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.
Eligibility as a bar to beneficial interest in HDB Properties? Clarifying the scope of section 51(10) of the HDA: Ong Chai Soon v Ong Chai Koon and others [2022] SGCA 36
In Singapore, there is a general prohibition against the purchase of any additional properties from the Housing and Development Board (“HDB”) if a person or his/her spouse already owns such property. To get around this prohibition, parties have often made trust arrangements, where legal title to the HDB property is held by one party, but the benefit of the property is enjoyed by another person holding “beneficial interest” in the property. To guard against such arrangements, Parliament enacted section 51(10) of the Housing and Development Act (Cap 129, 2004 Rev Ed), which provided that no person shall become entitled to a property sold by the HDB under any trust (whether resulting or constructive). However, two competing interpretations arose. The first was that the provision only barred "ineligible persons" from acquiring any interest in HDB property under a resulting or constructive trust. The second was that the provision barred all persons (including eligible persons) from becoming entitled to a beneficial interest in a HDB property under a trust, if they did not already have an entitlement to the property in question. In Ong Chai Soon v Ong Chai Koon and others [2022] SGCA 36, the Court of Appeal endorsed the first interpretation, holding that it would be more consistent with Parliament’s intention. The court also stated that this interpretation would equally apply to section 58(11) of the Housing and Development Act 1959 (2020 Rev Ed) (“2020 HDA”), which is the equivalent, albeit with some minor differences, of section 51(10) of the previous version of the Act.
Diminished Responsibility and the Mandatory Death Penalty in Drug Trafficking Cases: Roszaidi bin Osman v PP [2022] SGCA 75
The offence of trafficking in a controlled drug under section 5(1)(a) of the Misuse of Drugs Act 1973 (“MDA”) is one that typically attracts the death penalty. However, under section 33B(1)(b) of the MDA the court shall impose a sentence of life imprisonment in lieu of the death penalty if the offender can prove that (1) he was merely a courier and (2) he was suffering from an abnormality of mind substantially impairing his mental responsibility for the offence. In Roszaidi Bin Osman v PP, the Court of Appeal considered whether the accused’s mental responsibility for a drug trafficking offence had been substantially impaired by his major depressive disorder (“MDD”) and substance use disorder (“SUD”). In a rare 3-2 split decision, a majority of the court held that the accused's mental responsibility had been so substantially impaired. The majority found that his MDD and SUD had operated together in a synergistic manner, exacerbating his overall mental abnormality. The majority also noted that in drug trafficking offences, the court must consider whether the accused’s decision to commit the offence was itself due to his decision-making faculties being substantially impaired, instead of focussing solely on the execution of the offence.
Clarifying Presumptions and Interpretations Chong Hoon Cheong v Public Prosecutor [2022] SGCA 50
Under section 5(1)(a) read with s 5(2) of the Misuse of Drugs Act ("MDA"), any person found, beyond a reasonable doubt, to be possessing a controlled drug, knowing it is a controlled drug, and for the purposes of unauthorised trafficking, may be found guilty of drug trafficking. However, the last element (trafficking purpose) may be presumed under section 17 of the MDA if the other two elements are satisfied. What then happens if the Prosecution simultaneously mounts two alternative cases — a primary case seeking to directly prove all three elements, and an alternative case relying on the section 17 MDA presumption — and the Prosecution fails to prove its primary case but succeeds on its alternative case? The Court of Appeal (“CA”) considered this matter in Chong Hoon Cheong v Public Prosecutor [2022] SGCA 50. The CA found that the accused had neither established a reasonable doubt as to his guilt in the primary case, nor rebutted the presumption in the alternative case. However, the CA also noted that the Prosecution had needlessly complicated its case by advancing its primary case, when it could have simply relied on the section 17 MDA presumption. The CA also provided guidance on the proper approach for interpreting an accused person's statements.
Misconduct in the Bar Examinations: Consequences and the Need for Reflection and Learning Re Tay Quan Li Leon [2022] SGHC 133 and Re Wong Wai Loong Sean and other matters [2022] SGHC 237
“Lawyers are called to be ministers in the temple of justice.” So what happens when aspiring lawyers cheat during the Bar exams? In Re Tay Quan Li Leon and Re Wong Wai Loong Sean and other matters, the Singapore High Court ("HC") allowed five candidates who had cheated during the Bar exams to withdraw their applications for admission to the Bar, subject to certain terms and conditions, such as the exclusion of each candidate’s ability to bring a fresh application for Bar admission for a suitable minimum period of time. In so holding, the HC noted that the primary concern of the court in such cases is not to punish such candidates, but to ensure that they grow to become suitable for admission to the Bar. The HC also laid down a framework to aid future courts in determining the most appropriate course of action to be taken against such candidates.
Can public servants exercising statutory duties be sued for breaches of private law duties? How Weng Fan and others v Sengkang Town Council and other appeals [2022] SGCA 72
Town Council members are public servants exercising statutory duties under public law. But can they be sued in private law for breaches of private law duties? This question arose in How Weng Fan and others v Sengkang Town Council and other appeals, where a Town Council sued its Town Council members for alleged breaches of certain private law duties, namely, (1) fiduciary duties, (2) equitable duties of care and skill, and (3) a common law tortious duty of skill and care. The Singapore Court of Appeal held that the Town Council members did not owe the Town Council any fiduciary or equitable duties. They, however, owed the Town Council a common law tortious duty of skill and care (subject to the limits placed by the Town Councils Act), which they had breached in respect of some of their actions.
Restriction on the grant of anti-suit injunctions in multi-jurisdictional family litigation: VEW v VEV [2022] SGCA 34
As family litigation becomes increasingly international, different proceedings may be initiated across multiple jurisdictions. In such cases, anti-suit injunctions ("ASIs") may be granted by courts to one party to prevent the other party from initiating foreign proceedings. In VEW v VEV, one of the few cases which deals with conflict of laws in the realm of family law, the Court of Appeal (“CA”) considered that respect for comity required a careful weighing of Singapore and UK public policy considerations in family litigation. This delicate balancing exercise undergirded the CA's decision to set aside the ASI which would have restrained the ex-wife from commencing proceedings in England.
To Leave or Not to Leave – Guidelines for Leave Applications from the Appellate Division to the Court of Appeal: UJM v UJL [2021] SGCA 117
In 2021, Singapore's court system underwent a momentous change with the creation of the Appellate Division of the High Court. In UJM v UJL, the Court of Appeal (“CA”) clarified the statutory scheme allowing for appeals from Appellate Division decisions to the Court of Appeal. The CA also explained what the requirements under the Supreme Court of Judicature Act and the Rules of Court entail.
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