Legislative Update: enforcement action for PDPA breaches

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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May 18, 2016

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

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.

May 18, 2016

Case Update: BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another [2016] SGHC(I) 01 – first SICC judgment

Significance: BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another [2016] SGHC(I) 01 is the first Singapore International Commercial Court (SICC) judgment ever. Decided by Quentin Loh J, Vivian Ramsey IJ and Anselmo Reyes IJ.

May 8, 2016

ONE FM 91.3 Interview

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.”

May 3, 2016May 3, 2016

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

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.

May 3, 2016May 3, 2016

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

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.

May 3, 2016

Case Update: SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] SCGA 27 – authority to act for mentally incapacitated person

Significance: Singapore Court of Appeal emphasises that the Mental Capacity Act is the prevailing legislation of general application governing the conferment of authority on a third party to manage the affairs of a mentally incapacitated person. It will be applicable across all situations in which a third person purports to act on behalf of a mentally incapacitated individual. Without such authority conferred by law, no one–not even a next of kin–can purport to act on behalf of, make decisions for, elect on legal remedies for, a mentally incapacitated person: [25].

This decision also considered in obiter dicta the issue of whether the public law doctrine of legitimate expectations is applicable under Singapore law. The Court left this open, but raised many difficulties with the doctrine.

May 3, 2016May 27, 2016

Court awards costs to party represented by pro bono lawyer

SATS Construction Pte Ltd v Islam Md Ohidul [2016] SGHC 99

http://www.singaporelawwatch.sg/slw/headlinesnews/81429-court-awards-legal-costs-for-work-done-on-pro-bono-basis.html#sthash.htpgjVuK.dpbs

In the case, SATS Construction Pte Ltd v Islam Md Ohidul [2016] SGHC 99, covered by this news article, K.C. Vijayan, “Court awards legal costs for work done on pro bono basis”, Straits Times (3 May 2016), the High Court hearing an appeal from a labour court decision requested for a special hearing on the issue of whether a party who was represented by a pro bono lawyer could be awarded legal costs. The High Court held that it could and in this case, ordered $6,000 costs in favour of the worker, who was represented pro bono.

This is certainly good news for pro bono lawyers and impecunious litigants. It should be noted that in some cases, impecunious litigants may not even have the funds to pay for disbursements such as court filing fees, commissioner for oath fees, etc. A cost award could help pay off some of these, and also compensate the pro bono lawyer a little for the substantial time and resources spent. Of course lawyers who act pro bono don’t do it for the money. They went in knowing full well that they probably wouldn’t be paid. But this is helpful to ease the burden of some small firm pro bono lawyers. Also, it is only fair that the losing party is penalised with costs. Especially if that party commenced the action or appeal and lost. There is a deterrent effect as well.

April 26, 2016

Maniach Pte Ltd v L Capital Jones Ltd [2016] SGHC 65 – SGHC holds that minority oppression claims are not arbitrable per se

Significance: Singapore High Court (coram: Vinodh Coomaraswamy J) held that all statutory minority oppression claims, i.e. section 216 claims, regardless of the factual circumstances are not arbitrable as a matter of public policy.

The reasons given are:-

1. the minority oppression claim, being statutory in nature and being asserted in relation to the affairs of a creature of statute, ought to be supervised and determined by the court in all cases: [160];

2. (a) an arbitral tribunal is unable to grant a plaintiff in minority oppression proceedings the full panoply of relief available under s 216(2) of the Companies Act to remedy minority oppression; and (b) it is undesirable to compel the parties to fragment a minority oppression dispute between litigation and arbitration, whether that fragmentation arises because the arbitral tribunal cannot grant the full range of relief which the statute makes available to a successful plaintiff or because only some of the parties to the dispute are parties to the arbitration agreement. This follows Quentin Loh J’s reasoning in Silica: [161].

On part (a) of the 2nd reason above, Vinodh J opined that the statutory power to order a buy out on terms under s 216(2)(d) of the Companies Act is vested only in a judge, and even then only by s 216(2)(d) of the Companies Act and is alien to the common law and even to equity: [164]. Further, following Quentin Loh J in Silica in considering the scope of s 12(5) of the International Arbitration Act: (1) it clearly could not “be construed as conferring upon arbitral tribunals the power to grant all statute-based remedies or reliefs available to the High Court” and (2) that an arbitral tribunal “clearly cannot exercise the coercive powers of the courts or make awards in rem or bind third parties who are not parties to the arbitration agreement”: at [165].

On part (b) of the 2nd reason above, Vinodh J opined that if minority oppression claims are arbitrable, fragmentation along remedial lines and issues is inevitable: [169]-[170].

April 6, 2016

Legislative Update: Choice of Court Agreements Bill

The Choice of Court Agreements Bill (Bill No. 14/2016) was introduced in the Singapore Parliament on 4 April 2016. This Bill enables Singapore to give effect to the Convention on Choice of Court Agreements done at The Hague on 30 June 2005 (the Convention). The Convention establishes an international legal regime for enforcing an exclusive choice of court agreement concluded in a civil or commercial matter in an international case, and provides for the recognition and enforcement of any foreign judgment given by, and the enforcement of any judicial settlement approved by or concluded before, a court of a Contracting State designated in an exclusive choice of court agreement.

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