The Singapore Law Review

From the Chief Editor
Law reform has become popular in jurisdictions around the world and in Singapore as well. Such reform should arguably be placed under an analytical microscope since the repercussions are wide and varied. Unlike common law decisions in the courts that may be more readily overturned on a daily basis, statutory provisions once set are often not substantially amended till some time later. Bearing this in mind, in this final issue of the semester, Juris explores the mechanisms by which Singapore revises its laws and also comments on recent amendments to laws that have caught public attention. The laws punishing inadvertent AIDS transmission, the amendments to the Land Titles (Strata) Act and new proposed anti-sexual grooming laws are examples that are further discussed within the folds. On a slightly separate note, we include a legal update on the case of Spandeck v. DSTA, touted to be the local Donoghue v. Stevenson, and a write-up on the recently-concluded Mallal Moots.

We also take cognisance of the Myanmar crisis and hope to prevent the issue from regressing to a faint memory. As such, we have included two articles that provide direction for a possible stance that ASEAN should take. This acts as a fitting prelude to the 21st Singapore Law Review Lecture on “From Constructive Engagement to Collective Revulsion: The 2007 Myanmar Precedent” to be delivered by Professor Lim Chin Leng of the University of Hong Kong. The lecture will be followed by a panel discussion by Professor Lim, Ms. Braema Mathi,a former nominated MP and president of AWARE, Mr. Marc Myo, a Myanmese undergraduate in Singapore and moderated by Associate Professor Simon Tay of the NUS Law Faculty. We invite all who feel passionately about the crisis to join us on 9 November 2007, 6.30pm at the Multipurpose Auditorium, Bukit Timah Campus.

I hope that reading Juris would afford you a brief respite from your daily grind. To our student readers, best of luck for the upcoming examinations!

(Read the Print version of the issue here: Juris Illuminae Vol. 4 Issue 3) (more…)

When the Singapore Court of Appeal passed judgment on Spandeck Engineering v. Defence Science Technology Agency (DSTA), [2007] 1 Sing. L.R. 720 [Spandeck] in August this year, there was little attention given to the low profile case. After all, it was one of the many pure economic loss cases which passed through local courts.

The facts were relatively straight-forward: Spandeck Engineering sued DSTA as the consultants DSTA had employed were negligent and had undervalued the works Spandeck Engineering was to carry out for DSTA, causing Spandeck Engineering to fail to complete the contract due to “insufficient incentive”.

But when judgment was passed on 8th August, it was hailed as one of the most significant developments in the tort of negligence in Singapore, drawing the attention of academics and practising lawyers.

The court held that there was no duty to care for the plaintiff and laid down the universal test for duty of care in all negligence cases, regardless of whether it is psychiatric harm, economic loss, or simply physical harm.

Proximity, a concept first established in Caparo Industries Plc. v. Dickman, [1990] 2 A.C. 605, is the first stage of the test, while the second stage questions if there are policy considerations which would limit or negate the duty established under the first stage. Both stages are to be approached with reference to the facts of decided cases, though the absence of such cases would not prevent courts from finding a duty of care.

The test of reasonable foreseeability established in Anns v. Merton London Borough Council, [1978] A.C. 728 is rendered to a preliminary factual enquiry and will no longer be included as part of the legal test.

Previously, there had been no judgment in England and Australian courts which took the bold step in seeking to set a universal test for all areas of negligence.

The impact of this may be significant. Besides putting to an end to the uncertainties that have plagued the tort of pure economic loss, the holding may also, to a certain extent, set the tone for change in other Commonwealth courts. At the very least, the judgment proposes a single, logical test that seems practical in a world of many variations.

“The decisions have, as with the case in England, applied different tests to different types of damages claimed,” said Chief Justice Chan Sek Keong who sat alongside Judges of Appeal V.K. Rajah and Andrew Phang in the Court of Appeal.

“Why should there be two different tests, and what difference does it make, since the final result the courts wish to achieve is the same, viz., that which is fair and just between the parties without imposing an unacceptable economic cost to the public,” he added.

Ng Sook Zhen is a first year law student and the Deputy Juris Editor.

The B.A. Mallal Moots are an annual tradition in the Faculty of Law, organised by the Mooting and Debating Club. Each year, law students engage in fast and furious verbal battles in the hope of holding the coveted winner’s trophy. The competition is sponsored by Allen & Gledhill LLP. The Best Memorial Competition, which is held concurrently, is sponsored by LexisNexis.

A moot involves an intellectual debate centering on legal issues. Contestants are given a week to write a memorial and present their legal arguments before a court of three judges. For the preliminary rounds, the contestants had to argue on the protection of an individual’s right to confidential information. In the semi-finals and the finals, the contestants had to deal with the issue of whether a child conceived while the father was in a coma is legitimate.

The days leading to the moots were filled with anticipation and excitement. The response from the student population was overwhelming. Research fever hit a high. Fortunately, LexisNexis provided free research workshops to help students fine-tune their research procedure.

The preliminary rounds took place in Allen & Gledhill LLP’s offices at Marina Boulevard. The participants congregated for an “epic” showdown, from which only eight semi-finalists emerged. Only four of the semi-finalists would make it to the finals.

This year, the finals were graced by the Deputy Prime Minister and Minister for Law, Professor S. Jayakumar. Senior Counsel K. Shanmugam and Vice-Dean of the Law Faculty, Associate Professor Victor Ramraj.

The moots were certainly enriching and enjoyable. In the words of winner Francois Beaudry, “the moot was a lot of fun; and at the end of the day this is what matters if I want to practice litigation”.

Winners

1^st place : Francoise Beaudry

1^st runner-up : Harpreet Kaur Dhillon

2^nd Runners-up: Vishal Harnal

Jason Leong Zhi Hao

Best Memorial : Lee Xin Jie

Nik Sim is a second year law student and a member of the Mooting and Debating Club.

The junta named it Myanmar, but I still say Burma. Burma, it was, until 1989, barely a year after a protest much like the recent ones ended in a hail of gunfire. Hundreds of thousands of protesters had taken to the streets on the 8^th of august 1988, students and monks with upturned begging bowls, demanding democratic rule in Burma. General Ne Win, the leader of the Burmese Government, only said, “when the army shoots, it shoots straight.”

Burma as a nation came into being on 4 January 1948, when it became independent from British rule. It has been ruled by a military dictatorship since a coup by General Ne Win in 1962. The current leadership is led by General Than Shwe, a man said to be ruthless, xenophobic and utterly opposed to democracy.

On the 27^th of September 2007, shades of 1988 returned when protesters once again took to the streets, demanding an end to the dictatorship. These latest protests were sparked off by increases in fuel prices, which in turn led to rising prices of basic necessities, like rice and cooking oil. The involvement of the Burmese clergy added moral legitimacy to the protests. The military government reacted in much the same way, with violence.

The world reacted in a predictable fashion, with vague, non-committal expressions of regret. PM Lee Hsien Loong said that, although he condemned the violent response to the protests, regime change is not the best thing for Burma. He said that the ASEAN countries would have to work with the Burmese military, which is the only institution capable of ruling Burma. More recently, Foreign Minister George Yeo said in Parliament, that removing Burma from ASEAN would result in a ‘Balkanisation’ of the region.

Attitudes like these are what keep the Burmese junta in power. It is the apathy and lack of moral courage of neighbouring nations that have sold out the Burmese people and left them alone. Who is to say what is best for Burma, when its own people cry out for democracy? The rule of law in Burma is a dim vision. In elections called in 1990, the National League of Democracy won in the polls despite the fact that its leader, Nobel Prize recipient Aung San Suu Kyi, was under house arrest. The military flatly ignored the people’s choice and took over control.

If there is to be rule of law in Burma, the world, and especially ASEAN, must take a more resolved stance. We can no longer support the oppressive regime by including it in ASEAN, trading with it or providing medical help to its rulers. The ASEAN Charter should include a way to expel members who renege on the common values of ASEAN. More importantly, however, is the moral fibre to do it. No longer should the people of ASEAN be cowed by juvenile ‘bogeyman’ arguments of terrible things that will happen if Burma is removed from ASEAN.

Concepts like individual rights and democracy are by no means universal, and to impose it onto an unwilling nation is colonialism in a different guise. However, basic respect for people and the Burmese people’s right to choose their own form of government is self-evident. The Burmese people have chosen to end dictatorship. They have bled for it, on the streets of their city. The monks of Burma have faced the guns barefoot, a red sea of faith and courage which will not be easily parted.

For them, and for us, I still say Burma.

Akshay Kothari is a second year law student and a writer with the Juris writing cell.

It has been relatively easy to ignore the plight of the poverty-stricken and the politically abused in Myanmar when news of their existence can barely get past the strict media controls sanctioned by the isolationist generals that make up its ruling junta. Moreover, the one incident that could have marked a watershed in its political landscape, the 1988 uprising that led to the deaths of at least 3,000 protestors at the hands of the army, was unfortunately sidelined by a region embroiled in its own trials at the time.

The bloodshed in last month’s monk-led protests, however, was a potent enough message for the Association of South-East Asian Nations (ASEAN) — whose response to such strife in the past was to refrain from publicly castigating Myanmar’s government — to realise that its credibility was at stake. Singapore, due to its chairmanship of the 10-nation grouping, issued a statement on behalf of the group that, in the words of Foreign Minister George Yeo, “expressed their horror and anger”, admitting that they had been hesitant before but that “the honour of the family was at stake and the people of Myanmar would not forgive us if we kept silent.”

The question therefore arises: now that ASEAN has taken a pro-active stance on Myanmar, what role should it play in the days to come and how does the future ratification of an ASEAN Charter fit into their plans?

The ASEAN Charter to be ratified bestows a legal identity on the bloc, enabling it to facilitate international negotiations and, more significantly, giving it the authority to expel a member for breach of its principles. What are these principles? Several provisions in the draft charter are illuminating; for example, one makes it contingent on members to “strengthen democracy, enhance good governance and rule of law and to protect and promote human rights and fundamental freedoms”. Another dictates that “ASEAN people and countries live in peace with the world at large in a just and democratic environment”. A tall order indeed.

ASEAN secretary general Ong Keng Yong would have us believe that Myanmar sees a “certain usefulness in ASEAN” and does not want to be excluded from the regional arrangement and therein lies the potential for political sway over Myanmar’s actions. However, practice seems to run contrary to this assertion and officials in ASEAN point to evidence which suggests that Myanmar’s generals seem to sincerely believe that affairs within their borders are of no concern to those outside of it. Any threat of exclusion will likely fall flat before an impassive junta, emboldened by its rhetoric of sovereignty, and ASEAN must not lose what little political leverage it has to emphasis the importance of mediation.

Furthermore, experience has shown that threats to its economy in the form of sanctions seem to carry very little weight. A number of governments have denied bilateral aid and imposed arms embargoes on Myanmar since 1988 but this, as we have seen, has done nothing but drive the rural population of the country further into gut-wrenching poverty while its ruling junta grows richer.

So what can ASEAN do to compel a country such as Myanmar to move in a direction that respects its charter principles?

Instead of relying upon the threat of expulsion or statements calling for change, ASEAN needs to place diplomatic pressure on India and China, who Myanmar has cleverly pitted against each other and who have in turn engaged in extensive economic arrangements with the buffer nation, thus ameliorating what little effect the above sanctions might have had. The two rival countries must come to a consensus, must encourage Myanmar to co-operate with the UN envoy led by Ibrahim Gambari and cannot shy away from together threatening the economic fruits enjoyed by the generals. The prospect of their coffers drying up will likely make the regime more amenable.

Lastly, the ratification of its charter should allow ASEAN to take a more immediate role in the mediations being conducted by the UN special envoy, giving it both the authority and the credibility to facilitate meetings amongst the UN, India, China and Myanmar. It should openly support Gambari’s position that there should be compromise between the ruling military party and Aung San Suu Kyi, and continually encourage cooperation and not falter till there has been some positive change. Myanmar should be seen by ASEAN as the first test of its new stance on coordinated engagement within member nations, and the world will be watching.

Harpreet Kaur Dhillon is a second year law student and an associate editor of SLR.

Among the recent amendments to the Penal Code is a new offence of “Sexual grooming of minor under 16″. This offence is targeted at sexual predators who prowl Internet chat rooms hoping to procure minors for sexual activity.

A person above 21 years of age commits this offence if he intentionally meets or travels to meet a minor. These acts must be done with the intention of committing a sexual offence with the minor. The accused must also have met or communicated with the minor on at least two prior occasions.

Since no actual harm need occur to the minor for the offence to be made out, one can look at the new offence as an ‘attempt’ provision that aims to shield the minor from the harm of a sexual offence. A provision for attempts in general already exists in the Penal Code, so a comparison may be useful.

Compared to the existing attempts provision, the new offence has a lower actus reus requirement. Merely meeting or travelling to meet a minor, as envisaged by the new offence, will not amount to “embarking on the crime proper”, which is the usual requirement for attempts under the Penal Code.

The upshot is that the requisite mens rea will be harder to prove. Proving that an accused who merely travelled to meet a minor intended to commit a sexual offence will not be easy. A great deal of additional evidence will be needed. This may include Internet chat records of a suggestive nature and the presence of pornography or condoms on the accused when he met or travelled to meet the minor.

A person found guilty of sexual grooming may be fined and jailed for up to 3 years. In some cases, this may be disproportionately severe. Take, for example, an accused who meets a groomed minor with the intention of outraging her modesty, but is arrested before being able to do so. He may be jailed for up to 3 years under the new offence, although the maximum penalty for outrage of modesty is only 2 years.

In practice, however, an accused who actually does outrage the modesty of a groomed minor is likely to be charged with both outrage of modesty and sexual grooming, attracting a penalty of up to 5 years’ imprisonment. The new provision may thereby operate as an ‘aggravating factor’: where a sexual offence is committed with a minor, the fact that the minor has been groomed may increase the maximum penalty by 3 years.

A similar offence in the UK has primarily been used in this way. In most reported cases, the offender is charged with an actual sexual offence and the grooming offence. Should things turn out the same way in Singapore, the new offence may be inconsequential in practice, since courts here already recognise that grooming can be an ‘aggravating factor’. The only real change will be in the maximum possible penalty.

Still, the new provision will be useful where there is enough evidence to show that an accused intends to commit a sexual offence. Being able to prevent the sexual offence from occurring will then be invaluable to the minor. These cases may be rare, but as NMP Siew Kum Hong notes, “online predators will now have to think twice, because even though it is difficult to prove, it’s not impossible.”

But deterrence alone is unlikely to be a satisfactory solution. Parents and educators must also play their part by warning minors of the risks posed to them by the Internet. Public education may also help parents identify early warning signs, so that potential crimes can be prevented before it is too late.

One innovative step that the UK has taken is to provide a telephone helpline for adults who have thought or are thinking about committing sexual offences with minors. The potential offender who calls is then counselled by trained staff who will advise him on how to prevent himself from offending. The helpline also assists parents who suspect that their children are being groomed. The service has been largely successful so far: it averages over 120 calls per month, 45% of those being from potential offenders.

Implementing a similar service and exploring other non-legal measures could likewise go a long way towards protecting minors from sexual abuse here. The new anti-grooming offence may thus be little more than a first step, although it certainly is one in the right direction.

Mohan Gopalan is a second year law student and an associate editor of SLR. Mohan would like to thank Zhong Zewei for his helpful comments on an earlier draft of this article.

The past months have seen Singapore caught up in an en bloc fever. Even as great profits have been made, some found themselves in the predicament of losing their homes.

In response to such cries of foul play, the Minister for Law, Deputy Prime Minister Professor S. Jayakumar, moved to introduce amendments to the procedure for en bloc sales. These changes were introduced with the following objectives in mind:

1. More transparency
2. Additional safeguards for all

As outlined in Reading Speech for the Amendment Bill, there are 6 areas of amendments:

1. Additional consent requirement
2. Regulation of en bloc sale committees
3. Regulation of signing and drafting of Collective Sale Agreements
4. Regulation of mode of sale
5. Empowerment of Strata Titles Board
6. Return of moneys in management fund and sinking fund

For the brevity of this article, only a few areas will be touched upon.

Additional Consent Requirement
There will now be an additional condition of requiring consent from the owner of units forming at least 80% of area if the development is more than 10 years and 90% if the development is less than 10 years.

This requirement seems to truly affect only mixed developments. However, while this amendment has been introduced to mitigate the biasness of consent by share value against residential owners in such developments, the impact would be minimal as commercial owners tend to own a large area of the property. It seems that this is an uncomfortable compromise.

Regulation of En Bloc Sale Committees
The amendments can be summarised as such: there must be election of the committee, the committee must be made up by owners or their nominees and there must be disclosure of interest.

While good, there should be a requirement that minority owners should sit in the committee to ensure their views are being heard. In addition, the duties and liabilities of the committees should be clearly spelt out to ensure that people know what they are getting into when they are in the committees.

Empowerment of Strata Titles Board
The Board is now empowered to disregard any technical or irregularity if it is satisfied that the irregularity will not prejudice any owner’s interest.

Strict adherence would definitely defeat the purpose of having rules and would definitely cost more time and money, as was the case in the Horizon Towers saga. Thus, such an amendment should be much welcomed.

However, there is the question of: what amounts to non-prejudice to the owner. Would any small prejudice be reason enough for the Board to reject the application? What if the problem could easily be remedied by damages and costs of dismissing the application would far outweigh the prejudice suffered?

Emily Choo is a second year law student and the Deputy Chief Editor of SLR.

Many amendments have been made to existing legislation recently, but two of the proposed amendments to the Infectious Diseases Act (Cap. 137, 2003 Rev. Ed. Sing) (IDA) - designed to govern the management of infectious diseases- have garnered most attention.

Use of leftover treatment samples
The first expands section 7 of the existing IDA by empowering the Director of Medical Services to obtain leftover samples drawn in the course of regular medical treatment, to determine the prevalence or incidence of infectious diseases in Singapore. With this amendment, any leftover sample taken from your body by a doctor for tests can be appropriated without your consent or your knowledge, regardless of the purposes of the tests. No one disputes the usefulness of public infectious disease research, but the ideal of ownership of one’s body and determinant power over the external uses of any part of it is offended. Existing legislation allows for opting-out from organ transplants and self-determination of where and what your body is used for after death. Shouldn’t you also determine what your body’s samples are used for?

AIDS law
The second amendment relates to the criminalisation of sexual activity by persons infected with HIV or AIDS. Presently, under section 23, it is an offence for someone who knows he has HIV or AIDS to have sexual intercourse with others without informing them of the risks. The amended section extends this criminal liability to anyone who “does not know” they have HIV or AIDS, but “has reason to believe he has, or has been exposed to the risk of contracting, AIDS or HIV”. This amendment is problematic for various reasons. Fundamentally, it drastically alters the requirement from actual knowledge to having “reason to believe”, which is in itself undefined and thus open to a very broad range of interpretation. This conceivably extends to any individual who has had casual sexual intercourse even once.

Secondly, although arguably in the public interest to prevent abhorrent infection of others with a terminal disease, the idea that one could be guilty for spreading a disease one was unaware of having could be extended to any number of life-threatening illnesses and encompass a vast number of people.

While the idea of punishment for people who intentionally inflict HIV on unsuspecting victims is fairly universally acceptable, there is no way to contract HIV unless one actual consents to sexual intercourse, bar rape. If the offending party does not know of his infection and bears no malice toward the other party, how much does the other party deserve the protection of the law, especially since they consent to the act knowing that the risk exists in any such activity?

We should be mindful of how far we go to protect society at the expense of the individual.

Smith Benjamin Yiwen is a second year law student and an associate editor of SLR.

As we plough through cases with long, dry judgments, we watch how the law has developed over the years through the various situations placed before the court. We tend to get be so focused on examining the past that we overlook the present - what the Attorney-General’s Chambers (AGC) Law Reform and Revision Division (LRRD) is doing on a day-to-day basis.

The LRRD reviews laws and recommends relevant changes in order to ensure that our legal infrastructure is kept up to date with the rest of the world. In an increasingly interconnected world, staying relevant often requires us to constantly cross-reference to laws developed in other jurisdictions.

The LRRD works through research and consultation with ministries and governmental agencies, among others. Steps are also taken to make revised editions of the laws more easily accessible and informative. The fluid nature of law makes the work of the LRRD one of the most important, yet one which we tend to take for granted.

Laws are enacted for the protection of the rights of the citizenry in a fair and just manner, and it is thus an inherent requirement that the law has to be suited to the current needs of the people. However, certain reforms made, like the amendments to section 377 of the Penal Code- decriminalisation of anal and oral sex between heterosexual couples aged 16 years and above in private - might not be so easily accepted because of the issues of civil liberties it is associated with.

The shaping of laws is influenced as much by public sentiment as it is by parliamentary debates. This in turn poses the question of what extent the public voice should be taken into account in such amendments, since it affects not only the legal arena, but also social values and principles that impact the public at-large.

The most recent example of an attempt at law reform that received mixed reviews is the parliamentary petition to repeal Section 377A of the Penal Code. The section provides for a jail sentence of up to two years should a man be found to have committed an act of “gross indecency” with another man.

Two directly opposing camps with equally strong opinions have surfaced and each has signed and submitted a petition letter to the Prime Minister expressing their respective views. So who should decide whether to keep or repeal Section 377A?

Granted, decisions by the people should not have an unduly large impact on decisions regarding the content of laws. Take the 377A debate for instance, lawyers on both sides have brought up strong legal arguments, like those based on constitutional law. This indicates that the issue, though closely entwined with social values, is a legal matter as well. Leaving the decisions entirely up to the discretion of the people might make the law uncertain, as it would then be hinging on the ever-changing and varying attitudes of the people. The relative strength of differing opinions might also result in the greater good of the people not being realised in face of a strong, though unreasonable, majority.

Nevertheless, in issues closely related to social values and interaction, I feel that the participation of the public in the making of the laws would bring the law closer to the people they have been made to serve.

Lynette Lim is a first year law student and an associate editor of SLR.