31 October 2014
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Court bid to quash HDB's seizure of couple's flat

Straits Times
31 Oct 2014
K.C. Vijayan

Businessman denies unauthorised subletting of whole flat

A BUSINESSMAN whose four-room flat was compulsorily acquired for unauthorised subletting is set to face the Housing Board in court today in a bid to quash the decision.

Mr Per Ah Seng, 47, wants the High Court to review whether the HDB acted unfairly, as he claimed it did not disclose sufficient details on its investigations before the seizure to enable him to respond adequately.

The HDB had found that the entire flat was rented out without Mr Per and his wife, the co-owners, first getting written authorisation as required by its rules. But Mr Per insisted they rented out only two rooms, which he registered online with the HDB as required. He denied renting out the entire flat.

He did, however, admit that there were times such as the weekends when the couple and their two children stayed overnight in his mother's Hougang flat. This was because she lived alone and was depressed after her husband died in 2009.

The HDB told The Straits Times that this is the first High Court case involving "a judicial review for compulsory acquisition of a flat that is going for a hearing".

The test case may clarify what is required for an owner to show he is in continuous physical occupation of the flat and did not abandon the unit.

It is understood that the HDB had conducted extensive surveillance and interviewed the flat's tenants in the run-up to its finding that Mr Per's whole flat was rented out without its approval. The flat was seized last year.

Mr Per, who bought the resale unit in Bukit Batok Central in 2007 for $368,000, said he registered details of his sub-tenants online in April 2010. Three months later, the HDB notified him that he had let out the entire flat without consent.

He applied for the judicial review through lawyer Kirpal Singh as a last resort, after appeals to the HDB and the Minister for National Development, including through his Member of Parliament, failed.

The HDB told The Straits Times on Tuesday that five flats were compulsorily acquired in the last three years for unauthorised subletting.

"Flats compulsorily acquired will be returned to HDB and may be offered to flat applicants," its spokesman said. "Where flat owners object to HDB's decision, HDB will consider their objections based on the merits of the case."

The HDB has previously made it clear it takes a serious view of unauthorised subletting, since public flats are primarily meant for owner occupation.

Top law firm Allen & Gledhill is representing the HDB, while the Attorney-General's Chambers is representing the minister.

vijayan@sph.com.sg

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Shorten time bar to divorce: Forum

Straits Times
27 Oct 2014

UNDER the current law, divorce is not permitted in the first three years of marriage unless a court finds that there has been "exceptional depravity or hardship". This is an unnecessarily burdensome requirement.

The time bar is intended to preserve marriages. However, in practice, many people realise early on that their marital differences cannot be resolved.

Rather than seek reconciliation, those set on divorce simply wait the moratorium out while building separate lives. The time bar delays them from moving on - including from remarrying.

We recommend that the time bar be shortened from three years to one, or at most two.

This will reduce the unnecessary barriers to people seeking to move on to more fulfilling family lives.

It will also reduce acrimony in divorce cases by not forcing one spouse to document accusations to prove "exceptional depravity or hardship" in court.

We are also very disturbed by statements in a recent case indicating that even "extreme cases of abuse" do not meet the threshold for the time bar to be lifted, so that victims of domestic violence must remain married to their abusers ("Court denies woman permission to divorce"; Oct 8).

There should be no time bar to divorce in cases of domestic violence. Victims should be allowed to seek a divorce instead of being kept vulnerable to further physical and psychological suffering.

Freedom from violence is a fundamental right. Everyone is entitled to make personal safety their first priority.

Treating a court-imposed "hope of reconciliation" as more important than safety places an ideological view of marriage above the welfare of real people.

This sends the message that the legal system - and therefore society at large - does not take domestic violence seriously, and tells abusers that their actions are an acceptable part of a marriage.

Under the Women's Charter, spouses have a mutual duty to "safeguard the interests of the union".

By committing violence, an abuser destroys the mutual care and respect that should be at the heart of a marital relationship.

The law should not require victims to maintain formal ties or the appearance of togetherness with their abusers.

This reform will help Singapore to better meet its international obligations to protect women from family violence under the United Nations' Convention on the Elimination of All Forms of Discrimination Against Women.

Jolene Tan (Ms)

Programmes and Communications Senior Manager

Aware (Association of Women for Action and Research)

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Law firm targets better sports governance

Straits Times
17 Oct 2014
Terence Ong

LOCAL law firm Rajah & Tann may have signed up as sponsors for next year's SEA Games in Singapore, but it has already set its eyes on the bigger picture - improving the sports administration in Singapore.

Yesterday, it was named the official legal partner of the June 5-16 regional meet during a press conference at the Straits Trading Building.

It will provide the Singapore South-east Asian Games Organising Committee (Singsoc) with legal advice and services for the staging of the Games.

While it declined to reveal the exact amount of the sponsorship, its Tier Three deal will be valued at $250,000 and above.

In addition, it will team up with Sport Singapore to conduct educational clinics for national sports associations (NSAs), to equip them with legal knowledge to avoid any complications when they either stage a competition or send their athletes for overseas sporting events.

Said Lau Kok Keng, Rajah and Tann's head of intellectual property, sports and gaming: "If NSAs are not aware of, for example, doping tests and the framework, they may have a case similar to England footballer Rio Ferdinand's in 2003 and we do not want that to happen."

Then, the defender was asked to take a drug test at his club Manchester United's training ground but left without going through with it, and was slapped with a eight-month ban after being found guilty of misconduct for his no-show.

Singsoc's chief of corporate and community outreach Toh Boon Yi was pleased to have Rajah & Tann on board for the Games.

He said: "This goes back to our criteria when selecting sponsors - creating a legacy for sporting Singapore, and this deal does just that."

terong@sph.com.sg

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Changing from court suit to C-suite

Business Times
31 Oct 2014
Anita Gabriel

Veteran lawyers pitch a business case for soon-to-be-listed Zico Holdings

[Singapore] COME Nov 11, Zico Holdings, a firm that rides on the brand of famed law firm Zaid Ibrahim & Co or Zico that began atop a bicycle shop in Kuala Lumpur in the late 1980s and built a respectful reach across Asean from its regional office in Singapore, will make its debut on Singapore Exchange's (SGX) Catalist.

It would have been an even more compelling story if the law firm was being listed, but the rules don't allow it - not yet at least. Most jurisdictions, including Singapore and except for Australia and the UK, bar non-lawyers from owning law firms, which also effectively rules out the flotation of law firms.

This soon-to-be-listed Zico Holdings, which aims to raise some S$14.4 million by offering 48 million new shares at 30 Singapore cents apiece, has nearly nothing to do with one of Malaysia's largest private law firms that is well-recognised in the region's corporate and legal circuit.

"It's going to be a challenge. I'm not discounting that fact (that many will associate Zico Holdings as a law firm) and so there'll be a transition but Zico is now more than just a law firm," says Zico Holdings managing director Chew Seng Kok, a veteran lawyer with nearly three decades of practice, who has advised on major privatisation deals in Malaysia and cross-border mergers and acquisitions.

Transition also awaits Mr Chew and his two other partners at the law firm - Zico Holdings executive directors Robert Liew and Kelvin Ng - who only just changed hats after bidding adieu to a collective 70 years of law practice, the last few spent providing other professional services, to answer their corporate calling.

"I wish I could do both but by law, I can't," adds Mr Chew who, in mid-October, unwound his 30 per cent equity interest in Zaid Ibrahim & Co to suit up for his new role as boss of Zico Holdings, a firm he will own 38 per cent of after the IPO.

Zaid Ibrahim & Co was founded by its namesake Mohd Zaid Ibrahim, Malaysia's vocal lawyer-turned-politician who has served both sides of the political divide - ruling Barisan Nasional's Umno and the opposition Pakatan Keadilan Rakyat - but didn't stay long with either one. Mr Zaid gave up all his interest in the law firm to Mr Chew back in 2008 when he was appointed as a Cabinet minister.

Now, Zico Holdings, an altogether separate entity, aims to woo investor dollars with a unique pitch - to put their money behind a firm which provides support services to legal firms and corporate, consulting, syariah and trust advisory and licensing services.

A tad dull maybe, compared with the fast-paced, adrenalin-fuelled world of legal corporate wheeling- and-dealing but apparently, it's big business which enjoys glee-inducing margins of between 50 and 60 per cent.

Zico Holdings made revenue of RM19.2 million (S$7.5 million) in the year ended December 2013, clocking in a compounded annual growth rate of 47 per cent over the past three years. It may be set to make a lot more this year with first-half unaudited revenue for 2014 coming in at RM17.6 million, more than double from the previous year's first half.

In 2013, the firm turned in a net profit of RM11.6 million and in the first half of 2014, it earned RM8 million, a near two-fold increase from the previous corresponding period.

Zico Holdings' topline contribution in 2011-2012 came from advisory and transactional services but since 2013, its management and support services business to legal firms under ZicoLaw network - this covers Australia and all Asean countries except for Philippines and Brunei - has been steadily raking up the numbers.

Simply put, law firms outsource their backroom nitty-gritty such as human resource and IT to Zico Holdings under a business agreement for a fee so they can concentrate on what they do best - lawyering. "We are lawyers and we understand what lawyers worry about," says Mr Chew.

It could also mean less capital expenditure for law firms as Zico Holdings, given the economies of scale, is better able to provide these backroom services in a cost-efficient way, he says.

Zico is Malaysia's homegrown brand but Mr Chew is keen to pitch its Asean flavour. "We are not (just) a Malaysian company. Zico is regional, we are an Asean company," he says, adding that the proceeds from the new listing will allow the firm to expand its operations and invest more in information technology.

It is for this reason that the firm has set its heart on floating on SGX, not Bursa Malaysia, to tap its reach as a regional gateway.

For now, some 60 per cent of its revenue comes from Malaysia but by next year, its largesse could be equally split with overseas operations.

"We have packaged Zico into a number of features that would be relevant for businesses going into Asean. We were in Asean before it became sexy. In this day and age, there's a premium to that," he adds.

Do good lawyers make good business people? "We have advised all the big firms in town. It's not alien to us. It's just that we are sitting on the other side now - advising ourselves," says Mr Chew.

"Shareholders are our clients now and we need to service them and make them happy," he says, in befitting lawyer-speak.

anitag@sph.com.sg

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Wedding day split, then cross-border custody battle

Straits Times
26 Oct 2014
K.C. Vijayan

Case involves S'pore woman, Aussie exec and the child they had while together in HK

A Singaporean woman met an Australian executive while working in Hong Kong, and they had a child before deciding to marry.

But on their way to the wedding ceremony on June 21, she was shocked when he sprung a pre-nuptial agreement on her.

They quarrelled, she called off the wedding and, two days later, whisked their 18-month-old daughter back to Singapore without telling him - leading to a cross-border custody battle.

In cases involving toddlers born out of wedlock, custody usually goes to the mother. But this time, the father wants the child to live with him, and has accused the mother of taking the girl from her home in Hong Kong.

This month, the man obtained a court order in Hong Kong giving him rights as the father.

But the mother, who is currently in Singapore with their child, insists that Singapore is the appropriate venue for any custody battle and has filed court papers here for a hearing.

Hong Kong judge Chu Pui Ying, who heard the father's application, ruled that their names must remain private.

The woman (M), a psychologist, moved to Hong Kong in 2008 for work. Two years later, she met the man in a bar in Lan Kwai Fong, and they started to date.

They broke up twice due to her temper, claimed the man, who started working in Hong Kong in 2009 for an insurance group.

But they continued to see each other, she gave birth last May, and they went on to fix a wedding date.

Both sides had invited family and friends for what should have been their happy day, complete with a celebration brunch.

However, the pre-nuptial issue "regrettably" triggered the quarrel which derailed the wedding plans on the very day, noted Judge Chu in her judgement grounds released last Tuesday.

The woman informed the man that she was leaving Hong Kong just before boarding her flight to Singapore with the child. She sent him a text message.

Talks between the pair to take the child back to Hong Kong broke down.

The man then went to court in August.

The Hong Kong judge found that M did not dispute that the man was the father, and also failed to prove "why he should not have all the rights and authority that the law would allow him as father if the child were legitimate".

The woman, who did not attend the hearing, insisted that Singapore was where the case should be heard, since she and the child are Singaporean.

But the judge was not convinced, pointing out that the baby had been living in Singapore for only a few months, had an Australian passport, and was born and entitled to Hong Kong residence.

She also refused the woman's request that the father's access to the child be supervised.

The judge noted that the man had taken garden leave between jobs to look after the girl for six weeks this year, and had also taken her on holiday to Nicaragua when she was only several months old, without M or any helper.

The Hong Kong court also made the child its ward until further notice - which means it will rule on custody and other key matters brought up by either parent relating to the child.

vijayan@sph.com.sg

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GM jailed for conspiring to cheat firm of $4m

Straits Times
17 Oct 2014
Elena Chong

A GENERAL manager, who often gambled at a casino, came up with a ploy to get money from his company by scheming with third parties to submit fake invoices, to deceive it into paying for non-existent services.

Over around 11/2 years, Teo Beng Wah abetted three others in a conspiracy to cheat Newtech Technology (South Asia) of $4 million.

The money was not returned.

Yesterday, the 50-year-old was sentenced to jail of four years and seven months, after pleading guilty to eight of 104 charges. His alleged accomplices - Kwa Tian Hwa, 48, Ng Hai Hock, 51, and Chong Li Fong, 39 - have been charged. Their cases are in pre-trial conference stages.

Newtech, a subsidiary of Hong Kong-based Newtech Technology Holdings, provides mechanical and electrical engineering services, specialising in the design and building of data centre infrastructure.

Deputy Public Prosecutor Kevin Yong said that as the general manager, Teo could, alone, approve all purchases made by Newtech, and sign cheques for payments of up to $50,000.

The fraud came to light when the company found out during a review of its accounts in July 2011 that there were 101 invoices received from "vendors" between February 2010 and June 2011 for services that were not rendered. These invoices were accompanied by 94 false purchase orders requested and approved by Teo.

Investigation by the Commercial Affairs Department showed that Teo was a frequent gambler at the Resorts World Sentosa casino, and often borrowed chips and cash from fellow gamblers.

He devised the scheme to repay his loans and satisfy his gambling addiction. Some of Teo's accomplices would help him by giving him the money they received from Newtech and keeping a portion for themselves.

Teo, whose services were terminated in August 2011, was made a bankrupt in July 2012 for failing to settle Newtech's civil claim against him.

He could have been jailed for up to 10 years and fined on each charge.

elena@sph.com.sg

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New rules to woo listings from developed markets

Business Times
31 Oct 2014
Cai Haoxiang

[Singapore] SINGAPORE Exchange (SGX) has streamlined rules for secondary listings to encourage more companies from developed markets to list here.

The new framework, which follows a public consultation in June, takes effect next Monday.

SGX CEO Magnus Bocker said in a press statement on Thursday that a company that has a secondary listing on SGX will have a higher Asian profile and access to a wider pool of investors.

"We welcome more listings from developed and well-regulated jurisdictions joining our family of listed companies," he said.

Previously, SGX had its own set of additional regulations for all companies which want to have a secondary listing in Singapore apart from a primary listing in their home market.

Now, these rules are not required for primary-listed companies coming from the main boards of 22 "developed" jurisdictions, including the US, the UK, Australia, Canada, Hong Kong and Japan. These companies are viewed as posing less regulatory risk, SGX said.

Companies not from these markets will be classified as coming from a "developing" market. These companies will continue to be subject to the additional rules, which are on issues like interested party transactions, major disposals and acquisitions and delistings.

There are currently 35 secondary listings on SGX. Five are classified as being from "developing" markets, with the remaining from "developed" markets. Most are not actively traded. The most active are Straits Times Index components Jardine Matheson Holdings, Jardine Strategic Holdings, and Hongkong Land Holdings.

OCBC Investment Research said in a previous report that the changes "should help to widen the number of listed companies on the local exchange, and also enhance trading activity". It added there would be little near- to medium-term impact on SGX because the bulk of trading activity for current secondary listings was largely confined to their primary exchanges.

haoxiang@sph.com.sg

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Exorbitant, unreasonable: High Court slashes SMC's claims

Straits Times
26 Oct 2014
Salma Khalik

The Singapore Medical Council (SMC) took surgeon Susan Lim to task in 2010 over inflated bills. Now, the SMC itself has been found to have overcharged the doctor for the legal proceedings that followed.

The Singapore Medical Council (SMC) and surgeon Susan Lim remain entangled in a dispute, almost five years after it acted against her for overcharging a patient from Brunei.

This time, the disagreement is over how much she should pay the council in costs for the long drawn-out case, which she lost.

The SMC first took action in January 2010, accusing her of overcharging by seeking $24.8 million for treating a member of the Brunei royal family over seven months in 2007. Found guilty in 2012, Dr Lim was fined $10,000, suspended from practice for three years and ordered to pay the SMC's legal costs.

Now the SMC has been told by the High Court that it asked for too much from Dr Lim in two bills totalling over $2 million. These covered costs for a first hearing, which ended with the committee disqualifying itself after 11 days; a second hearing over five days; and the three times Dr Lim took SMC to court along the way.

Dr Lim's husband, Mr Deepak Sharma, contested SMC's legal bills. After separate proceedings before a High Court assistant registrar, both bills were slashed.

Last year, the first bill was cut from $1 million to $370,000; last month, the second was reduced from $1.3 million to $317,000.

Assistant Registrar Jacqueline Lee scrutinised the second bill before giving her reasons why the SMC was asking for too much.

The SMC is appealing the latest decision.

salma@sph.com.sg

facebook.com/ST.Salma


CLAIM NO. 1 LEGAL FEES

$900,000

The amount the SMC claimed as payment to law firm WongPartnership on behalf of lawyers Alvin Yeo, Melanie Ho and Lim Wei Lee

CUT TO $180,000

The judgment: A doctor found guilty in an SMC disciplinary hearing can only be charged for the services of one lawyer - unless the proceedings are so complex they call for another lawyer who must be certified by SMC's disciplinary committee.

This certification was not done in this case.

Assistant Registrar Jacqueline Lee decided what was claimed for both Ms Melanie Ho and Ms Lim Wei Lee should not be allowed, andthe $514,000 claimed for Senior Counsel Alvin Yeo's work was too high.

The SMC had originally presented a bill of $1,229,804 for 1,900 hours spent by its lawyers on the case, claiming "out of abundance of caution, the amount stated is a reduced figure of the time spent". The Law Society also has verified that the SMC paid a higher amount to WongPartnership than it is claiming from Dr Lim.

Ms Lee said that SMC's statement meant little since she had no information on how much time had actually been spent, and criticised the council for not detailing what the lawyers had spent their time on.

She also pointed out that "collectively, Mr Yeo, Ms Ho and Ms Lim allegedly spent 718 hours" - much less than the 1,900 hours claimed for.

Ms Lee added that if the 1,900 hours included two replacement lawyers catching up on what had happened before they joined the team, "it would be unreasonable to make the respondent (Dr Lim) bear the costs arising from any such inefficiency in the conduct of the prosecution".


CLAIM NO. 2 FEES FOR LEGAL ASSESSOR

$235,000

The amount claimed to pay law firm Shook Lin & Bok for the services of legal assessor V. Coomaraswamy during the second disciplinary hearing

CUT TO $22,000

The judgment: A legal assessor attends SMC disciplinary hearings only to advise on questions of law, and to alert the committee of any irregularity in the proceedings. He may also help the committee draft its decision.

For the work of the legal assessor in the first hearing, which totalled 65 hours, law firm Wee Swee Teow charged $49,200 for Senior Counsel Giam Chin Toon's time. This was reduced to $45,000. In the second hearing, Shook Lin & Bok charged $235,000 for then Senior Counsel V. Coomaraswamy's 224 hours of work done between August 2010 and July 2012. Ms Lee noted the start date for the bill was before the second disciplinary committee had even been formed.

Questioning the number of hours of work by Mr Coomaraswamy, she said: "Even rounding up all the hours taken for the nine pre-inquiry conferences and the five inquiry hearings, they should add up to no more than 32 hours. This only leaves one to wonder how the second legal assessor spent the balance of approximately 180 hours."

Ms Lee made it clear she believed the lawyer, who is now a Supreme Court judge, had actually spent 224 hours on the case, possibly on internal meetings. But without details, she said, she was unable to decide if any of them could be considered part of required work.

She said it was not fair for Dr Lim to be charged $1,050 per hour for Mr Coomaraswamy's work, when the previous legal assessor had charged $570 per hour - as it was not her fault a second committee had to be set up to hear her case.


CLAIM NO. 3 FEES FOR EXPERT WITNESS

$42,000

The claim for expert witness Dr Hong Ga Sze, a general surgeon at Mount Elizabeth Medical Centre

CUT TO $5,000

The judgment: Dr Hong Ga Sze, a general surgeon at Mount Elizabeth Medical Centre, provided a written opinion and gave testimony for one day, during the first disciplinary committee's hearing.

But his $14,000 bill for a day's expert evidence was very high, particularly since it "did not involve complex, technical or medical expertise", said Ms Lim.

The testimony needed from Dr Hong and another expert witness, consultant medical oncologist Dr Tan Yew Oo, was on what was considered reasonable for a doctor to charge.

Dr Tan, the more senior medical expert, had charged $700 for each hour he was on the stand, and $200 every hour for time spent waiting.

His bill of $12,145 was reduced to $9,000.

"Dr Hong's fees of $6,000 just for 'standing by' - waiting to take the witness stand - are also exorbitant," said Ms Lee.

She also criticised his separate $6,000 bill for preparing the trial report, for which Dr Tan had charged only $1,000.

She took issue as well with another $14,000 charged by Dr Hong, an SMC council member since last year, for his trial preparation which stretched from March 2009 to February 2010.

The period started "even before the notice of inquiry was issued" to Dr Lim, she noted.


CLAIM NO. 4 HIGH COURT APPEAL

$150,000

The Council's claim for the High Court appeal against the decision of the second disciplinary committee decision

CUT TO $70,000

The judgment: The council had billed Dr Lim $150,000 for the work it had to do on the case, including "work done to address the respondent's irrelevant arguments".

But Ms Lee cut this by more than half.

Separately, the SMC also charged $6 for every ring binder used to collate documents.

In previous SMC hearings, binders were charged at either $2.50 or $3.

As a result, the roughly $4,000 the SMC had billed for close to 700 ring binders was also slashed to less than half.

What it should have been

The Straits Times, 31 October 2014

SUNDAY'S report, "Exorbitant, unreasonable: High Court slashes SMC's claims", stated that the Law Society had verified that the Singapore Medical Council paid a higher amount to WongPartnership than it was claiming from Dr Susan Lim. The society has clarified that it did not do so.

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Good day in court for Grandstand's master tenant

Straits Times
16 Oct 2014
K.C. Vijayan

Judge rules that its predecessor had caused damage during the handover

THE High Court yesterday ticked off the previous master tenant of the former Turf City for conspiring to cause damage during the handover to the new master tenant.

Describing the conduct of the previous operator, Singapore Agro Agricultural (SAA), as "reprehensible" and "troubling", Justice Woo Bih Li said its actions affected several sub-tenants and licensees, whose plights drew attention from the media and the Singapore Land Authority (SLA).

"(They) must have known that the systematic conduct they embarked on was causing anxiety, inconvenience and probably loss to their own sub-tenants and licensees, that is, those who were prepared to consider entering into new agreements with the plaintiffs," said Justice Woo in a judgment released yesterday.

SH Cogent Logistics and its subsidiary Cogent Land Capital, which took over Turf City, upgraded and rebranded it as The Grandstand. Cogent sued SAA in 2012, alleging it had conspired to hurt its business of sub-tenanting and licensing the units.

Its lawyers, Senior Counsel Alvin Yeo and Ms Koh Swee Yen, argued that SAA had stopped Cogent from hitting the ground running by removing electrical fittings and other items as part of reinstatement work before handing over.

Cogent also alleged that SAA had blocked existing tenants and licensees from continuing with leases under Cogent. Cogent, which became master tenant of the former Bukit Timah Turf Club site in 2012, won the SLA tender for a three-year lease with a monthly rent of nearly $1.07 million. SAA, master tenant of the 178,000 sq m area since 2001, had offered $718,888.

The Grandstand is now a popular hub with eateries, pre-schools and shops like Giant supermarket. It also houses PasarBella, the first permanent multi-vendor gourmet farmers' market here.

SAA's lawyers, Senior Counsel Andre Yeap and Mr Adrian Wong, countered, among other things, that it had removed temporary structures in line with its obligations as a master tenant and to ensure no safety issues remained once it vacated its lease.

In a reserved judgment made after a two-week hearing earlier this year, Justice Woo made it clear that he was not convinced.

He cited "unsatisfactory" evidence given by SAA witnesses to justify the reinstatement works.

SAA had argued that it carried out the works as it was a condition imposed by the Urban Redevelopment Authority for the use of the land. This required structures erected to be demolished when written permission from the URA expired.

The judge said SAA's reliance on the 2010 written permission and related documents produced in court to justify the works was "a convenient and belated excuse to mask their predominant purpose to cause damage to (Cogent)". Among other things, Justice Woo pointed to how two letters from architectural advisers to support the claim the reinstatement works were needed were "fabricated and backdated" by a former architect to help SAA.

Suggesting lessons from the case, Justice Woo said landlords such as SLA, which operate through a master tenant, should consider including "adequate rights" for themselves. These protect the interests of sub-tenants and others from the unreasonable acts of a master tenant.

They should include the right of the landlord to insist that the master tenant stop reinstatement work and seek court action to stop such work.

The judge noted that the SLA did try to help sub-tenants and licensees who wanted to continue under Cogent.

Justice Woo ordered the sums payable for loss as well as for damage caused by SAA's conspiracy to be assessed at a later date.

When contacted, an SLA spokesman said: "SLA is studying the judgment and will issue its response in due course."

vijayan@sph.com.sg

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To view the judgment, click <here>.

Sydney carpark crash: S'pore widow awarded $2.9m

Straits Times
31 Oct 2014

SYDNEY - A Singaporean woman, who witnessed her husband reverse his car over the edge of a second-storey carpark in Sydney and plunge to his death, has been awarded A$2.6 million (S$2.9 million) in damages.

In March 2006, Ms Michelle Lee was with her husband Thomas Lee at the carpark of the Carlton Crest Hotel (Sydney) in the city's Haymarket area.

She alighted first, before her husband reversed the vehicle into a parking space, driving at no more than 5kmh. But the car hit a metal barrier which gave way.

With nothing to stop it, the car crashed 9m to the ground. The 34-year-old was later pronounced dead.

Ms Lee, now 41, sued Carlton Crest and the City of Sydney Council for negligence, loss of future earnings and for the nervous shock she suffered on witnessing her husband's death, among other things.

Justice Robert Beech-Jones yesterday awarded Ms Lee the damages during a brief New South Wales (NSW) Supreme Court hearing, the Sydney Morning Herald reported.

The payment will be split, with 75 per cent paid by the parking station operator and the rest by the City of Sydney. The parties will return to court on Nov 6 to argue costs. At an earlier hearing, Justice Beech-Jones said the incident caused "an almost complete psychological collapse affecting every part of her life, including her promising career as a speech pathologist".

The NSW Supreme Court found that Carlton was negligent because it was aware of numerous problems resulting from poor construction and maintenance of the concrete wheel stops and metal perimeter railing.

The City of Sydney Council was also found negligent for certifying the carpark for commercial use, because the barrier failed to comply with Australian standards.

The court had heard that the couple married in 2000, when both were 27, and were based in Sydney.

Ms Lee grew up in Singapore, where she worked for four years as a special education teacher. Mr Lee was a former Straits Times journalist and had been working with Sydney Ports Corporation as a systems analyst.

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No collateral needed for woman sued for $400k

Straits Times
25 Oct 2014
K.C. Vijayan

Court stays demand for security by ex-lover pending her appeal against this

A WOMAN being sued for the return of almost $400,000, allegedly borrowed from her former lover, will not have to provide security for the sum until her appeal against this demand is heard.

Ms Jo Baby Kartika Polim is being sued by businessman Henry Wee, who won a court order in August that she should underwrite the sum if she wished to defend the suit.

He wanted the security in the form of a banker's guarantee or solicitor's undertaking, according to court documents filed.

But Justice Vinodh Coomaraswamy stayed the requirement on Tuesday, pending her appeal to the apex court to have the requirement waived altogether.

Ms Kartika had argued for a stay as she had other ongoing financial liabilities and the requirement would impair her ability to contest the suit.

Mr Wee, a businessman in his 60s, claimed the loans were made between 2011 and 2013 to help her acquire two properties in Kim Yam Road and Shenton Way.

He is also seeking the return of $13,000 in personal loans made last year to help Ms Kartika with her personal expenses.

Ms Kartika, 48, a real estate agent, disputes the claims, countering that they were gifts as the couple were seeing each other.

She ended their relationship, which began in 2007, last year.

Ms Kartika, a permanent resident from Indonesia, registered her marriage earlier this year to an Indonesian businessman.

A key issue is whether Mr Wee embarked on the suit because he was angry about the break-up.

Now the court has to decide if the sums provided over the two years were loans or gifts.

Defended by lawyers Salem Ibrahim and Iman Marini, Ms Kartika claimed many events in their relationship would show the monies were not loans.

She argued that they were together for six years, during which Mr Wee had been expected to contribute his share of the costs.

" I wish to say I am not an ugly woman to keep a man..." she said in court documents filed in Marchafter Mr Wee sued her.

Ms Kartika had then urged Mr Wee to withdraw his claim.

Mr Wee also wants back a Mercedes-Benz car that he had registered in her name and for which he paid $120,000.

The businessman, represented by Senior Counsel Chelva Rajah and lawyer Teng Po Yew, maintains that his personal relationship did not affect his business relationship with Ms Kartika.

He points to other expenses amounting to about $65,000 which he treated as gifts to Ms Kartika in the course of their relationship and for which he did not claim in the suit.

These included monies for trips overseas, part payment for her entrance fee to the Tanglin Club and medical bills.

In April, Mr Wee succeeded through the court in recovering $105,000 of the money lent to help her acquire the flat in Shenton Way.

The suit for the remaining $398,300 sum is expected to be heard in the High Court next year.

vijayan@sph.com.sg

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

How the Office of the Public Guardian can live up to its name

Straits Times
16 Oct 2014
Toh Yong Chuan

The Office of the Public Guardian administers the Lasting Power of Attorney scheme, which lets people appoint a "donee" in advance to take care of legal decisions should they lose mental ability. More safeguards are needed to prevent abuse of the scheme.

THE Lasting Power of Attorney (LPA) scheme has come under the public spotlight recently, triggered by two high-profile public cases.

In one, the niece of rich widow Chung Khin Chun, 87, is seeking to revoke the LPA her aunt granted to former China tour guide Yang Yin, 40, in 2012.

In the second, Mr Gabriel Ng, the son of former SA Tours boss Ng Kong Yeam, 75, is challenging the LPA that his father granted to Madam Kay Swee Pin, 62, in 2011.

Madam Chung and Mr Ng are among 6,500 Singaporeans who have signed up under the LPA scheme since it started in 2010.

It is a voluntary scheme that allows proxy decision making, by letting a "donor" appoint a "donee" in advance to make key decisions on his personal welfare and financial matters should he lose the mental ability to do so.

Similar mental capacity laws and schemes are found overseas, like those in Britain and Australia. Singapore's laws are modelled after the England and Wales Mental Capacity Act, which sets the conditions and safeguards when decisions are made in proxy.

The two recent high-profile cases raise the question of whether there are enough safeguards to prevent abuses in the scheme here.

Safeguards against abuse

THE issue of safeguards was debated extensively in Parliament when the Mental Capacity Act, which enabled the setting up of the LPA scheme, went before the House in September 2008.

Speaker of Parliament Halimah Yacob, then a backbench MP, pointed out that "the Bill gives proxy decision-makers power without too much accountability".

Responding, the then-Minister for Community Development, Youth and Sports Vivian Balakrishnan said steps would be taken during implementation to ensure that donees do not exercise their powers inappropriately.

"We will make sure this protection is catered for," he said.

Fast forward six years. The Office of the Public Guardian (OPG), which now comes under the Ministry of Social and Family Development, has put in place safeguards which it has stoutly defended as adequate.

At a press briefing last month, the office handed to reporters a list of safeguards which included having LPA forms certified by experts such as a doctor or lawyer. The office also sends experts to check on the welfare of donors and investigates complaints.

But it was firm in the areas that it will not be drawn into doing.

For one thing, it will not compel donors to inform their family members when they apply to be on the LPA scheme.

This stand is reasonable. Family relationships are complex and it is up to individuals whether they want to keep their family members informed of their decisions, just as they do when they make a will.

Also, the office maintains that it will neither supervise donors nor judge "the quality" of their decisions on who they grant LPAs.

Mr Tay Yong Seng, a partner at law firm Allen & Gledhill, put it well when he gave his personal views on the scheme at a public talk last week: "The extent of supervision for the OPG cannot extend to the same amount of supervision that the Commissioner of Charities does for the charities... We are dealing with private monies."

While the OPG may argue that safeguards are adequate, it should be open to making improvements to shore up public confidence in the scheme. There are at least three such areas.

Three areas of improvement

Notify Office of the Public Guardian when LPA is applied

The current safeguards are more heavily stacked towards making sure that LPAs are properly drawn up rather than how they are applied.

When The Straits Times asked the OPG at a press briefing last month how many of the donees of the 6,500 LPAs have already started using their powers, the question drew a blank.

The OPG does not know the answer because there is no requirement for donees to tell the OPG when they start using their LPAs.

This is a glaring weakness in the system. How can the OPG monitor what it does not know?

The OPG is justifiably worried about making the LPA too onerous on the donor and donee.

But the process of keeping the OPG informed when an LPA is used is not an onerous one for most donees - it can be through a simple phone call or submitting an online form. And it has advantages like allowing the OPG to have a better picture of what is happening on the ground.

It can even act as a road bump to make would-be abusers think twice. They know that they will not be able to fly below the radar as they do now.

And this improvement is also entirely within the remit of the OPG's role as an LPA registry, for it is now tracking both valid LPAs and those that are in active use.

This is the first area of improvement.

Upgrade guidelines on medical certification to compulsory requirements.

Second, while there is no requirement for donees to produce medical reports to show the donors have lost their mental capacities when they use the LPAs, banks still require donees to do so.

The Association of Banks in Singapore said: "If the medical certification is not clear, banks have the right to reject the donee's authority given under the LPA to transact on behalf of the donor."

This is a sound practice.

The Council for Estate Agencies also requires property firms and agents to comply with LPA guidelines issued by the OPG. It issued two letters to firms and agents this year to remind them to comply with LPA guidelines, said council deputy director for licensing Yeap Soon Teck.

The OPG should make medical certification a standard requirement in some instances rather than leaving it as a practice or guideline. For example, financial transactions above a certain amount can be made only when a valid LPA is accompanied by a medical report showing the donor's mental incapacity.

And firms like banks and estate firms who handle these LPA-related transactions should be made to keep the OPG or their regulators informed.

This will give some measure of assurance to donors that the persons whom they trust as donees will still be subjected to some regulatory oversight.

It cannot hurt.

Sound alarm if unrelated person is appointed donee

Third, alarm bells should ring within the OPG when a Singaporean with direct family members decides to appoint an unrelated person as his donee.

This is especially so if the LPA applications involve vulnerable groups. One such group is old widows - half of the current 193,000 women aged 65 and older are widows. This group is expected to grow bigger as women have longer life expectancy than men.

Curiously, the present LPA application form does not require donors and donees to spell out their relationships.

But the OPG told The Straits Times the vast majority of LPAs - 94 per cent - involves donees who are family members.

Still, that leaves 6 per cent of them, or about 400, who have donees who are unrelated, like Madam Chung, who appointed an unrelated former tour guide from China as her donee.

One wonders whether having unrelated donees when there are family members is a recipe for future conflicts. If so, it will serve the OPG well to flag these cases for further scrutiny.

In a reply to a parliamentary question earlier this month, Minister for Social and Family Development minister Chan Chun Sing took pains to emphasise that the safeguards are adequate and that "collective cooperation" is needed.

Said Mr Chan: "Everyone has a role to play and a responsibility to uphold within the LPA framework - the donor in his choice of donee; the certificate issuer in ascertaining the donor's understanding; the donee in acting in the best interest of the donor; and the OPG in its registry and investigation functions."

While the individual has to bear responsibility for his decisions, including poor ones, the OPG cannot shy away from public expectations of its guardianship and gatekeeping role.

Afterall, the head of OPG holds an inspiring title of Public Guardian, evoking an image of a knight in shining armour. Saying that the Public Guardian is merely a registry keeper and abuse investigator is uninspiring.

If it were so, it would be better served for the OPG to change its name.

The LPA scheme is in its infancy. While the two high-profile cases should not shake public confidence in the scheme, the scheme's administrators can strengthen public trust by remaining open to reviewing and improving it where warranted.

tohyc@sph.com.sg

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Help coming soon to those who cannot ask for it

Straits Times
31 Oct 2014
Janice Tai

A SON could be thrashing his elderly mother every evening, but a social worker cannot step into their home to help without permission. A frail old man with dementia, living in filth, could also suffer in solitude because no one knows he is in trouble.

By next year, a new law will likely be in place to protect such vulnerable adults, through deputies who will act on their behalf. Social workers and professionals like doctors will also be given more powers to get them the help and treatment they need.

The proposed law, announced by Social and Family Development Minister Chan Chun Sing yesterday, will give powers to the State to intervene, as a last resort, if the person is at risk of serious harm.

"By 2030, we may have up to 900,000 elderly and we are concerned that in time to come, there might be an increasing number of vulnerable adults who are not able to care for themselves or people who are unable to make judgments for their own well-being," said Mr Chan.

So public deputies, drawn from a pool of "public spirited" professionals like doctors, lawyers or social workers will be appointed to act in their best interests. Social workers will also be empowered to enter the homes of, say, suspected abuse victims, and take them somewhere safe.

Currently, Singaporeans can decide who will make decisions for them if they are unable to do so themselves, under the Lasting Power of Attorney (LPA) scheme.

But some people would not have appointed anyone to act for them, while others may have no one willing to do so. And in some cases, there may be questions over whether the appointed deputy is acting in the person's best interests. A case in the spotlight involves a former China tour guide who was granted the LPA by an 87-year-old widow, giving him control of her $40 million assets.

Social workers lauded the new move, saying they are often refused entry into homes when it comes to abuse cases.

The authorities are also working out how to better support caregivers, as well as how agencies can detect cases earlier.

Mr Chan stressed: "We don't want a situation where just because we have this, then inadvertently, we have the unintended consequence of people pushing responsibilities to the State.

"It is the final safeguard, the last resort."

jantai@sph.com.sg

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Contractor told to pay $504k in backdated taxes and penalty

Straits Times
25 Oct 2014
Elena Chong

A RENOVATION contractor who failed to register for goods and services tax (GST) has to pay a total of $504,501 in backdated taxes and penalty.

District Judge Christopher Goh fined Chong Wee Keng $4,500 yesterday after the owner of D'Esprit Design and Renovations at Tradehub in Boon Lay Way admitted to the offence under the Goods and Services Tax Act.

This is the third case to be dealt with this year, the last two involving companies.

Registration is compulsory for any firm with a turnover of more than $1 million.

Inland Revenue Authority of Singapore (Iras) investigations showed that the 53-year-old failed to register for GST by Oct 30, 2006 when he was liable to do so. He thus failed to account for GST on the sales transactions carried out by his business.

He must now pay $458,637 of GST that he did not account for between December 2006 and December 2010.

On top of this sum, he has to pay a penalty of 10 per cent of the tax due - $45,864.

A statement from Iras said businesses should regularly assess if they need to register for GST.

A business must notify the Comptroller of GST of its liability to be registered for GST within 30 days of the end of the fourth quarter if its turnover for the past four quarters or expected turnover for the next 12 months exceeds $1 million.

The maximum punishment for failing to register for GST is a $10,000 fine plus a penalty equal to 10 per cent of the tax due from the date on which the business is required to register for GST.

ELENA CHONG

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Don't equate reduction of costs with overcharging: Forum

Straits Times
16 Oct 2014

MUCH ink has been spilt following recent claims of overcharging by lawyers representing the Singapore Medical Council ("Medical, legal professions need to clear the air" by Dr Jeremy Lim Fung Yen, Oct 3; and "Legal profession's unregulated pricing structure" by Mr Philip Williams, last Saturday).

Without commenting on specific cases before the court and the inquiry committee, it appears necessary to explain the process to the public.

There are two typical situations - when one reviews one's lawyer's bill, and when one reviews the opponent's lawyer's bill.

In Singapore, the general rule is that the losing party has to pay costs to the winning party. Parties can agree on the quantum to be paid, or if they disagree, the court will decide the amount payable after hearing arguments from both sets of lawyers. This is known as taxation.

The winning party's lawyers submit an itemised bill of costs for taxation, which sets out the work done, time spent, lawyers involved and quantum claimed. This bill of costs is subject to the court's detailed scrutiny, and the losing party is entitled to challenge both the overall quantum claimed as well as specific items.

The winning party is entitled to a reasonable amount of all costs reasonably incurred. Any doubts about reasonableness are resolved in favour of the losing party. The quantum determined by the court is an amount that the losing party ought reasonably to pay, and not what a lawyer may reasonably charge the client.

The law actually intends that there will be an appreciable margin between what a losing party pays in taxed costs, and what a winning party has to pay its lawyers. It is an attempt to reach a fair balance between the victor and the vanquished.

In practice, most bills of costs submitted for taxation are reduced. The winning party's lawyers have a duty to seek the highest quantum reasonably arguable, and the losing party's lawyers have a duty to seek the highest possible reduction of those claimed costs.

The court will balance both views and decide. That a winning party's bill of costs was reduced on taxation should not automatically be construed as overcharging. Indeed, if a client is dissatisfied with his lawyer's bill, he can also tax that bill in court.

The Law Society does not condone overcharging by lawyers, and complaints about overcharging are subject to a statutory regime. Complaints made to the Law Society are referred to independent committees for investigation. These committees are not appointed by the Law Society, and it has no control over them.

The public can have every confidence that there are long-established safeguards in place to address overcharging, whether by one's own lawyer or by an opposing lawyer.

Shawn Toh

Director, Communications

The Law Society of Singapore

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Court decision on Section 377A a missed opportunity: LGBT groups

TODAY
31 Oct 2014
Kelly Ng

SINGAPORE — The lesbian, gay, bisexual and transgender (LGBT) community here has expressed disappointment at the Court of Appeal’s decision to uphold the law criminalising sex between men.

Fourteen advocacy groups — including Pink Dot, Oogachaga and Sayoni — said in a joint statement issued today (Oct 30) that the apex court’s rejection of the constitutional challenges against Section 377A was a missed opportunity to showcase Singapore as an accepting, open and inclusive society.

Acknowledging the court’s position — that it cannot provide a judicial remedy to what is viewed as a legislative issue — they also called on Parliament to “demonstrate true leadership and do the right thing by nullifying this crippling piece of legislation”.

The statute, they said, reinforces discrimination and prejudice, which leads to media censorship and stereotyping, and affects the “wellbeing of a significant segment of society”.

They also disagreed with the court’s position that the challenge was “insistence by a particular group or individual that its/his values be imposed on other groups or individuals”. “It is not an imposition for a segment to seek the same rights as the rest of society,” they said, adding: “We cannot accept its narrow interpretation of the constitution.”

“To be viewed as equal in the eyes of the law, to feel safe at home, and to be protected against discrimination, mistreatment, even physical and emotional harm, is a right to which every Singaporean should be entitled, and not denied on the basis of whom they love,” they added.

However, they acknowledged the Court’s position that it cannot provide a judicial remedy to what is viewed as a legislative issue and efforts made to hear the cases.

“We recognise that the journey toward building Singapore into a society that truly understands, accepts and appreciates the value of diversity and inclusivity is still in its early days — this is by no means the end of the road to equality for the LGTBT community,” they said.

kellyng@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

Third-party inducement not needed to establish corruption: Appeals Court

TODAY
24 Oct 2014
Neo Chai Chin

If inducement were necessary, it would ‘undermine the entire object of the Prevention of Corruption Act’

SINGAPORE — The highest court of the land yesterday clarified anti-graft laws here, including making it clear that inducement by a third party is not always necessary for a corruption charge to be established.

Disagreeing with the grounds of decision issued last year by a High Court judge — which were binding on all state courts — the Court of Appeal said that if inducement by a third party were always necessary, it would lead to absurd outcomes where the more outrageously someone behaves in soliciting for a gift, the less likely he would be guilty of corruption.

 “That not only is an unsatisfactory outcome, but also undermines the entire object of the Prevention of Corruption Act,” the Court of Appeal said in a judgment released yesterday on questions of the law on corruption.

The Court of Appeal was presided by Judges of Appeal Chao Hick Tin and Andrew Phang, as well as Justice Tay Yong Kwang. The questions were referred by the public prosecutor after former IKEA food and beverage manager Leng Kah Poh — who was first sentenced to 98 weeks in jail for 80 corruption charges by a district judge — was acquitted in September last year by High Court Judge Choo Han Teck of corruption.

Mr Leng and two others had hatched a plan to supply food to IKEA through two companies at marked-up prices.

The companies, whose only client was IKEA, made S$6.9 million in profit over seven years, and Mr Leng received a third of it.

His collaborators were handed jail terms of 40 weeks and 70 weeks.

Justice Choo had said Mr Leng had to have been induced by a third party to act against the interests of Ikano, the company that operates the IKEA furniture stores here, in order to establish a corruption charge. But there had been no third party, as it was Mr Leng who was one of the masterminds.

With the latest judgment, prosecutors will now argue before the Court of Appeal for Mr Leng’s acquittal to be overturned.

The Court of Appeal also ruled that the two companies — AT35 Services and Food Royal Trading — could be considered third parties even if Mr Leng had an interest in them.

Justice Choo was wrong in thinking that because Mr Leng had an interest in the two companies and had merely obtained a share of their profits, a corrupt transaction could not have taken place, the Court of Appeal judges said.

A proper inquiry must be made into the true nature of the arrangements between agents such as Mr Leng and the third parties, or it would be all too simple for them to devise “inventive and sophisticated schemes related to skimming secret profits” off their targets in order to escape legal sanctions, the judges wrote.

In his ruling, Justice Choo Han Teck had said what Mr Leng had pocketed were “secret profits” from a ploy he had hatched, rather than bribes from a third party. He said: “Whatever the appellant was guilty of; I find that it was not corruption under the Prevention of Corruption Act.”

Mr Leng’s role was that of an “insider” instead, in a “elaborate scheme” he had hatched with an accomplice “to skim money off the top” of food contracts with IKEA Singapore, Justice Choo had added.

Mr Leng’s acquittal was one of two cases that prosecutors had referred to the Court of Appeal to determine legal questions of public interest.

The other case involved former Seagate director Henry Teo Chu Ha, who had paid S$6,000 for 20,000 shares in trucking company Biforst (which had contracts with Seagate) and was paid dividends totalling S$576,225 from these shares. In ruling on the questions of law from Teo’s case, the Court of Appeal said the fact that he had paid for the shares did not mean they were not gratification.

It could hardly have been the purpose of the Prevention of Corruption Act to exclude schemes that were cleverer and more devious than “traditional” or blatant forms of corruption, the apex court had ruled. Teo had his six-month jail term restored last month.

chaichin@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

To view the judgment, click <here>.

Marshalling games' fine print: Rajah & Tann to advise Singapore South-east Asian Games Organising Committee

Straits Times
16 Oct 2014
Wang Meng Meng

Rajah & Tann to provide legal advice at the 2015 SEA Games on home soil

AS THE official legal partner of next year's SEA Games in Singapore, local law firm Rajah & Tann will overseea wide range of fine print that could prove to be potential minefields.

Apart from examining rules and regulations to avoid disputes, it will also provide advice to the Singapore South-east Asian Games Organising Committee (Singsoc).

Rajah & Tann will advise, prepare and negotiate the various legal documentation necessary for the hosting of the Games. These duties include advising agreements on sponsorships, media rights, marketing, merchandising, licensing issues, venues, logistics and ticketing.

The firm hopes to achieve this through clear communication with the organisers, athletes, officials and sponsors.

The firm's partner and head of intellectual property, sports and gaming, Lau Kok Keng, told The Straits Times: "Effective education and communication on the do's and don'ts is important. It is better to pre-empt and prevent things from happening."

There are several ways in which athletes, officials and sponsors could fall foul of the competition rules and regulations.

While the three official main sponsors on board so far - telco SingTel, professional services firm Deloitte and the NTUC FairPrice Group - get to splash their brands at venues or on the athletes' apparel, international events are also a rich hunting ground in which rival companies try and showcase their products through ambush marketing.

Lau said: "Subtle forms of ambush marketing have arisen in the sporting arena that are difficult to deal with. A Team Singapore athlete may unzip his tracksuit, manufactured by the official sponsor, to reveal a shirt underneath made by a rival brand that sponsors his apparel.

"Similarly, he may drape a towel, made by his personal sponsor, over the tracksuit to obscure the logo of the official sponsor and to reveal the logo on the towel. Or he may stroll into competition wearing headphones supplied by a brand that is not an official sponsor."

With the SEA Games to be held from June 6-15 next year, during the haze season, extreme weather conditions could even lead to affected events being postponed or cancelled.

Lau, who is also the vice-chairman of S-League football club Geylang International, believes there must be a clear consensus on the trigger points for a cancellation or postponement.

He explained: "There must first be consultation with medical advisers as different sports have different thresholds. For a demanding aerobic sport like football or the marathon, a reading in excess of PSI 100 may be bad enough to call off a match."

Other issues arise in such a scenario. "In sailing, it is possible for a second-placed team to overhaul the leader in the last race. Countries might take issue and dispute the need to cancel events because of the haze.

"But for an event like shot put or javelin, it might matter less. The important thing is such matters should be pre-agreed so that there will be no allegation of using the haze as an excuse to gain an unfair advantage.

"In relation to sponsors, the legal consequences of a cancellation of the Games because of haze or other circumstances beyond the reasonable control of Singsoc would also have to be addressed in the sponsorship contract."

Even the case of three national swimmers who allegedly drank during the Incheon Asian Games has an echo for the future. Lau believes clear communication would enable athletes to seek proper approval to celebrate.

Team officials, too, need to be aware of rules set by the organising committee governing the use of branding and sporting equipment. "There is a requirement to comply or it may affect the country's participation and standing. If officials mess up, it can be hugely embarrassing especially when we are the hosts of the Games," said Lau.

meng@sph.com.sg


Background Story

PRE-EMPT ISSUES

Effective education and communication on the do's and don'ts is important. It is better to pre-empt and prevent things from happening.

- Rajah & Tann partner Lau Kok Keng

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What it should have been: "Exorbitant, unreasonable: High Court slashes SMC's claims"

Straits Times
31 Oct 2014

SUNDAY'S report, "Exorbitant, unreasonable: High Court slashes SMC's claims", stated that the Law Society had verified that the Singapore Medical Council paid a higher amount to WongPartnership than it was claiming from Dr Susan Lim. The society has clarified that it did not do so.

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Lawyer faces fine over professional misconduct

Straits Times
24 Oct 2014
K.C. Vijayan

ACTIVIST lawyer M. Ravi is facing a $7,000 fine for releasing court documents to the media before serving them on the Attorney-General. The fine is also for issuing press statements meant to interfere with the cases.

A disciplinary tribunal, appointed by Chief Justice Sundaresh Menon to look into possible misconduct, recommended the penalty. In its report released yesterday, the tribunal, which comprised Senior Counsel Giam Chin Toon and lawyer Gina Lee-Wan, also ordered Mr Ravi to pay $3,000 in costs to the Law Society.

Mr Ravi's improper professional conduct involved cases of four clients brought against the Attorney-General.

One was a gay man's bid to get the courts to ban workplace discrimination against homosexuals. The other three were judicial reviews, including the deportation of a foreign worker involved in last December's Little India riot.

Senior Counsel Andre Yeap, acting for the Law Society, said Mr Ravi had released court papers and e-mailed press statements meant to interfere with the cases. The court papers were released to the media over five months from August last year, before they were served on the Attorney-General.

In March, the Attorney-General complained to the Law Society, which then applied to Chief Justice Menon for the tribunal.

At an early stage of the proceedings, Mr Ravi, a lawyer since 1997, had pleaded guilty to all seven charges, promising not to repeat his conduct. In April, Mr Ravi, 45, also issued a media statement in which he withdrew the various statements made, and also included an apology.

His lawyer Eugene Thuraisingam urged the tribunal to consider Mr Ravi's bi-polar condition, which is now under control but which sometimes leads him to act "uncharacteristically".

He added that Mr Ravi is a pro bono lawyer who contributes actively to society and that the cases he deals with involve general public interest which occasionally leads to emotions running high.

The tribunal, in recommending a fine of $1,000 per charge, accepted that Mr Ravi had shown remorse and that his acts of "over-enthusiasm" in representing his clients meant he "unwittingly overstepped the line".

The Law Society will consider the tribunal's recommendation.

vijayan@sph.com.sg

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MTP will lower liquidity, raise listing cost: SMCCA

Business Times
16 Oct 2014
Angela Tan

Small & mid-cap companies association says proposed rule will add 'no meaningful value' to capital markets

[Singapore] SINGAPORE'S Small and Middle Capitalisation Companies Association (SMCCA) believes that Singapore Exchange's (SGX's) proposed adoption of a Minimum Trading Price (MTP) will add "no meaningful value to the capital markets" but instead reduce liquidity and add to listing cost.

In response to SGX's public consultation papers on minimum price and enforcement, the voice for small and mid-cap listed companies says that the move to peg MTP at 20 cents a share should not be implemented as it will have a "negative impact on market liquidity in addition to other unintended consequences".

It argues that MTP will not be an effective policy if it aims to minimise misconduct and abuse such as those seen during the infamous penny stocks saga involving stocks such as Blumont, Asiasons and LionGold.

MTP won't alleviate the risk of high volatility or reduce excessive speculation and market manipulation and will neither improve liquidity nor reduce market impact cost, it says.

"Implementing MTP, however, will increase issuers' cost of listing on SGX and also confuse shareholders and investors especially if companies choose to consolidate shares. The potential outcome is further reduction in liquidity and even erosion of wealth," it notes.

SMCCA went on to speculate that this is an attempt by SGX to migrate small and mid-cap companies to the Catalist board and "hence the cost of monitoring to Catalist sponsors or maintain a thinly traded mainboard listing".

On enforcement, it believes that the objective of the regulators to introduce the various enforcement frameworks is to provide SGX with more regulatory powers towards issuers.

"However, SMCCA argues that SGX's role is to regulate its members and not issuers. The role of regulating issuers should remain with MAS (Monetary Authority of Singapore). This is in line with what is written in the Securities and Futures Act," the association explained.

It raised the issue of SGX's independence in the various enforcement committees to be created under the proposal - a Listing Advisory Committee, a Listing Discipline Committee and a Listing Appeals Committee - as well as issuers' lack of access to these committees.

"The desire of SGX to regulate issuers through these proposed regulatory changes does not lie on sound legislative or logical claims, nor are they independent, fair and transparent enough. The regulatory role of issuers is better left to MAS. SMCCA's stance is that the enforcement measures and the widening of SGX's powers need to be radically reconsidered and not implemented in its current form," SMCCA added.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Establish legal framework for compensating trafficking victims: Voices

TODAY
30 Oct 2014

I refer to the report “Support system for victims of trafficking already in place: Task force” (Oct 28).

The discussion about the Prevention of Human Trafficking Bill shows that it is an area where various stakeholders — civil society, an engaged citizenry and the Government — can cooperate to pursue justice and promote the welfare of trafficked victims.

I appreciate the effort to carry out public consultations on the Bill, as well as the partnership with non-governmental organisations in case referral and victim identification.

More can be done, however, to protect victims’ rights to compensation for suffering from labour trafficking practices, which is a relatively new area of law here addressing a mixture of civil wrongs and breaches of employment law.

Parliament should consider the desirability of providing a legal framework for compensation from offenders, versus judicial case-by-case development.

Although every case is unique, it is possible to set open-textured criteria for compensation, such as the duration of exploitative employment and interest repayment for withholding salaries. This gives lawyers representing victims greater certainty about what can be sought through civil suits.

It is unfortunate when people make sacrifices to go to a promised land, only to be trapped in work-incurred debt and onerous contractual arrangements.

Besides meeting physical, medical and psychological needs, it is important to meet legal needs. Victims must have avenues to clarify their position vis-a-vis exploitative contracts, unsafe working conditions or the daily limit on work hours.

Voluntary partnerships among NGOs, the Tripartite Alliance for Fair and Progressive Employment Practices and the Law Society can help provide awareness of rights, as trafficked victims are often ineligible for aid under the Legal Aid and Advice Act.

It is worth Parliament’s while to consider the semi-consensual nature and complexity of employment agreements among traffickers, recruiters and their victims. Academic studies may give insight into the balance of power among recruiters, employers and foreign workers.

Profit-driven criminal networks should be matched strategically by public-private alliances among various interest groups.

Notwithstanding the need to preserve the administrative discretion of government agencies, the proposed victim-centric approach should take precedence in law enforcement.

Besides proposed measures such as temporary shelter and trials in camera for trafficked victims, the Police General Orders for victim interviews require improvements to dispel any notion that police investigations are preliminary to legal charges.

Interviewers should assure victims of the police’s intent to help, rather than to secure evidence of illegal entry or related offences.

If victims are prosecuted in open trial, future victims would be more inclined to suffer in silence than risk being charged after cooperating with the police. For minor offences, a stern warning can be administered in lieu of prosecution.

A more relational approach towards this nuanced issue would empower victims to denounce traffickers, preserve dignity and recognise their legal rights.

The rule of law is both about outcomes and people carrying on with life after their experience with the justice system. A relational framework against trafficking-in-persons would serve the ends of detection, prevention and prosecution better.

Jerome Yang Zhelun

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

Insurers brace for impact of new risk-based capital rules

Business Times
24 Oct 2014
Claire Huang

Proposed enhancements to the existing risk-based capital framework (RBC 1) imply substantially higher capital requirements, forcing them to relook their product offerings and investment strategies

[Singapore] INSURERS here are bracing themselves for choppy waters ahead as proposed enhancements to the existing risk-based capital framework (RBC 1) imply substantially higher capital requirements, forcing them to relook their product offerings and investment strategies.

The Business Times understands that existing capital adequacy ratios (CARs), which assess insurers' solvency, are estimated to fall by 50-60 per cent under the proposed RBC 2, the framework that sets out the capital buffer insurers need to provide.

An analysis of the top six insurers, by actuarial services provider Milliman, estimated that total capital requirements as at end December 2012 would increase by 128 per cent and 170 per cent, for the participating and non-participating funds, respectively, based on the proposed changes.

Equity charges are to rise to at least 40 per cent for most equity classes under RBC 2, from 16 per cent now.

To ensure that insurers are able to deal with market risks, RBC 2 introduces a new credit spread risk requirement and interest rate mismatch risk requirement to replace the existing debt risk requirement.

Richard Holloway, managing director of Milliman's South-east Asia and India life segment, said that under RBC 1, the debt specific risk charge for an investment grade bond with more than 24 months to maturity is 1.6 per cent.

"Under RBC 2, the credit risk charges will be applied by considering the impact of increases in credit spreads, which vary by the credit rating of the bond. This approach leads to the risk charges increasing with the duration of the bond. For example, we estimate an equivalent risk charge for an A-rated 10-year bond would be 13.8 per cent (compared with the 1.6 per cent for RBC 1)."

But he noted that this can be reduced if the matching adjustment - to allow insurers to adjust the discount curve for liabilities if they hold assets with matching cashflows - can be applied.

Tan Hak Leh, chief executive officer of AIA Singapore, said that there was a need to look at both the risk charges as well as the available capital buffer to absorb those charges. "Financial resource would not remain static, it would be reviewed too and there's also recognition, rightly so, (of) the offsets and diversifications of charges, which doesn't exist in the current framework. So it's not a case where everything will go up. It's a case where both sides of the equation, both the numerator and remunerator, are being reviewed as well as the interaction between the two."

In June 2012, the Monetary Authority of Singapore (MAS) held its first consultation on RBC 2, which seeks to improve current risk coverage and risk sensitivity.

The second consultation ended this June, providing insurers a taste of what is to come as the MAS released detailed specifications for the first quantitative impact study (QIS).

The MAS said that it would "make appropriate revisions to some aspects of the framework, including the calibration of risk charges". It added that sufficient time would be given for consultation and the second QIS, given the significance of capital requirements on insurers' operations and the absence of international standards in this area.

It expects to publish the revisions together with a call for a second QIS in the first quarter of 2015. RBC 2 is to be implemented in 2017.

huangjy@sph.com.sg

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

OECD's proposed system needs govt, taxmen on board

Business Times
16 Oct 2014
Simon Clark

THE OECD's base erosion and profit shifting (BEPS) initiative seeks to create a tax system based on concepts reflecting years of financial and technological innovation so that countries can effectively tax the economic activity of global business. While its intent centres on promoting greater tax transparency, getting into the details around BEPS quickly brings the discussion into the realm of incomprehensible tax jargon for many people.

So let's strip away the technical changes, and look at the origins of BEPS and what it means for the global tax system. Let's understand what factors led to the current proposals for fundamental changes to the global tax system, and what changed people's sense of tax morality.

As with many significant events, there is no one cause. Let's start with governments, who, like most of us, eventually have to balance their books. They have income (taxes) and expenses, and any deficit has to be made up by borrowings. Before the global financial crisis, a significant portion of the developed world was running up increasing deficits - some still are. Then the crisis happened and everyone including governments needed to tighten their belts.

Many governments have limited ability to control the expense side of their budget. Fixed expenditures and changing demographics are causing rising expenditure in areas such as the provision of medical services and the payment of pensions. All of this put more attention on the tax side of the equation.

What had been happening on the tax side? Clearly global tax systems largely based on old-style manufacturing-based economies had not kept pace with globalisation.

Increasingly mobile companies were setting up their business in ways which minimised their overall tax liability. Companies are able to earn significant revenues from a country without having any presence in that country.

Without such a presence, existing tax rules struggled to find an activity to tax. None of this was or is illegal. However, it does mean that tax liabilities became disassociated from the source of economic profits and value creation.

Many media stories describe how global companies made profits in many countries without any associated tax liabilities arising. A new tax morality discussion, fuelled by media stories, started to emerge but local tax authorities found it increasingly difficult to tax global businesses in a meaningful way.

Clearly, the tax system in many countries was broken and needed to be reset to bring it into line with the modern world.

There were a number of other factors adding to the global tax disconnect including:

• Tax competition - many countries were reducing corporate tax rates and/or introducing special tax incentives to attract or retain business;
• Tax havens offering low or no taxes;
• Financial and technological innovation which made "money" and "business" increasingly fluid concepts; and
• The existence of a global network of financial, legal and tax advisers assisting business to legally minimise their tax expense.

So, for all of these reasons, the new world needs a new tax system. The OECD stepped into the breach to offer solutions based on resetting the tax system to better align economic and tax outcomes. Hence, BEPS was born, proposing changes designed to create a new basis for taxing global companies on their economic profits, while limiting their ability to shift these profits via financial means or other innovative methods. But, will this work? We need to remember that the OECD is not a law-making body and all of its proposals need to be passed into law by national governments.

The big challenge for the BEPS-based tax system is that it needs to operate globally. This means that governments and tax authorities need to work together. We need aligned tax rules, international agreements and quick and effective global tax dispute resolution. We need an end to harmful tax competition between countries.

There are a number of unanswered questions including:

• Will countries put aside the culture of tax competition?
• Will some countries be seeking to tax more of the global profits of a company?
• How will other nations react to such changes?
• How will companies react to all of these changes? Will they migrate to countries which continue to offer tax incentives?

Forty-four countries have agreed politically on the next raft of measures but detailed implementation has yet to occur. What of the other countries around the globe? As the OECD does not make law, there is no guarantee of consistent implementation. There are reasons for this uncertainty regarding implementation. These include indications that some countries are not comfortable with the detail of various measures. There is also flexibility in some areas of the OECD recommendations, which means that rules will not always be aligned.

Added to this, there are also countries which appear to be running ahead of the OECD process. For example, Australia is conducting a detailed review of technology companies in consultation with some other tax authorities.

Lastly, mutual agreement or negotiation between countries on tax issues is notoriously difficult, and there is little to suggest that this will change.

Ultimately, while there may be alignment and enlightenment at the OECD level, how this process will play out in the trenches of tax administrations is not yet clear.

So, the modern world needs a modern tax system and the OECD has the template. The question now is whether this can be implemented in a coherent manner by the various governments around the globe.

The writer is regional partner, alternative investments, at KPMG in Singapore; the views expressed are his own.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Court upholds law banning gay sex

Straits Times
30 Oct 2014
Selina Lum

It rejects case that Section 377A of Penal Code is unconstitutional

THE highest court in Singapore has upheld Section 377A of the Penal Code, the law that criminalises sex between men, rejecting arguments that the provision contravenes the Constitution.

In ruling that the provision is constitutional, the three-judge Court of Appeal yesterday rejected two separate challenges to strike down the law.

Mr Gary Lim, 46, and Mr Kenneth Chee, 38, as well as 51-year- old Mr Tan Eng Hong, argued that the provision was discriminatory and should be declared void.

Their case was that Section 377A infringed their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violated their right to life and personal liberty, as guaranteed by Article 9. The offence carries up to a two-year jail term for men who commit acts of "gross indecency" with other men, in public or private.

Mr Tan first filed a challenge against the statute in 2010 after he was charged with having oral sex with a man in a public toilet. Mr Lim and Mr Chee later filed their own challenge. Their cases were separately dismissed by the High Court last year but their appeals were heard together in July.

Yesterday, in a 101-page written judgment delivered by Judge of Appeal Andrew Phang, the court held that "personal liberty" in Article 9 refers only to the liberty of a person from unlawful incarceration. The court rejected the arguments of the couple's lawyer, Senior Counsel Deborah Barker, that the phrase should be interpreted to include the right to privacy and personal autonomy of an individual to express love towards another person.

As for Article 12, the court held that Section 377A passed a classification test used by the courts to determine whether a statute that differentiates between classes of persons is constitutional.

In fact, Section 377A fell outside the scope of Article 12, which specifically forbids discrimination of citizens on grounds of religion, race, descent and place of birth. The words "gender", "sex" and "sexual orientation" are absent, said the court. It stressed that while arguments mounted by each side of the divide involved "extra- legal considerations and matters of social policy", it can consider only legal arguments.

"Whilst we understand the deeply held personal feelings of the appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere," it said.

Mr Tan's lawyer M. Ravi called the decision a "huge shock".

Mr Lim and Mr Chee, who have been in a relationship for 17 years, said they were "deeply disappointed" and hoped Parliament would - as the court had - consider the issue in detail. "While the legal road for us has ended, we believe and hope that this case has inspired Singaporeans - straight, gay, bisexual and transgender - not to keep silent in the face of prejudice and inequality."

selinal@sph.com.sg

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To view the judgment, click <here>.

Singapore 'a beacon of hope for S. Africa': SAL Annual Lecture

Straits Times
23 Oct 2014
K.C. Vijayan

Important lessons to be learnt from a small country, says S. African CJ

SOUTH Africa's Chief Justice has lauded Singapore as a beacon of hope for his country, citing its visionary leadership, abhorrence of corruption and making the most of the least.

Delivering the 21st Singapore Academy of Law lecture on Tuesday Chief Justice Mogoeng Mogoeng noted that both countries had visionary founding leaders.

But unlike Mr Nelson Mandela, Singapore's Mr Lee Kuan Yew lives to see the vision for his country fully realised.

"Sadly, for South Africa, by the time our founding father had passed on, much still had to be done," he said. He dedicated the lecture to Mr Mandela, who was also a lawyer, like Mr Lee.

Among the audience at Tuesday's talk at the Supreme Court Auditorium was Chief Justice Sundaresh Menon, Attorney-General V.K. Rajah, retired chief justice Chan Sek Keong and , Ms Hazel Ngubeni, South Africa's High Commissioner to Singapore.

His talk, "Twenty years of the South African Constitution - Origins, Aspirations and Delivery", traced his country's progress in the 20 years since it attained democracy.

Stressing the significant role of the courts in ensuring that the rule of law is observed, CJ Mogoeng praised Singapore's achievements. Unlike South Africa, Singapore is a small country without mineral resources and "yet the economic muscle of Singapore cannot be compared to that of South Africa".

He added: "As the rand continues to slide, the dollar of Singapore seems to be gaining more and more strength."

The key question to ask of Singapore is: How did you get it right?

"If a country that was 'rejected' could become a force to be reckoned with that you have turned out to be, I think a little bit of brutal introspection will take South Africa far," he said.

South Africa has a "vibrant democracy" and has made great strides in the rule of law, said CJ Mogoeng, citing advances in educational opportunities, judicial appointments and land ownership, among other areas.

And one thing that the country did right was to abolish the death penalty at a time when about 95 per cent of the people wanted the penalty to be retained.

"Those of us who knew better thought it was a good move because nobody can tell me with certainty that judges never make mistakes," he said.

There had been a few incidents in South Africa where, after those convicted had been put on death row, the real culprits stepped forward and admitted guilt.

The "safest route" thus was to abolish the death penalty, given the kind of "skewed" justice that applied then.

"It was a brave move which was facilitated by the supremacy of the Constitution as the law," he said, noting that there is still the death penalty here.

"If the death penalty is still retained in this country, don't understand me to be criticising the laws in this country, not at all."

vijayan@sph.com.sg

 

South Africa Chief Justice Mogoeng Mogoeng praised Singapore's achievements and progress despite its small size. Photo: Singapore Academy Of Law.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

 

Ex-guide hired recruitment firm to apply for work pass

Straits Times
16 Oct 2014
Toh Yong Chuan & Carolyn Khew

It provided him with secretary who is on the books of more than 1,000 local firms

CHINESE national Yang Yin was so determined to make a new life in Singapore that he hired a specialised recruitment firm here to set up his company and apply for an Employment Pass (EP), as a prelude to getting permanent resident status.

The studio's address is listed as the bungalow of the wealthy widow who handed control of her $40 million worth of assets to the former tour guide in 2012, after he became a Singapore PR.

Back in March 2009, local recruitment firm Rikvin helped Mr Yang set up the Young Music and Dance Studio, with him as managing director.

A month later, the firm applied for an EP on Mr Yang's behalf. The application was turned down. But Rikvin's second attempt on Mr Yang's behalf, in September that year, was successful, according to Straits Times checks.

By then, Mr Yang was already ensconced in the $30 million Yio Chu Kang home of Madam Chung Khin Chun, 87, the woman at the centre of a legal storm involving Mr Yang, 40, and her niece Madam Hedy Mok, 60, who believes he manipulated her aunt into giving him Lasting Power of Attorney (LPA).

The rest of his family moved in last year.

When The Straits Times visited Rikvin's Equity Plaza office this week, its chief operating officer Satish Bakhda confirmed that Mr Yang was one of its 4,000 clients.

In court papers last month, Mr Yang, who befriended Madam Chung when he was her personal guide in Beijing in 2008, said that she had invited him to Singapore to look after her and wanted him as her "grandson".

"The company was incorporated so that I could run a business and obtain my Singapore permanent residency," he said.

Mr Bakhda told The Straits Times that while he, personally, had never met the man, Rikvin's services to Mr Yang were totally above board.

The firm also provided him with professional secretary Lim Soh Sea.

Ms Lim, 44, is company secretary to more than 1,000 local firms, according to Accounting and Corporate Regulatory Authority (Acra) records. She met Mr Yang for the first time only two weeks ago, when he went to the office to pick up some files.

When asked if his firm had scrutinised Mr Yang's application, Mr Bakhda said that it was not its place to do so.

"Who am I to say, 'What are you going to do (with the company)?'" said Mr Bakhda.

He added that while Rikvin helped Mr Yang to submit annual accounts to Acra through his firm, "we did not do its accounts".

When reporters visited Madam Chung's home last Saturday, the only instrument in sight was a dusty piano with rusted hinges and uneven keys. Indonesian maid Surti, 43, who has worked for Madam Chung since 2007, said she heard Mr Yang run his fingers over the piano once.

Retired teacher Chang Phie Chin, 84, a good friend of the widow who used to live with her at the bungalow, said in court papers that Mr Yang's company was a "sham".

Meanwhile, a court hearing yesterday on two applications by Madam Chung's niece, Madam Mok, was adjourned until Oct 29.

Madam Mok had earlier applied to be appointed her aunt's deputy with full powers - which would allow her to decide on all of Madam Chung's matters. She also applied to revoke Mr Yang's LPA.

The Family Court will be hearing a separate case tomorrow brought by the Office of the Public Guardian to determine whether Madam Chung has the mental capacity to revoke the LPA she granted Mr Yang in 2012, which she now wants to do. She was examined by an Institute of Mental Health medical expert yesterday, as ordered by the court.

Mr Yang also faces separate investigations by the police for suspected criminal breach of trust, and by the Immigration and Checkpoints Authority and Manpower Ministry on how he obtained his permanent residency and EP, among others.

tohyc@sph.com.sg

kcarolyn@sph.com.sg

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High Court allows termination of property transaction by Liu Kwee Tang after talks on sale of premises fall through

Lianhe Zaobao
30 Oct 2014
Poh Lay Hoon

 

This article was first published on 27 October 2014 in the Singapore Mandarin broadsheet, Lianhe Zaobao.
SLW commissioned a translation to give the legal community a view of legal reports from different Singapore news outlets.

A businessman wanted to buy for $2.5 million the premises of Singapore Liu Kwee Tang and another unit it was renting out but discovered that the premises did not have a strata lot while the rental unit had two strata lots. He then requested Liu Kwee Tang to rectify the two Options to Purchase.

Liu Kwee Tang also discovered in the process of the transaction that the space where it had been located for 27 years did not have a strata lot. However, as the Option to Purchase had stipulated that the property is to be sold "in its present state", the buyer had to accept the arrangement without rectification, leading to an impasse between buyer and seller.

With the transaction not concluded after more than a year, the buyer had also refused to withdraw the caveat. Liu Kwee Tang thus applied to the High Court to terminate the agreement and succeeded in its attempt. High Court Judicial Commissioner George Wei Sze Shun found the transaction invalid on 15 August, requiring Liu Kwee Tang to return the deposit of 3% ($75,000) to the buyer and the buyer to withdraw the caveat. The buyer has not lodged an appeal.

Liu Kwee Tang owns the top two storeys of a six-storey commercial building at Hong Kong Street, with 48 years remaining on a 99-year lease.

In 1984, Liu Kwee Tang had bought the two storeys from the building's owner Ang Keong Lan for $250,000 in 1984. The fifth storey has an area of 183 square metres (comprising Unit 33D, which has 114 square metres, and Unit 33E which has 70 square metres). The sixth storey, a roof terrace converted into office space, has an area of 217 square metres.

The late Ang Keong Lan was the founder of Joo Seng Group and a noted philanthropist. He had been the chairman of the Pei Hwa Foundation.

The plaintiffs were the Liu Kwee Tang trustees, represented by lawyer Jeffrey Bey Eng Siew. The defendant was Goh Chong Liang. Lianhe Zaobao attempted to contact Goh through his lawyer Liaw Jin Poh but was unsuccessful.

Based on the plaintiff's opening statement, Ang had applied for six strata lots for the building, located at 33 Hong Kong Street. The first to the fourth storeys each had one strata lot, with the fifth storey having two, that is, 33D and 33E.

In 1983, Ang received approval from URA for the sixth storey roof terrace to be converted into office space. He kept the fifth and sixth storeys for his own use.

In April 1984, Liu Kwee Tang purchased the fifth and sixth storeys from him and mistakenly assumed that the roof terrace was 33E. It used the sixth storey for its own premises and rented out the fifth storey (which it thought was 33D) for income.

In 2011, through an AGM, Liu Kwee Tang agreed to sell the two storeys for $2.5 million. The fifth storey would be sold with existing tenancy while the sixth storey would be sold with vacant possession. It then advertised for buyers.

The defendant wanted to buy the units and requested that the Option to Purchase be split into two, such that 33D and 33E would be registered under two different names. In May the same year, the defendant executed the Option to Purchase.

Both the plaintiff and defendant later found out that Unit 33E did not refer to the sixth floor.

In September 2011, the defendant requested Liu Kwee Tang to rectify the Options to Purchase. He suggested that the Option for the fifth storey should be for both 33D and 33E and there should be a new Option for the sixth storey, or that the Option for 33D should be rectified to include 33E and the Option for 33E should be rectified to describe the property as the sixth storey.

Lawyers' letters were exchanged between the plaintiff and defendant but the transaction dragged on.

In December 2011, the defendant wanted to complete the transaction for the fifth storey (33D and 33E) for $1.25 million but this arrangement was rejected by the plaintiff.

On July 2012, the plaintiff gave the defendant 21 days to complete the transaction, barring which the transaction would be terminated.

In the defendant's opening statement, the defendant said that both sides had mistakenly assumed that 33D was the fifth storey and 33E was the sixth storey. At the beginning, both sides had agreed that the selling price for each unit would be $1.25 million.

After both sides discovered that both 33D and 33E were on the fifth storey, the Options for both 33D and 33E no longer accurately embodied the actual agreements the plaintiffs had with the defendant. Thus, the defendant is entitled to seek a rectification.

Association will lose around $100,000

Liu Kwee Tang is a clan association for those with the surnames Weng, Hong, Jiang, Fang, Gong and Wang. The association’s premises are on the sixth floor of a building without lifts, and this has made it inconvenient for the elderly members and council members to get to. The association thus decided to sell the premises and buy a two-storey shophouse as a replacement.

Liu Kwee Tang chairman Ang Chee Guan, 65, said that the association had no choice but to go to court. The fifth storey unit was originally rented to a martial arts school. Because of the transaction, it had not renewed its lease and the place has remained vacant for more than a year. Therefore, even if the association wins the case, the association would need to pay tens of thousands in legal fees and deal with the loss of rental income amounting to $60,000 to $70,000, thereby facing a combined loss of around $100,000.

Liu Kwee Tang currently has more than 370 members with those over the age of 55 comprising around 70%. Among the more than 30 council members, two-thirds are aged between 60 and 80 years of age.

Ang said that before the case began, the council had identified several freehold shophouses in the Geylang area that could potentially be used for its premises, with selling prices of around $2 million. It wanted a two-storey shophouse so it could rent out one level for rental income to support the expenditures of the association.

As for its future plans, he said that the association will see if its financial situation allows it to buy new premises. "Property prices have gone up and the units we identified three years ago are selling for around $4 million now. Even if we sell our existing premises, we may not be able to afford them. We are now seeking the agreement of the other four owners of the building to install a lift."

With regard to why Liu Kwee Tang had refused to rectify the Options to Purchase at the beginning, he explained that at the time, they had considered that they would need to hire an architect and a surveyor to do an assessment, apply to the authorities, and call for an EGM to get the approval of members; all these would have taken many months. "We had wanted to sell the premises as soon as possible and use the proceeds to buy a Geylang shophouse. This was why we wanted the other party to execute the Option to Purchase based on the original conditions."

pohlh@sph.com.sg

Source: Lianhe Zaobao © Singapore Press Holdings Ltd. Permission required for reproduction.

One secretary 'can act for many firms'

Straits Times
23 Oct 2014
Mok Fei Fei

More important is the quality of the service provided, say industry players

A CAP on the number of firms that a company secretary can act for may not be necessary, say market players.

Much hinges on the quality of service offered, apart from the number of appointments the company secretary holds.

In an ongoing high-profile case involving former tour guide Yang Yin and a wealthy widow's assets, reports that Ms Lim Soh Sea - the company secretary of Mr Yang's company - also acts for more than 1,000 companies have raised questions over whether such a large number is appropriate.

But this number is not that unusual, market players say.

Many companies here often engage professional firms that provide corporate secretarial support services, instead of hiring a company secretary themselves.

A situation could thus ensue where the employee or director of the secretarial firm is on the books of a large number of firms.

Regulations here say every company has to appoint a secretary within six months of its incorporation.

The company secretary handles administrative matters such as keeping records, taking down minutes and filing returns promptly.

A check with the Accounting and Corporate Regulatory Authority (Acra) which regulates business entities said that it does not impose a cap on the number of companies a company secretary can act for.

"The Companies Act does not restrict or specify the number of companies that a company secretary can act for," said an Acra spokesman.

Other countries like Australia and New Zealand also do not have such rules, the spokesman added.

But market players say that there are safeguards in place to prevent abuse.

PwC Singapore, which provides secretarial services, said it does not have a limit for now.

"While we do not have a cap per se, we regularly review the chartered secretaries' portfolios to ensure that they can cope with the requirements of their clients, and that the quality of work is always maintained at a high standard," said Mr Melvin Poon, PwC Singapore's corporate support services leader.

Corporate lawyer Adrian Chan noted that the work of a company secretary is administrative in nature.

"I don't think a limit should be placed because it's not a good proxy for quality. If there is a strong team of people to support the company secretary, he can be just as competent, qualified and responsive in serving the clients."

Mr Robson Lee, a partner at law firm Shook Lin & Bok, said: "Theoretically, it may not be such an easy task monitoring 1,000 companies, but if he can do it, if there is no breach or default, who are we to question if he should not take on so many jobs?"

Corporate governance expert, Associate Professor Mak Yuen Teen of the National University of Singapore Business School pointed out that many companies that are formed could be paper companies that do not require much work on the part of the company secretary.

But if the firms are substantive companies, Prof Mak said it would be difficult to commit to so many.

"Even if those are paper companies, there's still the reputational risk that the company secretary has to bear if he spreads himself very thin in so many companies. The issue is whether the due diligence can still be carried out on his part."

Listed companies, however, face tougher standards.

For example, Acra said these include requiring the company secretary to be either a public accountant, a lawyer or a chartered secretary.

Any company secretary who fails to keep to prescribed deadlines for filing documents may also be debarred and prevented from taking on new appointments.

The experts say the onus is still on company directors, who have the fiduciary duty to act in the best interests of shareholders and the firm, to ensure company secretaries do their job and that things run smoothly.

feimok@sph.com.sg

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Judge urges caution in hiring of experts

Straits Times
15 Oct 2014
K.C. Vijayan

Careful thought needed before doing that in accident cases, thus saving costs

A JUDGE has urged parties in road accident cases to think carefully before hiring experts to shore up their cases, and save on costs.

Noting that there is an increasing reliance on such "reconstructionist experts", Justice Choo Han Teck said lawyers must "appreciate the kind of evidence and advice that experts provide" so that legal costs can be saved.

His remarks came when he dismissed a taxi driver's bid to pin some blame on an accident victim.

Justice Choo ruled that taxi driver Asnah Rahman was 100 per cent to blame for the accident which seriously injured then national serviceman Li Jianlin, 21, at a pedestrian crossing.

Mr Li was walking along the crossing in Bukit Batok West Avenue 5 on June 11 at about 10pm with the crossing lights in his favour when he was knocked down by the taxi driven by the defendant.

For dangerous driving, Madam Asnah, 58, was fined $2,400 and disqualified from driving for six months by a district court in 2012.

At issue in the High Court was whether Mr Li should be apportioned any blame before damages payable for the accident could be assessed.

His lawyer, Mr Eric Liew, argued that Mr Li did not contribute in any way to the accident.

The cab insurer's lawyer, Mr Anthony Wee, had produced an expert's report which said Madam Asnah's view of the incoming pedestrian was blocked by the railings on the road divider and that the curve of the road created a "stroboscopic effect" on her vision at the time of the accident.

Justice Choo said "even if these were true, they are red herrings".

"She cannot beat the red light even if no pedestrian was crossing," he added, noting the lights were against her for a long time.

Justice Choo said photographs and sketch plans can be obtained from police and, if a party disagrees, he is entitled to produce evidence of his version. But this kind of evidence is evidence of fact and may not require an "expensive 'reconstructionist' expert to produce", he said.

He noted that the opinion of an "expert" is also sought as to how the accident happened and who was at fault. "With respect, this is precisely the issue for the court to determine, and, unlike specialist medical cases, the court in traffic accident cases will be relying on the same evidence the expert relies on in determining how the accident occurred."

The judge also dismissed the suggestion that the victim's clothing might have made him poorly visible at the time of the accident.

The judge noted that Highway Code rules suggested that pedestrians should wear white or at least carry items that make them more visible in unlit roads at night.

But to insist that the victim wear high-visibility clothing did not make sense and is not the law, he said. "The courts cannot direct what pedestrians must wear," he added in judgment grounds released last week.

Justice Choo noted that times have changed and pedestrians these days often cross the road with heads down, looking at electronic devices. "Times and practices have changed, but road etiquette is not mere social etiquette. Proper observance of safety precautions can make a difference between safety and injury, or even life or death," he said.

Justice Choo added that the taxi driver as a professional driver should "lead the way in safe and courteous driving".

"There is no reason why they cannot be the role models for other drivers."

vijayan@sph.com.sg


Background Story

Justice Choo Han Teck said photographs and sketch plans can be obtained from police and, if a party disagrees, he is entitled to produce evidence of his version. But this kind of evidence is evidence of fact and may not require an "expensive 'reconstructionist' expert to produce".

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To view the judgment, click <here>.

Ex-Sembmarine finance chief slapped with 39-month jail sentence

Business Times
30 Oct 2014
Michelle Quah

[Singapore] FORMER Sembcorp Marine group finance director Wee Sing Guan pleaded guilty on Wednesday to a host of fraud charges relating to currency bets he took years ago that cost the group US$303 million in losses.

He was sentenced to 39 months' jail. Wee, 65, pleaded guilty to nine charges of falsifying the foreign exchange trade valuation reports of Jurong Shipyard, Sembmarine's wholly owned unit, of which he was a director.

He had originally been slapped with 57 charges, when he was charged in January this year. The prosecution, led by deputy public prosecutor Kevin Yong, chose to proceed on nine of the charges, taking the rest into consideration in their sentencing submissions. The offences, under the Penal Code, carry a maximum penalty of an unspecified fine and a seven-year jail term, for each charge.

Wee, represented by Julian Tay of Lee & Lee, was accused of failing to report the losses incurred on trading positions he held with various banks between 2005 and 2007.

According to the charge sheets, these were hundreds of millions of dollars' worth of marked-to-market losses that Wee had incurred on foreign exchange and option trade positions he held with a host of banks, including OCBC Bank, DBS Bank, BNP Paribas, Societe Generale and Standard Chartered Bank. He was charged some six years after his alleged wrongdoing first came to light.

Sembmarine had announced in October 2007 that Wee, then its group finance director, had made large unauthorised currency bets in the euro and the US dollar with 11 banks using the account of Jurong Shipyard.

The news stunned the industry and financial markets.

Soon after its announcement, Sembmarine was locked in a bruising battle with the banks to reduce its losses, with Sembmarine arguing that the transactions were invalid and not binding. It fired Wee from the group, while Jurong Shipyard said that it was lodging a complaint against him with the Commercial Affairs Department.

In February 2008, Sembmarine announced that it had reached full and final settlements with nine of the 11 banks, for just US$9.1 million. That left it fighting a US$50.7 million claim by BNP, while trying to recover another US$198.9 million that it had paid to SocGen. BNP had threatened to wind up Jurong Shipyard, but lost that court battle; it settled the claim for US$30 million in December 2008.

During that hearing, Wee's unsigned affidavit was produced in court; in it, he claimed that BNP executives had pressured him to take up some "very aggressive instruments" to cover up his initial losses. In the affidavit, he claimed that Jurong Shipyard's management had no idea he was involved in such risky trades until the middle of October 2007.

But his lawyers argued that their client's acts and foreign exchange transactions were, at all material times, authorised and mandated by the board of Jurong Shipyard. In September 2010, Sembmarine and SocGen agreed to settle the claim for US$40 million, without any admission of liability by either side.

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SMC witness accused of overcharging

Straits Times
23 Oct 2014
Salma Khalik

DR HONG Ga Sze was an expert witness for the Singapore Medical Council (SMC) in the high-profile disciplinary hearing two years ago that saw Dr Susan Lim convicted of misconduct for overcharging the Queen of Brunei's sister.

In an ironic twist, he is now the subject of a similar complaint - filed with the medical professional watchdog by Dr Lim's husband, Mr Deepak Sharma.

The Straits Times has learnt that Mr Sharma made the complaint in April after he and his wife received a bill of $42,800 to cover Dr Hong's fee as an expert witness.

But this was slashed to $5,000 by the High Court last month.

Mr Sharma did not complain about the $12,145 charged by the other expert witness for the SMC, Dr Tan Yew Oo. This bill was cut to $9,000 by the High Court, which found his fees "relatively high" compared with those charged by other experts in SMC disciplinary hearings. Dr Hong, a general surgeon, had billed the SMC, which passed the bill on to Dr Lim. It was made up of:

• $14,000 for giving expert evidence on April 8, 2010;
• $6,000 for standing by for the trial on Feb 4, 2010;
• $14,000 for preparation from March 18, 2009, to Feb 3, 2010, for pre-trial discussions with the lawyers;
• $6,000 for preparation of the four-page trial report.

The remaining $2,800 is for the goods and services tax.

In Dr Lim's trial, Dr Hong had stated in his report that a complex surgical procedure such as mastectomy followed by breast reconstruction would take six to 10 hours. The fees for two surgeons in such a procedure would come to about $14,000.

As Dr Lim had not operated on her royal patient, Dr Hong concluded her bill charged to the patient should have been less, and added that it would be "difficult to justify anything beyond fees of $1,000 to $2,000 a day".

In reducing Dr Hong's bill, High Court Assistant Registrar Jacqueline Lee found that his $14,000 fee for "giving evidence on just one day is very high", because "the expert evidence that Dr Hong gave did not involve complex, technical or medical expertise". She added that the $6,000 for the trial report was "disproportionately high" and the $6,000 just for standing by was "also exorbitant".

Dr Tan had charged $1,000 for his trial report.

An SMC spokesman said: "It is the policy of the SMC not to comment on the existence or otherwise of any disciplinary proceedings."

The Straits Times understands that the matter has been put before the SMC's complaint committee, which will decide if it has merit and deserves to go to a disciplinary tribunal for hearing.

salma@sph.com.sg

www.facebook.com/ST.Salma

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Restaurant chains back in court again

Straits Times
15 Oct 2014
Selina Lum

Soup Restaurant claims Dian Xiao Er overstayed on its premises in VivoCity after sublease ended

RESTAURANT chains Soup Restaurant and Dian Xiao Er are fighting in court again, following a legal battle in 2012 which ended with the two previously related businesses going their separate ways.

The current fight is over 69 sq m of shop space - a part of the Soup Restaurant outlet at the VivoCity mall it had sublet to its next-door neighbour, herbal roast duck chain Dian Xiao Er.

The two restaurants leased their premises separately from the landlord, VivoCity.

However, in 2009, Dian Xiao Er wanted to expand and asked for additional space from Soup Restaurant, which at the time was its parent company. Dian Xiao Er used the sublet space to expand the dining area and the kitchen of its restaurant.

Now, Soup Restaurant, which is known for its samsui ginger chicken, is alleging that Dian Xiao Er remained unlawfully on the premises for two years as it refused to move out when the sublease came to an end in October 2012.

Dian Xiao Er, however, contends it was entitled to stay as there was an automatic renewal of the sublease after its expiry.

However, it handed back the space to Soup Restaurant on Oct 1.

A four-day trial started in the High Court yesterday to determine whether Dian Xiao Er's parent company, YES F&B, is liable to Soup Restaurant for unlawful possession.

The case hinges on the court's interpretation of the sublease agreement - whether it came to an end as claimed by Soup Restaurant or was automatically renewed as claimed by Dian Xiao Er.

If Soup Restaurant wins, it will ask for an order that Dian Xiao Er give an account of its profits during the unlawful stay.

It is seeking damages, to be assessed by the court, including rent, potential loss of profits, and interest.

The Soup Restaurant group was the majority shareholder of Dian Xiao Er for six years from 2006. The other 49.02 per cent was held by the married couple who founded Dian Xiao Er.

In 2010, the couple sued Soup Restaurant, alleging minority oppression. The dispute was eventually settled in 2012, with the couple buying over Soup's stake.

The Dian Xiao Er outlet at VivoCity started operating in October 2006; Soup Restaurant took up the space next to it in October 2009. However, their lease agreements with VivoCity were independent of each other.

On Oct 18, 2012, when Soup Restaurant's lease expired, it signed a new lease. Its lawyer, Mr Edwin Tong, argued that the termination of the head lease must result in the sublease coming to an end.

But Dian Xiao Er, represented by Mr Adrian Tan, argues the opposite - that its sublease with Soup was also renewed when the latter signed a new lease.

selinal@sph.com.sg

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Accountants set to come under new anti-money laundering, terrorism financing rules

Business Times
30 Oct 2014
Michelle Quah

[Singapore] PROFESSIONAL accountants will soon have a new set of obligations to meet, in terms of the controls and procedures they will have to put in place to counter money-laundering (ML) and terrorism-financing (TF) efforts.

These enhanced mandatory requirements come in the form of the new Ethics Pronouncement 200, which will become effective in November - an effort in line with Singapore's endeavours to beef up its defences on this front.

Issued by the Institute of Singapore Chartered Accountants (Isca), the new pronouncement has been benchmarked to international best practices and the latest Financial Action Task Force (FATF) Recommendations.

It states that professional accountants here, including public accountants, will need to abide by enhanced mandatory requirements on implementing controls and procedures for anti-money laundering (AML) and countering the financing of terrorism (CFT).

The pronouncement is also being adopted by the Accounting and Corporate Regulatory Authority (Acra), and will be applicable to public accountants and accounting entities registered under the Accountants Act who are regulated by Acra.

Non-compliance with the requirements under the new pronouncement may result in an investigation into the public accountant's or professional accountant's conduct by Acra or Isca, respectively.

"The economic and social consequences of money laundering and terrorist financing can be devastating," said Gerard Ee, Isca president. "With increasing calls internationally for professional accountants to do more to combat money laundering and terrorist financing, the pronouncement will be very useful to the accountancy profession in Singapore."

The pronouncement is modelled on recommendations by the FATF - an intergovernmental organisation formed in 1989, which Singapore has been a member of since 1992.

The FATF's recommendations are a framework of measures that countries ought to implement in order to combat money laundering and terrorist financing, and the financing of proliferation of weapons of mass destruction.

The recommendations were most recently modified in 2012, with inputs from governments, the private sector and civil society; the revised recommendations provide authorities with a stronger framework to act against criminals and address new threats to the international financial system.

Singapore already has guidelines and laws that govern the behaviour of professional accountants in these areas.

Currently, all professional accountants are required by existing legislation to report suspicious transactions. Public accountants also need to adhere to the Code of Professional Conduct and Ethics for Public Accountants and Accounting Entities under the Accountants Act, which requires them to undertake certain client assessment procedures relating to illegal activities such as money laundering.

Public accountants who perform audits also have to abide by the guidelines issued previously by Isca - that is, the Statement of Auditing Practice (SAP) 1 Guidance to Auditors on Money Laundering and Terrorism Financing.

The new Ethics Pronouncement 200 goes further in that it covers all professional accountants here.

The following three segments of the pronouncement will, however, become effective only in May 2015, to allow time for the professional firms to be familiar with and implement the new controls and procedures across the firm:

• requirements for accounting entities to have the systems and controls in place to address ML/TF concerns;
• requirements for public accountants and accounting entities to have specific customer due diligence and record-keeping measures when providing certain services; and
• recommendations on reporting procedures, training, compliance, hiring and audit.

Kenneth Yap, chief executive of Acra, said: "Public accountants are in a unique position to safeguard the public interest by acting as sentinels against money laundering and terrorist financing in Singapore. This pronouncement is timely in the light of recent international developments, and will do much to ensure the integrity and independence of public accountants."

The new pronouncement follows the completion of a national risk assessment of money laundering and terrorist financing in Singapore in January this year. That assessment noted that, while many sectors have a robust AML and CFT regime in place, there were a number of areas where controls could be strengthened, including within the professional accountancy sector.

The pronouncement was developed by an Isca working group comprising representatives from across the public accounting sector and in consultation with the relevant regulators, such as the Monetary Authority of Singapore (MAS), Acra and the Commercial Affairs Department (CAD) of the Singapore Police Force.

To support the accountancy profession in implementing the controls and procedures, Isca will be holding seminars and develop resources to support the accountancy profession.

Singapore has been beefing up its resources for AML and CTF on several fronts.

MAS recently put out a consultation paper, based on FATF recommendations, proposing that financial institutions perform enhanced checks on customers. These include taking a risk-based approach for certain categories of what are termed "politically exposed persons" - people entrusted with prominent public functions, such as government ministers, senior public servants and top party officials.

The CAD also announced recently that it had tripled its financial investigation resources, with dedicated branches for international cooperation and terrorist financing, investigations into proceeds from both domestic and overseas criminal activity, and serious tax crimes.

michquah@sph.com.sg

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Faster way for cabbies to settle disputes with taxi firms

TODAY
23 Oct 2014
Saifulbahri Ismail

Parties go from pre-mediation, mediation to adjudication, where needed, in more structured system

SINGAPORE — Taxi drivers can now turn to a more structured system to help settle disputes with their taxi companies quickly and amicably, with the Taxi Industry Mediation system.

A collaboration between the Land Transport Authority (LTA), taxi firms and the National Taxi Association (NTA), the system was launched in July and is on trial for six months.

The NTA receives about 10 cases a week on a range of issues that drivers face with their taxi companies, insurance firms or between drivers themselves. Cabbies often get into disputes over the amount they have to pay in the event of an accident, and a top complaint is drivers feeling they were unfairly terminated due to service lapses.

 “For example, one was rude to the customer or didn’t fulfil the booking on time, and after one or two times, the company may decide to terminate the agreement and, therefore, one cannot drive with this operator anymore,” said NTA executive adviser Ang Hin Kee. “That impacts their livelihood, and many times it has been (cases of) it’s your word against mine.”

A better way, he said, is to have parties sit down together through a neutral party, to work out the best solution, rather than people feeling aggrieved that his or her version of the facts was not properly addressed.

The association first mooted the mediation idea last year. Under the system, if parties cannot come to an agreement, the NTA would refer the case to the LTA for pre-mediation. If it is not resolved at pre-mediation, the LTA can refer it to the Singapore Mediation Centre for professional help. If there is still no resolution, the case can go to a civil court for adjudication.

When the NTA makes a case referral, the LTA requires up to two weeks to evaluate the legitimacy of the dispute before convening the pre-mediation session with the parties. In nearly three months since the trial started, one case was referred to LTA. The case was resolved amicably during the pre-mediation stage.

Mr Harry Ng, a taxi driver who works with ComfortDelGro, said: “Let’s say the taxi drivers have any disputes with the company, they know where to go to look for help. This is fair to the drivers ... at least it’s not one-sided.”

Mr Ang added: “With some precedent cases that have been settled through the mediation, we hope that future cases can take reference from these and, therefore, disputes can be resolved quickly because (those involved) know now that there has been a case of this nature resolved before in this manner.”

With a more structured system in place, the NTA also expects to see fewer disputes in future.

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The case for managing Reits internally

Business Times
15 Oct 2014
Bobby Jayaraman

MAS' proposed enhancements of Singapore's Reit sector are timely, but the sector needs to beef up governance to win wider acceptance and investors' confidence

[Singapore] AFTER a long wait, the Monetary Authority of Singapore (MAS) has finally come out with proposed enhancements to the Reit regime in Singapore. The enhancements, while encouraging greater accountability and transparency of Reits, are unlikely to materially change the Reit landscape here.

The only way for S-Reits to gain full investor confidence is if they are internally managed with the full weight and accountability of an experienced team. Major US Reits such as Kimco, Taubman and Vornado are helmed by their founders with significant stakes in the Reits. Investors in such Reits are able to benefit from an experienced and dedicated executive team whose interests are fully aligned with theirs. These Reits have greater leeway in terms of leverage, geographical diversification and their ability to develop properties than S-Reits, but the reason for this is in large part due to the quality of their internal management and the trust it engenders among investors. Despite higher operational risks relative to S-Reits, most major US Reits trade at low yields of around 2.5 per cent to 4 per cent, versus more than 5 per cent for S-Reits.

Link Reit, listed in Hong Kong, is a good example of a Reit that has benefited from being internally managed. It is the largest in Asia and usually trades at sub-4 per cent yields (despite its mostly leasehold properties), unlike other externally managed Reits in Hong Kong, which trade upwards of 5.5 per cent. Link Reit has a deep management pool with high inside ownership of shares. Despite a very low leverage of 11 per cent to 12 per cent and a mere three acquisitions since listing in 2005, it has managed to show double-digit DPU growth year after year.

In contrast, S-Reits - despite more than a decade of existence - continue to be managed on a fee basis by a separate company with a small team. There is virtually no inside stock ownership in some Reits; even in the bigger ones, many CEOs have only a token ownership. Quality of management is another major issue; it is unlikely that a three- to four-person outfit managing a small portfolio can attract high-quality real-estate talent.

Such drawbacks of externally managed Reits are a major factor keeping S-Reits from trading at higher valuations and attracting a larger investor base; for example, Ascendas Reit, one of the oldest and largest S-Reits, has a mere 8,500 unit holders, despite high-quality properties with sustainable cash flows.

I would urge the MAS to at least test a single case of an internally managed Reit along the lines of Link Reit so investors can see the difference for themselves.

The next best option to an internally managed Reit is an externally managed one with a structure that aligns with investor interests as far as possible. In this context, let us look at some of the major (in my view) enhancements proposed recently by the MAS.

Fee structure: The fee structure should be such that the management team is paid reasonably for the day-to-day work and is incentivised to create long-term value for unit holders. The base fee currently paid to Reit managers is a fixed percentage (usually 0.3 per cent to 0.5 per cent) of the value of the properties. However, just increasing the size of the asset base does not mean proportionally more work for the management; nor does it automatically create any value for investors. For example, a S$500 million increase in property base - assuming a 0.5 per cent base fee on deposited property - increases the annual base fee by S$2.5 million; does the Reit really incur S$2.5 million of extra costs per annum to manage the expanded property portfolio? Moreover, many Reits - industrial Reits in particular - rent out the properties under master leases, which entail minimum costs and management effort at the Reit level. Base fees should only be increased if there is an actual increase in the costs required to manage a property portfolio. It should not be used for profit-making. Property value increases due to higher valuations should also not merit increased base fees.

The performance fee is best linked to a combination of DPU and share price growth. ( DPU is preferable to NAV as it is actual cash in hand; NAV depends on property valuations, which are a subjective assessment by property valuers.) Reits that try to increase DPU growth using undue leverage to acquire properties or borrow funds for dividends will suffer a hit to their share price and, in turn, their performance fees.

Acquisition and divestment fees are best determined on a cost-recovery basis as proposed by the MAS, rather than the current practice of a fixed fee. The goal of the Reit manager is to increase the DPU for unit holders on a sustainable basis; whether this is done through asset enhancements, rentals reversions or acquisitions is left to the judgment of the Reit manager, for which he or she is already compensated and hence does not require a separate fee.

Leverage limit: The proposed leverage limit of 45 per cent is on the high side. S-Reits calculate leverage based on the latest property valuations, which usually increase over the years; in a bull cycle, they increase on a monthly basis! Thus it can be argued that leverage is usually understated on a Reits balance sheet, as property appraisers tend to get carried away with valuations during an up-cycle. To avoid undue risks during down cycles, it might be more prudent to bring down the allowable leverage limit to 40 per cent or incorporate maximum limits for interest coverage ratio (for example, >4) and net debt to EBITDA (for example, <6). It is not necessary for a Reit to gear up heavily to create value for unit holders; as mentioned before, despite a low leverage, Link Reit has created tremendous long-term value for shareholders.

Development limit: In my view, it is best to keep the development limit at its current level of 10 per cent. Most Reits undertake periodic and intensive asset enhancement to increase rentals. If done creatively, this is enough to grow DPUs in a sustained way. Investors do not want Reits to turn into pseudo property developers. The Singapore Exchange is full of property developers of all shapes and sizes and anyone wanting exposure to this activity has no dearth of opportunities. Increased property development activities will lead to higher-leverage, cyclicality risks and more complex balance sheets taking away from S-Reits the one big thing in their favour - simplicity.

Income support: How many investors would buy a condo in Sembawang at the price of an Orchard road condo if the seller offers to pay three years of Orchard Road-level rentals? Not many, I would think. However, the same investors would likely have no qualms buying into Reits that use the same idea.

Reits were established to provide stable long-term income for investors; thus any asset that has not stabilised to its normal earning power should not be injected prematurely into a Reit. Reit sponsors have, many a time, taken advantage of income support to unload assets to their Reits in highly uncertain times (for example, Keppel Corp's disposal of Ocean Financial Centre to K-Reit at the height of the Euro crisis in 2011).

The Singapore property market is highly cyclical. There is no reason to believe that a new office building will "stabilise" over the next two or three years and start earning higher rentals. Depending on the supply-demand situation at that time, rentals might just as easily move in the opposite direction as has happened umpteen times before. Unfortunately, no amount of disclosure on income-support arrangements by the Reit will be of much use as few investors look beyond the headline yields.

I would like to propose other investor-friendly enhancements for the MAS to consider:

Share buybacks: Make it mandatory for all Reits to obtain share-buyback mandates and use them aggressively when share prices fall below stated NAV. This would serve two purposes: Investors would be assured that the Reits' NAVs are real and they would get higher DPUs as the number of outstanding units decrease. This would also discourage Reit managers (and their valuers) from using aggressive cap rates to inflate valuations and thus, the NAV. There have been cases in the past where Reits trading below book have made marginally yield-accretive acquisitions when the far better use of their cash would have been to simply buy back their shares and increase DPUs for investors.

Scrip dividends: Disallow scrip dividend scheme for Reits. The central purpose of a Reit is to provide regular and sustainable cash income to unit holders and there should be no need for a well-managed Reit to resort to scrip dividends under normal market conditions. Reasons given by Reits such as need to "conserve cash" or to reduce investor "transaction costs" are weak arguments that do not make up for the constant dilution suffered by investors that opt for cash instead of scrips. Consistently having to pay cash to investors will encourage Reits to practise good capital management.

MAS' proposed enhancements to strengthen the Reit sector are timely. As Singapore's Reit sector matures, it needs to get to the next level in terms of governance to instil greater investor confidence and gain wider acceptance.

The writer is a private investor and author of 'Building Wealth Through Reits'

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SGX exploring crowdfunding platform for startups: sources

Business Times
30 Oct 2014
Kenneth Lim

But challenges such as investor protection abound, say corporate lawyers

[Singapore] The Singapore Exchange (SGX) is exploring the feasibility of an equity crowdfunding platform for early-stage companies, and has formed a team focused on small and medium-sized enterprises (SMEs), industry sources told The Business Times.

Former SGX head of issuer regulation Mohamed Nasser Ismail is leading the effort. With his move, SGX has restructured part of its regulatory arm, dividing the functions by listing and post-listing instead of Mainboard and Catalist. Heading initial public offering (IPO) admissions now is Frieda Choong, while former head of Catalist regulation June Sim now leads listing compliance.

"SGX is constantly engaging our stakeholders and assessing the market to improve access to capital," the exchange said in response to queries. "We have established a new team to primarily focus on the needs of SMEs. The team is headed by Mohamed Nasser Ismail, who formerly led the Issuer Regulation Unit. While we have no updates on any specific plans at this time, we will certainly share them when we have significant developments in this area."

Industry professionals expressed guarded enthusiasm about the idea of equity crowdfunding, which was seen as positive only if retail investors could be adequately protected.

The idea, which has been floated by SGX with the industry, is to potentially have a platform for startups to raise capital without having to go through the costly process of listing.

"Startups and SMEs often have a lot of difficulty raising money," TSMP joint managing director Stefanie Yuen Thio said.

"Given rising compliance costs in an increasingly regulated global economy, a listing may not be feasible or cost-effective for businesses that do not have a minimum scale. Having an alternative platform where they can raise seed capital from sophisticated investors who are able to assess the investment risks, could be a good bridge before these companies are able to tap the capital markets via an IPO."

But whether to allow retail participation, and if so, how to protect mom-and-pop investors from the risks in early-stage investing could be a challenge.

"The big issue about crowdfunding is how to protect retail investors who may not have the ability to make well considered investment decisions," Ms Yuen Thio said. "The very term 'crowdfunding' conjures images of a large pool of public investors, which is exactly where the biggest risk lies."

Enforcement across jurisdictions, which would typically not be a problem for crowdfunding as long as shares are not involved, will also have to be addressed, said Wong Partnership partner Joy Tan.

"Currently crowdfunding per se isn't illegal as long as it doesn't involve any regulated activity," she said. "The challenge is to try to ensure the same level of regulatory protection and supervision in the instance of crowdfunding for regulated activities."

Allen and Gledhill partner Adrian Ang said a platform could help investors know where to look for a certain class of investments.

"It's still at an early stage so we don't know what's the likelihood of success," he said. "Conceptually it sounds like a good idea, because we're always telling people to be more creative, more entrepreneurial... but there could potentially be risks involved such as counterparty fraud."

Singapore is not the only country looking at the issue - Malaysia is currently proposing a framework for eqity crowdsourcing - but SGX is believed to be the only national stock exchange known to be looking at a potential foot in that door.

SGX shares closed at S$6.91 on Wednesday, down 0.4 per cent or 3 Singapore cents.

kenlim@sph.com.sg

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Blogger accused of painting 'distorted picture' of judiciary

Straits Times
22 Oct 2014
Selina Lum

GAY rights activist Alex Au had made it seem that there is a "systemic bias" in Singapore's judiciary against cases involving homosexuality.

This was the argument made by Senior State Counsel Tai Wei Shyong yesterday as he urged the High Court to hold Au in contempt of court for two articles he posted on his blog, Yawning Bread, a week apart last year.

Acting for the Attorney-General (AG), he said Au's articles weaved conjecture with fact to "paint a distorted picture" which posed a real risk of undermining public confidence in the judiciary.

But Au's lawyers, Mr Peter Low and Mr Choo Zheng Xi, accused the AG of being "trigger-happy" in taking their client to court on "imputation, innuendo and insinuation". After hearing both sides, Justice Belinda Ang said she will give her decision at a later date.

The first article, published on Oct 5 last year, referred to two separate constitutional challenges against Section 377A of the Penal Code, which criminalises sex between men. The first challenge was by Mr Tan Eng Hong in 2010 after he was caught with another man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.

In his article, Au wrote that "strange calendaring" allowed the couple's case to be heard first - and reach the Court of Appeal earlier - even though Mr Tan's challenge was launched first.

Au claimed that Chief Justice Sundaresh Menon wanted to be on the three-judge Court of Appeal panel to hear the constitutional challenge against S377A. However, he could not do this in the earlier case owing to a conflict of interest, Au wrote, as Mr Menon was the AG when Mr Tan's criminal case was before the courts.

Yesterday, Mr Tai alleged that this article insinuated that there was a sinister plan by the Supreme Court to manipulate hearing dates so that CJ Menon could hear the gay couple's appeal.

But Mr Choo argued that all Au said was that CJ Menon was interested in hearing the case because it was important. Nowhere did Au suggest that this was improper or that CJ Menon was partial or had a vested interest in the outcome.

The second article referred to legal proceedings brought by a former employee of department store Robinsons, who claimed he was harassed into resigning because he is gay. Au, 61, wrote in his blog that he did not have high hopes for the case as his confidence in the judiciary was "as limp as a flag on a windless day".

Mr Tai said Au was implying that the judiciary was biased against homosexuality issues and that the courts decide cases based on extraneous considerations.

But Mr Low argued that while Au's language may be colourful, the article was fair criticism and so did not amount to contempt.

If Au is found to be in contempt of court, he could be fined, jailed or both.

selinal@sph.com.sg

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S'pore firm in Vanuatu airport saga clears the air

Straits Times
15 Oct 2014
Karamjit Kaur

It says it bagged contract fairly and country's new govt is keen on project

A SINGAPORE firm mired in controversy after landing a mega deal to build a new airport in Vanuatu says it has done nothing wrong.

Since July last year when Singapore-registered Vanuatu Trade Development agreed, in a deal with the South Pacific republic, to pump an initial US$350 million (S$445 million) into the project, it has come up against obstacle after obstacle.

First, several Vanuatu politicians protested against the government's decision to award the contract to a firm which they said had no aviation background. Then came a change in government, with the new leadership reportedly ditching the project altogether. Along the way, local media also suggested there was no proper competitive tendering process, putting into question the contract's validity. It was also reported that the Singapore company intends to sue the Vanuatu government.

Clearing the air for the first time since the saga went public, businessman David ak, 50, managing director of Vanuatu Trade Development, told The Straits Times the reports were not true.

The new government was keen on the project, he stressed.

He also did not think any lawsuits would be necessary.

The Straits Times understands that if the contract is not honoured, his firm can sue the government for US$350 million, the initial investment amount pledged.

But Mr Mak, also the country's consul in Singapore, said: "We are committed to this project and committed to growing Vanuatu's economy so I don't even want to think of that and I do not believe we will get to that."

Admitting, however, that the project has stalled, he added: "We are not quite sure what the problem is and why the stalemate, but I have met the new prime minister and he is keen on the project."

He is now trying to get details from the new government on plans going forward and when work can start.

Comprising over 80 islands, Vanuatu has over 220,000 inhabitants and has been run by Prime Minister Joe Natuman since May. It could choose to upgrade its existing airport, rather than build a new one. Vanuatu officials could not be reached for comment.

Mr Mak, who has stakes and management positions in several other firms, including agriculture firm Rock International Tobacco, was invited by the Vanuatu government to explore ways to develop the country's agriculture sector and economy two years ago. Discussions led to plans to build a new two-storey international airport, as well as a nearby town with hotels and housing.

Mr Mak said his firm, which was up against several others, including developer Shanghai Corporation, bagged the contract fairly. "We were picked because ours was the best proposal; a 50-year deal to build, operate and then transfer the airport back to the government. This way, the government does not need to spend, and we recover our investment from operating the airport."

He added that while other firms had proposed upgrading the existing airport, his company - a consortium of industry aviation and construction heavyweights - was willing to fund a new "airport city". His partners include aviation services company Hermsley, Leading Edge Aviation Planning Professionals, engineering firm Mott MacDonald and architectural firm Woods Bagot, he said.

karam@sph.com.sg

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Singapore Law Watch
30 Oct 2014
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'Beef up Bill to better aid trafficked persons'

Straits Times
22 Oct 2014
Lim Yi Han

Proposed law needs more clauses, says activist group

A PROPOSED law to fight human trafficking must be beefed up to better protect victims, an activist group said yesterday.

The Stop Trafficking SG group, comprising six non-government organisations (NGOs) and advocacy groups, repeated its call for more clauses to be included in the Prevention of Human Trafficking Bill.

It said at a press conference that the Bill is a "very good first step" but not comprehensive.

Among other things, the group - which includes Humanitarian Organisation for Migration Economics (Home) and Transient Workers Count Too (TWC2) - wants victims to be shielded from prosecution for immigration infractions and given the right to continue working while their cases are being dealt with.

It also called for a clearer definition of what constitutes a human trafficking case.

Mr Jolovan Wham, executive director of Home, said: "There is concern that if the Bill is too victim-centric, people may identify themselves as victims. (But) we cannot deny rights to a majority because we are afraid that a minority would identify themselves as victims when they are not."

Mr John Gee, head of research at TWC2, said: "We don't want people to come forward and then feel that they are going to be thrown out of the country."

Tabled by Mr Christopher de Souza, an MP for Holland-Bukit Timah GRC, the Bill was introduced in Parliament on Oct 7.

Mr de Souza told The Straits Times yesterday: "I thank the NGOs for their compassion for the victims, which I share. Some of these concerns were raised during the public consultations and were considered very seriously during the drafting of the Bill. What was operationally possible was put in."

He added that the Bill is very clear on its definition of human trafficking and is consistent with international standards. Measures to protect the victims are also included.

But when it comes to offering work or immigration status, Mr de Souza noted that such individuals should be considered on "a case-by-case basis".

"The trafficked persons I have spoken with shared that they are afraid to work and that they would rather continue staying in the safe house until investigations are concluded," he said.

In June, the annual Trafficking In Persons report by the United States government placed Singapore in Tier 2 of its four-tier ranking. This means Singapore has not fully complied with minimum standards to curb trafficking.

The second reading of the Bill is expected to be in the first week of next month.

limyihan@sph.com.sg

 

 

 

*****************Background Story *****************

 

CANNOT DENY RIGHTS

There is concern that if the Bill is too victim-centric, people may identify themselves as victims. (But) we cannot deny rights to a majority because we are afraid that a minority would identify themselves as victims when they are not.

- Mr Jolovan Wham, executive director of Home, on the human trafficking Bill

CONCERNS CONSIDERED

I thank the NGOs for their compassion for the victims, which I share. Some of these concerns were raised during the public consultations and were considered very seriously during the drafting of the Bill. What was operationally possible was put in.

- MP Christopher de Souza, who tabled the Bill

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Court battle over WP town council's CNY fair begins

Straits Times
15 Oct 2014
Walter Sim

NEA lawyers claim it was never given the permit to run 'temporary fair'

A TRIAL involving the Workers' Party (WP) town council began yesterday, with the National Environment Agency (NEA) lawyers saying it was never given a permit to run a Chinese New Year fair in January.

Still, the Aljunied-Hougang-Punggol East Town Council (AHPETC) went ahead with it in Hougang Central, a district court heard.

The event ran from Jan 9 to Jan 30, with five stalls, selling festive decorations, cookies and potted plants, among other things, between blocks 811 and 814.

This, the lawyers argued in their opening remarks, constituted a "temporary fair".

As such, it contravened Section 35 of the Environmental Public Health Act, which states a permit is necessary for "any temporary fair, stage show or other such function or activity".

But the AHPETC, whose chairman is Ms Sylvia Lim, is disputing NEA's argument. Its lawyer Peter Low pointed out that it was a "mini-fair" or an "event", and hence did not require a permit.

He also said he would seek clarification from the NEA on why it was necessary to get the Citizens Consultative Committee's (CCC) approval when applying for such a permit. The CCC in question was the Bedok Reservoir-Punggol CCC, which Mr Low told the court was chaired by a People's Action Party grassroots leader.

The case before District Judge Victor Yeo started from a letter the town council wrote to the NEA on Dec 20 last year, asking if a permit was required for the Chinese New Year (CNY) event.

The NEA said "yes" three days later, and e-mailed to the town council application forms for a "trade fair permit" and a "trade fair foodstall licence".

On Dec 24, AHPETC replied that the forms were "unsuitable", given that it was organising and operating the event by itself.

NEA reiterated that a permit was required and the town council submitted the forms. But it struck off the words "trade fair" and substituted them with "event". It also stated the event would be held from Jan 10 to Jan 30 as opposed to Jan 9 when it actually began.

On Jan 9, the NEA told the town council via e-mail that the application was incomplete and could not be processed.

The AHPETC did not respond to the e-mail, nor to a subsequent warning to stop the event.

NEA prosecutor Isaac Tan did not elaborate on the missing documents in the application.

Mr Tai Ji Choong, who is NEA's director of environmental health, told the court that a permit was required for temporary fairs so that "there would not be disamenities caused to the community". These include noise nuisance, pest infestation and food hygiene issues.

During cross-examination, Mr Low wanted Mr Tai to explain why it was necessary to get the CCC's approval as a condition for the permit.

The judge, however, agreed with Mr Tan's objection that the issue surrounding the conditions for a permit should not be argued in the present trial but at a judicial review.

Mr Tan also argued that the matter of not applying for a permit was one of "strict liability". Citing littering as an example, he said whether or not one intended to litter was immaterial.

He also said that since the AHPETC did not appeal against its rejected application, it should not use the court to find out why it was not given the permit.

Mr Low later showed the court a revised trade fair application form dated July 2008, which states "only grassroots organisations, town councils and charitable, civic, educational, religious or social institutions are allowed to hold fairs".

But the forms the AHPETC received last December did not have the words "town councils".

Mr Low asked when and why the change was made. Mr Tan objected, saying it was irrelevant as the issue before the court is whether the event needed a permit.

If found guilty, the town council can be fined up to $1,000 and, for subsequent convictions, a fine not exceeding $4,000 and/or a jail term of up to three months.

The trial continues today.

waltsim@sph.com.sg

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Tribunal: Lawyer abused his position in company

Straits Times
29 Oct 2014
K.C. Vijayan

A LAWYER probed for professional misconduct will have to face a Court of Three Judges after a tribunal found he had abused his position as a company director and not acted in the best interests of his client.

Mr Pascal Netto had taken out about US$158,000 (S$201,000) in loans without the knowledge of the firm's owner and subsequently repaid them, among other things.

The three-judge court is the apex body to deal with lawyer misconduct and can suspend, fine, censure or strike off the rolls a lawyer if he is guilty, or acquit him if he is not guilty.

The disciplinary tribunal, appointed by Chief Justice Sundaresh Menon and comprising retired High Court judge Lai Siu Chiu and lawyer Tan Gee Tuan, rejected Mr Netto's claim that he was entitled to make the loans to himself as a company director.

"There were no board resolutions authorising the 14 loans and had he not repaid the loans before they came to the complainant's knowledge, he could have been liable to prosecution for criminal breach of trust... as a director," said the tribunal in its report released yesterday.

Mr Netto, 68, had been approached in 2010 by Ukrainian businessman Volodymyr Bandurchenko, who sought a shelf company for his commercial requirements. He bought a company owned by Mr Netto and his wife for US$8,000, and renamed it Welldrill Pte Ltd where the couple would remain as nominee directors and registered shareholders and hold shares on trust for the owner.

Among the conditions, the couple would not be involved in the management of Welldrill and Mr Bandurchenko brought in a third director, one Ms Olga Volnova, to help in managing the businesses.

The couple signed a declaration of trust in favour of Mr Bandurchenko. The tribunal found that Mr Netto had drafted this document as a lawyer.

The Law Society, represented by lawyer Shashi Nathan, prosecuted six charges against Mr Netto. Mr Netto's lawyers, Senior Counsel Chelva Rajah and Mr Prabhakaran Nair, countered that all his alleged misdeeds were done as a company director and corporate secretary, and not as a lawyer.

They argued that Mr Bandurchenko had filed a court suit for the alleged misdeeds which was settled by a consent judgment in the High Court in 2012 and urged that the charges be dismissed.

The tribunal was not convinced and found that the six charges were supported by the evidence.

It ruled that Mr Netto's act "of taking monies from Welldrill's bank accounts without the knowledge or consent of (Bandurchenko) reflects poorly on his integrity as a person and a (lawyer)".

The tribunal found that Mr Netto did not at any time inform Mr Bandurchenko that he was acting as a private individual in their dealings on Welldrill, and not as a lawyer. It made clear that the Legal Profession Act would still apply if he was "acting dishonourably" in his personal capacity, as he claimed, and not as a lawyer.

vijayan@sph.com.sg

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SMC fines doc for giving wrong drug and covering up

Straits Times
22 Oct 2014
Salma Khalik

Patient given drug he was allergic to, and an antidote without his knowledge

A DOCTOR who wrongly gave a United States merchant marine a drug he was allergic to and covered this up has been fined $10,000 for professional misconduct by the Singapore Medical Council (SMC).

Dr Kevin Teh Tze Chen also gave the patient an antidote without his knowledge and continued with a liposuction treatment.

As a result, the patient, Mr Michael Balensiefer, had a blood clot in his right arm, measuring 13cm, that caused permanent damage to blood circulation. It also forced him to give up his job as a US Navy rescue swimmer.

Dr Teh has also been censured and has to bear 70 per cent of the cost of the disciplinary hearing. The inquiry was ordered by the Health Minister in 2011 after the SMC dismissed Mr Balensiefer's July 2009 complaint against Dr Teh.

The SMC disciplinary committee, in a statement yesterday, said: "Although Dr Teh had made a series of misjudgments, which ultimately culminated in him dishonestly trying to cover his tracks, on the specific facts of the case, leniency ought to be shown in view of compelling mitigating factors." It did not say what these mitigating factors were.

The committee heard that Mr Balensiefer, 37, had gone to Singapore Lipo, Body and Face Centre at Novena Medical Centre in March 2009 to have the "love handles", or excess fat around his waist, removed.

He told a nurse at the clinic, which is part of the Singapore Medical Group, that he was allergic to amoxicillin but the nurse failed to input the information into the computer, and he was given the antibiotic. When Dr Teh realised the mistake, he administered an antihistamine without telling the patient, and continued with the procedure. The disciplinary committee said he should have been honest with the patient and let him decide whether to continue.

Mr Balensiefer's arm later started to swell. When Dr Teh saw him on March 18, the day after the procedure, he gave him painkillers and told him to call if the condition got worse.

On March 25, when the "pain drastically increased" and he could not contact the clinic, Mr Balensiefer went to Tan Tock Seng Hospital (TTSH). A 13cm blood clot was found in an artery in his forearm and later removed.

The head of vascular surgery at TTSH said in a statement that the patient's situation "was dire" and Mr Balensiefer was "fortunate" not to have had two of his fingers amputated, although he did suffer "permanent damage and a career change".

Part of the evidence against Dr Teh was in the form of secret tape recordings by the nurse Dr Teh had blamed for the mistake. The nurse did not dispute that she failed to check if the patient had allergies.

In the recordings, Dr Teh did not deny the nurse's accusation that he, too, had not asked the patient about his allergies before getting his consent for the procedure, like he should have.

The Straits Times understands that Dr Teh has made an out-of-court settlement with Mr Balensiefer over a High Court suit.

salma@sph.com.sg

www.facebook.com/ST.Salma

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Cautious welcome for animal protection Bill

Straits Times
15 Oct 2014
David Ee

Welfare groups, pet owners worried about enforcement

ANIMAL welfare groups and pet owners have cautiously welcomed the tougher animal protection Bill introduced in Parliament last Tuesday.

But they warned that while the long-awaited move was historic, it remains to be seen whether the proposed law will be effectively implemented and enforced.

The Bill requires pet owners to provide reasonable care for animals under their charge. Those who neglect their pets will, for the first time, face a fine and/or a jail term.

Under the proposed amendments to the Animals and Birds Act, penalties for animal abuse will be increased, especially for repeat offenders and animal-related businesses. Staff working with animals in relevant businesses will be required to be trained in animal care and handling.

The Bill will also let the authorities adopt a code that sets new standards on animal welfare.

Ang Mo Kio GRC MP Yeo Guat Kwang, who chairs the Animal Welfare Legislative Review Committee (AWLRC) driving the Bill, said the recommendations came from the ground, through the various stakeholder groups represented in the committee and from public consultations.

Voicing her worry, dog owner Gail Sethi, 50, said: "You can have all the laws in the world, but no enforcement."

Ms Verou Lau, vice-president of the Cat Welfare Society, hailed the Bill as historic, but said her biggest concern, which is shared by other animal welfare activists, is whether the enhanced law will be enforced.

The last major review of animal welfare legislation was in 2002. Cases of animal abuse handled by the Agri-Food and Veterinary Authority grew from 377 in 2008 to 484 in 2012, according to AWLRC's report last year. Cases reported to the Society for the Prevention of Cruelty to Animals rose from 870 in 2007 to 1,027 in 2011.

However, just 13 cases were prosecuted during this time, partly due to difficulties in gathering evidence. This challenge was acknowledged by the review committee, made up of MPs, animal welfare activists and industry representatives.

Mr Ricky Yeo, president of Action for Singapore Dogs, expects "a long road ahead" in changing mindsets.

"The way I see it, it is still very business-oriented, where pets are still part of the commercial landscape. The balance is still very much skewed towards pets being a commodity, rather than a marginalised group that needs protection," he said.

He also called for the new laws to be enforced "with a strong moral conscience rather than just from a legal perspective".

Mr Marcus Khoo, 40, executive director of pet grooming and boarding services firm Petopia, also raised a practical point. He noted that ensuring that staff are trained would reduce the risk of negligence, but the industry finds it hard to get qualified workers.

In a statement last Tuesday, Mr Yeo said the road to raising animal welfare standards is certainly not over. "I hope that this Bill will be an important first step in strengthening animal welfare in Singapore and making it a shared responsibility by all stakeholders," he said.

MP Gan Thiam Poh (Pasir Ris-Punggol GRC), a member of the committee, told The Straits Times he expects the question of enforcement to be "debated in detail" in Parliament during the Bill's second reading on Nov 3.

"Of course, we want to make (the laws) practical and enforceable. There's no point having a law we can't enforce," he said. But he cautioned that change cannot be expected "overnight".

davidee@sph.com.sg


Background Story

Stiffer penalties

AMENDMENTS to the Animals and Birds Act, to strengthen the protection of animals, were introduced in Parliament last Tuesday. The Bill, which included new and harsher penalties, will be debated in Parliament on Nov 3. Among the amendments:

  • For the first time, pet owners who do not take adequate care of their pets will be slapped with fines of up to $20,000 and/or a two-year jail term.
  • Animal abusers will face fines of up to $30,000 and/or a three-year jail term, up from fines of up to $10,000 and/or a one-year jail term.
  • Animal-related businesses that contravene the Act face fines of up to $100,000 and/ or a three-year jail term, up from up to $10,000 in fines and/or a one-year jail term.

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US company blocks S’pore firm from registering similar trademark

TODAY
29 Oct 2014
Kelly Ng

SINGAPORE — Fox Racing, Inc, an American motocross apparel company, has succeeded in blocking local apparel and bag manufacturer Fox Street Wear Pte Ltd from registering a trademark that resembles its own.

In his judgment released yesterday, Mr Mark Lim, principal assistant registrar of trademarks, said the mark in question will confuse the public as it bears a high degree of visual, aural and conceptual similarity with Fox Racing’s prior trademarks.

The mark the Singapore manufacturer had tried to register in March 2005 was the word “FOX” with a fox’s head within the letter “O”, with the slogan “What’s Stopping You?” running underneath.

However, in 2001 and 2004, the American company had already registered two trademarks here: The word “FOX”, with the depiction of a fox’s head in place of the letter “O”.

Mr Lim noted that both entities had intended to use the marks for similar products, such as backpacks, sports bags, wallets and purses.

Since both Fox Racing’s and Fox Street Wear’s products are sold at low- to mid-range prices, it is probable that consumers would not take an undue degree of care when purchasing them, he added.

Incorporated here in 1999, Fox Street Wear manufactures and distributes apparel and bags. It has various registered trademarks that bear fox-related motifs, including one for the depiction of a fox’s head that was registered as early as 1981 by a now-defunct company and was assigned for Fox Street Wear’s use.

The company argued that the mark in question was an extension of one of its earlier trademarks, which depicted a fox’s tail in the letter “O”. The firm said it was aware of Fox Racing’s trademark, but had taken pains to incorporate distinguishing features in its own mark.

But Fox Racing, a motocross apparel company established in 1974 and which has had dealings in Singapore since 1996, launched a bid to block Fox Street Wear’s application. It sought to do so based on five grounds of the Trade Marks Act, but failed to establish four of these grounds with the courts.

In his 43-page judgment, Mr Lim said Fox Racing did not meet the high threshold required to establish that Fox Street Wear’s application was made in bad faith. He also turned down the argument that Fox Racing’s trademark is well known to the public at large in Singapore, apart from motocross enthusiasts.

Mr Lim also disagreed that there was misrepresentation involved. Rather, he highlighted that both companies have coexisted in Singapore since 1996, with neither raising any complaints before.

“It could well be argued that it is instead (Fox Racing) which is passing itself off as (Fox Street Wear). For reasons best known to themselves, neither party is advancing any argument along those lines,” he said.

Lastly, Mr Lim also dismissed Fox Racing’s argument that its trademark was protected by copyright as it failed to provide evidence of authorship, date of creation and place of publication.

kellyng@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

To view the judgment, click <here>.

Woman fails to block probate in bid to get back $762k

Straits Times
21 Oct 2014
K.C. Vijayan

A WOMAN who tried to block a probate grant in a bid to claw back an alleged $762,000 investment has been rebutted by the High Court in the first known case of its kind here.

Ms Nie Jianmin said that acting on her husband's advice, she lent the money to banker and fund manager Tan See Wee last December. However, Mr Tan died aged 47 in March, having named his wife Grace Khor in his will as the sole executor and trustee of his estate.

Eight days later, Ms Nie lodged a caveat against the grant of probate to Ms Khor. Ms Nie claimed she lent the deceased the money on her husband's assurance that he would repay it.

Ms Khor countered that the money was not a loan but an investment by Ms Nie's husband Tan Chau Chuang in a project involving Tri Viet Media Corporation, a Vietnamese media firm.

She applied for the caveat to be removed to enable the court to grant the probate.

It is understood that the court's go-ahead for the probate would enable Ms Khor to determine the extent of her husband's estate - including the involvement in Vietnam.

Her lawyer, Ling Tien Wah, argued that the court is not empowered to recognise or order Ms Nie's debt to be settled from the estate when probate had yet to be granted.

Ms Nie, defended by lawyer Francis Goh, countered that all she wanted was her money back and she had no issues with Ms Khor's appointment as executor.

But in the first such reported case in Singapore, the High Court made clear it had no powers to recognise her alleged debt claim - or order the sum to be repaid from the deceased's estate under the Probate and Administration Act.

Justice Tan Siong Thye, in judgment grounds released last week, said the relevant clause for a valid caveat can be invoked only if the claimant is a beneficiary or challenges a person's right to be an executor under the will.

Citing cases from England, Australia and Hong Kong, he held that loans or investments do not give rise to caveat interests under probate laws. "In fact, creditors who have lodged caveats have been criticised as abusing the caveat process. I agree."

Ms Nie has a right to bring a loan claim against the estate but, he said, based on evidence before the court, it was "more likely" that the $762,000 was an investment rather than a loan".

The judge refused her application for the money to be returned.

Lawyers say the judgment is a landmark because the court explained the circumstances in which a person can lodge a caveat against the grant of probate.

vijayan@sph.com.sg

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To view the judgment, click <here>.

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Singapore Law Watch
15 Oct 2014
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Bursary named after veteran lawyer

Straits Times
29 Oct 2014
Lim Yi Han

VETERAN criminal lawyer Subhas Anandan yesterday had a bursary named after him.

Appropriately, the Yellow Ribbon Fund Subhas Anandan Star Bursary Award will provide former convicts financial help to sponsor their studies.

About $100,000 has been raised so far for the initiative spearheaded by the Association of Muslim Lawyers and administered by the Yellow Ribbon Fund, which helps reintegrate former offenders.

The guest of honour at the event, Law Minister K. Shanmugam, praised the 66-year-old Mr Subhas, a long-time champion of pro-bono work, for the role he has played in Singapore's legal scene. "No matter what the crime... Subhas will represent the accused and make sure the case is put forward fairly and ably," he said. "By displaying compassion for the accused, and faith in (his) reformation, Subhas sets an example for all lawyers."

Mr Subhas - known for handling a series of high-profile cases such as those involving convicted murderers Took Leng How, Anthony Ler and Leong Siew Chor since being called to the Bar in 1971 - took six months off this year because of health issues, before returning to work in June.

In his speech, he thanked family and friends for their support and encouragement when he was diagnosed with heart and kidney failures at the turn of the year. He said the tribute was an honour. "It is even more prestigious for me, because it is (by) the Association of Muslim Lawyers for a non-Muslim like me," said the Hindu.

The association's president, lawyer Noor Mohamed Marican, said the fund was a "fitting way to pay tribute" to Mr Subhas, who is also president of the Association of Criminal Lawyers of Singapore.

Added Mr Marican: "It is important to encourage ex-inmates to go back to school and pursue their dreams. Through this fund, we aim to make their journey as painless as possible by removing the financial barrier."

The selection process will start next year. Inmates who are due for release soon or those who completed their jail terms not more than two years ago can apply.

limyihan@sph.com.sg

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Property agent fined S$27,000 for breaching DNC Registry rules

TODAY
21 Oct 2014
Neo Chai Chin

Huttons Asia agent sent unsolicited messages to advertise developments using a bulk SMS-broadcasting software

SINGAPORE — A property agent with Huttons Asia yesterday became the second person to be convicted for offences related to the Do Not Call (DNC) Registry under the Personal Data Protection Act (PDPA).

Kuan Chow Sheng, 32, was fined S$27,000 after he pleaded guilty to nine of 27 charges for breaching DNC Registry rules that came into effect on Jan 2.

Between February and March, Kuan sent unsolicited SMSes to advertise property developments, two in Singapore and one in London, via nine telephone numbers using a bulk SMS-broadcasting software.

The PDPA bans firms from sending marketing messages to any number listed on the DNC Registry without first getting the owner’s consent.

The Personal Data Protection Commission said it had received 235 complaints of unsolicited telemarketing messages sent by Kuan.

Court documents stated that Kuan had continued to send telemarketing “SMS blasts”, even after the Act had come into force, because he had not attended a compliance course on the Act for real estate salespeople yet.

Deputy Public Prosecutor Jane Lim argued yesterday that a low fine for Kuan would undermine the effectiveness of the DNC Registry.

The seriousness of not checking the register and not obtaining consent before sending unsolicited telemarketing messages should not be downplayed, as they infringe upon an individual’s fundamental right to privacy, she said. A deterrent sentence was needed as the real estate industry had the highest number of complaints pertaining to DNC-related offences, she added.

However, Kuan’s lawyer Lee Heng Eam appealed for a low fine, saying his client had acted in a moment of folly. He had also been tied up caring for his children and wife, who had pre-natal depression at the time, said Mr Lee.

The property agent, who is still with Huttons Asia, was a first-time offender, added the lawyer. Kuan could have been fined up to S$10,000 for each text message sent.

In August, Star Zest Home Tuition and its director Law Han Wei became the first to be convicted for violating DNC Registry rules. The tuition agency and Law were each fined S$39,000, after pleading guilty to 13 charges.

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

$12m suits over Madoff investments start today

Straits Times
14 Oct 2014
K.C. Vijayan

High Court to decide if StanChart is liable for losses from Ponzi fraud

TWO suits over whether a bank can be blamed for Madoff-linked investments that flopped may well be settled in a mammoth High Court case due to start today.

At issue is whether any due diligence would have uncovered Bernie Madoff's Ponzi fraud despite all the checks that operated at the time, or whether there were any tell-tale signs that should have been picked up.

Madoff was a well-respected former Nasdaq chairman whose scam fooled US regulators, audits and banks. The New Yorker was jailed in 2009 for the multibillion-dollar fraud he operated for decades, using money from new investors to pay off the old.

The consolidated High Court hearing before Justice Woo Bih Li, scheduled for 53 days, pitches two groups of Dubai-based investors against Standard Chartered Bank for more than $12 million in losses which had been invested through a US-based "feeder" fund in Madoff's firm.

They claim, in two separate suits, that they were misled by a fund manager from then American Express Bank based in Singapore into investing in US-based Fairfield Sentry. This was a feeder fund incorporated in the British Virgin Islands which, in turn, invested in Bernard L. Madoff Investment Securities.

Fairfield Sentry parked its investments almost exclusively with the Madoff firm and has claimed it was the largest victim of the Madoff fraud.

StanChart is facing the suits as it acquired American Express Bank in 2008. Defended by Rajah & Tann lawyers led by Mr Patrick Ang and Ms Disa Sim, the bank is denying the claims, arguing that the plaintiffs were experienced investors who went in with their eyes wide open.

The two groups of plaintiffs, through lawyer Niru Pillai of Global Law Alliance, filed two sets of High Court claims in 2011, seeking damages and claiming breaches of contract and duty of care, and negligence.

One group claimed they relied on the relationship manager then to advise on their portfolios, which, by October 2008, had grown to more than US$5.3 million (about S$6.8 million), while a second group, comprising 14 individual residents of Dubai and two investment holding companies principally active in the emirate, is claiming for about US$4.75 million in losses.

Both groups initially sued for the losses in a New York court, but the case was stayed on condition that StanChart accept that the case be shifted to Singapore.

StanChart, in defence documents filed, said the clients were fully aware of the bank's conditions in documents they signed.

Among other things, the lender said, the documents made clear the bank had no duty to make or give advice and if any suggestions are made, the bank could not be held responsible.

The plaintiffs allege the bank shut their eyes to obvious risks and failed to conduct due diligence that would have exposed the unsafe Fairfield investments.

Several of the Dubai-based plaintiffs have flown in for the case, the first Madoff-linked hearing to reach the courts here.

It is understood that three other Madoff-linked cases involving other parties have been resolved.

vijayan@sph.com.sg

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Divorce should remain an exception and not the norm: Forum

Straits Times
29 Oct 2014

SINGAPORE law's position of not allowing divorce in the first three years of marriage, unless a court finds there has been exceptional depravity or hardship, is not "an unnecessarily burdensome requirement" ("Shorten time bar to divorce" by the Association of Women for Action and Research; Monday).

I cannot put it better than what Justice Choo Han Teck stated in his judgment ("Court denies woman permission to divorce"; Oct 8): "The statutory moratorium of three years is to impress upon married couples that marriage is not an event that one can sign in and out as they fancy.

"In the meantime, there are alternative remedies and relief in cases of abuse and they include applications for a personal protection order. The aggrieved party may also leave the other party, as this plaintiff has done.

"The moratorium is intended to hold out the hope of reconciliation - and who is to say that even in extreme cases of abuse, the abuser may not see the error of his or her ways and reconcile with the other?"

Marriage is not a social structure recognised by society simply because of the consent between the parties. If that is so, then society should allow the parties to divorce once one party withdraws his or her consent to the marriage.

However, given the repercussions of divorce, especially on children, it is no wonder that society often holds up marriage as a covenant rather than a mere contract.

While divorce is a concession to the imperfections of human nature, it should remain an exception and not the norm.

Tan Jin Yong

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NSP appeals against permit refusal for party paper

Straits Times
21 Oct 2014
Nur Asyiqin Mohamad Salleh

THE National Solidarity Party (NSP) has appealed to the President against the Ministry of Communications and Information's (MCI) refusal to renew the permit of its party paper until it gives the salary details of its central executive committee members - a requirement it had previously complied with.

The NSP said yesterday that some of its members have chosen not to disclose the information for "privacy and personal confidentiality reasons".

The Registrar of Newspapers told The Straits Times it was the first time NSP had failed to do so in the renewal form. "The form is also used by other political parties when applying for a permit for their party newsletters. They have also, like the previous CEC of the NSP, not had problems complying with this requirement."

The NSP had applied to the Media Development Authority (MDA), which MCI oversees, to renew the permit for North Star News on June 13 this year.

Last night, it posted on its website the eight-page letter of appeal to the President, plus e-mail correspondence between the party and MDA.

In an Oct 3 e-mail, the MDA said the salary details were necessary to confirm the applicants are "financially capable of taking responsibility for what is published in the newsletter".

But, NSP secretary-general Jeannette Chong-Aruldoss wrote in the appeal: "Prima facie, this is a discrimination against individuals who are office-bearers of a political association. The Registrar of Newspapers is singling out and subjecting such individuals to greater burdens."

She also said, among other things, that there is no clear justification in the Newspaper and Printing Presses Act for requiring all the CEC members' salary information.

This being so, she wrote, the Registrar of Newspapers is acting out of line by insisting on the information as a pre-condition for getting the permit.

The fact that past CEC members gave the information cannot bind current CEC members to do the same now or in the future, she added.

asyiqins@sph.com.sg

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Misperception of overcharging by legal profession: Forum

Straits Times
14 Oct 2014

THE impression created by the letters ("Legal profession's unregulated pricing structure" by Mr Philip Williams, last Saturday; and "Medical, legal professions need to clear the air" by Dr Jeremy Lim Fung Yen, Oct 3) is that lawyers set their fees freely and arbitrarily. The implicit suggestion is that overcharging is rampant.

The issues relating to the Singapore Medical Council's (SMC) run-in with Dr Susan Lim and the spillover cannot be taken out of context. The case was tried and fought by very senior lawyers who, arguably, have a reputation of being near the pinnacle of the profession.

To equate that with the fees the legal profession, on average and as a whole, charges is a mistake. Even if one takes an uncharitable view of that specific case, it should not lead to the conclusion that law firms generally have "arbitrary" pricing structures.

Another misconception relates to how and why the SMC's bills were sent for "independent assessment".

In Singapore, the courts do not award a winning party 100 per cent of the costs. Instead, this court-assessed amount (called taxation) ranges, on average, from 30 per cent to 60 per cent, depending on the nature of the case. A losing party is free to challenge such costs. Similarly, a winning party is entitled to seek an amount as close to 100 per cent of the legal fees expended as possible, and often instructs his lawyers to do so. The court arbitrates on what is and is not reasonable in the circumstances.

To me, the issue is not why the lawyers' fees to be paid by the losing party were taxed lower than the claimed amount. The question is how the SMC could have allowed a situation where it incurred $900,000 in legal fees for a single disciplinary case.

I am not saying the SMC was wrong, but I echo Dr Lim's call for financial prudence and an independent review.

Daniel Chia Hsiung Wen

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Make separation an easier option: Forum

Straits Times
29 Oct 2014

IN THE letter ("Shorten time bar to divorce"; Monday), Association of Women for Action and Research senior manager Jolene Tan noted that "by committing violence, an abuser destroys the mutual care and respect that should be at the heart of a marital relationship. The law should not require victims to maintain formal ties or the appearance of togetherness with their abusers".

To safeguard the victims from further abuse by their spouses, would it not be appropriate for the courts to strongly endorse separation - both informal and formal - in exceptional circumstances like domestic violence?

If permission to divorce is not granted because the three-year marriage requirement has not been fulfilled, would it not be advisable for couples in abusive relationships to file for an earlier mutual separation, to be approved by the court?

Of course, if there is a chance of reconciliation between the couple, then there is no need for divorce.

Victims of domestic violence should not remain in the same household as their abusers, where they could be further traumatised.

Hence, physical separation of such couples should be made easier. The conditions for divorce can continue to apply.

Ada Chan Siew Foen (Ms)

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ADV: LexisNexis: New Title! Alternative Dispute Resolution

Singapore Law Watch
20 Oct 2014

Make early divorce easier in abuse cases: Forum

Straits Times
14 Oct 2014

WHILE I understand the need to establish that marriage is not child's play, I was deeply concerned by the basis on which a court turned down a woman's bid to file for divorce before completing the mandatory three-year minimum period of marriage ("Court denies woman permission to divorce"; last Wednesday).

The three-year requirement aims to ensure the couple have the opportunity to work out issues and reconcile.

Yet, when the basis for divorce is so serious as to amount to extreme mental distress and/or physical abuse, should we not take this into consideration to protect the interests of those involved?

Admittedly, there is a possibility that the abuser may mend his ways and reconcile with his partner. However, is it realistic to expect a victim who has suffered grievous hurt to be able to reconcile with the abuser?

The article also cited a case in 2006, in which a woman was allowed a similar application before the three-year period was up, on the grounds of exceptional depravity on the part of her husband.

The judge in that case said "having extramarital affairs with one or two women is not exceptional nor particularly depraved. Being involved with 16 different women in the space of two years makes the case exceptional".

Is the law implying that having one or two extramarital affairs is a typical state of affairs?

Our Government has taken a strong stand on preserving family values and the sanctity of marriage, as seen in the ban on the Ashley Madison website, which promotes extramarital affairs.

In this vein, may we not come to a consensus that extramarital affairs, regardless of their number, are inherently wrong and should be a good enough basis for an early divorce?

While the law's focus on promoting reconciliation is well-intentioned, we must be careful not to subject victims of abuse to continued and unnecessary suffering.

If we are to see a reverse in the downward trend in marriage rates, perhaps a closer look at the protection of individuals and the sanctity of marriage can be the first step forward.

Deborah Loh Yen Ping (Ms)

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Time bar to divorce serves vital social purpose: Forum

Straits Times
29 Oct 2014

I DISAGREE with Association of Women for Action and Research senior manager Jolene Tan ("Shorten time bar to divorce"; Monday).

While freedom from violence is important, her assertion that it is a "fundamental right" obfuscates the issue by elevating it above others. This is not the Singapore way, which relies on balancing individual and community interests.

The judge in the court case Ms Tan cited ("Court denies woman permission to divorce"; Oct 8) did not ignore the importance of protecting spouses from physical abuse. He held that there are alternatives to divorce, such as applying for a personal protection order.

In short, the policy value of the three-year minimum period of marriage outweighs the constraints it places on couples.

A marriage vow is a solemn covenant between a man and a woman that the two will stay together, for better or for worse.

The institution of marriage also serves an important function in society, as its stability and permanence provide ideal conditions for raising children. Many studies have shown that children thrive when marriages are stable, and face difficulties when their parents divorce.

While there are legally valid grounds for divorce, these are exceptions. Adding more exceptions would weaken the institution of marriage, and should be done only after much debate and with great care.

The three-year time bar is meant to protect the sanctity of marriage. Such a constraint can also be seen as a form of commitment.

No marriage is a bed of roses and the time bar goes some way towards facilitating reconciliation. This is beneficial for both the couple and their children.

This is not to say that protection from violence is not important. Rather, one must remember that there are alternatives to divorce.

The law must weigh the protection from violence against competing values.

Han Junwei

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Stamp duty computation ensures fair tax is paid: Forum

Straits Times
20 Oct 2014

WE THANK Mr Aaron Chia Chun Sian for giving us the opportunity to clarify how stamp duty is computed ("Fairer way to gauge stamp duty"; last Tuesday).

Stamp duty is charged on either the purchase price or the market value of the property, whichever is the higher amount.

This applies to all property types and acts as a necessary safeguard against underpayment of stamp duty or tax avoidance, whereby the buyer and seller agree on a purchase price lower than the market value to lower the stamp duty liability.

If the duty is computed solely on the purchase price, it may lead to a situation where some buyers will unfairly benefit from having to pay a lower duty compared with other buyers purchasing properties with the same market value.

An HDB resale flat buyer would typically request a valuation of the flat to support his application for mortgage financing or the use of CPF funds, and a professional valuer's assessment would take into account market conditions.

Hence, it would be appropriate to consider the valuation provided by the valuer for the purpose of computing stamp duty, even in cases where the price paid is lower than the value determined.

Kelly Wee (Ms)

Director (Corporate Communications)

Inland Revenue Authority of Singapore

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Constitution no guarantee of peace, prosperity and progress: Forum

Straits Times
14 Oct 2014

I READ with interest Ms Dierdre Grace Morgan's letters ("Constitution should reflect will of the people", Sept 23; and "Constitution's higher purpose"; last Wednesday).

Her arguments, as well as those of Assistant Professor Jaclyn Neo ("Should constitutional principles be eternal?"; Oct 4), are well-founded and deserve greater reflection.

However, the Constitution should not be viewed merely through a Constitution-centric lens, where debate centres on the purpose and meaning behind the Constitution per se. Rather, we should place the debate in the wider national context and what it means for our nation-state.

It bears no reminder that the presence of a written Constitution is no guarantee of peace, happiness, prosperity and progress of a state.

For example, some nations guarantee a constitutional right to property, but still face low home ownership rates because of a lack of affordable housing.

Singapore, despite recent increases in housing prices, has a high home ownership rate despite its lack of a constitutional right to property.

Also, many nations have written Constitutions but are still mired in civil wars because the people believe in settling their differences through the law of force rather than the force of law.

Some states experience repeated coups d'etat because of a lack of political consensus among the political actors, who resort to extra-constitutional measures to achieve what they want.

Essentially, we may have lengthy debates about the finer details of our Constitution, but we must not lose sight of the bigger picture.

Extra-constitutional forces such as societal acceptance of the rule of law and political consensus, and trust among political actors to tackle hard and crucial national issues together are equally important as - if not more important than - having a written Constitution with a clear purpose.

After all, a Constitution is just like a blueprint for the national machine. We can have the best scheme of interlocking gears but it will still break down and not function well if we lack the lubricants of adherence to the rule of law, trust and political consensus.

Ong Kah Han

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Drug smuggler jailed 20 years

Straits Times
29 Oct 2014
Selina Lum

A 40-YEAR-OLD South African who was promised $2,400 to collect a suitcase of money in Singapore but ended up being nabbed for smuggling drugs into the country was yesterday jailed 20 years and given 15 strokes of the cane.

Hermanus Nicolaas Pienaar was caught in October 2012 after his suspicious behaviour, as he was exiting the arrival hall, alerted Central Narcotics Bureau officers.

Scans revealed items hidden under the lining of his suitcase, later found to be two black plastic bags containing 1.9kg of methamphetamine, better known as Ice. The amount exceeded the 250g death-penalty threshold for the drug.

But the prosecution later reduced the initial capital charge to one of trafficking in not less than 249.99g of Ice, which carries a minimum 20-year jail term and 15 strokes of the cane.

No reason was given for the decision.

The unemployed Pienaar, who pleaded guilty, was told he would be paid 20,000 South African rand (S$2,400) by a Nigerian man he met in Johannesburg, if he travelled to Singapore to collect a suitcase of money from someone here.

But just before his flight to Singapore, another Nigerian man handed him a suitcase and packed clothing and toiletries into it.

Pienaar admitted he strongly suspected that there were drugs in the suitcase - he knew drugs were being smuggled out of South Africa and that Nigerians were involved in drug trafficking.

He also found it suspicious that he was being offered a large sum of money for a seemingly simple task.

Still, he admitted to failing to check if the suitcase contained drugs.

His lawyer, Mr Low Cheong Yeow, urged the High Court to impose the minimum sentence, arguing that his client was suffering from depression at the time - stemming from tragic personal circumstances - which allowed him to be preyed on by a drug syndicate.

Pienaar, who was separated from his second wife, was in financial difficulty, alcoholic and depressed over the deaths of his younger brother and father, who committed suicide within two years of each other.

His lawyer said his client was "wilfully blind" for not checking his lugguage but it was not an overt act of trafficking, noting that given how the events unfolded, Pienaar did not have time to inspect the suitcase before he boarded the plane.

selinal@sph.com.sg

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Court throws out condo parking case

Straits Times
18 Oct 2014
Joyce Lim

Such relatively minor disputes have other means of recourse, says judge

A CONDOMINIUM resident who complained that a neighbour had kicked him in the shins repeatedly must have been as "meek as a lamb", a judge said, as he never made a sound during his ordeal.

District Judge Lim Keng Yeow ended a long-running dispute over parking spaces, by throwing out a case brought by Mr Jew John Gomez, 51.

He acquitted and discharged 49-year-old Goh Siew Khoon, who was accused of shoving and kicking Mr Gomez in the basement carpark of The Esparis condo in Pasir Ris in March last year.

The district judge found the complainant's evidence "peculiar". In written judgment grounds, the judge said Mr Gomez's version of events in court differed from what he had told police, such as which leg he was kicked in and when.

The judge also said that such "relatively minor disputes" have other means of recourse, pointing out that "seeking criminal conviction as a means of resolving minor disputes is rarely necessary".

No further action was taken after Mr Gomez made a police report on the night in question, but the engineer with Hewlett-Packard decided to hire a lawyer to prosecute on his own a year later.

During a four-day trial in August and September, Mr Goh, a regional manager with an American firm, was represented by lawyer Chia Boon Teck, who said his client was framed by Mr Gomez after he had unintentionally occupied the latter's favourite parking spot. Mr Goh, who has a Land Rover, a trailer and five motorbikes, moved into The Esparis in late 2012.

The lawyer accused Mr Gomez of a "harassment campaign" that saw him instruct condo security officers to repeatedly paste warnings on Mr Goh's car for not displaying his carpark transponder.

Mr Chia also said a Land Transport Authority officer showed up at his client's door, "much to his embarrassment", after Mr Gomez apparently complained that two of Mr Goh's motorbikes were stolen as they had no licence plates.

The lawyer added that it would not have been physically possible for Mr Goh to "kick both his (Mr Gomez's) shins three to four times while following him from behind".

The judge agreed and expressed his surprise at Mr Gomez's account.

"One would have expected him to shout at Mr Goh, protest at his actions or warn against continuing his kicking, or call for help from the security guards," the judge wrote.

"Yet Mr Gomez's version suggested that there was absolute silence between them as he received the repeated kicks and bore the resulting pain, apparently meek as a lamb."

Mr Chia failed in an application to the courts to seek costs and compensation from Mr Gomez.

joycel@sph.com.sg

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'Dual-class shares' may not be apt for S'pore investors

Straits Times
13 Oct 2014
Goh Eng Yeow

Shareholders' rights could be eroded by removing one-share-one-vote rule

WHEN English football giant Manchester United ditched Singapore for a New York listing three years ago, one of the reasons given was that the listing rules here did not permit multiple classes of shares.

Man U's American owners, the Glazer family, wanted a listing to pay off part of the club's debts without yielding control. One way they could do so would be to get increased voting rights over other shareholders but this was impossible under the one-share-one-vote listing structure here.

Since its listing in New York, Man U shares have risen by as much as 40 per cent from its initial public offering (IPO) price of US$14 (S$18). This implies that despite the disproportionate rights given to certain share- holders, investors do not seem to be any worse for it.

It raises the question as to whether the Singapore Exchange missed attracting a global brand to list here because of arcane corporate governance practices.

Considerable soul-searching has also been going on in Hong Kong, which turned away Alibaba last year because the Chinese e-commerce giant had wanted a small partnership to retain control even though it holds less than 20 per cent of the shares.

Alibaba then went on to list on Wall Street, scoring a spectacular success on its debut last month when its market value surged by an eye-popping US$64 billion (S$82 billion) - the equivalent of putting together the market capitalisations of DBS Group Holdings and United Overseas Bank.

It left some wondering how many Alibabas the Hong Kong Exchange could afford to sacrifice for the sake of its one-share-one-vote principle.

The debate about allowing "dual-class" shares in Singapore is cropping up again in the light of the Government's revamp of the Companies Act to remove the one-share-one-vote restriction.

At the height of the Man U listing controversy three years ago, the SGX defended the single vote for a share principle vigorously. It said while dual-class shares offer the same economic benefits, returns and rights to dividends, they carry substantially different voting rights.

"This raises issues over entrenchment of control where multiple-vote shares are not offered to the public," it said at the time. In a takeover situation, "questions about the fair value of multiple-vote ordinary shares vis-à-vis the single-vote ordinary shares may also arise".

Will the SGX change its tune now that the Companies (Amendment) Bill has been passed in Parliament to remove the one-share-one-vote restriction for public companies?

Dual-class shares have been making a comeback in the United States, with tech giants such as Google and Facebook adopting such a structure, saying that it allows them to focus on long-term performance without having to cope with short-term mood swings by investors.

As a result, the US accounts for over half of the 500-odd companies with dual-class shares listing structure in the world, with the likes of Google and Facebook offering eye-catching returns.

However, there is a catch to this. The Economist magazine said in a report that US companies with dual-class shares generally suffered from lower returns and higher share price volatility, citing a 2012 study by the US think-tank Investor Responsibility Research Centre Institute.

There is another concern. Are Singapore investors ready for dual-class shares? Unlike their US counterparts, who would not hesitate to sue to try and enforce their rights, no similar activist shareholder culture exists here to keep management on their toes.

So long as a charismatic boss such as Alibaba founder Jack Ma is in the driver's seat, problems that surface from controlling the vote without taking equal risk on capital might be papered over. But what happens when the dual-class structure passes on to the next generation that inherits the shares?

In companies with dual-class structures, potentially lucrative takeovers will be next to impossible to conduct and poorly performing managers could prove difficult to dislodge.

Disdain for diminished control may already have been reflected in the way investors value business trusts, where hostile takeovers are difficult as trust managers cannot be removed once they control more than 25 per cent of the trust.

Data from Shareinvestor.com shows that of the 13 business trusts it tracks, 10 are trading below their IPO prices.

Dual-class shares will appear in Singapore only if investors want them. As it is, they already have plenty of choice to buy many types of investments, both here and overseas. They may not take kindly to any diminishing of their shareholders' rights.

engyeow@sph.com.sg


Background Story

In companies with dual-class structures, potentially lucrative takeovers will be next-to- impossible to conduct and poorly performing managers could prove difficult to dislodge.

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Lawyers go green to save paper, time and cost: Yellow Pages v Promedia

Straits Times
28 Oct 2014
Amir Hussain

They use software that also facilitates convenient access to material in battle over IP

A COMPUTER software that allows lawyers to save paper, time and cost is being used in a court case here for the first time.

The hearing in question involves an intellectual property (IP) dispute between directory publisher Global Yellow Pages (GYP) and its rival Promedia Directories in the High Court.

GYP, which produces the Yellow Pages Consumer and Business directories here, contends that its rival breached its copyright when it reproduced thousands of phone listings and addresses in its publications.

Promedia is behind the Green Book, a printed as well as online telephone directory.

Facing a considerable amount of court documents - totalling some 170,000 pages - lawyers in the case turned to a first of its kind legal document management software that has allowed courts overseas to go almost paperless.

The technology, which is named Magnum, is a secure Web- and cloud-based service that allows parties in a case, including witnesses and the judge, to access court documents online.

Operated by Opus 2 International, a London- based court reporting and litigation software development firm, the service has been used in countries such as Britain, the United States and France over the past three years.

Besides cutting printing costs, the Magnum software allows parties to make annotations on documents on their personal workspaces, allowing lawyers to collaborate on relevant material.

Lawyers and judges can access the documents from outside court and in the convenience of their homes or offices, for instance. They can also utilise keyword search functions, which are not possible with hardcopy documents. Live transcription services, which are normally used in large commercial cases, can also be integrated into the software.

Opus 2 estimates that by using Magnum, lawyers can reduce the cost of cases by more than 50 per cent and reduce the duration of trials by over 30 per cent.

Via Law Corporation director Wang Yingyu, who is representing GYP against Promedia, said her firm was impressed by a Magnum demonstration. "We were also of the view that the service would be useful for pre-trial preparation, particularly given the voluminous documents involved."

Instead of 252,000 sheets of paper, including multiple copies of documents, that would have to be printed in total by the parties in the case - costing almost $40,000 - Ms Wang said her team printed only about 2,500 to 3,000 pages.

Opus 2 founder Graham Smith-Bernal, who started his career as a court reporter in Britain before going into legal technology, said the software has a "very minimal learning curve".

Asked about the technology's security, he said the private cloud-based system is more secure than hard copies of documents or hard drives on personal computers. Magnum has three levels of user authentication, one more than Internet banking.

The Supreme Court, when contacted, said it continues to support the use of technology, "whenever it will assist counsel in the conduct of the trial".

amirh@sph.com.sg

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Suit over youth's online profile goes to trial

Straits Times
18 Oct 2014
K.C. Vijayan

Undergrad seeks damages for unflattering posting on Facebook by classmate

WAS it just a prank on Facebook or did it amount to defamation?

This is the key question in a suit filed by a James Cook University (JCU) student seeking damages from a classmate for alleged defamation.

JCU undergraduate Lee Tong Lin, 24, had last year posted on his Facebook page an unflattering profile of classmate M. Jeevithan, 25, but with a disclaimer that it was "entirely fictional" and "purely for entertainment purposes".

Mr Jeevithan decided to sue Mr Lee, initially seeking $150,000 in damages. Mr Lee then applied to the court to strike out the suit.

His lawyer, Mr Terence Seah, argued that the disclaimer served as effective "antidote" to neutralise any possible "bane" in its publication.

But in judgment grounds released last week, District Judge James Leong explained why he affirmed a deputy registrar's decision in August and ordered the case to go to trial.

He pointed out that there were disputes of fact, noting that both had different versions of how the publication came about and the circumstances that led to its removal.

"As to whether the disclaimer negates any potential defamatory meaning in the publication, that is, whether the antidote neutralised the bane... this was a matter best left for trial."

The extent to which the information had spread on Facebook was also something to be decided at trial, with help from expert evidence.

The profile was published in March last year and removed by Mr Lee three days later.

Mr Lee had argued that it was clearly an "innocent joke between students and classmates, one that (Mr Jeevithan) had participated in".

Three of his classmates provided supporting documents to say the profile was an extension of a classroom joke and discussion on criminal profiling during a forensic psychology class under their Bachelor of Science course in Psychology.

But Mr Jeevithan's lawyer, Mr Dilip Kumar, countered that his client had suffered distress and embarrassment and claimed his reputation had taken a beating.

Mr Jeevithan initially sought $150,000 in damages for defamation in a demand letter to Mr Lee, which the judge said was "clearly inflated".

But he noted that there was no sum mentioned in the actual suit filed, which meant damages were to be assessed if the defendant was liable.

The judge agreed with two past cases cited by Mr Lee that words said in jest were not defamatory. But these cases involved remarks made in a humorous article in an entertainment magazine and entertainment programme.

The issue in Mr Lee's case was more serious and not of the same category as the two cases cited, he said, pointing out that the facts and circumstances surrounding the alleged defamation in each case "had to be looked at".

The judge said "it was not possible to conclude" that Mr Jeevithan's case, "weak as it may be, was obviously unsustainable, hopeless or doomed to failure".

Mr Lee's appeal to the High Court is due later this month.

vijayan@sph.com.sg

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Turning data protection compliance into opportunity

Business Times
13 Oct 2014
Lyn Boxall

DATA protection regulations are now in force in Singapore. The Do Not Call (DNC) Registry rules took effect on Jan 2, 2014. Holders of Singapore telephone numbers have been able to register and avoid receiving unwanted text, voice or fax marketing messages.

After an 18-month "sunrise" period to allow organisations to get their internal processes in order, nine personal data protection obligations and limitations took effect on July 2, 2014. Organisations must comply with them when they collect, use or disclose personal data from or about individuals, including their employees.

Boards of companies need to ensure that management implements a robust compliance framework as part of its overall risk management responsibilities. In implementing this framework where the law is clear, management should act on an understanding of what is permissible and what is not. Where the application of the law is subject to interpretation, management should proceed in a way that is consistent with the risk appetite developed by the board.

The DNC rules present a good example. They do not prevent organisations from sending marketing messages to Singapore telephone numbers in all circumstances. For instance and leaving aside the data protection rules for the moment, the DNC rules are clear that marketing messages may be sent to numbers that are not listed in the DNC Registry.

Where a number is listed in the DNC Registry, marketing messages may nevertheless be sent in the context of an on-going relationship if the purpose of the message is related to the subject of the ongoing relationship. There could be genuine debate as to whether there is an on-going relationship in any particular case and/or about whether the message has the necessary connection with that relationship. A decision consistent with the organisation's risk appetite must be made before deciding whether or not to proceed with sending the message.

Yet, it appears that some organisations in Singapore have simply tipped targeted marketing messages into the "too difficult basket" and stopped using them altogether.

Similarly, the data protection rules do not prevent organisations from continuing to use personal data for the purposes for which they were collected prior to July 2, 2014. And yet, rather than applying a risk-based approach to determine the purpose for which personal data was collected, many organisations play it safe by burdening their stakeholders and requiring them to give specific consent for the continued use of personal data.

Enhancing customer relationships

The practical outcomes currently observed suggest boards need to guide management not only to apply a risk-based approach, but also to try another perspective: stop seeing data protection merely as a legal and compliance requirement that stands in the way of doing business. Boards can, and should, communicate to management an expectation that they will implement data protection requirements in ways that find new opportunities to enhance operations and customer relationships.

One example is SingTel. It went beyond the current data protection rules to build a portal which provides customised options for its users on the type of marketing messages they want to receive. The greater granularity of options is beneficial to its customers but also provides the telco greater insights into its customers' preferences. On top of that, the widely-reported pioneering response made good marketing copy.

As I observe the implementation of data protection laws in Singapore and elsewhere, the common factor is that legal or compliance staff are expected by management to take "ownership" of the issue. This yields a necessarily conservative outcome because legal and compliance staff are tasked with minimising risk, not with making decisions that take the company's risk appetite into account. Fundamentally different outcomes would occur if the issue of data protection was "owned" by chief executives and their sales and marketing teams, with expert input by legal or compliance staff.

This turns the conversation, and therefore the outcome, on its head. It stops being "tell me what I can and cannot do" and becomes "how do we make it happen - within acceptable legal parameters? What are the risks and options for such decisions?"

This solution-led approach could creatively improve customer service and relationships in the new data protection era. It directly confronts the key operational premise: how can we do better at winning and retaining customer loyalty in this new reality? Clearly, I am not advocating non-compliance of the law. However, practical requirements can give rise to a considerable grey area, and the need to "make a judgment call". The board must guide management towards decisions based on sound risk management, not just from a minimal-risk perspective.

Data protection laws are here to stay. The response from boards and management should be to leverage these laws while complying with them.

The writer is a member of the Professional Development Committee of the Singapore Institute of Directors

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Parkway's acquisition bid under scrutiny

Straits Times
28 Oct 2014
Jacqueline Woo

PARKWAY Holdings' proposed $137 million acquisition of outpatient diagnostic chain RadLink Asia is being scrutinised by the anti-competition watchdog.

The Competition Commission of Singapore (CCS) is seeking public feedback on the proposal until Nov 5 to address concerns that the deal might stifle competition.

Under the Competition Act, firms are not allowed to merge if the resulting entity could lead to a substantial lessening of competition in any market here.

Both firms notified the CCS of the proposed merger on Oct 15.

The deal - with Parkway set to acquire 100 per cent of the Singapore-based RadLink via its wholly owned subsidiary Medi-Rad Associates - would proceed only if the CCS decides to accept the proposed terms and approve it.

In 2012, Fortis Singapore took an 85 per cent stake in RadLink for $62.9 million. A report in The Business Times that year noted that most of Fortis Singapore's annual revenue of about $30 million came from the RadLink business.

RadLink was founded in 2000 as a radio diagnostic imaging business. The company has no businesses outside Singapore. Here, it operates imaging centres, a small chain of general practitioner (GP) clinics and a cyclotron machine usually used for medical imaging and research.

RadLink is a subsidiary of Fortis Healthcare Singapore, a leading pan Asia-Pacific integrated health-care delivery provider which operates in India, Singapore, Dubai, Mauritius and Sri Lanka.

Parkway's business is focused on the Singapore market as well, comprising a network of hospitals, primary care clinics, radiology and imaging service facilities and laboratories. It is a minority shareholder in Positron Tracers, which owns a cyclotron machine.

In addition, Parkway owns Gleneagles JPMC, a 21-bed cardiac centre in Brunei, which is a joint venture with the Brunei government, and holds 30 per cent of the shares in Parkway Group Healthcare.

Its parent IHH Healthcare is among the world's largest hospital operators, with a presence in several countries including Singapore, Malaysia, Turkey, China and India. The company, which is dual-listed in Singapore and Malaysia, owns the Gleneagles, Parkway East, Mount Elizabeth and Mount Elizabeth Novena hospitals here.

IHH last reported a net profit of RM209.1 million (S$81 million) for the second quarter ended June 30.

Both RadLink and Parkway overlap in three health-care areas - radiology and imaging services, primary care clinics and services, and the supply of radiopharmaceuticals. They maintained that the transaction will not result in a substantial lessening of competition in any market in Singapore.

The public can give feedback at www.ccs.gov.sg, under the section Public Register and Consultation.

tsjwoo@sph.com.sg

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Rare case involving "borrowing name" to buy property; judicial commissioner: both parties may have committed offences

Lianhe Zaobao
18 Oct 2014
Poh Lay Hoon

This article was first published on 14 October 2014 in the Singapore Mandarin broadsheet, Lianhe Zaobao.
SLW commissioned a translation to give the legal community a view of legal reports from different Singapore news outlets.


After Judicial Commissioner Edmund Leow ruled against the plaintiff, chartered accountant Tan Hui Meng, yesterday, he solemnly told the lawyers for both plaintiff and defendant that offences may have been committed in this case, and that he has instructed the High Court registrar to notify the relevant authorities.

A chartered accountant claimed to be the beneficial owner of a terrace house and sought $2.3 million in net proceeds and around $250,000 in interest from the trustee. However, he lost the suit. The High Court Judicial Commissioner noted that the plaintiff and the person who acted as the nominee to acquire the property on behalf of a foreigner may have committed offences which may be investigated by the relevant authorities.

After Judicial Commissioner Edmund Leow ruled against the plaintiff Tan Hui Meng, 48, yesterday, he solemnly told the lawyers for both plaintiff and defendant that offences may have been committed in this case, and that he has instructed the High Court registrar to notify the relevant authorities.

This was a seldom-seen legal case in which a person advised another to buy a house using a different person's name, but later transferred the property to his own name in order to get the proceeds of the property sale. The defendant in the case was Guan Aimei, 50, and the property concerned was a terrace house located at East Coast Road, which was bought for $1.55 million in March 2007.

The real owner of the terrace house was Zhan Guotuan, a China national. In September 2012, he transferred ownership of the property to his nephew, Zhan Pengxiang, who had received Singapore citizenship, for $2.3 million.

The plaintiff had claimed that though the house was registered in Guan's name, she had executed a Deed of Trust on 15 June 2007 in which she stated was only holding the property on behalf of the plaintiff. Guan had also made a Statutory Declaration on 11 June 2010 in which she stated that, as the trustee, she wanted to transfer the property to him.

Guan and her husband had come to Singapore from Putian, Fujian province, and both became Singapore citizens more than a decade ago.

She denied that the plaintiff was the beneficial owner and that she was holding on to the property as his nominee. She argued that the plaintiff was clear that he was not the owner and had no right to the proceeds of the sale of the property.

She explained that even though the terrace house was in her name, the real owner was, in fact, Zhang Guotuan, who, like her, hailed from Putian and who was a China national. As a foreigner, he could not buy landed property under the Residential Property Act, unless he received permission from the Controller of Residential Property.

Plaintiff acknowledged Zhan Guotuan was the owner

Therefore, the plaintiff had suggested that the property be registered in her name. Payment for the terrace house came from Xin An Technology Group Pte Ltd, a company set up by Zhan, and the plaintiff did not put up a cent.

Guan produced a memorandum dated May 2008 in which the plaintiff acknowledged that Zhan was the owner of the terrace house.

Sources say that Zhan and his two brothers had settled in Singapore under the immigrant investor programme. Guan had worked for their family company and the plaintiff had provided accounting services to the same.

Subsequently, Guan and her husband wanted to buy a flat at The Pinnacle@Duxton but could not do so as she had a private property registered in her name. The plaintiff then suggested that she sign the aforementioned two documents to get around the regulations.

She took his advice and the executed a Statutory Declaration with the plaintiff on 19 January 2010 in which she stated that she was a holding the property on behalf of the plaintiff and that the plaintiff had made all of the payment for the property and is the beneficial owner.

She also signed a Deed of Trust in June 2010, backdating the document three years to June 2007. However, the Deed of Trust was stamped on the date of signing. She also lodged an Instrument of Transfer with the Singapore Land Authority, which stated that she was the trustee of the house and that the plaintiff was the beneficial owner.

In 2012, Zhan Guotuan's nephew Zhan Pengxiang completed his National Service and received Singapore citizenship. Zhan Guotuan thus decided to transfer ownership of the property to the Zhan Pengxiang. The plaintiff suggested allowing Guan to act as the seller, selling the property to Zhan Pengxiang with the consent of the plaintiff in accordance with the provisions of the Deed of Trust, so as to make the transaction appear more genuine.

In August last year, a year after the transaction was concluded, the plaintiff issued a lawyer's letter in the capacity of owner of the property, to seek payment of the proceeds of the sale and two years of interest at the annual rate of 5.33%.

The Judicial Commissioner noted that based on the aforementioned documents, the plaintiff would appear to have a strong case. However, the plaintiff had explained that she was helping Zhan Guotuan own the property.

The Judicial Commissioner noted that as a Singapore citizen, the plaintiff would have had no difficulty buying the property himself without the need for a nominee. The plaintiff had claimed that he had wanted to buy another property in the East Coast area and did not want others to know that he owned the terrace house. He argued that the memorandum only showed that Zhan Guotuan wanted to buy the terrace house but did not state that he owned the house. However, the Judicial Commissioner found these arguments unconvincing.

The fact that the Deed of Trust was stamped on June 2010, the time when Guan had wanted to buy a flat, convinced the Judicial Commissioner that the Deed had indeed been backdated.

In addition, the plaintiff had claimed that Zhan Guotuan's company owed him money and wanted to repay him with the property. Zhan had stated that the house belonged to him and he did not need to borrow any money from the plaintiff.

The Judicial Commissioner said there was no reason to doubt Zhan's version of the story. Furthermore, the purchase price of the property exceeded the amount that the plaintiff had claimed was owed to him. If Zhan had indeed owed the money, then why did the plaintiff only seek repayment at this time? Thus, the Judicial Commissioner did not find the statements of the plaintiff credible.

With regard to the observation by the Judicial Commissioner that offences may have been committed, Lianhe Zaobao consulted lawyer Ng Lip Chih, who did not act for any party in this case, on what laws could have been breached. Ng noted that if a false statement was made on oath to a public servant, this would contravene Section 181 of the Criminal Code. If convicted, the offender will face a mandatory prison term of up to three years and may also be fined.

pohlh@sph.com.sg

Source: Lianhe Zaobao © Singapore Press Holdings Ltd. Permission required for reproduction.

Custody battle: Lifetime entry ban for 2 foreigners

Straits Times
13 Oct 2014
Toh Yong Chuan

TWO foreigners who smuggled a Mongolian woman into Singapore by yacht to snatch her two-year-old son from his paternal grandparents have been banned from entering Singapore for life.

Briton Adam Christopher Whittington, 38, and Australian Todd Allan Wilson, 39, were jailed last month for their roles in helping the woman, who is locked in a bitter divorce battle with the boy's father. She cannot be named to protect her son's identity.

The Ministry of Home Affairs declared the ban orders last week in the government gazette.

Confirming the ban, an Immigration and Checkpoints Authority spokesman said: "Foreign nationals who have committed offences in Singapore may be repatriated to their home countries and barred from re-entering Singapore. Singapore's approach with regard to the removal (of) or prohibition of entry for offenders is no different from other countries'."

It is unclear if the woman was also banned as the authorities do not typically discuss these cases.

She met her husband in Singapore in 2010. They married and moved to London a year later. The boy's father cannot return to Singapore as his passport was seized after his wife alleged he raped her.

Britain's High Court ordered the boy to be returned to London under his mother's care. But instead of executing the order via court channels, the woman hired Whittington and Wilson to help her enter Singapore illegally to take the boy by force.

Whittington is the managing director of Child Abduction Recovery International, which specialises in returning children to their parents for a fee. He hired Wilson's catamaran in Langkawi, Malaysia, and the trio sailed to Raffles Marina in Singapore under the cover of darkness on Aug 19.

Whittington then took a taxi with the woman to the condominium where the boy's grandparents lived and both tried to snatch the boy. He arm-locked the grandfather and hurt the grandmother in the process.

The trio were arrested and convicted last month. The woman and Wilson were jailed for 10 weeks each and were deported last week. Whittington is still serving a 16-week jail term. The boy is with his paternal grandparents.

The authorities are studying the incident in a review to beef up Singapore's coastal security.

tohyc@sph.com.sg

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AGC allowed to appeal against FCBC challenge

TODAY
28 Oct 2014
Kelly Ng

SINGAPORE — The Attorney-General’s Chambers (AGC) was yesterday given permission to appeal against a High Court decision to let Faith Community Baptist Church challenge the Manpower Minister’s order that it compensate a former employee it had sacked for adultery.

In granting the permission, the court said there would be public advantage to the Court of Appeal giving its opinions about the questions raised by the Attorney-General in this case. The Attorney-General has one month to file a Notice of Appeal to the apex court.

The case in question pertains to the 2012 sacking of an administrative worker at the church for adultery. The woman, who was pregnant at that time, then complained to the Manpower Ministry that she was dismissed without notice or compensation.

In July last year, then-Acting Manpower Minister Tan Chuan-Jin ordered the church to pay the woman salary and maternity benefits of about S$7,000. The church sought and was given permission on May 29 this year to seek a judicial review challenging Mr Tan’s order.

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

Guilt is normal for working mothers: Woman of the Year

Straits Times
18 Oct 2014
Jermyn Chow

CORPORATE lawyer Rachel Eng believes "guilt is normal" for women who choose to juggle family and career.

Yet she overcame this to successfully co-manage one of Singapore's top four law firms and bring up her three children.

Last night, the 46-year-old trailblazer was crowned Her World Woman of The Year for 2013/2014 in a ceremony at the Shangri-La Hotel - where she championed family-friendly practices and advised fellow working mothers not to be fixated on excelling at everything they do.

"In the perfect world, you want to be there to take them home from school, greet them when they come home, cook dinner for them," she said.

"But we are not in a perfect world. Guilt is normal... there is no antidote. There will be trade-offs... you accept them and make the best of the situation. Then everything will get better."

Ms Eng became the first woman to be named Managing Partner of the Year twice at the ALB South-east Asia Law Awards, in 2011 and last year.

She spoke in favour of companies that offer flexibility to parents, such as allowing them to work from home.

Ms Eng also paid tribute to her fellow partners, colleagues and family. "Some of them refused to let me quit my job. They stood by me, gave me all the help and the peace of mind to carry on and give my best."

The annual award has been given out for the last 23 years to Singaporean women who have contributed to society, projected a good image of the nation and acted as role models to others.

Her World, published by SPH Magazines, is the best-selling women's title here. Its annual Young Woman Achiever award went to photographer Sim Chi Yin, 35, who has documented the lives of migrant workers in Singapore and China.

The former SPH scholar and Beijing correspondent at The Straits Times quit the paper to freelance and has won several international photography awards.

She is the first Singaporean and Asian to join the ranks of the exclusive VII photo agency.

Ms Sim, who is based in Beijing, said the award is a nod to her decision to "cut the strings of security to do what matters to society and me".

jermync@sph.com.sg

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No court order on access to teen: Judge

Straits Times
11 Oct 2014
K.C. Vijayan

Child, 14, in divorce case old enough to decide if she wants to see father

A COURT has declined to order that a father be given access to his 14-year-old daughter, ruling that she was old enough to decide if she wanted to see her dad.

Her father, 45, an economics professor, had split with her university don mother, 42, and the teen had refused to see him for more than two years.

The couple, both working at the same university, married in China in 1993 and obtained an interim divorce judgment last year, pending a settlement of ancillary matters, including child access.

The man is a Canadian citizen and his former wife has New Zealand nationality. Both live in Singapore.

The man's lawyer, Jinny Tan, claimed that the former wife had denied him access to his daughter, while the former wife's lawyer, Carrie Gill, denied this and countered that the teen did not want to see him.

Ms Gill argued that access should be arranged between father and daughter by themselves, as she is a teen now, and should not require a court access order.

Justice Choo Han Teck, in judgment grounds released earlier this week, agreed and refrained from making a court access order. The Straits Times understands that a decision to refrain from making a court order on access is rare.

The couple had joint matrimonial assets worth more than $5 million, including two properties here and assets abroad.

Justice Choo ruled that a 50:50 division of the couple's assets would be "just and equitable", noting they had remained wedded for almost 20 years.

He made it clear there was no magic formula to compute the difference between both parties in terms of their financial and non-financial contributions to the family upkeep.

" An equal division is also probably the closest (that) the courts can give effect to the parties' declaration in their matrimonial vow of treating both of them as one," said Justice Choo, adding that the court will treat equality as justice in the absence of a better formula.

The court rejected the former wife's bid for her former husband to pay more than $700,000 in lump-sum maintenance for herself.

"Maintenance of an ex-wife supplements the division of matrimonial assets and is awarded only to even out any remaining financial inequities after division," said Justice Choo.

He noted that the wife earned more than $10,000 monthly as an assistant professor and can work for a long time.

Lawyers say the maintenance decision reflects the court's recognition of changes in societal norms, with wives usually self-supporting nowadays.

The case follows two earlier High Court decisions in April where women lost their bids to get maintenance.

Both had enjoyed financial independence and their marriages were brief, lasting between six and seven years.

One woman sought $120,000 in lump-sum maintenance while another wanted $6,500 monthly.

In the first case, the court found she had not depended on the husband during their six years of marriage and earned more than him as a regional sales manager of a multinational firm.

In the latter, Justice Belinda Ang ruled that the applicant "has to appreciate the new realities that flow from the breakdown of a marriage and should not expect to get all she asks for".

The judge also noted that she was an able and enterprising woman with "good business acumen".

vijayan@sph.com.sg


Background Story

EVEN OUT MONEY MATTERS

Maintenance of an ex-wife supplements the division of matrimonial assets and is awarded only to even out any remaining financial inequities after division.

- Justice Choo Han Teck

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

To view the judgment, click <here>.

HSA seeks public feedback on proposed changes to pharma laws

TODAY
28 Oct 2014
Emilia Tan

SINGAPORE — The pharmaceutical products industry may be allowed to self-regulate its advertising activities in future without having to apply for permits, as the Health Sciences Authority (HSA) looks at streamlining regulations to help provide greater clarity.

The proposed legislative change is among several that the HSA is seeking public feedback on.

It also wants to gather regulatory controls of pharmaceutical products, currently under different Acts, and consolidate them under the Health Products Act, so stakeholders would only need to refer to a single legislation, said the authority in a press release yesterday.

Under the proposed legislation, pharmaceutical products will be known as therapeutic products, which are defined as a health product that is intended for a therapeutic, preventive, palliative or diagnostic purpose, and its scope includes chemical and biologic drugs.

The HSA is also proposing to do away with the current system that requires industry players to apply for pre-approval when advertising therapeutic products. Instead, the industry would be allowed to regulate its product advertisements with a set of rules and guiding principles provided by the authority.

Such guidelines would prohibit the giving out of free product samples and advertisers cannot require consumers to buy the products in bulk before offering a discount or price reduction. Lucky dips, draws or contests to entice customers into buying therapeutic products would also be banned.

Advertisers would also be barred from using the endorsement of healthcare professionals, particularly if the models in the ads are wearing white coats or stethoscopes.

The advertisements must not lead consumers to self-diagnose any serious disease by themselves or encourage the excessive use of the therapeutic product.

They should also refrain from using superlatives such as “world’s best”, “miraculous” and “instant cure” to promote a therapeutic product. Any claims made must be accompanied by facts or objective evidence, and provided by a credible source, said the HSA.

The public consultation on the proposed legislative changes will end on Nov 23 and feedback can be submitted to the HSA at hsa_feedback@hsa.gov.sg.

emiliatankn@mediacorp.com.sg

Copyright 2014 MediaCorp Pte Ltd | All Rights Reserved

More time to determine widow's mental state

Straits Times
18 Oct 2014
Carolyn Khew

Court hearing moved to Nov 14 as medical expert is still in the process of gauging it

A HEARING yesterday to decide whether a wealthy widow has the mental capacity to revoke the Lasting Power of Attorney (LPA) she granted Chinese national Yang Yin has been rescheduled to next month.

With the legal document, Mr Yang, 40, a tour guide who claims to be a businessman here, can make legal decisions related to 87-year-old Madam Chung Khin Chun's welfare and finances, including what to do with her $40 million fortune.

The Family Court hearing was rescheduled to Nov 14 as the medical expert is still in the process of determining Madam Chung's mental state, said lawyers Peter Doraisamy and Andrew Lee yesterday. They are working for Madam Chung's niece, travel agency owner Hedy Mok, 60, who has separately applied for her aunt's LPA to be revoked, among other things.

Madam Chung, a retired physiotherapist, was examined by an Institute of Mental Health medical expert on Wednesday. She is trying to revoke the LPA she handed to Mr Yang two years ago.

In the meantime, Mr Yang's legal powers under the LPA have been suspended, and Madam Mok is temporarily in charge of making legal decisions on her aunt's behalf, although she must keep the Office of the Public Guardian informed.

Mr Yang is being investigated by the police for suspected criminal breach of trust. He is also being investigated by the Immigration and Checkpoints Authority and Manpower Ministry on how he had obtained his permanent residency and employment pass here, among other things.

kcarolyn@sph.com.sg

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New Act may make some games illegal

Straits Times
11 Oct 2014
Lester Hio

Game developers concerned about wide definition of gambling in Act

GAMERS who play Diablo III, World Of Warcraft and other popular online games might run afoul of a new anti-gambling law which was passed on Tuesday.

The Remote Gambling Act is designed to curb online gambling but lawyers say the provisions are drafted so widely they could have the unintended consequence of extending to playing video games where virtual loot can be won and later converted into real moolah.

Some local game developers are asking for greater clarity as they are afraid their creations might get them into trouble when the Act takes effect next year. Section 8 of the Act makes it an offence for anyone here to "gamble" through any unauthorised online gambling service. Offenders can be fined up to $5,000 or jailed up to six months or both.

At issue is the word "gamble" which is widely defined to include playing a game of chance for real money or money's worth, the latter encompassing virtual credits and objects.

Second Minister for Home Affairs S. Iswaran said in Parliament the Act is not intended to cover social games where players do not play for a chance to win money, either in cash or through converting in-game credits to money or real merchandise. "So games like Farmville, Candy Crush and Monopoly in their current forms would fall into this category. They're not the target."

The position on games where the virtual currency can be converted into real money within the game or sold outside the game on sites like eBay is less clear.

Veteran tech lawyer Bryan Tan said: "I'm not very comfortable with the wide definition of gambling in the Act."

Diablo III, for instance, was launched with a real money auction house where players could trade weapons and armour instantly for cash. The feature was removed in March. Whether an item sold for $2 or $250 depended on its statistics, which were randomly generated by the game. That can be considered a game of chance, Mr Tan pointed out.

"On a plain reading, it looks like such games will fall within the ambit of the Act. It will then be up to the Minister to make exemptions to these games," added the law partner at Pinsent Masons MPillay.

Local game developer Ivan Loo of Lambda Mu Games said: "The definition of 'a game of chance' in the Act is not very clear, and we are worried that the Act might outlaw us from developing games with elements of randomness in Singapore," said the start-up's chief executive.

But Mr Gilbert Leong, a partner at law firm Rodyk & Davidson, said he did not think it was the Government's intention to police all online video games. "In drafting the Act so widely, they might be keeping their options open in other ways," he said.

lesterh@sph.com.sg

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Heated panel debate over corporate governance

Straits Times
28 Oct 2014
Melissa Tan

Lawyers, finance experts disagree on importance of shareholders' interest

A PANEL discussion about corporate governance yesterday morning was so heated even the fire alarm went off.

While the latter turned out to be a false alarm, there was plenty of fire in the debate itself, with lawyers locking horns with asset managers and finance experts over whether listed companies should purely aim to maximise returns for shareholders or account for other factors, such as the environment.

One side, led by Professor Lynn Stout of Cornell University Law School in the United States, held that corporations should consider other stakeholders' interests and should not let themselves be held hostage by investors who may want share prices to rise in the short term at the expense of the long run.

Experts such as Hong Kong-based investor and analyst David Webb disagreed, arguing that firms are obliged to their shareholders to gun for profit and cannot be expected to volunteer to make themselves less competitive than their rivals.

The one-hour debate was part of a corporate governance conference held by the Securities Investors Association Singapore (Sias), which said yesterday that listed companies still have some way to go in improving their corporate governance.

"We must get companies, and occasionally regulators themselves, to see corporate governance beyond just ticking the boxes," said Sias honorary chairman Lim Hwee Hua, a former Cabinet minister.

Many companies see corporate governance requirements as an "external imposition rather than an internal drive towards better value creation and responsible stewardship", she told the conference.

"However, companies should aim to do better than mere legal compliance."

This was echoed by Mr Liang Eng Hwa, chairman of the Government Parliamentary Committee for Finance and Trade and Industry, who said listed firms could do more to boost their corporate governance.

Both he and Mrs Lim offered several suggestions on steps that companies could take.

Mrs Lim suggested that more companies could provide detailed explanations of their dividend policy and include a basic profile of directors seeking election.

They could also avoid bundling multiple resolutions together in their agendas at annual general meetings (AGMs), she added.

She said Sias will embark on a new project to analyse company annual reports and then publish a list of questions for discussion at AGMs.

Mr Liang suggested that companies could proactively adopt sustainability reporting - something fund managers increasingly consider before deciding to invest.

Firms should also look into providing a fairly new type of report called an integrated report, which more investors would likely be demanding soon, he said.

Sias president and chief executive David Gerald said in a statement yesterday that market players need to ensure that corporate governance standards and the market knowledge of retail investors can both continue to rise.

"Only when retail investors are confident that the playing field is not tilted against them would they be willing to participate in the market," he said.

The conference was part of Sias' fifth Corporate Governance Week, which coincides with the association's 15th anniversary.

The corporate governance event began yesterday and will run until Friday.

melissat@sph.com.sg


Background Story

LEGAL EXPERTS SAY:

Firms should consider other stakeholders' interests and not be swayed by investors who want share prices to rise in the short term at the expense of the long run

FINANCE EXPERTS SAY:

Firms are obliged to shareholders to gun for profits and should not volunteer to make themselves less competitive than their rivals

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Match-fixer's appeal: Judgment reserved

Straits Times
18 Oct 2014

THE High Court yesterday reserved judgment on the sentence to be handed down to match-fixer Eric Ding Si Yang, who is serving a three-year jail term for corruption.

Ding has appealed for a shorter term of a year's jail, while the prosecution has appealed for a heavier punishment of six years' jail and a $120,000 fine.

The 32-year-old businessman was sentenced in July by a district court for providing three Lebanese football officials with prostitutes as bribes for fixing future matches.

His appeal to the High Court against his conviction was dismissed last month.

Yesterday, Ding's lawyer, Mr Hamidul Haq, argued that the sentence was too harsh and disproportionate to the offences. He argued that no matches were fixed and there was no agreement to fix a match. Mr Haq said his client did not benefit from his actions and no harm was caused.

But Deputy Public Prosecutor (DPP) Alan Loh said such offences tarnish the country's reputation and pointed to foreign criticism that Singapore was not doing enough to combat match-fixing.

The DPP argued it was time to raise sentencing benchmarks for such offences, given changes in technology and the landscape of betting in sports.

He argued that a fine was warranted because it was the only way to deter match-fixing - a lucrative and entirely economic crime.

SELINA LUM

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Proposed Reit rule changes timely but can be better

Straits Times
11 Oct 2014
Grace Leong

SINGAPORE is one of Asia's largest real estate investment trust (Reit) markets, with a total market value above $61 billion. Given that, observers say central bank proposals to strengthen rules governing Reits and Reit managers are timely moves to boost transparency and better entrench unit-holders' interests.

But some observers point to areas that could be improved.

The Monetary Authority of Singapore (MAS) has proposed to impose a statutory duty on the Reit manager to prioritise unit- holders' interests over those of the manager and its directors, if a conflict of interest occurs. While that should enhance governance, corporate lawyer Robson Lee of Shook Lin & Bok asked why it is necessary to impose a statutory duty only if there is a conflict of interest, as that could "dilute" its effect. "By including that condition, you are creating a legal obstacle for minority unit-holders, by making them prove there was a conflict of interest."

To ensure accountability of the Reit manager, MAS proposed they submit themselves for reappointment at regular intervals, and be subject to unit-holders' approval at a general meeting.

Mr Lee suggested there should be an independent financial adviser, appointed by the audit committee of the Reit manager, assessing the manager's performance so that unit-holders can be guided objectively.

Also, the decision to re-elect the manager should be made by minority unit-holders, while the sponsor should abstain from voting. "There's no secure tenure for the Reit manager, if their reappointment is subject to unit- holders' approval," he said.

Most observers also backed the proposal to restrict the remuneration of executive directors of the manager from being linked to Reit revenues as they may be in the sponsor's employee share option plans or get part of their compensation in the form of sponsor shares. That could remove the incentive to prioritise the sponsor's interests over unit-holders'.

Ascendas Funds Management (AFM) chief executive Tan Ser Ping noted it may be necessary to consider independent Reit legislation to govern the industry, which now accounts for about 8 per cent of total market capitalisation on the Singapore Exchange.

A-Reit and its manager AFM already practise many of the proposed governance changes, he said. AFM's board has five independent directors out of seven, including an independent chairman; and A-Reit's performance fee structure is already linked to distribution per unit, he said.

MAS proposes to calculate the performance fee by linking such fees to "an appropriate metric" - net asset value per unit or distribution per unit - taking into account the long-term interest of the Reit and its unit-holders.

Meanwhile, a proposal to remove the option for credit-rated Reits to leverage up to 60 per cent, and instead put in place a single-tier leverage limit of 45 per cent, up from the current 35 per cent, whether the Reit has a credit rating or not, would likely help the Reit's growth potential. DBS Group Research said this would allow more flexibility in acquisitions, and place S-Reits in line with regulations in Malaysia and Hong Kong.

While acknowledging that taking on development risks may lead to higher returns, DBS in a report yesterday said it remains cautious on proposals to raise the development limit to 25 per cent to enable a Reit to undertake redevelopment projects as it may imply "potentially higher earnings volatility" for a stable sector.

gleong@sph.com.sg

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Details of proposed animal law unveiled

Straits Times
28 Oct 2014
David Ee

Animal-related businesses will have grace period to meet requirements

ANIMAL-RELATED businesses would be given time to ensure that their staff meet the new training requirements under proposed laws for better animal welfare.

A grace period of one to two years would allow animal handlers at these businesses, such as pet grooming services, pet hotels and horse-riding schools, to meet the requirements.

The leeway would give these businesses more time to prepare themselves, said Mr Yeo Guat Kwang, Member of Parliament for Ang Mo Kio GRC, at a media briefing yesterday to provide more details about the Bill. Mr Yeo and his fellow MPs - Mr Alex Yam, Mr Gan Thiam Poh, Mr Edwin Tong and Mr Vikram Nair - had tabled the Private Member's Bill in Parliament earlier this month.

Among the proposed amendments to the Animals and Birds Act is a requirement for staff working with animals in relevant businesses to be trained in animal care and handling. The precise training requirements will be published at a later date, said Mr Yeo.

He added that a panel formed by the Government last year to strengthen collaboration for animal welfare will work with the Singapore Workforce Development Agency and the Employment and Employability Institute (e2i) to standardise the training and raise the number of training providers.

The Bill also requires those in charge of animals, including pet owners, animal shelters and animal fosterers, to ensure reasonable care for them. Those who neglect their animals will, for the first time, face a fine of up to $20,000 and/or a two-year jail term.

Animal abusers will face fines of up to $30,000 and/or a three-year jail term, up from fines of up to $10,000 and/or a one-year jail term. Animal-related businesses that contravene the proposed law face fines of up to $100,000 and/or a three-year jail term, up from up to $10,000 in fines and/or a one-year jail term.

Under the Bill, enforcement officers would be able to refer to any photographic, audio or video evidence to investigate animal cruelty offences. Previously, they had to have witnessed the offence.

The proposed penalties are lower than those recommended by a panel chaired by Mr Yeo and set up by the Government in 2012 to review animal welfare laws.

Mr Yam, an MP for Choa Chu Kang GRC, explained that this was to keep the penalties for animal cruelty proportional to those for similar offences against people. "(For) an act of cruelty to an animal, it's very hard... to say it warrants a higher fine or summon or penalty than a similar act to a human," he said.

The Bill will be debated in Parliament on Monday.

davidee@sph.com.sg

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SMU ranked 17th among world's top law school buildings

Straits Times
18 Oct 2014
K.C. Vijayan

THE Singapore Management University (SMU) School of Law may be just seven years old, but it has beaten its counterparts at Yale, Stanford and Harvard - when it comes to having an impressive building.

SMU was ranked No. 17, ahead of these top universities, in a list of the world's top 50 law school buildings. It was the only Asian entry.

The rankings were compiled by Best Choice Schools, an online resource based in the United States which aims to help students find the best universities in the world.

Top of the list was the law school of Durham University in England, followed by the University of Northumbria at Newcastle in England and the Thomas Jefferson School of Law in California in the US.

Said Best Choice: "These architectural giants were chosen for their ingenuity, aesthetic beauty and commitment to creating an environment that honours the history and study of law.

"Many of these buildings house some of the world's most prestigious and selective law programmes, and a number of them set a precedent for green building standards and solutions." Best Choice described SMU's Li Ka Shing Library, where its law school library is located, as "a modern masterpiece of glass and greenery".

SMU's Kwa Geok Choo Law Library, due to be completed in 2017, will be a "stunning accompaniment to a campus that stands as a bastion of modern architecture", it added.

SMU law school dean Yeo Tiong Min said the Kwa Geok Choo Law Library, a key feature of the new School of Law being built, "will take on a distinct architectural form reminiscent of a pearl".

SMU president Arnoud De Meyer said yesterday: "The SMU campus offers an open environment in the heart of Singapore. I am delighted that our efforts are being recognised."

vijayan@sph.com.sg

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Medical expert to assess widow's mental state

Straits Times
11 Oct 2014
Toh Yong Chuan & Carolyn Khew

Court to decide if control of assets can be revoked based on report

THE mental state of a wealthy widow who handed control of her assets worth $40 million to a former tour guide will be assessed by an independent medical expert.

Based on the report, the court will decide whether 87-year-old Chung Khin Chun can take back control of her assets by revoking the Lasting Power of Attorney (LPA) that she gave Chinese national Yang Yin in 2012, four years after meeting him.

The decision to appoint a medical expert was made by the Family Court yesterday, at the request of the Office of the Public Guardian (OPG), after a two-hour closed door hearing.

This was disclosed to reporters by Mr Peter Doraisamy, lawyer for Madam Chung's niece, Madam Hedy Mok, after the hearing.

The OPG, which runs the LPA scheme, will try its best to have the Institute of Mental Health expert submit the assessment before the next hearing on Oct 17.

This was according to Attorney-General's Chambers deputy chief counsel Hui Choon Kuen, who represented the OPG during the hearing.

The saga began after Madam Mok found out about the 2012 LPA earlier this year. Worried that Mr Yang, 40, may have manipulated her aunt, Madam Mok took Madam Chung away from his care.

She also started a series of legal proceedings which included suing Mr Yang and his wife, Madam Weng Yandan, 34, for allegedly breaching their duties in caring for Madam Chung.

Mr Yang is also under police investigation after reports emerged on how he had boasted about his wealth two months after Madam Chung gave him the LPA.

The former tour guide, however, said that Madam Chung wanted him as a "grandson".

He moved into her $30 million Gerald Crescent bungalow in 2009, a year after acting as her personal guide on a trip to Beijing.

With the help of the widow, he set up a music and dance school and obtained an Employment Pass in 2009. He became a Singapore permanent resident in 2011. Last year, his wife and two young children moved into the bungalow. They were evicted by Madam Mok early last month.

Since then, Mr Yang has come under probe by the Immigration and Checkpoints Authority and the Ministry of Manpower.

At a press conference two weeks ago, a lawyer appointed by Madam Mok to act on behalf of her aunt announced that the widow had applied to the OPG to revoke the LPA.

The OPG then applied to the court to ask for an independent assessment of Madam Chung's mental state. Last week, the court decided to temporarily suspend Mr Yang's powers under the LPA.

tohyc@sph.com.sg

kcarolyn@sph.com.sg

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4 weeks' jail for causing death by a negligent act

Straits Times
28 Oct 2014
Elena Chong

A MOTORIST who drank some wine at a birthday party before causing a fatal crash at a signalised cross junction was jailed for four weeks yesterday.

Ng Cheng Guan, 56, whose breath alcohol level was found to be within the prescribed limit, was also banned from driving for five years.

Ng, who is self-employed and in the construction business, admitted to causing the death of motorcyclist Lionel Kiew Hern Kit, a 24-year-old safety officer, on Nov 20 last year.

Ng was making a right turn from Jalan Bukit Merah into Henderson Road sometime before 11.12pm when he failed to keep a proper lookout for other vehicles or give them the right of way.

The court heard that he had at least two half-glasses of red wine earlier at a friend's birthday party and was taking his 42-year-old girlfriend home in his Mazda car when the accident happened.

Ng made the right turn without a green right-turning arrow. He encroached into Mr Kiew's path, resulting in the motorcycle hitting the left rear portion of the car.

Mr Kiew suffered multiple injuries and died about four hours later in hospital.

Ng's lawyer, Mr Louis Joseph, said in mitigation that his client was not speeding, driving dangerously or sleepy. He had also rendered help to the victim.

He said Ng was very sorry for the family of Mr Kiew and has been psychologically traumatised by the events and still has sleepless nights.

Ng has traffic-related convictions for speeding, inconsiderate driving while carrying a mobile phone and failing to conform to red lights.

He could have been jailed for up to two years and/or fined for causing death by a negligent act.

ELENA CHONG

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‘Robin Hood’ debt collectors face iron rods, hot water in retrieval of money

TODAY
18 Oct 2014
Amanda Lee

SINGAPORE — They have been chased off with an iron rod, had hot water flung at them and even been accused of damaging property, all in their endeavour to help those owed money claim what is theirs — for a fee.

And while they are sometimes mistaken as loansharks harassing debtors into returning monies, their clients, in fact, range from businesses seeking payment to individuals who may have been duped into making loans. They even negotiate with moneylenders on behalf of debtors.

In the wake of a video of debt collection agents creating a commotion outside an alleged debtor’s home that went viral — calling into question the methods employed by such agents — the founder of the company that employed the agents has stepped forward to shed some light on the industry.

At one time, he was an employee of a logistics company that he occasionally helped collect payments for on top of his delivery duties, but in 2004, Mr Roger Rajan, 42, started the debt recovery and collection company, JMS Rogers. “(It) struck my mind ... It’s a good business so I started working on it,” he said.

With legal costs rising over the years, his business grew steadily, Mr Roger said, adding that legal proceedings are also time-consuming. “(We) help those people who have been victimised … A lot of people cannot afford the legal cost,” he said.

Each month, his company handles about 130 cases, with the aim of settling debts within three months or reaching an agreement, such as having the debt paid in instalments.

For debts below S$3,000, clients pay fees ranging from S$250 to S$350. For sums larger than that, clients pay from S$1,350 and up. On top of that, JMS Rogers takes 20 per cent of the monies owed.

There is no licensing requirement or legislation that regulates debt collectors in Singapore, but Mr Roger said he takes care to operate within the confines of criminal law.

The company starts by sending a letter of demand to the debtor. This is followed by phone calls and if there is no response, the company’s “field agents” visit the debtor’s home or the organisation.

Mr Roger said his agents include ex-offenders and former police officers. Dressed in uniforms, they usually make visits in groups of three of four for safety. They are also trained in negotiation skills and wear spy cams to ensure the proceedings are on record.

With regard to attacks his agents may experience, Mr Roger said: “To prevent any such incidents from happening, we will give the videos or (whatever evidence) to the authorities, who will investigate the matters.”

The uniforms, he added, help distinguish them from loansharks. The agents are also trained not to be physical and to call the police should the situation turns ugly.

He described his agents as Robin Hoods. Referring to the video that went viral, Mr Roger said the debtor in question had cheated a man with Down Syndrome by introducing him to illegal moneylenders and borrowing money in his name, claiming he was setting up a business. Traumatised by being harassed by loansharks, the victim’s mother engaged JMS Rogers to help.

Mr Roger said the debtor showed his agents a letter said to be signed by the victim, stating that the debtor need not pay off the debt. However, the victim said he did not sign the letter.

In such a situation, Mr Roger said he had to advise mother and son to file a police report, as it could involve forgery.

Lawyers TODAY spoke to said such debt collection agencies are a more affordable alternative for creditors, but advised customers to be cautious.

Mr Raj Mannar from Peter Low LLC said customers should be very careful about the terms and scope of the agency’s duties.

“So bind him by contract to make sure he doesn’t do anything that could (fall far out) of the law,” he added. “That would protect the debt collector as well as the … creditor.”

Mr Sunil Sudheesan of RHTLaw Taylor Wessing noted that the law covers the more dubious aspects of debt-collection methods.

“Existing laws already cover harassment, intimidation and violence, so additional regulation might add little to the equation.”

However, Mr Josephus Tan from Fortis Law Corporation felt it was timely to look at regulations for such agencies. “I would think that it’s better to set the perimeters,” he said.

leeguiping@mediaorp.com.sg

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Legal profession's unregulated pricing structure: Forum

Straits Times
11 Oct 2014

IN DEFENCE of the Singapore Medical Council (SMC), I believe it was not paying private lawyers whatever fees they asked for, as it followed the standard practice of sending disputed bills for an independent assessment ("Medical, legal professions need to clear the air" by Dr Jeremy Lim Fung Yen; Oct 3).

The legal profession here has an unregulated pricing structure and clients face bills for thousands of dollars compiled, in the main, from the law firm's arbitrary calculation of hourly records, printing costs, conferencing, stationery and personal client contact.

Lawyers' rates can average $700 per hour. By comparison, most doctors appear to charge a paltry $30 to $100 for a long consultation.

Complaints to the SMC have increased over the last few years because direct legal redress is far too expensive for the majority of the population.

Even then, doctors are covered by their medical insurance brokers, whether they win or lose the case, and most private hospitals avoid vicarious liability as they hire doctors as consultants.

It is wrong to compare the quantum of litigation fees with that in the United States as the courts here do not have provision for excessive punitive damages.

I previously advocated a contingency fee system ("Case for contingency fees in litigation"; Forum Online, Feb 24), which the Law Society is considering.

Perhaps a greater allocation of younger lawyers to prepare cases pre-trial could help to limit costs and provide employment to industry entrants.

Philip Williams

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Nobel Design raises red flag over director's conduct

Straits Times
27 Oct 2014
Melissa Tan

THE board of mainboard-listed furniture company Nobel Design Holdings has raised a red flag over the conduct of its former chief executive and chairman, who is now a non-executive director.

The firm, which is considering legal action, told the Singapore Exchange (SGX) recently there was "evidence to suggest" that Mr Bert Choong has acted against Nobel's interests and possibly breached his fiduciary duties as a company director.

The board said in its SGX filing Mr Choong failed to disclose that a furniture retailer called Studio 216, owned by his wife and son, had been set up in Kuala Lumpur in February this year.

Mr Choong had also allegedly lied in an e-mail he sent last year to Porada, which is a principal supplier of one of Nobel's subsidiaries, Marquis Furniture Gallery. He had said that he was helping Marquis set up a Kuala Lumpur showroom for Porada but that was false, Nobel's board said.

On top of that, he allegedly did not tell the board that Studio 216 was selling furniture from Porada, among other suppliers, making it a direct competitor to Nobel's business interests in Malaysia, the board said. He may have placed himself in a situation where there is a conflict of interest and contravened his obligations as a company director, it added.

It noted that although the board has given him several chances to explain his conduct, he "has not responded satisfactorily to all the company's enquiries".

It said it is taking legal advice on its next course of action.

In the meantime, Mr Choong remains a non-executive director at Nobel and continues to have access to information about business plans and activities.

He was chief executive from 1996 until March 2010, when he was replaced by Mr Terence Goon, who remains in that position. Mr Choong was replaced as chairman in June last year by Mr Adrian Chan, a corporate lawyer. Mr Chan is a non-executive chairman and independent director at Nobel Design.

News of Mr Choong's alleged activities has hardly made a dent in the company's stock, which is thinly traded. No shares have changed hands since the board's statement on Oct 17. The counter last closed at 41 cents on Oct 15.

melissat@sph.com.sg

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Ex-Airocean director's conviction set aside

Business Times
17 Oct 2014
Michelle Quah

ONG Chow Hong, one of four former directors of Airocean Group who were charged and convicted over what was then deemed a misleading statement by the company, has had his five-year conviction overturned.

Justice of Appeal Chao Hick Tin, in his oral judgment on Thursday, set aside Mr Ong's conviction on the grounds that more recent judgments involving other former Airocean directors have established that the statement was "not misleading in a material particular".

Mr Ong, then a non-executive chairman and independent director of Airocean, had been convicted for allowing the issuance of an announcement on Nov 25, 2005. The announcement had to do with the then chief executive, Thomas Tay, and omitted to state that Mr Tay had been questioned by Corrupt Practices Investigation Bureau (CPIB) officers on matters involving Airocean subsidiaries.

The announcement made it appear that the CPIB investigations concerned other companies in the industry rather than Airocean itself.

Mr Ong was charged with failing to use reasonable diligence in the discharge of his duties as a director. He said he had approved the announcement without reading it, because he had to attend a golf event and formal dinner held by Aljunied Town Council, and had relied on Airocean's lawyers to deal with the announcement.

He pleaded guilty, was fined S$4,000 in August 2009 and banned from being a director for one year. After he appealed against the ban, it was extended to two years by the appeals court in May 2010.

Other former Airocean independent directors, Peter Madhavan and Ong Seow Yong, and the company's former COO, Johnson Chong, were charged in July 2008 over the same announcement. They were all found guilty - with Mr Madhavan even being handed a jail term. Upon appeal, however, they were acquitted of all charges in July 2012.

Then-Chief Justice Chan Sek Keong had said in his appeal judgment: "There is insufficient reliable evidence to show beyond a reasonable doubt that the information was likely to materially affect the price or value of Airocean shares; and the DJ (Subordinate Courts District Judge Liew Thiam Leng) erred in holding that Airocean was reckless in not disclosing the information."

In October 2013, Mr Tay had his convictions over similar charges overturned as well.

In considering Mr Ong's petition to have his conviction set aside, Justice Chao said: "Given the fact that the petitioner's conviction arises out of the same factual matrix as (the case involving the other directors), it would be highly anomalous if the petitioner remained convicted whereas the appellants in that case were acquitted of the charges against them in relation to the making of the announcement. "If in fact the announcement and the information therein were considered not to be misleading in a material particular, I cannot imagine that anyone would be charged in relation thereto, far less the petitioner," he added.

Justice Chao noted that Mr Ong had already paid the fine of S$4,000 and served out the disqualification order - to act as a director - of 24 months. He, therefore, ordered the S$4,000 fine to refunded to Mr Ong.

michquah@sph.com.sg

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Woman jailed four years for stabbing

Straits Times
11 Oct 2014
Selina Lum

She pleaded guilty earlier to hurting female ex-lover

A 25-YEAR-OLD woman who stabbed her former girlfriend after the latter refused to get back into a relationship with her, then turned the knife on herself, was yesterday jailed for four years.

Giselle Shi Jia Wei, whose eyes were filled with tears throughout the court session, had pleaded guilty last week to attempted culpable homicide by stabbing Ms Ummul Qurratu 'Ain Abdul Rahman, 22, twice in the chest in a Geylang hotel room in July 2012. A charge of attempted suicide was also taken into consideration.

The courtroom was packed with Shi's friends and family, including her parents, who declined to comment after the verdict. The victim was not present but told the court in a statement she was "angry" and "disappointed" with her former lover.

In passing sentence, Justice Choo Han Teck said that a long jail term would not serve much public interest and that Shi's sentence should "lean towards rehabilitation".

Prosecutors had sought five years' jail for Shi, arguing that her premeditated actions had caused physical and psychological harm to the victim.

Deputy Public Prosecutor Sellakumaran pointed out that Shi had bought a knife which she kept in her bag before she went to meet her former lover. He also read out parts of the victim's statement on how the attack has impacted her.

"Even now, I am angry with Giselle and what she had done to me. I was disappointed with her. Having to go through the court trial, it was very stressful and I feel that I was the offender instead of Giselle," said Ms Qurratu 'Ain.

The victim said she now buttons her shirts to the top to hide the 21cm scar on her chest and suffers from nightmares and flashbacks.

But Shi's lawyer, Mr Daniel Atticus Xu, painted the attack as a crime of passion and contended that his client was depressed at the time.

Mr Xu produced letters from Shi's friends vouching for her character and asked for a report to determine if she was suitable for probation. He added that Shi's family has offered to pay the victim's outstanding medical bills of about $6,000.

The court had heard earlier that the pair's romantic relationship, which started in July 2011, was fraught with quarrels due to Shi's possessiveness.

Following a spat on July 14, 2012, Shi told Ms Qurratu 'Ain she wanted to end their relationship.

Three days later, the pair spent the night at a Geylang hotel where Shi tried to patch things up but to no avail. On July 22, the pair checked into the hotel again, with Shi carrying the knife in her bag.

While the victim was lying naked in bed, Shi asked to start afresh. When she rejected her, Shi stabbed her before stabbing her own chest. The victim tried repeatedly to leave the room but was foiled by Shi each time. Eventually, she escaped and sought help from a couple, who called the police.

Shi initially claimed trial to attempted murder but following representations from her lawyers, the charge was amended to a lesser one of attempted culpable homicide, which carries a maximum jail term of 15 years.

selinal@sph.com.sg

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Judging the true independence of a director

Business Times
27 Oct 2014
Adrian Chan

IDs should be ready for shareholders' questions at AGMs; greater scrutiny will motivate them to take their role more seriously

IT is widely recognised that independent directors (IDs) have a key role in upholding corporate governance as they are often regarded as the first line of defence against misfeasance.

There is, however, considerable debate over what constitutes independence, and how a director is truly independent.

The Code of Corporate Governance defines an ID as someone "who has no relationship with the company, its related corporations, its 10 per cent shareholders, or its officers that could interfere, or be reasonably perceived to interfere, with the exercise of the director's independent business judgment with a view to the best interests of the company".

The code goes on to require the board, backed by the nominating committee (NC), to determine "whether the director is independent in character and judgment".

This begs the broader question: is the board or the NC the best judge of a director's independence? And if not, whose judgment counts?

Who judges independence?

The Singapore Code considers the board the best arbiter. This is consistent with the approach taken by the New York Stock Exchange and the Nasdaq Stock Market.

However, are board directors themselves the best judge of a fellow director's independence? Is there an inherent conflict of interest when the NC, which comprises mainly of IDs, is asked to vet each other's independence?

This issue is significant in the light of the common practice where the IDs of a listed parent company also serve as IDs on the board of the parent company's listed subsidiary. Can the IDs on the subsidiary's board be truly independent from its major shareholder when they are also directors of the parent company?

Third parties?

There have long been calls for shareholders or an independent third party to vet the independence of IDs.

Those who back shareholders making the call argue that since shareholders already hold the right to approve the appointment of directors, it is but a small stretch for them to also vote on the IDs.

Taking the argument further, some observers have proposed that the majority shareholders, who already have board representation, should not be permitted to influence the choice of IDs. Instead, minority shareholders should fulfil this role.

The rationale is that the IDs are purportedly there to primarily protect the interests of minority shareholders (rather than all shareholders). This is a point of contention in itself and a topic for another discourse.

In practical terms, however, minority shareholders may not be in much of a position to be judge and jury. They are not in a position to observe how a director performs at board meetings, or to assess if he exercises an independent mindset when he questions management, or queries interested party transactions. Minority shareholders simply will not have first-hand visibility of a director's role as an independent voice.

Besides, minority shareholders are not vested with the responsibility to decide such issues with impartiality or objectivity (unlike directors who have such a duty under law). In all likelihood, minority shareholders will be prone to vote for their own self-interests above the company's interests.

The argument also holds that it may be too drastic to deny the majority shareholders their right to vote on their shares since not all major shareholders control the composition of the board.

Alternatively, some have called for an independent third party to provide the clearance for IDs, such as the stock exchange or even the Singapore Institute of Directors. There is precedence for this in Asia.

The Hong Kong stock exchange, while requiring boards to determine independence, also takes it upon itself to assess the independence of such directors. It requires each ID to submit a written confirmation of his suitability to the exchange. The listed company then supports the credentials to the satisfaction of the exchange prior to the ID's appointment

The way ahead

There is merit in considering greater rigour in determining directors' independence.

The regulations can perhaps require that certain conditions first be met for the acceptance of an ID's independence each year. For example, the rules can insist that nominated IDs specifically disclose pertinent information to shareholders and their approval be obtained, such as when a director may have already served for more than nine years, or if he has a relationship that does not reasonably satisfy the prescribed parameters set out in the code.

This greater scrutiny will motivate IDs to take their role more seriously. If necessary, the shareholder's vote can be employed as a non-binding one. IDs should be prepared to stand up and be questioned by shareholders at annual general meetings. After all, independence should ultimately be a demonstrable and measurable quality, and subject to challenge.

The writer is the first vice-chairman of the Singapore Institute of Directors

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Owners 'can break boardroom deadlock'

Straits Times
17 Oct 2014
Grace Leong

They can exercise management powers in some cases: High Court

THE High Court has ruled that shareholders in some cases can exercise management powers and appoint lawyers to break a deadlock in the company's board.

The ruling delivered last week stemmed from a high-profile spat between the founders of luxury watch retailer The Hour Glass.

Dr Henry Tay and former wife Jannie Chan divorced in 2010 but remain the permanent governing directors of TYC, which owns about 108 million shares, or 46 per cent, of The Hour Glass.

TYC last year sued Ms Chan for refusing to approve the payment of several expenses, including legal and accounting fees, among other things.

But Judicial Commissioner Lee Kim Shin found Ms Chan did not breach her fiduciary duties as a director when she refused to approve payments to KPMG, which had advised the couple on tax and accounting issues arising from their divorce settlement.

Ms Chan also refused to approve payment of corporate secretarial fees to Express Co Registration & Management, as well as legal fees to TSMP Law. TSMP Law was appointed by shareholders Dr Tay and his son Michael, who together have 51 per cent of voting rights in TYC Investment, the family's investment vehicle.

They had passed resolutions at an extraordinary general meeting (EGM) on Sept 4 last year, to appoint the law firm to sue Ms Chan to get her to perform her contractual obligations, including making payments to TYC's creditors.

But the judge noted that her refusal "stemmed from her honest belief that the EGM had not been validly convened, and, consequently, TSMP Law was not properly appointed".

This legal spat comes one year after the pair had settled a separate suit out of court.

Dr Tay had taken out an injunction to stop Ms Chan from making unilateral payment decisions on behalf of TYC.

Part of the settlement involved an undertaking that both parties would have to agree on a payment before TYC could act. But this "check and balance" clause led to the most recent case, with Ms Chan accused of withholding her approval for payments.

The judge found that Ms Chan had an "honest, bona fide belief that KPMG ought not to be paid because it had not discharged fully or properly its obligations under the terms of the engagement".

Ms Chan contends that KPMG should have checked with her if she was living at a condominium unit at 15 Nassim Road before rendering its opinion on the effect of the divorce settlement on her personal income tax.

This was especially important as her occupation of the unit was likely to be treated as a taxable employment benefit, valued at around $200,000, the judge said.

But the High Court held that TSMP Law was validly appointed as TYC's lawyers at the EGM and that TYC is liable to pay TSMP and Express Co.

However, the court declined to determine if the fees are "reasonable and ought to be paid by TYC", saying these were matters for the company and its directors to decide.

The judge said he was "satisfied that it was reasonably necessary for the EGM to have limited power to appoint solicitors to commence proceedings to determine the rights and obligations of the relevant parties under the Divorce Settlement Agreements so as to break the deadlock in management".

"In coming to this conclusion, I was mindful... the proceedings were commenced against a director who herself could prevent the company from suing.

"In circumstances where the board itself was incapable of making a disinterested decision, I was fortified in my view that it was reasonable for the EGM to exercise the power to do so."

Dr Tay and Ms Chan are appealing against the portions of the ruling they lost.

gleong@sph.com.sg

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To view the judgment, click <here>.