SINGAPORE Law and Practice Contributed by: Jansen Chow and Ang Leong Hao, Rajah & Tann Singapore
7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages Generally, the Singapore courts have not been will - ing to award punitive damages in contract law, as the purpose of damages in contract law is to compen - sate the claimant for their loss, rather than to punish the wrongdoer. Even where fraud is established, the courts are reluctant to: • award punitive damages; and • depart from the general rule that punitive damages cannot be awarded for breach of contract. Punitive damages may, however, be awarded for claims in tort, where the totality of the defendant’s conduct is so outrageous that it warrants punishment, deterrence and condemnation. The courts will also consider whether the defendant has already been punished by criminal law or through the imposition of a disciplinary sanction when deciding whether to award punitive damages. The overarching principle is that the courts will not impose a punitive award when no such award is necessary. 7.2 Laws to Protect “Banking Secrecy” Under Section 47 (1) of the Banking Act 1970, the bank is not allowed to disclose customer information to any other persons. However, the Banking Act 1970 also provides exceptions where disclosure is allowed – for instance, where disclosure is necessary to com - ply with a court order, or to comply with a request made pursuant to written law to furnish information for the purposes of an investigation or prosecution of a suspected offence. As such, there are recognised exceptions to the bank - ing secrecy laws, such as a Bankers Trust order (see 2.3 Obtaining Disclosure of Documents and Evi- dence From Third Parties ). The customer’s informa - tion can also be provided to a police officer or public officer who is duly authorised to carry out the investi -
For the court to draw an adverse inference, there are two main requirements that need to be satisfied: • there needs to be a substratum of evidence that establishes a prima facie case against the person against whom the inference is to be drawn; in other words, there must already be a case to answer on that issue before the court is entitled to draw the desired inference; and • that person must have access to the information they are said to be concealing or withholding. Note that, in criminal proceedings, Section 261 of the Criminal Procedure Code 2010 expressly provides the Singapore courts with the power to draw an adverse inference from the silence of the accused for failing to mention any fact that they subsequently rely on in their defence which the accused could reasonably have been expected to mention when questioned, charged or informed of their offence. 6.2 Undermining the Privilege Over Communications Exempt From Discovery While communications between a lawyer and a cli - ent attract legal advice privilege or litigation privilege, such communications can be stripped of their privi - leged status on the basis of a “fraud exception”. In particular, Section 128 (2) of the Evidence Act 1893 expressly provides that legal advice privilege will not apply to “any communication made in furtherance of any illegal purpose” or to “any fact observed by any advocate or solicitor in the course of his [or her] employment as such showing that any crime or fraud has been committed since the commencement of his [or her] employment”. The Singapore courts have held that litigation privilege is also subject to the same fraud exception. The party seeking to lift privilege must at least show some prima facie evidence that the privileged com - munications were made as part of an ongoing fraud. When determining whether the “fraud exception” applies, the court will conduct a balancing exercise between the protection of privilege and the impor - tance of preventing the commission of such fraudulent and/or criminal acts.
gation or prosecution. 7.3 Crypto-Assets
The Singapore High Court has held that cryptocurren - cies are property and, when stolen, can be subject to
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