Love.Law.Robots. by Ang Hou Fu

Law

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Getting a practising certificate might be an annual ritual for most lawyers in law firms in Singapore. Still, a recent case — Choo Cheng Tong Wilfred v Phua Swee Khiang — reminds us of its critical significance in our legal industry.

Suffice to say, because the lawyer did not have a practising certificate, he was not authorised to practice law in Singapore. Because he was not authorised, he was not entitled to any fees for legal work performed.

This rarely comes up because lawyers here must be in law firms to get a practising certificate, so this is an undeniable indicator of whether you are authorised or not. However, the implications are critical for anyone thinking of offering an alternative to law firms. Would you provide your expertise outside of a law firm if you can't get paid for it? By the way, it's a criminal offence too.

Let's say you want to practice law, but you don't want to be in a law firm. For example, maybe you aren't interested in the full service or boutique firm sort of business and are thinking of something radically different. Perhaps you would like to focus on a particular area of law and provide some consultancy, like Radiant Law (NB: Radiant Law is a law firm, more on this later). Maybe the business model is radically different. For example, some of your partners might be accountants or tech specialists, and you can't have them as directors or shareholders in a law firm without special approval.

This issue becomes thorny if you haven't considered it from the start. Imagine you think of an excellent idea for the public. You get funding from a VC, and the programmer who made this product is the other director of your company. If you didn't find out whether your company is providing legal services, you might well have doomed your project with the tint of illegality.

I know it when I see it.

Image by Kevin Phillips from Pixabay

So, what do you need to avoid if you do not want to provide legal services as an advocate and solicitor? Other than acts expressly prohibited under the Legal Profession Act, the case referred to the Turner test at [79] (emphasis added).

(a) Other than those specific acts listed in ss 30(1) and 30(2) of [the Legal Profession Act], an act is an act of an advocate and solicitor when it is customarily (whether by history or tradition) within his exclusive function to provide , e.g. giving advice on legal rights and obligations, drafting contracts and pleadings and pleading in a court of law.

(b) A person acts as an advocate and/or solicitor if, by reason of his being an advocate and solicitor, he is employed to act as such in any matter connected with his profession.

[2021] SGHC 154Tan Siong Thye J:The decision of Choo Cheng Tong Wilfred v Phua Swee Khiang

In the instant case, the lawyer might call himself a “business consultant”, but he gave legal advice (which the court noted is a quintessential service given by lawyers). Furthermore, the clients hired him because of his legal expertise. Therefore, the lawyer provided legal services as an unauthorised person and was not entitled to any fees for over a decade's worth of work.

I hate to say this, but the Turner test is an “I know it when I see it” test. If a user provides his own answers and an algorithm written by a lawyer turns it into a will, is the lawyer providing legal advice? If more law firms start to advise on adopting technology in contracting, would it become illegal for others to do the same?

Profound Implications

Image by S. Hermann & F. Richter from Pixabay

If the definition of providing legal services is too vague, that will cause a chilling effect on any product that borders on legal.

The reason why legal profession regulation is (perhaps) so restrictive is the protection of the public. The decision highlights two areas: lawyers with practising certificates can be regulated by the Law Society, and law firms pay insurance to cover professional negligence claims. There are several other rules relating to how a lawyer must undergo a practice management course before he can practice as an owner of a law firm or in his own name, and restrictions on management and ownership of law firms are also on this basis.

According to a recent article, this is perhaps a vivid illustration of why law firms or lawyers “will always be needed”. It's hard for me to imagine how jurisdictions will give up on protecting the public from fraudulent providers without some form of regulation. This kind of regulation would try to ensure some expertise behind products purporting to be legal.

Vertically Integrated Legal Service | The PracticeNeville Eisenberg and Richard Susskind.The PracticeHLS Center on the Legal Profession

On the other hand, it's hard to pin down what is unique about a lawyer's knowledge or expertise. With enough time on the job and the right training (not necessarily an LLB), Nonlawyers Can Be as Competent as Lawyers in Handling Contracts Work. In fact, lawyers might not possess all the skills required to study a legal process and figure out how to deliver it more efficiently or effectively. If lawyers can't do it properly, why can't someone else have a go at it?

For now, legal services backed by law firms seem to be the current equilibrium. Accounting firms like PwC have their own law firm. Radiant Law might not serve a client found on the street, but they are still a law firm. Perhaps we need a good rethink of what a law firm means today at some level. Furthermore, it would really help if the exceptions (if we have any) for non-traditional law firms were transparent.

Conclusion

Regulation is a serious roadblock if we want to see legal services being delivered in any alternative method. As Susskind and Eisenberg say, incorporating lawyers and law firms might be critical for alternative service providers to go around such issues. However, not everyone can incorporate a law firm or is willing to do this. Hopefully, the authorities can consider more transparent and sensible rules to limit the drawbacks of being unauthorised.

#Law #LegalTech #Singapore

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Ever since I was a law student, I loved BAILII, as well as its international counterparts AustLII and CanLII. This was in the previous decade, where such free sources were still a work in progress. So what if they were ugly? It was free and spared me a trip to the library. Over the years, they have certainly improved. You can still see the echoes of the previous century in the website design of BAILII, but its scope has expanded immensely. You can now read leading cases by subject there, just like a law student.

So, I was impressed when I read that court judgements in the UK will get a new home. BAILII will continue, but I would think the accessibility of such resources would be more secure now that the UK government is behind it.

But this post isn't really about BAILII or the UK. It's about the Singapore Supreme Court judgements page.

Supct | Supreme Court Judgmentslogo

Sneakily, the Singapore Supreme Court judgements went down about two weekends ago while I was deciding how to write this post. It appeared that an iframe on the webpage was misconfigured. It was odd and foreboding. What happened? I panicked. Is this the last time I would get free access to the Supreme Court judgements?

The mystery was solved a few days later — the page is now “enhanced” by CrimsonLogic. So the judgements are now served from the eLitigation website, which is the filing system for the Singapore Courts. If you ignore the different domains, the site now has better search capabilities and the ability to read judgements on a web page rather than PDF. Oh, the icons look cuter as well.

The conversion of PDF judgements to HTML is significant to me. My nightmares converting judgement PDFs to text for machine learning are well-documented on this blog. The conversion appears quite direct with the headers and footers removed. I hope this is fully automated because more work is then required to convert the judgement again for LawNet, now with metadata added and PDF artefacts removed.

Mining PDFs to obtain better text from DecisionsAfter several attempts at wrangling with PDFs, I managed to extract more text information from complicated documents using PDFMiner.Love.Law.Robots.Houfu

This page, however, still remains the most frequently updated page for Supreme Court judgements. Instead of reading clunky PDFs, I can now read them in HTML. The search function is also more powerful. As the archive now goes back to 2000 (including unreported judgements), this resource will probably be the best way to freely access Supreme Court judgements here. It might even rival LawNet for most purposes.

Now that the page is more powerful, it makes the secrecy about it even more confounding. From a UX viewpoint, the way results are displayed make it look like a PDF is the only way to read them. The hint to the search box still suggests that you can only search case titles. Why improve something if you're not going to show it off?!

_ Update 9 August 2021 : I complained about the UX but it looks like it's now corrected. The not so reliable HTML is the main way to access the judgements on the site, while the PDF is hidden in a download PDF button at the top when you view the judgement itself._

This brings us back to BAILII and the UK. As the commentary clarifies, the goal is greater access to justice. Greater access to justice means that judgements are not only accessible to lawyers but to students, researchers, litigants in persons, the media and even the momentarily curious.

My most striking takeaway from the news in the UK is that perhaps the Judiciary or the Attorney-General's Chambers are not the best bodies to provide judgements or legal materials to the general public. In the UK, the National Archives are now in charge (they already do the legislation), and they have the infrastructure and expertise to do this for a large audience.

In Singapore, we hide such pages in the media section. The media would like to have the latest judgements (probably), but we also pack more than 7500 judgements somewhere on the website. We improve the website but don't tell anybody about it. Judgements appear to be converted from Microsoft Word to PDF format, then to HTML, and maybe XML format. Quite frankly, I don't know what all this is for or where it's going.

And this is the Supreme Court, the highest court in the land.

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Parti Liyani's case continues to excite, at least among lawyers. In its latest chapter, a foreign domestic worker in Singapore applied for compensation from the prosecution. She was found not guilty of her charges after nearly four years and so raised issues about how the prosecution was conducted as the basis for her compensation. The court dismissed this application.

High Court dismisses Parti Liyani’s bid for compensation from AGCThe High Court judge who acquitted former domestic worker Parti Liyani last year of stealing from her employer has dismissed her application seeking compensation of $10,000 from the Attorney-General’s Chambers (AGC). Justice Chan Seng Onn said yesterday that Ms Parti has not succeeded in proving on…www.singaporelawwatch.sgSuperUser Account

Under the relevant section of the Criminal Procedure Code, the court may order compensation if the prosecution was “ frivolous or vexatious”. The phrase has a particular meaning in civil litigation, and it is reflected here in the admission that it would only apply in limited and exceptional cases. Dissatisfaction with how the prosecution was conducted (which was Parti's main complaint) was not sufficient to meet the “ frivolous or vexatious” standard. It has to be more fundamental, such as an improper prosecution or a malicious prosecutor who had no case.

Even if Parti had cleared this requirement under the statute, she would only be allowed to claim up to $10,000. Based on her calculation, she suffered $73,100 in losses, made up of lost income and expenses she incurred to stay in Singapore for the trial. Given that the process took 4 years (which looks fairly quick to me), a foreign domestic worker's loss of income of about $41,000 probably represents the lowest limits in Singapore.

Seeking compensation, ex-maid Parti Lyani advised to go for mediationA former domestic worker’s attempt to seek compensation for her wrongful conviction took a twist yesterday when the judge suggested that the parties go for mediation instead. Ms Parti Liyani is seeking compensation from the Attorney-General’s Chambers (AGC) after her...The New PaperDavid Sun

(Readers should note that a separate provision in the Criminal Procedure Code covers legal costs of the acquitted in a similar manner, which is also subject to the “frivolous and vexatious” standard.)

The judgment hints at further difficulties with claiming compensation. If the quantum became relevant, the idea that being involved in criminal prosecution causes loss of income would surely be contested. Furthermore, mitigation of damages may be relevant — the acquitted should have, before she was acquitted, raised the issue before the prosecution or the court. Rather than judging the issue in hindsight, you would have to scream that you are a victim of a frivolous and vexatious prosecution in the heat of the proceedings.

If you think that this is a meaningless exercise, it does highlight to the public what the accused experiences during prosecution, and how much such losses are not compensated, even if you are acquitted of any charges.

I do feel some sympathy for the accused persons. However, the spectre of engaging in another round of litigation would be too much for them. Fighting such proxy cases as a public prosecutor would also be a huge waste of public resources.

I personally feel that much more legal aid for accused persons would be helpful. It would enable them to engage lawyers who would help you scream at the judge and prosecution if there was a vexatious prosecution against you.

Since public prosecutors are paid for by the state, I would have wished that legal aid for accused persons is paid for by the state like in many other developed countries. Some might say that helping an accused person, who is likely to have committed a crime, is controversial to most law-abiding Singaporeans.

However, our views may not be so fixed. It seems that Singaporeans are open to assisting the legal costs of strangers, so this idea may be more popular than you expect.

Data Protection in Singapore Strikes a BalanceA rare sighting of a private action under the Personal Data Protection Act of Singapore offers valuable insight into the uniqueness of the data protection regime here.Love.Law.Robots.HoufuIf you think that statutory provisions providing largely ineffective rights are rare, read on...

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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I have been following the Centre of Computational Law at SMU with keen interest. They're the guys who illustrated the history of Singapore law with pretty graphs.

Phang Goh and Soh “THE DEVELOPMENT OF SINGAPORE LAW: A BICENTENNIAL RETROSPECTIVE” at paragraph 62/page 32. (From Celebrate 200 Years of Singapore law with pretty graphs)

They've also been involved in a pretty nifty combination of “Rules as Code” and docassemble.

Brand-new #legaltech
✅ Open Source
✅ Runs on #RulesAsCode
✅ Understands exceptions
✅ Answers legal questions
✅ Gives explanations in English
✅ Gives all valid explanations for each answer
✅ Integrated with @Docassemblehttps://t.co/XQ5jIXH1ck

— Jason Morris💻⚖️🇨🇦 (@RoundTableLaw) June 3, 2021

I've heard a lot about Rules as a Code and I am curious how it could apply to real world applications. So I am definitely going to give this a run and see how far I can go with it.

As such, I was pretty curious to see the Centre in the news. Unfortunately, it's not really about those cool applications of computers and law I mentioned, but something dearer to every Singaporean's heart — jobs. It features SMU's new four year Computing and Law undergraduate course.

BSc (Computing & Law) | School of Computing and Information Systems (SMU)Singapore Management University (SMU)

This excerpt from the news article tells you most of what you need to know about the course.

Students take modules from both the university's law and computing faculties, with an even split of modules across the two fields. The course starts off focusing on areas where there is significant overlap such as intellectual property. Prof Lim said that when they graduate, students will be able to work in various places like tech or legal firms, in roles that may not exist yet.

There are some interesting things written between the lines, so let me extract them here for you.

First, Students graduate with a Bachelor of Science (BSc), not a Bachelor of Laws (LLB). This means they can't apply for admission to the bar when they graduate. It's possible to progress to a JD in SMU Law, which would allow you to practice, but that would mean 6 years of studies instead of the usual 4.

Second, the article appears to concede that graduates might not be able to find work which takes full advantage of their skills.

If you would like to know what jobs exist in LegalTech in Singapore right now, you can take a look at Legal Tech Jobs:

Legal Tech Jobs filtered for jobs with location “Singapore”. By the way, that single job does not require a computer science degree.

In all, a course combining law and computers like this is going to require (1) bold students, and (2) students who have bold and supportive parents.

But maybe we are looking at this the wrong way. This isn't for lawyers who want to code. They are for coders who want to law. And if you want to look at it from that perspective, many things start to make sense. Take a look at the mix of subjects in the compulsory part of the degree:

https://s3-us-west-2.amazonaws.com/secure.notion-static.com/393cec40-d09f-47c6-b192-1d82c501a801/Untitled.pngScreenshot from https://scis.smu.edu.sg/bsc-computing-law/curriculum (as of June 2021)

Some knowledge of intellectual property law is going to be helpful for someone building solutions. Contract law, company law and the like are going to be beneficial for someone who is going to start a company, even if it isn't strictly in LegalTech. Torts, data protection, criminal law? Good to know, and will be very useful if you were thinking about Access to Justice. I am less familiar with the Computing Core section, but they seem more focused on creating products and running software development than I expected. Throw in some project management experience, and you have a unique candidate who can hit the ground running.

Would I take a course like this when I was 18? I don't think so. Students would generally expect to follow a well-trodden path to a career they already know. As a law student, it would be a lawyer. Maybe, as a backup plan, an in-house lawyer.

This is still an alternative career, but in an age of disruption, being able to think outside of your silo would be excellent preparation for a long and fruitful career. If I could speak to my 18-year-old self, I would tell him to carefully look at this.

#Singapore #LegalTech #Law #Training

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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A lot of people in Singapore know about the Personal Data Protection Act in Singapore (PDPA). A lot of people also know about the Personal Data Protection Commission (PDPC). The PDPC enforces the PDPA. The PDPC has a good reputation amongst most Singaporeans for its proactive approach to protecting the personal data of ordinary Singaporeans. To most people, this is the data protection regime in Singapore. Full stop.

Far fewer people (and I dare say professionals too) are aware that there is a “right to private action” hidden somewhere in the PDPA. Section 48O, to be exact.

Now who would want to experience the stresses of litigation , paying legal fees (most of which can't be recovered) and the prospect of losing?

Someone with an axe to grind, like the parties in Bellingham v. Reed. It's the first case to test the right to private action in the High Court of Singapore (and possibly the Court of Appeal as well). As a result of the parties' honourable public service, we now know the limitations of the right to private action.

A Private Action Goes Nowhere

This tortured litigation started when a fund manager moved to a competitor. To drum up the new business, the fund manager contacted a potential customer using information from his previous role. What started as a breach of confidence action suddenly morphs into a data protection action when the fund manager's ex-employers added the affected data subject to the litigation.

In the court below, the data subject obtained a court order for the fund manager to stop using his data. This was in spite of the fund manager already stating clearly that he would not be using the personal data of the data subject or contacting him.

The appeal turns on whether the data subject suffered “loss and damage” as a result of the breach of the PDPA. On the facts, a monetary loss seems far-fetched. The data subject argued instead that he suffered “distress and loss of control over personal data”. This wasn't a type of damage commonly recognised under the law, like personal injury or monetary loss. Did the PDPA create a new kind of damage to be found under a private action?

The High Court held that the answer is no. The PDPA “was not driven by the need to protect an absolute or fundamental right to privacy”. A “privacy right” was not part of Singapore's constitution or implied by Singapore's international obligations. The Court commented that:

The purpose of the PDPA was as much to enhance Singapore’s competitiveness and to strengthen Singapore’s position as a trusted business hub as it was to safeguard individuals’ personal data against misuse.

Since the data subject only suffered distress and loss of control over personal data, which were not recognised under the law, the appeal succeeded and the data subject's orders was set aside.

Leave the Private Action Behind

Oddly, the balance struck here could eviscerate the private action under the PDPA. What kind of damages can an affected individual claim for a breach of data protection obligations other than distress and loss of control over their own data?

On the key question of whether the PDPA's private action recognises new heads of damages such as emotional distress or loss of control over personal data, I don't expect the Court of Appeal to come up with a different answer. There might be alternative explanations, but the policy behind it is quite clear.

Firstly, a right of private action would probably end up with lots of litigation against companies, many of which can be for fairly minor breaches. We might be using too much judicial resources on many small matters. Companies might end up being stuck in a mire of lawsuits instead of innovating.

Secondly, many of the structures of the legal system in Singapore would not benefit such private actions. This includes the nearly complete absence of class action suits in Singapore. A private suit is likely to be an exhausting and expensive affair, which would leave many individuals out in the first place.

Thirdly, and this was recognised at the High Court at paragraph 94, there are better avenues for individuals to vindicate themselves. Most importantly, the PDPC has powers to enforce the PDPA, and many of these remedies mirror what an individual would most likely want from an action. This includes the dreaded financial penalty, the basis of which is on compliance with law rather than what loss or damage was suffered. It's notable that an affected individual can appeal the PDPC's decision.

Will Increased Penalties Lead to Greater Compliance With the PDPA?When the GDPR made its star turn in 2018, the jaw-dropping penalties drew a lot of attention. Up to €20 million, or up to 4% of the annual worldwide turnover of the preceding financial year, whichever is greater, was at stake. Several companies scrambled to get their houses in order.Love.Law.Robots.Houfu

Furthermore, the Protection of Harassment Act (which has received far more attention from the government) could provide a more effective route for any intrusion into privacy.

So even though it appears odd that the private action would be extremely limited under the PDPA, this “balance” might be palatable. The private action looks likely to remain as a relic for the most irrational parties. It speaks volumes that the only reported case of a private action in more than 5 years of the PDPA is going to the Court of Appeal.

Is a Constitutional Right necessary?

While I agreed with the result, the reasoning left me unsatisfied. By adamantly insisting that the PDPA was different from other privacy and data protection regimes in western liberal democracies, the High Court appeared to suggest that we compromised something by striking a balance. Or worse, that we are involved in a switch and bait whereby we have meaningless rights in the PDPA.

Any talk about human rights should keep a close eye on its efficacy, in this case whether data subjects can enforce their rights effectively. It's quite clear that individuals can't realistically take companies to task on data protection on their own. The PDPC has had far more success using its enforcement powers.

So, maybe the Court of Appeal can come up with a better way to explain this. However, I wouldn't be holding my breath on this one. This case is a rare sighting, and cases like this will remain rare.

In the meantime, we should train our focus on the PDPC. Full stop.

#Privacy #Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Officially, lawyers read judgements to find the law. However, it’s often far more interesting to see how your peers get into trouble. Sometimes it’s a cautionary tale hiding between the lines. Judges mostly tend to be polite and cautious about their criticisms. It is a community, after all.

This judgement, however, is dedicated to criticising the lawyers on record. In short, liquidators appealed a case to the court of appeal, our highest court. They would like to advance a significant legal point in their area of law. The Court of Appeal obliges by appointing a court of five judges, more than the usual number.

The case starts to stink when the respondent fails to file arguments in the appeal. They wouldn’t even argue in the hearing as an ordinary party would. If pressed, they would say that they would adopt their case in the court below, meaning there is nothing more to say.

Oh, and if they were pressed even further, the respondents agreed to say that the liquidators and the respondent settled the dispute.

In dismissing the appeal, the Court of Appeal repeated the time-honoured adage that the court does not rule on “hypotheticals”. There has to be a live dispute with more than two sides fighting for different conclusions.

Some people might wonder why the court has to be so anal about this. If a party needs help, why can’t the court assist? In this case, the liquidators were concerned about the operation of a rule of law which affected their work. Beyond the dispute between two parties, some people need answers.

In this case, however, the requirement of a live dispute was critical. As only one party argued the appeal seriously, the court is deprived of the arguments against the appeal. The legitimacy of such a holding is likely to be always in question.

It’s easy to argue that counsel went too far in this case. However, it’s difficult not to sympathise with why they did it. Due to the scarcity of cases that come to the courts and go all the way to a written judgement with legal ramifications, being involved in a “test” case is critical for ambitious lawyers. Perhaps they thought that this would be the case. As one party goes into liquidation, the motivations of the other party to continue fighting changes. A settlement, whatever the merits of the case, is forthcoming. The test case is gone.

Personally, the rules for determining whether the Court of Appeal can be involved might be too strict. Singapore isn’t a big country where several cases, each with a different nuance, comes knocking on the Court of Appeal’s door every day. By excluding too many cases, the Court of Appeal may be depriving itself of opportunities to develop laws.

Far, far away, in another jurisdiction, an apex court finds that seeking $1 damages is sufficient for the court to hear the case. This was even the case when the defendant essentially gave up and changed its ways. It prompted this inspired dissent: “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.” Consider this, though: Not every case before the Supreme Court gets heard; four Supreme Court judges in the US must decide to take up a case before it can be heard.

These issues are complex and the solutions are not so obvious. The Singapore Court of Appeal is definitely trying to take on more cases and develop law. However, this one is not going to be one of them.

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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📣

Trigger Warning: Abuse

It’s no secret that I don’t like local reporting on criminal cases and legal news. They tend to focus on being sensational without adding value to the nuances of the cases, let alone its legal issues. It’s New Paper reporting, done on the paper of record of Singapore. I have turned in my newspaper subscription for over a decade and don’t ever see myself as a subscriber ever again.

Readers will now be treated to a headscratcher. The background is a maid abuse case. The facts are shocking and hard to read. Of course, you can read more about them in our newspapers. Ordinary people, i.e. people who would probably not feel the full weight against them in their lives, would feel confused about why these things can happen in our society.

Helpfully, our law minister, Mr K Shanmugam, treats us to an explanation of evil which was given prominence in our newspapers:

If you go back to history, the history of people, history of countries – ordinary people are capable of extreme evil, and evil lurks in people who seem ordinary. It doesn’t occur only in faraway places, and people don’t walk around with clear indicators that show this person is evil. The point I will make is that people who seem ordinary are capable of extraordinary evil, and there are two pillars in any society to keep evil in check. One, is education. Two, we need rule of law to keep such evil in check. The law has to come down with full force when the rules are broken.

It thus follows that our horrific maid abuser must be punished with the full force of law – the death penalty for murder. So, now the prosecution seeks… a reduced charge of life imprisonment under culpable homicide rather than murder.

If you have never been through law school, you wouldn’t grasp the difference between Sections 300 and 304A of the Penal Code. Obscured by the technical terms used by lawyers when discussing criminal charges, the reason why the maid abuser couldn’t face murder is that she was sick (in the mind) and that sickness reduced her responsibilities for her actions. In other words, she wasn’t evil, she was depressed.

So all this discussion of education and increased penalties are really moot. Under our laws, a person who isn’t evil because of her sickness should not face the “full force” of our laws. Needless to say, public education is not going to save someone who is not thinking straight.

The real problem seems to be that as a society, we don’t really seem to recognise when things are not going right. The maid’s doctor didn’t seem to find anything to worry about during her routine checkups. So did the maid’s employment agency when they went to interview her. Without the benefit of hindsight, all this seems so mundane.

More pertinently, the maid abuser’s family members didn’t find that starving and assaulting a human being was not right. Or that a woman who was suffering from post-partum depression and underwent an abortion might need more support before she does something worse. This is all very tragic, really.

So maybe before suggesting that the rest of us are in fact actually evil people deep inside who are capable of heinous acts, one should try to tackle the lack of mental support that particular sections of society face and how the inequalities in our society contribute to that?

(When I first read the comments, I felt that the leaning on Nazi tropes was not being fair. In hindsight, I doubt whether there was any such intention. Anyway, you can read more about the inspiration for the title here.)

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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It must be hard to be an NUS student these days. One of the top universities in Singapore (and Asia) keeps appearing in the news for naughty transgressions, and getting allegedly easy treatment from the courts. Arguing whether NUS students get preferential treatment touches on the fairness of the courts as well as whether those in the higher echelon of society get to enjoy privilege. Can exhortations on how the Court works overcome people’s innate fears and prejudices of those in power? I doubt it. More data is needed.

A strong desire to show that justice is done

An NUS student was initially sentenced to probation for molesting a woman in a train station. Probation is a process where once you complete its requirements without incident, ends in a clean record. Amidst a public outcry and the intervention of the law minister, the prosecution appealed. The High Court, presided by the Chief Justice, increased his sentence to two weeks of jail.

The judgements in this case are among the most fascinating.

The State Court isn’t wrong

The lower court (State Court) judgement is no longer available because LawNet only provides the latest three months for the public, so you would have to contend with my memory and a Mothership report.

The State Court judge wrote this during the public furore for the case. It contained a gem which rarely appears in judgements from the State Court: “ The order of probation should not be seen as a soft option. ” Sure, the State Court needs to justify its decision for scrutiny on appeal. However, claiming that probation is not a soft option appears to be a direct appeal to the public.

(By the way, when a State Court decision is appealed, the Court must write a judgement. Public attention and “pressure” as alleged by Mothership does not figure in this practice.)

The State Court’s reasoning appeared reasonable and in line with the sentencing practices of the Court. An appeal court can’t possibly substitute its decision for the State Court without explaining why the State Court is wrong. Will the appeal fail? Will the public see that justice is not “served”?

The Chief Justice cries foul

Key to justifying its decision to allow the appeal, the Chief Justice called for a psychiatric report of the accused. The report provided crucial pieces of information which the State Court did not have. The accused remained “in denial” of the offence. He was still doing pornography. He was able to “compartmentalise” his behaviour. As such, he failed to show an extremely strong propensity for reform. All this explained the State Court’s failure to reach the same decision as he did.

The Chief Justice’s conclusion: the system works.

The Chief Justice also remarked that he had on the same day, allowed another accused, who was “not a graduate”, to community-based sentencing. That case “did not attract any media or public interest”. The failure to report positive outcomes, the Chief Justice argued, creates the misconception that judges are not doing justice. These remarks were extraordinary because they usually do not appear in a court judgement.

Ironically, the media did not report the Chief Justice’s remarks. It is not surprising that the media does not report such positive outcomes and they do not figure prominently in the public’s mind. People react strongly to the oppression of the weak or when the powerful receive better treatment. That’s when they reach the conclusion that criminal justice is not working.

Another NUS student in hot soup

It has been only a few months since the Terence Siow case that another NUS student raised eyebrows again for getting probation. The new case shared many similar contours with Terence Siow’s case. They involved NUS students. The accused also perpetrated violence against females — Yin tried to strangle his girlfriend.

Would the criminal justice system now get an outcome which “aligns” with popular opinion again? If you were betting for such an outcome, the Terence Siow case actually shows that these things are by no means assured. For example, the Chief Justice can’t possibly know that Terence Siow was still watching porn when his case went up for appeal.

This may explain why, unlike Terence Siow, this case is not being appealed. The High Court recently dismissed an appeal from the prosecutor regarding an SMU student filming showers. The High Court in the latter case, stated that community-based sentencing is not a soft option.

Unable to satisfy the public through outcomes in the courts, the Ministry of Law announced a review of the penalty framework. It isn’t immediately clear (at least to me) what such a review would entail when the courts are adamant that the system is working. This is a developing issue, so more will come.

We can’t tell whether the system is working without data

Figuring out what to fix will be very difficult. We are not sure what we are trying to fix in the first place. Fundamentally, we do not know in the first place if university students receive “lighter” sentences because they are university students. It would be ironic if such a review attempts to raise the bar for probation and community sentences so high that even non-graduates cannot reach it.

There is scant public information on what goes on in the criminal justice system. We don’t know how often a graduate or a non-graduate gets away with “lighter” sentences. This provides fertile ground for suspicions, reinforcing personal experiences and even conspiracy theories. Solving this would entail analysing closely the decisions judges make with respect to each accused and the crime.

Such information might be available from appeal decisions, but they only represent a small subset of cases. In fact, such cases will probably over-represent graduates because they are more likely to appeal.

Having a data-driven approach solves two problems. The court will not be required to convince the public of esoteric legal concepts. The media will never report such complexity anyway either. We also do not have to decide whether the Chief Justice’s personal experience or the layman’s experience of the justice system is more compelling. The data can serve as a source of truth for our arguments to improve the system.

Barriers to a data-driven approach

Judges may not be comfortable having their decisions analysed in such detail. They may not like the data to show that someone is softer than the others on certain kinds of accused persons. However, if judges can remain steadfast in the face of public opinion, I am sure that a bunch of numbers are not going to overcome their desire to do right in the cases before them. Instead, such statistics may serve as another guardrail to remind judges when they are facing an outlier. This is nothing new — sentencing guidelines and appeals to higher courts already perform such checks.

I expect that the data is not going to be completely positive. The real fight in criminal matters, like most litigation, happens way before the Court hears the case. Getting referrals to a psychiatrist, writing contrite letters at the first opportunity, and testimonials from influential people can make the difference. It happens that graduates are more likely to get legal advice, know where to find a psychiatrist and have important people around them as well. It sounds unfair that well-resourced accused persons get lighter sentences, but to a judge, this is the evidence before him. If the Ministry’s review ends up increasing legal aid to many accused persons, that would be pretty great.

Of course, detailed data is not required to conclude that NUS students get off easier. However, if the ministry’s review ends up as a full-throated exhortation that the system works and it should work well for everyone, I am afraid we have learnt nothing much from this except whose opinion is stronger.

Conclusion

It’s great that young Singaporeans now care more about the criminal justice system and its outcomes. For many, this would be their first experience understanding the intricacies of this complex system. This is not the time to justify lofty concepts or point to personal experiences. It’s also great that the ability to analyse a judge’s decision-making in detail is largely available to us. Hopefully, this will spur better change to society’s benefit.

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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COVID-19 brought home a few trends most would not bother with otherwise. Remote working instead of showing up at an office and passing four budgets in as many months — it’s time to question deeply-held assumptions.

One deeply-held assumption which we might not be able to shake off is the archaic and highly formal process of getting wills done. The Wills Act is considerably vintage, dating earlier than the mid-nineteenth century. As such, it contains interesting oddities such as “a blank space shall intervene between the concluding word of the will and the signature”. You can do this by simply pressing “Enter” after you finish writing your will.

What do these restrictions mean in today’s context?

The main obstacle placed by the Wills Act is that two witnesses are required to witness your signing. You can type and save your will on your computer as much as you like, but it cannot be valid until it is witnessed physically.

The physical requirement of witnessing also makes the validity of e-signatures dubious. The Electronic Transactions Act excludes the creation and execution of wills explicitly. Your will therefore must have a physical manifestation, and someone has to use a pen (or other inking devices) to sign it.

Why is there resistance to change?

It’s not as if no one is trying here. Most people would like to attribute this to “tradition”. However, I also believe that this is perhaps the area where witnesses to a signature does have an impact on disputes. Wills can be challenged for various arbitrary reasons; claiming that [the testator was not thinking straight is one of the easiest](GHOST_URL__/settling-scores-through-your-will-it-doesnt-end-well/). When done correctly, your witnesses can provide that evidence.

The remote nature of e-wills and e-signature provides new avenues for attacks on the validity of your will. Somebody else clicked to sign in your place. How do you know someone is under undue influence when you are looking at them through your webcam?

I am not saying that these problems are insurmountable, even today. However, a process that works wells already exists right now. People who care about their will are willing to go to a law firm and pay for it. If a better solution is out there, it has to be significantly better than the current one.

… But this area is certainly looking at it.

Having a process that works does not mean it is perfect. In fact, there has been much movement in this area:

It’s not clear whether the paid services are making money on their own. The “referral” aspect of the business seems obvious in cases like OCBC, so I suspect most services come together with some other (financial planning) product.

Of course, given the legal background, all these services can only draft a will. Execution is either a separate service (usually involving law firms) or DIY.

And there is room for improvement.

I tried the OCBC service and had the opportunity to view the results of WillMaker. From what I can tell, all these options employ an expert system to generate a will. The problem with the expert system is that the service is only as good as the questions asked.

I previously drafted wills as a charitable service. My primary audience then probably substantially overlaps with someone willing to use the OCBC service. If you would like to generate your own will and your assets are uncomplicated, the current services should fulfil your needs 60-80% of the time. The services are thus very substantial and useful. If you have a lot of odd requests and complicated assets, you must go to a law firm to sort out the ends.

The real problem is that most people who want to make a will don’t have any idea what they are doing. I don’t mean this in a legal sense like trying to dispose of your CPF by will. At this point, they are exploring their options or looking for an expert to challenge their conclusions. A will generator that merely does what the user wants may not be enough. The user wants to know whether the will they have in mind is the one they want.

A will that doesn’t inspire confidence in its user isn’t going to go very far. After going through the form filling exercise, users confront the formal requirements of will execution. They get worried about whether they are doing the right thing. Then they realise that they do need a law firm.

In the end, if you are going to go to some law firm anyway, the need to do an E-Will or e-signature vanishes.

Conclusion

This post might sound bleak for people looking for a change. However, look positively, and it is obvious that there is a need that hasn’t been fulfilled yet. Perhaps charging for an expert system is not likely to draw enough people to experiment with their options. The point is that there should be a system that is demonstratively better than what we have now. Only then will there be an impetus to remove the formalistic limitations of wills.

So who wants to do an E-Will?

#Law #tech #E-signature #ElectronicTransactionsAct #LegalTech #Singapore #Wills #WillsAct

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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I don’t comment on criminal cases often. Rapes get reported in the news regularly, so I do not have much to add. However PP v Wee Teong Boo struck a discordant nerve in me. Injustice senses tingling!

A summary of a difficult case

The Supreme Court does an excellent job of summarising the key points in the decision. However, for this post, I am still going to try to summarise it here.

A patient alleges that a doctor raped her in his clinic during a consultation. The doctor was a general practitioner. For most Singaporeans, a general practitioner is the first port of call when you fall sick. The case is difficult for a few reasons.

First, if it did happen, this would be very audacious and brazen. We are talking about a professional claiming that he was doing a medical procedure on a young woman, and then sticking his dick in her instead. As a community doctor, this would scare many women who would like to trust their doctors. (Although with scandals like doctors forming their own sex rings, anything is possible.)

Secondly, both parties are more than worthy of the court’s protection. The accused is a 65-year-old doctor. He would have been a general practitioner for a very long time, with reputation and standing in his community. On the other hand, we have a 23-year-old female university student. Public interest in protecting women have been very high here, and the court would be encouraged to be seen as protecting someone vulnerable.

Here comes the wedge. The victim alleges that she was raped by her doctor while he was holding his legs. She saw his penis partially inside her vagina. In response, our doctor claims he suffers from something common among men of his age — erectile dysfunction. Unlike others though, he has the medical evidence to prove it this time. Among the findings of the report, it stated that it would have been quite difficult for the doctor to penetrate a partner unaided.

What should the victim have done?

Singapore courts have come some distance dealing with the evidence of sexual assault victims. One of the most important areas of progress recognised that sexual assault victims might not act in a particular manner when faced with rape.

However, after affirming the lower court’s decision that the doctor’s erectile dysfunction created a reasonable doubt of the offence, the appeal court proceeded to perform a slam dunk on the victim’s testimony:

  • The victim should have realised right at the point where she saw the doctor’s penis that this was not a medical procedure.
  • Since the victim was a university student, she should have known that she was being raped rather than having a medical procedure performed on her. It must have displaced her trust in her GP.
  • The offence could not have taken place because it took place in a clinic, with other patients and staff outside the room. Anyway, the victim should have screamed for help.
  • When the victim talked to her mother about the incident in the morning, she could and should have told her she was raped.
  • The victim got the layout of the consultation room wrong.
  • When the victim sought an opinion from another doctor of her lump, she should have mentioned the GP’s first opinion.

I am afraid that this does sound like the Court arguing in hindsight. An outlier?

A distinction without a difference

The court rationalises the distinction between holding that a sexual assault victim should have done with what happened here like this:

The question here is not so much one that concerns a victim’s reaction to a sexual assault after the trauma of the incident; rather, it is the credibility of a victim’s claim of what she thought was happening, while it was happening. Further, this was not in terms of fine details such as what the offender was wearing or what his position was, or how long the incident lasted, but at the most basic level, of whether a sexual assault was taking place at all. – Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] SGCA 56 at [58]

With respect, this distinction is really difficult to apply. What do we expect the victim to do? Is she supposed to realise at the point where a sexual assault is taking place to act like it? Or was the victim supposed to say at the trial that she genuinely believed that there was a sexual assault? All this demands that assault victims act in a particular way for the court to believe them.

Let’s take a step back. The court had medical evidence that the accused had erectile dysfunction. It said he couldn’t maintain an erection good enough to penetrate a virgin. That raises a reasonable doubt whether the accused could have raped the victim. Shouldn’t that be enough to acquit? Why did the court see the need to assess the victim’s testimony so harshly?

I’d wager that it was because the victim’s evidence was convincing. The court below found it clear and without embellishment. How could a convincing witness tell a story so different from what the evidence establishes?

Should we believe an “unusually convincing” witness if the facts go against her?

This brings us to Rashomon.

For readers who have no idea what one of the greatest movies in the history of the world is about, Rashomon revolves around a court hearing of a murdered samurai. We hear from the stories of the bandit accused of killing him, his mistress and even the dead samurai’s ghost. While their stories agree on critical aspects, there are particular details which are so different that they completely recast the story. Are these people telling the truth? They all looked convinced that they are.

Rashomon suggests that people can convincingly tell different versions of the same event because they are motivated by self-interest. However, people may also do so because they genuinely believed that it happened to them.

Does accepting that an unusually convincing witness can be wrong mean that men can be convicted of rape by good storytellers? It’s important to note that this isn’t the case because of the reasonable doubt created by the erectile dysfunction. I have my own ideas of what can be done, but I think it would be better for the courts and opposing lawyers to figure that out.

However, dismissing an “unusually convincing” witnesses’ testimony on such dubious grounds does a disservice to other victims by creating a vector through which lower courts can be persuaded to dismiss testimony. I am afraid this is clearly a step backwards.

This decision deserves to be nominated for an Alamak award.

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu