October 3, 2017

“Misinformation, deliberate or otherwise, erodes confidence in the system of justice” shares Non-Executive Chairman and Senior Consultant Professor Walter Woon SC in his opinion piece for The Straits Times

RHTLaw Taylor Wessing Non-Executive Chairman and Senior Consultant Professor Walter Woon SC authored an opinion piece titled “The public prosecutor, politics and the rule of law” published in the Straits Times. The article was first published on 29 September 2017. The public prosecutor, politics and the rule of law Source: The Straits Times © Singapore Press Holdings Ltd. Date: 29 September 2017 Author: Walter Woon The Attorney-General occupies the hottest legal seat in Singapore. This is because the Attorney-General is the public prosecutor. Under Article 35(8) of the Constitution, the Attorney-General "shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence". In recent times, we have seen the president of a country, which is not shy about wagging its finger at others while lecturing about the rule of law, threatening to remove prosecutors and special counsel when investigations cut too close to the bone for comfort. Closer to home, there has also been loose chatter online and off that question the Attorney-General's decisions to prosecute. This is based on a misunderstanding of the Attorney-General's function as public prosecutor. Ignorant criticism is unfair to the Attorney-General and his officers. Misinformation, deliberate or otherwise, erodes confidence in the system of justice. It is necessary first to understand the nature of prosecutorial discretion. As a preliminary matter, a distinction must be made between a prosecution and a civil suit. When a person defames someone else, for instance, the "injured" party (the plaintiff) may seek compensation by means of a civil suit. The public prosecutor is not involved in this. The commencement of civil litigation is a matter solely for the plaintiff. No one can stop him from suing. If he wins, he gets compensation (which does not have to be a substantial sum). If he loses, he pays the defendant's costs. Criminal defamation is an offence under the Penal Code. It is up to the Attorney-General to decide whether or not to lay charges. This is termed a prosecution, in contrast to civil proceedings. The object is not to obtain compensation for an injured party but rather to protect society's interests by imposing some sort of punishment, often as a deterrent to others. As provided in the Constitution, the Attorney-General has discretion over this. The accused person (defendant) and the injured party (complainant) are not involved in the decision. The defendant might tender an apology and offer to pay damages to the complainant, but the public prosecutor may decide to press on regardless if he thinks that there is a public-interest issue involved. The complainant cannot "drop the charges", contrary to popular misconception. Not every offence is prosecuted in court. If it were mandatory to prosecute every time an offence is committed, the courts would be jam-packed with jaywalkers and litterbugs. This is where prosecutorial discretion comes in. The public prosecutor can decide whether or not to prosecute. The question is, on what grounds? It is obviously not possible for the Attorney-General to look at every individual file to decide whether to prosecute. In practice, that is left to deputy public prosecutors (DPPs). There are currently two prosecution divisions in the Attorney-General's Chambers: the Criminal Justice Division, and the Financial and Technology Crime Division. The legal officers posted to these two divisions are designated DPPs. Generally, investigatory agencies (for example, the Central Narcotics Bureau, the Corrupt Practices Investigation Bureau, the police, to name a few) send investigation papers to one of the prosecution divisions. A junior DPP will then make recommendations as to whether charges should be laid, and, if so, what charges. The recommendations are considered by more senior DPPs -the heads of the various directorates, the chief prosecutor of the division, the Solicitor-General, the Deputy Attorney-General. The most serious cases end up on the desk of the Attorney-General, where the buck stops. In most cases, however, the buck stops far down the line from the Attorney-General. STEPS TOWARDS PROSECUTION In deciding whether or not to prosecute, there are, in general, four steps: •Step 1: Find out what happened. This is the job of the investigatory agencies. It is the stuff of novels, TV and films. The DPP can ask for clarifications or further investigation. •Step 2: Ascertain if an offence has been committed and, if so, what offence. This is a legal question - it is the reason DPPs have to go through four years or more of law school. Laypersons are seldom, if ever, qualified to appreciate the intricacies of Singapore criminal law. •Step 3: Can the elements of the offence be proven in court? The prosecution must prove the case against the accused beyond reasonable doubt. It is not for the accused to prove his innocence. At Step 3, the DPP has to decide whether there is enough evidence that will stand up in court. It is often possible to piece together what happened with a fair degree of certainty. However, there are cases where witnesses will refuse to testify in open court. In other cases, a witness may implicate others when questioned, but when it comes to actually testifying, he will have an attack of selective amnesia. If the DPP thinks that the witnesses cannot be relied on, the prosecution will probably be dropped. If he decides to carry on, there is a chance that the judge may not be convinced beyond reasonable doubt. In that case, the defendant is acquitted. Again, contrary to popular misconception, a verdict of "not guilty" is not synonymous with "innocent". In some cases, it just means that there is a reasonable doubt. Thus, for instance, in a rape case the man may contend that the "victim" consented. The woman may be equally vehement in denying that she did consent. If the judge cannot be sure, then the accused is found "not guilty", even though it may, in fact, have been rape. Assuming that we have got past Steps 1, 2 and 3, the final step is: Should there be a prosecution at all? TO PROSECUTE OR NOT PROSECUTE The public prosecutor must decide whether it is in the public interest that the matter should be laid before a judge in open court. He has discretion over this. This is where the biggest problems arise. For good or ill, the public prosecutor must make a judgment call. There are many reasons why a decision may be taken not to prosecute. The offence may be a trivial one, not worth tying up prosecutorial and judicial resources over. A person who drops torn-off tabs from parking coupons on the ground may be guilty beyond reasonable doubt of an offence but, in most cases, this will not end up in court. Composition fines may be imposed instead. Sometimes, the prosecutor may decide that the accused should be given a second chance. For example, if two teenagers are caught having consensual sex, this is an offence if the girl is under 16 years of age. But would it be in the public interest to prosecute a 17-year-old boy for having sex with his 15-year-old girlfriend? The prosecutor may (note, "may", not "will") decide that, under the circumstances, a conditional warning is better. If the boy does not heed the warning and repeats the offence, he will be prosecuted for the previous offence as well as the new one. But if he mends his ways, then there is no prosecution. WHEN POLITICS MAY CLOUD THE PICTURE Politically charged cases are often a source of controversy. Suppose that an opposition politician is charged with deliberate incitement of racial unrest. It is a given that his supporters will scream that the prosecution is politically motivated. When one analyses the issue dispassionately, if the accused is indeed guilty of deliberately inflaming racial feelings, it does not matter whether the decision to prosecute is politically motivated. But the fact that it is perceived to be so undermines the credibility of the public prosecutor, especially if ruling party politicians are not similarly treated. The public is not stupid. People have a sense of justice. That sense is outraged if double standards are practised - a lenient one for the rich and politically influential, a stricter one for ordinary persons and the strictest one for oppositionists. The public prosecutor has to maintain a scrupulous neutrality so as to avoid being accused of partiality. Take a purely hypothetical example: Say that a powerful minister is accused of embezzling a substantial sum of money from a government-linked company. How does he avoid retribution? Bribing judges is risky - this can backfire spectacularly. Interfering with investigations is more promising, but in the age of social media, this may not stop the process. The best bet is to nobble the prosecutor. There are many ways to pressure the public prosecutor. In some places, the threats are physical. I attended a conference of prosecutors in Canada some years ago. Several of my colleagues said that they carried guns for protection. One colleague from a Caribbean country did not even live there - his life would have been worth nothing in his home country. But physical threats are crude. There are better ways. The favoured way, as seen in some countries elsewhere, is to appoint as Attorney-General someone who can be counted on to bend when pressure is applied. If the Attorney-General decides that charges will not be laid, no one can challenge that decision. Not even the Chief Justice can compel him to prosecute, legally and practically. So the question is: What can be done to strengthen the system? We accept it as a given that judges should be politically neutral and not take instructions from politicians. I would argue that the same must hold true for the public prosecutor. Indeed, one should remember that if the public prosecutor declines to prosecute, the case will never reach a judge, even if there has been a blatant breach of the law. TWO ROLES OF THE A-G Many people mistakenly think that the Attorney-General is part of the political executive. This may have been so in colonial days, but under our present Constitution, it is not so. Unlike in many other countries, the Attorney-General of Singapore is not a party politician or a member of the Cabinet. This mistake arises because the Attorney-General has two roles: first, that of the Government's legal adviser and, second, public prosecutor. When giving advice on civil cases by or against the Government, on legislation, on matters of international law, the Attorney-General is the Government's Attorney-General. He is obliged to defer to the Cabinet when it comes to issues pertaining to civil litigation, international law and the drafting of legislation. If he is instructed to fight a case, he must follow his client's instructions just like any other lawyer, even if he thinks the case cannot be won or that it is ill-advised. But when it comes to his role as public prosecutor, the Attorney-General is not the Government's Attorney-General. He is given discretion over prosecutions by the Constitution. It cannot be the case that he should just prosecute if a senior minister wants that to be done. The rule of law is not the natural state of human society. For most of history, in most societies, the system has been rule by the powerful. The rule of law cannot be imposed by force or governmental decree. Citizens must accept it and actively cooperate in upholding it. Prosecutions are a tangible manifestation of the rule of law. When the prosecutorial machinery is abused for political ends, ordinary citizens' faith in the rule of law is shaken. If people do not believe that the system is fair, they will subvert it. Building a society based on the rule of law takes a generation and more - tearing it down can be the work of a single electoral term. A quick look at the state of the world will show that pressure on prosecutors is common, even in countries that consider themselves to be shining examples of the rule of law. It is foolish to wait until a hurricane hits you to strengthen your roof. Fix it now, when the sun is shining and the dark clouds have not gathered. If one accepts the premise that the public prosecutor should be independent, the first step is to separate the two functions of the Attorney-General. As the Government's legal adviser, he must take instructions from the Cabinet, whatever his own judgment may be. Take this function away from the Attorney-General. Give it to the Solicitor-General, for example. The three non-prosecution divisions of the Attorney-General's Chambers - civil, legislation and international affairs - can come under the Solicitor-General or whoever is designated as the Government's legal adviser. The prosecutorial function should be left with the Attorney-General, who would have the two prosecution divisions in his charge. It is necessary for the Attorney-General to be the public prosecutor. A certain stature is required to resist politicians, foreign diplomats, domestic pressure groups and non-governmental organisations, not to mention the assorted people who try to influence prosecutions. In the legal hierarchy, the Attorney-General ranks immediately after the Chief Justice. The next question is: Who should appoint the Attorney-General? At present, the Constitution provides that the Attorney-General is appointed by the President on the advice of the Prime Minister. The President does not have to accept the Prime Minister's advice, which is the major safeguard against blatant abuse by appointing a political hack to the post. Since the President has an independent mandate from the people and constitutional discretion, he (or she) should be the one to make the decision, ideally in consultation with the Chief Justice and the incumbent Attorney-General. This will ensure that, optically, the Attorney-General is not seen to be a political creature of the ruling party. This is a vital consideration. All too often, when someone who opposes government policy is prosecuted, accusations will be made of political motivations. Even where it is clear that the accused has broken the law (for example, by making a nuisance of himself in public), there will always be those who will say that the Government is trying to silence the opposition. People posing as human rights activists will attract the knee-jerk support of foreign human rightists. Prosecute a journalist or blogger for insulting religions and you can be sure that there will be howls at home and from abroad about political persecution and restriction of freedom of speech. These criticisms will be flung even if the Attorney-General has acted in good faith and the politicians have scrupulously avoided trying to influence him. This is grossly unfair to the Attorney-General and his officers, not to mention the politicians themselves. If the public prosecutor is truly independent and seen to be so, it will go a long way towards refuting such criticisms. Finally, the Attorney-General's term of office should be long enough to be useful. The Constitution originally envisaged that the Attorney-General would serve until the age of 60. This provision was amended to allow the appointment of an Attorney-General for a fixed term. The norm in recent years has been two to three years. Frequent changes of the Attorney-General are disruptive and not good for the morale of the DPPs. Different attorneys-general have different views about how prosecutorial discretion should be exercised. For the sake of stability, I would suggest a five-year term, renewable by the President at his or her discretion. Some may ask, why change the system at all? If one believes that all is well and that the system will not buckle in future under the pressure of an unscrupulous powerful executive , then fine, don't change anything. But if the system can be abused, then the right thing to do is to address the weakness before it does become a problem. A quick look at the state of the world will show that pressure on prosecutors is common, even in countries that consider themselves to be shining examples of the rule of law. It is foolish to wait until a hurricane hits you to strengthen your roof. Fix it now, when the sun is shining and the dark clouds have not gathered.
October 3, 2017

Deputy Managing Partner Azman Jaafar comments in The Edge that fewer lawyers will be needed as artificial intelligence disrupts the legal industry

RHTLaw Taylor Wessing Deputy Managing Partner Azman Jaafar was quoted in The Edge article titled “Lawyers may need tech skills as AI changes nature of legal industry”. The article was first published in The Edge Singapore on 2 October 2017. As the legal industry is being swept by the digital wave, this articles discusses that artificial intelligence (AI) allows legal firms to be more innovative and efficient in providing legal services to clients. Azman commented that AI will result in a reduced headcount in law firms. While the initial commitment to acquiring AI is high, the cost of implementing AI will be cheaper in the long run. On whether legal fees will decline and if law firms could be forced to modify their business models, he noted that fees are largely dependent on the complexity of a transaction and the desired outcome rather than the costs of achieving it, though automated components of legal work may become less costly over time. The full article dated Monday 2 October 2017, can be found in The Edge Singapore.
September 22, 2017

Intellectual Property & Technology Partner Jack Ow was featured in Asia Business Law Journal on the increasingly stringent legal frameworks concerning data protection and cybersecurity in the APAC region

Intellectual Property & Technology Partner Jack Ow was featured in the article ‘Space Invaders,’ published in Asia Business Law Journal on data protection and cybersecurity of technology in the legal sector. The article was first published on 19 September 2017. With the recent increase in cyber attacks, Asia Business Law Journal explores how the once abstract concepts of data protection and cybersecurity are quickly gaining traction. There is a clear trend that legal frameworks are becoming more stringent in Asia Pacific (APAC) countries. One such example is Singapore’s recent draft Cybersecurity Bill, in which Jack commented, “The Cybersecurity Bill gives the Cyber Security Agency (CSA) powers to require any person to assist and co-operate in investigations, and also to take steps to prevent and respond to cybersecurity threats and cybersecurity incidents.” Regulations concerning the transfer of personal data across jurisdictions are likewise becoming more stringent. “Where international transfers of personal data are concerned, then it is an express requirement under the Personal Data Protection Act (PDPA) that the transferring party must ensure, before transferring personal data overseas, that the receiving foreign party is bound by legally enforceable obligations to provide a standard of protection that is at least comparable to the standard of protection prescribed in Singapore,” Jack advised. While many believe APAC countries could consider adopting standards to facilitate cross-border data transfer through a harmonisation of the various regimes, Jack rationalised that with differing levels of economic development, harmonisation is likely to face a stumbling block. However, he shared a reason for optimism. “The cross-border exchange of digital goods, services and even ideas between Asian economies could very well be a key driver toward harmonisation in order to facilitate and regulate intra-Asia trade.” Please click here to view the full article, as published in the Asia Business Law Journal.
September 21, 2017

Head of Intellectual Property & Technology Jonathan Kok comments that the original creator of content usually owns the copyright to it, in The Straits Times article titled “Property listings portal sues rival for copyright infringement”

RHTLaw Taylor Wessing's Head of Intellectual Property & Technology Jonathan Kok commented that the original creator of content usually owns the copyright to it, in The Straits Times article titled “Property listings portal sues rival for copyright infringement”. The article was first published on 21 September 2017. Property listings portal sues rival for copyright infringement Source: The Straits Times © Singapore Press Holdings Ltd. Date: 21 September 2017 Author: Rachel Au-Yong Singapore's biggest property listings portal PropertyGuru has sued its rival 99.co over alleged copyright infringement, accusing the latter of reproducing content from its website without permission. Yesterday marked the start of the six-day trial, which is being watched for its implications on who owns the copyright of content uploaded onto online platforms. At issue in the ongoing case is the use of a third-party digital app called Xpressor, which lets property agents post listings across multiple portals - resulting in several listings on 99.co bearing PropertyGuru's watermark. PropertyGuru, which was founded here in 2007 by Finn Jani Rautiainen and Briton Steve Melhuish, has said it has the business of half the 28,000 licensed agents in Singapore. 99.co, a relative newcomer, was set up in 2014 by entrepreneur Darius Cheung and counts Facebook co-founder Eduardo Saverin among its backers. PropertyGuru filed three claims against 99.co. It alleges that 99.co had breached a previous settlement agreement made in September 2015. 99.co "substantially reproduced and continues to reproduce" content from its website, said PropertyGuru.   Implications beyond property sector Intellectual property lawyers are watching the court case involving PropertyGuru and 99.co closely. The case raises questions about who owns the copyright on images of properties taken by housing agents, and could have implications beyond the property industry. PropertyGuru is alleging that 99.co infringed its copyright by posting content from its website on the latter's, among other things. But 99.co has countered that property agents were exercising their rights to their own content. Robinson LLC lawyer Cyril Chua said for a site, or any other party, to claim copyright on the content, there must have been sufficient skill, effort, labour and judgment to change it. "If I draw a version of the Mona Lisa with different hair, I own the copyright to that parody. The question is whether resizing it and signing my name can warrant me calling it a new piece of art," he said. RHTLaw Taylor Wessing intellectual property lawyer Jonathan Kok said the scope of rights acquired by a site depends on whether the terms of use state that it is full or partial transfer of ownership. The general rule has been that whoever created the work owns the copyright in it unless he signs a written agreement and transfers ownership. A quick check showed that popular sites like Facebook and Pinterest do not own the copyright on images hosted on their sites. Others, such as sales listing site Carousell, state that users infringe copyright if they post images of items taken by other users or off their original websites. Amica Law's Jason Chan said there could be other issues such as ownership of copyright to a listing and their images when agents co-broke a deal. It is also accusing 99.co of infringing its copyright by reproducing photos bearing the PropertyGuru watermark on 99.co's website. The final claim is that 99.co had caused property agents to breach PropertyGuru's rules about content on its website by encouraging them to sign up with Xpressor to copy their listings from PropertyGuru onto 99.co's website. According to PropertyGuru's Acceptable Use Policy, agents cannot reproduce, display or provide access to its website on another site. 99.co has denied the claims, and has filed a counterclaim against PropertyGuru for "groundless threats" of copyright infringement. It argues that agents were "exercising their own copyright" in using Xpressor to post listings across multiple websites. It is also saying that it has not reproduced PropertyGuru's photos; rather, agents themselves have done so by using Xpressor. Yesterday, Mr Rautiainen, PropertyGuru's managing director, was cross-examined by 99.co's lawyer Koh Chia Ling. Mr Koh sought to establish that the act of resizing or putting a watermark on an agent's photo does not give PropertyGuru copyright over the new image. But Mr Rautiainen disagreed, citing a "high-level technical process" that allows agents' original photos to be adjusted, pixelated and resized, then have a watermark imprinted on them. He also said that the only available alternative site for Xpressor to cross-post listings to was 99.co. According to Xpressor's Facebook page, it allows cross-post listings across nine property portals, including PropertyGuru and 99.co. But when questioned by Mr Koh, Mr Rautiainen said there was never any infringement of copyright by Xpressor's parent company, Media Publishing Group. The trial continues today.