Tan Eng Hong v AG

• Jurisdiction: Singapore
• Judgment Date: 02 October 2013
• Date: 02 October 2013
• Docket Number: Originating Summons No 994 of 2010
• Court: High Court (Singapore)

Tan Eng Hong

Plaintiff

and

Attorney-General

Defendant

[2013] SGHC 199

Quentin Loh J

Originating Summons No 994 of 2010

High Court

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

Constitutional Law—Fundamental liberties—Right to life and personal liberty—Plaintiff arrested, investigated, detained under s 377A Penal Code (Cap 224, 2008 Rev Ed) —Whether s 377A deprived liberty in accordance with law within meaning of Art 9 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) —Whether expression ‘law’ in Art 9 (1) justified any legislation which was in force whatever its nature—Whether ‘law’ in Art 9 (1) included law contrary to fundamental rules of natural justice—Whether fundamental rules of natural justice meant that laws could not be absurd or arbitrary—Whether fundamental rules of natural justice meant that laws could not undermine access to justice—Whether fundamental rules of natural justice meant that laws could not be vague or uncertain—Article 9 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) —Section 377A Penal Code (Cap 224, 2008 Rev Ed)

The plaintiff (‘the Plaintiff’) and another male person were arrested for engaging in oral sex in a toilet cubicle inside Citylink Mall on 9 March 2010. The Plaintiff was later charged under s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (‘Penal Code’), which criminalised acts of ‘gross indecency’ between males. The s 377A charge was subsequently substituted by the Prosecution with a charge under s 294 (a) of the Penal Code for the commission of an obscene act in a public place. The Plaintiff pleaded guilty to the substituted s 294 (a) charge, and was convicted and fined $3,000.

In Originating Summons No 994 of 2010, the Plaintiff claimed that s 377A was void for being inconsistent with Art 12 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’), and that his arrest, investigation and detention under s 377A infringed his rights under Art 9 (1) of the Constitution. With regards to the former, the Plaintiff 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. With regards to the latter, the Plaintiff asserted that s 377A was contrary to the fundamental rules of natural justice and was therefore not ‘law’ under Art 9 (1) of the Constitution. Section 377A was contrary to the fundamental rules of natural justice because it was absurd and arbitrary, undermined access to justice, and was vague and uncertain.

Held, dismissing the application:

(1) The formal validity of an Act of Parliament was not sufficient to constitutionally deprive the Plaintiff of personal liberty under Art 9 (1) if it was inconsistent with the Constitution: at [24] .

(2) A reference to ‘law’ in Art 9 (1) had to include a reference to the fundamental rules of natural justice: at [25] and [30] .

(3) There was a distinction between the use of ‘law’ in Art 9 (1) and Art 12 (1). In Art 9 (1), where a law sanctioned the deprivation of life or personal liberty, such deprivation was justified. Conversely, where that law was subsequently found to be invalid law for the purposes of the Constitution, then any deprivation of life or personal liberty carried out pursuant to that ‘law’ would be in breach of Art 9 (1). ‘Law’ in Art 9 (1) was the source of both the deprivation of life or personal liberty and the guarantee of fundamental liberties. Under Art 12 (1), a law had to adhere to the standard of equality. ‘Law’ as used in Art 12 (1) did not refer to any specific law; the protection or deprivation of the right to equality did not depend on the validity of a law. Instead, the source of the right to equality under Art 12 (1) was Art 12 (1) itself: at [26] and [27] .

(4) A law was only contrary to Art 12 (1) if it failed the two-step ‘reasonable classification’ test. It could not be that although the differentiation made pursuant to a particular law was permissible because the differentia adopted was intelligible and bore a rational relation to the purpose of the legislation, that law was at the same time unconstitutional under Art 12 (1) for violating the fundamental rules of natural justice, whose content might have nothing to do with equality: at [28] and [29] .

(5) Legislation that deprived a person of life or personal liberty, which was in effect a legislative judgment directed at securing the conviction of particular known individuals, or which were absurd or arbitrary could not be justified by Art 9 (1): at [36] .

(6) An immutable attribute for the purposes of showing an alleged breach of the Constitution was one that was (a) innate or inborn; and (b) unchanging or unable to be changed: at [43] .

(7) The court was not in a position to make a factual finding that homosexuality was a natural and immutable attribute based on the evidence put before it. Therefore, the argument that s 377A was an absurd law that was contrary to the fundamental rules of natural justice because it targeted a natural and immutable attribute was moot: at [63] and [64] .

(8) Section 377A did not undermine access to justice by criminalising victims of homosexual assaults and homosexual domestic abuse. With regard to the latter situation, the victims could prosecute the complaint of domestic abuse if they so wished, and the fear that the victims themselves would be prosecuted for the commission of some other offence could not per se undermine access to justice. With regard to the former situation, s 377A arguably did not make criminals out of male victims of sexual assaults by other males: at [72] to [74] and [75] to [79] .

(9) A legislative provision could not be rendered unconstitutional just because it contained words which were open to interpretation, and, therefore, be vague and uncertain: at [82] and [83] .

(10) The ‘reasonable classification’ test applied to all constitutional challenges based on Art 12 (1) in Singapore. Other seemingly stricter tests (such as the ‘strict scrutiny’ test) did not apply even when immutable traits were concerned: at [89] to [91] .

(11) Section 377A could not be said to have an unsound purpose just because that purpose was to advance a certain allegedly controversial morality. Parliament had the mandate under our Constitution and system of law to make decisions on and surrounding controversial issues, subject always to the legal safeguards and limitations set out in the Constitution and review by the courts for compliance with those safeguards and limitations. That the basis underlying s 377A's existence was, in the final analysis, an issue of morality and societal values, did not of itself mean that Parliament ought to defer to the views of the court: at [93] and [94] .

(12) There was a complete coincidence between the differentia adopted in s 377A (viz,male homosexual conduct) and the purpose and object of the provision (viz, making male homosexual conduct an offence because such conduct was not desirable). The differentia adopted in s 377A was therefore, at the very least, broadly proportionate to the purpose and object of this provision; the differentia was not under-inclusive in fulfilling the purpose and object of the law: at [100] .

(13) Section 377A was not over-inclusive just because people who abetted in the commission of the offence might be criminally liable for an offence of abetment under s 107 (a) of the Penal Code: at [102] to [104] .

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

Don John Francis Douglas Liyanage v R [1967] 1 AC 259 (refd)

Egan v Canada [1995] 2 SCR 513 (refd)

Frontiero v Richardson 411 US 677 (1973) (refd)

Haw Tua Tau v PP [1981-1982] SLR (R) 133; [1980-1981] SLR 73 (refd)

HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 (refd)

Jackson v Abercrombie 884 F Supp 2 d 1065 (2012) (refd)

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

Leung TC William Roy v Secretary for Justice [2006] 4 HKLRD 211 (refd)

Lim Meng Suang v AG [2013] 3 SLR 118 (folld)

National Coalition for Gay and Lesbian Equality, The v The Minister of Justice 1999 (1) SA 6 (refd)

Naz Foundation v Government of NCT of Delhi WP (C) No 7455 of 2001 (2 July 2009) (refd)

Ng Huat v PP [1995] 2 SLR (R) 66; [1995] 2 SLR 783 (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 (folld)

Perry v Schwarzenegger 704 F Supp 2 d 921 (2010) (refd)

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

Regents of the University of California v Bakke 438 US 265 (1978) (refd)

Sunil Babu Pant v Nepal Government, Office of the Prime Minister and Council of Ministers [2008] NLJLJ 262 (refd)

Tan Eng Hong v AG [2011] 3 SLR 320 (refd)

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

Vriend v Alberta [1998] 1 SCR 493 (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) Arts 9 (1) , 12 (1) (consd)

Evidence Act (Cap 97, 1997 Rev Ed) s 59 (2)

Internal Security Act (Cap 143, 1985 Rev Ed)

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

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

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

Penal Code (Cap 224, 2008 Rev Ed) s 377A (consd) ;ss 107 (a) , 294 (a)

Penal Code...