The Singapore Government is often said to be pragmatic in the extreme, perhaps even to a fault, and not in the least bit dogmatic or ideological. But I've always believed that when it comes to matters of consumer protection, it hews to an ideological adherence to corporatist free market ideals, preferring to leave things to the market instead of regulating to protect Singaporeans.
Two recent incidents bring this into sharp focus. Firstly, the slap-on-the-wrist by the MAS on financial institutions over the misselling of structured deposits, which I've posted about. Secondly, the Brookes Business School incident, where it now turns out that RMIT had complained to MOE as early as 2007.
The Brookes incident, and indeed all previous fraud cases involving private schools, fundamentally stem from MOE's previous reluctance to regulate the private education sector. Just like how MAS did not, and continues to decline to, closely regulate the sale of high-risk investment productsm, setting the stage for Singapore consumers to lose up to half a billion dollars. Just like how MND steadfastly refused to regulate property agents, until the sheer chutzpah of some ERA agents was exposed in court, and only then did the Ministry start talking about regulating the industry.
These instances demonstrate that when it comes to consumer matters, the Government would very much prefer to leave things to the free market, which is as good as saying that the Government would prefer not to regulate to protect consumers, presumably in the name of avoiding imposing additional compliance costs on businesses.
I've always wondered about that -- if they are not supposed to engage in prohibited conduct in the first place, then how much incremental costs would they incur, and should they not be incurring those compliance costs in the first place? The reasoning is just too unconvincing. It is nothing short of an abdication of a government's responsibility to protect consumers.
If one firmly and sincerely believes in protecting consumers, then one would surely adopt a proactive stance in doing the right thing, and not wait for multiple cases to occur before taking action. As mrbrown tweeted so succinctly, "Must more people kena then act ah?"
Showing posts with label consumer protection. Show all posts
Showing posts with label consumer protection. Show all posts
Tuesday, 21 July 2009
Sunday, 2 November 2008
OPQ 20 October 2008: Sale of Structured Financial Products
The topic of structured deposits dominated Question Time at this sitting last month. It was, and remains, very much in the news. I've reproduced all of the questions posed, and the Minister's responses, in complete form. I fully expect this issue to be revisited in Parliament in the coming months as well.
11. Mdm Halimah Yacob asked the Senior Minister (a) how does the Monetary Authority of Singapore (MAS) supervise financial institutions operating in Singapore to ensure that they fully comply with the regulatory framework requiring disclosures and proper business conduct when they market investment products to retail investors; (b) whether the existing laws and regulations are adequate to protect retail investors against such high-risk investment products; (c) whether MAS will be initiating any investigations into the conduct of financial institutions to ensure that they have conducted themselves appropriately when marketing and selling to retail investors; and (d) what more can be done to enhance safeguards for these investors.
12. Mdm Cynthia Phua asked the Senior Minister (a) how does the Monetary Authority of Singapore (MAS) (i) safeguard the interest of the man-in-the-street to ensure that they are aware of the complexity and high risk nature of the financial products they are investing in; and (ii) regulate banks and finance companies in the sale of high-risk and complex structured financial instruments so as to safeguard the capital sum invested by the man-in-the-street; (b) whether MAS will be able to provide the number of Singaporeans who lost their high-risk investments following the closure of the Lehman Brothers in the US; and (c) whether MAS will require banks to determine the risk tolerance and ensure that the contracted terms and conditions are understood by potential investors before the sale of such products.
13. Mr Low Thia Khiang asked the Senior Minister (a) whether the Monetary Authority of Singapore (MAS) will investigate how structured products linked to Lehman Brothers were marketed; and (b) if there is any misrepresentation, whether MAS will assist the affected investors in negotiating with the banks to ensure fair treatment for these investors.
14. Er Lee Bee Wah asked the Senior Minister (a) what are the terms of reference for the three independent consultants appointed by the financial institutions to look into the investors' complaints; (b) what are the procedures to ensure that future investors are not misinformed about high risk financial products; and (c) whether he is able to provide the information on how many of those who invested in these structured products linked to Lehman Brothers were elderly people or retirees.
15. Mr Siew Kum Hong asked the Senior Minister in view of the public concerns on the sale of structured products (a) what are the principles followed by the Monetary Authority of Singapore (MAS) in regulating financial institutions; (b) whether MAS is investigating the allegations that financial institutions have misrepresented and missold structured products to the public and, if so, what is the status of such investigations; and (c) why did MAS not appoint the three individuals reviewing certain financial institutions' internal processes, instead of leaving them to be appointed by the financial institutions and thereby permitting possible perceptions of conflicts of interests.
16. Mr Gautam Banerjee asked the Senior Minister whether more can be done to (i) improve the level of communication and disclosure particularly on credit and market risk when complicated structured investment products are sold to ordinary investors; and (ii) provide comprehensive product and ethics training to those marketing complicated structured products to retail investors.
The Minister for Trade and Industry (Mr Lim Hng Kiang) (for the Senior Minister): Mr Speaker, Sir, can I have your permission to take Question Nos. 11 to 16 together?
Mr Speaker: Yes.
Mr Lim Hng Kiang: Mr Speaker, Sir, Mdm Halimah Yacob, Mdm Cynthia Phua and Mr Siew Kum Hong have asked about the current regime that governs the sale of structured products to investors. Sir, the regulator, the financial institution, as well as the individual investor, all have a part to play in this regime. MAS's approach is one that balances regulation with the responsibility on the part of the institution to ensure that consumers are given a fair deal, and the responsibility on the part of the investor to understand the products he invests in.
MAS regulates the offer and distribution of financial products. Our approach is to require financial institutions and issuers to properly disclose the features and risks of investment products to investors. MAS has put in place the necessary infrastructure to support this approach. There are two key pieces of legislation - the Securities and Futures Act and the Financial Advisers Act.
The Securities and Futures Act (SFA) governs information disclosure that must accompany any offer of securities to the public. The issuer must include in the prospectus all information that an investor would reasonably need to make a proper assessment of the securities being offered. The issuer and its advisers are responsible for ensuring that the prospectus complies with the law. MAS checks, based on information provided by the issuer and its advisers, that the prospectus discloses the risk and product features, and that there are no false or misleading statements.
If MAS is satisfied, it will register the prospectus. MAS does not judge the merits of the investment. This is stated on the cover of the prospectus so that investors understand that the securities are not endorsed by MAS. This regime has been applied to structured products from 2004. MAS registered the prospectuses for the Lehman Minibond Programme, DBS High Notes 5 and Merrill Lynch Jubilee Series 3 LinkEarner Notes as they met the requirements for registration under the SFA.
The Financial Advisers Act regulates the sale and advisory process for financial products, and sets out the steps to be followed when giving advice on investment products. Unless an investor chooses to opt out of receiving advice, financial institutions (FIs) and their representatives must have a reasonable basis when recommending investments. In doing so, FIs must consider the investment objectives, financial situation and the needs of the investor. In other words, the FI and the financial advisor have to do a risk profiling of the investor.
MAS also expects the board and senior management of FIs to be responsible for ensuring their FIs deliver fair dealing outcomes to consumers, particularly with the needs of retail consumers in mind. MAS has published a set of good practices which FIs are encouraged to follow. For example, customers who are illiterate or not fluent in English should be accompanied by someone who is able to explain what is being presented by the representative. The representative's supervisor should also be present during the sales presentations. FIs are also encouraged to have supervisors review the recommendations made by representatives.
Investors must also play their part and take responsibility for their own investment decisions. MAS launched the MoneySENSE national financial education programme in 2003 to enhance the financial literacy of consumers. MoneySENSE aims to empower investors to make informed decisions. As investors, we must understand the products we intend to invest in and ask as many questions as needed. If we still do not understand the product or its risks sufficiently, we should not invest. Another sound principle is to diversify our investments and not put all our eggs in one basket.
The current regime is intended to achieve an appropriate balance and to avoid over-regulation or under-regulation. It recognises that investors have different needs and risk appetites, and that a one-size-fits-all rule is not desirable. As a practical matter, there are limits to which a regulator can determine the suitability of each individual class of products for particular types of investors. MAS' approach allows a wider range of investment options for Singaporeans to cater to their diverse needs. Our regulatory framework is in line with those in other major jurisdictions and we believe it is fundamentally sound.
Mdm Phua and Ms Lee asked about the extent to which Singaporeans have been affected by the Lehman-related products. MAS has released data on the profile of these investors. The total issue size of the Lehman Minibond Programme was S$508 million, of which S$375 million was sold to about 8,000 retail investors through nine distributors. For the Merrill Lynch Jubilee Series 3 LinkEarner Notes, S$23 million of the total S$28 million notes issued were sold to about 350 investors through six stockbroking firms. Over 80% of the Lehman Minibond Programme and Merrill Lynch Jubilee Series 3 LinkEarner noteholders invested up to S$50,000, with 28% having bought S$10,000 or less. In the case of DBS High Notes 5, over 1,400 investors bought S$103 million worth of notes. More than half of them invested S$50,000 or less.
It is clear that a good number of Singaporeans are affected by the current situation, and the amounts involved are not insignificant. We fully understand that affected investors are very anxious.
What MAS did from the start was to ensure that the FIs and the trustee communicate clearly with the investors and provide timely updates. MAS has been in close touch with the FIs and the trustee. For the Lehman Minibond Programme where Lehman Brothers is the swap counterparty, MAS has reminded HSBC Institutional Trust Services (Singapore) Ltd, the trustee, that it is to carefully consider all options and to act in the interest of the investors. The trustee is considering various options available, including the possibility of a new counterparty taking over the swaps. If a new counterparty is available, investors will have the opportunity to vote on this option. MAS will also appoint an independent financial adviser to help investors make an informed decision.
For DBS High Notes 5, DBS has appointed KPMG as an independent party to ensure a fair and transparent valuation process for determining the final redemption value. For some of these products, investors may be able to realise some residual value. There are others, such as the Merrill Lynch Jubilee Series 3 LinkEarner notes, where investors would not recover any value at all. Affected investors should also bear in mind that the determination of the final payout under some structured notes could take some time, due to the need to dispose of the underlying securities under current market conditions where liquidity is rather low. We should allow the process to take its course, as rushing into a 'fire sale' would not be in the interest of the investors. We expect the trustee to know whether options will be available to noteholders by the end of this week.
In dealing with complaints by investors, MAS' priority is to ensure that the process is fair. MAS, in consultation with the relevant FIs, identified three well-respected individuals who have been appointed to review the complaints handling and resolution processes of the FIs for these products.
The role of the independent parties is to determine whether the complaints handling and resolution processes are independent, fair and transparent. The terms of reference spell out what this means. First, each complainant must be given a fair opportunity to state his complaint. The complaint must be assessed by reviewers who are independent of the financial advisory arm of the institution. Second, where there is any evidence of mis-selling, there must be a process to surface this to the attention of the institution's senior management and to MAS. Third, the independent parties are to highlight to the institution's senior management any shortcomings in the FI's processes or in the execution of the process. Such shortcomings must be rectified, failing which MAS must be immediately notified.
MAS has also set a very clear timeline for the FIs to resolve the complaints. The FIs are expected to devote the necessary resources to deal with the complaints. All the FIs have also set up internal review panels which are chaired by their CEOs. The panel is expected to conduct a thorough review of each complaint and decide on a course of action within four weeks. The decision will then be communicated to the customer. MAS is keeping a close watch on the resolution process.
If investors are not satisfied with the outcome of the FIs' complaints resolution process, they can have their complaints referred to the Financial Industry Disputes Resolution Centre (FIDReC) for mediation or adjudication. FIDReC provides investors with an affordable and impartial avenue to pursue their claims. The FIDReC adjudicators are all well-respected professionals. The chairman of FIDReC is Mr Goh Joon Seng, a retired High Court judge. MAS has put in place a fast-track process for referrals to FIDReC. As over 80% of customers invested less than $50,000 or below, FIDReC is the right avenue for them to pursue their claims. In case of the affected structured notes, the FIs have also consented to FIDReC to hear all deserving cases, even those beyond $50,000.
Mr Siew has asked why MAS did not appoint the three independent parties instead of letting the FIs appoint them. MAS has full confidence that the three independent parties will carry out their work objectively. The terms of reference for these independent parties are set out by MAS. They are required to provide MAS with regular updates on the progress of the complaints review and an overall report at the end of the review. The three parties who have been appointed are highly-respected individuals, whose independence I do not think is questioned.
In summary, MAS has set out a clear three step dispute resolution process for the handling of complaints by investors in the affected structured notes. Any investor who genuinely believes that he has been mis-sold these products should take the following steps. First, he should lodge a complaint with the FI that sold him the product. The FI will arrange for him to be interviewed. Second, he should explain the details of his case fully to the FI to allow it to make a fair assessment of his case. Third, if he is not happy with the proposed resolution by the FI, he can refer the matter to FIDReC for independent mediation or adjudication. This is a serious and impartial process that MAS has put in place. Affected investors should follow these three simple steps to enable a fair resolution of their complaint.
Mdm Halimah Yacob, Mr Low and Mr Siew have also asked if MAS will investigate how these products were marketed and sold. MAS has said that where there is evidence of regulatory breaches, it will not hesitate to take firm regulatory actions against the FI or the representative. MAS has required the independent parties to highlight potential cases of mis-selling to MAS. A number of possible mis-selling cases have already been raised to MAS' attention. MAS is reviewing these cases. MAS has also confirmed it has been conducting formal inquiries into allegations of breaches of the law, inadequate internal controls by the FIs, or poor sales practices by their representatives. MAS will make an announcement of any actions it will be taking when the inquiries are completed.
Clearly, there is a range of investors who bought these products. Some are well-educated professionals. Others are sophisticated investors. The group that MAS is most concerned with are the vulnerable customers. MAS is focusing on cases of mis-selling to vulnerable customers and on cases where the products were clearly inappropriate for them given their circumstances. MAS has required the FIs to give priority to these cases. FIs should not take an overly legalistic approach to mis-selling in dealing with these cases. For cases where there are sufficient indications that the product was mis-sold or that it was clearly inappropriate given the investor's profile and circumstances, the FI should take responsibility. Several FIs have assured MAS that they will take full responsibility in such cases and we expect all FIs that have sold these products to take the same approach.
We must also bear in mind that the current financial environment is quite unprecedented. Stock markets have fallen sharply globally. Investments across a wide range of products have lost value, some more than others. For example, investors with foreign exchange structured deposits have lost about 25% due to depreciation of certain currencies. Any assessment of whether mis-selling occurred has to take into consideration circumstances at the time of the sale and not what we know now. For example, until July this year, Lehman's bonds were rated "A1" and "A" by Moody's and S&P respectively. As a result of the global financial crisis, institutions that many would have considered safe, have failed or needed to be bailed-out, taken-over or re-capitalised by their government.
Mr Speaker, Sir, Mdm Halimah Yacob and Mr Gautam Banerjee asked whether we could improve our procedures to enhance safeguards for retail investors. The current crisis has raised the need for MAS to review aspects of our regulatory and supervisory approach. Other countries are also doing so. MAS has announced that it will undertake a review of the marketing and sale of structured products. Some areas of review would include stronger suitability requirements for certain types of products, clearer product labelling and risk rating, and simpler descriptions of the features and risks of products so that they can be more easily understood. However, we need to be careful not to take a step backward by developing overly-prescriptive rules.
But regulation alone is not enough. The industry also has to do more. The board and senior management of FIs must be responsible for ensuring that investors get a fair deal. MAS is looking into how best to implement the Guidelines on Fair Dealing which we had earlier consulted upon. Mr Banerjee has also asked about improving training provided to persons who market structured products. Under the Financial Advisers Act, MAS requires financial adviser representatives to pass the Capital Markets and Financial Advisory Services examinations, which include modules on both rules and regulations, and product knowledge. Further, MAS expects these representatives to undergo continuing education to keep abreast of developments in the industry and acquire new skills and knowledge relevant to their activities. As part of its review, MAS will consider how these areas can be strengthened.
Finally, it is also important for investors to make well-informed decisions. Financial education is an ongoing process that requires sustained and collaborative efforts by all stakeholders. MoneySENSE has been collaborating with various partners to deliver financial education to students, working adults and seniors. Recent events have also highlighted the need to further strengthen our financial education efforts. To this end, as part of the MoneySENSE programme, MAS will be looking at ways to enhance investor education on investment products.
Mdm Halimah Yacob: Three supplementary questions, Sir.
Sir, I would like to ask the Minister under section 27 of the Financial Advisers Act, it is required that financial institutions, if they want to sell investment products to investors, they will have to look into the risk profile of the investors. Would the Minister agree that selling investment products which are very risky to retirees using their life savings is not an act that has taken into account the risk profile of the retiree? How does the MAS ensure compliance with section 27 of the Act by financial institutions?
My second question is this. The Minister had said that MAS would be investigating those instances of mis-selling. When will these investigations be completed?
My third question: the Minister had also said that MAS will be reviewing the rules with regard to sale of high-risk investment products to retail investors. When will the review of these rules be completed and, in the meantime, what happens? Are financial institutions allowed to continue to proceed to sell these high-risk investment products to retail investors?
Mr Lim Hng Kiang: Mr Speaker, Sir, as I explained just now, our rules and our guidelines do encourage the financial institutions and the financial advisers to undertake a risk profile of the investors when they want to put in their investments. Unfortunately, some of the investors signed the form to say that they do not need the investment advice and they opt out of this risk profiling exercise. And I have explained in my response, even if they have opted out of the process, we are encouraging the F1s to undertake in this review of the complaints a risk profile of the vulnerable investors and if the risk profile shows that it is inappropriate for them to undertake or to invest in such products, then the FIs will have to act accordingly.
The second question on when the mis-selling investigations would be completed and also when the review would be completed, here I would like to urge Members to be patient. This involves many cases. MAS is undertaking the investigation and the review, both of individual cases as well as a review of the system at large. For the individual cases, we also need to have enough cases to see whether there is a pattern of either the representative involved or the FI involved so that we can take the appropriate action. So MAS will not act just on individual cases. As they complete the investigation, I think it is better for us to take an overall view of the situation. So can I urge Members to be patient? MAS is doing all that is necessary to make sure that every complaint is adequately dealt with.
As I have explained, the three-step process - send in your complaint, within two weeks the FI will have to respond to you, complain to the FI either through phone, email or personal interview, within four weeks the FI must tell you the result. If you are not happy, approach the FIDReC.
Er Lee Bee Wah (Ang Mo Kio): Mr Speaker, Sir, I would like to ask Minister what does he mean by "investors who are vulnerable", what is the number, and whether these vulnerable investors would be able to get back 100% of their money.
Mr Lim Hng Kiang: Before we jump to compensation, can I say that there is a whole spectrum of investors. Obviously, there are investors who know what they are doing, very sophisticated investors, highly educated, have been doing this many, many times. On the other end, you have certain groups which we categorise as vulnerable investors and this is the definition or the characteristics of the vulnerable investors. It is stated in the guidelines that we sent to FIs.
Essentially, as the MD of MAS explained last week, it means people of a certain age, the more elderly, the retirees. Secondly, their proficiency in English. If they do not understand the product in English, if they are illiterate, then, of course, they may not be able to read the documents given to them. Thirdly, if they are investing for the first time compared to somebody who has been regularly investing, then this may be the first exposure, they do not know what they are in for. Fourthly, as a proportion of their funds, if they have limited funds and it is inappropriate for them, based on their risk profile, to invest in these funds and they invest a very high percentage of their funds, then obviously they have been wrongly advised. So these are some of the parameters that we put down as investors that we will have to pay special attention to as we work ourselves up the spectrum.
Let me assure Members every complaint will be dealt with and the FIs would deal with them impartially. But, at the same time, we do realise that they all fall into different categories and priority should be given to the more vulnerable groups so that we can address their concerns earlier.
Mr Gautam Banerjee (Nominated Member): Sir, the fact that we take the disclosure-based, tick-the-box-based approach to selling these products contributed to this problem as opposed to a principle-based approach where the financial institution takes a more holistic view of the issues, including the position that the customer finds itself? In the UK, for example, it is taking a more principle-based approach, and it is very difficult to buy these off high street banks. So, perhaps, in our review, do we consider whether we should move towards principle-based rather than disclosure-based, tick-the-box approach?
Mr Lim Hng Kiang: It is not useful to categorise the approach into different boxes. I think, basically, as I explained at the beginning of my reply, our regime requires everybody to play their role. First, there is a disclosure element. Second, the FIs must do the correct thing. When they manage the process, they must not have incentive scheme which incentivises the relationship managers to be overly aggressive, for example. Third, the investors must also have a responsibility, not just because it is a principle-based, then they do not have any responsibility. So I think our regime carved out the responsibility for every stakeholder and for it to work, all of us must play our role.
Having said that, of course, there is always room to improve on how we can ensure better disclosure and better clarity in the product or the risk classification of the product. On the FIs, having gone through this episode, I think they will know the pitfalls of the different types of selling approaches. And on investors, I think this is a useful episode to remember when the next time they approach the banks or when the banks approach them on investing in different higher risk products.
Mr Siew Kum Hong: Sir, I have three supplementary questions for the Minister.
My first question comes back to the question of timeline for MAS' investigations. Given that MAS has given the financial institutions four weeks, a timeline of four weeks to review each complaint, I think most consumers in Singapore would also expect MAS to commit to some kind of timeframe, perhaps a question of months. So I hope the Minister can give this House some assurance that there will be a commitment on the timeframe.
My second question, Sir, relates to the Minister's comments on the priority being given to vulnerable investors. I would like to ask the Minister whether this means that other investors, who have been subject to mis-selling by the financial institutions, will not receive due recourse because if the focus in the FAA is on appropriate conduct by the FIs, then it does not really matter whether or not the investor is vulnerable or not. The focus should be on mis-selling and not on the status of the investor.
Sir, my third question is on the manner of disclosure. The Minister has given a very detailed response in terms of how disclosures are captured in the prospectus and how the MAS reviews the prospectus. But, Sir, prospectuses are very complex, huge documents that very few people read. So I would like to ask the Minister whether or not MAS agrees that these kinds of disclosures are not meaningful and do not result in informed consent and also there is a very valid question on those who are not English-educated.
Sir, my final question is to ask the Minister how would he evaluate the performance of MAS as compared to, for example, the Hong Kong Monetary Authority which has faced very similar situation, very similar instances of consumers being mis-sold and yet seems to have been much more proactive in managing the situation?
Mr Lim Hng Kiang: The reason why I did not give a specific timeframe for MAS to complete its investigations is because we would like to have the full picture and we are also undertaking the review of the processes. But let me assure the House that the MAS is treating this issue with the utmost urgency and will expeditiously complete the review. We do not want to be bogged down by this. We have huge challenges and events happening in the global financial markets. We will definitely want to be able to resolve this as expeditiously as possible.
Secondly, before Mr Siew put his question, I have already explained that even though we have this category of vulnerable customers, all complaints would be dealt with in the same manner. If there is a mis-selling, whether it is to vulnerable customers or not, they will be taken care of.
Thirdly, on the manner of disclosure, I agree that the prospectus is a very complex document and there are many ways to improve the ways disclosure is done, but I do not think at the same time we should hide behind the fact that it is a complex document. If you look at any of the documents, I have copies of it here, I can show you, on the first page, the financial institutions will be very careful, in bold letters, to indicate all the key points. So, even though there are lots of pages of great legal and technical complexities, I can assure you that the financial institutions, when they put up the prospectus, in the first and second pages, will put up all the key parameters, and that is how we evaluate the extent and clarity of the disclosure.
Finally, Mr Siew asked about our approach compared to Hong Kong. I would say that, essentially, the approach is the same - it is a disclosure based. If it is a complaint, the institutions have to deal with the complaint. MAS is not being behind the curve. We have been very much involved. We have been telling the FIs how we expect them to deal with the case, and I think the FIs, to their credit, have also done a lot to make sure the system is working. True, for some FIs and some of the stockbroking firms, they may not have been geared up to handle hundreds of complaints overnight and their response in the early stages may not have been as rapid as we have wished. But I can assure Members that all the processes are now being geared up to deal with these problems.
Mr Speaker: Mr Low, last question.
Mr Low Thia Khiang: Thank you, Sir. Sir, the Minister's answer sounds like MAS is shouting across a river while watching a fire burning. Can the MAS take a more proactive approach by convening a Committee of Inquiry to deal with the matter directly? Is it fair for the Government to leave the investors, many of whom are retirees who have invested their savings, to deal with individual FIs and simply refer them to FIDReC? I would like to ask whether the Minister is aware that after the amendment to the Securities and Futures Act in October 2005, MAS exempted banks which continuously issue structured notes - those issued over the counter - from having to lodge a registered pricing statement with the MAS. So the banks felt that probably these structured notes could be issued without having to go through complex and extensive requirements, but by just disclosure based prospectus. Hence, more structured notes flooded the market, with the financial advisors selling to the retail investors. Is this not a result of less prudent regulation by the MAS?
Mr Speaker: Mr Low, are you making a speech or are you asking a question?
Mr Low Thia Khiang: No. I am asking the Minister a question: is the plight of the investors in these minibonds today not victims of the Government's decision to liberalise the financial market? The last question I would like to ask the Minister is whether MAS agrees that the products sold by the financial institutions are indeed low risk and safe products to invest.
Mr Lim Hng Kiang: Mr Speaker, Sir, what the MAS and Government want to avoid is to politicise this whole issue. Our main concern is to get the process done and to make sure that any investors who have been mis-sold or who have invested inappropriately in these products have due recourse and compensation. That has been our focus. If we were to have a Committee of Inquiry or if we were to take this to the courts, I can assure Members that nothing will move. All financial institutions, everybody, will freeze and take legal defensive actions and then the affected investors will have to wait weeks, if not months, maybe even years, before they can have recourse.
I do not think that is the best approach. That of course makes a lot of good headlines. It is grand standing. It scores a lot of political points. But it does not address the issue which is at the nub of this whole episode and, that is, we are concerned about investors being mis-sold, we are concerned about investors who have invested inappropriately, and therefore MAS' actions are all taken to address these two key issues.
His second question is about disclosure. If the FI puts out a programme of similar structured notes, I think it will be very inefficient for them every time they put up the series to have to go through the whole process of putting up the full prospectus. So our rules allow them, if they are putting up a programme of notes, like in the case of Lehman Minibond Series, and they are planning to come up with the Series of 1 to maybe 10 or 12, and these are all similar products, they put up a general disclosure through a prospectus. Then with each new series that they put up, they come up with a pricing statement which explains the risk and the price that they are setting. I think that is a better approach than to say that every time you put up one of a series of notes, you have to come up with the whole process of the full prospectus.
Finally, these products are not low risk or safe products. These are explained in the first or second page that these are structured products and it is in bold print that you can lose everything. So MAS has never said that these are risk-free products, low-risk products or safe products.
SALE OF STRUCTURED FINANCIAL PRODUCTS
(Regulating, and safeguarding of investors' interest)
(Regulating, and safeguarding of investors' interest)
11. Mdm Halimah Yacob asked the Senior Minister (a) how does the Monetary Authority of Singapore (MAS) supervise financial institutions operating in Singapore to ensure that they fully comply with the regulatory framework requiring disclosures and proper business conduct when they market investment products to retail investors; (b) whether the existing laws and regulations are adequate to protect retail investors against such high-risk investment products; (c) whether MAS will be initiating any investigations into the conduct of financial institutions to ensure that they have conducted themselves appropriately when marketing and selling to retail investors; and (d) what more can be done to enhance safeguards for these investors.
12. Mdm Cynthia Phua asked the Senior Minister (a) how does the Monetary Authority of Singapore (MAS) (i) safeguard the interest of the man-in-the-street to ensure that they are aware of the complexity and high risk nature of the financial products they are investing in; and (ii) regulate banks and finance companies in the sale of high-risk and complex structured financial instruments so as to safeguard the capital sum invested by the man-in-the-street; (b) whether MAS will be able to provide the number of Singaporeans who lost their high-risk investments following the closure of the Lehman Brothers in the US; and (c) whether MAS will require banks to determine the risk tolerance and ensure that the contracted terms and conditions are understood by potential investors before the sale of such products.
13. Mr Low Thia Khiang asked the Senior Minister (a) whether the Monetary Authority of Singapore (MAS) will investigate how structured products linked to Lehman Brothers were marketed; and (b) if there is any misrepresentation, whether MAS will assist the affected investors in negotiating with the banks to ensure fair treatment for these investors.
14. Er Lee Bee Wah asked the Senior Minister (a) what are the terms of reference for the three independent consultants appointed by the financial institutions to look into the investors' complaints; (b) what are the procedures to ensure that future investors are not misinformed about high risk financial products; and (c) whether he is able to provide the information on how many of those who invested in these structured products linked to Lehman Brothers were elderly people or retirees.
15. Mr Siew Kum Hong asked the Senior Minister in view of the public concerns on the sale of structured products (a) what are the principles followed by the Monetary Authority of Singapore (MAS) in regulating financial institutions; (b) whether MAS is investigating the allegations that financial institutions have misrepresented and missold structured products to the public and, if so, what is the status of such investigations; and (c) why did MAS not appoint the three individuals reviewing certain financial institutions' internal processes, instead of leaving them to be appointed by the financial institutions and thereby permitting possible perceptions of conflicts of interests.
16. Mr Gautam Banerjee asked the Senior Minister whether more can be done to (i) improve the level of communication and disclosure particularly on credit and market risk when complicated structured investment products are sold to ordinary investors; and (ii) provide comprehensive product and ethics training to those marketing complicated structured products to retail investors.
The Minister for Trade and Industry (Mr Lim Hng Kiang) (for the Senior Minister): Mr Speaker, Sir, can I have your permission to take Question Nos. 11 to 16 together?
Mr Speaker: Yes.
Mr Lim Hng Kiang: Mr Speaker, Sir, Mdm Halimah Yacob, Mdm Cynthia Phua and Mr Siew Kum Hong have asked about the current regime that governs the sale of structured products to investors. Sir, the regulator, the financial institution, as well as the individual investor, all have a part to play in this regime. MAS's approach is one that balances regulation with the responsibility on the part of the institution to ensure that consumers are given a fair deal, and the responsibility on the part of the investor to understand the products he invests in.
MAS regulates the offer and distribution of financial products. Our approach is to require financial institutions and issuers to properly disclose the features and risks of investment products to investors. MAS has put in place the necessary infrastructure to support this approach. There are two key pieces of legislation - the Securities and Futures Act and the Financial Advisers Act.
The Securities and Futures Act (SFA) governs information disclosure that must accompany any offer of securities to the public. The issuer must include in the prospectus all information that an investor would reasonably need to make a proper assessment of the securities being offered. The issuer and its advisers are responsible for ensuring that the prospectus complies with the law. MAS checks, based on information provided by the issuer and its advisers, that the prospectus discloses the risk and product features, and that there are no false or misleading statements.
If MAS is satisfied, it will register the prospectus. MAS does not judge the merits of the investment. This is stated on the cover of the prospectus so that investors understand that the securities are not endorsed by MAS. This regime has been applied to structured products from 2004. MAS registered the prospectuses for the Lehman Minibond Programme, DBS High Notes 5 and Merrill Lynch Jubilee Series 3 LinkEarner Notes as they met the requirements for registration under the SFA.
The Financial Advisers Act regulates the sale and advisory process for financial products, and sets out the steps to be followed when giving advice on investment products. Unless an investor chooses to opt out of receiving advice, financial institutions (FIs) and their representatives must have a reasonable basis when recommending investments. In doing so, FIs must consider the investment objectives, financial situation and the needs of the investor. In other words, the FI and the financial advisor have to do a risk profiling of the investor.
MAS also expects the board and senior management of FIs to be responsible for ensuring their FIs deliver fair dealing outcomes to consumers, particularly with the needs of retail consumers in mind. MAS has published a set of good practices which FIs are encouraged to follow. For example, customers who are illiterate or not fluent in English should be accompanied by someone who is able to explain what is being presented by the representative. The representative's supervisor should also be present during the sales presentations. FIs are also encouraged to have supervisors review the recommendations made by representatives.
Investors must also play their part and take responsibility for their own investment decisions. MAS launched the MoneySENSE national financial education programme in 2003 to enhance the financial literacy of consumers. MoneySENSE aims to empower investors to make informed decisions. As investors, we must understand the products we intend to invest in and ask as many questions as needed. If we still do not understand the product or its risks sufficiently, we should not invest. Another sound principle is to diversify our investments and not put all our eggs in one basket.
The current regime is intended to achieve an appropriate balance and to avoid over-regulation or under-regulation. It recognises that investors have different needs and risk appetites, and that a one-size-fits-all rule is not desirable. As a practical matter, there are limits to which a regulator can determine the suitability of each individual class of products for particular types of investors. MAS' approach allows a wider range of investment options for Singaporeans to cater to their diverse needs. Our regulatory framework is in line with those in other major jurisdictions and we believe it is fundamentally sound.
Mdm Phua and Ms Lee asked about the extent to which Singaporeans have been affected by the Lehman-related products. MAS has released data on the profile of these investors. The total issue size of the Lehman Minibond Programme was S$508 million, of which S$375 million was sold to about 8,000 retail investors through nine distributors. For the Merrill Lynch Jubilee Series 3 LinkEarner Notes, S$23 million of the total S$28 million notes issued were sold to about 350 investors through six stockbroking firms. Over 80% of the Lehman Minibond Programme and Merrill Lynch Jubilee Series 3 LinkEarner noteholders invested up to S$50,000, with 28% having bought S$10,000 or less. In the case of DBS High Notes 5, over 1,400 investors bought S$103 million worth of notes. More than half of them invested S$50,000 or less.
It is clear that a good number of Singaporeans are affected by the current situation, and the amounts involved are not insignificant. We fully understand that affected investors are very anxious.
What MAS did from the start was to ensure that the FIs and the trustee communicate clearly with the investors and provide timely updates. MAS has been in close touch with the FIs and the trustee. For the Lehman Minibond Programme where Lehman Brothers is the swap counterparty, MAS has reminded HSBC Institutional Trust Services (Singapore) Ltd, the trustee, that it is to carefully consider all options and to act in the interest of the investors. The trustee is considering various options available, including the possibility of a new counterparty taking over the swaps. If a new counterparty is available, investors will have the opportunity to vote on this option. MAS will also appoint an independent financial adviser to help investors make an informed decision.
For DBS High Notes 5, DBS has appointed KPMG as an independent party to ensure a fair and transparent valuation process for determining the final redemption value. For some of these products, investors may be able to realise some residual value. There are others, such as the Merrill Lynch Jubilee Series 3 LinkEarner notes, where investors would not recover any value at all. Affected investors should also bear in mind that the determination of the final payout under some structured notes could take some time, due to the need to dispose of the underlying securities under current market conditions where liquidity is rather low. We should allow the process to take its course, as rushing into a 'fire sale' would not be in the interest of the investors. We expect the trustee to know whether options will be available to noteholders by the end of this week.
In dealing with complaints by investors, MAS' priority is to ensure that the process is fair. MAS, in consultation with the relevant FIs, identified three well-respected individuals who have been appointed to review the complaints handling and resolution processes of the FIs for these products.
The role of the independent parties is to determine whether the complaints handling and resolution processes are independent, fair and transparent. The terms of reference spell out what this means. First, each complainant must be given a fair opportunity to state his complaint. The complaint must be assessed by reviewers who are independent of the financial advisory arm of the institution. Second, where there is any evidence of mis-selling, there must be a process to surface this to the attention of the institution's senior management and to MAS. Third, the independent parties are to highlight to the institution's senior management any shortcomings in the FI's processes or in the execution of the process. Such shortcomings must be rectified, failing which MAS must be immediately notified.
MAS has also set a very clear timeline for the FIs to resolve the complaints. The FIs are expected to devote the necessary resources to deal with the complaints. All the FIs have also set up internal review panels which are chaired by their CEOs. The panel is expected to conduct a thorough review of each complaint and decide on a course of action within four weeks. The decision will then be communicated to the customer. MAS is keeping a close watch on the resolution process.
If investors are not satisfied with the outcome of the FIs' complaints resolution process, they can have their complaints referred to the Financial Industry Disputes Resolution Centre (FIDReC) for mediation or adjudication. FIDReC provides investors with an affordable and impartial avenue to pursue their claims. The FIDReC adjudicators are all well-respected professionals. The chairman of FIDReC is Mr Goh Joon Seng, a retired High Court judge. MAS has put in place a fast-track process for referrals to FIDReC. As over 80% of customers invested less than $50,000 or below, FIDReC is the right avenue for them to pursue their claims. In case of the affected structured notes, the FIs have also consented to FIDReC to hear all deserving cases, even those beyond $50,000.
Mr Siew has asked why MAS did not appoint the three independent parties instead of letting the FIs appoint them. MAS has full confidence that the three independent parties will carry out their work objectively. The terms of reference for these independent parties are set out by MAS. They are required to provide MAS with regular updates on the progress of the complaints review and an overall report at the end of the review. The three parties who have been appointed are highly-respected individuals, whose independence I do not think is questioned.
In summary, MAS has set out a clear three step dispute resolution process for the handling of complaints by investors in the affected structured notes. Any investor who genuinely believes that he has been mis-sold these products should take the following steps. First, he should lodge a complaint with the FI that sold him the product. The FI will arrange for him to be interviewed. Second, he should explain the details of his case fully to the FI to allow it to make a fair assessment of his case. Third, if he is not happy with the proposed resolution by the FI, he can refer the matter to FIDReC for independent mediation or adjudication. This is a serious and impartial process that MAS has put in place. Affected investors should follow these three simple steps to enable a fair resolution of their complaint.
Mdm Halimah Yacob, Mr Low and Mr Siew have also asked if MAS will investigate how these products were marketed and sold. MAS has said that where there is evidence of regulatory breaches, it will not hesitate to take firm regulatory actions against the FI or the representative. MAS has required the independent parties to highlight potential cases of mis-selling to MAS. A number of possible mis-selling cases have already been raised to MAS' attention. MAS is reviewing these cases. MAS has also confirmed it has been conducting formal inquiries into allegations of breaches of the law, inadequate internal controls by the FIs, or poor sales practices by their representatives. MAS will make an announcement of any actions it will be taking when the inquiries are completed.
Clearly, there is a range of investors who bought these products. Some are well-educated professionals. Others are sophisticated investors. The group that MAS is most concerned with are the vulnerable customers. MAS is focusing on cases of mis-selling to vulnerable customers and on cases where the products were clearly inappropriate for them given their circumstances. MAS has required the FIs to give priority to these cases. FIs should not take an overly legalistic approach to mis-selling in dealing with these cases. For cases where there are sufficient indications that the product was mis-sold or that it was clearly inappropriate given the investor's profile and circumstances, the FI should take responsibility. Several FIs have assured MAS that they will take full responsibility in such cases and we expect all FIs that have sold these products to take the same approach.
We must also bear in mind that the current financial environment is quite unprecedented. Stock markets have fallen sharply globally. Investments across a wide range of products have lost value, some more than others. For example, investors with foreign exchange structured deposits have lost about 25% due to depreciation of certain currencies. Any assessment of whether mis-selling occurred has to take into consideration circumstances at the time of the sale and not what we know now. For example, until July this year, Lehman's bonds were rated "A1" and "A" by Moody's and S&P respectively. As a result of the global financial crisis, institutions that many would have considered safe, have failed or needed to be bailed-out, taken-over or re-capitalised by their government.
Mr Speaker, Sir, Mdm Halimah Yacob and Mr Gautam Banerjee asked whether we could improve our procedures to enhance safeguards for retail investors. The current crisis has raised the need for MAS to review aspects of our regulatory and supervisory approach. Other countries are also doing so. MAS has announced that it will undertake a review of the marketing and sale of structured products. Some areas of review would include stronger suitability requirements for certain types of products, clearer product labelling and risk rating, and simpler descriptions of the features and risks of products so that they can be more easily understood. However, we need to be careful not to take a step backward by developing overly-prescriptive rules.
But regulation alone is not enough. The industry also has to do more. The board and senior management of FIs must be responsible for ensuring that investors get a fair deal. MAS is looking into how best to implement the Guidelines on Fair Dealing which we had earlier consulted upon. Mr Banerjee has also asked about improving training provided to persons who market structured products. Under the Financial Advisers Act, MAS requires financial adviser representatives to pass the Capital Markets and Financial Advisory Services examinations, which include modules on both rules and regulations, and product knowledge. Further, MAS expects these representatives to undergo continuing education to keep abreast of developments in the industry and acquire new skills and knowledge relevant to their activities. As part of its review, MAS will consider how these areas can be strengthened.
Finally, it is also important for investors to make well-informed decisions. Financial education is an ongoing process that requires sustained and collaborative efforts by all stakeholders. MoneySENSE has been collaborating with various partners to deliver financial education to students, working adults and seniors. Recent events have also highlighted the need to further strengthen our financial education efforts. To this end, as part of the MoneySENSE programme, MAS will be looking at ways to enhance investor education on investment products.
Mdm Halimah Yacob: Three supplementary questions, Sir.
Sir, I would like to ask the Minister under section 27 of the Financial Advisers Act, it is required that financial institutions, if they want to sell investment products to investors, they will have to look into the risk profile of the investors. Would the Minister agree that selling investment products which are very risky to retirees using their life savings is not an act that has taken into account the risk profile of the retiree? How does the MAS ensure compliance with section 27 of the Act by financial institutions?
My second question is this. The Minister had said that MAS would be investigating those instances of mis-selling. When will these investigations be completed?
My third question: the Minister had also said that MAS will be reviewing the rules with regard to sale of high-risk investment products to retail investors. When will the review of these rules be completed and, in the meantime, what happens? Are financial institutions allowed to continue to proceed to sell these high-risk investment products to retail investors?
Mr Lim Hng Kiang: Mr Speaker, Sir, as I explained just now, our rules and our guidelines do encourage the financial institutions and the financial advisers to undertake a risk profile of the investors when they want to put in their investments. Unfortunately, some of the investors signed the form to say that they do not need the investment advice and they opt out of this risk profiling exercise. And I have explained in my response, even if they have opted out of the process, we are encouraging the F1s to undertake in this review of the complaints a risk profile of the vulnerable investors and if the risk profile shows that it is inappropriate for them to undertake or to invest in such products, then the FIs will have to act accordingly.
The second question on when the mis-selling investigations would be completed and also when the review would be completed, here I would like to urge Members to be patient. This involves many cases. MAS is undertaking the investigation and the review, both of individual cases as well as a review of the system at large. For the individual cases, we also need to have enough cases to see whether there is a pattern of either the representative involved or the FI involved so that we can take the appropriate action. So MAS will not act just on individual cases. As they complete the investigation, I think it is better for us to take an overall view of the situation. So can I urge Members to be patient? MAS is doing all that is necessary to make sure that every complaint is adequately dealt with.
As I have explained, the three-step process - send in your complaint, within two weeks the FI will have to respond to you, complain to the FI either through phone, email or personal interview, within four weeks the FI must tell you the result. If you are not happy, approach the FIDReC.
Er Lee Bee Wah (Ang Mo Kio): Mr Speaker, Sir, I would like to ask Minister what does he mean by "investors who are vulnerable", what is the number, and whether these vulnerable investors would be able to get back 100% of their money.
Mr Lim Hng Kiang: Before we jump to compensation, can I say that there is a whole spectrum of investors. Obviously, there are investors who know what they are doing, very sophisticated investors, highly educated, have been doing this many, many times. On the other end, you have certain groups which we categorise as vulnerable investors and this is the definition or the characteristics of the vulnerable investors. It is stated in the guidelines that we sent to FIs.
Essentially, as the MD of MAS explained last week, it means people of a certain age, the more elderly, the retirees. Secondly, their proficiency in English. If they do not understand the product in English, if they are illiterate, then, of course, they may not be able to read the documents given to them. Thirdly, if they are investing for the first time compared to somebody who has been regularly investing, then this may be the first exposure, they do not know what they are in for. Fourthly, as a proportion of their funds, if they have limited funds and it is inappropriate for them, based on their risk profile, to invest in these funds and they invest a very high percentage of their funds, then obviously they have been wrongly advised. So these are some of the parameters that we put down as investors that we will have to pay special attention to as we work ourselves up the spectrum.
Let me assure Members every complaint will be dealt with and the FIs would deal with them impartially. But, at the same time, we do realise that they all fall into different categories and priority should be given to the more vulnerable groups so that we can address their concerns earlier.
Mr Gautam Banerjee (Nominated Member): Sir, the fact that we take the disclosure-based, tick-the-box-based approach to selling these products contributed to this problem as opposed to a principle-based approach where the financial institution takes a more holistic view of the issues, including the position that the customer finds itself? In the UK, for example, it is taking a more principle-based approach, and it is very difficult to buy these off high street banks. So, perhaps, in our review, do we consider whether we should move towards principle-based rather than disclosure-based, tick-the-box approach?
Mr Lim Hng Kiang: It is not useful to categorise the approach into different boxes. I think, basically, as I explained at the beginning of my reply, our regime requires everybody to play their role. First, there is a disclosure element. Second, the FIs must do the correct thing. When they manage the process, they must not have incentive scheme which incentivises the relationship managers to be overly aggressive, for example. Third, the investors must also have a responsibility, not just because it is a principle-based, then they do not have any responsibility. So I think our regime carved out the responsibility for every stakeholder and for it to work, all of us must play our role.
Having said that, of course, there is always room to improve on how we can ensure better disclosure and better clarity in the product or the risk classification of the product. On the FIs, having gone through this episode, I think they will know the pitfalls of the different types of selling approaches. And on investors, I think this is a useful episode to remember when the next time they approach the banks or when the banks approach them on investing in different higher risk products.
Mr Siew Kum Hong: Sir, I have three supplementary questions for the Minister.
My first question comes back to the question of timeline for MAS' investigations. Given that MAS has given the financial institutions four weeks, a timeline of four weeks to review each complaint, I think most consumers in Singapore would also expect MAS to commit to some kind of timeframe, perhaps a question of months. So I hope the Minister can give this House some assurance that there will be a commitment on the timeframe.
My second question, Sir, relates to the Minister's comments on the priority being given to vulnerable investors. I would like to ask the Minister whether this means that other investors, who have been subject to mis-selling by the financial institutions, will not receive due recourse because if the focus in the FAA is on appropriate conduct by the FIs, then it does not really matter whether or not the investor is vulnerable or not. The focus should be on mis-selling and not on the status of the investor.
Sir, my third question is on the manner of disclosure. The Minister has given a very detailed response in terms of how disclosures are captured in the prospectus and how the MAS reviews the prospectus. But, Sir, prospectuses are very complex, huge documents that very few people read. So I would like to ask the Minister whether or not MAS agrees that these kinds of disclosures are not meaningful and do not result in informed consent and also there is a very valid question on those who are not English-educated.
Sir, my final question is to ask the Minister how would he evaluate the performance of MAS as compared to, for example, the Hong Kong Monetary Authority which has faced very similar situation, very similar instances of consumers being mis-sold and yet seems to have been much more proactive in managing the situation?
Mr Lim Hng Kiang: The reason why I did not give a specific timeframe for MAS to complete its investigations is because we would like to have the full picture and we are also undertaking the review of the processes. But let me assure the House that the MAS is treating this issue with the utmost urgency and will expeditiously complete the review. We do not want to be bogged down by this. We have huge challenges and events happening in the global financial markets. We will definitely want to be able to resolve this as expeditiously as possible.
Secondly, before Mr Siew put his question, I have already explained that even though we have this category of vulnerable customers, all complaints would be dealt with in the same manner. If there is a mis-selling, whether it is to vulnerable customers or not, they will be taken care of.
Thirdly, on the manner of disclosure, I agree that the prospectus is a very complex document and there are many ways to improve the ways disclosure is done, but I do not think at the same time we should hide behind the fact that it is a complex document. If you look at any of the documents, I have copies of it here, I can show you, on the first page, the financial institutions will be very careful, in bold letters, to indicate all the key points. So, even though there are lots of pages of great legal and technical complexities, I can assure you that the financial institutions, when they put up the prospectus, in the first and second pages, will put up all the key parameters, and that is how we evaluate the extent and clarity of the disclosure.
Finally, Mr Siew asked about our approach compared to Hong Kong. I would say that, essentially, the approach is the same - it is a disclosure based. If it is a complaint, the institutions have to deal with the complaint. MAS is not being behind the curve. We have been very much involved. We have been telling the FIs how we expect them to deal with the case, and I think the FIs, to their credit, have also done a lot to make sure the system is working. True, for some FIs and some of the stockbroking firms, they may not have been geared up to handle hundreds of complaints overnight and their response in the early stages may not have been as rapid as we have wished. But I can assure Members that all the processes are now being geared up to deal with these problems.
Mr Speaker: Mr Low, last question.
Mr Low Thia Khiang: Thank you, Sir. Sir, the Minister's answer sounds like MAS is shouting across a river while watching a fire burning. Can the MAS take a more proactive approach by convening a Committee of Inquiry to deal with the matter directly? Is it fair for the Government to leave the investors, many of whom are retirees who have invested their savings, to deal with individual FIs and simply refer them to FIDReC? I would like to ask whether the Minister is aware that after the amendment to the Securities and Futures Act in October 2005, MAS exempted banks which continuously issue structured notes - those issued over the counter - from having to lodge a registered pricing statement with the MAS. So the banks felt that probably these structured notes could be issued without having to go through complex and extensive requirements, but by just disclosure based prospectus. Hence, more structured notes flooded the market, with the financial advisors selling to the retail investors. Is this not a result of less prudent regulation by the MAS?
Mr Speaker: Mr Low, are you making a speech or are you asking a question?
Mr Low Thia Khiang: No. I am asking the Minister a question: is the plight of the investors in these minibonds today not victims of the Government's decision to liberalise the financial market? The last question I would like to ask the Minister is whether MAS agrees that the products sold by the financial institutions are indeed low risk and safe products to invest.
Mr Lim Hng Kiang: Mr Speaker, Sir, what the MAS and Government want to avoid is to politicise this whole issue. Our main concern is to get the process done and to make sure that any investors who have been mis-sold or who have invested inappropriately in these products have due recourse and compensation. That has been our focus. If we were to have a Committee of Inquiry or if we were to take this to the courts, I can assure Members that nothing will move. All financial institutions, everybody, will freeze and take legal defensive actions and then the affected investors will have to wait weeks, if not months, maybe even years, before they can have recourse.
I do not think that is the best approach. That of course makes a lot of good headlines. It is grand standing. It scores a lot of political points. But it does not address the issue which is at the nub of this whole episode and, that is, we are concerned about investors being mis-sold, we are concerned about investors who have invested inappropriately, and therefore MAS' actions are all taken to address these two key issues.
His second question is about disclosure. If the FI puts out a programme of similar structured notes, I think it will be very inefficient for them every time they put up the series to have to go through the whole process of putting up the full prospectus. So our rules allow them, if they are putting up a programme of notes, like in the case of Lehman Minibond Series, and they are planning to come up with the Series of 1 to maybe 10 or 12, and these are all similar products, they put up a general disclosure through a prospectus. Then with each new series that they put up, they come up with a pricing statement which explains the risk and the price that they are setting. I think that is a better approach than to say that every time you put up one of a series of notes, you have to come up with the whole process of the full prospectus.
Finally, these products are not low risk or safe products. These are explained in the first or second page that these are structured products and it is in bold print that you can lose everything. So MAS has never said that these are risk-free products, low-risk products or safe products.
Saturday, 1 November 2008
OPQ 15 September 2008: Consumer Protection (Fair Trading) Act
I filed this OPQ for the September sitting, to follow-up on a point I made in August in my speech on the Consumer Protection (Fair Trading) (Amendment) Bill, which the MOS for Trade and Industry was not able to reply to. It was placed too far down the order for an oral reply, so the reply below is the Minister's prepared written answer.
The question of the carve-out is a somewhat technical area, but one worth paying attention to. And I think the events around the Lehman-linked structured products would have raised some legitimate questions about whether MAS is as focused on consumer protection as consumers would like, and if not, whether it is appropriate to carve MAS-regulated products and services out of the CPFTA then.
In addition, this question illustrates a growing trend in Singapore legislation. Increasingly, laws are being drafted such that the principles are set out in the statute itself, but the Minister is empowered to provide for details and exceptions in subsidiary legislation (i.e. regulations), which do not require Parliamentary assent.
This may be efficient from an administrative perspective, but this instance demonstrates how it can, in a way, undermine the debate in Parliament. After all, we are in Parliament debating changes to the CPFTA, and one of the major changes is the inclusion of financial products and services in the CPFTA, and yet they are being exempted from a major plank of the CPFTA empowering consumer protection bodies to take action against errant traders by way of regulations -- something not apparent from the legislation itself, and also something that the MOS, moving the bill for second reading and debate in Parliament, did not disclose. To be clear, I am not saying that there was anything sinister or untoward or improper, but clearly this is not a desirable state of affairs as it does not allow for a comprehensive debate on the changes that will be introduced.
Mr Siew Kum Hong: To ask the Minister for Trade and Industry (a) whether the Government intends to exclude any financial products and services from the Consumer Protection (Fair Trading) Act; (b) if so, how will such exclusions protect and benefit consumers; and (c) how will the new provisions governing a stay of proceedings impact consumers.
Mr Lim Hng Kiang:
The Consumer Protection (Fair Trading) Act or CPFTA was recently amended to include financial product and services. With the amendment, the CPFTA will now also protect consumers against unfair practices in transactions involving financial products and services.
However, financial institutions regulated by the Monetary Authority of Singapore (MAS) will not be subject to two specific provisions in the CPFTA that empower specified bodies (CASE and STB as stipulated in the CPFTA) to take action against errant traders. This is because MAS, as the regulator, is in a better position to enforce compliance with the law by taking formal regulatory actions against these institutions for regulatory breaches as well as require them to improve their internal compliance processes and procedures. There is therefore no need for a specified body to replicate MAS’ enforcement role. All other CPFTA provisions will apply to these financial institutions, and consumers will continue to have the right to seek civil remedies through the CPFTA.
Section 6 of the CPFTA allows the parties to a court action against a trader for an unfair practice, the option of applying to stay the proceedings when a specified body has applied to a court for a declaration or injunction relating to the same unfair practice. Consumers benefit from this provision as it allows them to rely on the outcome of the specified body’s action. For example, if the court agrees with the specified body that the trader had engaged in an unfair practice, the consumer need not re-argue in court the issue of whether the practice was unfair. The result of the specified body’s action may even prompt the trader to settle with the consumer. This process will allow both parties to save on the cost and effort of consumer actions.
The question of the carve-out is a somewhat technical area, but one worth paying attention to. And I think the events around the Lehman-linked structured products would have raised some legitimate questions about whether MAS is as focused on consumer protection as consumers would like, and if not, whether it is appropriate to carve MAS-regulated products and services out of the CPFTA then.
In addition, this question illustrates a growing trend in Singapore legislation. Increasingly, laws are being drafted such that the principles are set out in the statute itself, but the Minister is empowered to provide for details and exceptions in subsidiary legislation (i.e. regulations), which do not require Parliamentary assent.
This may be efficient from an administrative perspective, but this instance demonstrates how it can, in a way, undermine the debate in Parliament. After all, we are in Parliament debating changes to the CPFTA, and one of the major changes is the inclusion of financial products and services in the CPFTA, and yet they are being exempted from a major plank of the CPFTA empowering consumer protection bodies to take action against errant traders by way of regulations -- something not apparent from the legislation itself, and also something that the MOS, moving the bill for second reading and debate in Parliament, did not disclose. To be clear, I am not saying that there was anything sinister or untoward or improper, but clearly this is not a desirable state of affairs as it does not allow for a comprehensive debate on the changes that will be introduced.
CONSUMER PROTECTION (FAIR TRADING) ACT
(Inclusion of Financial Products and Services)
(Inclusion of Financial Products and Services)
Mr Siew Kum Hong: To ask the Minister for Trade and Industry (a) whether the Government intends to exclude any financial products and services from the Consumer Protection (Fair Trading) Act; (b) if so, how will such exclusions protect and benefit consumers; and (c) how will the new provisions governing a stay of proceedings impact consumers.
Mr Lim Hng Kiang:
The Consumer Protection (Fair Trading) Act or CPFTA was recently amended to include financial product and services. With the amendment, the CPFTA will now also protect consumers against unfair practices in transactions involving financial products and services.
However, financial institutions regulated by the Monetary Authority of Singapore (MAS) will not be subject to two specific provisions in the CPFTA that empower specified bodies (CASE and STB as stipulated in the CPFTA) to take action against errant traders. This is because MAS, as the regulator, is in a better position to enforce compliance with the law by taking formal regulatory actions against these institutions for regulatory breaches as well as require them to improve their internal compliance processes and procedures. There is therefore no need for a specified body to replicate MAS’ enforcement role. All other CPFTA provisions will apply to these financial institutions, and consumers will continue to have the right to seek civil remedies through the CPFTA.
Section 6 of the CPFTA allows the parties to a court action against a trader for an unfair practice, the option of applying to stay the proceedings when a specified body has applied to a court for a declaration or injunction relating to the same unfair practice. Consumers benefit from this provision as it allows them to rely on the outcome of the specified body’s action. For example, if the court agrees with the specified body that the trader had engaged in an unfair practice, the consumer need not re-argue in court the issue of whether the practice was unfair. The result of the specified body’s action may even prompt the trader to settle with the consumer. This process will allow both parties to save on the cost and effort of consumer actions.
Thursday, 30 October 2008
Speech on Consumer Protection (Fair Trading) (Amendment) Bill: 25 August 2008
When I put my name forward for selection as a NMP, I had to submit a supporting essay. One of the things I wanted to speak up on was consumer protection issues. I didn't have much opportunity, at least until this bill came along (and now, unfortunately, the Lehman-linked structured deposits as well).
I was fortunate to have Sze Yong's assistance on this bill. He previously worked in CASE, and so had a strong personal interest in this area and also very helpful insights into the amendment bill. He has since moved on to do something else, and I wish him all the best, but he will be missed.
The video and text of my speech are below. I've also reproduced the Minister of State's resposnes to my speech.
Video of speech:
Mr Siew Kum Hong: Mr Deputy Speaker, Sir, I rise in support of the Bill.
The Consumer Protection (Fair Trading) Act took effect on 1st March 2004. Consumers and businesses have had over four years to become familiar with the Act with what is permissible under the Act and what is not. The Consumers' Association of Singapore, or CASE, as a specified body under the Act, has played a key role in giving teeth to the Act. This update of the Act is therefore timely.
While any enhancement to consumer protection is praiseworthy and to be welcomed, the Amendment Bill is nevertheless not perfect. I will touch on four areas.
Firstly, the Amendment Bill expands the jurisdiction of the Act to include financial products and services, motor vehicle sale contracts and timeshare related contracts. The maximum quantum for claims under the Act will also be increased from $20,000 to $30,000.
Sir, the inclusion of motor vehicle sale contract is timely and much needed. However, the amendments do not adequately address the issue of lemon cars which are new cars with many defects and problems. This is essentially the sale of a fundamentally defective product to a consumer.
While the purchase of a car from a car dealer will appear to be covered by the amended Act, the amended prescribed limit of $30,000 is inadequate. It seems arbitrary to me that the purchaser of a very cheap car can get proper redress if it is a lemon but not the majority of car buyers.
Here, I think it is important to note that $30,000 would be a very low price for a car, even for second-hand cars. It is not clear if lemon car cases are common. But this discrimination does not seem right in principle.
Financial products and services are also being brought under the Act. My first point is that even the amended prescribed limit for claims of $30,000 may be too low for claims in respect of such products and services. By way of comparison, the Financial Industry Disputes Resolution Centre, or FIDReC, hears cases with amounts of up to $100,000 for disputes between insured persons and insurers and $50,000 for other disputes, including disputes between banks and consumers. In fact, from the FIDReC Annual Report for 2006-2007, it seems that financial institutions have voluntarily submitted to FIDReC jurisdiction for disputes over amounts exceeding $100,000, such that the biggest claim adjudicated by FIDReC in its 2006-2007 financial year was actually $729,000.
But I am more concerned that, despite what is contained in the Amendment Bill, most financial products and services may end up being excluded from the ambit of the Act. According to the public consultation exercise conducted by the Ministry last year, the Ministry's intent was to exclude from the Act by way of regulations all financial products and services regulated by the Monetary Authority of Singapore.
What this means is that even if, today, this House passes the Amendment Bill to include financial products and services under the Act, tomorrow, the Minister may issue regulations that exclude the bulk of such products and services from the Act. I hope that that will not be the case.
Sir, in last year's public consultation exercise, the Ministry stated, and I quote, "MAS already monitors the financial services industry closely in its capacity as the regulator. Furthermore, MAS has regulatory and enforcement powers against financial institutions and representatives if they breach MAS' administered laws."
While I am sure that the MAS considers the interest of consumers when acting as the regulator, it nevertheless has other priorities as well. Furthermore, the Act contains important features that are absent from the MAS' regime.
Consumers have a private right of action against suppliers. There is the voluntary compliance agreement which can include provisions requiring the supplier in question to compensate consumers who have suffered loss or damage resulting from the unfair practice. CASE is also empowered to apply to the court for a declaration or injunction against offending merchants and the decisions of the court are subject to appeal and public scrutiny. These are all essential enforcement mechanisms implemented by the Act but absent from the MAS' regulatory regime. Crucially, many of these features relate to the compensation to consumers.
Sir, we are here today to debate the Consumer Protection (Fair Trading) Act. Let me repeat: consumer protection. On the other hand, MAS administers a regime to regulate banks and financial institutions. It may be fine for regulating the financial industry, but does it protect consumers? It certainly does not provide for compensation to consumers.
Regulation of merchants' behaviour is fundamentally different from compensation to consumers. The Consumer Protection (Fair Trading) Act encompasses both aspects. But the MAS-administered regime provides only for the former and not the latter. After all, if the MAS-administered regime was sufficient to protect the consumers, then why amend the First Schedule to the Act to bring financial products and services under the Act in the first place?
It would be highly disappointing if any financial products or services are excluded from the Act simply because they are regulated by the MAS. That would render completely pointless the inclusion of financial products and services into the Act. Many believe that Singapore is overly pro-business and too lacking in consumer protection. Such a move would simply prove such views to be true.
Therefore, I hope that the Minister will inform this House whether MAS-regulated financial products and services will subsequently be excluded from the Act by way of regulations and, if so, explain why and how such a move will nevertheless benefit and protect consumers.
Sir, my second point relates to clause 3 of the Amendment Bill. It amends the Act so that where a consumer has commenced legal proceedings against a merchant and subsequently CASE or a specified body applies for a declaration of injunction against that merchant, either the consumer or the merchant may apply to the court for a stay of the proceedings, pending the resolution of the application. It seems to me that the supplier is far more likely than the consumer to exercise this right. There are a number of problems with such a mechanism.
Firstly, it seems to me inherently unfair that a consumer's course of action against a merchant who has engaged in unfair practices can be held hostage to a separate application by a specified body. As the saying goes, "Justice delayed is justice denied."
I understand that, in most cases, the consumer would already have approached CASE before commencing legal proceedings against the merchant and, obviously, he was not willing to rely on CASE. What happens if the merchant dissipates his assets, pending the resolution of CASE's application? The consumer would then have been deprived of his recourse against the merchant through no fault of his own.
If the worry is of conflicting outcomes between the consumer's case and the application to the court for an injunction or declaration, then an alternative approach could be to declare that the decision in the consumer's case will not affect and have no precedential value in the other case.
Another approach that is fairer than what is in the Amendment Bill will be to allow only the consumer and not the merchant to apply to the court for a stay of the legal proceedings so the consumer can choose for himself whether or not he would like to wait for the outcome of CASE's application.
The new section 6(9) of the Act is also unfair to consumers. This provision permits the court, acting on its own motion, to discontinue proceedings that have been stayed, if there are no further steps in the proceedings for two years.
This is regardless of the status of the application by a specified body for a declaration of injunction. In other words, the stayed proceedings can be discontinued even if the other application drags for more than two years and remains unresolved.
Sir, justice should not be held hostage to the court's desire to clear their docket of outstanding cases, especially where the legal proceedings were stayed through no fault of and against the wishes of a consumer. While the Amendment Bill does specify that the discontinuance is without prejudice to the consumer's right to reinstate the action, it seems to me unfair that the consumer, and even the supplier, should have to bear the cost and inconvenience of effecting a reinstatement.
On a related note, in light of the power of the court to discontinue proceedings if no steps are taken for two years, the Act should require either the court or the supplier to notify the consumer of the outcome of the application. The consumer may not be able to monitor the other application and so may not be aware of its outcome and the possible additional steps that he can or should take.
Sir, my third point concerns the Small Claims Tribunal. The amendments will effectively expand the jurisdiction and caseload of the Tribunal. I trust that the Ministry and the Subordinate Courts will ensure that the Tribunal is appropriately staffed and equipped to handle this expansion.
I would also like to propose that decisions of the Small Claims Tribunal, at least those in proceedings commenced under this Act, be published. Decisions of the Tribunal are currently not published, so consumers have little guidance as to the relevant factors that the Tribunal will consider when coming to a decision.
I have received some troubling anecdotal feedback about the Small Claims Tribunal.
Firstly, the Tribunal's decisions are inconsistent. The Tribunal also seems to construe "services" very narrowly, as having to require skill and labour. Accordingly, it seems that the Tribunal has ruled that cases, eg, car rental disputes, fall outside its jurisdiction which, in my view, runs contrary to the clear intent of the Act and a purposeful construction of the term "services".
I have also been told that some businesses have had so many complaints against them that their representatives before the Tribunal have become extremely experienced, thereby facing lay consumers who may well be appearing in a court setting for the very first time at a severe disadvantage when they appear before the Tribunal.
Sir, I believe in the usefulness of the Small Claims Tribunal where lawyers are not allowed and so I support in principle the central role of the Small Claims Tribunal in the Act. However, it seems to me necessary for the Tribunal to publish its decisions or, at the very least, summaries or digests of cases. This will address the criticisms I have mentioned, introduce some important transparency into the process, and provide valuable clarity and guidance to consumers.
Finally, I would like to ask the Minister whether the Act has been effective in preventing what may well be called "serial offending". It is possible for an unscrupulous businessman to set up a business, such as a time-share company, that engages in unfair practices prohibited under the Act. When complaints are lodged against the company and it faces legal proceedings, whether from consumers or CASE, they can simply shut this company down and start a new one and continue preying on consumers.
The Act and the amendments do not address this, and I am told that this does happen in practice. Perhaps, in addition to the amendments currently before this House, the Ministry should also amend the Act to apply its mechanisms to the person behind these companies. For instance, section 9 of the Act could be amended such that if CASE applies for an injunction, then the court is explicitly empowered to extend the injunction to apply against the company's directors and shareholders as well, if it is satisfied that such persons have previously been involved in other companies that have engaged in similar unfair practices.
Sir, in conclusion, the Ministry has done well to update the Act to keep it relevant, in light of changing circumstances. Nevertheless, there remains much room for improvement and I hope that the Minister can address the issues I have raised.
With that, I support the Bill.
The Minister of State for Trade and Industry (Mr Lee Yi Shyan): Sir, I want to thank the various Members for speaking passionately and giving good thoughtful suggestions as to how the Act can be further enhanced.
[...]
Now, I want to also touch on Mr Siew's questions on lemon law. This subject of lemon law has been raised before in the previous parliamentary discussions. In our subsequent revision, we would work with CASE to see if introduction of this law would indeed serve the intended benefits of the consumers in Singapore.
With regard to the other suggestion by Mr Siew on improving the effectiveness of the Small Claims Tribunals, we welcome the suggestion and would convey these suggestions to Ministry of Law because the Small Claim Tribunals belong to the Subordinate courts system. He also asked whether CPFTA is indeed effective against the serial offenders because some of these may close and re-open businesses. For this kind of situation, indeed, we are working with CASE to see how we can have a better oversight of companies or directors behind the companies who are engaged in these unfair practices with other agencies that have supervision over them.
Mr Siew Kum Hong (Nominated Member): Mr Deputy Speaker, Sir, I have a clarification for the Minister of State.
I think the Minister of State has misunderstood my point about the inclusion of financial services and products under the Consumer Protection Fair Trading Act.
My point was that last year's public consultation exercise included a set of draft regulations called the Consumer Protection (Fair Trading) (Regulated Financial Products and Services) Regulations under which MAS regulated financial products and services were to be excluded from the Act after they had been included in the Amendment Bill. So my question was to ask the Minister of State to clarify whether the Ministry intends to issue such regulations after the enactment of this Amendment Bill.
Mr Lee Yi Shyan: Mr Deputy Speaker, I do not have the answer on this particular point, but I would check and come back to Mr Siew.
[I subsequently filed a PQ on this question, which I will publish shortly]
I was fortunate to have Sze Yong's assistance on this bill. He previously worked in CASE, and so had a strong personal interest in this area and also very helpful insights into the amendment bill. He has since moved on to do something else, and I wish him all the best, but he will be missed.
The video and text of my speech are below. I've also reproduced the Minister of State's resposnes to my speech.
Video of speech:
Speech on the Consumer Protection (Fair Trading) (Amendment) Bill
Mr Siew Kum Hong: Mr Deputy Speaker, Sir, I rise in support of the Bill.
The Consumer Protection (Fair Trading) Act took effect on 1st March 2004. Consumers and businesses have had over four years to become familiar with the Act with what is permissible under the Act and what is not. The Consumers' Association of Singapore, or CASE, as a specified body under the Act, has played a key role in giving teeth to the Act. This update of the Act is therefore timely.
While any enhancement to consumer protection is praiseworthy and to be welcomed, the Amendment Bill is nevertheless not perfect. I will touch on four areas.
Firstly, the Amendment Bill expands the jurisdiction of the Act to include financial products and services, motor vehicle sale contracts and timeshare related contracts. The maximum quantum for claims under the Act will also be increased from $20,000 to $30,000.
Sir, the inclusion of motor vehicle sale contract is timely and much needed. However, the amendments do not adequately address the issue of lemon cars which are new cars with many defects and problems. This is essentially the sale of a fundamentally defective product to a consumer.
While the purchase of a car from a car dealer will appear to be covered by the amended Act, the amended prescribed limit of $30,000 is inadequate. It seems arbitrary to me that the purchaser of a very cheap car can get proper redress if it is a lemon but not the majority of car buyers.
Here, I think it is important to note that $30,000 would be a very low price for a car, even for second-hand cars. It is not clear if lemon car cases are common. But this discrimination does not seem right in principle.
Financial products and services are also being brought under the Act. My first point is that even the amended prescribed limit for claims of $30,000 may be too low for claims in respect of such products and services. By way of comparison, the Financial Industry Disputes Resolution Centre, or FIDReC, hears cases with amounts of up to $100,000 for disputes between insured persons and insurers and $50,000 for other disputes, including disputes between banks and consumers. In fact, from the FIDReC Annual Report for 2006-2007, it seems that financial institutions have voluntarily submitted to FIDReC jurisdiction for disputes over amounts exceeding $100,000, such that the biggest claim adjudicated by FIDReC in its 2006-2007 financial year was actually $729,000.
But I am more concerned that, despite what is contained in the Amendment Bill, most financial products and services may end up being excluded from the ambit of the Act. According to the public consultation exercise conducted by the Ministry last year, the Ministry's intent was to exclude from the Act by way of regulations all financial products and services regulated by the Monetary Authority of Singapore.
What this means is that even if, today, this House passes the Amendment Bill to include financial products and services under the Act, tomorrow, the Minister may issue regulations that exclude the bulk of such products and services from the Act. I hope that that will not be the case.
Sir, in last year's public consultation exercise, the Ministry stated, and I quote, "MAS already monitors the financial services industry closely in its capacity as the regulator. Furthermore, MAS has regulatory and enforcement powers against financial institutions and representatives if they breach MAS' administered laws."
While I am sure that the MAS considers the interest of consumers when acting as the regulator, it nevertheless has other priorities as well. Furthermore, the Act contains important features that are absent from the MAS' regime.
Consumers have a private right of action against suppliers. There is the voluntary compliance agreement which can include provisions requiring the supplier in question to compensate consumers who have suffered loss or damage resulting from the unfair practice. CASE is also empowered to apply to the court for a declaration or injunction against offending merchants and the decisions of the court are subject to appeal and public scrutiny. These are all essential enforcement mechanisms implemented by the Act but absent from the MAS' regulatory regime. Crucially, many of these features relate to the compensation to consumers.
Sir, we are here today to debate the Consumer Protection (Fair Trading) Act. Let me repeat: consumer protection. On the other hand, MAS administers a regime to regulate banks and financial institutions. It may be fine for regulating the financial industry, but does it protect consumers? It certainly does not provide for compensation to consumers.
Regulation of merchants' behaviour is fundamentally different from compensation to consumers. The Consumer Protection (Fair Trading) Act encompasses both aspects. But the MAS-administered regime provides only for the former and not the latter. After all, if the MAS-administered regime was sufficient to protect the consumers, then why amend the First Schedule to the Act to bring financial products and services under the Act in the first place?
It would be highly disappointing if any financial products or services are excluded from the Act simply because they are regulated by the MAS. That would render completely pointless the inclusion of financial products and services into the Act. Many believe that Singapore is overly pro-business and too lacking in consumer protection. Such a move would simply prove such views to be true.
Therefore, I hope that the Minister will inform this House whether MAS-regulated financial products and services will subsequently be excluded from the Act by way of regulations and, if so, explain why and how such a move will nevertheless benefit and protect consumers.
Sir, my second point relates to clause 3 of the Amendment Bill. It amends the Act so that where a consumer has commenced legal proceedings against a merchant and subsequently CASE or a specified body applies for a declaration of injunction against that merchant, either the consumer or the merchant may apply to the court for a stay of the proceedings, pending the resolution of the application. It seems to me that the supplier is far more likely than the consumer to exercise this right. There are a number of problems with such a mechanism.
Firstly, it seems to me inherently unfair that a consumer's course of action against a merchant who has engaged in unfair practices can be held hostage to a separate application by a specified body. As the saying goes, "Justice delayed is justice denied."
I understand that, in most cases, the consumer would already have approached CASE before commencing legal proceedings against the merchant and, obviously, he was not willing to rely on CASE. What happens if the merchant dissipates his assets, pending the resolution of CASE's application? The consumer would then have been deprived of his recourse against the merchant through no fault of his own.
If the worry is of conflicting outcomes between the consumer's case and the application to the court for an injunction or declaration, then an alternative approach could be to declare that the decision in the consumer's case will not affect and have no precedential value in the other case.
Another approach that is fairer than what is in the Amendment Bill will be to allow only the consumer and not the merchant to apply to the court for a stay of the legal proceedings so the consumer can choose for himself whether or not he would like to wait for the outcome of CASE's application.
The new section 6(9) of the Act is also unfair to consumers. This provision permits the court, acting on its own motion, to discontinue proceedings that have been stayed, if there are no further steps in the proceedings for two years.
This is regardless of the status of the application by a specified body for a declaration of injunction. In other words, the stayed proceedings can be discontinued even if the other application drags for more than two years and remains unresolved.
Sir, justice should not be held hostage to the court's desire to clear their docket of outstanding cases, especially where the legal proceedings were stayed through no fault of and against the wishes of a consumer. While the Amendment Bill does specify that the discontinuance is without prejudice to the consumer's right to reinstate the action, it seems to me unfair that the consumer, and even the supplier, should have to bear the cost and inconvenience of effecting a reinstatement.
On a related note, in light of the power of the court to discontinue proceedings if no steps are taken for two years, the Act should require either the court or the supplier to notify the consumer of the outcome of the application. The consumer may not be able to monitor the other application and so may not be aware of its outcome and the possible additional steps that he can or should take.
Sir, my third point concerns the Small Claims Tribunal. The amendments will effectively expand the jurisdiction and caseload of the Tribunal. I trust that the Ministry and the Subordinate Courts will ensure that the Tribunal is appropriately staffed and equipped to handle this expansion.
I would also like to propose that decisions of the Small Claims Tribunal, at least those in proceedings commenced under this Act, be published. Decisions of the Tribunal are currently not published, so consumers have little guidance as to the relevant factors that the Tribunal will consider when coming to a decision.
I have received some troubling anecdotal feedback about the Small Claims Tribunal.
Firstly, the Tribunal's decisions are inconsistent. The Tribunal also seems to construe "services" very narrowly, as having to require skill and labour. Accordingly, it seems that the Tribunal has ruled that cases, eg, car rental disputes, fall outside its jurisdiction which, in my view, runs contrary to the clear intent of the Act and a purposeful construction of the term "services".
I have also been told that some businesses have had so many complaints against them that their representatives before the Tribunal have become extremely experienced, thereby facing lay consumers who may well be appearing in a court setting for the very first time at a severe disadvantage when they appear before the Tribunal.
Sir, I believe in the usefulness of the Small Claims Tribunal where lawyers are not allowed and so I support in principle the central role of the Small Claims Tribunal in the Act. However, it seems to me necessary for the Tribunal to publish its decisions or, at the very least, summaries or digests of cases. This will address the criticisms I have mentioned, introduce some important transparency into the process, and provide valuable clarity and guidance to consumers.
Finally, I would like to ask the Minister whether the Act has been effective in preventing what may well be called "serial offending". It is possible for an unscrupulous businessman to set up a business, such as a time-share company, that engages in unfair practices prohibited under the Act. When complaints are lodged against the company and it faces legal proceedings, whether from consumers or CASE, they can simply shut this company down and start a new one and continue preying on consumers.
The Act and the amendments do not address this, and I am told that this does happen in practice. Perhaps, in addition to the amendments currently before this House, the Ministry should also amend the Act to apply its mechanisms to the person behind these companies. For instance, section 9 of the Act could be amended such that if CASE applies for an injunction, then the court is explicitly empowered to extend the injunction to apply against the company's directors and shareholders as well, if it is satisfied that such persons have previously been involved in other companies that have engaged in similar unfair practices.
Sir, in conclusion, the Ministry has done well to update the Act to keep it relevant, in light of changing circumstances. Nevertheless, there remains much room for improvement and I hope that the Minister can address the issues I have raised.
With that, I support the Bill.
The Minister of State for Trade and Industry (Mr Lee Yi Shyan): Sir, I want to thank the various Members for speaking passionately and giving good thoughtful suggestions as to how the Act can be further enhanced.
[...]
Now, I want to also touch on Mr Siew's questions on lemon law. This subject of lemon law has been raised before in the previous parliamentary discussions. In our subsequent revision, we would work with CASE to see if introduction of this law would indeed serve the intended benefits of the consumers in Singapore.
With regard to the other suggestion by Mr Siew on improving the effectiveness of the Small Claims Tribunals, we welcome the suggestion and would convey these suggestions to Ministry of Law because the Small Claim Tribunals belong to the Subordinate courts system. He also asked whether CPFTA is indeed effective against the serial offenders because some of these may close and re-open businesses. For this kind of situation, indeed, we are working with CASE to see how we can have a better oversight of companies or directors behind the companies who are engaged in these unfair practices with other agencies that have supervision over them.
Mr Siew Kum Hong (Nominated Member): Mr Deputy Speaker, Sir, I have a clarification for the Minister of State.
I think the Minister of State has misunderstood my point about the inclusion of financial services and products under the Consumer Protection Fair Trading Act.
My point was that last year's public consultation exercise included a set of draft regulations called the Consumer Protection (Fair Trading) (Regulated Financial Products and Services) Regulations under which MAS regulated financial products and services were to be excluded from the Act after they had been included in the Amendment Bill. So my question was to ask the Minister of State to clarify whether the Ministry intends to issue such regulations after the enactment of this Amendment Bill.
Mr Lee Yi Shyan: Mr Deputy Speaker, I do not have the answer on this particular point, but I would check and come back to Mr Siew.
[I subsequently filed a PQ on this question, which I will publish shortly]
Subscribe to:
Posts (Atom)