Singapore Law Gazette (January 2015)

MIC (P) 063/11/2014

Official Publication of The Law Society of Singapore | January 2015

ACTUAL VIEW FROM UNIT

2 Havelock Road, Singapore 059763CBD Strata Offices for Sale

Choice Units: From 312 sq ft onwards (From $7xxK)

FOR FURTHER INFORMATION, PLEASE CONTACT

While every reasonable care has been taken in preparing this marketing collateral, neither this marketing collateral nor any of its contents shall constitute part of an offer or contract, and neither the Developer nor its agents are warranting the accuracy of any information contained therein nor will the Developer or any of its agents be held responsible for any inaccuracies or omissions. All statements and information are believed to be correct but are not to be regarded as or relied upon as statements or representation of facts. All information and specifications are current at the time of going to the press and are subject to such changes as may be required or approved by the Developer. All plans are not to scale unless expressly stated and are subject to any amendments which are required or approved by the relevant authorities. Renderings and illustrations are artists impressions only and photographs are only dcor suggestions and cannot be regarded as representation of facts. All areas and other measurements are approximate only and subject to final survey. The Sale and Purchase agreement embodies all the terms and conditions between the Developer and the purchaser and supersedes and cancels in all respects all or any representations, warranties, promises, inducements or statements of intention, whether written or oral made by the Developer and/or its agents which are not embodied in the Sale and Purchase Agreement.

Opposite State Courts & Attorney General Chambers office

Next to Clarke Quay MRT Station Covered access leading to Chinatown

MRT Station No restrictions on foreign ownership Raised floors, waterpoints & discharge

outlets provided in all units Vibrant precinct with major landmarks

(Hotels, Malls, F&B, Banks)

SAMMI LIM+65 9368 9803 CEA Reg. No.: R003899JE: [email protected]

LOW CHOON SIN+65 9841 0006 CEA Reg. No.: R027985H E: [email protected]

Independent flexible air-conditioning system

Basement carpark with approx 100 lots

Ideal for legal firms and financial institutions

No additional Buyers Stamp Duty No Sellers Stamp DutyAll images stated are Artists Impressions.

Appointed Agent

Continued on page 4

Opening of the Legal Year 2015

innings on the Bench saw him blaze a bright trail in shaping case law, which will inform and guide lawyers for many years to come.

Justice Steven Chong, returned to the Bench after a productive two years as Attorney-General. In his time as AG, Justice Chong deepened and strengthened a spirit of collaboration between his Chambers and the practising Bar, for which we are deeply grateful.

In July, Justice Tan Siong Thye was elevated to Judge of the Supreme Court.

In the last quarter of the year, the Bench also welcomed new, but familiar, faces: Judicial Commissioners Valerie Thean and Hoo Sheau Peng in September, the former also became the Presiding Judge of the Family Courts on 1 November. Later in November, Judicial Commissioners Aedit Abdullah and Debbie Ong added to the strength of the Bench.

At the Ministry of Law, we saw a change of Permanent Secretaries. Dr Beh Swan Gin, after a too-short stint of two years, returned to the EDB on 1 December, entrusting his post to Mr Ng How Yue.

Last, but certainly not least, we saw two retirements from the Bench: First, Justice Andrew Ang, after serving as a Judge for almost 10 years, returned to practice at Lee & Lee. Those of us fortunate enough to have appeared before him will remember his strong sense of right and wrong, and his tremendous work ethic. Second, Judicial Commissioner Lee Kim Shin has also returned to practice at Allen & Gledhill after serving a year with distinction. We welcome them both back to the Bar.

I take this opportunity to congratulate them and wish them all the best in their new appointments.

Changes to the Legal Sector

These appointments are but the tip of a large iceberg of change in the legal sector. I briefl y mention some to illustrate the tectonic shifts that our legal eco-system will experience

This was the speech delivered by the President at the Opening of the Legal Year held on 5 January 2015 at the Supreme Court Auditorium.

Introduction

May it please your Honours, Chief Justice, Judges of Appeal, Judges and Judicial Commissioners of the Supreme Court.

It seems a lifetime ago when both Your Honour Chief Justice, and Mr Attorney, recruited me to work for you at Rajah & Tann. My stay there was brief, but I still remember the lessons beyond the domain knowledge acquired: First, that the law is a noble profession. And second, that legal practice conducted with integrity and purpose, is a career worth having, whose reward is a life well led. You both played a part in getting me involved in Law Society work, calling the then President Mr George Lim, SC, to fi nd me a committee that I could safely muddle in. And after 17 years of muddling, I stand before you today.

Welcome I begin by extending a warm welcome to our overseas guests:

Mr Mark Livesey, QC President, Australian Bar Association

Ms Fiona McLeod, SC ExCo member of Law Council Australia

Mr Stephen Hung President, Law Society of Hong Kong Mr Isomi Suzuki President, LAWASIA Mr Christopher Leong President, Malaysian Bar Council Overview of Changes

The legal landscape saw many changes in the past 12 months, starting with changes to the Bench, the Attorney-Generals Chambers, and the Ministry of Law. Allow me to chronicle them:

Mr Lionel Yee, SC, stepped down as Judicial Commissioner in February, returning to the AGC as the Solicitor General.

In April, Chief District Judge See Kee Oon was appointed Judicial Commissioner and Presiding Judge of the State Courts.

Judge of Appeal VK Rajah, left the Bench after more than a decade of service in June to become the Attorney-General. His

01Presidents

Message

Singapore Law Gazette January 2015

Opening of the Legal Year 2015 01Presidents Message M

Diary and Upcoming Events 07Results of the 2014 Singapore Law Gazette Awards 07From the Desk of the CEO 08Five Questions With Our New Council Members 09Prevention of Money Laundering and Financing of Terrorism Recent Developments 12Legal Leadership Development Programme (L-Leap) 13

NewsN

377A: Law and Morality 21Factoring TIC Offences to Enhance Sentence: The Extent and Limit 26Recent Amendments to the Companies Act: Rethinking Dual-class Shares 30in Singapore Caveat Emptor?

FeaturesF

Pro Bono Publico Keeping it CLASy 35Disciplinary Dos and Donts Neither a Borrower Nor a Breacher be: 37Law Society of Singapore v Yap Bock Heng Christopher [2014] SGHC 188 A Case NotePractice Support The Essence of Forensic Science 43 Law Students' Page AUSLSS Alumni Join Us 49

ColumnsC

Alter Ego Another Year, Another Opportunity 50Bookshelf Singapore International Arbitration: Law And Practice, 52Edited by David Joseph, QC and David Foxton, QC

LifestyleL

Notices Professional Moves 54Information on Wills 55N 56Appointments

A

Contents

Th e Singapore Law Gazette

An Offi cial Publication of Th e Law Society of Singapore

Th e Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

Th e Council of Th e Law Society of SingaporePresident Mr Th io Shen Yi, SCVice Presidents Mr Kelvin Wong Mr Gregory VijayendranTreasurer Ms Kuah Boon Th eng

Mr Lok Vi Ming, SC (Immediate Past President), Mr Lim Seng Siew, Mr Adrian Tan, Mr Steven Lam, Ms Parhar Sunita

Sonya, Ms Lisa Sam, Mr Anand Nalachandran, Mr Chiam Tao Koon, Ms Usha Chandradas, Mr Sunil Sudheesan, Mr Yeo Chuan Tat, Mr Katie Chung, Ms Wendy Lin, Mr Paul Tan, Mr Arvindran s/o Manoosegaran, Ms Simran Kaur Toor, Mr Grismond Tien

Editorial BoardMs Malathi Das, Mr Rajan Chettiar, Ms Celeste Ang, Ms Simran 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

Th e Law Society SecretariatChief Executive Offi cer Ms Tan Su-YinCommunications & Membership Interests Mr Shawn TohCompliance Mr Kenneth GohConduct Ms Ambika Rajendram, Mr K GopalanContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Cliff ord HangInformation Technology Mr Michael HoPro Bono Services Mr Tanguy Lim, Ms Babara Seet, Mr Choy Weng LeongPublications Ms Sharmaine LauRepresentation & Law Reform Ms Delphine Loo Tan,Mr K Gopalan

Publishing ReedElsevier(Singapore)PteLtd tradingasLexisNexisAssociate Director, Publishing, Singapore Terence LimDirector, Sales, Singapore and OSEA Angie OngEditor ChandranieCover Design Mohd Khairil JohariDesigner Mohd Khairil JohariWeb Administrator Jessica WangAdvertising Account Managers Wendy Tan, Perry Tan For Advertising EnquiriesTel: (65) 6349 0116Email: [email protected], [email protected] Markono Print Media Pte Ltd

LexisNexis, a division of Reed Elsevier (Singapore) Pte Ltd, is a leading provider of legal and professional information in Asia, with offi ces in Singapore, Malaysia, Hong Kong, India, England, Scotland, Ireland, Australia, New Zealand, Canada and South Africa. Th e complete range of works published by LexisNexis include law reports, legal indexes, major works, looseleaf services, textbooks, electronice products and other reference works for Asia.

LexisNexis3 Killiney Road, # 08-08, Winsland House 1, Singapore 239519Tel: (65) 6733 1380Fax: (65) 6733 1719http://www.lawgazette.com.sgISSN 1019-942X

Th e Singapore Law Gazette is the offi cial publication of the Law Society of singapore. Copyright in all material published in journal is retained by the Law Society. no part of this journal may be reproduced or transmitted in any form or by any means, including recording and photocopying without the written permission of the copyright holder, application for which should be addressed to the law society. Written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. the journal does not accept liability for any views, opinions, or advice given in the journal. Further, the contents of the journal do not necessarily refl ect the views or opinions of the publisher, the Law Society or members of the Law Society and no liability is accepted or members of the Law Society and no liability is accepted in relation thereto. Advertisements appearing within this publication should not be taken to imply any direct support for, or sympathy with the views and aims of the publisher or the Law Society.

Circulation 5,000

Subscription Fee S$228.00 (inclusive of GST) for 12 issues

Th e Law Societys Mission StatementTo serve our members and the communitty by sustaining a competent and independent Bar which upholds the rule of law and ensures access to justice.


in preparation for tomorrows challenges.

2015 will see the regulation of domestic and foreign legal entities under the new Legal Services Regulatory Authority. Also, for the fi rst time, under the Professional Conduct Council chaired by the Chief Justice, foreign and Singapore lawyers will follow a common set of ethical rules, and the Law Society will play a part in regulating the conduct of foreign lawyers in the same way it regulates domestic lawyers.

Last year saw the formation of the Singapore International Mediation Centre. The Singapore International Commercial Court will be launched today. This potential game changer has caused excitement, amid some concern, in international legal circles. That a judicial development in our small nation state can create this level of international buzz, signals how far Singapore has come as a legal centre.

Inevitably, foreign fi rms who are already here will continue to grow in both numbers and capability. For some, Singapore has already become their most important overseas offi ce. New foreign fi rms will also enter the market. That is the reality, as Singapore aspires to be a global legal hub.

Practising in Singapore is a privilege, and comes with the responsibility to be good corporate citizens. Our challenge is to engage with, not ignore, the foreign fi rms. Their presence is a potential growth story for our legal industry, not a zero sum game. We can see them as competition or embrace the opportunities for collaboration, be it commercially, or in the pro bono sphere. The question we must put to ourselves, is this: Can we be stronger together?

What is Our Raison Detre? Admist this change, and as I contemplate my fi rst year as Law Society President, I fi nd myself asking: What is the Law Society here for? For surely we take our mandate from the answer to this existential question.

Your Honours, I would hazard to say that it distills to an irreducible truth: Law is the foundation of any civilised society. Law affects everyone, every day. But law, by its nature and complexity, is inaccessible to the uninitiated. We lawyers are the intermediaries between society and the law, and as such are crucial to the effective functioning of the rule of law. Chief Justice, in your OLY response in 2013, you called this a sacred trust. This is our higher calling.

As this college of lawyers, we must ensure excellence in our standards, unimpeacheability in our ethics, and a conscience for the community.

Ideologically, an independent bar must continuously think about what the law should be. Do we, as a body, dare speak truth to power, and to exercise thought leadership in articulating our views? That should be our imperative, exercised responsibly and in good faith. We remember that our tools are always evidence and reason, articulated persuasively.

So, at its heart, as the world changes, our fundamental purpose remains constant.

I want to quickly highlight three areas that exemplify our core mission; standards, small fi rms and service to the community.

Standards

Singapore has had an exciting journey. From colonial outpost to global city. We were ranked as the most infl uential city in Asia by Forbes magazine. We aspire to be a world class legal centre and want to be the dispute resolution center of choice in the region and beyond.

We have a world class judiciary. We need world class Singapore lawyers. From the biggest law fi rms to the sole proprietors. The MNC with a cross-border deal must have the confi dence that Singapore fi rms are on par with the international fi rms, with world class standards, expertise and service.

Similarly, a man who suffers serious injury and loses his job because of an accident must be able to fi nd a lawyer who will advise him properly, and get the appropriate compensation so he can continue to support his family. And a wife abused by her husband needs a family lawyer who will guide with wisdom, compassion and a sense of fairness.

The maintenance and the raising of standards is key to our role as a representative body. We must continue to enhance expertise through our CPD programmes. We need to prepare our members for the opportunities that the SICC and SIMC will bring, but at the same time reinforce effective skill sets in lawyers who practice community law. We will renew our efforts to provide training not only in business development and practice management, but also critically, in professional courtesy and ethics, so that lawyers can build and sustain viable and fulfi lling practices.

This year, CPD is mandatory for all lawyers of 15 years PQE and below. We will provide value added and value for money programmes, measuring our success by the number of members we reach. In the fi rst quarter, we will organise two major conferences, the Administrative and

Continued from page 1

04Presidents Message


Constitutional Law Conference in February, and our annual Litigation Conference in March, with the SICC as its theme.

The fl ip side of maintaining standards is the Law Societys disciplinary function.

There is a complaints procedure against lawyers. My Council will look into enhancements to the complaints process to better serve the needs of the lawyer and the complainant. While recognising that the disciplinary function is essential if we wish to remain a self-regulating profession, it is a reality that some clients mis-use the process as leverage to bargain down legal fees. If we look at the data, in recent years, despite the growth in membership, the number of complaints has not seen a discernible rise. On average, half of the complaints received in the last three to four years were dismissed by Review Committees as frivolous. Of the rest, typically more than half are dismissed by the Inquiry Committees. Taking into account multiple complaints against the same lawyer, only about 10 a year on average (out of over 4,400 lawyers with practising certifi cates) get referred to a Disciplinary Tribunal.

There are of course egregious breaches by outliers in any profession which must be dealt with decisively and robustly in order to uphold public trust and confi dence in us, but these are few and far between. For better or worse, they are widely publicised, and there is a sense of public schadenfreude when a lawyer is found to have transgressed.

My point is this the overwhelming majority of our practitioners are competent, honourable and ethical. We must fi nd balance dealing fi rmly with those that let the profession, and themselves, down; but ensuring a fair and level playing fi eld for any lawyer faced with a complaint.

This process has already started. Previously, when a complaint went to the Review Committee, the lawyer would be told, but could not get a copy of the complaint. That was unfair. We worked with MinLaw to change s 85(5) of the LPA and from this year, Council must give a copy to the affected lawyer. This may help lawyers explain themselves before an Inquiry Committee is empaneled, and may result in fewer IC referrals.

We have a continuing conversation with the Attorney-General on how to better structure the process. Gregory Vijayendran, one of our Vice-Presidents, will review the disciplinary regime to analyse trends and patterns, formulate a wider suite of more nuanced remedies, and consider how it can be made more effective, consistent and fair to both the lawyer, as well as the complainant.

Small Firms

Next, I would like to talk about small law fi rms.

It is true that small fi rms face pressure. In this increasingly competitive market, their margins are squeezed. Yet they are indispensable. I believe that the proper function of the rule of law requires strong and thriving small law fi rms. Lawyers in these fi rms practising community law are legal assets which we must treasure and support. We may have a world class legal system and judiciary, but if the man in the street cannot get legal advice, then there is no access to justice, and the rule of law cannot be said to function.

We need to continue to help small fi rms build sustainable practices in a changing legal landscape. Council will initiate programmes to help smaller fi rms identify market and industry trends that will affect their practices. Which sectors face margin compression? Where are the growth industries? How can small practices reduce fee pressure, or develop business effi ciencies to improve margins? We are also working with MinLaw and the IDA to identify how small fi rms can harness affordable technology to enhance their productivity.

It comes down to training and equipping. We will further utilise our education fund to subsidise seminars for small fi rms. Last year, we also worked on an initiative to implement a Court vacation in the State Courts. That took place for one week in November. It was very well received and we will continue to work with the State Courts to extend this. This break will give some smaller fi rms a much needed and deserved breather, making practice more sustainable and pleasant!

Service to the Community

Turning now to pro bono. I was struck by a point made by the speaker at the 3rd LASCO awards dinner in October last year. He said:

It is often said that the practice of law is a calling an honourable profession with high standards of ethics and eminent ideals of service. These ideals are brought to life by lawyers who contribute their time to pro bono services. By doing so, lawyers connect with the disadvantaged in our society who seek justice but have no means to pay for the legal services needed to access it, save with their sincere gratitude.

Chief Justice, we are indebted to you for that observation. It reminds us why our pro bono efforts must remain core to the Law Societys mandate.

05Presidents

Message


We have seen a huge expansion of programmes and services offered, and our members, individually and collectively, have stepped up. The last few years were spent meeting the pent-up need for legal services by people who could never afford a lawyer.

To illustrate, our latest initiatives have been to help those most marginalised migrant workers. In November last year, we launched our fi rst legal clinic for foreign domestic workers.

To their great credit, in addition to fi nancial support, many foreign fi rms have expressed a desire to contribute in a hands-on way to Singapores pro bono scene. We welcome this. We should consider greater collaboration, and in so doing, tap their reservoirs of expertise, experience, and manpower.

This year, we see the expansion of our Criminal Legal Aid Scheme. The support of the large fi rms for the new CLAS Fellowships will allow us to scale up our delivery of criminal legal aid. We also continue to enjoy the generous support of MinLaw. However, we must structure and means test CLAS so that it doesnt cannibalise fee-paying work from criminal lawyers. Our target end users are people that but for our help, will face the criminal justice system, unrepresented, unadvised and alone.

Our pro bono schemes have succeeded beyond our expectations. But, for the pro bono programme to be sustainable, we need two things one, a more structured framework to administer these schemes; and two, a broader base of supporters, including fi nancial contributors, who understand that pro bono legal services are essential for the functioning of a compassionate and civilised society. This is our critical path for the next two years.

Permit me a segue to our imminent Just Walk event, to be held on 10 January. Including the Governments dollar for dollar contribution, we have thanks to the legal communitys generosity, exceeded our target of $2 million. But Just Walk is not only to raise funds for pro bono, it aims to raise awareness and engagement. It is a walk around our civic district, highly symbolic in its own right. There is still time to sign up.

The Law Society also serves by speaking up where we believe the law can, and ought, to be changed. There is visionary leadership at the helm of the Courts, the AGC and MinLaw. We, the profession, have to pull our weight in thought leadership. Some of our more immediate initiatives concern criminal practice. These directly impact the man on the street. For example, we look to launch the pamphlet of rights the idea is to make this available in police stations

and the Courts to inform laypersons of their basic legal rights. We continue to have a dialogue on quicker access to counsel for accused persons, as well as video-taping of police interviews. The latter initiative, if accepted, has the potential to deliver a win-win result protection for an accused, but also, protection for the investigating offi cers, and ultimately, protecting the integrity of the evidence. In this case, both effi ciency and justice are the winners.

Conclusion

Before I conclude, I record my gratitude to our past President, Mr Lok Vi Ming, SC, as well as his predecessor Mr Wong Meng Meng, SC. I served in both your Councils, and thank you for your guidance, patience and friendship. I also thank the outgoing Council members and the Law Societys Secretariat for their contributions.

May I record my appreciation to the Judges, Judicial Offi cers, and members of the AGC, for your efforts in building a spirit of mutual trust and respect between yourselves and the Bar. This has allowed frank, constructive and respectful discussions amongst us. It is something to treasure and build on.

As I strove to capture the mission of the Law Society, I was helped by these thoughts from Robert F. Kennedy:

Few will have the greatness to bend history itself, but each of us can work to change a small portion of events . It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands for an ideal, or acts to improve the life of others or strikes out against injustice, he sends forth a tiny ripple of hope .Those ripples build a current that can sweep down the mightiest of walls of oppression and resistance.

I assure Your Honour of the Bars full support for the Judiciary in all Courts. I reaffi rm our commitment to co-operate with the Attorney-Generals Chambers in the administration of justice. We will seek to act justly and effi ciently in all cases before the Courts.

I also extend to Your Honour, the Chief Justice, all your colleagues on the Bench, as well as the Minister for Law and the Attorney-General, the Bars best wishes for your good health, fulfi lment in all that you purpose and every other success, as we enter Singapores jubilee year.

Thio Shen Yi, Senior Counsel President The Law Society of Singapore

06Presidents Message


Diary8 December 2014Signing of Memorandum of Understanding betweenthe Law Society of Singapore and Shenzhen Lawyers AssociationShenzhen, Peoples Republic of China

23 December 2014Signing of Memorandum of Understanding between the Law Society of Singapore and Korean Bar Association Seoul, Korea

22 December 2014Meeting with Permanent Secretary, Ministry of Law12.30pm-2.00pmThe Law Society of Singapore

Results of the 2014 Singapore Law Gazette Awards

The Law Society congratulates the following winners of the 2014 Singapore Law Gazette Awards:

Best Feature Article

Associate Professor Low Kee Yang

(Singapore Management University) "Deutsche Bank v Chang: A Dramatic Reversal by the Court of Appeal" (February 2014).

Best Feature Article by a Young Lawyer

Choo Zheng Xi (Peter Low LLC) and Fong Wei Li (DLA Piper Singapore Pte Ltd) "When Citizen Journalism Crosses the Line: Does the Harassment Act Have an Online Bite?" (June 2014).

In addition, we commend the following three articles that were on the shortlist:

1. Alvin Chen (RHTLaw Taylor Wessing LLP) "Ethically Evaluating the Economics of Litigation" (May 2014).

2. Associate Professor Saw Cheng Lim (Singapore

Management University) "Redressing the Patent Imbalance in Genetic Testing" (January 2014).

3. Seow Tzi Yang (Allen & Gledhill LLP) and Joshua Lim

(Attorney-General's Chambers) "The Court of Appeal as Transaction Costs Engineer" (December 2013).

We are grateful to LexisNexis for sponsoring part of the prizes.

To fi nd out more about the Awards, visit our websitewww.lawsociety.org.sg

07News


Law Gazette Awards

Dear Member

This is my inaugural message in the SLG, and I hope to use this space to update you on the activities of the Secretariat and how the Society can best serve you during the year. I will also showcase some of the work that our Committees are doing, and draw attention to some of our activities, so as to offer you more opportunities to plug into the Societys activities.

At the Opening of the Legal Year on 5 January 2015, we heard about the myriad of changes which will impact upon the legal profession this year. The Law Society will continue to play an important role in being your voice, in the midst of the changes. We will work hard to continue making a strong stand on behalf of the profession, and supporting the efforts and initiatives of Council and our Committee members.

Continuing Professional Development (CPD)

With the extension of mandatory CPD to lawyers up to 15 years post call, our commitment to you is that training courses will be kept affordable for you to meet your CPD requirements, with subsidies for small fi rm practitioners wherever possible. As your Society, we will enable you to meet your training requirements (whether mandatory or otherwise), and will endeavour to provide relevant courses and conferences of interest to you to meet your professional goals.

Membership Initiatives

The Law Society Secretariat will be working with EDB and some of the other government agencies to see how law fi rms can tap on government grants for IT automation. Although this is not the fi rst time we have done so, having

organised seminars on government grants in the past, we hope that through the proposed pilot scheme this year, law fi rms will come on board to work with the Secretariat and the IT vendors to roll out an actual solution for client and fi le management.

Full computerisation may be a daunting task for many, but Law Society hopes to play a role in aggregating demand for client management and other software, and gathering of honest feedback from law fi rms such that vendors are able to provide a practical and cost effective solution on a sustainable basis, depending on the size of the practice.

Th ank You

I start this year being extremely grateful for the strong support we have received for our pro bono efforts. From the time commitment of our volunteers to the sponsorship by law fi rms and individual lawyers, I continue to be awed by the sacrifi ces made by so many of you. By the time this goes to print, our fi rst major fundraising event for 2015 Just Walk would have been concluded, with around $2 million raised for the Pro Bono Services Offi ce (including the Governments one-for-one matching under the Care and Share grant). We are committed to using these funds wisely, and on pro bono activities which will have the greatest impact on the community.

On behalf of the Directors and staff of the Secretariat, I wish you a successful year ahead!

From the Desk of the CEO

Tan Su-Yin Chief Executive Officer The Law Society of Singapore

Upcoming Events3 & 4 February 2015Legal Practice Management Course 2015

27 February 2015Administrative & Constitutional Law Conference

16 & 17 March 2015Litigation Conference 2015

08News


Upcoming Events

The Law Gazette meets our new Council members who have joined Council for the fi rst time in 2015 Mr Sunil Sudheesan (SS), Ms Katie Chung (KC), Ms Wendy Lin (WL) and Mr Arvindran s/o Manoosegaran (AM).

KC: I am a senior associate in the dispute resolution department of Norton Rose Fulbright (Asia) LLP. My practice focuses on international arbitration. Prior to joining Norton Rose Fulbright, I worked for Mr Michael Hwang SC, who played a part in helping me see the value of being involved in the work of the Law Society.

WL: I am a partner in the Commercial & Corporate Disputes Practice of WongPartnership LLP. I have an active Court and arbitration practice.

AM: Unlike some of my peers, I never saw myself becoming a lawyer when I was young. I actually wanted to be a palaeontologist when I was very young, and when that fell out of fashion, I considered being part of a rock and roll band. Then law school happened and that pretty much got shelved (although I kept the fi re going by indulging in a gig or two here and there). I think I really began enjoying law after I started practice in 2009 at Drew & Napier. Its a really great way to meet new and interesting people, which is something Ive always enjoyed because you can learn so much about so many things. And the best part of being a lawyer, in my view, is to help people who often fi nd the legal process quite intimidating.

2. What would you like to see the Law Society do during your term in Council?

SS: A few things:

Having targeted efforts to improve things for lawyers in small fi rms.

a. Making sure only those who deserve pro bono help from lawyers get pro bono help. To this end, claw-back measures or co-payment models should be explored.

b. Revamp disciplinary processes such that suspensions and disbarments become the sentencing option of last resort. In so doing, I echo Shen Yis desire to expand the available sentencing options. This would be akin to how accused persons in the State Courts can avail themselves to Community Based Sentences.

c. Asking MinLaw to reconsider the need for s 38(1)(c) of the Legal Profession Act. Although doing so may breach s 38(1)(c).

Five Questions With Our New Council Members

1. Tell us a little about yourself

SS: Lets start with the fun stuff. I am a criminal lawyer and a growing foodie. I am a Liverpool fan. This has contributed to me eating more in recent times for obvious reasons. On the advice of my Senior Legal Associate Diana Ngiam, I have recently set up a food blog (sunileats.wordpress.com) and an Instagram account (sunilsudheesan) to properly catalogue my food adventures.

Im married to my wife of three years, Sharon Tan. Sharon is an excellent lawyer and practises in Drews corporate real estate department. She loves her food and wine. Im lucky to have her.

I played rugby and football in school when I was more nimble and read law in NUS (Class of 2004). I have immersed myself in the practice of criminal law ever since and I cannot believe that 28 May 2015 will represent my batchs 10-year anniversary at the Bar.

Sunil Sudheesan with his wife Sharon

09News


Meet Our New Council Members

KC: During my term in Council, I would like to see the Law Society promoting greater cohesion between the lawyers in the local fi rms and foreign fi rms. I would also like to see how the Law Society can work together with the foreign fi rms so that these fi rms can contribute in a practical way to Singapores pro bono scene.

WL: Continuing to take steps to make the law more accessible to the public.

AM: Better engagement with young lawyers so that we can listen to their ideas and address their grievances as well. Ive had informal conversations with my peers about some interesting ideas that the Law Society is exploring and what they have to say really impressed me. Also, Id like to see how we can promote a closer and tighter knit legal fraternity. Its always good fun when lawyers get together for some banter.

3. When Im not busy lawyering, I enjoy _____________

SS: Eating, drinking (or making people drink), poker, mahjong and a good barbeque.

KC: Tennis, working out at the gym, diving, travelling to places which I have not been to, or catching up with friends over a good cup of coffee.

WL: Spending time with my family/friends, making people laugh, singing and eating.

AM: Listening to music or better still, getting together with like-minded people for a good jam!

4. If I didnt become a lawyer, I would be a __________

SS: Social worker or a teacher.

KC: Photographer.

WL: Performer (of some sort)!

AM: Musician (no prizes for guessing). 5. Whats your kryptonite?

SS: Crying relatives of clients and alternatively, good bak chor mee. I have thankfully not experienced the crying relative of a client offering a bowl of BCM yet.

KC: Orange chocolate bitters ice-cream from Udders.

WL: Ice cream and pork fl oss.

AM: A nice glass of single malt whisky.

Katie Chung

Arvindran s/o Manoosegaran Wendy Lin

10News


Meet Our New Council Members

Prevention of Money Laundering and Financing of Terrorism Recent Developments

Last year, a Steering Committee comprising the Permanent Secretary of the Ministry of Home Affairs, Permanent Secretary of the Ministry of Finance and Managing Director of the Monetary Authority of Singapore carried out a National Risk Assessment exercise to understand the money laundering and terrorist fi nancing risks in Singapore. The results of the exercise were published in the Singapore National Money Laundering and Terrorist Financing Risk Assessment Report 2013 (NRA Report). The NRA Report was intended to help private sector stakeholders better understand the money laundering and terrorist fi nancing risks in their own sectors.

With regard to the legal profession, the NRA Report concluded that the money laundering and terrorist fi nancing risks for lawyers are relatively low in Singapore due to the presence of strict controls, low incidences of cash acceptance and majority of transactions being domestically-oriented.

Although money laundering and terrorist fi nancing risks for lawyers are presently low, it is important for lawyers and law practices to remain vigilant of such risks.

In the Financial Action Task Force (FATF) Report on Money Laundering and Terrorist Financing Vulnerabilities of Legal Professionals (June 2013), it was noted that criminals do actively seek the involvement of legal professionals in their money laundering and fi nancing of terrorism activities,

sometimes because a legal professional is required to complete certain transactions, and sometimes because they need access to specialised legal services which could assist the laundering of the proceeds.

Lawyers and law practices should, therefore, ensure that at all times, they are aware of and are in compliance with the requirements on the prevention of money laundering and fi nancing of terrorism.

Currently, the obligations to conduct client due diligence and to maintain records, and the obligations in respect of suspicious transaction reporting are provided for in the Legal Profession (Professional Conduct) Rules and the Law Societys Practice Direction 1 of 2008. These are applicable to Singapore lawyers and law practices. Council of the Law Society conducts on-site inspections of Singapore law practices every year to ascertain whether these obligations are being complied with.

The NRA Report foreshadowed that in light of the revised FATF Recommendations, the obligations for lawyers to conduct client due diligence and to maintain records would be imported from the Legal Profession (Professional Conduct) Rules into the Legal Profession Act.

Recently, the Legal Profession (Amendment) Bill was passed in Parliament. Requirements relating to client due diligence, keeping of records and suspicious transaction reporting are now included in the new Part VA, which is a new dedicated section on the anti-money laundering and countering the fi nancing of terrorism regime for lawyers and law practices. This regulatory framework will be applicable to both Singapore lawyers and foreign lawyers. It will also be applicable to a Singapore law practice, a Qualifying Foreign Law Practice, a licensed foreign law practice, the constituent foreign law practice of a Joint Law Venture, or a foreign law practice which is a member of a Formal Law Alliance, and includes a Joint Law Venture, a Formal Law Alliance and any branch or offi ce outside Singapore of a Singapore law practice.

Low Chai Chong Chairperson Anti-Money Laundering Committee 2014 The Law Society of Singapore

12News


AML Update

Legal Leadership DevelopmentProgramme (L-Leap)Starting, Building and Sustaining a Small Law Firm Practice?

A fatherly pat: Zheng Xi was a toddler when Edmond started his private practice in 1988. (L to R) Assistant Professor Mahdev Mohan, Mr Choo Zheng Xi, Mr Edmond Pereira, Ms Halijah Mohamad, Ms Lisa Sam and Mr Patrick Tan

The third instalment of the L-Leap 2014 seminar series jointly organised by the Singapore Academy of Law and Singapore Management Universitys Centre for Cross-Border Commercial Law in Asia was held on 6 November at the Singapore Management University. Supported by White & Case LLP, the objective of the L-Leap seminar series was to bring together thought leaders and industry luminaries to discuss pressing issues facing our legal profession.

As highlighted by Lisa Sam (Lisa Sam & Company) in her speech at last years Law Society Council elections, law fi rms and in particular, small practices, are constantly challenged to stay vital in the face of steep competition, rising business costs and competing commitments. Despite these diffi culties, the number of small fi rms (defi ned as a practice with less than six lawyers) have increased from 679 in 2010 to 704 as of 31 August 2014.1 The immediate question that springs from these statistics is why, despite the obvious challenges, have practitioners persisted in striking out on their own? More importantly, how does one build and sustain a successful small law practice?

Lisa and three other distinguished panelists; namely, Edmond Pereira (Edmond Pereira Law Corporation), Halijah

Mohamad (Halijah Mohamad & Co) and Patrick Tan (Fortis Law Corporation) came together to share their insights and experiences on starting, building and sustaining a small law fi rm practice. Moderated by Assistant Professor Mahdev Mohan (Singapore Management University) and Choo Zheng Xi (Peter Low LLC), the seminar was interspersed with many light-hearted moments and ended on a high note.

Why did Th ey Take the Plunge? It is worth highlighting that all four members of the panel started their legal careers at major public institutions and top law fi rms. Edmond was a Deputy Public Prosecutor with the Attorney-Generals Chambers and was later transferred to the Bench as a District Judge. Similarly, Halijah also started off in the civil service and was with the Commercial Affairs Department. With a legal background, she was a rare gem at CADs investigations branch. Lisa and Patrick, on the other hand, had been making steady progress up the corporate ladder in Allen & Gledhill and Rodyk & Davidson respectively. With so much going for them, why did they jettison their cushy jobs and posh offi ces to take the plunge?

Continue on page 16

13News


L-Leap Seminar Series

FTI Consulting is one of the worlds thought leaders in economic and nancial consulting. We provide our clients with clear analysis of complex economic and nancial issues for use in legal and regulatory proceedings and strategic decision-making. Our reports are prepared to be easily understood by judges and arbitrators, and our testifying experts have signicant experience in delivering clear and concise opinion evidence in arbitral and judicial hearings.

For more information, please contact: James Searby Managing Director [email protected] Tel: +65 6831 7820

8 Shenton Way, #12-02, AXA Tower Singapore 068811 Tel: +65 6831 7820www.fticonsulting.com

Global leader in commercial arbitration

CRITICAL THINKING AT THE CRITICAL TIME

The forensic examination

of handwriting, documents and

ngerprints

thorough analysis, impartiality, quality assurance

Phone: +61 2 9453 [email protected]

www.forensicdocument.com.au

14Professional Services

orem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the in-dustrys standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only ve centuries, but also the leap into electronic typesetting, remaining essentially un-changed. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.

@TaylorRootLegal

taylor-root

taylorroot.com

&WW^^t+65 6420 0500 or [email protected]&/,^^'+65 6420 0500 or [email protected]

WWY,

In-House Roles

Private Practice Roles

FATCA Counsel . Singapored &dW&dZ

Fixed Income Derivatives . Singapored'&/Z

Tax/Private Client . Singapore' dZ

Regional Counsel . Singaporeh^DEWdZ

Contracts Counsel . SingaporeDE^ Z> Z

IT Counsel . Singaporedh^/dDEWd Z

Attorney . Singapore d Z

Director of Legal Affairs . Singaporet W' Z

Banking . Singapore'z^Z EY

Construction Disputes . Singapore> K' 'Z

Finance . SingaporedDZ

International Arbitration . Singapore ^ Z

Litigation/Arbitration . SingaporeZ^Z

TMT . Singapored^ddDdDEh^d^'Z

Banking . Singapored^'W dZ W

Projects . SingaporedW W Z W

EA Licence Number: 12C6222

PART OF THE SR GROUP

Brewer Morris | Carter Murray | Frazer Jones | SR Search | Taylor RootUK | EUROPE | MIDDLE EAST | Asia | AUSTRALIA | OFFSHORE

Patrick confessed that it was a reckless decision. Back then, he got along well with his bosses and colleagues and enjoyed the commercial litigation and arbitration work. Yet, he felt the need to seek a different challenge and chose to leave his former employer, incidentally at the height of the SARS crisis in 2003. Edmond on the other hand, already knew that he wanted to pursue a career in criminal practice. Hence, when the four walls of Court 30 and 31 began to give him claustrophobia, and he realised he had to wait another two years to go back to the criminal Bench, he took the plunge and set up a partnership with a friend after leaving the judiciary. Unfortunately, the union only lasted 24 months.

While still happily working at CAD, Halijah received an offer to join a medium-sized fi rm. Pleasantly surprised that she had been noticed, she jumped at the opportunity. However, the incident that prompted her to leave the fi rm was when one of the fi rms clients informed her at the eleventh hour that he would not be testifying. Halijah felt that she had no control over the way the matter was conducted and hence, decided that it was time to part ways.

Like Halijah, Lisa also wanted autonomy. The idea of having the fl exibility to choose the types of clients and rendering personal care was what appealed to Lisa. This was clearly impossible as her clientele was mostly institutional clients. It was this strong passion for personal justice that prompted her to make the transition from being part of a 200-strong law fi rm to a one-woman show.

While the reasons for leaving their gainful employment were different, it was clear that entrepreneurship was common in all the four panelists DNA. Armed with an unyielding attitude, they harboured deep-seated ambitions to build their own successful law practices. It was soon clear to them, however, that ambition alone would not put food on the table.

When Working Hard is Not Enough

Much to Edmonds dismay, the stint with legal service did not give him the advantage he needed to start his practice. As for Patrick, the initial months were diffi cult. To be exact, they were very painful. When he fi nally realised that business would not come knocking at his door, he decided to be pro-active and expedite what he was good at socialising. For a year, Patrick entertained daily and met with prospective clients to expand his network.

Over at the other side of town, Lisa was struggling to keep up with offi ce rent and staff salary at her Shenton Way offi ce. This situation lasted for two years. Although she was well able to handle complex matters, there was no demand for services involving sophisticated and high-fee paying jobs. According to Lisa, the only way to survive is to work harder and deliver faster service than everyone else.

Halijah echoed the same sentiment. When she left her previous fi rm, she had about 30 fi les with her. However, her clientele were either individuals or small and medium enterprises that were of limited means. She accepted that big clients do not go to small fi rms and thus need to be prepared to do more community law related cases.

Despite the trials and tribulations, the four panelists persevered. Through sheer hard work, unwavering determination and the delivery of consistently high quality work, they eventually established themselves in the market and referrals started to come in through clients word of mouth. However, as their fi rms grew, they were confronted with new problems. Cost Matters

In order to cope with increased business volume, they began to take in new members in their fi rms. For example, Edmond soon found himself surrounded with 12 lawyers. However, the fi rm became administratively diffi cult to manage. Eventually, he decided to downsize his fi rm but that decision led to an unintended consequence. Some of his ex-colleagues ended up starting their own practices in the same offi ce building and competed with him for the same clientele.

As seen in Edmonds case, cost could easily spiral out of control. From Lisas perspective, staffi ng and offi ce rental are the two largest components of a fi rms operating budget. In her view, containing cost is the key to keeping a practice afl oat. Lisa also advocates the need for small fi rms to plan ahead and make provision for rainy days. Given the importance of keeping cost at bay, it was not surprising that all of the four panelists set up their offi ces outside the main business district. However, such a move has a major downside.

Edmond admitted that it was not always easy to attract new hires with an address like Peninsula Plaza or High Street. He eventually stopped stating his fi rms address when advertising for openings.

Continued from page 13

16News



Embracing Technology

To overcome the shortage of manpower, both Lisa and Patrick said that embracing technology is essential for small fi rms. Patricks excitement was clearly visible when he told the audience that he had no regrets investing in a similar client-management system used by his previous law fi rm. That decision proved to be a brilliant one as his fi rm Patrick Tan & Associates (as it was then called) made headline news within the legal industry when it became the fi rst fi rm to be awarded the coveted PrimeLaw Practice Management Excellence Standard by the Law Society.

Lisa, on the other hand, is a fi rm believer of using freeware such as Dropbox, Logmein and Skype. To most small fi rms, having a dedicated budget for information technology is a luxury that many can ill afford. However, the myriad of freeware in the market, while limited in functionality, is a cost-effective solution for fi rms seeking to maximise effi ciency without the associated expenditure. Lisa showed us that she was able to harness technology to raise productivity effectively through multi-tasking and responding effi ciently to clients, Courts and opponents regardless of her physical location. This fl exibility of having a mobile offi ce through the use of technology is especially advantageous to small fi rms and sole-proprietors as they spend considerable amounts of time away from the offi ce attending Court and marketing their services.

Attracting and Retaining the Right People

Apart from technology, what forms the backbone of Lisas fi rm is her team of dedicated staff. She depends on them to keep the fi rm in good order when she is away from the offi ce. She admitted that she has a preference for older paralegals because they are not only caring but meticulous. According to her, these paralegals bring with them a wealth of experience and more importantly, are less of a fl ight risk. They add stability to Lisas fi rm and enable her to plan long-term.

Expanding on this topic, a member of the audience who practises as a sole-proprietor asked the panel how she could recruit and retain associates. In a self-effacing manner, she even stated that If I am an associate, I will not [want to] join myself, a comment which drew hearty laughter from the audience. Ironically, not only are aspiring lawyers giving small fi rms a miss, even senior practitioners like Halijah advised her niece to pick the AGC over a small fi rm. Halijah reasoned that her niece should go outside for experience. Edmond agreed that it is a diffi cult problem. He woefully pointed out that it will always be a challenge for small fi rms to attract talent. Furthermore, he remarked that candidates

with good work ethics and show respect for fi les are few and far between. He observed that these attributes are not taught in law schools.

In contrast, Patrick was more upbeat. In recent times, he has met a handful of fi rst and second year lawyers that go for fl exi-work and pay arrangements. So small fi rms and prospective candidates may work out fl exi-work and pay arrangements that are mutually benefi cial. In addition, Patrick candidly pointed out that any lawyer who is worth his/her salt will not want to work for someone indefi nitely. Therefore, small fi rms could consider offering equity in their fi rm as a way to retain these promising lawyers. Haljiah supported this observation and said that by the time those lawyers reach 35 or 40 years of age, they will want a share of the pie.

Interestingly, Lisa offered a different perspective. She prefers to hire paralegals over lawyers. Specifi cally, she fi nds ITE students to be more committed and inclined to stay. She also believes in training her staff well and will go the extra mile to impart her knowledge and skills. This strategy has worked well for Lisa and has over time built a team of loyal and competent staff, which in turn facilitated the growth of her fi rm.

While the panelists have achieved varying success with their fi rms human resources, the general consensus among them was that staffi ng issues remain a perennial problem for small fi rms. Faced with such a constraint, how then do small fi rms go up against their bigger counterparts that frequently intimidate their opponents by deploying an army of associates and inundate them with a barrage of discovery processes?

How to "Fight" with Big Firms Eff ectively? Zheng Xi aptly described the scenario as a battle between David and Goliath, to which Edmond responded nonchalantly: Just ignore the battery, they are doing it more for bullying. Whenever he was snowed with a slew of correspondence from his opponent, he would just pick the main letter and reply to it. He said that there is no need to be afraid of big fi rms high-pressure tactics; it is a show. According to him, there is no substitute for real work and it pays to develop expertise in a niche. Indeed, in her typical fi ery way, Halijah shared her experience on how on one occasion she stayed the course and triumphed over a big-fi rm opponent.

While Halijahs success story is inspirational, Lisa conceded that it is not always easy to be on her own. At times, she did feel lonely. However, she said that all these years she

18News



has been fortunate to get friendly advice from fellow lawyers along the corridors of the Courts. Everyone is always ready to render assistance. Similarly, Patrick recalled that his friends were always ready to offer their help and counsel. In fact, Lisa and her fellow panelists were never really alone.

When comes to complex matters, Lisa will always rope in a co-counsel. She would make such an arrangement if her clients budget permitted and they consented. Likewise, Edmond would seek help from another fi rm for big and complex cases. According to Patrick, this form of informal alliance is not new. It is not uncommon for a few sole-proprietors or small fi rms to come together under one roof to pool their resources and share expertise. Zheng Xi highlighted that this is what his fi rm does. Peter Low LLC operates with several other fi rms under the banner of Mozaic Group Law Practice.

Closing Remarks

In closing, Assistant Professor Mahdev Mohan thanked the panelists and audience for a frank and interactive discussion. He noted that big fi rms actually fear their alumni the most because these lawyers know the fi rms modus operandi very well, making them a formidable opponent. This is of course the gospel truth. David did prevail over Goliath after all.

Top 10 Takeaways

For the benefi t of busy fellow lawyers, the author of this article has compiled a top 10 takeaway list from this seminar:

10. When you start to drag your feet to work, it may be time to get on your feet to start your own practice.

9. When your peers are telling you that you are mad, get a head massage at Peoples Park Centre.

8. If you want to get rid of a friend fast, start a law fi rm together.

7. Embrace technology and fi ling pleadings from a badminton court could be a reality!

6. It is nice to have associates but it is better to keep paralegals.

5. TENANTS WANTED. Havelock Square the Mt E Medical Centre equivalent for legal practitioners is now open for prospective tenants. Only small fi rms need apply.

4. If your offi ce address does not contain references such as Shenton Way or the Marina Bay Financial Centre, dont bother to advertise.

3. You may give yourself an English name but do give your fi rm an English sounding name.

2. Do squander your hard-earned money on holidays every three months.

1. Stay in the profession, it pays ... eventually.

Notes

1 Statistics were obtained from the Law Societys website under the General Statistics section.

Siaw Kin Yeow Counsel Goodwins Law Corporation E-mail: [email protected]

Notice of Change of Particulars Members are required to submit a Notice of Change of Particulars through eLitigation (https://www.elitigation.sg/home.aspx) whenever there is any change in the particulars relating to your practice, eg if you move from one law practice to another, if there is a change in your designation, or if you cease to practise. The Notice of Change of Particulars can only be submitted through the eLitigation account of the individual lawyer. If you do not have an eLitigation account, you may approach the Service Bureau for assistance, subject to payment of applicable fees and charges. Please refer to a step-by-step guide on submitting a Notice of Change of Particulars provided by the Supreme Court at https://app.supremecourt.gov.sg > eLitigation > Practising Certifi cate e-Filing Service.

19News



About the Conference

The Litigation Conference 2015 is proudly presented by the Civil Practice Committee of The Law Society of Singapore. The two-day Conference (16 & 17 March 2015) aims to bring together the judiciary, senior practitioners and industry experts across various jurisdictions to provide fresh insight on the latest developments in this area of practice.

The theme for Litigation Conference 2015 is International Commercial Litigation, leveraging on the much anticipated launch of the Singapore International Commercial Court. International speakers will be invited to speak and take part in an exchange of ideas which would benefi t international commercial litigation and, by extension, the SICC.

Some of the topical issues to be discussed at the Conference include the following: SICC in Perspective: Commentary and Q&A Jurisdictional Issues Enforcement (SICC) Choosing a Judicial Approach for the Future - Adversarial, Inquisitorial or a Hybrid? Litigation Funding Managing Mega Litigation The Future of International Commercial Litigation

About the Organisers

The Law Society is a key provider of continuing professional development programmes for legal professionals in Singapore. The Law Society provides practice-oriented programmes which are aimed at helping legal professionals to acquire and maintain professional competence in core areas of practice and to keep up with the latest legal developments and emerging areas of practice.

Sponsorship Opportunities

A variety of sponsorship opportunities are available for this Conference. For further details, please contact [email protected]

Registration is Open!

For more information, please visit our website at:http://www.lawsociety.org.sg/conference/litigation2015/

Public CPD Points:6 Points(Day 1)

6 Points(Day 2)

Practice Area:Civil Procedure

Training Level:General

The recent Court of Appeal judgment on the constitutionality of criminalising gay sex raises broader questions of the relationship between law and morality, and of competing visions of society.

377A: Law and Morality

1. The Court of Appeal has delivered judgment in the case of Lim Meng Suang v Attorney-General [2015] 1 SLR 26, in which it declared that legislation criminalising gay male sex is not unconstitutional. The appellants in that case were three gay men. Their primary argument before the Court of Appeal was that s 377A of the Penal Code1 was unconstitutional because it breached their right to equality under Art 12 of the Constitution. The Court disagreed. Drawing upon the legal principles laid down in its previous decisions, the Court held that it was not wholly arbitrary or irrational for Parliament to criminalise the sexual behaviour of gay men. Neither did the Constitution prohibit discrimination on the grounds of sexual orientation or gender. The Court acknowledged the arguments to decriminalise male gay sex, but said that the decision to do so lay with Parliament, referring to extra-legal arguments that, whilst not necessarily unpersuasive, ought nevertheless to be raised in the appropriate forum, which is the legislature.2

Not many people will have read the full judgment in Lim Meng Suang, yet it has, I think, disappointed many. Some are disappointed at the outcome, and question if they live in a society that allows an individual to freely seek his conception of the good life. Others are disappointed by the reasoning, wishing that the Court had grappled more robustly with the question of what equality substantively means in our society.

2. We need to refl ect on the approach taken by the Court of Appeal in Lim Meng Suang. It may help to set aside for now the legal question of whether s 377A is constitutional, and start with a moral question. Do homosexuals (male and female) in our society have a moral right to have sex in private?3 Many people would say yes, but I think as many, if not more would answer no. The convictions forming these answers are unlikely to be uniform. This is because the moral question posed raises two connected issues: (i) the role or value of sex in our society; and (ii) the moral standing of homosexual practices in Singapore.

Even today, the role or value of sex in our society is not obvious. Some people still hold the view that sex is primarily for procreation. Others take the view that casual sex for pleasure is not immoral. Between these extremes people may believe that sex for pleasure is moral, but only within marriage, sex in a committed relationship is moral because it creates a trusting and loving bond, friends with benefi ts are moral, unprotected sex is not moral because of the risk of sexually transmitted diseases.

How a person views the value or role of sex will infl uence whether he thinks homosexuals have a moral right to have sex. If only sex for procreation is moral, then he must believe that homosexuals have no moral right to have sex (because homosexuals cannot procreate). If you believe that the

21Feature


value of sex lies in the physical manifestation of loving commitment, then it becomes harder to justify denying gays their opportunity to build meaningful relationships.

The moral standing of homosexual practices in Singapore is even more diffi cult. We start with what is obvious. Homosexuals have a moral right to respect and dignity as much as any heterosexual. In fact, being gay does not bar public recognition for contributions to society.4 But beyond that starting point, it seems equally plain that our society cannot agree on much else.

There is a large conservative element of society that opposes the homosexual lifestyle. In July 2014, there was acclaim and outrage in equal measure when the National Library Board banned two childrens books that purportedly promoted same-sex parenthood.5 The Judeo-Christian tradition explicitly rejects homosexual practice.6 Roughly 18.3 per cent of Singaporeans are Christian, 14.7 per cent Muslim.7 The alleged health risks stemming from male homosexual practice are regularly decried. Then there are the reported 26,000 who turned out in June 2014 for Pink Dot SG in open support of the LGBT community.8 A scan of social media suggests strong support among the younger generation of Singaporeans for the LGBT movement. There is no consensus on even the basic issue of whether homosexuality is genetically determined or immutable, although some members of Government seem to think it is.9

The plurality of moral viewpoints described above raises a large and important question. Who should have control over the moral culture in which we must all live, and that shapes our lives in so many ways?10

Ronald Dworkin identifi ed two forces that can shape our moral culture.11 The fi rst is the decisions of individuals who are part of our society. Decisions on what to read and say, what causes to support, which religion to believe in, what to wear, what music to listen to, organically shape over time the moral fabric of a society. The second force that shapes our moral culture is law. The collective decisions taken by our elected lawmakers infl uence how we all behave. Tax incentives shape family planning decisions,12 laws enforce fi lial piety,13 censorship laws shape the development of the arts. Should our shared moral culture be shaped by the individual, free decisions of each person in Singapore, or should it be shaped by the will of the majority, acting through its elected representatives in Parliament?

Dworkin preferred his societys moral culture to be shaped by the free decisions of each individual According to him, society should not dictate to an individual what the good life is or how best to pursue it.14 But Dworkin did not live

in Singapore, which has traditionally embraced a more communitarian model of society,15 where an individuals conception of the good life is shaped in part by the good of the communities with which his identity is bound.16

3. The main constitutional issue at stake in Lim Meng Suang was whether s 377A breached the right to equality under art 12. There were two ways to describe s 377A as unequal. The fi rst was that s 377A discriminated against only homosexual men but not women, and no obvious social objective was achieved by this gender discrimination. That was the basis on which the High Court and Court of Appeal in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 found it was arguable that s 377A breached Art 12.17 This argument did not seem to have been emphasised before the Court of Appeal in Lim Meng Suang, perhaps for good reason. Under this argument, there could be no complaint if Parliament criminalised both male and female homosexual sex.

The second, and what appeared to be the crux of the art 12 argument in Lim Meng Suang, was that s 377A unfairly discriminated against homosexuals. It was unequal for homosexuals to be denied the right to freely have consensual sexual relations with each other. Was it?

Most Singaporeans would rightly regard equality before the law as a foundation of society. There should not be one law for the rich, and one law for the poor. But we would also accept that some people should be treated differently because their circumstances are in some important respect different.18 Only people over the age of 21 may vote, the rate of income tax depends on salary, only families with a household income less than $1,900 qualify for ComCare social assistance, only people who are called to the Bar may practice Singapore law, only male Singaporeans are required to enlist in National Service.19 The diffi cult questions raised by the art 12 right to equality are who decides what circumstances are important and what the role of the Courts is.

The same questions were pondered by Lord Hoffmann in the Privy Council judgment in Matadeen v Pointu and Minister of Education and Science [1999] 1 AC 98. His Lordship referred to the principle that like must be treated alike and said (at 109E):

But the very banality of the principle must suggest a doubt as to whether merely to state it can provide an answer to the kind of problem which arises in this case. Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. But what counts as a valid reason for treating them differently?

22Feature


And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves In this as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied.20

In Singapore, it is the elected representatives of the people who decide at fi rst instance whether there is a valid reason to treat persons differently. So long as laws do not discriminate on the basis of religion, race, descent or place of birth,21 the Courts constitutional role is not to second-guess the elected lawmakers. Their role is to ensure that legislation is not wholly arbitrary, and serves a rational purpose that refl ects no prejudice.22 While the Courts give the legislature a wide margin of appreciation, they do not blindly accept the decisions of Parliament.

The above principles are established by a long line of precedent beginning with Ong Ah Chuan v Public Prosecutor [1979-1980] SLR(R) 53, including Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489, where the Court of Appeal decided that considerations of comity justifi ed Parliaments decision to restrict s 37(1) of the Prevention of Corruption Act (Cap 241) only to citizens, but emphasised:23

The courts, in upholding the rule of law in Singapore, will no doubt readily invalidate laws that derogate from the Constitution which is the supreme law of the land.

In Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103, the appellant raised the argument that the statutory imposition of the mandatory death penalty for traffi cking in 15g or more of diamorphine (the 15g differentia) was unconstitutional, as it arbitrarily differentiated between traffi ckers of 15g and say 14.99g of drugs. The Court of Appeal reviewed the social object of the Misuse of Drugs Act, and decided that the 15g differentia could be rationally justifi ed. The Court also said:24

It would have been wrong to decide the issue based on a blind acceptance of the legislative fi at As such, a fundamental question in every such case is the proper weight that ought to be ascribed to the views of Parliament encapsulated in the impugned legislation.

In Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489, the 15g differentia was again challenged before the Court of Appeal. The Court found that although the 15g differentia might not be the best available, it could be rationalised on the basis that the quantity of traffi cked drugs was broadly proportionate to the scale of harm to society.25 Hence the 15g differentia did not arbitrarily discriminate against offenders who traffi cked in more than 15g of drugs (who would receive the death penalty), and those who did not. The Court agreed that it was not permissible for legislation to differentiate between drug traffi ckers on the basis of wholly arbitrary differentiating factors like the length of the offenders hair:26

The test is one of rational relation precisely to exclude the use of purely arbitrary differentiating factors. To take Mr Ravis example, the length of the drug traffi ckers hair clearly does not bear any rational relation to the social object of the [Misuse of Drugs Act].

23Feature


The best way to read the Court of Appeals judgment in Lim Meng Suang, and one that is consistent with the Courts constitutional traditions, is that it accepts and continues the legal principles laid down before. Although the Court said that its main concern is to be careful not to trespass into extra-legal territory which legitimately belongs only to the legislature (emphasis added), that statement ought to be read in the light of its prior judgments. The Court seemed to take the view that s 377A was rational and not wholly arbitrary as the object of s 377A was to criminalise male gay sex, and that was precisely what s 377A achieved.28 But we need to distinguish between the effect of a legislation and its underlying social object or aim. The underlying aim of s 377A was to protect or refl ect societal morality and safeguard public health, and the criminalisation of male gay sex was one means by which that aim was achieved.29 Distinguishing between the underlying aim and the effect of legislation would be consistent with the Courts previous decisions, and would also explain why the Court in Lim Meng Suang accepted that an arbitrary law that banned women from driving might infringe the art 12(1) right to equality.30

The result in Lim Meng Suang can be justifi ed on the basis that Parliament had in 2007 extensively debated the merits of repealing s 377A and considered that the provision should remain. Parliaments decision had been based in part on its assessment of what societal morality required.31 Given the controversy and lack of a settled consensus, the decision to criminalise male gay sex was not wholly arbitrary, and plausibly fell within Parliaments legitimate margin of appreciation.32

We are now in a position to see how the approach taken in Lim Meng Suang refl ects the moral issues at stake. There is no gap between our constitutional law and moral sense.

4. Under our constitutional law, it is the elected legislature that decides whether there is a valid reason to treat people differently. So long as the legislation is not wholly arbitrary, it is valid under art 12(1).33 Is s 377A wholly irrational? A moments refl ection will tell that the case against s 377A cannot be made on non-judgmental grounds. It is not the role of the Court to mandate its morality on society. Whether gay sex ought to be criminalised in Singapore is a complex and controversial sociological judgment which cannot be imposed by judicial fi at.

The moral perspective matches our constitutional law. We have seen that the important question is who controls the shape of our moral culture. Shall it be the individual decisions of the people, or the collective decision of their elected representatives? In Singapore, I think, our moral culture

is shaped by our elected lawmakers. Our Government has assumed the duty of cultivating good character and good citizens. Children in primary schools are taught Civic and Moral Education and Character and Citizenship Education, Confucian values are promoted, courtesy campaigns run, moral stands are taken on perceived ills like pornography. We are a society that seeks to promote the virtue of its citizens. In such a society, the moral questions raised by s 377A are arguably best left to Parliament to decide, after a considered debate based on the scientifi c and statistical evidence, and the moral and economic needs of the people.

*BA (Oxon), BCL

Notes

1 Section 377A of the Penal Code (Cap 224, 2008 Rev Ed): Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

2 At para 178 of the judgment.

3 Th e criminalisation of gay sex by s 377A cannot per se mean that gays have no moral right to have sex, because while morality should arguably shape the law, it does not follow that the law necessarily refl ects morality.

4 See most recently Ivan Heng who was awarded the Cultural Medallion by the National Arts Council in 2014. Ivan Heng married his gay partner, Tony Trickett, in August 2014.

5 See .

6 Eg see Leviticus 18:22 (NIV): Do not have sexual relations with a man as one does with a woman; that is detestable.

7 Singapore Census of Population 2010.

8 See .

9 See eg Lee Kuan Yew, Hard Truths at p 377; and .

10 To paraphrase a question raised by Ronald Dworkin in Th ree Questions for America (Th e New York Review of Books, September 21, 2006 issue).

11 Ibid.

12 Th e baby bonus scheme.

13 Maintenance of Parents Act (Cap 167B, 1996 Rev Ed).

14 Dworkin, Th ree Questions for America.

15 See the 1991 Government White Paper on Shared Values (Cmd 1 of 1991). X-ref Yvonne C. L. Lee, Dont Ever Take a Fence Down Until You Know the Reason it was Put Up: Singapore Communitarianism and the Case for Conserving 377A (2008) 2 SJLS 347.

Tham Lijing* Tan Rajah & Cheah E-mail: [email protected]

24Feature


16 For one example of what justice means in a communitarian society, see Michael J. Sandel, Justice: Whats Th e Right Th ing to Do (2009), chapters 9 and 10. Th e following excerpt is quoted from Alasdair MacIntyre, After Virtue (1981)(pp 204-205): We all approach our own circumstances as bears of a particular social identity. I am someones son or daughter, someones cousin or uncle; I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits these roles. As such, I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations. Th ese constitute the given of my life, my moral starting point. Th is is in part what gives my own life its moral particularity.

17 See para 125 of the CA judgment.

18 Tom Bingham, Th e Rule of Law (2010), chapter 5; Th io Li-Ann, Treatise on Singapore Constitutional Law, chapter 13.

19 And second-generation male PRs.

20 Th e Court of Appeal in Lim Meng Suang also acknowledged this point: see para 6 of the judgment.

21 Article 12(2).

22 Th is approach is captured by the Courts development of what is called the reasonable classifi cation test.



25 Paragraph 112 of the judgment.

26 Paragraphs 111-113 of the judgment. Th e Courts approach to executive decisions is similar but not necessarily identical. See Chng Suan Tze v Minister for Home Aff airs [1988] 2 SLR(R) 525; Eng Foong Ho v Attorney-General [2009] 2 SLR(R) 542; Ramalingam Ravinthran v Attorney-General [2012] 2 SLR 49; and Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872.



29 See the Attorney-Generals position described at para 21 of the judgment; x-ref paras 126-138 of the judgment.

30 Paragraph 114 of the judgment. If the aim of a law banning women from driving is simply to ban women from driving, then applying the reasonable classifi cation test, there would automatically be a rational relation between diff erentiating against women and the aim of the provision. Th e better approach, and one that is more consistent with precedent, is to identify why Parliament enacted the law, and to see if banning only women from driving bears a reasonable relation towards achieving that aim ie whether the diff erentiation against women in this respect is rational.

31 See speech of Prime Minister Lee Hsien Loong at Reports of Singapore Parliamentary Debates, (vol 83), 23-10-2007, at col 2396 et seq.

32 Although the 2007 Parliamentary Debates was not fully examined by the Court, it did agree that issues of societal morality were best left to Parliament: see para 170 of the judgment. For a critique of the High Courts focus on the colonial intentions behind s 377A, see Yap Po Jen, Section 377A and Equal Protection in Singapore: Back to 1938? (2013) 25 SAcLJ 630.

33 Note that art 12(2) is more specifi c, and bans discrimination on the grounds of religion, race, descent, or place of birth, but not expressly gender and sexual orientation

Invitationfor Contribution of Articles

The Singapore Law Gazette (SLGHUVMJPHSW\ISPJH[PVUVM[OL3H^:VJPL[ `HPTZ[VIL HU LK\JH[PVUHS YLZV\YJL MVY IV[OWYHJ[PZPUN SH^`LYZ HUK PUOV\ZL JV\UZLSH MVY\TMVYKLIH[LHUKH\ZLM\S YLMLYLUJLVMOPNOX\HSP[`JVTTPZZPVULKHY[PJSLZJV]LYPUNHSSSLNHSZWLJPHS[PLZ

4LTILYZVM [OL3H^:VJPL[ `UVUWYHJ[PZPUN SLNHSWYVMLZZPVUHSZHUKWYVMLZZPVUHSZPU YLSH[LK LSKZ HYL^LSJVTL [V Z\ITP[^LSSYLZLHYJOLKTHU\ZJYPW[Z [OH[ HYL VMLK\JH[PVUHSTLYP[HUKSPRLS`[VILVMPU[LYLZ[[VH^PKLYHUNPUNSLNHSH\KPLUJL

:\ITPZZPVUZ HYL ^LSJVTL [OYV\NOV\[ [OL `LHY (SS Z\ITPZZPVUZ ZOV\SK IL\UW\ISPZOLK ^VYRZ IL[^LLU [V ^VYKZ HUK HYL Z\IQLJ[ [V [OL 3H^:VJPL[`ZYL]PL ^

;OL:3.PZ[OLWYLTPLYSLNHSQV\YUHSMVYHSSSH^`LYZHUKV[OLYYLSH[LKWYVMLZZPVUHSZWYHJ[PZPUN PU :PUNHWVYL 6\Y HY[PJSLZ HYL YLHK I` YLHKLYZ PUJS\KPUNWYHJ[P[PVULYZ[OLQ\KPJPHY `[OLSLNHSZLY]PJL[OLHJHKLTPHSPIYHYPLZV]LYZLHZIHYHZZVJPH[PVUZHUKHZPNUPJHU[U\TILYVMPUOV\ZLJV\UZLSPU:PUNHWVYL

We look forward to hearing from you!

Please e-mail all enquiries, suggestions and submissions to

Chandranie at [email protected]

25Feature


Factoring TIC Off ences to Enhance Sentence: Th e Extent and Limit

In criminal cases, while it is clear that offences taken into consideration (TIC) for the purposes of sentencing could enhance benchmark sentences of the proceeded charges (or, alternatively given that the accused also saves the Court time and trouble in determining his complicity in the offences an appropriate discount could be given), what is unclear, however, is the extent and limit of the impact of TIC charges on enhancement of sentences for the proceeded charges. This articles seeks, by reference to recent judgments of the High Court, to spell out the extent and limit of the employment of TIC offences to enhance sentences for proceeded charges.

Introduction

It is trite law that when the Prosecution takes into consideration (TIC) certain offences, in respect of those proceeded with charges, the Court is entitled to consider the TIC offences, not proceeded with, for the purposes of calibration (enhancing, if necessary) of sentence. In PP v Mok Ping Wuen Maurice,1 Yong CJ observed:2

The effect of taking into consideration outstanding offences is to enhance the sentence that would otherwise be awarded. The accused merely admits to these offences and must not be convicted of them. However, in doing so, the accused also saves the court time and trouble in determining his complicity in these offences. Ultimately, it is the courts discretion whether to consider the offence or not (emphasis added).3

The underpinning philosophy of TIC offences vis--vis sentencing was put lucidly by Sir Igor Judge P in the Court of Appeal (Eng) in R v Gary Dean Miles4 when he stated succinctly:5

As in so many aspects of sentencing, of course, the way in which the court deals with offences to be taken into consideration depends on context. In some cases the offences taken into consideration will end up by adding nothing or nothing very much to the sentence which the court would otherwise impose. On the other hand, offences taken into consideration may aggravate the sentence and lead to a substantial increase in it. For example, the offences may show a pattern of criminal activity which suggests careful planning or deliberate rather than casual involvement in a crime. They may show an offence or offences committed on bail, after an earlier arrest. They may show a return to crime immediately after the offender has been before the court and given a chance that, by committing the crime, he has immediately rejected. There are many situations where similar issues may arise. One advantage to the defendant, of course, is that if once an offence is taken into consideration, there is no likely risk of any further prosecution for it. If, on the other hand, it is not, that risk remains. In short, offences taken into consideration are indeed taken into consideration. They are not ignored or expunged or disregarded.

Finally, Professor Andrew Ashworth took the view that TIC offences do not rank as convictions, but that the Court is likely to increase the sentence for the offences proceeded with in order to take account of them.6

26Feature


Th e Extent and Limit of TIC Off ences on Sentencing

So much (and the reasons why they are so), as above, is rudimentary, manifest and without controversy. However, what has been surprisingly left undealt with is the question of the extent and limit to which TIC offences should impinge of the resultant sentence.7

Lim Hsien Hwei v PP 8

That question arose recently in the High Court in the interesting drinking-driving case of Lim Hsien Hwei. In a nutshell, the accused in Lim Hsien Hwei was charged with drink driving under s 67(1)(b) of the Road Traffi c Act (Cap 276, 2004 Rev Ed) (the Act). The accuseds blood alcohol level was found to be 1.875 times the prescribed limit. Admittedly, the case went before the learned District Judge (DJ)9 before the instructive ruling of the Chief Justice in Edwin s/o Suse Nathen v PP (Edwin Nathen),10 in which Menon CJ laid down certain sentencing guidelines for fi rst-time drink-driving offenders.11 The DJ sentenced the accused to a fi ne of $3,000 and a period of disqualifi cation (DQ Period) of three years.

In retrospect and with the benefi t of the guidelines in Edwin Nathen Choa JA in Lim Hsien Hwei concluded that the apropos fi ne should be around $2,700 and the DQ Period should be 22-24 months12 as a neutral starting point, given that Menon CJ in Edwin Nathen declared that sentencing for fi rst-time offenders under s 67(1)(b) of the Act should typically begin from neutral starting points based on the relative seriousness of the offence considering only the level of alcohol in the offenders blood or breath and not yet having regard to any aggravating or mitigating circumstances.13

As to the impact on sentence of any aggravating or mitigating circumstances, Menon CJ observed in Edwin Nathen:14

there are a number of recognisable factors that may aggravate or mitigate the gravity of an offence under s 67(1)(b). First, such an offence may be aggravated by reason of the actual or potential danger posed by the offenders conduct in committing the offence. This

Documents

Singapore Law Gazette (January 2015)