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The Singapore Law Gazette

An Insight into the Heart and Mind of One of the Leading Jurists of Our Time

Pursuing Justice and Justice Alone (The Heart and Humanity of Andrew Phang’s Jurisprudence)

  1. My first encounter with Justice Andrew Phang (Justice Phang) was not along the hallowed corridors of the Supreme Court (or by way of having to peruse one of his many erudite judgments), but in the much-less intimidating environs of the Business Administration canteen adjacent to the NUS Faculty of Law (when it was still at the NUS Kent Ridge Campus) in 2001. In line with the tradition of buying one’s textbooks at the start of the academic year from seniors, as a first-year law student, I had arranged to purchase four pre-loved (read: second-hand) books from a rising second year law student there. With the Law of Contract being a compulsory first-year module at NUS at the time, one of the books I agreed to purchase was Justice Phang’s seminal contract law treatise, “Cheshire, Fifoot and Furmston’s Law of Contract” (Singapore & Malaysian Edition) (Phang’s Law of Contract).
  2. I remember purchasing the books that day for what seemed to me at the time to be a princely sum of $250. In parting with that sum of money, I consoled myself that what I was receiving were not hand-me-down (i.e. third-hand or even fourth-hand) texts but books my senior had bought brand-new just a year prior. In spite of that, I recall fleetingly wondering when I finally had her copy of Phang’s Law of Contract in my hands if I had gotten a raw deal. Superficial first year law student I was back then, I had, in my naivety, assessed the relative value of the books by reference to how close to mint condition each of them was. And the well-used thousand-page tome was anything but, having been conspicuously highlighted – in luminous orange highlight no less – almost from start to finish, leading me to ponder at the time whether the seller was an overzealous highlighter whose reading style was to highlight everything she read. This was in stark contrast to the other three books I received, none of which could be described as being in mint condition, but all of which were considerably less worse for wear. Of course, as I would soon realise, the value of a book lies not in superficialities such as its condition, but in the utility and significance of its contents. And given the cerebral brilliance of its author, the contents of Phang’s Law of Contract spoke for itself: it not only illuminated one of the most difficult areas of law in Singapore but dissected such legal developments through a uniquely domestic lens in a manner that made the complex subject matter accessible to the struggling first year law student (that I was) still making sense of the complex interplay between law and society. It was, as if, as a scholar, Justice Phang knew full well that the law “was all new and mysterious to us and he wanted to help us take those tentative first steps into the law and enter that space where we, like him, could come to see the law as a beautiful thing of order, sense, fairness and justice”.1* The author was a Justices’ Law Clerk in the Supreme Court from 2005 to 2007, during which time he worked with Justice Phang. The picture of the Book is reproduced with the kind permission of Academy Publishing.See Sundaresh Menon, “Pursuing Justice and Justice Alone” in Pursuing Justice and Justice Alone (Goh Yihan ed) (Academy Publishing: 2022) (“the Book”), at page 5. Unsurprisingly, it ended up being the only one of those four books I did not sell on at the conclusion of my first year.
  3. As “Pursuing Justice and Justice Alone” (Goh Yihan ed) (Academy Publishing: 2022) (“the Book”) makes clear, Justice Phang’s 18-year service on the Supreme Court Bench has afforded him the opportunity to extend this ability to cut through the fog on difficult and complex legal issues to untangle the Gordian knots of some of the most difficult legal and socio-political debates of the day that presented itself before Singapore’s Supreme Court, and to do so with a “generous dose of common sense, pragmatism and contextual awareness”.2See Alvin W.L See, “Common Sense, Pragmatism, and Contextual Awareness in Legal Reasoning: Justice Phang and Land Law” in the Book, at page 305. The 18 chapters in the Book speak to His Honour’s central role in the development of our jurisprudence during his tenure on the Bench, a role not limited to developments in contract law (though as is to be expected, he was a central player in most of the seminal decisions of contract law emanating from our courts in recent times), but with a corpus of thoughtful and authoritative decisions in equal fluidity spanning the entire gamut of law, including criminal law, family law, intellectual property, public law, revenue law and conflicts of law, just to name a few.3The Book notes that the two areas of significance in law that Justice Phang had not written on are on military law and Muslim law. See Jerrold Soh, “Nuanced, Holistic and Measured: Justice Phang and the Empirical Development of Singapore Law” in the Book, at page 43. While this is true, in at least some facets of these two areas, Justice Phang’s judgments may nonetheless be of assistance – see for example, Mohamed Faizal Mohamed Abdul Kadir, “Muslim Law” (2015) 16 SAL Ann Rev 582, at (22.21) suggesting the force of observations made by Justice Phang in NK v NL (2007) 3 SLR(R) 743 to the Muslim law context. Carefully weaving together the tapestry of judgments issued by Justice Phang in the course of his time on the Bench, the chapters in the Book provide a powerful, and comprehensive, testimony of the indelible mark that Justice Phang has left on Singapore law and serves as a useful conspectus of Justice Phang’s oversized impact in a myriad of areas of law.
  4. Three aspects of the Book, in my view, are especially worth highlighting and renders it a must-read for all observers of Singapore law keen to understand Justice Phang’s role in jurisprudential developments as an academic and jurist. First, while it is well-known that Justice Phang is an advocate for the development of our own unique autochthonous legal system, one curated to suit to our circumstances and societal norms, and much of this philosophy pervades his many judgments, it speaks volumes for the broader principled logic and reasoning underlying his decisions that his decisions have influenced some of the most challenging legal debates of the day in other jurisdictions.4This is broadly in line with the international flavour of his influence as an academic: see Jerrold Soh & Goh Yihan, “Theory and Practice Integrated: Justice Phang and Legal Scholarship” in the Book, at pages 72 to 73. Given the tendency to assess a judge’s contributions to jurisprudence through their impact in that specific jurisdiction (an entirely explicable tendency given that courts, by and large, operate within restricted geographical confines), some of the most insightful discussions in the festschrift are those that provide an insight into how Justice Phang’s writings have significantly illuminated legal conversations in other jurisdictions, from influencing debates on the extent to which the “business efficacy” or “officious bystander” tests ought to inform whether a term is to be implied into a contract (see the UK Supreme Court decision of Marks and Spencer PLC v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72, at [24])5See the detailed discussion of this found in Howard Hunter, JW Carter and Rob Merkin KC, “A Principled Progression: Justice Phang and Contract Law” in the Book, at pages 188 – 193. to how Justice Phang’s judicious treatment of the vexed question of how to quantify damages for loss of genetic affinity (in ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918) has informed deep philosophical debates elsewhere.6See Sundaresh Menon, “Pursuing Justice and Justice Alone” in the Book at page 18 – 19, and Gary Chan, “Justice Personified: Justice Phang and Tort Law” in the Book, at pages 465 – 468. In that sense, his contributions extend far beyond Singapore’s geographical boundaries. That this is so is unsurprising for as two authors in the Book observe, “the autochthonous development of Singapore law, as envisaged and shaped by [him] is not … of an introverted character” but one where the relationship between foreign jurisprudential developments and local ones morphs from that of “relationship of donor and recipient” to “interlocutors”,7Yip Man & James Lee, “Bold Developments: Justice Phang and Equity and Trusts” in the Book, at page 285. in which the law is developed in a principled manner based on the force of the logic being advanced and not the standing of the Court, Judge or scholar who said it. In line with the trite notion that no one has a monopoly on wisdom, just as Justice Phang has been receptive to adopting (and adapting) principled legal developments elsewhere in our Courts, so too many other jurisdictions have had much to reflect on, vis-à-vis what the law is, and what it should be, as a result of studying Justice Phang’s decisions.
  5. The second relates to the fact that unlike many other festschrift, the Book not only attempts to engage in a qualitative discussion of Justice Phang’s jurisprudence (an exercise which is, of course, undoubtedly important in any such publication), but also seeks to undertake a detailed quantitative assessment of the impact of his legal scholarship and jurisprudence. In this regard, a couple of especially interesting chapters in the Book dedicate themselves to a thorough statistical exercise to gauge the value of Justice Phang’s scholarship and jurisprudence, employing a data-driven approach in ascertaining the empirical impact Justice Phang’s work (both as a Judge and as a legal scholar) has had on legal writing and thinking in Singapore. Without giving too much of their conclusions away, as one of these chapters concludes, “the statistics speak for themselves.”8Jerrold Soh & Goh Yihan, “Theory and Practice Integrated: Justice Phang and Legal Scholarship” in the Book, at page 81.
  6. The third aspect of the Book worth highlighting and its pièce de résistance is how many of the chapters not only speaks of Justice Phang the scholar and jurist but provides an insight into Justice Phang qua individual. The Honourable the Chief Justice’s opening chapter, for example, chronicles his interactions with Justice Phang from the time the former was a first-year law student (at which time Justice Phang was a relatively new faculty member at NUS Law, having just graduated himself) and provides an intimate, insightful, and altogether valuable understanding of Justice Phang’s personal qualities and attributes that anchors much of his legal scholarship and jurisprudence. In the same way, other authors of the Book have been able to interweave comprehensive narratives of the impact of Justice Phang’s jurisprudence in the field in question with their personal interactions with Justice Phang in his capacity as their teacher, colleague, and mentor. This interesting melange is useful for when it comes to resolving especially vexed questions of law that do not lend themselves to easy answers, it is inevitable that the jurist’s worldview, and his underlying beliefs and values, will necessarily have an influence in the decision-making process. In the words of a colleague of Justice Phang on the Supreme Court Bench, it would be unrealistic to operate on the fiction that a judge’s decision is not influenced by his “learnings, beliefs, predilections and preconceptions” for “our minds and our perspectives are shaped by personal experiences gained over a lifetime.”9See Kee Oon, Fact-Finding and Reality: A Judicial Decision-Making Primer (Academy Publishing: 2022), at 4. Given that reality, such unique insights into who Justice Phang is significantly elevates the rich discussions of the jurisprudence in the Book, for it provides a useful conceptual scaffold with which to better understand and appreciate much of the genesis of Justice Phang’s approach in the cases that he has decided.
  7. Perhaps the only thing that could have added to the Book would be if the readers were afforded the opportunity to hear from Justice Phang himself, in the form of a chapter or two where he sketches out his own musings on life, the law and society at large, and to detail how the journey he has traversed hitherto has informed his own jurisprudential approach. To be clear, this is not a criticism of the Book in any way – indeed, such a contribution from Justice Phang would have been impossible if only because the Book itself was launched at his Valedictory Reference and was, till then, kept under wraps from him.10See the Honourable the Chief Justice, “Address delivered for the book launch at the Valedictory Reference 2022” (URL: https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-address-delivered-for-the-book-launch-at-the-valedictory-reference-2022) This, however, does betray my hope that at some point of time in future, Justice Phang would pen down his thoughts in the form of a memoir of some sort11As is sometimes done by leading jurists elsewhere. See, for e.g. Rt Hon Lord Denning, The Family Story (Butterworths: 1981), which itself served as a useful complement to Jowell & McAuslan (eds), Lord Denning: The Judge and the Law (Sweet & Maxwell, 1984), which was structured along much more thematic lines similar to that of the Book. That said, “by nature and by training, a judge is generally loath to talk about his role and achievement as a judge”: Choo Han Teck, “A Drink at the Bar” (Book Review) (2022) 34 SAcLJ 716, at (14). to afford us an insight into the perspectives of a man who has contributed much to Singapore’s legal landscape and who has been central to the developmental and professional journey of the many who have worked with him, be it law clerks, academics or lawyers.
  8. On a personal note, I am privileged to count myself as one of those individuals, and I daresay that the many wonderful testimonies of Justice Phang found in the Book comport with my own experiences and interactions with him. As a law clerk, I had the pleasure of interacting with Justice Phang in the Supreme Court regularly during his first few years on the Bench. Each phone call from, and conversation with, Justice Phang was not just an invitation to chat on the matter you were assisting him on, but a broader offer of advice, guidance and assistance.12My observations in this regard cohere significantly with the Honourable the Chief Justice’s own reproduced remarks of the experiences of law clerks and Supreme Court Registry officers, as set out in the Book. See Sundaresh Menon, “Pursuing Justice and Justice Alone” in the Book, at page 27. When such conversation(s) centred on the law, the point of view you offered was always treated by him as an intellectual equal, though the credibility and rigor of his analysis and the careful manner in which he would dissect the various arguments relating to the issues at play meant that each of us law clerks invariably ended up agreeing with him. As an advocate who appeared before him, I invariably found Justice Phang well-prepared and ready to ask the incisive questions that often went straight to the heart of the issues in a case, while doing so in a gentle manner intended to put counsel at ease and to assure counsel that while he may be searing when it came to dissecting the legal issues, he would never take issue with the fact that, as an advocate, you sometimes necessarily had the unenviable task of making a difficult point. We have been blessed to have had him on the Supreme Court Bench. When asked (somewhat presciently it would now seem) by a local newspaper in 1982 as a graduand from the NUS Faculty of Law as to his views on a possible eventual appointment to the (Supreme Court) Bench, Justice Phang modestly noted at the time that “it is the highest honour to be conferred the judicial appointment but I really cannot see that far ahead right now.”13New Nation, “Andrew joins rare group of grads” (14 April 1982), as reproduced in the Book. The benefit of hindsight means that we can now see that far ahead with clarity and it is clear that for those of us who have had the privilege of interacting, working with, and appearing before, Justice Phang, the honour was, and remains, very much ours.
  9. I would therefore strongly commend this Book to everyone interested in understanding the longitudinal journey Singapore law has traversed in the past four decades. Justice Phang’s central role in legal developments during that time, first as an academic and then as a jurist, is undeniable and this Book carefully encapsulates not only how Justice Phang has made a mark on our legal system, but just as importantly, on how his values and personal philosophies have informed his own jurisprudential leanings. Much as was the case with the copy of Phang’s Law of Contract that I had purchased from my senior in 2001, you will invariably find yourself highlighting much of the Book given the unique insights it provides into some of Singapore’s most weighty jurisprudential developments in recent times, and into the heart and mind of one of their primary architects.

 

All views expressed and reflected in this article are those of the author and may not be reflective of the views of the Attorney-General’s Chambers.

Endnotes

Endnotes
1 * The author was a Justices’ Law Clerk in the Supreme Court from 2005 to 2007, during which time he worked with Justice Phang. The picture of the Book is reproduced with the kind permission of Academy Publishing.See Sundaresh Menon, “Pursuing Justice and Justice Alone” in Pursuing Justice and Justice Alone (Goh Yihan ed) (Academy Publishing: 2022) (“the Book”), at page 5.
2 See Alvin W.L See, “Common Sense, Pragmatism, and Contextual Awareness in Legal Reasoning: Justice Phang and Land Law” in the Book, at page 305.
3 The Book notes that the two areas of significance in law that Justice Phang had not written on are on military law and Muslim law. See Jerrold Soh, “Nuanced, Holistic and Measured: Justice Phang and the Empirical Development of Singapore Law” in the Book, at page 43. While this is true, in at least some facets of these two areas, Justice Phang’s judgments may nonetheless be of assistance – see for example, Mohamed Faizal Mohamed Abdul Kadir, “Muslim Law” (2015) 16 SAL Ann Rev 582, at (22.21) suggesting the force of observations made by Justice Phang in NK v NL (2007) 3 SLR(R) 743 to the Muslim law context.
4 This is broadly in line with the international flavour of his influence as an academic: see Jerrold Soh & Goh Yihan, “Theory and Practice Integrated: Justice Phang and Legal Scholarship” in the Book, at pages 72 to 73.
5 See the detailed discussion of this found in Howard Hunter, JW Carter and Rob Merkin KC, “A Principled Progression: Justice Phang and Contract Law” in the Book, at pages 188 – 193.
6 See Sundaresh Menon, “Pursuing Justice and Justice Alone” in the Book at page 18 – 19, and Gary Chan, “Justice Personified: Justice Phang and Tort Law” in the Book, at pages 465 – 468.
7 Yip Man & James Lee, “Bold Developments: Justice Phang and Equity and Trusts” in the Book, at page 285.
8 Jerrold Soh & Goh Yihan, “Theory and Practice Integrated: Justice Phang and Legal Scholarship” in the Book, at page 81.
9 See Kee Oon, Fact-Finding and Reality: A Judicial Decision-Making Primer (Academy Publishing: 2022), at 4.
10 See the Honourable the Chief Justice, “Address delivered for the book launch at the Valedictory Reference 2022” (URL: https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-address-delivered-for-the-book-launch-at-the-valedictory-reference-2022)
11 As is sometimes done by leading jurists elsewhere. See, for e.g. Rt Hon Lord Denning, The Family Story (Butterworths: 1981), which itself served as a useful complement to Jowell & McAuslan (eds), Lord Denning: The Judge and the Law (Sweet & Maxwell, 1984), which was structured along much more thematic lines similar to that of the Book. That said, “by nature and by training, a judge is generally loath to talk about his role and achievement as a judge”: Choo Han Teck, “A Drink at the Bar” (Book Review) (2022) 34 SAcLJ 716, at (14).
12 My observations in this regard cohere significantly with the Honourable the Chief Justice’s own reproduced remarks of the experiences of law clerks and Supreme Court Registry officers, as set out in the Book. See Sundaresh Menon, “Pursuing Justice and Justice Alone” in the Book, at page 27.
13 New Nation, “Andrew joins rare group of grads” (14 April 1982), as reproduced in the Book.

Second Chief Prosecutor, Attorney-General’s Chambers
LL.B. (Hons) (NUS); LL.M. (Harvard)