Beyonics Technology Ltd v Goh Chan Peng [2016] – HC rules on causation for equitable compensation

Singapore Law; Legal; Lawyer

Beyonics Technology Ltd v Goh Chan Peng [2016] SGHC 120 – HC rules on causation for equitable compensation

Significance: in this murky area of the law of equity and trusts, Hoo Sheau Peng JC decided that the causation rule for awarding equitable compensation for breach of fiduciary duties involving the core fiduciary obligations of acting in the best interests of the principal would be the less strict approach taken by the Privy Council in the Brickenden v London Loan & Savings Co of Canada [1934] 3 DLR 465 (“Brickenden”) decision and discussed in previous SGHC decisions of Quality Assurance Management Asia Pte Ltd v Zhang Qing [2013] 3 SLR 631 (HC) (“Quality Assurance”) and Then Khek Koon v Arjun Permanad Samtani [2014] 1 SLR 245 (HC) (“Then Khek Koon”).
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Private sector corruption: 9 months jail

http://www.straitstimes.com/singapore/director-jailed-for-9-months-for-graft
Director of a company convicted and jailed 9 months under the Prevention of Corruption Act for intending (although he never actually made the payment) to pay an employee of a company (LVMH) bribes to induce business opportunities for his company.

Case Update: Seaquest Enterprise v Agile Accomm – SGHC finds minority oppression, orders buyout

Singapore Law; Legal; Lawyer

Seaquest Enterprise Pte Ltd v Agile Accomm Pte Ltd [2016] SGHC 51

Significance: Singapore High Court found that there was a case of minority oppression, and ordered a buyout of the minority’s shares to be valued by an independent valuator for fair value at the date of the judgment.

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Legislative Update: enforcement action for PDPA breaches

Singapore Law; Legal; Lawyer

Introduction

On 21 April 2016, the Personal Data Protection Commission (PDPC) issued a press release outlining its enforcement action against 11 organisations for breaches to the Personal Data Protection Act (PDPA).

The highlight penalty was a $50,000 fine and other directions meted out against karaoke chain K Box Entertainment Group Pte Ltd for not putting in place sufficient security measures to protect the personal data of 317,000 members (a list of the members’ details were uploaded onto some website), for inadequate data protection policies and the absence of a Data Protection Officer (DPO). Its IT vendor in charge of managing its content management system, Finantech Holdings Pte Ltd, was also fined.

PDPA breaches can result in financial penalties, valuable work hours spent on investigation proceedings, loss of trust from one’s clients, and reputational harm.

Since the PDPA came into full effect in July 2014, the PDPC has received 667 complaints. 92% of these complaints were resolved through investigation and facilitation between the respective organisations and individuals.

In this article, I consider some key themes in the enforcement action cases highlighted in the 21 April 2016 press release.

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Legislative Update: Paternity Leave, Child Developments Co-Savings, Unwed Mothers

Singapore Law; Legal; Lawyer

Paternity Leave

Under the Child Development Co-savings (Amendment) Bill 2016, employers and self-employed individuals, who voluntarily exercise the option to grant to employees or take a second week of paternity leave respectively, will be reimbursed by the Government for this additional week of leave granted or taken.

The second week of paternity leave may be taken on or after 24 Aug 2015, and applies to:

i. children born on or after 1 Jan 2015;
ii. children born before 1 Jan 2015, but whose estimated delivery date (EDD) was on or after 1 Jan 2015;
iii. adopted children where the application to adopt is on or after 1 Jan 2015 (for child who is a Singapore citizen); or,
iv. adopted children whose dependant’s pass is issued on or after 1 Jan 2015 (for a child who is not a Singapore citizen).

It allows employers and self-employed to seek reimbursement from 1 Jul 2016.

It will also be mandatory for employers to provide two weeks of paternity leave to fathers of citizen children born from 1 January 2017 onwards. Amendments to the relevant statutes will follow.

CDA for Unwed Parents

Children of unwed parents would be eligible for Child Development Account (CDA) benefits, including the $3,000 CDA First Step grant. This applies to eligible children born from September 2016 onwards.

Interview with Derrick Wong: cafe partner serving the homeless community in Chinatown

Derrick Wong serves customers western bistro fare in his cafe every day and evening, and serves the homeless community residents in Chinatown zhap chai png and desserts on Monday and Friday nights.

Derrick runs The Loft Cafe in Chinatown, located at the intersection of Smith Street and South Bridge Road, on the second and third storey of a shophouse overlooking the colourful, lit-up Smith Street food walkway where tourists throng for (overpriced) local dishes. He is a co-partner in the cafe, oversees the daily operations, gets his hands dirty preparing food and serving customers, and manages backend aspects of the business as well. Throughout my conversation with him, he was interrupted several times by things calling for his attention. Customers to attend to. Food preparation. A turkey to carve for a private event on the cafe’s third storey for which he was preparing food just prior to our conversation. The cafe is a comfortable space for a chill Friday evening: dim Edison lamps, ambient lounge music and cosy couches.

He tells me that on Mondays, which are his rest days, he uses the cafe’s kitchen to prepare food for his homeless friends. Zhap chai png, mee rebus, and so on. He tries to include more meat into the dish because his homeless friends don’t often get to eat that much of it. Some other people give the homeless residents leftovers. It belittles their dignity, he says. He tries to give them something better. The money for the food comes from his own pocket. Some volunteers have also been pitching in with love gifts.

Every Monday and Friday night, he and his small group of volunteers would bring food and go out to Sago Lane, Smith Street and Chin Swee area at about 10pm and hang out with the homeless residents, sometimes until 3am. He’s been working with poor residents at the Jln Kukoh area since 2014, and only this year started reaching out to the Chinatown homeless. At first, the homeless residents were skeptical. Many other people doing charity to them would come and go. But it took time and persistence before they opened up and accepted Derrick and friends. It’s about honouring their promise that they would be there faithfully each week, he says. They now feel encouraged when they see Derrick and friends. When the haze turned severe this year, he started distributing ‘liang teh’. Frequent customers of the cafe joined them after he put the word out on their Facebook page.

The ministry extended organically to what he calls job therapy. Some homeless residents expressed interest in finding a job. So Derrick brought them in to the cafe to work for a couple of hours. Over the course of a few months, 6 of them tried out he cafe work. 1 stayed on as permanent part-timers staff. The rest left because they couldn’t really handle the lifestyle. He explained that many of the homeless residents were substance abuser. The elderly folks however were more positive. 2 of them worked at the cafe and picked up some skills–he taught them to make bread, for instance–and experience. As a result, they later landed jobs with the Sports Hub during the recent SEA games. This is what he calls job therapy. The homeless persons are properly paid the same rates as other part-time staff. It gives them experience, confidence and relational skills. Many of the homeless residents actually have rented houses but are on the streets because of relational problems with co-tenants of the houses. Homeless shelters feel like prisons to them because there are many restrictions, so they want out.

Derrick Wong Loft
Derrick Wong (far left)

Why does he do all this? For one, it’s about the cafe business’ responsibility to the community. His partners and he started this cafe as not a charity but a missional business. It’s sustainable. It is socially responsible. And it manifests God to the people they encounter. He also shared that he’s an ex-convict. He has experienced social stigma. He knows what it feels like to be marginalised. But he’s been given a second chance. He hopes to offer the same to the homeless residents, many of whom also feel social ostracism. They look unhygienic. People shun them. People ask why they don’t work when they’re able bodied. But each of them, Derrick says, has a unique story. It’s not so simple. Get to know their stories instead.

Derrick previously went through a particular church’s School of Theology. As part of the programme, he volunteered with the dialect services. They’d load residents from the Jln Kukoh estate on a bus and send them to church, preach a message, pray with them, give them food and then send them back. He thinks there’s a problem with that. There’s no relationship with the residents. He says it’s about getting to know the individual persons. To know their needs, desires, hopes. So that strategic prayers can be offered. Sometimes, they lie about certain things. He says, you discern and you’ve got to make hard decisions about these things.

His ministry to the poor and the homeless has not always received endorsement. His former church didn’t support it. Maybe because it wouldn’t bring much benefits to the church, to put it bluntly. The church’s aim was to increase its membership. He didn’t agree with that. He stopped attending the church’s service after a while. He comments that local churches don’t have the environment for people like the homeless folks. Church members would probably see the homeless as ‘us’ and ‘them’. If Jesus is here  today, He’d be out ministering to these people, Derrick says. Do Christians see ground-zero as church? Jesus went everywhere and saw ground-zero as church. He performed healing everywhere. For churches to be outward looking, they need to see where the needy are as church and not just ministry ground. Are church members willing to spend more time at ground-zero than in their church buildings? It’s the harvest field out there.

Derrick effectively does church in the cafe. Other than outreach to the community, a lot of youths hang out at the church community in a prayer room tucked away on the 3rd storey of the shophouse. “This place becomes a place where people come not just for church services, singing, but more about fellowship. We have a life group. Three of us. Share about our week. Ministry work. Confess our sins. Help us grow stronger. We don’t spend more time deliberating on traditions rather than going out to act out on the Great Commission,” Derrick says. Church is about a community of believers. Where 2 or 3 gather. “You can have church in a bar.” Acts 2:42 describes the church. Breaking of bread together. Sharing the word. Traditions come after that.
Loft cafe

His ministry is enjoying more partnerships with other Christian community groups. There aren’t enough volunteers. So groups led by James Seow and Abraham Yeo team up with him. They have extended their reach to Chin Swee, from Jln Kukoh and Chinatown. I asked if he had the opportunity to share the gospel with any of the people he’s journeyed with. He says yes. “Chinatown I’m pretty surprised. Within half a year already. 7 salvations. First time round I brought 10 packets of food, couldn’t give out everything. Subsequently, get to know more of them, some of the more influential. They get to know us. They know us as the Jesus people. Brings comfort. Start to know they see us manifesting the God we trust.”

Given the multi-faceted needs of the community, what did he think about the government’s role? While he thinks the Singapore Government is doing a good job, he says some government agencies don’t understand the complexities of the needs these residents and households face. He notes that some of the Jln Kukoh residents approach their Member of Parliament (MP) and the MP does try to help. Sometimes, the homeless and  the elderly try to find more ways to get more money from social services. Some people keep complaining, grumbling. They don’t want to work. Because they’re trapped in this vicious cycle. And that in turn is because there are too many barriers to escape the cycle. He explained that the estate comprises of 4 types of people: elderly, poor, single parents, and foreign brides. They have their own stories and problems. “You can’t expect the elderly to travel all the way to Woodlands to work and come back. Can’t expect single mom with two children at home to travel to Woodlands. And F&B and cleaning work have long hours.” As a result, many of the residents are not given opportunity to work. Companies and employers don’t offer the flexibility needed for these residents. Most businesses and employers are just looking at profits.

And he has a solution. He wants to start a social enterprise right inside Jln Kukoh, called “Walk Strong”, which is a direct translation of the estate’s name. Another social enterprise thought of this idea but they didn’t follow through with it because they found it practically unfeasible. But Derrick says to me matter-of-factly, with God it’s possible.

“We want to do manufacturing. Thinking of starting a central kitchen. Low entry level. Anyone can hop on. Catering. Bake bread. Gift packaging. We will have a Walk Strong brand. Approach hotels, companies. Offer competitive prices. But it helps the residents. These people can come in clock hours. Minimum is clock one hour. People say won’t work. But we have a massive manpower there. 7000 residents in Jln Kukoh. We haven’t done numbers, but numbers from SSO, 60% employable age.”

He says that he’s tried applying to the Housing Development Board (HDB) to offer discounted rates for rental of premises there. This is a social cause after all. HDB rejected his application. “They ask us to go through normal bidding process and rent could go up to $10,000 per month. Rent is expensive.”

More immediately, Derrick wants to do a census of the Jln Kukoh residents. He says the Government doesn’t do a full census of the estate. And they won’t want to release the information to him anyway because it’s confidential. Together with James Seow and Michelle Yeo (incidentally, all friends of mine), he has discussed possibilities of conducting this census. But they haven’t been able to proceed because they couldn’t find enough volunteers. There are 600 households, almost 7000 residents. The census has to be done within at least 10 months or otherwise, there’d be too much variation over a longer time period for meaningful data.

The census will be helpful for many other organisations. There are a lot of different organisations serving the Jln Kukoh estate. But they’re duplicating efforts. If they can share information, e.g. age group, who’s employable, who’s in prison, they can coordinate efforts. But many of these do-gooders have full-time jobs and are very busy (many of the volunteers are civil servants, lawyers, and other professionals).
Loft Cafe

Properly appreciating the needs of the residents is important because, Derrick says, the ministries must meet tangible needs. “We experience parents who don’t care about their children. Just want to drink, take drugs. They tell their children don’t go school. When we fulfil their tangible needs, it helps the youth, the community to be more happy. My first impression when I first walked into Jln Kukoh is everyone’s so sad. Unlike in Toa Payoh, Ang Mo Kio, where people are alive, there, it’s a dead estate. People don’t smile. Whether the census amounts to the social enterprise [is] not important. It’s to know their needs. Present a more reliable plan that the government can look into.”

Taking a step back, he says, “never a single organisation can make a difference. But with every organisation, it can make a difference. Just imagine so many businesses in Chinatown. If they take time to walk around get to know these people, give them a second chance. You’ll see massive change in their lives.”

**

The Loft Cafe is at 268A South Bridge Road, 058817. It opens daily except Mondays from 7.30 am to 11pm. 

For more stories of Christian social justice ministries, check out my book, The Justice Demand. To connect with Derrick or other social justice practitioners like him, drop me an email at thejusticedemand[at]gmail.com. 

ONE FM 91.3 Interview

ONE FM 91.3
ONE FM 91.3

I had the privilege of being featured in the Guinness x Humans of Singapore, Men of Singapore book recently. And the bros deejays on ONE FM 91.3 interviewed two of us featured in the book, Enoch Teo and myself. The good lads from ONE FM asked what advice I had for young Singaporeans. This was what I said:

“I don’t think I have the standing to give any advice to anyone.

But I guess if I have any advice for myself, it would be this. Be secure in your identity. Be strong in convictions. Be humble in heart and mind. Be giving always. For in laying your life down for others, there you will find your life.”

Case Update: Living the Link Pte Ltd v Tan Lay Tin Tina [2016] SGHC 67 – SGHC clarifies law on undue preference, running account principle, and partial reversal of undue preference transactions

Singapore Law; Legal; Lawyer

Significance: Singapore High Court, in determining a case of undue preference and breach of fiduciary duties by a former director of a company, considered the application of the running account principle defence. The principle is that a transaction, which on its face is an undue preference, can be upheld on the basis that it was made under a mutually beneficial running account. The Court held that the fact that an impugned payment was made pursuant to a running account is by itself insufficient to negate an intention to prefer – it must have been made with the intention of obtaining new value to keep the business going. The running account principle, so understood, is not strictly an independent defence, but goes to proving that the insolvent company was acting solely by reference to proper commercial considerations in making the payment and was not influenced at all by a desire to prefer the creditor: [55].

The Court also considered that the court’s broad discretion under s 99(2) of the Bankruptcy Act allows it, in an appropriate case, to order a partial reversal of transactions found to be undue preferences if justice so requires. Such an order may be justified, for example, in clear cases where the parties’ claims are uncontroversial, or where there is an agreement between the preferred creditor and the liquidators as to the amount which ought to be set aside for the claims of the other unsecured parties: [76].

The Court also followed the English Court of Appeal’s decision in Liquidator of West Mercia Safetywear Ltd v Dodd and another (1988) BCC 30 (“West Mercia”) in holding a director personally liable for procuring an undue preference on the basis of breach of fiduciary duties.

Case Update: Lian Kok Hong v Lian Bee Leng and another [2016] SGCA 24 – SGCA clarifies law on contentious probate and suspicious circumstances regarding execution and preparation of will

Singapore Law; Legal; Lawyer

Significance: Singapore Court of Appeal clarifies that in determining whether a testator had testamentary capacity and/or knowledge of the contents of the will, the Court cannot regard all suspicious circumstances, whether or not they relate to the execution and preparation of the will, to be taken into account in determining if the usual presumption that a testator who has testamentary capacity knew and approved the contents of the will operates. Circumstances are relevant only if they attend or relate to the preparation and execution of the will. Otherwise, all kinds of non-related circumstances may be used to rebut the presumption. See [60]. Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 affirmed, clarified.