|301. ||DECEMBER 2010 Issue|
|Reynolds Privilege, Common Law Defamation and Malaysia|
Andrew T. Kenyon and Ang Hean Leng  Sing JLS 256 (Dec)
The defence of qualified privilege has developed in the defamation law of many countries that share English legal heritage. Malaysian cases have applied, in particular, English or Australian developments in qualified privilege. However, Malaysian judgments have not engaged in a close analysis of how the foreign changes arise under Malaysian law. This article explains how the Australian developments appear difficult to apply within the Malaysian context, while the English developments offer a clear avenue for Malaysian defamation law's modernisation. The key reason for this is the way in which the English Reynolds privilege can be seen to have its origins, at least in part, within the common law as well as within European human rights standards. The common law aspects of Reynolds, apparent from a wide range of English judicial statements, offer a doctrinal basis for the existing and future application of the Reynolds defence in Malaysian defamation law.[Full Text]
|302. ||DECEMBER 2010 Issue|
|Sudden Fight, Consent and the Principle of Comparative Responsibility in the Indian Penal Code|
Ian Leader-Elliott  Sing JLS 282 (Dec)
Sudden fight is one of four partial defences to murder in the Indian Penal Code. It was a late addition which lacks the qualifying provisos and illustrations that constrain applications of the partial defences of provocation and excessive force in private defence. A survey of recent decisions of the Indian Supreme Court suggests that sudden fight has the potential to subvert the principled limits that constrain the other partial defences. Sudden fight has no equivalent in other Commonwealth jurisdictions. It can be argued that it is an anachronism that should be eliminated from the law of murder. This essay argues in favour of its retention. The partial defences of provocation, excessive defence, sudden fight and consent are unified by an underlying principle of comparative responsibility that extenuates murder when the offender was seriously wronged by the victim or acted with the consent of the victim to die or engage in an activity that was likely to result in death. A set of provisos and illustrations is proposed that will constrain applications of the partial defence of sudden fight in conformity with the principle of comparative responsibility.
|303. ||DECEMBER 2010 Issue|
|Virtual World, Virtual Land but Real Property|
Hannah Yee Fen Lim  Sing JLS 304 (Dec)
Virtual worlds such as Second Life have become increasingly significant in terms of both time and money for their users. As such, it is important to analyse how the law may apply to and resolve disputes that originate in these virtual worlds. This article will focus on the virtual world Second Life, and in particular, the legal concept of land in Second Life which has come into the international legal limelight because of the Bragg litigation against Linden in the United States. Although the dispute was settled, the Bragg litigation raised the issue of the legal status of items in virtual worlds and whether these virtual items can indeed be recognised as property under the Western legal tradition. This is an issue separate from and independent of the question of intellectual property protection. This article will argue that land ownership in Second Life is very much like owning a modified form of leasehold property. Just like in the real world where more than one type of property right can subsist in a given item, this should also be the case in Second Life.[Full Text]
|304. ||DECEMBER 2010 Issue|
|Full Contractual Capacity: Use of Age for Conferment of Capacity|
Loo Wee Ling  Sing JLS 328 (Dec)
The Singapore Civil Law (Amendment) Act, effective 1 March 2009, lowered the age of full contractual capacity from 21 to 18 with the sole aim of encouraging entrepreneurship among the young. This article examines if currently available scientific evidence and practical considerations indicate: (i) whether there is utility in using an age-based criterion for conferring full contractual capacity and thus denying legal protection in contracting in light of the need to balance protection of minors in contracting against encouraging youthful entrepreneurship; (ii) even if useful, whether full contractual capacity should be conferred from age 18 in the Singapore context; and (iii) if extra measures ought to have accompanied the lowering of the age of full contractual capacity to mitigate potential problems affecting consumer-minors and entrepreneur-minors who are now deprived of previously available legal protection under contract law.
|305. ||DECEMBER 2010 Issue|
|The Amicus Curiae: Friends No More?|
S. Chandra Mohan  Sing JLS 352 (Dec)
A term commonly used in both common law and civil law jurisdictions and in domestic and international tribunals is the Latin term amicus curiae or a 'friend of the court'. Who is this friend of the court and what is his role in legal proceedings? Largely because of the remarkable manner in which this ancient institution has developed in different legal systems and been used differently even in countries sharing a common legal tradition, such as the United States and the Commonwealth countries, the important question is whether the amicus curiae can still be considered a 'friend' of any tribunal or decision maker. Has this friendship been well maintained or significantly abused over the years?
|306. ||DECEMBER 2010 Issue|
|Criminal Law Codification and Reform in Malaysia: An Overview|
Norbani Mohamed Nazeri  Sing JLS 375 (Dec)
This comment describes several of the most significant amendments to the Malaysian Penal Code in the past two decades. Sexual offences have featured prominently with changes made to the definition of rape and its penalty in order to afford greater protection to girls and women against sexual violence; a widening of the scope of unnatural offences; the creation of a version of the offence of marital rape; and new offences against the exploitation of persons for the purpose of prostitution. The offence of incest was also introduced into the Penal Code with resulting jurisdictional conflicts between the civil and Shariah courts, which the author contends should be resolved by the Penal Code taking precedent. Other amendments discussed in this comment are a reverse onus presumption provision for the offences of criminal misappropriation and criminal breach of trust; anti-terrorism legislation in the aftermath of 9/11; and an increased maximum penalty structure for serious offences.
|307. ||DECEMBER 2010 Issue|
|Contracting Under Lawful Act Duress|
Nathan Tamblyn  Sing JLS 400 (Dec)
The core context of duress considered here is where one party (the 'duressor') threatens to do something, to avoid which the party threatened (the 'duressee') accedes to the duressor's demands and contracts with him on his terms. If what the duressor threatens to do is unlawful, the contract can be set aside, and restitution can be had of any benefits transferred. Unlawful act duress includes duress to the person, duress of goods, and threatened breach of contract. Do the same consequences follow if what the duressor threatens to do is lawful in itself? This is lawful act duress.
|308. ||DECEMBER 2010 Issue|
|Birthing the Lawyer: The Impact of Three Years of Law School on Law Students in the National University of Singapore|
Tan Seow Hon  Sing JLS 417 (Dec)
This article examines the impact of law school and legal education on the moral and professional identities of law students through surveys and interviews of law students from the Class of 2010 at the National University of Singapore. Questions were asked to ascertain how students viewed the relationship between their personal convictions and professionalism, what they thought of lawyers and the work they would do as lawyers in future, student's opinions as to law's relationship with justice, morality and other social phenomena, and students' expectations of legal education. This article seeks to increase consciousness of how law school is remaking students and developing the moral and professional identities of future lawyers, and to facilitate conversation that reshapes legal education to achieve its aims.
|309. ||DECEMBER 2010 Issue|
|The Salient Features of Proximity: Examining the Spandeck Formulation for Establishing a Duty of Care|
David Tan  Sing JLS 459 (Dec)
The articulation of a single two-stage test by the Singapore Court of Appeal to determine the imposition of a duty of care in negligence for all types of damage claimed and for all factual scenarios is an admirable effort to bring doctrinal clarity to the neighbourhood principle. However, the notion of proximity which forms the cornerstone of the Spandeck test can benefit from a more methodical examination of a set of factual factors relevant to the relationship between the parties to the dispute. This article argues that the salient features approach of the High Court of Australia may be modified and adapted to assist Singapore courts in their analysis of "proximity" under the Spandeck formulation, and would be of significant practical benefit to judges and lawyers in their appraisement of the factual matrix.
|310. ||DECEMBER 2010 Issue|
|Contentious Liberty: Regulating Religious Propagation in a Multi-Religious Secular Democracy|
Thio Li-ann  Sing JLS 484 (Dec)
This article examines the theoretical justifications, historical origins and contemporary scope of the constitutional liberty of religious propagation, against the competing interests clothing it with a controversial character. To elucidate the quality of religious freedom within a secular democracy and the meaning of associated concepts of 'tolerance', 'pluralism and citizenship, in Singapore, it examines how the state regulates this external dimension of religious liberty, whether through legislative sanction or soft constitutional lawnorms seeking to promote compliance with non-binding government articulated standards. Two recent 'cautionary tales' are analysed to ascertain the contours of religious propagation in practice: the 2009 decision of PP v. Ong Kian Cheong where religious propagation fell afoul of sedition law, and the non-judicial management of the 'Lighthouse Evangelism' controversy where the authorities received complaints from offended Buddhists, Taoists and unaffiliated netizens about a church website video containing 'insensitive' comments.