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Guidelines to Business Law examination answers
Issue
What is the problem to be solved?
Purpose is to seek a remedy for a private wrong
What are the applicable legal principles?
General Principle:
Define the principle
Explanation
Supporting cases/statue/examples
Law
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Public Prosecutor is the person suing
Accused is the person sued
Purpose is to punish the perpetrator of the crime, to
deter others from committing the same crime
Ratio Decidendi: “rationale for deciding” (Material fact of the case and the decision based on the material fact.)
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Exception/Limitations:
Define the principle
Explanation
Supporting cases/statue/examples
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Application
Plaintiff is the person suing
Defendant is the person sued
Apply principles to relevant facts with accurate REASONING
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As a general rule, the ratio decidendi of a case refers to the principle or rule of law which forms the basis of the
judgement. It entails a binding authority, where all future Courts must follow.
Steps to use:
1. Extract and use only material facts
2. Decision based on the material facts
3. Lawyers can construct different ratios to skew future cases to their favour.
Process of Judicial decision-making
- Evidence: P’s version and D’s version
- General facts: Judge decides which version to follow
- Material facts: Judge decides which facts are important
- Decision: Ratio Decidendi
There is different level of abstraction- Judge can accelerate the principle or to take a step back depending on the policy.
Obiter Dicta: “a saying by the way”
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As a general rule, the obiter dicta of a case is a observation made in passing based on opinion, chance remark or
hypothesis. It does not carry binding authority, only persuasive. Future Courts may or may not follow this opinion.
Usually identified by using words “suppose”, “assume”, “for example” (It is based on hypothetical facts)
An obiter’s persuasiveness is based on:
Hierarchy of Court, Reputation of Judge, Rigour of Analysis, Reasonableness
Judiciary in Singapore
Consists of
Chapter 1 & 2 Law & Legal System, Singapore Legal System
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Court of Appeal
A set of rights and obligations in a given society which are enforceable.
A moral right is not a law and cannot be enforced.
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Highest Court, except for the presidential plea
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Chief Justice: CJ Chan Sek Keong
Justice of Appeal: Justice Andrew Phang
Function of the Court of Appeal
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Appellate jurisdiction
Hears cases from the high Court
Sources of Laws
Consists of
Common Law
Civil Law
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Uncodified, based on past precedents
Civil Law
Law between individuals
Case Law (Common Law)
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Law made by judges
Public Law
Substantive Law
Civil Case
Codified by legislation; compiled into written codes
Classification of Laws
Criminal Law
Wrongs in society
Statutory Law
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Law made by parliament
Private Law
Procedural Law
Cases
Criminal Case
High Court
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Note: Court of Appeal + High Court = Supreme Court
- Justice
- Judicial Commissioner
Function of the High Courts
- Cases which are over the cap of the Sub Courts are
started at the high Courts
- Appellate jurisdiction as well, it hears cases from the
Sub Courts.
Subordinate Courts
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District Courts
Magistrates’ Courts
Juvenile Courts (Handles cases involving juveniles)
Family Courts (Spousal violence, Women’s Charter)
Coroner’s Courts (Related to unnatural deaths)
Courts with limits in its hearings
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District Court can hear cases involving up to $250k in
dispute, maximum punishment does not exceed a
10yrs jail or a fine.
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Small Claims Tribunals (Deals with claims up to $10k
in relation to contracts of sale of goods and services)
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Magistrate Courts’ monetary limit is $60k, and max
punishment is 3yrs.
Parliamentary Process of Law Making
1.
First Reading of Bill
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Introduced and not read out in full
No discussions take place here
2.
Second Reading
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General principles of the Bill are debated
3.
Third Reading
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Minor amendments are made
4.
Passed by Parliament
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Parliament votes on the Bill
5.
Passed through the Presidential Council of Minority
Rights (PCMR)
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Bills which affect race or religious matters are
referred to the PCMR.
6.
Presidential Assent
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If PCMR’s report is favourable, Bill is presented to
the President for his assent.
7.
Gazetted
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Bill becomes Act of Parliament
Published in the Government Gazette
Stare Decisis
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As a general rule, once a decision on a certain set of fact has been made, another Court of the same rank or lower must
apply that decision in cases presented with the same or similar set of facts.
The precedent becomes binding and must be followed by Courts of the same rank and below.
Vertical Stare Decisis:
o As a general rule, Courts below that of the precedent is bound by the precedent; it is an imperative.
o Court of Appeal > High Court > Sub Courts
Horizontal Stare Decisis
o As a general rule, Court of Appeal not bound by its own decisions
But usually follow prior decisions for consistency, integrity and predictability.
High Courts and Sub Courts are also not bound by own decisions; but in practice they usually will unless if there
are strong reasons not to do so.
Courts
If there is discrepancy in decisions between courts, court appeal will make decisions which the courts of lower
rank has to follow.
Singapore Constitutional Structure
Statutory Interpretation
Doctrine of Separation of Powers
● 3 branches:
o Legislature makes the laws
o Executive runs the nation
o Judiciary interpretes the law
● Powers and functions are separate, no single agency
is able to exercise complete authority
o Prevents absolutisms (Monarchies or Dictatorships)
o Prevents corruption
o Acts as checks and balances on each other
▪ Each branch’s independence helps keep others from exceeding their power
● SG uses common law + Statutes + Equity (justice, fairness, equality)
● Equity doctrine is to soften the tough strict technicalities of common law which prevented the giving of remedies in
what were clearly deserving cases. Equity prevails where there is conflict between it and legal principles.
The function of the courts, in relation to legislation, is to interpret and apply it in accordance with the intention of the
Parliament. The objective of statutory interpretation is to ascertain the spirit and intention of Parliament.
1.
Literal Rule
Generally, the literal rule states that if words in the statute are clear and without ambiguity, the literal meaning of the
provision is given effect.
However, if the wording in the statute is ambiguous the following rules will be applied:
(Notes from Interpretation Act 9A (2): In the interpretation of a provision of a written law, if any material not forming part of the
written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that
material. Ie Hansard.
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into
account its context in the written law and the purpose or object underlying the written law; or
(b) to ascertain the meaning of the provision when —
(i)
the provision is ambiguous or obscure; or
(ii)
the ordinary meaning conveyed by the text of the provision taking into account its context in the written law
and the purpose or object underlying the written law leads to a result that is manifestly absurd or unreasonable.)
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2.
Golden Rule
Generally, the golden rule states that when the plain and literal interpreted meaning of the statute will manifest absurdity,
the Court will have to look at the intention of Parliament.
3.
Mischief Rule
Generally, the mischief rule applies when a statute is ambiguous. In that case, the Court would have to examine the mischief
that the statute was intended to remedy. The method is to assess what remedy Parliament was trying to provide and
whether act in question fell within the “mischief”. As in the case of Smith v Hughes, the Court held that the soliciting on
balconies are illegal because prostitution was the mischief intended to be remedied.
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4.
Ejusdem Generis: for interpreting loosely written statutes.
Generally, Ejusdem Generis implies that when words in a statute contain specific words followed by general words, the
general words should be interpreted from the same kind or common ground as the specific words.
o “…cars, lorries, buses and any other such vehicles” Consider trucks, motorcycles, but not aeroplanes and ships.
o Must be same class / genus; general wording and not expansive.
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Nosciitur a Sociis: for interpreting questionable words (not tested).
Generally, the meaning of words can be understood from the nature around them. It is almost the same as ejusdem generis,
except that it need not be same class / genus, e.g. cat baskets, toy mice, flea collars and food a loaf of bread is not within
it.
6.
Expressio Unius Est Exclusion Alterius (not tested).
Generally, anything not included in the list is considered not included; it is excluded.
Thus, the First Schedule to the AELA does NOT list all of the English statutes that are applicable to Singapore.
The rest must be through other written laws, such as the Singapore legislation.
S9(A) Interpretation Act: use of extrinsic materials
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States that an interpretation of a statute that would promote the purpose of the statute is the preferred interpretation.
Usually, the Court would adhere to statutes and cases when judging a situation.
However, if intention of Parliament is doubtful, or where a provision / statute made earlier is vague / absurd / ambiguous
(more than one meaning), S9A of the Interpretation Act permits extrinsic sources to be consulted to discover a Parliament’s
intention in enacting it so.
General rule: Courts must exercise Rule of Exclusion under the Doctrine of Separation of Powers
o Judge cannot refer to the parliamentary debate to make Court decisions
o Doing so is to step over their Judiciary authority into the Parliamentary, which is illegal
Exception: Extrinsic materials (such as parliamentary debates) may be considered
o To confirm the meaning of a statute
o To ascertain the meaning of the statute when the words are ambiguous (Mischief Rule) or when the ordinary
meaning leads to a result that is absurd (Golden Rule).
Sources of English Law
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English common law brought into Singapore by the Second Charter of Justice of 1826.
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Under the Application of English Law Act (AELA):
o S3 restated the application of English case law in Singapore, as long as it was before 12th November 1993, and if
that it would applicable to the circumstances of Singapore.
o S4 restated the application of English legislation in Singapore.
o S6 repeals the problematic s5 Civil Law Act.
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Thus today, an English statute applies in Singapore only if specifically provided for in the AELA or another written law.
o The Singapore authorities want to foster the development of an autochthonous common law.
o They amended the definition of “common law” in s2(1) Interpretation Act, to mean: “common law” means the
common law in so far as it is in operation in Singapore and any custom or usage having the force of law in
Singapore.
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