22 February 2018
A | A

Close watch by banks and developers on imported services GST

Business Times
22 Feb 2018
Jamie Lee

BANKS with operations here are likely to be watching their expenses on imported services a little closer than before, as a small portion of goods and services tax (GST) will be levied on them in two years' time.

This will not just hit the three Singapore banks buying services from abroad, but will also affect Singapore subsidiaries of global banks that use offshore call centres, or incur shared expenses spent on group-wide costs such as IT systems, tax experts told The Business Times. Other financial firms such as insurance companies and credit finance firms will feel some impact as well.

Residential property developers too, will soon be charged for GST for such services sourced from abroad, tax experts said. So home buyers may want to watch the price of name-dropping when it comes to residential properties. "They (developers) do hire brilliant architects," quipped Lam Kok Shang, head of global indirect tax services, Singapore, at KPMG.

The government has set a 2020 deadline in charging the goods and services tax (GST) on imported services, according to the Budget announcement made this week by Finance Minister Heng Swee Keat.

The Inland Revenue Authority of Singapore (IRAS) is still seeking feedback until March 20, 2018.

But what is clear is that in the business arena, the actual pinch should mainly be felt on financial services firms and property developers. Charities, as well as restructured hospitals, will also be affected, tax experts said.

This GST move only hits specific sectors because most other businesses buying imported services are eligible for a GST refund as long as the imported service is regarded as an input that is used to make taxable supplies of goods and services. So the government levies GST on the final product or service sold here.

But banks, insurers, and residential property developers are part of the minority that sell goods and services that are exempted from GST. The taxman does not collect GST on bank loans sold to customers, on life insurance, or on homes sold.

That means these businesses cannot claim a GST refund for imported services. And only businesses that get no GST refund or a partial refund, will have to apply a reverse charge to account for this new tax on imported services. A reverse charge means a business would pay to the tax collector the GST on imported services, and then claim back the amount paid.

Singapore's GST is now at 7 per cent, but this will rise to 9 per cent in the earlier part of 2021 to 2025.

To be clear, banks should not be charged the headline GST figure, because they can claim a significant amount back from the taxman under a rule specific to finance firms, tax experts said. The current recovery rate for banks, which is set annually, is 72 per cent, tax experts said. Based on today's rate, banks could effectively be charged about 2 per cent for qualifying services bought from aboard.

The applied rate differs across the industry, and reflects how much of financing has gone to consumers versus corporates, tax experts said.

Banks that outsource to overseas vendors the processing of documents and customer service calls, or buy IT services from abroad, should see a higher tax bill.

The consultation draft from IRAS this week added that fees of directors who do not reside in Singapore can be taxed. So will legal and professional services related to overseas collaterals, among other things.

BT understands that there was lobbying from banks on excluding salaries as an expense that would incur GST, with salaries typically being the largest expense for most organisations. In the current IRAS consultation draft, IRAS said the wage component of inter-branch transactions is excluded from GST accounting.

The move will inevitably erode some cost competitiveness, said Koh Soo How, Asia-Pacific indirect tax leader, PwC Singapore. He pointed out that Hong Kong is unlikely to take the same path. Hong Kong does not charge GST.

The affected industries are taking a wait-and-see approach, noting that the changes only take effect in 2020.

OCBC's head of group tax Jane Lim said the new tax measure is not likely to result in a major shift in the bank's procurement decisions.

"We are unable to ascertain the new measure's full impact on our bank at this point as the implementation details have yet to be finalised. But based on our preliminary assessment, we do not expect the expenses arising from this change to be significant," she told The Business Times.

"Also, cost is just one criteria in our assessment of services overseas. We take into consideration a number of other factors including the nature and availability of the service."

A DBS spokesman said: "We are reviewing the guidance and will provide feedback to the relevant authorities to ensure that the new rules can be implemented effectively and efficiently. DBS reviews our operations and procurement policies regularly and will take into account the new GST requirements once IRAS has issued their confirmed guidance."

UOB, CapitaLand and City Developments declined comment, saying it is premature to comment at this point.

There are meanwhile signs that Singapore's financial services firms have been taking some operations onshore. Anecdotally, banks here have offices at Changi Business Park.

A survey by recruitment firm Robert Half in October 2017 showed that 44 per cent of Singapore's chief financial officers (CFOs) within financial services have increased their level of onshoring in the last two years.

About 60 per cent of CFOs within financial services refer to the rising costs and skills shortage in offshore regions as reasons for returning onshore. Just under half also said they were motivated to move back given the complaints about service, and poor efficiency. Almost half of those who have returned business activities to Singapore say it has resulted in increased productivity, higher service quality, and better cost efficiency.

Still, banks - like many organisations - are constrained in hiring more foreign labour due to ongoing curbs. This is why they have also been using technology to boost productivity.

The Robert Half survey further showed that if there are specialised skills available here, 43 per cent of the CFOs polled would consider shutting down offshore activities.

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

Man on death row on drug charges set free

Straits Times
13 Feb 2018
Aw Cheng Wei

Apex court rules he proved he did not know of hidden drugs in motorcycle he was riding

In a rare 2-1 decision, the apex court acquitted a man on death row for drug possession.

According to a judgment released yesterday, Mr Gopu Jaya Raman successfully proved that he did not know that controlled drugs were hidden in the motorcycle he was riding into Singapore.

He contested the High Court's judgment for not giving "due weight to evidence" showing that he did not know about the drugs.

On March 24, 2014, Mr Gopu, a Malaysian, was found trying to enter Singapore through Woodlands Checkpoint with three black bundles of diamorphine hidden in his motorcycle's fender.

When immigration officers stopped him and found the drugs, he said he did not know the drugs were hidden in the motorcycle.

Mr Gopu, 28 then, also said the motorcycle was not his.

While he was crossing the Causeway earlier, Mr Gopu said he had a call from the man who helped him borrow the motorcycle, asking him to call after he entered Singapore.

Mr Gopu then suspected that the motorcycle carried drugs as he had brought drugs into Singapore on two other occasions before he was arrested that evening.

He was trying to pay back a loan of RM4,000 (S$1,340) to the man who had got him the motorcycle. The man had threatened to hurt his family if he did not traffic the drugs.

After the call, Mr Gopu then checked the compartment where the drugs were hidden previously but he did not find anything.

After the authorities found the drugs, they got Mr Gopu's help to try to nab the others in the ring who might turn up to collect the drugs, the judgment stated. The operation, however, was called off when no one turned up.

Authorities monitored his conversation with the man who had helped to get him the motorcycle.

After listening to a number of exchanges, officers told Mr Gopu to send a message, indicating that he had no knowledge of the drugs.

In yesterday's judgment, Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash found that the High Court judge had not considered what the man had said in the monitored conversation when he responded to Mr Gopu's allegations that he did not know about the drugs.

According to the judgment, the man had responded to Mr Gopu, asking him to forgive him and to take the motorcycle back to Malaysia.

The judges also found that Mr Gopu would have missed the drugs when he was checking for them, given the bundles' "size and dark colour".

As it is "inherently difficult to prove a negative... the burden on Mr Gopu should not be so onerous that it becomes virtually impossible to discharge", the judgment stated.

The sole dissenting judge was Judge of Appeal Tay Yong Kwang. He was not convinced by Mr Gopu's reasons for entering Singapore or how he came to possess the motorcycle. He said Mr Gopu's admission to trafficking drugs into Singapore on the same motorcycle on two other occasions did not bolster his credibility.

He said the "evidence pointed clearly to the conclusion that this was (Mr Gopu's) third drug delivery or import into Singapore to repay the loan that he had taken". "Unlike the previous two occasions, the third delivery was unsuccessful."


NOT CONVINCED

Evidence pointed clearly to the conclusion that this was (Mr Gopu's) third drug delivery or import into Singapore to repay the loan that he had taken.

JUDGE OF APPEAL TAY YONG KWANG, the sole dissenting judge in yesterday's judgment. Mr Gopu had trafficked drugs into Singapore on two other occasions before he was found out on March 24, 2014. He had been trying to repay a RM4,000 loan.

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

Former key Keppel execs arrested in corruption probe

Straits Times
02 Feb 2018
Grace Leong

Several former key executives of Keppel Corp and its offshore and marine units have been arrested in connection with the Singapore authorities' investigation into the corruption scandal involving Keppel Offshore & Marine (Keppel O&M).

The Straits Times understands that they include Mr Tay Kim Hock, former president and chief executive of Keppel Fels Brasil, a wholly owned unit of Keppel O&M. He was arrested by the Corrupt Practices Investigation Bureau (CPIB) and is currently out on bail.

It is understood that more than five others connected with the case are also out on bail.

Mr Tay was president and chief executive of Keppel Fels Brasil from June 2000 to October 2007.

The Straits Times understands that the former executives had been called in by the Singapore authorities to assist with investigations into the scandal, which saw the government-linked company paying US$422.2 million (S$554 million) in fines to the United States, Brazil and Singapore.

Some of the individuals had given statements to the CPIB as recently as last week and have appointed lawyers to represent them. The lawyers are from firms including WongPartnership and Withers KhattarWong.

The matter will be referred to the Attorney-General's Chambers (AGC) to decide if charges are to be filed.

When asked on Tuesday if several individuals had been arrested, both the AGC and the CPIB declined comment.

A CPIB spokesman said he was "unable to comment as investigations against the individuals involved are still ongoing".

A Keppel O&M spokesman said yesterday: "We are unable to comment on any investigations by the authorities."

In December last year, Keppel O&M reached a global resolution with law enforcement agencies in the US, Brazil and Singapore in relation to corrupt payments made by a former agent in Brazil.

From 2001 to 2014, Keppel O&M paid US$55 million in bribes to secure contracts with Brazilian oil giant Petrobras.

Keppel Fels Brasil also reached a leniency agreement with the Public Prosecutor's Office in Brazil.

In Singapore, Keppel O&M accepted a conditional warning from the CPIB. This was issued in lieu of prosecution for corruption offences punishable under the Prevention of Corruption Act, and part of the global resolution, said the AGC and the CPIB.

But the authorities also said then that "investigations in respect of the individuals involved are ongoing".

After news broke about the global resolution, some observers raised public concern over what was perceived to be lenient treatment given to Keppel O&M despite the large sums of money involved and the blow to Singapore's reputation.

When the matter was raised in Parliament on Jan 8, Senior Minister of State for Finance and Law Indranee Rajah refuted this perception, noting that aside from the penalties levied on the company, certain individuals were being investigated.

"That outcome has not been determined... Nobody has got off - or not got off, as the case may be," she said at the time.

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

GST walls for e-commerce without borders

Business Times
22 Feb 2018
Jamie Lee

NETFLIX has an office in Singapore, but it does not collect goods and services tax (GST) for its subscriptions now.

Ordinarily, a company that sets up shop in Singapore, and sells services to consumers here, would be charging GST on behalf of the government once they make S$1 million in sales. This consumption tax bill is usually passed on to customers.

But tax experts point out that streaming services and other digital-services providers do not fall neatly into this state of play, because the subscriptions to the digital content are likely booked in the global headquarters of these companies, not at the local offices of subscribers.

The loophole is soon to close here. The Singapore government plans to set a 2020 deadline in charging GST on imported services, which would include digital media such as movies, e-books, and apps. This is often known as the "Netflix tax", and was announced in Budget 2018.

Lam Kok Shang, KPMG's head of global indirect tax services Singapore, observed that Netflix's Asia-Pacific headquarters is not likely where revenues are being booked. What several of these companies that sell digital content likely have in Singapore is an office that offers supporting services such as marketing.

Likewise, Koh Soo How, Asia-Pacific indirect tax leader, PwC Singapore, noted that e-commerce companies would not get away with collecting GST even if they have an office here. What counts more for these global digital media firms is the nature of the Singapore business.

Firms that qualify are due to be charged Singapore's GST by 2020. GST here is now at 7 per cent, but will rise to 9 per cent in the earlier part of 2021 to 2025, Finance Minister Heng Swee Keat has said.

KPMG's Mr Lam noted that digital services firms due to be charged the GST are expected to pass on the cost to consumers, but added that consumers are unlikely to stop paying altogether for such digital services, given the wider choices that they offer.

For consumers, a basic Netflix subscription now will cost about 77 Singapore cents more per month, if GST kicks in, and by 2025, just under a dollar when GST hits 9 per cent.

The tax move comes as Singapore has signed onto OECD's Base Erosion and Profit Shifting (BEPS) project, an expansive set of strategies meant to promote greater fairness in taxation policies globally. BEPS calls for, among other things, signatories to create greater tax parity to close loopholes in a digital economy.

Singapore will follow jurisdictions such as Australia, the European Union, Japan and Korea in taxing services sourced from abroad.

This will make Singapore the first country in South-east Asia to introduce a tax on the digital economy. But Thailand, Malaysia and Indonesia are already considering such a tax as well, said PwC's Mr Koh.

For businesses selling imported services to consumers, such as media streaming platforms, they will need to be registered with the taxman here, and collect GST.

This will only apply to overseas vendors whose annual global turnover exceeds S$1 million, and whose sale of digital services to consumers in Singapore is more than S$100,000.

Netflix, which globally raked in US$3.3 billion in revenue in the last three months of 2017 alone, has not published its numbers on its subscriber base in Singapore. But Netflix subscribers here are devoted to their TV, devouring a TV series in an average of three days, a full day faster than the global average.

Netflix declined comment on the GST announcement this week, noting that the rules only come into effect in 2020.

Another popular media streaming service here is Spotify, which is loss-making, but clocked about US$3 billion in revenue globally in 2016.

App store operators such as Apple and Google are also set to be held responsible for accounting for GST on behalf of the app developers, tax experts said.

The Inland Revenue Authority of Singapore has called for feedback, with the public consultation to close on March 20.

Singapore is still reviewing the decision on taxing low-value imported goods, given the ongoing international discussions on how GST can apply, said Mr Heng. Currently, only goods bought from overseas that are worth more than S$400 attract GST. Australia is set to be the first in the world to tax low-value imported goods this year, having already postponed the implementation by a year.

PwC's Mr Koh noted that at this point, there is no example as yet of an effective means to collect GST from goods being shipped to consumers.

It is unclear how effective it would be to have overseas vendors register for GST in Singapore. It also remains unclear if Singapore should set a sales threshold that would qualify certain overseas vendors to charge GST.

READ MORE:

�

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

Man who beat adoptive father to death pleads guilty

Straits Times
13 Feb 2018
Selina Lum

A jobless man with a history of schizophrenia and alcohol abuse went on a violent New Year's Eve rampage in 2015, beating his adoptive father to death and assaulting his adoptive mother and his girlfriend.

Su Caizhi, 30, was taken in by the couple at the age of five and later received $70,000 from their family business, but "repaid their kindness with savagery" after hearing voices in his head, a court heard.

He pleaded guilty to four charges yesterday, including culpable homicide for killing his father Pang Tee Lin, 72, causing grievous hurt to his mother, Madam Wong Ah Boey, 69, and causing grievous hurt to his girlfriend, Ms Melissa Foo Fern Yin, 34.

The High Court heard that Mr Pang and Madam Wong, who were childless, adopted Su from Hainan province, China, in 1992.

They changed his name to "Pang Kee Hiang" but he changed it back in September 2015, a few months before the tragedy.

Su, who has been admitted to the Institute of Mental Health at least seven times since 2012, has been unemployed since 2014. He spent most of his time on his computer.

He showed symptoms of hallucinations, delusions, aggressive behaviour and disorganised thought, but often did not take his prescribed medication. He also had a history of alcohol abuse.

Despite this, the couple, who were hawkers, gave him $70,000 out of the $100,000 they received from selling their curry rice stall when they retired in August 2014.

He lost part of the money in forex trading and two failed businesses, paid for an accounting course which he did not complete, and spent some on himself and Ms Foo.

On the morning of New Year's Eve 2015, when Ms Foo went over to the family's Bedok Reservoir flat, Su was angered when she refused to engage in a sex act with him.

He began assaulting her and she passed out, but he continued to punch and kick her.

After attacking Ms Foo, he turned his anger on his father after voices in his head told him that Mr Pang had hidden his medicine.

Su stormed into the master bedroom and punched his father in the face. When the elderly man fell to the floor, Su stomped on his face and kicked him in the chest before returning to his room.

Madam Wong went to Su's room to ask what had happened but he grabbed her by her head and banged it against the wall.

He slapped her, rained punches on her face and kneed her in the stomach.

Ms Foo, who had regained consciousness, called the police after finding Mr Pang on the floor.

The police arrested Su for causing grievous hurt and found four packets of glue and two empty beer cans in his room.

Mr Pang suffered severe brain injury and fractures to his face, ribs and spine. He was taken off life support nine days later.

Deputy Public Prosecutor Sarah Ong urged the court to impose at least 18 years' jail.

Su's assigned lawyer, Mr Nakoorsha A. K., sought a sentence of not more than 12 years, saying Su's actions were not premeditated.

Su will be sentenced at a later date.

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

New programme to help legal sector Go Global

Business Times
02 Feb 2018
Yunita Ong

It's for smaller firms which have valuable skills but lack means to explore markets abroad on their own

A new programme launched on Feb 1 will help Singapore law firms take their practice abroad with overseas mission trips, training and marketing in the next few years.

Called Lawyers Go Global, it aims to help small and medium sized law firms, who "may have valuable niche expertise but may lack the resources to do their own market research and explore overseas markets on their own", said the Ministry of Law (MinLaw).

By participating, firms that have already ventured abroad can also deepen their understanding of the markets where they operate, MinLaw added.

MinLaw launched the programme with the Law Society of Singapore (LawSoc) and International Enterprise (IE) Singapore.

Over the next three years, eight mission trips, each lasting four to five days, will take lawyers here to Asean countries, China and India, for example.

LawSoc will organise workshops on networking skills, legal regimes and business norms abroad.

It will also launch a marketing campaign by the end of 2018 to raise the profile of Singapore lawyers abroad.

Senior Minister of State for Law and Finance Indranee Rajah told media: "There is demand in the region, and so what we are doing is encouraging the lawyers to venture out to export services which they have built up over time with their expertise and knowledge and to use that in the region."

Legal services are projected to grow at 5.5 per cent a year in the Asia-Pacific region between 2014 and 2019, according to MinLaw. Legal work in Asia is also expected to grow in areas like infrastructure and from China's Belt and Road initiative.

The Committee on the Future Economy Working Group on Legal and Accounting Services recommended that law firms capture a greater share of international demand.

It is also in line with the Professional Services Industry Transformation Map's goal to internationalise local law firms.

Ms Indranee noted that Singapore firms had been building up their expertise in areas such as dispute resolution in the past 15 years. "We've gotten to the size where we have gotten the right capabilities and are ready to venture out."

Gregory Vijayendran, LawSoc president, said that some firms here have already internationalised, whether by being a member of an international network, setting up a presence or having a "best friend" relationship with a foreign firm.

LawSoc organised a trip last August to Myanmar. But Lawyers Go Global is meant to be a "far more strategic and intentional" effort at helping law firms here "embrace this outlook of going global," he said.

RHTLaw joined Taylor Wessing, an international network of law firms in 2012. In 2014, it became part of Asean Plus Group, a network of firms in the region.

Azman Jaafar, deputy managing partner of RHTLaw Taylor Wessing and chairman of Asean Plus Group, said: "Clients were starting to venture abroad. It would be a matter of time before we need to ask ourselves if we were ready for the world."

Being part of the larger Taylor Wessing network, for instance, exposed the firm to new technology and best practices, and allowed them to share some resources.

A Vietnam office they formed in 2016 as part of a merger with a law firm there has seen "a dramatic increase in annual revenue last year" and a 30 per cent headcount jump, he added.

Timothy Ng LLC has not yet struck out abroad, but founder Timothy Ng told The Business Times that they were thinking of doing so in the field of international arbitration.

Mr Ng said the overseas trips under Lawyers Go Global would help him network and better understand the specific requirements of international clients.

"Meeting and working with International lawyers would not only be beneficial for us as individual lawyers but will benefit Singapore in the provision of legal services, as a premier business and financial service centre," he said.

The Lawyers Go Global programme will be funded by IE Singapore under its Local Enterprise and Association Development (LEAD) programme.

Singapore lawyers interested in participating in Lawyers Go Global can contact goglobal@lawsoc.org.sg for more information.

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

How 'Netflix Tax' would work and what would be affected

Straits Times
22 Feb 2018
Irene Tham

In two years, Singapore will require digital purchases, which are now exempt, to be subject to the goods and services tax (GST).

Finance Minister Heng Swee Keat announced the move on Monday when he unveiled Budget 2018.

The Inland Revenue Authority of Singapore has proposed an overseas vendor registration regime to implement the GST for digital purchases.

Foreign suppliers that have a global turnover of more $1 million, and which sell digital services to Singapore consumers that exceed $100,000, will need to register to pay the GST.

Some organisations may absorb the GST, but many will pass the cost on to consumers.

The Straits Times tackles five frequently asked questions.

1. Who else has implemented a similar so-called "Netflix Tax"?

In the last two years, Australia, the European Union, South Korea, Japan and New Zealand have laid down similar rules requiring overseas online suppliers selling to their domestic markets to register for VAT (value-added tax) or GST.

Australia, for instance, implemented its "Netflix Tax" in July last year. It applies to all intangible supplies, such as digital content, games and software.

Similarly, the tax extends to consultancy and professional services done overseas for customers in Australia.

The offshore service provider must register for GST, which is 10 per cent in Australia.

Australia impose penalties on those who fail to register for GST.

Experts here say it is not clear how foreign companies with no presence in Singapore will be punished.

"The Australian authorities have the power to block websites that fail to comply with the new rules," said Mr Vikna Rajah, head of tax, trust and private client at law firm Rajah & Tann Singapore. "The draconian measure should be used only as a last resort if Singapore were to implement it."

2. What digital products and services will most likely fall under Singapore's new regime?

• Mobile apps.

• Electronic book downloads.

• Software downloads, such as games, as well as firewall security and drivers.

• Online newspapers and journals.

• E-learning courses.

• Web-hosting and data management services such as Amazon Web Services.

• Online professional profile management services such as LinkedIn.

• Customised search-engine services such as Google.

• Online market or auction house services such as Alibaba and Craigslist.

• Content streaming services such as Netflix and Spotify.

• Websites that charge fees to facilitate the booking of accommodation, such as Airbnb.

3. What digital goods and services are not taxable?

• Internet telephony, audio conferencing and conference bridging services (as formal licensing is required by the local regulator).

• Professional services such as legal advice and consultancy, even if they are provided by electronic means.

4. When will the online purchases of goods costing below $400 be subject to GST?

A decision has yet to be made, said Mr Edmund Leow, senior partner of tax at law firm Dentons Rodyk & Davidson.

There are several challenges in this segment.

By removing the relief or lowering the threshold for paying GST, many more parcels must be checked to determine whether they qualify. The responsibility of checking and collecting the tax is likely to fall on the shipping or courier service provider, which could pass on the cost to the consumer through an administrative fee.

Also, not all shipping and courier firms in Singapore have the capability to sort parcels for the purpose of GST. They would have to put in place new systems, the cost of which may again be passed on to consumers.

One forerunner is South Korea, where transactions are tracked automatically for the purposes of tax collection. Inbound logistics firms run computer systems that are linked to the tax authority.

E-marketplace Qoo10 Singapore's country manager Hyun Wook Cho said the firm links its systems to that of the South Korean tax authority for sales made to Korean consumers.

5. What is the revenue gain from taxing digital goods and services?

In the burgeoning digital economy, revenue collected from taxing e-transactions outweighs the cost of ensuring that firms and consumers comply with the law.

GST accounted for about a quarter - or $11.1 billion - of Singapore's $47 billion tax revenue in the 2017 fiscal year. It is the second-largest contributor after corporate income tax.

No one has estimated the extra revenue that the Government would get from taxing digital goods and services.

Germany-based market research firm Statista estimated that e-commerce spending in Singapore was US$2.9 billion (S$3.8 billion) in 2016, and probably US$3.3 billion last year. By 2022, online spending here would exceed US$5 billion.

This data excludes digital downloads, content-streaming services and transactions on e-marketplaces such as Alibaba and Craigslist, all of which would be taxed from 2020.

The Australian government, however, estimated that its new tax regime would add about A$350 million (S$363 million) to its coffers in two years.

For more Budget coverage, visit the ST microsite at str.sg/budget2018

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

Syndicate behind series of sham marriages busted

Straits Times
13 Feb 2018
Tan Tam Mei

A Singaporean "groom" would be flown to Vietnam for a wedding photo shoot with his Vietnamese "bride" as part of a ruse to make their "marriage" look genuine.

In some instances, the "groom" would be told to meet the "bride" at the Singapore airport in case immigration issues cropped up. The "grooms" also changed their NRIC addresses to reflect that of the residences of the "brides".

Some couples lived together in the same unit for short periods of time to keep up the ruse. This was to allow the "grooms" to familiarise themselves with the place and prove the marriage was genuine if questioned.

These were the tactics used by a syndicate to cover up an elaborate web of sham marriages involving six couples and two masterminds. It took investigators from the Immigration and Checkpoints Authority (ICA) six months to crack the case.

Syndicate members were among 53 people convicted last year of sham marriages - a 23.3 per cent rise from 43 in 2016.

The increase, however, comes after a downward trend that followed an amendment to the Immigration Act in 2012 to criminalise such marriages. In 2013, there were 284 people caught for sham marriages.

Typically, sham marriages are discovered in isolation and involve a "straightforward" transaction between the "couple" and sometimes a marriage broker.

This looked to be the case when a "groom" in the syndicate appealed against his "wife's" repatriation.

But investigations led officers to discover five more marriages of convenience and eventually uncover one of the biggest sham marriage syndicates here, said Superintendent Maran Subrahmaniyan, 47, who is deputy director of ICA's enforcement division.

"We had to connect the dots to find out the exact narrative and that led us to discover that there was more than one couple," Supt Maran told The Straits Times.

A total of 14 people were part of the syndicate, though only 12 - six men and six women - were arrested as one "bride" had been repatriated for other offences and anotherleft Singapore before ICA investigations began in July last year.

The men from Singapore, aged between 24 and 57, entered into the sham unions for monetary rewards, while the Vietnamese women, aged between 23 and 34, wanted to prolong their stay here to work in vice-related jobs, said ICA officers who helped crack the case.

Ten of the syndicate members - including the masterminds, Singaporean Adrian Kin Zheng Keat, 37, and Vietnamese national Ho Thi Be Ba, 31 - have been jailed for terms ranging from six to 18 months. Court proceedings for the remaining two - Chua Rui Xiang and Tran Thi Ngoc Thu, 23 - are ongoing.

Kin, who was unemployed, was involved in the brokering of all six sham unions and played a part in facilitating the marriages.

Ho, a beautician who took part in three of the unions, was sentenced for harbouring three couples in a Balestier apartment. Two of the "grooms" in the sham marriages - Chua and Alex Wong Kean Mun, 32 - helped broker other sham unions.

The men from Singapore were promised between $3,000 and $5,000 for each union, and $100 to $300 for each successful extension of the women's visit passes. The foreign spouses each paid about $20,000 to the brokers.

As the complicated web differed from traditional marriage of convenience cases, piecing the information together was a challenge, said Deputy Superintendent Liew Shi Xiong, 32, a lead investigation officer. "With most immigration offences, you might have evidence like travel documents or passports. With other kinds of offences, you might have witnesses (to testify). But for (marriage of convenience) cases, we do not have such evidence."

Officers interviewed family members of those accused, and the families were sometimes shocked to hear they were married.

It was also no mean feat seeing through the cover stories of the "couples", said Assistant Superintendent Muhammad Izzat Abdul Rahman, 29, another lead investigator.

He said Singaporean "spouses" in sham marriages come from all age groups, and do it for the money. "The Singaporean 'spouse' is normally in financial difficulty, and this is something the arranger (of the sham marriage) picks up on."


Syndicate members were among 53 people convicted last year of sham marriages - a 23.3 per cent rise from 43 in 2016. The increase, however, comes after a downward trend that followed an amendment to the Immigration Act in 2012 to criminalise such marriages.

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

S'pore top Asian nation in rule of law ranking, and 13th globally

Straits Times
02 Feb 2018
K.C. Vijayan

Singapore is ranked 13th globally for the rule of law, the top Asian nation out of 113 countries in the 2017-2018 Rule of Law Index compiled by the World Justice Project (WJP), an independent advocacy group based in the United States.

The Republic is No. 1 for order and security and No. 2 for regulatory enforcement, according to the index released on Wednesday.

Order and security looks at factors that include how effectively crime is controlled and whether there is political unrest, while regulatory enforcement measures the effectiveness of government regulations, among other things.

Singapore's overall ranking, however, is four places down from its position in 2016, when it was also the top Asian country,

In the latest WJP Index, the top three overall performers are Denmark, Norway and Finland, while Afghanistan, Cambodia and Venezuela rounded off the bottom.

The index measures how the rule of law is experienced and perceived in practical, everyday situations by people across the globe and is the world's leading source for original, independent data on rule of law.

The ratings are based on data collected from more than 110,000 household and 3,000 expert surveys involving 113 nations.

Performance is measured using 44 indicators across eight primary rule of law factors, each of which is scored and ranked globally and against regional peers.

The eight factors include absence of corruption, fundamental rights plus order and security.

Also assessed is the civil and criminal justice systems in the countries.

Singapore topped the 13 Asian countries evaluated for rule of law, ahead of Japan and South Korea.

When the list includes Australia and New Zealand, Singapore surpassed the two Pacific countries in five of the eight factors measured.

These included absence of corruption plus civil and criminal justice systems. It did less well in the categories of constraints on government powers, fundamental rights and open government, which measure, for instance, the right to information and civic participation.

Singapore ranked third overall in the Asia-Pacific region of 15 countries, including Australia and New Zealand.

Observers said the findings were a useful reference to discuss the strengths of the local system and areas that could be improved.

"The positive outcomes overall are not surprising, given there are serious and conscious efforts here to keep updated, stay nimble and sustain the pace," said lawyer Amolat Singh.

WJP founder and CEO William H. Neukom said the index is meant to be "a first step in setting benchmarks, informing reforms, stimulating programmes and deepening understanding for the foundational importance of the rule of law."

He added: "We are witnessing a global deterioration in fundamental aspects of the rule of law. Reduced adherence to the rule of law anywhere threatens development anywhere."

The WJP said that "effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small". "It is the foundation for communities of equity, opportunity and peace," it added.


HOW S'PORE RANKED GLOBALLY

Rule of law: 13

Order and security: 1

Regulatory enforcement: 2

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

Trading of OTC derivatives on organised markets: MAS seeks views

Business Times
22 Feb 2018
Chia Yan Min

SINGAPORE'S financial sector regulator is proposing new rules which will require over-the-counter (OTC) derivatives to be traded on organised markets, in order to improve market transparency.

The Monetary Authority of Singapore (MAS) has issued a consultation paper on these regulations.

The MAS proposes to impose obligations for the most globally-traded OTC derivatives, namely interest rate swaps denominated in US dollars, euros and pounds to be traded on organised markets - exchanges or other centralised trading facilities.

These obligations will apply to banks whose gross notional outstanding OTC derivatives exceed S$20 billion.

The MAS expects that about 80 per cent of Singapore's market in these products would have to be executed on organised markets following the commencement of the proposed trading obligations.

While smaller counter-parties in Singapore are not subject to the MAS' proposed trading obligations as they do not exceed the threshold, they can still choose to trade these mandated products on organised markets if they wish to access this liquidity pool.

These rules are part of moves to implement the Group of 20 (G20) OTC derivatives reforms.

The US and the EU regulatory authorities have already implemented similar trading obligations for the same OTC derivatives products, the MAS said in a statement on Wednesday.

The Singapore regulator said it plans to seek equivalence determinations from the US and EU for exchanges and other centralised trading facilities in Singapore.

This will allow these markets in Singapore to be used by US and EU market participants to fulfil their trading obligations.

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

Book on old buildings tells story of S'pore legal system

Straits Times
13 Feb 2018
K.C. Vijayan

In 1826, Scottish merchant John Argyle Maxwell had a home built between High Street and the Singapore River in an area designated for government buildings.

But he never got to use it as a residential building. Instead, he rented it out in June 1827 as Singapore's first courthouse, and served as a magistrate as well. That first courthouse still stands today, and now serves as The Arts House.

These historical facts are told in a new book that links the legacy of Singapore's legal system with the historical buildings here.

Published by Academy Publishing of the Singapore Academy of Law, the book includes pictures of court buildings, police stations and prisons of early Singapore, including the now-defunct Pulau Senang settlement for secret society gangsters.

Legal Legacies: The Storeys Of Singapore Law, which can be bought on the Singapore Academy of Law's online store for $35, also includes rare architectural drawings of key structures.

The authors, in introductory remarks, say the book, the second in a series, is more than just about bricks and mortar. "These buildings record the development of Singapore's legal system from a colony to a city state."

The buildings include the former Parliament House in Empress Place and old Caldwell House, where Chijmes in Victoria Street is located today.

A spokesman added: "We are probably not aware of its history. The book takes the reader back into the history of these buildings and places, providing glimpses of some of the original building plans, archival photos from private and public collections in Singapore and overseas, and stories of what it was like to live and work there."

The first volume, titled Legal Legacies: The Story Of Singapore Law, was published in 2011.

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

City Harvest case: Apex Court dismisses bid for harsher punishments for Kong Hee and former church leaders

Straits Times
01 Feb 2018
Selina Lum and Gracia Lee

A five-judge Court of Appeal on Thursday (Feb 1) dismissed a bid by prosecutors to push for harsher punishments for City Harvest Church (CHC) founder Kong Hee and five others convicted of misusing millions in church funds - ending a marathon case involving the misuse of millions of dollars of CHC funds.

The decision meant that Kong, 53; deputy senior pastor Tan Ye Peng, 45; former finance manager Serina Wee, 41; and former finance committee member John Lam, 50, who are currently in jail, will continue serving out their existing terms of between 1½ and 31/2 years.

Former finance manager Sharon Tan, 42, has completed her seven-month jail term.

Former fund manager Chew Eng Han, 57, facing a jail term of three years and four months, has been out on bail pending the court's decision.

He was allowed his request to start serving his sentence on Feb 22, after the Chinese New Year holiday.

The decision, which hinged on the interpretation of provisions in the Penal Code governing criminal breach of trust offences, has wider implications for future misappropriation cases.

Judge of Appeal Andrew Phang, in reading the decision, said that if there is any gap in the law, the shaping of the remedy should be left to Parliament.

"A hard case should not be allowed to make bad law," he said, noting that the accused are still serving substantial jail terms.

The prosecution had raised the point of law to the apex court in August last year, in a rarely invoked procedure known as a criminal reference.

The prosecution argued that the City Harvest six ought to have been convicted of the more aggravated charge of CBT as agents, which provides for heavier punishment, rather than plain CBT.

The six were originally charged and convicted - after a marathon 142-day trial that started in 2013 - of CBT as agents, under Section 409 of the Penal Code.

They were handed jail terms ranging from 21 months to eight years in November 2015.

The six appealed against their convictions and sentences, while the prosecution appealed for harsher sentences.

Deciding on the appeals last April, the High Court, in a split 2-1 decision, cleared the six of CBT as agents and found them guilty of plain CBT under Section 406.

Two of the three judges on the panel ruled that Section 409 applies only to "professional agents"; and directors such as the CHC six cannot be considered "agents" under Section 409.

As a result, the sentences were reduced to between seven months and 3½ years' jail.

City Harvest Church (CHC) founder Kong Hee and five former church leaders arrived at the apex court on Thursday morning (Feb 1) in a police van at around 8.30am.

They are currently serving their jail terms of between 1½ and 3½ years.

Former finance manager Sharon Tan, and former fund manager Chew Eng Han arrived separately.

Asked by reporters before the verdict if he has confidence the court will uphold the current sentence, Chew had said: "I'm not sure."

A queue to attend the final verdict of the City Harvest Church case in the apex court started at 3.30am. By 7am, close to 60 people had joined the queue, despite many being told that all entry passes had been given out.

Ms Shirley Yeo, 76, a staff member at the church, joined the queue at 4.30am and was the 25th person in line.

"We are praying that this verdict will be favourable. The jail term is too harsh. God-willing, it should not be lengthened and they should be set free," she said.

She added that service in the church has been going on as usual and members have been praying consistently for their pastors.

Housewife Shirley Tan, 65, was visibly upset when she arrived at 6.15am and could not obtain a pass to enter as they had all already been given out.

She had turned up at the State Courts at 5.30am only to realise she was at the wrong location.

"I want to see Pastor Kong. I love him so much. City Harvest Church is my second home," she said.

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

Man charged in Brazil for alleged illegal payments linked to SembMarine's drillship contracts

Business Times
22 Feb 2018
Tan Hwee Hwee

SEMBCORP Marine confirmed at the release of its full-year results that the Brazilian authorities have charged an individual arrested due to alleged illegal payments connected to drillship awards to the yard group.

President and CEO Wong Weng Sun said at the results briefing on Wednesday that Guilherme Esteves de Jesus, has been charged with various offences by the Brazilian authorities. These charges are connected to drillship contracts entered into by the group's subsidiaries.

He added that the company is not aware of any of its employees being implicated by any authorities.

Mr Wong declined comment when probed on the nature of the relationship between de Jesus and SembMarine and its subsidiaries.

SembMarine had in a March 2015 disclosure pertaining to de Jesus's arrest, described the man as "connected to companies" engaged by the yard group's subsidiaries. These said companies served as consultants in connection to the Sete Brasil drillship contracts awarded to these subsidiaries.

Mr Wong said de Jesus is defending the charges against him and the date of the court hearing of the charges against him is not yet known.

SembMarine had initiated an internal investigation into the allegations raised in the March 2015 disclosure, but this ongoing investigation remains legally privileged, he said.

The SembMarine CEO also maintained that the S$329 million provision made for the Sete Brasil drillship contracts remains adequate.

SembMarine's US$5.5 billion worth of drillship contracts with Sete Brasil have come under renewed spotlight after Keppel Offshore & Marine (KOM) announced some US$422 million in fines for corrupt payments made to win contracts in Brazil. The Sete Brasil contracts worth some US$10 billion that were awarded to SembMarine and KOM have also come under review in a US Department of Justice probe into the said corrupt payments.

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

Keppel says it has not been served court papers over latest civil action by EIG

Business Times
12 Feb 2018
Marissa Lee

Keppel Corp said on Sunday that it has not been served with court papers relating to a new civil action brought against Keppel Offshore & Marine by certain funds managed by EIG Global Energy Partners in the United States.

Keppel's statement came in response to an article published on the Law360 website on Feb 8, titled "EIG hits Keppel with US$660m RICO suit over Brazil bribery". The article referred to a lawsuit filed by the EIG funds in a district court in New York against Keppel Offshore & Marine under the Racketeer Influenced and Corrupt Organizations Act (RICO).

The lawsuit concerns Keppel O&M's role in a Brazilian bribery scheme, for which the Keppel unit recently reached a US$422 million global settlement with US prosecutors.

In its statement to the Singapore Exchange, Keppel said it believes that "the reported cause of action is without merit", and that it would "vigorously defend itself if and when the relevant papers are served".

In 2016, funds managed by EIG Management Co commenced a civil action against Keppel O&M, Sembcorp Marine, Jurong Shipyard and other firms for allegedly participating in an unlawful conspiracy further to which EIG was induced to invest over US$221 million in Sete Brasil Participacoes SA. Last year, the US district court for the District of Columbia ruled in favour of Keppel O&M and dismissed the action.

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

Drivers who cause harm: Sentencing framework set out

Straits Times
01 Feb 2018
K.C. Vijayan

Judge questions appellant's use of MP's letter to downplay culpability over 2016 accident

Even as a High Court judge set a new three-tier sentencing framework for those who cause grievous hurt due to negligence on the road, he questioned an appellant's use of an MP's letter to downplay her culpability.

According to the letter, Tang Ling Lee, whose appeal against a one-week jail term for colliding with a 27-year-old motorcyclist was eventually dismissed, had only "accidentally brushed a motorcyclist resulting in the motorcyclist sustaining some injuries".

But Justice See Kee Oon highlighted that this was not consistent with the statement of facts she had agreed to. The victim, Mr Vikaramen A. Elangovan, suffered multiple fractures requiring a dozen operations in two months, and was hospitalised for 69 days after he was hit by the car she had been driving.

"These statements are regrettably misleading if they correctly reflect what she had conveyed to the MP," said the judge in decision grounds issued last week.

Tang, 45, had been sentenced to one week in jail and banned from driving for two years last year after she admitted that on Sept 16, 2016, she had failed to keep a proper lookout while making a right turn at a junction in Ang Mo Kio.

Appealing against the jail term, her lawyer Adrian Tan Wen Cheng argued that a fine would have been sufficient. But Deputy Public Prosecutor Houston Johannus objected, pointing to Tang's high culpability and the "substantial harm" caused.

The judge noted that past cases show the same offence had resulted in a fine in some cases but jail in others. Saying it "would be useful to provide some guidance... which might help foster more consistency", he included in his judgment a three-tier punishment framework based on the degree of harm and culpability for cases in which a trial is claimed.

In the most serious of traffic accident cases, involving "greater harm and higher culpability", the presumptive sentencing range will be more than two weeks in prison. At the lowest end of "lesser harm and lower culpability", fines would be enough. For cases which fall in between, he prescribed one to two weeks in jail.

The judge also highlighted factors which increase culpability, such as "speeding, drink-driving, sleepy driving... driving while using a mobile phone... driving against the flow of traffic or off the road" as well as driving without a licence or while under disqualification.

Those behind the wheel should also take greater care when driving during rush hour, within a residential or school zone, or when driving a heavy vehicle.

Justice See found that Tang's case fell in the most serious band, which meant more than two weeks' jail.

While video footage from her car's camera showed she had not been speeding, she had not stopped at the junction at all and had swerved fairly abruptly, "barely seconds before the motorcyclist was about to cross the junction as well".

The judge decided that either her attention was diverted elsewhere or she had exercised appallingly poor judgment.

He dismissed her claim that she had mistaken the motorcycle's headlight for a street light.

Still, her guilty plea, remorse shown, clean record of 20 years and the fact that she stopped to help the victim, justified reducing the sentence to one week in prison, the judge added.

At the close of his written judgment, Justice See described her use of the MP's letter as "somewhat troubling" given that the statements within "sought to unfairly trivialise the accident and diminish the true extent of the victim's substantial injuries".

It was not stated in his judgment which MP sent the letter on Tang's behalf to the State Courts.


While video footage from her car's camera showed she had not been speeding, she had not stopped at the junction at all and had swerved fairly abruptly, "barely seconds before the motorcyclist was about to cross the junction as well". The judge decided that either her attention was diverted elsewhere or she had exercised appallingly poor judgment.

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

More regular Medisave payments, injury insurance among moves for self-employed

Business Times
22 Feb 2018
Janice Heng

SELF-EMPLOYED persons should make Medisave contributions as they earn, instead of annually. Corporate service-buyers and intermediaries that link the self-employed with clients - such as ride-hailing platform Grab - should also be required to help deduct and transmit these Medisave contributions.

These are among several recommendations by a tripartite workgroup that the government has accepted, with details to come in next month's Committee of Supply debate.

Grab Singapore head Lim Kell Jay said the company is "extremely supportive of the recommendations". Grab already makes contributions to its drivers' Medisave accounts.

"With the proposed recommendations, we look forward to working closely with the tripartite workgroup to discuss how best to implement any additional requirements that will further support our driver-partners," he added.

One in 10 workers in Singapore is self-employed. Almost half of these 200,100 workers hold traditional occupations: taxi drivers, real estate agents, insurance agents and working proprietors. The group is otherwise diverse, with only seven occupations numbering over 10,000 each.

Formed in March 2017, the Tripartite Workgroup on Self-Employed Persons identified four challenges after consulting about 200 self-employed persons as well as associations, businesses and government agencies.

First, payment-related disputes. Noting that these often arise from the absence or inadequacy of written contracts, the workgroup proposed a tripartite standard for engaging the services of the self-employed.

Such standards do not have the force of law but businesses which commit to them must uphold them.

The tripartite standard would require adopters to provide written contracts covering key items such as the payment schedule and amount, and parties' obligations.

More sector agencies should help in mediation, added the workgroup. The Tripartite Alliance for Dispute Management's voluntary mediation services - available to employees and employers - could also be extended to the self-employed.

Second, freelancers lack protection against loss of income from prolonged illness or injury. Some insurance policies include such a rider, but there is no standalone product.

Tripartite partners should work with the insurance industry to make such a product available, said the workgroup. This could pay a daily cash benefit for hospitalisation episodes exceeding one to three days, or outpatient medical leave exceeding seven to 14 days.

Such insurance should not be mandatory but could be promoted in higher-risk occupations, said the workgroup. This could take the form of licensing controls for jobs such as taxi drivers or private-hire drivers.

Where the government is a service-buyer, such as with sports coaches, it could use that role to push for adoption.

Third, freelancers have a relative lack of Central Provident Fund (CPF) savings. And while it is already mandatory for the self-employed to contribute to their Medisave accounts annually, cash-flow issues mean one in four have not met this obligation.

To improve compliance, a contribute-as-you-earn Medisave model could be adopted. Intermediaries and corporate service buyers could be required to deduct and transmit the Medisave contribution at point of payment.

The workgroup also recommended that the government further study how such a model could work when intermediaries are not involved in service payment - such as with taxi operators and taxi drivers.

Yeo Wan Ling, chief executive officer of online caregiving services platform Caregiver Asia, said: "We will definitely be keen to work with the CPF Board, if available, to seamlessly connect with their system to make it easier for freelancers to contribute to their Medisave directly from our platform." The platform has some 2,000 active caregivers.

Finally, noting that freelancers lack occupation-specific competency frameworks, the workgroup called on tripartite partners to support self-employed persons' associations in developing such frameworks.

Accepting the recommendations, Second Minister for Manpower Josephine Teo said she would provide a fuller response in next month's Committee of Supply, including "an outline of measures to implement the recommendations and the expected timelines".

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

Consumers can seek recourse under Lemon Law

Straits Times
10 Feb 2018

We thank Mr Samuel Tan Kian Huat and Mr Jason Chua Dong Wei for their letters (Lemon law no protection if warranty isn't in contract; Jan 30, and Disappointed buyers can also turn to Sale of Goods Act; Feb 1, respectively).

Part III of the Consumer Protection (Fair Trading) Act, commonly known as the "Lemon Law", provides remedies for consumers against goods that are not of satisfactory quality at the time of delivery.

If a defect is found within six months of delivery, it is presumed that the defect existed at the time of delivery, unless the business can prove otherwise.

Under the law, retailers are obligated to repair or replace the defective item within a reasonable period of time; failing which, they are to give a reduction in price or refund for the defective product.

Business-to-consumer transactions are covered under the Lemon Law and the retailers cannot contract out of their obligations under the law.

On the other hand, a warranty is a written promise, usually offered by the retailer or manufacturer to make good any defects in accordance to the terms and conditions.

Consumers should be mindful of their rights under the warranty provided.

The Lemon Law applies even if businesses do not explicitly provide warranties for the goods they sell.

For the case mentioned by Mr Tan, despite the lack of a warranty and a term of the contract stating that the car is sold "as is", consumers are still eligible for protection under the Lemon Law provisions, provided that they fall within the coverage of the Act.

This would, in turn, depend on the defect complained about, the age of the second-hand car and its mileage.

Mr Tan's godbrother had sought the assistance of the Consumers Association of Singapore (Case) to negotiate for an amicable settlement with the car dealer.

Unfortunately, a settlement could not be reached and the case was subsequently filed at the Small Claims Tribunals.

We encourage consumers to exercise due care and diligence when purchasing second-hand cars.

One way is to send the car for evaluation at a professional evaluation centre to uncover any inherent defects at the point of purchase and minimise their chances of purchasing a "lemon".

Consumers can download a copy of the Standard and Functional Evaluation Checklist from the Case website.

Lim Biow Chuan

President

Consumers Association of Singapore


The Lemon Law applies even if businesses do not explicitly provide warranties for the goods they sell.

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

Taking corporates to task - how does proposed new law stack up?

Straits Times
01 Feb 2018
K.C. Vijayan

A Deferred Prosecution Agreement with the US was part of the Keppel resolution for bribery offences. Singapore will also introduce DPAs. Will it mean getting tougher, or going easier, on companies?

A legal tool applying to the prosecution of companies came onto the radar of Singaporeans amid the bribery scandal involving Keppel Offshore & Marine (KOM) last month - that of Deferred Prosecution Agreements (DPAs).

It was in the spotlight after the subsidiary of government-linked conglomerate Keppel Corp reached a global resolution with the authorities in the United States, Brazil and Singapore over corrupt payments made by its former agent in Brazil. As part of the resolution, which included paying fines of US$422 million (S$553 million), KOM accepted a conditional warning from Singapore's Corrupt Practices Investigation Bureau, and entered into a DPA with the US Department of Justice.

With a DPA, an errant corporation charged by a prosecutor is allowed to have the charge deferred, subject to agreeing to pay a financial penalty and to abide by several conditions including supervision of its practices for a period of time.

This means a DPA would help reform an offending corporation through the supervision and conditions imposed for a particular period - instead of solely imposing deterrent punishment.

And it is now being proposed in Singapore. Law Minister K. Shanmugam earlier this month said a framework for DPAs is one of several suggested amendments to the Criminal Procedure Code (CPC) and Evidence Act due to be presented in the form of a draft Bill.

Mr Shanmugam said: "It's about time we had DPAs here where corporates can be taken to task and (where) they could pay a much higher sum compared to what the criminal law provides." He was speaking during a briefing to lawyers about the proposed amendments to the CPC, of which the DPA is but one of some 50 items.

Under the proposed framework, the public prosecutor can apply to dismiss the charges a company faces, provided it agrees to meet certain specified conditions, often including a financial penalty, in exchange for not being prosecuted. Although the draft Act has not been made public, Mr Shanmugam has indicated that the deal will have to be sanctioned and supervised by the court.

However, one of the challenges that the introduction of a DPA framework faces is this: Will it be seen as a softening of Singapore's strict criminal justice system, known for making no exception when it comes to punishing grievous wrongdoing? Or will it be viewed as a calibrated response designed to recognise the evolving corporate environment?

HISTORY OF DPA USE

DPAs have been used in the US for more than 20 years. In Britain, it gained traction in 2014.

Other countries considering the DPA include Australia and Canada, which concluded a public consultation exercise last month.

As described on the Canadian government's website for its public consultation exercise, the DPA is typically "an additional tool for prosecutors, to be used in appropriate circumstances, to address corporate crime".

In addition to deterring corporate criminal conduct through effective and proportionate penalties, DPAs are also meant to increase detection and improve compliance and corporate culture.

The Canadian consultation notice added: "A DPA regime may also help to mitigate unintended consequences associated with a criminal conviction for blameless employees, customers, pensioners, suppliers and investors. Additionally, in some cases, a criminal conviction could lead to job losses and wider negative implications to the economy."

In the US, the crimes addressed by DPAs include economic crimes like bribery, fraud and money-laundering, as well as various offences under company law.

Breaching conditions of the DPA by the defendant means the relevant authority will have the discretion to activate a prosecution of the case. Successful completion of the terms of a DPA, including a period of supervision, will result in the relevant authority dropping the case for good.

A check showed that the latest corporate to have successfully completed a DPA in the US was HSBC Holdings, which last month announced its five-year-old DPA with the US Department of Justice had expired, according to a Bloomberg report. The DPA was part of a deal that followed in 2012 when HSBC paid a then record US$1.9 billion settlement as part of the deal.

SUPPORT FOR PROPOSAL HERE

Industry players interviewed by The Straits Times supported having a DPA framework proposal as a device to deal with corporate misconduct, but also raised downside concerns.

Among other things, they stress such deals should not be a means for offending corporations to buy their way out of criminal liability.

Singapore Corporate Counsel Association president Wong Taur-Jiun welcomed the DPA as a "positive development in the administration of justice over corporate bodies, especially those that are not already regulated (such as by the Monetary Authority of Singapore)".

He noted most corporate bodies are not regulated by MAS. "MAS only regulates banks and financial institutions. The other big regulator is the Singapore Exchange, but that's for listed companies. And there is the Accounting and Corporate Regulatory Authority but its regulatory powers are relatively limited."

He noted: "What good is a financial penalty to a business - and to society at large - if it is not supplemented by a structured scheme to become better corporate citizens?"

DPAs enable deserving cases to be given a second chance and "second chances are good because at the end of the day, employees and customers are affected", he said.

Compared with court prosecution, DPAs can sometimes also provide a faster track towards justice. It encourages businesses to "come clean early", reducing investigation and prosecutorial costs, while meting out justice, noted Mr Wong.

National University of Singapore Business School associate professor of accounting Mak Yuen Teen, who specialises in corporate governance, said DPAs would be meaningful if corporates can face very hefty penalties for corporate criminal offences.

Expressing overall support for a DPA framework, Prof Mak also weighed in on cross-border cases, pointing out that while each country has certain customs that companies may need to follow, "we shouldn't sugarcoat it and say that because corruption is normal corporate practice, that it makes it okay".

For example, giving gifts or cash in return for preferential treatment in bidding for contracts is considered bribery, he noted.

Singapore Management University assistant professor of law Mahdev Mohan pointed to the UK approach which,"like the ministry's proposed framework, places a premium on judicial supervision. In some respects, this (Singapore's) proposed framework seems stricter".

Law Society president Gregory Vijayendran argues the DPA is not a "signal by the Singapore Government that it is going light on corporations or applying differing standards of justice for MNCs with deeper pockets compared to individuals".

He described DPAs as a "cross between composition and probation for corporations". A composition in legal terms is to pay a financial penalty or fine to avoid prosecution.

"For example, some companies whose mens rea (intention) arises out of the blameworthy state of mind of a few errant individuals, desire to put a one-off, aberrational episode behind them and also to put their house in order.

"DPAs allow for an amnesty on agreed terms and also avert the stigmatising effect of a criminal conviction. Of course, individual offenders will still have to face the music."

He added: "The safety net is that a DPA and its terms in a given case still need to be blessed by the High Court. This high-level scrutiny ensures that the DPA is in the interests of justice and transparency. Also, careful judicial thought is invested in the fairness and reasonableness of its terms."

As Mr Shanmugam has indicated, if implemented, DPAs will need to be approved by the High Court, which must be satisfied that the agreement is in the interest of justice and that the terms are fair, reasonable and proportionate.

Other issues loom, too, such as how often it might be used, its reach outside Singapore, and how it can be used to address cross-border offences.

While introducing a DPA framework sounds like a plus for Singapore's corporate governance regime, the surrounding issues are clearly not straightforward. At heart, the proposed law will have to balance between being strict on wrongdoing, and giving affected companies a chance to fix themselves and do things right.

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

Ex-City Harvest leader nabbed trying to leave S'pore

Straits Times
22 Feb 2018
Tan Tam Mei & Selina Lum

In the latest twist to the City Harvest Church (CHC) saga, its former fund manager Chew Eng Han, 57, was nabbed at sea yesterday morning while trying to leave Singapore illegally by boat.

Chew was due to begin his jail term of three years and four months today for his role in the largest case of misuse of charitable funds in Singapore's history.

But he was arrested along with another man, Tan Poh Teck, at 8.47am on board a motorised sampan, said police. Tan, 53, was piloting the sampan that had picked Chew up from the main jetty on Pulau Ubin, north-east of mainland Singapore.

The duo were caught in Singapore waters after they were intercepted by three Police Coast Guard vessels about 2.4km eastwards of the jetty. Chew was found with about $5,000 in cash and fishing equipment.

The Straits Times understands that when questioned, Chew and Tan claimed they were fishing.

But based on earlier information received, the police established that the duo were trying to leave Singapore illegally for Malaysia. They were arrested for "attempting to leave Singapore unlawfully at unauthorised point of departure" under the Immigration Act.

Those found guilty of this offence can face a jail term of up to six months and a $2,000 fine.

Police also arrested Chew Eng Soon, 61, yesterday for abetting the offence. Both Chews are believed to be brothers. The trio were held in lock-up at the Police Cantonment Complex. Tan and the younger Chew will be charged today.

Five other CHC leaders - including founder-pastor Kong Hee - who were also convicted of misusing church funds, began serving their sentences last April. But Chew, who was out on $1 million bail, had secured multiple deferments.

After his jail term - which was reduced from six years by the High Court in April last year - was upheld by the Court of Appeal on Feb 1, Chew asked to defer his sentence until after Chinese New Year.

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

Enhancing access to family justice

Straits Times
10 Feb 2018

We thank Ms Rebecca Tan Choi Li for her letter (Make family court processes more user-friendly; Feb 4).

Since the formation of the Family Justice Courts (FJC), the most impactful change it has introduced has been a simplified route for uncontested divorce cases.

Based on our records, 49 per cent of all divorce cases were filed under the simplified track in 2017. Of these, 83 per cent have been resolved as at the end of last year. Cases on average took less than a month to resolve.

In July, FJC opened a one-stop Family Protection Centre providing parties a safe and private setting to lodge their complaints and seek guidance.

It also launched iFAMS, which allows parties seeking protection orders to submit their complaints at any of the three designated Family Violence Specialist Centres, without having to come personally to FJC to commence the proceedings.

FJC handles a large number of calls daily. It has a system to log in calls and to follow up on them.

Ms Tan also asked about statistics and outcomes of past cases. FJC's caseload statistics are available in the annual report on its website, while Supreme Court judgments are published on the Singapore Law Watch website.

As FJC is a neutral adjudicating body, its officers cannot give legal advice to parties. Hence, it has the Community Justice Centre HELP centre at its premises to offer help and referral service to litigants-in-person who cannot afford legal representation.

We are mindful that self-represented litigants make up a significant proportion of our family court users and constantly strive to make processes more transparent and user-friendly. Given the nature and complexity of family disputes, it may not be possible to simplify.

To help us better understand the problems experienced by Ms Tan's friends, we would like to invite her to contact Mr Yeo Seow Aik at YEO_Seow_Aik@fjcourts.gov.sg to see how FJC can further improve its services.

Chia Wee Kiat

Registrar

Family Justice Courts

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

MAS, EDB appoint new directors

Business Times
01 Feb 2018
Rachel Mui

The Monetary Authority of Singapore (MAS) and the Singapore Economic Development Board (EDB) will be making some changes to their boards, effective Feb 1, 2018.

MAS, Singapore's central bank and financial sector regulator, announced that Attorney-General Lucien Wong, will be appointed to its board of directors. His term of appointment will be from Feb 1, 2018 to May 31, 2020.

Mr Wong was chairman and senior partner of Singapore's largest law firm Allen & Gledhill. He has more than 30 years of legal experience, specialising in banking, corporate and financial services work.

He started as a legal assistant at Drew & Napier in 1979, after graduating top of his law class at the University of Singapore, now known as the National University of Singapore. In 1982, he became partner of the firm. He then moved to Allen & Gledhill, where he was managing partner from 1998 to 2012.

Mr Wong was previously chairman of the Singapore International Arbitration Centre, and the Maritime and Port Authority of Singapore. He also sat on the board of Singapore Press Holdings.

Separately, the Ministry of Trade and Industry (MTI) announced board changes at EDB on Wednesday as well.

EDB's new board members are: Alexander Hungate, president and chief executive of SATS Limited; Suranjan Magesvaran, president of Procter & Gamble (Asia Pacific) and Procter & Gamble (India, Middle East and Africa); Wouter Van Wersch, president and chief executive of General Electric, APAC; and Gan Seow Kee, chairman and managing director of ExxonMobil Asia Pacific.

In addition, Tan Gee Keow, Deputy Secretary of the strategy group in the Prime Minister's Office; and Patrick Tay, Assistant Secretary-General at the National Trades Union Congress, were also re-appointed as EDB board members.

Having completed their terms, several board members will also be stepping down from EDB's board. These are: Jean-Luc Butel, president of K8 Global and senior adviser to McKinsey & Company; Dr Stefan Doboczky, chief executive of Lenzing AG; Arunjai Mittal, former member of the management board at Infineon Technologies AG; and Dr Detlef Trefzger, chief excutive of Kuehne+Nagel International AG.

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

Court rules against sale of Beauty World Food Centre

Straits Times
21 Feb 2018
Selina Lum and Gracia Lee

Judge says three trustees have fallen short in their duty to obtain best price for stallholders

A potential $17.5 million collective sale of the Beauty World Food Centre has stalled, after the High Court yesterday declined to give three of its trustees the power to go ahead with the deal.

In a decision delivered in chambers, Justice Hoo Sheau Peng said that in the process leading to the deal, the three trustees had fallen short in their duty to obtain the best price for the stallholders.

Highlighting key problems with the deal, the judge noted that no valuation on the property was done before the sale, nor was there an open call for interest to buy the property.

In addition, the stallholders were not given timely updates on critical issues such as how the proceeds would be apportioned, or proper time to consent to the sale.

She noted "there was no awareness that the trustees had no power to sell and no advice was sought from lawyers". The trustees' lawyer, who came on board later, tried to address some of these issues, she said, but these "do not close the prior gaps in the process".

However, this decision does not preclude the trustees from going back to court to ask for the power for another collective sale, their lawyer Jimmy Yap told The Straits Times yesterday. He said he will discuss the options with his clients.

The trustees were also ordered to pay legal costs of $7,000 to the dissenting stall owners, who were represented by Mr Gregory Vijayendran.

The food centre, which occupies the fourth floor of the strata-titled Beauty World Centre in Bukit Timah, comprises 41 food stalls, but the title of the property is contained in a single strata certificate. This means that all the stall owners must agree before the food centre can be sold.

In 2016, a potential buyer expressed interest to buy the centre, built in the 1980s, for $17.5 million.

The potential buyer paid an option fee of $175,000 to the stall owners. But seven individuals, who own six different stalls between them, rejected the money because they were against the sale.

The transaction was held off until the court decided whether the three trustees had the power to sell the food centre.

The trustees - Mr Lai Chong Lee, Mr Tan Kock Meng and Mr Tan Han Soong, who are also stall operators - had asked the court to enable them to proceed with the intended sale though the trust documents neither spell out nor imply that they have the power to sell the property.

They said most of the owners are in their late 60s or 70s and wish to retire from the business, which is becoming increasingly stressful.

They said that in the past few years, most of the stall owners have been in favour of a collective sale, as the only financially feasible way to retire is by converting their investment into cash.

Madam Wu, 71, who owns a drinks stall at the centre, is among stall owners hoping for a sale. "I'm old already and want to retire."

She said she would continue operating her stall for now, but possibly rent it out in future. Like others The Straits Times spoke to, she declined to reveal her full name, citing sensitivity over the sale of the centre.

Madam Lao, in her 50s, opposes the sale. She said: "It is not fair because they were selling it way below the market price." She declined to reveal the price at which she would have agreed to sell her stall.

But a 48-year-old hawker who is renting a fish soup stall at the food centre is happy about not having to move, though the stall owner had agreed to the sale of the centre.

The hawker, who gave his name only as Mr Xie, said: "We have a lot of regular customers...If we move elsewhere, we will have to start from scratch."

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

PAP MPs told not to write to courts

Straits Times
10 Feb 2018
Yasmine Yahya

The ruling People's Action Party (PAP) has told its MPs not to write to the courts on behalf of their constituents so as to "avoid any doubt or public misperception" about the separation of powers between the different branches of government.

In an internal memo yesterday, party whip Chan Chun Sing said PAP MPs have, as a norm, refrained from writing to the courts on behalf of their constituents.

"When approached by constituents over matters that come before the courts, PAP MPs may write to MinLaw (on procedural issues) and Attorney-General's Chambers (on prosecutorial issues)," he wrote. "This has been the general practice, and will remain so."

Should the MPs need assistance on exceptional cases or further advice on the matter, Mr Chan said they should approach the party whip and the Ministry of Law. The memo was released to the media.

The question of when MPs should write to the courts arose after a judge took issue with a letter by Sengkang West MP Lam Pin Min to the State Courts, which downplayed a motorist's culpability in a traffic accident.

In judgment grounds released two weeks ago, Justice See Kee Oon highlighted the misrepresentation of facts as "somewhat troubling".

Last week, in response to queries from The Straits Times, Mr Chan said MPs should write letters of appeal directly to the courts on behalf of residents only in "urgent cases".

"In urgent cases, such as if the court hearing is in the next few days, MPs may sometimes use their discretion to give letters by hand to residents to be used in court," he had said.

The discussion prompted a retired district judge, Mr Low Wee Ping, to write in to The Straits Times Forum page on the matter.

In the letter published on Tuesday, he said that when he was the Subordinate Courts' registrar in the 1980s, he was instructed by then Chief Justice Wee Chong Jin to ignore such MP letters and not send them to the judges, and to return them to the PAP whip.

He wrote: "The reason, I was told, was that founding Prime Minister Lee Kuan Yew had instructed all MPs (in writing) that they should not be writing such letters to the courts."

Mr Lee's view was that such practices would blur the separation of powers between the legislative, executive and judicial branches of government, added Mr Low.

In his letter yesterday, Mr Chan said the separation of powers has never been in question, even when the courts have received a letter from an MP, directly or indirectly.

Mr Chan also stressed: "The courts are in the best position to evaluate, holistically and impartially, the evidence presented and the merits of a case as well as have clear and strict procedures to uphold the independence and integrity of the judicial process."

Several PAP MPs said the memo made the party's position on the matter very clear.

Mountbatten MP Lim Biow Chuan said if residents were to ask MPs to write to the courts directly on their behalf, the MPs would have to explain that they are not in a position to do so.

Tampines GRC MP Baey Yam Keng said: "That is the way we have built our system, and it is our responsibility to uphold that."

Dr Lam could not be reached for comment.

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

Tussle in court over use of 'Sentosa' brand name

Straits Times
31 Jan 2018
Selina Lum

Is the name "Sentosa" a trademark that can be used only by the Sentosa Development Corporation (SDC), the statutory board that manages and promotes tourism activities on the island?

That is the question before the High Court in a trademark infringement trial that started yesterday.

SDC has sued a group of companies that make and sell medical diagnostic instruments for using the word "Sentosa" to brand one of its product lines used in the testing of a range of diseases, including HIV and the Zika virus.

The statutory board is seeking a court order for the group - Vela Holding, Vela Operations Singapore, Vela Research Singapore and Vela Diagnostics - to stop using its "iconic" trademark. The group of companies is registered and headquartered in Singapore.

The Vela group argues that "Sentosa" is used as a place name and does not qualify as a trademark. It has counter-sued, asking the court to invalidate all the "Sentosa" trademarks registered by SDC since 2005.

Vela argues that SDC is abusing the trademark registration system by "obtaining an illegitimate monopoly over all trade use of the name".

However, SDC counters that it has given consent to a host of third parties with legitimate reasons, such as tenants and event partners, to use the name.

The name of the island, which means peace and tranquillity in Malay, came from a public naming competition in 1972. That same year, SDC was set up under the Ministry of Trade and Industry (MTI) to oversee the development and promotion of the island as a leisure destination.

SDC, represented by Mr Tony Yeo and Ms Meryl Koh of Drew & Napier, contends that for the past 45 years, it has invested millions in promoting its business under the "Sentosa" mark, growing the name into a household brand that is recognised by the general public.

SDC has also registered the mark in Malaysia, Indonesia and China.

SDC contends that Vela, which was set up in 2011, "deliberately chose to free-ride on the plaintiff's long-standing brand" to promote its relatively new business.

Vela's application to register Sentosa as a trademark was rejected in November 2012. Its chief executive, Mr Michael Tillmann, then persistently asked SDC to be allowed to use the Sentosa name, but was turned down.

Mr Tillmann, who lives on Sentosa Island, then wrote to the MTI to apply pressure on SDC. But before the ministry responded, he took a series of legal actions to revoke or invalidate SDC's trademarks.

Despite SDC's refusal to give consent, Vela continued using "Sentosa" to brand its products.

SDC argues that continued use of the name will create the confusion that Vela's products are connected to the statutory board. It will also dilute or even tarnish the "distinctive character" of the mark.

Vela, represented by Mr Jason Chan and Ms Elaine Tan of Amica Law, argues that "Sentosa" is seen as a destination, and there is no evidence that the public regards it as a source of goods or services.

The trial continues.

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

StanChart bank robbery suspect won't be caned if convicted: MHA

Straits Times
21 Feb 2018
Tan Tam Mei

The man suspected of robbing a Standard Chartered Bank branch here in 2016 will not be caned even if he is convicted. Singapore is willing to give this assurance to pave the way for the extradition of Canadian David James Roach, 28, from Britain, where he was arrested last month.

The Ministry of Home Affairs (MHA), which is working with the British authorities, said in a statement yesterday: "As part of the extradition proceedings, the UK government has requested an assurance that if Roach were to be found guilty by a Singapore court of robbery, the sentence of corporal punishment will not be carried out."

Singapore has an extradition treaty with Britain, but British laws prohibit the authorities from extraditing Roach without such an assurance. Britain abolished caning as a punishment for criminals in 1948.

"The provision of the assurance is being done to try and ensure that Roach does not escape justice, and does not affect the general position taken by Singapore on corporal punishment," added the MHA.

Roach is accused of robbing StanChart Bank's Holland Village branch of $30,000 on July 7, 2016. He allegedly handed a teller a note with demands. He then fled to Bangkok but was arrested three days later.

He was sentenced to 14 months' jail in Thailand last June for violating money laundering and customs laws. He had carried more than US$20,000 (S$26,000) - believed to be proceeds from the robbery - when he entered Thailand.

Media reports said Roach was being deported from Bangkok to Canada and was in transit in London when he was arrested on Jan 11.

His extradition is being sought on one count of robbery under Section 392 of the Penal Code, which can carry a maximum of 10 years' jail and at least six strokes of the cane.

Another count of money laundering is also being sought under Section 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act. It carries a maximum sentence of a $500,000 fine or 10 years' jail.

Roach, whose case was heard in a London court last Thursday, said he would contest his extradition. When contacted, Roach's lawyer Sundeep Pankhania declined comment.

Cases where such assurance on punishment is given are "exceptional", and occur when it is "the only means" to secure an extradition, said National University of Singapore law professor A. Kumaralingam. For example, Briton Michael McCrea, wanted for double murder in 2002, was extradited from Australia in 2005 only after Singapore agreed he would not be hanged.The murder charges were downgraded to culpable homicide.

In cases where caning is mandatory, such as robbery, the punishment can be avoided only if the charge is amended to one that does not require such a sentence, said Prof Kumaralingam.

The Constitution also gives the President the power to remit part of the sentence, said Singapore Management University assistant professor of law Eunice Chua.

The Straits Times understands this would mean that even if Roach is to be punished with caning, that part of his sentence can be remitted by the President.

This provision was used in the 1994 case of American teenager Michael Fay, who was caned for vandalising cars and public property. His caning sentence was reduced from six to four strokesin consideration of a request from then United States President Bill Clinton.


Previous extradition case

• Former financial adviser Michael McCrea was extradited to Singapore in 2005 after the authorities promised Australia that the Briton would not face death if convicted of murder.

• He was wanted for the murder of his chauffeur Kho Nai Guan and Mr Kho's girlfriend, Chinese national Lan Ya Ming, in January 2002.McCrea, who was then 44, got three people to clean up the evidence in his Balmoral Park apartment. The bodies were left in his car at the Orchard Towers carpark.

• McCrea fled to London and later to Melbourne, where he was arrested in June 2002. He spent the next three years contesting his extradition to Singapore, which Australia eventually allowed.

• In Singapore, McCrea was charged with two counts of murder. But these were later reduced to culpable homicide, and he was jailed for 24 years.

• The punishment for murder is death or life imprisonment, while that for culpable homicide is life imprisonment and caning, or up to 20 years' jail, with caning or a fine.

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

Lawyer rapped in Saudi envoy's failed Court of Appeal bid

Straits Times
09 Feb 2018
Selina Lum

'Self-evident' that questions not those of law of public interest; lawyer ordered to pay costs of $5k

A Saudi Arabian diplomat, who is in jail for groping a hotel intern, yesterday failed to take his case to the Court of Appeal, while his lawyer was ordered to personally pay costs of $5,000 for an "improper and unreasonable" application.

Bander Yahya A. Alzahrani, 40, was sentenced to 26 months and a week's jail and four strokes of the cane in February last year for molesting a 20-year-old employee at a Sentosa hotel while he was here on holiday with his family.

His appeal against his conviction and sentence was dismissed by the High Court in July. He started serving his jail term on Aug 11.

Despite exhausting his avenues of appeal, he filed an application for leave to refer three questions to the Court of Appeal, in a procedure reserved for questions of law of public interest. The first question related to the issue of a lawyer who acts contrary to his client's instructions. The second and third dealt with whether expert opinion was necessary to determine the state of mind of an alleged victim of molestation.

Yesterday, a three-judge Court of Appeal dismissed his application, saying it was "self-evident" that all his questions were questions of fact, and not questions of law of public interest.

Alzahrani's lawyer Peter Pang was also rebuked for proceeding with the case just because his client and the Saudi Arabian Embassy had insisted on doing so. Mr Pang had argued that his client was not given a fair trial because his previous lawyer had "made an error".

But Chief Justice Sundaresh Menon said: "If counsel didn't do his job properly, the remedy lies elsewhere. You can't come here and say this is a question of law."

Deputy public prosecutors Hay Hung Chun and Kenny Yang argued that the application was a blatant abuse of process and "back-door appeal" under the guise of referring questions of law of public interest to the apex court.

The prosecutors sought costs of $5,000 against Mr Pang personally, saying that he had filed a "frivolous" application even though it was clear that it was "devoid of merit". The sum will be forwarded to the Law Society, they said.

Chief Justice Menon pointed out to Mr Pang that last November, when Alzahrani tried to ask the High Court to release him from jail pending the Court of Appeal hearing, the judge had already cautioned him that these were not questions of law. Mr Pang replied that he proceeded "because of the way I had been instructed".

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

City Harvest case verdict out tomorrow

Straits Times
31 Jan 2018
Selina Lum

Church founder, 5 others may face longer jail terms if apex court agrees with prosecution

The highest court in the land will deliver tomorrow the keenly awaited verdict in the final chapter of the marathon case involving the misuse of millions of dollars of City Harvest Church (CHC) funds.

The decision of the five-judge Court of Appeal will deal with two main issues - the interpretation of criminal breach of trust (CBT) laws and whether CHC founder Kong Hee and five others will face longer jail terms.

In a rarely invoked procedure known as a criminal reference, the prosecution had argued before the apex court in August last year that the City Harvest six ought to have been convicted of the more aggravated charge of CBT as agents, which provides for heavier punishment, rather than plain CBT.

Kong, 52; deputy senior pastor Tan Ye Peng, 44; former finance manager Serina Wee, 40; and former finance committee member John Lam, 49, are currently serving their jail terms of between 1� and three years. Former finance manager Sharon Tan, 41, has completed her seven-month jail term.

Former fund manager Chew Eng Han, 57, facing a jail term of three years and four months, is out on bail pending the court's decision.

If the Court of Appeal disagrees with the prosecution's interpretation of the law, the existing sentences will remain.

If the court agrees with the prosecution on the legal points, this could lead to longer sentences for all six.

The prosecution has sought to reinstate the original convictions of the six if the court rules in its favour.

In November 2015, the six were handed jail terms ranging from 21 months to eight years after being found guilty of misusing church funds to fuel the pop music career of Kong's wife, Ms Ho Yeow Sun, in a church mission known as the Crossover Project.

They were then convicted of CBT as agents, under Section 409 of the Penal Code.

The six appealed against their convictions and sentences, while the prosecution appealed for harsher sentences.

In a split 2-1 decision last April, the High Court cleared the six of CBT as agents and found them guilty of plain CBT under Section 406. The majority ruled that Section 409 applies only to "professional agents"; and directors such as the CHC six cannot be considered "agents" under the law.

As a result, the sentences were reduced to between seven months and 3½ years' jail.

The prosecution then referred the case to the Court of Appeal, whose decision on the point of law will have implications for future cases.

Chew told The Straits Times yesterday that the imminent decision was "sombre news but something that's inevitable".

He said he has told the prosecution that he intends to further defer the start of his jail term to Feb 22, in the light of the upcoming Chinese New Year holiday, and will be making the request to the court.

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

Borrowing plan will help fund higher infrastructure spending

Straits Times
21 Feb 2018
Yasmine Yahya

Govt looking at using reserves to guarantee borrowings to keep financing costs low

Some statutory boards already borrow to fund their projects but the Government is looking at getting them to do it on a bigger scale as Singapore ramps up its spending on infrastructure.

The Government is also considering using the country's national reserves to guarantee such borrowings. But this would be done on a case-by-case basis.

Elaborating on an announcement that he made in his Budget speech on Monday, Finance Minister Heng Swee Keat said in an interview with The Straits Times yesterday that the proposed move comes as Singapore's upcoming infrastructure spending needs are at levels not seen in more than 50 years.

"In the earlier years of our development, we borrowed from a variety of sources, including multilateral development banks such as the World Bank, Asian Development Bank and so on, to fund some of these major long-term infrastructure developments," he said.

"But as our economy grew and the tax collection was strong, we stopped borrowing some time in the mid-60s for our major infrastructure projects. Now, we are coming back to another major spike in our infrastructure needs."

These include projects such as Changi Airport Terminal 5, the Kuala Lumpur-Singapore High Speed Rail and the Cross Island Line, said Mr Heng.

What is new this time is that the Government is also looking at using the national reserves to guarantee such borrowings to keep the financing costs low, he said.

Any such use requires the Government to seek the approval of the President and the Council of Presidential Advisers, and it is discussing with them what safeguards are needed, he added.

But projects will be judged on a case-by-case basis before the Government decides whether it can guarantee the developer's borrowings. "There has to be certain safeguards that need to be built in, but the specific approval must depend on the details of each project. It has to be scrutinised very carefully. Any project that is put up for this has to be meritorious," he said.

The move to tap financial markets to help pay for infrastructure developments is significant as it opens a new source of funding for these costly projects, rather than relying on tax revenues or dipping into the reserves.

Mr Heng had noted in his Budget speech that infrastructure investments tend to be "lumpy", requiring hefty upfront investments for benefits that will be enjoyed only many years later.

To reduce the burden of such investments on future budgets, he announced the setting up of a new Rail Infrastructure Fund.

It will receive an initial $5 billion injection from the Government for the building of major rail lines in the future. "I'm putting it for a future use which we know is coming soon... and in fact the expenditure will be very significant," said Mr Heng.

The Government would not be "very credible" if it does not have a significant amount to invest upfront in the development of major infrastructure projects - whether it is to build a new airport terminal or to set up a rail infrastructure fund - so it would need a combination of savings and borrowings, he added.

Mr Heng had also said on Monday that the Government must manage its expenditure growth carefully as this would help to ease the tax burden on citizens.

During discussions on the goods and services tax hike with the ministries, all were prepared to review their own books, he said. Some came back, saying "we can think of how to slash this bit of cost and that bit of cost from what was earlier planned", he added.

From next year, Mr Heng would moderate the pace of ministries' annual budget growth from 0.4 times of gross domestic product growth to 0.3 times, he had told Parliament on Monday.

Yesterday, he said: "I'm squeezing all our ministries very hard by limiting their budget growth factor. Some ministries, especially the smaller ones, are complaining it's getting harder and harder to manage.

"But I hope the message gets across to all, that we have to learn to do more with less and it applies right across the public sector as well as the private sector."

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

City Harvest case and the separation of powers

Straits Times
09 Feb 2018
Goh Yihan

Verdict provides important example of how the courts and Parliament play different roles in Singapore's legal system

The Court of Appeal last week upheld the reduced sentences passed in the City Harvest Church (CHC) case.

Six former church leaders were charged with having conspired to commit the aggravated offence of criminal breach of trust (CBT) as an "agent" under Section 409 of the Penal Code.

Departing from the earlier interpretation that had stood for the past 40 years, the court decided that Section 409 applied only to professional agents, which the former church leaders were not. The charges were reduced to Section 406, which provided for shorter terms of imprisonment.

This decision has triggered a review of our CBT laws. It is clear that Section 409, which was enacted some 150 years ago, is no longer adequate to deal with the CBT cases in the 21st century.

So, the Attorney-General's Chambers has stated that it will work with the relevant ministries on appropriate reform.

Earlier this week, the Minister for Law, Mr K. Shanmugam, reiterated the Government's intention to amend the law together, with other wide-ranging amendments to the Penal Code. Even the Court of Appeal itself acknowledged that such a reform is long overdue.

However, why couldn't the court have reformed the law itself, instead of leaving it to Parliament?

DIFFERENT ROLES

The answer is that the courts are separate from Parliament. Each exercises a different power.

As the Court of Appeal explained in a 2014 case, the courts cannot exercise legislative power - that is, the power to enact legislation - because they do not have the mandate to do so. The mandate to promulgate laws belongs to the duly elected Members of Parliament. So, the courts have declined to reform existing legislation, even when it is clear that such laws are outdated.

For example, the Court of Appeal decided in 2009 that an illegitimate child could not claim support under the Inheritance (Family Provision) Act. This Act introduced English law as it stood in 1938.

The court reasoned that when Parliament passed the Act in 1966, there was no indication that it disagreed with the prevailing English law, which denied support to illegitimate children. The court had to give effect to Parliament's intention even as it urged for reform.

Another example is when the High Court in 2005 dealt with the presumption of death under Section 110 of the Evidence Act. The applicant urged that her estranged father be presumed dead as he had been uncontactable for years.

The court dismissed the application as the applicant could not satisfy the requirement that her father had not been heard of by those who were not estranged from him. The court commented that Section 110, being enacted over 100 years ago, was in need of reform. It may be unfair to place the burden on estranged family members to show that someone else, who should have heard about the missing person, did not.

It is for good reasons that the courts do not exercise legislative powers.

For one, legislation is usually wide-ranging in scope and effect. Courts, which deal only with the cases before them, may not be well equipped to carry out such wide-ranging reforms.

Furthermore, whereas Parliament has the resources to consult with various stakeholders on the effect of legislation, the courts cannot do so as they are constrained to resolving the immediate dispute between the parties before them.

The courts are also not accountable to the electorate in the same way that Parliament is.

DIFFERENT INTERPRETATIONS

More importantly, it would affect the courts' legitimacy if they were to exercise legislative power, and compromise their role to administer the rule of law objectively.

It is therefore entirely legitimate for the Court of Appeal in the CHC case to leave the reform of Section 409 to Parliament. In not exercising the legislative power, all it could do - and did - was to interpret the law according to the prevailing intention of Parliament, as discerned from materials at the time of Section 409's enactment.

However, this is not to say that the courts do not develop the law.

Instead of legislative power, the courts exercise judicial power. By this, the courts are tasked with interpreting legislation. The courts are here concerned with giving effect to Parliament's intent at the time the legislation was enacted. Thus, developments after the legislation was enacted are generally irrelevant.

In the CHC case, it was argued by the prosecution before the High Court that since Parliament had left Section 409 untouched until now, it must have agreed with the courts' earlier interpretation that stood for over 40 years.

A majority of the High Court in the CHC case dismissed this fact as irrelevant. The Court of Appeal did not disagree with the High Court's conclusion. Indeed, it would be speculative to rely on inaction by Parliament as indicative of any overt intention.

Through interpreting legislation, the courts may sometimes advance the law. This was such in the CHC case, where a majority of the High Court and the Court of Appeal departed from the earlier interpretation of Section 409 that originated in a High Court decision some 40 years ago.

It is noteworthy that the proper interpretation of Section 409 had come before the Court of Appeal for the first time in the CHC case. It never had the opportunity to examine the meaning of Section 409 in detail before.

Being the highest court of the land, the Court of Appeal is duty-bound to give its view on the proper interpretation of Section 409. It is in this context, and after a thorough analysis that included references to the relevant legal principles, historical material and foreign case law, that the Court of Appeal disagreed with the earlier interpretation of Section 409 that had stood for over 40 years.

COMMON LAW

Indeed, courts sometimes do depart from longstanding legal positions. The Court of Appeal has the power to depart from even its own decisions, as its 1994 Practice Statement on Judicial Precedent spells out.

The courts may disagree as to what Parliament's intention is, but that does not hide the fact that they are ultimately concerned with giving effect to Parliament's intention, and not with reforming the law.

The courts also advance the law by developing the "common law". The common law, so-called because it was "common" to all of England in the past, is made by judges based on precedent.

By this process, judges develop the common law one case at a time, building on earlier cases to advance legal principles. An example is the development of the "tort of harassment" in a 2001 High Court case. The court acknowledged that the existing common law did not cater for harassing conduct outside of a person's residence. So, the court developed the common law to include a new tort of harassment, which covered wider harassing conduct.

However, the common law can be superseded by Parliament. Such was the case when Parliament enacted the Protection from Harassment Act in 2014, which codified the tort of harassment.

The CHC case may have highlighted the inadequacy of our CBT laws, but it also provides an important example of how the legislative and judicial powers are separate under our system. It is a demonstration of how our system, founded on the separation of powers, works in practice.


The CHC case may have highlighted the inadequacy of our CBT laws, but it also provides an important example of how the legislative and judicial powers are separate under our system. It is a demonstration of how our system, founded on the separation of powers, works in practice.


• The writer is dean of the School of Law at the Singapore Management University.

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

Proposed takeover of OldTown by JDE 'not anti- competitive', says CCS

Business Times
31 Jan 2018
Lynette Khoo

The Competition Commission of Singapore (CCS) has cleared the proposed acquisition of OldTown Berhad by global coffeemaker Jacobs Douwe Egberts Holdings Asia NL BV (JDE Asia).

This proposed deal will result in JDE Asia's parent firm JDE having sole control over OldTown.

CCS said on Tuesday that it has concluded that the proposed transaction, if carried into effect, "will not lead to a substantial lessening of competition in the supply of instant coffee mixes and instant milk tea mixes for in-home sales in Singapore".

It will not infringe the prohibition in the Competition Act against anti-competitive mergers, CCS concluded.

In examining the deal's potential impact, CCS said it conducted a public consultation and sought feedback from intermediate customers such as retailers, as well as corporate end-customers and other competing suppliers of instant coffee mixes and instant milk tea mixes in Singapore.

JDE had in December offered to buy the Malaysian coffee company OldTown for RM1.47 billion (S$494 million) or RM3.18 per share in a bid to expand its global coffee empire. It had earlier acquired Singapore-based Super Group, which manufactures and sells more than 160 instant food and beverage products, including instant tea and coffee.

Currently, JDE owns various brands in over 27 countries across Europe, Latin America and Australia. OldTown, which is a publicly listed company on Bursa Malaysia, manufactures coffee and other beverages, sells them to points of distribution globally, and operates retail cafes under the "OldTown White Coffee" brand.

The target company and the acquirer overlap in two key areas - the supply of instant coffee mixes and instant milk tea mixes for in-home sales in Singapore. There is also a marginal overlap between the parties in the supply of instant coffee mixes for out-of-home sales in Singapore.

But in view of the negligible presence of the parties in the supply of instant coffee mixes for out-of-home sales in Singapore, CCS's assessment focused on the markets for the supply of instant coffee mixes and instant milk tea mixes for in-home sales in Singapore.

CCS said that the parties face competition from a number of suppliers in these markets. Barriers to entry and expansion are also relatively low in these markets.

In addition, the larger intermediate customers generally have some negotiation power with the suppliers of instant coffee mixes and instant milk tea mixes, and may be able to exercise bargaining power over the merged entity post-transaction, CCS explained.

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

Buyer's stamp duty hike a preferred tool to wealth taxes

Business Times
21 Feb 2018
Janice Heng

Consultants say it won't hurt Singapore's wealth management hub; it also sends message on en bloc fever

While some sort of tax on the wealthy had been expected in Monday's Budget, few thought it would take the form of a hike in buyer's stamp duty (BSD).

The move however, has received praise from tax consultants and other experts. They say it's less disruptive and easier to implement than alternatives such as capital gains tax or estate duty, which could hurt Singapore's reputation for wealth management and its competitiveness as a financial hub.

"The introduction of any wealth tax - gift tax, inheritance tax - would run contrary to the initiatives that Singapore has rolled out over the years in successfully developing the wealth management industry," said Goh Siow Hui, tax services partner at Ernst & Young Solutions.

Effective Feb 20, the top marginal BSD rate was raised from 3 per cent to 4 per cent, applying to the portion of residential property value in excess of S$1 million.

In the Budget speech, Finance Minister Heng Swee Keat framed the move as one aimed at making Singapore's tax system more progressive.

He added: "We will continue to study options to ensure that our tax system remains progressive."

While there may be other measures that also fall under a progressive tax system, experts say these are less appealing for various reasons.

A rise in personal income tax would have a larger political cost and be especially hard to digest alongside the future increase in goods and services tax, said Maybank Kim Eng economist Chua Hak Bin.

It could also affect Singapore's ability to attract top talent, said Shantini Ramachandra, tax partner and Deloitte private (tax) leader at Deloitte Singapore and Southeast Asia.

Wealth taxes such as estate duty or capital gains tax, too, would likely hurt Singapore's ambition to be one of the world's leading private wealth centres, she added.

KPMG Singapore principal tax consultant Leung Yew Kwong noted that the government's reasons for abolishing estate duty in 2008 remain valid today: encouraging wealthy individuals to bring their assets here; letting ordinary Singaporeans pass their income and assets to their family without being taxed again; and making Singapore an attractive place where wealth is invested and built up, by foreigners and Singaporeans alike.

As for capital gains tax, EY's Ms Goh said its absence keeps Singapore's tax system simple and is arguably a main factor that attracts foreign investors.

She noted that out of the S$2.7 trillion of assets under management (AUM) here, more than three-quarters of the funds were sourced outside Singapore, according to a 2016 Monetary Authority of Singapore survey.

"The risk is that such AUM may as easily leave Singapore if the country is no longer the straightforward and efficient jurisdiction it is currently known to be," she said.

In contrast, the BSD hike signals a commitment to progressivity "without introducing any new taxes that could be viewed as a direct wealth tax", as Baker McKenzie Wong & Leow head of tax Allen Tan put it.

Such perceptions matter. In the longer term, investors may be discouraged from accumulating wealth here if they fear some future measure may hit their savings, said Dr Chua.

"The government will have to manage the external perception (so it is seen) as pursuing 'socially inclusive' and not 'anti-wealth' policies."

Demerits of other taxes aside, the BSD hike has its own advantages.

It is easier to implement than the introduction of a new tax, as the mechanism for collecting BSD is already in place.

Unlike taxes on the holding or appreciation of wealth, BSD is tied to property transactions and is relatively easy to monitor, noted Ms Goh.

In addition, the BSD hike is also seen as a response to the current en bloc fever, said DBS economist Irvin Seah: "It's a gentle reminder to property market players." The message was not lost on investors, with several property blue chips taking a beating on Tuesday.

"This is almost like killing two birds with one stone," he said. "You achieve two outcomes with one policy measure."

KPMG's Mr Leung notes, though, that the hike is not meant as a property cooling measure, as the higher burden is "not so heavy to deter purchases", whether by individuals or by developers.

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

Singapore must help shape international law: Indranee

Straits Times
09 Feb 2018
Charissa Yong

Lawyers, legal scholars can play their part as global statutes affect society, economy here

Singapore must actively help to shape international law, Senior Minister of State for Finance and Law Indranee Rajah said yesterday.

She explained that international norms and statutes increasingly determine what states can and cannot do within their borders, and therefore have a deep impact on Singapore's society and its economy.

"The impact of international law on Singapore's domestic economic and social life will continue to grow," she told 200 lawyers, diplomats and officials at the International Law Year in Review conference.

"Singapore must ensure that not only our national interests, but also our values, traditions and perspectives are brought to the table."

At the conference, organised by the National University of Singapore's Centre for International Law, the legal community discussed trends, including recent cross-border legal disputes and domestic courts dealing with more foreign and international law issues.

In her opening speech at the Mandarin Orchard Singapore Hotel, Ms Indranee made the case for why "now more than ever", Singapore lawyers need to step up to help shape international law.

She highlighted the trend of international law governing how states behave within their own borders.

For instance, international trade law allows or bans the tariffs and regulatory barriers which states may impose on goods and services.

These rules affect areas such as national development, livelihoods, domestic innovation and the ability of people to access affordable medicine, she said.

Another trend is how states are cooperating more closely when it comes to international civil law.

She cited the example of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which helps parents whose children are taken from them to another country in breach of their custody rights.

"If that country is a party to this convention, like Singapore is, the country must give the parent the right to apply to them for assistance in securing the child's return," she said.

"Today, virtually all ministries deal with international conventions, and have to consider international norms and standards in policy-making."

While the Government is actively involved in shaping international law through negotiating global legal conventions, private practitioners and academics can also play their part, said Ms Indranee.

For instance, legal scholars can influence mainstream legal thinking.

Lawyers can also contest legal norms and have them defined in courtrooms, she said.

Ms Indranee cited Singapore and Malaysia's dispute over Pedra Branca island, which the International Court of Justice in 2008 ruled belonged to Singapore.

Malaysia recently applied to revisit this decision, and "they continue to act in a manner consistent with international law", she said.

"For the Pedra Branca case, Singapore's legal team includes not only our established legal luminaries, but it also includes our next generation of legal talent.

"I look forward to seeing the next generation of movers and shakers... bring international law forward."


IMPACT OF INTERNATIONAL NORMS

Today, virtually all ministries deal with international conventions, and have to consider international norms and standards in policy-making.

MS INDRANEE RAJAH, Senior Minister of State for Finance and Law

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

Ex-national paddler's mum given six-week jail sentence for bribery

Straits Times
31 Jan 2018
Shaffiq Idris Alkhatib

There is public interest in protecting the integrity of the Singapore Table Tennis Association (STTA), which oversees one of the core sports here, a judge said in sentencing the mother of a former national paddler to jail for bribery.

When Chinese national Su Feng-xian, 56, learnt that her son was facing disciplinary action, she tried to help him by offering a bribe of €2,000 ($3,200) to an STTA director, who rejected the bribe.

On Jan 2, District Judge Chay Yuen Fatt found Su guilty following a three-day trial.

In sentencing her to six weeks in jail yesterday, Judge Chay said: "This case shows STTA is incorruptible."

Su's son, Mr Li Hu, was a national player and one-time world junior singles champion.

In October 2016, the 29-year-old was hauled before an STTA disciplinary committee for violating house rules in allowing a female friend to spend a night at the STTA hostel in Toa Payoh.

During the trial last year, Deputy Public Prosecutor Jasmin Kaur told the court that while Su was in China, she received a call from Mr Li on Oct 14, 2016.

After he told her about the disciplinary matter, Su called STTA's technical director Loy Soo Han to plead for leniency on her son's behalf. However, her pleas failed to move Mr Loy, and Mr Li handed in his resignation letter to STTA.

Days later on Oct 17, Su arrived in Singapore at around 7am and went to STTA to meet Mr Loy to again plead for leniency. When he still stood firm, she offered him an envelope filled with the cash.

Yesterday, DPP Kaur urged Judge Chay to sentence Su to at least four months in jail, citing aggravating factors including potential damage to Singapore's international reputation. She said Su's actions were premeditated, adding: "The accused... offered the bribe to Loy because it was a solution that was commonplace in her culture. A strong deterrent message must be sent out that such 'solutions' have no place in our country, and anyone who resorts to bribery will be dealt with severely."

DPP Kaur said a strong signal must be sent to deter any attempt to bribe STTA officials, "to minimise or reduce the potential damage to Singapore's reputation in the international sporting arena that may be caused by the taint of corruption".

Counsel Alfred Dodwell, representing Su, had asked the court to sentence his client to a fine of not more than $2,000. He said: "Su did not embark on a deliberate scheme with her own personal gain in mind. There was no hint of conspiracy and no web of corruption to speak of... When Su was fraught with emotions, she had inadvertently given the corrupt gratification to Loy."

Mr Dodwell told the court that his client intends to appeal against her conviction and sentence. Su was offered bail of $15,000 pending this appeal. For offering the bribe, she could have been jailed for up to five years and fined up to $100,000.

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

Iras releases consultation papers on e-commerce transactions

Business Times
21 Feb 2018
Yunita Ong

The Inland Revenue Authority Of Singapore (Iras) published two consultation papers on Feb 20 regarding taxing e-commerce transactions for businesses and individuals buying digital services from overseas providers.

This follows the announcement by Minister of Finance Heng Swee Keat during his Budget speech on Feb 19 that Singapore would implement GST on imported services with effect from Jan 1, 2020. Mr Heng said that this was meant to "make sure that our tax system remains fair and resilient in a digital economy".

In the case of business-to-consumer (B2C) transactions, a consumer subscribing to cable TV from a local provider would be charged GST, whereas a foreign one providing the same channels would not under current rules, for example.

However, Iras said in its paper that it would launch an overseas vendor registration regime that would require foreign suppliers with a global turnover exceeding S$1 million, supplying digital services to consumers here exceeding S$100,000 to register, charge and account for GST.

Under certain conditions, "a local or overseas operator of electronic marketplaces" could also be considered a supplier as well for services rendered on these platforms. For instance, this could include an e-book supplier established in the United Kingdom that allows customers to download materials from its website, or a Germany-established accommodation-booking website that charges service and booking fees to facilitate the booking of accommodation.

Iras also wants to implement a reverse charge mechanism for business-to-business (B2B) transactions. Businesses would then have to account for GST for services obtained from overseas suppliers, and allow them to make input tax claims. This would apply to those GST-registered and not entitled to full input tax credit or belonging to GST groups that are not entitled to full input tax credit.

It would also apply to those non-GST registered if their services purchased from suppliers abroad exceeds S$1 million in a 12-month period and would not be entitled to full input tax credit even if GST-registered.

The consultation papers are available on Iras' website. Iras is accepting submission of responses till March 20, and will provide a summary of responses to the feedback by May 31.

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

Money courier who carried nearly S$12m into S’pore jailed for false declarations

TODAY
08 Feb 2018
Faris Mokhtar

Largest amount of cash to be moved into Singapore by an individual, court told

Over eight months in 2013 and 2014, a 47-year-old Malaysian man worked as a cash courier, carting up to hundreds of thousands of dollars into Singapore from across the Causeway each time.

Abdul Jalil Sulaiman would falsely declare the amount of money he was carrying.

By the time his ruse was up, he had couriered close to S$12 million – the largest amount of cash to be moved to Singapore.

Abdul Jalil was sentenced to 36 months’ imprisonment on Wednesday (Feb 7) for 30 counts of failing to accurately report the movements of money. Another 70 similar charges were taken into consideration.

The court heard that Abdul Jalil first couriered cash into Singapore on Sept 4, 2013, carrying S$79,000. The largest amount he brought in was S$310,165, on Jan 21, 2014.

Abdul Jalil said he worked for an Indian national and Malaysian permanent resident called Mohd Salim, who owned four or five money-changing shops in Malaysia. The authorities have not been able to verify Mohd Salim’s identity or locate him so far.

They met in 2010 and reconnected in 2013, when Mr Mohd Salim instructed Abdul Jalil to register two companies – which had no business dealings – and open four bank accounts for the firms.

Money was later deposited into those accounts, which Abdul Jalil would withdraw in order to courier the cash to Singapore. He was instructed to hand over the money to a few unnamed individuals at Serangoon Road.

Under the Corruption, Drug Trafficking and Other Serious Crimes Act, individuals who bring in money exceeding the prescribed amount of S$20,000 have to fill up a cash movement report, stating the intended recipient of the cash and the amount being moved into Singapore.

However, during each of his 100 visits to Singapore, Abdul Jalil made false declarations, under-reporting the amount of money he had.

On the afternoon of April 16, 2014, he declared he had RM150,000 in a cash movement report, but an immigration officer at the Woodlands checkpoint checked his motorcycle and found an additional RM99,400 in his backpack.

The total amount of RM249,400 (S$96,163) was seized by the Commercial Affairs Department and Abdul Jalil was arrested.

In his mitigation, Abdul Jalil, who did not have a lawyer, said Mohd Salim had paid him about RM2,500 a month and told him he would not encounter any problems.

Deputy Public Prosecutor Stacey Anne Fernandez called for a 36-month jail term and said a deterrent sentence is warranted as Abdul Jalil’s premeditated actions were carried out over a prolonged period.

He was unable to prove the money couriered was obtained through legitimate business, and had allowed money launderers to abuse Singapore’s financial system, she said.

“While the prosecution recognises that this is also not a case where the cash moved is proven to be tainted by any underlying crime, the harm where funds appear to be obtained in suspicious circumstances must be distinguished from cases where cash was obtained in legitimate forms,” said Ms Fernandez.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Consumer sector to lead mergers and acquisitions growth in 2018

Business Times
31 Jan 2018
Michelle Quah

Growth in the Asia-Pacific is predicted to be 21% over last year's total of US$104 billion: Baker McKenzie

The changing habits of consumers around the world are set to make the sector one of the most exciting in the year ahead.

Global consumer transactions are expected to rise to US$632.6 billion this year, turning the consumer goods and retail (CG&R) sector into the top sector for mergers and acquisitions (M&A) growth this year, says Baker McKenzie.

The multinational law firm's Global Transactions Forecast, developed in association with Oxford Economics, sees worldwide consumer trends driving this growth - with the new consumer being connected and global, primarily shopping online, and their buying decisions influenced by what their friends and celebrities like on social media.

As more of these new consumers go online to purchase everything from clothes and electronics to household supplies and organic vegetables, Baker McKenzie predicts that transactions in the consumer sector are likely to continue rising.

Digitisation and consolidation within the industry already drove M&A activity in 2017, pushing transaction values to a total of US$543.2 billion.

Alyssa Gallot-Auberger, global chair of CG&R at Baker McKenzie, said: "The way we shop has probably changed more in the last five years than in the last 50. The new consumer often uses a physical shop as a place to have an experience rather than a place to buy things."

Baker McKenzie expects North America to lead the pack, with transactions totalling US$304.4 billion, followed by Europe with US$178.6 billion and the Asia-Pacific with US$125.9 billion. Latin America will be next with US$17.3 billion, then Africa and the Middle East with US$6.4 billion.

The predicted growth in the Asia-Pacific - up 21 per cent over last year's total of US$104 billion - will be driven by rising GDP throughout the region, and retailers' pursuit of younger, increasingly Internet-savvy consumers.

Brian Chia, an M&A partner at Wong & Partners, the Kuala Lumpur-based Malaysian member firm of Baker McKenzie, said: "There is pent-up demand that will drive deal activity, not just from strategics, but also private equity funds that are cashed up and have ample dry powder.

"Private equity will be a key driver of deal activity in the consumer sector, as fund sizes get bigger and more focused on specific Asian markets."

The easing of restrictions on capital outflow imposed previously by the Chinese government, which slowed outbound Chinese investment in 2017, is expected to drive Chinese acquirers to regain their focus on targets in Europe and North America.

Tracy Wut, an M&A partner at Baker McKenzie based in Hong Kong, said: "Consumer remains one of the top sectors for outbound investments by Chinese companies that are looking for growth beyond the domestic market.

"Factors such as rising disposable income, the demand for high-quality branded products, and vertical integration in supply chains will all contribute to increased deal activity."

Consumer activity is expected to also drive the initial public offerings rebound this year.

In 2017, the consumer sector was the most active by IPO volume, with 348 listings worth US$38.2 billion - up 37 per cent over 2016. Baker McKenzie predicts the sector will be second only to the finance sector this year, and accelerate by almost 60 per cent over last year.

The firm's report also noted that listings in the Asia-Pacific region led the resurgence in the consumer sector in 2017. It expects China to remain the top listings destination for consumer companies, which raised US$7.8 billion worth of capital last year.

This trend is expected to continue as consumer and retail companies look to tap the expanding middle class, growing consumer markets, and rise of online shopping.

Ms Gallot-Auberger said, "The booming IPO market there can be linked to the increasing strength of the Chinese consumer, together with the pure size of the market. The projected increase of online shopping in China underscores the appetite of the Chinese consumer for what's new, including new share issuances."

Following a peak in deal activity in 2018, though, Baker McKenzie forecasts that both M&A and IPO transactions in the consumer sector will drop by 13 per cent and 8 per cent, respectively, in 2019. It said this would be in line with a larger, worldwide trend of cooling deal activity in developed markets.

The firm forecasts M&A values in the consumer sector dropping to US$551.3 billion in 2019 and US$435 billion in 2020.

As for IPOs in the sector, it predicts they will decline slightly to US$55.1 billion in 2019, before falling further to US$33.9 billion in 2020.

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

Govt can't comment on CPIB probe; Keppel board accountable to shareholders: Indranee

Business Times
20 Feb 2018
Marissa Lee

This is to ensure investigative work of agencies not jeopardised, and affected parties not prejudiced

The government cannot comment on investigations undertaken by its agencies, but if there is "good reason to do so", the authorities will investigate, Senior Minister of State for Law Indranee Rajah told Parliament on Monday.

She was responding to a question from Workers' Party Non-Constituency MP Dennis Tan, who asked the Law Ministry whether the Corrupt Practices Investigation Bureau (CPIB) would "conduct a thorough investigation" into the business affairs of Keppel Offshore & Marine (KOM) to ascertain if the company had also used bribes to secure contracts elsewhere in the world, outside of Brazil.

This was after the company revealed late last year that it had been slapped with fines amounting to US$422 million as part of a global settlement with authorities in the US, Brazil and Singapore, relating to corrupt payments made by a former Keppel agent in Brazil.

Ms Indranee said: "The government does not as a general rule comment on the existence or non-existence of investigations by our investigative agencies, including CPIB.

"This is to ensure that the investigative work of these agencies are not jeopardised, and that affected individuals or entities are not prejudiced if, at the end of investigations, no offence is disclosed.

"If there is good reason to do so, or a basis for investigation, the authorities will investigate." She added that the board of Keppel Corp remains accountable to its shareholders: "The boards and management of Keppel Corp and its subsidiaries, including Keppel O&M, are responsible for the proper conduct of their businesses.

"This would include detecting, reporting and preventing corrupt behaviour. Under the US Deferred Prosecution Agreement, Keppel O&M is also under a legal obligation to implement rigorous compliance and internal controls to prevent and detect corrupt practices."

Mr Indranee also noted that Keppel's current management has asserted zero tolerance for corruption.

"Keppel Corp's shareholders, including Temasek Holdings, expect these statements to be fully observed, and will hold them to account should they fail to do so," Ms Indranee said.

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

WP MPs’ assertions on law allowing detention without trial untrue and absurd: Shanmugam

TODAY
08 Feb 2018

Law and Home Affairs Minister K Shanmugam has taken issue with “curious” assertions made by Workers’ Party (WP) Members of Parliament during a debate earlier this week on amendments to the Criminal Law (Temporary Provisions) Act.

The WP MPs had argued that the changes not only take away the power of judicial review, but also expand the Minister’s powers — comments that Mr Shanmugam described as “untrue” and “absurd”.

Writing on Facebook a day after the lengthy debate which lasted almost four hours, Mr Shanmugam said on Wednesday (Feb 7) that some parts of the debate were “pure theatrics with no substance, calculated to mislead”.

The Act, which has to be renewed every five years, allows some criminal suspects to be detained without trial, and it was extended by Parliament for the 14th time. Amendments specifying the scope of criminal activities covered under the Act were also passed, with 77 out of 89 MPs voting “yes”. The addition of a finality clause — which states that the Home Affairs Minister’s decision on matters such as detention is final — was a concern for many MPs, who asked if this would crimp the judiciary’s powers to interfere with the Government’s decisions.

During the debate, WP chairman and Aljunied GRC MP Sylvia Lim, who is a lawyer, called the move to define the scope of criminal activities an “attempt to make the Minister all-powerful”. “This expansion of the kind of activities subject to the Act in effect makes the Minister a global policeman with no equal in the world. This is a position too arrogant for the House to support,” she said.

Mr Shanmugam responded to Ms Lim in the House by pointing out that it was not the case that a suspect can automatically be detained if the activity is listed in the Fourth Schedule. “So how does it increase the powers (of the Minister)?” he said. “Rhetoric has got to match reality, and it’s useful to read clauses carefully before making speeches.”

Mr Shanmugam added on Facebook on Wednesday: “In fact, (the move) does the opposite, by now specifying what activities are covered. There could have been no reasonable belief that it increases the Minister’s power.”

On the finality clause, Mr Shanmugam said the assertion by WP MPs that this will remove the power of judicial review was not true. “The amendments simply put into the Act, what the Court of Appeal has already said… The Minister’s decision on the facts is final, and cannot be appealed from,” he said. “And, as I repeated many times (on Tuesday), the amendments do not take away the power of judicial review set out in the Dan Tan case. That power of judicial review continues.”

He added: “Despite the clear legal position, the assertions continued. Anyone who actually read the Dan Tan case, and knew some law, will know that.”

He was referring to the case of alleged match-fixer Dan Tan Seet Eng, whose detention under the Act was ruled unlawful by the courts in Nov 2015. Tan was subsequently re-arrested and detained, but this time with the MHA establishing in detail the relevant threat in Singapore posed by him.

Still, Mr Shanmugam said he had a “good exchange” with WP MPs Pritam Singh and Dennis Tan, both of whom are also lawyers. “(A) couple of the WP MPs made points which were good to clarify,” he said.

On Tuesday, Nominated MPs (NMPs) Kok Heng Leun and Azmoon Ahmad as well as eight WP MPs — excluding Mr Chen Show Mao, who was absent from the sitting — voted against the amendments, while NMPs Mahdev Mohan and Kuik Shiao-Yin abstained from the vote.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Transparency key to having fair deferred prosecution agreements

Straits Times
31 Jan 2018
S. Chandra Mohan

The legal and corporate sectors are abuzz with news that Singapore may introduce deferred prosecution agreements (DPA) in its legal system.

Law Minister K. Shanmugam has announced in Parliament that DPAs may be adopted for offences committed by companies. This comes in the wake of such an agreement between the United States Department of Justice (DOJ) and Singapore's Keppel Offshore & Marine (Keppel O&M), following bribe payments by Keppel O&M to Brazilian officials.

Recent discussions have surfaced concerns that DPAs represent a form of amnesty to corporate criminals, are essentially non-prosecution agreements and would enable large financial penalties to be imposed on errant companies beyond that prescribed by law for specific offences.

These views may not quite reflect the true nature of DPAs, especially those now in existence in the US and the United Kingdom, which Singapore is looking at for its own proposed regime.

DPAs were first introduced in the US in 1972, following a settlement between Salomon Brothers, an investment bank, and the DOJ under which the bank paid US$290 million for misconduct in Treasury auctions and government securities trading.

A DPA enables the prosecutor, after a charge has been preferred against the defendant, to defer the prosecution for a certain period upon certain requirements being satisfied by the defendant, including the payment of a financial penalty.

In the case of Keppel O&M, the company entered into a DPA with the DOJ following the filing of criminal information on Dec 22 last year in the Eastern District of New York charging Keppel O&M with conspiracy to violate the anti-bribery provisions of the US Foreign Corrupt Practices Act.

Under its agreement with the department to defer the continuation of the prosecution for a period of three years, Keppel O&M made a commitment to implement "rigorous internal controls and to cooperate fully with the department's ongoing investigation" and to pay a criminal penalty of exactly US$422,216,980 (S$552 million).

The specific figure indicates that there was a particular formula adopted in its calculation. The penalty is in accordance with US Federal Sentencing Guidelines for such offences. According to the DOJ, the final sum imposed reflects a 25 per cent discount for cooperation with the DOJ's investigation, extensive remedial measures taken by Keppel O&M, which included disciplining 17 employees involved in the bribery, and implementing a system of compliance measures.

At the end of three years, the deferred charge against Keppel O&M will be withdrawn. However, if Keppel O&M breaches the agreement or commits any serious offence, it risks facing a trial in the US, unless the DOJ grants an extension of the agreement.

DPAs offer obvious advantages to both parties to the agreement. Corporate crimes in most cases are complex and their investigation and prosecution are costly to the state, which must establish guilt beyond reasonable doubt in a criminal trial.

A DPA brings a speedy resolution to criminal proceedings with minimal costs to the state and to the company.

It also avoids reputational and economic losses to a company following a prosecution, which may result in shareholders, suppliers and employers being unduly punished.

A DPA also encourages self-reporting by companies and consequent remedial measures being taken. This has encouraged France in 2016 to adopt DPAs, which are also now under consideration in Canada and Australia.

There are, however, some concerns about DPAs that we must be conscious of in drafting and implementing them. It is feared that frequent use of DPAs may dilute the principle of deterrence of corporate crime. It may also "encourage lax and dubious behaviour on the part of prosecutors" to settle with offenders rather than make the effort to prosecute them, as US judge Jed Rakoff warned in 2013.

It has, therefore, been suggested in the UK that DPAs should only be used where there is a strong public interest to do so and where there has been full cooperation and suitable remedial action taken by corporate offenders.

The moot question is whether, in Singapore, we should have judicial supervision in our proposed DPA regime as in the UK, or opt for the US system, with minimal court intervention. Judicial supervision will delay the implementation of DPAs and prove more costly. Perhaps in recognition of the judicial resources needed for taking the UK route, Australia is proposing having a retired judge to consider whether a DPA is in the public interest and whether its terms are "fair, reasonable and proportionate", as its consultation paper puts it.

In Singapore, Mr Shanmugam indicated that if a DPA is implemented, terms have to be approved by the High Court.

"The High Court will have to look at what's fair and what's reasonable and what's proportionate... and agreements must be published once approved," he said.

In fact, my own view is that judicial supervision may not be necessary.

Those who decry a system with no judicial supervision may wish to remember that the Public Prosecutor in Singapore has an almost unfettered discretion in deciding whether or not to prosecute and on what charges to prosecute if he chooses to do so. The Court of Appeal has held that the courts should presume that the Public Prosecutor acts in the public interest in discharging his prosecutorial decisions.

Finally, DPAs are not completely alien to our corporate world. For almost 20 years, the Monetary Authority of Singapore (MAS) has entered into agreements with both corporate and individual defendants for the imposition of a civil penalty in lieu of a prosecution in court. The civil penalty regime complements criminal sanctions and provides "a nuanced approach to combat market misconduct", such as insider trading and market rigging, according to the MAS website.

Although not required by law, MAS publishes on its website the names of those on whom a civil penalty has been imposed, together with the amount of the penalty imposed. By all accounts, the civil penalty regime has worked efficiently and fairly for close to two decades.

Transparency in its operation, with its compelling public accountability, is then perhaps the most appropriate guarantee of ensuring that the proposed DPA functions fairly and efficiently.

• The writer is a law professor at the Singapore Management University.

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

Uber-ComfortDelGro tie-up: Watchdog identifies several issues that could affect competition

TODAY
20 Feb 2018
Kenneth Cheng

The proposed tie-up between taxi giant ComfortDelGro and ride-sharing firm Uber still hangs in the balance, with the competition watchdog saying the first phase of its review could not “conclusively determine” competition issues would not arise.

In a statement on Monday (Feb 19), the Competition Commission of Singapore (CCS) said it has pinned down several issues that may affect competition in the market. They require further assessment.

The issues include whether the UberFlash service launched last month involved coordination on pricing between competitors and whether ComfortDelGro’s flat-fare option without surge pricing will continue to be available to commuters.

Other issues include whether the availability of street hails and phone bookings will be affected by the tie-up, and if taxi and private-hire car drivers can accept bookings from multiple ride-sharing platforms if they wish to.

The CCS has requested that the parties submit further information by Mar 5, unless they can address the concerns identified.

The CCS will then conduct an “in-depth assessment” that includes canvassing public feedback and views.

It will also determine whether the proposed tie-up would restrict or reduce competition, or abuse a dominant position.

The second phase of this review could take up to 120 working days from the time the additional information is received, the CCS said.

Under the Competition Act, in cases where agreements are eventually found to prevent, distort or restrict competition, firms are given immunity from a financial penalty from the time they notify the CCS of a proposed partnership, until the commission reaches a decision.

Such immunity, however, does not apply to agreements that abuse a dominant position or mergers that result in or may cause a substantial reduction in competition.

“Therefore, if (UberFlash) is subsequently found to infringe (these), the parties must terminate the service or they may be liable to financial penalties imposed by the CCS,” the watchdog told TODAY last month.

When contacted, Uber and ComfortDelGro said they intend to file all relevant documents and address the CCS’s concerns and questions.

Both said they remain committed to the partnership.

Launched on Jan 19, the UberFlash service combines cars from the low-cost UberX service with ComfortDelGro taxis on Uber’s app. It is subject to surge pricing, where fares rise when demand goes up.

Both companies had said the service would offer fares up to 10 per cent cheaper than the regular price on the UberX service.

A week after the service was launched, TODAY reported that many taxi drivers from ComfortDelGro were not participating in it after complaining that their earnings have been hit by low fares.

About 30 per cent of ComfortDelGro drivers who signed up for the service were not using it then, Uber’s figures showed.

The launch of UberFlash came more than a month after the two companies announced a S$642 million tie-up that will see ComfortDelGro acquiring a 51 per cent stake in Uber’s car-rental arm here.

Dogged by stiff competition from private-hire car firms, ComfortDelGro announced last week that its full-year operating profit sank by 11.5 per cent to S$409.2 million in 2017. The company ascribed the weaker performance to a drop in its taxi business.

At the end of last year, its fleet of Comfort and CityCab taxis stood at 13,244, about 21 per cent smaller than a year ago.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Shaking up Singapore's transfer pricing regime

Business Times
08 Feb 2018
See Jee Chang and Lee Siew Ying

The IRAS has sent a clear signal that it is moving away from a guidance-based approach to a formal transfer pricing regime

When the Inland Revenue Authority of Singapore (IRAS) published the first edition of the Singapore Transfer Pricing (TP) Guidelines in 2006, it was a concise circular of just 42 pages. The overall messaging of the circular was friendly - it laid out the key transfer pricing concepts and guiding principles, recommending (but not mandating) taxpayers to prepare transfer pricing documentation to reduce the risk of double taxation.

Although the business community took notice - it was, after all, a major announcement from the IRAS - not many taxpayers viewed transfer pricing as a critical issue at the time, and did not see a pressing need to prepare the documentation since it was not mandatory.

A decade later, the Singapore TP Guidelines' fourth edition has 113 pages - almost three times the number of pages compared to the first edition. In 2017, the IRAS also introduced significant legislative amendments to the Income Tax (Amendment) Act to make transfer pricing documentation mandatory and impose penalties for non-compliance with effect from the Year of Assessment 2019. Through these actions, the IRAS has sent a clear signal that it is moving away from a guidance-based approach to a formal transfer pricing regime.

This time, it was not just the businesses that sat up. The recent changes to the Singapore transfer pricing regime have surprisingly also attracted comments from outside the business community.

In developed countries, transfer pricing has been particularly marked by tax authorities as the key modus operandi for multinational companies (MNCs) to shift substantial profits from high-tax jurisdictions to low-tax ones.

The numerous changes made by the IRAS to enhance the Singapore TP Guidelines over the years, and the recent legislative changes are part of IRAS's continued efforts and focus on transfer pricing compliance in Singapore. These changes also help Singapore achieve greater alignment with the transfer pricing action items under the Organisation for Economic Cooperation and Development's (OECD) Base Erosion and Profit Shifting (BEPS) initiative.

Businesses have mixed reactions to the step-up in compliance requirement for transfer pricing documentation. On the one hand, businesses generally understand that the documentation serves as robust and useful evidence to demonstrate to tax authorities that related-party transactions are conducted at arm's length. Now that the documentation is mandatory, businesses will be more mindful to prepare and maintain them, which ultimately benefits the businesses since the documentation could help in cross-border tax disputes that may arise as they expand overseas.

On the other hand, there is an additional compliance cost that could be a concern, especially for smaller businesses. In this regard, the IRAS has provided additional thresholds to reduce the compliance burden for smaller businesses; that is, only businesses with gross revenue exceeding S$10 million and significant related-party transactions are required to prepare transfer pricing documentation.

Businesses that are required to prepare the documentation will need to continue with it indefinitely unless specifically exempted from doing so. The current Singapore TP Guidelines and legislation do not offer further guidance on this but it is understood that the IRAS will be providing updated guidelines with examples to illustrate in due course. This means that businesses will need to keep abreast of these developments, not only to ensure that they comply with the latest regulations but also to avail themselves to relevant exemption thresholds so as to minimise their compliance cost.

GROWING PUBLIC INTEREST

In the past, news on changes to the transfer pricing regime in Singapore did not attract much public opinion. This is not surprising as most viewed such changes as impacting only corporate businesses and not the man on the street. However, the increased media attention and activist groups' interest in BEPS globally have resulted in political interest in tax reform, and the waves have also been hitting Singapore's shores.

For example, when the recent Income Tax (Amendment) Bill 2017 was read and debated in Parliament on Oct 2, 2017, Louis Ng Kok Kwang, Member of Parliament for Nee Soon, singled out the changes to the transfer pricing legislation. He asked if the IRAS will be providing reasons for determining that a transaction was not conducted at arm's length, and sought the Minister for Finance to also consider introducing a safe harbour margin for intercompany guarantees in addition to the existing indicative loan margin for related-party loans. Indranee Rajah, Senior Minister of State for Finance, responded that the IRAS will take this into account in its periodic review of the transfer pricing guidelines.

Mr Ng also called for the imposition of personal liability on the officers of the company who fail to comply with transfer pricing documentation requirements, as he deemed this to be a more effective method to ensure compliance. He also proposed that higher penalties be imposed for companies that provide false or misleading transfer pricing documentation, to reflect the higher degree of culpability. In response, Ms Rajah said that IRAS will monitor businesses' behaviours after the implementation of the TP Guidelines and evaluate the effectiveness of the penalties. If need be, the IRAS will strengthen them.

One thing is certain - transfer pricing documentation is now a necessity for both businesses and the general public. A robust and contemporaneous transfer pricing documentation serves to demonstrate, to the tax authorities and the general public alike, that businesses have been above board in their related-party transactions. The general public can then be assured that businesses contribute their responsible share of taxes, helping to fund the delivery of public services and support the country's development.

As expectations from the general public for tax transparency evolves, MNCs that are perceived as not paying their fair share of taxes are increasingly put into the spotlight. "Tax shaming" has become very real, and businesses would need to monitor their reputational risk arising from the potential impact.

As the scrutiny on transfer pricing practices is not likely to go away any time soon, businesses should put in place measures - beginning with preparing transfer pricing documentation - to proactively deal with this new environment.

  • The writers are respectively transfer pricing leader and tax senior manager at Deloitte Singapore. The views expressed are their own.

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

Datapulse Technology saga presents a challenge to SGX rules

Business Times
31 Jan 2018
Mak Yuen Teen

Lapses in disclosure and due diligence continue to undermine minority shareholders' interests

The ongoing Datapulse Technology saga raises questions about the effectiveness of the Singapore Exchange (SGX) rules in protecting minority shareholders' interests.

To recap, it all started with questionable disclosures relating to the company's existing manufacturing activities, the sale of its existing property and the purchase of a new property. In the midst of these developments, a new controlling shareholder appeared, having bought a 29 per cent stake from the previous controlling shareholder/CEO and other shareholders at a significant premium through several married deals.

The three independent directors on the board at that time suddenly resigned, citing a change in controlling shareholder. The following day, a new board was hastily constituted through the appointment of three new independent directors and a new CEO/executive director. This was done by the three remaining executive directors, all of whom then proceeded to resign.

The day after the new board was formed, it entered into an agreement to buy a Malaysian company, Wayco Manufacturing, which is in a new business of haircare products. This was done without any due diligence and using an "independent valuation" of properties provided by the vendor, which also happened to be essentially Wayco's sole customer. The sale was completed just four days later.

CLOSE RELATIONSHIPS

Publicly available information shows close relationships involving the new controlling shareholder, Ng Siew Hong; the new CEO, Kee Swee Ann; and the vendor, Ang Kong Meng.

Mr Kee used to be the general manager of Wayco and therefore worked for Mr Ang. He is also director and/or shareholder of two private companies - Captaino Pte Ltd and Great Rich Pte Ltd - audited by Ang & Co, which was founded by Mr Ang. Mr Ang is a controlling shareholder and non-executive chairman of a Cayman Islands-incorporated company called HKE Holdings which is proposing to list in Hong Kong, and Mr Kee has been named an independent director. Ms Ng and Mr Ang are joint shareholders of a private company called Anone Investment Pte Ltd, where Ms Ng is also a director.

Ms Ng and her siblings used to be substantial shareholders and/or key management at an SGX-listed company called HLN Technologies, which was later renamed Sinjia Land. Some time between 2014 and 2015, the Ngs disappeared from the list of top 20 shareholders at Sinjia Land and Mr Ang became a substantial shareholder. I should clarify that it has not been confirmed if the Ngs were the ones who sold their shares to Mr Ang.

SMALL ACQUISITION, BIG RISK

Let's now look at the applicability of the SGX rules to the Wayco acquisition.

Rule 1006 in chapter 10 determines whether an acquisition needs to comply with the disclosure or shareholder approval requirements in that chapter. The rule provides for five possible methods of computing the size of relative figures, including the following which are relevant for the acquisition of Wayco: the net profits attributable to the assets acquired or disposed of, compared with the group's net profits; and the aggregate value of the consideration given or received, compared with the issuer's market capitalisation.

Based on net profits, the relative figure is about 3.5 per cent, while based on the consideration paid, it is about 4.8 per cent. Since they are below 5 per cent, the requirements in chapter 10 would not apply.

The acquisition amount may only be a fraction of the total amount that Datapulse will end up spending on Wayco. For example, there may be further operating and capital expenditures after the acquisition. Therefore, Datapulse shareholders should not assume that their total exposure is the acquisition cost of S$3.5 million.

The Datapulse board makes a big deal about the "buyback agreement" it has put in place. Under this agreement, the vendor will buy back 100 per cent of Wayco at the same price paid by Datapulse if there are any "material adverse findings" in relation to Wayco within one year after the completion of the acquisition. It remains unclear as to what "material adverse findings" will trigger the buyback. Further, the buyback could be detrimental to Datapulse shareholders. Let's assume that Datapulse spends a further S$5 million in Wayco during the next 12 months and then discovers "material adverse findings". How is selling it back at S$3.5 million protecting Datapulse shareholders if Datapulse has now spent another S$5 million?

IPT RULES

Despite the relationships involving Mr Ang, Mr Kee and Ms Ng, the Wayco acquisition is not technically an interested person transaction (IPT) under chapter 9 of the SGX Rulebook. Under rule 904(4), an interested person in the case of a company means a director, chief executive officer or controlling shareholder of the issuer, or their associates. Associates refer to immediate family members; trustees of a trust for the benefit of a director, CEO or controlling shareholder or his immediate family members; and any company in which these individuals together have an interest of 30 per cent, or more.

If the Wayco acquisition had been considered an IPT under SGX rules by virtue of the relationships involving Mr Ang, Mr Kee and Ms Ng, it would have required the approval of independent shareholders under rule 906 and Ms Ng would not have been able to vote (Mr Kee is not a Datapulse shareholder).

This is because the consideration for Wayco constitutes almost 7 per cent of the net tangible assets of Datapulse - above the 5 per cent threshold which requires independent shareholders' approval. In that case, I believe that the acquisition would have been rejected by the independent shareholders.

Unlike the SGX rules, under the listing rules of the Stock Exchange of Hong Kong, the Exchange has the power to deem any person to be a connected person. A deemed connected person specifically includes a person who has entered, or proposes to enter, into (a) a transaction with the listed issuer's group; and (b) an agreement, arrangement, understanding or undertaking (whether formal or informal and whether express or implied) with a connected person with respect to the transaction; and (c) who in the Exchange's opinion, should be considered as a connected person. In Hong Kong, it is likely that Mr Ang would have been deemed a connected person.

If the acquisition does not meet the requirements for the de minimis exemptions and shareholders' approval is required, Ms Ng, as a connected person with material interests, would likely not be able to vote. In my view, SGX should review its IPT rules, including the definition of interested person.

SPIRIT AND SUBSTANCE

Chapter 1 of the SGX Listing Rulebook sets out General Principles on compliance with the listing rules. These include Rule 103(4) which states "all holders of listed securities shall be treated fairly and equitably"; and Rule 103(5) which states that "directors of an issuer shall act in the interests of shareholders as a whole, particularly where a director or substantial shareholder has a material interest in a transaction entered into by the issuer". Rule 105 (2) says that an issuer "must comply with the listing rules: (a) in accordance with the spirit, intention and purpose; and (b) by looking beyond form to substance".

Rule 104(1) states: "The Exchange reserves the right to subject a listed issuer's change in principal business to the Exchange's approval if in the Exchange's opinion... the integrity of the market may be adversely affected; or... it is in the interests of the public to do so."

SGX can demonstrate that the general principles are not mere platitudes by acting in cases where issuers have clearly not treated all shareholders fairly and equitably and directors have not acted in the interests of shareholders as a whole. Otherwise, issuers would ignore these general principles.

THE "UNSTRATEGIC" BOARD

The board recently announced that it is reviewing its strategic options, including whether to take over the existing distribution channels by buying Way, the previous parent company of Wayco, and Wayco Trading. The board has so far demonstrated little strategic thinking. Rather than looking at the new business holistically and strategically before investing, it rushed out to buy the captive manufacturing part of the business before deciding on what to do next. This is like rushing into Ikea, randomly grabbing a leg of a chair, and then going back later to see which chair it fits.

The recently announced strategic review by Ernst & Young Solutions commissioned by the board appears to be limited in scope and constrained by the hasty acquisition of Wayco. More importantly, the S$3.5 million question remains unanswered: why did the board make such a hasty acquisition involving connected parties without any due diligence?

THE MINORITY CONTROLLING SHAREHOLDER

Some minority investors may think that the fact that Ms Ng was prepared to pay about 53 per cent above the then market price to buy her 29 per cent stake suggests that she has great plans for Datapulse which would see the share price increase, thereby benefiting all shareholders. This is not necessarily the case.

As I explained in a recent Business Times article, The risks of having minority controlling shareholders in firms (Dec 28, 2017), controlling shareholders can exploit their control at the expense of the company and other shareholders. For example, they could do so by influencing the board to engage in transactions with related entities that transfer resources from the company to these other entities, or appointing family members or close associates to key management positions and paying them excessive remuneration. This will reduce the company's profits and drive down the share price. In that article, I explained that shareholders who are able to control a firm with relatively small stakes can be particularly hazardous to other minority shareholders because their gains from such actions far outweigh their share of the losses.

It is interesting that Ms Ng has chosen not to appoint herself to the board. Since she is not named as a director, it may appear that she does not have the fiduciary duties of directors - and controlling shareholders in Singapore do not owe fiduciary duties to the company. Nevertheless, if she is found to be making decisions that are normally made by directors or the board is acting under her instructions or directions, she could be liable as a de facto or shadow director.

SHAREHOLDERS' REQUISITION

I fully support the attempt by the requisitioning shareholders to remove the entire board and to block any further diversification by the current board. Given what has transpired, there is little reason for shareholders to have any confidence in the ability of the current board to enhance shareholder value. Most key decisions of a company are made by the board so it is critical to have a board that is independent and competent that acts in the interests of the company and all shareholders.

What makes Datapulse's board worse is that its chairman, Low Beng Tin, not only failed to disclose regulatory actions by SGX and MAS against one of the companies where he was the lead independent director when he was appointed as Datapulse chairman, he also failed to disclose it when he was appointed as an independent director at Fuji Offset Manufacturing and Lian Beng Group. Yet, the board claimed that he is "well-versed with listing compliance and corporate governance matters". If he cannot even ensure that his own appointment template is not misleading, how can shareholders be confident that he will set the right tone and ensure compliance with the letter and spirit of the listing rules?

  • The writer is an associate professor of accounting at the NUS Business School where he specialises in corporate governance.

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

Judge rules against financial director who wanted quick divorce

Straits Times
20 Feb 2018
K.C. Vijayan

A financial director's attempt at a quick divorce was rebuffed in court despite claims that his wife of more than three decades had behaved unreasonably.

The 59-year-old man had blamed his wife for the breakdown in their marriage, saying she had less time for him after becoming a devout Buddhist and strict vegetarian.

But in judgment grounds earlier this month, District Judge Cheryl Koh told him he has to wait out the mandatory separation period to obtain the formal split.

She said at issue in the case was whether her conduct "should be construed as unreasonable when it is the husband who has impregnated a younger woman and wished to extricate himself out of the marriage immediately".

The man did not deny his affair with the woman, who is from Shanghai, but said the relationship started in 2010, after his marriage with his 57-year-old financial controller wife had deteriorated.

Judge Koh ruled there was to be no quick divorce.

"The husband ultimately owed it to his wife of 35 years and mother of his three adult children to wait out the three or four years' separation required by law for a divorce on a no-fault basis, instead of blaming her for the breakdown of the marriage," she said.

The man had filed for divorce in December 2016 on grounds that his wife had become "overly engrossed with practising her Buddhist religion to the extent that she has neglected the husband's feelings and needs", among other things.

The wife, defended by lawyer N. Vijay Kumar, countered that she and her husband were both Buddhists, and the religious sessions for her and her children were beneficial and positive.

The wife added that he was hardly at home and returned home late most of the time, especially after 2014, when she said he became involved with his mistress.

The couple have known each other since childhood and pursued their university education in New Zealand. They were married there in May 1982.

Judge Koh was not convinced by the husband's claims, ruling that it was not unreasonable for a spouse to continue to practise religious beliefs just because "the other spouse did not believe or practise to the same extent". The husband had participated in the activities with the family at a religious centre in 2006, but stopped in 2010.

Judge Koh noted that the Shanghai woman had come to Singapore with her own spouse and child, but when she later became pregnant with the plaintiff's child, the hospital called her husband by mistake.

Judge Koh said it must be "extremely trying" for the husband to start a new family again with his expectant girlfriend and is "yet unable to extricate himself from the perceived shackles of his unwanted marriage".

But she stressed that divorce laws are meant to safeguard the sanctity of the institution of marriage as a cornerstone of Singapore society.

"If a spouse decided one day that he wished to move on with a third party, it did not mean that the spouse could abuse the court system by suddenly recalling all the alleged instances of unreasonable behaviour by the other spouse... just so that he could immediately extricate himself out of his marriage."

The husband, represented by lawyer Low Jin Liang, is appealing the case.

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

Law on criminal detention without trial extended

Straits Times
07 Feb 2018
Tan Tam Mei

A law that allows the detention of criminal suspects without trial has been extended for another five years from Oct 21 next year - but not without a heated debate in Parliament.

Over four hours yesterday, 11 MPs spoke on the Criminal Law (Temporary Provisions) (Amendment) Bill, raising concerns over issues such as the powers it now gives the Home Affairs Minister.

While this is the 14th time the law has been extended, the latest version includes changes such as giving the minister the final say on whether detention is necessary for reasons of public safety, peace and good order.

Of the 89 MPs present, 10 voted against the Bill, and two abstained.

Those who voted "no" included all eight MPs of the Workers' Party who were present. The party had supported the Bill during previous extensions. The remaining two dissenters were Nominated MPs Kok Heng Leun and Azmoon Ahmad. NMPs Mahdev Mohan and Kuik Shiao-Yin abstained.

There was some drama over the voting itself, with the electronic system mixing up Workers' Party MP Muhamad Faisal Manap - who had voted no - and People's Action Party MP Muhammad Faishal Ibrahim - who had voted yes. The second time, Deputy Prime Minister Tharman Shanmugaratnam's "yes" vote was not registered.

The debate began with Home Affairs and Law Minister K. Shanmugam seeking to explain the proposed amendments to the Bill. They included prescribing a list of offences that will come under the Act: secret society activities, unlicensed moneylending, drug trafficking, kidnapping and organised crime.

"We decided to list the types of criminal activities. There is more certainty and clarity in such an approach," said Mr Shanmugam.

The move to amend the 63-year-old Act follows the Court of Appeal's decision in 2015 to free alleged match-fixing kingpin Dan Tan. The court had said it did not accept that the Act "has a loose or open-ended remit". It noted that while Tan may have run an international match-fixing syndicate from Singapore, his activities did not pose a threat to public safety, peace and good order here.

The Act is traditionally used in situations where it is not possible to prosecute because witnesses, for instance former secret society members, are fearful or unwilling to testify for fear of reprisal.

Other changes to the Act include a clause that now makes the minister's decision on the facts of the case under the Act final. It cannot be appealed or substituted.

A number of MPs rose to query Mr Shanmugam about this, with Mr Louis Ng (Nee Soon GRC) and NMP Kok asking if this meant judicial review is now excluded.

The minister said the provision was not new and has always been accepted by the courts. "It does not oust judicial review," he stressed.

He said the courts can still review the decisions based on the traditional tests of illegality, irrationality and procedural impropriety.

Mr Shanmugam also tackled questions over whether listing the offences under the Act would increase the powers of the minister and reduce pressure to explain and justify each detention.

He said the minister would now have to fulfil two criteria: that requirements under an existing Section 30, that lays out the grounds for detention, are satisfied, and that the offence is listed.

"So, the detainees are no worse off, the minister is no better off. The same requirements continue. In addition, the minister has got to show that it is listed in the schedule. So, how does it increase the powers (of the minister)?"

Other changes included appointing sitting Supreme Court judges as chairmen of independent advisory committees that review police supervision and criminal detention orders, from March this year.

Mr Shanmugam said: "Having judges who are independent adds considerably to the robustness of the process."

Mr Murali Pillai (Bukit Batok) queried why the Ministry of Home Affairs was seeking an early extension of the Act which would only expire in Oct 20 next year. To this, Mr Shanmugam said they had decided to include the extension along with the proposed amendments.

"The sooner, the better we move in line with everything else... So, we put it all together and because we are coming to Parliament for the amendments, we said let's ask for another five years at the same time."

Mr Shanmugam said the Act helps to maintain public safety and order. "The Act is an essential tool in our arsenal," he added. "The path we have taken is good for society."


MORE CLARITY

We decided to list the types of criminal activities. There is more certainty and clarity in such an approach.

HOME AFFAIRS AND LAW MINISTER K. SHANMUGAM


KEEPING PUBLIC SAFE

The Act is an essential tool in our arsenal. The path we have taken is good for society.

MR SHANMUGAM

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

Noble's debt revamp plan kicks up storm

Business Times
31 Jan 2018
Andrea Soh

Major shareholder Goldilocks calls on regulators to launch a probe into the firm; Sias urges company to consider offering shareholders a more equitable deal

Noble Group's restructuring plan left the market in uproar on Tuesday, with both shareholders and unconsulted creditors deeply upset over what they viewed to be unfair terms.

The plan also triggered yet another credit rating cut for the company's bonds by two credit rating agencies, with one saying it is "tantamount to an immediate default".

The outsized equity stake that the firm's management will have in the restructured entity raised eyebrows, and led to at least one major shareholder, Goldilocks Investment Company, questioning whether the management has breached its fiduciary duty to the company and its shareholders.

Compounding the maelstrom for Noble, Moody's and S&P on Tuesday evening further downgraded their junk ratings on the company's bonds. Moody's said it will be a default event if the deal is finalised; S&P warned that it will in future likely lower the rating to "D" - the lowest junk-bond rating, indicating that the firm will default on most or all its obligations.

S&P analyst Danny Huang said: "We view the offer as a distressed exchange tantamount to an immediate default on conclusion because the offer price is materially lower than the par value of the outstanding notes."

Goldilocks, an Abu Dhabi-based investor which holds 8.1 per cent of Noble, urged the regulators to launch an investigation into the company.

Minority investor advocacy group Securities Investors Association Singapore (Sias) also stepped in, urging the firm to offer existing shareholders a deal similar to that offered to the management.

Noble's shares plunged to as low as 20 Singapore cents, but ended the day at 23 cents, still down 11.5 per cent.

However, its bonds maturing in 2020 rallied, rising 14.5 per cent to trade at 56.7 cents on the dollar - its highest level in eight months.

Noble said on Monday evening that a group of senior creditors representing about 30 per cent of its bonds and revolving credit facility, had agreed to swap their debt for a combination of new debt instruments and equity in the restructured group (see graphic).

They will also provide the group with a three-year committed trade finance and hedging facility of up to US$700 million - on competitive market terms - for its commodity trading businesses.

The new company that will hold all of Noble's businesses and assets will ultimately be 70 per cent owned by these senior creditors, 20 per cent by the management and 10 per cent by existing shareholders.

The details of the restructuring plan appeared to be the final straw for many stakeholders, who are upset that they had been shut out of the negotiating process with little communication from Noble.

A complaint from Goldilocks landed on regulators' desks on Tuesday, even as other individual bondholders threatened to veto the plan.

In its letter seen by The Business Times, Goldilocks said that members of Noble's management seemed to have focused on their own interests in the new entity over that of the company's shareholders and creditors.

Goldilocks was not alone in holding such a sentiment. A minority shareholder told BT: "It is ridiculous that the management still gets to own so much when it is to blame for this sad state of affairs - consistently not taking ownership for wrong decisions which have surprised creditors and shareholders in the past, and instead blaming the situation on market forces."

Sias president and chief executive David Gerald noted that the main gripe by Noble's shareholders and noteholders is the steep cut in their shareholding, and the favourable terms for the management.

He said in a statement: "Creditors and shareholders would be scratching their heads as to why there is special treatment for the management. What is the basis for the special treatment of the management?

"There is a perception among shareholders and creditors that the management should take responsibility for the current predicament of the company."

He also asked why the restructuring cannot offer existing shareholders a deal similar to what is being given to the management.

Meanwhile, a group of individual bondholders for Noble's notes expiring on March 20 this year said it is planning to veto the restructuring plan.

Given that the 2018 bonds are due to mature in less than two months, it is "ridiculous" to treat all bonds the same, said a spokesman for the group.

Noting that the number of institutional investors in Noble's bonds has fallen substantially in the past few months, the group believes that Noble will be unable to control the results of bondholders' meetings.

She declined to reveal how much of Noble's 2018 bonds the group represents, and would only say its membership is growing. "We can easily veto Noble's restructuring".

Goldilocks, in its letter, also raised other questions, including why Noble's sales of its businesses and assets had been done at steep discounts to their book value.

The fund said that despite its having highlighted these concerns to the board, the company had neither given a satisfactory explanation of the sale processes nor said whether safeguards were in place to ensure that the assets were disposed of at fair value. These raised questions of whether the board has been negligent in the sale process, or deliberately undervalued the transactions, said Goldilocks.

The fund, which entered into Noble only last year, also flagged the pattern in the timing of the company's announcements on potential investors, and the corresponding share price spikes, some of which preceded capital-raising exercises.

In addition, Noble's announcements of its asset disposals have carried sale price figures that were usually adjusted or reduced downwards upon completion, it noted.

Based on these, Goldilocks "believes that there are grounds for an investigation into Noble and its directors and management" to ensure that no impropriety has occurred and minority shareholders have not been disadvantaged, it said in the letter.

It also reiterated its request for a representative to be appointed to Noble's board.

The fund declined comment for this article.

An SGX spokesman said Noble's proposal is subject to the exchange's approval, and that it will consider in its review the compliance of the scheme with listing rules, and whether it is prejudicial to shareholders' interest.

"In particular, SGX will ensure that the appropriate level of shareholder approval is sought to approve the scheme."

The exchange added that it will also require the company to respond publicly to the allegations in Goldilocks' letter. "If the allegations are substantiated, we will take the appropriate regulatory action."

Noble is planning to file schemes of arrangement in Hong Kong, Bermuda and the UK; an external spokesman for the firm said it is not required to file one in Singapore.

It will also hold an extraordinary general meeting for shareholders to vote on the plan, with at least 50 per cent approval required for it to pass.

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

More support for firms to innovate and go international Companies

Straits Times
20 Feb 2018
Lester Hio

Firms will get more government support to help them devise innovative solutions to business challenges.

The support will come in the form of tax relief for firms that buy solutions and for those that develop their own innovations or team up with partners.

To compensate for the expiry of the Productivity and Innovation Credit scheme this year, existing grant schemes that cover off-the-shelf products will be integrated into a Productivity Solutions Grant, which will provide funding for up to 70 per cent of qualifying costs.

Firms will also enjoy greater tax breaks. Tax deductions on licensing payments for commercial use of intellectual property (IP) will be raised from 100 per cent to 200 per cent, capped at $100,000, from next year to 2025.

Registering new IPs will also be cheaper: Tax deduction for IP registration fees will rise from 100 per cent to 200 per cent, capped at $100,000, also from 2019 to 2025.

Businesses building their own innovations and solutions will get tax deductions for research and development done in Singapore increased from 150 per cent to 250 per cent, over the same time period.

"We must make innovation pervasive throughout our economy," said Finance Minister Heng Swee Keat.

The Government will help businesses find partners to collaborate and co-create new ideas with. It is piloting an Open Innovation Platform that will allow companies to crowdsource solutions online by posting challenges that can be addressed through digital solutions. The service will be ready in the second quarter of this year.

More efforts will be thrown into commercialising work generated by public sector research. The Government, along with Temasek Holdings, will put $100 million into a joint venture to grow companies that are developing IPs from publicly-funded research.

New transformation programmes for both the aviation and maritime sectors were announced.

"Our airport and seaport will become platforms for companies to develop, test and use new technologies," said Mr Heng.

The Government will provide support of up to $500 million for both programmes, with additional matching investment from industry partners.

Plans to build the capabilities of local firms and workers to be more productive, international and digitally equipped are in the works.

The TechSkills Accelerator (TeSa) programme, which trains infocomm technology professionals, will be expanded to new areas like manufacturing and professional services that are increasingly making use of digital services.

An additional $145 million will be set aside for TeSa over the next three years. It will be expanded to let people learn emerging digital skills, such as data analytics, artificial intelligence and cyber security.

Following the upcoming merger of Spring and IE Singapore in April, a new integrated Enterprise Development Grant will be formed.

This will combine the existing Global Partnership and Capability Development grants. It will provide companies with up to 70 per cent co-funding to build capabilities in scaling up and going international.

The double-tax deduction for internationalism will rise next year from $100,000 to $150,000 to help companies expand internationally.

There will be some adjustments to tax schemes for start-ups as well.

Starting from 2020, exemptions under the start-up tax exemption and partial tax exemption schemes will be restricted to the first $200,000 of chargeable income.

Start-ups will have only 75 per cent tax exemption, rather than the current 100 per cent, of their first $100,000 of chargeable income from corporate tax.

"Even with these adjustments, corporate tax will remain low for start-ups and smaller firms," said Mr Heng.


OPPORTUNITIES WELCOME

If the Infrastructure Office can open roads and bring about opportunities for our member firms, that's something we definitely welcome.

SINGAPORE CONTRACTORS ASSOCIATION PRESIDENT KENNETH LOO


AT A GLANCE

• Pay rises for eligible employees will continue to be subsidised under the Wage Credit Scheme, which will be extended for another three years.
• The corporate tax rebate for companies will be doubled this year to 40 per cent of tax payable, capped at $15,000, up from $10,000.
• The corporate tax rebate will also be extended to the 2019 year of assessment, though at a lower rate of 20 per cent and capped at $10,000.
• The Asean Leadership Programme, to help business leaders build networks and expand their companies into South-east Asia, will be set up this year.
• An Infrastructure Office will be set up to bring local and overseas companies together to develop, finance and carry out infrastructure projects in the region.

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

Changes to Act troubling and premature, says WP

Straits Times
07 Feb 2018
Ng Jun Sen

The Workers' Party (WP) yesterday opposed changes to a law that allows the Minister for Home Affairs to detain and supervise criminal suspects without trial, calling the move troubling and premature.

Aljunied GRC MPs Sylvia Lim and Pritam Singh and Non-Constituency MP Dennis Tan - all lawyers - voiced the party's dissent during a four-hour-long debate over the Bill to amend the Criminal Law (Temporary Provisions) Act (CLTPA).

They contended that the amendments would curtail judicial oversight, increase the minister's powers and expand the reach of the Act beyond its original intention of protecting Singapore's safety - contrary to Law and Home Affairs Minister K. Shanmugam's assertion that the changes would define and limit the minister's powers.

Ms Lim said: "During past renewals of this Act, the WP has accepted the uncomfortable compromise that this law entails on the constitutional right to freedom. We did not delight in taking this position, but did so with a heavy heart. This time, however, our view is that the Government has gone too far."

The party's five MPs and three NCMPs voted against the Bill. Mr Chen Show Mao (Aljunied GRC) was not present during the vote.

WP MPs took issue with a new clause stating that the minister's decision to detain or supervise a person - in the interest of public safety, peace and good order - is final. Mr Singh said this "finality clause" limits judicial review as it stops judges from probing into the facts of the case.

He added: "The evolution of the law on judicial review has required judges to make more, not less, inquiries on the facts and circumstances of a matter at hand... It would appear intuitively logical for judges to have maximum access to the minister's or executive's thought processes, even if they cannot replace it with their own."

Mr Tan said the clause removes the right of detainees to ask if the "minister was right" in deciding to associate them with the offences under the Act, and to detain or subject them to police supervision.

Ms Lim pointed out that no minister has sought a finality clause for the Act since its inception 60 years ago. "We find this very troubling," she said of the change in approach. During the debate, Mr Shanmugam reiterated multiple times that the clause does not "oust" judicial review.

Ms Lim also objected to the addition of a Fourth Schedule, which prescribed a list of offences under the Act's ambit to include those covered by the Organised Crime Act (OCA). She disagreed with Mr Shanmugam that the schedule limited the minister's powers, arguing that it achieves the opposite effect instead. The OCA covers offences such as fraud and illegal gambling, which should not require detention without trial, she noted.

As the OCA also includes offences committed overseas, she said the CLTPA would thus cover transnational crimes as well - which goes against the Act's intention to target offences that threaten public safety, peace and order within Singapore.

Ms Lim said: "In effect, the Bill makes the minister a global policeman, with no equal in the world. This is a position too arrogant for this House to support."

She also said it is "premature" to renew the CLTPA now, given that the previous two renewals in 2009 and 2014 were debated between one and eight months before their expiry dates. In the current five-year cycle, the Act expires in 20 months' time, in October 2019. "WP would have been prepared to support the renewal if not for these changes (to the Act)," Ms Lim said.

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

Top Indian lawyer allowed to argue case in High Court

Straits Times
30 Jan 2018
K.C. Vijayan

He is described as arguably India's most expensive lawyer, but he once charged a token one rupee (two Singapore cents) for defending an Indian national on death row in Pakistan.

India's Senior Advocate Harish Salve is also the first non-Queen's Counsel (QC) foreign lawyer - and the first from the Indian Bar - to be allowed to argue a case in the Singapore High Court.

Under the law, a foreign counsel can be admitted to argue cases in court here on an ad hoc basis if he is a QC or holds a rank of equal distinction from any other country, and has special qualifications or experience for the purpose of the case.

The Court of Appeal, in judgment grounds released last week, explained Mr Salve's ad hoc admission, saying it "was satisfied that the need for the assistance of qualified Indian counsel had been amply demonstrated" in the circumstances of a case that had involved arbitration proceedings in Singapore.

The case involved some 20 shareholders, including five young people, of Indian multinational pharmaceutical company Ranbaxy Laboratories.

They had sold a controlling stake to Daiichi Sankyo Company, but in 2012, the Japanese pharmaceutical firm started arbitration proceedings here against the Indian firm, claiming it had been misled during negotiations for the sale agreement.

By a two-to-one majority, the arbitration panel in 2016 found in favour of Daiichi and awarded the company more than $500 million. The sellers of Ranbaxy - who were in two groups - then applied to the High Court to set aside the award on several grounds when Daiichi sought to enforce the order here.

The Indian firm also sought to have Mr Salve admitted so that "he might address difficult and novel Indian law issues inherent in the Singapore proceedings".

The High Court turned down the application last year and Mr Salve - represented by law firms Rajah & Tann and WongPartnership for the two groups of sellers from Ranbaxy - then appealed to the apex court.

They succeeded in the Court of Appeal last year before Chief Justice Sundaresh Menon and Judges of Appeal Judith Prakash and Tay Yong Kwang.

Daiichi was defended by a team of lawyers led by Mr Suresh Divyanathan, while Mr Jeyendran Jeyapal served as lead counsel for the Attorney-General. Mr Christopher Daniel was lead counsel for the Law Society.

In written grounds last week explaining its decision, the Court of Appeal said it found it relevant for Mr Salve to represent the parties in their challenge.

Noting that one group of sellers in the case were minors, it said their issue involved Indian public policy and accepted that Mr Salve, having been Solicitor-General of India for three years, would have considerable experience in Indian public policy and broad experience in Indian law.

It added that the Singapore case arose out of an international arbitration matter where the governing law was foreign law but the seat was Singapore.

Stressing that not every such case governed by foreign law will see foreign counsel admitted, the top court clarified that "it is all a question of what the court needs to assist it in achieving a correct and just result in the case before it".

"Given our findings on the complexity of the Indian law issues, the court hearing the Singapore proceedings would definitely be more assisted by Indian counsel than by local counsel," wrote Judge Prakash on the court's behalf.

Meanwhile, Daiichi has successfully applied to the High Court for an Indian lawyer of similar stature - Mr Gopal Subramanium - for its team, following Mr Salve's admission. The High Court hearing will see the two opposing heavyweights in action alongside local counsel in April.


PERTINENT

Given our findings on the complexity of the Indian law issues, the court hearing the Singapore proceedings would definitely be more assisted by Indian counsel than by local counsel.

JUDGE OF APPEAL JUDITH PRAKASH

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

Businesses to get S$1.8b boost over next 3 years

Business Times
20 Feb 2018
Vivien Shiao

Wage Credit Scheme, where govt co-funds wage increases of Singapore workers, extended for 3 more years to help firms cope with near-term costs

The Wage Credit Scheme (WCS) will be extended for an additional three years till 2020, but with gradually reduced levels of co-funding by the government, said Finance Minister Heng Swee Keat at his Singapore Budget 2018 speech.

It will provide 20 per cent co-funding for 2018, 15 per cent for 2019, and 10 per cent for 2020.

The scheme, which aims to encourage employers to share productivity gains with staff, will cost the government about S$1.8 billion over the next three years.

Under the current scheme, the government co-funds 20 per cent of qualifying wage increases for Singaporean workers earning a gross monthly wage of up to S$4,000.

In his speech, Mr Heng said: "Though our economy picked up last year, some firms remain concerned about business costs. A key driver of this is wage growth - but wage growth is good for Singaporeans."

The extension of the WCS scheme is to help firms cope with near-term cost pressures, he added.

The scheme was introduced in 2013, where the government co-funded 40 per cent of wage increases for Singaporean employees. This was extended in 2015, following which government co-funding dropped to 20 per cent for 2016-2017.

For 2017, the government is expected to pay out more than S$800 million to more than 90,000 firms, for wage increases given to more than 600,000 employees, said Mr Heng.

Charles Liaw, managing director of local SME Times Software, said that the extension is a "good call" by the government.

"It will definitely mean big savings for many companies, and it will encourage companies to hire Singaporeans," he said, adding that it could lead to a reduction in the unemployment rate of locals.

However, he was unperturbed by the tapering of the government's co-funding as he believes that no government funding can last forever.

"Its objective was to help companies to get over the tough times in the last few years and gradually reduce company dependency of government subsidies," he said.

Apart from wage credit, the government will be enhancing and extending the corporate income tax rebate to help firms manage immediate cost challenges.

The corporate income tax (CIT) rebate for the Year of Assessment 2018 will be raised to 40 per cent of tax payable, capped at S$15,000.

Currently, companies can qualify for CIT rebate of 20 per cent of tax payable, capped at S$10,000 for YA 2018.

Mr Heng also announced that the CIT rebate will also be extended to YA 2019, at a rate of 20 per cent of tax payable, capped at S$10,000.

These changes are projected to cost an additional S$475 million over the next two years.

"The enhancement and extension will benefit all tax-paying companies, especially smaller ones," he said.

Anis Mohamed, creative director of PictureMatters, said that the extension is welcome news to businesses which are struggling to manage costs.

"This also helps small businesses especially, who are still reeling from the economic slump of the years pre-2017, before there was a boost in economic growth," he said.

Times Software's Mr Liaw concurred that the rebate "definitely will be helpful" for SMEs and corporations which turn smaller profits.

But while the enhanced tax rebate is an encouraging step for businesses to manage their costs, some industry watchers say that it is still not enough.

Alan Lau, Tax Partner at KPMG in Singapore, said: "The low rebate cap of S$15,000 is disappointing and implies that practical business savings here would be limited."

In his Budget speech, Mr Heng also addressed near-term measures specific to certain sectors.

For firms in the marine shipyard and process sectors struggling to recover from the oil and gas crisis, some relief is in sight as the government will defer earlier announced increases in foreign worker levy rates for another year.

Employment support for lower to middle income workers is also set to be boosted this year, said Mr Heng.

"This includes upgrading the current Work Trial scheme into a Career Trial programme, with higher funding support for workers to try out new careers," he told Parliament.

He added that this will be elaborated on by the Minister for Manpower at the Committee of Supply debates, slated to take place in March.


HIGHLIGHTS

• The Wage Credit Scheme (WCS) will be extended for an additional three more years till 2020
• The corporate income tax (CIT) rebate for the Year of Assessment 2018 will be raised to 40 per cent of tax payable, capped at S$15,000
• The CIT rebate will also be extended to YA 2019, at a rate of 20 per cent of tax payable, capped at S$10,000

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

MPs question premature extension and whether Singapore could rely less on detention without trial

Straits Times
07 Feb 2018
Tan Tam Mei

Premature extension

Mr Murali Pillai (Bukit Batok) and Ms Sylvia Lim (Aljunied GRC) raised concerns that Parliament was being asked to extend the Act prematurely when it was only due to expire on Oct 20 next year.

Mr Murali said the sunset clause was a safeguard to ensure periodic scrutiny by Parliament before approving an extension that lapses every five years.

"Seeking an extension too early before expiry of the Act thus reduces the effect of the safeguard, as Parliament would not have benefit of being apprised of the most current security situation in Singapore close to the expiry of the Act, to decide whether to extend it," he said.

What Mr Shanmugam said: The Government decided to include the extension along with the proposed amendments.

Listing offences may reduce pressure for full justification

Mr Louis Ng (Nee Soon GRC) asked whether the listing of offences in the Act would reduce the pressure for explanations and justifications for criminal detention.

"The minister may simply be tempted to point at the list of offences as the basis for the decision," he said.

Mr Murali also asked if spe-cifying the list of the type of criminal activities under the Act would "unduly tie down the minister's hands" and make the authorities "less nimble in tackling the evolving types of cri-minal activities".

What Mr Shanmugam said: The minister would now have to fulfil two criteria: Existing criteria for detention, and that the offence is listed on the schedule.

Relying less on detention without trial

NMP Kok Heng Leun and Mr Ng both asked if there was room to re-evaluate the necessity of the Act.

Mr Kok said there have been proposed amendments to the Evidence Act and the Criminal Procedure Code to enhance protection of witnesses. The recent Cybersecurity Bill also contained provision to protect informants, he said.

Mr Kok said: "(We should) consider tweaking witness protection methods to better protect witnesses to offences for which the Act is applicable, rather than continue relying on detaining individuals without trial as part of the overall security strategy."

Mr Ng also asked if there was a need for the Act to list offences that were already dealt with under their respective legislation. Instead he asked whether it was possible that other legislation be amended instead to address the difficulty in securing witness testimony in open court and lessen the need to rely on the powers of the Act.

What Mr Shanmugam said: Suggestions to amend other legislation to secure witness testimony had been considered but were found to be "not workable".

Tan Tam Mei

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

Lemon law no protection if warranty isn't in contract: Forum

Straits Times
30 Jan 2018

It has been reported that under the Consumer Protection (Fair Trading) Act, commonly called the "lemon law", second-hand car dealers are required to provide a six-month warranty to cover the cars they sell (Dealers posing as owners to sell their cars; Jan 22).

I found out the hard way that there is more to this than consumers' common understanding of the lemon law.

My godbrother and I bought a second-hand Ford Focus from a dealer in July last year, only to have it critically fail within the first week of collection due to a faulty fuel pump and collet (gear selector).

When we approached the dealer about the lemon law warranty, he said there was no such warranty, denied responsibility and refused to give any form of compensation for repairs.

We then approached the Consumers Association of Singapore (Case), which advised us to bring the matter to the Small Claims Tribunal.

We did so, but lost the case, as the judge said that any form of warranty had to be written down in black and white in the sales contract, which did not happen in our case.

It seems that regardless of the lemon law or any other consumer law, it all boils down to what is stated in the contract.

I find this rather strange, even if the dealer argues that the product was sold "as is".

The frequently asked questions on Case's website states clearly: "The retailer cannot contract out his obligations under the law. Even under existing laws, retailers cannot deny the consumer his rights to remedies under the proposed law, for example by simply displaying a notice saying 'we do not give refunds under any circumstances' or that 'an item has been sold as it is.'"

I hope other consumers will be aware of this and not become victims of technicalities like we were. Perhaps Case could help clear the air.

Samuel Tan Kian Huat

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

New Infrastructure Office for projects in Asia

Business Times
20 Feb 2018
Janice Heng

It reflects the Singapore government's consistent message to its people and businesses to embrace technology and continuously upskill to remain relevant

To help firms tap infrastructure opportunities in Asia, such as those created by China's Belt and Road Initiative, Singapore will set up an Infrastructure Office this year.

It will bring together local and international firms across the value chain - from developers and institutional investors to legal, accounting and financial services providers - to develop, finance and execute projects.

"As Asia's growth will raise infrastructure demand, we seek to forge stronger partnerships in infrastructure development and enhance connectivity in the region," said Finance Minister Heng Swee Keat.

This is one of several moves in Budget 2018 to encourage firms to forge partnerships at home and abroad, with Mr Heng stressing the importance of cooperation for Singapore's economic development.

The Infrastructure Office - to be set up by Enterprise Singapore (ESG) and the Monetary Authority of Singapore - will provide a platform for information exchange and facilitate infrastructure investments and financing. More details are to come in the Ministry of Trade and Industry (MTI) and Ministry of Law's Committee of Supply.

"This is a welcome opportunity," said Nina Yang, chief executive officer of sustainable urban development at urban solutions provider Ascendas-Singbridge. Mrs Yang added that her business unit will look further into the Office's support initiatives.

Satya Ramamurthy, partner and head of infrastructure, government and healthcare at KPMG in Singapore, said the Office represents "an ecosystem approach" in enabling Singapore to be a meaningful player in Asian infrastructure projects.

In another move to encourage collaboration, existing grants to support partnerships will be merged into a single Pact (Partnerships for Capability Transformation) scheme.

The grants to be combined are: the Economic Development Board (EDB) and Spring Singapore's separate Pact schemes; Spring's Collaborative Industry Projects scheme; and IE Singapore's Global Company Partnership Grant. Spring and IES are currently being merged to form Enterprise Singapore.

Similar to the existing grants, the new Pact will fund up to 70 per cent of qualifying costs for projects undertaken in partnership with other firms.

It will be administered by EDB and ESG, and will support collaborations between firms in areas such as capability upgrading, business development and internationalisation.

More details will be provided at MTI's Committee of Supply.

Singapore also seeks to build overseas partnerships in technology, innovation and enterprise. As Asean chairman this year, Singapore will develop an Asean Innovation Network.

"We hope this will strengthen the linkages among the innovation ecosystems in the region, and spark new collaborations and solutions," said Mr Heng. More of Singapore's Asean plans will be revealed in MTI's Committee of Supply, he added.

The minister also reiterated the importance of trade associations and chambers in encouraging collaboration and leading transformation.

The government will continue to support such efforts through the Local Enterprise and Association Development programme, he said. In the last two years, about S$45 million has been committed to some 50 projects under the scheme.


HIGHLIGHTS

• New Infrastructure Office to help firms tap opportunities in Asia
• Partnership grants to be combined under single Pact scheme
• New Asean Innovation Network

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

Man says 'sorry' for posting doctored news on Facebook

Straits Times
07 Feb 2018
Seow Bei Yi

He uploaded City Harvest article with false headline; apology follows AGC letter to him

A man who uploaded a doctored newspaper report on Facebook, suggesting a lawyer - who is an MP from the People's Action Party (PAP) - saved the six people accused in the City Harvest Church case from harsher sentences, has apologised on social media.

Mr Neo Aik Chau, 38, a delivery driver, posted the apology on his personal Facebook page yesterday, saying he was wrong to have made the post. He also apologised in at least two other Facebook groups, but not on the public page where he had uploaded the report with a doctored headline.

Mr Neo's social media apologies came a day after the Attorney-General's Chambers (AGC) wrote to him about the false report.

Writing in Chinese on his personal Facebook page, Mr Neo said he "truly made a mistake".

"I spoke frankly without thinking," he wrote. "I swear not to post anything like this again! Please forgive me!" In a separate post in a Facebook group, he said he was not scandalising the court.

On Monday, Home Affairs and Law Minister K. Shanmugam said the AGC considers the Facebook post of the doctored article a case of contempt by scandalising the courts. Later the same day, the AGC said that contempt of court in its various forms harms the proper administration of justice in Singapore, and that it would take firm action against such instances.

Originally posted on a public Facebook group whose name in Chinese translates to "Policy discussion forum", Mr Neo's post was of Chinese-language daily Lianhe Wanbao's Page 1 report but with a false headline.

The original headline said an outdated law saved church founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them, referring to Mr Edwin Tong, an MP for Marine Parade GRC who was Kong's lawyer in the criminal trial.

Shin Min Daily News, a Chinese newspaper, reported yesterday that Mr Neo said he was intrigued by coffee-shop chatter over the City Harvest verdict. "I was feeling inspired. Using a mobile application, I wrote a new headline," he told the newspaper. "I'd only meant to put it on the Facebook group as a talking point, and did not have malicious intent. I didn't think it would be reposted."

Lianhe Wanbao editor Goh Sin Teck said on Monday that the paper handles news in a serious and responsible manner. "However, our news headline was spoofed by others," he added. "This is definitely not creativity and is a type of behaviour with malicious intent, attempting to mislead the public. It should be condemned."

The false Wanbao headline (left), saying a PAP lawyer "saved" the six accused, and the actual headline (right). PHOTO: SCREENGRAB FROM FACEBOOK/LIANHE WANBAO

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

Shell fuel theft case: Nine granted bail

Straits Times
30 Jan 2018
Elena Chong

Nine of the men who have been charged in connection with the multimillion-dollar fuel theft from a Shell manufacturing site were offered bail yesterday as investigations continue.

Vietnamese national Nguyen Duc Quang, 46, who faces five charges of dishonestly receiving stolen oil, was offered bail of $700,000.

The quantum of oil misappropriated adds up to about $4 million and is likely to be higher than the charges already tendered, said Deputy Public Prosecutor Stephanie Chew.

In the case of the other eight, DPP Chew had sought bail of $600,000 or $1 million, but District Judge Christopher Goh halved the amounts.

Five of them - Juandi Pungot, 41, Cai Zhi Zhong, 35, Tiah Kok Hwee, 41, Koh Choon Wei, 35, and Muzaffar Ali Khan Muhamad Akram, 37 - were granted bail of $500,000 each. They each face seven counts of abetment by conspiracy to misappropriate gas oil on seven occasions between last July and this month.

For the remaining trio - Mohd Ibrahim K. Abdul Majid, 52, who is unrepresented, Abdul Latif Ibrahim, 59, and Richard Goh Chee Keong, 48 - Judge Goh set their bail at $300,000 each.

The three men each face five charges of abetment by conspiracy to commit criminal breach of trust of gas oil between Nov 11 last year and Jan 5 this year.

Their next appearance will be on Feb 20, when the cases of Vietnamese nationals Doan Xuan Than, 46, Dang Van Hanh, 37, and Singaporeans Alan Tan Cheng Chuan, 45, and Muhammad Ali Muhammad Nor, 51, will be mentioned. These four have been offered bail of between $20,000 and $30,000 each.

Meanwhile, Sentek Marine and Trading's then marketing and operations manager Ng Hock Teck, 54, who has been charged with engaging in a conspiracy with his colleague, Alan Tan, to dishonestly receive stolen marine gas oil on three occasions in July and November last year, will return to court today.


In the case of the other eight, Deputy Public Prosecutor Stephanie Chew had sought bail of $600,000 or $1 million, but District Judge Christopher Goh halved the amounts.

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

Reit ETFs to enjoy tax transparency

Business Times
20 Feb 2018
Lynette Khoo

Other shots in the arm for funds sector include upcoming S-VACC framework, extension of tax incentive schemes

Tax transparency treatment for Singapore-listed real estate investment trusts (S-Reits) will soon be extended to exchange traded funds (ETFs) invested in these Reits - a long-awaited move cheered by market watchers.

Taking effect on or after July 1, the tax concessions for Reit ETFs will ensure parity in tax treatments between investing in individual S-Reits and Reit ETFs.

Industry players noted that the much-lobbied move is positive for the growth of the Reits sector and will strengthen Singapore's status as a Reits listing hub.

PwC real estate and hospitality tax leader Teo Wee Hwee reckoned that this will encourage the growth of more Singapore listings of Reit ETFs.

Vijay Natarajan, property and Reits analyst at RHB Research Institute Singapore, also said he expects more Reit ETF-based products to hit the market in the near term. "The move will also help broaden the investor base for S-Reits as more international institutional investors will be able to invest in S-Reits via the ETFs in a tax-efficient manner," he added.

Tax leakage in the Reit ETF structure has been the chief gripe among investors and issuers of Reit ETFs, with the relevant authorities said to be in discussions to address this since 2016.

Without tax transparency treatment, distributions from S-Reits to ETFs are subject to a withholding tax of 17 per cent even though they are distributed tax-free to the ETF investors.

The tax leakage in Reit ETFs leaves individual investors and foreign corporate investors worse-off investing in Reit ETFs than investing directly in Reits, since individuals are tax-exempted on distributions from Reits while foreign corporate investors pay a lower 10 per cent tax on Reits' distributions.

So far, three Reit ETFs have been listed here have a combined S$250 million in assets under management and yield above 4 per cent per annum after management fees. S-Reits, however, are yielding 6 per cent on average.

Jeffrey Lee, managing director and chief investment officer at Phillip Capital Management, posited that the extension of tax transparency to Reit ETFs could significantly enhance the ETFs' yields.

Besides extending tax transparency treatment to Reit ETFs, the government is also introducing a 10 per cent concessionary tax rate on Reit ETFs' distributions received by qualifying foreign corporate individuals. This brings the tax rate they pay on the distributions they receive from Reit ETFs on par with the tax rate they pay on Reits' distributions.

Further details will be released by the Monetary Authority of Singapore and the Inland Revenue Authority of Singapore by March.

The government is working on a tax framework for Singapore Variable Capital Companies (S-VACCs), aimed at encouraging asset managers to consolidate their operations in Singapore by domiciling more of their funds here. More details on S-VACCs will be released by October. The structure was first proposed last year as a new structure for collective investment schemes when the government sought industry feedback during a public consultation exercise.

An S-VACC will be treated as a company and a single entity for tax purposes. It can accommodate a variety of traditional and alternative asset classes and investment strategies.

The existing tax exemptions on qualifying funds, the 10 per cent concessionary tax rate for fund managers under the Financial Sector Incentive (FSI) scheme, and the existing GST remission for funds will also be extended to S-VACCs.

KPMG Singapore tax partner Leonard Ong noted that these extensions will be a welcome cheer to the funds and fund management industry. "This will enable the industries to be more comprehensive in the funds space, and more competitive in attracting foreign funds to be managed here in Singapore," he said. "However, as the S-VACC is new, we look forward to further details on the tax framework that MAS will be releasing in October."

Mr Teo said he is hoping the government will consider S-VACC as a viable structure for listed Reits too, as he believes this could result in greater tax efficiency for Reits with overseas investment properties.

To cater for more diverse fund structures, the government said that tax exemption under the Enhanced-Tier Fund scheme for companies, trusts and limited partnerships will also be extended to fund vehicles of all forms, if they meet all qualifying conditions. Further details of the change will be out by May.

Other "carrots" for the fund management sector announced in the Budget include the extension of tax incentive schemes for fund managers under the FSI and for approved special purpose vehicle (ASPV) engaged in asset securitisations.

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

Law will be amended to plug gap in criminal breach of trust penalties: Shanmugam

Business Times
06 Feb 2018

The Government will amend the law soon to ensure that legislation provides for higher penalties for directors and other senior officers who commit criminal breach of trust (CBT), said Minister for Home Affairs K Shanmugam, in the wake of a court ruling which resulted in lower sentences in the high-profile City Harvest Church case.

"We hope to make the amendment together with the other wide-ranging amendments to the Penal Code," he told Parliament on Monday.

Last Thursday, the Court of Appeal upheld a ruling made by the High Court in April last year that Section 409 of the Penal Code, which provides for heavier punishments for certain classes of people who commit CBT, cannot be applied to City Harvest founder Kong Hee and five others who misused millions of church funds.

On Monday, Mr Shanmugam told the House that the apex court's ruling was contrary to the legal position that has been applied by the courts in Singapore for the past 40 years, following a 1976 High Court decision that company directors are liable for aggravated liability under Section 409.

There are at least 16 reported court decisions, and many other unreported decisions, reflecting this principle, said Mr Shanmugam.

The apex court's decision means that there is now a lacuna, or a gap, in the law, he added.

As the law now stands, company directors or key officers of charities can no longer be charged under Section 409, which carries the maximum of life imprisonment.

They can only be charged under Section 406, which is punishable by up to seven years' jail.

However, ordinary employees are covered under Section 408, which provides for up to 15 years' jail.

Mr Shanmugam highlighted that the Court of Appeal acknowledged this gap in the law in its judgment, saying that there was no "good policy reason" to ignore the "heightened culpability" of directors and key officers of charities and societies.

Describing it as "common sense", Mr Shanmugam said the Government's policy is clear: A senior officer or director in the organisation who is in a position of greater trust should be more culpable if that trust is abused.

Although the Government believes that the sentences are too low, Mr Shanmugam said the court's decision should be respected and that judges should not be personally attacked.

Mr Shanmugam stressed he was aware that many have expressed their dissatisfaction with the outcome. Netizens have said that the judges let off the rich, or that some judges were lenient because they were Christians.

He said comments should not "sink to the level of abuse, insult and contempt".

"That is not right. Judges should not be personally attacked... just because people do not agree with their decisions," he said.

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

Rajah and Tann set 'to shift to Marina One by 2020'

Business Times
30 Jan 2018
Neo Shi Wei

Major law firm Rajah and Tann, the anchor tenant of Straits Trading Building, will move to the newly completed Marina One come 2020, BT has learnt.

This move comes against a backdrop of increasing relocations, where more companies are moving to newer developments in the Central Business District (CBD) area.

One industry source told The Business Times that Rajah and Tann will occupy 80,000 to 90,000 square feet at Marina One, marginally smaller than the current area the homegrown law firm is taking up in its existing location in Raffles Place.

It is also believed that the firm will take two to three floors at Marina One, down from the 11 floors at the Straits Trading Building now.

The Business Times understands that the reduction is likely not due to a cut in operations or staff size.

A typical floor plate at Marina One ranges from 34,000 to 40,000 sq ft. A similar floor plate at Straits Trading Building is about 8,000 sq ft.

Jennifer Chia, partner and head of corporate real estate, TSMP, said: "In the case of law firms moving offices which are currently spread over smaller floor plates to buildings with larger floor plates, this could be to yield a more efficient office layout."

She added that law firms in general could be moving towards a hot-desking model, allowing them to take up less space.

Several financial institutions, multi-national corporations and consultancies are also moving or have moved to Marina One.

Confirmed tenants include Swiss private bank Julius Baer, consultancy PwC Singapore, co-working space provider JustCo, financial services provider Prudential, ride-hailing platform Grab, agri-business Olam International, oil major BP Global and financial institutions Daiwa Capital and Mitsubishi UFJ Financial Group.

When contacted, Rajah and Tann declined to comment, but an advertisement published earlier this month in BT revealed that Rajah and Tann Asia is one of the tenants at the M+S development.

M+S - a joint venture between Malaysia's Khazanah Nasional and Singapore's Temasek Holdings - declined to comment on the move.

Rajah and Tann has been a tenant at the redeveloped Straits Trading Building since its completion in 2009.

The building has changed hands a few times, most recently in 2016 when Indonesian tycoon and philanthropist Dr Tahir purchased the building for S$560 million from Sun Venture Group.

According to media reports at that time, it set the record for the highest per square foot price (S$3,520 psf) for an entire office building in Singapore.

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

A fiscally sound but politically risky Budget

Straits Times
20 Feb 2018
Chua Mui Hoong

This could have been a pure sugar Budget with its huge surplus and SG Bonus for all adult Singaporeans. Instead, Finance Minister Heng Swee Keat coated the sugar with a strong lacing of lemon.

The goods and services tax (GST) will be raised from 7 per cent to 9 per cent "sometime in the future from 2021 to 2025". Some analysts had forecast a hike to 10 per cent over two years, so the impending hike is gentler and slower than expected. But it still carries quite a sting.

The delay in introducing the GST hike might be due to the unexpected injection of $4.9 billion from the Monetary Authority of Singapore's (MAS) net profit, propelling the Budget into a healthy surplus of $9.6 billion when $1.91 billion was forecast.

The headline figures will cause many Singaporeans to ask: Why raise GST when Singapore's Budget nearly always ends with a surplus?

The short answer is that long-term spending will go up, and more tax revenue sources need to be found.

The extra funds from MAS or the higher-than-expected revenue from stamp duties this year cannot be relied on always. A more permanent way to raise taxes has to be found - and the GST, currently at a relatively low 7 per cent, is a natural target.

Meanwhile, Singapore's people and infrastructure are both ageing, and spending needs are rising. Healthcare spending will overtake education in the next decade. It has already more than doubled since FY2011, to $10.2 billion in FY2018.

Singapore aims to spend an extra $3.6 billion a year to raise healthcare spending from 2.2 per cent to 3 per cent of gross domestic product over the next decade. Where will that extra $3.6 billion or 0.8 percentage points of GDP come from? In part from the GST hike, expected to raise revenue by 0.7 per cent of GDP.

In fact, budgeting 3 per cent of GDP on healthcare is low by global standards. I think it is conservative, if Singaporeans want to pay less out of pocket and demand that a bigger share come from the state. Spending may go beyond 3 per cent of GDP - and that money has to be allocated for.

Already, Singapore is spending more than it collects in operating tax revenue each year. The books are balanced by adding half of investment income from past reserves, which raised about $14 billion in recent years. That is more than the contribution from either corporate or personal income taxes or the GST.

Raising the GST to 9 per cent will add about $3 billion to the coffers each year.

Every little bit will help.

The 2018 Budget is fiscally sound, putting the nation on a stronger footing for the future. But it is also politically risky.

Mr Heng, who delivered the Budget with aplomb, is tipped as first among equals in the next 4G, or fourth generation, of political leaders. He has ensured some political wiggle room by having a window for the GST hike.

Still, it takes a confident political leader to announce a major tax hike that may come in three years' time - which will be just after the next election, expected around 2020. People will forget good news three years after an announcement, but the anticipation of pain tends to intensify as the dreaded start date approaches.

On the other hand, in committing to a hike to 9 per cent, the Government is also trying to make things more palatable. It is hard to predict the full political impact, but for now, it is a no-brainer that a GST hike will have a political cost.

That Mr Heng and his colleagues proceeded with the announcement anyway suggests they have confidence in their ability to explain why the move is necessary, as well as fiscal armour to cushion the impact via the usual vouchers and offsets.

Whether voters will buy the sugar-lemon pill remains to be seen. The GST hike will be a litmus test of the bond between the people and a future generation of leaders in the next few years.

The clear commitment to raise the GST suggests a continuation of two aspects of the Singapore political leadership. The first is that the future team of leaders will continue the fiscal prudence of the past, in case anyone doubted it.

The second is that the new team will not duck from unpopular decisions. Some may see the early announcement as indicative of the 4G leaders piggy-backing on the popularity of the current Prime Minister and his Cabinet, and relying on today's leaders to win the ground.

But as Mr Heng is the one to announce the hikes, it is clear that it is a decision he and the future team of leaders will have to carry, not the current Cabinet. By announcing the hikes now, they have guaranteed that the GST will be a dominant issue in the next election.

But the GST hikes and Budget 2018 should not be viewed only through the political lens. More important is the fiscal viewpoint.

As Mr Heng took pains to stress, this year's Budget aims to lay the foundation for the next decade. Raising the GST is part of that move.

The other important innovation also aims to put future Budgets on a firm, and more sustainable, footing. This is the move for statutory boards and government-owned companies to borrow for critical national infrastructure projects and for the Government to guarantee some of those loans.

Statutory boards like HDB have long borrowed or issued bonds for projects, so that alone is not novel. What is different is to guarantee the loans. This will require the concurrence of the elected president and his advisers, as it means committing the Government to use its reserves to guarantee loans that may stretch into decades.

This is a practical measure to smoothen cash flow. An infrastructure project like an airport terminal requires huge sums to be spent upfront, but can generate revenue later.

Rather than spend huge sums to build it and draw down on today's surpluses, the Government allows the agency to borrow from the market, and uses its reserves to guarantee the loan to get lower interest rates. Future revenue from the project, such as an airport terminal, can then be used for interest payments on the loan.

As Mr Heng notes, such a borrowing arrangement will "help distribute the share of funding more equitably across generations". You do not use up today's money to pay for something that will generate revenue in 20 years' time. You borrow today for that long-term project, and use future revenue to pay off the loan.

As Singapore ages, issues of equity and fairness - across income and social groups, and across generations - will become potential causes of conflict. This Budget tries to prepare for that more uncertain future by putting in place two major planks in the fiscal system: A GST hike, and a way to use reserves to facilitate borrowing for long-term infrastructure projects.


The headline figures will cause many Singaporeans to ask: Why raise GST when Singapore's Budget nearly always ends with a surplus? The short answer is that long-term spending will go up, and more tax revenue sources need to be found. The extra funds from MAS or the higher-than-expected revenue from stamp duties this year cannot be relied on always. A more permanent way to raise taxes has to be found - and the GST, currently at a relatively low 7 per cent, is a natural target.

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

Business costs, privacy concerns raised as Parliament passes landmark Cybersecurity Bill

TODAY
06 Feb 2018
Kenneth Cheng

A landmark Bill to fortify Singapore’s essential services against cyber attacks was passed into law on Monday (Feb 5), but not before Members of Parliament raised some concerns. These included compliance costs for businesses that could be passed on to consumers, and whether the measures would infringe on personal data.

Under the Cybersecurity Bill, owners of critical information infrastructure in 11 key sectors that provide essential services must report cyber-security incidents and provide information to the Commissioner of Cybersecurity. This is so that the authorities may assess the impact or potential effects of an incident, and prevent other incidents from happening, for instance.

Industries with critical information infrastructure are those dealing with energy, water, banking and finance, healthcare, transport (including land, maritime and aviation), infocomm, media, security and emergency services, and government.

The Commissioner — who is the chief executive of the Cyber Security Agency of Singapore (CSA) — is also given powers to investigate cyber-security incidents, categorised according to the seriousness of the threat and the responses needed.

Owing to the interconnectedness of computer systems, the CSA will also have the authority to investigate threats relating to systems in Singapore, including those that are not deemed critical information infrastructure.

COMPLIANCE COSTS

On Monday, 19 MPs rose to speak during the three-hour debate on the Bill.

A number among them touched on the costs that businesses — including small and medium-sized enterprises (SMEs) — may have to bear in enhancing cyber-security measures.

Talking about the “exorbitant” costs of audits, reporting and risk assessments, Nominated MP Mahdev Mohan asked if the Government had plans to minimise added compliance costs borne by firms.

Pointing to data revealed during a recent proposal to amend the United States Homeland Security Acquisition Regulation, he said that putting in place cyber-security rules includes having independent assessments that could cost a company more than US$150,000 (close to S$200,000), and up to US$350,000 in equipment costs to carry out continuous monitoring.

“If these processes are not properly managed in Singapore, considerable sums could be unproductively spent,” Assistant Professor Mohan said.

Mr Zaqy Mohamad (Chua Chu Kang GRC), said that consumers would be concerned if these costs trickle down to them.

In response, Communications and Information Minister Yaacob Ibrahim said that the Government bears much of the cost to burnish cyber-security and strengthen responses to threats at the national level, including regular cyber-security exercises and deploying national cyber-incident response teams to counter threats.

Many critical information infrastructure owners already have cyber-security measures in place as a result of regulations in sectors such as banking and finance, he noted, adding that the requirements under the Bill were “carefully scoped and are considered not too onerous”.

Acknowledging that the Bill would have cost implications for some owners of critical information infrastructure, Dr Yaacob said that the authorities would work with the sector regulators to streamline the cyber-security and incident-reporting processes, so as to minimise regulatory costs where possible.

He urged owners and their vendors to consider not only the costs of putting the measures in place, but also the cost of potential breaches, which could dent their reputations. “If organisations follow security-by-design practices, they will spend less overall in the long run to fix cyber-security issues,” he said.

MPs also raised concerns that requirements under the Bill and investigations into systems could encroach on the privacy of individuals, especially when they contain sensitive personal data, such as health records held by insurance firms.

Dr Yaacob assured the House that the measures and requirements under the Bill are mainly technical, operational or procedural in nature and are “non-intrusive with respect to personal privacy”. Any information required to deal with threats would also be “primarily technical and not personal”, he added.

ACCOUNTABILITY FOR OVERSEAS SYSTEMS

Aljunied GRC MP Pritam Singh from the Workers’ Party noted that some entities hosting critical information infrastructure have parts of their systems located overseas, and asked how the Bill ensures that this does not render such infrastructure susceptible to cyber attacks.

Ms Sun Xueling (Pasir Ris-Punggol GRC) asked how owners of critical information infrastructure that have systems housed away from Singapore would be held accountable for their cyber-security responsibilities.

Dr Yaacob said that a significant majority of critical information infrastructure is based wholly or partly in Singapore, and owners of systems that are partly based here would still have to comply with the laws.

While some systems serving important functions here may be located outside Singapore completely or operated by organisations based abroad, Dr Yaacob said that the Government cannot control such systems as they fall outside the country’s jurisdiction. There could also be potential conflicts with regulatory regimes in other countries.

The authorities have, however, forged strong global partnerships and links with overseas computer emergency response teams to aid in investigations into incidents.

Non-Constituency MP Daniel Goh and Nee Soon GRC MP Louis Ng suggested that the Bill mandate the reporting of all cyber-security breaches, but Dr Yaacob said that this would be resource-intensive for the CSA and firms, especially SMEs.

Other features of the Bill include a licensing framework for providers of penetration testing and managed security operations centre monitoring services.

A public consultation exercise on the draft Bill, held between July and August last year, drew 92 submissions. Of these, 61 were from companies and 13 from associations.

After the exercise, the authorities dropped plans to license individual cyber-security practitioners as part of the Bill. Instead, the CSA will work with the industry to establish voluntary accreditation and certification regimes to raise the quality of cyber-security services.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Privacy watchdog fines first 'data monger'

Straits Times
29 Jan 2018
Irene Tham

Ex-telemarketer fined $6,000 for selling personal data without consent of individuals involved

Singapore's privacy watchdog has taken the first "data monger" here to task for breaching the Personal Data Protection Act (PDPA) since the law fully kicked in on July 2, 2014.

A data monger is someone who makes money from dealing in other people's personal data such as phone and NRIC numbers.

The Personal Data Protection Commission (PDPC) fined former telemarketer Sharon Assya Qadriyah Tang $6,000 on Jan 11 for selling personal data without notifying the individuals involved or obtaining their consent.

Tang started buying leads containing people's names, NRIC numbers, mobile numbers and annual income ranges some time in 2012. It was meant to help her meet her sales targets as a telemarketer.

She paid between 20 and 30 cents to unknown sellers for each lead which contains the details of one person. It is not known if those who sold Tang the leads had obtained the personal data legitimately.

Even if the leads were obtained legitimately, consent from the individuals involved is required by law for a new purpose or for disclosure to another party. Tang had not obtained such consent nor did she notify them before she resold the leads.

Her last purchase was in June 2014, by which time she had accumulated about 30,990 leads stored in Microsoft Excel spreadsheets.

From 2012 to February last year, she resold the database repeatedly, up to 10 times, for between 5 cents and 20 cents per lead. This moonlighting earned her a profit of $5,000.

The PDPC said that Tang "had used means to obscure her identity when she was selling the leads, which is indicative of a guilty conscience and of a premeditated and deliberate contravention of the PDPA".

It added: "The profiteering from the sales of personal data by organisations at the expense of consumers or individuals is the very kind of activity which the PDPA seeks to curb, and hence, must be severely dealt with."

The exact penalty was determined to adequately reflect the seriousness of the breach without imposing "a crushing burden" on Tang as she and her husband were earning modest salaries and had a child to support, PDPC said.

Tang also admitted to the wrongdoing and fully cooperated with the PDPC's investigations.

Some of the industry methods for mining personal data include contests, lucky draws, seminars and surveys. But when stricter privacy rules kick in this year, consumers will be able to refuse to hand over their NRIC details. Instead, the onus will be on providers to use other methods to identify consumers.

The PDPC has fined 22 organisations - one of them twice - a total of $216,500 over the past two years for security breaches that exposed the personal details of Singaporeans. Another 23 organisations have been censured for their shortcomings to date.

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

Who should the core provisions of the Employment Act protect?

Business Times
19 Feb 2018
Tan Chong Huat and Vernon Voon

Including all PMEs, not just those earning up to S$4,500 a month, is the way forward

Fifty years ago, a newly independent Singapore enacted the Employment Act in 1968 partly as a bulwark against concerns of mass unemployment following the planned British withdrawal from Singapore in 1971.

As part of a survival strategy to attract local and foreign investments, the Employment Act was intended to promote worker productivity and economic expansion by outlawing malpractices by both employers and employees.

Today, after decades of strong economic growth, while Singapore's survival remains a constant concern, the changing employment landscape and workforce profile have been the driving force behind recent amendments to the Employment Act.

For example, in an effort to raise labour standards, the Act was amended in 2015 to require employers to issue itemised pay slips and key employment terms to their employees written clearly.

The latest review of the Employment Act is no exception.

Core provisions

In January, the Ministry of Manpower (MOM) initiated a public consultation exercise to seek feedback on, among other things, whether core provisions in the Act - namely, public holiday and sick leave entitlements, timely payment of salary and allowable deductions, as well as redress for unfair dismissal - should be extended to all employees.

Currently, these core provisions do not apply to professionals, managers and executives (PMEs) earning a monthly salary of more than S$4,500.

Historically, they also do not apply to domestic workers, public servants and seafarers.

The impetus for the current review is likely to have arisen from the significant structural changes in Singapore's employment landscape.

PMEs currently comprise about 34 per cent of Singapore's workforce, up from about 26 per cent back in 2001. This upward trajectory is also mirrored in the broader category of PMEs and technicians (PMETs).

According to the MOM's Labour Force in Singapore 2017 report released on Jan 26 this year, PMETs now form 56 per cent of the country's workforce. This is up from 49 per cent in 2007.

Two reasons

There are two reasons why the core provisions in the Employment Act should extend to all PMEs irrespective of their basic monthly salary.

Firstly, given the global technological disruption of industries and Singapore's push towards becoming a digital economy, it is conceivable that more employees may be categorised as PMEs with the creation of new positions that do not fit neatly into the traditional blue collar/white collar construct.

Secondly, as the number of PMEs continues to rise, it is likely that the number of PMEs who earn more than S$4,500 per month will also increase.

In this regard, one indicator is that the median gross monthly salary of the broader category of PMETs in 2016 was already S$5,910, based on a written answer given by Manpower Minister Lim Swee Say in Parliament.

If the core provisions of the Employment Act do not apply to such a significant segment of Singapore's workforce, the utility of the statute to provide basic terms and working conditions for employees may be questioned.

Moreover, although employment contracts may give employees not covered by the Employment Act access to many of these core provisions, the employment relationship is not inherently equal and the effect of contractual provisions may be disputed.

Statutory intervention

Statutory intervention would therefore more efficiently ensure that the basic entitlements in the core provisions are available to all employees.

One particular area of concern is the entitlement to redress for unfair dismissal under section 14 of the Employment Act.

Currently, PMEs who earn a monthly salary of more than S$4,500 do not have the right to make representations to the Minister for Manpower to be reinstated to their former employment, if they have been dismissed "without just cause or excuse".

For PMEs who earn a monthly salary of up to S$4,500, they can have recourse to section 14 only if they were unfairly dismissed without notice or salary in lieu of notice, or unfairly dismissed with notice or salary in lieu of notice after having served their employer for at least one year.

In practice, we have observed that PMEs earning more than S$4,500 per month do not have any recourse where the employer has relied on a provision in the employment contract to terminate the PME's employment, either with notice, or with salary in lieu of notice.

In such terminations, the employer does not typically provide any reason as it is contractually entitled to do so.

However, as the workforce becomes increasingly well-educated, and more and more positions require professional or managerial skills, it is unlikely that the monthly salary threshold of S$4,500 can offer a rational basis as to why some PMEs can have statutory redress for unfair dismissal, while others cannot.

Extending the protection under section 14 of the Employment Act to all PMEs will also ensure that employers need just cause or excuse (for example, bad performance, business downturn or a restructuring) before terminating any employee, whether the employee is a PME or not.

Step in the right direction

The review of the Employment Act is a welcome and refreshing step in the right direction in seeking to extend basic employment protections to all PMEs.

The distinction between PMEs and other employees in terms of basic employment protections should be narrowed, if not eradicated completely, in light of the future digital economy requiring more employees to exercise some professional or managerial ability.

Employers should not see this development as adding to their business costs of compliance.

Rather, they should see that protected and cared-for employees will be motivated from a greater sense of job security to do even better in their jobs, resulting in greater profitability for their employers, and greater job satisfaction for themselves.


The writers are Partners at RHTLaw Taylor Wessing LLP.

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

AGC probing doctored news on Facebook

Straits Times
06 Feb 2018
Seow Bei Yi

The Attorney-General's Chambers (AGC) is looking into a doctored newspaper report on Facebook that claims a lawyer, who is an MP from the People's Action Party (PAP), saved the people accused in the City Harvest case from harsher sentences.

Home Affairs and Law Minister K. Shanmugam said yesterday that the AGC considers this a case of contempt by scandalising the courts.

The AGC said separately that it had written to Mr Neo Aik Chau about the post he published last Friday on a public Facebook group, whose Chinese name translates to "Policy discussion forum".

It added: "Contempt of court in its various forms harms the proper administration of justice in Singapore. AGC will take firm action against contempt of court, including institution of committal proceedings in appropriate instances."

Mr Shanmugam had brought up the matter when replying to Mr Gan Thiam Poh (Ang Mo Kio GRC). The MP had asked for the Government's response to people's comments on the case, which involved the misuse of millions of dollars of City Harvest Church funds for the pop music career of Sun Ho, or Ms Ho Yeow Sun, wife of senior pastor Kong Hee.

Some claimed the court had let the rich off lightly while others said the lawyer, Mr Edwin Tong, a PAP MP, got them lighter sentences.

Mr Shanmugam said he has asked the police to take a serious view of those who scandalise the court.

He stressed that people who do not agree with a court decision should not make personal attacks on the judges or challenge their integrity. He warned that those who do face the possibility of prosecution.

The newspaper report posted by Mr Neo was taken from Chinese evening daily Lianhe Wanbao. The original headline of the Page 1 article said an outdated law saved the church's founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them from heavier sentences.

The Wanbao report was on the Court of Appeal's decision to uphold a High Court ruling that Section 409 of the Penal Code cannot be applied to the six accused. The section provides for heavier punishments for certain groups of people who commit criminal breach of trust.

Mr Shanmugam said the Facebook post was made to look as if a mass circulation paper had written it, "probably to give more credence to the headline".

When contacted, an administrator of the Chinese-language Facebook group said it had nothing to do with the doctored post and declined to comment. The group, which has more than 4,500 members, carries posts on current affairs, with screengrabs and links to articles from media outlets, including Channel NewsAsia and Lianhe Zaobao.

Comments accompanying the doctored report, which has been posted more than once, include one with a photograph of Prime Minister Lee Hsien Loong with Chinese words slapped on it, which read: "The judges have to give face to our party's lawyer."

Mr Shanmugam said: "AGC takes the view that the suggestion from the fake title is that, the PAP MP was responsible for an unfair, unjust outcome and the courts had let off the defendants lightly because of him."

He also said "the matter is with AGC, and it will be dealt with in accordance with the law". In deciding whether to prosecute, he said, factors considered include who came up with the statement, how seriously people will take it, and how widely it is distributed.

The doctored post has been removed from the Facebook group.

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

Help for families with a member facing jail

Straits Times
29 Jan 2018
Aw Cheng Wei

Project to have volunteers at the courts to give aid at sentencing, rather than after imprisonment

When she found out her daughter had been arrested for alleged drug offences four years ago, Madam Janet Chen was at a loss.

Her daughter Jenny Lee, now 37, was arrested at Changi Airport after returning from Kuala Lumpur, where she had attended a party.

Both women's names have been changed to protect their identities.

Madam Chen, 63, who works in sales, said: "My mind was in a blank. I did not know what to do. I did not know if I needed to engage a lawyer, when I could see her or what happened."

But Madam Chen and others like her will get more help under a new pilot project which stations volunteers in the State Courts from next month to help the families of people who are facing jail. The volunteers, who are from the Singapore After-Care Association (Saca), will be available at a booth in the State Courts for at least six months. They will answer questions and help families understand what happens when a loved one is jailed.

Saca's initiative follows a call by Chief Justice Sundaresh Menon last November for help to be offered to the families of prisoners earlier - at the point of sentencing and not just after their imprisonment. This is particularly important in cases where the breadwinner is going to be jailed, he told reporters.

Currently, most cases that Saca handles are when inmates are about to released, and might need help to settle back into society.

Family and community support will be strengthened by Saca's new initiative, said volunteers who work with inmates' families.

Former prison officer Elendrus Osman said: "We don't want problems to get too big, too late and too difficult to solve." Families usually want to know the financial, legal and social assistance they are eligible for, he added.

"They don't know where to turn to," said Mr Elendrus, 69, who has been conducting home visits to inmates' families under the Yellow Ribbon Community Project for the past eight years. Having volunteers at the State Courts provide an extra avenue for inmates' families to seek help, he added.

Saca volunteer Leow How Phing, 45, a real estate agent, said it was helpful to provide help to prisoners' families earlier.Having Saca volunteers stationed at the State Courts is convenient as family members may be there to attend court hearings or pre-trial conferences. "They also have someone to talk to face to face instead of through a telephone call or e-mail," said Mr Leow, who has been volunteering with Saca for the past five years.

Currently the public have to call or go to Saca's centre in Dunlop Street to get information tailored to their needs.

Volunteers have had requests for meetings at a more discreet location as some do not want their neighbours to find out about their relative's incarceration. "I've had one case where the daughter-in-law, who stays with her husband's parents, does not want them to know that their son is in jail," said Mr Elendrus.

One family also asked to have a volunteer from another district conduct the home visit to maintain secrecy, added Mr Elendrus, who runs a team of 28 volunteers in his neighbourhood.

In Madam Chen's case, she cried herself to sleep and lost weight because of the constant worry over her daughter's arrest.

Ms Lee said in Mandarin: "When my mother came to see me in Changi Women's Prison for the first time, I broke down. It was so emotional. When I saw her properly, she appeared sunken and her arms were the size of my wrists."

Madam Chen said: "I had to ask my son to take me to a doctor. I was worried I was clinically depressed."

Ms Lee, who grew up in a single-parent family, said: "When I was in prison, I learnt to appreciate my family more. I miss having my mother, younger brother and sister around. I miss my mother's cooking most of all."

Now studying to be an artist, she said:"A stable family was very important to my recovery, to make sure I don't relapse. I have seen it happen to those women I met in prison. Family support is very important."

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

AHTC must settle its outstanding issues: HDB

Straits Times
18 Feb 2018
Yasmine Yahya

The Housing Board has called on the Workers' Party-run Aljunied-Hougang Town Council (AHTC) to settle outstanding issues related to financial and governance lapses.

These include getting an external auditor to verify the opening balances for its financial statements, said the HDB on Friday.

The town council also has yet to make transfers totalling $13.9 million to make up for the shortfall in past transfers to AHTC's sinking fund, it added.

"HDB urges AHTC to take follow-up actions to resolve all these issues fully and without further delay," it said.

Just a day earlier, independent auditor KPMG had submitted a report to HDB saying it had found AHTC to have resolved all financial and governance lapses.

KPMG, which was appointed in 2016 to look into AHTC's books, said in its February report that it was reasonably satisfied that all 17 audit points have been resolved.

This 23rd and final KPMG monthly report brings the nearly two-year review to a close, said the WP in a statement on Thursday.

But a day later, HDB said that KPMG had deemed these outstanding matters as being "resolved" on the basis that recommendations had been given to AHTC, or AHTC had informed KPMG of the intended follow-up actions.

HDB also noted that AHTC, through an independent panel, has filed claims in the High Court against several of its town councillors, its former managing agent and some former officers.

The Pasir Ris-Punggol Town Council (PRPTC) is also seeking compensation for money due to Punggol East, which the WP managed from 2013 to 2015.

HDB said it "will continue to monitor the developments related to AHTC's and PRPTC's recovery actions against the defendants".

KPMG was appointed in March 2016 to look into AHTC's books after the Auditor-General's Office found significant governance lapses in a special audit.

The Court of Appeal had directed AHTC to appoint a Big Four accounting firm to help fix its lapses, and ensure compliance with the laws.

The town council has since adopted various measures to address these issues, including promising to transfer close to $14 million to its sinking fund this year to make up for the shortfall.

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

MPs quiz Shanmugam on City Harvest case

Straits Times
06 Feb 2018
Selina Lum

MS CHENG LI HUI (Tampines GRC) asked why the Government had not amended the law earlier, noting that the Court of Appeal had said that a review is long overdue.

Mr Shanmugam replied that since the High Court's decision in a 1976 case, the position has been "settled, clear law", with at least 16 decisions reported in the law books confirming that decision over the years.

The position had been consistently applied by the courts over 40 years, with no doubts or uncertainty expressed.

"Prosecution, defence, everyone proceeded on that basis. And there was no suggestion that the law was in need of any review. There was, therefore, no reason for Parliament to review the position or amend the law. Parliament does not legislate in vain," he said.

MR GAN THIAM POH (Ang Mo Kio GRC) asked about comments questioning why the courts had changed their position, given that the precedent had been in place for so long. Mr Shanmugam quipped that he will send Mr Gan a copy of the court judgment online, as it is more than 150 pages.

He noted that the judges felt that when Section 409 of the Penal Code was drafted, it could not have been the intention of the drafters to deal with directors because company law at the time had not developed to the extent that it has now.

Section 409 provides for harsher penalties for certain classes of people who commit criminal breach of trust, including "agents". For the past 40 years, it has been used to charge directors after the 1976 High Court decision that directors fall under the scope of "agents".

But the court has now ruled that "agents" referred to professional agents in the 19th century, and as such, the provision does not cover directors and key officers in the modern context.

"There are different approaches to interpretation. The other approach is to say, well, you take those words and you apply it as circumstances evolve," said Mr Shanmugam.

He added that the court had also explained why it did not want to do that. In its judgment, the judges concluded that the task of law reform should be left to Parliament as the courts are "ill-suited, and lack the institutional legitimacy, to undertake the kind of wide-ranging policy review of the various classes of persons who deserve more or less punishment for committing CBT in the 21st century".

The court highlighted problems with the definition of "agents" proposed by the prosecution, noting that it would penalise low-level workers while excluding many categories of people deserving of greater punishment, such as trustees.

MR YEE CHIA HSING (Chua Chu Kang GRC) noted that CHC founder Kong Hee's wife Ho Yeow Sun was a "key beneficiary" but had not been charged. He asked if penalties will be introduced such that the beneficiary of proceeds from a CBT case can also be charged.

Mr Shanmugam noted that a beneficiary who receives proceeds without the appropriate knowledge does not automatically become a criminal. "Supposing the person took the money and donated it to a charity, another charity. Does the recipient commit a criminal offence? I think we need to be careful," he said.

He said that the law is currently broad enough to deal with people who act with criminal intention.

MR VIKRAM NAIR (Sembawang GRC) asked if this case will have a big impact on future cases.

Mr Shanmugam said that for cases involving directors or senior officers that are already before the courts, the law as determined by the Court of Appeal will apply to them.

For the cases which are being investigated, the Attorney-General's Chambers will have to take into account the decision in considering the appropriate charges to be brought, he said.

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

Banking on a fair resolution

Straits Times
28 Jan 2018
Lorna Tan

As banks offer more insurance and investment products, what happens if disputes arise?

Banks are no longer just a place where we park our cash, obtain loans and apply for credit cards.

These days, they offer an extensive range of insurance and investment products such as unit trusts.

This is partly boosted by expensive tie-ups - running into billions of dollars - between banks and insurers to sell insurance products via banking channels, also known as bancassurance.

It is all well and good if the tie-ups lead to happy customers who convert their savings into suitable financial investments that make their money work harder.

But statistics from the Financial Industry Disputes Resolution Centre (Fidrec) seem to indicate otherwise.

Between July 1, 2016 and June 30 last year, 44.35 per cent or 396 complaints handled by Fidrec were against banks and finance companies, while 32.36 per cent or 289 complaints were against life insurers.

The bulk of the complaints had to do with disputes over insurance premiums and market conduct issues, including aggressive sales tactics, misrepresentation and inappropriate advice.

The Sunday Times highlights two scenarios on bancassurance provided by Fidrec and also provides a checklist for consumers.

Mr Edmund Wee was at a shopping mall where a bank was holding a roadshow. A personal banker approached him and spoke to him in Mandarin.

She said she was promoting a new "savings plan" with an interest rate higher than that for a fixed deposit, and touted it as a great way to save his money. In addition, there was a free gift of an iPhone for customers who signed up for that plan on the spot. Mr Wee was interested in signing up for the "savings plan", which was, in fact, an insurance policy.

He told her that he had an existing account with her bank. The money was from an inheritance. The personal banker asked him to sign some forms to open the new "savings plan" account, and also to deduct an amount of $10,000 from his savings account. This was to pay for the first-year premium.

Two weeks later, he received a letter and policy documents from an insurance company relating to the policy he had bought.

As Mr Wee did not understand English, he asked his sister to read the documents. She told him he had in fact bought a 10-year insurance policy with an annual premium of $10,000. He was shocked, as he believed he had simply transferred some money from his existing savings account into a new "savings plan" account.

His sister also discovered that there were many errors in the Financial Needs Analysis (FNA).

It inaccurately stated that he had experience in stocks and unit trusts. His income was stated as $3,500 per month, instead of $2,500. Also, his education level was stated as O-level English when it should have been predominantly Chinese education at primary school level.

Mr Wee sought to terminate the policy and get a full refund of the $10,000 premium from the bank. He opted for adjudication, after mediation efforts at Fidrec were unsuccessful.

WHAT MR WEE SAID

At adjudication, he produced documentary evidence of his education level and salary. He said that during the entire sales process, there was no mention of "insurance" and the usual 14-day free look period.

All the necessary hardcopy forms were filled in by the personal banker on his behalf, and he merely signed where she had told him to.

Mr Wee argued he could not have committed to earmarking the $60,000 in his existing account for a 10-year policy that would have required $100,000 in total.

Besides his actual income, the fact that he has a stay-at-home wife and two children in secondary school was material information that indicated his affordability.

WHAT THE BANK SAID

The bank argued that all the necessary sales documents were duly signed by Mr Wee.

In those sales documents, it was stated that the product was a regular premium endowment insurance policy for 10 years, not a savings account.

WHAT THE ADJUDICATOR SAID

The adjudicator found that more likely than not, Mr Wee could not have filled in those hardcopy sales documents on his own, and that some of the important information in the FNA was inflated by the personal banker.

She did not give due consideration to Mr Wee's investment objectives, financial situation and particular needs. Thus, she did not conduct a proper FNA and there was no reasonable basis for her to have recommended him this product.

The adjudicator ruled in favour of Mr Wee, who got back his first-year premium of $10,000.

•Disclaimers: The two cases are fictitious and any resemblance to real-life people or actual cases is unintended and purely coincidental. They are not indicative of adjudication outcomes at Fidrec. Each case is decided based on its own facts, law and evidence. Mrs Aileen Tan went to her bank to open a fixed deposit account with her $20,000. There, a bank officer told her she could get much higher returns with a 10-year insurance policy. Mrs Tan decided to put her $20,000 into that insurance policy, with that sum of money used as her first-year premium.

A few months later, however, she changed her mind, as she needed the money for her son's university education, after "unexpectedly" suffering losses in the stock market.

She went to the bank to terminate the policy and withdraw her $20,000 premium. But the bank told her early termination would result in a zero cash value - that is, she would not get anything back at all.

She filed a claim against the bank at Fidrec and a mediation session was held. When it did not produce an outcome acceptable to both parties, she opted for adjudication.

WHAT MRS TAN SAID

At the adjudication, she alleged that the bank officer had not, at the time of her signing up for the insurance policy, asked her relevant questions such as how much premium she could afford to pay and her investment time horizon.

She also claimed that many questions in the insurance policy forms were filled in by the bank officer, of his own accord, and that she was simply asked to sign on his iPad. Furthermore, she alleged that the bank officer did not explain the contents of those forms before she signed on the iPad.

WHAT THE BANK SAID

The bank argued that its bank officer had asked and documented her budget, investment time horizon and also her risk profile in the Financial Needs Analysis (FNA).

He had taken all these into consideration before recommending the 10-year insurance policy. He had also gone through the contents of the benefit illustration with her, which showed, among other things, the surrender values.

WHAT THE ADJUDICATOR SAID

The adjudicator listened to both parties and looked at the policy documents, including the benefit illustration, product summary and FNA. He concluded, based on the evidence cited, that the bank officer did ask Mrs Tan about her affordability, and had informed her that the insurance policy was for 10 years.

In addition, the bank officer had filled in the various forms for her for opening the policy, based on what she had told that officer. The bank officer had also done a proper FNA for her and she had voluntarily signed all the documents.

Hence, the adjudicator dismissed Mrs Tan's claim and held that she was bound by the terms of her contract or insurance policy.

This means that in her case, she would get zero cash value if she were to terminate her policy prematurely.


Fidrec an affordable option to resolve financial disputes

The Financial Industry Disputes Resolution Centre (Fidrec) was set up in 2005 to provide an affordable yet independent and impartial alternative to dispute resolution.

It specialises in resolving financial disputes between consumers and financial institutions, with a limit of up to $100,000 per claim at adjudication. There is no claim limit for mediation.

Fidrec's services are available to all consumers who are individuals or sole proprietors.

Claims must be referred to Fidrec within six months of a consumer receiving the final reply on the dispute from his financial institution. Filing a complaint is free. A complaint may be lodged in person, by fax, post or e-mail. For inquiries, call Fidrec on 6327-8878.

Mediation is free. This is where a Fidrec case manager mediates a dispute to help the consumer and financial institution reach an amicable settlement. If, however, both parties cannot come to a mutually agreed settlement, the consumer can opt for adjudication at Fidrec. This means the case will be heard by an adjudicator.

There is an adjudication case fee of $53.50 payable by the consumer, except for cases that fall within the Fidrec Non-Injury Motor Accident Scheme.

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

Partner's shares in firm worth $15k, court rules

Straits Times
16 Feb 2018
Selina Lum

Two businessmen started a company making aircraft engine parts but fell out and agreed to go their separate ways, with the majority shareholder buying out the minority shareholder.

But there was a gulf of millions of dollars between how much each felt the shares were worth.

Mr Abhilash Kunchian Krishnan, who owned 13.91 per cent of JCS-Vanetec, wanted to sell his stake for between $4.96 million and $9.48 million. Mr Jason Yeo, who held the remainder of the company, valued Mr Abhilash's shares at just over $15,200.

Months before their dispute went to trial, Mr Yeo offered Mr Abhilash $18,300, but was snubbed.

The High Court came down on the side of Mr Yeo yesterday, accepting the valuation of his expert witness that Mr Abhilash's shares were worth only $15,242.83.

The case turned on the valuation method to be used.

Mr Abhilash's expert witness had valued his stake based on three intangible assets - the company's contract with a Chinese aircraft engine manufacturer, the company's vendor certification with various aircraft engine manufacturers and the company's patent application for a specialised industrial process.

Mr Yeo, who was represented by Mr Suresh Divyanathan of Oon & Bazul, argued that these assets had no proven value.

Justice Valerie Thean agreed, saying that Mr Abhilash had failed to show that these assets could be sources of future revenue.

The judge noted that the contract was for a prototype only and there was no certainty of any future sales.

She accepted Mr Yeo's testimony that vendor certification did not necessarily lead to sales. The judge noted that the patent was pending and she could not put a value on it without expert evidence.

She ordered the buyout to take place in 21 days and ordered Mr Abhilash to pay Mr Yeo's legal costs of $99,000 plus expenses. Mr Abhilash's lawyer, Mr Liew Teck Huat of Niru & Co, told the court that his client wishes to appeal.

According to court documents, Mr Abhilash and Mr Yeo started the company in 2004. In 2015, Mr Yeo, an engineer and entrepreneur, got a Chinese company interested in purchasing JCS-Vanetec.

The deal fell through because Mr Yeo and Mr Abhilash could not agree and their relationship soured.

When the trial started last year, Mr Abhilash dropped his claim of minority oppression, while Mr Yeo agreed to buy him out "at fair market value".

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

Lee Kuan Yew's view on the matter: Forum

Straits Times
06 Feb 2018

I am a retired district judge. I was also the Registrar of the Subordinate Courts and Supreme Court in the 1980s.

I refer to the report (MPs write appeal letters to court only in 'urgent cases'; Feb 4) as well as to letters in The Straits Times' Forum on MPs sending letters to the courts.

When I was the Subordinate Courts' Registrar, I was instructed by then Chief Justice Wee Chong Jin to ignore such MP letters, to not send them to the judges, and to return them to the PAP Whip.

The reason, I was told, was that founding prime minister Lee Kuan Yew had instructed all MPs (in writing) that they should not be writing such letters to the courts.

There was a file containing such letters in the court registry.

The late Mr Lee's views were exactly as stated by Mr Cheng Choon Fei (Unusual for MP to intervene in court case; Feb 3) and Ms Agnes Sng Hwee Lee (Make clear the boundaries on MP petition letters): MPs writing to the courts would blur the separation of powers between the legislative, executive and judicial branches of government.

Mr Lee was also of the view that if the MP's constituent resident perceived his sentence imposed by the court as lenient, he might attribute it solely to the MP's letter, and, therefore, feel obligated or grateful to vote for the MP in an election.

Low Wee Ping

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

No more e-cigarettes, shisha from Feb as new law kicks in

TODAY
27 Jan 2018
Asyraf Kamil

Smokers, take note. In six days, you have to discard any prohibited tobacco products that you may have in your possession.

The first phase of the implementation of the amendments to the Tobacco (Control of Advertisements and Sale) Act (TCASA) will take place from Feb 1, where the prohibition on the purchase, use and possession of emerging and imitation tobacco products will come into force, the Ministry of Health (MOH) said in a statement on Friday (Jan 26).

Examples of these products include smokeless tobacco products, chewing tobacco and shisha, as well as vaporisers such as e-cigarettes, e-pipes and e-cigars.

Those who are caught purchasing, in the possession of, or using emerging and imitation tobacco products are liable to a fine not exceeding S$2,000, said the MOH.

The ministry added that those who are convicted for importing, selling, or distributing the prohibited products are — for the first offence — liable to a fine not exceeding S$10,000 or imprisonment for up to six months or both.

Those who are convicted for the second or subsequent offence can be subjected to a fine not exceeding S$20,000 or imprisonment for up to 12 months, or both.

The changes to the TCASA came after Members of Parliament last year called for even more stringent measures to lower the smoking rate.

Under the amended act, the MOH has increased the Minimum Legal Age (MLA) for tobacco from 18 to 21 progressively.

The MLA for the purchase, use, possession, sale and supply of tobacco products will first be raised from 18 to 19 years old on Jan 1 next year.

“The MLA will subsequently be raised to 20 on Jan 1, 2020, and to 21 on Jan 1, 2021,” said the MOH.

The ministry urged smokers to quit smoking to reduce the risk of smoking-related illnesses.

It added that individuals seeking to quit smoking should use methods that are proven safe and effective, such as going cold turkey, undergoing smoke cessation counselling and using licensed nicotine replacement therapies.

The MOH also urges members of the public who have information on the illegal importation, distribution or sales, purchase, use and possession of prohibited tobacco products to report to the Health Sciences Authority’s Tobacco Regulation Branch via telephone numbers 6684 2036 or 6684 2037 during office hours (9:00am to 5:30pm, Monday to Friday), or via email at hsa_trb@hsa.gov.sg.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

EIG accuses Keppel unit of planning to pay bribes till 2019

Straits Times
16 Feb 2018
Grace Leong

A US fund manager has accused Keppel Offshore & Marine of planning to pay bribes until 2019 but for the Brazilian government's investigation, according to US court papers seen by The Straits Times.

Several funds managed by EIG Management have filed a lawsuit in New York against the Keppel Corp unit under the Racketeer Influenced and Corrupt Organisations Act (Rico).

EIG is suing Keppel O&M in a second attempt to recover US$221 million (S$292 million) in investments in Sete Brasil - a unit of Brazilian oil giant Petrobras - that were rendered "worthless" after the massive corruption scandal exposed through Brazil's Operation Car Wash in 2014 led to Sete's bankruptcy.

Shortly after EIG funded its first investment in Sete, Keppel issued a press release on Aug 7, 2012, stating it had "firmed up contracts" with Sete for the construction of five drillships for about US$4.1 billion.

The drillships were "scheduled for delivery (until the third quarter of) 2019", EIG said in the court papers, citing the press release.

"Given that Keppel's bribes and kickbacks were funded by Sete's construction payments, Keppel would be paying bribes and kickbacks through... 2019," it alleged in court papers filed on Feb 6.

Keppel told the Singapore Exchange on Tuesday that it has been served with a summons in the new suit, but said "the reported cause of action is without merit and Keppel O&M will vigorously defend itself".

When contacted, Keppel said that it was "unable to add anything further".

EIG first sued Keppel, Keppel O&M, Sembcorp Marine and two others in 2016, alleging that US$9.5 million in bribes had been paid by agents of Keppel and SembMarine to officials of Petrobras, its unit Sete Brasil and Brazil's Workers' Party to procure contracts.

The suit was dismissed last April. But EIG got a break when Keppel O&M in late December reached a US$422 million global settlement with the United States, Brazil and Singapore over violations of the Foreign Corrupt Practices Act (FCPA).

This related to US$55 million in bribes paid by Keppel O&M from 2001 to 2014 to officials at Petrobras and the then ruling Workers' Party in Brazil to secure 13 contracts with Petrobras and Sete.

In its new suit, EIG is seeking at least US$663 million, triple the damages under Rico.

It said: "Keppel's admission in the DPA (deferred prosecution agreement) that it committed violations of the FCPA constitutes an admission that it conspired to commit... the Rico predicate acts of money laundering."

EIG said Keppel "admitted that it drafted and executed agreements with consulting companies controlled by (former Keppel agent Zwi Skornicki)... to facilitate the bribe payments".

"Under the guise of these agreements and instructions by Keppel, Skornicki made payments to bank accounts in the US and elsewhere in the name of shell companies he controlled," said the US firm.

"Skornicki then wired the money from those bank accounts in the US to bank accounts outside the country... for the benefit of executives at Petrobras, Sete and members of the Workers' Party."

EIG also alleged that Keppel O&M, from 2001 to 2011, had authorised bribes of about US$40 million to Petrobras and the Workers' Party to secure seven contracts worth US$4 billion.

From 2012 to 2014, Keppel allegedly authorised US$14.4 million of bribes to secure six drillship contracts with Sete, EIG added.

The court documents also spotlighted the role played by former senior Petrobras executives Pedro Jose Barusco Filho and Joao Carlos de Medeiros Ferraz.

As part of a plea agreement, Barusco had testified to the Brazilian Congress that he and Ferraz had opened accounts in the names of "phantom offshore companies for the purpose of laundering the Sete-related bribes including that from Keppel".

Barusco was originally sentenced to 18 years' jail in 2014 but that was reduced to two years of alternative confinement because of his cooperation with the authorities.

"When Barusco requested a bribe, Skornicki 'reported that to Singapore directly', and Skornicki 'ended up going to Singapore five times a year' and 'they authorised' him to pay bribes," EIG alleged, citing Skornicki's testimony.

Ferraz, Barusco and a Sete executive have subsequently agreed to disgorge nearly US$100 million of the bribes that they received from Keppel and secreted into Swiss bank accounts opened in the names of phantom entities, EIG alleged.

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

'Everyone has right to choose a lawyer'

Straits Times
06 Feb 2018
Seow Bei Yi

Accused persons have the right to get a lawyer of their choice, and lawyers should not be made to feel that they will be hounded online for taking up certain cases, said Home Affairs and Law Minister K. Shanmugam yesterday.

He stressed that the rule of law depends, among other things, on lawyers being able to act for defendants regardless of the offences they are accused of.

"Even a child rapist is entitled to his day in court and to be defended. It doesn't mean that we or the lawyer defending the person approves of child rape," he said.

Mr Shanmugam was replying in Parliament to a question from Mr Gan Thiam Poh (Ang Mo Kio GRC), who had asked about the minister's stand on people's comments on the City Harvest Church case, which involved the misuse of church funds.

Some claimed that Mr Edwin Tong, a People's Action Party MP who acted as the defence lawyer for church founder Kong Hee, had helped Kong and the other accused get off with light sentences.

Last week, the Court of Appeal dismissed a bid by the prosecution to reinstate the original convictions of Kong and five other City Harvest leaders. They had been given between 21 months and eight years in jail in 2015 for criminal breach of trust and falsification of accounts. But their sentences were cut after the High Court reduced their criminal breach of trust charge to a less serious one last April.

Mr Shanmugam also shared his personal experience yesterday to make the point that defendants have the right to choose a lawyer. He said he had acted both for and against the three prime ministers of Singapore as a practising lawyer.

In 1995, the International Herald Tribune (IHT) was sued for libel by Singapore's top three political leaders at the time - Senior Minister Lee Kuan Yew, Prime Minister Goh Chok Tong and Deputy Prime Minister Lee Hsien Loong.

The newspaper asked Mr Shanmugam to represent it even though he was a PAP MP.

Senior Minister Lee, who pointed out Mr Shanmugam had been close to the three leaders, said then that IHT's choice of lawyer was "the highest tribute to the integrity of the counsel" and "possibly reflected also on the integrity of the Government".

Over the years, Mr Shanmugam said he had acted for people "whose conduct will not be approved of by the general public".

He said the "mob mentality" to hound lawyers and intimidate them into not taking on cases that others disapprove of was "shameful".

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

Telemedicine to be regulated: Health Ministry

TODAY
27 Jan 2018
Kelly Ng

Ministry issues comments as two industry bodies urge caution for doctors practising telemedicine, issuing e-MCs

Amid the rise in virtual platforms offering health consultations and electronic medical certificates (MCs), industry bodies warned medical practitioners on Friday (Jan 26) of the “potential pitfalls of telemedicine”.

Doctors who sign on with businesses offering such services should ensure their clinical decisions are “always…justifiable and defensible”, the College of Family Physicians Singapore (CFPS) and Singapore Medical Association (SMA) said in a memo to members.

The authorities, meanwhile, told TODAY they intend to license telemedicine under the future Healthcare Services Act. The Ministry of Health (MOH) said it is currently working with providers to “better understand their business models and will work with them to develop appropriate regulations for telemedicine”.

Ahead of regulation, CFPS president Tan Tze Lee and SMA president Wong Tien Hua said in their statement: “Doctors are ultimately responsible for any clinical decisions made and will be accountable if clinical standards are not upheld.”

For instance, it is not possible for a doctor to assess a patient with asthma via a telehealth platform, they said.

An MC should also be issued only after careful and adequate assessment and is “a responsibility that cannot be taken lightly”, they stressed.

The councils of both bodies “view (the) development (of such platforms) with concern”, they said, adding that some of these business entities are not registered medical establishments and are therefore not accountable to the MOH.

“We are of the opinion that the current telemedicine technology is unable to replace a face-to-face consultation, which typically includes a physical examination, except for the most minor of conditions,” they said.

While mobile platform providers such as Doctor Anywhere and MyDoc allow patients to cut queues and have consults on-the-go, some doctors here have been calling for stronger safeguards for such virtual platforms, pointing to how they may prompt individuals to doctor-hop or fake illnesses to get MCs.

The proportion of fees paid by patients that is pocketed by platform providers, which is typically one-third of the total sum, also raises concerns of fee-splitting. The latter is a breach of ethical guidelines set out by the Singapore Medical Council.

The proposed Healthcare Services Bill, which the MOH plans to enact from the second half of this year, is expected to bring greater regulatory clarity in non-mainstream fields of healthcare such as telemedicine. A public consultation exercise on the Bill is ongoing.

Non-premises based services are currently not regulated.

Doctors providing care on virtual consultation platforms must ensure they are able to accurately diagnose a condition and offer the most appropriate treatment, the MOH said. “Having disclaimers on such platforms will not absolve the doctors of any professional misconduct, negligence or incompetence. If in doubt, doctors should offer to see the patients face-to-face, so that they are able to conduct a proper physical assessment of the patient.”

For telemedicine providers based overseas who wish to provide services to patients in Singapore, MOH will explore requirements for them to tie up with a local licensed doctor or provider. “This would act as an additional safeguard for Singaporeans,” said the spokesperson.

As for telehealth products, the MOH said those intended for medical purposes are regulated as medical devices by the Health Sciences Authority.

The medical device companies are responsible for cybersecurity controls in their risk management plans, post-market management systems and routine cyber maintenance for medical devices. These requirements are aligned to relevant overseas or international standards like the United States Food and Drug Administration-recognised standards (UL 2900) and ISO 13485 standards, the ministry said.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Singapore's digital tax agenda: A matter of time

Business Times
16 Feb 2018
Barbara Voskamp and Kees van Raad

Most corporate tax systems are based on the presumption that businesses operate in close proximity to their customers. These days, however, the reality is not so. Many businesses operate on a regional or even worldwide level. The Internet, more than anything else, has enabled businesses to supply markets without the need for a local presence.

These developments are putting pressure on the way taxes are currently levied and have prompted the question of whether existing tax systems are sufficiently equipped to operate effectively.

Because the digital component is often an integral part of the business, the material difference between tech and traditional businesses is quickly diminishing. Therefore, it is also becoming more difficult to separate the tech and non-tech components of a business. Considering that, it may not be sensible to seek such separation for tax purposes.

The lack of global consensus on how to respond to the direct tax challenges associated with digitalisation presents an ongoing challenge. An increasing number of countries have started taking steps to implement unilateral and uncoordinated measures aimed at taxing digitalised activities and business models. A number of countries have even already implemented unilateral measures such as diverted profit taxes and equalisation levies.

On a global and European level, the following trends can be noted: the OECD, as part of its Base Erosion Profit Shifting (BEPS) project, has formulated a number of tax policy options in its report Tax challenges of digital economy and announced that an update of this report will be released in April 2018.

EQUALISATION

The European Union is also looking into these issues and is seriously contemplating the introduction of a new form of taxation for the tech sector, such as an equalisation tax, outside the existing corporate income tax frame work. This type of tax would be levied on digital companies as a percentage of their turnover in a respective market.

At the World Economic Forum in Davos, Pierre Moscovici, the European commissioner for tax matters, announced that, while looking forward to the forthcoming OECD proposals, he will push ahead and propose a package on digital taxation in early March.

Although some propose that Singapore, with its ambition to become the regional tech hub in Asia, should be a front runner in leading harmonisation of the Asian digital tax treatment, we appreciate the call of Singapore not to include in its 2018 Budget an easy short-term solution. Rather we believe Singapore should use its position as a participant in the BEPS project to reach a global consensus in that forum first.

Once those discussions have fully evolved and lead to a coordinated approach to tax the digital economy, Singapore, as the chair of Asean, in 2018 would be perfectly positioned to lead a similar harmonisation process in this region.


The writers work for the law firm Loyens & Loeff. Barbara Voskamp is a Tax Partner Asean and Kees van Raad is Professor of International Tax Law.

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

Deferred prosecution agreements - Justice delayed or justice denied?

Business Times
06 Feb 2018
Wilson Ang, Paul Sumilas and Jeremy Lua

More pieces of the puzzle must fall into place to create a holistic, coherent regime to fight corporate crime

In recent years, there has been an emerging trend of jurisdictions introducing or considering DPAs, drawing upon the largely positive experience of the US and UK.

Singapore is considering introducing deferred prosecution agreements (DPAs) as a prosecutorial tool in forthcoming amendments to its Criminal Procedure Code and Evidence Act. The move, announced in mid-January, represents a significant shift in Singapore's approach towards corporate wrongdoing, aligning the country more closely with current global trends.

FEATURES OF DPAS

DPAs are used in various jurisdictions and have the following common features:

DPAs are generally used as a means to resolve allegations of corporate wrongdoing in an attempt to avoid collateral consequences resulting from a company pleading guilty to a crime.

When used in a corporate context, the DPAs do not absolve individuals of liability. Rather, DPAs are often the first step in an enforcement action. Once allegations against the corporate entity have been resolved, the authorities will then prosecute individuals.

DPAs generally require the defendant corporation to agree to certain terms, often including the creation or enhancement of a corporate compliance programme.

In certain cases, regulators will require that there be an independent monitor as part of a DPA. The monitor, who is generally chosen by the regulators and for some defined period of time, will serve as the ears and eyes of the regulators while ensuring that the defendant company is abiding by the DPA terms.

AN EMERGING TREND?

In the US, the use of DPAs in a corporate criminal case is completely within the discretion of federal prosecutors. Most of the process occurs only between the putative defendant and the prosecutors in an extra-judicial way. Although the final agreement requires judicial approval, recent cases indicate that judges have little leeway to deny such approval.

As a result, some commentators have criticised the use of DPAs in the US as largely bypassing the formal legal system, raising a number of constitutional and public policy considerations. In particular, there are also fears that prosecutors hold an undue advantage throughout the process because the emphasis on cooperation and negotiation masks disproportionate prosecutorial leverage.

The increased use of DPAs has also led to a limited judicial review and oversight of the prosecution of certain laws, such as the US Foreign Corrupt Practices Act (FCPA).

Additionally, the facts set forth in a DPA are negotiated by the parties and do not necessarily provide the full extent of the conduct at issue. As a result, key issues, such as the extent of the law's extraterritorial jurisdiction, remain open.

Meanwhile, the UK, in February 2014, introduced a DPA framework in response to perceived deficiencies in the existing prosecution framework involving economic crime, including:

·         investigations and trials for offences of economic crime becoming "forbiddingly long, expensive and complicated";

·         difficulties in proving that the "directing mind and will" of an organisation was at fault, thereby founding criminal liability; and

·         existing criminal penalties having "unintended detrimental consequences", such as a disproportionate impact on a company's share price, or collapse of a business.

Under a DPA in the UK, a prosecutor charges a company with a criminal offence but proceedings are automatically suspended if the DPA is approved by the judge. Pursuant to the UK Serious Fraud Office's policy, a company would only be invited to enter DPA negotiations if there was full cooperation with the SFO's investigations. Under such agreements, penalties could include: (1) a financial penalty; (2) compensation to aggrieved parties; and (3) continuing cooperation with respect to prosecutions of individuals.

In recent years, we have observed an emerging trend of jurisdictions introducing or considering DPAs, drawing upon the largely positive experience of the US and UK. Such countries include France, Australia, Argentina and Canada.

FORMAL DPA REGIME IN SINGAPORE AND OTHER ISSUES

The move to consider introducing DPAs in Singapore is a positive step and reflects the authorities' awareness of the value of DPAs and the need to formalise the process by which such corporate resolutions are reached.

While there is currently little information publicly available about what Singapore's DPA regime could look like, Law and Home Affairs Minister K Shanmugam has stated that if DPAs were introduced here the terms of each DPA would have to be approved by the Singapore High Court, which would consider the fairness and proportionality of such resolutions. He also added that DPAs must be published once approved, which addresses a significant shortcoming of using "conditional warnings" to enter into such resolutions. In all likelihood, the DPA regime in Singapore if introduced, would be aligned with the US approach, and potentially draw on lessons from the UK.

Thus far, the proposal to introduce DPAs in Singapore has largely been well received. Nevertheless, there have been concerns that DPAs may embolden companies to behave irresponsibly or that prosecutors may in the future shy away from fearlessly prosecuting companies for egregious corporate misconduct. Such criticism, however, is unfounded and largely represents a misunderstanding of DPAs.

Contrary to concerns that DPAs may encourage reckless corporate behaviour, DPAs are likely to encourage companies to put in place sound governance procedures and compliance programmes. To avail itself of a DPA, a company must first show that it is a worthy candidate for the exercise of such prosecutorial discretion. Factors such as self-reporting, the existence of a working compliance programme, commitment to reform are among the many factors to be considered when the authorities consider whether to grant a DPA. Duplicitous conduct, such as acting irresponsibly and appearing contrite when caught, is unlikely to be seen favourably by the authorities.

Furthermore, under DPAs, the benefits of misconduct are often disgorged, providing little incentive for a company to act irresponsibly. As for prosecutors shying away from taking action, experience has shown that Singapore's prosecutors do not avoid taking on "difficult" cases. Finally, it must also be noted that DPAs also benefit the public, in that it provides a company genuinely seeking to rehabilitate with an opportunity to do so, and minimises the potential fallout from the collapse of major public companies caught up in corporate wrongdoing (such as insolvency and layoffs to innocent rank and file employees).

The DPA regime, however, is only one piece of the puzzle if Singapore wants to make good on its commitment to ensure that Singapore companies comply with the laws of Singapore and the laws of the jurisdictions in which they operate. To achieve such aims, Singapore's anti-bribery laws need to keep pace with international developments and business reality. In this regard, a review of Singapore's Prevention of Corruption Act (PCA) has been ongoing since January 2015. Areas of potential reform could include:

Corporate liability - Singapore should update its laws on the attribution of corporate criminal liability, and lower the evidential threshold, so that such liability can be established through the state of mind as well as the conduct of any "director, employee or agent" who was acting within the scope of his or her actual or apparent authority. This should replace the current "identification doctrine" where the prosecution needs to show that the individual who committed the crime can be regarded as the "embodiment of the company".

Increased penalties - there should be a distinction in the PCA in financial penalties that could be imposed on natural persons and companies. Singapore should consider revising corporate penalties so that they are higher than the strict monetary limit of S$100,000 or based on a formula that could take into account factors, such as the amount of bribes paid and benefit received.

Compliance defence - if the threshold for corporate liability is lowered, balance can be restored by introducing a compliance defence. A corporation found liable for bribes paid by its "director, employee or agent" can be absolved of liability if it can show that it took reasonable steps to prevent such corrupt practices from taking place. Such a compliance defence provides a legal impetus for companies to adopt prudent business practices and foster ethical corporate cultures through the implementation of anti-corruption compliance programmes.

Extraterritorial effect - the PCA currently provides for limited extraterritorial effect in respect of the acts of bribery of Singapore citizens abroad. Non-citizens such as Singapore permanent residents and corporations are not subject to the extraterritorial scope of the law. The PCA should be expanded to address this discrepancy.

Whistleblowing protection - the PCA currently provides for the right to anonymity and protects informers' identities. However, given that there is no overarching whistleblower law in Singapore, there is no statutory protection afforded to employees of companies who may lodge complaints and face retaliation as a consequence. Protective measures ought to be legislatively introduced.

Senior personnel liability - while individuals directly involved in corporate misconduct ought to be held liable, there should also be scrutiny on the behaviour of senior personnel, such as the C-suite or board of directors, for neglect or failure to take steps to prevent such misconduct. Senior personnel are responsible for setting the right tone and fostering ethical corporate culture, so they should naturally bear the responsibility for creating toxic cultures that incentivise illegal behaviour.

In short, while the introduction of DPAs is a step in the right direction, other pieces of the puzzle need to fall into place to create a holistic, coherent regime to combat corporate crime. Only then will Singapore's reputation for incorruptibility align with the state of its anti-bribery laws.

Wilson Ang, Paul Sumilas and Jeremy Lua are regulatory investigations lawyers in global law firm Norton Rose Fulbright.

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

Mercedes parts dealer wins appeal over refund order

Straits Times
26 Jan 2018
K.C. Vijayan

Apex court rules that $300,000 it got from car retailer is not part of deal that fell apart

A Mercedes-Benz parts dealer will no longer have to refund a car retailer $300,000 after the Court of Appeal found that the money was paid as a deposit for vehicles to be produced - and not as part of a business deal.

Supercars Lorinser claimed it paid the sum to Benzline Auto in January 2014 on the condition that the two companies would set up an exclusive pact to sell modified cars.

In December 2016, Supercars and a related company successfully sued Benzline for the money to be returned after claiming that no contract had been entered into by the two parties.

Benzline countered that the payment was actually for an order of 30 cars, made separately from the distributorship agreement. No agreement was reached and five months later, the relationship derailed when Supercars noted that Benzline had looked to name another firm as the exclusive sub-dealer.

Supercars was incorporated in Singapore with a view to sub-distributing Mercedes-Benz vehicles modified by Lorinser, a top German-based car-tuning company.

Benzline Auto held the master dealer rights in Singapore for cars modified by Lorinser.

A key issue discussed in the original hearing was whether the sum was placed as part of a contract or was a "pre-contractual deposit".

Benzline, through lawyer Leslie Yeo, appealed, while Supercars - defended by Ms Ho May Kim and Mr Harry Zheng - resisted at a hearing before the apex court last August.

In reserved judgment grounds issued earlier this month, the apex court found the money was meant as a deposit for cars to be produced and "conditioned on Supercars being offered the choice to enter into the exclusive sub-dealership agreement".

Writing on the court's behalf, Judge of Appeal Judith Prakash said: "Supercars chose to reject the offer. Consequently, it is not entitled to restitution of the payment."

The court, which also included Chief Justice Sundaresh Menon and Judge of Appeal Andrew Phang, also found "the weight of the evidence" did not support the understanding that Supercars paid the money because it would be securing the sub-dealership agreement.

"It was inherently unlikely that Benzline would be willing to place in Supercars' hands the ability to claw back the payment simply by refusing to sign the exclusive sub-dealership agreement later," wrote Judge Prakash.

The court added that Supercars did not pay " blindly" as it had seen the first draft agreement, which showed the terms were largely acceptable to Supercars.

Benzline managing director Kevin Ng told The Straits Times yesterday: "I am grateful this case has come to a closure for us and as a goodwill gesture, we will be making a donation of $50,000 to Singapore Thong Chai Medical Institution."

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

More legal eagles starting own niche practices

Straits Times
15 Feb 2018
Grace Leong

Veterans see opportunity for independent and focused growth in dispute resolution

A number of dispute resolution legal eagles have taken flight and started their own independent boutique practices in recent years.

Mr K. Anparasan, who was Withers KhattarWong's regional leader for dispute resolution in Asia, left the firm on Jan 31 after 17 years of service to launch his litigation and dispute resolution firm, WhiteFern LLC.

He is joined by his former Withers team - partner Grace Tan and senior associates Sumyutha Sivamani and Audrey Wong. WhiteFern specialises in dispute resolution, including insurance and reinsurance litigation, and commercial litigation and arbitration.

Another veteran, Senior Counsel Lok Vi Ming of Dentons Rodyk, left in December 2016 after 30 years there to start his own dispute resolution practice, LVM Law Chambers, which now has 16 lawyers.

Corporate restructuring and insolvency lawyer Ashok Kumar left TSMP Law in March 2016 after nearly five years there, to start his own practice, BlackOak LLC, which now has 10 lawyers. Mr Ashok was also a partner at Allen & Gledhill for 13 years.

"We felt there is a space for restructuring and insolvency lawyers who are independent, conflict-free and able to represent anyone against parties such as institutions and banks, which firms may have difficulty acting against," said Mr Ashok, BlackOak's co-founder and director.

SC Lok, LVM Law's managing director, believes there is "room for more conflict-free, independent, disputes-focused law firms here.

"But due to the growing complexity of disputes, as well as the emphasis on speed and responsiveness required for litigation and arbitration, such firms will need to have considerable bench strength. Single practitioners and small practices will find coping with high-value and high-tempo disputes challenging.

"Bench strength should be fortified not just in terms of number of practitioners, but also in having a more expansive suite of subject matter expertise. That can be obtained only by assembling a team of senior practitioners, each an expert in a particular field," he said.

WhiteFern managing director Anparasan said having his own niche firm means he has "the independence to grow his practice in the direction he envisages while staying adaptable to clients' needs".

"Another advantage is that we are able to provide quality legal services for clients at competitive rates. I think the market certainly has room for both niche firms and collaborations with global outfits to cater to clients' different needs," he added.

In addition to referrals and instructions from mid-sized and small law firms, a good number of LVM Law's cases last year came from big local firms that were unable to take these cases on because of business or legal professional conflict, SC Lok said.

International firms have also instructed his firm to give advice on local law in cases that they are involved in, which their local tie-up or joint venture partners are unable to handle because of conflict issues.

"We have also been busy with appointments as mediators or arbitrators in matters handled by some of these international firms. The conflicts issue, both real and perceived, is particularly challenging for senior lawyers accepting arbitration appointments," he said.

These issues can affect the independence of the arbitrator, who assumes the position of a "private judge", added SC Lok.

"There is zero tolerance for conflict, or any perceived conflict, in the appointment of arbitrators. This same demand for independence is not so strong in litigation cases, where the practitioner appears as counsel, taking one of the parties' side," he said.

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

Value in guides for sentencing

Straits Times
05 Feb 2018
K.C. Vijayan

The new three-tier sentencing framework set by a judge last month to deal with motorists who cause grievous hurt through negligent driving is the latest in more than a dozen structured sentencing guidelines set by an appeal court over the past five years. These include offences such as drink driving, national service evasion and match-fixing.

In the case that prompted the new framework, motorist Tang Ling Lee, 45, had been sentenced to one week in jail and banned from driving for two years after she admitted to failing to keep a proper lookout while making a right turn at a junction.

A motorcyclist hit by her car suffered substantial injuries, and she had appealed for a fine instead.

Justice See Kee Oon, in dismissing her appeal, noted that previous cases showed the same offence had resulted in a fine in some cases, but jail in others.

Hence, the need to provide guidance and foster consistency.

The High Court judge in the case set up a three-tier structure to relate the punishment range from fines to jail terms to the degree of harm and culpability for cases in which a trial is claimed.

Other such frameworks include the 2015 case of Eric Ding, in which Justice Chan Seng Onn set out a sentencing framework for match-fixing in the form of a graph.

National University of Singapore law professor A. Kumaralingam said sentencing frameworks "provide guidance for judges to help them set sentences that are consistent, which ensures that all offenders are treated fairly". "Sentencing frameworks also allow for calibration of sentences to align the punishment with the severity of the offence, while taking into account contemporary criminal justice trends and societal expectations."

Sharing similar views, practising senior lawyer Peter Ong Lip Cheng said that on the downside, the framework cannot be followed rigidly to bind the hands of the judge, but has to be flexible when applied to the facts.

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

Keppel has capabilities to win business within the law: CEO

Business Times
26 Jan 2018
Jacqueline Woo

Taking risks in business is key, but there are some "bright lines" that those working at Keppel Corporation should not cross, its chief executive Loh Chin Hua told an earnings briefing on Thursday.

Mr Loh was responding to questions relating to the bribery scandal that has engulfed Keppel's rig-building unit, which dominated the question-and-answer session at the briefing.

News broke in December that Keppel Offshore & Marine (KOM) had been slapped with US$422 million in fines as part of a global settlement reached by criminal authorities in the United States, Brazil and Singapore over corrupt payments made by a former Keppel agent in Brazil.

"It's very clear - Keppel has a set of core values, and integrity is very much in the centre of it," said Mr Loh. "These core values do not allow us to act unethically or illegally. We do want to encourage all our Keppelites to continue to take legitimate business risks, for which we hope we will get suitable returns.

"But there are some bright lines that we should not cross. It's very clear to me, the board, the management ... that we cannot engage in anything illegal or unethical."

Keppel has taken a steep charge totalling S$619 million in its fourth quarter for the one-off financial penalty and related legal, accounting and forensic costs in relation to the global resolution.

Of the US$422 million in fines, Mr Loh said 87.5 per cent will be paid by the first half of this year, with the remaining to be paid by 2020.

He added that Keppel has since put in place enhanced compliance controls, including comprehensive training and certification, to prevent any repeat of such misdeeds. These include an enhanced code of conduct that has detailed anti-corruption protocols within the group, experienced compliance personnel, as well as a new whistle-blower policy.

"This is really about drawing a line and looking forward," Mr Loh said. "It is very clear to us that we have the capabilities and the solutions that will allow us to win business legitimately, within the laws, within the rules, and also ethically, and that is something that we will pursue.

Mr Loh added that the group will continue to operate in Brazil, which remains an important market.

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

Criminal appeal: Strict terms for fresh prosecution evidence

Straits Times
15 Feb 2018
Selina Lum

Court of Appeal makes clear its stand while rejecting prosecution witness' testimony

The prosecution will be allowed to introduce fresh evidence in a criminal appeal only if it meets strict conditions, even if these might be relaxed for the accused.

This was made clear by the Court of Appeal when it rejected a prosecution witness' testimony submitted as part of the State's attempt to overturn a not-guilty verdict for a 57-year-old man accused of raping his lover's teenage daughter.

The apex court - comprising Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang and Judith Prakash - held in judgment grounds yesterday that the "new" evidence could have been presented during the trial.

They also justified why courts are "more accommodating" towards fresh evidence put forward by the accused, highlighting the need to prevent wrongful convictions and the disparity in resources between the State and the defence.

"The law strains against and works doubly hard to prevent any erroneous deprivation of liberty," said the court.

In April last year, the accused was cleared of all sexual offences against his lover's daughter, who claimed that he drove her to a forested area in Punggol in a prime mover and raped her when she was between 15 and 16 years old. The man said he had never driven the vehicle, and his employer testified that the prime mover was driven by someone named Idris, who died before the trial.

The trial judge also found that there were no reasons for the girl's failure to promptly tell her family and boyfriend about the alleged assaults, and when she eventually broke her silence, her accounts were "contradictory and inconsistent".

The alleged offences were said to have taken place between 2009 and 2011 but came to light only towards the end of 2012.

The prosecution appealed, and also applied to introduce two sets of evidence - a sworn statement from Idris' son to rebut the employer's testimony, and an expert report from a senior government psychologist to address the trial judge's "misconception of what is typical rape victim behaviour".

Defence counsel Abraham Vergis of Providence Law Asia resisted the prosecution's bid.

Yesterday, the apex court rejected the rebuttal evidence but allowed the psychologist's report for the appeal, which will be heard at a later date.

Ordinarily, an appeal court will not consider new evidence unless three conditions are met: it was not available during the trial; it is relevant; and it is reliable. These criteria were laid down in the seminal English Court of Appeal case of Ladd v Marshall in 1954, which has been adopted by courts here - although a more liberal approach has been favoured in cases where the accused is appealing against conviction. In the current case, the question was whether the prosecution should be given the same leniency.

The court concluded that while a "more accommodating attitude" towards applications by accused people is justified, the conditions set out in Ladd v Marshall should continue to apply "in an unattenuated manner" to applications by the prosecution.

The court said that there is a need to avoid the prejudice that an accused person would suffer if he is wrongfully convicted or receives a disproportionate sentence. There is also a disparity of resources - the prosecution works with law enforcement agencies, including the police, which have wide-ranging powers to collect evidence, the court noted.

Finally, the court recognised that the "harrowing" experience of defending criminal charges is likely to have an effect on the accused's ability to "fully and soundly consider the nature of the evidence he will need at trial".

In the current case, the court found that the evidence of Idris' son failed to meet the condition of non-availability. The court noted that the prosecution became aware of Idris' existence during the trial, but chose not to seek an adjournment for further investigations.

As for the psychologist's report, the court found that it satisfied all three conditions.


PREVENTING WRONGFUL CONVICTIONS

The law strains against and works doubly hard to prevent any erroneous deprivation of liberty.

THE COURT OF APPEAL

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

Make family court processes more user-friendly: Forum

Straits Times
04 Feb 2018

One of the key changes announced when the Family Justice Courts (FJC) was formed in October 2014 was the streamlining of court procedures and simplifying the filing of documents to help litigants-in-person navigate the system more easily.

But as a counsellor to friends who have recently undergone divorce and other family proceedings, the feedback I have received is that the FJC is nowhere near reaching its goal. Those who were self-represented found significant difficulty in navigating the family court system.

The feedback includes:

•Court processes and procedures are not clearly stated and published.

•Calls to the FJC hotline are often unanswered and queries do not get a reply.

•Document-filing processes are distributed between several locations within and outside the courts.

•The help desk is manned by staff who are not legally trained, and able to provide only rudimentary advice.

•Statistics and information on the outcomes of past cases are not made available.

Current legal help schemes - such as the Community Justice Centre's one-time legal consultation lasting up to 20 minutes, and the Primary Justice Project, which charges $400 for an initial consultation - do not provide much help to litigants-in-person.

In fact, litigants-in-person are often advised by court staff and even judges to seek legal representation.

This goes against the trend in other jurisdictions, where self-representation is becoming more common in family disputes - which should rightly be so to reduce costs and acrimony.

Given recent reports about the high legal fees being charged by family lawyers, I urge the FJC to step up efforts to make court processes transparent and user-friendly.

Rebecca Tan Choi Li (Ms)

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

Manager faces fresh charge in Shell oil theft

Straits Times
26 Jan 2018
Elena Chong

S'porean accused of conspiring with colleague to dishonestly receive oil worth over $385,000

A Singaporean who was earlier charged with abetting to receive stolen gas oil was hit with a new charge yesterday in the multimillion-dollar Shell fuel theft case.

Marketing and operations manager Ng Hock Teck, 54, allegedly conspired with his colleague, cargo officer Alan Tan Cheng Chuan, 45, to dishonestly receive 517.8 tonnes of oil worth $385,424 around Nov 5 last year.

The charge states that the oil was transferred from Pulau Bukom to the Sentek 26 vessel at Shell's manufacturing site. Ng and Tan were then employed by Sentek Marine and Trading, one of Singapore's biggest marine fuel suppliers.

Both men, who had each been charged earlier with two counts of abetting to receive stolen oil, appeared in court yesterday. But no fresh charge was filed against Tan, who was offered bail of $30,000.

Ng was remanded for another week for investigation and will be back in court next Tuesday.

There were no new charges filed too against Vietnamese ship master Doan Xuan Than, 46, who was offered bail of $20,000. He was earlier charged with dishonestly receiving stolen gas worth more than a million dollars in total.

The cases involving Tan and Than will be mentioned on Feb 20, when surveyor Muhammad Ali Muhammad Nor, 51, and Vietnamese Dang Van Hanh, 37, will also be returning to court.

Muhammad Ali has been charged with two counts of abetment by conspiracy with several Shell Eastern Petroleum employees to misappropriate $1.3 million worth of gas oil. Meanwhile, Hanh allegedly conspired with a fellow Vietnamese national to dishonestly receive $687,900 worth of stolen gas oil transferred from Pulau Bukom to Panama-registered vessel Prime South on Jan 7.

The police seized around $3.05 million in cash, as well as a 12,000-tonne tanker during an islandwide operation on Jan 7, in what is likely the biggest oil theft case in recent years. Eight other past and current Shell employees have been remanded and will be in court next Monday.

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

Singapore's new cyber law, one step in many to make online safe

Business Times
15 Feb 2018
Amit Roy Choudhury

The passage of the landmark Cybersecurity Bill in Parliament early this month marks an important milestone in Singapore's fight against cyber threats which range from petty criminal activities to the spectre of cyber espionage and terrorism.

Despite the obvious plus points of the new Act, it is important to keep in mind that it will not, by itself, deter future attacks on Singapore. What the Act does, commendably so, is provide a comprehensive mechanism to mitigate the damage caused by such attacks. Going after the perpetrators requires a global effort which is still a work in progress.

The Cybersecurity Act covers organisations that operate critical information infrastructure (CII). These include energy, telecoms, water, health, banking, transport and media sectors, among others. Each of these sectors is at potential risk due to automation and an attack on them could have serious impact on Singapore.

There is a provision for a new commissioner of cybersecurity, who will be the CEO of the Cyber Security Agency (CSA), David Koh. The commissioner is tasked with selecting the specific organisations to designate as CII owners and apply provision of the Act as and when required.

The new Act complements the Computer Misuse and Cybersecurity Act (CMCA) by providing a regulatory framework for routine and proactive protection of CIIs.

It is important to remember that cyberattacks are like any other criminal activity - the motive is either money or information. With data, much of it stored online, considered as the new oil of the global economy, being a cybercriminal is a lucrative profession.

Criminals in one country can target victims in a distant part of the globe. This makes persecution difficult even when the criminals are identified.

The anonymity and reach of the Internet, which makes it such an attractive platform for criminal activities, is also something that has not escaped the attention of intelligence agencies as well as terrorist organisations. Cyber is potentially a new theatre of war and this complicates matters even further.

According to a new piece of research released by AT Kearney in January, Asean companies face US$750 billion in exposure from cyberattacks, as they spend only about 0.07 per cent of their GDP on cybersecurity on average, while the global spending average is 0.13 per cent.

However the good news is that Singapore is an outlier in the Asean region as it invests 0.22 per cent of its GDP on cybersecurity (2017 figures) and is ranked third globally. Singapore is a global leader in cybersecurity and has much to offer in terms of expertise.

Given the nature of the beast, the only lasting solution to cybercrime is international cooperation in dealing with the problem.

Despite a number of international efforts over the past decade, not much progress has been made. Recently, at the World Economic Forum (WEF) meeting in Davos, the Global Centre for Cybersecurity (GCC) was launched. The GCC claims to be the first global platform for cybersecurity, bringing together governments, businesses and law enforcement agencies.

ALIGNING NATIONAL LAWS

There have been similar such efforts in the past with mixed results. For example, the Budapest Convention on Cybercrime was launched in 2001 by the Council of Europe with the aim of aligning national laws to enable admissibility of digital evidence across jurisdictions.

Another such effort is the North Atlantic Treaty Organisation's Cooperative Cyber Defence Centre of Excellence based in Tallinn, Estonia. It has published the highly-regarded Tallinn Manual, a comprehensive collection of existing international treaties for cyber laws. However it remains an academic study rather than a binding piece of policy.

Closer to home, Singapore has taken the lead in signing partnerships with several countries, such as the US, for cooperation in cybersecurity. It has also reached out to help in building cyber capacity and coordination in the Asean region both with money and expertise.

While bilateral and in many cases multilateral cooperation pacts are in place, these are not going to be effective till these efforts can overcome political fault lines. That remains the biggest challenge as can be seen from the controversy that has been raging for more than a year on alleged Russian interference in the US election process.

The way forward could be to wipe the slate clean and frame a new set of universal cybersecurity laws under the auspices of the UN or any of its affiliated bodies. One could even consider setting up a global cybersecurity watchdog.

All this will require hard work and skilful negotiations. Asia - given its fast growing digital economy, high number of digital users, and economic heft - will have to take the lead.

Singapore is ideally positioned to lend both its expertise as well as international credibility in building up a global consensus. It has already, on the latter, been taking the lead. It will be a long-drawn affair but worth the effort. Only when such a setup is in place will Singapore be truly safe from harmful cyberattacks.

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

PAP's internal protocol on MP letters

Straits Times
04 Feb 2018

The People's Action Party (PAP) has "no specific governing rules" on the sending of MP letters to the courts or other agencies or ministries, said PAP Whip Chan Chun Sing. However, its "longstanding internal protocol" states that:

• It is the MP's duty to help his residents whenever possible. This includes cases when residents approach MPs at Meet-the-People Sessions to make representations on their behalf when the resident feels that he is unable to do so himself.

• For policy matters, the MP may write to the relevant ministries or agencies.

• If a resident has run into some problem with the law, the MP will listen carefully and sympathetically to the resident to understand his problem.

• If the resident requests the MP to do so, he will write a letter to present the resident's case . The letter will be based on the resident's assertions, as the MP will usually not be in a position to verify the facts stated by the resident.

• Who the MP's letter is addressed to will depend on what stage the case is at, and the nature of the request.

• The MP may write to the Attorney-General's Chambers (AGC) under these two conditions - if charges have not yet been brought against a person, and if the MP is appealing for the AGC to not pursue charges.

• Where the case is already before the courts, and the appeal concerns a matter that is for the court to decide, such as an appeal for leniency in sentencing, MPs are generally advised to write to the Ministry of Law (MinLaw). MinLaw will then forward the letters to the courts for consideration.

• In urgent cases, such as if the court hearing is in the next few days, MPs may sometimes use their discretion to give letters by hand to residents to be used in court.

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

Family lawyers bring empathy, objectivity in settling cases

Straits Times
25 Jan 2018

We thank Mr Peter Ong Teck Sin for his thoughts in his letter (Limit role of lawyers in family justice system; Jan 20).

While it is not mandatory for parties to engage lawyers to represent them in divorce proceedings, they often do so because they recognise that divorce outcomes have far-reaching, long-lasting and deeply impacting consequences on both parties and the children involved.

Lawyers offer the best combination of empathy and objectivity necessary to make right choices.

Because of their experience and training, they are often able to heal the familial conflict by offering support and enabling parties to see the light in spite of the heat in a matrimonial dispute.

In his letter, Mr Ong appears to imply that the complexity of family proceedings is measured by the size of the matrimonial asset pool. This is not the case.

At the heart of most divorce proceedings is the issue of the best interests of the children and a spouse's concern over accommodation and financial security.

Compassionate family lawyers enable parties to part ways less acrimoniously and with less trauma for their children.

Mr Ong also theorises that time and effort spent by lawyers would be reduced in a "low bono" model.

The Law Society assures Mr Ong that standards of competence and ethics do not fluctuate depending on whether a legal matter is pro bono, low bono or full fee paying.

In family law practice, in particular, access to justice is important, and while legal aid is available, there are still clients who do not qualify for legal aid but at the same time are unable to afford a lawyer.

Family law practitioners often sacrifice their own family time by attending to their clients, even after office hours and on weekends.

Sometimes, the clients' issues are not legal ones, but the lawyers take the calls anyway.

Yet, these lawyers continue to remain passionate about practising family law. They seek to make a difference in their clients' lives by living out the calling of "lawyer-healers".

Shawn Toh

Director, Communications

The Law Society of Singapore

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

Looking ahead to Budget 2018

Straits Times
15 Feb 2018
Vikram Khanna

Time to look at new sources of revenue and areas to cut spending as big bills loom

Raising taxes "is not a question of whether but when", said Prime Minister Lee Hsien Loong at the PAP Convention last November. This not only raises the issue of which taxes need to be raised - but also of which new ones can be introduced, and which, if any, can be cut. Some issues on the expenditure side of the ledger are worth examining as well.

The need to raise taxes stems from the fact that the government has some huge bills to pay.

Mr Lee mentioned some of the big ticket items that remain to be funded, including the high-speed rail to Kuala Lumpur, the rail terminus in Jurong, surrounded by a new lake district, and a doubling of air and sea-port capacity.

Then there are expensive ongoing projects, including the $4.5 billion industry transformation programme, the building of the Jurong Innovation District, the upgrading of the MRT, the expansion of the medical infrastructure through the building of 17 new healthcare facilities and enhanced spending on security, which Finance Minister Heng Swee Keat has indicated will be a "major spending item" in this year's Budget. Spending on healthcare, education and training also needs to go up.

When it comes to choosing which taxes to raise, let's focus on the big three which collectively contribute 75 per cent of total tax revenue. They are corporate tax (which accounts for about 29 per cent), GST (24 per cent) and individual income tax (22 per cent).

Raising corporate tax is a tempting option. At 17 per cent, Singapore's corporate tax is the lowest in Asean and among the lowest in the world. Economists estimate that even a 1 per cent rise would yield an extra $800 million.

But especially after the US tax reform passed in December, which will slash US corporate tax rates from 35 per cent to 21 per cent this year and which other countries might emulate, there is increased pressure on economies like Singapore, which need foreign investment, to maintain a competitive corporate tax rate. Raising it at this stage would amount to swimming against the tide. It would also send the wrong signal.

Hiking personal income tax rates - especially for the top bracket - is barely a better option. It would make the tax system more progressive, but would not yield much additional revenue. The 2015 Budget raised income tax rates for the top 5 per cent of taxpayers. But income tax collections rose by just $260 million in 2017 or less than 0.07 per cent of GDP. So raising personal income tax rates further seems hardly worth the trouble - except as a symbolic gesture aimed at inequality.

While cutting personal income tax would cause revenue losses, there is a case for enhancing earned income tax reliefs, which for taxpayers below 55 have remained stuck at $1,000 for several years. Significantly enhancing this relief - which is only available to those who work - will not only boost consumption but also incentivise more people to join the workforce and thus help raise the workforce participation rate, particularly for women. Higher reliefs for older workers may also help them stay in the workforce longer.

RAISING THE GST

As a revenue-raising move, hiking the GST is the best bet. Even a one percentage point hike would raise tax revenue of about $1.6 billion, equivalent to about 0.4 per cent of GDP.

Several economists have recommended raising GST by 2 percentage points over two years. This sounds reasonable. Our current GST rate at 7 per cent is among the lowest in the world and has not been raised since 2007. Even at 9 per cent, it would be much lower than most other countries. The average rate in developed countries is close to 20 per cent. The government could raise even more revenue if it lowers the threshold for GST registration from the current $1 million in taxable turnover to $500,000. In most countries the threshold is even lower than that.

The GST is, however, a regressive tax which penalises lower-income groups disproportionately. But the regressive effects can be mitigated by providing GST offsets to low-income groups as in the past, and zero rating essential items like basic foods and medicines.

Among other potential sources of revenue, much has been said about possible wealth taxes - that is, taxes on property and capital gains as well as estate duties.

As revenue earners they will not be significant compared to GST. For example, property tax (which was already raised with effect from 2015) accounts for only 9 per cent of total tax revenue. A capital gains tax would be a big negative for the financial services industry as well as the property market, which is already subject to cooling measures, including additional buyer's stamp duty (which is not included in property tax), and is faced with interest rate hikes.

Nor have estate duties been high revenue earners. During the period 2000 to 2008 (when estate duties were scrapped), they yielded an average of $136.8 million a year. Re-introducing estate duty would simply lead to more creative tax planning on the part of the wealthy, some of whom might also choose to move their family offices and tax residence out of Singapore. In short, raising wealth taxes aimed at soaking the rich, while high on symbolism, is likely to bring little joy in terms of revenue.

SUGAR AND E-COMMERCE

Finally, on new taxes, the case for a sugar tax is as compelling as the case for a tobacco tax. Singapore has the second highest incidence of diabetes in the developed world, according to the International Diabetes Federation, with one in 9 residents already afflicted.

The government has declared war on diabetes but has taken no fiscal measures to combat the disease. This needs to change. With several countries having introduced sugar taxes in recent years, there is now evidence that it has been effective in reducing consumption of sugary drinks - for example, in France, Mexico and several cities in California.

A sugar tax would also help reduce the costs of treating diabetes. If it is to move the needle on consumption, it should be hefty - just as it is on cigarettes. A good role model is the UAE, which has a 50 per cent tax on sugared soft drinks.

A tax on e-commerce transactions has also been much discussed. There is a clear case for this - brick-and-mortar merchants have to pay GST, but overseas online vendors do not. However, there are major practical problems with implementing such a tax, including the fact that many online merchants do not have a local presence, difficulties with verifying taxable transactions and collecting the tax. These issues would need to be resolved before an e-commerce tax can be imposed.

THE EXPENDITURE SIDE

On the expenditure side, besides the big-ticket infrastructure related items, there are a few ideas worth flagging. One relates to defence spending, which at more than $14 billion last year is the highest expenditure item in the Budget - and also the least transparent in terms of how the money is spent.

While it goes without saying that defence is critical to national security, the security challenges facing Singapore have changed in recent years. The key threats are terrorism, cyber attacks, piracy at sea and violent extremism - all of which require expenditures of a different type than conventional defence spending on big weapon systems.

Moreover, while Mindef would continue to play a key role to protect against such threats, the spending needs to be spread across several ministries. In light of this change of emphasis, a case can be made that defence spending needs to be capped at a lower level or even reduced in real terms. This would free up resources for social expenditure, where the needs are pressing.

Within social expenditure, health and education get the biggest share. While health spending will automatically go up with the expansion of insurance coverage, there is need for more tightly enforced limits on medical fees and charges, which are often arbitrary and excessive.

If price controls are unworkable, the government must find other ways - for example, higher deductibles on insurance - to prevent overconsumption of health services. To reduce the burden on the state, some health spending can be shifted to firms by enhancing tax deductions for medical expenses that they incur. Individuals can also be encouraged to take up private health insurance by making premium payments tax deductible.

SPUR TO INNOVATION

In education, there needs to be a shift of emphasis from funding formal, institution-based learning to more vocational education, including through short courses that will enable workers to more quickly retrain for new jobs. Higher tax deductions for training expenditure by companies will help. But this would only apply to company-sponsored training. One problem holding back the life-long learning programme is that companies do not give enough time off for self education, especially in a tight labour market.

While we have leave for maternity, paternity, sickness, childcare and even adoption, not many companies grant education leave. This should be mandated for at least some approved courses.

When it comes to incentives for innovation, a key challenge for the government will be to address the gap created by the expiration this year of the Productivity and Innovation Credit (PIC) scheme which provides generous tax deductions and cash payouts for activities that spur innovation and has had a good take-up rate.

Among the options proposed are to limit to PIC to only R&D spending, or enhance tax deductions for R&D and other desired activities. Another measure is to provide tax incentives to encourage companies to create "sandboxes" for innovation in fields other than the financial sector - where the Monetary Authority of Singapore has already created such a facility.

But perhaps the most important step the government can take to boost both innovation and growth would be to relax curbs on skilled foreign workers. Many companies have pointed out that the biggest obstacle to innovation that they face is not the lack of incentives or capital but the shortage of skilled workers. In some areas, such as data science, cyber security and artificial intelligence, the shortages are acute.

With the working-age population projected to decline from 2020, relaxing curbs on the import of, at least, skilled workers would also be the most effective way to deal with our demographic challenge in the short to medium term.

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

Law Society seeks to boost gender diversity

Straits Times
03 Feb 2018
K.C. Vijayan

Task force formed to look at women-in-workplace issues like mentoring and office harassment

The Law Society has formed a task force to look at some women-in-the-workplace issues, in a move to boost gender diversity in the legal industry.

The group will look at such issues as mentoring of new lawyers, role models in the profession for women lawyers and office harassment.

Its target is to get initiatives ready by International Women's Day, which falls on March 8, said the society's president, Mr Gregory Vijayendran, who started the group.

He disclosed this when contacted by The Straits Times after a debate last week on whether diversity and inclusion will boost business and should, therefore, be a management priority.

Eight top lawyers, including five Senior Counsel (SC), crossed swords in an exchange that could coax law firms on the benefits of being more diverse and inclusive in terms of gender, age and race.

The debate was organised by the Singapore Corporate Counsel Association (SCCA).

The pro-diversity team cited figures, among other things, to show why and how it would increase business and, hence, should be a priority of senior management.

But the opposing team countered, among other things, that hiring and promotions should be based on merit, not on quotas and legislative measures.

Mr Vijayendran noted that the legal sector has been generally forward-looking in promoting greater diversity and equal opportunities.

On the Supreme Court Bench is Judge of Appeal Judith Prakash in addition to several women judges.

Women are also visible among SC and there are many who are senior partners. And almost half of the legal profession are women.

"No prescriptive, gender balancing formulas were considered necessary, historically. Having said that, there are obviously areas where progress is still needed," he added.

Women lawyers contacted by The Straits Times support the Law Society's move even as they acknowledge that their profession is ahead of other sectors in terms of women representation at all levels.

"Still, we should take a fresh look at things from time to time to ensure the needs of female lawyers continue to be met as the profession matures," said senior lawyer Simran Toor.

Criminal lawyer Diana Ngiam said the move is relevant, citing issues like having maternity leave provisions that will ensure daily court work is not disrupted and clients' concerns are addressed.

The inaugural SCCA debate comes at a time when issues related to gender, age and minority interests are being scrutinised.

At an event last week, Minister for Culture, Community and Youth Grace Fu highlighted the need to address the scarcity of women on corporate boards here.

The SCCA debate was conducted under Chatham House rules, which mean the statements were not to be attributed to participants.

It was peppered with incisive wit and humour, and ended with no winner declared.

Speaking in his personal capacity after the event, SCCA president Wong Taur-Jiun said Singapore has been "very progressive in many areas of diversity - for inclusion of women in the workforce, for multiculturalism, for anti-ageism".

"It is therefore easy to become complacent and say we don't need to do more," he added.

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

Legal help for freelancers working in creative arts

Straits Times
25 Jan 2018
Gracia Lee

Free handbook launched aims to inform and educate such artists about their legal rights

After freelance videographer Derrick shot and edited a video for a client last year, she told him it did not meet her standards, demanded a full refund of $4,000 and removed his rights to the video.

But he later found out that she had released a video containing about 75 per cent of his work. He was not paid or credited for any of it.

"I did not (sign) an official contract or have the money to engage a lawyer," said Derrick, who did not want to give his full name.

In his four years as a freelancer, he has had to deal with clients delaying payment for up to six months or paying less than the agreed sum.

At the launch of a free legal handbook, Advocates For The Arts, on Tuesday, Mr Adrian Tan, vice-president of the Law Society of Singapore, advised freelancers to sign a contract with clients containing exact terms and conditions that protect them from such mistreatment.

He encouraged freelance workers to get a professional lawyer to draw up a one-time contract that can be reused with different clients. Key terms should include the names of both parties, what services are to be provided, the amount, mode and timing of payment, and dispute-resolution methods.

The new 12-chapter handbook contextualises laws for the creative arts industry, and aims to inform and educate artists about their legal rights. It was launched by the Law Society Pro Bono Services (LSPBS) and the National Trades Union Congress at the NTUC Centre in Marina Boulevard.

It provides information on contracts, insurance, copyright and trademark essentials, and dispute resolution options. Written in layman terms, it also features cartoon drawings.

In 2016, there were more than 40,000 professionals, including freelancers, in Singapore's creative arts industry.

Chief executive of LSPBS Lim Tanguy said: "Although (hiring a lawyer to draw up a contract) may seem like an upfront cost, it is a very good investment because it makes you look more professional and also educates clients on key markers like performance."

He added that contracts should also include agreed details on intellectual property rights, such as the owner of the work's copyright and what purposes each party can use the work for, as well as insurance if there are work-related risks.

Mr Patrick Tay, assistant secretary-general and director of the legal services department at NTUC, said: "We hope to make sure... workers in (the creative arts) sector, whether freelance or employed, know their rights and privileges and are safeguarded and protected."

Ms Stella Chung, a freelance scriptwriter in her 30s, is no stranger to unfair treatment. In 2014, she was fired by a production house and denied the agreed payment of $150 for a draft of a TV series episode she had worked on for three months.

She lodged a complaint against the company to the then Media Development Authority.

When the episode aired, she found that 70 per cent of the script was her work although she had not received payment or credit.

She said the handbook will empower freelancers to voice their legal rights.

The handbook will be available for downloading next week on the NTUC U portal (www.ntuc.org.sg) and Law Society Pro Bono Services site (http://probono.lawsociety.org.sg/Pages/default.aspx).


40,000

Number of professionals, including freelancers, in Singapore's creative arts industry in 2016.

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

Keppel O&M unit served summons in new law suit by EIG

Business Times
14 Feb 2018
Tan Hwee Hwee

Keppel Corporation's offshore and marine (O&M) unit has been served with a summons in a new law suit filed by EIG Global Energy Partners and some of its managed funds in the United States.

The conglomerate maintained in a disclosure about the summons and the law suit after Tuesday's trading close, that "the reported cause of action is without merit" and that its O&M unit "will vigorously defend itself".

An article published on Feb 8 on the Law360 website said that the EIG funds had launched a US$660 million racketeering suit in New York's federal court against Keppel O&M (KOM) pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO).

The civil suit concerns KOM's role in a Brazilian bribery scheme connected to a failed drill ship venture, for which Keppel recently reached a US$422 million settlement between KOM and the prosecutors in the US, the article said.

In 2016, Keppel Corp, KOM, Sembcorp Marine and Jurong Shipyard were added as defendants along with other shipyards and entities in the lawsuit filed by EIG and its eight managed funds with a district court in the US.

EIG had alleged in the 2016 law suit that it was misled by Petrobras, along with other named yards and entities to invest over US$221 million of equity in Sete Brasil, a rig-building business unit of Petrobras.

Sete Brasil went on to award rig-building contracts valued at about US$10 billion to business units of KOM and SembMarine.

The US District Court, District of Columbia, subsequently ruled in 2017 in favour of Keppel Corp, KOM, SembMarine and Jurong Shipyard and dismissed the law suit filed by the EIG funds.

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

Make clear the boundaries on MP petition letters

Straits Times
03 Feb 2018

The submission by an appellant of an MP's letter to downplay her culpability in a court case is indeed troubling, as Justice See Kee Oon stated in his judgment (Drivers who cause harm: Sentencing framework set out; Feb 1).

I believe that for years, residents have been going to Meet-the-People Sessions with traffic violation penalties, in the hope that their respective MPs' letters to the authorities can get their penalties waived or reduced.

This is tantamount to blurring the separation of powers entrenched in the Singapore Constitution to ensure that the state government is divided into three distinct branches: the legislative, the executive and the judiciary.

The branches have separate and independent powers and areas of responsibility, so that the powers of one branch are not in conflict with the powers associated with the other branches.

Meet-The-People Sessions are intended for MPs to meet their constituents to understand the problems on the ground and render assistance in areas of need, such as financial assistance, job search, Housing Board-related problems, immigration issues, and appeals for school admissions.

However, when residents seek an MP's help after violating a law, it crosses the line of the MP's role in the legislative branch (making laws) into the executive (where the laws are executed) or, worse, the judiciary (where the law is interpreted and applied).

It is understandable that an MP would wish to plead the cause of his resident, to be seen as caring and able to resolve the problem.

It is, therefore, time that Parliament steps in to make a clear decision that all MP cannot send petition letters to the authorities or the judiciary if the cases involve a violation of any law or regulation, and that the relevant authorities cannot entertain any such petition letters.

Otherwise, it makes a mockery of our laws and the legal system.

Agnes Sng Hwee Lee

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

Creditors give go-ahead for Nam Cheong's plan to restructure debt

Straits Times
25 Jan 2018

Troubled marine firm Nam Cheong has got the green light from creditors to proceed with its debt restructuring plan.

The vote in favour was overwhelming, with creditors who were present representing 94.139 per cent of the total value owed backing the restructuring.

This equates to a favourable vote from creditors representing US$338.7 million (S$443 million) in money the firm owes.

All institutional lenders of Nam Cheong's group of companies named in the Singapore scheme, accounting for US$159.29 million of bank loans to the group, were represented.

Also present at the vote were holders of medium-term notes totalling $365 million.

Observers at yesterday's meeting said the favourable vote was within expectations.

"Retail investors, accounting for the bulk of the notes issued, seemed resigned from Day One," was one comment.

"Many don't see alternatives on the table - it's either you take something or go with nothing."

iFast bond specialist Ang Chung Yuh said note holders may have been discouraged to vote against the scheme because they come behind bank lenders when it comes to payouts and could incur heavier losses if the company goes into liquidation.

Scheme creditors also reached a decision between two recovery options offered for what is deemed a sustainable portion of Nam Cheong's outstanding debts.

Creditors accounting for US$319.8 million in value owed opted for the seven-year term loan. The rest went with a cash-out option pegged at a recovery rate of between five US cents and 20 US cents for every US$1 sustainable debt held.

Nam Cheong said 30 per cent of the RM50 million (S$16.8 million) pledged as new equity by its anchor shareholder, Mr Tiong Su Kouk, will be used to fund the cash payout. The other 70 per cent will remain as working capital.

Mr Tiong deposited the money into an escrow account ahead of the creditors' meeting this week.

The three schemes filed for Nam Cheong's debt revamp have to be sanctioned by courts in Malaysia and Singapore.

Nam Cheong's scheme document reflected US$866 million of contingent liabilities tied to contracts with shipyards in China.

Drew & Napier deputy chief executive Sushil Nair, as the legal adviser for this debt revamp, said at yesterday's meeting that the settlement of the shipyard claims will be an issue the Singapore High Court will consider when sanctioning the schemes.

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

Doctored headline: 5 in Facebook group apologise

Straits Times
14 Feb 2018
Seow Bei Yi

Five administrators of a Facebook group have apologised for the posting of a doctored article on its page on Feb 2, the Attorney-General's Chambers (AGC) said yesterday.

The post, made by delivery driver Neo Aik Chau, 38, involved a newspaper report with an amended headline. It claimed a lawyer - who is an MP from the People's Action Party (PAP) - had saved the people who misused City Harvest Church funds from harsher sentences.

"The Facebook post made false and baseless allegations, and, in doing so, had impugned the impartiality and integrity of the Court of Appeal," said the AGC, adding that it wrote to the five last Friday.

Among them was Madam Ng Kwee Lay, who approved Mr Neo's post for publication on the page of the Chinese-language Facebook group, whose name translates to "Policy discussion forum".

"By omitting to remove the Facebook post from the Facebook group between Feb 2 and 5 despite being aware of its publication, Mr Ong Sooi Eng, Mr Lee Leng Kok, Madam Tan Siew Tee and Mr Yap Tze Kiat, as the other administrators of the Facebook group, had also caused publication of the Facebook post," the AGC added.

Mr Neo's post was of Chinese-language daily Lianhe Wanbao's Page 1 report, but with a false headline.

The original headline said an outdated law saved church founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them, referring to Mr Edwin Tong, an MP for Marine Parade GRC who was Kong's lawyer in the criminal trial.

The AGC stressed in its latest statement that administrators of Facebook groups or other similar online platforms are responsible for the content published.

"They are not immune from liability even though they are not the authors of the offending content," the AGC said, adding that the five administrators had committed contempt of court under Section 3(1)(a) of the Administration of Justice (Protection) Act 2016.

The five complied with the AGC's requirements to post an apology and undertake not to allow any posts amounting to contempt of court to be published on the Facebook group, or to commit any other act with the same effect.

The apology posted on the group's page read: "We, as administrators and moderators of the Facebook group, unreservedly apologise for scandalising the Court of Appeal by causing publication of the 2 February 2018 Facebook post through Ng approving Neo's post for publication, and all of us thereafter allowing it to remain on the Facebook group."

Written in both English and Chinese, it added that the Feb 2 post had been removed from the group, the administrators' Facebook accounts and all their other social media accounts and platforms.

The AGC did not say in its statement if the apology meant no further action would be taken against the administrators.

Last Thursday, Mr Neo apologised on his personal Facebook page for posting the doctored article, saying: "I unreservedly apologise for scandalising the Court of Appeal by publishing the post. I have removed the post from the Facebook group, my Facebook accounts and all my other social media accounts and platforms."

Seow Bei Yi


Administrators of Facebook groups or other similar online platforms are responsible for the content published. "They are not immune from liability even though they are not the authors of the offending content," the AGC said.

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

City Harvest case: Final verdict triggers review of CBT law; Shanmugam to make ministerial statement

TODAY
02 Feb 2018
Wong Pei Ting

In the wake of the apex court’s decision to uphold the reduced sentences of six former City Harvest Church (CHC) leaders, Law and Home Affairs Minister K Shanmugam said on Thursday (Feb 1) he will deliver a ministerial statement in Parliament — which sits next week — on what he described as a “serious matter”.

Mr Shanmugam made the brief remarks on his Facebook page, as he referred to a separate statement issued by the Attorney-General’s Chambers (AGC) saying it will work with the relevant ministries to review the Penal Code, “to ensure that company directors and other persons in similar positions of trust and responsibility are subject to appropriate punishments if they commit criminal breach of trust (CBT)”.

The public statements by Mr Shanmugam and the AGC came after the five judges presiding over the case found that a review was “not only essential but also long overdue owing to the dated nature of the provision (on CBT)”.

Delivering the judgement in a packed courtroom, Judge of Appeal Andrew Phang said the apex court agreed with the High Court’s 2-1 majority ruling last April that an “agent” under Section 409 of the Penal Code (aggravated CBT) does not include directors of corporations, governing board members, key officers of charities or officers of societies. The latest ruling means Section 409 has been wrongly interpreted on some occasions for the past 40 years.

Until last April, the existing position in Singapore has been based on a High Court decision in a case involving Tay Choo Wah and the Public Prosecutor, which was heard between 1974 and 1976. The ruling then found that directors who misappropriate the property of a company or organisation they are entrusted with are liable for a more serious offence under Section 409 of the Penal Code, which carries a higher maximum jail term of 20 years.

The AGC noted that in arriving at the verdict, the Court of Appeal overruled the 1976 High Court decision. “That was the position consistently taken by the courts since 1976, until the High Court which heard the Magistrate’s Appeal for the present case,” it added.

The Court of Appeal has now ruled that company directors, as well as governing board members or key officers of charities and officers of societies, who commit CBT of company property are only liable to be punished under section 406 of the Penal Code (plain CBT) which provides for a maximum sentence of seven years’ imprisonment. “In contrast, employees of a company who commit criminal breach of trust are liable for up to 15 years’ imprisonment,” the AGC pointed out.

After the High Court’s decision last April — which slashed the CHC leaders’ jail terms to between seven months and 3.5 years, down from 21 months to eight years — Mr Shanmugam swiftly underlined what was at stake: There were “serious implications” for other cases, including those involving corruption, against directors.

“We will have to consider, as a matter of policy, what other steps to take because we cannot relax our stand on (corruption),” Mr Shanmugam said. He also made clear that the Government believed the original sentences should have been even heavier.

DEFINITION OF ‘AGENTS’

Summing up the judges’ 152-page written judgment, Judge of Appeal Phang said the shaping of the remedy for the gap, or lacuna, in the law for CBT “should be left to Parliament”, lest the court becomes a “mini-legislature”.

“The courts were ill-suited, and lacked the institutional legitimacy, to undertake the kind of wide-ranging policy review of the various classes of persons who, having regard to modern conditions, deserve more or less punishment for committing CBT,” the judge said.

In the written judgement, the judges said the court “cannot impermissibly add to or take away from statutory language”, or practise “legal gymnastics” by stretching laws unreasonably. They also noted that Section 409 of the Penal Code — which was enacted more than 150 years ago with its language materially unchanged since — is “of considerable vintage”.

Taking into account the historical context of “agents” used in Section 409, Judge of Appeal Phang said the word refers to “a class of persons” in the 19th century that includes “mercantile agents”, or “commission agents” who played a central role in the flourishing entrepot trade of Singapore — then a British colony — right from its founding in 1819.

The “agents” were “an independent, powerful and wealthy professional class” in the 19th century, and should be taken as a “professional agent” – one who professes to offer his agency services to the community and from which he makes his living, for example, Judge of Appeal Phang pointed out.

He warned that where a provision fails to evolve with the times, “the impulse to augment the statutory provision in a manner that will give effect to contemporary models of justice — or simply to do what the court perceives to be justice in the particular case before it — may become urgent and overwhelming”. But the court “cannot give way to this impulse and must remain guided by statutory language and legislative purpose”, he reiterated.

IMPLICATIONS ON PAST CASES

The prosecution, led by Deputy Attorney-General Hri Kumar Nair, had argued that the High Court’s decision in the CHC case “gives rise to a conflict of judicial authority in Singapore”, by upending a long-held principle of having heads of organisations who commit CBT face the harshest penalties available. In the past four decades, there were 16 reported cases of directors convicted under Section 409 of the Penal Code, the prosecution pointed out.

Law academics whom TODAY spoke to said the apex court’s ruling raises questions about whether redress should and can be made to these directors but they stressed that there was no injustice done to them.

“The law was so understood, imperfectly as we now know, these past 40 years,” said Singapore Management University (SMU) law don Eugene Tan.

He said that even if a law has been applied incorrectly, it “does not amount to a miscarriage of justice”, as the cases dealt with should generally be accorded a “status of finality and immutability”, unless there are grounds or reasonable doubts that the convictions are wrong in law. “The Court of Appeal was fully aware of these precedents but it is not bound by them,” Assoc Prof Tan explained.

SMU law lecturer Benjamin Joshua Ong agreed that there was no injustice done to the 16 directors as their convictions were on the basis of the 1976 High Court decision in the Tay Choo Wah case.

“Even though that case has now been shown to have been wrongly decided, it clearly represented the law as it stood at the time those directors were convicted. Therefore, the persons subsequently convicted cannot be said to have been taken by surprise by the law,” Mr Ong said. He pointed out that it “was always open to (those convicted) to attempt to challenge the Tay Choo Wah decision” but it remained unscrutinised until the CHC case — a point that the Court of Appeal judges also made, saying that “limited weight can be given to its longstanding nature”.

Mr Ong said he agreed with the apex court that Section 409 of the Penal Code is in need of “serious overhaul”. “Any reform by the courts by way of interpretation would be piecemeal in nature and potentially lead to even more inconsistency in the law,” he added.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved

Why update to Medical Act matters

Straits Times
25 Jan 2018
Salma Khalik

Key changes include the complex issue of making health records scheme compulsory and banning some therapy treatments

A Bill passed nearly 40 years ago, which required the licensing of bricks-and-mortar premises delivering healthcare such as hospitals, medical clinics and laboratories, is about to be revamped for the age of digital doctors and in-the-community care.

The proposed Healthcare Services Bill, expected to be passed in Parliament this year and to come into force next year, will replace the 1980 Private Hospitals and Medical Clinics Act.

Technological advances in medical care and Singapore's ageing population, who need at-home care across a range of providers, are taken into consideration in changes that propose licensing based on the services provided, rather than physical premises. Much of the Bill is straightforward, such as the need, qualifications and role of a clinical guidance officer for all licensees to be the person at whom the buck stops.

However, there are other aspects that not only affect professionals and businesses, but which should be looked at by the public to see if they are comfortable with them or to suggest improvements.

The public can give feedback on the draft Bill to the Ministry of Health (MOH) until Feb 15.

Singaporeans are more aware of their rights today - so people who want a say should take the trouble to scrutinise the 106 pages of the proposed Bill and the 29 pages of annexes. Here are some aspects to take a closer look at.

CENTRALISED RECORDS

The Bill would make it mandatory for all healthcare institutes, including laboratories, to input patient data in the National Electronic Health Records (NEHR). Currently, the NEHR scheme is a voluntary one.

The Bill details what needs to be put in, who has access and what happens if someone infringes the rules.

A lot has already been said over the past year once it became clear that the ministry's intention was for all to get on board. Concerns raised include liability for errors, patient's wish for confidentiality and whether information in the system could be used against them when seeking new employment or when buying insurance. Some of these have been addressed in the Bill.

By having a patient's medical history, doctors - especially in emergencies - will have a clearer picture of the health and medication of a patient, even an unconscious one.

Doctors ordering tests will be able to compare the results with similar previous tests to know if there has been an improvement or if the condition is getting worse.

The medical history will also be a rich source of information for researchers, who may obtain anonymised data through proper channels. Their research could lead to better healthcare provision for all in the future.

The way it now stands, only healthcare professionals are allowed access to a patient's details, and only for the purpose of treating the patient. So a doctor doing a health check for an employer cannot refer to a person's medical history. Similarly, insurance companies cannot get their doctors to look up the medical history of people who want to take up health insurance or people who are making claims to find out if the person has pre-existing diseases that void their insurance coverage.

POSSIBLE LOOPHOLE

But there is nothing in the Bill that stops insurers and employers from getting the person to sign on to access his own medical history in the NEHR - since access will be available to individuals - and showing it to them.

Perhaps this, too, should be clearly prohibited to prevent companies from using loopholes to bypass the spirit of the Act.

Already, the Life Insurance Association of Singapore disagrees with the prohibition and hopes to convince the ministry to give them access. Its point is that if people are honest, they should not fear insurers checking their medical history.

If this is done before a policy is signed, then insurers cannot exclude any coverage in future. Insuring people for undeclared medical problems they know they have is unfair to other policy holders - as payment for treatment comes from the premiums everyone pays.

But some people fear that insurers, with their eye on the bottom line, might zero in on minor problems and use them to get out of paying for treatment. Or worse, wrongly inputted data or a mistake in an earlier diagnosis might deprive patients of rightful coverage.

This subject bears discussing, for both sides have valid arguments.

OPTING OUT

Some people may not want some of their medical history in the system for various reasons. For example, those with mental illness or sexually transmitted diseases may feel embarrassed should any doctor they consult in future call it up.

The Bill now allows two ways for them to opt out.

The option the ministry prefers is for people to have their medical information put into the system, but not allow it to be accessed. Should they later change their mind and want to be part of the system, their historical data will be available.

The other is to have no data put into the system at all. Should they later change their mind, only new data would be put in. So there will be no historical medical data for them. (This is currently not reflected in the Bill, but will be in the final version, MOH said.)

The second option is clear-cut: They are simply not in the NEHR.

As for the first option, while doctors are not allowed access to the medical records, the records are open to a request by a court of law. So they are not entirely out of bounds.

They may also be legally accessed in an emergency department if information about the person's medical history is needed in a life-threatening situation. Frankly, this is to the person's advantage.

But should there be a third option? This could be to let people selectively opt out. So general health information is put in, but not what a patient might feel is "shameful" or want to keep private, such as an abortion by an unmarried woman. This might be administratively more tedious, but if it gets more people onto the NEHR, it might be worth the effort.

And can someone who is on the system later decide to opt out? Though it is not spelt out in the Bill, MOH says it can be done. However, any information already in the system will not be removed but will be locked from access.

Dr Ho Kok Sun, a colorectal surgeon in private practice, suggested that opting out should also not be onerous - now it must be preceded by counselling, while those who do not want data in the system will be considered on a case-by-case basis.

He also asked what doctors should do if the medical history in the NEHR differs from what the patient says: "Do we trust the NEHR to be accurate, or do we trust the patient and ignore the NEHR?"

Meanwhile, Dr Tan Tze Lee, president of the College of Family Physicians, asked why foreigners seeking treatment here should be included in the NEHR. This, the college feels, would undermine Singapore's efforts to be a medical hub.

He said: "Foreign patients who may not wish to have their data submitted would likely choose to go to other centres like Hong Kong, Malaysia and Thailand."

Should all foreigners be exempt? Or should they be included if they live and work here, but exempt if they are not residents?

DANGEROUS TREATMENTS

Aside from the NEHR, there are other proposals that could do with some public airing, such as prohibiting unsafe practices or services.

While it sounds like a no-brainer, a look at some of the proposed treatments makes one wonder.

They include chelation therapy - where a chemical is injected into the bloodstream to remove heavy metals and minerals in the body - which is legal in Canada; and bio-identical hormone replacement therapy, with therapeutic claims, which some doctors here now offer.

While applauding increased safety features, one wonders how thorough the studies are on the therapies before they are banned? Is there a medical bias against alternative remedies?

Some of the aesthetic treatments on the list, such as microneedling dermaroller (these can be bought on the Internet for home use) and mechanical massage may not work, but are they truly dangerous?

Would having doctors warn patients that there is no data on the effectiveness of such treatments be better in some cases? Perhaps prohibition should be limited to treatments that truly pose a danger.

MISLEADING NAMES

The Bill also states that terms and names must not mislead or cause confusion. So once the Act is in force, clinics cannot use "National" or "Singapore" in their names without permission, as they connote a national body. This does not affect those already so named.

Should this be expanded to prevent other misleading signage, such as general practitioners claiming to specialise in aesthetics - not wrong but implying a specialty that does not exist?

Perhaps all clinics should have prominent signs that state if the doctors are GPs, family physicians or registered specialists. The same goes for dentists.

Given the complex issues involved, hopefully the authorities, having asked for feedback, will take a serious look at what is submitted.

• Have your say: For more details and information on how to submit feedback, go to www.hcsa.sg.

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

MAS sets out e-payment guidelines for banks, consumers

Business Times
14 Feb 2018
Jamie Lee

Regulator outlines customers' liabilities in the event of unauthorised transactions, banks' responsibilities in notifying customers of transactions

Major retail banks offering mobile payments options here will effectively have about six months to ensure proper notification of e-payment transactions by their customers, as the regulator moves to set standards for consumer rights in this space.

To spur a wider adoption of e-payments in Singapore, the Monetary Authority of Singapore (MAS) on Tuesday outlined the liabilities held by these customers in the event of unauthorised transactions, and set out the banks' responsibilities in notifying customers of e-payment transactions so that account holders can keep track of digital fund flows.

MAS said banks should offer transaction notifications so that account holders can monitor their accounts.

At the minimum, the banks should send account holders an SMS or e-mail of all e-payments in and out of either their bank accounts or mobile wallets holding credit cards, once a day. The information should identify the recipient, and each transaction's amount, date, and time.

It plans to publish the guidelines in the first half of this year. The proposed guidelines came after Singapore launched PayNow, a free service offered by seven retail banks that enables mobile fund transfers through the recipient's mobile phone number or NRIC number. Since the launch in July, more than a million users have registered with PayNow.

Banks have also offered their own version of mobile payments. But broadly, the standards on notification have differed. BT understands that some retail banks have flagged the cost constraints and the necessity in sending multiple SMSes.

The proposed guidelines would apply to both individuals and small business owners, defined as "micro-enterprises" that either hire fewer than 10 staff, or make less than S$1 million in annual turnover.

Account holders who were careful in protecting their accounts would not be liable for any unauthorised transactions, MAS said. This would typically mean such customers used strong passwords and tucked them away, as well as updated IT security patches regularly.

Consumers or small businesses found to be careless but not reckless in contributing to unauthorised transactions that are being disputed, would be liable for up to S$100. Such account users might have misplaced a mobile phone or have accidentally given away passwords.

But if banks can prove that reckless behaviour by customers led to the unauthorised transactions, consumers would then be liable for the actual loss.

When a "fat finger" transaction has occurred - that is, when a payment is made to a wrong person by accident - customers can work with the sending and receiving banks to have the funds returned in about a week's time.

A DBS spokesman said the bank is supportive of these new measures as the protection guidelines will provide more clarity and assurance to consumers using e-payment options. DBS PayLah! is used by some 800,000 users. Since 2010, Singapore's largest bank has also offered a "Money Safe Guarantee" that protects against unauthorised transactions. DBS will repay the money taken from customers' account due to an unauthorised transaction. But similar to the terms of the MAS proposal, the guarantee is only applicable if customers have been vigilant about their digital security.

The proposed guidelines mainly apply to e-payment options offered by banks and NETS now. Once the new Payment Services Bill is passed into law, mobile wallets operators that have an average daily e-money float of more than S$5 million a year would have to be licensed by MAS, and would have to adhere to these new guidelines. Other mobile wallets out in the market include GrabPay.

The proposed guidelines are not mandatory, but MAS can turn them into law in future if necessary.

The guidelines would not apply to scams such as phishing. Such cases would be referred to the police, with the fraudsters prosecuted under law.

MAS is seeking public feedback on the guidelines until March 16.

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

Review of law is long overdue, experts agree

Straits Times
02 Feb 2018
Selina Lum and Tan Tam Mei

Lawyers welcome clarification after Court of Appeal upholds jail terms in City Harvest case

Lawyers and legal academics say the Court of Appeal's decision provides a long overdue clarification of whether company directors should be regarded as agents in criminal breach of trust (CBT) offences under Section 409 of the Penal Code.

They also echoed what the Court of Appeal said in its judgment - that a review of the law "was not only essential but also long overdue". The law was first enacted more than a century and a half ago and has remained largely unchanged.

The highest court in the land had said it is now up to Parliament to fix the "dated" piece of legislation that was used to charge City Harvest Church (CHC) founder Kong Hee and five former church leaders for misusing millions in church money.

Section 409 states that a person who commits criminal breach of trust "in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent" is subject to heavier punishment. For the past 40 years here, company directors who commit CBT have been charged under this section.

But yesterday, the Court of Appeal affirmed a ruling last year that this was wrong in law as the term "agent" refers to professional agents: people who make a living by offering services as agents.

As such, directors and key officers of charities, such as the six found guilty in the CHC case, cannot be convicted under Section 409. Their original convictions under this section were reduced to plain CBT under Section 406 by the High Court in April last year, which led to shorter jail terms.

The court noted there is a strong impulse to see crime punished in accordance with the perceived culpability of its perpetrators.

And in the modern context, where directors and officers of charities play key roles, there did not appear to be a good policy reason to ignore their heightened culpability and the enhanced potential for harm were they to commit CBT.

But the court said the task of law reform should be left to Parliament.

The court also noted that in Malaysia, the legislature there has reformed its equivalent of Section 409 by specifically enacting a broad provision, tailored for the modern commercial context, which targets, among others, trustees, directors and managers or other officers of any company, club, partnership or association.

"A sweeping reform that is carried out following a careful and comprehensive evaluation of the classes of persons who are deserving of enhanced criminal punishment is an outcome that a court simply cannot achieve through the exercise of statutory interpretation," said the court.

Lawyer Terence Seah, a partner at Virtus Law, welcomed the clarification. He said the ambiguity has made it difficult when advising clients whether or not they will be covered as directors. "Because in some sense, directors can be considered as agents, but it's not a strict legal classification," he added.

On the need for Parliament to fix the law, Mr Shashi Nathan from Withers KhattarWong said: "The court can't make law, the court can only state and interpret law. If there are changes to be made, it can only be made by legislation."

At the time when laws are enacted, lawmakers would not have envisaged what happens in future, said lawyer Philip Fong from Eversheds Harry Elias. "There may be a need for laws to be updated to deal with existing social norms and structures," he added.

Singapore Management University law don Eugene Tan noted that the Penal Code was first drafted in the Victorian England era.

"A Penal Code review is timely and urgent as well as a reminder not to accept conventional wisdom about what each provision means, and to ensure that the law remains relevant," he said.

Professor Tan added that it may be hard for some to understand why, for four decades, the provision was accepted by prosecutors, lawyers and judges.

"It took a case like this, with the legal firepower of several Senior Counsel, to expose the inadequacy of Section 409."

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

Unlicensed lending: Firm loses bid to recover $10m

Straits Times
24 Jan 2018
K.C. Vijayan

Court of Appeal says allowing it would 'make a nonsense' of purpose of Moneylenders Act to deter illegal lending

The Court of Appeal refused to allow a company that had engaged in unlicensed moneylending to recover a principal sum loaned to a borrower, saying that to do so would "make a nonsense" of the purpose of the Moneylenders Act (MLA) to deter illegal moneylending.

In a rare sitting of five Judges of Appeal instead of the usual three, Singapore's highest court rejected an appeal by the trading company, which wanted back about $10.25 million it claimed were investments and, if not paid, would result in the borrowers being unjustly enriched.

The court found the money to be illegal loans instead and said in judgment grounds released on Monday that the case underlined the "strong need to deter illegal moneylending due to its status as a serious social menace in Singapore".

The lender's claim that the borrowers would benefit unfairly "cannot succeed, because to permit recovery of even the principal sums would undermine and stultify the fundamental social and public policy against unlicensed moneylending which undergirds the MLA", wrote Judge of Appeal Andrew Phang on the court's behalf.

In the case, Ochroid Trading and its sole director, Mr Ole Prytz Rasmussen, had entered into a joint venture in VIE Import & Export, started in 2003 by Ms Chua Siok Lui and Mr Sim Eng Tong. VIE was de-registered in November 2012.

The series of agreements under dispute involved "loans" to VIE for the purchase and resale of specified foods and food-related products. The funds were to be repaid with a "profit" on a stated date.

Some 76 deals made over four months from December 2007 that became the subject of the suit were still unpaid.

Ochroid and Mr Rasmussen sued in the High Court for breach of contract, among other things. They sought the return of about $10.25 million including the alleged profit, or, alternatively, $8.9 million excluding the alleged profit. They argued that the agreements involved genuine investments in VIE's business and were not "loans".

The High Court dismissed their claims in March last year and their appeal was heard in October by the apex court, headed by Chief Justice Sundaresh Menon and which included Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong.

The appellants were represented by a team of lawyers led by Mr Gary Low, while the first respondent, Ms Chua, appeared in person and the second respondent, Mr Sim, was defended by a quartet of lawyers led by Mr Sarbjit Singh Chopra.

The apex court affirmed the High Court findings that the transactions were loans and Ochroid and Mr Rasmussen were unlicensed moneylenders under the MLA.

The court made it clear that although the parties' agreements were made as part of a commercial relationship, the policy of the Act "extends not just to the rogue 'loan shark' who preys on the poor and vulnerable, but to anyone who engages in the business of moneylending within the meaning of the MLA without licence".

The court said there is no general right of "restitutionary recovery" - recovery of the principal sum excluding interest - under Singapore law where the contract is prohibited under statute and/or common law.

There are exceptions to the right. For instance, if the plaintiff entered into the illegal contract under a mistake or on the basis of fraud or if a party backs out of the contract before its illegal purpose is effected, said the court in its judgment.


The court made it clear that... the policy of the Act "extends not just to the rogue 'loan shark' who preys on the poor and vulnerable, but to anyone who engages in the business of moneylending within the meaning of the MLA without licence".

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

Three new judicial commissioners of High Court appointed

Straits Times
13 Feb 2018
Ng Huiwen

President Halimah Yacob has appointed Mr Tan Puay Boon, Ms Mavis Chionh and Mr Ang Cheng Hock as judicial commissioners of the High Court.

Mr Tan, 62, and Ms Chionh, 48, will begin their new roles on March 12 for a three-year term. The appointment of Mr Ang, 47, will take effect on May 14 for a period of 18 months, the Prime Minister's Office said in a statement yesterday.

Mr Tan and Ms Chionh will be sworn in at the Istana on March 16, and Mr Ang on May 17.

Mr Tan has served as the principal district judge of the State Courts' civil justice division for close to three years.

He was appointed director of the Ministry of Law's Legal Aid Bureau in January 2007 and became the ministry's chief information officer from June 2013 to April 2015.

He has over 30 years of experience in the Singapore Legal Service, having first joined the Attorney-General's Chambers (AGC) as State Counsel in 1987.

Ms Chionh, who is currently the AGC's Second Solicitor-General, joined the legal service in 1991. She graduated from the University of Oxford and has a Master of Laws (Chinese Law) from the National University of Singapore.

In 2011, she became the chief prosecutor in the AGC's financial and technology crime division, which was previously known as the economic crimes and governance division.

She also took on the role of chief prosecutor in the criminal justice division in 2015.

That year, she was appointed senior counsel and also awarded the Public Administration Medal (Gold).

In a statement yesterday, Attorney-General Lucien Wong described Ms Chionh as a "veteran in the public legal service sector".

He said: "Mavis was the lead prosecutor in some of the most high-profile court cases in Singapore, including stewarding the prosecution of Kong Hee and others from City Harvest Church and securing their eventual convictions."

He commended her knowledge, stamina and commitment to excellence and said that these qualities have served the AGC and the public well.

During her time at the AGC, Ms Chionh also spearheaded a number of changes, including organising the criminal justice division into specialist groups, re-organising the Crime Registry and establishing more effective prosecution guidelines, he added.

Mr Ang is currently a partner at law firm Allen & Gledhill, where he is a member of its litigation and dispute resolution department.

He joined Allen & Gledhill in 1999 and became a partner the following year.

In 2009, he became one of the youngest lawyers to be appointed senior counsel at age 38.

His main areas of practice include civil and commercial litigation, international arbitration and corporate-related disputes.

He has also appeared as counsel in insolvency-related litigation, shipping disputes and intellectual property disputes.

Allen & Gledhill co-chairman and senior partner Penny Goh congratulated Mr Ang on his new appointment in a statement yesterday.

She said: "We will certainly miss Cheng Hock, but he will be pleased that he leaves behind a very strong litigation team.

"We would like to take this opportunity to thank him for his numerous contributions over the years."

With the new appointments, the Supreme Court will have a total of 21 judges, seven judicial commissioners, four senior judges and 15 international judges.

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

Highlights of the decision

Straits Times
02 Feb 2018
Selina Lum

Agent or not?

The Court of Appeal ruled the term "agent" in Section 409 of the Penal Code, which provides for enhanced punishment for criminal breach of trust (CBT) for certain classes of people, applies to someone who is a professional agent.

As such, company directors and key officers of charities, such as the six found guilty in the City Harvest Church case, could not be convicted under Section 409.

The court said its conclusion was supported by the language and structure of the provision itself. There is also a coherent and well-established line of authority, tracing back almost two centuries, that an "agent" under Section 409 must be an individual who is in the business of providing agency services.

Ruling's ramifications

For the past 40 years, company directors who commit CBT have been charged under Section 409, following a High Court ruling in the 1970s.

Now that this position is held to be wrong in law, this means there is a lacuna - or a gap in the law - relating to the punishment to be meted out to company directors and key officers of charities and societies who commit CBT.

Parliament to fill gap

The court said the gap in the law should be remedied by Parliament.

The court acknowledged there is a strong and urgent impulse to ensure that persons in positions of responsibility are made to undergo a sentence that reflects the full measure of their harm and culpability.

But a "strained application of interpretative principles" by the courts would only represent "a proverbial papering over part of the conceptual cracks and shortcomings" in Section 409.

Unanimous decision

Judges of Appeal Andrew Phang and Judith Prakash, and Justices Belinda Ang, Quentin Loh and Chua Lee Ming concurred on the interpretation of "agent" under Section 409.

This was unlike the split decision in April last year, in which Justice Chan Seng Onn had a different view from then Judge of Appeal Chao Hick Tin and Justice Woo Bih Li.

That decision saw the former church leaders cleared of their original convictions under Section 409 and found guilty of simple CBT under Section 406.

Principles for criminal reference

The court laid down guiding principles for scenarios when the Public Prosecutor files a criminal reference in cases where the magistrate's appeal has been heard by a specially convened panel of three judges sitting at the High Court.

Though the City Harvest case had been decided by a three-judge High Court, the Court of Appeal found that the circumstances were "sufficiently exceptional" to justify hearing the case to make an authoritative determination.

This was because there were two High Court decisions - the 1970s judgment and the one in April last year - that adopted diametrically opposite positions on the issue.

It was amplified by the fact that the High Court panel was split on its decision last April.

Selina Lum

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

Subcontractor wins appeal over post-dated payment claim

Straits Times
24 Jan 2018
Grace Leong

A dispute between main contractor Kian Hiap Construction and subcontractor Audi Construction went through several twists premised on a key issue: whether payment claims must be served on or by the day specified in the contract.

But Audi succeeded when the Court of Appeal ruled that the subcontractor's payment claim was valid even though it had been served two days before the specified day in the contract.

Under the terms of the contract, payment claims were to be served on the 20th day of each month. But because Nov 20, 2016, fell on a Sunday, Audi decided to serve its claim for that month on Nov 18, but post-dated it to Nov 20.

After Kian Hiap failed to reply, Audi filed for adjudication. The adjudicator rejected Kian Hiap's challenge that the claim had not been served on Nov 20, 2016, and found in Audi's favour in January last year.

Kian Hiap then applied to the High Court and won. The judge ruled that the claim had to be served on and not by Nov 20, 2016.

But Audi appealed, and the Court of Appeal found in its favour on Nov 13 last year.

In its grounds of decision issued Monday, the apex court found that the payment claim was "validly served" because Audi had "a good reason" for serving the payment claim before Nov 20.

"That day was a Sunday, and there was no dispute that (Kian Hiap's) office was closed on Sundays. Second, there could not have been any confusion as to the payment claim's operative date.

"The payment claim was correctly dated Nov 20, 2016, the day on which the contract entitled (Audi) to serve a payment claim," according to the three-judge panel comprising Chief Justice Sundaresh Menon and Judges of Appeal Tay Yong Kwang and Steven Chong.

And because Kian Hiap failed to file a payment response, that "constituted an unequivocal representation that it would not raise any objection to the payment claim", added the panel.

Malkin & Maxwell lawyer John Lim said the Court of Appeal's decision is to be "applauded for assisting contractors in overcoming practical difficulties in deciding when to serve payment claims, especially where the contracts are unclear."

Audi made headlines in late 2016 for failing to pay 50 workers on the project, and was hit with a defamation lawsuit for claiming it could not pay the workers because it had not been paid by Kian Hiap. But a settlement has been reached.

Mr Seah Choo Meng, chairman of ThreeSixty Cost Management and ThreeSixty Contract Advisory under the Surbana Jurong Group, noted that there are more than 500 payment claims made each year under the Building and Construction Industry Security of Payment Act.

Each claim can vary from a few thousand dollars to a few hundred million dollars, he added.

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

Apex court sets out when traffickers who divide and pack drugs may be considered couriers

TODAY
13 Feb 2018

A drug trafficker who divided and repacked drugs may still be considered merely a courier and stand a chance of escaping the gallows, said the Court of Appeal on Monday (Feb 12).

But the division and repacking must be for the purpose of transporting, sending or delivery of the drugs, the three-judge panel ruled as it upheld the death penalty for a 44-year old Singaporean heroin trafficker.

The acts must be incidental to, or necessary for transporting, sending or delivering the drugs, said Judge of Appeal Steven Chong, who ruled together with Chief Justice Sundaresh Menon and Judge of Appeal Tay Yong Kwang.

For instance, an offender who wraps a packet of drugs to make the bundle more compact and easily transported could be said to be ensuring the success of its delivery.

Likewise, if the division or repacking was to prevent “inadvertent leakage or to allow for the placement of the drugs into confined spaces within the transporting vehicle”, said JA Chong.

However, “breaking bulk” to enable the original quantity of drugs to be transmitted to more than one recipient is “not a preparatory step to delivery but is an antecedent step that is involved in facilitating distribution to more than one recipient”, he said.

The offender has to provide evidence that he had a permissible reason or purpose for dividing and packing the drugs, he added.

Since 2013 when changes to the Misuse of Drugs Act kicked in, offenders determined to be couriers, and who are issued certificates of substantive assistance by the Public Prosecutor, may be sentenced to life imprisonment instead of the gallows.

The apex court was ruling in the case of Zainudin Mohamed, who was convicted in 2016 of possessing not less than 22.73g of heroin — or diamorphine — for the purposes of trafficking.

Zainudin got into the trade in 2014 after he fell into dire financial straits and was unable to service his home loan. A friend called “Boy Ahmad” suggested heroin trafficking to make “fast cash”.

On May 13, 2014, Zainudin received S$8,200 in cash and was paid S$300 by Boy Ahmad. He exchanged the cash for two “batu” (about 1kg) of drugs from a woman called Shanti Krishnan, who has been given a life sentence.

Zainudin was beginning to cut open one of the packets with a pair of scissors to divide and repack the contents, when Central Narcotics Bureau officers tried entering his flat.

In his appeal, defence lawyer Eugene Thuraisingam argued Zainudin was a courier who was dividing the drugs on Boy Ahmad’s instructions and was not exercising his own decision-making powers.

But JA Chong said: “If an offender is following instructions to sell and/or distribute the drugs, his role remains no less than that of a seller or distributor.”

The apex court added: “One might argue that the court’s decision as to whether an offender can be regarded as a courier ought not to turn on something so arbitrary as whether the drugs handed to him comes in an undivided whole or in already divided portions. But this argument entirely misses the significance of the act of division and packing for the purposes of distribution.”


MAN ON DEATH ROW ACQUITTED OF IMPORTING HEROIN BY COURT OF APPEAL

A Malaysian heroin importer on death row was acquitted on Monday (Feb 12) by the Court of Appeal in a 2-1 split decision.

Gopu Jaya Raman, now 31, had proved, on a balance of probabilities, he did not know drugs had been placed in the motorcycle he rode into Singapore through Woodlands Checkpoint on March 24, 2014, ruled Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash, the majority judges.

Gopu was caught by Immigration and Checkpoints Authority officers with three black bundles, containing not less than 46g of diamorphine, that were concealed in the space enclosed by the fenders of the motorcycle. He appeared confused and lost when confronted.

The unemployed man had done drug deliveries previously but maintained the drugs had been planted there that day without his knowledge, when he had entered Singapore to visit his girlfriend and another friend to celebrate his birthday.

On previous occasions, drugs had been packed in green bundles and covered with a scarf, then placed over the seat compartment lid which was covered by the seat.

Gopu had met with a traffic accident the day before, on March 23, 2014, and sustained injuries to his chest and leg. He asked his boss, who was only identified as Ganesh, for a RM150 (S$50) loan to see a doctor but Ganesh refused and asked him to see his friend, who was only identified as “Ah Boy”.

Gopu refused Ah Boy’s request to deliver drugs and Ah Boy had a discussion with Ganesh before passing the money to Gopu to see a doctor. Ah Boy told him Ganesh would call him later.

After he was caught, Gopu claimed he drafted a text message to Ganesh under the direction of a Central Narcotics Bureau officer, complaining Ganesh had not previously told him about the drugs.

According to Gopu, this showed the officer had believed he did not know about the drugs.

“There was no doubt in this case that Ganesh and Ah Boy wanted to transport the drugs into Singapore. The only question was whether (Gopu) was part of this plan,” said CJ Menon and JA Prakash, who found no objective evidence linking Gopu to the drugs.

JA Tay Yong Kwang was the dissenting judge. He found Gopu’s explanation for wanting to enter Singapore on March 24, 2014, not to be credible.

There was “absolutely no reason” for Ganesh and Ah Boy to resort to trickery to get Gopu to bring the drugs into Singapore, especially when Gopu still owed Ganesh half of an RM4,000 loan and needed a further loan for medical attention, JA Tay said.

Copyright 2017 MediaCorp Pte Ltd | All Rights Reserved