No. 2024, January 2024

Index

• ADVOCACY IN COURT: MUSINGS AND OBSERVATIONS It is understood that advocacy skills are essential for litigation lawyers and that experience is crucial to improving said skills; however, it is acknowledged that opportunities for practice may not be readily available. In this article, the author shares his observations from the Bench on practices adopted by members of the Bar. It is hoped that these pointers – spanning trial and applications advocacy – will provide guidance to readers, especially younger members of the Bar.
• ARTIFICIAL INTELLIGENCE AS INVENTOR? The UK Supreme Court's ruling in Thaler v Comptroller-General of Patents, Designs and Trade Marks [2024] Bus LR 47 clarifies that only natural persons can be inventors under the UK Patents Act 1977, dismissing the notion of AI as an inventor. This decision, aligned with international precedents, addresses the growing debate over AI's role in innovation. This article's position is that humans are the inventors of AI-generated inventions with AI essentially being a tool. Granting inventorship to AI would be inconsistent with the fundamental purpose of the patent law system which is to incentivise humans to make inventions and reward them for their ingenuity and labour. AI is incapable of responding to such behavioural incentives the way that humans do.
• AUTONOMOUS VEHICLES AND INSURANCE LAW PRINCIPLES Navigating New Frontiers in Singapore Self-driving technology will disruptively transform the motor insurance sector, which has for too long been rooted in conventional insurance practices that must now be urgently reconsidered with the advent of autonomous vehicles (“AVs”). This article analyses how traditional insurance law doctrines are likely to interface with the introduction of AV technology. It makes the case that while certain doctrines will wane in importance, others are likely to take on heightened significance. This article then considers the implications of this analysis for the Singapore landscape. The liability regime that Singapore will adopt for AVs is highly likely to be based on the existing motor insurance framework already in place for conventional vehicle collision victims. Given that this existing framework is based on traditional insurance doctrines, it follows that policymakers, legislators and various stakeholders in the insurance ind
• Book Review AN EMPIRE OF LAWS: LEGAL PLURALISM IN BRITISH COLONIAL POLICY1 by Christian R Burset
• Book Review DOWN MEMORY LANE: PETER ELLINGER'S MEMOIRS1 by Peter Ellinger
• Case Note EMOJIS AND CONTRACT FORMATION South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116 This case note analyses the decision in the Canadian case of South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116 and considers how Singapore law would be applied to a situation where emojis are used in the course of negotiations leading up to the formation of a contract.
• Case Note EVERYTHING EVERYWHERE ALL AT ONCE? The “Prevention Principle” and the Implied Duty to Co-Operate in Singapore Ng Koon Yee Mickey v Mah Sau Cheong [2022] 2 SLR 1296 “No person should be permitted to take advantage of his own wrong.” This is a legal maxim that traverses a wide variety of legal contexts, including the law of contract in Singapore. In particular, this maxim informs the basis for the common law's development of rules such as the “prevention principle” and the implied duty to co-operate in Singapore. In this case note, the author analyses the Appellate Division of the High Court's decision in Ng Koon Yee Mickey v Mah Sau Cheong [2022] 2 SLR 1296, which raises some pertinent questions on the scope and application of the “prevention principle”, and the standard for implying terms in law in Singapore.
• Case Note FORFEITURE OF SUMS PAID AND THE PENALTY RULE IN SALE TRANSACTIONS OF REAL PROPERTY: UNEASY BEDFELLOWS? TG Master Pte Ltd v Tung Kee Development (Singapore) Pte Ltd [2024] SGHC(A) 13 The forfeiture of the option fee in the context of an aborted sale and purchase of real property is generally uncontroversial in typical transactions where the “standard” option fee is 1% of the purchase price. However, in non-typical transactions such as “bulk purchases” or where the option period is significantly longer than the standard 14 days which may involve a larger option fee,1 the forfeiture of the option fee is less uncontroversial. This case note discusses the approach and reasoning of the Appellate Division of the High Court, and the ruling by the General Division of the High Court that the forfeiture of sums paid over to the vendor in this case was penal.
• Case Note LETTERS OF CREDIT: IS RECKLESSNESS FRAUD? Winson Oil Trading Pte Ltd v Oversea-Chinese Banking Corp Ltd [2023] SGHC 220 In Winson Oil Trading Pte Ltd v Oversea-Chinese Banking Corp Ltd [2023] SGHC 220, the General Division of the High Court held that the “Fraud Exception” for refusing payment under a letter of credit is satisfied where a beneficiary makes a false representation recklessly, in the sense of being indifferent as to the truth of the representation. This case note suggests that the court's conclusion was sound as a matter of principle and explains the practical guidance that parties can derive from the decision.
• Case Note STATUTORY INTERPRETATION AND THE LIMITATION ACT Potter v Canada Square Operations Ltd [2023] 3 WLR 963 This note analyses the recent decision of the UK Supreme Court in Potter v Canada Square Operations Ltd [2023] 3 WLR 963 and argues that, in the context of statutory limitation periods, a literal approach to statutory interpretation may help clarify and simplify the law on limitations. This, however, means that amendments will have to be made to the Singapore Limitation Act 1959 and in this vein, this note suggests how this may be done.
• Case Note THE EMPLOYER REPRESENTATIVE'S DUTY OF INDEPENDENCE UNDER THE REDAS CONTRACT CEQ v CER [2020] SGHC 70 Builders Hub Pte Ltd v JP Nelson Equipment Pte Ltd [2023] SGHC 120 Construction contracts are unique in having a contractor administrator, whose role has been described as an “officer of the contract”.1 The conventional wisdom in common law jurisdictions is that where the contract administrator is called upon to decide an issue which affects the interests of both the employer and the contractor, he is required to exercise independent judgment. This case note considers two recent Singapore High Court cases which have held that a contract administrator under the most popular design-and-build standard form of contract in Singapore does not owe such a duty of independence.
• DRAFTING AFFIDAVITS OF EVIDENCE-IN-CHIEF This article examines the drafting of affidavits of evidence-in-chief (“AEICs”) in civil trials, from the perspective of the Bench. It will cover procedural rules set out in the Rules of Court 2021 and examine relevant case law. Important topics such as the role of lawyers, principles of evidence and types of affidavits will be covered. This article will provide practical guidance on drafting AEICs and is a useful reference for parties to civil litigation.
• ETHICS IN CRIMINAL DEFENCE PRACTICE In the Singapore Academy of Law (“SAL”) Annual Lecture 20181, The Honourable the Chief Justice Sundaresh Menon reflected on the SAL motto, honor est in honorante, which serves as a reminder that honour lies in honouring: one becomes honourable only through the honour one bestows upon fellow members of the profession, the court and the public.2 Emphasised as the lodestar of the legal profession, the SAL motto with its “chords of honour” form the foundation of legal practice and professional conduct. This article considers ethical issues that may arise in the context of criminal litigation from the perspective of defence counsel.
• EXPROPRIATION OF SHARES VIA THE CORPORATE CONSTITUTION Company constitutions sometimes include powers to effect compulsory share acquisitions from members. Where these are introduced into the constitution after incorporation, the amendment, like all constitutional alterations, must be able to satisfy the common law “bona fide test” in order to be valid. The content of this test has been much debated since the first cases a century ago, and differences in view have emerged from the English and Australian courts. While there is no local case law on such expropriations per se, the High Court recently confirmed for the first time the applicability in Singapore of the common law test for constitutional amendments. This article reviews the development of the test in relation to the introduction of compulsory acquisition powers and analyses the most recent cases in the UK courts, which have largely confirmed the traditional English approach.
• FACTUAL WITNESS EVIDENCE IN MODERN CIVIL LITIGATION Factual witness evidence has traditionally been treated as a lifeblood in the common law courts' endeavour of truth-seeking. The enactment of the domestic Rules of Court 2021 and the Singapore International Commercial Court Rules 2021 introduced significant new features to regulate and manage factual witness evidence in court proceedings. This article addresses select topics that are now central to the presentation of witness evidence in modern civil litigation, namely the issues of content, veracity, timing and control.
• FROM ADVERSARIAL TO COLLABORATIVE TRUTH SEEKING The Past, Present and Future of Criminal Disclosure in Singapore Singapore's criminal disclosure regime has undergone significant changes over the past 15 years. Often, the focus has been on the greater obligations placed on the Prosecution to disclose material to the Defence. These changes have been viewed as “levelling the playing field” and shifting Singapore's criminal justice system from a model primarily based on crime control to one embracing aspects of due process. These analytical approaches view the developments in criminal disclosure as a “zero-sum” tug of war between rules which tend to favour either the Prosecution or the Defence. This article adopts a different lens – by surveying the evolution of criminal disclosure in Singapore, including past developments and the present position as reflected in the Criminal Procedure (Miscellaneous Amendments) Act 2024, it is argued that the shift which has taken place is more fundamental in nature, and is on
• GENERATIVE ARTIFICIAL INTELLIGENCE The Protection of Personal Data and Countering False Narratives About the Person Generative artificial intelligence (“Gen AI”) has rapidly become ubiquitous on online platform services, from chatbots and virtual assistants to search engines and social media. This generated concerns over potentially harmful effects from its use in both social and professional settings, including the added threats to personal data privacy and accuracy of personal information. In this article, the author will explain how Gen AI operates and why it gives rise to these issues, examine the policy and law relating to Gen AI, both existent and anticipated, and suggest possible solutions to the problems in the form of legal and non-legal measures.
• IN WHOSE INTERESTS SHOULD COMPANIES BE RUN? This is one of the most contested questions in modern company law. In the UK it is usually answered by saying that companies must be run for the benefit of shareholders, but the recent decision of the UK Supreme Court — in BTI 2014 LLC v Sequana SA [2022] 3 WLR 709 — provides a new lens on the question. This article explores these issues in the context of a company being financially distressed and thus potentially trading not at the expense of shareholders but creditors. It explains the law and shows that creditors provide a rare example of a case where in the end shareholders' interests may be displaced by those of another group, concluding with a short discussion of some possible implications for duties to other stakeholders.
• INTRODUCTION CHUA Lee Ming Judge of the Supreme Court of Singapore.
• Lecture “GLOBAL LITIGATION AND UPHOLDING JUSTICE: PURSUIT OF A PRINCIPLED APPROACH TO RECOGNITION OF FOREIGN JUDGMENTS IN TRANSNATIONAL LITIGATION”1 Common law rules of the “conflict of laws”, or “private international law” as it is sometimes referred to, were developed and refined before transnational litigation became as common as it now is. International agreements have dealt with some of the issues arising from transnational litigation, but not all of them. Courts of the forum may encounter issues arising from possible or concluded litigation in other jurisdictions not only at the point of considering whether to permit the commencement of litigation in the forum, but also when deciding whether to permit points decided in a foreign jurisdiction to be raised or relied upon in the forum. Transnational estoppel (both cause of action estoppel and issue estoppel) has been well recognised since at least the House of Lords' decision in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853. A foreign
• LITIGATION IN APPELLATE COURTS Some Personal Reflections and Observations This article draws on the author's experience as an appellate judge over the course of almost 17 years. However, it consists of personal reflections and observations only. It is nevertheless hoped that some of the reflections will be of interest to the reader and that a few of the observations might assist the budding litigator in working through as well as honing his or her craft in the context of litigation in appellate courts.
• PRIVILEGE: CONTEMPORARY ISSUES While the rules concerning litigation privilege and marital privilege have long been entrenched in Singapore, their application in modern litigation is rarely straightforward. The courts are often confronted with identifying, balancing and resolving the inherent tensions between the rationale undergirding the respective privileges, and the broad principle that disclosure is generally beneficial to the administration of justice. Moreover, these tensions are not merely academic, because they have a real and significant impact in court proceedings and beyond the courtroom. This article considers several contemporary issues concerning litigation and marital privilege including issues relating to their existence, applicability, scope and exceptions, and proposes some possible approaches to navigate these issues.
• REMEMBERING THE LATE JUSTICE G P SELVAM: A BRILLIANT LEGAL MIND When retired Judge of the Supreme Court of Singapore, Mr Govinda Pannir Selvam, passed away on 23 October 2022, the Singapore legal community mourned the loss of a brilliant legal mind. He was remembered as a “legendary admiralty lawyer” and an “excellent mentor” who “really loved the law” and could “turn his mind to any legal problem”. As a lawyer and judge, he was sharp, straightforward and fair. This article briefly narrates Justice Selvam's distinguished life in the law, reminisces about his generosity of spirit and pays tribute to his remarkable contributions to jurisprudence and the development of Singapore law.
• REOPENING CONCLUDED CASES IN CRIMINAL MATTERS Post-appeal applications in criminal matters have burgeoned in the recent years. Several of these applications have raised serious concerns regarding the abuse of the court's processes. This article examines the current legal landscape governing post-appeal review applications in criminal matters, recent abuses of the court's processes arising from such applications and the changes introduced by the Post-appeal Applications in Capital Cases Act 2022.
• SENTENCING FRAMEWORKS FOR CONSISTENCY A Proposed Framework In criminal law, consistency in sentencing is crucial as it reflects the notion of equal justice. To achieve this, the Supreme Court of Singapore began issuing guideline sentencing frameworks with an increased frequency since 2013. This article will highlight some limitations of these frameworks, before comparing them with similar frameworks in the UK. Based on this comparison, this article will then propose some tweaks to the current guideline sentencing frameworks in Singapore, before explaining the advantages of, and addressing the potential concerns associated with, said proposal. The authors believe that the proposal will increase consistency in the sentencing decisions of the Singapore courts.
• SENTENCING OFFENDERS UNDER THE ROAD TRAFFIC ACT FOR DRIVING DANGEROUSLY OR CARELESSLY WHILE UNDER INFLUENCE Resolving the Double-Counting Quandary A set of elegant and interlinked provisions in the Road Traffic Act 1961 came into force on 1 November 2019. The provisions were intended to better deal with cases in Singapore involving motorists who drive dangerously or carelessly while under influence of drink or drugs. These provisions when applied potentially give rise to an issue of double-counting in punishment. Case law has developed such that in some cases the concern of double-counting is fully ameliorated while in other cases it is not. This article submits that there is a more attractive solution to addressing the issue. This article also generally explains how the set of interlinked provisions works, which may be useful for readers who need to apply these provisions.
• THE APPLICABILITY OF PROPORTIONALITY IN FOREIGN ILLEGALITY DISPUTES The conflict of laws rules on foreign illegality are well established but mired in doctrinal controversy. This article is concerned with the rule in Foster v Driscoll [1929] 1 KB 470 (“Foster v Driscoll”) and the rule in Ralli Brothers v Compañia Naviera Sota y Aznar [1920] 2 KB 287 (“Ralli Brothers”). These rules are conceptually distinct from the domestic illegality framework outlined in Ochroid Trading Ltd v Chua Siok Lui [2018] 1 SLR 363 (“Ochroid Trading”) and Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (“Ting Siew May”). As a matter of Singapore law, this article argues that the proportionality test in Ting Siew May and Ochroid Trading should be applied to determine whether the rule in Foster v Driscoll is engaged to render the contract unenforceable. However, the principle of proportionality has no role to play for cases falling within the rule in Ralli Brothers, which this article argues is properly understood as an application of
• THE PRINCIPLES UNDERLYING THE BREAK EVEN PRESUMPTION IN RELIANCE LOSS AWARDS The Circumstances which Justify the Reversal of the Burden of Proof This article sets out the fundamental legal principles upon which reliance loss awards are made in loss of bargain contexts. It is generally accepted that the basis for awarding a claimant his or her reliance loss is the assumption that were the contract performed, the claimant would have at least fully recovered the costs and expenditure incurred, and the burden to disprove or rebut this shifts to the defendant. This article examines a number of important decisions of the English, Australian and Singapore courts (who have disagreed on the principles that typically arise in these cases) and attempts to clarify and refine these principles underpinning this assumption. It ultimately argues, with reference to the cases and principle, that claimants should be allowed to frame their claims as reliance loss claims but that this should not necessarily mean that a court sh
• THE PUBLIC DEFENDER'S OFFICE Singapore's Publicly-funded Criminal Defence Aid1 The passage of the Public Defenders Bill in 2022 and the setting up of the Public Defender's Office (“PDO”) is a significant milestone in Singapore's legal landscape. It signals a fundamental shift in policy by the Singapore Government and entrenches into law publicly-funded criminal defence aid in Singapore. This article discusses the position of the PDO in the landscape of legal aid in Singapore, the scope of publicly-funded criminal defence aid, the structure of the PDO, the power, independence and accountability of the Chief Public Defender (“CPD”) and the work done by the PDO thus far.
• THE RULES OF COURT 2021: PERSPECTIVES FROM THE BAR More than two years have passed since the Rules of Court 2021 (“ROC 2021”) came into effect. The new ROC 2021 promises modernisation, enhanced speed and efficiency of adjudication, as well as procedural fairness, and has brought about significant changes in the civil litigation process. Through the lenses of efficiency, fairness to litigants, and judicial control, this article aims to provide a practitioner's perspective on select areas of the ROC 2021 through a comparative analysis with its predecessor regime, the Rules of Court (2014 Rev Ed).
• THE RULES OF COURT 2021: PERSPECTIVES FROM THE BENCH (THE APPELLATE DIVISION OF THE HIGH COURT) The Rules of Court 2021 introduced significant changes to the Supreme Court's procedural framework. Since its introduction, procedural missteps have been observed in cases heard by the appellate courts. This article highlights common errors to help interested readers navigate the rules effectively and avoid undesirable outcomes.
• THE RULES OF COURT 2021: PERSPECTIVES FROM THE BENCH (THE GENERAL DIVISION OF THE HIGH COURT) This article analyses how the General Division of the High Court has applied the new Rules of Court 2021 (“ROC 2021”) and observes how the Singapore Bar has adapted to the implementation of the new ROC 2021. It examines key developments in the civil litigation process whilst highlighting principles which are still relevant from the previous Rules of Court (2014 Rev Ed).
• THE TORRENS SYSTEM UNDER THE LAND TITLES ACT
• “THE SWORD OF JUSTICE HAS NO SCABBARD” Perspectives from the Criminal Bar This article came together as a collaboration between four criminal lawyers. Ramesh and I have known each other for over 30 years. To my mind, Ramesh is one of Singapore's foremost criminal trial advocates. He is a person I deeply admire for his dedication and doggedness in fighting for his clients. Tania joined me as a trainee in 2008. In the nearly 15 years that she worked with me, she became an excellent advocate, and I owe much of my own success to her. When Tania first joined my team, there were hardly any female criminal lawyers. I felt, looking at Tania's qualities, she should be treated no differently than the male lawyers in the industry. She proved me right. Sadhana has been a beacon of pro bono advocacy for over ten years. Her commitment and resolve to help those who cannot afford lawyers is admirable. Sadhana, too, has broken through the barriers faced by female lawyers practicing criminal law. I am proud to have Ramesh, T