Like the proverbial pink elephant in the room, one assumes that a ship is immediately and obviously identifiable. However, locally, and internationally, the definition of what is a ship has proved illusory, the criterion being “at sea” as it were.

Among the more unusual cases which have come up for determination would rank the following:

  • Houseboats & floatels i.e. floating motels (The Environment Agency v Gibbs and another [2016] 2 Lloyd’s Rep 69, Addison v. Denholm Ship Management (UK) Ltd. [1997] I.C.R. 770);
  • Flying boats (Polpen Shipping Co.v Commercial Union Assurance Co., Ltd (1942) 74 LI LR 157); and
  • A remotely operated underwater vehicle (Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard 1702 Remotely Operated Vehicle Lately on Board the Ship “Offshore Guardian” and another [2020] 1 Lloyd’s Rep 201).

To add to the list of curious cases, in the landmark case of Vallianz Shipbuilding & Engineering Pte Ltd v Owner of the vessel “ECO SPARK” [2023] SGHC 353 (“EcoSpark”), the Singapore Court had occasion to consider whether or not a floating fish farm (a modern day kelong in local parlance), was a ship for purposes of the HCAJA.  In so doing, the Singapore Court has attempted to put forward a more comprehensive rubric by which to determine what is a ship, and this article wades into these murky waters by way of a case review.

The High Court (Admiralty Jurisdiction) Act 1961 (2020 Rev Ed) (“HCAJA”) is the legislation that sets out the ambit of the local Courts’ admiralty jurisdiction.  Section 2 of the HCAJA defines “ship” as simply “any description of vessel used in navigation”.   However, a neat definition of a “ship” or “vessel” has proved elusive.  The High Court in EcoSpark has held (at [69]) that of necessity, the inquiry as to what constitutes a “ship” must be multi-factorial.

Practically speaking, the more ship-like characteristics one could tick off, the more likely the vessel is a “ship” and vice versa.  However, the absence of certain characteristics does not immediately mean that the vessel is not a “ship”.

Relevant physical characteristics

Insofar as physical characteristics of a vessel were concerned, the “ability to self-propel, being possessed of a keel or a steering mechanism such a rudder, having a crew to man the ship, navigation lights, and ballast tanks” are usual physical characteristics (at [73]) and a vessel having all or most of these characteristics is more like than not to be a “ship”.

Design and capability of being used in navigation

At its very essence however, the Court noted that whether a vessel was “designed and capable of being used in navigation” was a weighty consideration in determining whether or not a vessel was a “ship” within the meaning of the HCAJA.

In that regard, a vessel must be designed to be capable of movement from one place to another on the water, but, need not be currently used to move from one place to another on water.  Inasmuch as a car parked in a parking lot remains a car, a vessel not currently traversing the water (but capable of it) remains a vessel.

In addition, the Court declined to follow the line of authorities which hold that the vessel’s primary work should be executed while in navigation, and adopted instead the reasoning in the English Court of Appeal in Perks v Clark (Inspector of Taxes) [2001] 2 Lloyd’s Rep 431, that navigation can be incidental to another function such as dredging or providing accommodation.

Class and flag

Further to the above, the classification of the vessel, and registration and flag of the vessel in question has also been flagged out an important indication as to whether the vessel is a “ship” and/or “used in navigation”.

Conclusion

In this case, notwithstanding that the vessel the ECO SPARK, lacked many of the usual physical characteristics of a ship e.g. no engines, no crew, no navigational equipment, the Court noted that the vessel, being a converted dumb barge, was designed for and remained capable of being in navigation.  The fact that she had special structures installed on top of the barge structure did not render her no longer navigable.

While the vessel was spudded down into the seabed and does not move on a daily basis, she is capable of being moved and remains capable of navigation.  In addition, the fact that she had been towed from Batam to Singapore immediately prior to her use as a floating fish farm, and her capability of being classed (notwithstanding that her owners had not maintained her class status), pointed to her being a ship for the purposes of section 2 of the HCAJA.

In conclusion, this judgment is a timely and illuminative one and provides a greater degree of certainty and clarity as to when the admiralty jurisdiction of the Singapore courts is to be invoked.

On Friday, 5 July 2024, Characterist shared a merry evening of drinks and canapes, laughter and conversations with our clients during Characterist Casual, our firm’s client thanksgiving event.

We would like to take the opportunity to express our heartfelt gratitude to our clients and all who attended.

Some of the more common offences a driver may face under the Road Traffic Act 1961 (the “RTA”) include “Reckless or dangerous driving” under Section 64 of the RTA (“Reckless Driving”) and “Driving without due care or reasonable consideration” under Section 65 of the RTA (“Careless Driving”). This article explores what these offences mean and the judicial approach to dealing with such offences, as well as some of the possible outcomes a person may face when charged with such offences.

Defining the Offences

First, when faced with a possible RTA offence, it is important to understand whether one’s conduct amounts to “carelessness” as opposed to “recklessness” which is more severe. These terms are not defined in the RTA but have developed over case law.

Broadly, recklessness involves the offender’s recognition of a risk (such as beating a red light, or driving under the influence) but ignoring that risk. Recklessness can also be made out where a risk is obvious but the driver unreasonably failed to consider it. Carelessness on the other hand is typically made out when a driver’s actions fall below what is reasonably expected of a competent driver.

Second, there are 4 degrees of harm involved in such offences: death, grievous hurt, hurt, and non-injury scenarios or property-damage-only cases.

“Hurt” is elevated to “grievous hurt” when among other things, a victim has suffered permanent blindness or hearing loss in either eye, amputation, permanent disfiguration of the head or face, permanent incapacity to a body part, a fracture or dislocation of a bone (including the cartilage in the nose) or has been placed on medical leave for 20 days or more. The full list may be found at Section 320 of the Penal Code 1871.

The dividing line between what is reckless and what is careless is not always clear but this line must be drawn as the fines and / or imprisonment terms imposed can differ significantly between Reckless and Careless Driving.

The table below lays out the minimum / maximum fines / terms of imprisonment for the offences of Reckless and Careless driving (not including any period of disqualification from driving which may be imposed). It may be observed that for certain levels of harm, the offence of Reckless Driving can carry mandatory minimum terms of imprisonment.

The Courts’ Approach to Sentencing

It is not possible here to lay out all of the possible considerations a sentencing Court may take into account. At this time of writing, the judicial approach to sentencing for Careless and Reckless driving appears to still be undergoing development.

Generally, the Courts tend to begin by considering the level of Harm caused, and the Culpability of the Offender to determine the starting sentence. A crucial consideration is whether the case warrants a jail term or whether a fine is sufficient where there is no mandatory imprisonment. This is called the “custodial threshold” which is often a foremost consideration to potential offenders.

There is case law to suggest that at least for the offence of Reckless Driving, the custodial threshold is not usually reached in cases where the level of Culpability lies between low to moderate and the degree of Harm is between low to medium (i.e. boxes 1, 2, and 4 but not 5 in the table below), if there are no aggravating factors. However, each case will be determined on their own facts.

The level of Harm and Culpability are assessed on a case-by-case basis. For Culpability, conduct which tends to fall within the low to moderate range includes behaviour such as beating a red light. If there are multiple breaches of safe driving practices, it may be expected that Culpability will be higher, and where very dangerous conduct such as driving under the influence or road racing is concerned, these factors may push Culpability into the severe range.

For Harm, naturally if death is caused, it will fall within the serious range. Where victims have suffered multiple fractures or a degree of severe permanent injury, Courts have also tended to assess Harm at between the moderate to serious ranges. On the other hand, where there are no fractures or severe injuries, Harm tends to fall at the low end. It should be noted that potential harm to other road users is also accounted for in this analysis.

After the Court has decided its starting sentence, including whether or not a sentence of imprisonment is warranted, then the Court will adjust the sentence based on other relevant aggravating and mitigating factors. Some examples of other aggravating factors include whether the offender has a record of past driving offences.

In conclusion, understanding the law behind the offences of Reckless and Careless Driving can be a complicated and stressful procedure. The law is also continually developing in this regard, and the best advice one should walk away with is to drive safely and with proper consideration for the rules and for other road users.

We are proud to congratulate our Directors Daniel Goh and Dominic Chan for being recognised by Benchmark Litigation Asia-Pacific 2024 as Litigation Stars in their respective fields of Insurance and Commercial and Transactions.

Find out more at the following links:

https://benchmarklitigation.com/Lawyer/Daniel-Goh/Profile/146409#profile

https://benchmarklitigation.com/Lawyer/Dominic-Chan/Profile/134547#profile

We are delighted to announce that Benchmark Litigation Asia-Pacific 2024 has named Characterist LLC as a Recommended Firm in Commercial and Transactions and Construction and a Notable Firm in Family and Matrimonial. We would like to say a big thank you to our clients and our Characterist team for making these achievements happen!

Learn more at the following links:

(1) Our Benchmark Litigation profile page

(2) Our Benchmark Litigation rankings page

(3) Benchmark Litigation’s analysis page of Characterist

             

In a CNA Explains article on drink driving laws in Singapore, CNA examined the offence of drink driving in Singapore and the various penalties and consequences that offenders may face.

CNA interviewed various lawyers on the position in law, including Characterist’s Daniel Goh Choon Wah and Mitchell Leon.

Commenting on the recent amendments to the Road Traffic Act (RTA) in 2019, Mitchell highlighted that “the maximum sentences [for drink driving] were essentially doubled with the 2019 amendments [to the RTA], with the minimum disqualification period also doubled from 12 months to two years.” He also noted that “[i]t is clear that the enhanced sentencing regime post-2019 was intended to create a strong deterrence to would-be drink drivers, as well as irresponsible or reckless drivers”.

From a motor vehicle insurance perspective, Daniel commented that “in most cases, the insurance contract stipulates that drink driving constitutes grounds for the repudiation of insurance liability…In particular, some insurance policies might provide that any amount of alcohol consumed is grounds for repudiation. In other words, the driver need not necessarily exceed the legal limit under the Act of 80mg of alcohol in 100ml of blood”.

Read the full CNA article here.

Characterist’s Daniel Goh Choon Wah represented an ex-lawyer, David Khong Siak Meng, who had been charged with one count of criminal breach of trust.

Khong had acted for a couple in a conveyancing transaction, where he had deposited the buyer’s cheque of $88,000, paid in exercise of the option to purchase, into his firm’s office account instead of the firm’s clients’ account (which is specifically used for holding clients’ monies). He then proceeded to withdraw the full sum of $88,000 within the same month to pay off personal expenses and debts.

On 15 August 2007, the day after the sale was scheduled to be completed, Khong met his client and confessed to misappropriating the monies due to “personal problems”. He repaid his client $20,000 and asked for more time to repay the remaining $68,000. His client gave him till 18 August 2007 to do so, failing which, his client would make a police report. Khong was unable to do so and fled to China. Khong was eventually deported to Singapore on 23 September 2022.

Characterist’s Daniel Goh Choon Wah sought leniency for Khong from the Court, stating that “He would not have been arrested and deported (if not) for his clear and deliberate act of surrendering with the knowledge that he would have to be deported to Singapore to face the music”, and that “[h]e has matured in the long time away from home and should be afforded the opportunity to turn over a new leaf.”

Khong was sentenced to 36 months of jail. For committing criminal breach of trust as a lawyer, he could have received a jail sentence of up to twenty years, and also be liable to be fined.

Read more at this Straits Times article.

In the July 2022 Singapore High Court (“SGHC”) decision in Public Prosecutor v Manta Equipment (S) Pte Ltd [2022] SGHC 157 (“Manta”), the SGHC reviewed the existing legal position on sentencing for offences committed under Section 12(1) of the Workplace Safety and Health Act 2006 (the “Act”). In so doing, the SGHC harmonised the divergent sentencing approaches in existing case law, and developed a new sentencing framework to be applied in cases where a body corporate is charged with offences under Section 12(1) of the Act.

To elaborate, Section 12(1) of the Act imposes a duty on every employer to “take, so far as is reasonably practicable, such measures as are necessary to ensure the safety and health of the employer’s employees at work.” A contravention of Section 12(1) is an offence, pursuant to Section 20 of the same Act.

Notably, the structure of the Act makes it possible for an officer of a body corporate to be charged and found guilty of an offence under Section 12(1), pursuant to Section 48(1) of the Act. Furthermore, while a body corporate may be liable to a fine not exceeding $500,000.00, an officer may be liable to a fine not exceeding $200,000.00, or to imprisonment for a term not exceeding 2 years, or to both.

Given the recently reported rise in offences under the Act in Singapore, officers of bodies corporate (such as directors or company secretaries) which find themselves at risk contravening Section 12(1) of the Act may wish to pay close attention to legal developments which flow from Manta. This is because, at the time of writing, there have been no reported decisions where the Manta sentencing framework has been modified to apply to a human officer for an offence under Section 12(1) of the Act.

Characterist LLC has recently had the opportunity to render our services to a client, who is a director of a construction company who had pleaded guilty to offences under Section 12(1) of the Act. In making our legal submissions on sentencing, we broached new grounds in being one of the first law firms to apply the Manta sentencing framework in a modified form to an accused person who was a human officer of a body corporate.

At the conclusion of our submissions, the Honourable Court ultimately adopted a proportional approach to sentencing, wherein the starting point was that the fine imposed on a human officer would lie at around 40% of that which would be imposed on a body corporate under the Manta sentencing framework. The basis of this position was that the maximum fine a company could face is $500,000.00 under the Act whereas a human officer would face a maximum fine of $200,000.00.

Although our work covered new and barely explored legal territory, the full impact of the Manta decision remains to be seen. Some open questions that remain include, for officers of bodies corporate, when it would be appropriate to impose a term of imprisonment for an offence under Section 12(1) of the Act, and whether the imposition of imprisonment should have any bearing on the fine (if any) that might be simultaneously imposed. These questions will have to be answered over the course of the incremental development of case law in time to come.

Characterist’s Daniel Goh Choon Wah represented three families of the passengers in the tragic and fatal car crash that happened at Tanjong Pagar on 13 February 2021.

The three passengers were the main providers for their elderly parents and next-of-kin. Characterist assisted the three families in seeking compensation through claims made in the Singapore High Court, to help them try to ease their financial concerns.

Read more at this Straits Times article (for subscribers only) or at this article by Mothership.

CONSTITUTIONAL CHALLENGE AGAINST VDS AND WVM (HC/OS 156/2022) – LOCUS STANDI, REAL CONTROVERSY AND PRACTICAL SIGNIFICANCE WHEN MEASURES ARE PARTIALLY DROPPED

INTRODUCTION

This update provides a commentary on the Singapore High Court’s recent decision (made in respect of two interlocutory applications filed in HC/OS 156/2022 (“OS 156”)) on the standing / “real controversy” requirement in the context of constitutional challenges against vaccine-differentiated safe management measures (“VDS”) and Workforce Vaccination Measures (“WVM”), where the law, policies, regulations, statistics and science are constantly evolving.

In particular, where an applicant has standing at the time of filing a constitutional challenge, does the applicant lose that standing with respect to the VDS / WVM which are dropped prior to the Court hearing? If so, what are the practical implications arising from this?

Characterist LLC’s Dominic Chan, Daniel Ng and Daniel Goh acted for the five Applicants in OS 156.

OS 156 – CONSTITUTIONAL LAW AND JUDICIAL REVIEW CHALLENGE AGAINST VDS AND WVM

On 18 February 2022, five Applicants filed a constitutional law and judicial review challenge (i.e. OS 156) against VDS (in relation to unvaccinated1 citizens) and WVM (in relation to unvaccinated workers).2

The challenge was based on the Applicants’ constitutional rights of freedom of movement, right to life or livelihood, freedom of assembly, equal protection and freedom of religion (see Annex A of the downloadable PDF for a summary of the arguments set out in the Statement in support of OS 156). The affidavits of the Applicants, followed subsequently by the expert affidavits of Dr. Harvey Risch and Dr. Peter McCullough (opining on inter alia the efficacy and safety profile of the Covid-19 mRNA vaccines), were filed in support of OS 156.

26 APRIL 2022 STOOD DOWN MEASURES, AMENDMENT AND STRIKING OUT APPLICATIONS

Before OS 156 was heard, on 22 April 2022, the MTF announced that it would be easing VDS measures from 26 April 2022, by lifting WVM and removing VDS from all settings save for 4 settings (“Stood Down Measures”)3. In the light of this development, the Applicants filed an amendment application (HC/SUM 2073/2022)4, while the Attorney-General (the “Respondent”) filed a striking out application (HC/SUM 2295/2022).

HEARING BEFORE THE AR, CENTRAL ISSUE, AND THE PARTIES’ KEY ARGUMENTS

Both applications were heard before an Assistant Registrar (the “AR”) on 12 August 2022. The central issue was whether the Applicants, who had standing when they filed the OS, continued to have standing (in latin, “locus standi”) to challenge the Stood Down Measures. One critical element of locus standi, is that there must be a “real controversy” between the parties. This element goes to the Court’s discretion, and not jurisdiction.5 “Where the circumstances of a case are such that a declaration will be of value to the parties or to the public, the court may proceed to hear the case and grant declaratory relief even though the facts on which the action is based are theoretical.”6

Respondent’s Arguments: The Respondent’s central argument (amongst other arguments) is that in the light of the Stood Down Measures, OS 156 had become hypothetical, academic or moot with respect to the Stood Down Measures, that there was no “real controversy” remaining between the parties and the Applicants no longer have standing in this regard, and therefore, the striking out application should be allowed. The Respondent made no submissions on: (1) the constitutionality of VDS / WVM; (2) the reasonableness or rationality of VDS / WVM (from an administrative law standpoint); or (3) the efficacy or safety profile of the Covid-19 vaccines.

Applicants’ Arguments: The Applicants argued (amongst other arguments) that the primary relief sought under the proposed amended OS, namely, a vindication of the Applicants’ constitutional rights, have substantial, personal and/or practical significance to the Applicants. In particular, the declaratory relief sought will be of great importance to the Applicants for the purposes of reversing or removing the stigma and ostracization (which the Applicants face)7, as well as various harms,8 which was set in motion, caused or contributed to by VDS / WVM, and which continue to remain notwithstanding the Stood Down Measures. In this regard, the Applicants pointed out to inter alia the following:

(1) Stronger Stance: The Ministry of Health’s press release “Calibrated Adjustments in Stabilisation Phase” (8 November 2021) where they stated:

“We are taking a stronger stance against those who choose not to be vaccinated, be it through the VDS, or by requiring them to pay for their medical bills.”9

(2) Step Down but Not Dismantle: The MTF had expressly reserved the right to implement and/or step up VDS or WVM again depending on the situation. In summary, the MTF had taken a “step down but not dismantle” posture (see e.g. the MTF’s 22 April announcement, and the Minister of Health’s statement made in Parliament on 9 May 2022). These statements confirm that VDS and/or WVM may come back, either in full force or in part.

(3) VDS which Remained in Force: The 4 Remaining VDS continued to remain in force.

(4) Empower, Embolden, Encourage: The Ministry of Manpower (“MOM”)10 had stated on 25 April 2022 (see the “Updated Advisory on COVID-19 Vaccination at the Workplace” dated 25 April 2022 (“25 April 2022 Workplace Advisory”)) that employers may continue to implement VDS and/or WVM on their own accord,11 thereby effectively making vaccination status an acceptable or permitted ground of discrimination for hiring. The Applicants submitted that this has or will effectively empower, embolden and/or encourage employers to continue the imposition of VDS and/or WVM against unvaccinated workers (including some of the Applicants) in various circumstances in terms of current and/or future employment.

(5) Cloud of Fear and Uncertainty: In addition, in the light of the above, the Applicants continued to live under a cloud of fear and uncertainty that VDS / WVM may come back anytime to severely and suddenly upend their lives (and their families’ lives) again

THE AR’S DECISION, THE APPEALS AND SUBSEQUENT DEVELOPMENTS

At the hearing of the applications on 2 September 2022, the AR preferred the Respondent’s arguments over the Applicant’s arguments, and followed various recent UK and Canadian court decisions cited by the Respondent12 over various Malaysian and US cases cited by the Applicants.13 Accordingly, the AR disallowed the Applicants’ amendment application, and struck out OS 156, save for the dining VDS under OS 156 (in respect of which the Respondent did not challenge the Applicants’ standing).

The Applicants appealed to a High Court Judge in chambers, and the appeals were fixed for hearing on 18 October 2022.

On 7 October 2022, the MTF announced that they “will lift VDS fully” from 10 October 2022.14 On 7 October 2022, the MOM15 also updated its advisory on Covid-19 vaccination at the workplace (“7 October 2022 Workplace Advisory”).16 In the light of these latest developments, the Applicants withdrew the appeals and OS 156.

COMMENTARY

First, it is important to note that the various announcements of the MTF and related ministries, including the ones which communicate clear decisions implementing VDS / WVM, are not susceptible to judicial review or constitutional challenge until and unless they are enshrined in subsidiary legislation or regulations.17 This is because until such time, they do not have legal effect. This legal position is different from how the average layperson would likely perceive the way Covid-19 measures have been implemented. Even though the enshrining of VDS / WVM in the various regulations typically takes place a few days after each announcement of the MTF, and appear to be mere formalities flowing from clear executive decisions, the legal position established by the Singapore courts is that only the legislation or regulations are susceptible to judicial review.

Second, and flowing from the first point above, it is dissatisfactory that weighty advisories (made by the MOM amongst others) such as the 25 April 2022 Workplace Advisory are not susceptible to court challenge,18 especially insofar as it had or would have had an impact on how employers behaved vis-à-vis their unvaccinated employees and thus affecting actual legal rights, albeit indirectly. Importantly, insofar as such an advisory has had the effect of perpetuating the stigma and ostracization which unvaccinated workers faced in terms of current and/or future employment, Singapore’s narrow approach to the “real controversy” issue, whereby locus standi to challenge the constitutionality of WVM was lost due to the revocation of the regulations embodying WVM, would make it exceedingly difficult for such workers to seek redress from the Court.

Third, given that standing may be lost once the regulations (embodying the VDS and/or WVM) being challenged are revoked, insofar as VDS and/or WVM are reimplemented (whether in a similar or different form), it is imperative for any future constitutional challenge and/or judicial review application to be filed, and heard and determined on an urgent and expedited basis.19 This would mean that interested applicants would have to marshal substantial resources very quickly, to prepare their case based on the latest laws, policies, facts, statistics and/or expert scientific evidence.

The Health Minister Mr. Ong Ye Kung has said that “when the situation requires, we may have to step up VDS to an appropriate level, in order to protect those who are not up to date with their vaccination.”20 There is a real likelihood that VDS and/or WVM, in various permutations or forms, may continue being reimplemented in the future. They may also be revoked at short notice, thereby making any substantial constitutional and/or judicial review by the Court highly elusive. To ensure that the Court is able to engage in any substantive constitutional and/or judicial review of VDS and/or WVM, the law effectively requires any applicants to proceed on an expedited basis, and to seek urgent hearing dates as far as possible.

Footnotes

1 By virtue of the Government’s definition of being fully vaccinated, VDS and WVM had applied not only to unvaccinated persons, but also to partially vaccinated persons, those who did not qualify for medical exemptions, as well as vaccinated persons who did not receive their necessary booster to maintain their vaccination status.

2 VDS and WVM as announced by the Multi-Ministry Taskforce (“MTF”) and related ministries on 6 August 2021, 9 October 2021, 23 October 2021, 20 November 2021, 14 December 2021, and 26 and 27 December 2021 (collectively, the “Decisions”), and embodied in inter alia the following regulations: (1) Workplace Safety and Health (COVID-19 Safe Workplace) Regulations 2021, Regulations 9 to 13, and 30; (2) Infectious Diseases (COVID-19 Access Restrictions and Clearance) Regulations 2021, Regulations 6, 7A, and 9, and the Second Schedule; (3) COVID-19 (Temporary Measures) (Control Order) Regulations 2020, Regulations 6 and 8, and the First Schedule and Third Schedule; (4) COVID-19 (Temporary Measures) (Sporting Events and Activities – Control Order) Regulations 2021, Regulations 5, 7, and 14; (5) COVID‑19 (Temporary Measures) (Business Events — Control Order) Regulations 2021, Regulations 4 and 8; (6) COVID‑19 (Temporary Measures) (Performances and Other Activities — Control Order) Regulations 2020, Regulations 7A, 12A, 14, and 21A; (7) COVID-19 (Temporary Measures) (Religious Gatherings — Control Order) Regulations 2021, Regulations 8, 15, and 28A (collectively, the “Statutes / Regulations Embodying the Decisions”).

3 Namely, (1) Events with more than 500 participants at any one time; (2) Nightlife establishments where dancing among patrons is one of the intended activities; (3) F&B establishments, including restaurants, coffeeshops and hawker centres; and (4) Casinos (collectively, the “4 Remaining VDS”).

4 To pivot the main relief sought, from a quashing order (a remedy under judicial review) to freestanding declaratory relief (under O.15, r.16 of the Rules of Court, 2014) on the constitutionality of VDS / WVM (with respect to the Stood Down Measures, as well as the 4 Remaining VDS) as the main relief (in the original OS 156, this was a further relief sought under the facilitative provision under Order 53 of the Rules of Court, 2014), while maintaining the prayer for a quashing order with respect to the 4 Remaining VDS.

5 Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan Eng Hong”) at [115] and [137].

6 Tan Eng Hong at [143].

7 Namely, that VDS and/or WVM exposed the Applicants to alienation, segregation, marginalization, ridicule, contempt and/or avoidance by or from the rest of society, effectively making them into 2nd class citizens and/or a new substratum of society.
8 See [6] of Annex A of the downloadable PDF for an elaboration of such harms.

9 Emphasis in bold added.

10 Together with the National Trades Union Congress (“NTUC”) and the Singapore National Employers Federation (“SNEF”), etc.

11 The material portions of the 25 April 2022 Workplace Advisory (at [6]) include: “Taking into consideration the workplace health and safety and operational needs of their respective companies or sectors, employers may implement vaccination-differentiated requirements for their employees (such as disallowing unvaccinated employees from entering the workplace), as a matter of company policy and in accordance with employment law. For unvaccinated employees whose jobs require working on-site as determined by the employers under such a company policy, employers may … [redeploy them or place them on no-pay leave based on mutually agreeable terms, or]… As a last resort after exploring options above, terminate their employment (with notice) in accordance with the employment contract. If the termination of employment is due to employees’ inability to be at the workplace to perform their contracted work, such termination of employment would not be considered as wrongful dismissal.” [Emphasis in bold added].

12 The applicants in the UK and Canadian cases were held to have lost their standing to challenge the COVID-19 regulations once they had been removed from the statute books.

13 In the Malaysian case, the Court held that a person had standing to challenge a revoked criminal law even after it had been repealed, while in the US case, the Court held that the applicant had standing to challenge the revoked COVID-19 visitor policy (barring Catholic clergy from ministering in-person to the spiritual needs of inmates) even after it had been removed (the AR held that this case was of limited relevance to the present matter, as, amongst other things, the standard for finding that a case is justiciable under US law appears to be different from Singapore law).

14 The MTF elaborated that this “means that VDS will no longer be required for (i) events with more than 500 participants at any one time, (ii) nightlife establishments where dancing among patrons is one of the intended activities, and (iii) dining in at F&B establishments, including hawker centres.”

15 Together with the NTUC and the SNEF, etc.

16 Amongst other things, the 7 October 2022 Workplace Advisory provides (at [4]-[5]) that:

“4. With the lifting of VDS, the tripartite partners are of the view that employers should take the decision to remove vaccination-differentiated requirements for access to the workplace. However, employers may consider whether the situations in para 5 below are applicable.

Vaccination-differentiated requirements for specific occupations

5. If there are genuine occupational requirements, employers, taking into consideration the workplace health and safety and operational needs of their business, may continue implementing vaccination-differentiated requirements for their employees to access the workplace (such as deploying only vaccinated individuals), as a matter of company policy and in accordance with employment law. For example, employers may require their employees to be fully vaccinated before entering the workplace because their employees have to work closely with vulnerable individuals (which may be the case for allied healthcare professionals, nurses and doctors in hospitals and clinics); or the employees’ job scope involves travelling to countries with vaccination-differentiated entry requirements.”

[Emphasis in bold original].

17 The AR applied Han Hui Hui and ors v Attorney-General [2022] SGHC 141 (“Han Hui Hui”) at [58]-[59] (see footnote 18 below for an elaboration), and held that the prayers to challenge inter alia the Decisions of the MTF do not disclose any reasonable cause of action and should be struck out.

18 In this regard, see Han Hui Hui at [58]-[59], where the High Court held that the “Updated Advisory on COVID-19 Vaccination at the Workplace” dated 23 October 2021 (the “October Advisory”) does not amount to a policy directive, nor does it carry legal effect. It is also not the source of any legal obligations to comply with the WVMs as it merely reiterated the Government’s announcement of the WVMs. The WVMs were instead implemented by subsidiary legislation and derive their legal force from them. For the lack of legal effect, the October Advisory cannot be subject to a quashing order. Applying Han Hui Hui, as well as the AR’s decision (applying Han Hui Hui at [58]-[59]) that even the MTF’s Decisions do not have legal effect and cannot be subject to a quashing order (see footnote 17 above), the 25 April 2022 Workplace Advisory would likewise lack legal effect, and cannot be subject to a quashing order.

19 In this regard, see [31]-[32] of R (on the application of Hussain) v Secretary of State for Health and Social Care [2022] EWHC 82:

“31. … Whether expedition and an urgent rolled up hearing would be appropriate in the context of any future PCW [i.e. prohibition on collective worship, in response to the Covid-19 pandemic in UK, in conjunction with the “lockdown”] and any future prompt challenge to its legality invoking Article 9, is an open question. But if those steps are appropriate in those future circumstances, in the judgment of the Court dealing with that situation, then they will be granted.If they are not granted, it is because they are not appropriate. That is as it should be. There is nothing here approaching any deficit in the Court’s ability to provide an appropriate response which would justify, in the public interest, allowing the present claim to proceed by means of an “historic” analysis of the justification for the PCW in the circumstances as they were in and after March 2020 or May 2020. The correct position in principle is – and has to be – that the Courts have, and will always seek to discharge, the responsibility of delivering practical and effective justice, consistently with the overriding objective…
32. A claim challenging a future PCW – if the Claimant considers a challenge to be justified and if he seeks his ‘day in court’ – could be pursued with conspicuous and demonstrable promptness, pointing to all these considerations. Instead of pressing for interim relief, the Claimant could be asking for the Court’s resources to be channelled into an expedited ‘rolled-up’ hearing. There would need to be a reworked JRG [i.e. judicial review grounds]. But that is as it should be, to ensure a disciplined focus and to engage judicial review remedies designed to be practical and effective. The Court will respond in the way that it judges promotes the interests of justice and the public interest. That is a good and sufficient answer … This is an important recognition. If there were to be a future PCW, and if the Claimant sought promptly to challenge its Article 9 compatibility, the Defendant would need to think carefully about what position it takes in the proceedings – given the duty of (candour and) cooperation – so far as concerns the facilitation of prompt resolution of the substantive legal merits.”

[Emphasis in bold added]

 

20 See [19] of the Minister’s Opening Remarks at the MOH Press Conference to Update on the Covid-19 Situation on 15 October 2022.