Re-examining Prosecutorial Discretion in the Context of s 300(a) Murder and s 299 Culpable Homicide

A PDF version of this article can be found here.

---

Re-examining Prosecutorial Discretion In The Context Of s 300(a) Murder and s 299 Culpable Homicide

Nicholas Khong

I. Introduction

Article 35(8) of the Constitution of the Republic of Singapore[1] confers on the Attorney-General the “power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”. In other words, the Attorney-General has control over whether a suspect should be charged, and which charge should be brought against a suspect. Such prosecutorial discretion is required for a fair and effective criminal justice system.[2] The alternative, “automatic prosecution” of all suspected criminal offences, is untenable as it would likely harm the public interest and overwhelm our criminal justice system.

However, the Singapore Court of Appeal [SGCA] recognised in Chng Suan Tze v. Minister for Home Affairs[3] that unfettered discretion would be inconsistent with any conception of the rule of law, since all legal powers should have legal limits.[4] To this end, prosecutorial discretion should be re-examined in the context of murder under Section 300(a) of the Penal Code[5] [s 300(a)] and culpable homicide under the first limb of Section 299 of the Penal Code [s 299]. Specifically, prosecutorial discretion in this context should be premised on two additional mechanisms: an obligation to explain its decisions, as well as published, non-binding and specific guidelines.

II. Consequences of prosecutorial discretion in murder and culpable homicide

In Public Prosecutor v P Mageswaran and another appeal[6] [Mageswaran], the SGCA observed that s 300(a) and the first limb of s 299 have exactly the same elements, namely: (1) an intention to kill the victim; and (2) an act which caused the victim’s death.[7] It should be noted that an accused person could be charged under the first limb of s 299 if one or more of the Exceptions to s 300(a) are applicable. However, the prosecution may exercise their discretion to charge the accused person under s 299 even though none of the Exceptions to s 300 apply. This came to the fore in Mageswaran, where the accused was charged with an offence under the first limb of s 299, even though the accused did not have any partial defences open to him.[8]

Further, the SGCA has noted that the exercise of prosecutorial discretion has enhanced importance in such a context.[9] While a charge under the first limb of s 299 only attracts a term of imprisonment, a charge under s 300(a) attracts the mandatory death penalty. Hence, where an accused person’s act fulfils the essential elements of the above offences, whether he faces life imprisonment or death depends almost entirely on prosecutorial discretion.

III. An obligation to explain prosecutorial decisions in the context of murder AND CULPABLE HOMICIDE

Notably, in Mageswaran, the SGCA inferred that the prosecution had decided to charge the accused person under the first limb of s 299 because the mandatory death penalty was not warranted in that case, “having weighed all the relevant circumstances in the exercise of prosecutorial discretion”.[10] Following the case of Ramalingam Ravinthran v Attorney-General[11][Ramalingam], where the SGCA held that the prosecution is generally not required to give reasons for prosecutorial decisions,[12] the court in Mageswaran was entitled to make such an inference. However, the prosecution’s exact reasons for charging the accused person under s 299 in Mageswaran remain unknown , and it is argued that the prosecution should have an obligation to give reasons for its prosecutorial decisions in the present case where the life of an accused person depends almost entirely on the exercise of prosecutorial discretion.

On the surface, Mageswaran does not imply a need for this obligation, since the accused person was charged under s 299 rather than the relatively graver offence under s 300(a). However, this need becomes pertinent when the prosecution exercises their discretion in the converse situation. An accused person who is charged with s 300(a), and to whom the Exceptions to s 300 do not apply, would naturally question why the prosecution exercised their discretion differently in Mageswaran.

The Attorney-General’s Chambers (AGC) has raised two main arguments against any general obligation to explain prosecutorial decisions.[13] Unfortunately, these arguments are neither convincing nor satisfactory in the specific context of s 299 and s 300(a).

A.      Delayed prosecutions and undermined prosecutorial effectiveness?

Firstly, the AGC argues that an obligation to explain its prosecutorial decisions in every case would delay criminal proceedings and undermine prosecutorial effectiveness, as it would likely result in frequent challenges to the courts by dissatisfied parties.[14]

However, this obligation need not extend to every case, and an exception for cases where s 299 and s 300(a) are concerned can be made on the ground that prosecutorial discretion has enhanced importance here.[15] This would be a more principled approach as opposed to one that relies on public sentiments.[16] Such an approach would also accord with the Chief Justice Sundaresh Menon’s recent pronouncement in Han Fang Guan v Public Prosecutor[17], that “the liberty of individuals should not be dependent on discretionary powers when they may be dealt with in a principled way”.[18]

Further, frequent challenges to the courts can be justified by the fact that, if there was indeed a prosecutorial mistake, it is the accused person who suffers an irreversible and unjustified loss of life or liberty.[19] This would be consistent with Singapore’s gradual shift away from the crime control model of criminal justice by introducing further due process safeguards.[20]

B. Attorney-General’s ability to exercise prosecutorial discretion undermined?

Secondly, the AGC asserts that any obligation to explain its prosecutorial decisions “which runs counter to the judicial deference shown by the courts to the Attorney-General’s discretion would impair the performance of a core executive function designated in the Constitution”.[21]

However, it is unclear as to why such an obligation would necessarily impair the Attorney-General’s ability to “institute, conduct or discontinue”[22] proceedings for an offence. The AGC has occasionally explained their reasons for certain prosecutorial decisions, and their prosecutorial discretion does not appear to have been impaired in such instances.[23] Instead, explaining prosecutorial decisions appears to be complementary to the functions of the Attorney-General in this context. Such an obligation would provide clarity to accused persons who could potentially face the death penalty for their offences.

Further, greater transparency in the exercise of prosecutorial discretion, as opposed to an opaque blanket of secrecy, would bolster public trust and confidence in the AGC.

IV. Specific guidelines to promote transparency in decision making

Given that the life or death of an accused person hinges largely on prosecutorial discretion in this context, prosecutorial discretion should also be guided by published, non-binding and specific guidelines.[24] This would encourage greater scrutiny of prosecutorial decisions beyond the AGC and promote consistent decision-making by the prosecution.

Parliament can further preserve the flexibility of prosecutorial discretion and abate concerns about new defences arising from these guidelines by enacting the appropriate legislation; that is, legislation which provides that non-compliance with these guidelines does not give the accused a cause of action against the prosecution.[25]

While the AGC has argued that the publication of specific guidelines could lead to an increase in offending in areas where the prosecution might exercise restraint,[26] this is not a concern in the present context. An accused person who is guilty of an offence under the first limb of s 299 faces imprisonment for life or imprisonment for a term of up to twenty years.[27] This sentencing regime still poses a strong deterrent to potential offenders. Therefore, it is unlikely that there will be more offenders simply because the prosecutorial guidelines imply an imprisonment sentence of up to twenty years or for life, instead of the death penalty.

V. The court as a check and balance?

Notably, the AGC has made the implicit assertion that the court serves as a check and balance against the arbitrary exercise of prosecutorial discretion. This is because it is the court who ultimately determines the guilt of an accused person and the punishment that follows if the accused person is found guilty.[28]

However, this form of check and balance is significantly curtailed in the context of s 300(a) and the first limb of s 299. As the SGCA in Mageswaran stated, “any exercise of prosecutorial discretion would inevitably have an impact on the outcome and the eventual sentence”.[29]

It should be reiterated that the elements of the first limb of s 299 and s 300(a) are exactly the same, and it follows that where none of the Exceptions to s 300 apply, an accused person who fulfils the elements of the first limb of s 299 would also be able to fulfil the elements of s 300(a). Assuming that the accused person did indeed have an intention to kill, and performed an act which caused the victim’s death, it follows that the prosecution’s preferred charge is the crucial factor which draws the fork in the road between the mandatory death penalty and a term of imprisonment. This is especially so as the courts have evinced an unwillingness to question or interfere with the prosecution’s exercise of their discretion in such a context.[30] Therefore, where an accused person may be found guilty of both offences, it is the prosecution who effectively determines the sentence which follows the finding of guilt.

Further, the AGC’s reference to judicial review as a clear remedy for the unlawful or unconstitutional exercise of prosecutorial discretion is unsatisfactory.[31] Owing to the high office of the Attorney-General, a presumption of constitutionality applies to prosecutorial discretion.[32] This has the effect of placing the burden of proof on the accused to specifically produce prima facie evidence of (1) bad faith, or (2) a breach of his constitutional rights, for judicial review to be available.[33]

This is problematic, as the way in which this burden of proof can be discharged is uncertain and overly onerous on accused persons. In Ramalingam, the SGCA stated that the appellant in Teh Cheng Poh v Public Prosecutor[34], who was prosecuted for a capital offence, could “show prima facie impropriety [in the exercise of prosecutorial discretion] by producing evidence that another offender in similar circumstances had been prosecuted for a non-capital offence”.[35] This is broadly analogous to our present case since an accused person can be charged with either a capital offence under s 300(a) or a non-capital offence under the first limb of s 299. However, there are two problems associated with such an approach.

Firstly, the phrase “similar circumstances” is not precisely defined. How similar must the circumstances be for an accused person to use Mageswaran as evidence to discharge this burden of proof? [36]

Secondly, the phrase “had been prosecuted” suggests that similar circumstances must be based on past, and not merely hypothetical events.[37] Hence, the accused person’s ability to rebut the presumption hinges on the availability of available precedents, which may or may not exist, or which may be inaccessible to the accused person.

These problems significantly impair the accused person’s ability to discharge the burden of proof. It could be briefly suggested that these issues may potentially be resolved by shifting the burden to the prosecution, who can readily produce evidence of their decision-making process. However, this inquiry warrants a much deeper examination, and is not within the scope of the present article.

In sum, the court’s role as a check and balance against the arbitrary exercise of prosecutorial discretion appears to be significantly curtailed in the context of the first limb of s 299 and s 300(a). It follows that greater transparency and accountability in the exercise of prosecutorial discretion is particularly desirable in this context.

VI. Conclusion

Given the current sentencing regime that applies to the first limb of s 299 and s 300(a), the exercise of prosecutorial discretion in such a context is unjustifiably opaque. In view of the potential injustice that may be caused, one may even go so far as to say that the exercise of prosecutorial discretion in this specific context is dangerous. Therefore, it has been argued that an obligation to explain prosecutorial decisions, as well as the publication of non-binding and specific guidelines, would do much to ease these concerns.

---

[1] 1999 Rev Ed Sing.

[2] Kumarlingam Amirthalingam, “Prosecutorial Discretion and Prosecution Guidelines” (2013) Sing JLS 50 at 57.

[3] [1988] SGCA 16; [1988] 2 SLR(R) 525.

[4] Chen Siyuan, “The Limits of Prosecutorial Discretion in Singapore: Past, Present and Future” (2013) 1 International Review of Law 1 at 11-12.

[5] Cap 224, 2008 Rev Ed Sing.

[6] [2019] SGCA 22; [2019] 1 SLR 1253.

[7] Supra note 6 at para 35.

[8] With respect, it is submitted that the SGCA in Mageswaran and the authors of Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore, 3rd Ed (Singapore: LexisNexis, 2018) may have wrongly cited Dewi Sukowati v Public Prosecutor [2017] SGCA 8 [Dewi Sukowati] as another instance of a scenario where the accused person was charged under the first limb of s 299 even though no partial defence was open to the accused. In Dewi Sukowati, both the SGHC’s and SGCA’s judgements noted at para 42 and para 14 respectively that Dr Kenneth Koh of the Institute of Mental Health was of the opinion that the accused person qualified for the partial defence of diminished responsibility under Exception 7 to s 300 of the Penal Code. This was the likely reason why the prosecution had charged the accused under the first limb of s 299 rather than under s 300(a) of the Penal Code. Nonetheless, such ambiguity could have been avoided if the prosecution had an obligation to explain its exercise of prosecutorial discretion in such a context.

[9] Supra note 6 at paras 34-37.

[10] Ibid at para 37.

[11] [2012] SGCA 2; [2012] 2 SLR 49.

[12] Ibid at paras 74-78.

[13] Attorney-General’s Chambers, “The Exercise of Prosecutorial Discretion” (January 2012), Attorney-General’s Chambers, online <https://www.agc.gov.sg/docs/default-source/newsroom-doucments/media-releases/2012/agcpressrelease200112-theexerciseofprosecutorialdiscretion.pdf>.

[14] Ibid at para 11.

[15] Supra note 6 at para 36.

[16] In their press statement on the exercise of prosecutorial discretion, supra note 14 at para 12, the AGC has stated that “where the reason for prosecuting or not prosecuting raises a question of importance for the public and disclosure would not impact the proper resolution of the case, the Attorney-General’s Chambers does consider providing at least brief reasons for its decision, so that confidence in the justice system may be maintained”. See for example Ng Huiwen, Death of Annie Ee: AGC explains why couple who abused her were not charged with murder (December 2017), online, <https://www.straitstimes.com/singapore/death-of-annie-ee-agc-explains-why-couple-who-abused-her-were-not-charged-with-murder>.

[17] [2020] SGCA 11.

[18] Ibid at para 117.

[19] Gary Kok Yew Chan, “Prosecutorial Discretion and the Legal Limits in Singapore” (2013) 25:1 SAcLJ. 15.

[20] Keith Jieren Thirumaran, “The Evolution Of The Singapore Criminal Justice Process” (2019) 31 SAcLJ. 1042. See also the SGCA’s recent ruling in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] SGCA 25, where the court held that, in addition to the obligations established in Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32, the prosecution also has the obligation to disclose the statements of material witnesses even if the said witness was not called by the prosecution to testify.

[21] Supra note 13 at para 10.

[22] Supra note 1.

[23] See for example: Ng Huiwen, “Death of Annie Ee: AGC explains why couple who abused her were not charged with murder” (December 2017), The Straits Times, online, <https://www.straitstimes.com/singapore/death-of-annie-ee-agc-explains-why-couple-who-abused-her-were-not-charged-with-murder>;Attorney-General’s Chambers, “PP v Joshua Robinson” (March 2017), Attorney-General’s Chambers, online <https://www.agc.gov.sg/docs/default-source/newsroom-doucments/media-releases/2017/agc-press-release-jr-8-mar-17bd1400354dcc63e28975ff00001533c2.pdf/>; and Amelia Teng, “NUS Peeping Tom given conditional warning due to high likelihood of rehabilitation: Police” (23 April 2019), The Straits Times, online: <https://www.straitstimes.com/singapore/courts-crime/student-in-nus-sexual-misconduct-case-given-conditional-warning-due-to-high>.

[24] The United States of America is one example of a jurisdiction which has adopted a similar approach to the publication of non-binding prosecutorial guidelines. See The United States Department of Justice, “Justice Manual”, online: <https://www.justice.gov/jm/justice-manual>.

[25] Supra note 4.

[26] Supra note 13 at para 9.

[27] See s 304 of the Penal Code (Cap 224, 2008 Rev Ed Sing). Further, an offender who is sentenced to imprisonment for life is also liable to caning, and an offender who is sentenced to term imprisonment is also liable to fine or to caning.

[28] Supra note 13 at para 13.

[29] Supra note 6 at para 37.

[30] See Ibid.

[31] Supra note 13 at para 14.

[32] Supra note 11 at para 44.

[33] Ibid at paras 70-72.

[34] [1979] 1 MLJ 50.

[35] Supra note 11 at para 26.

[36] Supra note 19 at para 42.

[37] Ibid.

The Unique Standard of Care for Doctors in Singapore – Part 1 of the HCK Series

The PDF version of this article can be found here.

---

the unique standard of care for doctors in singapore – part 1 of the hck series

Keith Jieren Thirumaran*

I.                    Introduction

In the practice of medicine, a doctor’s job can be divided into 3 components: diagnosis, treatment, and advice.[1] Traditionally, the legal test for determining the standard of care that a doctor was expected to meet to avoid liability in negligence was the doctor-centric Bolam-Bolitho test which focuses on the doctor’s perspectives. While this test originally applied to medical advice in the UK[2] and Singapore[3], the position in the UK has since been changed by the Supreme Court in Montgomery v Lanarkshire Health Board [Montgomery][4] where a patient-centric approach similar to the Australian High Court’s approach in Rogers v Whitaker [Rogers][5] was taken. After considering these and other overseas cases[6], the Singapore Court of Appeal adopted a modified and unique test in the context of medical advice in the landmark decision of Hii Chii Kok v Ooi Peng Jin London Lucien [HCK][7].

In this two-part series of articles, the HCK test will be examined in detail with comparisons drawn with the tests of other jurisdictions. Part 1 of the HCK series begins by providing an overview of the HCK test followed by an analysis of various aspects of the test such as the balance that was struck in HCK, the seemingly additional test of relevancy, the types of information covered, the scenario where information is unknown, and the remaining ambiguities. Part 2 of the HCK series[8] will deal specifically with stage 3 of the HCK test relating to the situations where a doctor is justified in withholding information, otherwise known as the exceptions to a doctor’s duty of disclosure.

II.                 Overview of the Singapore Test

The HCK test formulated by the Singapore Court of Appeal is a three-stage test.

1.       First Stage

The first stage involves the patient’s identification of the information not provided and why it should be regarded as relevant and material.[9] The court held that a doctor must disclose information that would either “be relevant and material to a reasonable patient situated in the particular patient’s position”, or the doctor knows is important to the particular patient.[10]

The identification of the information not provided is necessary in order “to determine whether the doctor possessed that information at the material time” and therefore “whether the withholding of the information was justified”.[11] The underlying concern for this requirement “is to ensure that the scope of the dispute is clearly delineated” and that the process is fair to doctors.[12]

The court will take into account the personal circumstances of the patient to determine what “a reasonable person in the position of the patient in question would consider material”.[13] However, such information is only relevant “to the extent that the doctor knew or ought reasonably to have known of them.[14]

The materiality of the information is assessed from the patient’s perspective[15] and takes into account what the particular patient was “reasonably likely to have attached significance to” as well as what the doctor knew or should have known the particular patient would have attached significance to.[16] The analysis of relevancy and materiality of the information would be largely matters of “common sense” and would generally exclude “information that reasonable people would regard as immaterial or irrelevant”.[17] This analysis would also take into account information that is immaterial to the reasonable person in the patient’s position which the actual patient still found material for the patient’s own reasons, but would only require disclosure if “the doctor actually knew or had reason to believe that the particular information was relevant and material to the particular patient”.[18]

The court in HCK also went further than Montgomery[19] in terms of the types of information that could be considered material. The court held that it would not confine the information to material risks concerning the treatment and its alternatives[20] but would instead adopt the broad types of material information that were identified in the Canadian case of Dickson v Pinder[21]. These include: 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 alternatives to the proposed medical treatment as well as their advantages and risks.[22] The type of information reasonably material would depend on factors such as certainty, consequence, and context.[23]

2.       Second Stage

The second stage involves determining whether the doctor was in possession of the information identified as relevant and material.[24] Where the doctor was not in possession of the information, the case will no longer be assessed under the category of negligent advice, but instead be assessed as a negligent diagnosis or treatment case and therefore be subjected to the normal Bolam-Bolitho test.[25]

3.       Third Stage

The third stage involves an examination of the reasons why the doctor chose to withhold the information from the patient.[26] While an overview of the third stage is provided at this juncture, a detailed analysis of this stage can be found in Part 2 of the HCK series.[27]

The court would determine whether the “doctor was justified in withholding the information”.[28] However, whether the doctor was justified would not be measured by the Bolam-Bolitho test, even though it is informed by medical considerations.[29] After determining that the doctor’s reasons were justified, the court would then determine whether the doctor’s decision “was a sound judgment having regard to the standards of a reasonable and competent doctor”.[30] At this stage, expert medical evidence will have some significance because there is still “an element of professional judgment involved”.[31]

The court did not want to confine or restrict the situations that could be justifiable but held that courts would consider all the circumstances in determining whether the withholding of information was justified.[32] However, the court elaborated on 3 non-exhaustive categories of situations that would justify non-disclosure.[33]

The first situation allowing for the withholding of information is where the patient does not wish to know the information.[34] This is treated as a “factual question” on the existence and scope of a patient’s waiver of the information, and will not usually involve expert opinion.[35]

The second situation is where there is an emergency scenario, such as when there is a threat of death or serious harm to the patient, while the patient lacks decision-making capacity and there is no appropriate substitute decision-maker.[36] For this situation, the Bolam-Bolitho test will apply because medical expert opinion will be “crucial” in determining whether the urgency of the situation is such that seeking opportunities to provide information to the patient can be sacrificed.[37]

The third situation involves therapeutic privilege and applies where a doctor “reasonably believes that the very act of giving particular information would cause the patient serious physical or mental harm”.[38] For this situation, expert medical and psychological evidence will “be helpful or even crucial” to the court.[39] However, the Bolam-Bolitho test will not be applied because the focus is on whether the court is of the opinion that the patient would likely be harmed when informed of the material information.[40]

III.              ANALYSIS OF THE HCK TEST

It is clear that while the HCK test draws some inspiration from the Montgomery test, it also modifies and refines it in several aspects. This section will now explore the reasons and rationale for the approach taken in HCK as well as examine the unique aspects of the HCK test.

1.       The balance struck in HCK

In HCK, the court made a “carefully calibrated shift in the standard of care” that is required of doctors in the context of advice.[41] The result is that the new test in Singapore is a middle-ground between the patient-centric position in Montgomery as well as the doctor-centric position in Bolam-Bolitho. However, in relation to certain aspects that will be discussed below, the court in HCK has in fact gone further than the court in Montgomery towards patient centricity.

The key reason why this shift was needed, and was indeed made, was that there has been an increase in recognition for the “need to treat patient autonomy seriously” in the law.[42] This is a result of the developments within the medical profession as well as the rest of society which have shifted patient autonomy to a position of prime importance[43] in what has been a “seismic shift in medical ethics, and in societal attitudes towards the practice of medicine”[44].

This evolution in the nature of the patient-doctor relationship in Singapore is in light of the “level of education and access to knowledge” of ordinary people.[45] A patient, during the advice stage, is no longer a passive recipient of care but has become an “active interlocutor in whom ultimately rests the power to decide”.[46] This has resulted in a new generation of patients who have become much more informed about “medical matters, their choices and rights”.[47]

Furthermore, a patient has a right to decide and choose whether or not to undergo medical treatment.[48] Such decisions and choices are “ultimately the patient’s to make”, while a doctor’s function is simply to “empower and enable the patient to make that decision by giving him the relevant and material information”.[49] Lastly, a decision on what information patients should be given is only partially a medical science assessment, with the other part being an assessment of a patient’s personal concerns and priorities.[50]

However, a balance needs to be struck between patient autonomy and beneficence (i.e. the doctor’s provision of benefits to a patient through the fair weighing of benefits against risks and costs).[51] This balance necessitates another balance to be struck between the doctor’s perspective and the patient’s perspective.[52] A “proper balance”[53] must take into account the fact that a doctor is able to be objective and dispassionate in making judgment calls as to the significance of information while a patient, on the other hand, might be emotional and place inappropriate emphasis on risks.[54]

Another reason that necessitated the “carefully calibrated shift” is that rising healthcare costs as well as defensive medicine are “real concerns” that the courts need to bear in mind when they are approaching the question of legal reform.[55] The court in HCK noted that this was not a sufficient reason to “shut the door to reform entirely” and was a minor issue when only a partial reform is attempted.[56] Nonetheless, it is suggested that this may well have been one of the decisive reasons why the court chose to adapt Montgomery to better fit the Singapore context, especially given the way healthcare expenditure is funded in Singapore.[57]

2.       “Relevant and Material”

The first unique feature of the HCK test is the usage of the phrase “relevant and material” information.[58] Therefore, there appears to be a test of both relevancy and materiality in the HCK test. This is as opposed to the use of “material” risks in cases such as Rogers[59] and Montgomery[60], which imply a test of materiality alone. The UK courts have in fact stressed that the test in Montgomery is materiality and not relevance.[61]

As noted by the UK courts, the tests of relevance and materiality might conceivably be different[62], and the author agrees that these concepts are indeed distinguishable. Nonetheless, a difficulty arises in the conceptualisation of information that is material but not relevant to a patient. If the information is material to a patient, it is highly likely that it would also be relevant to that patient.[63] On the other hand, relevant information is not necessarily material.[64] Thus, the test of materiality is a subset of the broader test of relevancy. As such, whether the addition of the requirement of relevancy has any effect on the scope of information that needs to be disclosed remains to be seen in future Singapore cases.

As there was no specified reason in the Singapore judgment as to why the word “relevant” was added in HCK, any discussion on this would be entirely speculative. However, it is entirely plausible that the court intended to limit the range of possible information that a patient would be able to claim for by adding the additional requirement of relevancy. This is likely to be because of the expanded scope of disclosure under the HCK test that is not confined to risks and alternatives. Therefore, it is submitted that the intended effect of including the word “relevant” into the test was to help guard against the practice of defensive medicine by doctors in Singapore by limiting the scope of information that needs to be disclosed.

It is respectfully submitted that defensive medicine[65] is the practice by doctors of adopting “what they think is legally safe”, despite their beliefs as to what is best for the patient.[66] The court in HCK stated that the “concerns in defensive medicine pertain mainly to diagnosis and treatment.”[67] However, in the context of advice, it is possible for defensive practices to exist. It is respectfully submitted that this could take the form of disclosing more information than is necessary in the doctor’s attempt to be legally safe, despite the fact that such information may not be necessary or may even entail unforeseen harmful effects.

The disclosure of excessive information may result in the wastage of medical time and resources and risks frightening a patient, thus leading them to reach an unbalanced decision.[68] Defensive medicine also results in higher medical costs and a wastage of precious medical resources.[69] Other foreseeable detrimental effects of defensive medicine may include higher insurance costs[70], compromising of the quality of medical care[71], denial of access to medical care and attention, and a tendency towards unnecessary or sub-optimal medical decisions.[72] The possibility of such defensive practices is exacerbated under the HCK test because information is not confined to material risks concerning the treatment and its alternatives[73] but instead involves the broad types of material information that were identified in the Canadian case of Dickson v Pinder[74].

It is important to note that in a recent Singapore case, defensive medicine was defined differently as encompassing “the situation where a doctor takes a certain course of action in order to avoid legal liability rather than to secure the patient’s best interests”.[75] In that case, the court stated that overwhelming patients with a deluge of information on unlikely risks is not defensive medicine.[76] The reason given for this is because “giving too much information will not avoid legal liability” because bombarding the patient with information leaves the patient more confused and less able to make a proper decision, thus leading to legal liability for failing to obtain informed consent.[77] This position, unlike the definition adopted above[78], is not dependent on a doctor’s subjective belief of what will allow him to avoid legal liability.

While there is merit in framing defensive medicine as excluding situations where legal liability is not avoided, with respect, this definition is under-inclusive and does not fully capture the potential range of behaviour that is defensive in nature. In essence, if a doctor is misguided and therefore fails in his attempt to avoid legal liability, that does not make the attempted defensive actions any less defensive in nature. In any event, misguided attempts at defensive action, whether or not considered to be “defensive medicine”, would still have the same detrimental effects as defensive medicine itself. Indeed, the Ministry of Health in Singapore has highlighted that there is a very real possibility of over-disclosure of risks being taken as attempted defensive action.[79] Therefore, it is respectfully submitted that it would be helpful to recognise excessive disclosure of information as “defensive medicine” so that its risk can be properly accounted for.

Lastly, the court in HCK, although providing a definition and test for materiality, did not do the same for relevancy. As such, there is a lack of a clear distinction between the two requirements of relevancy and materiality. Therefore, despite any intended limiting effect of the introduction of a relevancy requirement, the practical effect of this addition is likely to be negligible. This is because the test is conjunctive, hence the information must have been both relevant and material to a reasonable patient in the patient’s position. Thus, the additional requirement will likely have no effect as doctors will not be sure whether a material piece of information is irrelevant and therefore disclose it nonetheless.[80] As such, any intended additional guidance or reassurance is negated and further clarification by the courts is necessary in order to delineate any additional considerations that doctors should be mindful of.

3.       Types of Information

The second unique feature of the HCK test is that the information that needs to be disclosed is wider than the information defined in Montgomery.

As aforementioned, the court in HCK expanded the information that could be considered material to include the broad types of material information that were identified in the Canadian case of Dickson v Pinder.[81] Furthermore, this list is non-exhaustive and the court left the door open for other types of information. The court made reference to the idea of certainty[82] which could potentially lead to more information being relevant where for example there is uncertainty present (such as information on alternative diagnoses).[83]

It is, however, noted that the case of Montgomery was concerned with a patient alleging that she was not informed about the risk of shoulder dystocia in her case.[84] The case of HCK, on the other hand, concerned a patient who alleged that the advice on a Gallium scan and its limitations, the importance of the morphological scans, and peculiarity of the pancreas in relation to functional scans were insufficient to allow him to make an informed decision.[85] As a result, while the court in Montgomery was solely concerned with risks, the court in HCK had a wider range of information that it had to contend with. As a result, forms of information other than risks would not have been the focus of the Supreme court in Montgomery.

Therefore, it is possible that future UK decisions might not limit material information to risks of treatment and alternatives and expand them in a similar way to HCK. In the UK courts, it was in fact noted in obiter that although Montgomery involved the provision of information in order to determine whether to undergo a particular treatment, it could potentially be expanded to cover all aspects of advice.[86] As such, in the future, this may no longer be a distinguishing factor of the HCK test and may be applicable in other jurisdictions.

4.       Unknown Information

The third unique feature of the HCK test is that where a doctor is not in possession of the information that is relevant and material, the case will no longer be assessed under the category of negligent advice but instead be assessed as a negligent diagnosis or treatment case and therefore be subjected to the normal Bolam-Bolitho test.[87] The cases of Montgomery and Rogers are silent on this aspect. This scenario involves a doctor who lacks the information through his own fault and not scenarios where the risk was not even comprehended by medical knowledge at the time of the alleged breach.[88]

While the end-result of this re-characterisation is correct in principle, the classification of such a case may not be as straightforward as it seems.

For cases where a doctor is unaware of information due to a failure to conduct certain procedures on the patient, that would rightly fit under the rubric of diagnosis. Diagnosis involves establishing the medical needs of a patient and includes the obtaining, consideration, and analysis of information gathered followed by the formation of provisional conclusions on the best way to proceed.[89] An analogous situation to this surfaced in a subsequent recent case.[90]

However, where a doctor is unaware of information due to a lack of factual or technical knowledge of a particular risk, such a situation is not as clear-cut.

Firstly, treatment involves the carrying out of the solution chosen by the patient as well as the care the patient receives.[91] If a patient fails to receive information on a risk of a specific procedure, the treatment of the patient by the doctor is not itself defective. The issue is instead whether the patient would have chosen the same solution had the patient known of the information.

Secondly, diagnosis involves establishing the medical needs of a patient and determining the best way to proceed.[92] Here, an argument can be made that the doctor might have been negligent in not ascertaining the best way to proceed properly.

Thirdly, advice involves the presentation of information to the patient and includes recommendations as well as other material information.[93] While it is agreed that “one cannot give what one does not have” [94], this does not necessarily stop the lack of information from being a negligent advice scenario. It is correct that a doctor without the material information cannot provide that information to the patient. However, this also means that the doctor has failed to advise the patient properly as a result of that lack of information, which is arguably still a failure in advising.

Nonetheless, the outcome of the re-characterisation is that the Bolam-Bolitho test is applied to cases where the doctor lacks the information that is considered material which is correct in principle. This is because a failure of a doctor to be aware of medical information due to his own ignorance is essentially a failure of a medical nature and therefore recourse should be sought from the Bolam-Bolitho test. It is submitted that an alternative and clearer conceptual approach would be to analyse it plainly from the perspective of whether the doctor “was negligent in not having such information”[95] without the need for re-characterising the case as diagnosis or treatment.

5.       Remaining Ambiguities

While the current framework provided by the HCK test has many positive features, there remains some ambiguity and uncertainty that permeates through the test. There are two prominent ambiguities that have yet to be discussed and are important to highlight at this juncture.

The first prominent ambiguity that surfaces from the HCK test relates to the level of flexibility that has been injected into the analysis as compared to Montgomery. In the Montgomery test, once the conditions specified in the definition of materiality[96] are fulfilled, the information is considered material. This is because the definition uses the phrase “is whether”, which results in the conditions being phrased as the test of materiality itself.[97]

On the other hand, the definition of materiality in the HCK test[98] uses the phrase “having regard to”. This means that the HCK test does not specify automatic conditions in order for the information to be considered material but provides factors that are taken into account in determining materiality.[99] This approach of treating the conditions as factors results in fluidity in determining what information is material, thus leading to uncertainty.

This fluidity from treating the conditions as factors, coupled with “common sense” playing a more powerful role[100], and further exacerbated by the fact that the “tests” adopted from Montgomery are in itself inherently difficult for doctors to determine materiality in practice, results in a problematic level of uncertainty. The combined effect of these would mean that a doctor will have great difficulty in practice in determining whether a particular piece of information is material or not. This would result in defensive practices such as disclosing more information than is necessary in the doctor’s attempt to be legally safe, accompanied by the attendant detrimental effects[101]. The Ministry of Health has highlighted that doctors are indeed having difficulty in applying the HCK test.[102]

The second prominent ambiguity relates to the classification of a doctor’s actions in the three aspects of medical care (diagnosis, treatment and advice). In HCK, the Court of Appeal stated that the three aspects of medical care are not monolithic and cannot always be demarcated clearly.[103] The court then noted that the different aspects of medical care will often be in play concurrently.[104] These aspects “emerge and submerge repeatedly” at different points in the doctor-patient relationship.[105] The court acknowledged therefore that the application of differing standards of assessment is not a straightforward task.[106]

While the effect of this makes it difficult for a doctor to determine which standard of care will apply to any given situation, it is submitted that the uncertainty created by this ambiguity will have negligible practical effect on medical advice. This is because defensive practices would result in doctors choosing to apply the more demanding standard of care to the situation and this would indeed be the HCK test, a favourable consequence.

IV.              CONCLUSION

In conclusion, patient-centricity has come a long way from the days of Sidaway. In some respects, the HCK test has gone further than the Montgomery test in favour of patients but in other aspects it has been more conservative.

The test has many complexities and nuances that strike a delicate balance between the Montgomery test and the Bolam-Bolitho test. The HCK test as a whole highlights a shift in emphasis towards patient autonomy. The three-stage inquiry separates the various components of the test to ensure that analysis is done in a systematic way. The scope of information that needs to be disclosed appears to be expanded in HCK. However, this is balanced against an additional test of relevancy, a test which needs further clarification. Defensive medicine is also mitigated to some extent by the requirement that a doctor does not indiscriminately bombard the patient with information like an information dump.[107] These adaptations by the Court of Appeal were arguably necessary to adapt to Singapore’s context.[108]

Nonetheless, what is clear is that the HCK test seeks to strike a unique balance in Singapore between patient autonomy and beneficence. The HCK test, in light of its various features and aspects, has thus set a new standard of care required of Singapore doctors in advice scenarios that has sought to place an appropriate emphasis on both the patient and the doctor.

---

* LLB (Hons) (NUS), Class of 2019.

[1] A classification that was made in Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] SGCA 25; [2002] 1 SLR(R) 1024 and elaborated on in Hii Chii Kok v Ooi Peng Jin London Lucien and Another, [2017] SGCA 38; 2017 2 SLR 492 at [89].

[2] Sidaway v Bethlem Royal Hospital Governors, [1985] AC 871 (HL (Eng)).

[3] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] SGCA 25; [2002] 1 SLR(R) 1024 at [65].

[4] Montgomery v Lanarkshire Health Board, [2015] 1 AC 1430 (SC (Eng)).

[5] Rogers v Whitaker, [1992] 175 CLR 479 (HCA).

[6] Such as the American case of Canterbury v Spence, [1972] 464 F 2d 772, the Canadian case of Reibl v Hughes, [1980] 2 SCR 880 (SCC) and the Malaysian case of Foo Fio Na v Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593 (FC).

[7] Hii Chii Kok v Ooi Peng Jin London Lucien and Another, [2017] SGCA 38; [2017] 2 SLR 492.

[8] Keith Jieren Thirumaran, “The exceptions allowing for Non-Disclosure of Information by Doctors in Singapore – Part 2 of the HCK Series” (2019) Singapore Law Review, 11 Juris Illuminae (online).

[9] Supra note 7 at [132].

[10] Ibid at [132].

[11] Supra note 7 at [134]; Lam Kwok Tai Leslie v Singapore Medical Council, [2017] SGHC 260; [2017] 5 SLR 1168 at [31].

[12] Supra note 7 at [149]; Lam Kwok Tai Leslie v Singapore Medical Council, [2017] SGHC 260; [2017] 5 SLR 1168 at [31].

[13] Supra note 7 at [144].

[14] Ibid.

[15] Ibid at [137].

[16] Ibid.

[17] Ibid at [139] and [143]. In determining materiality, the court gave the example of risks and opined that the likelihood and severity of the risk would determine materiality to a reasonable patient – Ibid at [140].

[18] Ibid at [145].

[19] In Montgomery, the types of information only included “any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments” – See: Supra note 4 at [87].

[20] Supra note 7 at [132] and [138].

[21] Dickson v Pinder, [2010] ABQB 269 at [68].

[22] Ibid at [68]. Supra note 7 at [132] and [138].

[23] Supra note 7 at [143]. For example, “where the diagnosis is uncertain, more information pertaining to other possible diagnoses will also become material” – See: Supra note 7 at [143].

[24] Supra note 7 at [133].

[25] Ibid at [133].

[26] Ibid at [134].

[27] Supra note 8.

[28] Supra note 7 at [134].

[29] Ibid.

[30] Ibid.

[31] Ibid at [148].

[32] Ibid at [149].

[33] Ibid.

[34] Ibid at [150].

[35] Ibid.

[36] Ibid at [151]. In this situation, rather than justifying a doctor’s withholding of information, the reality is that the duty to advise the patient is itself suspended out of necessity.

[37] Ibid at [151].

[38] Ibid at [152]. The court also elaborated on some examples such as patients with anxiety disorders or are easily frightened as well as patients “whose state of mind, intellectual abilities or education” make it “impossible or extremely difficult” to weigh the risks and understand the reality.

[39] Ibid at [153].

[40] Ibid.

[41] Ibid at [85].

[42] Ibid at [116].

[43] Ibid at [118].

[44] Ibid at [120].

[45] Ibid at [119].

[46] Ibid at [113].

[47] Ibid at [118], citing Singapore Medical Council, Ethical Code and Ethical Guidelines, Singapore: Singapore Medical Council, 2016.

[48] Ibid at [125].

[49] Ibid at [97].

[50] Ibid at [125].

[51] Ibid at [120].

[52] Ibid.

[53] Ibid at [131].

[54] Ibid at [113].

[55] Ibid at [85].

[56] Ibid.

[57] Healthcare in Singapore is largely funded privately or through insurance schemes, although government subsidies may be provided. On the other hand, the UK’s National Health Service is financed by the government through taxes. As a result, in the event that an overly patient-centric approach results in defensive medicine, the increase in healthcare costs would have a greater impact on Singapore society that in the UK. This is because it would mean higher out-of-pocket expenditure by those in need of healthcare as well as higher insurance premiums for the general public.

[58] Supra note 7 at [132].

[59] Supra note 5 at [16].

[60] Supra note 4 at [87].

[61] Regina (M & Another) v Human Fertilisation and Embryology Authority, [2017] 4 WLR 130 (CA (Eng)) at [79].

[62] Ibid at [79].

[63] If a patient is reasonably likely to attach significance to the information (thereby considering it material), then there is no conceivable way for the information to be irrelevant to the patient. This is because where a patient considers information material, the information must logically be in some way related or have some connection to the scenario the patient is in. If the information were not relevant because it was not related or connected to the patient in any way whatsoever, no patient would reasonably attach significance to it in the first place.

[64] This is clear from the facts of HCK where certain specific information on the test (like the number of times it had been used before) were not material, although they were relevant to the patient as it was the test that the patient had undergone – See: Supra note 7 at [186].

[65] It is important to note that there is a recent Singapore case that takes a different view of defensive medicine and this is discussed later in this commentary: see note 75 below and its accompanying text.

[66] Supra note 2 at 887.

[67] Supra note 7 at [84] & [87].

[68] Tong Seok May Joanne v Yau Hok Man Gordon, [2012] SGHC 252 at [76].

[69] Supra note 3 at [144].

[70] Response by Chief Justice Sundaresh Menon at the Opening of the Legal Year 2016 (11 January 2016) at para 43.

[71] Singapore Parliamentary Debates, Official Report (1 April 2019) vol 94 “Protecting Patients’ Interests and Supporting the Medical Community” (Gan Kim Yong, Minister for Health) – which states: “In the current climate of uncertainty, there is a real risk that medical practitioners will adopt defensive medicine. There is evidence that this is already happening. Fearing that they might be called out should a complication occur, doctors are likely to overwhelm patients with voluminous information on multiple unlikely risks, protecting themselves legally but confusing patients.”

[72] Chief Justice Sundaresh Menon, “Evolving Paradigms for Medical Litigation in Singapore”, (28 October 2014) Obstetrical & Gynaecological Society of Singapore at [33].

[73] Supra note 7 at [132] & [138].

[74] Supra note 21 at [68].

[75] Singapore Medical Council v Lim Lian Arn [2019] SGHC 172 at [53].

[76] Ibid at [53].

[77] Ibid at [54].

[78] See note 66 above and its accompanying text.

[79] Singapore Parliamentary Debates, Official Report (1 April 2019) vol 94 “Protecting Patients’ Interests and Supporting the Medical Community” (Gan Kim Yong, Minister for Health) – which states: “In the current climate of uncertainty, there is a real risk that medical practitioners will adopt defensive medicine. There is evidence that this is already happening. Fearing that they might be called out should a complication occur, doctors are likely to overwhelm patients with voluminous information on multiple unlikely risks, protecting themselves legally but confusing patients.”

[80] Being unsure, a doctor is likely to behave defensively in an attempt to remain legally safe, thus resulting in the disclosure of material information whether relevant or irrelevant. This final outcome would also have originated under the Montgomery test.

[81] Supra note 7 at [132] and [138]. Supra note 21 at [68].

[82] Supra note 7 at [143].

[83] Ibid.

[84] Supra note 4 at [13].

[85] Supra note 7 at [47].

[86] Spencer v Hillingdon Hospital NHS Trust, [2015] EWHC 1058 at [32].

[87] Supra note 7 at [133].

[88] This is because in such a scenario, a reasonable medical practitioner cannot be expected to have possession of such information beyond medical science – See: Rosenberg v Percival, [2001] HCA 18 at [67], Gummow J.

[89] Supra note 7 at [96].

[90] Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd [2018] SGHC 35 at [55]; Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] SGCA 13 at [80] – [82].

[91] Supra note 7 at [98].

[92] Ibid at [96].

[93] Ibid at [97].

[94] Ibid at [133].

[95] Supra note 90 at [55].

[96] “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.” – See: Supra note 4 at [87].

[97] Supra note 4 at [87].

[98] “Materiality is to be assessed from the vantage point of the patient, having regard to matters that the patient in question was reasonably likely to have attached significance to in arriving at his decision, or matters which the doctor in fact knew or had reason to believe that the patient in question would have placed particular emphasis on.” – See: Supra note 7 at [137].

[99] Supra note 7 at [137].

[100] Supra note 7 at [139] & [143].

[101] See note 68-72 above and its accompanying text.

[102] Singapore Parliamentary Debates, Official Report (11 February 2019) vol 94 “Informed Consent for Medical Procedures Following Recent Case where Orthopaedic Doctor was Fined” (Dr Lam Pin Min, Minister of State for Health) – which states: “There has been feedback on the considerable confusion amongst medical practitioners on the requirements on informed consent and material information, and how the modified Montgomery Test and the ECEG should apply. … I am clearly aware of the concerns of many medical professionals on the Modified Montgomery Test. I have personally received feedback from fellow medical practitioners especially on the requirement on informed consent and material information, and how this new test should be applied. There is also feedback from the medical community that this may lead to defensive medicine and escalation of healthcare cost.”

[103] Supra note 7 at [90].

[104] Ibid.

[105] Ibid at [91].

[106] Ibid at [92].

[107] Ibid at [143].

[108] Supra note 57.

The Exceptions Allowing For Non-Disclosure of Information by Doctors in Singapore – Part 2 of the HCK Series

The PDF version of this article can be found here.

---

the Exceptions Allowing for Non-disclosure of information by Doctors in Singapore – part 2 of the hck series

Keith Jieren Thirumaran*

I.                    INTRODUCTION

In the landmark decision of Hii Chii Kok v Ooi Peng Jin London Lucien [HCK][1], the Singapore Court of Appeal adopted a modified and unique test in the context of medical advice for doctors in Singapore. In Part 1 of the HCK series[2], an overview of the HCK test was provided together with a detailed analysis of various aspects of the test. Part 2 of the HCK series will now focus specifically on stage 3 of the HCK test relating to the situations where a doctor is justified in withholding information from the patient regardless of its materiality, otherwise known as the exceptions to a doctor’s duty of disclosure.

II.                 OVERVIEW OF HCK TEST’S STAGE 3

The HCK test formulated by the Singapore Court of Appeal is a three-stage test. The first stage involves the patient’s identification of the information not provided and why it should be regarded as relevant and material.[3] The second stage involves determining whether the doctor was in possession of the information identified as relevant and material.[4]

The third stage involves an examination of the reasons why the doctor chose to withhold the information from the patient.[5] The Court would determine whether the “doctor was justified in withholding the information”.[6] However, this would not be measured by the Bolam-Bolitho test even though it is informed by medical considerations.[7] After determining that the doctor’s reasons were justified, the Court would then determine whether it “was a sound judgment having regard to the standards of a reasonable and competent doctor”.[8] At this stage, expert medical evidence will have some significance because there is still “an element of professional judgment involved”.[9]

The Court did not want to confine or restrict the situations that could be justifiable, but held that courts would consider all the circumstances in determining whether the withholding of information was justified.[10] However, the Court elaborated on 3 non-exhaustive categories of situations that would justify non-disclosure.[11]

The first situation allowing for the withholding of information is where the patient does not wish to know the information.[12] This is treated as a “factual question” on the existence and scope of a patient’s waiver of the information and will not usually involve expert opinion.[13]

The second situation is where there is an emergency scenario such as when there is a threat of death or serious harm to the patient while the patient lacks decision-making capacity and there is no appropriate substitute decision-maker.[14] In this situation, rather than justifying a doctor’s withholding of information, the duty to advise the patient is itself suspended out of necessity.[15] For this situation, the Bolam-Bolitho test will apply because medical expert opinion will be “crucial” in determining whether the urgency of the situation is such that seeking opportunities to provide information to the patient can be sacrificed.[16]

The third situation involves therapeutic privilege and applies where a doctor “reasonably believes that the very act of giving particular information would cause the patient serious physical or mental harm”.[17] For this situation, expert medical and psychological evidence will “be helpful or even crucial” to the Court but the Bolam-Bolitho test will not be applied as the focus is on whether the Court is of the opinion that the patient would likely be harmed when informed of the material information.[18] The Court of Appeal also elaborated on some examples, such as patients with anxiety disorders, patients who are easily frightened and patients “whose state of mind, intellectual abilities or education” make it “impossible or extremely difficult” to weigh the risks and understand the reality.[19]

III.              ANALYSIS OF STAGE 3 OF THE HCK TEST

It is evident from the HCK test that stage 3 is much more detailed and specific in its elaboration of the various exceptions to a doctor’s duty of disclosure, as compared to the UK Supreme Court’s test in Montgomery v Lanarkshire Health Board [Montgomery][20]. The HCK decision draws inspiration from the Montgomery decision while simultaneously building upon the existing pronouncements on the exceptions to disclosure. This section will now explore the features of the HCK test’s stage 3 that set it apart from the decision in Montgomery.

1.       Expansion of exceptions using an open-ended approach

The first unique and distinguishing feature of the HCK test’s stage 3 relates to the situations (or exceptions) that entitle doctors to withhold relevant and material information.

The Court in HCK adopted an open-ended circumstance-based approach regarding what kinds of situations would justify the withholding of information.[21] The Court would determine whether the doctor had reasonably justifiable reasons for withholding the information and whether it “was a sound judgment having regard to the standards of a reasonable and competent doctor”.[22]

At first glance, this might seem like a reversion back to the Bolam-Bolitho test. However, the Court has emphasised that this would not be the case[23] and medical evidence merely has significance due to “the element of professional judgment involved”[24]. Although the second aspect of this approach takes into account medical evidence, this is only done to the extent that medical considerations are involved.[25] As such, in the final analysis, it is the Court that must be “satisfied that the non-disclosure of information was justified” on the facts of the case and not whether the non-disclosure was accepted as proper by a responsible body of medical men.[26]

Insofar as the balance between patient autonomy and doctor’s opinions are concerned, HCK appears to take a patient-centric approach by not applying the Bolam-Bolitho test across the board for all situations that justify the withholding of information. While Montgomery is silent on the tests for assessing the situations justifying the withholding of information, support for Singapore’s position can be found in the Australian High Court where it was stated that medical practice and opinion are still relevant although it is no longer conclusive because the decision belongs to the courts.[27] As such, although patient autonomy now plays an important role, this is balanced against the fact that medical evidence will still be taken into consideration, albeit not in the same manner as Bolam-Bolitho.

However, insofar as the types of situations where non-disclosure might be justifiable are concerned, the Court in HCK has gone further than Montgomery by applying a flexible test that is broad and leaves the possibility open for other situations. While it may be argued that the open-ended nature will add to the ambiguities and uncertainties discussed in Part 1 of the HCK series[28], it is submitted that this will likely have no immediate impact on doctors who are likely to continue relying solely on the three well-established exceptions. This is a result that would have eventuated under the Montgomery test as well. Nonetheless, it does give some flexibility and manoeuvrability to the courts in the event of a future case outside the scope of the three established exceptions that has special facts that justify a doctor’s withholding of information.

2.       Details on the application of exceptions

The second unique and distinguishing feature of the HCK test’s stage 3 is that it elaborates and provides the exact conditions that need to be satisfied in order to successfully rely on the situations (or exceptions) that entitle doctors to withhold relevant and material information. As the Supreme Court in Montgomery did not elaborate on the exceptions, it remains to be seen whether the standards adopted will be the same.

Where the patient does not wish to know the information, the issue would be treated as a “factual question” on the existence and scope of a patient’s waiver of the information and will not usually involve expert opinion.[29] This must be correct as a doctor’s decision on whether there has been a waiver is not dependent on medical expertise[30] but is merely dependent on whether a waiver of information actually exists on the facts.

In an emergency situation, the Bolam-Bolitho test will apply as medical expert opinion will be “crucial” in determining whether the urgency of the situation is such that seeking opportunities to provide information to the patient can be sacrificed.[31] This is correct as the urgency of treatment is essentially a medical issue and an area in which judicial wisdom has its limits.[32]

The final situation dealt with in HCK where a doctor can withhold information from the patient is therapeutic privilege. Therapeutic privilege applies where “the doctor reasonably believes that the very act of giving particular information would cause the patient serious physical or mental harm”.[33]

In cases involving therapeutic privilege, expert medical and psychological evidence will “be helpful or even crucial” to the Court but the Bolam-Bolitho test will not be applied as the focus is on whether the Court is objectively of the opinion that the patient would likely be harmed when informed of the material information.[34] Here, the Court adopts the middle ground by recognizing that medical opinion is relevant but reserving the final determination on whether the patient would be harmed to the Courts.

The necessity of therapeutic privilege in any case is largely a medical decision to make. This is because determining the effect of the information on a patient involves analysis that extends to the state of mind and psychological condition of the patient, of which doctors have a degree of experience with assessing in light of their medical training. However, a decision on the applicability of therapeutic privilege would take away a patient’s autonomy in making a choice and as such it is understandable that the Court did not wish to leave such a decision entirely to the medical profession. One concern that arises is whether interfering with medical opinion on therapeutic privilege goes against the principle that “a judge, unschooled and unskilled in the art of medicine, has no business adjudicating matters over which medical experts themselves cannot come to agreement”.[35] However, it appears that the Court in HCK was only reserving the final decision on therapeutic privilege to itself. This can be viewed as a Bolitho-style test of logic and consistency. Therefore, if interpreted this way, the courts reserving the right of making the final determination on therapeutic privilege does not result in any inconsistency.

A common concern that arises out of therapeutic privilege is that it has the “potential to ‘swallow’ the doctor’s obligation of disclosure”.[36] If left unchecked, the effect of the therapeutic privilege exception could render patient autonomy otiose or non-existent. This would occur where doctors are given too much freedom in exercising the privilege.

While the Court in Montgomery did not elaborate on the scope of this exception, the Court in HCK gave the exception a broad and expansive scope. This was because the Court felt that “doctors should have a measure of latitude in invoking the therapeutic privilege”.[37] Nonetheless, the Court in HCK stressed that therapeutic privilege should not be abused to prevent a patient that is capable of making a choice from doing so just because the doctor believes that it is contrary to the patient’s best interests[38]. This point was also made in Montgomery.[39] The broad scope of therapeutic privilege under HCK raises two areas of concern with regards to medical paternalism.

The first area of concern involves the kind of potential harm that would permit a doctor to withhold information. The position in Montgomery allows withholding information where it would be “seriously detrimental to the patient’s health”[40] while in Rogers v Whitaker withholding information is allowed where it would “prove damaging to a patient”[41]. Notwithstanding the cautionary statements made by the courts earlier, these vague tests have the potential to include the effects of making a bad decision as a type of harm under therapeutic privilege. This would render patient autonomy illusory because a doctor can simply claim that an informed choice not to undergo treatment would result in harm to the patient simply because the patient would not be getting treated. Under HCK, the position appears to be similar and includes both serious “physical” harm and “mental” harm.[42] This potentially allows physical harm caused by not undergoing treatment to qualify.[43] This is further supported by the fact that the privilege applies even where a patient may be “easily frightened out of having even relatively safe treatments that can drastically improve their quality of life”.[44]

The second area of concern involves the type and condition of patients who may potentially have therapeutic privilege invoked against them. Under HCK, therapeutic privilege extends to cases where a patient’s decision-making capabilities are impaired to an appreciable degree, although they may not strictly lack mental capacity.[45] In determining whether the patient suffers from an impairment of his decision-making abilities, regard will be given to the benefits of the treatment, the relatively low risks present, and the probability that even with suitable assistance the patient would refuse treatment due to a misapprehension of information.[46] The factors that are taken into account suggest that a patient who has made a mistake in his decision, and as a result has not chosen something that would objectively be considered good for him, may be considered as having an impairment in decision-making abilities. This mimics medical paternalism where the patient’s choice is overturned because it is not good for the patient. This is difficult to reconcile with the principle that a person should not be treated as unable to make a decision merely because he makes an unwise decision under the Singapore Mental Capacity Act.[47]

Furthermore, although the Court in HCK emphasized that a patient’s decision-making ability had to be “impaired to an appreciable degree”, the Court tapered this with the inclusion of patients who were easily frightened and whom it would be extremely difficult to explain the true reality to.[48] To some extent, this is contradictory with the earlier statement that a patient who is “capable of making a choice” should be allowed to do so even if it is contrary to the patient’s best interests.[49]

The combined effect of these two areas of concern is that the balance between patient autonomy and medical paternalism becomes blurred. While medical decisions in clear-cut scenarios of mentally incapacitated patients should be left to the doctor and a clear-minded and informed patient should be allowed to make a “bad” decision, the line becomes very fine in the grey area where a patient has mental capacity but his decision-making ability is impaired. This presents a difficult tension between allowing the patient to “wrongly” weigh the information in the interests of patient autonomy and allowing medical paternalism to protect the patient from his own decisions and their resultant harms under beneficence.

As such, the current position in respect of the scope of the therapeutic privilege exception in Singapore is unclear and requires further clarification. The effect of the current uncertainty surrounding this privilege is that doctors will not be comfortable invoking therapeutic privilege in the grey area where their patient has mental capacity along with some impairments in decision-making abilities. This may well be the desirable position to remain in in order to give full effect to patient autonomy and allow patients to make “bad” decisions.

IV.              CONCLUSION

In conclusion, although the HCK test has many positive features and has made great progress in the direction of patient autonomy[50], stage 3 of the HCK test presents certain difficulties that have the potential to derail the progress made in the former stages of the test. The expansion of the potential exceptions and situations for the withholding of information entails different forms of analysis within each exception. The HCK test provides details on how each exception should be applied, some of which bring back notions of medical opinion and evidence playing roles. However, the adoption of therapeutic privilege from English and Australian law requires further thought. Nonetheless, overall the HCK test strikes a unique and delicate balance between patient autonomy and beneficence in Singapore.

---

*LLB (Hons) (NUS), Class of 2019.

[1] Hii Chii Kok v Ooi Peng Jin London Lucien and Another, [2017] SGCA 38; [2017] 2 SLR 492.

[2] Keith Jieren Thirumaran, “The Unique Standard of Care for Doctors in Singapore – Part 1 of the HCK Series” (2019) Singapore Law Review, 11 Juris Illuminae (online).

[3] Supra note 1 at [132].

[4] Ibid at [133].

[5] Ibid at [134].

[6] Ibid.

[7] Ibid.

[8] Ibid at [134].

[9] Ibid at [148].

[10] Ibid at [149].

[11] Ibid.

[12] Ibid at [150].

[13] Ibid.

[14] Ibid at [151].

[15] Ibid.

[16] Ibid.

[17] Ibid at [152].

[18] Ibid at [153].

[19] Ibid at [152].

[20] Montgomery v Lanarkshire Health Board, [2015] 1 AC 1430 (SC (Eng)).

[21] Supra note 1 at [149].

[22] Ibid at [134].

[23] Ibid.

[24] Ibid at [148].

[25] Ibid at [149].

[26] Ibid at [134].

[27] Rosenberg v Percival, [2001] HCA 18 at [7], Gleeson CJ.

[28] Supra note 2.

[29] Supra note 1 at [150].

[30] Supra note 20 at [13].

[31] Supra note 1 at [151].

[32] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] SGCA 25; [2002] 1 SLR(R) 1024 at [144]. Supra note 1 at [81].

[33] Supra note 1 at [152].

[34] Ibid at [153].

[35] Supra note 32.

[36] Meyer Estate v Rogers, [1991] O.J. No. 139, 2 O.R. (3d) 356 at [31].

[37] Supra note 1 at [152].

[38] Ibid at [153].

[39] Supra note 20 at [91].

[40] Ibid at [88].

[41] Rogers v Whitaker, [1992] 175 CLR 479 (HCA) at [9].

[42] Supra note 1 at [152].

[43] Ibid.

[44] Ibid.

[45] Ibid at [152]-[153]. Examples provided by the court included patients with anxiety disorders, geriatric patients who may be easily frightened out of relatively safe treatments, and patients whose state of mind, intellectual abilities or education make it impossible or extremely difficult to explain the true reality to them.

[46] Ibid at [153].

[47] Mental Capacity Act (Cap 177A, 2010 Rev Ed Sing), s 3(4).

[48] Supra note 1 at [152].

[49] Ibid at [152]; Supra note 20 at [91].

[50] Supra note 2.

The European Union's GDPR - A View from Singapore

The PDF version of this article is available for download here.

---

The European Union’s gdpr – a view from singapore

This article was first submitted for publication in July 2018, two months after the GDPR came into force. At the time of publication, the GDPR has not seen any further amendments.

Ong Kye Jing

Introduction

The European Union’s [EU] long-awaited General Data Protection Regulation[1] [GDPR] finally came into effect on 25 May 2018. The product of a decade-long legislative endeavour,[2] the GDPR promised a much–needed update to the EU’s Data Protection Directive [DPD],[3] the latter having been introduced when less than 1% of EU citizens were Internet users.[4]

The GDPR has gotten off to an exciting start. Complaints were filed within an hour of it coming into force,[5] as were billion-dollar lawsuits within the first 24 hours.[6] Consumers were subjected to a flurry of emails as businesses scrambled to secure fresh consent.[7] This anxiety is understandable: the GDPR empowers supervisory authorities to impose fines as high as EUR 20,000,000 or 4% of an organisation’s total worldwide annual turnover, whichever is higher.[8] Prior to this, maximum penalties had only amounted to EUR 3,000,000 in France and EUR 300,000 in Germany.[9]

An equally significant change is the GDPR’s theoretically–universal territorial reach. Applying the principle of lex loci solutionis, data controllers that (i) offer goods or services to individuals in the EU, or (ii) monitor their behaviour within the EU, could face obligations under the GDPR despite not being physically or legally established in the EU.[10] Processors (or data intermediaries) that handle such data may also face obligations, albeit of a more limited nature.

In other words, several Singapore–based organisations will now face dual obligations under both the GDPR and Singapore’s Personal Data Protection Act[11] [PDPA]. This article attempts to briefly but critically compare the approaches taken under each regime, with a focus on controllers’ obligations. Broadly, it will explore the themes of consent, purpose limitation and notification, and accountability.

Consent

Under the PDPA, controllers cannot collect, use or disclose personal data[12] without the data subject’s consent.[13] Under the GDPR, consent retains its privileged position. In fact, the GDPR goes further to stipulate that consent must be a “freely given, specific, informed and unambiguous indication of a data subject’s wishes”.[14] Each element deserves some scrutiny.

To an extent, the second and third requirements – of “specific” and “informed” consent” – are nothing new vis-à-vis the PDPA. Consent must be “specific” in that the controller’s exact purpose(s) for data processing must be explicitly delineated and sufficiently granular. And for consent to be “informed”, consent requests need to be communicated in clear and plain language, separately from other matters, and together with other relevant information like the controller’s identity, the data subject’s right to withdraw consent, and the possible risks of data transfers.[15]

One notable difference with the GDPR is that consent must also be “freely given”. Building upon the procedural ingredients above, this injects a substantive element to the test for consent. Data subjects must have a “genuine [and] free choice” and be able to “refuse or withdraw consent without detriment”.[16] A statutory presumption against freely–given consent will likely apply where (i) parties experience clear power imbalances, like in employment relationships, or (ii) separate consent cannot be given for different data processing operations.[17] Accordingly, controllers should (i) identify an alternative basis for processing where an imbalance exists, and (ii) seek standalone consent for each class of processing operations.

Finally, consent must amount to an unambiguous indication of the data subject’s interests. This requires a clear statement or affirmative act from the data subject;[18] silence, inactivity, and pre–ticked boxes do not suffice.[19] One might query whether such an exclusionary rule against apparent omissions unduly places form over substance. In this regard, the PDPA’s discretionary position towards opt–out clauses is perhaps preferable. Singapore’s Personal Data Protection Commission [PDPC] recognises, for example, that a data subject who leaves a clause stating “tick here if you do not wish your personal data to be provided” unticked, but who otherwise meticulously fills out and submits the remainder of an application form, could reasonably be said to have consented.[20]

Two further observations should be made:

First, the theme of fairness which underlies these requirements appears to feature even more prominently in the GDPR’s recitals. In particular, rec 42 stipulates that a declaration of consent “should not contain unfair terms”,[21] in line with Council Directive 93/13/EEC[22] on unfair terms in consumer contracts. Unfortunately, it is unclear how much weight ought to be placed on rec 42. Recitals are not substantive provisions in their own right, but mainly serve to explain the basis for legislation. Moreover, the GDPR does not expound on the manner and extent to which these provisions, which apply predominantly to the sale of goods, are to be transposed to data protection. Any attempt at directly transplanting these considerations into Singapore might entail an even further leap, given that European consumer protection standards and the law on unfair terms in Singapore might not be doctrinally compatible.[23] In short, rec 42’s practical significance remains to be seen.

Second, unlike the PDPA, the GDPR rejects the notion that consent can be deemed. Therefore, even if an individual voluntarily provides her personal data, for purposes she was aware of, and in circumstances where providing such data is reasonable, this alone would not constitute valid consent under the GDPR.[24] A controller seeking to legitimise such data processing should instead rely on another basis for processing.[25]

Lawful bases for proCessing

Apart from explicit consent, a controller can justify the collection, use or disclosure of data using one of five other bases enumerated under art 6 of the GDPR.[26] These have been adapted from the DPD, although EU Member States are now further empowered to introduce additional bases.[27] This is comparable to relying on one of the exceptions to the Consent Obligation under the PDPA.[28]

Most GDPR bases and PDPA exceptions are founded on necessity, and some are even virtually identical. For example, under both regimes, processing that is necessary in the national or public interest is generally lawful,[29] as is processing necessary to protect the data subject’s “vital interests” (GDPR),[30] or “life, health or safety [in an emergency]” (PDPA).[31]

Two bases that are unique to the GDPR are of greater interest: (i) processing necessary for contractual performance, and (ii) processing necessary for the controller’s or a third party’s legitimate interests (balanced against the data subject’s reasonable expectations).[32] On their face, they appear to provide generous exceptions to the obligation to obtain consent. Notably, the EU legislator accepts that even processing for direct marketing purposes might qualify.[33] It is submitted that these bases could, possibly inadvertently, operate to mop up the PDPA’s ‘deemed consent’ cases. Using an example from the PDPC,[34] under the PDPA, a data subject who provides her credit card details in exchange for facial treatment could be deemed to have consented to data collection. While consent cannot be deemed under the GDPR, such processing could instead be justified under the banner of being necessary for contractual performance. Either way, lawful processing becomes possible.

However, the GDPR’s ambit is narrower in one critical way: the fact that personal data is publicly available is not in itself a ground for lawful processing. Under the PDPA, data generally available to the public – including that reasonably observable in public spaces – can be processed with few restrictions.[35] The GDPR departs from this in two ways. First, the personal data must be manifestly made public by the data subject.[36] Second, even where data is manifestly made public, the effect this has is not to legitimise data processing, but only to lift the blanket prohibition on the processing of special categories of data under art 9 of the GDPR.[37] In such circumstances, an additional lawful basis must still be established under art 6. While this second difference could be seen as unnecessarily technical and onerous on controllers,[38] the first is to be celebrated. The requirement is ostensibly borne out of a respect for data subjects’ rights; the act of volunteering one’s information is a normatively significant exercise of one’s autonomy. The mere fact that data is publicly available is not. In fact, where data has been made public against the data subject’s wishes, this could well constitute the very antithesis to the data subject’s interests.[39]

Will Singapore follow the EU’s lead? As it stands under the PDPA, organisations can lawfully use and disclose personal data so long as that data was publicly available for at least an instant in time, even if the individual never intended it for public access and removed it from the public sphere at the earliest opportunity. However, insofar as the PDPA remains an instrument that strives to balance data subjects’ rights with organisations’ interests;[40] Europe’s data subject-friendly approach is unlikely to gain traction in Singapore. This stems from the PDPC’s recognition that, were it otherwise, organisations would have to incessantly verify the data’s continued public availability, which would be “excessively burdensome”.[41]

purpose limitatIOn and notification

Under the GDPR, a controller must – regardless of its specific basis for processing personal data – (i) ensure that processing occurs in a manner compatible with its declared purposes (purpose limitation), and (ii) inform data subjects of these purposes (purpose notification).[42] This is common ground under both regimes, except that the notification obligation does not apply under the PDPA where consent is deemed or where an exception from the Schedule applies.[43] Where consent is required, however, the PDPC has routinely stressed that the ‘neighbouring obligations’ of purpose limitation and notification must be met.[44]

Where purpose limitation is concerned, the GDPR mandates that personal data may only be collected for “specified, explicit and legitimate purposes”.[45] Like the PDPA,[46] vague or generic purposes like “improving user experience”, “IT-security purposes” and “future research” are unlikely to pass muster.[47] Under both regimes, a flexible and fact-sensitive approach will probably be taken to determine whether a purpose is legitimate (or objectively appropriate under the PDPA[48]), based on parties’ reasonable expectations, societal attitudes, etc.[49]

As to the notification obligation, the GDPR sets out relatively more demanding requirements.[50] Controllers are to provide wide-ranging information on their organisations, the data collected (if not already known), the purpose and bases for processing, and any intended data transfers or recipients,[51] along with storage periods, data subjects’ rights, the existence of automated decision-making, and where applicable, the data source.[52]

The GDPR counterbalances these demands by providing for exceptions to the notification obligation. However, these exceptions are not consistently available. Whereas art 14(5) of the GDPR sets out four exceptions (in cases where the data originates from a third-party source), only one exception applies under art 13 (cases where the data originates from the data subject).[53] It is doubtful whether these differences, if deliberate, are justified. As an example, circumstances constituting “disproportionate effort” in an art 14 context are likely to be no less disproportionate or demanding on the controller in an art 13 case.[54] Considerations of fairness and coherence support extending the exception’s application to both contexts. One could make the case that it should be the judge who then determines whether the particular factual matrix crosses the threshold of disproportionality. That being said, EU Member States are empowered to introduce further exceptions pursuant to art 23 of the GDPR, which could leave the final list of exceptions looking quite different.[55]

accountability

Relative to its predecessor, the GDPR is decidedly better grounded in the principles of governance and demonstrable accountability.[56] Controllers and processors are expected to take proactive, ex ante measures to ensure the lawfulness and integrity of all data processed, as early as when determining the means of processing (i.e. Privacy by Design).[57] Another enshrined principle, Privacy by Default, requires controllers to ensure that, by default, only data necessary for their processing purposes are processed.[58] This expectation of data minimisation applies to both the amount of, and access to, data, and the extent and period of their processing retention.[59] Unlike the PDPA, which permits the collection of most data relevant to a controller’s purposes, only data that is “adequate, relevant and limited” to these purposes can be collected under the GDPR.[60] Be that as it may, organisations unaffected by the GDPR might still benefit from adopting data minimisation practices, seeing as this might lower the risk of a data breach – a violation under both regimes.[61]

This emphasis on safeguards stems, in part, from a recognition of the consent model’s deficiencies. The consent model regards the data subject’s consent as the key touchstone of data protection. It presumes, at its heart, the existence of the informed and interested data subject – an idealised construct.[62] In reality, whereas meaningful consent is predicated on carefully-considered choices, the saturation of consent requests and privacy policies today only serve to desensitise data subjects, weakening their ability to respond to such requests.[63] The rise of distributed networks, cloud computing, and the Internet of things has only worsened this predicament by making transactions less discrete and more opaque. Determinations of when and how, or even by whom, our data is processed are thus increasingly difficult to make.[64] An accountability-centric model seeks to resolve these problems by orienting the organisation’s interactions – and obligations – to the regulator, rather than the disinterested or overwhelmed data subject.

In Singapore, the PDPC has always had this second string to its bow, in the form of the Protection Obligation. Organisations are to protect any data they possess or control using “reasonable security arrangements”.[65] Likewise, the GDPR instructs controllers and processors to implement “appropriate technical and organisational measures” to ensure the confidentiality, availability and security of data.[66] Both regimes also contain provisions on data accuracy[67] and limitations on data storage and retention periods.[68]

Both “reasonable” (PDPA) and “appropriate” (GDPR), in this context, likely involve similar evaluations. Reasonableness in the context of the PDPA considers the nature, form, volume, sensitivity and accessibility of information held, and the potential impact of any unauthorised access, modification or disposal.[69] Indicators like industry practice and software currency are relevant,[70] as are risk levels.[71] Appropriateness in the context of the GDPR considers “the nature, scope, context and purposes of processing as well as the risks … for the rights and freedoms of natural persons”.[72] Indicators like adherence to approved codes of conduct and certification under approved mechanisms help demonstrate compliance.[73] What is distinct is that appropriateness also factors in the cost of implementing safeguards,[74] tailoring the assessment to the particular organisation’s means. It has been suggested that the PDPA lacks such a consideration.[75]

Another difference is that compliance must be demonstrable under the GDPR. From obtaining consent[76] to performing internal assessments, organisations are required to document and maintain a record of processing activities,[77] presentable to a supervisory authority on request. While penalties for non-compliance do not appear to include administrative fines, authorities can enforce the obligation using its investigative powers under art 58 of the GDPR,[78] or account for it during sentencing.[79]

The GDPR also elevates the status of Data Protection Impact Assessments [DPIA] from a recommended practice[80] to a mandatory step in some circumstances. Where processing is “likely to result in a high risk”, such as where it involves, inter alia, evaluations using automated processing, large-scale processing of special data, or large-scale monitoring of public spaces, controllers are to first perform an assessment of the processing’s potential impact on data protection.[81] Where such a risk cannot be mitigated, consultations with the supervisory authority should be arranged.[82] One point of interest is art 35(9) of the GDPR, which requires the controller to “seek the views of data subjects … on the intended processing” where appropriate.[83] It is unclear how much weight these opinions will have on supervisory authorities’ directions on the scope and permissibility of processing.

Finally, the GDPR mandates the reporting of personal data breaches. Where the integrity of confidentiality of data has been compromised,[84] controllers are bound to notify the relevant supervisory authority of the breach without undue delay.[85] Where the breach is likely to pose a high risk to data subjects, they must too be notified.[86] The PDPA is currently on a convergence path to adopt similar obligations, the PDPC having announced its intention to do so in February 2018.[87]

conclusion

While the fundamental tenet of consent is here to stay, the GDPR’s broader embrace of accountability is both unmistakable and welcome. In this connection, there is much to be said on the GDPR’s treatment of issues like automated decision making and the right to be forgotten. These are exciting developments in a fast-moving area of the law. The impact they will have on future PDPA amendments is certainly a space to watch.

---

[1] EC, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), [2016] OJ, L119/1 [GDPR].

[2] Paul de Hert & Vagelis Papakonstantinou, “The new General Data Protection Regulation: Still a sound system for the protection of individuals?” (2016) 32 CLSR 179 at 180.

[3] EC, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, [1995] OJ, L 281/31.

[4] EC, Press Release, IP/12/46, “Commission proposes a comprehensive reform of data protection rules to increase users’ control of their data and to cut costs for businesses” (25 January 2012), online: Press Release Database <http://europa.eu/rapid/press-release_IP-12-46_en.htm> For a survey on the development of EU data protection laws, see generally Bart van der Sloot, “Do data protection rules protect the individual and should they? An assessment of the proposed General Data Protection Regulation” (2014) 4(4) IDPL 307.

[5] Jeewon Kim Serrato et al, “One week into GDPR – what you need to know” (4 June 2018), Data Protection Report (blog), online: <https://www.dataprotectionreport.com/2018/06/one-week-into-gdpr-what-you-need-to-know/>.

[6] David Hart QC, “$8 billion lawsuits started on GDPR day” (31 May 2018), UK Human Rights Blog (blog), online: <https://ukhumanrightsblog.com/2018/05/31/8-billion-lawsuits-started-on-gdpr-day/>.

[7] Alex Hern, “Most GDPR emails unnecessary and illegal, say experts”, The Guardian (21 May 2018), online: <https://www.theguardian.com/technology/2018/may/21/gdpr-emails-mostly-unnecessary-and-in-some-cases-illegal-say-experts>.

[8] GDPR, art 83(6).

[9] As highlighted in Paul Voigt & Axel von dem Bussche, The EU General Data Protection Regulation (GDPR): A Practical Guide (Cham, SUI: Springer International, 2017) [GDPR Practical Guide] at 209, n 45, citing the relevant French and German statutes.

[10] GDPR, art 3. See also EC, European Data Protection Board [EDPB], “Guidelines 3/2018 on the territorial scope of the GDPR (Article 3)” (16 November 2018), online: <https://edpb.europa.eu/sites/edpb/files/consultation/edpb_guidelines_3_2018_territorial_scope_en.pdf>.

[11] Personal Data Protection Act 2012 (No 26 of 2012, Sing) [PDPA].

[12] Similarly defined under both PDPA, s 2 and GDPR, art 4, but note in particular GDPR, arts 8–9. Where personal data is obtained from a child below 16–years–old in relation to information society services, art 8 of GDPR, carves out special rules. Art 9 of GDPR, identifies special categories of personal data that are regarded as more sensitive and as requiring greater protection. The absence of similar protections for the personal data of children in Singapore has been regarded as a “significant gap”: see Simon Chesterman, “From Privacy to Data Protection” in Simon Chesterman, ed, Data Protection Law in Singapore: Privacy and Sovereignty in an Interconnected World, 2nd ed (Singapore: Academy Publishing, 2018) 13 [Chesterman] at paras 2.63–2.67.

[13] PDPA, s 13.

[14] GDPR, art 4(11). Under certain circumstances, such as where special categories of personal data are concerned, an even higher standard of “explicit consent” is required: see EU Article 29 Data Protection Working Party, “Guidelines on consent under Regulation 2016/679” (WP259 rev.01) (10 April 2018) [WP29 Guidelines on Consent] at 18.

[15] WP29 Guidelines on Consent at 11–18.

[16] GDPR, rec 42.

[17] GDPR, rec 43. See also Lukas Feiler, Nikolaus Forgó̤ & Michaela Weigl, The EU General Data Protection Regulation (GDPR): a commentary (Woking, Surrey: Globe Law and Business, 2018) at 88; WP29 Guidelines on Consent at 10.

[18] WP Guidelines on Consent at 15.

[19] GDPR, rec 32.

[20] Personal Data Protection Commission Singapore, “Advisory Guidelines on Key Concepts in the Personal Data Protection Act” (27 July 2017) [PDPA Key Concepts] at para 12.10. See also Re YesTuition Agency [2016] SGPDPC 5 generally for a relatively liberal approach to opt–out clauses (there, the PDPC did not object to the existence of a broadly–worded, opt–out clause).

[21] Supra note 16.

[22] EC, Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, [1993] L 95/29 [Directive 93/13/EEC].

[23] Compare the breadth of the definition and illustrations of “unfair terms” in Directive 93/13/EEC, art 3 and Annex, with Singapore’s Unfair Contract Terms Act (Cap 396, 1994 Rev Ed Sing), ss 2–4.

[24] PDPA, s 15(1). See also PDPA Key Concepts at para 12.28.

[25] In fact, organisations are already being advised to bypass the consent requirement altogether by considering alternative bases: GDPR Practical Guide at section 4.2.1.

[26] GDPR, art 6(1)(b)–(f).

[27] GDPR, art 6(2) and rec 40.

[28] PDPA, Second, Third and Fourth Schedules, on collecting, using and disclosing personal data respectively.

[29] GDPR, art 6(1)(e) (“necessary for the performance of a task carried out in the public interest …”); PDPA, paras 1(d) of the Second Schedule, 1(d) of the Third Schedule and 1(e) of the Fourth Schedule (“necessary in the national interest”).

[30] GDPR, art 6(1)(d).

[31] PDPA, paras 1(b) of the Second, Third and Fourth Schedule.

[32] GDPR, arts 6(1)(b) and 6(1)(f). See also EU Article 29 Data Protection Working Party, “Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC” (WP217) (9 April 2014) for specific examples.

[33] GDPR, rec 47.

[34] PDPA Key Concepts at para 12.23.

[35] PDPA, s 2(1); PDPA Key Concepts at paras 12.57-12.59. See, for example, Re SG Vehicles Asia Pte Ltd [2018] PDP Digest 361.

[36] GDPR, art 9(2)(e).

[37] On ‘special categories of data’, see GDPR, art 9(1). These categories include data relating to racial or ethnic origin, political opinions, health data, data concerning one’s sexual orientation, etc. By contrast, the PDPA does not adopt a bright red line approach. Instead, examples of sensitive data that warrant a higher standard of protection are explored in the PDPC’s decisions and advisory guidelines. See, for a summary of these, Re Aviva Ltd [2017] SGPDPC 14 at [17]-[18].

[38] There has been suggestion that this would be unnecessary, e.g. Maria Roberta Perugini, “ Personal data made public by the ‘data subject’ and the use of information published on social networks: early observations of GDPR art 9, para 2, letter e” (23 January 2017), Lexology (blog), online: <https://www.lexology.com/library/detail.aspx?g=ce9e10b9-de43-4771-9f7b-f52963f7a7b4>.

[39] Cf. PDPA Key Concepts at para 12.63. The PDPC’s advisory could be construed as evincing some unease with the exception for publicly-available data. The examples raised at para 12.63 all recommend that organisations collecting personal data in public spaces should, as good practice, put members of the public on notice that their personal data may be collected.

[40] Chesterman at para 2.49.

[41] PDPA Key Concepts at paras 12.60-12.61. See also Re My Digital Lock Pte Ltd [2018] SGPDPC 3.

[42] GDPR, art 5(1)(b); Re AIA Singapore Private Limited [2016] SGPDPC 10 at [18].

[43] PDPA, ss 18 and 20.

[44] Re Jump Rope (Singapore) [2016] SGPDPC 21 at [10]. See also Re AIA Singapore Private Limited [2016] SGPDPC 10 at [18].

[45] GDPR, art 5(1)(b).

[46] PDPA Key Concepts at para 14.16.

[47] EU Article 29 Data Protection Working Party, “Opinion 03/2013 on purpose limitation” (WP203) (2 April 2013) [WP Opinion on purpose limitation] at 16 and 52.

[48] PDPA, s 18; see also Re AIA Singapore Private Limited [2016] SGPDPC 10 at [19]-[20] for an application of this requirement.

[49] WP Opinion on purpose limitation at 19–20.

[50] Cf. PDPA, s 20.

[51] GDPR, arts 13(1), and 14(1).

[52] GDPR, arts 13(2) and 14(2).

[53] EU Article 29 Data Protection Working Party, “Guidelines on transparency under Regulation 2016/679” (WP260) (11 April 2018) at paras 56–57.

[54] GDPR, art 14(5).

[55] GDPR, art 23.

[56] GDPR, art 5(2).

[57] GDPR, art 25(1).

[58] GDPR, arts 5(1)(c), 5(1)(e) and 25(2).

[59] GDPR, art 25(2).

[60] GDPR, art (5).

[61] Hannah YeeFen Lim, Data Protection in the Practical Context: Strategies and Techniques (Singapore: Academy, 2017) at para 5.25.

[62] Policy and Research Group of the Office of the Privacy Commissioner of Canada, “Consent and Privacy: A discussion paper exploring potential enhancements to consent under the Personal Information Protection and Electronic Documents Act” [OPC discussion paper] at 9. See also Gabriela Zanfir, “Forgetting About Consent. Why The Focus Should Be On “Suitable Safeguards” in Data Protection Law” in Serge Gutwirth, Ronald Leenes & Paul de Hert, eds, Reloading Data Protection: Multidisciplinary Insights and Contemporary Challenges (Dordrecht: Springer, 2014) 237.

[63] Bart W Schermer, Bart Custers & Simone van der Hof, “The crisis of consent: how stronger legal protection may lead to weaker consent in data protection” (2014) 16 Ethics and Information Technology 171 at 176-179.

[64] OPC discussion paper at 6.

[65] PDPA, s 24.

[66] GDPR, arts 24(1) and 32(1).

[67] PDPA, s 24; GDPR, art 5(1)(d).

[68] PDPA, s 25; GDPR art 5(1)(e).

[69] PDPA Key Concepts at paras 17.2 & 17.4.

[70] Re K box Entertainment Group Pte Ltd and another [2016] SGPDPC 1 at [26] and [29].

[71] Re Metro Pte Ltd [2016] SGPDPC 7 at [15].

[72] GDPR, art 24(1).

[73] GDPR, arts 24(3) and 32(3).

[74] GDPR, art 32(1).

[75] Foo Ee Yeong Daniel, “Suggestions on the relevance of the Organization’s Size to Section 11 of Singapore’s Personal Data Protection Act” at section II, online: (2017/2018) 9 Juris Illuminae <http://www.singaporelawreview.com/juris-illuminae-entries/2018/suggestions-on-the-relevance-of-the-organizations-size-to-section-11-of-singapores-personal-data-protection-act>.

[76] GDPR, art 7(1) and rec 42.

[77] GDPR, art 30.

[78] GDPR, art 58(1).

[79] GDPR, art 83(2)(f).

[80] PDPA Key Concepts at para 17.4.

[81] GDPR, art 35. See also EU Article 29 Data Protection Working Party, “Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is ‘likely to result in a high risk’ for the purposes of Regulation 2016/679” (WP248 rev.01) (4 October 2017) at 8-12 on other situations where a DPIA may be warranted.

[82] GDPR, rec 84.

[83] GDPR, art 35(9).

[84] Though not when they are only made temporarily unavailable, e.g. in the event of a power outage.

[85] GDPR, art 33(1). A processor which becomes aware of such a breach is to inform its controller instead: GDPR, art 33(2).

[86] GDPR, art 34(1), though see exceptions under GDPR, art 34(3).

[87] Personal Data Protection Commission Singapore, “Response to Feedback on the Public Consultation on Approaches to Managing Personal Data in the Digital Economy” (1 February 2018) at 10–15 (Part III: Mandatory Data Breach Notification). In any case, prompt notification of breaches is already an encouraged practice, and could amount to a mitigating factor in some cases, e.g. in Re Credit Counselling Singapore [2017] SGPDPC 18 at [37].

Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (II/II)

The PDF version of this article is available for download here.

---

Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (II/II)

Agnes Lo, Bryont Chin, Darren Ang, Leon Tay & Louis Lai*

The previous section of this article examined the different considerations that affect the weight accorded to expert evidence.¹ It was observed that judges scrutinize the expert himself (his qualifications and the level and relevance of his specialization) and also his testimony (its cogency, internal consistency, and consistency with the facts).

A survey of local case law and overseas publications reveals issues surrounding this assessment. These have been directed to the reliability of expert opinions itself, applying generally to all experts. Unfortunately, local jurisprudence has not addressed these concerns.

The lacuna in local jurisprudence on this point is especially unfortunate given the widespread prevalence of and reliance upon medical expert opinion in Singapore. It is thus pertinent to examine these issues and their causes in detail.

I. ISSUES ARISING FROM THE ADVERSARIAL PROCESS

A. Partiality and bias of experts

Case law reflects a persistent concern about the partiality and bias of experts but also a recognition that this will persist as long as litigation remains adversarial. Ideally, under Order 40A Rule 2(2) of the Rules of Court² [ROC], experts should bear an exclusive duty to the Court; however, this is usually not the case in practice. A “market-place” mentality continues to prevail: parties select experts because the latter’s views are “already known and, consequently, would advance the party’s case.”³ Both the courts and commentators like Professor Pinsler have acknowledged that the source of this paradigm is the adversarial model, since parties assume that their “remuneration of the expert justifies a measure of loyalty that will somehow manifest to his advantage in the determination of the case before or at trial”.⁴ Therefore, as long as the adversarial model continues to be adopted, parties will continue to pay, retain, and offer the experts future engagements—all of which incentivise experts to provide opinion evidence slanted in favour of the clients who engage them.⁵

To make matters worse, breaches of the procedural duty under Order 40A above attract no direct penalties in themselves. There is only an evidential penalty: if an expert is found to be partial, the court completely or partially disregards his testimony.⁶ This does not seem to have been enough: from the introduction of Order 40A in 2000 to date, the courts have continued to observe bias in experts.⁷ Therefore, bias among experts remains a real problem in the court today.

B. A fear of testifying in Court

Also flowing from the adversarial model and the process of adjudication itself is medical experts’ intrinsic fear of testifying in court. Experts—and medical experts in particular—tend to steer clear of the witness stand for two reasons: a fear that they may not be sufficiently competent to testify, and a fear that they may be shamed or wronged on the stand.⁸

While there is no equally comprehensive study, local doctors have expressed the same fears of testifying due to natural embarrassment and a fear of damaging their colleagues’ reputations.⁹ Failing to address these fears will restrict plaintiffs’ access to medical experts or otherwise make engaging experts more expensive. This reluctance will affect the quality and accessibility of court adjudication, reliant as it is on expert testimony.

C. Insufficiency of factual bases for medical opinions

Experts often have insufficient facts to support their opinion. This is because in litigation, they are likely to be engaged before trials begin since their opinions are critical in establishing the client’s case and thus predict the likelihood of success at trial.¹⁰ However, this means that much of the evidence the expert relies upon to develop his report and testimony will be “untested raw material” since this evidence has yet to be tested in court.¹¹ This concern came to a head in Khoo Bee Kiong,¹² where the court expressly questioned the factual basis of an expert opinion prepared with affidavits of evidence in chief.

This is likely to be aggravated in medical negligence claims, where the recent Supreme Court Practice Directions¹³ impose an accelerated case management timeline. As an expert report must now be filed before the claim itself begins, medical experts have less time and evidence to formulate their opinions.

II. ISSUES IMMANENT IN THE JUDICIAL TREATMENT OF MEDICAL EXPERT OPINIONS

Apart from issues with the expert opinions themselves, there are also notable concerns with the judicial treatment of medical expert opinions as reflected in empirical studies. These suggest that there are systemic issues with judges’ ability to assess the reliability and credibility of a medical expert’s opinion and the proper weight to be accorded to admitted evidence.

A. Lack of clarity on the assessment of reliability and credibility of medical expert opinions

At its core, the court’s assessment of the reliability and credibility of a medical expert’s opinion is a discretionary exercise. It is naturally opaque and applied circumstantially, and may hence appear uncertain. This means that the other stakeholders involved—lawyers, clients, and the medical experts themselves—may not fully understand the standard expected of them. Jurs, for instance, observes that legal professionals tend to over-estimate the value of personality and credentials, whereas judges place a greater emphasis on partiality and bias, tentativeness, and the technicality of the opinions proffered.¹⁴ Clarity in this area is much needed;¹⁵ consensus and better articulation of the relevant considerations would assist greatly.

B. Assessment of weight to be accorded to admitted medical expert opinions

Beyond a lack of clarity on a systemic approach to assess reliability and credibility of medical expert opinions, there is a concern that the current approach may mean that factors which might appear to be unrelated or insignificant may be taken into account in the assessment of weight to be accorded to admitted expert opinions. For instance, “impressions of the analyst’s demeanour and credibility, like the ability to survive cross-examination, will not in most cases provide rational means of assessing the probative value of an opinion.”¹⁶ The English courts, for example, have been criticised for assessing expert opinion evidence on this basis, which has led to factually unsustainable acquittals.¹⁷

Studies suggest that this concern may not be unfounded because of the way medically-untrained judges and jurors assess the value of medical expert opinions. For instance, jurors focus on consensus supporting the expert opinion, whether the opinion is applicable in the case at hand,¹⁸ and how experts communicate their opinions.¹⁹ However, these indicators may not necessarily go towards the veracity of an opinion.²⁰ Where earlier studies have suggested that this may be due to a lack of education in the expert’s field,²¹ it is understandable why some doctors feel that laypersons like jurors “should not decide medical malpractice cases because of the arcane issues involved in the practice of medicine.”²²

Local jurisprudence has only engaged these concerns in the abstract. Ronald Wong posits that the law’s insistence on the finality of an opinion for it to be accepted as evidence conflicts with the scientific method, which relies not on finality, but rather social acceptance to establish a theory as valid.²³ This mirrors the observation in Levett and Korvera’s review that “individuals often are unable to evaluate statistics or methodology properly… [such that] it is reasonable to assume that jurors may be unsuccessful in independently detecting flaws in research presented by an expert in court.”²⁴ Nonetheless, Wong has argued that it is still preferable for a judge to continue to adjudicate on the issue, and if the expert evidence is insufficiently reliable, a judge ought to make his findings of fact on the burden of proof.²⁵ Wong’s argument—defended on grounds of a public interest in resolving disputes—contrasts with Professor Hor’s view that judges lack any institutional capacity to determine the veracity of expert opinion.²⁶

Since judges must still decide cases involving expert opinions, the question of institutional competence remains a live issue to be managed. This is especially the case if adjudication may lead to imperfect reliance on wrong or inaccurate expert opinions as suggested by the studies above.

III. THE PRESENT STATE OF MEDICAL EXPERT OPINION AND ITS PRACTICAL USE

Concerns over unreliable expert opinions have been the subject of statutory reform. The government has astutely institutionalised a court-appointed panel of psychiatrists testifying in criminal cases under the new s 270 of the Criminal Procedure Code²⁷ [CPC] which has not yet come into force.²⁸ This places the control over the admission and use of psychiatrists’ opinions in the hands of a Selection Committee instituted for these purposes.

In other aspects, however, reform continues to be lacking. The independence of experts continues to be secured by weak duties under s 269 CPC which do not depart from the phraseology of Order 40A ROC. The amendments to the CPC do not address the deeper concerns relating to adversarial litigation or pronounce on the feasibility of alternatives such as independent experts or assessors.

Therefore, the fundamental question remains as to whether the amendments will indeed improve the reliability of psychiatric evidence and be a viable option across other classes of medical experts as well; or, alternatively, whether it would entrench a preferred doctrine of psychiatric testimony.²⁹ If the latter is the case, then the amendments may exacerbate the issue of expert witness bias. Psychiatrists have questioned why they were the only class of expert that required supervision, while the Criminal Bar expressed that it would be preferable if the selection process also included defence counsel as a member of the Selection Committee.³⁰

Beyond the concerns regarding the partiality of experts, there are also practical complications of note. Amendments have been made to the Supreme Court Practice Directions to require medical expert opinion reports to be submitted in the pre-writ exchange of information for medical negligence cases, but this may mean that experts will not have sufficient factual evidence to support their opinions.³¹ These remain with broader concerns that judges may lack the institutional capacity to accurately assess medical expert opinions, or that they may demand a different standard from non-medical expert witnesses. While there are extra-legal methods employed to cope with these such as a training course for medical experts to raise the quality of medical opinions and reports, the impact of these courses on the judiciary’s assessment of the medical opinions and reports presented to them, has not yet been observed.

IV. CONCLUSION

The discussion above has traced a number of difficulties in the use of medical experts’ opinions, as well as the use of experts in general. The judicial approach to assessing the probative value and reliability of opinions is plagued with difficulties stemming from intractable concerns that medical experts tend to be partial towards the party that hired them, and that such experts often lack sufficient facts to properly develop an opinion. Although there are both existing procedural laws and external support to safeguard the reliability of medical expert opinions, these are often watered down by parties’ adversarial mentalities. Where there is little incentive to cooperate, parties do not actively rely on the same measures such as concurrent expert evidence or discussion. Other issues, such as fear among medical professionals of proffering testimony against their fellow doctors, or the institutional competence of the Court to adjudicate on the same, have hardly been the subject of discussion by the legal community in Singapore.

This is unfortunate as expert opinions are the lifeblood of many disputes. Even before a case commences, expert opinions are important in managing client expectations, where the expert’s assessment indicates the client’s likelihood of success.³² Medical experts are of special significance in the field given that they are relevant in many legal disputes and, in fact, comprise the bulk of experts sought.

Meeting the concerns above would require lawyers, judges, and medical experts alike to come to a clear consensus on their roles and competencies in adjudication. Coping with the difficulties of an adversarial model will also require a change in mindset and culture: lawyers and courts must emphasise to medical experts that in testifying, they are helping society as a whole. In this regard, the authors posit that empirical studies will be helpful in assessing the gravity of each issue, and the effectiveness of measures to cope with them. In this regard, this article will be followed by a further submission, “The Evaluation of Medical Expert Opinions in Litigation: An Empirical Study”,³³ which seeks to provide more clarity on the factors that judges in Singapore apply in evaluating medical expert opinion evidence, and their relative significance in different scenarios.

---

*The authors are a group of undergraduate students in the National University of Singapore, and are presently in the course of an empirical research project on the subject.

[1] See Agnes Lo, Bryont Chin, Leon Tay & Louis Lai, “Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (I/II)”, online: Juris Illuminae, Vol 10 <http://www.singaporelawreview.com/juris-illuminae-entries/2018/torn-fealty-to-the-courts-and-science-conundrums-over-medical-expert-opinions-i>.

[2] Cap 322, R 5, 2014 Rev Ed Sing.

[3] Jeffrey Pinsler, “Expert Evidence and Adversarial Compromise: A reconsideration of the Expert’s Role and Proposals for Reform” [2015] 27 Sing Ac LJ 55 at [2].

[4] Ibid at [15].

[5] Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162, at [81].

[6] If the expert attempts or is seen to be an advocate for his party’s cause, he will inexorably lose credibility: per VK Rajah JA in Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162 at [83].

[7] Supra note 3 at [4].

[8] See e.g. “Medical Malpractice - Expert Testimony” (1965-1966) 60 Nw UL Rev 834.

[9] See Joseph Sheares, “Writing the Expert Report and Testifying in Court (Part 2)”, SMA News (February 2015) at 23, online: <https://www.sma.org.sg/UploadedImg/files/Publications%20 %20SMA%20News/4702/Professionalism.pdf>.

[10] Amanda Stevens, “Editorial: Reliability and cogency of expert witness evidence in modern civil litigation” (2011) 66 Anaesthesia 764.

[11] Khoo Bee Keong v Ang Chun Hong [2005] SGHC 128 at [72].

[12] Ibid.

[13] See Sing, The Supreme Court Practice Directions (2017) part XXIII, s 158(1), referring to Appendix J (High Court Protocol for Medical Negligence Cases), online: <https://epd.supremecourt.gov.sg/downloads/Appendix_J/APPENDIX_J.pdf> at 4.1-4.2.

[14] Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think About Experts” (2016) 91 Ind LJ 353 at 371-372, 377-378 and 389.

[15] See e.g. the Ministry’s comments in proposing amendments to s 270 of the CPC, which it expressed to be for the purpose of ensuring that evidence given by psychiatrists is “competently arrived at and objective”: Siau Ming En, “Proposed psychiatric panel must be large enough for smoother defence: Lawyers”, Today (28 July 2017), online: <https://www.todayonline.com/singapore/proposed-psychiatric-panel-must-be-large-enough-smoother-defence-lawyers>.

[16] Gary Etmond, “Legal versus non-legal approaches to forensic science evidence” (2016) 20:1 IJEP 3 at 24.

[17] Ibid.

[18] Lora M Levett & Margaret Bull Korvera, “The Effectiveness of Opposing Expert Witnesses for Educating Jurors about Unreliable Expert Evidence” (2008) 32:4 Law and Human Behaviour 363-374, at 364.

[19] Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think About Experts” (2016) 91 Ind LJ 353.

[20] Kovera MB, McAuliff BD & Hebert KS, “Reasoning about Scientific Evidence: Effects of Juror Gender and Evidence Quality on Juror Decisions in a Hostile Work Environment case” (1999) 84:3 J Appl Psychol 362 at 365.

[21] See e.g. Kalven, Harry Jr & Hans Zeisel, The American Jury (Chicago: University of Chicago Press, 1966) at 153; cited in Sanja Kutnjak Ivkovic & Valerie P Hans, “Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message” (Cornell Law Faculty Publications, Paper 385, 2003) at 443.

[22] Neil Vidmar, “Lay Decision-Makers in the Legal Process” in Peter Cane & Herbert M Kritzer, The Oxford Handbook of Empirical Legal Research (OUP, 2010) 626, at 633.

[23] Ronald JJ Wong, “Judging between Conflicting Expert Evidence” (2014) 26 Sing Ac LJ 169.

[24] Supra note 18.

[25] Supra note 23.

[26] Ibid, citing Michael Hor, “When Experts Disagree” (2000) Sing JLS 241 at 243.

[27] Cap 68, 2012 Rev Ed Sing.

[28] Clause 78 of the Criminal Justice Reform Bill (Bill 14 of 2018), which introduces s 270 of the CPC.

[29] Supra note 15.

[30] Ibid.

[31] See Appendix J of the Supreme Court Practice Directions (Amendment No. 3 of 2017). The relevant amendments to the Practice Directions are available online at <http://www.supremecourt.gov.sg/docs/default-source/default-document-library/pd-amd-no-3-of-2017.pdf?Status=Temp&sfvrsn=0.9324472121860925>.

[32] Supra note 10.

[33] Lo et al., “The Evaluation of Medical Expert Opinions in Litigation: An Empirical Study” (2018–2019) 36 Sing L. Rev. 247.

---

Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (I/II)

The PDF version of this article is available for download here.

---

Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (I/II)

Agnes Lo, Bryont Chin, Leon Tay & Louis Lai

I. THE CONUNDRUMS OF THE MEDICAL EXPERT WITNESS AND COUNSEL

The Singapore courts are well-accustomed to hearing technically complex disputes, and disputes involving medical issues may present the most complex of these cases. Where judges and counsel are unable to divine the implications of facts and evidence at hand, they inevitably turn to expert witnesses. Expert witnesses assist in interpreting the facts, opining on what these facts mean, and provide specialized knowledge and information so very crucial for a judgment to be made.

Expert witnesses have become necessary ever since complexity in technical matters increased beyond a layman’s untrained capacity. It was understood that when the machines inevitably got involved in disputes, judges had to call on experts to advise them. However, judges do not blindly defer to the authority of the expert. Care is necessarily taken to differentiate between different opinions proffered by each expert, and not every testimony is given equal weight or admitted without any questions. A clear example where the judge departs from the views of an expert is where the expert witness is biased. Another possible difficulty is in finding an objective approach to evaluate competing expert opinions. In such situations, whose opinion is to be preferred and given more weight? Is a professor’s academic opinion more reliable than that of an experienced practitioner lacking in qualifications? These questions continue to plague the courts today.

In a two-part series, this article sets out a preliminary examination of the main factors considered by the court in assessing the proper weight to be given to expert testimony. Medical experts are given foremost consideration as they feature prominently among the expert witnesses appearing before the courts. In a following article, we will also examine inconsistencies and incoherence in the courts’ use of expert evidence, and discuss recommendations for future use of expert evidence.

A. The use of medical experts in court

Medical expert opinions are widely admitted in criminal and civil trials. In criminal cases, these opinions are necessary to determine the psychological or physiological state of the accused persons, from which the judge can establish the legal elements of the offence. When deciding on sentencing, expert opinion also informs the judge of facts from which he can find exacerbating or mitigating factors. In civil matters, liability of the accused and damages to be awarded often depends heavily on the assessment of a medical expert. After all, judges are hardly able to decide what an appropriate sum for medical expenses should be, or how much income would have been lost as a result of an injury. Of course, medical expert opinions are most often adduced in physical injury cases,¹ and when trespassing into the realm of medical expertise, judges are loath to substitute their own views for those of the proper experts in the field. In this regard, judges thus place a greater weight on the testimony of a defendant doctor’s own peers, since they—having the most similar qualifications and experience—would be most able to give advice.

B. The present litmus tests for the admissibility and reliability of opinions of medical experts

Prior to the introduction of the adversarial criminal system in the 18th century, there was no legal procedure to define experts qua expert witnesses;² experts would usually be summoned as jurors or witnesses. Evidentiary rules and objections were subsequently developed to standardise the types of evidence and how they can be presented before the court. While the rule against opinion being admissible as evidence emerged alongside the prohibitive rule against hearsay, experts’ opinions are an exception to this otherwise strict rule. This exception was necessary in the adversarial system for experts to provide opinions as witnesses without having observed the facts.

The present legal framework for the admission and giving weight to expert evidence bears two stages of analysis. Judges as finders of fact must contend with the question of whether the expert’s opinion is admissible as evidence, and if so, whether the expert’s opinion is of sufficient weight to be relied upon to establish a fact in issue. The former is governed largely by Section 47 of the Evidence Act and interpretive cases, while the latter is largely a matter expounded upon by case law.

Section 47 of the Evidence Act essentially requires counsel to establish three points to admit expert opinions as evidence:

(a) The pleaded point must be one of “scientific, technical or other specialised knowledge”.³ The ambit of such knowledge and whether a particular field would fall within it seems to be open to discussion, and local courts have yet to pronounce on the specific test. There have been suggestions for reference to tests in foreign jurisprudence, such as the more lenient test in Frye v United States⁴ (“Frye”); or a more stringent inquiry under Daubert v Merrell Dow Pharmaceuticals.⁵

(b) The individual giving the opinion must be an expert, who must have obtained the knowledge applied in his opinion “based on training, study or experience”.⁶ A judicial determination of whether this is made out is discretionary, and often turns on the qualifications, experience, and credibility of the expert in question.⁷

(c) In the round, the Court must be “likely to derive assistance” from the opinion when making its determinations of fact. This is a lower threshold than that under the same provision before the 2012 Amendments to the Evidence Act.

Once admitted, the court generally gives weight to the expert opinion unless it is later found to be “obviously lacking in defensibility”.⁸ In cases where only one expert opinion is adduced or where the experts are in agreement, there are few obstacles that may lead to the courts giving it less weight. This is contrasted to cases where competing expert opinions are adduced in court: in such cases, a brief survey of cases involving medical experts affirms that a multi-factorial approach is taken. Some of the factors are examined below.

1. Expert’s qualifications and experiences

The most prominent factor is the expert’s qualifications. “Qualifications”, as explained by the Court of Appeal, refers not to an expert’s “professional titles” but instead refers more generally to the expert’s “knowledge and familiarity”.⁹ While it is generally true that actual experience lends more weight to an expert testimony than mere paper qualifications, the High Court has qualified this by stating in obiter that this was “not an inevitable rule of thumb”.¹⁰

The relevance of practical experience to the subject matter of the case is considered down to a micro-level: the court has differentiated between experts with clinical experience in cancer diagnosis and experts with clinical experience in cancer treatment,¹¹ and between experts in the treatment of drug addicts and experts in recognizing signs of drug addiction.¹²

Other factors that affect the weight given to an expert testimony are his experience doing research relevant to the case at hand,¹³ and his experience practising in the Singapore context.¹⁴ That a medical expert witness has experience treating one of the parties involved also lends authority to his testimony, since he would be more familiar with that party’s condition(s); however, his familiarity and personal relationship with the party raises clear possibilities of bias that must be dealt with.¹⁵

2. Impartiality of expert witness

The testimony of even the most qualified expert will not pass muster if it is tainted by bias. Hired guns fighting for the parties that called (and paid) them can hardly be relied on to provide accurate testimony. The influence of bias is great in practice due to monetary incentives being available, the priming of experts to be a part of the legal team, and the lack of safeguards against errant experts trying to manipulate facts to support a biased opinion.¹⁶

Although expert witnesses are appointed by parties themselves, their ultimate duty is always to the court.¹⁷ They cannot become mercenaries for hire, bending the facts for the highest bidder. Expert witness bias is especially dangerous because, by definition, expert witnesses have specialised expertise that the judge does not; an errant expert could easily mislead the judge and dictate the outcome. Therefore, judges must remain alive to the dangers of expert witness bias. Given the high stakes, judges impose only a low threshold to disqualify a biased expert testimony, such that even “perceived partiality or inclination” on the expert’s part can suffice to disqualify him for bias.¹⁸

3. Alignment with factual evidence

The words of even the most illustrious expert have no weight if it does not comport with the facts. Although disagreement in expert opinions is so common as to be almost inevitable, expert opinions must remain based on the facts established by the court. Expert testimonies that contradict the facts often prove fatal to that side’s case.¹⁹ When faced with insufficient evidence or evidence that contradicts the point their side wants to prove, it would be better for the experts to concede “where they ha[ve] to”²⁰ than have the credibility of their entire report doubted by the court.

Factual evidence can also be used as a weapon to knock down opposing experts’ testimonies. In Hii Chii Kok v Ooi Peng Jin London Lucien and another,²¹ since the plaintiff’s expert could not provide “objective clinical data to support his assertions”, the court strongly preferred the defendant’s experts, whose testimonies “convincingly” countered the plaintiff’s expert’s testimony “point-by-point”.

Finally, expert testimonies should be precise and specific. Sweeping generalisations and conjecture are frowned upon, even more so when they are unsupported by evidence²² or are in relation to matters outside the expert’s field of expertise.²³

4. Internal consistency of testimony

Inconsistency in an expert’s testimony casts a long shadow over his credibility. The degree of internal consistency has been described as one of the “paramount” considerations that courts will consider when assessing such reports.²⁴ Given that experts are meant to guide the court, accepting the evidence of a muddled and confused expert that would does little to assist the court would be inimical. Therefore, courts readily reject inconsistent expert reports or grant them less weight even if admitted. An example would be in Chua Thong Jiang Andrew v Yue Wai Mun and another²⁵ where the expert’s quality was harshly criticized because of various self-contradictions in his oral testimony plus ambiguities and conflations in his expert report. The court issued a scathing dismissal of his report, describing it as an “illogical and unconvincing” explanation that was “completely off the mark”.

On the other hand, courts appreciate experts maintaining a high degree of internal consistency in their testimony. In Public Prosecutor v Tengku Jonaris Badlishah bin Tengku Abdul Hamid Thani,²⁶ the court considered the prosecution’s expert’s testimony positively, describing the expert’s opinion as “consistent, impressive and able to stand up to objectivity”. It should be noted, however, that a dogmatic expert who refuses to change his view even in the face of overwhelming evidence to the contrary is not necessarily preferable to a reasonable expert who concedes in such situations. Experts need not defend their point to the death for fear of sounding inconsistent: courts understand and appreciate an expert changing his view to consider and account for shortcomings in his side’s case. In Khek Ching Ching v SBS Transit Ltd,²⁷ the court noted that under “withering” cross-examination, the plaintiff’s expert had conceded that he was unable to confirm with complete certainty the causation of the plaintiff’s injury. Because he had continued to maintain his position while still conceded where he had to, the court commended him as a “generally good” expert witness that had testified “professionally”, and noted that he had been “of assistance to the court”.

5. Expert’s methodology

Although courts are loath to put themselves into the expert’s shoes, an expert report derived using objectively flawed methodology will still be dismissed. It should be noted that an expert’s level of qualification is a separate and distinct factor from the quality of his methodology (although one would hope that the former would lead to the latter). Ong Pang Siew v Public Prosecutor²⁸ is the main case where this factor has been relevant. In that case, where the accused pleaded the defence of diminished responsibility, the court harshly criticized the prosecution witness for his poor investigative methodology²⁹ when writing his report. The defence witness’ “undoubtedly more comprehensive” methodology meant that his report turned the tide, and led the court to allow the appeal.

6. Expert pushing his/her own case theory

While it is natural for experts to form case theories from prolonged exposure to a case, it is prudent for experts to remain objective in their testimonies and not venture into interpreting facts. Once experts accept the responsibility of testifying, they must resist this temptation and stay impartial to the facts. However, this is easier said than done.

In Eu Lim Hoklai v Public Prosecutor,³⁰ the Court of Appeal explicitly pointed out the Prosecution witness’ “over-enthusiastic allegiance” to her own case theory, and how, in her “absolute certainty” that it was correct, she had overlooked its “inherent improbabilities” and “uncertainty in the evidence”.³¹ The failure of the Prosecution’s “most important” witness in this important regard defeated the Prosecution’s case.³² Advocacy must ultimately be left to the lawyers, and the experts should keep within their own field.

C. Conclusion

As explained in the introduction, the exception of admitting expert witness testimony was necessitated by the increasing complexity of legal disputes. In the years since, as the sight of experts in courtrooms became commonplace, rules in this area appeared and grew. Today, much of the law on the admissibility of expert’s opinion is governed largely by Section 47 of the Evidence Act and interpretative cases, while the weight to be accorded to admitted evidence is a matter expounded on by case law.

Judges rely on experts to guide them through specialised fields of expertise, to assist them to reach justice, fairness, and truth. Thus, when searching for expert guidance, judges are just like the rest of us: they look for persons with impartiality, experience, clarity, and intellectual honesty. Such paragons of virtue may be hard to find, but there is hardly an alternative. The second part of this series will examine the trade-offs and such issues in greater depth.

---

[1] This has been established in a number of American studies. See Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think about Experts” (2016) 91 Ind LJ 353, which records that physicians make up the majority of experts at 37.5%; and Champagne et al, “An Empirical Examination of the Use of Expert Witnesses in American Courts” (1991) 31:4 Jurimetrics J 375, which observed that most experts were physicians (48%), and experts were mainly used in physical injury cases, and Samuel R Gross, “Don’t Try: Civil Jury Verdicts in a System Geared to Settlement” (1996) 44 UCLA L Rev 1, which observed that medical experts make up the majority of experts.

[2] Tal Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12:1 Science in Context 7 at 9.

[3] Evidence Act (Cap 97, 2012 Rev Ed Sing, s 47(1).

[4] 293 F 1013 (DC Cir 1923).

[5] 509 US 579 (1993).

[6] Supra note 3 at s 47(2).

[7] Fok Chia Siong v Public Prosecutor [1999] SGCA 5 and Wong Swee Chin v PP [1981] 1 MLJ 212.

[8] Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1; [2001] SGCA 38 at [26].

[9] Muhammad Jefrry v Public Prosecutor [1996] 2 SLR(R) 738; [1996] SGCA 44 [Jefrry] at [107].

[10] Sakthivel Punithavathi v Public Prosecutor [2007] 2 SLR(R) 983; [2007] SGHC 54 [Sakthivel Punithavathi] at [75].

[11] Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2018] SGHC 35 (“Noor Azlin”) at [63].

[12] Jefrry, supra note 9 at [90]-[91].

[13] Supra note 11 at [23].

[14] Ibid at [63].

[15] Tan Teck Boon v Lee Gim Siong and others [2011] SGHC 76 at [7]; AOD, a minor suing by the litigation representative v AOE [2014] SGHCR 21 at [63].

[16] Jeffery D Pinsler, “Expert’s Duty to be truthful in light of the Rules of Court” (2004) 16 SAcLJ 407.

[17] Rules of Court (Cap 322, R 5, 2014 Rev Ed Sing), O 40A, r 2.

[18] Public Prosecutor v Thangaraju Sarukesi [2007] SGMC 7 at [71].

[19] See generally Sheila Leow Seu Moi v Public Prosecutor [2001] SGDC 376 [Sheila Leow]; Yeo Henry (executor and trustee of the estate of Ng Lay Hua, deceased) v Yeo Charles and others [2016] SGHC 220 at [63]-[67], [89], and [91]; Eu Lim Hoklai v Public Prosecutor [2011] 3 SLR 167; [2011] SGCA 16 [Eu Lim Hoklai] at [58], and Public Prosecutor v Tong Lai Chun [2003] SGMC 7 at [183].

[20] Khek Ching Ching v SBS Transit Ltd [2010] SGDC 220 at [95].

[21] [2016] SGHC 21.

[22] Sheila Leow, supra note 22 at [118]-[119].

[23] Eu Lim Hoklai, supra note 22 at [58].

[24] Sakthivel Punithavathi, supra note 10 at [75].

[25] [2015] SGHC 119.

[26] [1998] SGHC 401.

[27] [2010] SGDC 220.

[28] [2011] 1 SLR 606; [2010] SGCA 37.

[29] Firstly, the witness had failed to interview people who had recently contacted the accused person (thus breaching the diagnostic guidelines in the DSM-IV-TR, a reputed psychiatric manual). Secondly, he had also failed to investigate what the court considered to be relevant considerations, viz. the accused person’s changing jobs three times in the 18 months before committing the crime and his diabetes, which increased the risk of depression. Thirdly, he had interviewed the accused person in Mandarin even though he knew that the latter was more comfortable in Hokkien. The court thus condemned his methodology as an “unsatisfactory” one that “fell short of the requisite standard prescribed under the DSM-IV-TR”, especially since he, being the prosecution witness, would have much more available resources. Because of this, his testimony was held to be “less convincing” than that of the defence witness, who not only interviewed the accused in Hokkien, but also interviewed the accused person’s family members and the persons close to him.

[30] Eu Lim Hoklai, supra note 22.

[31] Eu Lim Hoklai, supra note 22 at [56]-[57].

[32] Eu Lim Hoklai, supra note 22 at [52] and [59].

---

A New Kind of Criminal Law for "Bad Hombres": The Organised Crime Act 2015

A New Kind of Criminal Law for "Bad Hombres": The Organised Crime Act 2015

Benjamin Low Junjie

I. INTRODUCTION

More than three years have elapsed since the Organised Crime Bill was passed by Parliament¹ and entered into law as the Organised Crime Act 2015² [OCA]. Surprisingly, scant attention has been devoted to the substantive contents of the statute.³ One might be forgiven for thinking that this is partly due to the fact that the OCA has not been extensively employed by the State, thereby precluding any opportunities for a serious scrutiny of the Act’s provisions by the Courts and academics. However, a cursory glance at the OCA reveals several areas of concern that do warrant greater attention and analysis on the basis that they have the potential to adversely affect established principles of criminal liability and punishment, while also constituting an evolutionary approach in Singapore’s longstanding crime-control policy.

This article is an attempt to provide a considered discussion on the various offences and penalties that the OCA creates, as well as the numerous powers it confers on the Public Prosecutor and other law enforcement agencies to better address the threat of organised crime. My analysis will also draw upon the comparative experiences of other common law countries that have already enacted similar legislation in combating organised crime, such as the United Kingdom and Australia, in order to help formulate a possible approach towards the OCA that the courts and law enforcement agencies may wish to consider.

II. THE ORGANISED CRIME ACT

The OCA as a whole comprises ten parts and over eighty sections in total. Part 2 of the Act creates several new offences collectively referred to as ‘Organised Crime Offences’. These offences are meant to cover a whole spectrum of activities that organised criminal groups engage in, such as:

• Membership of a locally-linked organised criminal group;⁴

• The recruitment of members of an organised criminal group;⁵

• The instructing of the commission of an offence at the direction of or in furtherance of the purpose of an organised criminal group; ⁶

• Procuring the expenditure or application of property (as well as the actual expenditure or application of property itself) to support, aid or promote the commission of a Part 2 offence or any other offence under any written law; ⁷

• Permitting an organised criminal group to use any premise; ⁸

• Receiving, retaining, concealing and any other dealing with the property of an organised criminal group; ⁹ and

• Facilitating the commission of a Part 2 offence or any serious offence¹⁰ at the direction of or in furtherance of the purpose of an organised criminal group.¹¹

The Part 2 offences are also noteworthy in that they directly target persons who, though not necessarily members of organised criminal groups themselves, nevertheless may have provided some form of material or financial assistance to organised criminal groups.¹²

In addition to the Part 2 offences, the OCA also grants several new legal powers which law-enforcement agencies may have recourse to.

Part 3 provides for the creation of Organised Crime Prevention Orders (‘OCPO’). ¹³ Part 4 creates Financial Reporting Orders (‘FRO’)¹⁴ while Part 5 prescribes mechanisms and procedures for the enforcement of OCPOs and FROs as well as avenues for appeals against such orders.¹⁵

Part 6 establishes Disqualification Orders which may be made against persons who have been convicted of having committed Part 2 offences or serious offences or who have contravened an OCPO or FRO that was made against them upon their conviction for an offence.¹⁶

Part 9 establishes a civil confiscation regime that is patterned on the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act¹⁷ [CDSA] but which allows for confiscation orders to be made against persons who have not been charged or convicted of any offence or who have been acquitted.¹⁸ The remaining Parts of the Act deal with matters pertaining to the powers of investigation by certain government bodies, the protection of informants and other ancillary matters and do not require any great deal of exposition here. Suffice to say, it is the OCPO provisions and the civil confiscation regime which I intend to deal with in further detail.

III. ORGANISED CRIME PREVENTION ORDERS

A. Prevention Orders: A Targeted Approach Towards Organised Crime

In addition to expanding the scope of inchoate liability under the Part 2 offences, the OCA provides for the use of OCPOs against persons who are proven to have been “involved in a Part 2 offence or a serious offence associated with an organised criminal group”¹⁹ whether inside or outside Singapore. S 15(1) OCA prescribes two conditions that must be met before a court can impose an OCPO. The court must firstly be satisfied, on a balance of probabilities, that the affected person must have been “involved” in a Part 2 offence or a serious offence; and secondly, the court must have “reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting an involvement by the person in any Part 2 offence, or any serious offence …”. The standard of proof is that of the civil standard of the balance of probabilities, as opposed to the criminal standard of proof, beyond reasonable doubt.

Involvement in a Part 2 offence or a serious offence is made out through three possible scenarios as prescribed in s 14 OCA. Firstly, the person who is to be subjected to an OCPO must have actually committed the Part 2 or serious offence;²⁰ secondly, the person must have facilitated²¹ the commission of the aforementioned offences²² or lastly, in the alternative, the person’s conduct must be likely to have facilitated the commissioning of the abovementioned offences²³. Thus, a person need not necessarily have committed the actual offence itself as long as his conduct renders the commissioning of the offence a possibility, in order to be liable for the imposition of an OCPO against him.

S 16 OCA lists the possible types of prohibitions, restrictions or requirements that may be imposed on a person who may either be an individual²⁴ or a body corporate²⁵ under an OCPO. Such prohibitions, restrictions and requirements may affect, but are not necessarily limited to, a person’s financial, property or business dealings or holdings,²⁶ working arrangements,²⁷ means of communication,²⁸ agreements to which the person may be a party²⁹ as well as the use of any premises or item by the person.³⁰ These provisions are virtually identical to similar legislation in the United Kingdom³¹ and New South Wales³², albeit referred to as ‘Serious Crime Prevention Orders’ (‘SCPO’). One can see that, depending on the nature of the serious offence and the extent of the person’s involvement, it is possible for the State to tailor each particular OCPO to suit the particular mischief at hand, thereby granting law-enforcement agencies great flexibility and latitude in dealing with persons involved in organised criminality.

The use of OCPOs is noteworthy in that they constitute an increasing willingness on the State’s part to resort to preventive measures outside the traditional criminal justice model of prosecuting persons who have already committed the substantive offence and have caused a certain type of harm to another person. This pattern of seeking to criminalise preparatory acts before the substantive offence itself can be committed has been termed by commentators as constituting “the preventive turn in criminal law”.³³ The fact that the OCA also allows for the imposition of OCPOs against persons who have already been convicted by the courts for having committed either a Part 2 or serious offence only reinforces the increased emphasis on prevention as a guiding principle in terms of criminal punishment.

B. Legal Limits on the Use of OCPOs

Since OCPOs may be made in the absence of any conviction for any offence, there is a greater need to ensure that such legal powers are properly regulated given their propensity to adversely impact the constitutional freedoms and liberties that Singaporeans are entitled to, as well as to alleviate the possibility of state authorities increasingly resorting to the use of OCPOs over the more difficult task securing criminal convictions of suspected organised criminals as a form of ersatz prosecution. What then are the legal principles or tests that a court may have recourse to in determining whether the issuance of an OCPO would indeed “protect the public”?

Presently, no local case law has involved the making of an OCPO against a person under the OCA. However, given that our provisions concerning OCPOs are virtually in pari materia with the UK and New South Wales legislations, it is posited that the existing body of case law in these jurisdictions, while not binding, may provide useful sources of guidance for our courts in determining when an OCPO may be issued. The leading case in the United Kingdom is R v Hancox³⁴ [Hancox] where the Court of Appeal held that an SCPO could only be issued if the court “has reasonable grounds to believe that an order would protect the public by preventing, restricting or disrupting involvement by the defendant in serious crime”,³⁵ that is to say, the court must be satisfied that “There must be a real, or significant, risk (not a bare possibility) that the defendant will commit further serious offences …”³⁶ to justify the imposition of the prevention order.

The Court further elaborated by holding that:

“[S]uch orders can be made only for the purpose for which the power was given by statute. And they must be proportionate…it is not enough that the order may have some public benefit in preventing, restricting or disrupting involvement by the defendant in serious crime; the interference which it will create with the defendant’s freedom of action must be justified by the benefit; the provisions of the order must be commensurate with the risk.”³⁷

The test in Hancox has been repeatedly affirmed and cited by subsequent English decisions with approval³⁸ and its importation into Singapore would arguably pose no great conceptual difficulty. However, one ought to bear in mind that Hancox expressly endorsed the test of proportionality where a prevention order is concerned, no doubt due to the need to ensure conformity between English law and the European Convention on Human Rights.³⁹ It goes without saying that the applicability of proportionality as a legal doctrine was expressly rejected by the High Court in Chee Siok Chin v Minister for Home Affairs [Chee Siok Chin].⁴⁰ Any adoption of the Hancox test would require some modification to accommodate the law in Chee Siok Chin.⁴¹

Ultimately though, regardless of whether the Singapore courts opt to adopt the Hancox test or devise their own principles, it is posited that any legal solution formulated by the courts when dealing with the implementation of OCPOs ought to be structured as restrictively as possible, given the broad ambit and scope of such orders and the potentiality for misuse and abuse by the state authorities.

IV. THE CIVIL CONFISCATION REGIME

The final significant weapon in the OCA’s inventory is the provision of a civil confiscation regime designed to provide for “the confiscation of benefits from organised crime activities”⁴² under Part 9 of the Act. The regime allows for the Public Prosecutor to apply to the High Court for three types of orders: (i) restraining orders;⁴³ (ii) charging orders⁴⁴ and (iii) confiscation orders,⁴⁵ where the subject of the order has carried out organised crime activity within a statutory period of 7 years⁴⁶ and, in the case of the confiscation order, has derived benefits from such activity⁴⁷.

The structure of the civil confiscation process is heavily patterned on the existing regime in the CDSA albeit with a slight twist: proceedings under Part 9 for any of the three orders are civil proceedings that follow the civil standard of proof,⁴⁸ much like proceedings for OCPOs. This lowering of the burden of proof on the Public Prosecutor in civil confiscation proceedings is amplified by the statutory presumption that any property or interest in property held by the subject which is “disproportionate to the subject’s known sources of income”⁴⁹ is presumed to be a benefit from an organised crime activity, which the subject bears the burden of disproving.⁵⁰

The civil nature of such confiscation proceedings is buttressed by a statutory proviso that any of the three orders can be made in the absence of any criminal proceedings for the impugned organised criminal activity.⁵¹ Even more disconcertingly, where criminal proceedings have been instituted against the subject, an order under the civil confiscation regime can still be made even if the criminal proceedings have resulted in an acquittal of the subject.⁵² Nor is the civil confiscation order affected by the making of a confiscation order under the CDSA in relation to the same person and organised crime activity,⁵³ raising the spectre of a possible ‘double jeopardy’⁵⁴ under both civil and criminal confiscation proceedings.

V. CONCLUSION

The OCA is a considerable supplement to Singapore’s already-sizeable arsenal of legal tools that have already been used in the struggle against organised crime. However, unlike previous legislation which has typically been concerned with combating organised criminal activity within the traditional framework of the criminal justice system, the OCA adopts the novel approach of utilising the civil process to tackle organised crime. This obviates the need to navigate the more onerous realm of criminal procedure, and allows for the full powers and resources of the State to be brought to bear upon individuals suspected of having breached the criminal law, but who have otherwise evaded prosecution.

Furthermore, such measures arguably mark a reformulation in the State’s policing style whereby the traditional reactive means of enforcement after the commission of an offence is increasingly displaced by a more proactive policing which seeks to preclude and even deter participation in organised criminal enterprises by denying criminals the necessary capital to develop and maintain illicit markets, as well as by preventing certain types of behaviour and forms of association that border on criminality.

The end result is a new kind of a criminal law whose focus is not so much identifying and apportioning criminal liability on an individual case-by-case basis as targeting and neutralising certain social threats to public welfare. Suspected organised criminals are the ‘social danger’ in question that must be contained and regulated through robust but civil measures under the OCA’s framework in order to best guarantee the effective protection of people and State. Of course, no one disputes the serious threat to public order that organised crime poses but it remains to be seen whether the OCA is the most appropriate and effective solution for addressing the problem of organised criminality.

---

[1] The Bill received its Second and Third Readings and was subsequently passed by Parliament with no amendments on 17 August 2015, before obtaining Presidential assent on 21 August 2015.

[2] No 26 of 2015, Sing.

[3] At the date of the writing of this publication, the author could find no academic article or commentary piece dealing with the Organised Crime Act 2015. A reference to the most recent edition of one of the foremost criminal law textbooks in the country revealed only a cursory mention of the statute in a footnote: see Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore, 3rd ed (Singapore: LexisNexis, 2018) at 1045.

[4] Supra note 2 at s 5. See also Public Prosecutor v Lai Yen San [2019] SGDC 39 at [6].

[5] Ibid at s 6.

[6] Ibid at s 7.

[7] Ibid at ss 8–9.

[8] Ibid at s 10.

[9] Ibid at s 11.

[10] ‘Serious offence’ refers to any offence specified in the Schedule to the OCA, which in itself consists of offences contained in the Penal Code (Cap 224, 2008 Rev Ed Sing) and a whole plethora of other criminal law statutes.

[11] Supra note 2 at s 12.

[12] Parliamentary Debates Singapore: Official Report, vol 93 at 31 (17 August 2015) (Second Minister for Home Affairs Mr S Iswaran). Although not expressly mentioned by the Minister in the Parliamentary debates, it is arguably reasonable to infer that persons who have provided material or financial assistance to organised criminal groups can include financial institutions and owners of real property. It would surely undermine the purpose of having such provisions in the OCA if they could not be taken to apply to the two aforementioned categories of entities.

[13] Supra note 2 at ss 14–20.

[14] Ibid at ss 21–23.

[15] Ibid at ss 24–38.

[16] Ibid at s 39.

[17] Cap 65A, 2000 Rev Ed Sing.

[18] Supra note 2 at ss 51 and 53.

[19] Ibid at s 15.

[20] Ibid at s 14(3)(a).

[21] Insofar as the author is aware, the term ‘facilitate’ is not actually defined in the OCA or any other statute but see s 2(2) OCA which attempts to provide some form of statutory guidance as to the prerequisite degree of physical conduct that is required for a person to have facilitated the commission of an offence.

[22] Supra note 2 at s 14(3)(b).

[23] Ibid at s 14(3)(c). The same three factual conditions apply for offences committed by an offender who is outside Singapore.

[24] Ibid at s 16(2).

[25] Ibid at s 16(3).

[26] Ibid at s 16(2)(a).

[27] Ibid at s 16(2)(b).

[28] Ibid at s 16(2)(c).

[29] Ibid at s 16(3)(b).

[30] Ibid at s 16(2)(e).

[31] Serious Crimes Act 2007 (UK), c 27, s 1.

[32] Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), s 5.

[33] Heidi Mork Lomell, “Punishing the Uncommitted Crime: Prevention, Pre-emption, Precaution and the Transformation of Criminal Law” in Barbara Hudson & Synnove Ugelvik, eds, Justice and Security in the 21st Century: Risk, Rights and the Rule of Law (Abingdon, UK: Routledge, 2012) 83 at 86. See also Andrew Ashworth & Lucia Zedner, “Prevention and Criminalization: Justification and Limits” (2012) 15:4 New Crim L Rev 542.

[34] [2010] EWCA Crim 102.

[35] Ibid at para 9.

[36] Ibid.

[37] Ibid at para 10.

[38] See R v Mangham [2012] EWCA Crim 973 and R v Strong [2017] EWCA Crim 999; see also David Ormerod et al, Blackstone’s Criminal Practice 2017, 27th ed (Oxford, UK: Oxford University Press, 2016) at 2062–2064.

[39] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Eur TS 5.

[40] [2006] 1 SLR(R) 582 (HC) at [87].

[41] In the alternative, the Singapore courts could choose to overrule Chee Siok Chin and introduce the doctrine of proportionality into Singapore law but any such decision would have to be founded on very cogent grounds so as to justify the adoption of proportionality in lieu of the existing judicial test of Wednesbury unreasonableness. One such argument could be that proportionality functions as a secondary question on the part of the Court that focuses on the legitimacy of the executive or administrative action itself, that is to say, whether the impugned actions were made in accordance with fair procedures and not whether they are ‘right’. In doing so, this obviates the problem of merits review that Rajah J (as His Honour then was) pointed out in Chee Siok Chin at [87]. See also Alan D P Brady, Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach, (Cambridge: Cambridge University Press, 2012) at 11–13.

[42] Supra note 2 at s 45(1).

[43] Ibid at s 57.

[44] Ibid at s 58.

[45] Ibid at s 61.

[46] Ibid at s 46(1).

[47] Ibid at s 61(2)(b).

[48] Ibid at s 50.

[49] Ibid at s 61(3).

[50] Ibid.

[51] Ibid at s 51.

[52] Ibid at s 53.

[53] Ibid at s 55.

[54] By ‘double jeopardy’, I refer particularly to the principle of autrefois convict as enshrined in Article 11(2) of the Constitution of the Republic of Singapore (1999 Rev Ed). Although confiscation proceedings under the OCA are expressly treated as civil proceedings and that statute expressly states that OCA confiscation proceedings are not affected by the criminal proceedings under the CDSA, one could argue that it is possible for a person to be subject to concurrent confiscation order proceedings under both Acts for the same set of facts or offences, which could in turn lead to the imposition of two types of penalties that are in substance, similar to one another, thereby triggering Article 11(2). However, it is very unlikely that the Singapore courts will accept such an argument on the basis of existing case law that adopts a strict definition of the principle of autrefois convict. See Lim Keng Chia v Public Prosecutor [1998] 1 SLR(R) 1 (HC) at [7]–[14] and Gunalan s/o Govindarajoo v Public Prosecutor [2000] 2 SLR(R) 578 (HC) at [19]–[21].

---

The PDF version of the article can be found here. The article was first uploaded on 25 August 2019. The PDF version of the article was uploaded on 18 June 2020.

Is it Time to Decriminalize HIV Non-Disclosure in Singapore?

The PDF version of this article is available for download here.

---

Is it Time to Decriminalise HIV Non-Disclosure in Singapore?

Daryl Yang*

I. INTRODUCTION

Following the recent data leak of the HIV registry, founding President of Action for AIDS Singapore Professor Roy Chan called for Singapore to “adopt the internationally recognised guideline that criminalisation should be limited to cases where there is intentional and malicious transmission of the human immunodeficiency (“HIV”) virus.”¹

Currently, section 23 of the Infectious Diseases Act² [IDA] imposes a legal duty on persons living with HIV (“PLHIV”) to disclose their HIV-positive status to sexual partners. In 2008, the criminal penalties for a breach of this statutory duty was increased five-fold to a fine of up to $50,000 or 10 years’ imprisonment.

That same year, the Joint United Nations Programme on HIV/AIDS (“UNAIDS”) and the United Nations Development Programme (“UNDP”) published the Policy Brief on Criminalisation of HIV transmission by UNAIDS, which urged governments to repeal HIV-specific criminal laws, including those that mandated the disclosure of HIV status.³ Subsequently, in 2012, the Global Commission on HIV and the Law published a report calling for the repeal of such laws on the basis that they are counterproductive to reducing the rate of HIV infection.⁴

In light of Professor Chan’s suggestion, this article presents the case for decriminalisation of HIV non-disclosure in Singapore. Firstly, the criminal law may be ineffective and counterproductive in ending the HIV/AIDS epidemic. Secondly, such a law is unnecessary because there are existing criminal provisions under the Penal Code that can punish irresponsible PLHIV who irresponsibly transmit the virus to others or put others at risk of contracting HIV. Finally, even if Parliament decides against repealing s 23, it should be reformed to address the disproportionate burden that such a law imposes on one of the most vulnerable groups in society.

II. LEGISLATIVE OBJECTIVES OF THE CRIMINALISATION OF HIV NON-DISCLOSURE

Before proceeding, it is crucial to note that this paper does not contend the moral duty that PLHIV have to disclose their HIV-positive status to their sexual partners. What is in question is whether a breach of that moral duty should be codified into a criminal offence. To answer this, it is necessary to consider the legislative objectives behind s 23 of the IDA.

After the first case of HIV was reported in 1985, Part IIIA⁵ of the IDA was enacted a few years later in 1992 to address “irresponsible and dangerous behaviour” by PLHIV.⁶ This led to the introduction of the current s 23(1), which prohibits PLHIV from engaging in sexual activity unless he has informed his sexual partner of the risk of contracting HIV/AIDS from himself and that other person has voluntarily agreed to accept that risk. Subsequently, in 2008, s 23(2) was introduced to compel a person who has “reason to believe that he has” or “has been exposed to a significant risk” of contracting HIV/AIDS to disclose to their sexual partners the risk of contracting HIV/AIDS from him. The public health goal of s 23 generally therefore appears to be the prevention or reduction of HIV/AIDS infection as part of a larger strategy to end the HIV/AIDS epidemic. In addition, there is a normative element to the law where the non-disclosure of one’s HIV-positive status before engaging in sexual activity is regarded as “irresponsible” and morally reprehensible.⁷

The next section argues that the criminalisation of HIV non-disclosure may hinder, rather than help, efforts to end the HIV/AIDS epidemic. Section III suggests that existing provisions in the Penal Code are sufficient to prosecute irresponsible PLHIV.

III. CRIMINALISATION OF HIV NON-DISCLOSURE IS NOT EFFECTIVE

There does not appear to have been any local study on the effectiveness of the criminalisation of HIV non-disclosure on reducing HIV infection rates. However, epidemiological research in other contexts have suggested that such laws may not only be ineffective but also be counterproductive in achieving the purported goal of ending the HIV/AIDS epidemic.

Firstly, the criminalisation of HIV non-disclosure may perpetuate social stigma towards PLHIV. This occurs in two ways. On one hand, such laws may reinforce prevailing social attitudes and the culture of blame that regard PLHIV as irresponsible individuals who engage in high-risk sexual activity.⁸ On the other hand, the use of the criminal law in managing a public health problem can shape perceptions towards PLHIV not so much as patients who deserve medical care and support but as potential criminals whose behaviour must be coercively constrained.⁹

That such laws may perpetuate stigma towards PLHIV is significant because epidemiological research has found that HIV/AIDS stigma can seriously undermine wider efforts to address the epidemic.¹⁰ Firstly, studies in China, South Africa and France have demonstrated an association between either perceived or actual experience of stigma and increased risk behaviour.¹¹ In addition, the reduction of stigma towards HIV/AIDS has been shown to have a significant impact on increasing HIV testing and treatment rates.¹² For instance, a recent study in New York found that higher anticipated HIV stigma was associated with a lower probability of having been tested for HIV in the previous six months.¹³ Similarly, a review of studies done in Sub-Saharan Africa found that the fear of stigma contributes significantly to low HIV testing rates due to concerns with being seen at a testing centre, which was associated with sexual promiscuity and assumed HIV-positive status.¹⁴

This is concerning because current statistics already suggest that there is significant stigma in getting tested. Only 24% of new cases of HIV infection in 2016 were detected via voluntary HIV screening.¹⁵ In 2015, it was even lower at 18%, which HIV/AIDS advocacy group Action for AIDS described as “extremely worrying”.¹⁶ Since early testing and detection have been recognised as being critically important to ending the HIV epidemic given that “late diagnosis is associated with poorer clinical outcomes and greater opportunities for HIV transmission”,¹⁷ the negative impact that the criminalisation of HIV non-disclosure may have on HIV testing rates seems to run contrary to the very purpose it was enacted for.

Secondly, research has also demonstrated that such laws are ineffective in influencing behaviour in the first place.¹⁸ Such laws do not affect HIV risk behaviours either through mechanisms of incapacitation, norm setting and deterrence. Firstly, since very few individuals are incarcerated across jurisdictions for violating HIV non-disclosure laws, the law is not effective in removing irresponsible PLHIV from society to protect the general public. Secondly, the existence of such laws have not been shown to affect or change social attitudes or perceptions on moral responsibility regarding HIV transmission.¹⁹ Finally, there is also insufficient evidence to suggest that such laws are effective in deterring HIV risk behaviour, with mixed findings across different communities.²⁰

Though these findings were based on research in other jurisdictions, they are at least indicative that such laws may not achieve the purpose of reducing HIV infection rates that Parliament had contemplated it would serve. Coupled with the negative impact that criminalisation has on stigma and HIV testing, such a law may not only be ineffective, but even counterproductive to achieving the intended goal of mitigating the HIV/AIDS epidemic in Singapore.

IV. CRIMINALISATION OF HIV NON-DISCLOSURE IS UNNECESSARY

Another reason behind the enactment of s 23 was to punish persons who irresponsibly transmit HIV/AIDS to others or put others at risk of contracting HIV/AIDS. However, considering the problems discussed in the previous section, it is suggested that existing criminal legislation can sufficiently address the risk of irresponsible transmission. Consequently, s 23 may be unnecessary to address such irresponsible sexual behaviour and its repeal should be seriously contemplated.

Firstly, s 326 of the Penal Code²¹ [PC] may be an appropriate legislation to criminalise the deliberate and malicious transmission of HIV. The provision makes it an offence for anyone to voluntarily cause grievous hurt by means of any substance which is “deleterious to the human body… to receive into the blood” and is punishable with an imprisonment term of up to 7 years. In conjunction with the repeal of s 23 of the IDA, Parliament may introduce the actual transmission of HIV/AIDS as a kind of grievous hurt under s 320 of the PC. Many other jurisdictions without HIV-specific laws, including the United Kingdom and Australia, have been able to address such reprehensible conduct in such a way.²²

Furthermore, in comparison, the criminal penalties under s 23 seem extremely disproportionate given that the mere failure to disclose one’s HIV status may attract more serious consequences, namely imprisonment up to 10 years and a fine of up to $50,000, than the actual causing of hurt to another person. While this was allegedly justified on the basis of the “seriousness with which society views such offences”,²³ this may not be a sound reason particularly when it relates to a group that is already vulnerable. Indeed, it has been suggested that such social attitudes may be “polluted at its core by fear of HIV or disdain for those who are infected with it”.²⁴

Secondly, there are also other criminal provisions such as s 338 PC which relates to causing grievous hurt by doing a rash or negligent act. This may be used to prosecute an irresponsible PLHIV who does not take reasonable precautions in practicing safe sex. Alternatively, where there is no actual transmission of HIV, an irresponsible PLHIV may still be prosecuted under s 336 PC for an act that endangers the life or personal safety of other persons.

These laws therefore already sufficiently address situations where an irresponsible PLHIV either directly causes harm to others or puts others at risk of contracting HIV/AIDS. This may be preferable to s 23 IDA which compels all PLHIV to disclose their HIV-positive status. Given that there remains significant stigma against PLHIV in our society, s 23 IDA may impose a disproportionate and unfair burden on them. It is to this issue that we turn to in the next section.

V. CRIMINALISATION OF HIV NON-DISCLOSURE DISPROPORTIONATELY BURDENS PLHIV

Gostin proposed that public health law is a field that aims to “pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice”. In his view, the concept of social justice is founded upon two moral impulses that animate the field of public health: “to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged”.²⁶ The criminalisation of HIV non-disclosure may run contrary to the values of social justice because it unfairly burdens PLHIV as a group that is one of the most vulnerable in our society.

One dimension of justice is distributive justice or proportionality, which demands that benefits and burdens be distributed fairly.²⁷ In this regard, s 23(1) seems to impose an unfair burden of disclosure on those living with HIV. While it may be justified in relation to the specific situation contemplated by the then Minister of Health where wives of husbands who visit sex workers are especially vulnerable,²⁸ it is less clear in other scenarios outside of marriage where the other party agrees to engage in unsafe sexual practices with the PLHIV notwithstanding his HIV-positive status. Given that s 23 contemplates consensual sexual activity, it may be potentially unjust to impose such a weighty legal burden on PLHIV in two ways. This is especially in light of their already vulnerable status in a society that remains both ignorant and hostile towards PLHIV.

Since practising safe sex can significantly reduce the risks of contracting HIV, mandating all PLHIV to disclose their HIV-positive status without affording them any other alternatives may be disproportionate and unjust. This is in light of the prevailing stigma against HIV in society: a PLHIV must either risk exposing himself to prejudice and discrimination if he discloses his HIV-positive status or potentially be prevented from experiencing sexual intimacy with another person at all. This is especially since there are no safeguards to prevent sexual partners from revealing this information to other persons.²⁹ After all, the then Minister of Health had himself acknowledged that “a promiscuous person who practises safer sex, by using condoms every time he engages in sexual activity, is not considered at high risk of contracting HIV/AIDS”.³⁰ This comment indicates the recognition that consistent condom use significantly reduces the risk of HIV transmission; there does not appear to be any reason why this same reasoning should not also be applied to avail PLHIV to the alternative of adopting responsible sexual practices over disclosing their HIV-positive status.

It may therefore be problematic that this duty is imposed on all PLHIV, including those with undetectable viral loads where the risk of transmitting HIV to others is negligible.³¹ Currently, about 77% of those diagnosed with HIV are on sustained treatment and about 82% of these individuals have undetectable viral loads.³² This means that about 63% of all PLHIV in Singapore are effectively non-infectious. It is not clear why these individuals should be imposed with the duty of disclosure when they are epidemiologically no different from a person with a HIV-negative status.³³ There have been significant medical advancements since s 23 IDA was enacted and the law should accordingly be amended to reflect these developments.

In sum, even if Parliament decides against the complete repeal of the law, it is suggested that s 23(1) should be amended to give PLHIV an alternative option to disclosing their HIV-positive status by taking reasonable precautions. This option is available under s 23(2) to persons who have reason to believe that he has HIV/AIDS or have been exposed to a significant risk of contracting HIV/AIDS. It should be extended to PLHIV as well for two reasons. Firstly, s 23 was intended to punish irresponsible PLHIV. However, it imposes on responsible PLHIV who are compelled to disclose their HIV-positive status even if they actively make responsible choices in their sexual relations. Secondly, HIV is no longer the “death sentence”³⁴ that people have once thought it to be and the law should be updated to reflect the medical developments in this respect.³⁵

VI. CONCLUSION

The use and effectiveness of criminal law in public health management has always been controversial and this paper has presented a case for repealing, or at least reforming, s 23 of the IDA. While criminalisation of such behaviour may be intuitively appealing on moral and emotional grounds, these cannot be sufficiently reasonable grounds on which our laws are made. This does not mean that PLHIV or those at high risk do not have a moral duty to disclose their risk status to their sexual partners; indeed, it is unlikely that this moral duty is controversial at all. Rather, this paper has demonstrated that it is not clear that imposing criminal liability for HIV non-disclosure is necessarily justified.

Ultimately, this paper does not purport to have provided a conclusive answer; instead, it is hoped that the foregoing discussion will engender greater reflection on the matter. At a minimum, the criminalisation of HIV non-disclosure may not be as straightforward as many might intuitively assume. A review of this area of the law requires the contribution of experts from different disciplines and it is hoped that there will be more written on this subject beyond this paper.

---

* Fourth Year Student, Faculty of Law, National University of Singapore. An expanded version of this article titled “Evaluating the Criminalisation of HIV/AIDS Non-Disclosure Laws in Singapore” will be published in the upcoming Volume 36 of the Singapore Law Review. 

[1] Roy Chan, “HIV Registry data leak: Time for change to reduce stigma”, The Straits Times (31 January 2019), online  <http://afa.org.sg/time-for-change-to-reduce-stigma/>.

[2] Cap 137, 2003 Rev Ed Sing.

[3] UNAIDS, “Criminalisation of HIV Transmission”, online: <http://www.unaids.org/sites/ default/files/media_asset/jc1601_policy_brief_criminalization_long_en.pdf>.

[4] Global Commission on HIV and the Law, “Risks, Rights & Health”, online: <https://hivlawcommission.org/wp-content/uploads/2017/06/FinalReport-RisksRightsHealth-EN.pdf>.

[5] Now Part IV of the Act.

[6] Parliamentary Debates Singapore: Official Report, vol 59, col 447 (27 February 1992) (Minister for Health (Mr Yeo Cheow Tong)).

[7] Ibid.

[8] Catherine Dodds &, Peter Keogh. “Criminal Prosecutions for HIV Transmission: People Living with HIV Respond” (2006) 17 International Journal of STD & AIDS 315.

[9] Trevor Hoppe, “From sickness to badness: The Criminalization of HIV in Michigan” (2014) 101 Social Science & Medicine 139.

[10] Carol L Galletly & Steven D Pinkerton, “Toward rational criminal HIV exposure Laws” (2004) 32:2 The Journal of Law, Medicine & Ethics 327; Carol L Galletly & Steven D Pinkerton. “Conflicting Messages: How Criminal HIV Disclosure Laws Undermine Public Health Efforts to Control the Spread of HIV” (2006) 10:5 AIDS and Behaviour 451.

[11] Anish P Mahajan et al, “Stigma in the HIV/AIDS Epidemic: A Review of the Literature and Recommendations for the Way Forward” (2008) 22 AIDS S67.

[12] UNAIDS, “Confronting Discrimination: Overcoming HIV-related stigma and discrimination in health-care settings and beyond”, online: <http://www.unaids.org/sites/ default/files/media_asset/confronting-discrimination_en.pdf>.

[13] Sarit A Golub & Kristi E Gamarel, “The Impact of Anticipated HIV Stigma on Delays in HIV Testing Behaviors: Findings from a Community-Based Sample of Men Who Have Sex with Men and Transgender Women in New York City” (2013) 27:11 AIDS Patient Care and STDs 621.

[14] Maurice Musheke et al, “A systematic review of qualitative findings on factors enabling and deterring uptake of HIV testing in Sub-Saharan Africa” (2013) 13:1 BMC Public Health.

[15] Ministry of Health, “Update on the HIV/AIDS situation in Singapore 2017 (June 2018)”, online: <https://www.moh.gov.sg/content/ moh_web/home/statistics/infectiousDiseasesStatistics/HIV_Stats/update-on-the-hiv-aids-situation-in-singapore-2017--june-2018-0.html>.

[16] Channel NewsAsia, “Voluntary HIV screening rate in Singapore "extremely worrying": Action for Aids”, online (9 June 2016): <https://www.channelnewsasia.com/news/singapore /voluntary-hiv-screening-rate-in-singapore-quot-extremely-worryin-7986390>.

[17] Ibid.

[18] Zita Lazzarini et al, “Criminalization of HIV Transmission and Exposure: Research and Policy Agenda” (2013) 103(8) American Journal of Public Health 1350.

[19] Scott Burris et al, “Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial” (2007) 4 Ariz. St. L.J. 35.

[20] Ibid; Carol Galletly et al, “A Quantitative Study of Michigan’s criminal HIV exposure law” (2012) 24(2) AIDS Care 174; Pamina Gorbach et al, “Don't ask, Don't tell: Patterns of HIV Disclosure among HIV Positive Men who have sex with Men with recent STI practising High Risk behaviour in Los Angeles and Seattle” (2004) 80(6) Sexually Transmitted Infections 512.

[21] Cap 224, 2008 Rev Ed Sing.

[22] UNAIDS, “Background Paper – Criminalisation of HIV Non-Disclosure, Exposure and Transmission: Background and Current Landscape”, online: <http://www.unaids.org/sites/def ault/files/media_asset/JC2322_BackgroundCurrentLandscapeCriminalisationHIV_en.pdf>.

[23] Supra note 25.

[24] Scott Burris & Matthew Weait, “Criminalisation and the moral responsibility for sexual transmission of HIV” (2011) Working paper prepared for the Third Meeting of the Technical Advisory Group of the Global Commission on HIV and the Law, online: < http://bibliobase.sermais.pt:8008/BiblioNET/upload/PDF/0571.pdf>.

[25] Lawrence O Gostin, “A Theory & Definition of Public Health Law” (2007) 10 Journal of Healthcare Law & Policy 1.

[26] Ibid.

[27] Nancy E Kass, “An Ethics Framework for Public Health” (2001) 91:11 American Journal of Public Health 1776, 1780 citing Beauchamp and Childress. 

[28] Parliamentary Debates Singapore: Official Report, vol 84, col 2661 (22 April 2008) (The Minister for Health (Dr Khaw Boon Wan)).

[29] Section 25 of the IDA which protects the identity of persons with AIDS, HIV or other sexually transmitted diseases applies only to persons who is aware or has reasonable to believe that a person has AIDS or HIV in the performance or exercise of his functions or duties under the IDA.  

[30] Supra note 25.

[31] Alison J Rodger et al, “Sexual Activity Without Condoms and Risk of HIV Transmission in Serodifferent Couples When the HIV-Positive Partner Is Using Suppressive Antiretroviral Therapy” (2016) 316:2 Jama 171.

[32] Ministry of Health, “Speech by Dr Amy Khor at the 10th Singapore AIDS Conference, 3 Dec”, online: <https://www.moh.gov.sg/content/moh_web/home/pressRoom/speeches_d/ 2016/speech-by-dr-amy-khor-at-the-10th-singapore-aids-conference--3-d.html>.

[33] Myron S Cohen et al, “Prevention of HIV-1 Infection with Early Antiretroviral Therapy” (2011) 365:5 The New England Journal of Medicine 493.

[34] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[35] TodayOnline, “Life is better now for HIV patients in S’pore”, online (25 November 2015): <https://www.todayonline.com/daily-focus/health/life-better-now-hiv-patients-spore>.

---

Footpath Warriors: A Proposed Sentencing Framework for Personal Mobility Device Accidents

The PDF version of this article is available for download here.

---

Footpath Warriors: A Proposed Sentencing Framework for Personal Mobility Device Accidents

Darren Ang*

I. INTRODUCTION

The use of personal mobility devices [PMDs] on footpaths in Singapore has led to numerous PMD-related accidents,¹ some of which have resulted in grave injuries to the victims.² The propensity for PMDs to cause harm is well known by the public – there have been numerous calls to tighten legislative controls on PMD usage, including a request to completely ban PMD usage on footpaths.³

These calls have not gone unanswered, and Parliament has been consistently tightening legislative controls over PMD usage over the past year. The passing of the Active Mobility Act 2017⁴ [AMA] added s 5A to the Road Traffic Act⁵, which expressly prohibits the use of PMDs on public roads in most circumstances. Following the AMA, the Active Mobility Regulations 2018⁶ introduced additional controls over, inter alia, the sale and modification of PMDs.

While these legislative controls are relatively new, and their effectiveness cannot be conclusively determined, it unfortunately appears that the measures in place are still insufficient – calls for the complete banning of PMDs have not ceased.⁷ To supplement the legislative measures already in place, the courts may step in to pass sentence on PMD users who cause hurt to pedestrians, and in doing so, deter such careless behaviour enough to lower the incidence of PMD accidents.

II. SCOPE AND PURPOSE OF THE ARTICLE

This article proposes a sentencing framework for PMD accident cases where grievous hurt is caused, by reconciling the unique characteristics of PMD accident cases with the sentencing framework for causing grievous hurt by a negligent act that endangers human life under s 338(b) of the Penal Code⁸ [PC] in Tang Ling Lee v Public Prosecutor⁹ [Tang Ling Lee]. The offence of causing grievous hurt by a negligent act that endangers human life is chosen as a benchmark, as most reported PMD accidents would likely fall under this provision.¹⁰

III. THE TANG LING LEE FRAMEWORK

In Tang Ling Lee, See Kee Oon J laid down a general sentencing framework to be applied for road traffic cases charged under s 338(b) of the PC when the accused claims trial (referred to in this article as the ‘Tang Ling Lee framework’).¹¹ The Tang Ling Lee framework is a two-step inquiry, which first categorises the offence under one of three pre-established categories to determine a starting point sentence (referred to in this article as the ‘three-category approach’). Following which, the framework allows further adjustments to be made to take into account the relevant mitigating and aggravating factors (referred to in this article as the ‘adjustments step’).¹²

At the first step of the inquiry, a presumptive sentencing range will be determined as a starting-point sentence, having regard to the twin considerations of harm and culpability.¹³ See Kee Oon J summarised the three-category approach in the following table format:¹⁴

• Category 1:

  • Circumstances: Lesser harm and lower culpability;

  • Presumptive Sentencing Range: Fines.

• Category 2:

  • Circumstances: Greater harm and lower culpability Or Lesser harm and higher culpability;

  • Presumptive Sentencing Range: One to two weeks’ imprisonment.

• Category 3:

  • Circumstances: Greater harm and higher culpability;

  • Presumptive Sentencing Range: More than two weeks’ imprisonment.

See Kee Oon J defined “harm” as the “nature and degree of the grievous bodily injury caused to the victim(s)”¹⁵, and the “degree of culpability” as “the degree of relative blameworthiness disclosed by an offender’s actions … measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act”.¹⁶ Additionally, the factors which would affect the “culpability” limb under the three-category approach would include: (i) the manner of driving, (ii) the circumstances which might have increased the danger to road users, and (iii) the offender’s reasons for driving.¹⁷

IV. THE TANG LING LEE FRAMEWORK ADJUSTED FOR PMD ACCIDENTS

While the Tang Ling Lee framework was caveated to only apply to road traffic cases,¹⁸ it has been adjusted to apply in non-road traffic cases as well. Most notably, the District Judge in Public Prosecutor v Cai Mei Ying¹⁹ [Cai Mei Ying] applied the three-category approach under the Tang Ling Lee framework for a s 338(b) case involving a bicycle accident, but held that the presumptive sentencing ranges were not binding due to the different contexts in which the cases occurred.²⁰

It is submitted that when a PMD accident case charged under s 338(b) of the PC reaches the courts, there would be no practical reason to deviate from the approach taken by the District Judge in Cai Mei Ying. Moreover, the District Judge in Cai Mei Ying noted that the Tang Ling Lee framework was expressly caveated to only apply to road traffic cases, but recognised that the parties had agreed that “because Tang Ling Lee involves the co-existence of vehicles and humans in shared spaces”, the framework was applicable to their case.²¹ PMD accidents also involve the “co-existence of vehicles and humans in shared spaces”, and it would follow that the approach taken in a future case involving a PMD accident is likely to be similar to the approach taken by the District Judge in Cai Mei Ying.

It would then be apposite to consider what adjustments might be made to the Tang Ling Lee framework for PMD accident cases, and it is argued that the main considerations for adjusting the Tang Ling Lee framework in these cases would be: (i) the lower propensity for PMDs to cause harm when compared to motor vehicles (referred to in this article as the ‘harm factor’), and (ii) the objective of general deterrence (referred to in this article as the ‘deterrence factor’). If the courts were to follow the approach in Cai Mei Ying for adjusting the Tang Ling Lee framework, they would apply the three-category approach without using the presumptive sentencing ranges, and then account for the above two considerations at the adjustments step of the Tang Ling Lee framework. These two considerations will now be dealt with in turn.

A. Downward adjustments for the ‘harm factor’

PMDs have a lower propensity to cause harm than motor vehicles, as they travel at lower speeds and are not as heavy as motor vehicles. This could warrant a downward adjustment of the starting-point sentence at the adjustments step of the Tang Ling Lee framework.

As discussed above, the approach in Cai Mei Ying ought to be the first port-of-call for the discussion. However, the District Judge in Cai Mei Ying did not make a clear finding on the effect of the ‘harm factor’, though it was noted that as a guiding principle, “drivers of heavy vehicles stand to receive heavier punishments than riders of light vehicles due to the greater damage their vehicles can cause”.²²

It is then helpful to consider the approach taken in Public Prosecutor v Khairul bin Hairuman²³ [Khairul], which was a case involving a fatal bicycle accident. The accused in Khairul was charged under the rashness limb of s 304A of the PC, and the District Judge applied the three-category approach from the case of Public Prosecutor v Ganesan Sivasankar²⁴ [Ganesan], including the presumptive sentencing ranges.

The Ganesan framework was also laid down by See Kee Oon J to apply to any s 304A rashness case when the accused claims trial, and it uses a three-category approach followed by an adjustments stage as with the Tang Ling Lee framework.²⁵ The only differences between the two frameworks are that the Ganesan framework does not consider the harm caused (as it is, by definition of the offence, the death of the victim),²⁶ and that the presumptive sentencing ranges in Ganesan under the three-category approach are more severe. The table laid out by See Kee Oon J in Ganesan is illustrative of these differences:²⁷

• Category 1:

  • Accused’s culpability: Low;

  • Presumptive sentencing range: 3 to 5 months’ imprisonment.

• Category 2:

  • Accused’s culpability: Moderate;

  • Presumptive sentencing range: 6 to 12 months’ imprisonment.

• Category 3:

  • Accused’s culpability: High;

  • Presumptive sentencing range: More than 12 months’ imprisonment.

The District Judge in Khairul found that the accused’s conduct fell within Category 2 of the Ganesan framework, and then discounted the accused’s sentence at the adjustments stage to “reflect the lower consciousness of risk of harm towards others associated with the riding of the bicycle in comparison with the riding or driving of motorised vehicles”.²⁸

The approach in Khairul would support the position that the lower propensity for PMDs to cause harm could count for a significant downward adjustment at the adjustments stage of the Tang Ling Lee framework.

B. Upward adjustments for the ‘deterrence factor’

As discussed in the introduction of this article, PMD usage is an issue of great public concern in Singapore, and deterrent sentencing in the courts would be an appropriate supplement for the legislative controls already in place. Therefore, the court may be inclined to make an upward adjustment of the starting-point sentence for the purpose of general deterrence.

In Cai Mei Ying, the ‘deterrence factor’ was effectively the only aggravating factor taken into consideration at the adjustments stage of the Tang Ling Lee framework.²⁹ Interestingly, the District Judge was cognisant of the issue of PMD accidents, classifying both cyclists and PMD users within the same class of persons and commenting that “with the increased popularity of PMDs and the use of bicycles … all cyclists and users of PMDs must be reminded to take extra care when they are in shared spaces”.³⁰ Therefore, it is likely that the court would take the ‘deterrence factor’ as a significant aggravating factor at the adjustments stage of the Tang Ling Lee framework.

Additionally, a common thread that binds most cases charged under s 338(b) of the PC is that the accused person had breached certain safety regulations which led to the accident – the accused in Cai Mei Ying was cycling in a no-cycling zone³¹ and the accused in Tang Ling Lee failed to give way to a motorist with the right of way³². The breach of safety regulations counted towards a finding of higher culpability at the three-category approach stage, ultimately leading to a higher starting-point sentence. Therefore, it could be argued that the purpose of general deterrence is served indirectly at the “culpability” limb of the three-category approach.

V. CONCLUSION

To summarise the proposed method for adjusting the Tang Ling Lee framework for PMD accident cases charged under s 338(b) of the PC, the courts are likely to apply the three-category approach without using the presumptive sentencing ranges to determine a starting-point sentence. Following which, at the adjustments stage, the court would account for the ‘harm factor’ to adjust the starting-point sentence downwards and the ‘deterrence factor’ to adjust the starting-point sentence upwards.

For PMD users, who would bear the full brunt of this proposed method, the message is clear – if ever placed in an unfortunate s 338(b) situation where the harm has already been caused, it would be in their best interest to render as much assistance to the victim as necessary and comply with all orders, for a possible finding of lower culpability.

---

* A most heartfelt thanks to Professor Alan Tan, for answering my queries and helping immensely with the framing of my research questions.

[1] Adrian Lim, “Parliament: About three accidents a week involving personal mobility device users” (8 January 2018), The Straits Times, online: <www.straitstimes.com/politics/parliament-average-of-three-accidents-a-month-involving-pedestrians-and-personal-mobility>.

[2] Shaffiq Idris Alkhatib, “Teen e-scooter rider pleads guilty in incident which caused pedestrian severe brain injuries” (13 June 2018), The Straits Times, online: <www.straitstimes.com/singapore/courts-crime/teen-e-scooter-rider-pleads-guilty-in-incident-which-caused-pedestrian-severe>.

[3] Desmond Ng & Kan Lau, “Why being hit by an e-scooter can be deadly – and a call to ban them from footpaths” (20 May 2018), Channel NewsAsia, online: <www.channelnewsasia.com/news/cnainsider/e-scooter-ban-footpaths-accidents-safety-registration-debate-10250946>.

[4] No 3 of 2017, Sing.

[5] Cap 276, 2004 Rev Ed Sing.

[6] S 251/2018 Sing.

[7] Rodney Tan, “It Is Time to Ban E-Scooter[s] in Singapore” (last updated 11 December 2018), ipetitions, online: <www.ipetitions.com/petition/it-is-time-to-ban-e-scooter-in-singapore>.

[8] Cap 224, 2008 Rev Ed Sing.

[9] [2018] SGHC 18; [2018] 4 SLR 813.

[10] For example, see supra, notes 1-3.

[11] Supra note 9 at [32].

[12] Ibid.

[13] Ibid.

[14] Ibid at [31]. The information is represented in table format in the PDF version of this article.

[15] Ibid at [25].

[16] Ibid.

[17] Ibid at [27].

[18] Ibid at [24].

[19] [2018] SGMC 56.

[20] Ibid at [23].

[21] Ibid at [20].

[22] Ibid at [24].

[23] [2018] SGMC 16.

[24] [2017] SGHC 176; [2017] 5 SLR 681.

[25] Ibid at [54].

[26] Ibid.

[27] Ibid at [55]. The information is represented in table format in the PDF version of this article.

[28] Supra note 23 at [38].

[29] Supra note 19 at [37].

[30] Ibid.

[31] Ibid at [2].

[32] Supra note 9 at [5].

---

In-Conversation with Mr. Benjamin Szeto, Partner and Deputy Head of RHTLaw Taylor Wessing’s Private Wealth Industry Group

In-Conversation with Mr. Benjamin Szeto, Partner and Deputy Head of RHTLaw Taylor Wessing’s Private Wealth Industry Group

Keith Wong and Choo Qian Ke

As a regional hub, Singapore remains an attractive location for both home-grown and international law firms. It comes as no surprise that RHTLaw Taylor Wessing has carved out a noticeable niche for itself in the Singapore market. As a law firm that delivers international capabilities with a network of more than 3300 legal professionals across 27 jurisdictions in Asia, the Middle East, Europe and the United States, the firm’s model is driven by its focus on helping clients succeed. RHTLaw Taylor Wessing’s ability to cater to the international needs of its clients is accentuated by its access to a wealth of international resources from the firm’s membership of the Interlex Group and the ASEAN Plus Group. For clients, RHTLaw Taylor Wessing provides a one-stop solution by operating as a single unit while delivering multi-jurisdictional and multi-disciplinary representation on complex transactions.

From left to right: Mr Szeto, Keith Wong (Journal Executive Editor), Choo Qian Ke (Journal Executive Editor), and Mr Siow.

RHTLaw Taylor Wessing offers a diverse range of tailor-made services. One example is the firm’s deep understanding of philanthropy as evidenced by its experience advising a suite of non-governmental organisations, international charitable organisations, charities and institutions of public character. In the same vein, RHTLaw Taylor Wessing is particularly established in the private-wealth sector, with particular expertise in advising entrepreneurs and business owners. The firm’s strong emphasis on issues of interest to clients, including an appreciation of art, reflects the firm’s commitment to understanding its client base. The result is a holistic Art Law Practice comprising lawyers who are passionate about the arts and armed with practical experience in dealing with the art world. With a suite of services in art financing, legacy planning and philanthropy, it comes as no surprise that RHTLaw Taylor Wessing’s achievements were recognised at the WealthBriefingAsia Awards 2018.

To better understand this sector, the Singapore Law Review spoke with Mr. Benjamin Szeto, partner and Deputy Head of RHTLaw Taylor Wessing’s private wealth industry group.

As a Registered Trust and Estate Practitioner of the Society of Trust and Estate Practitioners and an author for LexisNexis Practical Guidance Singapore on Trusts, Mr. Szeto has over 20 years of experience advising High Net Worth Individuals (“HNWIs”), entrepreneurs, financial institutions, listed entities and Fortune 500 corporations on a wide range of transactions. In the private wealth industry group, Mr. Szeto designs bespoke solutions, structures and strategies to assist clients with the key aim to separate business risks from family wealth.

The Secret Recipe Behind RHTLaw Taylor Wessing’s Impressive Achievements

At the Wealth Briefing Asia Awards 2018, RHTLaw Taylor Wessing was recognised as having demonstrated “innovation and excellence” in its business. As such, we started off our interview by seeking Mr Szeto’s views on what has set the firm’s work a tier above that of others to earn it its acolades.

Mr. Szeto highlighted RHTLaw Taylor Wessing’s industry group approach as one of the factors that contributes to the firm’s uniqueness. Unlike most other law firms that are typically organised according to practice areas such as litigation, corporate, intellectual property and conveyancing, RHTLaw Taylor Wessing adopts an industry group organisational structure. The wide range of industry groups span from consumer brands to energy and environment. Mr. Szeto himself helps helm the private wealth industry group. The advantage of having this approach lies in the partners’ ability to better serve the needs of clients from within each industry group. Clients from different industry groups have different sets of problems and issues that they need to address. By being attuned to the issues pertinent to the respective industry groups, lawyers at RHTLaw Taylor Wessing possess perceptive knowledge of the key concerns and considerations of clients specific to every industry group. Such an approach thereby allows lawyers to better understand their clients’ industries and tailor solutions that meet the clients’ needs.

Mr. Szeto also highlighted RHTLaw Taylor Wessing’s ASEAN-centric focus. Via the ASEAN Plus Group, which is a regional network of full-service and well-established law firms in ASEAN plus China, Taiwan, Hong Kong, Japan and Korea, RHT Law Taylor Wessing facilitates its clients' cross-border regional transactions, allowing them to navigate the region and its opportunities with confidence, providing an integrated suite of services across different practice areas and in different ASEAN jurisdictions. This is appropriate since the nature of private wealth is now very global, which alludes to the necessity to serve clients’ needs that may span across multiple jurisdictions. Being attuned to the nuances of working in Asia while also possessing the added perspective and expertise of an international firm has allowed RHTLaw Taylor Wessing to be very efficient in delivering bespoke and comprehensive legal services for clients and multi-disciplinary representation on complex cross-border transactions both in Singapore and on an international level.

Mr Szeto also shared that one of RHT Law Taylor Wessing’s strengths is in the areas of art and philanthropy. Art and philanthropy are very aspirational areas that a lot of private clients are most interested and passionate about. As such, having capabilities and expertise in these areas allow the firm to put together solutions that are not just about meeting legal needs but also about addressing the passions and aspirations of some of these private wealth clients.

Unravelling RHTLaw Taylor Wessing’s International and Regional Practice

Apart from engaging in legal work, Mr. Szeto also looks at regional business development aspects for the private wealth industry group. RHTLaw Taylor Wessing is extremely regional in their private wealth industry outlook. For example, the firm has a strong Indonesian client base, a strong foothold in Hong Kong and good dealings with clients from China. Additionally, they are looking at expanding to other ASEAN countries, especially markets like the Philippines and Vietnam.

RHTLaw Taylor Wessing also has a strong regional focus in its other industry groups and practice areas. They have established regional clients ranging from listed entities to top tier Fortune 500 companies and international banks. To address the various needs of its clients, RHTLaw Taylor Wessing advises on a variety of matters directly from the Singapore office, or will work with its partners in the ASEAN Plus Group on international matters. For example, a client seeking to complete a cross-border M&A transaction can deal with the firm without the need to separately seek advice across multiple jurisdictions. This is one of the forms of cross border support that the firm can provide for its clients. As noted by Mr. Szeto, these days, lawyers have to go beyond just doing the legal work, and must instead provide clients with an experience that is as seamless and efficient as possible.

What Is Private Wealth?

To gain deeper insight into Mr. Szeto’s line of work, we asked him to share certain challenges and points to note when working with private wealth clients. In dissecting the term “private wealth”, we were directed to two sub-groups, namely, the private client and the intermediaries.

In the first group, the private client includes HNWIs, the families, and the family offices. Generally, such clients tend to be the businessowners themselves. As for the second group, intermediaries include corporate parties such as private banks, trust companies and insurance groups.

A key point during our conversation was the importance of context and understanding the values, position, and internal dynamics of each group. Mr. Szeto highlighted the importance of understanding each client’s unique needs, business model and their long-term concerns. In the process, rapport is also developed, strengthening the long-term partnership between the client and the firm.

For lawyers engaged in this field, business development is paramount. Outside of Singapore, Indonesia and the People’s Republic of China are still key drivers of growth. While demand for lawyers in the private wealth sector is strong, the competitive climate demands effective solutions delivered through a seamless network.

As our conversation developed, the world of private wealth seemed all the more attractive. Amid the glitz and glamor often associated with the private wealth sector however, Mr. Szeto quickly pointed out the inevitable overlap with corporate work which one should be prepared to face. This stems from having to assist clients in fulfilling various objectives. Take for example, mergers and acquisitions between companies, purchasing of property in various regions, and the incorporation of new entities. One must also be well-versed in trust structures.

Additionally, the nature of a family business may have implications not often found in other areas. From his experience, a common issue is the tendency to not draw a clear line between the family business and the family fortune. In the long-run, this leads to complications with wealth preservation, legacy planning, and asset protection. Ideally, the two should be kept distinct, given the cyclical nature of businesses and its potential impact on the family fortune.

In areas like these, RHTLaw Taylor Wessing offers solutions to address the needs of clients irrespective of the region or jurisdiction concerned, where necessary liaising with other foreign counsel.

Multiplying Experiences and Perspectives

Impressed by Mr. Szeto’s wide array of experiences ranging from a Master of Science (Real Estate) from the National University of Singapore to a Diploma in Financial Management from the Association of Chartered Certified Accountants, as well as being a Trust and Estate Practitioner of the Society of Trusts and Estate Practitioners, we had to ask him for his thoughts on the insights that his multitude of experiences have rendered to his practice.

Mr. Szeto wisely propounded that lawyers have to understand that they are working with clients in a context. Client advice is multi-disciplinary in nature. Lawyers cannot look at issues in a silo. Moreover, clients these days expect lawyers to not just give good legal advice, but also to understand, comprehend and have a good grasp of the other commercial issues. To quote Mr. Szeto, “Now as lawyers, we are expected to be a jack of all trades, and a master of one”. In short, lawyers have to be good at law, but conversant in other areas as well.

Mr. Szeto shared that his training in real estate and finance have really given him the ability to have a much more rounded conversation with his clients. The width and depth of knowledge that he possesses help him to understand issues much better. In addition, there is no excuse or reason for him to feel intimidated when people talk about foreign non-legal concepts such as balance sheets or income statements. Furthermore, the real estate background is very important especially in the area of private wealth and in dealing with Asian-based families as real estate is a favourite asset class among high net worth clients. To be able to connect with them on a non-legal level and discuss about their real estate investments really goes a long way. Thus, Mr. Szeto personally feels that having skills outside law will help one to become a more rounded person, allowing one to have a more holistic view of various fields. Having qualifications, whether at a rudimentary level or at a more formal level, will definitely help any lawyer in practice.

Parting Advice

In response to our request for his advice and recommendations to aspiring lawyers and students, the first piece of advice that Mr. Szeto gave is to read more widely. While acknowledging the pressure and stress in law school, Mr. Szeto stressed that it would be ideal if law students had the opportunity and time to read beyond our core competencies in law. For instance, students interested in the private wealth space can go a bit deeper into the industry. There are many issues such as common reporting standards, investments, and diverse asset classes. Developments are vast and rapid, and for any student keen on pursuing a career in any particular space, it is good to start to have a feel of what is happening in that space, to explore and to keep abreast of developments by reading widely.

Mr. Szeto’s second piece of advice is to sharpen one’s people skills. Mr. Szeto encourages young lawyers and students to hone client development skills, interaction skills and interview skills, given that people skills are definitely one aspect of practice that cannot be neglected. For example, in the private wealth space, people skills are especially important as clients may not be so direct in their communications, so lawyers would need to figure out what exactly clients are trying to convey.

As concluding remarks, Mr. Szeto recommends young lawyers in their early years of practice to seize every networking opportunity possible. Ultimately, there is value in having a wide network of people that you can turn to for support, as the nature of lawyering is very people-oriented.

Indeed, a timely reminder that as service providers, we as lawyers and lawyers-to-be must always keep abreast with the human aspect of law.

The Singapore Law Review would like to thank Mr. Benjamin Szeto and RHTLaw Taylor Wessing for accommodating our members, Keith Wong and Choo Qian Ke. We are very appreciative of the opportunity to engage and share in such an inspiring and insightful conversation with Mr. Benjamin Szeto.