’s desire for information,40 the patient’s health and
temperament, alternative sources of advice or treatment,
and general matters such as the patient’s occupation.
The UK Supreme Court said that the doctor must aim to
ensure that the patient understands the seriousness of his
or her condition, the anticipated benefits and risks of the
proposed treatment, and any reasonable alternatives.41 It
would follow that a doctor’s obligation will not be fulfilled
by “bombarding the patient with technical information which
they cannot be expected to grasp”;42 the information provided
must be comprehensible.43 It may not be discharged by
simply dumping information leaflets on patients; there must
be dialogue.44
But what if the patient does not wish to have such a
discussion? The UK Supreme Court anticipated this
possibility and said that the doctor would not be obliged to
discuss the risks inherent in treatment with them. 45 After all,
a request not to be given information is similarly an exercise
by the patient of their autonomy.46
With respect to record keeping, it is submitted that it can now
only be in the interests of doctors to take and keep detailed
contemporaneous notes on the consent-taking process, as
well as the patient’s attitude to discussing the risks inherent
in treatment, and to advice. Doctors should note that the UK
Supreme Court in Montgomery indicated that they will not
be able to rely simply on a signature on a consent form as
evidence that they had discharged their duty. 47
The Outer House of the Scottish Court of Session had
observed more than ten years ago that medical records
may not contain a complete record of events, and that
hospital records are not maintained by lawyers or for the
use of lawyers, but are maintained for medical purposes.48
The Court also said that “the courts should not give any
encouragement to the development of ‘defensive’ recordkeeping”. Our own High Court has been cautious about
“rais[ing] the spectre of defensive medicine”.49
The UK Supreme Court did recognise that the legal
obligations they were imposing on doctors would be liable to
result in defensive practices and an increase in litigation.50
However, the members of the UK Supreme Court were
unanimous in their view that an approach which results
in patients being aware that the outcome of treatment is
uncertain and potentially dangerous, and in their taking
responsibility for the ultimate choice to undergo that
treatment, may be less likely to encourage recriminations
and litigation, than an approach which requires patients to
rely on their doctors to determine whether a risk inherent in
a particular form of treatment should be incurred.51
In any event, doctors in Singapore already appear to be
aware that good medical documentation is essential in
defending against negligence claims, and that it is in their
interests to document material risks discussed with the
patient.52 Perhaps the only questions are how much longer
queues and waiting lists will grow from doctors spending
more time in discussion with their patients, and how dramatic
a rise there will be in the consultation fees of medical
practitioners in private practice to account for the greater
amount of time spent with each patient at consultations.53
►
Alicia Zhuang*
Australian Lawyer
Advocate & Solicitor
*The author is grateful to Dr Brenda McGivern, Mr Palaniappan
Sundararaj and Ms Vanessa Lim for their helpful suggestions and
comments. All errors are the author’s own.
Notes
1
[2015] 2 WLR 768.
2
Bolam v Friern Hospital Management Committee [1957] WLR 582 at 587.
3See Montgomery v Lanarkshire Health Board [2015] 2 WLR 768 at [86] (“Montgomery”).
4
See Montgomery v Lanarkshire Health Board [2010] CSOH 104 at [171].
5
Montgomery, supra (note 3 above) at [46].
6
Ibid, at [58].
7
Ibid, at [69].
Feature
8
Ibid, at [75].
9
Ibid, at [76].
10
Ibid, at [81].
11
Ibid, at [82].
33See Montgomery, supra (note 3 above) at [82]-[84]; Rogers, supra (note 14 above) at
489-490 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.
12
Ibid, at [84].
34Contrast Gunapathy, supra (note 25 above) at [3] and [144].
13
Ibid, at [87].
35
J Devereux, “It’s Just a Jump to the Left – and then a Step to the Right: Developments
post Rogers v Whitaker in the Law Relating to Failure by a Medical Practitioner to
Advise of Risks” (1998) 17(1) University of Tasmania Law Review 63, p 69.
36
37
See Tracey Carver and Malcolm Smith, “Medical Negligence, Causation and Liability
for Non-Disclosure of Risk: A Post-Wallace Framework and Critique” (2014) 37(3)
University of New South Wales Law Journal 972 p 973.
to see why … [that] should mean that an individual’s autonomy to decide whether
to undergo treatment is either non-existent or should not be taken into account in
formulating legal principles”.
14In Rosenberg v Percival [2001] HCA 18, Gummow J commented at [79] that the
equivalent limb in the equivalent test in Rogers v Whitaker (1992) 175 CLR 479
(“Rogers”) recognises that the particular patient may not be a “reasonable” one, and
may have a number of “unreasonable” fears or concerns.
15
16
Ibid, at [91].
17
Ibid, at [94].
18
Ibid, at [104].
19
Ibid, at [108]. See also Mrs A v East Kent Hospitals University NHS Foundation Trust
[2015] EWHC 1038 at [90].
20
Ibid, at [109].
21
Ibid, at [111].
38See F v R (1983) 33 SASR 189 at 192-193 per King CJ.
39Cf. Rogers, supra (note 14 above) at 490; Videto v Kennedy (1981) 125 D.L.R. (3d) 127,
133-134 (Ont. C.A.).
22See Montgomery, supra (note 3 above) at [114]-[115].
23
24
Ibid.
25See Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 414 at [142]-[143]
(“Gunapathy”). Contrast Tong Seok May Joanne v Yau Hok Man Gordon [2013] 2 SLR
18 at [60], at which Andrew Ang J opined that “the law in Singapore [was] clear”, and
that the Court of Appeal in Gunapathy had “considered and approved the Bolam test
in the context of giving advice”.
26
See for eg Surender Singh s/o Jagdish Singh v Li Man Kay [2010] 1 SLR 428; D’Conceicao
Jeanie Doris v Tong Ming Chuan [2011] SGHC 193 (“D’Conceicao”) and Tong Seok
May Joanne v Yau Hok Man Gordon [2013] 2 SLR 18.
40 For eg the patient-plaintiff in Rogers, supra (note 14 above) was noted to have
“incessantly questioned the doctor as to possible complications”, and to be “keenly
interested in the outcome of the suggested procedure”, and the patient-plaintiff in
Rosenberg, supra (note 13 above) was noted to have “questioned her doctor closely
about possible complications”. Contrast NM v Lanarkshire Health Board [2013] CSIH
3 at [36] where Lord Eassie opined that a patient’s expression of generalized anxiety in
advance of surgery or other medical procedure may appear to warrant only reassurance
in reply.
41See Montgomery, supra (note 3 above) at [90]. Contrast Michael Jones, Medical
Negligence (Third edition, Sweet & Maxwell, 2003) at para 6-132, where the author
suggests that the duty is not to make the patient understand, but to make a reasonable
effort to communicate information to the patient.
42Cf. NM v Lanarkshire Health Board, supra (note 40 above) at [41] where Lord Eassie
pointed out that too much in the way of information or warnings may only serve to
confuse or alarm the patient.
43See Montgomery, supra (note 3 above) at [90].
44
Quaere, whether the doctor’s obligation would be discharged by delegating the duty to
advise to, for example, nurses, and the extent to which it may be delegated.
45
See Montgomery, supra (note 3 above) at [85]. See also F v R, supra (note 38 above)
at 193 where King CJ said that “a doctor is not required to inflict on his patients
information which they do not seek and do not want”.
27See Montgomery, supra (note 3 above) at [77]-[79].
28
It is submitted that the adequacy of the information provided should no longer (if
it were ever so) be measured against the standard of care set out in Bolam, and that
following Montgomery, the standard of care and hybrid subjective-objective test set out
in Montgomery should be adopted.
29
See for eg T Thirumoorthy, “The Legal and Professional Standards of Consent in
Clinical Practice” 7 Singapore Medical Association News 43, 20; T Thirumoorthy,
“Consent in Medical Practice 1” 45 Singapore Medical Association News 6, 44; T
Thirumoorthy, “Consent in Medical Practice 2”45 Singapore Medical Association News
7, 11.
30 T Thirumoorthy, “The Legal and Professional Standards of Consent in Clinical
Practice” 43 Singapore Medical Association News 7, 21. See Eu Kong Weng v Singapore
Medical Council [2011] 2 SLR 1089 at [5] where it was noted that the Disciplinary
Committee (“DC”) of the Singapore Medical Council (“SMC”) had taken the view
that a doctor must explain to the patient all the options (of which he has knowledge)
and risks involved before treating the patient, and Low Cze Hong v Singapore Medical
Council [2008] 3 SLR(R) 612 at [83] where an extract of the verdict of the DC of
the SMC was reproduced: “The Committee also stresses the critical importance of
patients understanding all options available, and the risks and benefits of these options,
especially when treatment is elective”.
31
T Thirumoorthy, “Consent in Medical Practice 2” 45 Singapore Medical Association
News 7, 11-12.
32
D’Conceicao, supra (note 26 above) at [123]. See also Paul Tan, “Biomedical Law and
Ethics” (2012) 13 SAL Ann Rev 89, p 91 where the author argues that “[i]t is difficult
46See F v R, supra (note 38 above) at 193 per King CJ.
48See Jean Antonucci or McConnnell v Ayrshire and Arran Health Board (Lord Reed,
unreported 14 February 2001) at [28].
49
See for eg Gunapathy, supra (note 25 above) at [144].
51See Montgomery, supra (note 3 above) at [93]. See also the insightful comment made
to the blog post at <http://ukhumanrightsblog.com/2015/03/13/supreme-courtreverses-informed-consent-ruling-sidaway-is-dead/ by Andrew Smith QC, counsel for
the GMC in Montgomery > (accessed 20 March 2015).
52
See for eg T Thirumoorthy, “Consent in Medical Practice 1” 45 Singapore Medical
Association News 6; T Thirumoorthy, “Consent in Medical Practice 2”, 45 Singapore
Medical Association News 7. See also T Thirumoorthy, “Consent in Medical Practice
4”, 45 Singapore Medical Association News 9, 15, where the author sets out
aspects of the consent process and suggests that they be documented in the form of
contemporaneous case notes.
53
Delegation of the duty, as suggested at note 44 above, may be a possible solution.
Feature
24
This article examines the role an offender’s lack of antecedents should play in the
offender’s sentencing. It is argued that all an offender’s clean record should do is
to reduce or obviate the need to effect specific deterrence in coming up with an
appropriate sentence; by itself, it should not operate to support a departure from an
established benchmark, nor justify a distinct discount in the overall sentence.
An Offender’s Lack of Antecedents: A Closer
Look at its Role in Sentencing
Introduction
Criminal Courts have to pass sentence on first offenders on
a daily basis. These are accused persons who have been
convicted for an offence(s) but who are facing their first
brush with the law. In other words, they have a clean record;
they do not have any antecedents. But what impact should
this first offender status have in a Court’s consideration of
the appropriate sentence?1 Is it a personal mitigating factor2
that operates to justify a discount in the overall sentence? Or
is it just a neutral factor that should not have any relevance
on the sentence?
It appears that a clear answer eludes this seemingly
straightforward question. Criminal practitioners frequently
cite an offender’s lack of antecedents as a mitigating factor,
and Courts have on occasion explicitly stated that they treat
it as such.3 Contrastingly, there have also been cases where
the Courts intimated that an offender’s lack of antecedents
per se is merely a neutral factor.4 Furthermore, there is a
line of cases5 which suggests that whether an offender’s
lack of antecedents is of mitigating value depends on
the seriousness of the offence(s) involved and the public
interest at stake.6
As observed by Andrew Ashworth, “the concepts of
aggravation and mitigation have tended to attract little close
examination or theoretical discussion”.7 Given what has
been highlighted in the preceding paragraph, it is submitted
that an offender’s lack of antecedents is quite clearly one
such sentencing consideration that has been overlooked
and merits closer analysis. After all, whether a factor is
deemed aggravating, neutral or mitigating can have a
significant impact on the sentence meted out, and thus it is
“vital that sentencers consider and apply factors in a uniform
manner… equality and fairness … require sentencers to
apply mitigating and aggravating factors consistently”.8
25
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This article explores whether there is a defensible rationale
to a Court considering an offender’s lack of antecedents
in sentencing, and flowing from that, how exactly should
the lack of antecedents affect the determination of the
appropriate sentence. It will be argued that an offender’s
clean record should not be viewed as truly a mitigating factor
that justifies a distinct discount in the sentence passed, but
rather, it simply signals that there is less or no need for a
Court to aggravate the sentence by virtue of the need to
effect specific deterrence. In this sense, an offender’s lack
of antecedents would be more accurately classified as a
neutral factor.
First Possible Justification: Presence of Antecedents
is an Aggravating Factor and Thus the Lack of it
Should be Mitigating
There are three likely justifications as to why an offender’s
lack of antecedents may be commonly or intuitively viewed
as a mitigating factor. The first is that it is trite that the
presence of an offender’s antecedents, in particular relevant
antecedents, is an aggravating factor.9 As such, the fact
that such antecedents are absent should be treated as a
mitigating factor. While such a proposition may be defensible
in the past, it is no longer so in light of recent clear judicial
exhortation that the absence of an aggravating factor does
not ipso facto equate to the presence of a mitigating factor.10
Rather, it amounts to a neutral factor. On this basis, it may
be argued that an offender’s lack of antecedents is but a
neutral factor.
To be sure, this argument that lack of antecedents is not a
mitigating but merely a neutral factor has limited strength,
since it considers only the categorisation of sentencing
factors. The position that the absence of an aggravating
factor does not equate to the presence of a mitigating factor
does not necessarily preclude the finding that a factor can
in fact be a mitigating one; one has to dig deeper to find out
whether there is any underlying reason as to whether lack
of antecedents should affect the ultimate sentence.
Second Possible Justification: Absence of
Antecedents Reflects Good Character, for which
Credit should be Granted
This leads us to the second possible justification, which
is that an offender’s clean record reflects his past good
character, and therefore credit, in the form of a discount to his
sentence, should be given for that good character.11 While
this argument does take us a little further towards a more indepth understanding of whether lack of antecedents should
affect one’s sentence, it is submitted that this justification
is also not defensible. In the first place, it has been pointed
out by some that “the absence of a criminal record was not
necessarily to be equated with positively good character”.12
This makes sense if one considers that there may be
those who have committed offences but who are fortunate
enough to so far escape being caught, or those who may
have the intention to commit offences but the opportunity
never arose.
Even assuming one’s clean record can be treated as
evidence of good character, it is difficult to see why credit
should be accorded for that. Surely it is the duty of every
person to not commit a crime,13 so why should a first
offender be in a sense commended and rewarded for not
having offended before? For everyone else who lives their
lives never committing any offence, it does not appear that
equivalent credit is given in any other form.
Moreover, stronger evidence of good character of an
offender can be seen where he or she has provided
distinguished public service or services of substantial value
to the community, and locally this has been recognised to be
a valid mitigating factor.14 However, this “social accounting”
approach has been seriously questioned by commentators,
on the grounds that: (i) it is doubtful whether it is a Court’s
proper function to concern itself with such matters when it
is passing sentence for the particular crime(s) committed;15
and (ii) positive social acts “have an adventitious element
– opportunities to contribute to the community may arise
by chance – and nor are these opportunities equal across
social strata”.16 If the more apparent version of mitigation
by dint of positive good character has been criticised,
there is definitely reason to be sceptical about whether the
weaker version, ie lack of antecedents, should provide any
mitigating value.
Third Possible Justification: Lack of Antecedents
Suggests that the Accused’s Offending was Out-ofCharacter
The third justification is that an offender’s clean record is
evidence that his or her offending was out-of-character.17
The Court may hence infer that the offending is probably
one-off, and that the offender is unlikely to re-offend.18 In my
view, this justification is much more tenable than the above
two. Not only is it logical and has an intuitive appeal, that
a first offender is less likely to re-offend is also supported
by empirical evidence. Although there appears to be no
statistics on the recidivism rates of first offenders (as
compared to repeat offenders) in Singapore, studies done
in other jurisdictions suggest that generally speaking, a first
offender is significantly less likely than repeat offenders
to re-offend. For instance, a 2004 study done in the US
revealed that offenders with no criminal history have a two-
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26
year recidivism rate of 11.7 per cent.19 This is substantially
lower than the rate for those with a criminal record, which is
22.6 per cent. Similarly, a 2008 study done in New Zealand
showed that the re-conviction rate of first offenders was 49
per cent, while that for recidivists was 78 per cent.20
But should the fact that an offender is unlikely to re-offend
affect sentencing, and if so, in what way? It is submitted that
that fact should affect sentencing in that there is less or
even no need to take into account specific deterrence
in deciding the appropriate sentence. In other words,
there is little or no need to increase or add a component
to the sentence to effect specific deterrence. In PP v
Law Aik Meng,21 the High Court opined that specific
deterrence “seeks to instill in a particular offender the fear of
re-offending through the potential threat of re-experiencing
the same sanction previously imposed”. Therefore, where
an offender’s offence was wholly out-of-character and this
suggests the unlikelihood of him or her re-offending, “specific
deterrence fails to qualify as a relevant consideration, let
alone a crucial one”.22
Key Takeaways from Having Discerned the Most
Defensible Justification for Lack of Antecedents as
a Sentencing Consideration
There are a number of key implications and takeaways
arising from the above understanding of how an offender’s
lack of antecedents should impact sentencing. Firstly,
the consideration acts to minimise or obviate the need to
increase an offender’s sentence by reason of the need
to effect specific deterrence. If one were to consider the
definition of a mitigating factor in the broadest possible
sense, that is, a factor that tends to reduce the severity of an
overall sentence,23 then an offender’s lack of antecedents
will qualify as a “mitigating” factor.
It should be underscored however, that the lack of
antecedents in itself is not something that an offender
should be given credit for, nor is it something that
should work by justifying a distinct reduction from
the usual benchmark sentence. In this sense, lack of
antecedents is different from the “true” mitigating factors
such as an offender’s remorse, restitution, extreme illhealth or hardship, or provocation from victim etc, which do
operate to justify a distinct departure from the benchmark.24
Hence, where a benchmark sentence exists for the offence
involved, Courts should not mete out a lower sentence
because of an offender’s clean record per se. A reduction,
if any, has to be justified by some other mitigating factor(s).
From this perspective, it would be more accurate to classify
lack of antecedents as a neutral factor.25 At the risk of stating
an obvious but additional point, where there are precedents
which show a particular usual range of sentence for first
offenders, then by reason of the need to decide like cases
alike, an offender’s lack of antecedents per se should also
not justify a departure from that usual range.
Second, where there is no established benchmark or starting
point sentence for a particular offence, then an offender’s
clean record simply signals that there is little or no need
to factor in specific deterrence in deciding the appropriate
sentence. The crucial question in such a situation is: what
overall sentence for a first offender is appropriate, taking into
account the other sentencing rationales such as general
deterrence, retribution, protection and rehabilitation, as well
as the full spectrum of sentences enacted by Parliament.26
In particular, that there is minimal need to effect specific
deterrence does not preclude a finding of a need to effect
general deterrence. The latter turns very much on factors
such as the seriousness of the offence and the public
interest involved.27 Indeed, this approach neatly sheds
light on why exactly Courts have held that where serious
offences are concerned, an offender’s clean record will
be of little or no assistance to him.28 It is not so much that
lack of antecedents may have changing mitigating value
depending on the seriousness of the offence involved
(which is a rather strange proposition). Rather, the effect of
lack of antecedents is the same regardless of the offence,
but the ultimate sentence varies as a result of the need
to weigh in the other sentencing rationales (most usually
general deterrence).
Finally, since lack of antecedents should only have an effect
on the sentence because it is evidence that the accused
has acted out-of-character, any countervailing evidence
that evinces that the accused has in fact not acted out-ofcharacter should negate such an effect. This would include
instances where:
1. though it is the accused’s first offence, there is evidence
that the offence was premeditated;29
2. the first offender is charged with multiple offences
committed over a period of time;30
3. the first offender is charged with an offence(s) that arose
from a single incident and which is not premeditated,
but there is evidence to show that the offending was
otherwise not out-of-character (eg prior to the incident,
the accused had done some other acts which are a
nascent but non-criminal form of the offence(s)).
In such cases, the first offender cannot be said to have acted
out-of-character and specific deterrence may accordingly
have to be given its full effect in determining the appropriate
sentence.
27
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being imposed on them”. For a more recent example where a High Court has hinted at
the irrelevance of an offender’s clean record in sentencing, see Edwin s/o Suse Nathen v
PP [2013] 4 SLR 1139 at [37] (“Edwin Nathen”).
Conclusion
This note is a very modest attempt at elucidating the most
defensible rationale for considering an offender’s clean
record in sentencing. After all, it has been pointed out that “it
would be useful … to articulate the rationale for considering
specific mitigating and aggravating factors … awareness of
the justification for mitigation will focus sentencers’ attention
on the question of relevance”.31 In this regard, it has been
argued that all an offender’s lack of antecedents should do
is to reduce or remove the need to effect specific deterrence
in coming up with a condign sentence. By itself, it should not
work to support a departure from an established sentencing
tariff, nor justify a distinct discount in the overall sentence.
And although as a consequence it has been further
contended that contrary to common perception, an accused
person’s lack of antecedents should more properly be
viewed as a neutral rather than a mitigating factor, it would
be too idealistic to think that practitioners and Courts will
be able, or even interested, to change the label any time
soon. Part of this probably also arises from the fact that
there has been little concerted effort to identify what exactly
qualifies as a mitigating factor and how it should affect
sentencing.32 A discussion of that controversy however,
rests beyond the scope of this note. But regardless of how
one labels an offender’s lack of antecedents, it is hoped
that in determining the appropriate sentence, Courts will at
least keep in mind what its suggested impact should be,
and apply that consistently and fairly across all cases.33
5
See Sentencing Practice, supra (note 1 above) at 147 to 148 and Sentencing Principles,
supra (note 2 above) at [21.020] and [21.044]ff.
6
It is also worth mentioning that in one High Court case, it was hinted that an
offender’s clean record, which arguably reflects his or her good character, may in fact
be relevant as an aggravating factor in that the offence is so much greater because the
offender should have known better (see Tan Fook Sum, supra (note 4 above) at [32]).
This rather extreme view does not appear to have been applied in any cases since and
may thus for present purposes be disregarded.
7
Andrew Ashworth, Sentencing and Criminal Justice, (Fifth edition, Cambridge:
Cambridge University Press, 2010), p 156 (“Sentencing and Criminal Justice”).
8
Julian V. Roberts, “Punishing, more or less: exploring aggravation and mitigation
at sentencing” in Julian V. Roberts, ed, Mitigation and Aggravation at Sentencing
(Cambridge: Cambridge University Press, 2011), p 1 at 3 (“Punishing, more or less”).
9
See generally Sentencing Principles, supra (note 2 above) at [21.061]ff.
10
Edwin Nathen, supra (note 4 above) at [24]-[26].
11
See Ryan v The Queen [2001] HCA 21 at [29]-[30] (“Ryan”) and R v Chan Ka-choi
[1988] 1 HKLR 530 at 534. See generally Sentencing Practice, supra (note 1 above), p
147.
12
See PP v UI [2008] 4 SLR(R) 500 at [69], citing the UK Sentencing Advisory Panel’s
written advice dated 24 May 2002 to the English Court of Appeal on sentencing
guidelines for rape offences at [46].
13
In PP v Wu Zhenhao Kevin [2013] SGDC 57 at [23] (“Kevin”), the Court commented
that “[w]hile it was true that the accused was a first offender who had never run afoul
of the law, this carried little weight as all police officers are expected in the first place
to be persons of good character with no prior criminal record”. In my view, such a
proposition should apply with equal force to all persons.
14
► Benny Tan
LLB (Hons) (NUS)
Tutor, Legal Skills Programme
National University of Singapore,
Faculty of Law
Notes
1
See generally Sentencing Practice in the Subordinate Courts (Third edition, Singpore:
LexisNexis, 2013), pp 147-148 (“Sentencing Practice”).
2
Personal mitigating factor or personal mitigation refers to sentencing factors relating to
the offender rather than the offence (Kow Keng Siong, Sentencing Principles in Singapore
(Singapore: Academy Publishing, 2009) at [15.010] (“Sentencing Principles”)). This is
in contrast to offence-specific mitigating factors.
3
See for a recent example PP v Chong Hou En [2015] SGHC 69 at [18a] and [70].
4
See Sentencing Principles, supra (note 2 above) at [21.016], citing the High Court case
of PP v Tan Fook Sum [1999] 1 SLR(R) 1022 at [32] (“Tan Fook Sum”). Although
the Court clarified subsequently in Chua Siew Lin v PP [2004] 4 SLR(R) 497 at [60]
that in Tan Fook Sum it was not holding that an offender’s lack of antecedents has
no mitigating value whatsoever, and that it is trite law that the absence of a prior
conviction provides some degree of mitigation for an offender, not longer after in
Md Anverdeen Basheer v PP [2004] SGHC 233 at [68], the High Court commented
that “[t]he fact that these two [offenders] had no antecedents was also not relevant [in
sentencing], because the presence of antecedents would lead to an enhanced sentence
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28
Sentencing and Criminal Justice, supra (note 7 above) at 182 to 183; Andrew Ashworth,
“Re-evaluating the justifications for aggravation and mitigation at sentencing” in Julian
V. Roberts, ed, Mitigation and Aggravation at Sentencing (Cambridge: Cambridge
University Press, 2011), p 21 at 28-29. See also Edwin Nathen, supra (note 4 above) at
37.
24
See esp Edwin Nathen, supra (note 4 above) at [26].
25
For a similar view, see I Grenville Cross, SC, Patrick WS Cheung & Elaine YL Tsui,
Sentencing in Hong Kong (Fourth edition, Hong Kong: LexisNexis Butterworths,
2003), p 69.
16
Punishing, more or less, supra (note 8 above) at fn 12.
26
17
Wong Hoi Len v PP [2009] 1 SLR(R) 115 at [45].
“Sentencing Conference 2014 (9 Oct 2014) – Opening Address by Chief Justice
Sundaresh Menon” (Feb 2015) Singapore Law Gazette 8 at [10], citing Poh Boon Kiat v
PP [2014] SGHC 186 at [60] (“Sentencing Conference 2014 Opening Address”).
18
Ryan, supra (note 11 above) at [29]. See for eg Kevin, supra (note 13 above) at [23].
27
See generally Law Aik Meng, supra (note 21 above) at [24]-[27].
19
“Recidivism and the ‘First Offender’ – A Component of the Fifteen Year Report on
the U.S. Sentencing Commission’s Legislative Mandate” (May 2004); available online
at: <http://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2004/200405_Recidivism_First_Offender.pdf>.
28
Supra (note 5 above).
29
See Tan Fook Sum, supra (note 4 above) at [18].
30
New Zealand Department of Corrections, “Reconviction patterns of released prisoners:
A 48-months follow up analysis” (15 September 2008);, available online at: <http://
www.corrections.govt.nz/resources/reconviction-patterns-of-released-prisoners-a-48months-follow-up-analysis/re-imprisonment-rates-first-timers-and-recidivists.html>.
31
Punishing, more or less, supra (note 8 above), pp 10-11.
32
For instance, a mitigating factor has been defined as “something an accused is given
credit for” (see for eg Krishan Chand v PP [1995] 1 SLR(R) 737 at [7]; see generally
Sentencing Principles, supra (note 2 above) at [15.008]). But while an offender’s mental
condition has been recognised as a valid mitigating factor, it cannot by any stretch of
language be said that he or she can be given credit for offending while suffering the
condition. Evidently, that definition is not an exhaustive one.
33
Sentencing Conference 2014 Opening Address, supra (note 26 above) at [17] that “[a]
lthough sentencing is a matter of discretion, that discretion is never to be exercised
arbitrarily”.
15
20
21
[2007] 2 SLR(R) 814 at [21] (“Law Aik Meng”).
22
Tay Kay Beng v PP [2006] 4 SLR(R) 10 at [32]. See for a similar view from a Canadian
commentator, Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001), p
131.
23
Sentencing Principles, supra (note 2 above) at [15.010], citing Jessica Jacobson & Mike
Hough, Mitigation: The Role of Personal Factors in Sentencing (Prison Reform Trust,
2007), p viii.
Invitation
for Contribution of Articles
The Singapore Law Gazette (“SLG¹HUVMÄJPHSW\ISPJH[PVUVM[OL3H^:VJPL[`HPTZ
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Feature
30
On 16 March 2015, the Competition Commission of Singapore (“CCS”) announced
a provisional decision to prohibit the proposed acquisition of Radlink-Asia Pte Ltd
(“Radlink”) by Parkway Holdings Ltd (“Parkway”). This is the first time the CCS has
made public its intention to block a merger since the Merger Regime came into
effect on 1 July 2007. The public announcement of this provisional decision comes
not too long after the CCS, in two previous firsts, approved a merger subject to
behavioural and structural commitments in October 2014 and approved a merger
on the basis of the “failing firm” defence in November 2014.
This article provides a quick recap of the Merger Regime in Singapore. It then looks
back to the recent activity by the CCS on the merger front and highlights a few
important points businesses need to be alert to.
Singapore Merger Regime: Notification Not
Compulsory but Highly Recommended?
The review of a merger is two-staged. A Phase 1 review
(which lasts for 30 working days). At the end of the Phase 1
review, either the merger is cleared or is moved to a Phase
2 review (which can last for additional 120 working days).
A merger will be pushed to a Phase 2 review where the
CCS is unable to conclude during a Phase 1 review that
the proposed transaction would not result in a Substantial
Lessening of Competition (“SLC”) in any relevant market in
Singapore.
The risk of not notifying a potentially objectionable merger
is that the CCS has the power to investigate mergers on its
own initiative, and to take enforcement action if it deems
that a non-notified merger leads to a SLC. In such case,
the CCS may issue financial penalties and/or directions,
including a direction to unwind the transaction or to divest
all or parts of the assets acquired.
Overview of the Competition Commission of
Singapore’s (“CCS”) Powers Under the Singapore
Merger Regime
Section 54 of the Act prohibits mergers which may result
in a substantial lessening of competition in any market for
goods or services in Singapore. In this regard, Singapore
operates a voluntary merger notification regime, whereby
parties to a merger are required to self-assess and then
decide to notify potentially problematic mergers to the CCS
for its decision.
Over the past few years, the CCS has taken a more proactive approach towards looking into non-notified mergers.
It has stepped up its market surveillance and issued letters
to merger parties to request for more information in relation
to non-notified mergers. This has led to a significant amount
of mergers being notified to the CCS in 2014 and in the
first months of 2015. The notified mergers span a variety
of industries from the cement industry to the airline industry
or healthcare services. Some of these mergers have given
rise to important decisions by the CCS, which are discussed
below.
31
Feature
The Provisional Decision to Block a Merger: the
Radlink-Parkway Case
The case involved the proposed acquisition of Radlink
by Parkway. In Singapore, both parties are active in the
provision of primary care clinics and services; the provision
of radiology and imaging services (including x-ray and
CT scans); and the supply of radiopharmaceuticals (ie a
component of the radioactive drug used for diagnosis of
medical conditions or therapy). At the end of the Phase 1
review, the CCS raised concerns that the merger would
significantly reduce the number of providers of radiology
and imaging services and the number of suppliers of
radiopharmaceuticals in Singapore. The merger then was
pushed to a Phase 2 review for further competition analysis.
Product and Service Markets Affected by the Merger
The CCS has identified two markets within Singapore
which would likely face a SLC if the merger was allowed
to proceed. They are: (i) the market for the supply of
radiopharmaceuticals; and (ii) the market for the provision
of radiology and imaging services.
In the market for the supply of radiopharmaceuticals,
the CCS gave consideration to the following facts
before arriving at the conclusion that the merger
would result in a SLC for this product market:
1. The merged entity would be the only commercial
supplier of radiopharmaceutical products in Singapore.
2. There are no potential radiopharmeaceutical suppliers
ready and willing to enter the market in the next two
to three years to effectively compete with the merged
entity.
In the market for the provision of radiology and imaging
services, the CCS gave consideration to the following facts
before arriving at the conclusion that the merger would
result in a SLC for this service market:
1. Radlink and Parkway are the closest competitors in
the market for the provision of radiology and imaging
services for private outpatients in Singapore.
2. The market share of the merged entity after the merger
will be very substantial.
3. Customers lack bargaining power in the market for the
provision of radiology and imaging services for private
outpatients in Singapore.
4. The entry barriers for new players wanting to enter
the market for the provision of radiology and imaging
services for private outpatients in Singapore are
moderate to high.
5. The merged entity would be able to restrict competition
in this downstream market for the provision of radiology
and imaging services by leveraging on the enhanced
market power that the merged entity would enjoy in the
upstream market for the supply of radiopharmaceuticals
post-merger.
It is interesting that in this provisional decision the CCS
considered both horizontal and vertical issues. While
horizontal issues are commonly considered by the CCS
when assessing mergers, the consideration of vertical issues
is rarer. Yet, the CCS took the preliminary view that the
vertical integration of the parties would result in their control
of the supply, prices and/or range of radiopharmaceuticals
available to the downstream competitors.
Next Steps Following the Provisional Negative
Decision
Once the CCS has issued the provisional decision, the
merging parties have 14 days to apply to the Minister for
Trade and Industry for the merger to be exempted on the
ground of any public interest considerations. Should such
an application to the Minister be unsuccessful, the CCS
would then issue a final decision on the merger after taking
into account any further oral and written representations
by the merging parties. After the final decision is issued by
the CCS, merging parties if unhappy with the outcome can
appeal to the Competition Appeal Board within 4 weeks
from the date they are notified of the contested decision.
It should be noted that the CCS may still accept commitments
from the merging parties even after the provisional decision
has been issued. This is so as the CCS may accept
commitments at any time during a Phase 1 review or during
a Phase 2 review so long as it is before the final decision
is issued.
Separately, it is also possible for the CCS to take into account
subsequent commercial developments in the relevant
markets after the issue of the provisional decision. If such
market developments indicate that the proposed merger
would no longer result in a SLC, the CCS may then proceed
to unconditionally approve the merger despite previously
having issued an unfavourable provisional decision to block
the merger. This is what happened in the Grief-GEP JV
merger notification made to the CCS in July 2009.
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32
Practically Speaking
The Radlink-Parkway merger is the first time that the CCS
has publicly disclosed its intention to block a proposed
merger. The increased transparency of the CCS, seen by its
public announcement of the provisional decision, is a much
welcomed development as it sheds light on the increasingly
more nuanced and sophisticated approach taken by the
CCS.
In addition, the consideration of vertical issues separately
from that of horizontal issues by the CCS in this provisional
decision highlights a critical point that the CCS takes
a holistic view of mergers and cautions parties against
making the incorrect assumption that the presence of only
vertical effects in the absence of any horizontal effects is not
detrimental to competition.
Provisional decisions prohibiting mergers should be
regarded as an exception rather than the norm given that
notifying parties would have tried their utmost to address
any competition concerns that the CCS might have
during the Phase 1 and Phase 2 merger reviews. Yet,
this provisional decision should bring the point across to
notifying parties that they should no longer assume that
the merger notification process is going to be a walk over
despite it being a voluntary process in Singapore.
In order to avoid a long and protracted merger review that
might lead to an undesired decision blocking the merger,
merging parties would be wise to contemplate reviewing
their proposed transaction in advance and prepare various
commitment packages that might be used successfully as a
tool to stave off an unwanted prohibition decision.
The Provision of Behavioural and Structural
Commitments: the Seek Asia-Jobstreet Case
A recent illustration of how commitments can alleviate
competition concerns identified by the CCS during the
Phase 1 review is provided by CCS’ decision in November
2014 to allow the acquisition of JobStreet Singapore
(“JobStreet”) by Seek Asia Investments (“Seek Asia”)
subject to commitments.
The parties to the merger were both active as online
recruitment advertising service providers in Singapore.
On 20 February 2014, Seek Asia notified the CCS of its
intention to acquire JobStreet. The notification proceeded
to a Phase 2 Review on 14 May 2014, as the CCS decided
that the proposed acquisition might raise competition
concerns in Singapore. In particular, the CCS found that the
proposed acquisition would substantially lessen competition
in the market for online recruitment advertising services in
Singapore, as it would bring together the two main online
recruitment advertising service providers in Singapore.
Under the Singapore Competition Act, the CCS has the
power at any time before making a decision in relation to
a notified merger to “accept from such person as it thinks
appropriate, a commitment to take or refrain from taking
such action as it considers appropriate for the purpose of
remedying, mitigating or preventing the substantial lessening
of competition or any adverse effect” which would otherwise
result from the merger. Where a proposed merger is likely
to be deemed as giving rise to a SLC in Singapore or where
it has been moved by the CCS into a Phase 2 Review,
parties may wish to provide commitments to mitigate any
competition concerns. This is what happened in the Seek
Asia – Jobstreet case.
To mitigate the CCS’ concerns, Seek Asia first offered certain
behavioural commitments, including the commitment to
maintain the current pricing of its services, capped at certain
levels, for three years after the completion of the transaction
and a commitment not to enter in exclusive agreements
with employer and recruiter customers. Both commitments
are behavioural, as opposed to structural.
Whilst the CCS has stated in its Guidelines that “CCS
considers that structural commitments are preferable to
behavioural commitments as the latter generally require
more monitoring”, this case shows that the CCS is prepared
to accept behavioural commitments for merger cases. This
is important as there are cases where structural remedies
may be difficult to offer since this would possibly mean
divesting all or parts of the assets of the acquired business
in Singapore, rendering the overall merger transaction less
attractive.
As the CCS was consulting about the behavioural
commitments, it surfaced that additional competition
concerns could result from the recent acquisition by
Seek Asia of Job Seeker Pty Ltd, an online recruitment
aggregator based in Australia which owned jobs.com.
sg. This acquisition had not been disclosed to the CCS
in the notification process. To alleviate this additional
concern, Seek Asia offered to divest the complete assets
of its other business, http://www.jobs.com.sg. Following
market consultations, the CCS considered that the likely
adverse effects of the merger would be mitigated by both
the behavioural and the further structural commitments
and granted its conditional approval for the transaction in
October 2014.
33
Feature
This case is significant as it marks the first time that the
CCS has accepted behavioural commitments from merger
parties in order to address the competition concerns
arising from a merger. Practically, this suggests that where
businesses recognise the competition concerns that may
arise from their proposed transaction, they should take the
initiative to consider the possible commitments which they
may be prepared to offer, from a commercial standpoint, to
allow the merger to be cleared. In short, businesses should
assess the importance of the proposed merger, and balance
it against any commitments which they may be willing to
offer to alleviate any potential competition concerns.
A last point to note in relation to behavioural commitments
that business should be aware of is the cost of such
commitments: to ensure that the commitments are complied
with, a Monitoring Trustee may have to be appointed. This
was done in the Seek Asia-Jobstreet case, in line with the
CCS Guidelines which provide that “if commitments require
monitoring, then the parties must be prepared to meet the
costs of engaging a monitoring trustee who will, for example,
have the task of submitting regular reports on compliance
to CCS”.
2. The firm must be unable to satisfy its financial obligations
with no serious prospects of re-organising financially;
and
3. There should be an absence of other purchasers
presenting a less anti-competitive option.
In this case, the CCS cleared the proposed acquisition on
the basis of the failing firm defence, as it found that Tiger
Airways was likely to exit its operations in the absence
of the proposed acquisition. While SIA and Tiger Airways
competed in the markets for the supply of international air
passenger transport services on certain routes, the CCS
accepted that the proposed transaction would be less
detrimental to competition in Singapore as compared to the
scenario where Tiger Airways were to exit its operations in
the market. In particular, without the proposed acquisition
of Tiger Airways by SIA, the consequent exit of Tiger
Airways would cause disruptions to passengers and to the
connectivity of the Singapore air hub.
While the proposed acquisition in this case did not proceed
to a Phase 2 Review, any competition concerns were
mitigated in view that the entity being acquired would have
The cost of engaging a Monitoring Trustee may be
substantial and this is a consideration that merger parties
must bear in mind when they offer commitments to a
competition authority. Further, and in practice, it may be
worth providing in the merger documents who will bear the
risk/cost of any commitment that may be offered by the
merger parties, including the cost of a trustee when one
must be appointed.
Another Way of Having a Merger Cleared? The
Failing Firm Defence
On 28 November 2014, the CCS cleared the proposed
acquisition of Tiger Airways Holdings Limited (“Tiger
Airways”) by Singapore Airlines Limited (“SIA”). This case
is important as it is the first time that the CCS has cleared a
merger on the basis of the failing firm defence.
Essentially, the failing firm defence allows financially
distressed firms to be rescued via mergers, which would
otherwise be considered as substantially lessening
competition. In order for a merger to qualify for the failing
firm defence in Singapore, the following three criteria must
be satisfied:
1. The firm must be in such a dire situation that without the
merger, the firm and its assets would exit the market in
the near future;
Feature
34
otherwise exited the market. The failing firm defence may
hence be helpful to businesses looking to merge with
financially distressed competitors, as they should consider
whether it may apply to alleviate any substantial lessening
of competition if a merger were to go through.
Alternative Route – Seeking Confidential Advice
Given the CCS’ increased scrutiny of non-notified mergers
and its possibly stricter approach during merger assessment,
it means that, in practice, businesses may need to be more
conservative in their self-assessment of the need to notify a
proposed transaction to the CCS.
When in doubt, under the revised merger procedures which
came into effect in July 2012, businesses may choose to
seek the CCS’ confidential advice as to whether or not a
proposed merger is likely to raise competition concerns in
Singapore and, therefore, whether a notification is advisable.
To qualify for confidential advice, the merger parties must
show a good faith intention to proceed with the transaction,
the merger must not be in the public domain and there must
be some doubt as to whether or not the merger situation
raises concerns such that notification may be appropriate.
We would highlight that the information to be submitted to
the CCS for confidential advice is equivalent to that required
for a formal merger notification. However, for merger
parties who are still in the early stages of negotiations
and are genuinely uncertain as to whether their proposed
transaction may raise competition concerns, this process
offers significant benefits – it allows the parties to obtain
guidance from the CCS within a relatively short period of
14 working days while preserving the confidentiality of the
transaction.
Concluding Words
This article highlights important “firsts” in relation to the
Singapore Merger Regime which show that, although
notification of a merger is voluntary, the assessment of
the competitive impact of the merger in Singapore must
be conducted by businesses. This will allow businesses to
avoid the risks of having their merger delayed if not blocked,
unwanted commitments to be provided or simply facing
the hurdle of an investigation by the CCS. Importantly,
anticipating the competition concerns a merger may raise,
or clearing them upfront should be part of the process of
any M&A transaction touching on Singapore.
► Kala Anandarajah, PBM
Head
Competition & Antitrust and Trade
Rajah & Tann Singapore LLP
► Dominique Lombardi
Partner (Foreign Lawyer)
Deputy Head
Competition & Antitrust and Trade
35
Columns
The Young Lawyer
The Fundamentals of International Legal
Business Practice
The Fundamentals of International Legal Business Practice,
co-presented by the International Bar Association (“IBA”)
Young Lawyers’ Committee, the IBA Asia Pacific Regional
Forum and the Law Society of Singapore was held on 18
March 2015 at the Marina Bay Sands Singapore.
2. Implications of the Singapore Code on Take-overs &
Mergers (“the Take-over Code”);
3. Financing considerations; and
4. Competition and Anti-trust Issues.
The IBA has been instrumental in influencing international
law reform and in the development of the global legal
community, and currently boasts of a 55,000-strong
(and growing) membership network, spanning 190 bar
associations.1
A preliminary consideration is to identify the corporate
objective of the Acquiror. The key question to ask is whether
the Acquiror’s objective is:
1. to gain control of the target, eg majority stake; or
The one-day international training programme is designed
to provide young lawyers in Singapore with insight on a
range of international business practice issues. This year’s
programme saw participants and panellists from Belgium,
China, Ghana, Malaysia, Singapore, South Korea and the
USA.
2. to seek exposure through a strategic investment in
taking a small equity stake, eg minority stake.
Two factors which influence the corporate objective are:
1. The shareholding structure of the target (eg are the
significant shareholders institutional shareholder or is
there a dispersed shareholding structure?); and
The full-day seminar was split into three panel sessions
and concluded with a roundtable discussion on career
models for young lawyers. The working sessions followed
a hypothetical investment by a European MNC based
in England (the “Acquiror”), in a Singapore public listed
company (the “Target”) to address:
Due Diligence
1. the structuring of a cross-border transaction in
Singapore and significant issues to consider in a crossborder acquisition; and
The Acquiror will seek as much information as possible
about the Target. There is, however, no obligation on the
Target to assist with the Acquiror’s enquiries.
2. managing a deal gone wrong.
Key considerations in the due diligence process include:
A brief summary of the key takeaways from the discussion
on the hypothetical investment are set-out below.
1. The level of board co-operation in granting the Acquiror
access to information; and
Structuring a Cross-border Transaction in Singapore
2. Regulatory limitations
Speakers Ameera Ashraf (WongPartnership), Stephanie
Keen (Hogan Lovells), Christopher Koh (Allen & Gledhill),
Dr Marc Reysen (Reysen Competition Advice and
Advocacy), and Daniel Tan (Clifford Chance) took the
participants through a range of issues in the structuring of
the transaction between the Acquiror and the Target in this
hypothetical investment which can be broadly categorised
as follows:
Factors that influence the level of cooperation from the
board of the target include:
1. Due Diligence;
2. The Board composition of the target
1. If the Acquiror is seeking majority stake, will there be a
general offer?
2. In the case of a minority stake:
a. Is it in the interests of the target for a high-profile
investor to come into the pool of its shareholders?
36
Columns
The Young Lawyer
b. Would this facilitate fundraising?
c.
Where the Acquiror wishes to acquire for example,
10 per cent stake from existing shareholders,
would it be in the interest of the target company to
allow due diligence?
Regulatory limitations must be assessed early, for the
Acquiror to determine the extent of access that is realistically
possible:
1. There is likely to be reliance on public information, since
the Target is a public listed company;
2. The Target is subject to continuous disclosure
requirements to keep the Singapore Exchange (“SGX”)
and shareholders informed of all material information
relating to it;
3. The Target company cannot provide any information
which would put an entity in a privileged dealing
position giving rise to insider trading provisions under
the Securities and Future Act (Cap 289) (“SFA”);
4. Where information requested by the Acquiror is pricesensitive or is forward-looking (budgets), it is essential
to ensure timely public disclosure; and
5. The Target must make an announcement when the
Memorandum of Understanding comes through or
when due diligence has been permitted, subject to
confidentiality constraints, and in accordance with the
SGX Listing Manual.
Implications of the Take-over Code
The Acquiror in this hypothetical investment is obliged
to comply with both the SFA and the Take-over Code.
Compliance is necessary to ensure that sufficient information
is disclosed to shareholders and that the transaction abides
to the expected standard of conduct.
An obligation to make a mandatory offer for all shares of
the Target will arise when the thresholds stipulated in the
Take-over Code are met. In such a case the Acquiror should
consider the following:
1. Whether the transaction will trigger an obligation for
the Acquiror to make a mandatory offer based on the
threshold requirements;
2. Where the Acquiror is seeking to acquire majority stake,
it should arrange for standby financing and ensure
funds are available if a mandatory offer is triggered;
3. The Acquiror must be mindful of and confirm the concert
parties in the transaction, especially when dealing with
a large group comprising subsidiary companies; and
4. Where shares are acquired from an existing shareholder,
then a mandatory offer applies where the threshold is
met; however the Securities Industries Council (“SIC”),
may on application grant a waiver from making a
mandatory offer by a “whitewash” resolution.2
Financing Considerations
The Acquiror can consider either:
1. debt financing which involves borrowing money, in the
form of a loan from a bank; or
2. equity financing which involves bringing investors or
partners to provide capital in exchange for a share of
ownership.
The essential document in this stage of the transaction
is the term sheet (long form or short form). The panellists
pointed out that the goal is to obtain the term sheet as early
as possible to negotiate the terms; however, in practice,
there are instances where the lawyer receives the term
sheet after it has been agreed.
Financial assistance provisions must be kept in view:
1. A company is prohibited from providing financial
assistance for the acquisition of its own shares or
the shares of its holding company3 which means the
Acquiror in this case cannot acquire shares in the Target
where security has been provided;
2. The exceptions allow for financial assistance where
it has been sanctioned by any of the “whitewash”
procedures under the Singapore Companies Act (Cap
60) (“Companies Act”); and
3. The Companies (Amendment) Bill No. 25 of 2014
(“Amendment Bill”) amends the provision to limit the
financial assistance prohibition to public companies and
their subsidiaries;
Competition and Anti-trust Issues
Section 54 of the Competition Act (Cap 50B) prohibits
mergers that have resulted, or may be expected to result,
in a substantial lessening of competition within any market
in Singapore.
37
Columns
The Young Lawyer
Some of the potential competition issues that were
highlighted in relation to the hypothetical investment
scenario include:
1. the disclosure of sensitive information in the due
diligence process where there are competition-related
risks for the Target;
2. the need to establish rules for information exchange,
and to set up clean teams or Chinese Walls especially
in the event that the deal falls through;
3. the potential for competition risks to arise in a horizontal
merger (eg where the Acquiror and Target are direct
competitors);
4. whether the transaction is a notifiable transaction,
especially where the Acquiror is gaining legal and de
facto control; and
5. the necessity to ensure the control on the content and
language in documents which may have a potentially
damaging effect during the course of merger review
(the Acquiror and Target should control the use of
superlative or aggressive language which may be seen
as anti-competitive).
Managing a Deal Gone Wrong
It was suggested that the Acquiror and investors adopt a
multi-layer approach in the resolution of the disputes:
1. to set aside the internal issues between the Acquiror
and the investors (where possible); and
2. address the dispute arising from the State’s unilateral
termination of the concession agreement through
Investor-state dispute settlement provisions in the
investment treaty.
Roundtable Discussion
Speakers Chelva Retnam Rajah, SC (Tan Rajah & Cheah),
Caroline Berube (HJM Asia Law & Co.) and Doil Son
(Yulchon) ended the programme with candid advice to
the participants on “survival strategies” in an increasingly
competitive environment, prevalent in the “modern law firm”.
Highlights of this session included the speakers’ personal
experiences on:
1. the need for a young lawyer to differentiate himself/
herself from his/her peers;
2. the desire to make a positive contribution to the firm’s
practice;
3. going the extra mile for the benefit of the client; and
The discussion followed the same hypothetical investment
in context of an internal dispute between the Acquiror, and
the investors of the Target in Singapore, India, and Korea,
and a dispute between the investors and the State where a
concession agreement has been unilaterally terminated by
the Government.
Speakers Liz Kyo-Hwa Chung (Kim & Chang), David W
Rivkin (Debevoise & Plimpton) and Francis Xavier, SC
(Rajah & Tann) discussed the options available to the parties
in managing the dispute resolution process included:
1. Litigation before the Singapore Courts, for disputes
relating to mismanagement, breach of fiduciary
obligations and confidentiality;
2. International commercial arbitration between the
Acquiror based in England and the investors in
Singapore, India and Korea; and
4
the necessity to pursue passions outside of the
workplace.
► Khyati Raniwala
AbrahamLow LLC
Member, Young Lawyers Committee
* This brief is intended for informational purposes only, and the information
contained herein is not to be regarded as legal advice.
Notes
1
Please see <http://www.ibanet.org/About_the_IBA/About_the_IBA.aspx> for more
information on the IBA and its activities around the world.
2
Please refer to the Whitewash Guidance Note at Appendix 1 of the Take-over Code,
which sets out the procedure for an application to the SIC for an application to waive
the obligation to make a mandatory offer.
3
Section 76 of the Companies Act (Cap 60, 2006 Rev Ed).
3. Investor treaty arbitration between the investors and the
State for the termination of the concession agreement.
38
Columns
Practice Support
Forensic Reconstruction – A Primer for Lawyers
What is Forensic Reconstruction?
Forensic reconstruction is the application of various forensic
tools to uncover the what, who, where, when and how (four
Ws and H) of a crime, traffic accident or other incident. It
often applies in relatively complex cases involving multiple
parties, their actions, movements and interactions, and a
sequence of events.
Forensic reconstruction entails a holistic and coherent
evaluation of diverse types of evidence, and how they
relate to the crime, accident or incident. It is not merely a
summary or structured compilation of forensic findings by
other experts. Reconstruction is a non-standard, multifaceted examination which entails both scientific actions
and thought processes. It requires interpreting backwards
from the scene and multiple evidence types that lend
mutual support to each other. Key factors and parameters
associated with the incident are often identified, and
hypotheses are then formulated and tested, sometimes by
simulating the physical conditions of the scene.
Reconstruction is not speculation of what could have
happened. It must be based on, and supported by facts
and objective information obtained from careful, reliable
examination of physical evidence. Reconstruction involves
scene analysis, forensic laboratory examinations, and an
overarching critical analysis and synthesis of all known
evidence and facts.
Value of Reconstruction
The primary purpose of forensic reconstruction is to aid the
Court in understanding, from a scientific perspective, how
the many different types of physical evidence relate to the
crime, accident or incident.
Often, it is relatively easy to infer through physical evidence
(DNA profile, trace evidence, shoeprints, toolmarks, etc) that
an individual was present at a scene, and was in some way
connected to the crime or incident. These examinations,
however, may not answer the central question of the
contribution and extent of the individual’s involvement in
the crime or incident. Valuable and essential as findings
from each type of physical evidence are to investigation,
prosecution and defence, a consideration of each evidence
type individually without forensic reconstruction may be a
sub-optimal use of the evidence owing to the fragmentary,
disconnected approach. Likening the better known evidence
types such as DNA profiles, trace evidence and impressions
to key pieces of the puzzle, forensic reconstruction brings
these important pieces together by determining how the
various evidence relate to one another. More importantly, it
adds connecting, bridging pieces in between them to build
a more complete and clearer picture, making the whole
greater than the sum of its parts.
Common Types of Reconstruction
The most common types of forensic reconstruction in
Singapore are related to:
1. violent crimes involving bloodshed;
2. shooting;
3. explosions;
4. unnatural deaths, including hanging and fatal fall from a
height;
5. traffic accidents; and
6. drug trafficking.
The reconstruction of violent crimes with bloodshed
usually includes the bloodstain pattern analysis of the
scene and exhibits submitted to the forensic laboratory.
This reconstruction uncovers the nature of the violent
action, weapons used, locations, relative positions and
movements of the assailant and the victim during and after
the crime, number of blows, source of the bloodstains,
possible mechanism of bloodstain formation, alterations
to bloodstains after the crime, and possible sequence of
events. In reconstructions involving bloodstain patterns,
findings from the medical and autopsy reports are an
important link to ensure that the injuries on the persons
involved, especially their open and active bleeding wounds,
are consistent with the bloodshed at the scene.
Shooting reconstruction evaluates the circumstances
and physical evidence associated with the shooting scene
in order to establish the most probable sequence of events
related to the shooting. It may also uncover the following
information: shooter identification through gunshot residues
testing, positions of the shooter, victim or target, impact
points, bullet trajectory, ricochet, distance of firing, type of
firearm used and association of bullets and cartridge cases
to firearms. Trace evidence and bloodstain patterns found
at the scene and on the victim and assailant augment the
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reconstruction. They provide supportive evidence on the
bullet trajectory, persons involved and their movement and
injuries and locations when blood was shed. When the
various types of evidence are combined, the reconstruction
may even shed light on the possible sequence of shots.
Explosion scene reconstruction applies to gas, industrial
chemical and condensed phase explosions, as well as
improvised explosive devices (“IEDs”). The reconstruction
would focus on the identity of the energetic or flammable
substance, characteristics of the receptacle, materials and
construction of the IED, cause or trigger of the explosion,
damage and its effects. In the reconstruction of industrial
gas explosions, and chemical fires and explosions, an
understanding of chemical reactivity, chain reactions,
spontaneous reactions, environmental conditions, industrial
processes, storage and manufacturing conditions, and the
tools and equipment used in the industrial process and for
maintenance and repair may be required.
The reconstruction of suspicious hangings and fatal
falls from a height involves developing representative
scenarios and hypotheses which are often tested by
simulating the physical conditions leading to the death. In the
process, the reconstructionist uncovers cause-and-effect
relationships to ascertain whether a suggested outcome
is physically possible, given the scene, anthropometric
characteristics and a specific set of conditions. The design
of the simulation requires a prior determination of key
parameters or factors associated with the incident and the
initial state of the scene.
Traffic crash reconstruction is the application of scientific
knowledge and methods to determine what happened in a
traffic collision. Crash refers to rollover or collision between
a vehicle and other vehicle(s), objects (road guard-rails,
trees, lamp-posts, etc) or pedestrian(s). The traffic crash
reconstructionist typically evaluates vehicle characteristics,
damage, broken debris, trace evidence, bloodstains,
final rest positions, road geometry, traffic control devices,
roadway marks, video evidence and human factors. These
serve to determine vehicle speed, paths, direction of force,
point of impact, actions and evasive manoeuvres by the
road user, right of way, blind zones, time to collision, and
whether the collision was avoidable.
Drug trafficking reconstruction is carried out in cases
involving multiple drug packages, various locations and
several individuals operating as a syndicate. It is useful
to determine each individual’s involvement and role, what
occurred at each location, the manner in which drug
packages were packed and concealed, transfers between
locations, and the modus operandi. Relevant physical
evidence includes drug contents, receptacles concealing
the drugs, packaging materials, DNA profiles, and other
trace evidence.
Table 1 lists some of the reconstructions and simulations
employed in our local cases, and illustrates their value to
investigations.
Table 1: Common Types of Reconstruction and Simulation in Singapore
Type of Reconstruction
Examples of Singapore Cases
Violent crimes involving bloodshed “Yishun Triple murders”- PP v Wang Zhijian [1].
Value: Determined the sequence of events, weapons used, movement of assailant
and three deceased persons and one victim, and what occurred at various locations.
Movement and action of the assailant after the bloodshed.
Court trial: Reconstruction findings were useful in establishing the assailant’s
involvement in the death of the deceased who fell from the flat to the ground.
Others: PP v Periyasamy Devarajan [2] , PP v Wang Wenfeng [3], PP v Daniel Vijay
s/o Katherasan and others [4], CI into the death of David Hartanto Widjaja [5]
Shootings
“One-eye dragon” - PP v Tan Chor Jin [6].
Value: Determined the movements of the gunman and the victim, their relative
positions, and the sequence of firing of the six shots.
Court trial: Reconstruction findings were useful in establishing that the six shots
were not fired in succession due to misfiring, as claimed by the gunman.
Others: PP v Khor Kok Soon [7]
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Fires and Explosions
Coroner’s inquiries: Bukit Merah LPG gas explosion [8], CNG bus explosion [9],
Superbowl underground gas mains explosion [10], Chevron Oronite chemical explosion
[11], Kreuz Shipyard fire and explosion [12].
Value: Determined the nature of the explosion, type of chemicals and their reactions,
and how the fire and explosion occurred.
Hanging
Coroner’s inquiry: Death of Shane Truman Todd [13]
Value: Simulation experiments to determine whether it was physically possible for
the deceased to hang himself, using the materials found at the scene.
Court trial: Experiment findings were useful in shedding light on the objects and
damage marks found at the scene, and the manner and mechanics of the hanging
process.
Others: CI into the death of Daryl Thong Han Jie
Fatal falls
“Fall from a height of Sindee Neo” - PP v Chee Cheong Hin Constance [14],
Value: Simulation experiments to determine the distances from the building a 25kg child would fall based on the pushing effort (light, medium, or strong push) by a
woman of Constance’s weight and height.
Court trial: Experiment results demonstrated that Sindee was not merely tipped
over the railing but that she had been projected over with a force greater than that
which commensurated with merely tipping her body over the railing.
Others: PP v Barokah [15]; PP v Tharema Vejayan s/o Govindasamy [16].
Traffic accidents
COI: Little India Riot - bus accident resulting in the death of an Indian national [17]
Value: Analysis of CCTV footage to determine the trajectory and speed of the bus,
movement of the deceased, human and vehicular traffic, cognitive workload and
blind zones of the bus driver.
Others: PP v Teo Tiong Kiat [18], PP v Han Choo Bok [19], CI into the death of a
child [20]
In the early 2000s, while in the Health Sciences Authority, the
forensic scientists in The Forensic Experts Group developed
bloodstain pattern analysis and forensic reconstruction
for application to casework in Singapore. The initial cases
underwent a baptism of fire in the Courts, encountering opposing
experts, and scrutiny of its validity and the scientist’s expertise.
Over the last 10 years, reconstruction has proven its value and
gained acceptance, although it is still subject to stiff challenges
due to its significant findings of associations between the scene
and the persons involved. Today, reconstruction is commonly
employed in major and high profile local cases.
What the Reconstruction Process Entails
The reconstruction process entails the following:
1. Scene analysis and hypotheses formulation;
2. Laboratory examination of exhibits and reporting of
findings;
3. Review of other expert reports and summary of their
key findings;
4. Design and conduct of control experiments to determine
mechanisms, causes and effects, and test scenarios;
5. Evaluation and inference of the available information;
6. Determination of sequences; and
7. Combining all the findings (in response to the four Ws
and H) into a single, coherent narrative.
For scene examination and analysis, a visit of the fresh
scene should ideally be undertaken by the reconstructionist
to perform first-hand assessment of the entire scene.
Appraising the original scene enhances understanding
of spatial relationships of evidence, and generates useful
questions for further inquiry. Scene analysis often results in
a stand-alone Scene Analysis Report.
An alternative approach to visiting a fresh scene is to
examine photographs, notes and measurements taken
by others, either to perform or review a reconstruction.
Although this perspective through proxy eyes may suffer
from selective filtering of data and gaps in information, it can
still uncover crucial information and flag significant issues.
The reconstruction can provide insights that clarify the
circumstances and details of the crime, accident or incident.
An independent objective review of a reconstruction can
confirm findings, bring to light new findings, or uncover
errors in observation, analysis, reasoning or interpretation.
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Forensic reconstruction usually culminates in Court
testimonies where findings are examined and crossexamined. Alternative scenarios may be put forward, and
specific aspects or findings challenged. The reconstructionist
must be prepared to provide an on-the-spot opinion on the
plausibility of an alternative scenario, especially when new
information is provided during the Court trial.
The Reconstruction Report
The reconstruction report presents in a systematic and logical
manner, not only the key findings of various forensic experts,
but also the reconstructionist’s observations and analysis of
the scene (physical context) and scientific reasoning, upon
which inferences, interpretation and opinions are made on
the crime, accident or incident. Forensic reconstruction can
identify additional forensic examinations required to obtain
“complete” knowledge of the case.
The reconstruction report invariably contains a qualifier
indicating possible gaps in information, possible variations
in the sequence of events, and limitations. Diagrams,
sketch plans and annotated photographs are often included
for easier understanding. Key information are often
summarised in tables to facilitate digestion of information.
Background data and assumptions must also be clearly
stated. The reader should be able to easily distinguish facts
from opinions. All reconstruction reports must be thoroughly
reviewed by a second competent peer before they are
issued.
For the purpose of transparency, the reconstruction report is
usually detailed, and often inevitably lengthy. Justice and a
person’s liberty, life and reputation are at stake; hence, it is
only reasonable that the basis of the reconstruction be laid
open for examination and cross-examination.
of the incongruous, and experience enable a seasoned
reconstructionist to zero in on the key issues of a
complex “chaotic” scene.
4. Safeguarding against confirmation bias – Tunnel vision,
expectancy effects and observer effects can taint an
expert’s perception and judgment [21]. Personal good
practices, peer reviews, or scrutiny in Court are effective
counter-measures against forensic bias.
5. Limitations in human factors – Human models in
simulation experiments and expected rational behaviour
may not adequately mirror actual human response in
the heightened emotions, intensity and extremes of a
crime.
Expertise and Skills Required to Produce a Reliable
Reconstruction Report
A reconstructionist should not only be an expert in forensic
laboratory examinations, but also be highly adept at
analysing the scene, framing questions, identifying evidence
at the scene, and evaluating the overall physical context.
The pre-requisites and foundations of reconstruction
expertise are mastery of the numerous forensic methods,
practitioner knowledge in multiple forensic disciplines, and
understanding of the application, strengths and limitations
of the other types of physical evidence. Reconstruction
requires a blend of both hard and soft skills.
Hard skills refer primarily to the proper application of
scientific principles, laboratory and field instruments and
analytical techniques to generate reliable and accurate
measurements, identifications and comparisons.
The major pitfalls and challenges in reconstruction include:
Soft skills refer to the critical thinking skills used in problem
framing and hypothesis formulation, choice of methods,
design of experiments, critical analysis and synthesis
of data, professional judgment, and written and oral
communication of findings.
1. Oversimplification of issues – Simplification occurs
when a reconstructionist neglects complexity in a
scene, fails to consider all available evidence, facts
and factors, or cuts corners instead of applying rigorous
scientific methods.
These essential skills are acquired and honed from relevant
scientific education, on-the-job and specialised forensic
training, mentoring and coaching, examination and reporting
of actual casework, Court testimony, forensic research,
presentations and publications.
2. Maintaining relevance and realism in simulations and
scenarios – Understanding the context, establishing
the key parameters, and formulating clear and relevant
hypotheses are essential to the appropriate design of
simulation experiments.
Experience matters to a great extent in forensic
reconstruction. It is tied to the expert’s broad and profound
understanding of physical evidence, scenarios and
interpretation. This comes from personal exposure to a
wide range of challenging forensic problems, coupled
with developing valid solutions and responses to these
challenges.
Pitfalls and Limitations
3. Missing out on a crucial detail which could radically
alter the complexion of the matter under investigation
– Forensic analysis at the scene and in the laboratory
calls for a balance between speed and thoroughness,
while achieving reliability of findings. An eye for relevant
detail, a questioning mind, critical thinking, recognition
There is no short-cut or hot-housing solution to develop a
reconstruction expert. Simulation software, 360o scanning
cameras and other advanced technological aids cannot
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substitute for expertise that resides only in a human being.
There will be significant and obvious differences in the
approach and outcome when reconstruction is attempted
by a novice compared to one performed by an experienced
qualified reconstructionist, owing to the depth and breadth
of scientific expertise the latter possesses to scope the
work, taking into consideration the various aspects of the
case.
The credibility of the reconstructionist hinges not only on
scientific expertise, but also on objectivity and neutrality in
his/her report and Court testimony. The reconstructionist
must be open-minded and non-partisan, letting the
evidence speak for itself. He/she must guard against
external influence and confirmation bias, and avoid jumping
to conclusions without a fair and thorough examination of all
evidence. A reconstruction report that is balanced, ethical
and robust will include both inculpatory and exculpatory
findings.
places using this evidence, and evaluating the significance
of these associations.
► The Forensic Experts Group*
* The Forensic Experts Group (“TFEG”) is Singapore’s first one-stop private
and independent provider of forensic consultancy, analysis, research, training
and education for legal and law enforcement agencies, forensic and tertiary
institutions, and private organisations. It comprises a team of accomplished
forensic scientists (former leading forensic scientists in a government forensic
laboratory in Singapore), who are combining more than 70 years of specialised
knowledge, unique experience and skillsets to deliver high quality forensic
services both locally and overseas.
www.forensicexperts.com.sg
References
1
PP v Wang Zhijian [2012] SGHC 238; [2014] SGCA 58.
Conclusion
2
“Indian national gets 16 years’ jail and caning for bashing man to death with concrete
slabs”, The Straits Times *(8 April 2015).
Forensic reconstruction is an essential forensic tool for
the administration of justice. It is useful in cases involving
shooting, violent crimes, unnatural deaths, traffic accidents,
explosions and drug trafficking. Forensic reconstruction is
not gratuitous speculation – every reconstruction finding
and conclusion must be supported by evidence and sound
reasoning. Reconstruction has three major components:
scene analysis, laboratory examination of physical
evidence, and an overall assessment and synthesis of
all available evidence to form a coherent inter-connected
whole. To be effective, the reconstruction expert needs
to be experienced and highly proficient in all three areas
of work. The reconstructionist integrates various expert
findings, incorporates his/her professional insights and
opinions into the what, who, where, when and how of a
crime, traffic accident or other incident, and sheds light on
the contribution and extent of an individual’s involvement.
3
PP v Wang Wenfeng [2011] SGHC 208; [2012] SGCA 47.
4
PP v Daniel Vijay s/o Katherasan and others [2008] SGHC 120; [2010] SGCA 33.
5
“Scene reconstruction: David Widjaja’s last moments”, The Online Citizen (27 May
2009).
6
PP v Tan Chor Jin [2007] SGHC 77; [2008] 4 SLR 306; [2008] SGCA 32.
7
PP v Khor Kok Soon [2005] SGHC 125; [2005] SGCA 51.
8
“Gas explosion victim dies”, Today (6 Aug 2007).
9
“NSFs escape death by 15 minutes”, The New Paper (26 Nov 2012 ).
10
Forensic investigation of an underground gas main explosion (2004), Lim Chin Chin,
Michael Tay Ming Kiong, Chia Poh Ling, 56th Annual Meeting of the American
Academy of Forensic Sciences, USA, Proceedings Vol 10, Abstract No. C44
11
“Accident Kills Oronite Worker”, Lube Report Vol 5 (10) (9 Mar 2005).
12
“Shipyard charged with lapses after accidents kill 3 and injure 4”, Stomp (21 Jan 2010).
13
Coroner’s Inquiry No. 2014/2012
This scientific multi-faceted forensic discipline brings out
synergistic value by putting the various evidence into their
physical context, and crystallising their overall significance.
This augments the value of the evidence, and can help the
Court reach an informed decision on the case.
14
PP v Chee Cheong Hin Constance [2006] SGHC 9
15
PP v Barokah [2008] SGHC 22; [2009] SGHC 46
16
PP v Tharema Vejayan s/o Govindasamy [2009] SGHC 144
17
Report of the COI into the Little India Riot on 8 December 2013 Annexes
18
“4-week jail sentence for GP who caused cyclist’s death in hit-and-run”, AsiaOne (25
May 2012).
19
“Freak accident on AYE: Cabby jailed 10 months”, Straits Times (9 Apr 2013).
20
“Boy, 2, dies after being hit by mum’s car.”, AsiaOne (15 June 2011).
21
Kassin S M, Dror I E, Kukucka J., “The forensic confirmation bias: Problems,
perspectives and proposed solutions” (2013) J of Appl Research in Memory & Cognition
2, 42-52
What’s Next?
What is the science behind a forensic discipline? What does
the examination process entail and what are the limitations?
Look out for the next article in the Forensic Science Series,
presented to you by The Forensic Experts Group. It will
focus on “Trace Evidence”, a forensic discipline that relates
to the examination of small, often microscopic amounts
of material not readily visible to the naked eye, but often
left behind at the scene or brought away by the assailant.
It looks into the value of identifying the trace material,
establishing the associations between persons, objects and
43
Lifestyle
Alter Ego
Business and Law
It has been 12 years since I started the law firm. After having
spent six years in a large firm, I felt that I was not enjoying
law practice. One gets lost in a big firm. You become just
a number. You work in a smaller team in the large firm.
There is no time for mentoring or personal growth. Large
law firm partners have their own billing targets to meet and
management to impress. Everyone looks out for himself. I
just kept on working. I had no time for anything else. I was
unhappy most of the time. The unhappiness manifested
itself in frequent bouts of the flu. Large firms may not always
provide the kind of legal career or fulfilment you want but the
financial package does provide a good lifestyle – fine dining,
clubbing, expensive holidays and material acquisitions.
After a while, the high flying lifestyle became meaningless
to me. I also felt that the financial compensation did not
make up for the very long hours I spent at work or worrying
about it outside of the office. I decided that I had to leave the
environment and find out what I really wanted to do.
During the three-month break I took in early 2003, I realised
that I chose to become a lawyer because I wanted to help
people and not just corporate clients. I was also toying
with the idea of becoming an entrepreneur. Being an
entrepreneur is exciting, challenging, a personal creation of
your own, marked perhaps even with leaving a legacy. I find
the various aspects of business – marketing, administration
and creating work systems and processes fascinating.
It was a hard toss between my dream of running a cafe
selling my favourite coffee and cheesecakes and a law firm.
Law emerged the winner because I knew more about law
than making gourmet coffee. The journey started with many
new experiences – working out the legal compliance issues
of setting up a law firm to working with property agents and
renovation contractors. Many risks had to be taken such
as in marketing strategies and taking a plunge into internet
marketing which was relatively new to law firms then. A
technology dinosaur, I did not even use Google then. A
lot of learning about the internet had to be done. Financial
management was the next challenge. Although I have my
father’s help in this, I discovered that I have to manage this
closely. And the perennial human resource issue has to be
managed as well. The recruitment, retention and motivation
of staff, especially Generation Y is to me the most difficult
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Lifestyle
Alter Ego
part of running the firm. Yes, there is always a lot to do. It is
like doing a practical business degree or MBA.
I was quickly proven wrong about working lesser hours. In
fact, I have to work even harder as a business owner than
as an employee. In that sense, I am glad that in my previous
life as an employee, I had the opportunity to be trained well
in clocking 12-hour days (and more) in the office.
Discipline, motivation and a high level of drive are some of
the many important qualities required of an entrepreneur.
The actual work may end but the mind is always working,
thinking of new ideas, innovation and planning ahead. The
challenges and the learning never stops, even till today. I
started the business at the same time the SARS epidemic
took over Singapore and when substantial changes
were made to the management of clients’ accounts. It
was tough, to say the least. A lot of sacrifices had to be
made. Entrepreneurship is not for the faint hearted. If I knew
in 2003 what I know today of the difficulties in being an
entrepreneur, I may have continued being just an employee.
I agree fully with the Government that productivity is important
to economic growth. Law firms somewhat still traditional,
are slow to embrace change and to innovate. There is still
resistance to the marketing of legal services. Lawyers tend
to feel that they should not be involved in marketing their
services. We are in the business of providing legal services.
Referrals are only a small component of new business for
us. Business owners, partners and even associates of law
firms now must market themselves and their legal services
in order to stay competitive.
As a small firm owner, I was clear from the beginning that
my firm had to be different from other similar small firms. I
also did not want to suffer from the “small firm mentality”
syndrome. To me, small firms are not special. However, we
have many advantages in terms of providing personalised
service to clients and training legal associates and future
lawyers. So, a mindset change is necessary and important. I
do not agree that special consideration should always be
given to us. Running a small firm is a choice we make and
we must live with the territory that comes with it, and with the
consequences. Although the Singapore economy is small
and competitive, there is a place for everyone, even small
law firms. When I started the law firm, except for legal skills,
I had no clients or knew nothing about running a law firm. I
also wanted to venture into an unknown area of practice –
family law. I started from scratch and picked up skills along
the way. It was and still is a hard journey.
Whilst writing this column, a lawyer asked me how I planned
the growth of my firm. I had no grand plans. The growth
just happened organically to fit the changing circumstances
and needs of the firm and clients. In today’s changing legal
landscape and the incessant demands of clients, it is very
difficult to run the firm with just one secretary.
I have also witnessed a lot of personal growth in myself.
My self-confidence has soared. I have gained a wealth
of experience in running the business, taken a lot of risks
which produced results and also setbacks, and overcame
many challenges. I was forced to learn to be patient, which
contrary to what many who know me believe, is very lacking
in me. I have learnt a lot about people management and
client management. Clients are my real bosses. They have
to be treated professionally and yet firmly so that they do
not take advantage of me. I became better organised and
delved into many initiatives such as mediation, collaborative
law and pro bono work. The reason why I am excited and
enthusiastic about my business is that I am able to do
what I am passionate about everyday – helping families
and children to shape lives and rebuild futures as a family
lawyer. Volunteering in the Law Society, the Courts and
the Singapore Academy of Law also keeps me aware of
why changes need to take place in the legal landscape and
give me the chance to be involved in the change process
itself. In fact, these volunteering stints have given me a
wider dimension and meaning to lawyering which keeps me
excited about the law even after 18 years.
I encourage anyone who is interested to become a law
entrepreneur to go for it. I do not think that there is a
need to think hard or do any planning before becoming
an entrepreneur. Thinking too hard delays the fulfilment of
ambitions and at the same time creates doubts and worries
which become an obstacle to achieving dreams. No amount
of planning is sufficient for an entrepreneur as we never
know fully the challenges that lie ahead. All it takes is guts,
lots of passion, endurance, determination and plenty of
hard work.
After having taking this journey so far, do I have any
regrets? Maybe, about not running the café. I see myself
first as a business owner providing legal services and then
a lawyer. The entrepreneur bug is infectious and made me
start another business providing mediation services two
years ago. This time, however, I was clear that I am not
doing it solo. I do not think that I have reached the end of the
road. I am allowing other opportunities to come along and
when the time is right, I’ll just run with it.
► Rajan Chettiar
Rajan Chettiar LLC
45
Lifestyle
Travel
A Kyushu Seven Star Experience on Rail
If Japan is shaped like a seahorse, Hokkaido island would
be the head and Kyushu the heel (and Okinawa its little
toe). Yet, Kyushu’s Achilles heel (to borrow an anatomical
reference) is its meek reputation, relatively heard of almost
like a poorer, neglected cousin of the main island, Honshu,
where the gleaming and exciting cities of Tokyo and Osaka
constantly beckon.
But this is no longer the case. Kyushu, separated by the
narrow Kanmon Straits from Honshu, is now enjoying a
surge of interest as an untrammelled and agrarian part of
Japan waiting to be explored and enjoyed. It is said that
people in Kyushu are friendlier and the land is evergreen.
Indeed, with its mild climate and its gurgling geothermal
activities, tourists are now flocking to this little outpost to stay
in one of the ubiquitous ryokans (traditional inns) and enjoy
the splendid onsens (mineralised hotbaths) filled with all the
goodness of the subterranean minerals. There are also many
splendid seafood restaurants, quaint towns and resurgent
cities like Nagasaki, Fukuoka and Kagoshima, which can
easily fill up a demanding tourist’s week of activities.
Recently, Japanese interest in visiting Kyushu heightened
after the inauguration of the Kyushu Railway Company’s
exclusive 7 Star Cruise Train in 2013, which plies the major
cities and towns of Kyushu. I was told that the local Japanese
can get on the train only through a balloting system. The
demand is much higher and some have to wait two years
or more even before they can be guests on the train. And
some unfortunate others do not even get a chance.
The Cruise Train Seven Stars or Seven Stars Luxury Cruise
Train, whichever way you call it, was so christened and
named in recognition of the seven prefectures of Kyushu
(Nanasuboshi) and the seven carriages. While it is not
intended to suggest that the class of travel is of celestial
quality, the gushed exclamations from my Japanese friends
whom I spoke to assured me that its gleaming seven stars
insignia also denotes the exemplary level of Japanese
hospitality that I can look forward to. “Like a cruise, but only
on land”, explained a friend.
As such, when I was told by Follow Me Japan, a local
travel outfit specialising in unique tours in Japan, that there
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Travel
was an available slot for a four-day, three-night inaugural
journey for foreign tourists on the Japanese version of the
Orient Express, I leapt at the opportunity to ride on this
stylish behemoth.
My journey on this exquisite, and I believe, soon to be iconic,
train starts from Hakata Station at Fukuoka, the gateway
to the rest of Kyushu. There were only 27 passengers to
occupy the luxurious suites for 14 couples. No price for
guessing why the odd number as I was alone. This was
a parsimonious number of guests grossly outnumbered by
the throng of enthusiastic and youthful staff who welcomed
us at a reception with music wafting from a baby grand.
Everything went like clockwork and no time was wasted in
getting me comfortably ensconsced in my assigned cabin.
With its combination of vintage opulence and contemporary
luxury such as free wifi and high thread count pyjamas, I can
see why there is so much hype about it. The well-appointed
rooms had plush sofas and expansive window views of
the constantly transforming scenery. There was nary a dull
moment as the staff are interactive and friendly, just like the
constantly changing scenery, beckoning and interesting.
Although I resisted the mandate to adhere to a smart casual
and formal dress code on board the train during lunches and
dinners, I soon understood why. Every meal was special
and was akin to an occasion to be savoured and respected
for its culinary exquisiteness and refinement.
The meals showcased the finest ingredients and local
produce that Kyushu has to offer and all are accompanied
with the finest cutlery and utensils. It became plain to see
that anyone casually dressed would feel they were being
disrespectful to the occasion when the meals were so
ornately presented by the top chefs of Kyushu. The lush
interiors with its sumptuously decorated walls and display
cabinets, gilded gold insignias and maroon-coloured
armchairs built by master craftsmen in Kyushu all conspired
to make mealtimes a grand affair. Even the violinist and
pianist were dressed in well-tailored suits playing a plethora
of music, both classical and contemporary. They look like
Japanese models straight out of some fashion magazine.
The Japanese do indeed respect the spirit of the occasion
and that explains their fastidious adherence to details and
need for formality.
After being guided to the private platform, I was astounded
by the sight of the much hyped train: gleaming mahogany
coloured richly emblazoned with its glistening gold stars
and adorned with gold letterings of the seven prefectures.
It was really a star in its own right. Japanese parents lined
their chidren to take souvenir shots in front of this special
train with the obligatory kawaii (cute) poses. There was a
palpable air of excitement when the train engine rolled in
to link with the other carriages. The energetic and beautiful
crew was clearly popular with the camera-toting passengers
who were all eager to take photographs with them dressed
in their smart navy blue uniforms, hats and shoulder bags.
Everyone waved at us as we boarded and continued to do
so even as the train unceremoniously left the station without
a “choo, choo” or a “chugga, chugga” to judiciously maintain
its surrounding’s peace and serenity, despite its grand
presence. It was quiet.
The lounge carriage aptly called the Blue Moon indulges
the luxury lifestyle with a full-glass view of the rolling tracks
and countryside. Just sit and surrender and keep an ear
perked for the friendly bulletins from the engine room
inviting passengers to admire Kyushu’s beauty in cascading
waterfalls, shimmering ocean views and even school
children releasing balloons into the air to welcome us. The
train stopped for us to take photographs of these little school
children waving flags and singing, festooned with banners
of welcome. I found out, this is to celebrate the train’s
maiden journey with foreigners on board, and everyone
weighed in to make us feel special, even the Mayors of
each town and their beguiling beauty queens. At Miyazaki
City, the Mayor even expressed a heartfelt condolence on
Lee Kuan Yew’s departure. “Everyone in Kagoshima knows
of Singapore and Mr Lee. I am truly sorry for your big loss”,
he said, followed by a deep bow. Instinctively, we all bowed
in unison to mourn the passing of an epoch.
47
Lifestyle
Travel
The train does make stops for us to stretch our legs and
allow us to explore the little towns and to find out more about
Kyushu’s history, culture and cuisine. We were taken to try
our hand at pottery making and kaleidoscope making, with
the added bonus of taking home what you have made. There
are also excursions to various towns to get to know its people
and to see their art and craft. One such town is Yufuin. With
its picturesque Lake Kirinko backed by soaring mountains, it
is quite like a little Swiss hamlet transported to Japan. Lining
the lakes are little A-framed buildings housing shops selling
everything from Japanese pottery to paintings, wooden
bridges and restaurants nestled in the woods. The main
street has hole-in-the-wall cafes, boutiques selling handpainted umbrellas and handicraft, snack shops and even
small museums for those with the time to browse. Yufuin is
a hidden gem.
As we continued with our journey to south Kyushu, we were
taken to Aoshima in Miyasaki Prefecture, a little promontory
which is home to the Udo Shinto shrine. This shrine is
dedicated to Emperor Jimmu, the mythical first emperor
of Japan. On our walk to the shrine, rows of basalt rocks
were seen arching out of the shallow waters during low
tide. This natural phenomenon has been aptly called the
“Devil’s Washboard” by the Japanese. I speculated that the
shrine was strategically located to counter any misdirected
malevolence from these nefarious looking protrusions.
In the shrine, there were many myths and games to be
played. “Cast a tile and break it at the stone slab” the priest
explained when pointing to a pile of rubble surrounding a
stone slab. “If you throw and break your tile on the stone
slab, you will get married”. The unmarried all tried and some
succeeded. I confidently took my aim and threw my tile with
directional purpose. Unfortunately, it followed its own orbit
and trajectory. “It’s ok, try with your right hand”, the priest
shrugged. The same result ensued. “Some things are not
meant to be. You better hurry along”, he said apologetically
with nary a glance as I asked for another tile.
To experience the best that Kyushu has to offer, we stopped
over at Kirishima Prefecture and stayed at Wasurenosato
Gajoen or Myoken Ishiharaso, two ryokans showchasing
different decor on either side of the river. Each ryokan at
Gajoen is strategically perched on a hill where you have an
uninterrupted view of the river and surrounding mountainside.
It has an ensuite onsen and outdoor hot springs should one
wish to try them out. With the steaming caldron of hot spring
water promising to make me supple and lithe again, I needed
no prompting in dipping in.
For passengers with deep pockets who value complete
privacy, there is the option of staying at Tenku no Mori where
you can have the entire mountain resort almost to yourself,
complete with butler service and sundowners. This resort has
only a few luxury villas magnificently decorated with clean
lines and modern amenities. They have their own sundecks
that overlook the Kirishima mountain range and all meals are
made from freshly grown ingredients and produce harvested
in the resort. All I could afford was to view the sunset from the
top of the mountain to see if its moniker of being a “Heaven in
the sky” held any truth. Alas, the sun set behind a cloud and
I could give no meaningful assessment.
If you are an early riser, there are town walks that you
can take. The only walk (or rather coach ride and then a
short walk) that I succeeded in taking was to Mount Aso in
Kumamoto Prefecture to see the plumes of ash and cordite
from the caldera of an active volcano. If you have never seen
a volcano up close and personal, this is one opportunity you
cannot miss. Do check as to whether the walkway to the
edge of the caldera is open as much depends on the stability
of the seismic activity before access is allowed.
I had lots of fun on board the train. Nights were never boring
as I settled to a nightcap in the Blue Moon lounge and
listened to the musicians fill the air with music or marvel at a
magician’s sleigh of hand. The staff was always willing to talk
to you and offer you a cocktail of any concoction you desire.
The stars shone brightly during my trip and their presence
heralded the promise of another day of sunshine and blue
skies. My spirit was also lifted by the buoyant personalities
of the crew. When it was time to say goodbye, I asked the
Japanese crew whether they could remove that veneer of
formality and sing a song for all of us. They hesitated and
obliged with a rendition of Sukiyaki. Sensing that we wanted
more, they belted the official JR (Japanese Rail) company
song which turned out to be so beautiful that it brought a tear to
my eye. With surprising spontaneity and candour, they looked
into my camera and contorted their faces. “Simon san!”, they
chorused. “Come back again if you miss us! And next time,
please bring your wife!” How apt. This train ride is meant to
be experienced and the sumptuous spread savoured with
someone dear. Perhaps, it is written in the stars.
► Simon Tan
Attorneys Inc. Limited Law Corporation
48
Lifestyle
Travel
Wood-panelled interior of the Blue Moon lounge where evening aperitifs
are served
Dining lounge onboard the Kyushu Seven Star
A kaiseki lunch served onboard
An artfully presented kaiseki spread using the fresh local produce of
Kyushu
An excursion to Huis Ten Bosch, a re-created Dutch town with fresh
tulips blooming in spring
A Shinto in Aoshima, Miyasaki Prefecture
49
Lifestyle
Travel
Yufuin town centre lined with quaint shops and Mount Yufu dominating
the backdrop
A horse-drawn carriage in Yufuin town
Balloons being released into the air as the Kyushu Seven Star passes
Miyazaki countryside
An unusual restaurant nestled in the woods of Yufuin where you can sit
amongst old gramophones and LP records adorning the wall
Tenku no Mori (“heaven in the sky”), an exclusive resort in Kirishima
Flag-waving school children welcoming the arrival of the train
A wooden arch festooned with prayer plaques containing wishes ranging
from recovery of illness to finding true love
Wasurenosato Gajoen ryokan with its Japanese-style guestrooms and
ensuite onsens
50
Notices
In Memoriam
Lee Kuan Yew’s Legacy as Lawyer
Introduction
The recent outpouring of national grief over Lee Kuan
Yew’s passing has fuelled quests (both public and private)
to search out the secrets in our nation’s first Prime Minister.
Singaporeans want to know more about the man and the
mysteries behind the man who defined Singapore and, by
extension, our lives in this island state as we know it. To meet
this need, the National Museum of Singapore has opened
an “In Memoriam” exhibition since 25 March chronicling Lee
Kuan Yew’s life and political career. For lawyers, revelations
about the legendary figure has an added significance. Lee
Kuan Yew was, after all, one of our own.
Surprisingly, however, precious little has been written about
our founding father’s legacy as a lawyer. This narrative
serves to synthesise some of the available information,
supplement the literature and serve as a remembrance
piece. If it has the effect of surfacing to light little-known and
obscure facts about Lee Kuan Yew as lawyer to the reader,
the writer would have also achieved a subsidiary objective.
Return to Singapore and Pupillage
We pick up the threads of the career narrative in 1950 when
Lee Kuan Yew and Kwa Geok Choo (by then Mrs Lee Kuan
Yew) returned to Singapore having been already secretly
married in Stratford-upon-Avon in December 1947. Mr and
Mrs Lee were both offered places for pupillage at Laycock
& Ong, a thriving law firm in Malacca Street.
On 7 August 1951, having completed one year of pupillage
at Laycock & Ong earning $500 a month, Lee was called to
the Bar. “… dressed in somber clothes and [having] donned
our barrister’s robes complete with white tabs and, in [his]
case, a stiff wing collar”. In his memoirs, The Singapore
Story, Lee recounted the importance of the occasion. The
entire Bar had 140 members. Only some 10 new lawyers
were admitted each year. Rene Eber, a respected elderly
Eurasian lawyer moved the mass call with what Lee
remembers to be a gracious little speech.
Post-call, Geok Choo practised conveyancing
draftsmanship. Kuan Yew did litigation.
and
Kuan Yew, the Pro Bono Publico Champion
Even in his fledgling years as a legal eagle, Lee’s career
careered rapidly. He used his intellectual prowess and
legal knowledge to optimal effect to help the masses;
particularly, the unionists. The seeds were being sown for
the rise and rise of a pro bono publico extraordinaire. Wellknown anecdotes of Lee’s advocacy pepper the biographies
and autobiographies
of his life. Some of
these stories are
summarised next.
In one instance, Lee
stood up for Malay
hospital attendants
who were poorly
paid and resorted to
rummaging through
dumpsters to forage
for leftover food to
supplement their
meagre
meals.
Stunningly accused of pilferage by the local hospital,
these attendants faced the threat of disciplinary action. As
perplexing as it would have been for the accused (and even
for us today), how could such dire straits economically be
considered theft? All they were doing was “just picking up
what the hospital was throwing away to feed their hungry
children” (recounted in Yap, Lim and Leong Men in White,
The Untold Story of Singapore’s Ruling Political Party
(“Men in White”).
Mofradi Bin Haji Mohamad Noor, then hospital worker and
chairman of the Singapore Medical Worker’s Union turned
to the Union’s legal advisor for assistance. The young and
earnest lawyer wrote a letter to the management that niftily
did the trick: it explained the situation and satisfactorily
resolved the matter. It was not just the result that left an
impact; it was also Lee Kuan Yew’s “bedside manners” that
left a deep and abiding impression on the Malay hospital
workers. It was quintessential Lee Kuan Yew as we know
him: practical and direct. Yet also, friendly and modest.
Mofradi recalled: “For example, when he attended meetings,
he would not sit in front; he would sit among us”.
According to Men in White, Mofradi’s account “had an
unerring ring of familiarity which kept recurring in interviews
with many former trade union leaders of the period – a
union would have an industrial dispute, a work stoppage or
a go-slow, or it would go on strike or enter into arbitration,
and hey presto, its legal adviser would turn out to be Lee
Kuan Yew”.
Singapore Barber Shops and Hair-Dressing Salons Workers’
Union President, Lin You Eng was once wrongly charged for
vandalism. He was defended and ultimately cleared of all
charges by the Union’s legal advisor. Lin remembered Lee
as being very helpful and patient when dealing with them
during the incident. “He spoke to us in halting Mandarin. He
had no airs and showed he was willing to listen to the union
members”.
51
Notices
In Memoriam
Former journalist, minister and diplomat, Othman Wok,
Secretary of Singapore Printing Employees Union (“SPEU”),
had gone on strike against British-owned Straits Times and
the dismissal of a union official. No prizes for guessing
who their legal advisor was. Lee gave them sound advice
– warning the union that it would lose the battle as it was
facing a “very powerful employer” who represented British
interests. He advised the strikers to go back to work and
offered to resolve the dispute for them. The Union wisely
heeded Lee’s advice.
Lee’s memorabilia shows all-and-sundry correspondence
from trade unions naming Lee, or inviting him to be, their
legal advisor. There were no fewer than 50 unions and
associates – from the humble to the everyday to the
esoteric. His list of clientele included the following:
1. East Coast Mining and Industrial Workers’ Union.
2. Amalgamated Malayan Pineapple Workers’ Union.
3. Malayan Gold and Silver Workers’ Union (Singapore
branch).
4. Singapore Spring Workers’ Union.
5. Singapore Itinerant Hawkers and Stalls Association.
6. Singapore Chinese Liquor Retailers’ Association.
7. Singapore City Council Night Soil Worker’s Union.
8. Singapore Printing Employees’ Union.
9. Singapore Union of Journalists.
Lee’s list would hardly be the envy of a modern-day lawyer
showcasing his client list.
According to Lee’s memoirs, many unions sought him to
be legal advisor when he gained public prominence. “We
decided we would not turn them down so I became honorary
advisor this, legal advisor that …. I used to go to some of
their annual dinners or meetings to touch base with them”.
The Straits Times, 23 March 2015 edition in an article
captioned “Union Rabble Rouser” succinctly comments:
“Soon Mr Lee built a reputation as a champion of social
underdogs. He became legal adviser to more than 100
unions and associations within two years”.
But the case that propelled Lee into an unprecedented
prominence in the public’s eyes was a pay dispute between
the Singapore Post and Telegraph Uniformed Staff Union
and the colonial authorities in 1952. It arrived at the time of
another, more personal, arrival. Union leaders had asked
Lee to be their legal advisor several days before the birth
of his first child, Lee Hsien Loong. Geok Choo’s memory
of this in Men in White captures the hidden euphoria of that
moment: “People would think he’d be cooing over the baby
all the time instead of talking about union matters. But I
think he was quite pleased at the prospect of acting for this
union.”
Throughout the 13-day strike by the P and T Union (as it
was better known), all mail services ground to a halt. This
predictably, unnerved British officials. Lee wore the hat of
legal advisor, official negotiator and eloquent spokesman
with aplomb.
In Lee Kuan Yew’s reminiscence during his eulogy at his late
wife’s, Geok Choo’s, passing at the funeral service at Mandai
Crematorium, 6 October 2010 he said: “That February [in
1952], I was asked by John Laycock, the Senior Partner,
to take up the case of the Postal and Telecommunications
Uniformed Staff Union, the postmen’s union. They were
negotiating with the government for better terms and
conditions of service. Negotiations were deadlocked and
they decided to go on strike. It was a battle for public
support. I was able to put across the reasonableness of their
case through the press and radio. After a fortnight, they won
concessions from the government. Choo, who was at home
on maternity leave, penciled through my draft statements,
making them simple and clear.”
The dispute hinged on $10. The difference between the
Government’s offer of $90 and the postmen’s demand of
$100 on the maximum pay. The demand for the reasonable
and small differential was met by an inexplicable
intransigence from the authorities. Despite the massive
service disruptions, public sympathy and support were
strongly with the postmen. Even the press and pro-British
legislative councillors sympathised with the unionists.
Eventually, the pressure took its toll and the Government
of the day caved in. The case became a cause celebre and
Lee Kuan Yew, a household name.
No Charge for Legal Fees
In his memoirs The Singapore Story, Lee said that he
accepted the postmen’s case without charging for legal
fees.
In a speech entitled The lawyer and his vision for
Singapore on 4 June 2010, Simon Chesterman succinctly
observed: “[Lee’s] early clients were often trade unions
and associations, meaning that he earned considerably
less than he could have as a lawyer. When the cause was
worthy and the clients needy, he waived his fees entirely …”
52
Notices
In Memoriam
The Straits Times (23 March 2015) under a news headline
captioned “Union Rabble Rouser“ reported in similar vein:
"As a newly minted lawyer who had just returned home
from Britain, the young Mr. Lee Kuan Yew devoted time to
helping the unions and other vulnerable groups in their runins with the British … These cases rarely raked in the big
money, much to the chagrin of his firm, Laycock & Ong."
•
Counsel for the successful appellant in Lim Yam
Heng v Choo Swee Choo (f) [1955] 1 MLJ 176.1. In
that case, the appellant was ordered to pay the sum
of $50 monthly for the maintenance of his wife, the
respondent, under s 2(1) of the Married Women and
Children (Maintenance) Ordinance, 1949. At first
instance, the learned Magistrate made the order as
he found that the appellant had made no effort to take
his wife home even though the appellant informed the
Court that he wanted his wife to return to the matrimonial
house. On appeal, Tan Ah Tah J held that there was no
legal obligation on the husband’s part to take positive
steps to bring the wife home to fulfil the conditional
maintenance order – the condition being that she lives
with him in the matrimonial home. The order made by
the learned Magistrate was held therefore to be wrong
and set aside. What is significant to note is the proactive conciliation stance of Lee Kuan Yew reported
at the tail end of the judgment. The report states “the
appeal having been allowed, counsel for the appellant
intimated, after discussion, that he would seek the aid
of the Social Welfare Department in an endeavour to
bring the parties together”.
•
Counsel for the Respondent/Plaintiff in Lum See On v
Chan Kit Yong (f) [1956] 1 MLJ 40 that held, inter alia,
that the relevant date for determining the rights of a
landlord and tenant of rent-controlled premises is the
date of the hearing. As the Defendant/Appellant ceased
to be the legal personal representative of the original
tenant when the action was heard, she was not entitled
to rely upon the provisions of the Control of Rent
Ordinance as at that date to defeat the plaintiff’s claim
for possession at common law.
•
Counsel for the successful appellant in Cherian
Varughese v Aminah Radin Osman [1958] 1 MLJ 221.
In a robust position adopted at first instance before
the District Judge, he submitted a plea of no case to
answer that was rejected. On appeal, the critical legal
issue was the meaning of “demand” in s 15(1)(a) of the
Control of Rent Ordinance. It was held that the words
of that statute which requires a “notice of demand in
writing” meant that “demand” should be construed in its
popular sense as opposed to meaning a formal demand
made in accordance with the strict rules of common
law. In that case, as the trial Judge based his finding
on the question of reasonableness purely on the fact of
irregularity as payment of rent and failed to direct his
mind to the facts that led to such irregularity, a new trial
was ordered.
•
Counsel for the applicant (Ahmad Ibrahim was Senior
Crown Counsel) in an application for an Order of
Prohibition to restrain a Commissioner appointed under
the Inquiry Commission Ordinance from acting on the
Lee’s employers were certainly not amused. In a letter to
Lee, his boss John Laycock complained that the firm had
“suffered” from all his union cases and that it “must not take
on any more of these wage disputes.”
The editors of Men in White offer the following commentary:
“Obviously, the lawyer was not in it for the money. The
unions comprised lowly paid workers who could barely
afford to pay his legal expenses.”
If Lee had really courted material rewards, he would have
joined some of his peers in servicing well-heeled clients
including those hailing from a few big British trading houses,
banks or doing lucrative conveyancing work. He chose the
path less-travelled.
Regional Fame and Inception of Lee & Lee
Lee’s fame was not just limited to Singapore. When Utusan
Melayu stalwart, Abdul Samad Ismail, was detained in 1951
for anti-British activities, his newspaper hired Lee as his
lawyer. Living in retirement in Petaling Jaya in 2002, the
doyen of journalism whose controversial career straddled
both sides of the Causeway was reportedly both vivid and
livid at the recollection. Another leading lawyer demanded
$15,000 from him to do his case. Lee famously charged
a token sum of $10. He subsequently defended university
students who had worked on the University of Malaya
undergraduate newspaper, Fajar.
In 1955, perhaps sensing the need for greater autonomy as
to the choice and shape of his practice, Lee together with
his brother and wife, set up one of Singapore’s best known
local law firms: Lee & Lee.
Court Appearances
A quick survey of some cases he was involved in show him
advancing arguments as Counsel in distinctly different and
specialised areas of practice: criminal, family, landlord and
tenant law and (predictably) judicial review applications.
Lee Kuan Yew was:
•
Amicus curiae in R v Tan Ah Inn & Ors [1953] 1 MLJ
65.1 on the meaning of the word “frequent” in s 10(2)(b)
of the Dangerous Drugs Ordinance, 1951.
53
Notices
In Memoriam
ground that he was biased: In re Application by Ong
Eng Guan for an order of prohibition in Re Appointment
of S H D Elias [1959] 1 MLJ 92. The Attorney-General
raised a preliminary objection that the Writ of Prohibition
did not lie against a Commissioner appointed under the
Inquiry Commissions Ordinance, as the Commissioner
had no power to determine questions affecting the rights
of subjects and was, therefore, not a judicial tribunal.
Rose CJ upheld the preliminary objection. However,
the Court considered it to be a “borderline case” and
that “The decided cases, however, indicate that courts,
naturally enough, are slow to grant orders of prohibition
on the head of bias except on the clearest grounds
and, while it may be that I regard these highly charged
political matters with too detached an eye, I have come
to the conclusion that the Commissioner in question,
who, I have no doubt, accepted his exacting assignment
out of a sense of public duty and who is a person of
standing in his profession and the community at large,
would not in fact be biassed (sic) by the considerations
to which I have referred”.
•
•
Counsel for the appellant in the District Court Appeal
No. 28 of 1952 hearing in Toh Whye Teck v The Happy
World Ltd [1953] 1 MLJ 171. Whitton J commended Lee
Kuan Yew, for having “argued with great ability”.
Counsel for the successful appellant in Tan Kia Gan v
Tan Siok Hoon (F) [1959] 1 MLJ 38. This was a family
case in which Rigby J of the Penang Court also gave
a judicial commendation in closing that “in conclusion
I would express my indebtedness to both Counsel for
their arguments ...” The other Counsel was Eusoffe
Abdoolcader, amicus curiae, in that case later to be
appointed as Malaysian Supreme Court Judge.
affecting their lives, had legal aid and legal advice from a
learned friend. A learned friend in need.
Conclusion
In summary, Lee was passionate about justice. He took up
the cause for the poor and needy of his day (epitomised
by his representation of the trade union rank and file). He
enabled the indigent, whom few fellow members of the Bar
cared about, to gain access to justice. This was unparalleled
for that era of post-World War II lawyers. As a local member
of an elite group of lawyers called to the Bar, he could have
chosen to look inwardly to build personal wealth. Instead,
he looked outwardly to do pro bono publico.
By exemplifying excellence in the conduct of his cases,
as the snapshot from the reported cases of his Court
appearances above shows, Lee also left an indelible mark
as a thought leader in legal practice. Who knows, in an
alternative reality, how Lee’s courtroom advocacy could
have helped develop Singapore jurisprudence in niche
areas of litigation expertise?
But while his sojourn in the practice of law was all too
short, Lee’s ethos as a lawyer will not be forgotten. Charles
Dickens wrote “There are strings in the human heart that
had better not be vibrated”. Conversely, however, there are
strings in the human heart that when vibrated, resonate in
other human hearts. Lee’s heart strings vibrated, over the
corridors of time, and resonate in the hearts of men and
women who seek to practice law excellently yet with a social
conscience. And that, I submit, is the lasting legacy he has
left us as lawyers. A legacy both endearing and enduring for
generations to come.
No Motivation of Financial Gain
► Gregory Vijayendran*
Former Straits Times news editor Felix Abisheganaden
who was acquainted with Lee in the decades of 1950s and
1960s has quipped: “You can never say that he was ever in
his life after any kind of financial gain – never, never, never”.
The editors of Men In White suggest that Lee’s motivations
were to get involved in politics. What better way to cut your
political milk teeth than to take up the cudgels on behalf of
underpaid workers = an important political base?
But in the final analysis, does it matter from the perspective
of providing pro bono legal services, what Lee’s motivations
were? For who knows what lurks in the human heart in even
the most ostensible altruist. Perhaps, the right question
to ask is whether the indigent in Lee’s day were helped.
Whether men and women in the street who would not have
otherwise had their day in Court, or faced legal challenges
Vice-President
* The author is grateful to Ronald Wong, Jonathan Cheong and Jason Gabriel
Chiang for their research that contributed to this article. All errors and omissions
are mine.
Bibliography
1
Yap, Lim and Leong, “Men in White, The Untold Story of Singapore’s Ruling Political
Party”.
2
The Singapore Story, Memoirs of Lee Kuan Yew (Singapore Press Holdings, 1998
Reprint).
3
Simon Chesterman, “The lawyer and his vision for Singapore”, from a speech delivered
on 4 June 2010 at the ceremony for conferment of a honorary degree of doctor of laws
on Lee Kuan Yew (Straits Times, 5 June 2013 edition at A20).
4
“Union Rabble Rouser”. Straits Times (23 March 2015 edition).
5
Corfield, “Historical Dictionary of Singapore” (2011 Edition).
6
Eulogy by Minister Mentor Lee Kuan Yew at the Funeral Service of Mrs Lee Kuan Yew,
Mandai Crematorium, 6 October 2010
54
Notices
Professional Moves
New Law Practices
Ms Boxall Lynette Maureen (formerly
of FSLaw LLC) has commenced practice
under the name and style of Lyn Boxall
LLC on 16 March 2015 at the following
address and contact numbers:
50 Raffles Place
#37-00 Singapore Land Tower
Singapore 048623
Tel: 6829 7031
Fax: 6829 7070
Website: www.lynboxall.com
Ms Seah Andrea Adelaine E'Leng
(formerly of Tan Andrea Seah & Partners)
has commenced practice under the name
and style of Andrea Seah Law Practice
on 1 April 2015 at the following address
and contact numbers:
Mr Ong Cheong Wei (formerly of Belinda
Ang Tan & Partners) has commenced
practice under the name and style of Ong
Cheong Wei Law Chambers on 1 April
2015 at the following address and contact
numbers:
Change of Name of Law Practice
No. 20 Havelock Road
#02-29 Central Square
Singapore 059765
Tel: 6428 8232
Website: www.lawyerong.com
1 Coleman Street
#05-13B The Adelphi
Singapore 179803
Tel: 6533 9339
Fax: 6533 9559
Mr Sathinathan s/o M R Karuppiah and
Ms Jayanthi d/o Jhogasundram (both
formerly of TJ Cheng Law Corporation)
have commenced practice under the
name and style of Sathi Law Chambers
on 1 April 2015 at the following address
The firm name of Stamford Law
Corporation has been changed to
Morgan Lewis Stamford LLC with effect
from 1 April 2015. There is no change to
the firm’s contact details.
1 Pegu Road
#01-08
Singapore 325358
Tel: 6222 2396
Fax: 6223 2396
7500A Beach Road
#07-323 The Plaza
Singapore 199591
Tel: 6225 9663 / 6291 3297
Fax: 6225 9620
Website: www.sathilaw.com
Mr Balasubramaniam s/o Appavu
(formerly of Pereira & Tan LLC) has
commenced practice under the name and
style of BSA Law Chambers LLC on 1
April 2015 at the following address and
contact numbers:
Ms Lakshanthi Kumari Fernando
(formerly of LegalStandard LLP) has
commenced practice under the name
and style of Holborn Law LLC on 6 April
numbers:
133 New Bridge Road
#10-04 Chinatown Point
Singapore 059413
Tel: 6236 2001
Fax: 6532 0412
10 Collyer Quay
Level 40 Ocean Financial Centre
Singapore 049315
Tel: 9648 9008
Ms Loi Thanh Mai Laurel (formerly of
AbrahamLow LLC) has commenced
practice under the name and style of
Elohim Law Corporation on 1 April
numbers:
9 Penang Road
#12-01 Parkmall
Singapore 238459
Tel: 6694 3133
Fax: 6694 6386
Mr Nicolas Tang Tze Hao has
commenced practice under the name and
style of Farallon Law Corporation on 7
April 2015 at the following address and
contact numbers:
10 Collyer Quay
Level 40 Ocean Financial Centre
Singapore 049315
Tel: 6808 6147
Fax: 6806 6299
Website: www.fl.sg
The firm name of Andrew Yap &
Company has been changed to Andrew
Yap & John with effect from 1 April 2015
and is operating at the following address
Conversion of Law Practices
Low Yeap Toh & Goon has converted to a
limited liability law partnership, Low Yeap
Toh & Goon LLP, on 16 March 2015 and
is operating at the following address and
contact numbers:
10 Anson Road
#18-13 International Plaza
Singapore 079903
Tel: 6200 2666
Fax: 6223 6483
The following are Partners of Low Yeap
Toh & Goon LLP: Mr Chong Soon Pong
Adrian, Mr Chong Soon Yong Avery, Mr
Low Siew Joon, Ms Nirmala Ravindran
and Mr Toh Weng Cheong (all formerly of
Low Yeap Toh & Goon).
Foo & Quek has converted to a law
corporation, Foo & Quek LLC, on 1 April
2015 and is operating at the following
address and contact numbers:
16 Raffles Quay
#14-01 Hong Leong Building
Singapore 048581
Tel: 6220 7455
Fax: 6224 4810
The following are Directors of Foo & Quek
LLC: Mr Foo See Juan and Mdm Quek
Bee Heong (both formerly of Foo & Quek).
55
Notices
Professional Moves
David Chong & Co has converted to
a law corporation, David Chong Law
Corporation, on 1 April 2015 and is
operating at the following address and
contact numbers:
6 Temasek Boulevard
#09-04 Suntec Tower Four
Singapore 038986
Tel: 6224 0955
Fax: 6333 6835
Website: www.davidchong.com.sg
Mr David Chong Kok Kong (formerly of
David Chong & Co) is the sole director of
David Chong Law Corporation.
Ong Swee Keng & Co has converted
to a limited liability corporation, Ong
Swee Keng LLC, on 1 April 2015 and is
operating at the following address and
contact numbers:
16 Raffles Quay
#41-01A Hong Leong Building
Singapore 048581
Tel: 6224 6106
Fax: 6227 3695
MG Chambers LLC
20 Collyer Quay
#23-01
Singapore 049319
Tel: 6222 2535
Fax: 6222 6330
Mr Suppiah Thangaveloo (formerly of
Thanga & Co) has joined MG Chambers
LLC as Consultant with effect from 1 April
2015.
The law practice of Tan Andrea Seah &
Partners dissolved on 31 March 2015.
Outstanding matters of the former law
practice of Tan Andrea Seah & Partners
have, with effect from 1 April 2015, been
taken over by:
AT Law Practice LLP
480 Lorong 6 Toa Payoh
#07-03 HDB Hub East Wing
Singapore 310480
Tel: 6478 6210
Fax: 6325 6501
The law practice of Shue & Co dissolved
on 31 March 2015.
Ms Ho Suk Tsing Leslie (formerly of Ong
Swee Keng & Co) is the sole director of
Ong Swee Keng LLC.
practice of Shue & Co have, with effect
from 1 April 2015, been taken over by:
Dissolution of Law Practice
Benedict Chan & Company
63 Club Street
Singapore 069437
Tel: 6220 6088
Fax: 6220 6087
The law practice of Chu Chan Gan & Ooi
dissolved on 1 January 2014.
practice of Chu Chan Gan & Ooi have, with
effect from 2 January 2014, been taken
over by:
Infinitus Law Corporation
77 Robinson Road
#16-00 Robinson 77
Singapore 068896
Tel: 6221 2233
Fax: 6223 9329
The law practice of Thanga & Co dissolved
on 31 March 2015.
practice of Thanga & Co have, with effect
from 1 April 2015, been taken over by:
The law practice of Nation Law LLC
dissolved on 31 March 2015.
practice of Nation Law LLC have, with
effect from 1 April 2015, been taken over
by:
Vision Law LLC
133 New Bridge Road
#18-01/02 Chinatown Point
Singapore 059413
Tel: 6534 2811
Fax: 6358 0448
and
490 Toa Payoh Lorong 6
#03-11 HDB Hub (Biz 3 Lobby 1)
Singapore 310490
Tel: 6358 0703
Fax: 6358 0448
Mr Wong Keng Leong Rayney (formerly
of Nation Law LLC) has joined Vision Law
LLC with effect from 1 April 2015.
The law practice of B L Ang & Co
dissolved on 1 April 2015. The Law
Society has been advised that there are
no outstanding matters pertaining to the
former law practice.
The law practice of CG Connect dissolved
on 1 April 2015. The Law Society has been
advised that there are no outstanding
matters pertaining to the former law
practice.
The law practice of Looi Teck Kheong
dissolved on 7 April 2015.
practice of Looi Teck Kheong have, with
effect from 8 April 2015, been taken over
by:
Ong Swee Keng LLC
16 Raffles Quay
#41-01A Hong Leong Building
Singapore 048581
Tel: 6224 6106
Fax: 6227 3695
Group Law Practice
Leong Kum Kwok Law Practice LLC
has joined Anson Law Chambers Group
Law Practice with effect from 8 April 2015.
Upon the conversion of Joseph Chai &
Co to JC Law Asia LLC on 17 November
2014, JC Law Asia LLC has joined
Mozaic Group Law Practice with effect
from 17 November 2014.
Upon the conversion of Parwani & Co to
Parwani Law LLC on 1 July 2014, Parwani
Law LLC has joined Mozaic Group Law
Practice with effect from 1 July 2014.
Savoir LLC has joined as a member of
Mozaic Group Law Practice with effect
from 17 March 2015.
56
Notices
Name of Deceased (Sex)
NRIC
Date of Death
Last Known Address
Solicitors/Contact Person
Reference
Teow Swee Ling (M)
S1407073G
5 March 2015
Blk 17A Telok Blangah Crescent
#12-268
Singapore 091017
Seng Sheoh & Co.
6533 9161
LSS/TSL/2015
Rasaletchumy d/o
Thangathurai (F)
S0256120D
9 December 2014
Blk 147 Serangoon North Avenue 1
#02-427
Singapore 550147
Joseph Tan Jude Benny
LLP
6220 9388
2015417500MK
Chew Kim Noi (F)
S0040023H
20 February 2015
Blk 97B Upper Thomson Road
#14-08
Singapore 574328
Tan Leroy & Chandra
6429 0788
LST/T/7184/2015/c
Yew Beng Neo (F)
S0088825G
11 January 2015
Blk 40 Bedok South Road
#04-681
Singapore 460040
Eng Leong & Partners
6222 8744
TEL/cyf/16440/15
Wang Khang Neng (M)
S2531542A
25 March 2015
242 Lorong Chuan
#03-06
Singapore 556744
Abraham Logan & Partners
6536 2119
ATK.8704.15.isc
James Reid (M)
S2580088E
8 February 2015
63 Jupiter Road
Singapore 576545
Fortis Law Corporation
6645 4508
PT.NG.20150153.sz
Tan Sui Siang (M)
S0015777E
11 April 2015
1 Clover Close
Singapore 579243
Jayne Wong
6466 9221
JW/ll/81871/P
Ng Tiong Keng (M)
S0210404J
2 April 2015
60 Kismis Avenue
Singapore 598237
Jayne Wong
6466 9221
JW/ll/81869/LA
Chua Geok Choo Eileen (F)
S0072228F
10 April 2015
11 Hua Guan Crescent
Singapore 589036
Joseph Tan Jude Benny
LLP
6220 9388
2015421062DC/MR/rg
Mrs Nadarajah Maheswari nee
Coomaraswamy (F)
S2181147E
6 April 2015
58 Jalan Mas Kuning
Singapore 128750
Cheong & Koh
6226 4487
CGE/5657.15/may
Tan Kah Cheng (F)
S0471611F
6 March 2015
Blk 249 Bishan Street 22
#10-378
Singapore 570249
Cheong & Koh
6226 4487
CGE/5658.15/may
Lee Fook Tuck (M)
S0414746D
25 April 2015
Blk 120 Ang Mo Kio Avenue 3
#10-1831
Singapore 560120
Hoh Law Corporation
6553 5190
AO/P20369.15
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.
Appointments
57
In-House
Private Practice
SHIPPING PARTNER
Singapore
8+ PQE
An international law firm with a growing shipping team is seeking a new
partner to cover its contentious shipping practice. Candidates with expertise in
arbitration and international trade will be highly favoured. A strong existing
practice in the Asia region is essential. (SLG 11922)
PRIVATE CLIENT ASSOCIATE
Singapore
4-6 PQE
This boutique UK headquartered law firm is looking for a private client lawyer
with experience in wealth management and international tax (with a focus on
UK tax regulation in relation to property investments). Due to the nature of the
work and the client base, the ideal candidate will be England & Wales qualified
with an international private client background. (SLG 12010)
PROJECTS/
DISPUTES ASSOCIATE
Singapore
3-5 PQE
This large global law firm is seeking a mid-level, Singapore qualified, projects
and infrastructure lawyer. The ideal candidate will have both contentious and
non-contentious experience with the ability to offer full service advice on high
profile energy and infrastructure projects. (SLG 11555)
CORPORATE ASSOCIATE
Singapore
3-5 PQE
A leading international law firm is seeking a mid-level corporate associate.
Candidates must have good experience in mainstream M&A/ Private Equity
matters and ideally have worked in a top tier international or local law firm.
(SLG 11891)
BANKING ASSOCIATE
Singapore
Singapore
3-6 PQE
Global commodities company is looking for a legal counsel to join their legal
team in Singapore. The legal counsel will be responsible for advising the
business and support teams on all corporate commercial matters as well as
any dispute issues across the region. The ideal candidate should be a strong
team player, be commercially minded and have at least 3-6 years of
experience in general corporate or litigation work. (SLG 12041)
BANKING LAWYER
Singapore
8-10 PQE
Regional bank is seeking to recruit a mid-level to senior lawyer to join its
established regional legal team in Singapore. The ideal candidate should
have at least 8 years’ legal experience gained from private practice and/or
in-house lawyer, ideally from the commercial bank or other financial
institution. (SLG 11984)
STRUCTURED
PRODUCT LAWYER
Singapore
6-10 PQE
Regional private bank is looking for a derivatives lawyer to advise the
business regionally on a broad range of structured products. The ideal
candidate should have relevant banking experience and familiarity in
structured products. (SLG 11846)
REGIONAL COMPLIANCE
OFFICER
Singapore
6-10 PQE
US listed global IT solutions company is looking for a compliance officer to
advice on all compliance matters across APAC. The ideal candidate should
have familiarity in FCPA, Anti-Bribery Act and Anti-Money Laundering
regulations in the region. (SLG 11999)
NQ-3 PQE
This international law firm is looking for an enthusiastic NQ or junior lawyer to
join its dynamic banking practice. This will be a great role for learning the ropes
in a friendly and collaborative team with exposure to broad banking and finance
matters. (SLG 11720)
BUSINESS DEVELOPMENT
EXECUTIVE (RESOURCES
& INFRASTRUCTURE)
LEGAL COUNSEL
Singapore
A top-tier international law firm is seeking a business development executive
to join its client relationship team with a focus on the energy and resources
practice. Candidates must have strong drafting abilities for pitches and
communications and, ideally, should be familiar with the energy and resources
sectors. (SLG 12006)
CORPORATE INVESTMENTS
COUNSEL
Singapore
3-10 PQE
International investment team based in Singapore is seeking a mid-level
corporate counsel to support its portfolio of global investments. The ideal
candidate will be a Common Law qualified corporate lawyer with M&A,
corporate governance and regulatory experience and must be able to work
independently. (SLG 11939)
REGULATORY FUNDS
COUNSEL
Singapore
4-7 PQE
Global private bank is looking for a junior to mid-level lawyer to join their wealth
management legal team in Singapore. The ideal candidate should have relevant
experience in funds and/or structured products work and familiar with the
financial regulatory regimes. (SLG 11976)
These are a small selection of our current vacancies. If you require further details or wish to have a
confidential discussion about your career, market trends, or would like salary information then please
contact one of our consultants in Singapore (EA Licence: 07C5776):
Lucy Twomey or Jean Teh on +65 6557 4163.
To email your details in confidence then please contact us on [email protected].
Hong Kong
(852) 2920 9100
[email protected]
Singapore
(65) 6557 4163
[email protected]
Beijing
Shanghai
(86) 10 6567 8728
[email protected]
(86) 21 6372 1058
[email protected]
Advertise in the
Law Gazette’s
Appointments
section.
savings, we understand
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ŶŐĂƉŽƌĞĂƌ͘
tŚĂƚtĞZĞƋƵŝƌĞ
ŝďůĞƚŽďĞĐĂůůĞĚƚŽƚŚĞ^ŝ
ŽƵƐĞ͘
ŝƐĞĚƵŶŝǀĞƌƐŝƚǇĂŶĚďĞĞůŝŐŽƐŝƟŽŶͿ͕ǁŚĞƚŚĞƌŝŶƉƌĂĐƟĐĞŽƌŝŶͲŚ
ƐĞŶŝŽƌƉ
ĞŐƌĞĞŝŶ>ĂǁĨƌŽŵĂƌĞĐŽŐŶ
ͻ ŐŽŽĚ,ŽŶŽƵƌƐĚ;ĨŽƌũƵŶŝŽƌƉŽƐŝƟŽŶͿĂŶĚϰͲϲǇĞĂƌƐWY;ĨŽƌ
ͻ ƚůĞĂƐƚϭǇĞĂƌWYƟŽŶƐŬŝůůƐ͘
ͻ 'ŽŽĚĐŽŵŵƵŶŝĐĂ ůůŝŶĚĞƉĞŶĚĞŶƚůǇĂƐǁĞůůĂƐŝŶĂƚĞĂŵ͘
ǁŽƌŬǁĞ
ďŝůŝƚǇƚŽ
ͻ
ĮĞĚ͘Ϳ
ŝůůďĞŶŽƟ
dŽĂƉƉůǇ
ŶůǇƐŚŽƌƚůŝƐƚĞĚĐĂŶĚŝĚĂƚĞƐǁ
ŽĂƉƉůǇ͘;tĞƌĞŐƌĞƚƚŚĂƚŽ
ͬǁǁǁ͘ĐƉĨ͘ŐŽǀ͘ƐŐͬĐĂƌĞĞƌƐƚ
sŝƐŝƚŽƵƌǁĞďƐŝƚĞĂƚŚƩƉ͗ͬ
ͻ
ͻ
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ROLANDTON
Asset &
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LEGAL ASSISTANT,
3 TO 8 YEARS PQE.
MUST HAVE SOLID
EITHER CORPORATE
INTELLECTUAL PROPER
OR LITIGATION DEPART
TY EXPERIENCE GAINED
MENT. SOUND KNOWL
IS ESSENTIAL. TRAVEL
IN
EDGE OF RECENT IP
IS REQUIRED.
CASE LAW DEVELO
PMENT
2. PRIVATE SECRET
ARY FOR PRINCIP
AL CLIENT, MINIM
SPOKEN, ORGANISED
UM 10 YEARS SECRET
AND HAVE EXCELL
ARIAL EXPERIENCE.
ENT PC KNOWLEDGE
POSITION.
MUST
BE
WELL
AND PR SKILLS TO
FILL FAST PACED CONFID
ENTIAL
TOP MARKET REMUN
ERATION WILL BE
PAID TO THE RIGHT
CANDIDATE.
1.
PLEASE SEND DETAIL
ED RESUME INDICA
TING LAST DRAWN
AND EXPECTED SALARY
WITH RECENT PHOTO
THE OFFICE MANAG
TO:
ER, M/S ROLAND TONG,
3 PICKERING STREET
EMAIL: gkwan.bp@gm
#02-22, SINGAPORE
ail.com
048660.
Be Part of the MA
Help shape SingapS Team
ore’s financial lan
dscape
Capital Markets Depa
rtment
Assistant Director/Asso
ciate (Legal), Enforcem
At the forefront
ent
of a specialised area
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of practice, you will
the enforcement of
be a member of a
the civil penalty regime
team responsible for
investigate potenti
al market misconduct, under the Securities and Futures
Act
conduct litigation
on behalf of the MAS including insider trading and market (SFA). You will
for the award of civil
manipulation and
penalties for market
You can expect to
misconduct.
be
enforcement agencie challenged intellectually and profess
s.
ionally as you work
at play, as you serve You will gain insight into how capital
markets participants closely with other regulators and
as
the legal landscape an important part of MAS' enhanced
operate, and the rules
enforcement regime
for this area of Law,
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under the SFA. Your and regulations
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work will shape
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and enhancing the
Requirements:
Wh.
reputation of
Ý Recognised Law
Degree and admitt
Ý At least 1 to 3
ed
years of Civil/Commer to legal practice in Singapore
Ý Willing to be a
cial Litigation experie
pioneer in an emergi
nce
Ý Ability to be innova
ng area of practice
tive and creative in
solving problems
Application:
To apply, please log
on to our career page
at http://www.mas.gov.s
Information on the
g/careers
other positions is also
available at the Singap
Closing Date: 7 Augus
ore Public Service
Job Portal at www.c
t 2011
areers.gov.sg.
(Ref:
AIRCRAF Awards
FIRM OF T FINANCE
LAW
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For enquiries, please contact:
Perry Tan: [email protected]
Wendy Tan: [email protected]
R
R
In-House Roles
Commodities . Singapore
Telecommunications . Singapore
ŶƵƉĂŶĚĐŽŵŝŶŐĐŽŵŵŽĚŝƟĞƐĐŽŵƉĂŶǇŝƐůŽŽŬŝŶŐĨŽƌĂůĂǁǇĞƌƚŽũŽŝŶŝƚƐƚĞĂŵŝŶ
^ŝŶŐĂƉŽƌĞ͘ ƉƉůŝĐĂŶƚƐ ŵƵƐƚ ŚĂǀĞ ƐƚƌŽŶŐ ƐŚŝƉƉŝŶŐ͕ ĨƌĞŝŐŚƚ ĂŶĚ ĐŽŵŵŽĚŝƟĞƐ ƚƌĂĚŝŶŐ
ĞǆƉĞƌŝĞŶĐĞ͘^ŝŶŐĂƉŽƌĞďĂƌƋƵĂůŝĮĐĂƟŽŶŝƐŶĞĐĞƐƐĂƌǇ͘
ZĞĨ͗ϮϬϭϯϵϭ
ϱͲϳнǇĞĂƌƐ
ƵƌŽƉĞĂŶDEŝŶƚŚĞƚĞůĞĐŽŵŵƵŶŝĐĂƟŽŶƐŝŶĚƵƐƚƌǇƐĞĞŬƐĂŵŝĚͲůĞǀĞůůĂǁǇĞƌƚŽĐŽŵĞ
ŽŶďŽĂƌĚ͘ĂŶĚŝĚĂƚĞƐƐŚŽƵůĚŝĚĞĂůůǇĐŽŵĞĨƌŽŵĂƚŽƉůŽĐĂůͬŝŶƚĞƌŶĂƟŽŶĂůůĂǁĮƌŵǁŝƚŚ
ƚƌĂŶƐĂĐƟŽŶĂůĞǆƉĞƌŝĞŶĐĞ͘/ŶͲŚŽƵƐĞĞǆƉĞƌŝĞŶĐĞŝŶĂƚĞůĐŽŝƐĂŶĂĚǀĂŶƚĂŐĞ͘
ZĞĨ͗ϮϬϬϳϱϭ
ϱнǇĞĂƌƐ
Media . Singapore
Banking . Singapore
dŚŝƐǁĞůůͲŬŶŽǁŶŵĞĚŝĂďƌĂŶĚŝƐůŽŽŬŝŶŐĨŽƌĂůĂǁǇĞƌƚŽũŽŝŶŝƚƐWůĞŐĂůƚĞĂŵ͘zŽƵ
ǁŝůůůŽŽŬĂƚĚŝƐƚƌŝďƵƟŽŶĂŶĚĂĚǀĞƌƟƐŝŶŐĂŐƌĞĞŵĞŶƚƐ͕ĐŽƌƉŽƌĂƚĞĂŶĚ/WŝŶŝƟĂƟǀĞƐĂŶĚ
ĂůƐŽĐŽǀĞƌŚŝŶĞƐĞƐƉĞĂŬŝŶŐƌĞŐŝŽŶƐ͘ŽƌƉŽƌĂƚĞĞǆƉĞƌŝĞŶĐĞŝƐŶĞĐĞƐƐĂƌǇ͘
ZĞĨ͗ϮϬϭϲϴϭ
ϮͲϱнǇĞĂƌƐ
dŚŝƐŝƐĂŶŽŶͲƚƌĂŶƐĂĐƟŽŶĂůƌŽůĞǁŝƚŚŝŶĂŶŝŶƚĞƌŶĂƟŽŶĂůďĂŶŬ͘zŽƵǁŝůůďĞƐƵƉƉŽƌƟŶŐ
ƚŚĞŐůŽďĂůƌŽůůŽƵƚŽĨĨƌĂŵĞǁŽƌŬƐƚŽŝĚĞŶƟĨǇ͕ĂƐƐĞƐƐĂŶĚŵŽŶŝƚŽƌůĞŐĂůĂŶĚĐŽŵƉůŝĂŶĐĞ
;ŝŶĐůƵĚŝŶŐ ƌĞŐƵůĂƚŽƌǇ ĂŶĚ ĮŶĂŶĐŝĂů ĐƌŝŵĞͿ ƌŝƐŬƐ͘ 'ĞŶĞƌĂů ůĞŶĚŝŶŐ ďĂĐŬŐƌŽƵŶĚƐ ĂƌĞ
ƉƌĞĨĞƌƌĞĚ͘ZĞĨ͗ϮϬϭϱϴϭ
ϲнǇĞĂƌƐ
Management Consultancy . Singapore
Transaction Banking . Singapore
dŚŝƐůĞĂĚŝŶŐŵĂŶĂŐĞŵĞŶƚĐŽŶƐƵůƟŶŐĮƌŵƐĞĞŬƐĂŶĞǆƉĞƌŝĞŶĐĞĚůĂǁǇĞƌƚŽĂƐƐƵŵĞĂ
ƌĞŐŝŽŶĂůŝŶͲŚŽƵƐĞĐŽƵŶƐĞůƌŽůĞ͘dŚĞƌŽůĞŝƐƐƵŝƚĂďůĞĨŽƌĂƐƚƌŽŶŐĐŽƌƉŽƌĂƚĞŐĞŶĞƌĂůŝƐƚ
ǁŝƚŚŝŶͲĚĞƉƚŚĞǆƉĞƌŝĞŶĐĞǁŽƌŬŝŶŐŝŶƐŝĂWĂĐŝĮĐ͘
ZĞĨ͗ϮϬϭϲϰϭ
ϱнǇĞĂƌƐ
dŚŝƐ ŝƐ Ă ŐůŽďĂů ƌŽůĞ ǁŝƚŚŝŶ ƚŚĞ ůĞŐĂů ƚĞĂŵ ŽĨ ƚŚŝƐ ŝŶƚĞƌŶĂƟŽŶĂů ďĂŶŬ͕ ĂĚǀŝƐŝŶŐ ŽŶ
ĐĂƐŚ ĚĞƉŽƐŝƚŽƌǇ ĂĐĐŽƵŶƚƐ͕ ƉĂǇŵĞŶƚƐ͕ ůŝƋƵŝĚŝƚǇ ŵĂŶĂŐĞŵĞŶƚ͕ ĨƵŶĚƐ ĐůĞĂƌŝŶŐ Θ
ĐŽŵŵƵŶŝĐĂƟŽŶƐĐŚĂŶŶĞůƐ͘>ĞŶĚŝŶŐͬƌĞŐƵůĂƚŽƌǇͬƌĞĐĞŝǀĂďůĞƐďĂĐŬŐƌŽƵŶĚƐĐŽŶƐŝĚĞƌĞĚ͘
ZĞĨ͗ϮϬϭϱϯϭ
ϱнǇĞĂƌƐ
FMCG . Singapore
Derivatives . Singapore
ŶĞǆĐŝƟŶŐƉŽƐŝƟŽŶĞǆŝƐƚƐĨŽƌĂƐĞŶŝŽƌůĂǁǇĞƌŝŶĂƚŽƉ&D'ĐŽŵƉĂŶǇ͘ĂŶĚŝĚĂƚĞƐ
ƐŚŽƵůĚ ŝĚĞĂůůǇ ŚĂǀĞ Ă ŐŽŽĚ ŵŝǆ ŽĨ ŝŶͲŚŽƵƐĞ ĂŶĚ ůĂǁ Įƌŵ ĞǆƉĞƌŝĞŶĐĞ͕ ǁŝƚŚ ƉƌŝŽƌ
ĞǆƉĞƌŝĞŶĐĞ ŝŶ ŵĂŶƵĨĂĐƚƵƌŝŶŐ Žƌ ƉŚĂƌŵĂĐĞƵƟĐĂů ĐŽŵƉĂŶŝĞƐ ďĞŝŶŐ ĂŶ ĂĚĚĞĚ
ĂĚǀĂŶƚĂŐĞ͘ZĞĨ͗ϮϬϭϮϯϭ
ϴͲϭϬнǇĞĂƌƐ
sWůĞǀĞůƌŽůĞĐŽǀĞƌŝŶŐƐŝĂWĂĐŝĮĐ;ĞǆĐůƵĚŝŶŐ:ĂƉĂŶͿǁŝƚŚĂŶĞŵƉŚĂƐŝƐŽŶƌĂƚĞƐĂŶĚ&y
ůŝŶŬĞĚĚĞƌŝǀĂƟǀĞƐĂŶĚƐƚƌƵĐƚƵƌĞĚƉƌŽĚƵĐƚƐŝŶŝŶǀĞƐƚŵĞŶƚΘƉƌŝǀĂƚĞďĂŶŬŝŶŐĐŽŶƚĞǆƚ͘
^ĞĐƵƌŝƟǌĂƟŽŶͬKdĚĞƌŝǀĂƟǀĞƐͬƐƚƌƵĐƚƵƌĞĚƉƌŽĚƵĐƚƐďĂĐŬŐƌŽƵŶĚƉƌĞĨĞƌƌĞĚ͘
ZĞĨ͗ϭϵϲϲϴϭ
ϰнǇĞĂƌƐ
Private Practice Roles
FCPA/Investigations . Singapore
Ship Finance . Singapore
'ůŽďĂůůĂǁĮƌŵƌĞƋƵŝƌĞƐĂƚĞĐŚŶŝĐĂůůĂǁǇĞƌƚŽƵŶĚĞƌƚĂŬĞďƌŽĂĚƌŽůĞĞŶĐŽŵƉĂƐƐŝŶŐ
ĂŶƟͲďƌŝďĞƌǇ ;ŝŶĐůƵĚŝŶŐ &WͿ͕ ĂŶƟͲŵŽŶĞǇ ůĂƵŶĚĞƌŝŶŐ͕ ĐŽŵƉůŝĂŶĐĞ ĂŶĚ ƌĞŐƵůĂƚŽƌǇ
ŝŶǀĞƐƟŐĂƟŽŶƐ͘'ĞŶĞƌĂůďĂŶŬŝŶŐͬ&^ůŝƟŐĂƟŽŶůĂǁǇĞƌƐĂƌĞĂůƐŽŝŶǀŝƚĞĚƚŽĂƉƉůǇ͘
ZĞĨ͗ϮϬϭϱϵϬ
ϯͲϲнǇĞĂƌƐ
dŚŝƐůĞĂĚŝŶŐŝŶƚĞƌŶĂƟŽŶĂůůĂǁĮƌŵŝƐŬĞĞŶƚŽŚŝƌĞĂƐĞŶŝŽƌƐŚŝƉƉŝŶŐůĂǁǇĞƌƚŽũŽŝŶŝƚƐ
ĞǆŝƐƟŶŐ ĂƐƐĞƚ ĮŶĂŶĐĞ ƚĞĂŵ ĂƐ ĞŝƚŚĞƌ Ă ĐŽƵŶƐĞů Žƌ ũƵŶŝŽƌ WĂƌƚŶĞƌ͘ zŽƵ ǁŝůů ŚĂǀĞ
ĞǆƉĞƌŝĞŶĐĞǁŝƚŚĮŶĂŶĐĞĂƐǁĞůůĂƐƉƌŽũĞĐƚƐĚŽĐƵŵĞŶƚƐŝŶƚŚĞŵĂƌŝƟŵĞƐĞĐƚŽƌ͘
ZĞĨ͗ϮϬϭϳϮϭ
ϳнǇĞĂƌƐ
Finance . Singapore
Commodities . Singapore
ǆƉĂŶĚŝŶŐƉƌĂĐƟĐĞĐƵƌƌĞŶƚůǇǁŝƐŚĞƐƚŽƌĞĐƌƵŝƚĂƚůĞĂƐƚŽŶĞĂĚĚŝƟŽŶĂůĮŶĂŶĐĞůĂǁǇĞƌ
ƚŽǁŽƌŬŽŶĂƐƐĞƚ͕ƉƌŽũĞĐƚĂŶĚƌĞĂůĞƐƚĂƚĞĮŶĂŶĐĞƚƌĂŶƐĂĐƟŽŶƐ͘ŽƌƉŽƌĂƚĞƌĞĂůĞƐƚĂƚĞ
ůĂǁǇĞƌƐĂƌĞĂůƐŽŽĨŝŶƚĞƌĞƐƚĂƐĨƵůůƌĞͲƚƌĂŝŶŝŶŐǁŝůůďĞƉƌŽǀŝĚĞĚ͘
ZĞĨ͗ϮϬϬϴϴϭ
ϭͲϰнǇĞĂƌƐ
ƚŽƉƌĂŶŬĞĚŝŶƚĞƌŶĂƟŽŶĂůůĂǁĮƌŵǁŝƚŚĂƐƚƌŽŶŐƉƌĞƐĞŶĐĞŝŶƐŝĂŝƐŬĞĞŶƚŽŚŝƌĞĂ
ĐŽŵŵŽĚŝƟĞƐ ƉĂƌƚŶĞƌ ǁŚŽ ĐĂŶ ĂĚǀŝƐĞ ŽŶ ďŽƚŚ ĐŽŶƚĞŶƟŽƵƐ ĂŶĚ ŶŽŶͲĐŽŶƚĞŶƟŽƵƐ
ŵĂƩĞƌƐ͘^ƵƉĞƌďƉůĂƞŽƌŵĂŶĚĞǆŝƐƟŶŐŶĞƚǁŽƌŬŽĨĐůŝĞŶƚƐƚŽĂƐƐŝƐƚŐƌŽǁƚŚ͘
ZĞĨ͗ϭϴϵϴϱϭ
WĂƌƚŶĞƌ
Funds . Singapore
Banking . Singapore
WƌŽŐƌĞƐƐŝǀĞĨƵůůƐĞƌǀŝĐĞĮƌŵĐƵƌƌĞŶƚůǇƌĞƋƵŝƌĞƐĂŵŝĚͲůĞǀĞůĨƵŶĚƐůĂǁǇĞƌƚŽƵŶĚĞƌƚĂŬĞ
ƉƌŝŵĂƌŝůǇĨƵŶĚƐǁŽƌŬĂŶĚƐŽŵĞŐĞŶĞƌĂůĐŽƌƉŽƌĂƚĞĂŶĚƌĞŐƵůĂƚŽƌǇǁŽƌŬ͘zŽƵǁŝůůǁŽƌŬ
ǁŝƚŚƚǁŽŵĂƌŬĞƚůĞĂĚŝŶŐƉĂƌƚŶĞƌƐĂŶĚǁŝůůĞŶũŽǇĂĚŝǀĞƌƐĞǁŽƌŬůŽĂĚ͘
ZĞĨ͗ϮϬϭϮϴϭ
ϯͲϱнǇĞĂƌƐ
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&Žƌ/ŶͲ,ŽƵƐĞƌŽůĞƐŝŶ^ŝŶŐĂƉŽƌĞĂŶĚ^ŽƵƚŚĂƐƚƐŝĂĐŽŶƚĂĐƚ,ĞůĞŶ,ŽǁĂƌĚŽŶ+65 6420 0500 or [email protected]
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LEGAL RECRUITMENT
FIRM OF THE YEAR
SINGAPORE
PART OF THE SR GROUP
Brewer Morris | Carter Murray | Frazer Jones | SR Search | Taylor Root
UK | EUROPE | MIDDLE EAST | Asia | AUSTRALIA | OFFSHORE
taylorroot.com
@TaylorRootLegal
taylor-root
EA Licence Number: 12C6222
Appointments
60
YOUR PROFESSION
OUR PASSION
LEGAL DIRECTOR - INVESTMENT COMPANY
A unique opportunity has arisen with a global investment company
seeking a Legal Director based in Singapore. You will provide legal support
on investment and institutional deals, liaise with external counsel on
specific investment matters, and oversee the work of directors in general
legal and compliance. This is a fantastic opportunity for a senior lawyer
seeking to establish themselves in a global investment company.
You will possess 8 to 20 years’ PQE with experience in transactional
law, ideally specialising in public markets, corporate, funds, investments,
banking or financial services. The ideal candidate would have both
in-house and private practice experience, and currently be in a senior
position. You must have top tier or blue chip experience on a global scale
but also be familiar working on matters in Singapore.
METICULOUS LEGAL COUNSEL (INSURANCE)
An established multinational insurance company is seeking a Legal
Counsel to join its successful organisation in Singapore. Well known for its
strong global footprint in the insurance industry as well as its prominence
in the area of insurance brokerage and risk management.
You will work specifically on warranty and indemnity matters with respect
to private equity and M&A transactions. The scope of the work will cover
a variety of regions including ASEAN and North Asia. You will also be
working with external counsel and advising different business units on
legal matters. Due to the regional nature of this position, monthly travel is
expected.
You must be a practising Lawyer with 8 to 10 years’ relevant experience
and be called to the bar in Singapore. It is essential that you come from
a private equity or M&A background with exposure to warranty and
indemnity insurance. A mix of private practice and in-house experience
is desirable but not essential. This is a fantastic opportunity for an
experienced insurance Lawyer seeking to establish themselves with an
industry leader.
SENIOR CONTRACTS & TRANSACTIONS MANAGER
A leading multinational bank is seeking an experienced Contracts &
Transactions Manager to join its growing team in Singapore. This corporate
giant is known for its excellent career development opportunities and
training, as well as its collaborative and diverse work culture.
You will draft, review and negotiate key documents with respect to debt
capital markets transactions. This role will provide you with regional
exposure to South East Asia, South Asia and North Asia. You are expected
to provide advice on risk mitigation and minimisation, together with
managing, implementing and adhering to risk management policies. This
role will also involve extensive liaison with the internal legal team and
external counsel on legal matters.
To be successful, you must have 5 to 7 years’ legal documentation
experience as well as experience with corporate trust matters and debt
capital markets. Regional experience is also desirable. This is an excellent
opportunity for an experienced Transactions Manager wishing to step into
a senior role.
Contact Armin Hosseinipour (Reg ID No. R1440509) at
[email protected] or +65 6303 0725.
hays.com.sg
RESILIENT LEGAL & COMMERCIAL MANAGER
A global technology and solutions provider is seeking a Commercial
Manager to join their deals pursuit team. You’ll be responsible for
reviewing and advising on large scale deals to ensure that the
business’ interests are protected. You’ll work closely with the legal,
sales and delivery teams involved in the deals.
With 5 years’ experience working on large scale legal documentation,
you will be resilient in nature and have the ability to deal with various
stakeholders and personalities. You need not be a qualified Lawyer
but a Bachelor of Law is preferable. You’ll be liaising with Mandarin
speaking clients so colloquial Mandarin would be advantageous.
BUSINESS DRIVEN CORPORATE M&A PARTNER
A leading local firm is looking for a dynamic junior Partner to join
their Corporate team. You’ll be working amongst some of the best
Corporate professionals on the market, who all share the same
dedication and passion for the firm. You’ll have the opportunity to
start building a book in an active, client-facing environment.
You must be Singapore qualified and have 7 years’ PQE in a
Corporate M&A role. Many of the existing Partners have come from
offshore firms so they are open to considering both those with local
and offshore experience. You should have a solid understanding of
the market and need not have an existing book of business. What
is crucial is that you have the drive and passion to build your own
business within their supportive network.
CHINA FOCUSED LEGAL CO-ORDINATOR
A world class F&B company is seeking a Legal Co-ordinator to join
their Singapore team and liaise with external counsels across Asia.
Working in a dynamic environment, you’ll frequently be in touch with
all arms of the business such as supply chain, marketing, finance and
sales. You’ll be the main point of contact for all external counsel as
well as the internal legal manager.
You must have a solid understanding of the regulatory environment
with respect to importing food. The business’ focus on China means
that you must be fluent in spoken and written Mandarin as you will
be reviewing various PRC documentation. Ideally you’ll have had
experience in China to provide guidance on Chinese regulations.
Understanding of PRC law would be advantageous however if you
have had experience in importing and exporting food, you will still be
considered. This is a rare and exciting opportunity for someone who
is passionate about people and food.
Contact Judy Liu (Reg ID No. R1333115) at [email protected]
or +65 6303 0725.

May 2015 - The Law Society of Singapore

Transcription

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