Tan Seng Kee v AG

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Judith Prakash JCA,Tay Yong Kwang JCA,Steven Chong JCA
• Judgment Date: 28 February 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 54, 55 and 71 of 2020

Tan Seng Kee

and

Attorney-General and other appeals

[2022] SGCA 16

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Tay Yong Kwang JCA and Steven Chong JCA

Civil Appeals Nos 54, 55 and 71 of 2020

Court of Appeal

Constitutional Law — Constitution — Interpretation — Articles 2(1), 9, 12 and 14 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Statutory Interpretation — Construction of statute — Purposive approach — Political compromise struck by Parliament in 2007 and representations made by Attorney-General in 2018 — Whether Attorney-General's representations legally enforceable — Section 377A Penal Code (Cap 224, 2008 Rev Ed)

Held, dismissing the appeal:

(1) Given that representations were made by the Government and, subsequently, by AG Wong, to the effect that s 377A would not be proactively enforced, it would be entirely artificial to ignore that fact and to analyse the constitutionality of s 377A as if this provision were liable to be enforced in the same manner as any other provision of the PC. Significantly, the representations made by the Government and AG Wong would have a practical impact on the lives of homosexual men, which could not be disregarded. The relevant and more critical question was whether the political compromise on s 377A was legally relevant and, if so, what its precise legal consequences were: at [63] and [64].

(2) The political compromise on s 377A struck in 2007, which might well have informed the prosecutorial policy on s 377A in the years that followed, took on a new legal significance in 2018, when AG Wong articulated a general policy of not prosecuting s 377A offences where the conduct fell within the Subset. The political compromise forged in 2007 and AG Wong's representations in 2018 collectively formed the political package surrounding s 377A which significantly altered both the way in which s 377A practically affected the lives of homosexual men and what the provision meant in Singapore. The Anterior Question was not concerned with the purpose behind the enactment of s 377A in 1938, but rather, the equally important purpose behind its retention in 2007: at [66], [67], [69] and [95].

(3) The s 377A Debates did not concern the purpose of enacting s 377A in 1938, the scope of s 377A at the time of its enactment, or its differentia. Rather, the Government was focused on reaching a socio-political compromise that would balance various competing interests and accommodate differing perspectives on homosexuality. The Prime Minister also addressed the concern of “legal untidiness and ambiguity” and explained that maintaining the status quo was preferable to risking societal division over s 377A. The public policy espoused in the Prime Minister's speech (that homosexual men were not being and would not be harassed because s 377A would not be proactively enforced) was relevant because it pertained specifically to s 377A, was clear and emanated from a constitutionally authoritative source: at [78] to [81].

(4) While the Prime Minister's speech during the s 377A Debates was undoubtedly important, such ministerial statements did not bind the PP, who exercised his prosecutorial discretion independently. In contrast, AG Wong's representations in 2018 were legally significant as they contained guidelines on the exercise of prosecutorial discretion in relation to s 377A offences, which were broadly aligned with the public policy and public interest expressed by the Prime Minister during the s 377A Debates as well as the Government's stance that s 377A would not be proactively enforced. The parties mostly agreed that AG Wong's representations had to be of some legal effect and that the constitutionality of s 377A could not be analysed in complete disregard of those representations: at [82], [88] to [91] and [116].

(5) The exceptional circumstances surrounding the general non-enforcement of s 377A called for a limited recognition of the doctrine of substantive legitimate expectations as the basis for imbuing AG Wong's representations with legal force. The recognition of this doctrine was extremely limited in material scope, given the specific circumstances in which the political package was arrived at. In giving effect to the expectations of homosexual men that s 377A would generally not be enforced in respect of acts falling within the Subset, the court would be giving effect to the political compromise on s 377A without constraining any future legislative or executive action regarding that provision. There was also no issue of a possible encroachment on the PP's prosecutorial discretion in the circumstances: at [117] and [132] to [136].

(6) The legitimate expectation engendered by AG Wong's representations was that the PP would not prosecute conduct falling within the Subset under s 377A. There was no doubt that these representations were made by a person with actual authority to do so: they were made by AG Wong in his official capacity as the Attorney-General (“AG”), in which capacity he exercised the powers and office of the PP: at [146] and [147].

(7) In answer to the Anterior Question, s 377A was unenforceable in its entirety, unless and until the AG of the day provided clear notice that he, in his capacity as the PP: (a) intended to reassert his right to enforce s 377A proactively by way of prosecution; and (b) would no longer abide by the representations made by AG Wong in 2018 as to the prosecutorial policy that applied to conduct falling within the Subset. In giving legal effect to AG Wong's representations without importing the uncertainties that would otherwise continue to plague homosexual men, the appellants could not be said to face any real and credible threat of prosecution under s 377A. It followed that there was in fact no controversy and no threat of any violation of their rights under Arts 9, 12 and 14. The appellants hence did not have standing to mount their constitutional challenges against s 377A. The court's views on the interpretive and constitutional issues raised by the appellants were thus purely obiter since they did not arise for determination in these appeals: at [149] to [153].

[Observation: The breadth of the issue on the immutability of sexual orientation as a matter of general scientific fact quite clearly indicated that the question was in fact an extra-legal scientific matter beyond the court's purview: at [156] and [158].

On the proper interpretation of s 377A, the only possible interpretation of the words “gross indecency” was one that: (a) included penetrative sex acts; and (b) was not limited to male prostitution. On a plain reading, the term “gross indecency” could not sensibly be limited to non-penetrative sex acts and extended to penetrative sex acts. This interpretation was not displaced by the new extraneous material considered by the court in the present appeals: at [167] and [235].

The deprivation of personal liberty that s 377A could engender did not fall within the scope of protection afforded by Art 9(1). It was well established that unenumerated substantive rights could not be read into the Constitution. The words “life or personal liberty” in Art 9(1) referred only to freedom from unlawful deprivation of life and unlawful detention or incarceration: at [244], [245] and [247].

Section 377A was prima facie “written law” and thus “law” as defined in Art 2(1) of the Constitution. However, Art 9(1) did not justify all legislation that deprived a person of his life or personal liberty. The test of “absurdity” was procedural in nature and did not permit the court to examine the substantive content of s 377A. Based on this test, s 377A was not “absurd”. Further, it was evident, from comments made by Members of Parliament during the s 377A Debates, that there were thought to be many in Singapore who genuinely and sincerely opposed the repeal of s 377A, and their views could hardly be dismissed as absurd by any reasonable measure: at [254], [265], [268] and [269].

Having regard to the context of Art 14(1)(a) in the Constitution, it was clear that the primary right protected thereunder was that of “freedom of speech” and not “freedom of expression”. The Art 14 constitutional challenge to s 377A had to have proceeded from the premise that the term “speech” included acts of gross indecency. However, such acts were not “speech” to begin with; in any event, extending the protection afforded under Art 14(1)(a) to acts of gross indecency would generate an absurd result that could not have been intended by the constitutional draftsmen. Furthermore, s 377A could not be said to have a chilling effect on gay rights advocacy: at [279] and [294] to [299].

The established test for assessing whether a statutory provision was constitutional under Art 12 was the “reasonable classification” test. There were two main differences between the two leading approaches to this test, namely: (a) whether, albeit in an extreme minority of cases, the first limb of the test permitted consideration of the reasonableness (or lack thereof) of the differentia embodied in the statutory provision in question; and (b) the level of scrutiny to which the impugned statutory provision was subject, having regard to its correctly identified object and its relationship with the differentia employed. In the present appeals, it was unnecessary to decide which approach should be preferred: at [305], [313] and [329].

A key issue in the application of the “reasonable classification” test was the level of generality at which the legislative object of the statutory provision in question was pitched. If one were to articulate the legislative object of the statutory provision in whatever terms would support one's desired interpretation of the provision, the “reasonable classification” test could be reduced to nothing more than an exercise in legal formalism. The court should therefore be chary of construing or applying the “reasonable...