Speech by Minister for Law, K Shanmugam, during the Committee of Supply Debate 2012

6 Mar 2012 Posted in Parliamentary speeches and responses

1. Developing Singapore as an Asian Intellectual Property (IP) Hub

Importance of IP

1. Sir, I thank those Members who have spoken. I will first deal with the points made by Mr Edwin Tong, Mr Vikram Nair, and Mr Pritam Singh on IP.

2. IP has become an important part of the global economy. The value of intangible assets for S&P 500 companies, of which IP is a major component, is about 80 per cent. 30 years ago, it was just 17 per cent. Over the last decade, global patent and trade mark filings have increased by over 40 per cent. Worldwide royalty and licensing revenue has more than doubled, to over US$200 billion. These trends will continue.

3. Singapore must try and ride on this trend. Our strengths are a well developed legal and financial system, and a workforce that is comfortable with science and technology. At the same time, our challenge is that we have a small domestic market which faces difficulties in creating the marketplace and generating the demand for IP services.

4. Our ambition is to make Singapore the Asian IP Hub. We have progressed well so far. Since 2006, Singapore’s IP regime has been consistently ranked amongst the best in the world by the World Economic Forum, as well as the IMD. We need to progress further.

Convening of IP Steering Committee

5. We will convene an IP Steering Committee to study and develop the IP Hub Master Plan. Members of the Committee will be from both the private and public sectors. The Committee will be chaired by Mr Teo Ming Kian, who was formerly Chairman EDB, Chairman of the then National Science and Technology Board, and Permanent Secretary (National Research and Development). He is eminently qualified to lead the committee.

6. The Committee will look into two key areas: (1) Developing a vibrant marketplace for IP transaction and commercialisation, and (2) Building world-class IP capabilities and infrastructure.

Thrust 1: Developing a vibrant marketplace for IP transaction and commercialisation

7. The first thrust is to develop a vibrant IP marketplace. The technology market is changing rapidly and considerably. Consumer products combine IP in diverse and complex ways. Some sources cite that a typical smart phone today involves as many as 250,000 patent claims. Significant IP transactions are required to achieve such aggregation. The Committee will recommend strategies to:
   • Develop Singapore as the marketplace of choice to transact IP;
   • Attract international firms and professionals who provide IP transactional services, e.g. licensing and brokerage;
   • Incentivize the creation, management and exploitation of IP in Singapore.

This will also benefit local companies which, as Mr Tong points out, are creating more IP.

Thrust 2: Building world-class IP capabilities and infrastructure

8. The second thrust is to build world-class IP capabilities and infrastructure. There are many different aspects to it, including IP filing and protection.

9. We will enhance our patent regime. At present, we adopt a self-assessment system, where patents can be granted even if objections are raised in the examination report. To enhance it, I think we should move to a positive grant system, where patents will be granted only if patentability requirements are fully met first. This will increase confidence in the quality of Singapore patents.

10. We will also develop indigenous search and examination capabilities for patent applications in niche technology areas. Currently, search and examination work is outsourced. We aim to develop world-class expertise to attract companies in the region to have patents in niche areas examined in Singapore.

11. We also aim to develop the patent agent sector. There are about 100 Singapore-registered patent agents in practice today. We want Singapore to be a key node in global patent work. We aim to attract world-class patent firms to operate here. We want to enable Singapore to service more of the regional demand, and benefit local companies and research institutions as well. We will provide better support to develop the local patent agent profession.

Enforcing IP rights

12. Mr Pritam Singh asked about our review of measures to address online piracy. He has some concerns about whether this is all a pretext and whether we are going to curtail freedom of speech under the pretext of protecting IP. I think there is any number of hypotheses one can come up with for a review that is not yet concluded. Let me just give Mr Pritam Singh and Members some data on what is actually happening now.

13. Our position has generally been that IP, including copyright, is a private right. Its enforcement should be initiated by owners of these rights. Under our current regime, copyright owners have the ability to take actions against online copyright infringements.

14. In recent years, owners of copyright have indicated that digital piracy was increasingly taking place online and that the traditional approach to address piracy would no longer be sufficient for a number of reasons. Time does not permit me to go into that.

15. We formed an Inter-Agency Working Group last year to look into the various issues concerning copyright, including that of online piracy. The Working Group has been consulting various parties to determine the impact of piracy in Singapore and has also been assessing the measures employed in other countries.

16. What is the current status of online piracy in Singapore? Based on the data that rights holders have shared with us, Singapore appears to have one of the highest incidences of online piracy in the Asia-Pacific region. According to various studies and input from rights holders, it has been estimated that:
    • Singapore had over 300,000 incidences per month of illegal downloading on average;
    • It ranked the worst out of 15 countries in the Asia Pacific with 0.8 per capita incidences of infringement per annum;
    • In 2010, over 693,000 connections were detected in unauthorised sharing of video games and work software on peer-to-peer (P2P) networks through internet service providers (ISPs) located in Singapore;
    • 6 of top 100 visited domains by Singapore internet users for November 2011 host some copyright infringing content;
    • Over 20 per cent of Internet users in Singapore access selected file sharing websites at least once a month; and
    • 3.7 million P2P downloads of US major movies initiated by Singapore users.

17. There are some caveats. The data focuses on online piracy and does not include figures for piracy of hard copy CDs and DVDs which would be higher in other Asia-Pacific countries.

18. There is evidence that the consumption of online pirated material is not insignificant here. There is also feedback from one of the ISPs that there is a higher number of copyright infringement notices for its Singaporean subscribers, compared to those in Hong Kong and Australia.

19. We have been warned of possible consequences. Rights holders have stated that digital music sales make up a large percentage of music producers’ revenue. Online piracy, if unchecked, could reduce the revenue. The Recording Industry Association of Singapore (RIAS) has reported that physical sales have declined from US$42.4 million to US$14.5 million in the decade leading up to 2010, and were expected to fall further. However, unlike the rest of Asia and the world, the decline in physical sales in Singapore had not been compensated by a rise in digital sales.

20. RIAS has warned that this in turn could reduce the funding available for the development of new musical talent in Singapore and stifle the growth of the creative industry. There have also been some concerns raised, that online piracy has contributed to providers of legitimate online content staying away from Singapore. There could be other problems, but these have been suggested to us.

21. So, I would invite Mr Singh eventually, when I finish, to suggest, to make it clear, whether he is indeed suggesting that this review is being based on a pretext or some other motive. Let us have the review. We are aware of concerns both by the industry and our need to be an IP hub with tremendous value for our creative producers, our young talents. At the same time, we are also aware of the concerns on the other side, where people are very concerned about how any rules or regulations could impact on a whole variety of areas. We are very mindful, and that is why we are conducting a review. And eventually when the review committee comes to a conclusion, we will have that in Parliament. At that time, one can see whether this is all a pretext or not.

IP dispute resolution

22. Mr Vikram Nair spoke on our IP dispute resolution capabilities and how they can grow. We agree that our IP dispute resolution capabilities must grow in tandem with the growth of IP transactions. Since last year, specially IP-trained Registrars at the Supreme Court conduct pre-trial conferences and hearings. While any High Court Judge may be able to handle IP cases, the Court has recently announced the formal designation of judges with considerable experience and expertise in IP cases, as IP Judges.

23. IPOS has collaborated with the World Intellectual Property Organisation Arbitration and Mediation Centre in Singapore. Under the MOU, disputes about the ownership and validity of IP rights filed with IPOS can be resolved through mediation at the Centre. We are looking into setting up a panel of expert IP adjudicators drawn from professionals to hear IP registration disputes.

24. Taken together, the initiatives will help grow our capabilities and expertise in IP dispute resolution.

2. Supply of lawyers

25. Next, let me turn to the issue of supply of lawyers. I think Mr Hri Kumar and Mr Chen Show Mao made some comments on this.

26. And it is important that we get this right to ensure access to justice and (in respect of) our efforts to be a legal hub. It involves both qualitative and quantitative aspects, and is something that we are continuously monitoring.

27. Our current approach is that we recognise degrees from the two Singapore law schools, and scheduled universities in the UK, US, Australia and New Zealand – they number 35. Many choose such avenues, and exemptions are also granted to those who have studied in non-scheduled universities on a case-by-case basis.

28. The current policy on external degrees has two aspects: (1) the degree itself, and (2) the individual.

29. On the degree itself: as Mr Chen remarked – this was first considered by the First Committee on the Supply of Lawyers in 1993, headed by then Attorney General – now Chief Justice – with a Supreme Court judge, Permanent Secretary (Law), Permanent Secretary (Trade & Industry), as well as the Deputy Vice Chancellor of NUS – now Justice Tan Lee Meng – and the Dean of the NUS Faculty of Law. They considered very carefully the comparative entry requirements for such degree courses, the time taken to complete the degree, the amount of class supervision and class interaction time, and access to resources, and they concluded that they could not say – as a class – that external law degrees were equal to full-time degrees, and that therefore – as a general policy – external law degrees have not been recognised.

30. If we move to the individual: nevertheless we recognise that individuals who hold an external law degree can apply themselves diligently and prove themselves in any field, and the policy takes that into account; individuals who have substantial experience in the legal or law-related fields, who have been validated by the market as it were, are granted exemptions. Less than 30 have applied since 1994, and 11 of them have been granted exemptions.

31. We have also made changes to allow more people to qualify. At the Third Committee on the Supply of Lawyers’ recommendation, we set up a second law school; the total number of graduates increased from 250 to 370, which is quite significant. The majority of that pioneer batch will be called to the Bar this year.

32. Since 2009, we have replaced the one-year Diploma in Singapore Law course with an optional course followed by the Part A Bar Examination, and relaxed criteria to allow second-lower degree graduates from overseas universities to qualify. About 600 Singaporean/PR law graduates from overseas universities have passed the Part A conversion examinations.

33. In 2011, 210 law graduates sat for Part A; 92 per cent passed. We have also replaced the post-graduate law course with a revamped Part B examination that everyone sits for.

34. Nevertheless, our view is, and I agree with Mr Chen here, that the types of lawyers qualifying to practice should be reviewed again, to deal with changing conditions. For example, three factors – I think he mentioned at least one of them: the aspirants have difficulties getting into our law schools; the cost of going overseas – we recognise that; and smaller law firms have difficulties in finding lawyers; and I mentioned that and one or two of the other factors a number of times.

35. We do need to look into these areas and see what can be done. So, I have recently convened a Fourth Committee on the Supply of Lawyers, to look into this and other issues, because I think, we need to relook, not just external law degrees but also the needs of smaller law firms, how we can get people who have the aspirations to become lawyers but cannot afford to go overseas; what can we do about all of these, and how we can do it in a rational manner, so that we have lawyers who are then able to use their skills in our marketplace. I think that is important as well.

36. So in that context, I have asked Judge of Appeal V K Rajah to head the Committee to look into these issues. The Committee will consider how to augment the talent pool for lawyers, including in domestic areas of law, e.g. criminal and family law, which we consider to be important for access to justice. And they have been asked to consider possible adjustments to current admissions policy, including the external law degrees policy. And, they could consider, I think Mr Kumar mentioned it if I am not wrong, moving to a model where a single Bar examination serves as the sole gatekeeper. It is one of many possible models.

37. And there are other approaches that can be considered – I don’t want to prejudge the Committee. Let them do their work and come back and we will report it in Parliament.

3. Administration of criminal justice

38. Let me now move to the administration of criminal justice.

39. On prosecutorial discretion, Mr Singh’s point, we accept Article 35(8) of the Constitution vests prosecutorial discretion in the Attorney-General. The Court of Appeal in the Ramalingam case has held that the prosecutorial power is constitutionally co-equal to the judicial power, and the Court should be slow to interfere with its exercise. And I think it is important to see what the Court said in this context. In the Court’s judgment, at paras. 70 and 71, it says:
    1. “In this regard, the mere differentiation of charges between co-offenders, even between those of equal guilt, is not, per se, sufficient to constitute prima facie evidence of bias or the taking into account of irrelevant considerations that breaches Article 12(1). Differentiation between offenders of equal guilt can be legitimately undertaken for many reasons and based on the consideration of many factors ...
    2. Given that there are many legitimate reasons for the Prosecution to differentiate between the charges brought against different offenders involved in the same criminal enterprise, such differentiation per se does not necessarily mean that the Prosecution has not given unbiased consideration ...”

40. The Court – I am sure Mr Singh is aware – went on to say that there are many good reasons why differentiation may be necessary. It indicated some of those good reasons, including the fact that there could be intelligence which the prosecution is not willing to share in the open.

41. Now, should we change the system? I think really we need to start with a context here – what is the kind of criminal justice system that we want. We want a system where the guilty are convicted, the innocent are acquitted and the wider interests of society are protected, which includes the protection of society from those who could cause it harm. If it is clear that public disclosure by the Attorney-General, of his reasons why differential treatment is being given, will improve the criminal justice system, then it is a no-brainer; we must make sure that the law requires such disclosure.

42. So the question is, is that clear? The reality is that the position is not so clear. There are trade-offs, as Members know. What are the trade-offs here? If reasons underlying prosecutorial decisions are revealed, it can compromise intelligence and other confidential sources that inform such decisions, which, as I said earlier, the Court of Appeal recognised. And, let us not kid ourselves, you will have some criminals who will try and work around the guidelines and game the system. That is in the nature of, not everyone, but there will be some people who will do that. In the United Kingdom, as I am sure Mr Singh is aware, there was a case where a person applied to court, for the Director of Public Prosecutions (DPP) to disclose in advance, the guidelines that would inform the DPP’s decision whether an offence which was going to be committed, would be prosecuted. So, I am going to do this, you tell me in advance – because you have published the guidelines – whether I will be prosecuted or not.

43. On the other hand, if reasons are revealed, it can of course be a safeguard against the discretion being exercised wrongly or maliciously by the Attorney-General.

44. So the question that we have to ask ourselves is: there are these two situations, the risk of the prosecution acting wrongly, compared to the risks associated with the compromise of intelligence and all the other attendant risks if disclosure is made. Which is the more serious risk in the context?

45. Our view is that the prosecution acting wrongly or maliciously is the lesser of the two risks. The Attorney-General’s Chambers has internal guidelines and layers of review, and in capital cases the Attorney-General reviews the facts himself.

46. The Court of Appeal has also held in Ramalingam that if a prosecutorial decision is untenable on its face, it must be explained, or else the Court will infer that there is no good reason for it. So you have all these layers of checks, and within this framework, we believe that a system where the Attorney-General exercises his discretion without having to make those reasons public is better for society. If we are convinced of the opposite, I say to Members, unhesitatingly, that we will change the law.

47. Let me now turn to discovery.

48. Ms Lim asked how the prosecution can work with the police to ensure comprehensive discovery of relevant evidence, in the light of the Court of Appeal’s judgment in the Kadar case. I think we accept, Ms Lim accepts, everyone who has read the judgment would accept, that the Kadar case did not go into how the police and the prosecution should interact. That was stated clearly in the supplementary judgment.

49. In practical terms, for the police, the function and duty of both investigators and investigation supervisors is that they need to go through the investigation papers and ensure that all the relevant information is presented to the prosecutor.

50. And the prosecution is under a duty to disclose relevant, credible, unused material in its possession to the accused, and that duty has been given statutory form through the CPC 2010 which we took through this House. And the prosecution has to work closely with investigating officers to assess evidence in this regard.

51. Any doubts in a case will be referred by the prosecutor or the investigating officer to their respective superiors, who will give guidance on the proper practice. Since the enacting of CPC 2010, AGC has been working on a joint Code of Practice for prosecutors and defence counsel, which will carry general guidance on disclosure.

52. Following Kadar, the Attorney-General’s Chambers has also engaged the Law Society as well as the ACLS, to flesh out the disclosure obligations of the prosecution under Kadar, discussing and working out what the Bar will consider acceptable and appropriate. Both the AGC and the defence bar are attuned to the same objectives in the administration of a proper justice system.

53. I think Ms Lim said five years ago she made some suggestions which fell on deaf ears. I’m not sure if I was in the House 5 years ago listening to her, being a backbencher then. I think what needs to be recognised in context is that the CPC and Penal Code have been amended substantively since then. Discovery by the prosecution and the defence, which are major steps, were included in the CPC which we took through the House, and the Penal Code which was taken through by my predecessor. And before we amended the CPC to substantively enhance the rights of the accused, we consulted extensively, including with Ms Lim, who made various suggestions. It was a long period of consultation.

54. If we have seen how the law evolved, when we made amendments and thereafter, I have more than once made clear in this House, about the duties of the prosecution in respect of the evidence that they have, which is that the fundamental duty of any lawyer, whether prosecutor or defence, is to be honest with the Court. Honesty requires you to disclose all relevant evidence, whether or not it is in the statute, and if you withhold credible evidence, that is misconduct. I took pains to make that clear, and the Court of Appeal referred to that statement I made here in Parliament in making its decision; it adopted that statement as the statement of principle in its decision in Kadar. So when Ms Lim talks about a breakthrough in Kadar, the Court of Appeal was applying the law that we discussed in this House.

55. Now, I have answered that question as best as I can from the Ministry of Law’s perspective. As for the detailed duties of the police and what they may or may not do, it is something that I am in no position to answer because that is a Ministry of Home Affairs (MHA) policy issue. But I can assure Ms Lim that in our consultations with MHA on various issues, including this, we have been assured, and I have set out for Ms Lim and Members, of the kind of processes that are now in place.

4. Access to justice

56. Let me now turn to access to justice. Mr Lee spoke on access to justice generally, and probate in particular.

57. We thank him.

58. In respect of the Supreme Court, there are generally lower numbers of litigants-in-person. We created educational material providing information on court process for bankruptcy proceedings where most of the litigants-in-person in the Supreme Court are concentrated. Materials are available online and we are in the process of upgrading that.

59. In the Subordinate Courts where you find more litigants-in-person, we have created a dedicated HELP (Helping to Empower Litigants-in-Person) Centre to help litigants navigate the court processes. We are collaborating with the Law Society and law firms to deploy pro bono lawyers at the HELP Centre. And, for example, the Singapore Association of Women Lawyers assists with pro bono clinics at the Family and Juvenile Division under the auspices of the HELP Centre. And we are in the process of putting together a “Probate Toolkit” to help litigants with the probate process as well. The toolkit will come with standard forms for simple probate cases.

60. Mr Lee also raised a specific concern on simplifying the process for probate and letters of administration. We intend to review and update the Probate and Administration Act, together with the Insolvency and Public Trustee’s Office.

61. We will look at how we can refine the criteria and threshold of estate cases that can be administered by the Public Trustee, and how we can simplify the existing procedure. The courts are supportive of all these and we are working with them closely.

62. My Senior Parliamentary Secretary, Ms Sim Ann, will further elaborate on two other pillars of our access to justice efforts, pro bono and legal aid, and also take the remaining cuts. Thank you.

Last updated on 25 Nov 2012