Ong Ming Johnson v Attorney-General and other matters

• Judge: See Kee Oon J
• Judgment Date: 30 March 2020
• Neutral Citation: [2020] SGHC 63
• Citation: [2020] SGHC 63
• Court: High Court (Singapore)
• Published date: 03 April 2020
• Docket Number: Originating Summons Nos 1114 of 2018; 1436 of 2018 and 1176 of 2019
• Plaintiff Counsel: Eugene Thuraisingam, Johannes Hadi and Suang Wijaya (Eugene Thuraisingam LLP),Harpreet Singh Nehal SC (Audent Chambers LLC), Jordan Tan (Cavenagh Law LLP) (instructed) with Choo Zheng Xi, Priscilla Chia Wen Qi and Wong Thai Yong (Peter Low & Choo LLC),Ravi s/o Madasamy (Carson Law Chambers)
• Defendant Counsel: Hui Choon Kuen, Denise Wong, Jeremy Yeo and Jamie Pang (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Equal protection of the law,Equality before the law,Fundamental liberties,Right to life and personal liberty,Freedom of expression,Constitution,Interpretation,Statutory Interpretation,Construction of statute,Ejusdem generis,Extrinsic aids
• Hearing Date: 20 November 2019,18 November 2019,15 November 2019,13 November 2019

See Kee Oon J: Introduction

Section 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) became part of Singapore law in 1938 while Singapore was under British colonial administration. The present three Originating Summons (“OS”) applications concern the constitutionality of s 377A. The parties consented for all three matters to be heard together before me.

Section 377A, which criminalises acts of gross indecency between male persons, reads:

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.

In their respective written and oral submissions, the plaintiffs focused on specific issues but otherwise aligned themselves with each other’s submissions. Notwithstanding that the prayers they sought were not entirely identical, this posed no difficulty as they hoped to achieve a common outcome, namely, to have s 377A declared unconstitutional on the basis that it violates Arts 9, 12 and/or 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”).

I highlight at the outset that a prior challenge against s 377A was dismissed by the High Court and subsequently affirmed by the Court of Appeal in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26 (“Lim Meng Suang CA”). The plaintiffs submitted that their applications involved new arguments on issues not previously canvassed before the court, including points premised on new historical evidence and case law subsequent to Lim Meng Suang CA. As such, not only was I not bound by the decision of the Court of Appeal, I would in any event have to consider fresh submissions. Among these were submissions as to: the true purpose or object of s 377A in the light of additional contextual material; expert medical evidence as to the cause(s) of male homosexuality and its relevance to s 377A; and whether Art 14 of the Constitution encompasses the freedom to express one’s sexual orientation or sexual preference.

A preliminary application was made on behalf of Dr Tan Seng Kee (“Dr Tan”), the plaintiff in OS 1176/2019, for the matters to be heard in open court. I declined to direct that the matters be so heard as there was no exceptional reason to depart from the general position of having OS proceedings heard in chambers. In any event, I made it clear that I would furnish a written judgment setting out my reasons after the hearing.

Having heard the parties’ submissions, I reserved judgment. I proceed to set out the reasons for my decision in full.

Outline of the three applications OS 1114/2018

Mr Ong Ming Johnson (“Mr Ong”), the plaintiff in OS 1114/2018, sought a declaration that s 377A is inconsistent with Arts 9(1) and/or 12(1) of the Constitution. Mr Ong is an international disc jockey. He is a homosexual man who has been attracted to males from a young age, and has been in a long-term relationship with a man since 2017. ¹

Mr Ong argued that s 377A is inconsistent with Art 9(1) as it is absurd and arbitrary in criminalising persons for their identity. He further argued that it violates Art 12(1) of the Constitution in not having intelligible differentia and in failing to bear any rational relation to its legislative object. Further, it violates Art 14(1)(a) of the Constitution as the criminalisation of sex between men limited the ability of homosexual men to freely express their sexual orientation and exchange ideas pertaining to sexuality and sexual orientation.

Apart from his contentions concerning Arts 12(1) and 14(1)(a) of the Constitution, Mr Ong also submitted that Lim Meng Suang CA ought to be reconsidered. He offered four reasons for doing so: (1) that the parties in Lim Meng Suang CA did not put forward arguments on the bedrock concept of human dignity, which would affect the constitutionality of s 377A; (2) that after the decision in Lim Meng Suang CA, there has been comprehensive consensus that sexual orientation is unchangeable; (3) that the personal liberty of homosexual men continues to be potentially affected by s 377A; and (4) that international judicial developments suggest that Lim Meng Suang CA should be departed from.

In connection with the last point, it may be noted that OS 1114/2018 was filed not long after the decision of the Supreme Court of India in Navtej Singh Johar v Union of India, THR. Secretary and Ministry of Law and Justice AIR 2018 SC 4321 (“Navtej”). In Navtej, the Supreme Court of India declared s 377 of the Indian Penal Code (Act No. 45 of 1860) (India) to be unconstitutional. That provision deals with carnal intercourse against the order of nature and is in pari materia to s 377 of Singapore’s Penal Code (Cap 20, 1936 Rev Ed) (“the 1936 Penal Code”) which remained operative until s 377 was repealed in 2007.

In support of his point on the immutability of sexual orientation, Mr Ong adduced a total of six affidavits from three expert witnesses. The affidavits focus on the status of scientific consensus on the nature of sexual orientation, the efficacy of attempts to modify sexual orientation, and the effects of criminalisation of same-sex sexual conduct and societal disapproval on a homosexual individual’s mental health.

OS 1436/2018

Mr Choong Chee Hong (“Mr Choong”), the plaintiff in OS 1436/2018, was an Executive Director of Oogachaga Counselling and Support. He is a homosexual man who is currently single and sexually active. ²

Mr Choong contended that properly construed, s 377A criminalises only commercial (male) homosexual activity and not private, consensual acts of a non-commercial nature. In addition, s 377A does not extend to penetrative sexual activity, which was already covered by s 377 at the time when s 377A was enacted.

By an amendment to OS 1436/2018 dated 20 October 2019, Mr Choong sought a declaration that in light of the proper construction of s 377A, the provision is inconsistent with Arts 12 and/or 14 of the Constitution. He argued that s 377A violates Art 12 as there is no rational nexus between the intelligible differentia and the legislative purpose or object of s 377A.

In the alternative, he sought a declaration that s 377A is inconsistent with Art 14 of the Constitution as it impermissibly restricts the freedom of a class of Singapore citizens to express consensual acts of sexual intimacy by criminalising such acts. To the extent that it is void on account of such inconsistency, he argued that s 377A ought to be modified pursuant to the Court’s power under Art 4 and/or Art 162 of the Constitution by omitting the words “in private”.

Mr Choong also raised concerns regarding the correctness of Lim Meng Suang CA, the significance of foreign jurisprudence on matters concerning male homosexuality, and how homosexual men continue to be negatively affected by s 377A through the violation of the right to intimacy and privacy and the constant threat of potential criminal investigations. These arguments bear similarities to those raised by Mr Ong, and will thus be addressed together.

OS 1176/2019

Dr Tan, the plaintiff in OS 1176/2019, is a medical doctor and a homosexual man. He is active in the LGBT (Lesbian, Gay, Bisexual, Transgender) activist scene.³ His case was filed only in 2019, after the first two OS matters were already proceeding towards a hearing. Thereafter, all three matters were consolidated at the pre-hearing stage so that directions could be made for a joint hearing with the consent of all the parties.

Dr Tan sought to challenge s 377A on the grounds that it violates Arts 9(1), 12(1) and 14 of the Constitution. His arguments are broadly consistent with those mounted on behalf of the other plaintiffs. In his oral submissions, counsel for Dr Tan focused on the absurdity and arbitrariness of permitting s 377A to remain on our statute books given that the official Government policy position is non-enforcement in respect of consensual homosexual acts in private between males.

Issues to be determined

The following issues arise for my consideration and determination: whether, applying principles of statutory interpretation to s 377A to ascertain its purpose or object, s 377A only covers the narrow scope of non-penetrative male homosexual activity and is targeted only at commercial male homosexual activity (ie male prostitution); whether the presumption of constitutionality applies to s 377A; whether, for the purposes of Art 12 of the Constitution, the reasonable classification test is met and intelligible differentia exists in s 377A; whether there is a non-derogable right to freedom of expression under Art 14 of the Constitution which encompasses sexual orientation and sexual preference; whether there is sufficient evidence that male homosexuality is caused purely by biological factors, as a result of which sexual orientation is immutable and if so whether this renders s 377A unconstitutional for being in violation of Art 9(1) of the Constitution; whether continued criminalisation of male homosexual activity through the retention of s 377A is absurd or arbitrary and thus inconsistent with Art 9(1) of the Constitution; and whether stare decisis applies and whether Lim Meng Suang CA ought to be departed from.

Interpretation: ascertaining the purpose or object of s 377A Plaintiffs’ arguments

Counsel for Mr Choong led the submissions for the plaintiffs and described the question of interpretation of the purpose or object of s 377A as the central or “lynchpin” issue.⁴ The other plaintiffs expressly aligned themselves with Mr Choong’s submissions on this point.

In putting forth his submissions on this issue, Mr Choong relied on ostensible “new historical evidence”...