Directors: Statutory requirements,appointment,
Directors: Statutory requirements,appointment,
resignation and removal● 吕俊昭 Loo Choon Chiaw
Section 145 of the Act (hereinafter referred to as
"Section 145") provides that every company incorporated in
Singapore shall have at least two directors, one of whom
shall be ordinarily resident in Singapore (hereinafter
referred to as the "resident director"). It further provides
that notwithstanding any other provision in the Act, the
company's memorandum and articles of association or in any
other agreement between the resident director and the
company, the resident director shall not resign or vacate
his office unless there are remaining in the company at
least two directors, one of whom shall be a resident
director. Any purported resignation or vacation of office
contrary to Section 145 shall be deemed to be invalid.
As the phrase 'ordinarily resident in Singapore' has not
been defined in the Act, guidance must be sought elsewhere.
The phrase 'resident in Singapore' in relation to an
individual in the context of tax law has been defined in
Section 2(1) of the Income Tax Act (Cap 134) as a person
residing in Singapore, except for temporary absences as may
be reasonable, and includes a person physically present or
employed in Singapore for at least 183 days during the
preceding year of assessment. In the light of the definition
contained in the Income Tax Act, it is suggested that a
person ordinarily resident in Singapore within the meaning
of Section 145 ought to be a person maintaining a regular
presence in Singapore with some degree of continuity,
although he need not be a citizen or a permanent resident in
Singapore. In practice, a person possessing a valid
employment pass will qualify as a person ordinarily resident
in Singapore and be in a position to act as a resident
director in a Singapore company for the purpose of Section
145.
In the light of Section 145, there have been many
instances where a resident director, one of the two
directors appointed, wishes to resign from the office of
director (for instance, when he is uncomfortable with the
financial position of the relevant company) is nevertheless
unable to do so because no one is willing to accept the
appointment as director in his stead. He is thus compelled
against his personal wishes to remain as a resident director
of a company. Those cases typically involve companies
comprising only foreign shareholders and when the resident
director and the foreign controlling shareholder are
appointed merely to satisfy the statutory requirements of
Section 145. The 'reluctant' resident director is in a
precarious position. By the time he decides to resign, the
situation would have become rather unsatisfactory. Quite
frequently, all the foreign shareholders would have stopped
funding the operations of the company by then and ceased all
forms of communication with the 'reluctant resident
director, leaving the latter in a lurch. The 'reluctant'
resident director would then be obliged to continue to
discharge his statutory duties whilst remaining a director
on record, notwithstanding that he may have tendered his
resignation as a director, as such resignation would be
deemed invalid by virtue of Section 145. In the light of
this, one should accept the appointment of a director only
after careful consideration, taking into account the
background, reputation and track record of the relevant
company and its shareholders. One should also apprise
oneself of the statutory duties of a director and be
satisfied that one is in a position to discharge the same
before accepting the appointment.
Section 145 requires the first directors of the company to
be named in the memorandum or articles of association of the
company. The Act does not prescribe the exact manner in
which directors are to be appointed. This is a matter which
will be addressed in the articles of association of the
relevant company. Ordinarily, the directors are elected by
the shareholders at the annual general meeting.
Section 146 of the Act (hereinafter referred to as
"Section 146") provides that a person shall not be named as
a director unless he has manifested his intention to act as
director by executing and lodging the prescribed Form 45
with the Registry of Companies and Businesses, declaring
that he is not legally disqualified from acting and
affirming his consent to act. A failure to observe the
formality prescribed by Section 146 will result in the
relevant person not appearing as a director on official
record. Readers may recall from our previous discussions
(See: Directors: Who are they? Lianhe Zaobao, October 4,
1998 ) that such a person will be a 'de facto' director and
is obliged to discharge all the statutory obligations of a
director, even though he does not appear on official record.
(The writer is the Senior Partner of Loo & Partners. He
qualified as a Barrister-at-Law at Lincoln's Inn, London,and
obtained his Master of Laws from London University. Mr Loo
is also a fellow of the Chartered Institute of Arbitrators,
London.)
有关董事的规矩、任免和请辞
公司执法（第50章）第145节（下称“第145节”）划定，在新加
坡注册的公司，需要最少两名董事，而个中一名必需是常住新加坡的
董事（下称常驻董事）。
条文进一步划定，岂论执法的其他条文，组织章程及条规或任何
常驻董事与公司签署的合约如何，常驻董事都不行告退，除非公司里
另有至少两名董事，而个中一名是常驻董事。任何违反145节划定的
告退，都视为无效。
由于执法没有为“在新加坡常驻者”下界说，我们只好向别处求
教。在所得税执法（第134章）第2(1)节里，“在新加坡常驻者”指
的是凡是在新加坡境内居住（除因故暂时离境），包罗在上一个纳税
年度中，在新加坡境内居住最少183天者。以这个执法的界说来看，
145节中的“在新加坡常驻者”应该是指那些常常在新加坡居住的人
，并且居留期必需是延续性的，现代职业教育，固然他无须是国民或永久居民。实际
上，持有有效的就业准证，就切合了“在新加坡常驻者”的资格，而
可在145节条文下担当新加坡公司的常驻董事。
由于第145节的划定，有许多常驻董事想告退而不能辞（例如对
有关公司的财政状况感想不其时，却因无人愿接替而不能辞），因此
被迫继续担当董事。
这种环境凡是产生在纯粹由外国人哄骗的公司，他们是为了要符
合第145节的划定，才委任一名常驻董事。这名被逼的董事身处困境
，因为在他决定要告退时，往往情形对他已经很倒霉了。凡是这个时
候外洋股东已遏制财政支持公司的业务，终止和他联络，而让他自生
自灭。
处在这种环境下，常驻董事只好依法继续执行他的法定职责。虽
然他可能已经递上辞呈，但碍于第145节，告退被视为无效。有鉴于
此，读者在接受委任常驻董事一职时应三思，并考虑该公司及其股东
的配景、商誉和业绩。同时，也要了解接受委任后所要担负的法令责
任。
第145节划定公司的第一批董事，须名列于公司组织章程及条规
里。至于委任的具体方法，执法没有列明，但是在有关公司的章程中
会有说明。一般而言，是由股东在常年大会上选出。
别的，执法的第146节（下称“第146节”）划定，除非一小我私家表
明要担当董事，不然不能受委。表白的方法是向公司商行注册局呈递
有关表格，表白本身的法令资格，且确认本身愿意担当董事。
如果不遵照第146节所划定的手续治理，有关的“董事”，在官
方文件上便无正式的记录。读者应该还记得，我们上一回（《公司董
事，何许人也？》，10月4日《联合早报星期刊》第7页）谈过，这个
人其实是“实质董事”，固然没有正式的记录，但他照旧得执行董事
的法定职务。
（本文作者是英国大律师，英国皇家仲裁学院院士，现为Loo &
Partners法令事务所的主任律师。）
