An accused charged with murder may be facing the harshest of punishments: death. Intuitively, it might seem only fair that such a grave punishment is meted out for an equally heinous act. However, legally speaking, whether an accused will be sentenced to death ultimately turns on the specific murder charge brought by the Public Prosecutor and the facts of each case. This is by no means a straightforward inquiry. This article seeks to shed some light on this area of the law by explaining the various murder provisions in the Penal Code 1871, as well as how sentencing for murder is generally done.
Clarifying the principles in the defence of necessity and the chain of custody process: Muhammad Hamir B Laka v Public Prosecutor [2023] 2 SLR 286; [2023] SGCA 23
In Muhammad Hamir B Laka v Public Prosecutor [2023] SGCA 5, the Court of Appeal ("CA") clarified the principles governing the defence of necessity. In this case, the offender argued that he had trafficked drugs in necessity, to pay for his wife’s medical treatment. The CA rejected this argument, clarifying that the defence of necessity may only be invoked if the accused acted to avoid a much greater harm, which he reasonably believes is imminent, more likely and serious, and where there is no reasonable legal alternative. It cannot be invoked where there is premeditated criminal conduct.
Alleging inadequate and improper legal assistance in criminal trials: Abdoll Mutaleb bin Raffik v Public Prosecutor and another appeal [2023] 1 SLR 1362; [2023] SGCA 12
In a criminal case, issues that may arise include that of: (a) whether there was inadequate and improper legal assistance by the accused’s counsel; b) whether an accused’s statement is inadmissible due to a threat, inducement or promise given to the accused or the accused’s refusal to sign the statement; and (c) whether the accused’s charge can be altered, owing to insufficient evidence to prove it. In Abdoll Mutaleb bin Raffik v Public Prosecutor and another appeal, the Court of Appeal (“CA”) dealt with all three issues. For an allegation of inadequate and improper legal assistance to succeed, there must have been flagrant or egregious incompetence or indifference by the accused’s counsel, resulting in a real possibility of a miscarriage of justice. Regarding questions of admissibility, a statement will be deemed inadmissible only if it has been made involuntarily. The fact that a statement-maker has refused to sign a statement will not bar its admissibility so long as it has been made voluntarily. Lastly, the court can frame an altered charge if there is sufficient evidence (based on the records before it) to constitute a case against the accused.
Open Justice: Exploring Illustrations of the Principle in Singapore
“Justice must not only be done but must also seen to be done.” Open justice is a fundamental principle that ensures transparency, accountability, and public trust in the legal system. When, then, can the Singapore courts decide that its proceedings should be heard in private? What considerations do courts take into account, and how do they balance public interest in hearings against interests of the defendants and victims in the cases? This article seeks to answer these questions, with reference to recent cases concerning Bar admission, voyeurism, and arbitration.
Instalment Payments and the Penalty Doctrine: Ethoz Capital Ltd v Im8ex Pte Ltd and others [2023] SGCA 3
Under contract law in Singapore, parties are generally free to enter contracts and undertake what are known as “primary obligations”, and are also free to change their mind and break their primary obligations if they so wish, albeit at a price (eg by paying damages). Any clause that essentially forces compliance with the primary obligations of a contract will be considered an unenforceable penalty. This is known as the “penalty doctrine”. In Ethoz Capital Ltd v Im8ex Pte Ltd and others [2023] SGCA 3, the Court of Appeal (“CA”) further developed the penalty doctrine. Specifically, the CA held that there was a difference between paying a debt owed in instalments over a period of time, and the immediate and full payment of said debt owed upon default. In this case, the CA held that the primary obligation here was for payment of interest on the loan in question in instalments, and that the contractual requirement for the latter upon the debtor’s default was, under the circumstances, an unenforceable penalty. Further, the CA recognised that while the burden of proving that a clause is a penalty generally rests with the party making the claim, when there is evidence to show that a clause is a penalty, the evidential burden would then shift to the other party to prove otherwise.
Singapore Medical Council v Wee Teong Boo [2023] SGHC 180 – Applying the Wong Meng Hang sentencing framework for professional misconduct in the medical context
In Singapore Medical Council v Wee Teong Boo [2023] SGHC 180, the Singapore High Court ("HC") had to consider the appropriate sentence for the respondent, a medical practitioner who was found guilty of 20 charges of professional misconduct, including ten for inappropriately prescribing certain medicines ("Inappropriate Prescription charges"). Although an application of the relevant sentencing framework would have led to an indicative sentencing range of between two to three years' suspension for each Inappropriate Prescription charge, the HC stressed that this could be departed from where appropriate. Particularly in cases where an errant doctor faced multiple charges, which each attracted a substantial suspension term, it would be appropriate to consider if the doctor’s overall misconduct warrants striking him off instead. Because the respondent had, with respect to the Inappropriate Prescription charges, flagrantly abused his privilege as a medical practitioner, systemically disregarded his patients' well-being, and persistently failed to appreciate his misconduct’s seriousness, the HC held that he was unfit to remain a medical practitioner. He was thus struck off the Register of Medical Practitioners.
Divorce Proceedings: the Power of Intent in the Division of Assets Acquired by Gift or Inheritance: CLC v CLB [2023] SGCA 10
In a divorce, by virtue of section 112 of the Women's Charter 1961, any gifted or inherited assets are not usually included in the matrimonial pool of assets to be divided. However, where a spouse manifests a clear and unambiguous intention to treat such an asset as part of the family estate, should the courts give effect to such an intention? This issue arose in CLC v CLB [2023] SGCA 10. There, the Husband argued that certain monies which he had received from his late father should be excluded from the matrimonial pool, and not be subject to division with the Wife. The Court of Appeal clarified that section 112 did not preclude the courts from giving effect to a spouse’s intention to bring non-matrimonial assets into the matrimonial pool in accordance with principles of property law. As the Husband had demonstrated a clear and unambiguous intention to incorporate the disputed monies into the family estate, they were deemed matrimonial assets and subject to division.
The Determination of Arbitrability at the Pre-award Stage: Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1
In arbitration disputes, one issue that often arises is whether the dispute's subject matter is even arbitrable (“subject-matter arbitrability”). The issue may be complicated by the arbitration agreement being subject to different jurisdictions' laws, as the law governing the agreement, the law of the seat (i.e. the law governing the arbitration process), and the law of the forum (i.e. the jurisdiction where the arbitration occurs), may differ. In such a situation, which law(s) should be applied to determine the dispute's subject-matter arbitrability? This issue arose in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1. There, the company appealed against the Singapore High Court's decision to grant an anti-suit injunction ("ASI") against it to restrain it from continuing to sue an investor in another jurisdiction, because the dispute's subject matter was arbitrable under the law of the seat (i.e. Singapore law) and thus ought to have been arbitrated pursuant to the arbitration agreement. The Singapore Court of Appeal ("SGCA") held that at the pre-award stage, a dispute's subject-matter arbitrability should be determined using a “composite” approach. Specifically, the subject-matter must be arbitrable under both the laws governing the arbitration agreement and the seat. On the facts, the SGCA found that the law governing the arbitration agreement was also Singapore law, and held that the dispute's subject matter was arbitrable under the same. There was also no reason for the ASI to be stayed on case management grounds. The SGCA hence upheld the ASI granted against the company.
Admission to the Singapore Bar: Clarifying the Framework for Situations of Applicant Misconduct Re Suria Shaik Aziz [2023] SGHC 129
In a recent 2023 case, the General Division of the High Court ("HC") had to consider whether the applicant, who had committed plagiarism in respect of a law school assignment, could be admitted to the Singapore Bar. The HC reiterated that where there is no question as to the competence or qualifications of the applicant, the relevant central inquiry is whether the applicant is suitable for admission in terms of his character. Finding that the applicant continued to demonstrate a lack of insight into the ethical implications of his misconduct, the HC granted him leave to withdraw his application for admission, subject to his undertaking not to bring a fresh application for admission in Singapore or to the bar in any other jurisdiction for four months. Notably, the HC also clarified that those who wish to be part-called to the Singapore Bar in the future should disclose any prior misconduct that may affect their suitability to practice at the first opportunity in their part-call affidavits. The failure to do so would be taken into account by the courts in assessing their suitability to be admitted.
The requirements of proper character befitting a lawyer: Re Tay Jie Qi and another matter [2023] SGHC 59
In Singapore, those who wish to be admitted to the Bar must demonstrate proper character befitting that of an advocate and solicitor of the Supreme Court of Singapore. What, then, happens if an applicant has a prior record of misconduct? This issue arose in Re Tay Jie Qi and another matter [2023] SGHC 59, where the High Court ("HC") had to consider whether the two applicants were suitable for admission to the Bar. One applicant had committed plagiarism while in law school. The other applicant had, also while in law school, committed shoplifting; separately, a slab of illegal substance was found in her sister’s bag while they were out clubbing. The HC noted that their wrongdoing had occurred some time ago. The HC further observed that both applicants had voluntarily disclosed their misconduct despite that information not being in the public domain; were not involved in any other type of unsatisfactory conduct in the intervening years; and demonstrated repentance and remorse for their misconduct. Their willingness to face up to their mistakes and to deal "candidly and forthrightly" with the relevant stakeholders was “heartening”. The HC also emphasised that the purpose of a deferment in Bar admission applications is not punitive, but a rehabilitative one. As such, the HC allowed both their applications for admission to the Bar and welcomed them to the profession.
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