Tan Eng Hong v AG

• Jurisdiction: Singapore
• Judgment Date: 21 August 2012
• Date: 21 August 2012
• Docket Number: Civil Appeal No 50 of 2011
• Court: Court of Appeal (Singapore)

Tan Eng Hong

Plaintiff

and

Attorney-General

Defendant

[2012] SGCA 45

Andrew Phang Boon Leong JA, V K Rajah JA and Judith Prakash J

Civil Appeal No 50 of 2011

Court of Appeal

Civil Procedure—Striking out—Test for striking out—Application for declaration that s 377A Penal Code (Cap 224, 2008 Rev Ed) was unconstitutional—Attorney-General claiming that applicant had no locus standi—Attorney-General claiming that application disclosed no real controversy—Whether applicant had locus standi and whether application disclosed any real controversy—Section 377A Penal Code (Cap 224, 2008 Rev Ed)

Constitutional Law—Equal protection of the law—Application for declaration that s 377A Penal Code (Cap 224, 2008 Rev Ed) was unconstitutional—Whether there was arguable case that s 377A Penal Code violated 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)

Constitutional Law—Fundamental liberties—Application for declaration that s 377A Penal Code (Cap 224, 2008 Rev Ed) was unconstitutional—Whether there was arguable case that s 377A Penal Code violated Arts 9 (1) and 14 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)—Articles 9 (1) and 14 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)—Section 377A Penal Code (Cap 224, 2008 Rev Ed)

Courts and Jurisdiction—Court judgments—Declaratory—Standing to seek declaratory relief—Applicable test for standing where declaratory relief sought involved constitutional rights

On 9 March 2010, Tan Eng Hong (‘Tan’) and another male person (‘the co-accused’) were arrested for engaging in oral sex in a cubicle in a public toilet of a shopping complex. Both parties are adult males in their forties. Tan and the co-accused were then separately charged under s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (‘the Penal Code’) with the commission of an act of gross indecency with another male person.

On 24 September 2010, Tan brought an application (‘the Application’) under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘the Rules’) to ask the court to declare s 377A of the Penal Code (‘s 377 A’) unconstitutional under the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) ( ‘the Constitution’). Tan alleged that s 377A was inconsistent with Arts 9, 12 and 14 of the Constitution (‘Art 9’, ‘Art 12’ and ‘Art 14’ respectively) and was therefore void by virtue of Art 4 of the Constitution (‘Art 4’).

On 15 October 2010, the Prosecution informed Tan that the s 377A charge against him had been substituted with one under s 294 (a) of the Penal Code (‘s 294 (a)’) for the commission of an obscene act in a public place. The charge against the co-accused was similarly substituted.

Tan subsequently pleaded guilty to the substituted charge under s 294 (a)on 15 December 2010, and was convicted and sentenced to a fine of $3,000. The co-accused had earlier pleaded guilty, and had similarly been convicted and sentenced to a fine of $3,000.

Soon after the substitution of the s 377A charge against Tan with the s 294 (a) charge, the Attorney-General (‘the AG’) applied to strike out the Application pursuant to O 18 r 19 of the Rules and/or the inherent jurisdiction of the court. An assistant registrar (‘the AR’) struck out the Application on the ground that it disclosed no reasonable cause of action, was frivolous or vexatious and/or was an abuse of the process of the court.

On appeal by Tan against the AR's decision, the High Court judge (‘the Judge’) held that Tan had locus standi, and that his claim was not certain to fail and in fact raised many novel constitutional issues that deserved more detailed treatment. However, the Judge concluded that there was no real controversy to be adjudicated as there was nothing at stake for Tan, given that he had already pleaded guilty to and been convicted of the s 294 (a)charge. The AR's striking-out order was therefore upheld. The present appeal is Tan's appeal against the Judge's decision.

Held, allowing the appeal:

(1) The threshold for striking out a claim was a high one. All that Tan had to show was that he had on the facts and law an arguable case. Even if a statement of claim was inadequately drawn up, for the purposes of a striking out application, an opportunity to amend would be given, unless the court was satisfied that the defect could not be cured by an amendment. This was particularly so where there were substantive merits in the matter: at [20] and [21].

(2) The court's power to void laws for inconsistency with the Constitution under Art 4 included the power to void laws which pre-date the enactment of the Constitution (‘existing laws’). The supremacy of the Constitution meant that to the extent that any law did not conform to and could not be reconciled with the Constitution through a process of construction, it was void under Art 4: at [59].

(3) Even if Art 162 of the Constitution (‘Art 162’) alone applied to any issue relating to the constitutionality of s 377A on the basis that s 377A was an existing law, the Application should not be struck out simply because it made no express reference to the modification sought under Art 162. A court would readily give Tan leave to include a prayer based on Art 162 in the Application were it necessary to do so: at [64].

(4) The mere fact of citizenship in itself did not satisfy the standing requirement for constitutional challenges. Applicants in constitutional challenges had to demonstrate a violation of their personal rights to be granted standing. As constitutional rights were personal to each citizen, a citizen whose constitutional rights were violated could, without more, satisfactorily demonstrate a violation of rights personal to himself: at [78] to [80] and [82].

(5) The ‘real interest’ requirement also had to be satisfied before an applicant in a constitutional challenge was granted standing. Given the importance of constitutional rights, a citizen would prima facie have a ‘sufficient interest to see that his constitutional rights [were] not violated’ (see Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR (R) 294 at [14]). Therefore, the ‘real interest’ requirement was prima facie made out once there was a violation of a constitutional right: at [83].

(6) A violation of constitutional rights could occur in the absence of a subsisting prosecution under an allegedly unconstitutional law: at [91] and [110].

(7) Whether the very existence of an unconstitutional law in the statute books sufficed to show a violation of constitutional rights depended on what exactly that law provided. There was no general rule that the very existence of an allegedly unconstitutional law in the statute books sufficed to demonstrate a violation of an applicant's constitutional rights; each case had to turn on its own facts. While it was conceivable that the very existence of an unconstitutional law in the statute books sufficed to show such violation (and, thus, to found standing) in an extraordinary case, no such case had ever been brought to the attention of the courts here: at [94], [109] and [110].

(8) A threat of prosecution under an allegedly unconstitutional law, where the threat was real and credible and not merely fanciful, would suffice to show a violation of constitutional rights: at [112] to [114].

(9) The test for standing in constitutional challenges remained the test laid down in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd[2006] 1 SLR (R) 112. The element of a real controversy, however, went to the court's discretion and not jurisdiction: at [115].

(10) Tan's rights under Art 9 (1) were not engaged by the very existence of s 377A in the statute books. As the High Court held in Lo Pui Sang v Mamata Kapildev Dave[2008] 4 SLR (R) 754 at [6], ‘personal liberty’ in Art 9 referred ‘only to the personal liberty of the person against unlawful incarceration or detention’: at [120] and [121].

(11) Section 377A was a law which specifically targeted sexually-active male homosexuals. The plain language of s 377A excluded both male-female acts and female-female acts. This arguably violated the Art 12 (1) rights of its target group, and as a member of that group, Tan's rights had arguably been violated by the mere existence of s 377A in the statute books. There was also a real and credible threat of prosecution under s 377 A: at [126].

(12) Although Tan's Art 9 (1) rights were not engaged by the very existence of s 377A in the statute books, such rights were engaged on the facts of the case as Tan was purportedly arrested and detained under s 377 A. Under Art 9 (1), an accused person had a right not to be detained under an unconstitutional law. The wording of Art 9 (1) made it clear that every detention had to be effected under a valid law. As s 377A was arguably unconstitutional for inconsistency with Art 12, Tan's right to personal liberty under Art 9 (1) would have been violated by his arrest and detention under s 377A if s 377A were indeed unconstitutional: at [122] and [151] to [153].

(13) Section 377A did not violate any of the three limbs of Art 14 (1). Even if any Art 14 (1) rights were engaged by s 377 A, those rights were expressly stated to be subject to the need to preserve (inter alia)public order (see Art 14 (2) (a)-14 (2) (c)): at [130].

(14) The requirement of a real controversy had been met. The facts of the present appeal disclosed that a lis had been constituted in two ways, namely: (a) Tan's arrest, investigation, detention and charge under s 377 A; and (b)the real and credible threat of prosecution under s 377 A: at [133], [182] and [183].

(15) The requirement of a real controversy did not go to the court's jurisdiction, but was a factor that the court would take into account in exercising its...