Issue No.
6
January-March 2015
International Capabilities Delivered LocaLly
features
1
Banking and Finance
HOW SHOULD A PLAINTIFF PLEAD A CASE
IF HE CANNOT REMEMBER MATERIAL
FACTS?
4
Litigation and Dispute Resolution
IN THE BLINK OF AN EYE - CAUSING
DEATH BY NEGLIGENT DRIVING CAN
LAND YOU IN JAIL
2
Corporate and Capital Markets
SUSTAINABILITY REPORTING FOR LISTED
COMPANIES IN SINGAPORE
REPEAT CLAIMS UNDER THE SECURITY
OF PAYMENT ACT - CHOOSING THE
LESSER EVIL
3
Intellectual Property & Technology
5
SINGAPORE’S REGULATORY
FRAMEWORK FOR ELECTRONIC
MARKETING – PRACTICAL TIPS FOR
COMPLIANCE
Real Estate
5 Essential Things to Know About
Easements
6
Taylor Wessing UK
7
NEWS & DEALS
GAZING INTO THE TECH CRYSTAL
BALL – TMC PREDICTIONS FOR
2015
Issue No. 6
Jan-Mar 2015
1HOW SHOULD
Banking and Finance
A PLAINTIFF
PLEAD A CASE
IF HE CANNOT
REMEMBER
MATERIAL FACTS?
A plaintiff who does not remember material facts but suspects that he
has suffered a wrong faces a dilemma. If he stops short of making positive
assertions of fact to establish his claim, and candidly acknowledges his
suspicion and the infirmities of his memory, he risks having his case struck
out. If he is dishonest and is prepared to assert in his pleadings facts
which he knows are not true, he would have committed perjury even
though his case may proceed to trial. This difficult issue was considered
in the recent High Court decision of Chandra Winata Lie v Citibank NA
[2014] SGHC 259, which is reportedly going on appeal to the Court of
Appeal.
Facts
The plaintiff (“the Customer”) was a high net worth individual residing
in Indonesia who opened, maintained and operated three investment
accounts with the defendant (“the Bank”). All three of the Customer’s
accounts were advisory accounts, which meant that the Bank required
the Customer’s specific authority, whether oral or otherwise, to enter into
a transaction on any of the accounts.
The Bank’s practice in dealing with the Customer was to obtain his oral
authority to transact on his behalf and to follow up by sending him two
documents – a tailored investment proposal and a trade confirmation either shortly before or shortly after executing the transaction he had
authorised. The Customer was expected to countersign and return the
trade confirmation to the Bank. However, it was common ground that
neither the absence of a trade confirmation for a particular transaction or
the Customer’s failure to countersign a trade confirmation for a particular
transaction suggested that the Bank had no authority to transact on the
Customer’s behalf.
Between May 2007 and October 2008, the Customer’s accounts saw
significant activity in fairly sophisticated derivatives transactions in foreign
exchange and equities, which entailed substantial potential liability for the
Customer. As a result of the financial crisis of 2008/2009, the Customer’s
accounts sustained significant losses on transactions entered into in or
after March 2008.
2
Subsequently, the Customer engaged an expert with a view to
commencing suit against the Defendant to recover compensation for
his losses. An issue arose over whether the Customer had authorised
14 transactions, which the Customer’s expert discovered could not be
matched to any trade confirmation. The Customer requested the Bank to
disclose the relevant trade confirmations and other supporting documents
for these transactions, as he asserted that he did not remember
authorising them. However, the Bank refused to do so and the Customer
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
1HOW SHOULD
Banking and Finance
A PLAINTIFF
PLEAD A CASE
IF HE CANNOT
REMEMBER
MATERIAL FACTS?
applied to the High Court for pre-action discovery of the Bank’s internal
documents regarding these transactions. The Customer’s application
failed as it was held that whether he had authorised the 14 transactions
or not was a matter within his own knowledge. Hence, the documents
that he sought were not necessary for him to know whether he had a
claim against the Bank for unauthorised trading.
The Customer then commenced a suit against the Bank, claiming that it
was liable to compensate him for his losses on the primary basis that the
Bank had breached a duty of care in tort or a contractual duty by failing
to advise him of the risks of his investments and by making negligent
misrepresentations. In the alternative, the Customer claimed that the
Bank had entered into certain transactions without his authority (“the
Unauthorised Trading Claim”).
Before the Assistant Registrar (“the AR”), the Bank argued that the
Customer’s entire Unauthorised Trading Claim ought to be struck out
as he had failed to plead an essential element of his cause of action,
namely, that he did not authorise the relevant transactions. Moreover,
the Customer had advanced alternative claims which rested on
inconsistent positions as to whether he had authorised the relevant
transactions, which was a matter within his own knowledge.
Although the AR permitted the Customer to amend his statement of
claim to address the above-mentioned deficiencies, the AR agreed
with the Bank’s submission that the amended statement of claim was
still fundamentally flawed as the relevant trade confirmations were not
material to whether the Bank had the Customer’s authority to transact
on its behalf. The AR therefore disallowed the Unauthorised Trading
Claim entirely.
Summary of Decision
On appeal, the High Court affirmed the AR’s order and held that:
> it was the Customer’s burden to plead, particularise and prove the
Unauthorised Trading Claim;
> the Customer’s amended statement of claim was not a proper
claim for unauthorised trading as the Customer did not assert as
a fact that he did not authorise the relevant transactions and was
in any event precluded from making any such assertion as it was
inconsistent with his own version of the facts; and
> the Customer was not permitted to attempt to run two
inconsistent alternative cases.
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
1 HOW SHOULD
Banking and Finance
A PLAINTIFF
PLEAD A CASE
IF HE CANNOT
REMEMBER
MATERIAL FACTS?
Failure of Memory Does Not Relieve Customer’s
Burden
The core of the Customer’s Unauthorised Trading Claim was found
in paragraph 71 of his original statement of claim, which stated to
the effect that various surrounding circumstances “[gave] rise to the
inference that the [Bank] … breached the terms of the parties’ contract
… in engaging in unauthorised transactions as particularised at …”.
The High Court found that the Customer’s pleading was defective
as it did not assert that he did not authorise those transactions. Also,
the surrounding circumstances, which included the fact that the Bank
deviated from its usual practice of issuing trade confirmations and
procuring the Customer’s countersignature on them, did not have any
rational connection to whether the Bank was authorised to transact on
the Customer’s behalf. The Customer’s subsequent amendments to his
original statement of claim did not cure these defects.
Importantly, the High Court observed that although the Customer’s case
was that he was unable to positively assert that he did not authorise the
relevant transactions because he could not recollect whether he did so,
this reason was irrelevant.
This was because a plaintiff’s failure of memory, even assuming that it
is genuine, does not relieve him of the burden to plead, particularise and
prove every essential element of his claim. The authorities indicated that
where the plaintiff was unable to plead, particularise and prove his claim,
it was an abuse of process for him to commence suit even if:
> the essential elements of his claim were entirely unknowable;
> they were knowable but were never within his knowledge; or
> he once knew them but is unable to recollect them.
The High Court held that the Customer’s claim amounted to “nothing
more than saying that he will contend at trial that there has been
unauthorised trading unless the [Bank] produces evidence to the
contrary”, which was a “wholly illegitimate reversal of the burden of
proof”.
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
1 HOW SHOULD
Banking and Finance
A PLAINTIFF
PLEAD A CASE
IF HE CANNOT
REMEMBER
MATERIAL FACTS?
Conclusion
The High Court acknowledged that the rules of
pleading, though resting on a sound foundation, might
“operate harshly against a plaintiff who is genuinely
unable to recall an essential element of his cause of
action”. However, it observed that this concern could be
addressed by refining the law on pre-action discovery to
accommodate a plaintiff who once knew but now cannot
remember the information comprised in the documents
sought.
It is hoped that the Court of Appeal will provide detailed guidance on
how a plaintiff should plead a case if he cannot remember material facts.
For more information, please contact:
Eugene Quah
Partner
(65) 6381 6938
eugene.quah@rhtlawtaylorwessing.com
Felicia Ang
Associate
(65) 6381 6934
felicia.ang@rhtlawtaylorwessing.com
*Mr Quah and Ms Ang would like to thank Mr Elson Ong (a practice trainee at RHTLaw Taylor
Wessing LLP) for his assistance in the drafting of this article.
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
2 SUSTAINABILITY
Corporate and Capital Markets
REPORTING
FOR LISTED
COMPANIES IN
SINGAPORE
In recent years, the haze from the forest fires that raged Kalimantan and
Sumatra that shrouded Singapore for months on end have been blamed
upon palm oil producers clearing the rainforests for their plantations1.
However, if these palm oil producers had been required to measure and
report on the massive environmental and social damage caused by their
deforestation practices, they could be made more accountable for such
environmental harm and thereby address reforms and conservation
efforts.
In contrast to financial reporting, the history of sustainability reporting
(“SR”, which also denotes the sustainability report, as the case may be)
is comparatively recent and first gained currency in the 1990s, especially
following the 1987 Brundtland Report on sustainable development and
the 1992 Earth Summit in Rio de Janeiro. The Brundtland Report defined
sustainable development as any development that “meets the needs
of the present without compromising the ability of future generations
to meet their own needs”. In this context, SR refers to the publication
of comprehensive information relating to an organisation’s activities in
the environmental, social and governance environment in which the
organisation operates or has influence.
In Singapore, on 27 June 2011, the Singapore Exchange (“SGX”)
published its “Guide to Sustainability Reporting for Listed Companies”
(“the SGX Guide”), following a public consultation on SR in August
2010. SGX’s move came in response to the growing momentum of SR
among institutional investors and stock exchanges across the world. SR
or non-financial reporting has become mandatory for listed companies
on several stock exchanges, including those in China, Malaysia and
Taiwan.
The SGX Guide sets out broad principles for listed companies in
formulating a SR framework. Currently, SGX “encourages” listed
companies to report on their sustainability practices in relation to
economic, social and environmental concerns. Only companies in the
Mineral, Oil and Gas (“MOG”) sector listed on SGX are required (since
September 2013) to report on their sustainability practices in their
annual reports2.
As the SR regime here is largely a voluntary one, it is hardly surprising
that as at end-2013, only 160 or 29.8% of the 537 companies listed on
the Mainboard of SGX communicated their sustainability practices3. Of
those Mainboard companies which made SR, only 19 used the Global
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2 SUSTAINABILITY
Corporate and Capital Markets
REPORTING
FOR LISTED
COMPANIES IN
SINGAPORE
Reporting Initiative (“GRI”) framework to produce their SRs. Specifically,
the GRI SR Guidelines provide general principles and indicators that
listed companies can use to measure and report their economic,
environmental and social performance.
On 17 October 2014, SGX made an announcement that has significant
implications for all companies listed on SGX. At the Singapore Compact
CSR Summit 2014, SGX chief executive Magnus Bocker said the
bourse will be mandating that all listed companies publish SRs through
a “comply or explain” approach. It will embark on a one-year study and
consultation to work out the reporting guidelines. Assuming a two-year
implementation period, we expect that SR may become mandatory for
listed companies by 2017 or 2018.
Benefits of SR
The benefits to listed companies making the SR, and its stakeholders,
have been well documented. The commonly cited benefits of SR
include tracking and keeping the company accountable for its social
and environmental footprints, and strengthening engagement with its
stakeholders (such as employees, suppliers, customers, residents in
vicinity of the company’s operations). In recent years, other growing
benefits or drivers of SR have also emerged, such as:
(i) demand from financial institutions which prefer to fund businesses
that can demonstrate clear plans for sustainable development
in the social and environmental realms;4
(ii) enhancing the reputation of a company’s products or services.
For example, Apple Inc.’s website5 has a section on the firm’s
environmental responsibilities, and how Apple Inc. designs its
products with cleaner, safer materials to reduce and eliminate many
toxins commonly used in the electronics industry. Apple Inc. holds
its suppliers accountable by conducting factory audits and testing
components with independent laboratories; and
(iii) the growing trend among developed markets to impose a
statutory obligation regarding a company’s environmental and social
impacts. For example, following a reform of the United Kingdom’s
Companies Act in 2006, company directors now have a legal duty
to consider the impact on the environment and the stakeholders,
when making decisions for the company6. It remains to be seen
whether Singapore will take a similar route in future.
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Issue No. 6
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2 SUSTAINABILITY
Corporate and Capital Markets
REPORTING
FOR LISTED
COMPANIES IN
SINGAPORE
Ensuring the company derives real value from its SR
As compiling a SR requires organisational commitment and effort, it is
natural that companies will want to make sure there is genuine value in
the SR process. To achieve genuine value from SR, companies should
pay attention to the following questions:
(i) It is commonly said that SR provides, inter alia, a means for
companies to engage their stakeholders, who are the targeted
audience of the SR. Naturally, companies should consider important
questions such as who uses the SR information and how they
use such information. What do readers of the SR really want to
know? How can SR support an organisation’s strategy and culture
of transparency and accountability? In other words, companies
should focus on the “value” of SR to their own organisation rather
than seeing the SR as mere compliance with another SGX
reporting requirement; and
(ii) Many companies may see SR as a tick box exercise that does
not necessarily correlate to their core business development
or profit maximisation efforts. They may not view the use of SR as
a means to improve their own performance from a non-traditional
perspective. In other words, how does doing a great job on the GRI
make the company a “great” company for the shareholders?
Key challenges faced by companies
Listed companies should be aware of the following key challenges if and
when SR obligations are made compulsory:
(i) Deciding who the audience is: Large listed companies that may
have a presence in Singapore and other overseas markets may
have large diverse groups of stakeholders. Compiling a report that
is appealing to stakeholders with different perspectives on SR will
be challenging, as companies may also wish to avoid the reports
from becoming too voluminous;
8
(ii) Implementing a corporate policy and framework: The board
and management will need to establish and implement across
all levels of the company a corporate policy and framework for
sustainable practices and reporting. Employees will need to be
trained on these sustainable practices. The company will also
need to design and put in place internal systems to identify issues
or high-risk areas associated with the company’s operations, along
with the appropriate solutions for dealing with those risks. The
company should have the means to monitor for any non-
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2 SUSTAINABILITY
Corporate and Capital Markets
REPORTING
FOR LISTED
COMPANIES IN
SINGAPORE
compliance, e.g. a feedback channel from stakeholders. Attempting
to gather reliable SR data from different parts of the organisation
can be a challenge especially if data collection systems are
outdated or fragmented;
(iii) Being prepared for regulatory changes in jurisdictions of
operations: Companies which have operations in various countries
must keep abreast of changes in environmental laws and
regulations, in order to ensure continuing compliance;
(iv) Need for external assurance of SR data: The accuracy and
completeness of reported information will need to be verified; hence
it will be important for an external independent professional party
to assure the SR data, much like how an auditor audits a company’s
financial statements. The SGX Guide recommends the use of
external assurance to verify the SR information and to lend
credibility to the SR. One view is that until sustainability data is
subject to the same level of detailed, independent and professional
assurance as financial and accounting data, SR will not be as valued
or credible7; and
(v) Costs, costs and costs: Finally, the financial costs associated
with (i) implementing a company-wide SR policy; (ii) implementing
the internal controls; (iii) implementing the requisite systems and
tools to capture the necessary data or indicators for reporting;
and (iv) engaging external assurance providers can be a huge
burden, especially for small and mid-cap listed companies. Although
frameworks like GRI allow first-time reporters to report on a small
number of issues which are of the most concern to them and their
stakeholders, the underlying reporting principles of completeness
and accuracy found in the GRI will certainly require companies
to collect and report on more SR data on other aspects of their
environmental and social footprints.8
Conclusion
SR has come a long way since the 1990s and is increasingly recognised
as an important metric, like financial performance data, to measure good
corporate governance.
9
In the medium-term, for companies listed in Singapore,
it is likely that SR will make steady and incremental
progress among the larger public-listed companies, with
improvements in the depth and quality of reporting. It
is also likely that reporting will increasingly be based
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2 SUSTAINABILITY
Corporate and Capital Markets
REPORTING
FOR LISTED
COMPANIES IN
SINGAPORE
primarily on the GRI SR Guidelines. If SR is made
compulsory, a single, universally accepted framework
for reporting should also be prescribed. The different
approaches towards SR today are not ideal, because
although large publicly listed companies practise SR
seriously, small and mid-cap listed companies have some
way to go in carrying out SR.
Another related development may be that more attention will be paid to
issue- or sector-based reporting of sustainability practices. This may be
driven by growing regulatory or market demands on specific companies
or sectors that have a greater impact on one or more sustainability
issues. We may expect to see regulators imposing requirements on
companies in more sectors to report on their sustainability practices.
Whatever the future holds, companies need to quickly understand the
full implications of SR and start taking preparatory measures sooner
rather than later for a compulsory SR regime.
For more information, please contact:
Ch’ng Li-Ling
Deputy Head, Capital Markets
(65) 6381 6777
li-ling.chng@rhtlawtaylorwessing.com
Lee Chee Meng
Senior Associate
(65) 6381 6782
cheemeng.lee@rhtlawtaylorwessing.com
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2 SUSTAINABILITY
Corporate and Capital Markets
REPORTING
FOR LISTED
COMPANIES IN
SINGAPORE
1
http://www.economist.com/news/asia/21599388-fires-cause-much-regionshaze-have-started-early-year-leaders-fiddle-sumatra.
2
Rule 1207 of the SGX Listing Manual.
3
“Sustainability Reporting in Singapore among Singapore Exchange Mainboard
Listed Companies 2013”, a joint study by the Singapore Compact and National
University of Singapore published in July 2014.
4
http://www.ussif.org/sribasics. According to the US SIF Foundation’s 2014
Report on Sustainable and Responsible Investing Trends in the United States,
as of year-end 2013, more than one out of every six dollars under professional
management in the United States—$6.57 trillion or more—was invested
according to Sustainable, Responsible and Impact Investing (“SRI”) strategies.
5
6
https://www.apple.com/environment/.
Section 172 of the United Kingdom’s Companies Act 2006.
7
https://www.globalreporting.org/resourcelibrary/GRI-Assurance.pdf; Section
2.1.
8
Sections 4.1 and 4.2 of the GRI G4 Reporting Guidelines and Standard
Disclosures.
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
3 SINGAPORE’S
Intellectual Property & Technology
REGULATORY
FRAMEWORK
FOR ELECTRONIC
MARKETING –
PRACTICAL TIPS
FOR COMPLIANCE
Electronic marketing in Singapore is regulated primarily by two main
sources of legislation, with particular emphasis on the obligations of the
sender.
Firstly, the Singapore Spam Control Act (“SCA”) sets out the regulatory
requirements relating to the contents and title when sending out
unsolicited commercial electronic messages in Singapore in bulk by
electronic mail or by text or multi-media messaging to mobile telephone
numbers.
Secondly, the Do-Not-Call (“DNC”) Registry established under the
Singapore Personal Data Protection Act 2012 (“PDPA”) together with
the relevant rules and regulations applicable, regulates how senders of
such marketing messages need to govern the use of collected personal
data in sending messages of a marketing nature via telephone calls, text
messages or fax.
Where such messages are sent in the form of text messages to mobile
telephones, the sender of such messages must comply with both the
SCA and the PDPA.
Provisions of the SCA
The SCA sets out the type of electronic marketing messages which are
regulated, the requirements to be complied with for relevant affected
electronic messages, and certain prohibitions.
Affected Messages
In summary, unsolicited commercial electronic messages sent in bulk
through e-mail, or by text messages to mobile telephone, with the
primary purpose of advertising or offering goods and/or services or
other opportunities to the recipient must comply with the requirements
set out in the SCA.
The SCA also applies to all messages with a “Singapore Link”.1
Requirements
Messages regulated under the SCA must comply with the following
requirements:
1. Each message must contain an unsubscribe facility whereby:
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> the sender must include contact information in sufficient detail
with the message to enable the recipient to submit an unsubscribe
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3 SINGAPORE’S
Intellectual Property & Technology
REGULATORY
FRAMEWORK
FOR ELECTRONIC
MARKETING –
PRACTICAL TIPS
FOR COMPLIANCE
request;
> this contact information must be valid for at least 30 days to
receive unsubscribe requests from recipients, and using this
contact information must not cost the recipient more than the
usual cost of using that kind of contact information;
> once an unsubscribe request is submitted, the recipient’s contact
information (e.g. electronic mail address to which the message was
sent) must be removed from the mailing list within 10 business
days; and
> any person who receives the unsubscribe request must not
disclose the information to others, except with permission from the
sender of the unsubscribe request.
2. Every message must also fulfil labelling requirements whereby:
> any title, header or subject field must not be false or misleading as
to the content of the message;
> the title header or subject field must be prefixed with the letters
“<ADV>” or equivalent words first appearing in the main
body of the message, to clearly identify that the message is an
advertisement; and
> there must be an accurate and functional e-mail address or
telephone number by which the sender can be readily contacted.
Other Relevant Factors
In addition, any sender should also be aware that the SCA prohibits the
sending of any electronic message to any electronic address generated
or obtained through the use of:
> dictionary attack, defined under the SCA as “the method by which
the electronic address of a recipient is obtained using an automated
means that generates possible electronic addresses by combining
names, letters, numbers, punctuation marks or symbols into
numerous permutations”; or
> address harvesting software, defined under the SCA as “software
that is specifically designed or marketed for use for searching the
Internet for electronic addresses, and collecting, compiling,
capturing or otherwise harvesting those electronic addresses”.
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3SINGAPORE’S
Intellectual Property & Technology
REGULATORY
FRAMEWORK
FOR ELECTRONIC
MARKETING –
PRACTICAL TIPS
FOR COMPLIANCE
Remedies for Breach
Recipients who suffer loss or damage as a result of a sender’s
contravention of the requirements or the prohibitions in the SCA have
a right to commence civil proceedings against the sender, and if the
sender is found guilty, the complainant may be entitled, at his election,
to damages in the amount of the loss or damages actually suffered or
statutory damages not exceeding S$25 for each electronic message up
to a maximum of S$1 million.
The Do-Not-Call Registry under the PDPA
The DNC provisions of the PDPA, which entered into operation on 2
January 2014, have in effect compelled a serious re-examination of the
manner of collecting and using personal contact information in order to
send electronic marketing messages.
The DNC provisions establish three registers within the DNC Registry,
and affect parties who wish to send “specified messages” via telephone
calls, text messaging or fax. Specified messages as defined under the
PDPA are essentially marketing messages, although some exemptions are
provided for.
Senders will not be allowed to send specified messages to any number
found within the respective registers within the DNC Registry unless:
> there is clear and unambiguous consent from the person who
submitted this personal information to allow the sender to contact
the recipient. The standards expected as to what constitutes clear
and unambiguous consent are very clear; and/or
> senders may send specified text messages and specified fax
messages only (and not telephone calls) to a Singapore telephone
number if they are in an ongoing relationship2 with the subscriber
or user of that telephone number and the message is related to that
ongoing relationship, and provided that the sender includes his
contact information and must not conceal the identity of the line
that has been used to contact within the specified message.3
If no evidence of such consent exists, there is a duty under s 43(1) of
the PDPA to check the registers in the DNC Registry and wait for official
confirmation. If a sender intends to send through more than one method,
each register must be checked. The waiting period will be 60 days (those
before 1 August 2014) and 30 days (those after 1 August 2014).
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Any person or organisation found guilty of contravening the DNC
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FOR COMPLIANCE
provisions may be liable to a fine of up to S$10,000 per message sent.
Enforcement of the DNC Provisions by the Personal
Data Protection Commission
To date, there have been three convictions for offences under the PDPA
related to the DNC Registry:
> On 27 August 2014, a tuition agency, Star Zest Home Tuition
Pte Ltd (“Star Zest”), and its director, Law Han Wei, were the first
offenders to be fined S$39,000 each, for a total fine of S$78,000.
Both Star Zest and its director had faced a total of 26 counts of
contravening s 43(1) of the PDPA for failing to check the DNC
Registry before sending unsolicited telemarketing messages to
Singapore telephone numbers which had been registered with
the DNC Registry. The unsolicited messages offered the teaching
services of various tutors signed up with Star Zest. 48 other similar
offences were taken into consideration; and
> On 20 October 2014, a property salesperson registered with
Huttons Asia Pte Ltd was fined S$27,000 for sending
unsolicited telemarketing messages which advertised various
residential property developments in Singapore. He had pleaded
guilty to 9 out of 27 counts of contravening s 43(1) of the PDPA.
According to the Commission’s media release dated 22 September
2014 (“the Media Release”), the real estate sector made up about
47% of complaints pertaining to DNC-related offences.
The Media Release further highlighted the following:
> The Commission had investigated more than 3,500 valid complaints
against various organisations since the DNC provisions took
effect on 2 January 2014, while investigations into some 1,700 other
complaints were ongoing. These organisations are from sectors
such as property, private education and retail;
> The Commission had received a small number of isolated
complaints against 900 other organisations and had issued them
with notices that warned of the consequences of sending any
further unsolicited telemarketing messages; and
15
> The Commission had allowed two organisations to compound
their offences relating to the sending of telemarketing messages
to Singapore telephone numbers registered with the DNC Registry
in lieu of prosecution, with the composition amounts ranging
between S$500 and S$1,000.
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Practical Tips for Compliance
Organisations should consider having a useful checklist in place to
help them comply with the provisions of the DNC Registry.
Organisations should consider the following simple checklist:
> Check whether the intended communication is a “specified
message” under the PDPA and/or is exempted under the
Eighth Schedule to the PDPA.
> If it is a specified message, the organisation must ensure
there is evidence of clear and unambiguous consent from the
subscriber. It would be useful and efficient to have in place a
repository of such evidence for easy retrieval and checking.
> Find out how fast the organisation’s system can upload such
evidence or update this database.
> If there is such evidence, the organisation should next
consider whether the specified message contains certain
specific required elements. Standard wording must be
considered.
> If there is no such evidence, the organisation has a duty to
check with the DNC Registry and wait for official
confirmation. The “prescribed duration” will be a waiting
period of thirty (30) days. The organisation must check the
relevant register. If the organisation intends to send using
more than one method, it must check in each register.
Conclusion
The recent introduction of a completely new
privacy regime in Singapore necessitates a change
in the mind-set and strategy of how marketing
departments are able to use personal contact
information in sending out electronic marketing
communications.
The good news is that the legislative requirements regarding
electronic marketing communications in Singapore seem fairly
straightforward to comply with
16
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
3SINGAPORE’S
Intellectual Property & Technology
REGULATORY
FRAMEWORK
FOR ELECTRONIC
MARKETING –
PRACTICAL TIPS
FOR COMPLIANCE
For more information, please contact:
Wun Rizwi
Partner
(65) 6381 6818
rizwi.wun@rhtlawtaylorwessing.com
1
A “Singapore link” under the SCA includes the following circumstances:
a) the message originates in Singapore;
b) the sender of the message is:
i. an individual who is physically present in Singapore when the message is sent;
or
ii. an entity whose central management and control is in Singapore when the
message is sent;
c) the computer, mobile telephone, server or device that is used to access the
message is located in Singapore;
d) the recipient of the message is:
i. an individual who is physically present in Singapore when the message is
accessed; or
ii. an entity that carries on business or activities in Singapore when the
message is accessed.
2
The “ongoing relationship” refers to a relationship, which is on an ongoing basis,
between a sender and a subscriber or user of a Singapore telephone number,
arising from the carrying on or conduct of a business or activity (commercial or
otherwise) by the sender; Paragraphs 4.8 to 4.20 of the Commission’s Advisory
Guidelines on the DNC provisions, issued on 26 December 2013, also provide insight
on the meaning of “ongoing relationship”.
3
Personal Data Protection (Exemption from Section 43) Order 2013.
17
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
4 IN THE BLINK
Litigation & Dispute Resolution
OF AN EYE CAUSING DEATH
BY NEGLIGENT
DRIVING CAN
LAND YOU IN JAIL
Section 304A of the Penal Code makes it an offence to cause the
death of any person by doing any rash or negligent act not amounting
to culpable homicide. In the case of a rash act punishable under s
304A(a), the punishment is up to 5 years’ imprisonment, or fine, or both,
while a negligent act is punishable under s 304A(b) with up to 2 years’
imprisonment, or fine, or both.
In early September 2014, the High Court issued a landmark decision,
Public Prosecutor v Hue An Li [2014] 4 SLR 66 (“Hue An Li”), which
established a new sentencing benchmark of imprisonment for negligent
driving causing death. The Chief Justice, sitting in a specially constituted
panel of 3 Judges including Chao Hick Tin JA and Tan Siong Thye J, held
that the default benchmark sentence for a traffic death case under s
304A(b) is a short custodial sentence of up to four weeks’ imprisonment.
Previous cases had indicated that a negligent driver who committed an
offence under s 304A(b) would usually be fined.
This commentary reviews the High Court’s reasons for imposing a higher
sentencing benchmark and the relevant sentencing considerations for a
traffic death case under s 304A(b). It also highlights that things that can
happen in a blink of an eye can land you in jail, so drive carefully.
The facts of Hue An Li
The accused worked in the surveillance department of a casino, which
required her to work 12-hour shifts and to be “mentally alert for long
periods of time”. On 14 March 2013, after completing her 12-hour shift at
7.00pm, the accused took a short nap in her new car before meeting her
friends later that night at East Coast Park.
At about 6.30am the next morning, the accused dropped her friend off
at Pasir Ris and then took the Pan-Island Expressway (“PIE”) to return
to her home at Farrer Park. While driving along the PIE in good traffic
conditions, she dozed off momentarily and her car collided into a lorry.
This fleeting lapse resulted in the death of a passenger on the lorry and
injuries to the lorry driver and 9 other passengers.
18
The accused pleaded guilty to a charge of causing death by a negligent
act under s 304A(b) of the Penal Code, with two other charges causing hurt by a negligent act (s 337(b) of the Penal Code) and causing
grievous hurt by a negligent act (s 338(b) of the Penal Code) - taken
into consideration for sentencing purposes. In the District Court, she
was fined $10,000 and disqualified from driving for five years. On the
prosecution’s appeal to the High Court, the fine was revoked and she was
ordered to serve a four-week imprisonment term. The five-year driving
disqualification order remained.
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Issue No. 6
Jan-Mar 2015
(continued)
4 IN THE BLINK
Litigation & Dispute Resolution
OF AN EYE CAUSING DEATH
BY NEGLIGENT
DRIVING CAN
LAND YOU IN JAIL
High Court’s reasons for imposing a higher sentencing
benchmark
In setting the higher sentencing benchmark for a traffic death case
under s 304A(b), the High Court reasoned as follows:
> the amendment to s 304A of the Penal Code in 2008 distinguished
between a rash act which caused death (under s 304A(a)) and
a negligent act which caused death (under s 304A(b)), each
with different starting points for sentencing. Previously, s 304A
had provided a single punishment for causing death (up to 2 years’
imprisonment, or fine, or both), whether by a rash or a negligent
act;
> the harsher sentencing regime for a rash act which caused death
was justified “on the basis that the offender was actually
advertent to the potential risks which might arise from his
conduct, but proceeded anyway despite such advertence”. In
contrast, the lower maximum imprisonment sentence for a
negligent act causing death recognized that the offender was not
aware of the potential risks which might arise from his conduct;
> in view of the different sentencing regimes for rash and negligent
acts under s 304A(b), the High Court declined to follow the
past sentencing practice of a fine and set the default benchmark
sentence in a traffic death case under s 304A(b) at a brief period
of imprisonment for up to four weeks. However, a sentence of
imprisonment will not necessarily be imposed in every such case,
because all the circumstances of the case as well as any
aggravating and/or mitigating factors must be examined to
determine the gravity of the particular offender’s conduct; and
> notwithstanding that a rash act causing death is a more serious
offence than a negligent act causing death, an offender convicted
of a rash act might receive a lighter sentence than another
offender who was convicted of a negligent act in different
circumstances. This was because the presence of mitigating and/
or aggravating factors, and not merely whether the act was rash or
negligent, would determine the actual sentence.
Relevant sentencing considerations
19
p
The High Court discussed a number of relevant sentencing
considerations for a traffic death case under s 304A(b). In particular, the
amount of harm caused, whether the victim belonged to a vulnerable
class of road users and whether the offender’s judgment was impaired
due to a prolonged period of time without sleep before the accident
International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
4 IN THE BLINK
Litigation & Dispute Resolution
OF AN EYE CAUSING DEATH
BY NEGLIGENT
DRIVING CAN
LAND YOU IN JAIL
were significant in Hue An Li.
Amount of harm caused
The key issue was whether a sentencing court can take into account
the full extent of the harm caused by a particular criminal act. Under the
thin skull rule (which originated in the law of tort), a person can be held
responsible for all consequences of his actions. Although previous cases
had held that the thin skull rule did not apply in criminal law, the High
Court held that “the thin skull rule cannot be ignored in the context of
criminal negligence”. Thus, even if a negligent driver’s actions resulted in
harm which he did not intend and was beyond his control, the full extent
of the harm caused by his actions is a relevant factor to be considered in
determining the appropriate sentence.
The High Court justified its view on three legal grounds, one of which
was that the maximum punishment for negligence-based offences under
the Penal Code frequently increased as the resulting harm became more
serious, thereby indicating that Parliament intended that the extent of the
harm was relevant for sentencing purposes.
Vulnerable class of road users
The High Court held that that there was no rule that offenders in s
304A(b) traffic death cases should be punished more harshly simply
because they had collided into a vulnerable class of road users, as one
concern was that wasteful litigation would ensue over whether a particular
class of road users ought to be recognized as vulnerable. Nevertheless,
the victim’s vulnerability may be taken into account for the purposes of
sentencing on the particular facts of the case.
Impaired judgment due to sleepy driving
The High Court acknowledged that it was difficult to set a meaningful
common standard of “permissible” sleep deprivation, beyond which it is
illegal for a person to drive, because what constitutes sufficient sleep is
subjective. However, where an accident had occurred and investigations
revealed that the offender went through a prolonged period of time
without sleep before the accident, this was likely to be an aggravating
factor.
Application of aggravating factors
20
The High Court further took into account the accused’s advertence
or non-advertence to the risks she was running and observed that the
District Court had erred in not placing any, or in not placing sufficient
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International Capabilities Delivered LocaLly
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Jan-Mar 2015
(continued)
4 IN THE BLINK
Litigation & Dispute Resolution
OF AN EYE CAUSING DEATH
BY NEGLIGENT
DRIVING CAN
LAND YOU IN JAIL
weight, on the following aggravating factors:
> the accused had gone for more than 24 hours without proper
sleep before the accident;
> she must have appreciated that the intense concentration
required by her work would have drained her mentally;
> she was mindful of the risk of being overcome by fatigue and
therefore thought it necessary to have a brief rest before
meeting her friends;
> she was still in the midst of getting used to her new car, which
she had bought shortly before the accident;
> she must have known that the expressway in the morning rush
hour was likely to be increasingly crowded with relatively fastmoving traffic, which required her to be more alert; and
> the collision caused 1 death and injuries to 10 others, of whom
7 suffered grievous hurt and 1 was now paralysed from the waist
down.
The High Court noted that the above factors, which were “matters
within [the accused’s] knowledge”, had “increased the risk that [she]
would end up being overcome by fatigue and, as a result, drive in a
state of unconsciousness with disastrous consequences”.
Practical implications of Hue An Li
> Results matter even if you have no control over them
Although the accused in Hue An Li did not know that her
momentary lapse would result in a death and serious injuries to
many passengers, the High Court took into account the outcome
of the accident for the purposes of sentencing.
The four-week imprisonment term in Hue An Li can be justified in
view of the two additional charges that were taken into consideration
for the purposes of sentencing. However, collateral harm caused by
the collision should not be given the same weight in every case as the
sentencing court should focus on the total number of charges before
it and consequently the total extent of the harm done.
> Sleepy driving is dangerous
21
The High Court noted in Hue An Li that it was impractical to set a
law that it was “illegal to drive without having had eight hours of
sleep within the preceding 24 hours”. However, that a driver was
sleep-deprived at the material time would be taken into account for
the purpose of sentencing under s 304A(b) of the Penal Code.
p
International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
4 IN THE BLINK
Litigation & Dispute Resolution
OF AN EYE CAUSING DEATH
BY NEGLIGENT
DRIVING CAN
LAND YOU IN JAIL
Given that sleepy driving is at least as dangerous as drink driving,
drivers should bear in mind the High Court’s caution of “the
consequences of the tremendous risks that they take on, not only to
themselves but also to other innocent road users, when they drive
despite not being in a fit condition to do so”.
> Assess all your decisions in driving
Drivers need to be mindful that all their decisions made while
driving in a sleep-deprived state could be taken into account for the
purposes of sentencing. The High Court in Hue An Li considered as
aggravating that the accused ought to have been more alert in peakhour expressway conditions. It would therefore be prudent for drivers
who are sleep-deprived to assess whether they are even in a position
to make decisions on when and where to drive.
Conclusion
The default benchmark sentence set in Hue An Li is
only a guideline. As the Chief Justice observed, the
sentencing benchmark “is liable to be adjusted up
or down by reference to the extent of negligence
involved as well as the presence of aggravating and/or
mitigating factors”.
As sentencing for negligent driving causing death under s 304A(b)
involves complex considerations which Hue An Li had only briefly
touched on, legal advice should be sought to ensure that submissions
made on the appropriate sentence are calibrated to the facts of a
particular case.
For more information, please contact:
Sunil Sudheesan
Partner
(65) 6381 6886
sunil.s@rhtlawtaylorwessing.com
22
Diana Ngiam
Senior Associate
(65) 6381 6922
diana.ngiam@rhtlawtaylorwessing.com
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
4 REPEAT CLAIMS
Litigation & Dispute Resolution
UNDER THE
SECURITY OF
PAYMENT ACT CHOOSING THE
LESSER EVIL
In the inaugural issue of RHTrospect (October-December 2013),
the article “Streamlining Judicial Categorisation of ‘Repeat Claims’
with Security of Payment Act” had examined a number of Singapore
decisions on the permissibility of “repeat claims” under the Building
and Construction Industry Security of Payment Act (“SOP Act”). It
concluded that these decisions illustrated that the Singapore courts
had not conclusively determined the meaning of a “repeat claim”
under s 10 of the SOP Act.
Recently, Justice Lee Seiu Kin (“Justice Lee”) in LH Aluminium
Industries v Newcon Builders Pte Ltd [2014] SGHC 254 (“LH
Aluminium”) had the opportunity to revisit this complex issue and
provide important observations on the different approaches which
the Singapore courts had taken.
Facts
The defendant was the main contractor of a project described
as “Additions and Alterations to Existing 3 Storey Commercial
Development/Light Rapid Transit System Depot cum Station on Lot
3496C MK11 at Choa Chu Kang/Woodlands Road”.
The plaintiff was appointed as the sub-contractor for the aluminium
and glazing installation works for the project.
Between June 2013 and December 2013, the plaintiff repeatedly
served on the defendant the same payment claim in the sum of
$631,683.71 every month (except October 2013). In response to each
claim, the defendant issued a payment response for the sum of $0.
On 2 December 2013, the plaintiff served the final payment claim for
work done up to 22 November 2013 on the defendant (“the Final
Payment Claim”). However, the plaintiff had not carried out any new
work since June 2013. On 20 December 2013, the defendant issued a
final payment response for the sum of $0.
On 3 January 2014, the plaintiff submitted an adjudication application
under the SOP Act. Subsequently, an adjudication determination was
made in favour of the plaintiff. Following the plaintiff’s application
to court to enforce the adjudication determination, the defendant
applied to set it aside. The Assistant Registrar dismissed the
defendant’s application and the defendant appealed to the High
Court.
23
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
4 REPEAT CLAIMS
Litigation & Dispute Resolution
UNDER THE
SECURITY OF
PAYMENT ACT CHOOSING THE
LESSER EVIL
Repeat Claims
One of the issues raised by the defendant in LH Aluminium was that
the plaintiff’s Final Payment Claim was prohibited under s 10(1) of the
SOP Act as it was a claim that merely repeated earlier claims without
any additional item of claim.
In essence, s 10(1) of the SOP Act provides that a claimant may
serve one payment claim for a progress payment on the relevant
payor under the contract in question. Section 10(4) of the SOP
Act provides that nothing in s 10(1) shall prevent the claimant from
including in the payment claim (“Claim B”) an amount that was the
subject of a previous payment claim (“Claim A”) served under the
same contract which had not been paid by the payor. However, Claim
B must have been served within 6 years after the construction work
to which the amount in Claim A relates was last carried out.
The defendant argued that a literal reading of s 10(1), together with s
10(4), showed that s 10(1) prohibited repeat claims given that s 10(1)
stipulated that only one payment claim may be served for a progress
payment and the word “including” in s 10(4) indicated that the
amount in Claim A should only form part, and not the whole, of Claim
B. This position was supported by Doo Ree Engineering & Trading Pte
Ltd v Taisei Corp [2009] SGHC 218 (“Doo Ree”), where an Assistant
Registrar held that the service of repeat claims was not permitted on
a plain reading of both s 10(1) and s 10(4).
Justice Lee, however, observed the following:
> the Court of Appeal in Lee Wee Lick Terence (alias Li Weili
Terence) v Chua Say Eng (formerly trading as Weng Fatt
Construction Engineering) [2013] 1 SLR 401 (“Terence Lee”)
noted in passing that it did not agree with the Assistant
Registrar’s finding in Doo Ree that s 10(1) prohibited all repeat
claims;
> following Terence Lee, there was a split in judicial opinion on
whether repeat claims are allowed under the SOP Act;
24
> on the one hand, Justice Woo Bih Li in JFC Builders Pte Ltd
v LionCity Construction Co Pte Ltd [2013] 1 SLR 1157 (“JFC
Builders”) considered that s 10(1) prohibited the making of a
repeat claim (defined as “one which merely repeats an earlier
claim without any additional item of claim, whether for additional
or repair work or otherwise”), notwithstanding the obiter dicta of
the Court of Appeal in Terence Lee;
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International Capabilities Delivered LocaLly
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Jan-Mar 2015
(continued)
4 REPEAT CLAIMS
Litigation & Dispute Resolution
UNDER THE
SECURITY OF
PAYMENT ACT CHOOSING THE
LESSER EVIL
> on the other hand, Justice Quentin Loh in Admin Construction
Pte Ltd v Vivaldi (S) Pte Ltd [2013] 3 SLR 609 (“Admin
Construction”) opined that Terence Lee had “put the matter
beyond doubt” and a repeat claim was not prohibited unless the
payment claim or any part thereof had been validly brought to
adjudication and dismissed on its merits;
> extra-judicially, Terence Lee “has been understood to stand for
the proposition that the [SOP] Act only prohibits a repeat claim
that has been adjudicated and dismissed on its merits”; and
> the split in judicial opinions as evidenced by the differing judicial
opinions in JFC Builders and Admin Construction was noted by
the Assistant Registrar in Associate Dynamic Builder Pte Ltd v
Tactic Foundation Pte Ltd [2013] SGHCR 16.
Choosing the Lesser Evil
Justice Lee took the view that s 10 of the SOP Act was “equivocal
as to whether a repeat claim is permitted and it is a matter of judicial
policy in interpreting the Act so as to achieve its objectives”. He
recognised that there were both advantages and disadvantages in
disallowing repeat claims.
On the one hand, Justice Lee noted that “permitting repeat claims
opens the [SOP] Act to abuse by rendering the deadline nugatory
as a claimant could merely issue and serve a repeat claim”. But he
felt that “the more serious concern is that this paves the way for a
claimant to ambush the respondent by repeatedly serving the same
payment claim month after month” (which LH Aluminium was a
good example of). The danger was that once the respondent failed
to serve a payment response within the deadline, the claimant could
file an adjudication application which he would be virtually certain of
obtaining a determination in his favour.
On the other hand, Justice Lee reasoned that permitting repeat
claims would provide “a cooling off period during which the claimant
can carefully consider his options or monitor developments and still
have the option of resurrecting his right to adjudication by submitting
a repeat claim”.
25
As the “benefits and pitfalls in the two approaches [were] finely
balanced”, Justice Lee opined that the critical issue was which
approach was “more capable of being ameliorated by industry
practice and judicial policy”. In his view, permitting repeat claims was
the “lesser evil”, given that “the industry appears to have developed
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International Capabilities Delivered LocaLly
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Jan-Mar 2015
(continued)
4 REPEAT CLAIMS
Litigation & Dispute Resolution
UNDER THE
SECURITY OF
PAYMENT ACT CHOOSING THE
LESSER EVIL
the practice of volleying back zero payment responses to repeat
payment claims”. Moreover, prohibiting repeat claims would result
in an increase in adjudication applications. In any event, Justice
Lee believed that the passing observations in Terence Lee were
“too deeply entrenched to be changed” and preferred its approach
which permitted repeat claims that had not been dismissed by an
adjudicator on its merits.
Conclusion
On the facts, Justice Lee found that the Final Payment Claim was
a valid claim and did not breach s 10(1) of the SOP Act. Hence,
the adjudication determination based on the Final Payment Claim
was a valid determination. After considering the defendant’s
other arguments, he eventually dismissed the defendant’s appeal.
Nevertheless, he recognised that his decision on the
issue of repeat claims was the “result of a balancing
exercise between two unsatisfactory situations” and
urged a holistic review of the SOP Act, as there were
also other areas that were complicated and vague.
Indeed, legislative reform may well be the only way
to resolve the repeated difficulties caused by the
interpretation of repeat claims under the SOP Act.
For more information, please contact:
R Nandakumar
Deputy Head, Litigation and Dispute Resolution
(65) 6381 6833
nandakumar@rhtlawtaylorwessing.com
Valerie Seow
Practice Trainee
(65) 6381 6993
valerie.seow@rhtlawtaylorwessing.com
26
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
55 Essential
Real Estate
Things to
Know About
Easements
This article provides an introduction to easements and updates on
recent developments in the law of easements in Singapore.
1. What is an Easement?
An easement is the right of a landowner (“A”) to use another
landowner’s (“B”) land in a certain way. Such a right can be exercised by
A over a general or specific part of B’s property, for example, a right of
way. An important characteristic of an easement is that it is attached to
the property and not to the owner. As such, an easement cannot be sold
separately from the land but must be passed on with the land whenever
the land is transferred to a new owner.
An easement can arise from a simple scenario. Suppose that the
corner tip of A’s roof encroaches two inches over B’s property line.
This encroachment will require a variance of the usual bylaw and an
easement for A’s usage of two inches (even though it only encroaches
in the air-space up at the roof top level). In this scenario, the location
of the roof-tip easement will be paramount. If the tip abuts into B’s
windows, a potential buyer may reject the property. On the other hand,
if it is adjacent to an empty wall, it will probably be hard to notice until
after the buyer has moved in.
2. Why Are Easements Important?
Easements are important because they may affect the potential buyer’s
decision to purchase a property. Also, where A has a right of way over
B’s land, while B has a legal right to fence up B’s land that is affected
by the easement, B’s right must not substantially interfere with A’s
reasonable use of the easement (Wee Siew Bock and another v Chan
Yuen Yee Alexia Eve and another appeal [2012] 3 SLR 1053).
There are some practical questions to consider where easements are
concerned:
> Will an easement give A more access to B’s property than desired?
If so, how will it affect B’s life?
> Will an easement affect or jeopardize the future resale of B’s
property?
> If an easement is acceptable to B now, will it also be acceptable to
a potential buyer?
27
With Singapore becoming increasingly built up, disputes between
neighbours over the creation and scope of easements, such as boundary
lines, obstruction of through-ways and parking along the public road,
have become commonplace. In the past two years, there have been a
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(continued)
55 Essential
Real Estate
Things to
Know About
Easements
few notable court cases involving disputes over easements.
3. Are There Different Types of Easements?
Yes, easements may be created by: (a) express grant; (b) implication;
and (c) prescription. For all registered land in Singapore, the Land Titles
Act (“LTA”) is the governing statute. The LTA governs both registered
easements (under s 97 of the LTA) as well as unregistered easements
preserved on registered land (under s 46(1)(ii) of the LTA). In particular,
the LTA sets out the mode of acquisition and extinguishment of
easements.
Express grants of easements must be made by deed and in the English
language only.
Implied easements can arise under two provisions of the LTA:
(a) Section 98 of the LTA provides for implied easements for the
passage or provision of water, electricity, drainage, gas and sewerage
through adjoining units in a development. It also imposes an obligation
on all parties (including their successors) enjoying the benefit
of implied easements to contribute to the cost of construction,
maintenance or repair of the sewers, pipes, cables, wires or ducts;
and
(b) Section 99(1A) of the LTA provides that easements (of way
and drainage, for party wall purposes and for the supply of water,
gas, electricity, sewerage and telephone and other services) can
arise where they are “appropriated or set apart” on the approved
subdivision plan, “as may be necessary for the reasonable enjoyment”
of the property.
Under the common law, an easement by prescription arises through
A’s use of B’s land for a continuous period of 20 years, which was done
openly without B’s permission and was not effected by force. The rights
arising under easements by prescription have been cut down by
s 46(1)(ii) of the LTA which provides that an easement by prescription
will only be valid if the easement was already subsisting at the date
on which the land concerned became registered land. Hence, it would
appear that only pre-existing easements by prescription are valid on
registered land. No new easements by prescription may arise today visà-vis registered land.
28
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55 Essential
Real Estate
Things to
Know About
Easements
4. What Are Some Of The Key Recent Case Law
Developments Involving Easements?
Implied Easement
Implied easements have featured in two High Court decisions:
Muthukumaran s/o Varthan and another v Kwong Kai Chung and
others [2014] SGHC 204 and Andrew John Hanam v Lam Vui [2013] 4
SLR 554.
In the first case, the plaintiff owners of a 2-storey shop-house, which
did not have a staircase built within their unit, sought, amongst others, a
declaration under s 99(1A) of the LTA that they had an implied easement
of a right of way over the staircase of the adjacent unit owned by
the defendants. However, the plaintiff owners failed to produce the
approved subdivision plan in evidence. Although the staircase was drawn
on the development plans approved by the authorities, they did not
clearly and specifically indicate that the plaintiff owners were to have a
right of way over the staircase. Therefore, the High Court dismissed the
plaintiff owners’ application.
The second case concerned a neighbourly dispute where the plaintiff
owner of a 3-storey semi-detached house complained of water leakage
in his property and applied to the High Court to gain access to the
defendants’ adjoining property, a 2-storey semi-detached house, after
the parties had failed to agree on such access. The properties were
separated by a 2-storey dividing wall (“the Party Wall”), while a side wall
of the third storey of the plaintiff owner’s property sat above his side of
the Party Wall (“the Extended Side Wall”).
The plaintiff owner applied to inspect the Party Wall, to carry out tests
to determine the source of the water leakage and to carry out repairs to
the Party Wall and the Extended Side Wall. The plaintiff owner asserted
an implied easement “for party wall purposes” that “was necessary for
the reasonable enjoyment” of his property under s 99(1A) of the LTA.
The High Court dismissed the plaintiff owner’s application on other
grounds, but observed that no such implied easement would arise in
any event. Even though s 99(2) of the LTA provided for implied ancillary
rights and obligations that were reasonably necessary to make the
easement implied under s 99(1A) of the LTA for party wall purposes
effective, Parliament could not have intended such rights to include
rights of access and entry.
The High Court also observed that in cases where subdivision
approval was given on or after 1 March 1994, a subdivision plan must
29
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Real Estate
Things to
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Easements
be tendered in evidence if a party wished to rely on an easement
that is “appropriated or set apart” on the subdivision plan to support
a contention that the scope and right conferred by the easements
enumerated as implied under s 99(1A) of the LTA went beyond what
was typically authorised by them.
These two cases illustrate the strict approach the Court
takes when considering whether an implied easement
can arise under s 99(1A) of the LTA. As the Court will
be reluctant to extend the scope of the words in s 99 of
the LTA, a potential buyer of a property should carefully
consider the subdivision plan, or engage a certified
surveyor to prepare a subdivision plan, so as to be aware
of any easement arising.
Easement by Prescription
In Fragrance Realty Pte Ltd v Rangoon Investment Pte Ltd [2013] 2
SLR 1007, the subsidiary proprietors of a block of flats in a development
erected a retaining wall on the adjacent property owned by the
plaintiff, resulting in an encroached area between the retaining wall
and the boundary line of the development. Since 1961, residents of the
development had used the encroached area to park their cars and store
their personal belongings in an aluminium shed put there. The plaintiff’s
property became registered land in 1992.
In 2012, the plaintiff brought an action against the present subsidiary
proprietors of the development to recover the encroached area. One
of the arguments raised by the present subsidiary proprietors was that
as their predecessors had used the encroached area for more than
20 years preceding the date on which the plaintiff’s property became
registered land, an easement by prescription over the encroached area
had arisen.
The High Court, however, rejected the claim to an easement by
prescription over the encroached area because:
30
(a) the parking of vehicles and storage of personal belongings
on the encroached area which was enclosed by the retaining wall
constituted exclusive possession of that area and completely ousted
the right of the plaintiff to use the encroached area; and
(b) there was less than 20 years of continuous user of the
encroached area with the consent or acquiescence of the former
registered owner of the plaintiff’s property.
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
55 Essential
Real Estate
Things to
Know About
Easements
5. Can The Singapore Courts Create, Vary or
Extinguish An Easement?
Yes, effective 15 August 2014, the LTA was amended to give the
Singapore Courts the power to create, vary or extinguish an easement.
This amendment was made following comments by the High Court
judge in Botanica Pte Ltd v Management Corporation Strata Title Plan
No 2040 [2012] 3 SLR 476 that Parliament should “review the necessity
to introduce into our LTA the express power to modify easements”, in
view of the “increased activity in the property redevelopment sector”
and the likelihood of further reducing litigation.
Under s 97A of the LTA, the Court may make an order creating an
easement over registered land if the easement is reasonably necessary
for the effective use or development of other land (whether registered
or unregistered) that will have the benefit of the easement, and is
consistent with the public interest. Under s 105A of the LTA, the Court
may make an order to vary or extinguish wholly or in part the easement
(including any implied easement).
For more information, please contact:
Sandra Han
Partner
(65) 6381 6902
sandra.han@rhtlawtaylorwessing.com
Chen Yiyang
Associate
(65) 6381 6897
yiyang.chen@rhtlawtaylorwessing.com
31
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Issue No. 6
Jan-Mar 2015
6GAZING INTO THE
Taylor Wessing UK
TECH CRYSTAL
BALL – TMC
PREDICTIONS FOR
2015
So what will 2015 bring for the Technology, Media and Communications
sectors? In this piece we get out our Taylor Wessing crystal ball (cut in
a very forward thinking shade of green glass) and try to predict some
key developments in a few of the areas in which we’re seeing the most
disruption and growth.
We’re not focusing on any particular country or market, but rather on
industry developments (although we have thrown in a few legal issues
where relevant, we couldn’t help ourselves). We have limited ourselves
to one or two predictions in each of the areas we’ve highlighted - after
all we wouldn’t want our insight to spoil the festive fun of guessing what
the next twelve months might bring for the sector...
(a) Data will be the new medicine
International Data Corporation (“IDC”) predicts that with healthcare
costs rising for our ageing population, operational efficiency will become
critical at 25% of hospitals. Driven by the need to improve quality
and manage costs, 35% of hospitals will create a comprehensive
patient profile by 2016, to allow the delivery of personalised treatment
plans. The advantages for healthcare providers are obvious: improved
communication between medical professionals would remove duplication
and inconsistency, drive efficiency and potentially improve patient care
and outcomes. However, increased use of data also brings increased
security risks and IDC predicts that healthcare organisations will typically
have experienced between 1 and 5 cyberattacks by the end of the year.
Healthtec suppliers will inevitably be pressured into providing robust data
security commitments and we are likely to see an increase in risk sharing
and a growth in the cyber insurance market, not to mention more
litigation in the market. Clear and robust contracts with a fair allocation
of risk will be key to protecting suppliers to the sector.
(b) ... but it won’t cure everyone
There is a lot of ‘chatter’ about how much people are prepared to pay to
live in an ad-free cyber world and protect their personal data. A recent
survey in Germany found 35% of people were prepared to pay up to
EUR 41 per year to do so. We have already started to see this type of
offering in the market. There has been much speculation, for example,
on the future of Ello’s ad-free social network. The manifesto bravely
states:
32
“Your social network is owned by advertisers ... Every post you
share, every friend you make, and every link you follow is tracked,
recorded, and converted into data. Advertisers buy your data so
they can show you more ads. You are the product that’s bought and
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Issue No. 6
Jan-Mar 2015
(continued)
6GAZING INTO THE
Taylor Wessing UK
TECH CRYSTAL
BALL – TMC
PREDICTIONS FOR
2015
sold ... We believe there is a better way. We believe in audacity. We
believe in beauty, simplicity, and transparency. We believe that the
people who make things and the people who use them should be in
partnership.”
To back this up Ello converted to a Public Benefit Corp, whose charter
states:
> Ello shall never make money from selling ads;
> Ello shall never make money from selling user data; and
> In the event that Ello is ever sold, the new owners will have to
comply by these terms.
With the platform attracting as many as 40,000 requests for registration
per hour, early signs were good, although take-up has reportedly since
waned. It is impossible to predict whether it will gain mass market
acceptance and dent Facebook’s dominance, although one only has
to recall a certain Myspace to wonder. It is not only the sheer scale
of Facebook’s audience but also the increasing pervasiveness of its
partnership ecosystem that would suggest that any such tipping point
is some way off. “Sign up through Ello” may well be a check box we see
in the future, but even if it’s unlikely to be ubiquitous as early as 2015,
the ‘no ads, no data sharing’ business model is likely to be a growth area,
along with growth of the “freemium” model where users can purchase
additional functionality, bringing platforms into the arena of e-commerce
laws including the Distance Selling Regulations.
(c) Users will write the news
The viral spread of compelling user generated content has been aided
by, and driven, the growth of major social platforms such as Facebook
and Twitter and, of course, YouTube. User content is increasingly being
used by broadcasters and publishers to report real time events, enabling
broadcasters to scoop a story before competitors. An entire eco-system
is developing over the ability to source and distribute such content in
real time, brokering publishing deals with users over their mobile phone
footage. 2015 is likely to see the growth of this phenomenon accelerate.
The ability to assess risks around data protection and validity and
ownership of intellectual property rights is key to the ability of publishers
to use the content and also to the value of the content. Those
businesses with the platforms ready to source and licence user content
in a way that addresses these legal risks, are likely to be much in demand
and see values increase significantly.
(d) Content, not adverts
33
As well as use of user content, ‘content marketing’ has grown
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Issue No. 6
Jan-Mar 2015
(continued)
6GAZING INTO THE
Taylor Wessing UK
TECH CRYSTAL
BALL – TMC
PREDICTIONS FOR
2015
significantly over the last few years and this looks set to continue in 2015.
This is caused, in part, by consumer sentiment (not wanting to be ‘sold’
to) but also the evolution of Google’s and other search engine algorithms
and the increasing value they place on content. According to the Content
Marketing Institute, content marketing is “a marketing technique of
creating and distributing valuable, relevant and consistent content to
attract and acquire a clearly defined audience – with the objective of
driving profitable customer action.” In short it is “the art of communicating
with your customers and prospects without selling”.
Although perhaps not as real-time in some cases as using content for
news reporting, to successfully use content, marketing brands need to be
able to identify and publish content that is current, and original.
Content very quickly loses its currency and, in the hands
of a competitor, loses its originality so brands need to be
able to act fast. Many mature brands find a real tension
exists between this need and the need to clear the
content against legal risks (such as IP infringement, false
endorsement or possible defamation) and company brand
policy. Brands and agencies, therefore, need to develop
clear and comprehensive content marketing policies, along
with actionable ‘decision-trees’, which take into account
the relevant legal and brand risks, in order to allow
content to be cleared (or rejected) quickly and used in the
appropriate channels.
(e) We’ll all be VCs
In 2014, more corporates caught the VC bug. The increased scale and
pace of innovation and possibilities for rapid growth on an international
scale have meant that, for many corporates, partnering with startups has
become a core business imperative rather than the stuff of niche business
units put out to pasture at the first signs of a downturn. Partnering is
increasingly taking the form of investment, often by way of equity, and
one only has to walk around Shoreditch and look at the number of startup
accelerators and gateways powered by global brands to get a flavour of
the level of activity (do stop for a coffee with us at our Tech City office if
you pass by).
34
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(continued)
6GAZING INTO THE
Taylor Wessing UK
TECH CRYSTAL
BALL – TMC
PREDICTIONS FOR
2015
(f) Marketing to people won’t be enough
Gartner predicts that by 2016, $2.5 billion in online shopping will be
undertaken by digital assistants. Brand owners and agencies will need to
get wise to marketing to machines as well as people. Can a machine be
capable of understanding and agreeing to the all-important small print in
the forms of terms of sale, refund policies, privacy and cookie statements
and so on? This raises questions that will need to be tackled, if not in 2015,
then some time soon.
(g) Mobile payments might finally catch on which
might drive a wider eco-system
The mobile payments market has been on a slow burn, despite the arrival
of Google Wallet in 2011 and widespread take-up in Japan as well as in
some developing markets. New entrant to the market, Apple Pay, may just
provide the fillip the industry needs to drive widespread adoption of such
technology and will hopefully benefit the whole sector as a result.
One of the main reasons for the slower uptake in the West is concerns
around security of payment data and fraud. Apple claims to have
addressed these areas – retail assistants will no longer see payment card
details, name or security code and so fraud leakage from retail payments
would seem almost impossible. However, security of payment data may
remain a key concern and stats suggesting that iPhones are the most
stolen handset might hinder take-up. In this regard, Apple points out that
the phone does not store credit card details; however, given a key element
of the functionality depends on taking a picture of the card, it will be
interesting to see the extent to which the fraud risk actually reduces.
The regulatory environment in Europe is more challenging for payment
service providers than that in the USA, both in the area of payment
services regulation and in relation to data protection. Authentication of
use will become increasingly important and regulators are likely to require
payment platforms to require stronger access protection. This is likely to
drive new opportunities in the access authentication sector which we see
as a key beneficiary of the increase in mobile payments.
2015 could be a make or break year given the legislative developments
in both payment services and privacy promised during the next twelve
months. For more on this, see our predictions for Financial Services in
“Financial Services – predictions 2015” and “When will there be a new EC
data protection Regulation?”.
35
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Issue No. 6
Jan-Mar 2015
(continued)
6GAZING INTO THE
Taylor Wessing UK
TECH CRYSTAL
BALL – TMC
PREDICTIONS FOR
2015
(h) Privacy will become a differentiator
The increased digitisation of our lives brings increased security risks
and while the continued pace setting of key players such as Google and
Apple may drive consumer trust generally (although it’s fair to say that
the market leaders also face considerable public scrutiny), the inevitable
need to trust personal data to the cloud will direct consumers towards
those brands that inspire the most confidence in their security. Businesses
will, consequently, need to invest more in data security, invest more in
their messaging about data security and, critically, think more carefully
than ever before about the value of leveraging customer data against
the cost of denting the trust of their customers. A suitably worded
privacy policy might well allow data to drive ad revenue but, as we’ve
seen by Facebook’s ad reach dwindling, such revenue may be short lived.
Against this backdrop, the potential introduction of the Data Protection
Regulation (see our article, “When will there be a new EC data protection
Regulation?” for more) will sharpen the teeth of privacy laws (exactly
by how much remains to be seen), and instil the need for ‘privacy by
design’. In short, whilst privacy may never be sexy, it will increasingly be a
differentiator.
(i) Game over for freemium?
The freemium model has been, some would argue, the fuel behind the
rapid growth of the apps market. It has also given a well-needed boost
to the games sector over the last few years. However there have been
growing concerns over exactly what is meant by “freemium”, and the
extent to which users are tempted into downloading a ‘free’ app or game
only to find that in-app or in-game purchases are necessary in order to
really enjoy its functionality or gameplay. An adjudication was published
earlier this year by the UK Advertising Standards Authority (“ASA”) in
respect of a marketing email for EA’s freemium app game, Dungeon
Keeper. In summary, the ASA found that EA had breached the UK CAP
Code and stated that:
36
“Although the game activities were available without cost to the
player, we considered that for players to achieve the gameplay
experience that was reasonable for them to anticipate, it was likely
that they would need to spend money on the premium currency. The
ad should therefore have made clear what consumers could expect
from the free elements and that in-app purchases would have a
significant impact on gameplay ... While we understood that the
average consumer would appreciate that free-to-play games were
likely to contain monetisation functions, we considered that they would
also expect the play experience of a game described as ‘free’ to not be
excessively restricted.”
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
6GAZING INTO THE
Taylor Wessing UK
TECH CRYSTAL
BALL – TMC
PREDICTIONS FOR
2015
2015 is likely to see the ASA flexing its muscles which might affect
the way in which operators market their games and the extent to
which gameplay is dependent on in-game purchases. Given the
relatively low level of conversions generally, operators that rely on
acquiring significant numbers of players quickly might well need to
look at their business models.
(j) Clouds will continue to form
The fact that nearly half the world’s population will effectively
have a computer in their pocket in 2015, will continue to drive
the growth of cloud-based services, most notably centrally
coordinated applications that can be delivered to any device,
enabling users to maintain synchronous content and application
state across multiple devices. Increased use of cloud models will
continue to drive demands for service levels around availability
(particularly from business users where a one-size-fits-all
approach no longer works) as well as driving concerns around
data security and portability. However, cloud will, and arguably has,
become part of the norm, and it is just a question of how much of
the sky is covered.
(k) Laws will change
Here’s some real insight for you: the laws will change, it will take
the industry and its lawyers a while to work out how they apply
in practice, and then, by the time we all do, technology will have
moved on and the laws will be out of date. In some ways 2015 will
be much like any other year ... .
For more information, please contact:
Graham Hann
Head, Technology Group
Taylor Wessing LLP, London
(44) 20 7300 4839
g.hann@taylorwessing.com
37
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
7TOP OF THE NEWS
News and Deals
RANKED IN IFLR
1000, 2015 EDITION
RHTLaw Taylor Wessing LLP has been ranked in the 2015 edition of
IFLR1000 in the following Practice Areas:
>> Banking & Finance
>> Capital Markets
>> Energy & Infrastructure
>> Mergers & Acquisitions
In addition, Managing Partner Tan Chong Huat as well as Partners
Azman Jaafar, Tan Choon Leng and Ch’ng Li-Ling have been listed as
Leading Lawyers.
TOP OF THE NEWS
RANKED IN THE
LEGAL 500, 2015
EDITION
RHTLaw Taylor Wessing LLP has been ranked in the 2015 Edition of The
Legal 500 in the following Practice Areas:
>> Corporate/M&A
>> Intellectual Property
>> TMT
>> Employment
>> Banking & Finance
>> Dispute Resolution
TOP OF THE NEWS
LAUNCH OF
INDONESIAN
COMPLIANCE
SUBSIDIARY
RHTLaw Taylor Wessing LLP announces the establishment of its
Indonesian subsidiary PT RHT Solusi Indonesia (“RHT Solusi”) on 8
October 2014, the first and only Indonesian-incorporated entity to offer
compliance and technology risk management solutions to financial
institutions and corporates operating within the country. RHT Solusi is
a joint venture between RHTLaw Taylor Wessing LLP of Singapore and
Hanafiah Ponggawa & Partners of Indonesia, both leading law firms in
Southeast Asia.
38
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International Capabilities Delivered LocaLly
Issue No. 6
Jan-Mar 2015
(continued)
7 TOP DEALS
News and Deals
ADVISED UNITED
ENGINEERS
LIMITED IN SALE
AND PURCHASE
AGREEMENT
RHTLaw Taylor Wessing LLP advised United Engineers Limited
(“UEL”) in its sale and purchase agreement with Oversea-Chinese
Banking Corporation Limited (“OCBC”). Pursuant to the agreement,
the purchase by OCBC’s wholly-owned subsidiary of 100% issued
share capital and shareholder’s loans of UEL’s special purpose vehicles
(“SPVs”), UE Orchard Pte Ltd and UE Somerset Pte Ltd, for an
aggregate cash consideration of approximately S$196,000 and S$353
million respectively, was completed on 30 September 2014. The
SPVs are the developers of the redevelopment project on the former
Specialists’ Shopping Centre and Hotel Phoenix site located at 277
Orchard Road, which is now known as orchardgateway.
Partners Kaylee Kwok and Ch’ng Li-Ling led the team on this deal.
TOP DEALS
ACTED FOR HONG
LEONG FINANCE
IN INITIAL PUBLIC
OFFER
RHTLaw Taylor Wessing LLP acted for Hong Leong Finance (“HLF”)
as the counsel for the Sponsors in the initial public offer by mm2 Asia
Ltd. (the “Company”) of 37,400,000 placement shares priced at S$0.25
each. The Company is a producer of movies, television and online
content, and also a distributor of movies. Headquartered in Singapore,
the Company has a presence in China, Hong Kong, Malaysia and Taiwan.
Movies which the Company either co-produced and/or distributed
include Ah Boys to Men I and II, and The Journey. The Company is the
first local movie production company to seek a listing in Singapore.
Partner Ch’ng Li-Ling led the team on this project.
TOP DEALS
ADVISED NEWS
CORP ON FIRST
DEAL IN INDIA
39
RHTLaw Taylor Wessing LLP’s Corporate Technology Group advised US
media giant News Corp on its first deal in India, a $30 million investment
for a 25 percent stake in Elara, which operates the real estate portal
PropTiger.com. News Corp’s investment continues the acceleration of
its global digital footprint across Asia.
Partner Jonathan Kok and Partner (Foreign Lawyer) Lee Bagshaw led
the team on this deal.
p
International Capabilities Delivered LocaLly
Joint Chief Editors Dr. Tan Lay Hong
layhong.tan@rhtlawtaylorwessing.com
Alvin Chen
alvin.chen@rhtlawtaylorwessing.com
RHTLaw Taylor Wessing LLP
Asia > Middle East > Europe
Six Battery Road #10-01, Singapore 049909
Tel. +65 6381 6868
Fax. +65 6381 6869
www.rhtlawtaylorwessing.com
© RHTLaw Taylor Wessing LLP 2015
This publication is intended for general information and to highlight issues. While we endeavour to ensure its accuracy and completeness, we do not represent nor warrant its accuracy and
completeness and are not liable for any loss or damage arising from any reliance thereon. It is not intended to apply to specific circumstances or to constitute legal advice.
RHTLaw Taylor Wessing LLP (UEN No. T11LL0786A) is registered in Singapore under the Limited Liability Partnerships Act (Chapter 163A) with limited liability. RHTLaw Taylor Wessing LLP
is a Singapore law practice registered as a limited liability law partnership in Singapore (“The LLP”). It is a member of Taylor Wessing, a group which comprises a number of member firms
which are separate legal entities and separately registered law practices in particular jurisdictions. The LLP is solely a Singapore law practice and is not an affiliate, branch or subsidiary of any
of the other member firms of the Taylor Wessing group. A list of all Partners and their professional qualifications may be inspected at our main office at Six Battery Road #10-01, Singapore
049909.