SIGNIFICANT DECISIONS OF THE COURT OF APPEAL AND THE COURT OF 3 JUDGES | ELECTRONIC PRACTICE DIRECTIONS AND ELECTRONIC RULES OF COURT | NEW AMENDMENTS TO THE PRACTICE DIRECTIONS AND RULES OF COURT
SIGNIFICANT DECISIONS OF THE COURT OF APPEAL AND THE COURT OF 3 JUDGES
Gobinathan Devathasan v Singapore Medical Council
 2 SLR 926;  SGHC 22
The appellant in this case appealed to the Court of 3 Judges against his conviction by a Disciplinary Committee of the Singapore Medical Council (“the DC”) for the administration of allegedly inappropriate medical treatment to a patient. The Court found that the DC’s decision to convict the appellant was wrong in law as that decision exceeded the scope of the charge as framed against the latter. The Court also found that the DC had dealt with certain aspects of the evidence erroneously. However, the Court stopped short of making any finding as to whether the treatment administered was efficacious, safe or scientifically established as a method of treatment.
The Court further remarked that in view of the fact that the proceedings against the appellant could have been better handled, it was just as well that the Medical Registration Act (Cap 174, 2004 Rev Ed) had been recently amended to allow for the appointment of a legally trained person to sit as one of the members of the DC. Having a legally trained member would ensure due process and a fuller appreciation of the nature of the proceedings against alleged errant doctors.
Shafeeg bin Salim Talib and another v Fatimah bte Abud bin Talib and others
 2 SLR 1123;  SGCA 11
In this case, the Court of Appeal dealt with the applicability of the right of survivorship to a property held by a Muslim deceased who died intestate and his widow as joint-tenants. Their two children had converted to Christianity before his death. After his death, the widow became the registered proprietor. She then transferred the property to herself and the two children as joint-tenants. The administrators of the estate claimed that the transfer contravened Muslim law because the two children, being non-Muslims, were disentitled from inheriting under the estate. They also relied on a fatwa or religious ruling by the Majlis Ugama Islam Singapore stating that the property was a matrimonial property (harta sepencarian) and half of it should be distributed according to Muslim inheritance law.
The Court considered that the property was registered land under the Land Titles Act (Cap 157, 2004 Rev Ed) which recognises the common law on joint-tenancy that a joint-tenant’s death results in his interest being extinguished, leaving the survivor as the absolute owner. Accordingly, the deceased’s interest in the property extinguished upon death and did not form part of his estate. The concept of harta sepencarian was inapplicable as the deceased was of Turkish-Yemenic Arab descent and was not of the Malay race.
Basil Anthony Herman v Premier Security Co-operative Ltd and others
 3 SLR 110;  SGCA 15
In this case, the Court of Appeal considered when the improper rejection of evidence by a trial court would result in an order for a new trial by an appellate court. The Court held that if improperly rejected evidence would not, if admitted, meaningfully vary the outcome of the case, no new trial would be ordered. Equally, if the improperly rejected evidence would vary the outcome of the case if admitted, but could be clearly and objectively established before the appellate court, no new trial would ordinarily be ordered, because in such a situation the outcome of the case should simply be varied accordingly.
The Court held that a new trial would ordinarily be ordered only where (a) the improperly rejected evidence would, if admitted, have a substantial and realistic prospect of making a meaningful difference to the outcome of the case, and (b) the appellate court was in no position to evaluate the improperly rejected evidence itself. Separately, the Court held that a party which opposes another party’s attempt to call witnesses to give evidence-in-chief orally should, bar exceptional circumstances, raise all its objections when the other party seeks leave to dispense with affidavits of evidence-in-chief.
Cheok Doris v Commissioner of Stamp Duties
 4 SLR 397;  SGCA 28
The appellant agreed to purchase a residential property; however, the sale and purchase agreement was mutually rescinded as the net lettable area of the property represented by the vendor was found to have included substantial void space. The decision of the Commissioner of Stamp Duties was that ad valorem stamp duty was still chargeable despite the rescission. The appellant objected, contending that the vendor was unable to deliver good title and, therefore, she should not be liable for stamp duty in accordance with the Stamp Duties Act (Cap 312, 2006 Rev Ed) (“the SDA”). Proceedings in the High Court against the Commissioner of Stamp Duties’ decision in the form of a case stated were subsequently instituted unsuccessfully by the appellant.
In the appeal, the Court of Appeal held that a substantial discrepancy in the property area represented did not affect the vendor’s ability to prove a good title as it was not a defect in title. The Court further held that as the total area of the property was identical to that reflected in the Subsidiary Strata Certificate of Titles, the vendor was able to give good title of the area that he had agreed to sell. The Court also noted that the SDA was too narrow to give relief on any ground other than a lack of good title. The Court, in addition, observed that in proceedings in the form of a case stated, questions of law are referred to the court for determination on the basis that the facts are true in a case stated, and there is no burden of proof on either party as the issues to be decided are issues of law.
Liquidators of Progen Engineering Pte Ltd v Progen Holdings Ltd
 4 SLR 1089;  SGCA 31
In this case, the Court of Appeal recognised that directors have a duty to consider the interests of the company’s creditors in making decisions for the company when the company is insolvent or in a parlous financial position. The Court expressed the view that such a duty complements the avoidance provisions in preserving the company’s assets for distribution to creditors through the insolvency regime. It was also clarified that such a duty is owed to the company and not to any individual creditors. To prevent the collective procedure of insolvency from being undermined, creditors cannot directly recover from directors without the assistance of liquidators.
The Court, in addition, held that the existence of an established past practice of a transaction during the company’s solvency does not ipso facto rebut the presumption of unfair preference. An established course of practice is relevant if the practices show that the creditor was providing new value by granting new credit to the company to keep its business going, Where that is the case, payment of monies is motivated by the desire to obtain fresh financing to sustain the company’s business, and not by a desire to prefer the creditor.
Lee Shieh-Peen Clement and another v Ho Chin Nguang and others
 4 SLR 801;  SGCA 34
In this case, the Court of Appeal reinforced the paramount importance of respecting and obeying orders of court. The appellants had obtained a Mareva injunction (“the Order”) against the respondents. However, after the submission of the affidavit of assets, the respondents went on to spend monthly allowances, which the first respondent had received from an Indonesian company (of which he owned 90% of the shareholding), on their monthly expenditures. The appellants obtained leave to apply for an order of committal against the respondents but the High Court found that the respondents had not breached the Order. The appellants then appealed to the Court of Appeal.
In allowing the appeal and imposing a financial sanction on the respondents, the Court held that the monthly allowances constituted “assets” under the Order and that the Order also applied to the disposal or dealing of after-acquired assets. More importantly, the Court stated categorically that the party against whom a Mareva injunction is issued must obey both the letter and the spirit of the order. If there is any real uncertainty as to the scope of an order, the proper thing for a party to do is to seek the assistance of the court or, at the very least, inform the other party of the act that is intended to be carried out. Deliberate concealment or what seems like clever manoeuvres to get round a Mareva injunction would be dealt with accordingly by the court.
Daniel Vijay s/o Katherasan and others v Public Prosecutor
 4 SLR 1119;  SGCA 33
In this case, the Court of Appeal clarified the law on constructive criminal liability pursuant to s 34 of the Penal Code (Cap 224, 1985 Rev Ed), which states that “[w]hen a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone”.
In the Court’s view, a criminal act done by the actual doer of the act which results in the offence charged would be considered to be done in furtherance of the common intention of all the offenders only if that common intention includes an intention to commit the very criminal act done by the actual doer which resulted in the offence charged. According to the Court, this position, which reflects the true legislative purpose of s 34, was first laid down by the Judicial Committee of the Privy Council, and the same position was taken by the Straits Settlements Court of Criminal Appeal and, subsequently, by the Court of Criminal Appeal in Mimi Wong and another v Public Prosecutor [1971–1973] SLR(R) 412. For constructive liability under s 34 for s 300(c) murder, which provides that murder is committed if an offender intentionally causes bodily injury to another person and the “bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death”, the Court held that there must be a common intention to cause, specifically, bodily injury that is sufficient in the ordinary course of nature to cause death.
MFM Restaurants Pte Ltd and another v Fish & Co Restaurants Pte Ltd and another appeal
 1 SLR 150;  SGCA 36
This appeal concerned an assessment of damages following judgment for a breach of a settlement deed. Considering the issue of remoteness of damages in contract law, the Court of Appeal held that the approach advocated by Lord Hoffmann in Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas)  1 AC 61 (“The Achilleas”), which involved the concept of assumption of responsibility, ought not to be followed. The Court further held that the two limbs set out in Hadley v Baxendale (1854) 9 Exch 341; 165 ER 145 (“Hadley”) continue to be the governing principles, except to the extent that the approach advocated by Lord Hoffmann was already incorporated or embodied in both limbs in Hadley.
The Court also highlighted the conceptual difficulties with the approach in The Achilleas, which appeared to exclude the operation of the doctrine of remoteness and the practical uncertainties in determining the contracting parties’ intentions, and opined that the existing distinction drawn between imputed knowledge (under the first limb in Hadley) and actual knowledge (under the second limb in Hadley) provided the court with a sufficiently nuanced approach towards dealing with whether or not the defendant concerned had assumed responsibility with respect to natural or ordinary loss and extraordinary loss, respectively.
Ong Pang Siew v Public Prosecutor
 SGCA 37
The appellant appealed against his conviction by the High Court on a charge of murdering his step-daughter (“the deceased”). The High Court held that the appellant intended to kill the deceased and that the defence of diminished responsibility did not apply as the appellant was not suffering from any mental illness at the time of the offence. In this regard, the opinion of the prosecution’s expert was preferred to that of the appellant’s, who diagnosed him as suffering from a major depressive disorder.
While the Court of Appeal agreed that the appellant intended to cause the deceased’s death, it was of the view that the defence of diminished responsibility applied. The Court was concerned with the distinct lack of thoroughness in the diagnostic process of the prosecution’s expert, who had failed, inter alia, to adequately consider factors which might increase the appellant’s risk of suffering from depression or to interview relevant persons to obtain more information about his mental condition. The Court preferred the opinion of the appellant’s expert, whose diagnostic process was more comprehensive and detailed, although it noted that more could and should have been done by both experts. In arriving at its decision, the Court also considered non-medical factors such as the appellant’s behaviour before, during and after the offence.
Public Prosecutor v Rangasamy Subramaniam
 SGCA 40
The prosecution applied by way of a Criminal Motion to refer a question of law of public interest to the Court of Appeal. The question was whether the assumption under s 71A of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the RTA”) applied to an accused charged under s 67(1)(b) of the RTA where the accused was not driving a vehicle at the time of arrest. Section 71A of the RTA provides that for offences under ss 67 (drink driving) or 68 (being in charge of a motor car while under the influence of drugs) the proportion of alcohol in an accused’s breath at the time of the alleged offence shall be assumed to be not less than that in the specimen of breath provided by him. The Court held that the assumption could apply. In the light of the historical context of ss 67, 68 and 71A and the purpose of the RTA, and having taken into account Parliament’s uniform and strict approach towards drink driving, the Court held that it could not have been intended that the assumption under s 71A of the RTA would not apply to an accused charged under s 67(1)(b) of the RTA where the accused was not driving a vehicle at the time of arrest.
Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd
 SGCA 39
In this case, the Court of Appeal held that it had inherent jurisdiction to rehear an issue which it had decided in breach of natural justice and to set aside, in appropriate cases, the whole or part of its earlier decision on that issue. A decision made in breach of the rule against bias should be set aside as of right. Where a decision was made without giving the relevant parties the opportunity to be heard on certain issues, the aggrieved parties should be compensated with a hearing on those issues, after which the decision may be set aside or rectified. The appellant applied for a declaration that the Court had jurisdiction to set aside a previous decision of the Court (“the 2008 decision”) on the assumption that it had acted in breach of natural justice in arriving at the 2008 decision. The Court did not grant the declaration because the outcome in the 2008 decision, which was also premised on two other issues which were res judicata, would remain unchanged even if the appellant was heard on that issue.
RecordTV Pte Ltd v MediaCorp TV Pte Ltd and others
 SGCA 43
This appeal raised an important policy issue as to how the courts should interpret copyright legislation in the light of technological advances which have clear legitimate and beneficial uses for the public, but which may be circumscribed or stymied by expansive claims of existing copyright owners. The appellant was the owner of an internet-based service that allowed its registered users to request the recording of the respondent’s free-to-air shows in Singapore on a device, which functioned just like a traditional digital video recorder, called an “iDVR”. The respondent objected to the appellant’s provision of its iDVR service on the basis that the use of the iDVR infringed the respondent’s copyright in its free-to-air shows.
Bearing in mind that the law strives to encourage both creativity and innovation for the common good, as well as the competing interests of various stakeholders, viz, consumers, content providers as well as technology and service vendors, the Court eventually found in the appellant’s favour. It was of the view that the appellant’s iDVR service represented a significant technological improvement over existing recording methods, and that the appellant did no more than make it more convenient for its users to enjoy the respondent’s shows, an activity which they were already entitled to partake in.
Lam Chi Kin David v Deutsche Bank AG
 SGCA 42
This was an appeal to the Court of Appeal concerning a contract governing foreign exchange (“FX”) transactions between the appellant and the respondent. The contract required the latter to give the former one business day’s notice for the delivery of additional collateral in the event the latter made a margin call. When a margin call was indeed made on 10 October 2008, the respondent closed out all of the appellant’s FX contracts on the same day.
The Court hence found the respondent to be in breach of its contractual obligations to the appellant. Further, the Court also found that the respondent was estopped from closing out all of the appellant’s FX contracts on 10 October 2008 as it had also promised the appellant a 48-hour grace period should it make any margin call. Since the FX market could be extremely volatile, the Court said that a 48-hour grace period was a very valuable right to a sophisticated customer like the appellant. The Court also held that if banks and financial intermediaries engaged in the business of wealth management could not be trusted with their word, they should not be allowed to be in this line of business.