Re Lord Goldsmith Peter Henry PC QC

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 19 September 2013
• Neutral Citation: [2013] SGHC 181
• Year: 2013
• Docket Number: Originating Summons No 586 of 2013
• Published date: 24 September 2013
• Court: High Court (Singapore)
• Hearing Date: 29 August 2013,09 September 2013
• Plaintiff Counsel: Shashidran Nathan, Tania Chin Li Wen and Shen Peishi Priscilla (KhattarWong LLP)
• Defendant Counsel: Aedit Abdullah SC, Jeremy Yeo Shenglong, Sherlyn Neo Xiulin and Jurena Chan Pei Shan (Attorney-General's Chambers),Christopher Anand Daniel and Harjean Kaur (The Law Society of Singapore)
• Citation: [2013] SGHC 181

V K Rajah JA:

This is an application made pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) for Lord Peter Henry Goldsmith PC QC (“Lord Goldsmith”) to be admitted on an ad hoc basis as an advocate and solicitor of Singapore for the purpose of representing Lim Meng Suang and Kenneth Chee Mun-Leon (collectively, “the Appellants”) in Civil Appeal No 54 of 2013 (“CA 54”). If admitted, Lord Goldsmith will act as co-counsel with Ms Deborah Evaline Barker SC (“Ms Barker SC”) in CA 54.

CA 54 is an appeal against the decision of Quentin Loh J (“the Judge”) affirming the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). The Appellants will argue that s 377A offends Art 12, and potentially Art 9, of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). CA 54 is to be heard by the Court of Appeal on a date to be fixed in the week commencing 14 October 2013.

The facts Background to CA 54

The Appellants claim to be two homosexual men who have been “in a romantic and sexual relationship” with each other for the past 16 years (see Lim Meng Suang and another v Attorney-General [2013] 3 SLR 118 (“Lim Meng Suang”) at [2]). On 30 November 2012, they filed Originating Summons No 1135 of 2012 (“OS 1135”), seeking declarations that: i. Section 377A of the Penal Code is inconsistent with Article 12 of the Constitution, and is therefore void by virtue of Article 4 of the Constitution; and ii. Section 377A of the Penal Code is inconsistent with Article 12 of the Constitution, and is therefore void by virtue of Article 162 of the Constitution.

This matter was filed after the Court of Appeal issued its decision in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan Eng Hong”) on 21 August 2012 finding that that the applicant in that case had locus standi under O 15, r 16 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to pursue a somewhat similar claim for declaratory relief. A salient difference between the facts of the present appeal and those of Tan Eng Hong is that the applicant in the latter had been arrested, investigated and detained (although not eventually prosecuted) under s 377A and sought a further declaratory relief in relation to his arrest, detention and investigation, which he claimed was contrary to Art 9 of the Constitution. When this matter was heard by the High Court it was assumed (without argument) that the Appellants had locus standi to maintain these proceedings; see Lim Meng Suang at [12]. This issue has now been resurrected for the appeal.

In their supporting affidavit for OS 1135, the Appellants averred that they had grown up with the awareness that having gay sex was illegal under s 377A of the Penal Code and that they had felt the social stigma of being gay as they grew up. The Appellants assert that s 377A reinforces existing prejudices against homosexual men and that its very existence labels them as criminals regardless of whether it is enforced against them.

Before the Judge, counsel for the Appellants, Mr Peter Cuthbert Low (“Mr Low”), submitted that s 377A introduced two levels of discrimination: first, between homosexuals and heterosexuals; and second, between homosexual males and homosexual females. Mr Low argued that s 377A thus fails the two-step test of determining constitutionality under Art 12, namely, that the classification discloses no intelligible differentia and that any differentia upon which the classification is based bears no rational relation to the object of s 377A.

Mr Low further argued that s 377A was so absurd, arbitrary and unreasonable that it could not be considered good law. His main arguments for this are laid out by the Judge in Lim Meng Suang (at [20]):

The reasons given for this are that: (a) s 377A criminalises sexual orientation, which is practically immutable; (b) s 377A is overly broad; (c) even the Government has acknowledged that s 377A has been arbitrarily and selectively enforced; (d) s 377A attempts to legislate morality in an arbitrary and discriminatory manner; (e) s 377A comes from tainted origins; (f) s 377A causes tangible harm to a segment of the population in that it limits the outreach of HIV/AIDS preventive measures to and inflicts psychological damage on that segment of the population; (g) s 377A makes it difficult for gay or bisexual men who have been exploited or abused by their sexual partners to approach law enforcement officers for protection, leaving them particularly vulnerable to blackmail; and (h) s 377A provides potential grounds for impugning otherwise regular commercial transactions involving homosexual men.

As an additional string to his bow, Mr Low drew extensively on international and comparative jurisprudence showing a growing international trend of guarding against discrimination based on sexual orientation.

OS 1135 was opposed by the Attorney-General. Counsel for the Attorney-General, Mr Aedit Abdullah SC (“Mr Abdullah SC”) submitted that the classification in s 377A was based on intelligible differentia. He argued that the objective of s 377A is to preserve public morality in relation to male homosexual conduct and that this is thus connected to the criminalisation of male homosexual sex. The non-inclusion of female homosexual sex in s 377A was, Mr Abdullah SC submitted, because public morality does not target female homosexual conduct in the same way. At most, the exclusion of female homosexual conduct was under-inclusive and not over-inclusive, and this was not sufficient for a finding that s 377A was contrary to Art 12.

The Judge in dismissing the application found that s 377A was not unconstitutional. Applying the two-step test mentioned above (at [6]), the Judge found that s 377A covered acts of gross indecency between males but not gross indecency between males and females and between females. This was an intelligible differentia that was supported or justified by, and had a complete coincidence with, the purpose of s 377A, which “clearly targeted homosexual males and applied to acts of “gross indecency” between males” (Lim Meng Suang at [65]). In discerning the purpose of the legislature, the Judge examined the historical basis of s 377A, tracing it to the United Kingdom (“UK”)’s Criminal Law Amendment Act 1885 (c 69). The Judge also examined the Singapore Parliamentary debates of 2007 where Parliament decided to retain s 377A but jettisoned a related provision, s 377, which criminalised “carnal intercourse against the order of nature”. The Judge additionally relied on the presumption of constitutionality.

The Appellants filed CA 54 on 30 April 2013 against the Judge’s decision. On 12 July 2013, the Appellants made a further application, Summons No 3366 of 2013 (“SUM 3366”) seeking the following orders: 1. That the time period in which the Appellants are to file and serve the Appellants’ Case, the Record of Appeal and the Core Bundle of Documents be extended by two (2) week (i.e. to 6 August 2013) [“Prayer 1”]; and, 2. That the Appellants be at liberty to amend Originating Summons No. 1135 of 2012/C in the manner as set out in the copy attached as Annex A [“Prayer 2”] … Annex A stated:

…

i Section 377A of the Penal Code is inconsistent with Articles 9 and 12 of the Constitution, and is therefore void by virtue of Article 4 of the Constitution; and ii Section 377A of the Penal Code is inconsistent with Articles 9 and 12 of the Constitution, and is therefore void by virtue of Article 162 of the Constitution.

[proposed amendments underlined]

Lai Siu Chiu J (“Lai J”), sitting as a single judge of the Court of Appeal pursuant to s 36(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), granted Prayer 1 in terms but dismissed Prayer 2. The Appellants appealed Lai J’s decision to dismiss Prayer 2 and obtained leave for the application to be heard on an expedited basis. At the hearing before the Court of Appeal on 2 August 2013, the Court of Appeal opted to hear SUM 3366 with the substantive hearing in CA 54.

The Appellants identified the following issues in their case in CA 54: what the object or purpose of s 377A was, and in particular: whether the Court should examine the legitimacy of the purpose of the enacted legislation; whether and to what extent the 2007 Parliamentary Debates on the Penal Code (Amendment) Bill (22 October 2007), can and should be used to discern Parliamentary intent with respect to s 377A; whether the classification in s 377A which discriminates against male homosexuals based on public disapproval and criminalises their acts is plainly arbitrary on its face or operates arbitrarily, and in particular: whether the purpose of s 377A is arbitrary; whether s 377A operates arbitrarily by making criminals out of victims and/or permits blackmail/extortion; whether s 377A operates arbitrarily as it effectively prevents male homosexuals from approaching and receiving health care, and in particular seeking treatment for HIV/AIDS; and whether s 377A operates arbitrarily by causing serious psychological harm to male homosexuals; whether the decriminalisation of private consensual acts of male homosexuals promotes the deterioration of public morality, the erosion of the traditional family unit (procreation and lineage) or the spread of HIV/AIDS; whether s 377A is unconstitutional for inconsistency with Art 12(2) of the Constitution; whether s 377A satisfies the reasonable classification test for determining constitutionality under Art 12(1); and whether the presumption of constitutionality applies for colonial laws where the legislature, when enacting the laws, failed to appreciate the needs of the subjects of the colony.

If SUM 3366 is granted, the Appellants would also be submitting on the following Art 9 issues in CA 54: whether a right to life and personal liberty...