In many employment contracts, an employee will be prevented from engaging in certain activities that compete with those carried out by their employer. This term is known as a non-compete clause and is designed to protect an employer’s business interests both during and after the duration of employment.

One of the main issues with non-compete clauses is striking the appropriate balance between the protection of the business and an employee’s right to work. In Singapore, there is no statute governing the regulation of non-compete clauses. This means that every dispute brought before the court must be decided on a case-by-case basis, with reference to previous case law.

The labour regulation bodies in Singapore are soon to release some much-needed guidance on using non-compete clauses. In the meantime, various factors need to be considered by any business or employee entering such a contract.

What can non-compete clauses restrict?

It is standard for a non-compete clause to restrict how and where an employee does business during and after their employment. The scope of a non-compete clause depends upon the type of industry. A few examples of what can be restricted are as follows:

• Working for a competing business
• Starting a competing business
• Soliciting clients from a former employer
• Soliciting colleagues from a former employer
• Working within a geographical area

A non-compete clause will also come with a set duration, which states how long the employee will be bound by the restriction following the end of their employment.

Are non-compete clauses enforceable in Singapore?

In short, it depends. Due to the lack of a legislative framework, the enforceability of non-compete clauses is guided by the court’s decisions in previous cases. Over time, a two-part criterion has been established to assist the court in determining whether such clauses should be enforced, as follows:

1. Does the clause protect a legitimate proprietary interest of the employer?
2. Is the scope of the non-compete clause reasonable?

These are examined in more detail below.

Legitimate proprietary interest of the employer

This generally refers to an interest of the business that it would be reasonable to protect. The courts have stated three types of proprietary interests will be considered legitimate for the purposes of a non-compete clause. They are:

• Trade secrets;
• Trade connections; and
• Maintaining a stable, trained workforce.

However, the employer must go one step further and show the interest they rely on is relevant to that employee. For example, a less senior employee is unlikely to have access to confidential information constituting trade secrets. Therefore, a non-compete clause in this context is unlikely to be enforceable.

The court will consider whether it is fair for an employee to use the business’s information or connections for their personal benefit. It is important to note the skills developed by an employee during their employment will not fall within this definition and cannot be restricted.

Reasonableness

The court will then consider whether the non-compete clause is reasonable, both in respect of the interests of the parties and those of the public. The law has been developed to avoid overly restrictive clauses, but whether it is reasonable will depend on the type of employment and industry.

Regarding the employee’s interests, a person’s future employment may be significantly hindered if their non-compete clause prevents them from working within a wide geographical area for an indefinite duration. Conversely, a non-compete clause that only applies to a small geographical area and lasts, say, 12 months, is more likely to be reasonable.

In terms of the interests of the public, overly restrictive non-compete clauses will impact freedom of trade and competition, which is a fundamental aspect of business, giving the public the ability to choose. The court will, therefore, want to avoid a situation where one business monopolises a particular industry.

In assessing reasonableness, the court will look at several factors, including:

• Whether the clause is specific to the employee; if so, it is more likely to be considered reasonable.
• What the employee is restricted from doing. A general restriction preventing an employee from working for any competitor in any geographical area is more likely to be unreasonable.
• Duration of the clause. It is more likely to be reasonable if the restriction only lasts for a set duration. A longer period will usually be reasonable for an employee who works at a more senior level.
• Geographical limitations. Depending on the type of business, it may be reasonable for an employee to be restricted from carrying out business in a specific country, region, or city. However, any geographical restraints must be necessary and justified and should not disproportionately impact competition.

Unenforceable non-compete clauses

If the court finds the two criterions above are not met, the non-compete clause will not be enforceable.

A mechanism known as the “blue pencil test” will allow the court to strike out the unreasonable parts of the clause, meaning the rest of it can stay in force. This avoids the need for the entire clause or contract to be rewritten, which the court could not do in any event. Alternatively, if the entire non-compete clause is found to be unreasonable, it can be struck out, leaving the rest of the contract in force.

Enforcing a non-compete clause

If an employee breaches a non-compete clause that is valid and reasonable, the employer may apply to the court for either of the following:

1. An injunction to prevent the employee from committing the breach; and/or
2. Compensation for any financial loss suffered due to the breach.

An injunction usually prevents the employee from being employed with or setting up a competing business. Compensation will be awarded if the employer can show that the loss, they have suffered is a result of the employee breaching the non-compete clause.

It is important to note that the employer will first need to satisfy the court the non-compete clause is reasonable before it will further consider the enforcement application.

Things for the employer to consider

A business that wants to include a non-compete clause in its contracts will want to avoid a situation where the clause is challenged or deemed unenforceable. Seeking the assistance of an employment lawyer to draft the employment contract will ensure the non-compete clause is drafted properly. However, there are also some general guidelines employers can follow:

1. Ensure any restrictions on the employee are reasonable. The employer should only restrict what is necessary to ensure the business’s legitimate interests are protected.
2. Make the clause specific to the employee. Blanket restrictions that apply to all employees are unlikely to be enforceable, particularly considering the varying roles and responsibilities in different companies.
3. Avoid ambiguity. A dispute or unenforceability is much less likely to arise if the clause clarifies which activities the employee is prevented from doing.

Things for the employee to consider

A future employee may be tempted to sign their non-compete agreement without fully understanding its implications. The law will seek to protect employees from unjustified restrictions, as we have seen above. However, they should still take the time to review the contract and obtain clarification on any elements they are unsure of. If presented with a non-compete clause, employees should consider doing the following:

1. Speak to an employment lawyer. They will be able to advise the employee on the terms of the agreement and whether it is reasonable and capable of enforcement.
2. Speak to the employer. After reviewing the agreement and taking advice from a lawyer, the employee may be concerned that parts of the non-compete clause are overly restrictive. The employee is wholly entitled to negotiate these terms with the employer or, at the very least, seek clarification from them.
3. Keep a note of any changes. The employment contract will be the final version, including any amendments, as signed by both parties. The employee should keep a copy of the contract and note any subsequent amendments, just in case of any dispute. It is also sensible to keep a record of any discussions had with the employer about the terms of the non-compete agreement, as these may need to be referred to if the matter ends up in court.

Conclusion on non-compete clauses in Singapore

Non-compete clauses are an effective mechanism for providing businesses with confidence when hiring employees at all levels of their business. It is reasonable for employees’ activities to be restricted to a degree so that standard business interests can be protected.

However, non-compete clauses used as an attempt to disproportionately restrict trade and employment will not be recognised by the court and will be deemed unenforceable.

It is expected that the guidance due to be released in the latter half of 2024 will shed further light on the effective use of such clauses, thereby providing further clarity on this complex area of the law.

Driving under the influence of drink or drugs is a criminal offence in Singapore under the Road Traffic Act 1961 (RTA). In 2023, there were 180 drink driving accidents in Singapore, with 11 of these having been fatal accidents. The RTA dictates what constitutes drink driving and the sanctions that may be imposed if a person is found guilty of such an offence.

Drink driving is considered a serious offence in Singapore, which is reflected in the strict sentencing imposed for both first-time and repeat offenders. The court will also consider various other factors when deciding on the severity of the offender’s punishment. The knock-on effect of these sanctions can significantly impact the offender’s day-to-day life, even once they have completed their sentence.

The offence of drink driving

Section 67 of the RTA provides that a person shall be guilty of an offence if they drive a motor vehicle on a road or public place, and they are either:

1. are unfit to drive and incapable of having control of the vehicle due to being under the influence of drink, a drug, or an intoxicating substance; or
2. have so much alcohol in their system that the proportion of it in their breath or blood exceeds the prescribed limit.

The prescribed limit in Singapore is either 35mg of alcohol per 100ml of breath or 80mg per 100ml of blood

If pulled over for drink driving by the Traffic Police, the driver will be obligated to provide a breath test under section 69 of the RTA. If the driver refuses to take the test, they will be guilty of an offence and could face a fine of between S$1,000 to S$5,000 as well as a term of imprisonment of up to 6 months. If it is not their first offence of this nature, the fine can increase to a maximum of S$10,000, with the term of imprisonment increasing to a maximum of 12 months.

Seriousness of the offence

To determine the appropriate sentence for a drink driver, the court first needs to assess the severity of the offence. The court will look at several factors, including:

• The level of alcohol found in the driver’s breath;
• The offender’s behaviour, for example, whether they were driving dangerously;
• The level of harm caused, for example, whether the offence resulted only in minor damage to property or in a serious injury to another person;
• Whether the driver is a repeat offender; and
• Whether the driver is pleading guilty, i.e. admitting to the offence.

Punishments for drink driving

Depending upon the seriousness of the offence and whether the driver is a repeat offender, there are various punishments the court has the power to enforce.

Imprisonment and fine

Section 67 states that a person found guilty of the offence will be liable to pay a fine of between S$2,000 and S$10,000 or could face imprisonment for up to 12 months or both. Where it is a repeat offence, the fine shall be between S$5,000 and S$20,000, and the term of imprisonment will be up to 2 years. This is double what was in force before 2019 when the law was amended to clamp down on the number of drink driving offences in Singapore.

In the 2013 case of Edwin s/o Suse Nathen v Public Prosecutor, the High Court provided a guide to assist the court with issuing fines and sentencing depending on the levels of alcohol found in the offender’s system. For example:

• For levels between 35 to 46mg in 100ml of breath, fines should range from S$1,000 to S$2,000, and imprisonment should range from 12 to 18 months, and
• For levels between 55 to 69mg, the fine should range from S$2,000 to S$3,000 and imprisonment should be between 18 to 24 months.

These ranges will likely need to be updated following the increase in sentencing adopted in 2019 but nevertheless demonstrate that more serious sanctions will be put in place where the driver has consumed higher quantities of alcohol.

Removal of driving licence

The court will also have the power to disqualify the driver from holding or obtaining a driving licence for a minimum of 2 years if they are a first offender, and a minimum of 5 years if they are a repeat offender. This period will start from the date of conviction or, in the case of imprisonment, from the date the offender is released from prison.

The law also provides that where the offender has been convicted on two or more occasions of drink driving, they shall be disqualified for life from holding or obtaining a licence. However, the court won’t make such an order in every instance. If specific special reasons apply, the court may not consider it appropriate to remove the offender’s licence, and it has the power to make an alternative order as it sees fit.

In a recent case involving Mr Lee Shin Nan in December 2023, Chief Justice Menon clarified what is generally meant by special reasons, stating that it will only apply if the driving was necessary to “avoid other likely and serious harm or danger” and if the driving in question was the only reasonable way to do so.

Suspension of driving licence

Upon being stopped by the Traffic Police for drink driving, a driver’s licence may be suspended by the police until the court has had an opportunity to hear the case. The court may reinstate the driver’s licence later, but in the meantime, this power allows the police to protect other road users from reckless drivers.

Insurance

An accident resulting from drink driving is unlikely to be covered by the driver’s insurance policy. This means the offender will not be able to claim for any damage to vehicles or any injuries. In turn, offenders could find themselves in a difficult financial position where they are expected to front the vehicle repair costs, plus medical and legal fees, etc.

Being in charge of a motor vehicle under the influence of drink or drugs

The RTA goes one step further and makes it an offence for a person to be in charge of a motor vehicle they are not driving, if:

1. They are unfit to drive due to the influence of drink or drugs; or
2. The alcohol in their system is over the prescribed limit.

The court must determine whether the driver was “in charge” of the vehicle at the time. If the driver can prove the following, they will be deemed not to have been in charge of the vehicle:

1. That there was no likelihood they would drive the vehicle whilst they remained unfit to do so or whilst the alcohol levels in their system were above the prescribed limit; and
2. That between the time they became unfit to drive or the time their alcohol level first exceeded the prescribed limit, and the time of the alleged offence, they did not drive the vehicle on a road or other public place.

The sanctions for this offence are not quite as serious as under Section 67. The offender will be subject to a fine of between S$500 and S$2,000, or imprisonment of a maximum of 3 months. Where the court is dealing with a repeat offender, the fine will be between S$1,000 and S$5,000, with the maximum imprisonment term increasing to 6 months.

Additionally, the offender will be disqualified from holding or obtaining a driving licence for 12 months from their release from prison unless the court considers it fit to order otherwise due to special reasons (as referred to above).

Conclusion

With drink driving accidents on the rise in Singapore, the laws under the RTA must be complied with. Due to the consequences an offender can face if charged with drink driving, drivers should avoid driving even where they have only consumed minimal amounts of alcohol.

The risks associated with drink driving offences are simply too high, not only for third-party road users but also for the offender. While the court will consider any mitigating factors to lessen the sanctions imposed, a less serious punishment cannot be guaranteed. A ban from driving is also likely to significantly impact various aspects of the driver’s daily life, including their work and family.

A person who has been charged with a drink driving offence should seek the assistance of a criminal lawyer as soon as possible, as they will be able to advise on the driver’s options and discuss any mitigating factors that may apply.

The Misuse of Drugs Act 1973 (MDA) is a piece of Singaporean legislation governing the use and possession of illegal drugs. Singapore is known for having some of the strictest drug laws in the world, and the Act sets out the various drug-related offences together with their penalties.

For the most serious offences, the MDA provides that an offender may be given the death penalty. It is believed that, by November 2023, at least 16 people in Singapore had been executed that year. Even in less serious cases, for example, where somebody is found carrying a small amount of an illegal substance, the punishment could still result in 10 years imprisonment or a substantial fine.

It is, therefore, important for people to understand Singapore’s drug laws and the consequences of being found guilty of an offence. The legislation is far from straightforward but seeks to tackle the harm that arises from drug-related issues both in and outside of the country.

This article seeks to break down some of the key parts of the legislation and discusses the 5 main drug-related offences.

Definitions

The legislation adopts many different terms used throughout the MDA. Section 2 provides a list of such terms and their definitions, which is important to refer to when interpreting the law. The MDA distinguishes a “controlled drug”, a “specified drug”, and a “substance”.

A controlled drug is defined as any substance or product specified in Parts 1, 2, or 3 of the First Schedule, which provides an extensive list of the drugs deemed to be “controlled drugs”. It includes drugs such as amphetamine, cannabis, and cocaine.

A specified drug means any drug specified in the Fourth Schedule, including some of the controlled drugs listed in the First Schedule. The distinction between controlled and specified drugs is important when it comes to sentencing, as the minimum term of imprisonment will be higher for repeat offenders for specified drugs.

A substance is defined in the Third Schedule of the MDA and is essentially anything that helps to form a controlled drug.

Classes of drugs

The classification of illegal substances is designed to categorise drugs, usually according to the impact they have on the user’s body and mind. It is a common system adopted by many countries worldwide and provides an understanding of the sanctions imposed when an offence has been committed concerning that drug.

In Singapore, there are three categories:

1. Class A drugs. Examples include cocaine, cannabis, ecstasy, and amphetamine.
2. Class B drugs. Examples include codeine, nicocodeine, and zipeprol.
3. Class C drugs. Examples include pipradrol, Xanax, and triazolam.

Offences

There are 5 primary categories of drug-related offences under the MDA.

(1) Trafficking

Trafficking is defined in the MDA as selling, administering, transporting, sending, delivering, or distributing illegal substances in Singapore or offering to do any of those things. Section 5 makes it an offence for a person to:

1. Traffic in a controlled drug;
2. Offer to traffic in a controlled drug; or
3. Do or offer to do any act preparatory to or for the purpose of trafficking in a controlled drug.

If found guilty of this offence, the punishment will depend upon the class of the drug and the amount being trafficked. The sanction ranges from a minimum of 2 years in prison plus 2 strokes of the cane where small amounts of Class C drugs are involved, all the way up to the death penalty for more highly classified or larger quantities of substances.

(2) Manufacture

Section 6 of the MDA provides that it is an offence for any person to manufacture a controlled drug. “Manufacture” is defined in the Act as:

1. Any process of producing a drug and the refining or transformation of one drug into another; or
2. Any process of producing a substance and the refining or transformation of one substance into another.

Manufacturing can result in a minimum sentence of 5 years in prison and 5 strokes, up to the maximum sentence of the death penalty, depending upon the type of drug and the quantity.

(3) Possession

Section 8(a) of the MDA states that it is an offence for a person to have in their possession a controlled drug.

If found guilty of this offence, a person can be sentenced to up to 10 years in prison or be issued with a S$20,000 fine, or both. If the person being convicted has committed such an offence before, they will be sentenced to at least 2 years in prison.

There is a presumption in the MDA that a person is in possession of a controlled drug if:

1. They have anything that contains the drug;
2. They possess the keys to anything that contains the drug or where the drug is discovered, whether it is a container itself or an entire premises;
3. A document of title for the drugs or any document which is intended for their delivery; or
4. They own the vehicle in which the drugs are discovered.

When a person is charged with possession, it is their responsibility to challenge this presumption and prove to the court that they are innocent.

(4) Consumption

Section 8(b) of the MDA provides that it is an offence to smoke, administer to oneself, or otherwise consume a controlled drug or a specified drug.

Section 19 raises a presumption that a person has consumed an illegal drug if they are discovered in, or escaping from, an area that is proven or presumed to be used for such consumption. For example, if a location is found to have bongs, syringes, or pipes on site, it will be presumed to have been used for illegal drug consumption.

Section 22 states that a person will be presumed to have consumed a controlled drug if it is found in a sample of their urine. If the accused refuses to provide a sample, they can be sentenced to imprisonment for between 1 to 10 years. Again, the burden is on the accused to convince the court of their innocence.

If found guilty of consumption, the maximum sentence is 10 years in prison or a fine of S$20,000, or both. When considering the appropriate sentence to hand down, the court will look at the following factors:

1. Whether the accused has offended before;
2. Whether they have any similar convictions; and
3. Whether they have previously been admitted to a drug rehabilitation centre.

If the accused is a repeat offender for a controlled drug, the term of imprisonment will be 3 years. However, if the accused is a repeat offender for a specified drug, the sentence will be between 5 to 7 years in prison, together with 3 to 6 strokes of the cane.

It is important to note that the law covers the consumption of drugs by Singaporean citizens outside of Singapore. They will be charged and sentenced in the same way had they committed the offence in Singapore, even if consumption of the drug is legal in the country they took it.

(5) Import and export

Section 7 of the MDA makes it an offence for a person to import into or export from Singapore a controlled drug. Whilst this may seem similar to trafficking, the offence relates solely to moving drugs in and out of the country.

Section 26 provides any officer of the Bureau, police officer, or customs officer with the power to search any person arriving or departing from Singapore. They also have the authority to search any form of transport if they suspect it contains any illicit drugs, as well as any person who is found on that transport.

There may be situations when a person needs to travel in and out of Singapore in possession of a controlled drug, primarily if it is their personal medication. Approval may be required from the Health Sciences Authority (HSA) depending on the amount and type of drug. For example, medications containing morphine, fentanyl, or diazepam will need approval regardless of the amount being transported. For codeine or dextromethorphan, approval will only be needed where more than 20 tablets are being transported or where each tablet contains over 30mg of the drug.

If found guilty of this offence, the punishment may be severe depending upon the type of drug and the amount that is imported or exported. Sentences range from a minimum of 3 years in prison and 5 strokes of the cane to the death penalty.

Conclusion

Singapore takes drug-related offences very seriously, which is evident from the stringent rules contained in the MDA regarding presumption and punishment. If charged with an offence under the MDA, the accused must prove their innocence to a high standard to avoid the court’s strict sentencing.

It is, therefore, crucial that residents and people visiting the country are aware of the risks of consuming, possessing, and transporting drugs. If a person is faced with a charge under the MDA, they should seek the advice and assistance of a criminal lawyer as soon as possible.

A power of attorney (POA) is a document that allows someone to give authority to another person to carry out certain acts on their behalf. The person who creates the POA is known as the “donor”, and the person who is authorised to act on their behalf is known as the “donee”. A POA is a good insurance to have in place in the event you are unable to make and/or execute important decisions relating to your welfare and property.

Understandably, a donor may be apprehensive about handing over the management of their financial and personal decisions to another person. However, depending on the type of POA used, the document does not always automatically transfer authorisation to the donee to carry out acts on the donor’s behalf. There are also laws in place aimed to ensure people making POAs are protected from potential abuse, as it is acknowledged that the people who rely on POAs are often the more vulnerable members of society.

In Singapore, there are 5 different types of POA, with each one being used for a different purpose. It is crucial to understand how each document operates before considering which one is best suited to your circumstances.

General Power of Attorney (GPA)

As the name suggests, a GPA allows the donee to act for the donor in all circumstances unless otherwise stated in the document. It is up to the donor to decide what they want provided for in the GPA and what they want excluded. The powers could be anything from accessing bank accounts to purchasing and selling the donor’s property.

The GPA will generally come into effect once it is duly signed and executed. Therefore, the donor needs to understand by giving this type of POA; they are giving general authorisation to their donee to act on their behalf.

This type of POA will usually remain valid until any one of the following events occur:

1. The donor dies.
2. The donor loses mental capacity.
3. The donor revokes the POA.
4. A specified event in the POA takes place, resulting in the document becoming invalid.

Specific Power of Attorney (SPA)

This type of POA authorises the donee to act only in relation to specific matters, so they will not have any power outside of what has been specified in the document. This is usually preferred if there are certain things the donor requires help with, so they are happy to provide authorisation to their donee to assist with this wherever necessary.

The donor should be careful to draft the terms of the SPA as clearly as possible, so the donee knows what they are permitted to do.

An SPA will usually remain valid until any one of the following events occur:

1. The donor dies.
2. The donor loses mental capacity.
3. The donor revokes the POA.
4. A specified event in the POA takes place, resulting in the document becoming invalid.

Lasting Power of Attorney (LPA)

This document authorises the donee to manage the donor’s welfare and finances if the donor loses mental capacity. Without an LPA in place, it can be challenging for the donor’s affairs to be managed once they lose capacity. The person (or persons) appointed in an LPA will often be someone with whom the donor has a close relationship and can trust to act in their best interests if the time comes.

A person cannot execute an LPA unless they are at least 21 years old. The LPA will appoint at least one donee to make decisions regarding the donor’s health and property, plus specific provisions can be made for the donor’s wishes.

The donor must understand the effect of the Lasting Power of Attorney they are making. To this end, a certificate issuer (such as a lawyer or psychiatrist) must certify the relevant forms to confirm this has been explained to them. This helps to protect the donor from being pressured into preparing the document, which is especially important in situations where they may already be vulnerable.

The LPA will not come into effect unless and until the donor has lost their mental capacity to the extent, they are no longer able to carry out the acts provided for in the document. The loss of capacity must be assessed and certified by a medical practitioner before the donee can use the POA. The donor’s capacity may also improve, in which case they can return to making their own decisions, and the donee’s powers will be revoked.

An LPA will usually remain valid until any one of the following occurs:

1. The donor dies.
2. The donor revokes the LPA.

HDB (Housing and Development Board) Power of Attorney

This is the most common type of POA in Singapore. It allows a homebuyer or seller to appoint another person to sign the necessary documents and collect the keys regarding his property purchase or sale. There may be situations where a person who wants to buy, sell, or rent their HDB property cannot keep attending the relevant location in Singapore to execute the documents, so it is reasonable for them to authorise somebody else to do it.

The HDB POA will usually allow the donee to sign documents, including the sales agreement, lease agreement, deed of assignment, and mortgage-in-escrow, amongst others.

There are 3 main types of HDB POA:

(1) Purchase, Subletting, and General Management

This allows the donee to make decisions relating to the purchase and the letting or subletting of an HDB property. It also provides them with authorisation to deal with matters relating to the maintenance and general management of the flat.

(2) Sale, Subletting, and General Management

This allows the donee to make decisions relating to the sale and the letting or subletting of an HDB property. It also provides them with authorisation to deal with matters relating to the maintenance and general management of the flat, as above.

(3) Subletting and General Management

This allows the donee to make decisions relating solely to the letting or subletting of an HDB property. As with the above documents, they are also authorised to deal with matters relating to the maintenance and general management of the flat.

For this type of POA to be valid, a lawyer must be instructed to draw up the document. This is because the POA will eventually give effect to important legal transactions, so it needs to be executed properly. The POA must specify precisely what the donee has the authority to do. If the donor is undertaking a property transaction with another person, they must have their own HDB POA prepared.

The HDB POA will usually remain valid until any one of the following events occur:

1. The donor revokes it.
2. After the expiration of 6 years from the date of execution.

Springing Power of Attorney

This is also known as a “Conditional” POA and will only come into effect when a specific event occurs, as stated in the document. For example, the donor may want the POA to activate whenever they are out of the country or in the event of an illness.

As with any other POA, the document should make clear what the donee has the authorisation to do when any of the stated events occur. For example, if the donor is unwell and unable to leave their house, they may wish to allow the donee to use their bank card to carry out any necessary transactions on their behalf. However, this is different from giving the donee free reign to spend their money however they see fit.

The Springing POA will usually remain valid until any one of the following events occur:

1. The donor dies.
2. The donor revokes it.

Summary

The 5 types of Power of Attorney in Singapore are designed to deal with a variety of situations. When considering making a POA, it is vital to ensure you have a complete understanding of your options and the implications of executing the different types of documents.

Whilst you may feel hesitant to draw up a POA, it is essential to remember that the law understands the importance of individual autonomy and will not allow these powers to be abused, whether by the chosen donee or any other party. Having a POA in place will provide peace of mind not just for yourself but also for your loved ones.

It is advisable to seek the assistance of a lawyer who can discuss your circumstances with you, advise you on the appropriate document to draw up and prepare the POA for you. Aside from the HDB POA, it is not legally required that the document be prepared by a lawyer. However, doing it this way will ensure that the POA can be implemented without issues.

Many people in Singapore struggle with debt, meaning repayments are often challenging to manage. The Debt Repayment Scheme (DRS) was introduced by Parliament in 2009 to help ease this financial burden and minimise bankruptcies.

The DRS is effectively a payment plan that provides individuals with a period within which they can settle their debt with no additional interest being charged. It provides the person who owes the money (i.e. the debtor) with a final chance to settle the debt and avoid bankruptcy.

When will the Debt Repayment Scheme apply?

Unlike other repayment schemes in Singapore, the DRS cannot be applied for directly by the debtor. The scheme will only become available once an application for bankruptcy has been made to the High Court by either the debtor himself or the creditor to whom the money is owed.

To benefit from the DRS, the debtor must satisfy specific eligibility criteria:

1. The total liabilities should be at least S$15,000 and no more than S$150,000;
2. The debtor should be employed and receiving regular income;
3. The debtor must not have any other ongoing bankruptcy proceedings;
4. The debtor cannot have been subject to the DRS within the last 5 years; and
5. The debtor must not be the sole owner or partner of a company. 

What is the process?

Once an application for bankruptcy has been filed, the case will be referred to the High Court and handed over to the Official Assignee. They are an officer of the court responsible for assessing the debtor’s eligibility for the DRS. The bankruptcy proceedings will be put on hold to allow the Official Assignee to carry out their assessment, which should not usually take longer than 6 months.

The debtor must file certain documents with the Insolvency Office via the e-Services portal, which will form part of the Official Assignee’s assessment. The relevant documents are:

Form A Statement of Affairs

The debtor will use this form to provide details of their current finances, including their assets and liabilities.

Form C Income and Expenditure Statement

The debtor will use this form to provide details of their income and outgoings.

Form D Debt Repayment Plan

The debtor must set out a proposal for debt repayment based on their monthly income and outgoings. The Official Assignee will expect this to be a realistic monthly payment from the debtor’s disposable income.

Annex B Supporting Documents

The debtor must provide documentary evidence to support what he has stated in the 3 documents listed above. Annex B usually includes documents such as payslips, bills, and evidence of any assets.

The debtor will have 14 days to submit the above documents, and it is advised that this deadline is complied with. If the debtor fails to do so, the bankruptcy proceedings will need to be re-heard by the court.

Provided the above documents have been filed, and the Official Assignee is satisfied that the debtor is suitable for the DRS, a Debt Repayment Plan (DRP) will then be provided. This will detail the monthly payment the debtor will make and must be agreed by the debtor’s creditors.

A creditors meeting will be held, which the debtor needs to attend. The creditors will ask the debtor to clarify any points in respect of their repayment plan proposal, and if it is approved, they will finalise the terms. If they disagree, the creditors must file an appeal within 14 days of the Official Assignee providing them with notice of the DRP decision.

The debtor is not obligated to participate in the scheme should they not wish to. However, the debtor should be aware that the only other option is declaring bankruptcy, which has several negative implications. For example, a bankrupt person cannot become a company director, nor can they travel outside of the country without the Official Assignee’s permission.

Debt Repayment Plan

The DRP will require the debtor to pay off the debt in monthly instalments for no longer than 5 years. The specific terms of the DRP will depend upon the amount owed and the debtor’s financial circumstances.

The debtor will be provided with a Certificate of Completion once they have repaid their debts under the terms of the DRP. The purpose of this certificate is to formally release the debtor from all the liabilities provided for under the DRP.

DRS fees

Specific fees will be payable by the debtor when undergoing the DRS process, which are summarised in a helpful table below.

It is important to note that any fees paid are non-refundable, even if the debtor is found unsuitable for the DRS at any stage.

Termination of the DRS

As mentioned above, the DRS will be terminated when all payments have been made per the terms of the DRP and the Official Assignee issues the Certificate of Completion. The Official Assignee does have the power to revoke the certificate if the debtor fails to disclose information that was required under the scheme or if they have made misrepresentations that resulted in the DRS being approved.

The DRS will also be terminated in the following circumstances, which will all result in a Certificate of Failure being issued by the Official Assignee. This, in turn, will allow the creditors to file a new application for bankruptcy against the debtor:

1. If the debtor fails to comply with the terms of the DRP;
2. If the debtor does not provide full and frank disclosure of their finances;
3. If the debtor incurs a debt over S$1,000 after the date the DRS begins and fails to disclose to the lender that they are subject to a DRS;
4. The debtor is a party to a transaction at an undervalue at any time 5 years before the bankruptcy application (i.e. by selling an asset less than its actual value);
5. The debtor makes a preferential payment to a creditor at any time two years before the bankruptcy application (i.e. by transferring an asset or paying a debt to the creditor); or
6. The debtor becomes the sole owner or partner of a company or limited liability partnership during the DRS without the permission of the Official Assignee.

If the debts are found to be more than a total of S$150,000 after the commencement of the DRP, the Official Assignee will issue a Certificate of Inapplicability. This means that the DRS will cease, and a fresh application for bankruptcy can be filed.

Advantages of the DRS

Opting for the DRS as opposed to bankruptcy has many benefits. The debtor will not be subject to the same restrictions that would apply if they were bankrupt. In particular:

• There will be no public record of the debtor being bankrupt.
• They will be free to travel abroad without needing the Official Assignee’s permission.
• They will be able to keep hold of any pre-existing bank accounts.
• The debt repayment period is usually much shorter, with a DRP lasting a maximum of 5 years.
• They will not be subject to interest on their repayments.
• The DRS can encompass all the debtor’s liabilities.

Disadvantages of the DRS

Whilst the DRS is usually considered the preferable option instead of bankruptcy, it does not come without its pitfalls. In particular:

• The process for using the scheme must begin with a bankruptcy application (either by the debtor or his/her creditors) and must be referred to the High Court. The debtor cannot simply apply for the scheme himself.
• Although the debtor will not be found on the public bankruptcy record, their name will still appear on a public DRS record.
• There are fees arising from the DRS, as highlighted above.

The DRS is a helpful scheme that bankrupt parties can access to minimise the impact of bankruptcy on their financial and personal circumstances. Any person subject to a DRS needs to ensure compliance with the relevant processes, the terms of the repayment plan, and the payment of fees. Otherwise, the debtor will likely be subject to fresh bankruptcy proceedings and may not have another chance to benefit from the DRS.

Singapore has robust anti-harassment laws. Although sexual harassment is not specifically mentioned, the Protection from Harassment Act (POHA) 2014 includes any form of sexual harassment.

Sexual harassment in the workplace often involves power play between more senior and subordinate employees. It can take on many forms – from very subtle advances to blatant sexual harassment.

Besides the protection in the POHA, there are specific responsibilities on employers under the Employment Act to provide a safe working environment for all employees.

This article will discuss the Protection from Harassment Act, how sexual harassment is defined, and the different types under the Act. We’ll touch on the employer’s responsibilities, the criminal offence of sexual harassment, and possible penalties if convicted. Also, we’ll look at remedies available to victims of sexual harassment in the workplace, and the steps to take if you find yourself to a victim of sexual harassment in the workplace.

What is sexual harassment?

The POHA stipulates that no individual may cause another person harassment, alarm, or distress by:

• using any threatening, abusive or insulting words or behaviour; or
• making any threatening, abusive or insulting communication; or
• publishing any identity information of the target person or a related person of the target person.

If the words, behaviour, communication, or publication causes the victim harassment, alarm or distress or is likely to cause such a reaction, the person can be guilty of an offence.

This definition includes words, behaviour, communication, or publication that amounts to sexual harassment.

The Act gives a few examples:

• X and Y are coworkers. At the workplace, X loudly and graphically describes to coworker Z, their desire for a sexual relationship with Y in an insulting manner. X knows that Y is within earshot and intends to cause Y distress. Y is distressed. X is guilty of an offence under this section.
• X and Y were formerly in a relationship which has since ended. X writes a post on a social media platform making abusive and insulting remarks about Y’s alleged sexual promiscuity. In a subsequent post, X includes Y’s photographs and personal mobile number, intending to cause Y harassment by facilitating the identification or contacting of Y by others. Y did not see the posts but receives and is harassed by telephone calls and SMS messages from strangers (who have read the posts) propositioning Y for sex. X is guilty of an offence on each post.
• X and Y are classmates. X posts a vulgar tirade against Y on a website accessible to all their classmates. One of Y’s classmates shows the message on the website to Y, and Y is distressed. X is guilty of an offence under this section.

From the definition and examples, we can see that sexual harassment can take on many forms. It is not confined to what happens on the actual work premises; it could also occur at work functions or client premises.

Threatening, abusive or insulting words – verbal harassment

Verbal harassment includes lewd comments, inappropriate suggestions or proposals of sexual favours, sexual jokes or any other sexually explicit utterance that is inappropriate, unwelcome, and causes the victim distress or alarm.

Threatening, abusive or insulting behaviour – physical harassment

Physical, sexual harassment includes any deliberate inappropriate or unwelcome physical contact of a sexual nature. It could be hugging, touching, patting, kissing, sexual assault, or rape. It could also include stalking the victim.

Sexual harassment can also amount to an outrage of modesty under the Penal Code.

Threatening, abusive or insulting communication or publication

Digital harassment on social media platforms is becoming more common. It includes posting insulting and inappropriate sexual comments or remarks, photos, etc., on social media.

It can also include notes, emails, and letters with inappropriate sexual content that is likely to cause distress or alarm.

What are the employers’ responsibilities regarding sexual harassment in the workplace?

The POHA does not impose any direct duties on employers. However, employment laws impose a legal obligation on all employers to provide a safe working environment for employees. This duty includes taking reasonable steps to protect employees against sexual harassment at the workplace.

The Tripartite Advisory on Managing Workplace Harassment sets out practical guidance for employers. To comply with their duties, employers should put anti-harassment policies and procedures in place for reporting and managing sexual harassment complaints.

What is the offence of sexual harassment?

Regardless of where the harassment occurred, section 3 of the Act states that anyone who intentionally causes another harassment, alarm, or distress by using threatening, abusive or insulting words or behaviour or communication or publishes any identifying information of the target person is guilty of an offence.

Section 4 of the Act makes behaviour or communication that is likely to cause the victim harassment, alarm, or distress an offence.

What is the penalty for sexual harassment?

• A person convicted under section 3 (intentionally causing) can be punished with a maximum fine of S$5,000, or imprisonment up to 6 months, or both.

If the person is a repeat offender, the penalty can be a maximum fine of S$10,000, imprisonment not exceeding 12 months, or both.

• A person convicted under section 4 (likely to cause) can be punished with a maximum fine of S$5,000.

If the person is a repeat offender, the penalty can be a maximum fine of S$10,000, or imprisonment not exceeding 6 months, or both.

Victim remedies for sexual harassment in the workplace

Although the perpetrator can be convicted of an offence and punished with a fine or even imprisonment, these penalties do not compensate the victim. However, the Act does provide civil action for compensation.

Civil action for monetary compensation

Section 11 of the POHA states that any victim of sexual harassment under section 3 or 4 may bring civil proceedings against the perpetrator and claim monetary compensation.

If the court is satisfied on a balance of probabilities that the perpetrator is guilty of a section 3 or 4 offence, the court can award damages to the victim to the extent the court thinks is just and equitable.

Protection orders

Section 12 of the Act provides that victims of sexual harassment can apply for a protection order against the perpetrator.

If the court is satisfied on a balance of probabilities that:

1. the perpetrator is guilty of a section 3 or 4 offence; and
2. the perpetrator is likely to continue with the harassment.

The court may grant a protection order against the perpetrator if the court thinks it is just and equitable to do so.

A protection order may involve:

1. Prohibiting the perpetrator from continuing with the harassing behaviour.
2. If the behaviour involves communication or publication, the perpetrator will be required to stop publishing the communication or any similar communication.
3. The court may also refer the perpetrator to attend counselling or mediation. The court may also refer the victim to counselling.

If the communication or publishing involves a third party, the court may order the third party to stop publishing the offending communication or disable access by end-users to the offending communication.

What to do if you are sexually harassed at work?

As we can see, Singapore laws aim to protect employees from any form of harassment in the workplace. If you are the victim of sexual harassment, you should take immediate action to protect yourself and your rights.

Approach your employer

If your employer has proper anti-harassment procedures in place, you can start by reporting the harassment to the reporting officer and following the employer’s grievance procedures. Your employer should then initiate a proper investigation and assist you with filing a police or magistrate’s report where appropriate.

Approach the TAFEP

You can also report your case to the Tripartite Alliance for Fair and Progressive Employment Practices. This is often useful in cases where meeting the requirements for a criminal sanction under the Act or a civil lawsuit is difficult.

The TAFEP will engage with you and your employer to deal with the current situation, and prevent further harassment.

Approach the court

Victims can file a Magistrate’s Complaint. This can lead to either mediation in less severe cases, or criminal proceedings against the perpetrator.

You can file for a protection order, as explained above. Breach of a protection order can lead to more penalties.

For personal compensation, the victim can file a civil lawsuit.

Seek legal advice

Often, sexual harassment follows a pattern, and dealing with it inside the workplace can be tricky. In some cases, the employer is the perpetrator, making it very difficult for the victim to take action.

If you feel that you are being sexually harassed at your workplace, you should seek legal advice to understand your rights and decide on the appropriate remedy for your case.

An experienced employment lawyer can explain the different options and differences between criminal remedies under the POHA, and civil remedies to claim monetary compensation or protection from further harassment.

If you are facing a claim of sexual harassment against you, you need legal assistance as soon as possible. The penalties can be severe and costly, both on a professional and a personal level.

An experienced lawyer can navigate the law and guide you towards the best outcome for your case.

• PKWA LAW is named in Straits Times Best Law Firms 2024 for the fourth consecutive year – The Straits Times
• PKWA family lawyer Low Jin Liang has been named in Asian Legal Business Singapore Rising Stars 2023 – Asian Legal Business
• Couple agreed 50% of flat’s value to be split upon divorce, but judge says it should be 100% – Straits Times
• Jessica Chow and Charlene Nah recognised as Rising Stars by Asian Legal Business for 2023 – Asian Legal Business
• PKWA recognised as one of Singapore’s best law firms 2023 for the third consecutive year – The Straits Times
• PKWA Law recognised in Doyles Guides 2022 Awards. Lim Chong Boon, Dorothy Tan, and Charlene Nah recognised – Doyles Guide
• Court orders man to pay son’s preschool fees to ex-wife, man says he did not choose ‘expensive’ school – Channel News Asia
• PKWA Law recognised as a leading Family Law firm in Benchmark Litigation ranking for 2022 – Benchmark Litigation
• PKWA is a finalist in three categories at the Asian Legal Business Law Awards 2022 – Asian Legal Business
• PKWA’s Dorothy Tan amongst the Top 100 Women in Litigation in Asia Pacific – Benchmark Litigation
• PKWA Law successfully acts for ex-wife in case where ex-husband “went all out to hide over $3 million” from her – The Straits Times
• Citing fault strains ties further: Family lawyers support proposed ‘amicable divorce’ model – The Straits Times
• Who gets access to your digital assets, accounts when you are dead? – Straits Times.
• Breakups soon after marriage at 20-year high – Straits Times.
• More divorcees visiting kids under supervision – Straits Times.
• More break-ups among less-educated – Straits Times.
• Genuine interest needed to last in the community – Straits Times.
• When parents have different discipline styles – Young Parents.
• Dealing with irreconcilable differences – Singapore Business Review.
• Family Justice Courts launch a cheaper and faster way for users to file applications – Straits Times.
• Couple agreed to split 50% of flat’s value, but court says it must be 100% – The Straits Times
• PKWA recognised as one of Singapore’s best law firms 2021 – The Straits Times
• Circuit breaker love and heartbreak: Divorces, fights, heightened tensions – The Straits Times
• PKWA Recognised as one of Singapores fastest growing companies in 2020 – The Straits Times
• Divorces becoming less costly, time-consuming – thanks to reforms – The Straits Times
• Ex-hubby gets 75% of matrimonial assets after top court flips ratio – The Straits Times
• Coronavirus: Divorced couples face child access and maintenance issues during circuit breaker period – The Straits Times
• Over $200m in CPF monies with no nomination left unclaimed – The Straits Times
• Family Justice Courts launch cheaper and faster way for users to file applications. Lim Chong Boon quoted – The Straits Times
• Hospital nurse jailed for filming his female colleagues using unisex bathroom – The Straits Times
• 2 stripped of Lasting Power of Attorney to decide for loved ones. PKWA Laws Lim Chong Boon quoted – The Straits Times
• The latest Singapore Law on Division of Matrimonial Assets by Lim Chong Boon – Asian Legal Business
• More divorcees visiting kids under supervision. Lim Chong Boon quoted – The Straits Times
• Is a prenuptial agreement equivalent to marriage insurance? – Lianhe Zaobao
• Dealing with irreconcilable differences – How PKWA Law takes on divorce cases with immense understanding – Singapore Business Review
• Dividing Matrimonial Assets: A just and Equitable Future by PKWA Lawyer Low Jin Liang – Asian Legal Business
• Splitting over parenting – different parenting styles can place a strain on marriage, say divorce lawyers – The Straits Times
• Genuine interest needed to last in community practice – The Straits Times
• An Interview with lawyer Lim Chong Boon – Singapore Legal Advice

Outrage of modesty is a serious crime in Singapore, and conviction can lead offenders up to three years in prison, a fine, or caning, or any combination of the three options. The penalties can be even higher if the victim is a minor or the accused is a repeat offender.

Yet, outrage of modesty remains a crime of concern, and according to the police crime statistics for mid-2023, the number of cases increased compared to the same period the previous year.

Most cases occurred in residential premises, public transport areas, and nightspots.

This article will discuss the crime of outrage of modesty. We will look at section 354 of the Penal Code, the punishment if convicted, and what the court considers aggravating circumstances when imposing a sentence.

What is outrage of modesty?

In simple terms, outrage of modesty refers to conduct that is considered offensive and violates someone’s dignity in a sexual manner. It is also loosely referred to as “molestation”.

Although most reported cases involve male perpetrators, females can also be convicted of an outrage of modesty against a male person. It is a gender-neutral offence regardless of the gender of the perpetrator or victim.

Section 354 of the Penal Code

Section 354 describes outrage of modesty as an assault or use of criminal force to a person with intent to outrage or knowing that it would likely outrage the modesty of that person.

The description is not very specific and allows the court to assess each case on its own merits.

What factors will the court consider when deciding if a person’s modesty was outraged?

The Penal Code does not define modesty, and the courts will consider a wide range of factors to assess if the action would outrage the victim’s modesty. The court also considers the circumstances and society’s values at the time.

Factors will depend on the circumstances of each case and could include the following:

• The victim’s religion or cultural beliefs.
• The victim’s race.
• The victim’s age.

Elements of the crime of outrage of modesty

Assault or criminal use of force

To be convicted of outrage of modesty, there must be an assault or use of criminal force.

Assault is defined as follows:

A person is said to commit an assault if “the person makes any gesture or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to understand that he who makes that gesture or preparation is about to use criminal force to that person”.

You cannot be guilty of outrage of modesty by merely staring at someone.

You can, however, be guilty of attempting to commit outrage of modesty. Section 511 of the Penal Code provides that anyone can be guilty of attempting to commit a criminal offence if the person takes substantial steps to commit the crime but, for some reason, fails to commit the actual offence.

Suppose a man follows a woman into the female changing rooms at the gym, hoping to touch her inappropriately. As he approaches her, her friend enters and shouts at him.

He could be convicted of attempted outrage of modesty, even though there was no actual assault or use of force yet.

Intention

The Penal Code requires that there must be an intention to outrage modesty or at least knowledge that the action would cause an outrage of modesty.

The Penal Code defines acting “intentionally” as acting deliberately, i.e. the person acts with the purpose of causing outrage of modesty or knowing that outrage of modesty would undoubtedly happen if they proceed with their planned action.

It should be noted that outrage of modesty will not occur if the victim consents to the behaviour. Suppose a couple sensually touches each other and consents to the behaviour. In that case, it will not constitute an outrage of modesty. Likewise, if a doctor examines a patient or a fitness instructor corrects an athlete with their consent, it cannot be an outrage of modesty.

So, to be convicted of outrage of modesty, four elements must be established.

1. The outrage of modesty.
2. Assault or use of criminal force.
3. Lack of consent.

Examples of outrage of modesty

Since the Penal Code definition is unclear and non-specific, it might be easier to explain outrage of modesty through examples.

• A man repeatedly touches a woman’s thigh whilst she is sleeping next to him on the train.
• A driving instructor puts his hand on a female student’s leg during a lesson.
• A man touches a young boy’s buttocks in the queue at a fast-food chain.
• A tutor rubs her thigh against her student several times.
• An executive molests a co-worker in the lift.
• An employer exposes himself to the domestic worker regularly.

Penalties for outrage of modesty

Section 354 prescribes punishment to a maximum term of 3 years imprisonment, or a fine, or caning, or any combination of the three options. There is no minimum, and the penalty will depend on the circumstances of the case.

Firstly, the court will apply the general sentencing principles and consider factors such as:

The offence itself

• How was the offence committed?
• The severity of the offence – where on the body was the person touched, how was the person touched, how long did it last?
• Was it planned?
• The extent of the force used.
• The degree of sexual exploitation of the victim.
• The harm to the victim – physically and psychologically.

Are there any aggravating factors?

• The offender has previous convictions.
• Not showing remorse.
• Multiple charges against the offender.
• Refusing to cooperate with the police.

Are there any mitigating factors?

• The offender is showing remorse.
• Admission of guilt and pleading guilty.
• The offender suffers from mental or intellectual disability.
• The offender is very young.

After considering the above, the court will consider the framework formulated in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580.

This framework consists of 3 sentencing bands.

• Band 1 applies to less severe cases, with no more than one aggravating factor.
• Band 2 applies when there are two or more aggravating factors.
• Band 3 applies when there are three or more aggravating factors, and the circumstances call for a more severe sentence.

More severe penalties under the Penal Code

Some instances of outrage of modesty carry a more severe penalty under the Penal Code.

Outrage of modesty against a person younger than 14 years old

Section 354(2) provides that if the offence is committed against a person below 14 years old, the penalty is imprisonment for a term which may extend to 5 years, or with a fine, or with caning, or with any combination of such punishments.

Outrage of modesty against a domestic helper

Section 73 of the Penal Code provides that when an employer of a domestic worker, a member of the employer’s household, or an employment agent is convicted of an offence under the Penal Code against that domestic worker, the court may sentence the convicted person to twice the maximum punishment for that offence.

This means that for outrage of modesty against a domestic worker, the court can impose a maximum of six years imprisonment, a fine, caning, or any combination of the three.

Causing death, hurt or wrongful restraint or fear of instant death, hurt or wrongful constraint

Section 354A provides that if the victim died, or if a person attempts to cause death, or hurt or wrongfully constraints a person to commit outrage of modesty, the penalty is a minimum term of imprisonment of 2 years and up to 10 years, and caning. The same applies if the person causes the fear of instant death, instant hurt, or instant wrongful restraint.

• If the victim in sec 354A case is younger than 14 years, the punishment is imprisonment for not less than three years and not more than ten years, and with caning.
• The same punishment applies if the outrage is committed in a lift in any building.

Outrage of modesty is an arrestable offence

The police can arrest a person suspected of outrage of modesty without a warrant. Depending on the circumstances, it is up to the police or the court to decide if the accused is released on bail.

If it is a less severe case of outrage of modesty, the accused can choose between bail and being released on a personal bond.

Seek legal advice

Whatever the circumstances, you should seek legal advice as soon as possible. Being convicted of outrage of modesty is serious. Penalties can be severe, and your criminal record cannot be treated as “spent”. However, there are circumstances where the Commissioner of Police has the discretion not to register a criminal record.

An experienced lawyer can help you navigate the best possible outcome for your circumstances.

In October 2023, the Singapore High Court dealt with an appeal against sentence in a matter where a priest of the Sri Mariamman Temple pleaded guilty and was convicted on two charges of criminal breach of trust (CBT) relating to the pawning of gold jewellery belonging to the temple. Between 2016 and 2020, the appellant pawned 66 items of the temple’s gold jewellery at various pawnshops on 172 occasions. The temple suffered no loss since all the pieces were returned, but the priest obtained pawn proceeds totalling S$2,328,760.

The appellant was sentenced to a total of five years and 12 months imprisonment (consecutively – this means one sentence runs after the other) by the District Judge (there were other charges and factors considered for sentencing).

The High Court dismissed the appeal against the sentence.

This case was one of many CBT cases the legal system had to deal with last year.

In another case, a director at four firms was accused of misappropriating more than S$2.3 million and charged with criminal breach of trust. He was allegedly handed large sums of money to construct a house. However, construction was not completed, and the funds were never returned.

In May last year, the police arrested a 26-year-old man for allegedly misappropriating money and stealing luxury watches valued at about S$1.6 million. The man was a luxury watch salesman who received large sums of money from victims to purchase watches but then misappropriated the money.

If convicted, the offence of criminal breach of trust by an employee carries a penalty of up to 15 years in prison and a fine.

Even though we have many arrests for criminal breach of trust, it remains a complex and vague concept for ordinary citizens. What exactly is a criminal breach of trust?

This article will discuss how the Penal Code defines criminal breach of trust. We look at what the prosecution must prove to obtain a conviction and the penalties if convicted. We will also touch on factors the court will consider when sentencing after a CBT conviction.

What is criminal breach of trust?

In simple terms, CBT happens when an individual entrusted with property or funds uses that property or funds for personal advantage. So, we are talking about “entrustment” and “misappropriation” – by misappropriating the entrusted goods, the person breaches the trust.

The Penal Code makes such a breach of trust a criminal offence.

Section 405 of the Penal Code explains when CBT is committed as follows:

A person who has been entrusted with property or who has dominion (control) over property and;

• who then dishonestly misappropriates the property; or
• converts the property for their own use; or
• dishonestly uses or disposes of such property in violation of any express or implied contract or law prescribing the mode in which such trust should be discharged; or
• intentionally allows any other person to do so.

The Penal Code gives us a few examples to illustrate and simplify criminal breach of trust.

Example 1: The executor of a deceased person’s will dishonestly disobeys the law and his fiduciary duty, which says he must distribute the assets according to the will. Instead, he appropriates the assets for his own use.

Example 2: Z entrusts his furniture to A, a warehouse owner or operator, for safekeeping whilst Z goes on a long journey. The contract states that Z will pay A the stipulated sum for safe storage fees on his return. A dishonestly sells the furniture whilst Z is away. A committed criminal breach of trust.

As with the priest in the temple, both examples illustrate:

• entrustment of goods; and
• dishonest misappropriation or conversion of goods for own use; or
• disposal of goods in violation of a contract or the law.

What must the prosecution prove for a conviction on criminal breach of trust?

Entrustment

The first element that needs to be established is a relationship of trust or entrustment. This trust could arise from a legal contract or a fiduciary relationship, meaning the person did not receive the property or funds for their use. They were given control over the goods for a specific reason expressed or implied in a contract or the law.

In our temple case mentioned above, the temple’s management entrusted the priest with the keys and combination codes to the safe that contained the jewellery pieces. The jewellery was meant to adorn the Hindu deities during special events or prayers – not for the priest’s own use.

Intention to act dishonestly

The Penal Code requires dishonesty as an element of criminal breach of trust, meaning the prosecution must establish that the person acted with the intent to be dishonest.

Acting with intent means a person acts deliberately. So, the person is deliberately dishonest.

Section 24 of the Penal Code defines “dishonesty” as follows:

A person (A) is said to do an act dishonestly if –

1. A does that act with the intention of causing wrongful gain to Aor another person, or wrongful loss to another person, regardless of whether such gain or loss is temporary or permanent; or
2. That act done by A is dishonest by the ordinary standard of reasonable and honest persons, andA knows that that act is dishonest by such standards.

This definition implies that a person will not be guilty of CBT if the person acted negligently or made an honest mistake.

Including “the ordinary standard of reasonable and honest persons and A knows that that act is dishonest by such standards” in the definition means that dishonesty can also be inferred from the circumstances – it need not be directly proven.

Misappropriation or conversion

Most CBT cases involve misappropriation, but one act can be either. What needs to be proved is the accused misused someone else’s property, or the power given over the property in a way that violated the terms of the trust.

Misappropriation often involves money entrusted for a specific purpose, which is then used for someone’s own benefit. For example, A is a government clerk and receives public funds to pay into a particular treasury that holds all the public money. A takes the money for personal use instead.

Conversion involves using the entrusted property as if it were your own. For example, B is a rental agent. A client entrusted B with his apartment to rent out. Instead, B runs a business from the property and pockets the money for himself.

Intentionally allow someone else to use or dispose of entrusted property

Even if you didn’t misuse the property or funds yourself, you can be guilty of CBT if you intentionally allow a friend to misappropriate or use the entrusted goods in violation of the trust.

Penalties for criminal breach of trust

Section 406 of the Penal Code stipulates that a person convicted of CBT shall be sentenced to imprisonment up to seven years, or a fine, or both.

The Penal Code stipulates higher penalties for specific categories of CBT, called aggravated CBT. These include the following:

• Sec 407 – Criminal breach of trust of property entrusted for transportation or storage purposes

If you are entrusted with property for transportation for hire or storage for rent or charge and you commit a criminal breach of trust regarding such property, the penalty can be imprisonment of up to 15 years and a fine.

• Sec 408 – Criminal breach of trust by employees

If you are entrusted in your capacity as an employee with property or with control over property, and you commit CBT concerning that property, the punishment can be imprisonment of up to 15 years and a fine.

Note that the Penal Code stipulates a person may be an employee or engaged in such capacity even though the person does not receive a salary or other remuneration.

• Sec 409 – Criminal breach of trust by public servants, bankers, merchants, agents, directors, officers, partners, key executives, or fiduciary

This section includes all persons entrusted with property in their professional capacity as a fiduciary.

Anyone entrusted with property in their particular capacity or position who commits a criminal breach of trust can be punished with imprisonment of up to 20 years and a fine.

The more severe penalties in sections 407 to 409 are meant to deter people in positions of trust from misappropriating entrusted goods or funds.

Factors when imposing a sentence for CBT

The court will take several factors into account, including the following:

(1) The amount misappropriated as an indicator of the harm suffered.

(2) The offender’s gain, if any.

(3) Are there any aggravating factors? E.g.

• What was the degree of trust bestowed on the accused, and what was the offender’s position? In the temple case, for example, the priest was held in a high degree of trust as the chief priest.
• How did the breach of trust impact the victim or the general public? For example, the priest’s conduct led to a loss of trust and confidence in the temple’s management.
• The duration of the offence, e.g., the priest committed various acts of CBT between 2016 and 2020.

(4) Are there any mitigating factors? E.g.

• Did the offender offer any restitution to the victim? For example, in the temple case, the offender made full restitution.
• Remorse and other personal circumstances.
• The accused’s motivation.
• Cooperation with the police.

What to do if you are suspected of criminal breach of trust

In Singapore, the police can arrest you without a warrant if they reasonably suspect you committed a criminal breach of trust.

If you face a CBT charge, you should contact a criminal lawyer as soon as possible. Once arrested, the police or the court will decide if you will be released on bail. A criminal lawyer can assist in getting you out on bail and prepare your case.

CBT is a serious offence. If you are convicted, you will have a criminal record. However, depending on your sentence and whether you have other criminal convictions or previously spent records, you may be able to have your record wiped clean.

An experienced criminal lawyer will assist with your case and help you prepare a good strategy to achieve the best outcome for your circumstances.