Lim Meng Suang v AG

• Jurisdiction: Singapore
• Judgment Date: 09 April 2013
• Date: 09 April 2013
• Docket Number: Originating Summons No 1135 of 2012
• Court: High Court (Singapore)

Lim Meng Suang and another

Plaintiff

and

Attorney-General

Defendant

[2013] SGHC 73

Quentin Loh J

Originating Summons No 1135 of 2012

High Court

Constitutional Law—Equal protection of the law—Equality before the law—Interpretation—Whether s 377A Penal Code (Cap 224, 2008 Rev Ed) inconsistent with Art 12 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)—Article 12 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)—Section 377A Penal Code (Cap 224, 2008 Rev Ed)

The two plaintiffs sought a declaration that s 377A of the Penal Code (Cap 224, 2008 Rev Ed), which criminalised gross indecency acts between males, was void for being inconsistent with Art 12 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’). They asserted that s 377A was absurd, arbitrary and unreasonable, and that the differentia of males in s 377A bore no rational relation to the object of the provision.

Held, dismissing the application:

(1) Parliament was entitled to pass laws that deal with the myriad of problems that arose from the inherent inequalities and differences which pervaded society. In the course of dealing with specific problems and specific groups of people, it was inevitable that classification would produce inequality of varying degrees. Equality before the law did not mean that all persons were to be treated equally, but that all persons in like situations were to be treated alike. It was also unhelpful to speak of permissible discrimination between classes, and impermissible discrimination within a class: at [44] , [60] and [61] .

(2) The test for constitutionality under Art 12 (1) was the ‘reasonable classification test’. Under this test, the legislation would be consistent with Art 12 (1) if the classification prescribed by the legislation was founded on an intelligible differentia, and the differentia bore a rational relation to the object sought to be achieved by the legislation: at [45] and [46] .

(3) The differentia underlying the classification in s 377A was clear; it covered acts of gross indecency between males, but not acts of gross indecency between males and females, and between females. The classification prescribed by s 377A was therefore based on an intelligible differentia: at [47] and [48] .

(4) Historically, s 377A was based on s 11 of the Criminal Law Amendment Act 1885 (c 69) (UK). This latter provision was clearly intended to deal with male homosexual acts. When s 377A was enacted in Singapore in 1938, the then Attorney-General stated in the Legislative Council that the prevalence of gross indecency acts between males was a regrettable state of affairs and was not desirable. It was therefore necessary to strength the criminal law by enabling the law to prosecute such male homosexual conduct. That was the object and purpose of s 377A. When s 377A was considered again by Parliament in 2007, it was retained. The purpose of s 377A, as articulated by the Attorney-General in 1938, was reaffirmed and remained the purpose of the provision: at [63] to [70] , [78] and [85] .

(5) Rational meant something that was based on, endowed with, or governed by reason. It had to be, at the minimum, reasonable in the sense that it was capable of being supported or justified by reason and was in conformity with what was fairly to be expected or called for. The concept of reasonableness was central to the inquiry of whether the rational relation test was satisfied. A law that was reasonable must be broadly proportionate to its purpose, even if it was not the most effective means of achieving the purpose. The classification in the law had to also broadly fit the purpose of the law, and could not be too under- or over-inclusive: at [88] to [99] .

(6) Applying the reasonable classification test, s 377A had a complete coincidence between the differentia underlying the classification and the object of the legislation. In other words, the differentia adopted in s 377A mirrored the purpose of the provision: at [100] .

(7) There was a strong presumption of constitutional validity. The court prima facie leaned in favour of the constitutionality of the legislation sought to be impugned. It was for the party who attacked the validity of the legislation to place relevant materials and evidence before the court: at [103] and [104] .

(8) Notwithstanding the presumption of constitutionality, it was the constitutional role of the court to ensure that Parliament did not contravene the rights enshrined in the Constitution. A law which satisfied the reasonable classification test might nevertheless be struck down if the object was illegitimate In the present case, the purpose of s 377A was not illegitimate as it concerned the addressing of a discernable and not wholly unjustifiable social and public morality: at [112] , [114] to [117] and [119] to [130] .

Annis bin Abdullah v PP [2004] 2 SLR (R) 93; [2004] 2 SLR 93 (refd)

Bowers v Hardwick 478 US 186 (1986) (refd)

Brown v Board of Education 347 US 483 (1954) (refd)

Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR (R) 294; [1996] 1 SLR 609 (refd)

Chiranjit Lal v Union of India (1950) SCR 869 (folld)

Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR (R) 525; [1988] SLR 132 (refd)

Datuk Haji Harun bin Haji Idris v PP [1977] 2 MLJ 155 (refd)

Government of Malaysia v VRMenon [1990] 1 MLJ 277 (refd)

Hirabayashi v US 320 US 81 (1943) (refd)

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR (R) 112; [2006] 1 SLR 112 (refd)

Kedar Nath Bajoria Hari Ram Vaid v State of West Bengal AIR 1953 SC 404 (refd)

Kesava Iyegar v State of Mysore AIR 1956 Mys 20 (refd)

Korematsu v US 323 US 214 (1944) (refd)

Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR (R) 239; [2008] 2 SLR 239 (refd)

Lawrence v Texas 539 US 558 (2003) (refd)

Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR (R) 453; [2007] 2 SLR 453 (refd)

Lee Keng Guan v PP [1977-1978] SLR (R) 78; [1975-1977] SLR 231 (refd)

Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165 (folld)

Middleton v Texas Power and Light Co 249 US 152 (1919) (refd)

Nguyen Tuong Van v PP [2005] 1 SLR (R) 103; [2005] 1 SLR 103 (folld)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (refd)

Perry v Hollingsworth 671 F 3d 1052 (9th Cir, 2012) (refd)

Plessy v Ferguson 163 US 537 (1896) (refd)

PP v Kwan Kwong Weng [1997] 1 SLR (R) 316; [1997] 1 SLR 697 (refd)

PP v Su Liang Yu [1976] 2 MLJ 128 (refd)

PP v Tan Kuan Meng [1996] SGHC 16 (refd)

PP v Taw Cheng Kong [1998] 2 SLR (R) 489; [1998] 2 SLR 410 (refd)

Ram Krishna Dalmia and Ghulam Sarwar v Union of India [1967] 2 SCR 271 (refd)

Ramakrishnan Singh v State of Mysore AIR 1960 Mys 338 (refd)

Ramalingam Ravinthran v AG [2012] 2 SLR 49 (refd)

Roe v Wade 410 US 113 (1973) (refd)

Shri Ram Krishna Dalmia v Shri Justice SR Tendolkar (1959) SCR 279 (refd)

Strauder v West Virginia 100 US 303 (1880) (refd)

Takahashi v Fish and Game Commissioner 334 US 410 (1948) (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (folld)

Taw Cheng Kong v PP [1998] 1 SLR (R) 78; [1998] 1 SLR 943 (refd)

TPY v DZI [1997] 1 SLR (R) 843; [1997] 3 SLR 475 (refd)

US v Carolene Products Co 304 US 144 (1938) (not folld)

Yick Wo v Hopkins 118 US 356 (1886) (refd)

Yong Vui Kong v AG [2011] 2 SLR 1189 (refd)

Yong Vui Kong v PP [2010] 3 SLR 489 (folld)

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12 (1) (consd) ;Arts 12, 12 (2) , 12 (3)

Interpretation Act (Cap 1, 2002 Rev Ed) s 9 A

Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed)

Misuse of Drugs Act (Cap 185, 2001 Rev Ed)

Penal Code (Cap 20, 1936 Rev Ed)

Penal Code (Cap 224, 1985 Rev Ed) s 377 (consd)

Penal Code (Cap 224, 2008 Rev Ed) s 377A

Penal Code (Amendment) Ordinance 1938 (No 12 of 1938)

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) ss 6 (a) , 37 (1)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 15 r 16, O 18 r 19, O 92 r 5

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) s 60

Criminal Law Amendment Act 1885 (c 69) (UK) s 11

Larceny Act 1861 (c 96) (UK) s 46

Offences Against the Person Act 1861 (c 100) (UK) s 61

Penal Code 1860 (Act No 45 of 1860) (India)

Peter Cuthbert Low, Choo Zhengxi and Indulekshmi Rajeswari (Peter Low LLC) for the plaintiffs

Aedit Abdullah SC, Jeremy Yeo Shenglong and Sherlyn Neo Xiulin (Attorney-General's Chambers) for the defendant.

Judgment reserved.

Quentin Loh J

Introduction

1 In this originating summons (Originating Summons No 1135 of 2012 (‘OS 1135’)), the plaintiffs (‘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:

1. 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

2 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...