A letter of credit ("LC") is an assurance made by the issuing bank that the beneficiary will receive timely payments, on condition that certain documents are presented according to the terms of the LC. In UniCredit Bank AG v Glencore Singapore Pte Ltd [2023] SGCA 41, the Court of Appeal reiterated that issuing banks are obligated to make payment under an LC, unless the beneficiary fraudulently presents documents containing material representations of fact which it knows to be untrue, for the purpose of drawing on the credit. The CA held that here, the beneficiary-seller's sale and buyback arrangement with the buyer (who requested the LC) did not constitute such fraud.
Jurisdiction for Crimes Committed on the High Seas: Ng Kok Wai v Public Prosecutor [2023] SGHC 306
In Ng Kok Wai v Public Prosecutor [2023] SGHC 306, it was held that the District Court can try and convict a Singaporean who commits a crime (under the Penal Code (Cap 224, 2008 Rev Ed)) on a ship on the high seas, even though the crime occurred outside of Singapore. This is because (a) the State Courts Act 1970 provides the District Court criminal jurisdiction over such persons, and (b) section 3 of the Penal Code permits its extraterritorial application.
Incorporating and interpreting sanctions clauses in confirmations for letters of credit: Kuvera Resources Pte Ltd v JPMorgan Chase Bank, NA [2023] 2 SLR 389; [2023] SGCA 28
A letter of credit is a payment mechanism used in international trade to provide an economic guarantee from an issuing bank to an exporter of goods. Sometimes, letters of credit may also be backed by another confirming bank through a letter of confirmation, to ensure payment. In Kuvera Resources Pte Ltd v JPMorgan Chase Bank, NA [2023] 2 SLR 389, the Court of Appeal ("CA") held that absent fraud, letters of credit operated independently from letters of confirmation. Hence, a confirming bank’s liability to pay under a letter of confirmation could be subject to conditions that were not reflected in the underlying letter of credit (including, as here, a sanctions clause). However, in this case the CA held that the confirming bank could not refuse payment, under the specific circumstances.
The Interpretation of Section 41(1)(f) of the Geographical Indications Act: Consorzio di Tutela della Denominazone di Origine Controllata Prosecco v Australian Grape and Wine Incorporated [2023] 2 SLR 509; [2023] SGCA 37
In Consorzio di Tutela della Denominazone di Origine Controllata Prosecco v Australian Grape and Wine Incorporated [2023] 2 SLR 509, Consorzio applied to register “Prosecco” as a Geographical Indication (GI) in respect of wines in Singapore originating from the “North East region of Italy”. GIs identify and connect a food with the landscape of the producing region. Consorzio’s application was opposed under the Geographical Indications Act 2014 (Act 19 of 2014). The Court of Appeal laid out the two requirements to establish an opposition under the Act; as the two requirements were not met here, the CA allowed Consorzio's application.
A clarification on patent insufficiency in Singapore: IIa Technologies Pte Ltd v Element Six Technologies Ltd [2023] 1 SLR 987; [2023] SGCA 5
In IIa Technologies Pte Ltd v Element Six Technologies Ltd [2023] SGCA 5, the CA considered when a patent would be invalid on the grounds of insufficiency. The most common way is known as classical insufficiency. This arises when the patent specification is not clear and complete enough to teach the skilled person to perform the innovation. Further, the CA also accepted, for the first time in Singapore, that insufficiency may also result from uncertainty, where a skilled person is unable to determine whether a claimed product or process falls within the scope of the patent.
Murder: The Crime and Punishment
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.
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