Lim Meng Suang and another v Attorney-General

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 09 April 2013
• Neutral Citation: [2013] SGHC 73
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1135 of 2012
• Year: 2013
• Published date: 03 May 2013
• Hearing Date: 13 February 2013,14 February 2013,07 February 2013
• Plaintiff Counsel: Peter Cuthbert Low, Choo Zhengxi and Indulekshmi Rajeswari (Peter Low LLC)
• Defendant Counsel: Aedit Abdullah SC, Jeremy Yeo Shenglong and Sherlyn Neo Xiulin (Attorney-General's Chambers)
• Subject Matter: Constitutional law,Equal protection of the law,Equality before the law,Constitution,Interpretation
• Citation: [2013] SGHC 73

Quentin Loh J: Introduction

In this originating summons (Originating Summons No 1135 of 2012 (“OS 1135”)), the Plaintiffs seek to impugn s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the current Penal Code”) on the ground that it infringes their right to equality before the law and equal protection of the law under Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Section 377A reads as follows: Outrages on decency 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.

[emphasis added]

The facts

Mr Lim Meng Suang (“Mr Lim”), the first plaintiff, is 44 years old and a Buddhist who was born and raised in Singapore. He has his own graphic design company and has a Masters of Fine Arts in photography. Mr Kenneth Chee Mun-Leon (“Mr Chee”), the second plaintiff, is 37 years old and a free thinker who was also born and raised in Singapore. He is a graphic designer working in Mr Lim’s company, and has a diploma in electronics engineering. Mr Lim and Mr Chee met by chance in March 1997, and have been “in a romantic and sexual relationship” with each other ever since, ie, for the past 16 years.

Mr Lim and Mr Chee do not live together. In his supporting affidavit for OS 1135, Mr Lim says that the main reason for this is his need to stay with and look after his ageing parents who are not well. Mr Lim also says that his parents do not know that he and Mr Chee are gay. Having said that, Mr Lim describes how, over the years, his mother’s attitude has changed. There was an initial confrontation over his friendship with Mr Chee, whom he had to deny was gay, and her proscription not to do “gay things”. This then progressed to her trying to find him a wife, with his godmother’s active participation. Finally, over the last three or so years, Mr Lim says, there has been tacit, but not open, acceptance by his mother of his relationship with Mr Chee. His mother has stopped trying to match-make him and now tells his godmother to leave him alone whenever she brings up the subject of finding him a wife. His mother has also started inviting Mr Chee over for family events and even reunion dinners. Mr Lim accepts that his mother is from a different generation and does not push the issue. However, he has told his siblings as well as his elder nephews and nieces about his sexual orientation, and they have all accepted his being gay. Mr Chee has stayed overnight with Mr Lim at times and this practice has continued for some time.

Mr Chee also lives with his family. In his supporting affidavit for OS 1135, he deposes that his family accepts Mr Lim as his close friend, but do not quite know the true nature of their relationship. His family, unlike Mr Lim’s family, does not go out much together, and he characterises his family’s policy as one of “don’t ask, don’t tell”. Mr Chee is silent on whether Mr Lim has ever stayed overnight at his home.

Besides working together, Mr Lim and Mr Chee also go to the gym as well as for movies, window-shopping and overseas holidays together. Both Mr Lim and Mr Chee feel that they cannot be openly affectionate in public in Singapore. Mr Lim states that at most, he puts his arm around Mr Chee’s shoulder in public. Both Mr Lim and Mr Chee grew up with the knowledge that having gay sex was illegal, but, more significantly, both of them felt the social stigma of being gay as they were growing up, and this feeling of stigmatisation continues to date.

Both Mr Lim and Mr Chee are also apprehensive as they have heard of male homosexuals being charged with “gross indecency” under s 377A of the current Penal Code. Mr Lim runs TheBearProject, an informal social group for “plus-sized” gay men who engage in activities like hiking, movies, potluck gatherings, museum-hopping and overseas trips. However, he is worried about getting into trouble with the authorities and claims that it will be difficult to register TheBearProject as a society as automatic approval is not granted to societies which relate to “sexual orientation”.

Mr Lim says that he experienced discrimination in school and in the army, which discrimination continues till this day, although his mother no longer asks him not to be gay. Similarly, Mr Chee says that he has seen and also experienced discrimination against gay people in school, in the army and in society. Both Mr Lim and Mr Chee feel that s 377A of the current Penal Code reinforces this discrimination, and that the very existence of this provision, whether or not it is enforced, labels them as criminals. Whilst Mr Lim and Mr Chee do not live in fear every day of being arrested, they say that it is always at the back of their minds that if the authorities wanted to, they could arrest them and charge them with an offence under s 377A of the current Penal Code.

On 30 November 2012, Mr Lim and Mr Chee (collectively referred to hereafter as “the Plaintiffs”) filed OS 1135 seeking, in effect, a declaration that s 377A of the current Penal Code is inconsistent with Art 12 of the Constitution, and is therefore void by virtue of Arts 4 and 162 of the Constitution. The defendant in this action, the Attorney-General (“the Defendant”), has chosen not to file any affidavits in response. I therefore take the Plaintiffs’ affidavits as the factual basis on which I shall proceed to decide this case.

In this judgment, I shall be referring to both s 377A of the current Penal Code as well as its predecessor provisions in earlier editions of our Penal Code. For ease of reference, I shall use the term “s 377A” to denote s 377A of the current Penal Code and, where the context requires, the applicable predecessor provision in force at the particular point in time being discussed. I shall also use the terms “s 377” and “the now-repealed s 377” interchangeably to refer to the now-repealed s 377 of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 Penal Code”), which criminalised “carnal intercourse against the order of nature with any man, woman or animals”. As for the term “the Constitution”, it should be read as denoting either the Constitution as defined at [1] above or, where the context requires, the applicable predecessor version of the Constitution. References to “male homosexual conduct” in the context of this judgment refer to acts of “gross indecency” between males, and likewise, references to “female homosexual conduct” refer to acts of “gross indecency” between females.

Preliminary issues Locus standi

This action is brought under O 15 r 16 and O 92 r 5 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”). The first requirement which the Plaintiffs have to meet before they can bring this action is that they must have the requisite locus standi. I would have thought that this was a threshold issue to be addressed as the Plaintiffs have not been charged under s 377A; neither have they been threatened with prosecution. No State organ or officer of the law has told or warned them that they cannot have the relationship which they currently have, or that if they sleep together in Mr Lim’s family home, they will be prosecuted. No one has prohibited them from cohabiting. Indeed, in their supporting affidavits for OS 1135, the Plaintiffs candidly state that the real pressure which they experience on account of their relationship seems to have been from their respective parents, their respective families and members of society, and not from any officer of the law. This could have a possible bearing on how the court exercises its discretion to determine whether the element of a real controversy in the matter (see Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112) is satisfied.

As to whether the Plaintiffs have a real interest in bringing this action and whether there has been a violation of their personal rights, I note that the Court of Appeal in Tan Eng Hong v Attorney-General [2012] 4 SLR(R) 476 (“Tan Eng Hong”) has stated at [126] that:

It is uncontroverted that s 377A is a law which specifically targets sexually-active male homosexuals. The plain language of s 377A excludes both male-female acts and female-female acts. Tan professes to be a member of the targeted group, and the AG has not disputed this claim. Therefore, since we have found that s 377A arguably violates the Art 12(1) rights of its target group, as a member of that group, Tan’s rights have arguably been violated by the mere existence of s 377A in the statute books (see above at [94]). We also accept that there is a real and credible threat of prosecution under s 377A (see below at [175]-[183]).

Be that as it may, since counsel for the Defendant, Mr Aedit Abdullah SC (“Mr Abdullah SC”) from the Attorney-General’s Chambers, has not argued that the Plaintiffs do not have the requisite locus standi to bring the present proceedings, I shall proceed on the basis that the Defendant is not disputing that the Plaintiffs do have the requisite locus standi.

The requests made by the Plaintiffs’ counsel in chambers

At the start of the hearing, Mr Peter Cuthbert Low (“Mr Low”), counsel for the Plaintiffs, first applied for Assistant Professor Jack Lee (“Asst Prof Lee”) from the School of Law, Singapore Management University, and Assistant Professor Lynette Chua (“Asst Prof Chua”) from the Law Faculty, National University of Singapore (“NUS”), to sit in for the hearing. Mr Low said that Asst Prof Lee and Asst Prof Chua had been engaged by his firm from the start of these proceedings, had assisted in putting the written submissions together and were part of his legal team. Mr Low also said that he might need to consult Asst Prof Lee and Asst Prof Chua over any legal points that might...