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.
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.
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.
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