Vol 8 (2016/17)

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Ill Advice or Ill-advised? Negligent Medical Advice and the Modified Montgomery Test

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A PDF version of this entry is available for download here.

Ill Advice or Ill-advised? Negligent Medical Advice and the Modified Montgomery Test

Tan Wei Ming

I. INTRODUCTION

When is a doctor liable for giving a patient negligent medical advice? In the case of Hii Chii Kok v Ooi Peng Jin London Lucien [Hii Chii Kok],1 the Court of Appeal departed from established case law and created a new test to determine the standard of care a doctor must meet to discharge his duty to the patient he is advising. This article will outline the state of the law regarding negligent medical advice in Singapore, analyse the new three-stage modified Montgomery test and discuss some of its implications on the medical and legal practice.

II. BACKGROUND

As reiterated in Hii Chii Kok, the practice of medicine by doctors comprises of three aspects:2

  1. Diagnosis – Establishing what the medical issue is.
  2. Advice – Providing the patient relevant and material information about recommended courses of action, alternative treatments and the potential risk.
  3. Treatment – Carrying out “that which the patient has agreed should be carried out”; this may, for example, refer to surgery as well as relevant pre- and post-operative treatment.3

Prior to the ruling in Hii Chii Kok, the leading local authority on the applicable standard of care expected of medical professionals was Dr Khoo James & Anor v Gunapathy d/o Muniandy [Gunapathy].4 It accepted and applied the longstanding Bolam-Bolitho test to all three aspects of medical practice.5 The Bolam-Bolitho test comprises of two stages – the Bolam test and the Bolitho addendum.

According to the Bolam test, laid down in the case of Bolam v Friern Hospital Management Committee [Bolam],6 the standard of care expected of a professional practicing a special skill is that of an “ordinary skilled man exercising and professing to have that special skill.”7 In medical negligence, the court assesses whether the doctor “acted in accordance with a practice accepted as proper by a responsible body medical men skilled in that particular art.”8 The presence of a body of opinion that takes a contrary view will not result in liability. Thus, even if the body of opinion that accepts the specific practice is in the minority, the doctor will not be found liable so long as they made use of a reasonable practice.

The test was developed in recognition of the fact that the courts are generally not well-placed to settle medical controversies. Given the diversity of reasonable views that may be held on a particular medical issue, it may be unfair for the courts to find a doctor liable for holding that view even if the view is subsequently found to be wrong. On the other hand, not every view can be found acceptable by the Court. Consequently, for a doctor to meet the standard of care and show that an ordinary skilled member of his profession would have acted in the same way, the test only requires that the doctor show that some other doctors would have acted in the same way.9

The Bolam test was later supplemented by the Bolitho addendum in the case of Bolitho v City & Hackney Health Authority [Bolitho].10 The addendum requires the expert medical opinion to pass a threshold test of logic; it is met if the medical experts who gave testimony have compared the risks and benefits and come to a defensible conclusion that fulfils a threshold of logic and consistency.

While the test was initially only applicable to diagnosis and treatment, it was subsequently extended to the disclosure of medical risks by the Court in Sidaway v Bethlem Royal Hospital Governors [Sidaway].11 The majority ruled that a decision to omit disclosing risks of medical treatment is, like treatment and diagnosis, an exercise of professional skill and judgement and should be determined through the Bolam test.

However, the blanket application of the Bolam-Bolitho test to all aspects of medical treatment was a controversial decision for its promotion of medical paternalism.

Notably, the UK Supreme Court, in the case of Montgomery v Lanarkshire Health Board [Montgomery],12 introduced a new test that overruled Sidaway’s application of the Bolam-Bolitho test in the context of medical advice. A doctor must disclose material risks as well as reasonable alternatives to the recommended treatment. Material risks are defined as those which a reasonable person in the patient’s position would likely find significant, or that the doctor should reasonably aware that the patient would find significant.13

This change came in reaction to developments in how the medical profession and society viewed the doctor-patient relationship. The Court noted that the General Medical Council viewed the informed involvement of patients as an integral aspect of professionalism in treatment.14 Another important social development considered by the Court was the recognition of the right to respect of private life by the European Convention on Human Rights. This was deemed by the European Court of Human Rights to give rise to a duty to involve the patient in decisions relating to their treatment.15

Other jurisdictions such as Australia16 and Malaysia17 have also adopted a ‘prudent patient’ approach to risk disclosure.

III. THE MODIFIED MONTGOMERY TEST

In Hii Chii Kok, the Court of Appeal recognised the need to distinguish between the various aspects of medical treatment to align the law with societal developments. While the Court recognised the difficulty in rigidly distinguishing between the three aspects of medical practice, it stated that it would be artificial to treat them as monolithic and capable of being assessed with reference to a single test.18

The Bolam-Bolitho test was retained for diagnosis and treatment. Here, the patient is a passive participant that provides information and received treatment in accordance with the directions of the doctor.19 The test is suited for these aspects as it recognises that doctors possess expert knowledge on medical matters. A doctor is ultimately in charge of making the diagnosis and treatment. The acts of diagnosing illness and providing treatment are considered to be an exercise of professional skill and judgment. This is because a wide variety of factors – advancing medical knowledge, the doctor’s personal experience and patient-specific information – may lead to disagreements over the appropriate result or treatment. In such situations, it may be reasonable for a doctor to recommend a particular diagnosis or treatment. As previously mentioned, it is not appropriate for the Court to attempt to settle medical controversies and decide that one particular view is correct. The better approach in determining whether a doctor meets the professional standard of care, as seen in the continued application of the Bolam-Bolitho test for diagnosis and treatment, is to examine whether their professional judgment was supported by a responsible body of opinion.

However, the Court recognised that in the context of medical advice, both the medical profession and society in general now perceive patients as active participants engaged in a dialogue with their doctors. Unlike the aspects of diagnosis and treatment, where the doctor is in charge, the decision to undergo treatment is ultimately made by the patient. As their decision can be informed by circumstances, objectives and values beyond purely medical considerations,20 the patient must have all the information they would reasonably require to make such decisions.

Referencing the reasoning in Montgomery, the Court noted that similar developments had occurred in the perception of medical advice by the medical industry and public. It relied on the Singapore Medical Council’s Ethical Code and Ethical Guidelines (2016 Edition) [ECEG] to show this change. The ECEG states that patients are now more knowledgeable about medical issues and want their doctors to provide sufficient information to allow them to make informed decisions.21 Consequently, it encourages doctors to respect patient autonomy and facilitate their decision-making by ensuring they are advised of the benefits and risks involved.22 The guidelines were recognised by the Court as an indication of the new perspective that both society and the medical industry have adopted with regard to medical advice. This gave rise to the impetus to adjust the applicable test to better reflect the values of society and the medical industry.

The Bolam-Bolitho test, applied to medical advice, would allow a doctor to withhold information so long as some of his peers would have acted similarly. This conflicts with the patient’s entitlement to make decisions and created the need for a new test to account for the patient’s perspective. For these reasons, the Court departed from the Bolam-Bolitho test as adopted in Gunapathy and established the new patient-centric three stage test to determine whether a doctor meets the applicable standard of care when dispensing medical advice.

At the first stage, the patient must identify the exact nature of the information that he alleges was not given to him and establish why it would be regarded as relevant and material. This assessment is made from the perspective of the patient. The Court stated that information which doctors ought to disclose is information that would be relevant and material to a reasonable patient situated in the particular patient’s position, or information that a doctor knows is important to the particular patient in question.23

The second stage inquires whether the doctor was in possession of that information.24 If the doctor was not aware of the information, the court returns to the Bolam-Bolitho test to assess whether the doctor was negligent in diagnosis or treatment.25

If the doctor was in possession of the information, the third stage of the test examines the reasons why the doctor chose to withhold the information from the patient. The court will assess whether the doctor’s reasons for withholding the information were justified and consider whether this was a sound judgment, having regard to the standards of a reasonable and competent doctor.26 The burden is on the doctor to justify the non-disclosure and the testimony of medical experts on reasons to withhold information will assume more significance because the decision includes an element of professional judgment.27 Examples of situations where a doctor may be justified in withholding information include a patient waiving their right to receive further information, emergency treatment or exercise of therapeutic privilege by the doctor.28

IV. HII CHII KOK'S MODIFICATIONS TO THE MONTGOMERY TEST

While the Montgomery test and the Modified Montgomery test are broadly similar, there are a number of key differences that distinguish the two.

A. Disclosure of Relevant and Material Information

While the scope of material information under the Modified Montgomery test appears to be great, the Montgomery test and the first stage of the Hii Chii Kok formulation are likely to be substantially similar in practice.

The Hii Chii Kok formulation focuses its discussion of risk along the lines of likelihood and severity. A remote risk with minor consequences is unlikely to be considered material, while a likely risk with severe consequences is likely to be considered material. The Court also stressed that a severe consequence with a very low probability of eventuating may not necessarily need to be disclosed.29

Next, the Hii Chii Kok formulation does not restrict material and relevant information to material risks involved in recommended treatment as well as reasonable alternative treatments.30 Despite this apparent increase in scope under the Hii Chii Kok formulation, it is submitted that the Montgomery test can be interpreted broadly to encompass much of what Singaporean courts would consider material and relevant information.

Referencing the Canadian case of Dickson v Pinder,31 the Court in Hii Chii Kok gave several examples of information that would likely be considered material: the doctor’s diagnosis of the patient’s condition, the prognosis of that condition with and without medical treatment, the nature of the proposed medical treatment, the risks associated with the proposed medical treatment and the alternatives to the proposed medical treatment as well as the advantages and risks of those alternatives.32

These are notably very similar to the characterisation of risk in Montgomery. In the UK, the materiality of a risk is determined by assessing its magnitude, nature, effect upon the life of the patient, importance of the benefit sought by the treatment, the alternatives and risks of alternatives.33 As a result, it is unlikely that information provided by doctors in the two jurisdictions will drastically differ in practice.

B. Inclusion of Second Stage of Test

The second stage of Hii Chii Kok’s formulation requires that the doctor actually possess the information that the patient alleges was not given.34 Although not expressly provided for in Montgomery, it is submitted that the doctor actually having the information is a logical and implicit requirement. The courts are unlikely to penalise a doctor for failing to advise if the information in question was not available. Nonetheless, the discussion of the second stage in Hii Chii Kok is noteworthy for highlighting that the doctor lacking information primarily a problem of diagnosis and treatment. These are aspects best handled by the Bolam-Bolitho test.

C. Exceptions to Test

In Montgomery, the Court discussed a number of exceptions to the test. A doctor will be entitled to withhold information if its disclosure would be seriously detrimental to the patient’s health and in situations of necessity.35

Hii Chii Kok deliberately avoided closing off the list of exceptions. The Court is only to assess whether the doctor’s conduct was justified in the circumstances. However, the Court indicated that situations involving waiver of the right to receive further information, emergencies and exercises of therapeutic privilege would likely justify a doctor’s conduct.36

V. COMMENTARY

It is submitted that the Hii Chii Kok formulation is a commendable refinement of local law that effectively deals with some of the criticisms levelled at Montgomery. It also presents the possibility of development of the law in a non-medical context.

A. The Modified Montgomery Test and Patient Autonomy

The Modified Montgomery test is an unequivocal recognition of the importance of patient autonomy by the courts. However, while the concept of patient autonomy was the driver of change in both the medical industry and the courts, the court did not explore the content of this concept in great detail.

Future cases will inevitably grapple with the problem of what and how much information is relevant and material to the patient. The answers to these questions may very well be grounded in how patient autonomy comes to be understood in Singapore.

The Court has recently discussed the concept of autonomy in ACB v Thomson Medical Pte Ltd.37 Two main concepts of autonomy were offered. The first places prominence on the patient having the freedom to choose, even if the choice may be considered detrimental or irrational. The second argues that the concept of autonomy should facilitate both the current as well as long term desires of the patient. The focus shifts from the patient having a choice to the patient making a good quality choice that best account for their desires in life as a whole.

These two concepts of autonomy have significant implications on the nature of the standard of care. It may be sufficient for a doctor to provide only enough information for the patient to make a decision about the medical issue at hand. However, a more expansive conception of autonomy may require the doctor to go significantly beyond the current medical issue and consider the long-term well-being of the patient.

It is presently unclear how future courts will resolve the problem of autonomy as it relates to medical advice. This is likely to give rise to some confusion and uncertainty in the short term. Future cases will be invaluable in shedding light on how far doctors should go to respect patient autonomy in a post-Hii Chii Kok Singapore. It may well be that this problem will prove to be more theoretical than real.

B. Defensive Practice

With the present uncertainty over the nature of the doctor’s duty to advise and the removal of the protection that the Bolam-Bolitho test afforded medical practitioners, a principal concern from the shift towards a patient-centric approach is how doctors will react to the change in the law. Montgomery has been questioned for raising the likelihood of defensive practice.38 This refers to doctors advising and undertaking the treatment believed to be legally safe.39 Examples include inundating patients with information to ensure the legal boxes are ticked and to maximise the likelihood of patient comprehension.

However, the doctor is expected to take reasonable care to ensure the patient understands the information. It bears noting that the duty is only that of reasonable care; doctors are not expected to meet unrealistic standards of behaviour by ensuring complete comprehension. Additionally, the doctor must ensure the provision of information is balanced with proper communication of said information such that the patient is able to understand the advice.40 The Court also noted that concerns raised in Gunapathy about defensive practice mainly concerned the aspects of diagnosis and treatment rather than the provision of advice.41

It is submitted that such concerns may be overstated. While there was no legal necessity for a doctor to take the steps laid out in the Modified Montgomery test, the ECEG has already recognised the importance of patient autonomy and encouraged doctors to facilitate informed decisions. The practice of providing sufficient information for patients to make an informed decision is one that doctors should not be unfamiliar with. The Modified Montgomery test should not result in drastic shifts in behaviour to compensate for concerns that the advice is deficient.

C. Increased Litigation

On the flipside, the removal of the protection afforded to doctors by the Bolam-Bolitho test may also lead to an increase in medical litigation, which would drive up medical insurance and healthcare costs. Patients may be more likely to commence litigation if they believe they are more likely to win under the new test.

A useful indicator of the likelihood of increased litigation would be to examine other jurisdictions which have adopted similar tests. While it may be too soon to decide if Montgomery has resulted in a significant increase in litigation in the UK, Australia has not experienced the dreaded flood of litigation in the wake of Rogers v Whitaker. Litigation on disclosure of medical risks has been rare and generally involved factual disagreement over what was disclosed rather than the more contentious issue of whether a risk should have been disclosed.42

The Court in Hii Chii Kok noted that many of the primary drivers of increased litigation, such as contingency fees, are not present in Singapore. It stated that this would ameliorate concerns about the Modified Montgomery test, on its own, opening the floodgates to litigation. Additionally, it rightly noted that a possibility of increased litigation should not shut out legal reform.43 However, it is submitted that the perception of decreased protection of medical practitioners may, rightly or wrongly, still drive litigants to make claims where they might not have done so under Gunapathy. While this may not represent the drastic increase in litigation that the concern was concerned about, a gradual uptick in litigation and by extension, malpractice insurance costs may be an unfortunate result of the new paradigm. This may be exacerbated in the future if the patient-centric approach does in fact result in more successful claims.

D. Impact of Hii Chii Kok on other areas of professional negligence

Looking to the future, it is possible that Hii Chii Kok may lead to development of the law in other areas of professional negligence. While it remains to be seen how the courts in Singapore will react to the principles established in Hii Chii Kok when applied to other professions, there is some precedent to suggest that the scope of the Bolam-Bolitho test may be further circumscribed.

The UK case of O'Hare v Coutts & Co [O’Hare]44 recently considered Montgomery’s approach to medical advice while assessing whether an investment advisor was negligent in explaining risks to the defendant bank. The Court ruled that an investment advisor’s duty to communicate the risks and ensure his client understood said risks should be governed by the Montgomery test instead of the Bolam test.45 This is because the finance industry does not presently have clear guidelines for investment advisors and their treatment of risk management. Finance industry regulations, analogous to those in the medical industry, also encourage advisors to act in a manner close to the approach prescribed in Montgomery. This led to the Montgomery test being preferred over the Bolam-Bolitho test. While O’Hare does not indicate a wholesale rejection of the Bolam-Bolitho test – an approach rejected in Hii Chii Kok46 – it indicates that the scope of the Bolam-Bolitho test may be further eroded in areas of professional negligence where the victim needs to make a decision based on expert advice.

VI. CONCLUSION

While courts are generally slow to depart from established local precedent, the judgment in Hii Chii Kok was a necessary refinement to bring Singaporean law in line with the values of its people. It is a timely reminder that the law, far from being static, is a reflection of the values and beliefs of Singaporeans that must adapt to grapple with the new legal challenges created by a constantly developing society.

[1] [2017] SGCA 38.

[2] Ibid at [95] – [98].

[3] Ibid at [98].

[4] [2002] 1 SLR(R) 1024.

[5] Supra note 1 at [54].

[6] [1957] 1 WLR 582.

[7] Ibid at 586.

[8] Ibid at 587.

[9] Ibid at [56].

[10] [1998] AC 232.

[11] [1985] AC 871.

[12] [2015] UKSC 11.

[13] Ibid at [87].

[14] Ibid at [78].

[15] Ibid at [80].

[16] Rogers v Whitaker (1992) 175 CLR 479.

[17] Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593.

[18] Supra note 1 [2017] SGCA 38 at [90].

[19] Supra note 1 at [96], [98].

[20] Supra note 1 at [117].

[21] Ibid at [118].

[22] Ibid at [118].

[23] Ibid at [132], [137].

[24] Ibid at [147].

[25] Ibid at [147].

[26] Ibid at [148].

[27] Ibid at [149].

[28] Ibid at [150]-[152].

[29] Supra note 1 at [140], [141].

[30] Ibid at [132].

[31] [2010] ABQB 269.

[32] Supra note 1 at [138].

[33] Supra note 12 at [87].

[34] Ibid at [147].

[35] Supra note 12 at [88].

[36] Supra note 1 at [149].

[37] [2017] SGCA 20.

[38] Tracey Elliott, ‘A Break with the Past? Or More of the Same? Montgomery v Lanarkshire Health Board’ (2015) 31 Professional Negligence 190.

[39] Supra note 1 at [84].

[40] Ibid at [154]-[156].

[41] Ibid at [87].

[42] Bismark et al., ‘Legal Disputes over Duties to Disclose Treatment Risks to Patients: A Review of Negligence Claims and Complaints in Australia’, online: (2012) PLoS Med 9(8): e1001283 <https://doi.org/10.1371/journal.pmed.1001283>.

[43] Ibid at [84]-[86].

[44] [2016] EWHC 2224.

[45] Ibid at [199]-[214].

[46] Ibid at [83].

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Good Faith in Contractual Agreements in Singapore

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The PDF version of this entry can be found here.

Good Faith in Contractual Agreements in Singapore

Glen Ting

I. NO IMPLIED DUTY OF GOOD FAITH IN LAW

In Ng Giap Hon v Westcomb Securities Pte Ltd [Ng Giap Hon],1 the Court of Appeal firmly established that it would not endorse an implied duty of good faith as a matter of law in the context of contractual performance.

The primary reason for the Court’s rejection of the doctrine of good faith in the practical sphere stems from its fear of uncertainty surrounding the theoretical foundations of the doctrine.2 The Court perceived the doctrine as a fledgling one in English and Singaporean contract law, and highlighted the relative dearth of case law coupled with an abundance of academic literature which suggest that the doctrine is far from settled.3

As noted in Ng Giap Hon, there is still no consensus on the definition of good faith. One of the proposed definitions is the “excluder thesis” which regards good faith as the exclusion of bad faith.4 Other definitions propound that good faith imports concepts like honesty, reasonableness, “fair and open dealing”, and/or “fidelity to the bargain”.5 Opponents of the good faith doctrine have cited the uncertainty over the definition of good faith as a reason for rejecting the doctrine so as to preserve predictability for the facilitation of business transactions.

The uncertainty surrounding the doctrine is also evident in other jurisdictions. For instance, the Court has mentioned that “the situation in the Australian context is, at best, ambiguous”.6 Even in America – where good faith is established as an implied covenant under the Uniform Commercial Code – there is the view that the doctrine is currently in a state of flux.7

Dissidents have also rejected the doctrine for its inconsistency with the widely held perspective of contract as a “vehicle for self-interested exchange” for the individual. This perspective arises from a capitalist view of the world in which contracts are formed solely for the purpose of profit maximisation. The doctrine of good faith is antithetical to such an economic view because it would constrain an individual and require him to consider the interests of the other party.8 This criticism of the doctrine of good faith was also recognised by the House of Lords in Walford v Miles [Walford],9 where Lord Ackner stated that the duty of good faith is “inherently repugnant to the adversarial position of the parties involved in negotiations” as each party should be entitled to pursue his own interest.10

II. IS THE DOCTRINE REALLY THAT NOVEL AND UNCERTAIN?

The doctrine of good faith should not be perceived as a novel one as many distinct solutions that have been developed to deal with problems of unfairness are fundamentally built on the concept of good faith. These solutions include well-established contractual principles such as undue influence, promissory estoppel, specific performance and injunction.11 Essentially, the doctrine of good faith has actually long been utilised to deter parties from engaging in bad faith conduct, even though it has not been recognized as a general principle. Indeed, the existence of these tools have led proponents to suggest that the common law is already poised to recognise a general principle of good faith.12

This notion is further reinforced by Professor McKendrick who stated that most rules of English contract law “conform with the requirements of good faith and cases which are not dealt with in other systems under the rubric of good faith and fair dealing are analysed and resolved in a different way by the English courts, but the outcome is very often the same.”13

With respect to the ongoing debate over the definition of good faith, the lack of consensus should not prevent local courts from recognizing a general principle of good faith. Courts have managed to embrace and apply legal tools similarly imbued with imprecision – such as the concept of “reasonableness” in the law of negligence – without undue difficulty.14

Seen from this perspective, the content of the good faith doctrine might not be as elusive or uncertain as the courts appear to suggest. After all, the essence of good faith has already been embedded in many long-standing legal principles that have been consistently applied in the practical sphere.

III. FREEDOM TO ADVANCE SELF-INTEREST IS NOT AN ABSOLUTE ONE

One of the main criticisms against recognition of a general duty of good faith is its inconsistency with the advancement of self-interest inherent in contract law. However, cooperation between parties to implement a contract is similarly fundamental in this area of law.15 It has been established that the utility of contractual agreements for the advancement of self-interest comes attached with the condition that parties should not engage in conduct with bad faith. This is evinced by the necessity for principles such as misrepresentation and undue influence which are primarily developed to mitigate problems of unfairness arising from undesirable conduct. Hence, the advancement of self-interest and the concept of good faith should not be regarded as antithetical to each other as contracting parties would still be entitled to serve their self-interests as long as they do not engage in bad faith conduct and undermine the common purpose of the bargain that they have entered into.

It should also be noted that Lord Ackner’s dictum in Walford16 regarding the inconsistency of the good faith doctrine with the advancement of self-interest was set in the context of pre-contractual negotiations and not performance of the contract. It has been argued that Lord Ackner’s prohibition of the doctrine does not necessarily extend to the way in which a contract should be performed as it is “important to retain a clear analytical differentiation between contract performance and contract formation”. Pre-contractual good faith should not serve as a basis for the rejection of the general concept of good faith.17

IV. EXPRESS 'NEGOTIATE IN GOOD FAITH' CLAUSES

Although there is no general good faith duty governing contractual agreements in Singapore, in the recent Court of Appeal case of HSBC Institutional Trust Services Ltd v Toshin Development Singapore Pte Ltd [Toshin], it was stated that an express agreement to “negotiate in good faith” could be enforceable.18 The Court in Toshin supported its holding by noting that such ‘negotiate in good faith’ clauses are in the public interest as they promote the consensual disposition of any potential disputes. The Court then went on to elaborate that such good faith provisions are “consistent with our cultural value of promoting consensus whenever possible”.19 It was also noted in Toshin that the concept of good faith, at its core, encompasses the requirements of honesty and observance of accepted commercial standards of fair dealing.20

It is arguable that the reasons provided in Toshin to render clauses to negotiate in good faith similarly support agreements to perform contracts in good faith. Like the former, obligations to perform contracts honestly and fairly would also go a long way towards preserving consensus and cooperation between the parties. This is ultimately more conducive for public and commercial interests, as opposed to a categorical rejection of the doctrine of good faith. Taking this argument even further, these same reasons also reinforce the argument for an implication of a general good faith obligation in all contracts.21 Furthermore, with respect to the English jurisdiction, it has already been noted that “there are signs that the traditional English hostility towards a requirement of good faith might be abating”.22

V. CONCLUSION

There is substantial impetus for Singapore in recognizing good faith as a general principle in contract law as many major economies such as the USA, China and Japan have already done so. Acknowledgement of the general principle of good faith would help align the local jurisdiction with that of the major economies and render the nation more accessible and commercially attractive to investors.23

The concept of good faith is coherent with the fundamental objective of contract law which aims to “protect the reasonable expectations of honest men”.24 In order to achieve this purpose, essential virtues such as honesty, rationality and fidelity to the bargain must be upheld. Indeed, it has been stated that it is difficult to see how contracts could be agreed in the absence of mutual trust and sincerity.25 The uncertainty of the doctrine and its alleged inconsistency with fundamental interests protected in contract law should not be overstated. Instead, a thorough re-analysis of the viability and necessity of good faith would be appropriate in light of growing recognition of the role that good faith plays in ensuring that contractual powers are not exercised for improper purposes.26

[1] [2009] 3 SLR(R) 518; [2009] SGCA 19.

[2] Ibid at [60].

[3] Ibid at [51].

[4] Robert S. Summers, “Good Faith in General Contract Law and the Sales Provisions of the Uniform Commercial Code” (1968) 54:2 Va. L. Rev. 195.

[5] Colin Lew, “A Leap of Good Faith” [2012] 2 SJLS 416 at 418.

[6] Supra note 1 at [56].

[7] Howard O Hunger, “The Growing Uncertainty about Good Faith in American Contract Law” (2004) 20:1 JCL 50; Ng Giap Hon at [57].

[8] Matthew Harper, “The Implied Duty of ‘Good Faith’ in Australian Contract Law” (2004) 11:3 MurUEJL 22.

[9] [1992] 2 AC 128.

[10] Supra note 1 at [55].

[11] Zimmermann & Whitaker, ‘Good Faith in European Contract Law’ (United Kingdom: Cambridge University Press, 2000).

[12] Supra note 5 at p 421.

[13] McKendrick, “Good Faith: A Matter of Principle” in Forte, A.D.M., ed, Good Faith in Contract and Property (Oxford and Portland, Oregon, 1999) at 41.

[14] Supra note 5 at p 419.

[15] HSBC Institutional Trust Services Ltd v Toshin Development Singapore Pte Ltd [2012] 4 SLR 738 at [39].

[16] Supra note 8.

[17] V Sims, “Good Faith in English Contract Law: Of Triggers and Concentric Circles” (2004) 1:2 Ankara L.Rev. (Winter) 213 at 217.

[18] [2012] 4 SLR 738; [2012] SGCA 48 at [40], [42].

[19] Ibid at [41].

[20] Ibid at [45].

[21] Supra note 5 at p 439.

[22] Ewan McKendrick, Contract Law, 7th Ed (United Kingdom: Oxford University Press, 2016) at p 265.

[23] Lee Shen Yang, “A Look at ‘Good Faith’ in the Common Law” [unpublished, archived at CJ Koh Law Library] at p 12.

[24] Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] SGHC 71 at [151].

[25] Supra note 5 at p 440.

[26] Ibid at p 440.

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An Analysis of Genetic Affinity as an Actionable Head of Damages – ACB v Thomson Medical Pte Ltd

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The PDF version of this entry can be found here.

An Analysis of Genetic Affinity as an Actionable Head of Damages – ACB v Thomson Medical Pte Ltd

Suresh Viswanath

I. INTRODUCTION

In the recent case of ACB v Thomson Medical Pte Ltd [ACB]1, the Singapore Court of Appeal recognised a new head of damages for parents of children born out of medical negligence – that of “genetic affinity”.2 This article seeks to summarise the case for recognising genetic affinity as an actionable head of damages, and discuss some potential objections to this recognition.

II. BACKGROUND

A. Facts

The appellant underwent an in-vitro fertilisation (“IVF”) procedure and delivered a daughter (“Baby P”). Baby P’s skin colour was noticeably different from that of her parents. It was subsequently discovered that the appellant’s ovum had been fertilised with sperm from an unknown third party, instead of sperm from her husband. The appellant brought a suit in the tort of negligence and for breach of contract, and sought damages for, inter alia, the full costs of raising the child (“upkeep costs”).3

B. Decision on upkeep costs and loss of autonomy

The Court of Appeal did not allow recovery of upkeep costs4 because:

  1. The obligation to maintain one’s child is at the heart of parenthood. Parenthood is a relationship that is intrinsically incapable of valuation, and therefore its obligations cannot be a legally recognised head of damage.5
  2. It would be inconsistent with the nature of the parent-child relationship; parents’ personal interests as litigants would conflict with their duties as parents since they would be encouraged to show that their child is a “net loss” by exaggerating their infirmities and downplaying any benefits.6 A loving parent would therefore receive less in damages than a parent willing to “disparage and reject [his or her] child”.7

The court also rejected recovery for “loss of autonomy” because:

  1. The concept of “autonomy” is nebulous;8 some conceptions of autonomy only take into account an individual’s current desires, some additionally take into account their long-term desires, and others consider the importance of social relations in accounting for “autonomy”.9
  2. Damages for loss of autonomy would be vindicatory, rather than compensatory; damages could be awarded even if the defendant's act made a plaintiff better off. This would be incoherent with the compensatory concept of damage in the tort of negligence.10
  3. It would be over-inclusive, since any form of damage can “be reconceptualised in terms of a damage to autonomy”.11 This undermines “control mechanisms which keep recovery in the tort of negligence within sensible bounds”.12

However, the court was prepared to award damages for loss of “genetic affinity”.13 On the facts of ACB, the court quantified this loss as 30% of the full cost of raising Baby P.14

C. “Genetic affinity”

The court began from the premise that a person’s desire to have a child of their own (with their spouse) is a basic human impulse.15 In the “ordinary human experience”, parents and children are related by blood and share physical traits.16

Such blood relations are often significant to parents for several reasons. Firstly, parents may want children who are the literal physical manifestation of their parental union.17 Secondly, common traits may, for some, play a part in forging an emotional bond between parent and child.18 Thirdly, shared ancestry and genetic continuity can be important to religious and cultural belonging19 – for instance, there are often adverse social implications when a child has a different skin tone from their parents.20 These interests can be collectively referred to as “genetic affinity”.

The court was clear that it was not making a prescriptive definition of what a family should be or denigrating adoption.21 However, since the vast majority of people are biologically related to their families, there is a widely shared social construction of what a family is. Despite the fact that participation in different socially constructed units (families that do not share physical traits) may be rewarding, it might not provide the experience of blood relations that many people seek and value.22 People who undergo IVF treatment often do so at great difficulty and expense due to a conscious desire go through this “ordinary” experience of parenthood. In the court’s view, being denied this experience due to others’ negligence constituted a profound loss.23

III. DISCUSSION ON GENETIC AFFINITY

This author submits that the court’s decision on genetic affinity is to be welcomed for pinpointing the true loss suffered by the appellant, in the process recognising a head of loss unprecedented in any jurisdiction. This enabled the court to avoid an outcome which “most non-lawyers would doubtless find rather surprising”24 without having to ignore the concerns raised here and elsewhere25 regarding an award for upkeep costs or loss of autonomy. However, some objections have been raised26 as regards the recognition of an interest in genetic affinity.27 This section seeks to discuss these objections and highlight possible responses to them.

A. Issues related to discrimination

Firstly, it could be argued that an interest in “affinity” is inherently discriminatory. Although parents might possess an interest in having children with whom they share traits, the kind of traits they value often include things like physical appearance (such as skin colour). These are the very traits that modern society regards as illegitimate grounds for discrimination.28

This problem can be dealt with by drawing a distinction between discrimination in the public sphere and discrimination in private decisions about kinship and reproduction.29 The former usually has no legitimate purpose, and is motivated either by hostility to people who possess certain traits, or mistakenly uses these traits as a proxy for other qualities. On the other hand, choices motivated by affinity tend to emphasise symbolic traits which are significant due to their role in personal and social identity. They are not motivated by hostility towards people who do or do not possess such traits; rather, they merely celebrate characteristics that reinforce a sense of group identity. Neither are they proxies for any quality apart from membership of that group.30 Therefore, discrimination in decisions related to offspring appear not to be illegitimate in the way that discrimination is in the public sphere.

B. The importance of genes

A second argument questions the significance of genes in determining traits. Recognition of affinity as an actionable form of damage is premised on the idea that genes do, in fact, determine traits – however, some scientists have opined that the role of genes in determining traits is exaggerated and frequently misunderstood (this is essentially the age-old “nature vs nurture” debate).31

Nevertheless, even the strongest critics of genetic determinism concede that genes do play some role in determining personal identity, however small this may be. This is especially so for aesthetic traits, which are usually the ones emphasised by parents with an interest in affinity.32

It is also important to be clear that damages for affinity are not being awarded on the basis that one set of genes are somehow “less desirable” than another – rather, they are being awarded because the genes of the child are not similar to those of the parents.33

This is especially relevant in cases where a parent is having a child with a donated egg or sperm, rather than with one from their own spouse. In such cases, parents’ genetic choices sometimes stem not from a desire to have a child in their own image through common symbolic traits (affinity interests), but from a desire to impart functionally desirable traits to their children (eugenic interests). For example, the practise of advertising for egg donors in prestigious universities suggests that some parents seek children of high intelligence.34 If a parent seeks to impart in their children traits which they themselves lack, they are motivated by eugenic rather than affinity interests – their claim should not be allowed.

In any case, a claim for affinity seems unlikely to succeed in cases involving donated sperms or eggs, even where a mix-up affects symbolic rather than functional traits. In the Northern Ireland Court of Appeal decision of A and B by C (their mother and next friend) v A – Health and Social Services Trust (“A and B”)35, a mix-up in donated sperms caused the appellants (the children) to be born with a different skin colour from their parents.36 The Court of Appeal in ACB agreed with the decision in A and B that a difference in skin colour could not constitute an actionable form of damage.37 It should, however, be noted that this was a case where the children (rather than the parents) brought a suit; genetic affinity, as recognised in ACB, is a parental interest.38 Also, the court in ACB felt that the decision in A and B failed to consider the true harm – the lack of physical resemblance to parents – suffered by the appellants.39

Additionally, it is worth noting that in addition to the mother, her husband (the legal father) could also be eligible for an award for genetic affinity, especially since (unlike the mother) he has no genetic connection with the child.40

C. Quantification of damages

Thirdly, there are difficulties with the way the Court of Appeal chose to quantify the damages in ACB by benchmarking them against upkeep costs. The first issue here is that this results in the same policy objections that led to the Court of Appeal rejecting an award for upkeep costs; parents would be incentivised to exaggerate detriments and downplay any benefits gained from their children.41 The second issue is that benchmarking damages against upkeep costs is arguably incoherent with the nature of the damages being awarded; it is not clear how a percentage of a pecuniary award for upkeep costs takes into account the particular non-pecuniary harms suffered by the appellant due to loss of genetic affinity.42

Quantification of genetic affinity is undoubtedly difficult; the court accepted that its solution was not theoretically elegant, but stated that an elegant solution which attempted to quantify the appellant's actual losses would require it to engage in complex and controversial issues43 (some of which could be racially sensitive44). One alternative, proposed by a case comment that raised the above concerns, is to set a uniform award through parliamentary intervention, with the amount determined by consultation and studies.45 Being uniform, such an award would not compensate a particular plaintiff for the particular harms suffered. However, the authors of the case comment argue that a loss of genetic affinity is "abstractly incalculable" and that value judgments should not be made that genetic affinity is more important to some parents than others.47

D. Harm to children

Additionally, allowing an action for genetic affinity may cause psychological harm to a child – the litigation involved may make them feel that their parents do not value them, and that they are less desirable than a child with the parents' own genes.48 Similar arguments have been made against an award of upkeep costs both in Singapore and in other jurisdictions.49 The High Court of Australia in Cattanach v Melchior50 dismissed this argument; it held that in addition to being speculative (the harm caused to the child is uncertain, and children may discover the truth of their birth regardless of any litigation or lack thereof), there are also "many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted”.51 The court in ACB seemed to agree with the High Court of Australia on this point, giving the concern little weight with regard to upkeep costs.52

IV. CONCLUSION

The facts of ACB were tragic, and the legal issues complex; the case was described by the Court of Appeal as "possibly one of the most difficult" to come before it.53 As unfortunate as the circumstances were, it is probably not the last time that courts will have to deal with such issues, especially given the rising number of people relying on IVF to have children.54 In light of this, the decision on genetic affinity is extremely significant as it provides a substantial remedy for parents in cases of wrongful fertilisation.

[1] [2017] SGCA 20, [2017] 1 SLR 918.

[2] Ibid at [135].

[3] Ibid at [3].

[4] Ibid at [86].

[5] Ibid at [87]–[94].

[6] Ibid at [95].

[7] Ibid at [99].

[8] Ibid at [115].

[9] Ibid at [116]–[118].

[10] Ibid at [120]–[121].

[11] Ibid at [123].

[12] Ibid at [115].

[13] Ibid at [135].

[14] Ibid at [150].

[15] Ibid at [127].

[16] Ibid at [128].

[17] Fred Norton, “Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages” (1999) 74 NYU L Rev 793 at 798.

[18] Supra note 1 at [128].

[19] Ibid at [128].

[20] Ibid at [131].

[21] Ibid at [129].

[22] Ibid at [129].

[23] Ibid at [129].

[24] Margaret Fordham, “An IVF Baby and a Catastrophic Error - Actions for Wrongful Conception and Wrongful Birth Revisited in Singapore” [2015] Sing JLS 232 at 240.

[25] Supra note 1 at [61]–[66].

[26] Supra note 17 at 810–818.

[27] Hairul Hakkim and Kevin Ho Hin Tat, “Genetic affinity as a novel remedy for wrongful fertilisation – a case of assessing the incalculable?”  (9 April 2017), Singapore Law Blog (blog) online: <(http://www.singaporelawblog.sg/blog/article/182>.

[28] Supra note 17 at 810–811.

[29] Ibid at 810.

[30] Ibid at 811.

[31] Ibid at 812–813.

[32] Ibid at 813.

[33] Ibid at 814.

[34] Ibid at 814.

[35] [2011] NICA 28.

[36] Supra note 1 at [132].

[37] Ibid at [133].

[38] Ibid at [135].

[39] Ibid at [133]–[134].

[40] K.C. Vijayan, “New award for loss of genetic affinity a gain for IVF law”, The Straits Times (11 April 2017), online: <http://www.straitstimes.com/opinion/new-award-for-loss-of-genetic-affinity-a-gain-for-ivf-law>.

[41] Supra note 27.

[42] Ibid.

[43] Supra note 1 at [149].

[44] Supra note 27.

[45] Ibid.

[46] Ibid.

[47] Supra note 17 at 816–817.

[48] ACB v Thomson Medical Pte Ltd, [2015] SGHC 9, [2015] 2 SLR 218 at [16].

[49] McFarlane and Another v Tayside Health Board, [1999] UKHL 50, [2000] 2 AC 59 at 69D.

[50] (2003) 199 ALR 131.

[51] Supra note 1 at [77].

[52] Ibid at [83].

[53] Ibid at [210].

[54] Human Fertilisation & Embryology Authority, "Fertility treatment 2014: Trends and figures" (2016) at 49.

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Analysing the Need for Age Distinctions in Law

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The PDF version of this entry can be found here.

Analysing the Need for Age Distinctions in Law

Liew Jin Xuan

I. INTRODUCTION

In law, there are four main considerations taken into account by the Court when sentencing: retribution (or, more aptly, the punishment needing to fit the crime), deterrence, protection of the public, and rehabilitation. The weight accorded to each of these considerations varies with the age of the offender. Particularly for young offenders, the dominant consideration has been said to be rehabilitation.1 As explained by Yong CJ, the basis for this is that youths have supposedly better chances of reform in their formative years.2 A further consideration would be the aspect of culpability, which would fall under the retributive factor – impressionable teens may be “slightly less responsible than older offenders”.3

As a result, where youth and children are concerned, the law often adopts a more rehabilitative approach to sentencing. The law would look upon their mistakes more sympathetically,4 and this view that age is a measure of maturity is one adopted worldwide. While understandable, there are inherent flaws in such an approach. Firstly, it fails to consider instances where a person is a juvenile at the time of crime, but is past the age limit for juveniles at the time of trial. Secondly, the inconsistency of standards in law pertaining to what age limit to impose on each stage of maturity undermines the rationale behind prioritising rehabilitation for ‘minors’. Lastly, such a distinction acts as an overly blunt tool of justice and is, in fact, unnecessary.

II. DIFFERENTIATING BETWEEN THE TIME OF OFFENCE AND TIME OF TRIAL

In Singapore, a person can be considered a juvenile at the time of crime and yet still be held to the standard of an adult. As set out in the Children and Young Persons Act,5 age is calculated on the date when the Juvenile Court commences the hearing of the charge, not on the date when the offence was committed.6 The clearest manifestation of this would be that a 15-year-old can be charged in an adult Court instead of the Juvenile Courts if the case is not heard until he or she reaches 16 years of age.7 In effect, the rehabilitative consideration would be accorded lesser weight by the Courts if at the time of the trial, the person has grown past the age limit defining a ‘juvenile’.

If the law truly views the follies of youth more tolerantly as the young “don’t know any better”,8 it is incomprehensible why sentencing should focus on the time of the trial, merely because a person has ex post facto become older. It is precisely because the offence was committed when the juvenile was young and ignorant that the sentence should be lighter. This problem is exacerbated because of the possible time lapse between initiation of criminal charges and actual prosecution in Court.

III. ADULTHOOD VS. CHILDHOOD – INCONSISTENCY OF MEASUREMENT

Currently, inconsistencies between different Singapore statutes result in the odd outcome where a person can be both an adult and a child in the eyes of law.

For instance, the Children and Young Persons Act9 states that where a person is 16 or above at the time of trial, he or she is no longer under the jurisdiction of the Youth Court, and will be charged in the Subordinate Court like all adults. However, they are not yet considered adults according to the Civil Law Act,10 which states that a person must be at least 18 years of age before they can enter into a contract. As aptly explained in From Children to Citizens, “a 17-year-old may be treated as an adult on charges of committing a violent crime … but the same person could well be treated as a child for purposes of employment and other contractual relations, including marriage”.11

If the basis for prioritising rehabilitation in youth offender cases is because they are in their ‘formative’ years and vulnerable, this very basis is undermined by the varying standards held in general in law of how old, say, an ‘impressionistic teenager’ should be. The multiple standards suggest that even the law itself is confused as to the precise distinctions it should make between the age of a person who is still vulnerable and one who is already independent. One potential explanation for the plural standards in law could be that different concepts require different degrees of maturity to grasp. For instance, it is easier for the younger minds to understand that killing is wrong, but perhaps not why a marriage contract is more complicated than two people agreeing to live together. Yet if this is the true rationale, it would appear that the law is acting on the presumption of what a child can and cannot understand.

IV. CONCLUSION: AGE LIMIT AN OVERLY BLUNT TOOL

Ultimately, it would appear that the distinction between ages is a somewhat arbitrary distinction. Is a person who becomes 16 truly more mature than he was just one day prior?

Children under 7 years of age are immune from criminal liability.12 At 15, one gets charged in the juvenile court; turn 16, however, and the hearing commences in the subordinate court.

It is understandable that usage of age as a defining line roughly identifies those people who are deserving of a second chance. According to the Ministry of Social and Family Development, the recidivism rate of juveniles under rehabilitation schemes have been quite low – generally under 20% across the board – indicating its great success.13 Yet this gives the impression that law tends to judge the ‘worthiness’ of a person to whom a second chance would be provided based on his or her age and the correlated ‘probability’ of success.

Also, the current state of law provides discretionary powers both to deny rehabilitative approaches for young offenders14 and to grant probation to adult offenders. The use of age distinctions is hence not only unnecessary, but even encumbers judicial fairness. In PP v Muhammad Nuzaihan bin Kamal Luddin,15 the District Court merely sentenced the convict to 30 months’ probation. This was aptly reversed by Yong CJ upon appeal to reflect the seriousness of cyber-crime and Parliamentary intention to deter such behind the Computer Misuse Act.16 The method by which the Court reached its decision is one that should be widely adopted: rather than deciding solely based on age, each individual should be allowed rehabilitative approaches based on the overall merits of their case. Arbitrary age distinctions are unnecessary as sentences can be prudently determined without it. The age of the accused should only constitute one of several factors, and should vary in importance depending on the precise factual matrix. Indeed, it is noted that children between ages 7 and 12 are protected from criminal liability under s 83 of the Penal Code17 as long as they have not “attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion”. In fact, it is proposed here that children should be protected only if they have not attained the requisite maturity as judged on a case-by-case basis.

The law is not a catch-all safety net: there are bound to be people who will fall through the cracks. The situation today continues to be flawed, but hopefully, things may just change for the better. The age distinction may arguably more practical than having to judge each case on a case-by-case basis, and it has been effective thus far. However, it is proposed that rather than having it written in the statute itself, age distinctions can simply serve as a useful guide in deciding the culpability of the offender, rather than usually acting as a free ticket to forgiveness for the ‘young’, and a bias against the ‘adult’ – who may just be a year apart.

[1] Public Prosecutor v Mok Yuen Ping Maurice [1998] 3 SLR(R) 439 at [21].

[2] Ibid.

[3] Ibid.

[4] Parliamentary Debates Singapore: Official Report, vol 87 at cols 2105-2106 (10 January 2011) (Minister for Community Development, Youth and Sports Dr Vivian Balakrishnan).

[5] Cap 38, 2001 Rev Ed Sing, s 33(6).

[6] (2010) 8:3 BJCJ 63 at 64.

[7] Ibid.

[8] Supra note 1.

[9] Supra note 5.

[10] Cap 43, 1999 Rev Ed Sing, s 35.

[11] Francis X. Hartmann, From Children to Citizens Volume II: The Role of the Juvenile Court, 1st ed (New York: Springer-Verlag, 1987) at 4.

[12] Penal Code (Cap 224, 2008 Rev Ed Sing), s 82.

[13] Ministry of Social and Family Development, “Juvenile Delinquents: Recidivism Rate” (14 April 2016), online: <https://www.msf.gov.sg/research-and-data/Research-and-Statistics/Pages/Juvenile-Delinquents-Recidivism-Rate.aspx>.

[14] PP v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR(R) 653 at [16].

[15] Supra note 14.

[16] Cap 50A, 1993 Ed.

[17] Cap 224, 2008 Rev Ed Sing.

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Obiter, Obiter, Obiter

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The PDF version of this entry can be found here.

Obiter, Obiter, Obiter

Lai Wei Kang, Louis

I. INTRODUCTION

One of the ways lawyers come into their own is by honing the distinction between the ratio decidendi and obiter dicta of cases. This distinction is taught since the beginning of their arduous journey in law school, yet emphasized throughout their career as one of paramount importance. Obiter in the courtroom is often relegated and back-benched; counsel may demonstrate his wealth of knowledge, but succeeds only by distilling and employing ratio.

This article argues, contrary to the general observation of a humble freshman, that obiter should not be dismissed. The paradigm is that dicta is secondary, but just as rules are subject to exceptions, human paradigm is malleable to so much more; in many instances, dicta remains an invaluable form of judicial guidance. Furthermore, with recent developments and unique local circumstances, obiter dicta is likely to become invaluable.

II. PRIMARY OF RATIO DECIDENDI

Ratio decidendi is recognized as the section of judicial reasoning with direct correlation to material facts at hand.1 In a system of common law, it is widely recognized as the most valuable section of a judgment, and is the only part which binds lower courts in vertical stare decisis. Generally, the law avers from contemplating anything but the ratio: apart from making unnecessary complications in interpreting judgments, lawyers are taught that the law operates with analogical reasoning, and like cases must be decided alike. The most predictable result for a present case can only be drawn from another precedent that is “on all fours” with it; if favourable precedent is dissimilar from the present case in any way, the dissimilar facts must not concern the key reasoning behind judgment. The value that the law places on ratio is obvious from the devotion of legal practitioners in refining their skill of crystallizing the ratio decidendi of cases.

In contrast, students and practitioners of the law are incessantly reminded of the need – not only to omit – but to criticize and rebuke the use of obiter dicta. The obiter dicta of the judgment encompass every other part of the judgment not included within the ratio decidendi.2 Just as the ratio is persuasive in law, the obiter is rarely sufficient to convince; without direct bearing on the ultimate decision of the court, obiter are but commentary – passing remarks by judges that can be made without similar care to ratio.

This, however, does not seem true in any common law jurisdiction, and especially not in Singapore. The effort made by judges in commentary, both in their judicial capacity and in extra-judicial sitting, do not seem to commensurate with legal instinct that obiter is irrelevant. In fact, many of the advances made in substantial law are drawn from pure obiter, which have guided local courts in making decisions even before the opportunity to formulate a ratio arose.

III. OBITER COMPENSATES FOR RESTRICTED RATIO

Ratio decidendi faces limitations which obiter does not. In explaining the ratio decidendi of cases, judges adhere to the principles of legal precedents set before them, and strictly apply material fact to rule. As complex as it is promulgated thereafter, the ratio decidendi is essentially an input-output system. What elegant expression masks is legal machinery that makes binary decisions on minor tests.

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The persuasiveness of ratio is precisely due to and correlated with its limitations. Ratio is most powerful when it is restricted to key and analogous facts, and it is a fish out of water outside of such limited circumstances.

In contrast, the commentary made by judicial practitioners has wider applicability than the ratio decidendi of a case. Judges may consider the application of novel legal principles in alternative factual circumstances, (their opinion) on the disposition and direction of the law, and other comments they may have.3

At times, the decisive turn of a judgment may be found in dicta instead of its ratio decidendi. Where decisions are made and the arm of prevailing legal principle is twisted to achieve a just solution, obiter dicta may better explain the results achieved. For instance, the unsatisfactory state of the postal acceptance rule was not supplanted but circumvented in antecedent cases such as Holwell Securiities v Hughes4, where the generality may be excepted by specifically requiring “notice in writing” or would produce “manifest inconvenience and absurdity”. In effect, Holwell Securities v Hughes traced the dissent of Bramwell LJ in Household Fire & Carriage Accident Insurance Co Ltd v Grant5; the strenuous evasion of the tricky postal acceptance rule followed the expiration of policy considerations encouraging the use of postal delivery for contracts. Yet judges remain hesitant to remove a doctrine entrenched in the law of contract due to respect for the weight of precedent and fear of a vacuum left in the law of acceptance; thus, most of their deliberations are found in obiter.

In fact, the undisclosed rationale for decisions may easily be found in ostensibly unrelated comments and dicta. A novel application of psychological Freudian analysis to judgments6 discovered undercurrents to decisions, which were related to neither material fact nor legal principle. The authors found that judges could potentially “reach an early decision” before “iterating backwards…[to] an optimal solution to resolving the case”. Notwithstanding fervent hopes that such is anomalous, one cannot now discount the assistance that dicta provide in navigating to the heart of a judgment.

IV. MUTUALLY REINFORCING AND INSEPARABLE

Often, ratio decidendi makes little sense without the obiter dictum. Obiter explains the ratio of the case in relation to judicial principles, and the ratio decidendi is not amply convincing without its obiter. At times, judges may even establish limits and exceptions to ratio in their remarks.7

In fact, judges make a conscious effort to deal with obiter. Rare is the instance where a judge remarks that another’s word are “just obiter” or “dicta”; and even on such occasions, judges do not disapprove the dicta of another on that basis alone. For instance, Megarry J denied a submission that comments could be dismissed on the basis of being mere dicta. He reinforced the position of dicta with “the highest authority that any dictum can bear”, classifying “a third type of dictum” which bore the authority not only of the judge’s own opinion, but that of “an unseen cloud of his judicial brethren”.8 The spirited defence above evinces wide recognition that dicta carries significant weight; the opinion of as learned a practitioner in law as a judge cannot be so sorely mistaken as to be waived with a simple label of “obiter”.

Furthermore, one cannot truly isolate the obiter. Much to the dismay of the concerted efforts of practitioners, there is no clear demarcation between the ratio and obiter of a case; the interpretation of judicial reasoning is as uncertain as it is human. What is thought to be circumstantial to one lawyer could have substantive value to another.

With multiple lines of reasoning, what takes the position of ratio can be contested. Will only one applicable line of reasoning be accepted as binding judicial precedent? Competing ratios may ultimately undermine the decisive value of ratio as well.

V. DICTA MAKES LEAPS AND BOUNDS IN INCREMENTAL DEVELOPMENT

In the doctrine of judicial precedent, the use of ratio decidendi is purposed for a slow and careful development of the law. Although wariness is want in larger jurisdictions, slow development by analogy to past cases disadvantages smaller jurisdictions; opportunities to develop substantial law in one area may be limited by the regularity of cases coming forth. Judges may therefore use dictum to advance the law’s development; doing so is not incompatible with taking care in the law, and may be entirely justified by a plethora of considerations. For instance, where precedents differed over when consideration is provided for contract modifications, Arden LJ advanced an alternative idea of a “collateral unilateral contract” in MWB Business Exchange Centres Ltd v Rock Advertising Ltd9 to reconcile the precedents. While it may not have been necessary given that Kitchin LJ had not resorted to such a mechanism, the spate of dissonance welcomed a thorough effort to resolve it. One can hardly deny that the rules on “Himalaya clauses” developed in a similar fashion; the cases of The Eurymedon10 and The New York Star11 built on dicta left by Reid L in Scruttons v Midland Silicones12, fleshing out the solution for carriers seeking to protect their stevedores from liability to consigners. After all, the English courts have nothing to lose, and all to gain, from contemplating all viable options to open questions in law.

With the growth of alternatives to litigation in other forms of dispute resolution13 – most of which carry limited precedential value14 – common law jurisdictions may lose their source of incremental development. Under such circumstances, obiter may easily become more valuable.

Similarly, where the number of circumstances is limited – and desirably so – in a small jurisdiction like Singapore, obiter has significance since it is the quickest manner in which law can develop. Unlike larger jurisdictions which have had centuries of time to develop their laws with analogy and incremental development, states like Singapore with little more than half a century inevitably rely heavily on obiter dicta. In both Ngiam Kong Seng v Lim Chiew Hock15 and Man Mohan Singh s/o Jothirambal Singh v Zurich Insurance (Singapore) Pte Ltd16, the Singapore Court of Appeal applied the autochthonous legal test for a duty of care17 in full in spite of both claims having failed on the threshold requirement of factual foreseeability. Owing to the restricted size of jurisprudence, the honourable Judges of Appeal seized the opportunity to examine the application of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency in psychiatric injury claims. The distinction between primary and secondary victims of psychiatric injury18 would not have been removed from Singapore law but for Andrew Phang JA’s dicta. Obiter dictum could thus supplant ratio in developing the law when:

  • a. Obiter is used to explain the preferred route of the law in the future, where the ratio decidendi cannot because the case itself does not lend a factual matrix appropriate for a legal issue to be addressed.
  • b. Obiter is used to make up for the lack of situations in which a binding ratio decidendi can be formulated
  • c. Obiter provides the widest explanations of multiple answers in law, and therefore expedites the law’s incremental development

VI. CONCLUSION

An American reference details that apart from the formal restrictions on dicta, dicta is sparingly used because “the reader may view its use as an attempt to misstate the law”.19 Perhaps the true concern of lawyers and judges alike is not truly against dicta being mere comments per se, but really against negligence and malice. Yet if this is the concern, our motivations to study obiter dicta should be stronger. While it would appease the rudimentary to know of ratio, a true and complete comprehension of the law cannot be achieved without reading dicta. If students, practitioners and critics of the law are to answer a calling above a vocation, then blindness to dicta will only cause us to fall short of our standards, and do injustice on those relying on our expertise.

[1] See Robert C. Beckman, Brady S. Coleman, Joel Lee, Case Analysis and Statutory Interpretation, (Singapore: National University of Singapore Faculty of Law), 76 for the definition ofratio. Further, the authors provide ample warning at p 63 that “the rule of law stated in a case…may not incorporate the material facts…[students] must be cautious and not assume that this wide proposition of law will be accepted as the ratio decidendi”.

[2] Ibid at 65, where obiter is referred to as “statements in a judgment which are not part of the decision, but which nevertheless are important”; at p 76 such significance is then redacted to being “at the most persuasive”.

[3] Ibid at 65, dicta assists in “predicting how related issues might be decided in subsequent cases”, especially when a noteworthy judge provides insight that “are not necessary to the decision in the present case”, or set “possible limits or exceptions” to the ratio.

[4] [1974] 1 All ER 161.

[5] [1879] 4 Ex C 216.

[6] Foo Check Teck, “Freudian Analysis of a Judgment”, Singapore Law Gazette (7 February 2003) (http://www.lawgazette.com.sg/2003-2/Feb03-feature3.htm).

[7] Supra note 3.

[8] Richard West and Partners v Dick [1969] 2 WLR 383 at 388A-D.

[9] [2016] EWCA Civ 553 at [89]. By devising a “collateral unilateral contract” over existing contracts, Professor Mindy Chen-Wishart’s device as borrowed could resolve a dispute over whether an agreement to accept payment by instalment was enforceable under consideration. This dispute recognizably plagued English Law since precedents of In re Selectmove [1995] 1 WLR 474 and Williams v Roffey Brothers [1991] 1 QB 1 were diametrically opposed on the issue.

[10] [1975] AC 154.

[11] [1980] 3 All ER 257.

[12] [1962] AC 446 at 472-479.

[13] The growth of alternative dispute resolution mechanisms (“ADR”), especially in Singapore, can be taken as trite. Notwithstanding the variety of reports, even leading textbooks recognize that ADR has seen “phenomenal development” and “is set to become an undeniable aspect of the Singapore legal system”. (Supra note 1 at 39).

[14] The rare instances in which alternative dispute resolution mechanisms have binding authority are when they are subject to judicial review: for example, see Clea Shipping Corp. v Bulk Oil International Ltd [1983] 2 Lloyd's Rep 646, where the Queen’s Bench considered and agreed on the arbitral decision.

[15] [2008] 3 SLR(R) 674.

[16] [2008] 3 SLR(R) 735.

[17] Often and affectionately called the Spandeck test, as derived from Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100.

[18] Originating from Page v Smith [1995] UKHL 7.

[19] Richard K. Neumann, Jr., Kristen Konrad Tiscione, Legal Reasoning and Legal Writing, 7th ed, 90.

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Active Mobility Bill: Liberalising the Use of Personal Mobility Devices on Public Paths

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The PDF version of this entry can be found here.

Active Mobility Bill: Liberalising the Use of Personal Mobility Devices on Public Paths

Agnes Lo

I. INTRODUCTION

The Active Mobility Bill [Bill]1 was drafted in response to the Ministry of Transport's stance that cycling and the use of personal mobility devices (PMD) complements our public transport strategy, particularly for first-mile and last-mile trips to bus interchanges or MRT stations, and for short trips within towns.2

This article will discuss the government’s efforts to promote safe cycling and use of PMD on public paths3 through regulatory levers under the Bill. I will not discuss the tightened regulation of electric bicycles as such regulation was proposed as separate amendments to the Road Traffic Act 4 instead.

II. ACTIVE MOBILITY BILL

The Bill was read in Parliament for the second time in January this year.5 It seeks to establish public paths for walking, cycling and regulate the use of these public paths. Walking, cycling and use of PMD – collectively referred to as forms of Active Mobility – are viable alternatives to driving that can move us closer to a car-lite nation, while contributing to a more liveable, pleasant and sustainable urban environment.

Once passed into law this year, selected PMD that comply with the prescribed technical criteria will become legally allowed on public paths when used in a safe manner, governed by a set of rules and codes of conduct. This includes skateboards, electric scooters and hover-boards. PMD, which are unregistered vehicles, cannot be used on the roads. This is reinforced by the enactment of express provisions in the form of new sections 5A and 5B in the Road Traffic Act6 that prohibit the use of PMD on roads and when towed by a motor vehicle. Nonetheless, PMD can be used in limited instances on roads such as to avoid an obstacle on a footpath or when crossing a road.

To accommodate the ageing population in Singapore, wheelchair users and those riding a mobility scooter would be legally allowed to do on any paths used by pedestrians. The Active Mobility Advisory Panel (AMAP)7 did not recommend to introduce physical criteria for motorised wheelchair or mobility scooter as these devices are used primarily by persons with disabilities as their sole means of transport and typically do not travel above the average jogging speed.

Complementing the Government’s enforcement efforts to ensure safe sharing of public paths, the Bill enables LTA to empower volunteers under the Active Mobility Patrol Scheme to obtain personal particulars of individuals suspected of committing an offence for subsequent investigation by LTA. The Bill also stipulates stiff penalties for reckless riding behaviour, sale of non-compliant devices and modification of devices. For instance, riders found to be riding recklessly can be liable to a fine of up to $5,000 or imprisonment for up to 6 months, or both. In situations of accidents or crashes, the driver of a vehicle or PMD who fails to offer assistance to the victim and report the accident can be liable to a fine up to $3,000 or imprisonment for up to 12 months, or both.

A. When used safely and responsibly, bicycles and PMD offer great convenience and benefits

In cognizance of the paramount importance of protecting users of public paths against dangerous conduct by a minority of reckless users, the Bill legislates control and usage measures recommended by the AMAP.8 The Bill requires all cyclists and PMD users to observe a speed limit of 15km/h on footpaths and 25km/h on shared paths. Furthermore, a device cannot be used on public paths if it:

(1) is heavier than 20kg; (2) is wider than 70 cm; or (3) has a maximum speed that can exceed 25 km/h.

This is because such devices have a high propensity for serious accidents. Typically, accidents happen not because a non-compliant device is used, but rather the device was used in a reckless manner without due regard for the safety of others. To this end, the AMAP has recommended a list of rules and code of conduct,9 designed to be simple and easy to apply while balancing the needs of the different users. The key rules include requiring the parties to stop to render assistance and exchange personal particulars when involved in an accident to deter “hit and run” incidents, to equip devices with lights visible from the front and back and to switch them on during hours of darkness to ensure visibility, to disallow cycling against the flow of traffic and more than two bicycles to cycle abreast on smaller roads to balance against slowing down motorist traffic.

The Code of Conduct is a set of documents issued by LTA or other persons to provide practical guidance to the use of public paths without creating any enforceable legal right. Examples of the Code of Conduct include to encourage device users to give way to slower-moving pedestrians on public paths, slow down to prepare to stop upon reaching high pedestrian bus stops, either “walk the bike” or “dismount and push” if necessary and to stop before crossing pedestrian crossings at walking speed. Compliance with the rules and code of conduct would ensure a safer and more gracious shared space for all.

B. Enforcing the new rules to augment public education to promote a culture of path sharing

Recognising the need for heightened enforcement to encourage compliance and to expedite the cultural shift needed to minimise potential conflicts between path users, the LTA had set up a dedicated team of Active Mobility Enforcement Officers (AMEO). Since May 2016, the AMEO has been patrolling hotspots where many cyclists and PMD users frequent, and have issued advisories to over 860 cyclists and PMD users for unsafe behaviours on footpaths and shared paths, and seized 20 e-scooters users caught riding on roads in the last 6 months.10 LTA will continue to partner with Traffic Police to clamp down on reckless riding behaviour.

Public education is a key strategy to engage and involve members of the public through a mix of outdoor, online and printed media, including campaigns. Examples include the Safe Riders campaign11 and the Safe Cycling Programme12 to be progressively rolled out in schools, community centres and foreign worker dormitories to inculcate greater awareness of the new rules and code of conduct. Over 600 volunteers from the grassroots will be given limited enforcement powers13 under the Active Mobility Patrol Scheme to support the AMEO’s enforcement and public outreach efforts.14 Retailers of PMD have also been educated on the criteria for devices that can be used on public paths and the consequences of selling non-compliant devices.15

C. When conflict happens between path users

Close to the hearts of many is what is the recourse should their loved ones be involved in an accident with an errant cyclist or PMD user. In the landmark case of PP v Lim Choon Teck,16 Lim collided into a 69 year old woman as he was cycling along a narrow pavement at an “unsafe speed” with his view obstructed by a signage board and could not stop in time when he realised that the victim and her husband were approaching the bus stop from the walkway connected to a block of flats. The District Court sentenced him to an imprisonment of 8 weeks. In another case, a 53 year old housewife was hit by an electric scooter and remained unconscious in the hospital.17

A point of contention in the Lim Choon Teck case was that the defendant had no third-party insurance. Apart from criminal prosecution where the court will consider compensation to be paid to the victims in accidents involving bicycles or PMD, the victims can also obtain remedies by initiating civil lawsuits or through private settlements. Responding to suggestions for mandatory third-party insurance, Senior Minister of State for Transport Mrs Josephine Teo explained that such schemes are not only ineffective given the broad range of cyclists and PMD users, they are also onerous and costly for the vast majority of users who behave responsibly and safely. Even cities with a strong Active Mobility culture, like Amsterdam and Copenhagen, have not moved towards mandating device registration or insurance.18 Nonetheless, frequent cyclists and PMD users are encouraged to buy third-party insurance which is available in the market.19

III. CONCLUSION: A CHANGING LANDSCAPE

We have seen cyclists and pedestrians co-exist harmoniously in the same space in densely populated cities like Tokyo and Amsterdam. 37% of all trips in Tokyo are made on foot or on bicycles, compared to 17% in Singapore today.20 Singapore should strive to emulate Tokyo’s success by tapping on our people’s civic mindedness and consideration for others. This would go towards making Singaporean an attractive walking and cycling city.

[1] Active Mobility Bill (No 40 of 2016, Sing)

[2] Parliamentary Debates Singapore: Official Report, vol 93 (11 March 2015)

[3] Public path refers to a path declared under clause 6 of the Bill for use by members of the public as a pedestrian-only path, a footpath; or a shared path and excludes unformed or unsurfaced paths and green verges.

[4] (Cap 276, 2004 Rev Ed Sing)

[5] Parliamentary Debates Singapore: Official Report, vol 94 (10 January 2017)

[6] Supra note 4.

[7] The Active Mobility Advisory Panel comprises of 14 members representing the key stakeholder groups such as seniors, youth, grassroot leaders, cyclists, motorists and users of PMD, led by Parliamentary Secretary Associate Professor Muhammad Faishal Ibrahim, to consult the public and develop a clear set of rules and code of conduct, so that public paths can be shared and used safely and harmoniously by the different user groups.

[8] Parliamentary Debates Singapore: Official Report, vol 94 at pages 46-47 (10 October 2016) (Senior Minister of State for Transport Mrs Josephine Teo).

[9] Land Transport Authority, “Walk Cycle Ride: Rules and Code of Conduct”, online: < https://www.lta.gov.sg/content/ltaweb/en/walk-cycle-ride/rules-and-code-of-conduct.html>

[10] Channel News Asia, “20 E-scooters seized after users caught riding on roads”, online: <http://www.channelnewsasia.com/news/singapore/20-e-scooters-seized-after-users-caught-riding-on-roads/3267914.html>.

[11] Land Transport Authority, “Press Release: Pledge to be a Safe Rider Today”, online: <https://www.lta.gov.sg/apps/news/page.aspx?c=2&id=d3491ec2-7f1e-4a1a-95ab-9904196ab1ff>.

[12] Parliamentary Debates Singapore: Official Report, vol 94 (12 Apr 2016) (Senior Minister of State for Transport Mrs Josephine Teo).

[13] The enforcement powers include documenting photo and video evidence and obtaining personal particulars from suspected offenders.

[14] Supra note 5.

[15] Supra note 8.

[16] [2015] SGHC 265, [2015] SLR 1395.

[17] Straits Times, “Woman still unconscious after e-scooter accident”, online: <http://www.straitstimes.com/singapore/woman-still-unconscious-after-e-scooter-accident>.

[18] Supra note 8.

[19] Supra note 5.

[20] Supra note 8.

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Analysing the Limits of Cross-Examination in Sexual Offence Trials

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A PDF version of this entry can be found here.

Analysing the Limits of Cross-Examination in Sexual Offence Trials

Ho Yu Xuan

I. INTRODUCTION

In the recent case of PP v Xu Jiadong1 (“Xu Jiadong”), the deplorable conduct of the defendant’s counsel in the courtroom gave the Magistrate Court the opportunity to remind members of the legal profession of their responsibilities not only to their clients, but also to the justice system and the legal profession at large, when they discharge their professional duties. As set out in the Legal Profession Rules,2 although a legal practitioner has an obligation to act in his client’s best interests, this duty is subject to the practitioner’s paramount duty to the court. He is expected to be fair and courteous towards every person in respect of his professional conduct. 3

This article will examine the background behind the case and the implications it raises on how counsel should conduct their cross-examinations, in particular where victims of sexual offences are concerned. It submits that underhanded tactics such as insulting and making vulgar imputations at victims and witnesses is unacceptable in any setting, let alone within a court of justice, and our courts ought to be vigilant against such counsels which resort to such practices.

II. BACKGROUND

In Xu Jiadong, the defendant, Mr Xu, faced 1 charge under s 354(1) of the Penal Code,4 for allegedly outraging a woman’s modesty by brushing against her breasts with his forearm while on a MRT train. During the trial, Mr Xu’s lawyer (“defence counsel”), cross-examined the victim, and asked the victim to stand up, ostensibly to see how attractive the victim was. This request was challenged by both the victim and the Deputy Public Prosecutor (DPP) as offensive and insulting. Upon further probing by the DPP, the defence counsel explained to the court that he wanted to “show that if she (the victim) is wearing a very low cut with a very voluptuous breast protruding out”, which may have created a temptation for his client (or anyone else) to molest the victim.

In his written judgement, District Judge Shawn Ho (‘the judge”) dedicated 6 pages to condemn the defence counsel’s conduct as “completely unacceptable and deserves disapprobation”.5 The judge condemned the defence counsel for staring at the victim’s chest as it made the victim re-live her experience of being molested on the train again, causing her considerable emotional distress. The judge also considered the offensive questions on her breast size was an abuse of the cross-examination process, and cautioned that such improper humiliation of sexual offence victims may deter future victims from coming forward.6

The defence counsel’s contemptible conduct was also widely reported in print and online media, and prompted even the Law Minister K Shanmugam SC to criticize his conduct. The Attorney-General’s Chambers filed a disciplinary complaint with the Law Society against him several days later (as of writing the outcome of the complaint is not yet decided). This is the second time in the year that a complaint has been lodged against the defence counsel – a previous complaint was filed against him in November 2015 for using expletives in the course of a criminal trial.7

III. ANALYSIS

As the judge explained in his written grounds of decision, the defence counsel’s repeated probing of the victim’s breast size during the cross-examination was a flagrant breach of s 153 and s 154 of the Evidence Act. s 153 prohibits questions or inquiries which the court regards as indecent and scandalous (unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed) and s 154 prohibits questions that are intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form. These 2 sections are encapsulated in Rule 12(5) of the Legal Profession (Professional Conduct) Rules 2015:

12(5). A legal practitioner must not make any statement, or ask any question, which is scandalous, is intended or calculated to vilify, insult or annoy a witness or any other person, or is otherwise an abuse of the function of the legal practitioner.

Although defence counsels have a duty to their clients to defend them by challenging and discrediting the evidence against them (including the victim’s testimony) during the cross-examination, this must be balanced against their duties owed to the court to ensure the administration of justice – for which further traumatizing the victim would be counter-productive. To maintain this delicate balance, lawyers must thus approach cross-examination of vulnerable parties (such as children or victims of sexual offences) with a requisite degree of sensitivity while trying to ascertain their testimony.

Lines of questioning that are irrelevant, scandalous, or insulting will be considered as an abuse of the cross-examination for collateral purposes, as it is obviously not an authorised purpose of cross-examination.9 The defence counsel’s conduct here was clearly a blatant breach of both professional regulations and the Evidence Act, and the judge had acted correctly in bringing his boorish questioning of the victim to an abrupt end before she could be further traumatized, and condemning his behaviour subsequently.

In any case, the defence counsel’s attempt to use the victim’s breast size and attractiveness to explain his client’s temptation to molest the victim is a misogynistic and outdated argument to try to push the blame for his client’s outrage of modesty back to the victim herself. Such assertions have no place in the legal system of a modern egalitarian society like Singapore, and the judge rightly chose not to factor in any such “temptations” when deciding Mr Xu’s sentence.

IV. ARE ADDITIONAL SAFEGUARDS NECESSARY?

Sadly, inappropriate questioning of sexual offence victims does not appear to be the exclusive province of lawyers. In a recent case, a Canadian provincial court judge had questioned a rape victim on why couldn’t she “just keep her knees together” to avoid penetration. These misogynistic questions created a huge outcry among the public, the mainstream media, and other law academics. The judge in question was eventually suspended, made to attend sensitivity training, and was recommended to be removed from his current position as a Federal Judge after a hearing by the Canadian Judicial Council.11 However, this episode reveals that even in a supposedly progressive country such as Canada, the antiquated idea that a victim is partly to blame for his/her own assault because of her looks, actions, or dressing still exists.

Many Western countries have recognized that although the defendant must have the right to a fair trial, some measure of protection is needed for victims of sexual offence to encourage them to come forward to testify and help bring perpetuators to justice. As a result, these jurisdictions have developed “rape-shield laws”, which prohibit defence counsels from using a sexual assault victim’s sexual history as evidence against them during cross-examination. These forms of legislation were intended to protect the victim from the stigma and humiliation of having her sex life publicized in court. However, such laws have been challenged by defendants in sex offence cases as unfairly denying them the opportunity to raise evidence on their past relationship with the victim to prove consent.12 Any proposed rape shield law will have to balance between these policy concerns.

While Singapore has yet to implement similar rape shield laws, persistent lobbying by feminist activist groups such as AWARE13 have led the government to move to repeal s 157(d) of the Evidence Act, which allows a man accused of rape to discredit his accuser by producing evidence of her “generally immoral behaviour” (which usually refers to her sexual history). This represents a large step forward, since under s 157(d)a victim of sexual assault would be unfairly prejudiced if the court casts judgment on her as unchaste or promiscuous, and her testimony deemed less credible.14

Our courts have not been blind to such developments. In the case of Ng Jun Xian v Public Prosecutor,15 the High Court expressly rejected the defence counsel’s attempt to attribute culpability for a sexual assault to the victim, on grounds that she was a club hostess and had sent “mixed signals” to the accused by agreeing to accompany him to a hotel, and reiterated that counsel should “refrain from making baseless submissions that disparage the character, integrity or morality of a victim in an attempt to shift blame to the latter”.16 Looking ahead, it remains an open question on whether the government will attempt to regulate the conduct of defending counsels in sexual offences trials in a similar manner as our Western counterparts, or whether it will rely on the legal profession to self-regulate itself.

Although lawyers undoubtedly have a duty to do their utmost when representing their clients, this must be balanced against their paramount duty to the justice system and their role in maintaining the integrity of a noble and well-respected profession. The defence counsel’s regrettable conduct of the cross-examination in Xu Jiadong is unquestionably an egregious breach of his duty to act honourably, and did not appear to have helped his client much in any case.

Lawyers in Singapore are well-advised to take heed from this example, and refrain from making indecent or offensive remarks or making inquiries that are designed specifically to annoy, insult, or humiliate the other party. As seen in the above case, our courts are extremely unlikely to tolerate such underhanded strategies, and the ultimate victim of these tactics would be the lawyer’s own professional reputation, and possibly even his position in the legal profession.

*Since this article was written, the Singapore Law Gazette has published a similar discussion regarding imputations against complainants in cases of sexual offences. If you are interested to read more on this subject, you can find the article here.

[1][2016] SGMC 38.

[2] Legal Profession (Professional Conduct) Rules 2015.

[3] Ibid.

[4] Cap 224, Rev Ed 2008.

[5]Supra 1 at [111].

[6]Supra 1 at [106] – [110].

[7] Attorney-General’s Chambers (2016), Attorney General Chambers files Disciplinary Complaint to Law Society against Mr Edmund Wong Sin Yee, online: <https://www.agc.gov.sg/DATA/0/Docs/NewsFiles/[AGC%20Media%20Statement]%20AGC%20Files%20Disciplinary%20Complaint%20to%20Law%20Society%20Against%20Mr%20Edmund%20Wong%20Sin%20Yee.pd>

[8] Cap 97, Rev Ed 1997.

[9] Supra 1 at [103], citing Professor Jeffrey Pinsler S.C. in Evidence and the Litigation Process (LexisNexis, 5th Ed, 2015).

[10] AJ Willingham (2016), Judge to woman in rape case: 'Why couldn't you just keep your knees together?', CNN online: <http://edition.cnn.com/2016/09/12/world/robin-camp-rape-comments-trnd/>

[11] Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council (2016), In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable Justice Robin Camp –https://www.cjc-ccm.gc.ca/cmslib/general/Camp_Docs/2016-11-29%20CJC%20Camp%20Inquiry%20Committee%20Report.pdf

[12] R v Darrach, [2000] 2 S.C.R. 443.

[13] Association for Women for Action and Research – a major Singaporean non-governmental organization concerned with promoting gender equality.

[14] AWARE (2011), Section 157(d) of Evidence Act: Repeal it, online: <http://www.aware.org.sg/2011/11/section-157d-of-evidence-act-repeal-it/>

[15] [2016] SGHC 286.

[16] Ibid at [43].

 

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Analysing the Recent Changes to Legislation Surrounding Foreign Domestic Workers in Singapore

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The PDF version of this entry is available here.

Analysing the Recent Changes to Legislation Surrounding Foreign Domestic Workers in Singapore

Madeleine Poh 

I. INTRODUCTION

According to recent International Labour Organization estimates, there are 11.52 million migrant workers in the world.1 237,100 of them reside in Singapore as of June 2016 and judging the trend from previous years, the numbers are projected to increase.2 With the recent celebration of the 7th Foreign Domestic Worker’s [“FDWs”] Day on 11th December 2016, it is opportune to acknowledge how far the law has come to protect the rights of FDWs and recognise that more can be done to further safeguard these rights. This article focuses on FDWs because the exclusively domestic setting in which they perform their employment duties makes regulation of their work conditions extremely challenging and every breakthrough is laudable. Furthermore, the presence of FDWs in Singapore makes ensuring that they have fair and reasonable rights a local affair.

I will evaluate some positive legislative developments and their effectiveness, namely the initiatives taken by Ministry of Manpower and sanctions for errant employers before proposing some general reforms.

II. POSITIVE DEVELOPMENTS

A. Ministry of Manpower Initiatives

The Ministry of Manpower [“MOM”] has been taking a proactive role in advocating for positive working relations between employers and FDWs. MOM’s ‘Employer’s Guide: foreign domestic worker’ pitches for open communication, sharing of concerns and assisted family integration where employers try to assimilate FDWs into their home. It comprehensively covers topics that range from medical costs to overseas leave.

To reduce tension between employers and FDWs, MOM’s amended policy in 2010 ensures that security bonds are not forfeited if the FDWs violate Work Permit conditions that are attributed to her own behavior. The security bonds are at risk only when employers fail to observe the conditions of the bonds or in limited rare cases. Relaxation of regulations helps employers to loosen their control over their employees, as employers would not lose their deposit as long as they themselves abide by the terms.

Furthermore, MOM requires employers and FDWs to sign a safety agreement. The safety agreement ensures that all parties fully understand and acknowledge MOM’s restrictions for cleaning the exterior surface of windows.4 MOM even took the special effort to ensure that the safety agreement signed by the FDWs would be in their native language. Such efforts are laudable as it shows FDWs that their rights do matter and the law looks out for them.

It is heartening that MOM supports the idea of trying to resolve misunderstandings or disputes amicably between parties first before approaching external parties for assistance. However, despite such explicit and unambiguous regulations, the guide is not binding and it lacks an unequivocal representation that MOM will take active actions against non-compliance. Words like ‘should’ are peppered throughout the guide such as “your FDW should not sleep near any dangerous equipment or structure that could potentially cause harm or hurt to her “and “You and your FDW should mutually agree on which day of the week she should take the rest day”.5 ‘Should’ appears to be more of a recommendation or a desirable goal, in contrast, ‘must’ is used to express obligation or an unavoidable requirement.6 Examples of the usage of the word ‘must’ found in the guide include ‘You must keep a record of all salary payments’, ‘You must not retain your FDW’s Work Permit’ and ‘you must minimally provide your FDW with a mattress, pillow and blanket’.

The interchangeable use of ‘should’ and must’ leads to inconsistencies and readers may conclude that such offences have less severe repercussions and they are more likely to downplay the importance of that particular guideline, increasing the possibility of deviation from the guideline. This is especially worrying since it is understood that employers must not endanger the lives of FDWs, yet it is merely suggested as above that FDWs should not sleep near harmful equipment. To prevent misinterpretations and disparity in standards, ‘should’ ought to be replaced by ‘must’ in the guide when appropriate.

It is noteworthy that in the guide under the section ‘Abuse and ill-treatment of a foreign domestic worker’7 and ‘Employment rules for foreign domestic workers’8 possible penalties, such as debarment from hiring subsequent FDWs, are spelled out clearly. This approach should be extended to other sections and bringing in actual cases adds authenticity and legitimization to the guidelines and would prompt more employers to stick to the proposed regulations.

In any case, since it is administratively difficult to uncover and then enforce all breaches of the guide, introducing real-life cases detailing penalties would deter similar wrongdoings. Accordingly, I will now discuss changes to other binding legislation rather than mere guidelines.

B. Sanctions for Errant Employers

In 1998, the Penal Code9 was revised to increase penalties of offences regarding abuse of FDWs to provide greater protection for FDWs. Under s 73(2), where the offender is an employer of a domestic maid or a member of the employer’s household, the court may sentence the offender to one and a half times the amount of punishment to which he would otherwise have been liable for. The case of ADF v Public Prosecutor10 can be used to illustrate the use of s 73(2) of the Penal Code to increase the employer’s sentence for voluntarily causing hurt to a domestic worker under s 323.

A weekly rest day was implemented to ensure FDWs have a regular mental and emotional break from their domestic duties. With a mandatory weekly rest day, FDWs are empowered to exchange their rest day for a day’s salary or a replacement rest day taken within the same month. Whether FDWs receive monetary compensation rather than utilizing the rest day depends on mutual agreement between the employer and employee.

Notwithstanding this development, there are some gaps in the content and enforcement of related legislation.

Some employers may have family members that require around the clock care of FDWs. There are others who would be more assured if their first time FDWs take their rest days after they have more settled in Singapore. A survey conducted by HOME in 2015 showed that 54% of 670 foreign domestic workers had a weekly day off.11 On the other hand, 40% of the participants reported having a rest day less than once a week. It might be plausible that some FDWs may be intimidated or pressurized to agree to give up their rest day for remuneration due to the power imbalance. These FDWs need to be aware that they need not feel obliged to give in to their employer’s demand especially when it is their basic right to have a weekly rest-day.

Likewise, with the standard employment contract last revised on 11 September 2006, before the mandatory weekly rest days,12 it is apt to review and update the model contract to ensure that all the parties involved are informed about the latest developments. Even if a term is included in the contract, contracts are expensive and difficult to enforce. Hence, it might be better if the law guarantees a biweekly or monthly day off.

III. OTHER AREAS FOR REFORM

A. Employment Act

Currently, FDWs are protected principally under the Employment of Foreign Manpower Act. For instance, the case of Public Prosecutor v Donohue Enilia demonstrates the consequences of continuing to employ a FDW despite knowing that the work permit was revoked and when outstanding salary is unpaid. The employer was convicted by the trial judge under s 5(1) of the Employment for Foreign Workers Act14 ["EFWA] for employing a foreign worker without a valid work permit and to a charge under s 22(1)(a) of the EFWA for failing to comply with the condition of the work permit to pay the foreign worker a salary. The High Court judge made an additional order of compensation to the FDW for the unpaid salary on top of the fines and levy incurred by the employer. FDWs are not covered by the Employment Act15 because it was deemed impractical by MOM to regulate specific aspects of domestic work, such as hours of works and work on public holidays.16

However, in order to cast a wider safety net, FDWs should be safeguarded under the Employment Act.

For example, under the Employment Act, from 1 January 2016, the maximum and minimum compensation limits for death, total permanent incapacity and medical expenses under Work Injury Compensation Act17 will be increased. Medical expenses limits increased to $36,000, and upon death or total permanent incapacity, the minimum compensation is $69,000 and $88,000 respectively.18 In contrast, employers are only required to purchase the Personal Accident Insurance policy insurance when employing FDWs. The compulsory FDW’s medical insurance has a minimum coverage of $15,000 per year for inpatient care and day surgery19 and the compulsory FDW’s personal accident insurance has a minimum coverage of $40,000.20

It may be administratively difficult to include FDWs in the Employment Act but an alternative could be leaving it to the Minister’s discretion. As per s 67 of the Employment Act, the Minister may apply the act to domestic workers. Hopefully, when the need arises, this section will not be overlooked and the Minister will exercise the given right to shield FDWs from oppressive and exploitative conditions.

B. Transfers of FDWs

The Work Permit binds FDWs to their employers and they do not have the option to quit, unless their employer decides to release them, either to return home or to work for another employer.

FDWs should be allowed to switch employers without sponsoring their employer’s consent and without the threat of repatriation. In order to obtain a transfer, current employers need to sign the issuance declaration,21 which essentially functions like a release form. The obstacles faced by FDWs attempting to change employers act as an incentive for workers to endure ill-treatment by their employer.

Transfer FDWs are in high demand22 due to the expedite process compared to the 10 weeks or more to hire a first-timer and the slashed agent fees for transfer workers.

Unless there are legal issues or unresolved disputes, FDWs can circumvent paying a second round of agency fees by liaising with the new employer directly. There is no need to inform the previous agency of the departure and cost of the transfer is much less than that of an agency. Efforts need to be increased to raise awareness on such a hassle-free and low-cost method.

C. Repatriation of FDWs

Employers should give their FDWs due notice if they are cancelling their FDW’s Work Permit. Nonetheless, employers are not required to do so. According to MOM,23 employers can send their FDW home immediately after cancelling their Work Permit.

This contradicts the Security Bond Form for FDWs24 where one of the stipulated provisions was that employers were to give “reasonable notice” of repatriation. Here lies the innate problem of determining what constitutes “reasonable” and enforcing this vague and ambiguous requirement.

To combat the conflicting statements, there should be a clause, which requires employers to give a minimum one-month notice for termination of employment contract. This allows the FDWs to have more time to find another employer.

IV. CONCLUSION

In today’s economic context, paid domestic work is essential for the sustainability and operation of the economy beyond the household. Fortunately, it is clear that Singapore is moving in the right direction as much has been done for FWD’s outside the legal sphere. In 2012, the compulsory Settling-In Programme was introduced for new FDWs to educate them on safety precautions and living in Singapore.25 In 2013, all FDWs became entitled to a mandatory weekly rest day if their Work Permit was issued or renewed after 1 January 2013.26 In 2014, a series of workshops titled “Law & You” was launched in hopes of empowering FDWs with the basic understanding of their legal rights.27 In 2016, a new initiative titled “NUS-Home” was introduced to train FDWs to be para-counsellors in a bid to improve the mental health of FDWs.28 FDWs have and will continue to contribute to Singapore, and hence Singapore should continuously strive to champion workplace equality for all these salaried employees. Hopefully, people will continue to commiserate with the plight of FDWs and speak out for those who cannot.

[1] Department of Statistics, “ILO global estimates on migrant workers: Results and methodology” (2015), International Labour Organization Report, Online: < http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_436343.pdf >.

[2] Ministry of Manpower, “Foreign workforce numbers” (15 September 2016), Online: <http://www.mom.gov.sg/documents-and-publications/foreign-workforce-numbers>.

[3] Foreign Manpower Management Division, “FDW Weekly Rest Day, A guide for Employers” (2013), Ministry of Manpower, Online: <http://www.mom.gov.sg/~/media/mom/documents/publications/fdw-weekly-rest-day/fdw-weekly-rest-day-english.pdf>.

[4]  Ministry of Manpower, “Contracts and safety agreement for foreign domestic worker” (5 May 2015), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/contracts-and-safety-agreement>.

[5] Ministry of Manpower, “Rest days and well-being for foreign domestic worker” (28 March 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/rest-days-and-well-being>.

[6] Oxford Dictionaries, “Must, should or ought to?”, Online: <http://blog.oxforddictionaries.com/2014/03/must-should-ought/>.

[7] Ministry of Manpower, “Abuse and ill-treatment of a foreign domestic worker” (5 May 2015), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/abuse-and-ill-treatment>.

[8] Ministry of Manpower, “Employment rules for foreign domestic workers” (29 June 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/employment-rules>.

[9] (Cap 224, 1985 Rev Ed).

[10] ADF v Public Prosecutor, [2010] 1 SLR 874.

[11] Anja Wessels, “Home sweet home?” (March 2015), Humanitarian Organization for Migration Economics, Online: < www.home.org.sg/wp-content/uploads/.../HOME_2015_Home-sweet-home_short.pdf >.

[12] Consumers Association of Singapore, “Employment Agencies (FDW)”, Online: <https://www.casetrust.org.sg/accreditation-detail.aspx?id=2>.

[13] Public Prosecutor v Donohue Enilia, [2005] 1 SLR(R) 220.

[14] Employment of Foreign Workers (Amendment) Act 2007, (No. 30 of 2007).

[15] Employment Act (Cap 91, 2009 Rev Ed Sing)

[16] Ministry of Manpower, “Contracts and safety agreement for foreign domestic worker” (5 May 2015), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/employers-guide/contracts-and-safety-agreement>.

[17] Work Injury Compensation Act (Cap 354 2009 Rev Ed Sing).

[18] Ministry of Manpower, “Changes to Work Injury Compensation Act (WICA) in 2016” (1 July 2016), Online: <http://www.mom.gov.sg/workplace-safety-and-health/work-injury-compensation/changes-to-wica-in-2016>.

[19] Ministry of Manpower, “Insurance requirements for foreign domestic worker” (15 April 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/eligibility-and-requirements/insurance-requirements>.

[20] Ministry of Manpower, “Insurance requirements for foreign domestic worker” (15 April 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/eligibility-and-requirements/insurance-requirements>.

[21] Ministry of Manpower, “Transfer an FDW to a new employer” (3 October 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/transfer-to-a-new-employer>.

[22] Ameila Tan, “ More families keen to hire transfer maids”, The Straits Times (6 April 2015), Online: <http://www.straitstimes.com/singapore/more-families-keen-to-hire-transfer-maids>.

[23] Ministry of Manpower,  “Do I need to give my FDW any notice before sending her home?” (15 September 2016), Online: <http://www.mom.gov.sg/faq/work-permit-for-fdw/do-i-need-to-give-my-fdw-any-notice-before-sending-her-home>.

[24] Ministry of Manpower, “Security Bond Form for Foreign Domestic Workers (Domestic and non-Domestic)” (8 May 2015), Online: <http://www.mom.gov.sg/~/media/mom/documents/services-forms/passes/fw_sb_form.pdf>.

[25] Ministry of Manpower, “Settling-In Programme (SIP)” (14 October 2016), Online: <http://www.mom.gov.sg/passes-and-permits/work-permit-for-foreign-domestic-worker/eligibility-and-requirements/settling-in-programme>

[26] Foreign Manpower Management Division, “FDW Weekly Rest Day, A guide for Employers” (2013), Ministry of Manpower, Online: <http://www.mom.gov.sg/~/media/mom/documents/publications/fdw-weekly-rest- day/fdw-weekly-rest-day-english.pdf>.

[27]Jolovan Wham, “Law and you: Legal education starts at HOME” (23 September 2014), Online: <http://www.home.org.sg/1668/>

[28] Kok Xing Hui, “Maids trained to be counselors to peers”, The Straits Times (11 April 2016), Online: <http://www.straitstimes.com/singapore/maids-trained-to-be-counsellors-to-peers>

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An Analysis of the Marital Rape Exemption in Singapore

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The PDF version of this entry can be found here.

An Analysis of the Marital Rape Exemption in Singapore

Low Jun-Lim Steven

I. ORIGINS AND LEGISLATIVE AMENDMENTS

The marital rape exemption rule has always been a point of contention in Singapore law. Prior to the 2007 Amendments to the Penal Code,1 s 375 clearly stated that “sexual intercourse by a man with his own wife […] is not rape” under all circumstances.2 The origins of this rule dates to 1736 where it was stated by Sir Matthew Hale that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in this kind unto her husband, which she cannot retract”.3 This law was adopted by the drafters of the Penal Code which provided a blanket immunity for husbands in marital rape and subsequently injected into the Singapore law system with the implementation of the Penal Code.

Up until 2007, Parliament had not done much to alter the seemingly preposterous law that lay within the Penal Code despite debate in local news forums and criticism by high-profile individuals. The topic was finally addressed in Parliament by then Senior Minister for Home Affairs, Associate Professor Ho Peng Kee.4 Professor Ho maintained that marital immunity would not be abolished altogether, but proposed a new law offering “protection to women whose marriages, are, in practical terms, on the verge of a breakdown or have broken down, and who have clearly signalled that they are withdrawing their implicit consent to conjugal relations, so that their husbands are forewarned that marital immunity has been lifted.” While this Amendment to marital immunity was met with approval, many Members of Parliament felt that the change was not drastic enough to protect the needs of women trapped in such marriages.

Following the amendment to the Penal Code, the new s 375(4) provides that the husband’s marital rape immunity against his wife will be lifted under 5 situations:

(a) his wife was living apart from him—

(i) under an interim judgment of divorce not made final or a decree nisi for divorce not made absolute;

(ii) under an interim judgment of nullity not made final or a decree nisi for nullity not made absolute;

(iii) under a judgment or decree of judicial separation; or

(iv) under a written separation agreement;

(b) his wife was living apart from him and proceedings have been commenced for divorce, nullity or judicial separation, and such proceedings have not been terminated or concluded;

(c) there was in force a court injunction to the effect of restraining him from having sexual intercourse with his wife;

(d) there was in force a protection order under section 65 or an expedited order under section 66 of the Women’s Charter (Cap. 353) made against him for the benefit of his wife; or

(e) his wife was living apart from him and proceedings have been commenced for the protection order or expedited order referred to in paragraph (d), and such proceedings have not been terminated or concluded.

II. AN AMENDMENT OF LIMITED IMPACT?

Whilst the new Amendment allows for some exceptions to marital immunity, it only caters to a limited class of women. There is a huge lacuna in the law that vulnerable wives who have yet to take any formal action against their husbands will find themselves helpless against the marital immunity rule. This is clearly highlighted by the factual matrix in the case of Public Prosecutor v N.5 In that case, the wife moved back to her parents’ home due to the her husband’s threats to kill her. She later met her husband on the promise of a peaceful talk. However, they ended up quarrelling and he dragged her back to their matrimonial home before having sexual intercourse with her against her will. As the case was decided prior to the 2007 Amendments, the husband fell within the marital immunity from rape and was not charged.

Even under the new law, there would not be a different outcome to the case. The wife had not commenced legal proceedings or formalised any written agreements to live separately. Therefore, the husband would still have marital immunity from rape. The new exceptions implemented therefore serve but a limited use in providing protection for women in these relationships.

III. AN ARCHAIC RULE THAT SHOULD BE ABOLISHED ALTOGETHER?

The author submits that there has been insufficient action taken against s 375 of the Penal Code. Instead of merely voting for a repeal of the marital rape exemption, what ought to be done is a complete abolishment of s 375 altogether. Then Senior Minister of State for Home Affairs Associate Professor Ho Peng Kee stated that the parliament took this Amendment approach because it strikes the right balance between the needs of women who require protection, general concerns about conjugal rights and the expression of intimacy in a marriage. He also mentioned that abolishing marital immunity altogether will likely change the complexion of marriage drastically with negative impact on the marital relationship between husband and wife. This approach however, is sorely outdated.

Firstly, Professor Ho Peng Kee posited that the approach to allow certain scenarios where sexual intercourse within a marriage context would protect the needs of women who require protection. While this is accurate to a certain extent, it does not provide enough coverage for vulnerable women. As Dr Teo Ho Pin mentioned,6 the focus should be on “helping women in marriage[s] to exercise their rights to protect themselves, and not suffer in silence by having forced sex in their marriages”. By completely abolishing the marital rape exemption, women trapped in such marriages would have no qualms in bringing a claim against their husbands to help themselves as they would not need to worry about the intermediate step of taking legal action to annul their marriage. This would save them the hassle of falling within the special scenarios stated under the amended s 375.

Professor Ho also mentions that completely abolishing s 375 would lead to a negative impact on the relationship between husband and wife. However, the author opines that a positive impact between husband and wife would be forged instead. While the intention in allowing for marital-rape exemption was to protect the sanctity of a marriage in keeping the husband and wife’s life private, it simultaneously opened a can of worms in wrongfully empowering men as the ‘dominant’ sex. The marital rape exemption provided men with a false sense of empowerment that they would able to get away with mischievous acts without facing the consequences had they been single when committing such atrocious doings. Rather than privatising their relationship, the marital-rape exemption instead instilled an unnecessary imbalance of power between husband and wife in a marriage. Thus, it highlighted the idea that women would always be subjected to pleasing their husbands limitlessly even if they didn’t want to. Effectively, women were not seen as equals in a marriage but rather as a submissive creature at the disposal of their husband’s desires.

With the abolition of the marital-rape exemption, the bond between husband and wife would be positively improved. Without a veil of protection, both men and women would be equals. Women would be equally respected in a relationship and they would have no fear of being subjected to doing things against their will. This would no doubt promote growth and understanding within a balanced marriage, which is what the sacred bond between man and woman should represent.

If the Singapore government is unwilling to take drastic change with regards to the marital-rape exemption, they should perhaps look at the opinions of other jurisdictions. In the UK, the country which Singapore ‘adopted’ the marital rape immunity law from, has completely done away with the marital rape exemption since 1991, along with other major powers such as the United States, France and Australia which have since followed suit. Alternatively, Singapore could adopt what our neighbour Malaysia implemented in 2007 which made it a crime for a man to cause hurt or fear of death to his wife to have sexual intercourse with her. However, the author stands firm that the best course of action would be to completely abolish the marital rape exemption for the two reasons mentioned above.

IV. CONCLUSION

While Singapore is taking a step in the right direction, the repeal of the marital rape exemption rule needs to be expedited. There seemed to be some hint of progress in 2013,7 when then Nominated Member of Parliament Assistant Professor Tan Kheng Boon Eugene questioned when the Ministry would complete the review on marital rape provisions. Then Second Minister for Home Affairs Mr S Iswaran mentioned that reviewing the provisions related to marital rape was given adequate priority in the Ministry’s work. Furthermore, earlier this year on January 27 at the Universal Periodic Review (UPR), Ambassador-at-Large Chan Heng Chee said that Singapore had a strong position on gender equality and would “actively review” the need to repeal marital rape immunity. He also stated that “the repealing of immunity for marital rape is not so much a question of whether the law ought to be completely repealed but that it is more a question of when it would be repealed.”

At the end of the day, a repeal would not guarantee the complete protection of vulnerable women. However, an abolishment of s 375 would inherently aid their condition. Whatever the solution, it needs to come fast. While there is no publicly available data about marital rape statistics, one case is arguably too many. There are vulnerable women in marriages that need the protection of the law and until the day marital rape immunity is abolished, they will continue to live in fear and shame. Thus, Parliament needs to provide proof that they are indeed looking at completely repealing the marital rape exemption, lest it remain in Singapore’s law system for many more years to come.

[1] (Cap 224, 2008 Rev Ed Sing).

[2] Penal Code (Cap 224, 1985 Rev Ed Sing) s 375 as repealed by Penal Code (Amendment) Act 2007, No. 51 of 2007,  s 68.

[3] Matthew Hale, History of the Pleas of the Crown (London 1736) vol I, at 629.

[4] Parliamentary Debates Singapore: Official Report, vol 83 at col 2175 (22 October 2007).

[5] [1999] SGHC 255, [1999] 3 SLR(R) 499.

[6] Supra note 4.

[7] Parliamentary Debates Singapore: Official Report, vol 90 at col 20 (4 February 2013).

 

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Anticipatory Self-Defence in International Law: The United Kingdom's Formulation of 'Imminence'

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A PDF version of this entry can be found here. 

Anticipatory Self-Defence in International Law: The United Kingdom's Formulation of 'Imminence'

Ong Kuan Chung* 

I. INTRODUCTION

On 11 January 2017, the United Kingdom’s Attorney General, the Rt Hon. Jeremy Wright QC MP, delivered a speech on ‘The Modern Law of Self-Defence’, outlining how the United Kingdom applies the rules of international law on self-defence against external threats.1 During that speech, the Attorney General endorsed the requirement of ‘imminence’ before proceeding to elaborate on the United Kingdom’s understanding of what amounts to an imminent armed attack.2

This article will focus on and examine the Attorney General’s speech in relation to the concept of ‘imminence’ and anticipatory self-defence and consider its implications. It is submitted that while the Attorney General’s endorsement of the requirement of ‘imminence’ is welcome, the lack of clarity surrounding the United Kingdom’s interpretation of the term ‘imminence’ leaves the right to anticipatory self-defence open to potential abuse.

II. THE MEANING OF ‘IMMINENCE’

As a starting point, while some commentators continue to maintain that any form of anticipatory action is unlawful unless an armed attack has already occurred,3 the Attorney General reiterated the United Kingdom’s long-standing view that Article 51 of the Charter of the United Nations permits a State to use force in self-defence against an imminent armed attack.4

The Attorney General then sets out a list of non-exhaustive factors which guides the United Kingdom in determining if an armed attack is imminent. These factors include: 5

  1. The nature and immediacy of the threat;
  2. The probability of an attack;
  3. Whether the anticipated attack is part of a concerted pattern of continued armed activity;
  4. The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  5. The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

However, the Attorney General did not shed further light on these factors or why their adoption is justified, except to say that, ipse dixit, these are the “right factors to consider”.6

III. A LACK OF CLARITY

While the factors listed above enable us to better understand the United Kingdom’s decision-making process in determining if an armed attack is imminent, it fails to offer any meaningful insight as to how they should or have been applied in the past. In that regard, the Attorney General’s failure to clarify the meaning of ‘imminence’ arguably leaves the right to anticipatory self-defence open to abuse.

For example, in a hypothetical situation where France discovers that Switzerland has obtained and armed a nuclear missile in the direction of France, would Switzerland’s actions constitute an imminent armed attack? If we apply the factors listed above, one might conclude that this does not amount to an imminent armed attack because Switzerland is a notoriously neutral State, and therefore the probability of an attack is very slim. On the other hand, one might reason that this constitutes an imminent armed attack because the likely damage and loss France would suffer in the event of a nuclear attack would be massive.

For example, in a hypothetical situation where France discovers that Switzerland has obtained and armed a nuclear missile in the direction of France, would Switzerland’s actions constitute an imminent armed attack? If we apply the factors listed above, one might conclude that this does not amount to an imminent armed attack because Switzerland is a notoriously neutral State, and therefore the probability of an attack is very slim. On the other hand, one might reason that this constitutes an imminent armed attack because the likely damage and loss France would suffer in the event of a nuclear attack would be massive.

It is submitted that this potential divergence in interpretation is a consequence of a lack of clarity as to how the factors should be applied and if there are any factors which take precedence over another. As a result, the amount of discretion afforded by the United Kingdom’s list of factors gives rise to a risk of abuse of the right to anticipatory self-defence. For example, by claiming (or even exaggerating) the likelihood of massive loss and damage, a State would arguably be able to stretch the temporal aspect of ‘imminence’ almost indefinitely, thus rendering the requirement of ‘imminence’ moot. In doing so, the lawfulness of anticipatory self-defence comes into question as it begins to resemble the oft-criticised ‘Bush Doctrine’ of non-imminent or pre-emptive self-defence.7

IV. CONCLUSION

In conclusion, the Attorney General’s speech helpfully outlines the United Kingdom’s position in respect of several aspects of the right to self-defence and offers us various insights into the United Kingdom’s decision-making process. However, a lack of clarification with regard to the United Kingdom’s formulation of ‘imminence’ continues to leave the right to anticipatory self-defence in a state of uncertainty and susceptible to potential abuse. Nevertheless, the Attorney General’s articulation of an official United Kingdom position on the right to anticipatory self-defence should be commended. It is hoped that other States would similarly follow suit and provide greater clarity on this area of international law.

*The author graduated from the University of Tasmania before joining the dispute resolution practice at Drew & Napier LLC. He is currently pursuing his master's degree in law at the University of Oxford, with a strong focus on international dispute resolution.

[1] The Rt Hon. Jeremy Wright QC MP, “The Modern Law of Self-Defence” (Speech delivered at the International Institute for Strategic Studies, London, 11 January 2017), online: <http://www.ejiltalk.org/the-modern-law-of-self-defence/>.

[2] Ibid.

[3] See e.g., Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart, 2010) at 407.

[4] Wright, supra note 1.

[5] Wright, supra note 1.

[6] Wright, supra note 1.

[7] Christine Gray, International Law and the Use of Force, 3rd ed (Oxford University Press, 2008) at 209.