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|171. ||DECEMBER 2014 Issue|
|Recent (Non-) Developments in an Arrested Person's Right to Counsel|
Ho Hock Lai  Sing JLS 267 (Dec)
The right of an arrested person to consult a lawyer has long been in contention. An especially contested issue is the point of time from which such access is constitutionally mandated. Part II contains an analysis of the recent judgments of the High Court and Court of Appeal on this topic. It examines the soundness of legal reasoning and interpretation at both levels. Part III enters into broader discussion. It explores alternative interpretations of the relevant constitutional provision, considers the fairness of the way in which the law has been applied, makes comparisons with the legal positions taken elsewhere, and reflects on principles in the administration of criminal justice that ought to shape our attitude towards this basic right.
|172. ||DECEMBER 2014 Issue|
|The Lemon Law and the Integrated Enhancement of Consumer Rights in Singapore|
Alexander F H Loke  Sing JLS 285 (Dec)
European in inspiration and British in design, the Singapore Lemon Law seeks to provide consumers with more effective redress against defective products. The 6-month presumption of non-conformity reverses the burden of proving the cause for a defect appearing within 6 months of delivery; in so doing, it places the burden of proof on the party better able to investigate the cause for the defect. The new statutory remedies of repair, replacement, rescission and price reduction add to the armoury of remedies and enhance the consumer's interest in the due performance of the contract. While constituting a distinct regime with its own norms and principles of operation, the Lemon Law draws on and interacts with the existing sales law and consumer protection law. This article examines the potential complexities arising from the integrative aspects of the Lemon Law and the adaptation issues arising from the interaction between the Lemon Law and the general law.
|173. ||DECEMBER 2014 Issue|
|Good Faith Choice of a Law to Govern a Contract|
Tan Yock Lin  Sing JLS 307 (Dec)
This article argues that an agreement on the proper law of a contract is not a free-standing promissory term but merely has the effect of a presumption that the express choice is the proper law. If this iskept firmly in view, there are more similarities than differences between the nature of the proper law of a possibly unformed contract, the floating proper law, and the changing proper law. In all cases,reliance may be placed on an express choice of law unless it would be substantially unjust to thenon-relying party or would occasion him substantial hardship.[Full Text]
|174. ||DECEMBER 2014 Issue|
|Harmonisation of Takaful (Islamic Insurance) Regulation&#151;A Realistic Goal or Improbable Ideal?|
Haemala Thanasegaran and Mohammed Shaiban  Sing JLS 328 (Dec)
Takaful (Islamic insurance) is a form of cooperative insurance involving the allocation and spreading of risk. Its phenomenal growth in Malaysia, Pakistan and the Gulf States and its untapped potential in Indonesia, China and India have resulted in global insurance markets like the United Kingdom (UK) and Australia positioning themselves as leading conventional and Islamic financial centres. This article examines the takaful regulations in Muslim-majority jurisdictions where takaful is offered on a large scale, such as Malaysia, Bahrain, Pakistan, Saudi Arabia, the United Arab Emirates (UAE), Indonesia, Egypt, Brunei, Sudan and Iran, with respect to the core takaful principles of good faith, disclosure, non-misrepresentation, insurable interest, reciprocity in claims handling and the ensuing remedies. This, along with an analysis of the international takaful standards set by the Islamic Financial Services Board, will be benchmarked against Australia's and the UK's progressive insurance provisions in assessing the viability of harmonising takaful regulations amongst Muslimmajority jurisdictions.
|175. ||DECEMBER 2014 Issue|
|The Future of International Banking and Financial Law and Lawyers|
Philip Wood  Sing JLS 355 (Dec)
This paper makes a medium-term forecast of the future of banking and financial law and lawyers internationally. It expresses the view that the law is essential to societies and that the basic purpose of the law is survival. It explains the rationale of banks as intermediaries for credit, discusses the important role of banking and financial law in the hierarchy of law, shows that there has been a very rapid increase in the size of the law, commencing from 1830 onwards, offers some reasons for the growth of the law and legal risk, such as globalisation and the intensification of regulatory regimes, proposes that there will be a strong demand medium-term for banking and financial lawyers of outstanding competence who can put the world together legally, explains the families of law, discusses various classes of legal risk and explains the high responsibilities undertaken by lawyers in their role in societies.[Full Text]
|176. ||DECEMBER 2014 Issue|
|The Subsumation of Maintenance and Champerty Under Third Party Orders|
Zhuang WenXiong  Sing JLS 377 (Dec)
Maintenance and champerty were historically torts and crimes under English law, and the case can be made that they technically remain so under Singapore law. It would, however, be better to deal with third party litigation funding within the rubric of third party orders&#151;at the interlocutory stage, for the third party to provide security for costs, and at the close of proceedings, for the third party funder to be liable for costs. This would jettison archaic and technical English case law relating to maintenance and champerty, and enable the Singapore courts to transparently facilitate access to justice whilst reigning in unwarranted forms of third party funding.
|177. ||DECEMBER 2014 Issue|
|Legislation and Case Notes: Nuisance by Noise&#151;The UK Supreme Court on Interference with the Use and Enjoyment of Land|
Margaret Fordham  Sing JLS 397 (Dec)
Private nuisance cases rarely come before the United Kingdom's (UK) highest court and cases focusing on interference with the use and enjoyment of land (rather than physical damage or encroachment) are rarer still. Indeed, although there was some discussion of this aspect of private nuisance in Hunter v Canary Wharf Ltd, the last case at the highest level fully to canvass the factors relevant to a claim for interference with use and enjoyment of land was St Helen's Smelting Co v Tipping, decided by the House of Lords in 1865. Now, in Lawrence, the Supreme Court has been called on in a claim relating to noise to determine a number of questions, some focusing specifically on the nature of a nuisance which offends the senses and others raising points of more general application. They include the relevance of prescriptive rights and 'coming to the nuisance', the significance of both a defendant's activity and the planning permission for that activity when determining the character of the neighbourhood in which the activity takes place, and the circumstances in which damages, rather than injunctions, should be awarded in successful actions for nuisance.
|178. ||DECEMBER 2014 Issue|
|Legislation and Case Notes: The 1994 Practice Statement and Twenty Years On|
Lau Kwan Ho  Sing JLS 408 (Dec)
The power of the Court of Appeal to overrule or depart from one of its previous decisions is well known to lawyers in Singapore. Asurvey of the jurisprudence shows that this power has, in the two decades since the Practice Statement (Judicial Precedent) was handed down, been exercised both usefully and appropriately. It confirms what many have suspected for a while now: the Court of Appeal has truly come into its own as arguably the leading exponent of the common law in Asia, with its judges possessing practical and scholarly expertise in equal measure.
|179. ||DECEMBER 2014 Issue|
|Legislation and Case Notes: Common Intention and the Presumption of Joint Possession in the Misuse of Drugs Act|
Ivan Lee  Sing JLS 419 (Dec)
In 2010, the Singapore Court of Appeal thoroughly reviewed the doctrine of common intention under s 34 of the Penal Code in the landmark decision of Daniel Vijay s/o Katherasan v Public Prosecutor. The present case is the first drug trafficking case involving this provision to reach the Court of Appeal since then. For the most part, Ridzuan reads like a straightforward and unremarkable case. The appellant Ridzuan was convicted at the High Court with his partner-in-crimeAbdul Haleem for trafficking in an amount of heroin large enough to attract the mandatory death penalty under the Misuse of Drugs Act. Abdul Haleem did not appeal his conviction because he had received a certificate of cooperation from the prosecution and benefited from the attendant discretion given to the trial judge to commute his sentence to life imprisonment with caning. Ridzuan, however, did not qualify for the certificate, and consequently filed this appeal which the Court of Appeal dismissed. The judgment itself contains little by way of uncertainty or controversy over the applicable law on common intention, as the court readily dealt with the issue by following its earlier pronouncements in Daniel Vijay. The appeal also did not turn on this issue as the court was thorough enough to find Ridzuan not only constructively liable for his complicity in Abdul Haleem's act, but also liable as a principal offender for satisfying the elements of the offence of trafficking. There is ultimately very little in the judgment to support any serious argument that the outcome for Ridzuan, unfortunately for him, could have been any different
|180. ||DECEMBER 2014 Issue|
|Legislation and Case Notes: Sins of the Father|
Colin Liew  Sing JLS 429 (Dec)
In White v Jones, the House of Lords controversially extended liability in the tort of negligence to solicitors who had caused economic loss to a third party by failing to take proper care in drawing up a will for their client, supposedly on the basis of an 8220;assumption of responsibility8221;. In Anwar, the Court of Appeal has now sought to rationaliseWhite within the analytical framework laid down in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency.