Author: SMU Lexicon

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.

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.

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.

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.

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.