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181.  JULY 2012 Issue
p.37

Four Misconceptions About Charity Law in Singapore
Rachel P.S. Leow  •  [2012] Sing JLS 37 (Jul)
Charity law is an area of law in Singapore of which, sadly, little is known. This lack of knowledge has also led to the proliferation of a number of misconceptions. This article looks at four misconceptions, namely the legal structure of charities, the relationship between charities and Institutions of a Public Character, the definition of 'charitable purposes' in Singapore and the interplay between the registration requirements and the provisions on fund-raising appeals under the Charities Act. The article seeks to debunk these misconceptions by providing a clearer understanding of the legal position of charities in Singapore. This has valuable implications for reform of charity law, which is of growing importance and interest in Singapore.

182.  JULY 2012 Issue
p.55

The Charity Commission of England and Wales as a Model: Could Hong Kong and Australia Be Importing a Constitutional Problem?
Rohan Price and John Kong Shan Ho  •  [2012] Sing JLS 55 (Jul)
The Charity Commission of England and Wales is granted powers under the Charities Act 2011 of decision-making about charitable status and public benefit of entities which were formerly the province of the judiciary. Considering that the incursion of government into charity law has become such a controversial issue, it is remarkable that the intermingling of administrative and judicial power in the Charities Act 2011 has received so little attention. This article explores the constitutional challenges faced by charity law in the UK and reveals what lessons may be learned by Australia and Hong Kong as each jurisdiction prepares to introduce a charity commission. In particular, the article contends that complications concerning the operation of the doctrine of separation of powers remain unresolved in England and Wales and that both Australia and Hong Kong need to give the judiciary a formidable role in adjudication of charitable status, so that the charity commission of each jurisdiction, although an arm of the executive, can be checked in crucial cases.

183.  JULY 2012 Issue
p.76

Getting Drunk in Singapore and Malaysia
A. P. Simester  •  [2012] Sing JLS 76 (Jul)
Just as in the Indian Penal Code, the intoxication provisions contained in ss. 85 and 86 of the Singaporean and Malaysian Penal Codes are described as 'General Exceptions', suggesting that they operate as affirmative (or 'supervening') substantive-law defences to criminal liability. It is argued in this article, however, that the primary function of these provisions is not to create a distinct legal defence. Rather, it is to enable the courts to convict persons who do not satisfy the mens rea requirements of a crime, when their lack of mens rea is because of intoxication. The sections permit us to treat such defendants as having mens rea when in fact they do not. As such, the provisions are mainly inculpatory, not exculpatory. They assist the prosecution, not the defendant. This claim will be defended both in principle and in terms of statutory interpretation. This article also discusses certain exceptions, where intoxication does operate as a true supervening defence.

184.  JULY 2012 Issue
p.92

Authority, Vicarious Liability and Misrepresentation
Tan Cheng-Han  •  [2012] Sing JLS 92 (Jul)
This article explores the interface between vicarious liability and agency authority in the context of misrepresentation. It suggests that while vicarious liability is often a wider concept than agency authority, where the torts of misrepresentation are concerned there should be symmetry between vicarious liability and authority in agency.

185.  JULY 2012 Issue
p.112

Murder Misunderstood: Fundamental Errors in Singapore, Malaysia and India's Locus Classicus on Section 300(c) Murder
Jordan Tan Zhengxian  •  [2012] Sing JLS 112 (Jul)
Section 300(c) of the Penal Code is the murder provision most frequently used by the prosecution and also the most problematic. Despite a diversity of academic and judicial views on its proper interpretation, there is a surprising consensus on the correctness of the Supreme Court of India's interpretation of that provision inVirsa Singh v. State of Punjab, which has become the locus classicus. This article respectfully submits that the Virsa Singh approach is wrong for contradicting the express statutory language in Illustration (b) to s. 300, failing to give effect to the ordinary meaning of the words in s. 300(c), and ignoring the important legal and historical context in which that provision was drafted. It argues for a new approach which restores the severity of the injury which the accused intended to inflict, regardless of whether it is the same as the injury actually inflicted, as the touchstone of the offence.

186.  JULY 2012 Issue
p.134

Fraud on Creditors
Tan Yock Lin  •  [2012] Sing JLS 134 (Jul)
Transfers 'out of a debtor's indebtedness' provoked in Elizabethan times a narrow range of rigid solutions based on legal doctrines of constructive fraud and a more broad-based evidential doctrine of ostensible ownership. One of these legal doctrines has been continued in recent cases, and others may be continued unless there is a clear understanding of why they arose in the first place. This article argues that legal as well as evidential doctrines are not appropriate in modern business contexts and develops a theoretical non-contractarian framework for demonstrating this.
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187.  JULY 2012 Issue
p.154

Legislation and Case Notes: Developments in Duress: Coercion, Moral Choice and Subjectivism
Chan Wing Cheong  •  [2012] Sing JLS 154 (Jul)
Twenty-seven years ago, Peter English rightfully lamented that the scope of the defence of duress in criminal law in Singapore was far too limited, and this was especially worrying in view of the availability of capital and mandatory sentences in this jurisdiction.3 Criticisms of the defence being too restrictive and proposals for reform have also been made by other writers4 and the Law Commission of India.

188.  JULY 2012 Issue
p.165

Legislation and Case Notes: Stop! IWant to Get Out!—The Joint Illegal Enterprise Which Ceased to Be
Margaret Fordham  •  [2012] Sing JLS 165 (Jul)
The defence of illegality, although long-established in tort law, is pleaded relatively infrequently, and - with some notable exceptions, particularly during the past few years - rarely with success. The courts are understandably cautious about accepting the application of any full defence, since the inevitable consequence of doing so is to destroy a claimant's action against a defendant whose tort has caused him harm. Some judges have also expressed discomfort about the sense of moral judgment which they see as an intrinsic component of illegality. In negligence actions, however, the special form of illegality which results in the plea of 'joint illegal enterprise' has been more widely accepted as a legitimate basis for refusing a claim. Although some have questioned the justification for treating a claimant who participates in a joint illegal enterprise with the defendant as particularly undeserving of compensation, the courts have traditionally regarded - and continue to regard - this as one of the more appropriate situations in which to refuse to award damages

189.  JULY 2012 Issue
p.174

Legislation and Case Notes: Framing Contractual Freedom within the Precept of 'Honesty, Reliability and Integrity'
Alexander F.H. Loke  •  [2012] Sing JLS 174 (Jul)
Might a bank rely on a conclusive evidence clause against a customer when its employee has knowingly entered into unauthorised transactions on the customer's account? Thiswas one of the key issues before the Singapore High Court in Jiang Ou v. EFG Bank AG. The issue brought into question the considerations that shape the contours of contractual freedom, and how the law should respond when a conclusive evidence clause is relied upon to defeat the claim that the bank statement is inaccurate by reason of fraud perpetrated by the bank's employee. The decision invoked both the Unfair Contract Terms Act, as well as public policy at common law to defeat the bank's reliance on a conclusive evidence clause. While preventing the bank from shifting the consequences of fraud originating from within the banking organisation may be intuitively appealing, the decision carries broader implications for the drafting of conclusive evidence clauses and raises questions about the ambit of the common law prohibition.

190.  JULY 2012 Issue
p.185

Legislation and Case Notes: Striking a Balance Between Public Policy and Arbitration Policy in International Commercial Arbitration
Nicholas Poon  •  [2012] Sing JLS 185 (Jul)
2010 was a momentous year for Singapore arbitration law with the High Court's decision in AJT v. AJU marking the first time an arbitral award was set aside on the ground of public policy in Singapore. Unsurprisingly, that decision generated some comments. AJU appealed and the Court of Appeal, comprising Chan C.J., Rajah J.A. and Phang J.A., agreed withAJU and reinstated the arbitral award. Although the final result is unquestionably right, the court's reasoning is arguably controversial. This case note queries whether the Court of Appeal had intended to go as far as the judgment seems to suggest. It suggests that in the final analysis, the promotion of arbitration is a policy that has limits, particularly when the State's public policies are involved.

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