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.) 　　
有关董事的法规、任免和请辞
　 　　公司法令（第50章）第145节（下称“第145节”）规定，在新加 坡注册的公司，需要最少两名董事，而其中一名必须是常住新加坡的 董事（下称常驻董事）。 　　条文进一步规定，不论法令的其他条文，组织章程及条规或任何 常驻董事与公司签署的合约如何，常驻董事都不可辞职，除非公司里 还有至少两名董事，而其中一名是常驻董事。任何违反145节规定的 辞职，都视为无效。 　　由于法令没有为“在新加坡常驻者”下定义，我们只好向别处求 教。在所得税法令（第134章）第2(1)节里，“在新加坡常驻者”指 的是通常在新加坡境内居住（除因故暂时离境），包括在上一个纳税 年度中，在新加坡境内居住最少183天者。以这个法令的定义来看， 145节中的“在新加坡常驻者”应该是指那些经常在新加坡居住的人 ，而且居留期必须是延续性的，虽然他无须是公民或永久居民。实际 上，持有有效的就业准证，就符合了“在新加坡常驻者”的资格，而 可在145节条文下担任新加坡公司的常驻董事。 　　由于第145节的规定，有很多常驻董事想辞职而不能辞（例如对 有关公司的财务状况感到不妥时，却因无人愿接替而不能辞），因此 被迫继续担任董事。 　　这种情况通常发生在纯粹由外国人操纵的公司，他们是为了要符 合第145节的规定，才委任一名常驻董事。这名被逼的董事身处困境 ，因为在他决定要辞职时，往往情形对他已经很不利了。通常这个时 候海外股东已停止财务支持公司的业务，终止和他联络，而让他自生 自灭。 　　处在这种情况下，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，辞职被视为无效。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 的背景、商誉和业绩。同时，也要了解接受委任后所要担负的法律责 任。 　　第145节规定公司的第一批董事，须名列于公司组织章程及条规 里。至于委任的具体方式，法令没有列明，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。 　　此外，法令的第146节（下称“第146节”）规定，除非一个人表 明要担任董事，否则不能受委。表明的方式是向公司商行注册局呈递 有关表格，表明自己的法律资格，且确认自己愿意担任董事。 　　如果不遵照第146节所规定的手续办理，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”，虽然没有正式的记录，但他还是得执行董事 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法律事务所的主任律师。）