Citation(2019) 31 SAcLJ 20773
Published date01 December 2019
Date01 December 2019
I. Introduction

1 In 1938, the Legislative Council of the Straits Settlements enacted s 377A of the Penal Code1 (“s 377A”).

2 On 16 September 1963, when Singapore became a State of the Federation of Malaysia, “the fundamental liberties of the Malaysian Constitution fell like the gentle rain from heaven upon the new

member-State of Singapore”.2 These fundamental liberties ceased to apply to Singapore on 9 August 1965 when Singapore became an independent and sovereign nation, but they were restored (minus the right to property) with retroactive effect to 9 August 1965 by the Republic of Singapore Independence Act,3 which came into force on 23 December 1965.4 The fundamental liberties are now set out in Pt IV of the Constitution of the Republic of Singapore5 (“Constitution”) as Arts 9–16.

3 Article 12(1) of the Constitution (“Art 12(1)”) and s 377A provide as follows:

12.—(1) All persons are equal before the law and entitled to the equal protection of the law.

377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

4 Section 377A criminalises acts of gross indecency between males, whether homosexual or bisexual (“class (a)”), but not similar acts committed between bisexual or straight males and females (“class (b)”) or between females, whether homosexual, bisexual or straight (“class (c)”). Section 377A also criminalises abetments, procurements and attempted procurements of the criminalised acts only by males but not by females. Class (a) males are treated unequally under s 377A since class (b) males and class (c) females who engage in similar acts of gross indecency commit no offence under s 377A. Additionally, males are treated unequally vis-à-vis females, in relation to the offence of abetment, procurement or attempted procurement of the acts of gross indecency under s 377A. Accordingly, s 377A, on its face, differentiates between males and females in these aspects.

5 The question arises whether, in the light of such unequal treatment of class (a) males, s 377A violates the fundamental rights of all persons to (a) equality before the law; and (b) equal protection of the law, under Art 12(1). In Lim Meng Suang v Attorney-General6 (“Lim Meng Suang HC”) and Tan Eng Hong v Attorney-General7 (“Tan Eng Hong HC”),

the High Court (“the Judge”) held that s 377A does not violate Art 12(1) on the ground that s 377A satisfies the reasonable classification test. Both decisions were affirmed by the Court of Appeal in Lim Meng Suang v Attorney-General8 (“Lim Meng Suang CA”).

6 This article, inter alia, examines the findings of fact and law and the reasoning of the High Court and the Court of Appeal (hereinafter referred to collectively as “Courts”) in the three judgments in respect of the following areas:

(a) the scope and purpose of s 377A (statutory interpretation);

(b) the nature and purpose of the reasonable classification test;

(c) the meaning of Art 12(1) and its effect on s 377A (constitutional interpretation); and

(d) the nature of the presumption of constitutionality, and its role in constitutional adjudication.

It will also examine the scope of Art 162 of the Constitution which the Courts did not have to consider, as they held that s 377A did not violate Art 12(1), or, to put it another way, s 377A already conformed to the Constitution at the date of its commencement.

7 This article is in nine parts. The first part is the Introduction. The second part provides a brief account of the criminal law regime in Singapore on offences relating to indecent conduct before the enactment of s 377A in 1938.9 The third part deals with the regime after 1938 up to 2007.10 The fourth part examines the scope of s 377A.11 The fifth part examines the purpose of s 377A, and the repeal of s 377 and the enactment of s 376(1)(a) in 2007.12 The sixth part examines the nature and role of the reasonable classification test.13 The seventh part examines the scope of Art 12(1), with particular reference to equality before the law.14 The eighth part examines the nature and the role of the presumption of constitutionality in constitutional adjudication.15 The ninth part examines the scope of Art 162 of the Constitution.16 The

article concludes with a summary of this article's conclusions and submissions on the critical findings of the Courts in the three judgments.17
II. Criminal law relating to indecent conduct in Singapore before 1938
A. Criminal law regime prior to 1938

8 Prior to the enactment of s 377A, the criminal law regime already had two provisions that criminalised indecent conduct, viz s 377 of the Penal Code (“s 377”)18 and s 23 of the Minor Offences Ordinance 190619 (“s 23”).20 Both laws were gender neutral, that is, they were applicable to men and women alike. Given the backdrop, it is necessary to find out why and the purpose for which s 377A was enacted in 1938 to criminalise male homosexual conduct, viz, (i) acts of gross indecency between class (a) males; and also (ii) abetments and procurements of such conduct by males, but not similar acts between class (b) bisexual or straight males and females, or between class (c) females and females, or, in the case of abetments, etc, by females. It should be noted that abetments or procurements of acts of gross indecent conduct are not, per se, grossly indecent.

9 The scope of ss 23 and 377, that is, the kinds of offences they cover, is material to the determination of the scope of s 377A, that is, the kinds of offences covered by the phrase “any act of gross indecency”. The scope of s 377A will, in turn, be helpful in ascertaining its purpose or object in the context of the reasonable classification test.

(1) Scope of s 23 of the Minor Offences Ordinance 1906

10 Section 23 provided:

Any person who is found … guilty of any … indecent behaviour, or of persistently soliciting or importuning for immoral purposes … in any public place or place of public amusement or resort, or in the immediate vicinity of any Court or … shall be liable to a fine not exceeding twenty dollars, or to imprisonment for a term which may extend to fourteen days, and on a second or subsequent conviction to a fine not exceeding fifty dollars or to imprisonment for a term which may extend to three months.

Section 23 criminalised, inter alia, indecent behaviour and persistent solicitation or importuning for immoral purposes (that is, prostitution). The word “indecent” is not defined, but it has been interpreted in other common law jurisdictions. In R v Coffey,21 Callaway JA observed that indecent acts “are as various as human imagination can make them”. In R v Stringer,22 Adam J said:23

The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety … or an affront to modesty … or would offend the ordinary modesty of the average person …

(2) Scope of section 377 (before its repeal in 2007)24

11 Section 377 provided as follows:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.

Explanation. Penetration is sufficient to constitute the carnal intercourse.

12 Section 377 enacted s 377 of the Indian Penal Code (“IPC”). Initially, the Indian courts interpreted “carnal intercourse against the order of nature” (that is, “unnatural offences”) in s 377 of the IPC to criminalise only anal sex (sodomy). In Government v Bapoji Bhatt,25 the Chief Judge of Mysore held that s 377 of the IPC did not cover fellatio (oral sex) because the provision was based on the offence of sodomy which, under English law, required penile penetration per anum. However, in 1925, the Sind High Court in Khanu v Emperor26 (“Khanu”) held that the decision in Government v Bapoji Bhatt was wrong to apply English law to interpret s 377, and that under s 377, fellatio was “the sin of Gomorrah [and] is no less carnal intercourse than the sin of Sodom”.27 Khanu was followed in Khandu v Emperor28 (“Khandu”). These two decisions were approved in Lohana Vasantlal Devchand v The State29 (“Lohana”).

13 Hence, in 1938 when the Legislative Council enacted s 377A, it was already established law in India that s 377 of the IPC covered anal and oral sex (“penetrative sex”) between males, and between males and females in public or in private, with or without consent. As the Penal Code is based on the IPC, the then Attorney-General of Singapore, G C Howell (“AG Howell”), should have been familiar with the decisions of the Indian courts on s 377 of the IPC, given that he was instrumental in the enactment of s 377A in 1938.

III. Criminal law regime after the enactment of section 377A
A. AG Howell's speech in the Legislative Council

14 AG Howell made a short speech in moving the Penal Code (Amendment) Bill 1938 (“1938 Bill”) to its third reading in the Legislative Council, which passed it without debate. AG Howell said:

[1] With regard to clause 4 [s 377A] it is unfortunately the case that acts of the nature described have been brought to notice. [2] As the law now stands, such acts can only be dealt with, if at all, under the Minor Offences Ordinance, and then only if committed in public. [3] Punishment under the Ordinance is inadequate and the chances of detection are small. [4] It is desired, therefore, to strengthen the law and to bring it into line with the English Criminal Law, from which this clause is taken, and the law of various other parts of the Colonial Empire of which it is only necessary to mention Hong Kong and

Gibraltar where conditions are somewhat similar to our own. [emphasis added]

15 AG Howell's...

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