singapore law gazette (february 2014)

01Presidents

Message

Singapore Law Gazette February 2014

The Final Report of the Committee of Review of the Regulatory Framework of the Singapore Legal Services Sector (the Report) was released on 13 January 2014. Its release was widely reported by the media.

The Report is the culmination of a detailed and wide ranging review of the legal landscape in Singapore by leaders representing the various stakeholders in the legal industry. The legal landscape hasnt merely evolved over the last few years; it has changed rather dramatically. In terms of numbers, the Report notes that in the 100 odd years since 1912, the number of lawyers has grown 100 fold from 50 to 5,260 (the total of both local and foreign lawyers as at June 2013). That number was quickly surpassed by new members following the Mass Call on 27 July 2013 and the total number of local and foreign lawyers was about 6,000 by January 2014.

It is, however, not just in numbers that the profession has grown or changed. As our law practices become increasingly international and more foreign practices set up shop here, the traditional lines between the onshore and offshore Bar will continue to be blurred, as rightly noted by the Report. Whether in dispute resolution or in transactional work, local lawyers now more than ever before, work more frequently and more closely with their foreign counterparts. With the liberalisation of the profession set to continue, this trend of increased professional interaction is here to stay.

As stated in my Opening of the Legal Year speech last month, the growth of the offshore Bar in Singapore calls for a careful and concerted study to encourage the integration of foreign lawyers with their local counterparts. This integration must be considered and facilitated at all levels. The Society is reviewing ways to integrate the onshore and offshore Bars over numerous platforms through membership of the Society from the offshore Bar, through collaboration in continuing professional development, through sports and through joint pro bono outreach co-operation, to name a few.

The Report makes important recommendations, over various aspects of practice. I will be highlighting only certain aspects in this short message. These are:

1. The registration and licensing of lawyers and legal entities; and

2. The regulation of professional conduct of lawyers and legal entities.

Licensing

The recommendations do not call for any change to the current process for the application of Practising Certifi cates (PCs) for local lawyers. We will all continue to be on the Roll of the Supreme Court of Singapore and the present system for the annual renewal of PCs will remain as it is. It is not envisaged that foreign lawyers will be subject to our current renewal process. The recommendation is for them to do so through the proposed Legal Services Regulatory Authority (the LSRA) which will also be responsible for the licensing and regulation of legal entities.

The LSRA is the proposed single point for the licensing of all law practices, local and foreign. This also brings a uniform framework to the licensing of all law fi rms as the consolidation of all licensing requirements of all law practices under one roof does promote effi ciency and consistency. Members, however, will be comforted to note that the Report does contain an important assurance in relation to local practices. Paragraph 16.1.4 of the Report states as follows:

16.1.4 It is also envisaged that for traditional SLPs, the existing licensing requirements will continue to be applicable as the intention is to avoid onerous cost burdens. For smooth transition into the new regime, existing law practices will be issued licences automatically, and the LSRA will work with ACRA, AGCs LPS and the Law Society to make

Changes

Continued on page 4

Changes 01

Presidents Message M

Diary and Upcoming Events 06Council and Committee Updates 06Opening of Pro Bono Services Offi ce (PBSO) @ Golden Shoe 08The Four Principles that Anchor Singapores Criminal Justice System 10Criminal Law Conference 13Volunteer Thank You Dinner 2014 18

NewsN

Access to Counsel A Multi-faceted Enquiry 21Unlawful Means Conspiracy: Three Unanswered Questions 25Deutsche Bank v Chang: A Dramatic Reversal by the Court of Appeal 32

FeaturesF

Spotlight on Committees Launch of legaleSE,the Law Awareness Campaign for Social Enterprises 42

ColumnsC

Alter Ego The Legal Burden 44Bookshelf Singapore SOP Cases A Commentary on the Building andConstruction Industry Security of Payment Act by Dr Philip Chan 46

LifestyleL

Notices Professional Moves 49Information on Wills 51N 55Appointments

A

Contents

Th e Singapore Law Gazette

An O cial Publication of Th e Law Society of Singapore

Th e Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

Th e Council of Th e Law Society of SingaporePresident Mr Lok Vi Ming, SCVice Presidents Mr Th io Shen Yi, SC Mr Kelvin WongTreasurer Mr Gregory Vijayendran

Mr Lim Seng Siew, Ms Kuah Boon Th eng, Ms Rachel Eng, Mr Adrian Tan, Mr Steven Lam, Ms Sunita Sonya Parhar,

Ms Lisa Sam, Mr Anand Nalachandran, Mr Lee Terk Yang,Ms Rajvant Kaur, Ms Usha Ranee Chandradas, Mr See Chern Yang, Mr Yeo Chuan Tat, Mr Paul Tan, Mr Josephus Tan, Ms Simran Kaur Toor, Mr Grismond Tien

Editorial BoardMs Malathi Das, Mr Prakash Pillai, Mr Chua Sui Tong, Mr Gregory Vijayendran, Ms Alicia Zhuang, Mr Benjamin Teo, Mr Cameron Ford, Ms Celeste Ang, Ms Crystal Ma, Ms Debby Lim, Mr Kannan Malini, Mr M Lukshumayeh, Mr Marcus Yip, Mr Rajan Chettiar, Ms Shen Xiaoyin, Ms Supreeta Suman, Mr Vincent Leow

Th e Law Society SecretariatChief Executive O cer Ms Tan Su-YinCommunications & Membership Interests Mr Shawn TohCompliance Mr Kenneth GohConduct Ms Ambika Rajendram, Mr K GopalanContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Cli ord HangInformation Technology Mr Michael HoPro Bono Services Mr Tanguy Lim, Ms Vimala Chandrarajan,Ms Nadine Yap, Ms Babara SeetPublications Ms Sharmaine LauRepresentation & Law Reform Ms Michelle Woodworth

Publishing Reed Elsevier (Singapore) Pte Ltd trading as LexisNexisAssociate Director, Contract Publishing Ivan YapEditor ChandranieCover Design Mohd Khairil JohariDesigner Mohd Khairil JohariWeb Administrator Jessica WangAdvertising Account Manager Anthony Eng For Advertising EnquiriesTel: (65) 6349 0172Email: [email protected] Markono Print Media Pte Ltd

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Th e Singapore Law Gazette is the o cial publication of the Law Society of singapore. Copyright in all material published in journal is retained by the Law Society. no part of this journal may be reproduced or transmitted in any form or by any means, including recording and photocopying without the written permission of the copyright holder, application for which should be addressed to the law society. Written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. the journal does not accept liability for any views, opinions, or advice given in the journal. Further, the contents of the journal do not necessarily re ect the views or opinions of the publisher, the Law Society or members of the Law Society and no liability is accepted or members of the Law Society and no liability is accepted in relation thereto. Advertisements appearing within this publication should not be taken to imply any direct support for, or sympathy with the views and aims of the publisher or the Law Society.

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Continued from page 1

04Presidents Message


it administratively less cumbersome for the setting up of law practices through establishing a one-stop shop.

The majority of our members are presently in traditional SLPs (Singapore Law Practices) and are, therefore, unlikely to be affected by any changes in the licensing regime. This assurance is further augmented by the recommendation that existing law practices are to be issued licenses automatically.

Regulation

The Report recommends that the current professional conduct rules (PCR) should be reviewed and re-drafted having regard to the fact that more of our local lawyers are operating within an increasingly international environment. Signifi cantly, it is also recommended that the new PCR should apply to both Singapore lawyers as well as to foreign lawyers. This move is welcomed by the Society. It increases the visibility of the rules within which foreign lawyers are required to operate and levels the playing fi eld in that a common denominator applies similarly to both Singapore as well as foreign lawyers as to what is and what is not permissible conduct.

Under the Report, three new bodies will be set up to oversee, review and from time to time, give guidance to lawyers on ethical issues under the new PCR. The Society will be involved in all three bodies and members will also be pleased to note that the Society will continue in its present role of issuing guidance and advice to lawyers on ethical issues. The Report provides that reliance by lawyers on such advice can be a mitigating or even an exculpatory factor in disciplinary proceedings against the lawyer in question.

The Report also recommends the establishment of a single disciplinary regime for both Singapore as well as foreign lawyers practising in Singapore. Both parties will be subject to the same disciplinary process as is currently in force save that where a foreign lawyer is involved, another foreign lawyer will be appointed to the tribunal or committee constituted for the matter. For the fi rst time, foreign lawyers will be made to account to the Society, not the AGC, for their conduct. When implemented, this will be a most signifi cant change.

Having a common set of professional conduct rules and an integrated regulatory regime for foreign and Singapore lawyers recognises the fact that a foreign lawyer practising

in Singapore should not be considered nor judged, in terms of professional accountability, any differently from his local counterpart. The Report calls for foreign lawyers to join the Society and recommends the establishment of a new category of associate membership with the Society. Council has noted this and is considering not just membership options, but a slew of new initiatives, that will see integration between Singapore and foreign lawyers over a wide platform. The process of integration of Singapore and foreign lawyers has entered a new phase, and we should be ready to embrace the changes and adjustments that will accompany integration.

We can be thankful that the changes recommended by the Report do not appear to affect the majority of Singapore lawyers, at least not in the areas of licensing for existing legal entities and the regulatory regime for lawyers. I would encourage members to read the Report. It offers a great introduction to the context to these changes in the profession, discusses the current challenges in regulation and throws up insightful observations to the regulatory and practice frameworks for both Singapore and foreign practices in the coming years.

Most importantly, in my view, it is an important reminder to us that our profession is constantly evolving and the speed of change is gathering pace. The changes recommended by the Report may not affect all of us but the changes in the profession will. We may not embrace the changes, but we certainly shouldnt resist them. I think the best way forward is to survey the landscape, understand the changes, and try to ride the waves of change to help us in the race ahead!

Heres wishing all a happy and prosperous Year of the Horse!

Lok Vi Ming, Senior Counsel President The Law Society of Singapore

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Associate Corporate, 1-3PQEA reputable full service law rm which boasts a strong regional presence is now hiring associates for their corporate practice in Singapore. On the job training and traveling will be part of the role and associates will be given the chance to work with renowned multinationals on cross-border corporate matters and transactions. Singapore Bar qualications is a pre-requisite. (Ref: CPP026)

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Upcoming Events18 March 2014Ethics in Practice for Practice Trainees (Second Run)

28 March 2014Legal Profession (Solicitors Accounts) Rules for Practice Trainees (First Run)

24 & 25 April 2014Litigation Conference Workshop

6 January 2014Opening of Law Societys Pro Bono Services Offi ce at Golden Shoe 2.00pm50 Market Street

16 & 17 January 2014Criminal Law Conference Co-organised by the Attorney-Generals Chambers, Association of Criminal Lawyers of Singapore, Law Society of Singapore and Singapore Academy of LawSupreme Court Auditorium

24 January 2014Thank You Dinner for Volunteers6.30pmRecipes, A Bistro by Shatec

Diary

Approval for Litigation Conference Workshop 2014

Council approved the organising of the Litigation Conference Workshop scheduled to be held on 24 and 25 April 2014.

Guidance Note on Guidelines on Reporting Subversion of the Administration of Justice

Council approved Guidance Note 2013, Paragraph 12 which sets out guidelines on reporting subversion of the administration of justice. The Guidance Note is available for members reference at the Law Societys website www.lawsociety.org.sg (Members Library > Law Society Practice Directions and Rulings Guide 2013, at page 107).

Specialist Services Directory 2014

The Publications Committee released the 2014 edition of the Specialist Services Directory as a resource for members interested in engaging specialist witnesses or legal support services. The Directory, in electronic format, is available at the Law Societys website.

Bench and Bar Games 2014

The Bench and Bar Games scheduled from 1 to 3 May 2014 will be held in Kuala Lumpur, Malaysia.

Council and Committee Updates

06News


Diary and Upcoming Events

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The offi cial opening of PBSO @ Golden Shoe was held on 6 January 2014 with a simple ribbon-cutting ceremony offi ciated by Mr Lok Vi Ming, SC, President of the Law Society of Singapore. The occasion was graced by the presence of representatives from the Ministry of Law, Council Members, Committee Members as well as student representatives from both SMU Pro Bono Club and NUS Pro Bono Club.

The PBSO offi ce has expanded considerably over the years with the addition of a myriad of new programmes and initiatives and the staff numbers quickly outgrew the limited space at the original PBSO offi ce at the Subordinate Courts, level 5. Efforts were made to ease the space crunch by housing some of the PBSO staff at the main Secretariat offi ce at South Bridge Road (SBR) but it was not a feasible long-term solution as space at SBR was also in short supply and staff had to work in meeting rooms that were converted into make-shift work stations.

PBSO @ Golden Shoe has been leased for a period of three years after Council carefully considered several options such as purchasing/leasing larger premises to house the entire Secretariat. The decision to lease Golden Shoe was made after it was deemed to be the most viable and cost effective option.

PBSO @ Golden Shoe will provide operational support to the team that administers the Criminal Legal Aid Scheme (CLAS). The CLAS team remains at PSBO @ Subordinate Courts as the location allows the CLAS team to effi ciently attend to applicants who require legal assistance.

The additional premises at Golden Shoe also provide PBSO the opportunity to establish call centre operations to attend to telephone calls and e-mail requests from applicants who wish to register for appointments at one of the various legal clinics managed by PBSO.

Being located at Golden Shoe allows PBSO greater opportunities not only to interact with our volunteer lawyers and hold discussions on projects and future plans, but also gives the team greater fl exibility to arrange urgent discussions between applicants and volunteer lawyers at the premises, when necessary.

PBSO @ Golden Shoe50 Market Street#10-04 Golden Shoe Car Park Tel: 6536 0650 Fax: 6536 3855

Opening of Pro Bono Services O ce (PBSO) @ Golden Shoe

08News


Opening of PBSO @ Golden Shoe

Th e Singapore Law Gazette Awards 2014Qualifying Period: July 2013 to June 2014In 2013, the Publications Committee of the Law Society inaugurated the Singapore Law Gazette (the Law Gazette) Awards for best feature articles. The qualifying period for the 2014 awards is from July 2013 to June 2014 (for articles published in the Features section of the Law Gazette during this period). If you are interested in contributing an article on substantive law or a case commentary for the Features section, please write to the Publications Director, Sharmaine Lau, at [email protected]. Articles received between now till 15 May 2014 will be considered for publication in the qualifying period for the awards. However, notice should be given to the Publications Director of your interest to submit an article by no later than 15 April 2014. Two awards may be awarded, subject to the decision of the judges and the Publications Committee: Best Feature Article and Best Feature Article by a Young Lawyer *. All qualifying articles will be judged based on the following criteria:

1. Depth of analysis, display of thought leadership and whether cited in a judgment;

2. Depth of research;3. Writing style; and4. Votes by members of the Publications

Committee.

We welcome article contributions from members of the legal profession. Apart from the opportunity to share your views on an area of law of interest to you, you might stand a chance to win the coveted award. If you are interested in contributing an article, write in today! * Best Feature Article by a Singapore citizen or Permanent Resident above 35 years of age at the time of submission of the article, and who is a practising member, former member, member of the Judiciary/AGC/government body, law academic or in-house counsel. Articles written jointly by two or more persons qualify as well. Best Feature Article by a Young Lawyer who is a Singapore citizen or Permanent Resident and is 35 years of age or below at the time of submission of the article, and who is a practising member or former member.

09News


Opening of PBSO @ Golden Shoe

This commentary follows Minister for Foreign Affairs and Minister for Law K Shanmugams speech at the Criminal Law Conference 2014, where he spoke on the past, present and future of Criminal Law in Singapore. His speech can be found at http://www.mlaw.gov.sg/news/speeches/speech-by-min-at-criminal-law-conference-2014.html

Singapores approach to the criminal justice system is underpinned by four fundamental principles: (i) the laws and criminal process must protect society from crime and uphold law and order; (ii) due process and the rule of law must be observed, and sentences must commensurate with the culpability of the offender and seriousness of the offence; (iii) our enforcement agencies must be empowered to discharge their duties effectively; and (iv) equally important, offenders must be given the opportunity to be rehabilitated and reintegrated into society.

Over the past few years, the Government has made a series of changes, which when taken together, represent a decisive change in the criminal justice framework.

First, much effort has been put into preventing people from getting into trouble in the fi rst place. Our internal research shows that there is a very strong correlation between dropping out from school and the subsequent commission of crime. The Ministry of Home Affairs has thus implemented numerous early intervention programmes targeting youths at risk, guided by an Inter-Ministerial Committee chaired by Senior Minister of State Masagos Zulkifl i.

Second, accused persons have been given more help. The Subordinate Courts established the Community Justice Centre to help unrepresented accused persons. For those facing a capital charge, the Supreme Courts Legal Assistance Scheme for Capital Offences provides free legal representation. From 2014, the Government will enhance the funding to the Law Society for the operation of its pro bono criminal legal aid efforts. This will establish four tiers of assistance which will range from basic legal advice to full representation in Court. And last but not least, the Third Law School at UniSim will, inter alia, focus on training lawyers who show an interest in practising criminal law.

Third, changes have been made to our Court processes. The formalised criminal discovery regime reduces surprises at trial. The Criminal Case Resolution scheme provides an avenue for the defence and prosecution to explore the early resolution of cases. AGC and the Law Society also jointly released a Code of Practice to encourage defence lawyers and public prosecutors to observe their duties and adopt best practices during criminal proceedings. As for sentencing options, the mandatory death penalty reforms and the introduction of community sentences have given our Courts greater sentencing discretion to ensure that the punishment fi ts the crime.

Fourth, our penal philosophy is not simply grounded on notions of retribution and deterrence. Rehabilitation has to be and is an important part of our sentencing regime. This is something that the public and sometimes, even

Th e Four Principles that Anchor Singapores Criminal Justice System

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Criminal Justice System

lawyers are not aware of. Our Prisons has introduced a wide range of rehabilitation programmes for inmates. The Yellow Ribbon Project, Community Befriending Project and Community Outreach Project are some examples that support ex-offenders and prevent reoffending. As a result, our prison population decreased from 18,000 in 2002 to 12,500 in 2011. Between the year 2000 and 2010, the two-year recidivism rate for inmates also dropped from 40 per cent to about 24 per cent. In comparison, the recidivism rate in Japan was 43 per cent in 2011, New Zealand was nearly 50 per cent and it is even higher in the US.

Our approach has helped to ensure that Singapores crime rates are much lower than those of major cities. In 2012, Singapores violent crime rate was 79 cases per 100,000 people. New York had 1,333 similar cases per 100,000 people in 2012, which is 13 times that of Singapore. London had 1,828 cases per 100,000 people, while Hong Kong experienced 178 cases per 100,000 people in 2012. Singapores crime rate in 2012 was at a 29-year low, dropping almost 60 per cent from 1992 fi gures.

More changes are being planned. A Committee headed by Senior Minister of State for Law, Indranee Rajah, is looking into rationalising the whole ladder of homicide offences, including the defi nition of murder, deaths caused in violent group crime, and homicide in contexts such as rape and child abuse. The treatment and punishment of mentally disabled offenders is also being reviewed. In addition, a formalised plea bargaining framework is being studied.

Everything we have done, everything we will do, refl ect and take off from the four principles articulated at the start of this article. Protect society; Due process; Effective law enforcement; and Rehabilitation and reformation. These four principles will ensure that Singapore continues to have a robust and fair criminal justice system that serves the needs of all.

Thian Yee Sze Director-General Ministry of Law

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Criminal Justice System

The 2nd Criminal Law Conference, jointly organised by the Law Society together with the Attorney-Generals Chambers, the Association of Criminal Lawyers and the Singapore Academy of Law, was held on 16 and 17 January 2014 at the Supreme Court Auditorium. The conference was well attended with about 250 delegates from Singapore and overseas. The fi rst day of the conference opened with welcome remarks by The Honourable The Chief Justice Sundaresh Menon, followed by an opening address by Minister for Foreign Affairs and Minister for Law, Mr K Shanmugam and a keynote address by The Right Honourable Lady Justice Ann Rafferty DBE PC. Law Society President, Mr Lok Vi Ming, SC, closed the conference at the end of the second day with an address.

The programme boasted a sterling line-up of speakers and panellists from both Singapore and the region

featuring a balanced mix of the judiciary, the prosecution and practitioners. Many new and current topics of interest to criminal practitioners were presented, such as the pathology of crime and what science can and cannot teach lawyers; expert evidence and rethinking of conventional paradigms; growing a new generation of multi-disciplinary lawyers; updates by the Financial Action Task Force on money laundering; internet crime; and a cross-jurisdictional perspective on the future of the criminal bar.

Participants also had ample opportunities to mingle and network with one another through a networking cocktail reception at the Singapore Cricket Club after the conclusion of the conference.

Criminal Law Conference

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The Law Society hosted the annual Thank You Dinner for Volunteers at Recipes at The Treasury on 24 January 2014.

The dinner is an annual event to thank and show our appreciation to our volunteers who altruistically give of their time and expertise by serving on the various committees and outreach projects of the Society.

During the dinner, President Mr Lok Vi Ming, SC presented Plaques of Appreciation to the following outgoing Committee Chairpersons:

Outgoing Chairperson Committee Year(s) ServedSushil Sukumaran Nair Advocacy Committee 2013Jason Lim Chen Thor Civil Practice Committee 2011-2013Tan Heng Khim Conveyancing Practice Committee 2013Andrew Chan Chee Yin Insolvency Practice Committee 2010-2013Michael Hwang, SC * International Relations Committee 2011-2013Chenthil Kumar Kumarasingam Law Awareness Committee 2012-2013Gregory Vijayendran Publications Committee 2005-2013Mark Goh Aik Leng * Small Law Firms Committee 2013Chiam Tao Koon Social and Welfare Committee 2013Genevieve Doris Lai Young Lawyers Committee 2012-2013Chan Leng Sun, SC Alternative Dispute Resolution

Committee2007-2013

* Unable to attend

Prizes were also given to the winners of the inaugural Singapore Law Gazette Awards for 2013 for best feature articles. The winners were (in no particular order):

Anthony Cheah Nicholls (Baker & McKenzie.Wong & Leow) Michael Hwang, SC (Michael Hwang Chambers) Associate Professor Dr S. Chandra Mohan (SMU School of Law) Priscilla Chia (SMU School of Law) Tham Lijing (Tan Rajah & Cheah)

The Law Society would like to thank everyone who attended the dinner and all the volunteers who contributed to the work and activities of the Law Society, thus furthering the Societys mission to serve our members and the community.

Volunteer Th ank You Dinner 2014

Thank You Dinner

Outgoing Chairperson of the Advocacy Committee, Sushil Nair

Jason Lim, Outgoing Chairperson of the Civil Practice Committee

Outgoing Chairperson of the Insolvency Practice Committee, Andrew Chan

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Thank You Dinner

Tan Heng Khim, Outgoing Chairperson of the Conveyancing Practice Committee

Professor S. Chandra Mohan, SLG award winner

Genevieve Doris Lai, Outgoing Chairperson of the Young Lawyers Committee

Priscilla Chia, SLG award winner

Outgoing Chairperson of the Publications Committee, Gregory Vijayendran

Chan Leng Sun, SC, Outgoing Chairperson of the ADR Committee

Anthony Cheah Nicholls, SLG award winner

Outgoing Chairperson of the Social and Welfare Committee, Chiam Tao Koon

Th am Lijing, SLG award winner

20News


Thank You Dinner

Right of access to counsel is an important part of due process. When a person is arrested, he is entitled to meet his lawyer within a reasonable time. What is a reasonable time? This article proposes a conceptual framework to approach this question.

Access to Counsel A Multi-faceted Enquiry

This article is about the right of access to counsel found at art 9(3) of the Constitution. Right of access to counsel is an important part of due process. When a person is arrested, he is entitled to meet his lawyer within a reasonable time.1 What is a reasonable time? How can it be shown that a period of time is reasonable? These are useful practical questions. Yet they cannot be answered in a theoretical vacuum. It will be contended that in order to assess what reasonable time means, the enquiry must start and end with the values that underpin the administration of criminal justice in Singapore.

James Raj s/o Arokiasamy v Public Prosecutor

The applicant in James Raj s/o Arokiasamy v Public Prosecutor [2014] SGHC 10 (James Raj) was suspected of having carried out computer attacks on several websites under the alias The Messiah.2 He was also charged for a number of drugs-related offences. He had been arrested on 4 November 2013. His lawyers requested access to the applicant on 11 November 2013, which was rejected. On 3 December 2013, the police fi nally allowed the applicant access to his lawyers.

In the meantime, the applicants lawyers had fi led a Criminal Motion on 13 November 2013 seeking a declaration that there was an immediate right to counsel upon the request of a person remanded for investigations. It would appear that after the hearing on 15 November 2013, the applicants lawyers made further submissions on an alternative position: that an arrested person was entitled access to counsel after a reasonable time of 48 hours.3

Judgment was delivered on 14 January 2014. By that time, the applicant had already been granted access to his counsel (on 3 December 2013). But the Court nonetheless proceeded to make some valuable observations.

First, the Court held that it was bound by the Court of Appeals decision in Jasbir Singh and another v Public Prosecutor [1994] 1 SLR(R) 782. That case had held that there was no immediate right to counsel.4 Instead, the right to counsel arose only after a reasonable time.

Second, the Court affi rmed that the burden was on the prosecution to satisfy the Court that it was reasonable to withhold access to counsel.5 Third, the Court held that on

21Feature


the facts (or lack of facts) before it, the prosecution failed to show that it had been reasonable to withhold access to counsel, at least from 11 November 2013 onwards.6 It is perhaps these last two aspects of the judgment, rather than any novel statement of the law, that has excited some comment.7

A Reasonable Time

The concept of reasonableness is essentially a value judgment, the determination of which will usually turn on the facts of each case. Reasonableness is not capable of precise ascertainment. Hence, in James Raj the Court expressly declined to identify the exact moment in time at which the applicant became entitled to consult counsel.8 How then can a reasonable time be measured?

In James Raj, the Courts approach to what constituted a reasonable time to access counsel ultimately reduced to this question: whether access to counsel would have hindered police investigations.9 The Court accepted the prosecutions submissions that investigations were complex and lengthy. But what the prosecution had to show was why and how access to counsel would have undermined those investigations. In this regard, the prosecution failed to furnish substantive grounds in support of its claim that permitting the applicant access to counsel would jeopardise those investigations.10 Accordingly, it had not been reasonable for the prosecution to withhold access to counsel.

The Courts approach in James Raj (ie whether access to counsel would undermine police investigations) appears to have been the result of the way in which the parties had presented their submissions, rather than a general and exhaustive statement of how the reasonable time issue must be analysed. The stark question of whether access to counsel would undermine police investigations may have been appropriate on the facts in James Raj. But as a general approach, its focus seems too narrow.

For example, to what extent must investigations be hindered before the prosecution discharges its burden? Is it enough for there to be a risk that investigations may be jeopardised? Does it matter how serious the committed offence is? If the police and prosecution explain in good faith how allowing access to counsel would jeopardise investigations, is the Court really in a position to disagree?11 And if not, what margin of appreciation should be given to the police? Simply asking whether access to counsel will hinder investigations does not answer any of these questions.

A Proposed Conceptual Framework

The content of rights should take into account the societal values and norms within which those same rights operate. Hence the idea of reasonable time in the context of the art 9(3) right should similarly depend on the broader policy considerations that underpin the criminal justice system in Singapore. Indeed, certain observations by the Court of Appeal in Tan Chor Jin v Public Prosecutor [2008] 4 SLR(R) 306 lend support to such an approach.12 The traditional model of criminal justice in Singapore is that of crime-control.13 Such a model prioritises the repression of crime in society. The model is premised on the effi cient operation of administrative and prosecutorial expertise. However, the Minister for Law has recently described what he called a shift in the Governments position on criminal justice. At the Opening Address of the Criminal Law Conference 2014 held in Singapore on 16 and 17 January 2014, the Minister described four main principles which he said the administration of criminal justice is based on:

1. Protection of society;2. Due process for accused persons;3. Effective law enforcement; and4. Rehabilitation and reintegration of offenders.

The Minister also said that it was necessary to balance the effective suppression of crime with fairness to the accused. So it is arguable that whereas in the past Singapore may have presumptively favoured protection of society over due process, there is now a discernible need to conduct some form of balancing exercise between the two in order to fi nd the sweet spot for our maturing society. It is submitted that the four principles identifi ed by the Minister create a convenient prima facie framework within which the content of the right of access to counsel (in particular, what amounts to a reasonable time) can be determined.

Protection of society and effective law enforcement are two principles that pull in the same direction. Protection of society would allow the Court to consider wider policy driven objectives bearing on societys interests. For example, the Court could take into account the extent to which society was or could be endangered, such as whether the full extent of the crime has been uncovered. Take a person who is arrested on the suspicion of planting a bomb somewhere in Orchard Road. The bomb is not yet found. The Court should be entitled to take account of the risk and harm of detonation in deciding whether the suspect should be granted access to counsel. On the other hand, if the bomb is recovered and found to be a hoax, the Court should also be allowed to

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take that fact into account in deciding whether the suspect is entitled to access legal advice.

The principle of effective law enforcement would require consideration of subtly different factors. These factors would be primarily focused on whether access to counsel would hinder investigations in the particular case, and if so how. This is the enquiry undertaken by the Court in James Raj.

Pulling in the opposite direction are the principles of due process and rehabilitation and reintegration. Due process would require the Court to recognise that access to counsel is crucial for ensuring fairness to the suspect.14 The Court would have to ask to what extent protection of society and effective law enforcement justify delaying access to counsel. Proportionality may surface. For example, ceteris paribus, it seems intuitively correct that the less likely access to counsel will hinder investigations, the shorter period of time a suspect should be denied counsel.

The principle of rehabilitation and reintegration reinforces that of due process. There is nothing more conducive of embitterment than a person who is wrongly convicted and who believes that he was also denied due process. Take the hypothetical example of a person who is subtly coerced into giving a false confession15 and is convicted solely on the basis of that confession (which he is not allowed to retract at the trial). Or take another hypothetical where the police offi cer recording the statement refuses to record down certain facts that later turn out to be material (and which the suspect did not know was material at the time), and the trial Court later draws an adverse inference against the suspect on the basis of the said omission.

Tailored Solutions

The conceptual framework set out above can provide a basic scheme to classify the various factors relevant to determining what a reasonable time to access counsel is. Just as importantly, it can also help frame what the appropriate order or solution ought to be. In this regard, it should be appreciated that access to counsel is not necessarily an all or nothing dichotomy. As the Court in James Raj observed (at [14]):

It may be argued that if access to counsel is permitted, there is nothing to stop the applicant from consulting his counsel for hours upon hours, thereby depriving the police of much time which could be spent questioning him. Or, the applicant might refuse to be interviewed by the police unless his counsel was present. But if these are the concerns, they are better addressed by delineating the content of the right to counsel, eg

specifying the amount of time which the arrested person is entitled to spend with his counsel per day, rather than by doing away with the right entirely so long as investigations are ongoing. Access to counsel is not unlimited and unrestricted access. The investigators also need access to the suspect.

To the extent that the right of access to counsel is not untrammelled or unqualifi ed,16 the key question then becomes the extent to which the said right should be qualifi ed. Following James Raj, it appears that it is open to the Court to grant fl exible access to counsel depending on the particular circumstances of the case eg one hour for the lawyer every week to explain to the suspect his basic rights and options.17

Additionally, it is suggested that the right of access to counsel can be upheld in different ways, and not only through a direct grant of access to counsel. To the extent that the art 9(3) right ensures due process, the right of access to counsel can be upheld indirectly through ensuring that the accused is given a fair trial.

To provide one illustration, assume that the police and prosecution have provided cogent reasons for believing that, in a particular case, even brief access to counsel will hinder investigations which are needed for the collection of objective evidence and witness statements to be used against the suspect. Further assume that the prosecution is asking for the suspect to be denied access to counsel for an inordinately long period of say one month. The suspects lawyer argues that his client presents no prevailing danger to society and that his client has complained through an intermediary that the police is pressuring him to confess. At fi rst sight, the Court appears (un)comfortably emplaced atop Mortons fork.

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But the dilemma may be resolved if the Court asks the prosecution to undertake that any incriminating statements extracted from the suspect before access to counsel is granted will not be adduced at the trial against the suspect. Alternatively, that the prosecution will not seek to draw an adverse inference against the suspect at the trial for any material omissions in statements given before the suspect meets his lawyer. If the prosecution is willing to give such an undertaking, it not only reinforces its position that critical investigations are being underway (because it may be inferred that the prosecution expects to uncover other evidence to convict), it also underscores the Courts commitment to due process. And while compromises rarely please all parties, this compromise is fair to prosecution and defence for four reasons. First, the police and prosecution are given the free hand they require to conduct investigations. Second, if the police has only one confession to show after their requested one month of unimpeded investigations, that would be cause for some worry perhaps they arrested the wrong person? Third, the due process concern that a confession was coerced is minimised (because it will not be used in trial). Fourth, if police investigations do uncover objective evidence to convict the suspect, there is no injustice of a wrongful conviction.

Conclusion18

It has been submitted that the art 9(3) constitutional right of access to counsel ought to be interpreted in the light of multi-faceted policy concerns. The best way to address as many of these concerns as possible is for parties to avoid an all or nothing dichotomy. The duty of the Prosecution is not to secure a conviction at all costs. Instead, it is to uphold the administration of justice in assisting the Court in coming to the correct decision.19 To the extent that due process forms an integral part of the administration of criminal justice in Singapore, the Prosecution and Defence counsel are in this regard partners in a common enterprise. When a dispute over access to counsel arises, parties should as far as possible work with the Court towards fi nding a solution that protects society, respects due process, and allows effi cient law enforcement.

* BA (Oxon), BCL

Notes

1 Jasbir Singh and another v Public Prosecutor [1994] 1 SLR(R) 782 at [47]-[48]. See also the doubts expressed by Choo Han Teck J in James Raj s/o Arokiasamy v Public Prosecutor [2014] SGHC 10 at [6].

2 At [1] of the Judgment.

3 See [8] and [9] of the Judgment.




7 Eg see Police need to justify delaying access to lawyers, says judge, Today (15 January 2014).




11 Especially since Singapore adopts the crime-control model, under which law enforcement agencies are trusted to act with integrity and e ciency: From Justice Model to Crime Control Model, Address by Chief Justice Chan Sek Keong at the International Conference on Criminal Justice Under Stress, 24 November 2006.

12 Th e Court of Appeal made the following observations in relation to the issue of whether the right of access to counsel can be waived (at [68]-[70]):

68 It is apparent that for the purposes of determining whether the denial of counsel to an accused person amounts to a violation of the latters constitutional right, a common foundation upon which the foreign cases surveyed above rests is the universal concept of fairness to the accused Such an approach should also factor in the competing interests (if any) of other concerned parties, while maintaining at the same time the focus on whether any undue unfairness or prejudice has been caused to the accused as a result of his lack of representation in short, a holistic approach should be adopted

70 If Tans would-be counsel were allowed by the court to cross-examine the witnesses all over again and devise new submissions, that would surely be unfair to the Prosecution, which had already presented its case, and, indeed, to all the other relevant parties, such as the witnesses if they had to be recalled Put another way, fairness is a multi-faceted concept even in criminal proceedings, and a concession to an accuseds right to counsel cannot be allowed to progress to an abuse of the judicial process.

13 Chan Sek Keong, Th e criminal process Th e Singapore model (1996) Sing. L. Rev. 433 at 440.

14 Tan Chor Jin v Public Prosecutor at [68].

15 Police impropriety in the extraction of admissions or confessions, while perhaps rare, are not unheard of: see Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 at [140]. Th e line between lawful and unlawful encouragement can also be quite ne.

16 See eg Tan Chor Jin v Public Prosecutor at [54].

17 Th ere is some analogy perhaps to be drawn with Court orders granting parental access to a child.

18 See also a more general discussion in Chen Siyuan and Kenneth Tan Jun Hua, Further Clari cation from the High Court on the limits to the constitutional right to counsel, SLW Commentary Issue 3/Jan 2014.

19 Muhammad bin Kadar and another v Public Prosecutor at [109].

Tham Lijing* Associate Tan Rajah & Cheah E-mail: [email protected]

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This article discusses three prospective issues on the proper scope of the tort of conspiracy by unlawful means that were raised by the Singapore Court of Appeal in a recent decision.

Unlawful Means Conspiracy: Th ree Unanswered Questions

Introduction

When and how should the common law regulate business conduct that results in economic harm? In the sphere of economic torts, there are no easy answers to these questions. In particular, the tort of conspiracy by unlawful means illustrates the diffi culties faced by the Courts in setting principled legal limitations on business conduct that causes economic harm.

The recent Singapore Court of Appeal decision in EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another1 (EFT Holdings) raised three issues for consideration in a future case on the proper scope of unlawful means conspiracy in Singapore. This article examines, after providing a brief historical overview of the tort of conspiracy by unlawful means, the three prospective issues raised by the Court of Appeal in EFT Holdings.

History of the Tort of Conspiracy by Unlawful Means

In An Analysis of the Economic Torts, Hazel Carty provides a concise summary of the history of the tort of conspiracy by unlawful means in England as follows:

Both the crime and tort of conspiracy grew from a common root, the writ of conspiracy, dating from Edward I. This gave a criminal and civil remedy for the abuse of legal procedure. With the development of the action on the case relief became available in a wider area of combined action, rather than simply abuse of legal process. However, as Oliver J pointed out in Midland Bank Trust Co v Green (No 3) in the more normal case of a concerted commission of a tort there was little advantage in an action for conspiracy when an action equally lay for the commission of the tort itself. Indeed, the question whether there was a separate tort of

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conspiracy was still a matter of debate in 1920. Salmond at this time doubted whether the tort existed, contending that the cases on conspiracy were in fact examples of the tort of intimidation, though this was condemned as the leading heresy by Lord Dunedin in Sorrell v Smith. Interestingly, in more recent times, Stevens argues that there is no such independent tort: where the unlawful means constitute a tort, the principle of attribution of one conspirators actions to them all means that all will be held liable as joint tortfeasors without the necessity of invoking any separate tort.2

The lukewarm attitude to the unlawful means conspiracy tort3 in England was, to some extent, mirrored in the 1996 Singapore Court of Appeal decision in Quah Kay Tee v Ong and Co Pte Ltd.4 In that case, the Court of Appeal did not appear to defi nitively endorse the existence of the tort in Singapore by observing that:

Quite apart from the question as to whether a fraudulent preference constitutes unlawful means, we thought that even if there were a tort of conspiracy by unlawful means here, then presumably, this was unlawful precisely because the transfer was caught by the Elizabethan Statute.5 (emphasis added)

Be that as it may, judicial attitudes have changed in England, as we will see later in this article, and in Singapore. In recent years, besides EFT Holdings, claims based on the tort of conspiracy by unlawful means have been pleaded and adjudicated upon in a number of cases before the Singapore Courts involving, for example, the misappropriation of monies, the removal of a director and even the act of commencing a lawsuit.6

Today, the basic elements of unlawful means conspiracy are well settled in Singapore. As noted in EFT Holdings, in order to succeed in a claim for unlawful means conspiracy, the plaintiff must prove that:

(a) there was a combination of two or more persons to do certain acts;

(b) the alleged conspirators had the intention to cause damage or injury to the plaintiff by those acts;

(c) the acts were unlawful; (d) the acts were performed in furtherance of the

agreement; and (e) the plaintiff suffered loss as a result of the conspiracy 7

Yet, the continued existence of the tort of unlawful means conspiracy remains unstable, possibly as a result of its shaky foundations and the uncertain ambit of some of

its elements. EFT Holdings has provided another twist to the story so far, which makes the future trajectory of the tort of conspiracy by unlawful means in Singapore rather unpredictable.

Moreover, as noted by the Court of Appeal in EFT Holdings, the quest for a unifi ed theory of economic torts had created additional complexities in defi ning the scope of the tort, in particular the element of intention:

A third proposition that may be gleaned from the authorities is that these torts require some element of intention or intentional harm for liability to be imposed , and that other, lesser, mental states would not suffi ce. Beyond this, not much else was clear. Was the scope of the required intention the same for all torts? Was there even a unifying theory?8

Grand theories aside, it is important to understand what the element of intention entails in the context of unlawful means conspiracy, as it shares a symbiotic relationship with the other elements of the tort.

Th e Law on Intention to Injure

In EFT Holdings, the Court of Appeal reviewed the two recent English House of Lords decisions in OBG Ltd and another v Allan and others9 (OBG) and Revenue and Customs Commissioners v Total Network SL10 (Total Network), which were concerned with the tort of causing loss by unlawful means (amongst others) and the tort of unlawful means conspiracy respectively. In the light of these developments in England, the Court of Appeal raised four issues on the proper scope of unlawful means conspiracy under Singapore law. Only one of these issues, which concerned whether the core element of unlawfulness in unlawful means conspiracy resided in the fact of combination between the parties, was defi nitively addressed by the Court of Appeal.

In this regard, the Court of Appeal held that the crux of unlawful means conspiracy required not only a combination or agreement of two or more persons to do certain unlawful acts and concerted action taken under that agreement, but also, more importantly, the intention to injure by unlawful means. Such conduct was unlawful, even if the principal motive was to benefi t [the defendant].11

The Court of Appeal further held that the requisite mental element for an unlawful means conspiracy was that [i]njury to the claimant must have been intended as a means to an end or as an end in itself.12 Reasonable foreseeability that the claimant would or might suffer harm as a result of

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the defendants act was insuffi cient.13 The requirement of intention was necessary to distinguish between the tort of negligence (which imposed liability for a failure to meet an objective standard of reasonable conduct, no matter the state of mind of the actor) and the economic torts (which recognised the need to keep liability within acceptable bounds, in view of the effect that these torts have on competition and the boundaries of acceptable conduct in the marketplace).14

For the same reason, the Court of Appeal held that although, in principle, a conspiracy can be targeted at a class of persons, the members of that class must be ascertainable at the time the conspiracy is entered into or it must at least be shown that the conspiracy was referable to that person having regard to the mental element for conspiracy.15

The next section of this article focuses on the three remaining prospective issues on the proper scope of unlawful means conspiracy.

Issue 1: Continued Relevance of the Conspiracy Tort in Singapore as a Basis of Civil Liability

The Court of Appeal observed that [a] preliminary question is whether unlawful means conspiracy continues to have any relevance in our law as a basis of civil liability.16 Although it queried whether the torts of lawful means conspiracy and unlawful means conspiracy should continue to exist in Singapore, it did not propose to answer that question as it was not argued in EFT Holdings.17

Whether the conspiracy tort should continue to exist in Singapore may appear to be a surprising question, given, as noted by Hazel Carty, the torts recent resurgence in Commonwealth case law and in the House of Lords discussion in Total Network.18 It is also a highly theoretical question, which goes to the heart of the rationale for the tort. In this regard, Hazel Carty rejected the twofold rationale for the tort offered in Total Network.19 The fi rst rationale is that a combination of conspirators was more oppressive or dangerous than a single actor.20 As Lord Neuberger observed in Total Network, the law of tort takes a particularly censorious view where a conspiracy is involved.21

Hazel Carty argues, however, that the mere fact that group activity makes the harm possible should not itself justify liability, in view of other established causes of action in civil law that are available.22 In EFT Holdings, the Court of Appeal noted that the rationale of group activity, in the context of the tort of conspiracy by lawful means, had been criticised in older English cases and in a Singapore High Court decision.23

The second rationale for the tort of conspiracy is the intense focus on intention, which distinguished it from the other economic torts.24 In Total Network, Lord Walker observed that the intention of the conspiracy to infl ict harm was critical, as it focused on the fact that the claimants damage is caused by two or more persons acting in concert to carry out an unlawful plan.25

Hazel Carty argues, however, that as far as unlawful means conspiracy is concerned, the element of intention is not suffi ciently distinctive based on English cases decided after Total Network, which suggested that the same intention applied to the tort of causing loss by unlawful means.26 The Court of Appeal in EFT Holdings effectively rejected this view as it held that the core element of unlawfulness in unlawful means conspiracy was the intention to injure by unlawful means, rather than the combination per se.27 Focusing on the combination alone would be erroneous without also looking at the injury being the purpose rather than the consequence of the combination.28 (emphasis original)

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In summary, although the justifi cation for the fi rst rationale of group activity has been questioned in Singapore (albeit not in the context of unlawful means conspiracy), the Court of Appeal in EFT Holdings had expressly, and indeed, emphatically endorsed the second rationale of intention as underpinning the tort. This leaves the question of whether the Singapore Courts should continue to recognise unlawful means conspiracy fi nely balanced.

Another crucial point that the Court of Appeal in EFT Holdings did not resolve was whether unlawful means conspiracy was merely a form of secondary liability for a civil wrong such as joint tortfeasorship in deceit. The House of Lords in Total Network had held that unlawful means conspiracy was not such a form of secondary liability, especially since it was the only recourse available to the claimants on the facts of Total Network.29 The answer to this question may well depend on whether the Singapore Courts accept that some types of criminal conduct may constitute unlawful means (as discussed below) and if so, whether such conduct can give rise to civil wrongs that are independently actionable under the joint tortfeasorship principle or other economic torts.

Even if the Singapore Courts conclude that unlawful means conspiracy is merely a form of secondary liability, it may not justify abolishing the tort given that the unlawfulness of unlawful means conspiracy, as identifi ed by the Court of Appeal in EFT Holdings, resides only in both the combination and the intention of the conspirators.

Issue 2: Unlawful Means and Actionable Civil Wrongs

The second prospective issue was whether the Singapore Courts should, as the House of Lords did in Total Network, reject the notion that unlawful means are confi ned to actionable civil wrongs of the kind enunciated by the majority in OBG.30 Because the element of unlawfulness was not disputed in EFT Holdings, the Court of Appeal did not have to decide on this point. However, it observed that there was much force in the view that unlawful means for the purposes of unlawful means conspiracy ought not to be so limited and that a previous Singapore Court of Appeal decision had suggested that unlawful means should extend to criminal conduct.31

In the context of the tort of causing loss by unlawful means, the fundamental concern behind including all criminal conduct under unlawful means is that it tortifi es such conduct,32 given that it is not for the courts to create a cause of action out of a regulatory or criminal statute which Parliament did not intend to be actionable in private law.33 In OBG, the majority of the House of Lords held that

unlawful means should be limited to acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant, and should exclude acts which may be unlawful against a third party but which do not affect his freedom to deal with the claimant.34

In particular, Lord Hoffman preferred to restrict unlawful means to civil wrongs, and did not wish to rely on an artifi cially narrow meaning of the concept of intention to keep unlawful means within reasonable bounds.35 Otherwise, any defendant who had used unlawful means could argue that he had intended only to enrich himself, or protect himself from loss, to avoid liability.36

On the other hand, Lord Nicholls in OBG justifi ed extending unlawful means to include criminal conduct on the basis that the rationale for the tort of causing loss by unlawful means was to curb clearly excessive conduct and to provide a remedy for intentional economic harm caused by unacceptable means.37 In his view, adopting Lord Hoffmans interpretation would represent a radical departure from the purpose for which the conspiracy tort was developed and bring about an unjustifi ed and unfortunate curtailment of the scope of this tort.38

If, as the Court of Appeal held in EFT Holdings, the conspirators intention is the bedrock of unlawful means conspiracy, there should be no reason to restrict the scope of unlawful means by which harm is intentionally infl icted on the claimant. Crimes and torts, as Lord Walker observed in Total Network, can achieve the same end.39 It is irrelevant that criminal conduct on the part of a single individual, would be actionable as some other tort.40 Ironically, though, by expanding the scope of unlawful means, the conspiracy tort is given real content,41 which sustains its continued existence. These points pose a real danger of entering into a tangled web of circular arguments. It is submitted that unless the overarching question of tortifying criminal conduct is faced squarely, it may not be prudent to address this issue as a discrete question without considering its impact on, and interaction with, the other two issues.

Issue 3: Criminal Conduct Where to Draw the Line?

The third unanswered question that the Court of Appeal raised was the more diffi cult question on the limits that the law should draw in imposing liability for unlawful means conspiracy based on criminal conduct.42 It observed that even Total Network did not draw a clear line on such liability.43

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A striking example of how this issue can arise in practice was provided by Lord Walker in OBG. Lord Walker commented that in the sphere of economic torts, a control mechanism was necessary to prevent the notion of unlawful means from getting out of hand.44 He cited the example of a pizza delivery business which was more successful than its competitors because its drivers regularly exceed[ed] the speed limit and jump[ed] red lights, and suggested that the drivers criminal conduct should not be construed as using unlawful means.45

Lord Walker opined that the appropriate control mechanism was found in the nature of the disruption caused, as between the third party and the claimant, by the defendants wrong, and not in the closeness of the causal connection between the defendants wrong and the claimants loss.46 In Lord Walkers example, it would appear that the drivers criminal conduct did not disrupt the competitors business per se, even though it caused their business to suffer ultimately.

Subsequently, Lord Mance in Total Network agreed that the pizza delivery business in Lord Walkers example should not be liable, even if the claim be put as a claim in conspiracy involving its drivers and directors.47 Lord Mance justifi ed this view on the basis that a defendant should not be held liable for conduct that was wrongful for reasons which have nothing to do with the damage infl icted on the claimant.48

To some extent, Lord Mances justifi cation may have been begging the question since no specifi c rationale was offered as to why the drivers wrongful conduct had nothing to do with the damage infl icted on the competitors of the pizza delivery business. One would have thought that it was precisely the drivers criminal conduct which caused those competitors to lose out in terms of speed and, hence, customers.

This may well have been why the Court of Appeal in EFT Holdings, after citing Lord Mances reasoning and Hazel Cartys criticism of Total Network in drawing a vague line for criminal conduct that would attract tortious liability, suggested that Lord Walkers example of the pizza delivery business might be more easily resolved through the test of instrumentality.49 In OBG, Lord Nicholls had observed that in three-party situations under the tort of causing loss by unlawful means, criminal conduct whereby the defendant sought to injure the claimants business through the instrumentality of a third party should be included in the category of unlawful means.50 The instrumentality of a third party was established if the claimant was wrongfully and intentionally struck at through others.51 Hence, the drivers were not instrumental to harming the competitors business as their criminal conduct [was] not an offence

committed against the rival company in any realistic sense of that expression.52 The Court of Appeal agreed with Lord Nicholls reasoning and added that even if the pizza delivery business had instruct[ed] its drivers to drive at excessive speeds in order to reduce delivery times, it would not amount to an unlawful means conspiracy because the interest implicated was road safety.53 By contrast, if two pizza delivery companies agree[d] to purposefully violate parking regulations and instruct their drivers to park their vehicles across the car park entrance of a third competitor in order to injure the third competitors business, it would amount to an unlawful means conspiracy because the interest implicated was the third competitors interest to be free from targeted unlawful interference in its activities.54

Nevertheless, the Court of Appeal emphasised that its views were not defi nitive and that the issue of where to draw the line for criminal conduct may warrant further argument, analysis and consideration in a future case.55 This is an important caveat because the Court of Appeal did not expressly discuss Lord Walkers nature of disruption test, which may also satisfactorily resolve its expanded pizza delivery scenarios. Moreover, Lord Walker was of the view that Lord Nicholls test of instrumentality was wider than the nature of disruption test and, more importantly, did not fi t happily with bootlegging cases where the defendants acts were the direct cause of the claimants economic loss, but the claimant had no cause of action as the defendants acts did not interfere with the claimants performance rights.56 These points merit further scrutiny in a future case.

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Conclusion

The three interlocking issues of continued relevance, unlawful means and criminal conduct will, if and when resolved by the Singapore Courts in a future case, drastically alter the tort of unlawful means conspiracy as it stands in Singapore. Should it be abolished, it will no doubt give comfort to those who take the view that Parliament, and not the Courts, would be better placed to draw the line between lawful and unlawful business conduct which results in economic harm. On the other hand, if the tort of unlawful means conspiracy is retained in some form, it is likely that its raison detre will continue to come under scrutiny given its potential application to a multiverse of commercial scenarios.

* The views expressed in this article are the personal views of the author and do not represent the views of RHTLaw Taylor Wessing LLP.

Notes

1 [2013] SGCA 64.

2 Hazel Carty, An Analysis of the Economic Torts (2nd ed, United States: Oxford University Press, 2010), pp 124-125.

3 Ibid, at 125.

4 [1996] 3 SLR(R) 637.

5 Ibid, at [47].

6 See Visionhealthone Corp Pte Ltd v HD Holdings Pte Ltd and others and another appeal [2013] SGCA 47; Han Cheng Fong v Teo Chong Nghee Patrick and others [2013] SGHC 51; Strategic Worldwide Assets Ltd v Sandz Solutions (Singapore) Ptd Ltd and others (Tan Choon Wee and another, third parties) [2013] 4 SLR 662.

7 EFT Holdings at [112].

8 EFT Holdings at [77]-[78].

9 [2008] 1 AC 1.

10 [2008] 1 AC 1174.


12 Ibid, at [101].

13 Ibid, at [99].

14 Ibid, at [100].

15 Ibid, at [111].

16 Ibid, at [90].

17 Ibid.

18 Hazel Carty, Th e Tort of Conspiracy as a Can of Worms in Stephen GA Pitel, Jason W Neyers and Erika Chamberlain, eds., Tort Law: Challenging Orthodoxy (United Kingdom: Hart Publishing Ltd, 2013) 391 at 411.

19 Ibid, at 409-410.

20 Ibid, at 409. See also per Lord Walker in Total Network at [77].

21 Total Network at [221].

22 Supra (note 18 above) at 410.


24 Supra (note 18 above) at 410. See also per Lord Walker in Total Network at [77].

25 See per Lord Walker in Total Network at [77].

26 Supra (note 18 above) at 410.


28 Ibid, at [96].

29 See eg per Lord Neuberger in Total Network at [225]-[226], as noted in EFT Holdings at [118].


31 Ibid.

32 See per Lord Nicholls in OBG at [152].

33 See per Lord Ho man in OBG at [57].


35 See per Lord Ho man in OBG at [60] and [135].




39 See per Lord Walker in Total Network at [91] and [93].

40 See per Lord Walker in Total Network at [94].

41 Ibid.


43 Ibid.

44 See per Lord Walker in OBG at [266].

45 Ibid.

46 See per Lord Walker in OBG at [269].

47 See per Lord Mance in Total Network at [119].

48 Ibid.

49 EFT Holdings at [92]-[93]. See per Lord Nicholls in OBG at [152] and [159].

50 See per Lord Nicholls in OBG at [152] and [159].




54 Ibid.

55 Ibid.

56 See per Lord Walker in OBG at [268]-[269].

Alvin Chen* Head, Professional Services Support RHTLaw Taylor Wessing LLP E-mail: alvin.che