High Court · Decided 9 April 2013

Lim Meng Suang and another v Attorney-General

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[2013] SGHC 73Case no. Originating Summons No 1135 of 2012

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Quentin Loh J:
Introduction
[1] In this originating summons (Originating Summons No 1135 of 2012 (“OS 1135”)), the Plaintiffs seek to impugn s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the current Penal Code”) on the ground that it infringes their right to equality before the law and equal protection of the law under Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Section 377A reads as follows:
The facts
[2] Mr Lim Meng Suang (“Mr Lim”), the first plaintiff, is 44 years old and a Buddhist who was born and raised in Singapore. He has his own graphic design company and has a Masters of Fine Arts in photography. Mr Kenneth Chee Mun-Leon (“Mr Chee”), the second plaintiff, is 37 years old and a free thinker who was also born and raised in Singapore. He is a graphic designer working in Mr Lim’s company, and has a diploma in electronics engineering. Mr Lim and Mr Chee met by chance in March 1997, and have been “in a romantic and sexual relationship” with each other ever since, ie, for the past 16 years.
[3] Mr Lim and Mr Chee do not live together. In his supporting affidavit for OS 1135, Mr Lim says that the main reason for this is his need to stay with and look after his ageing parents who are not well. Mr Lim also says that his parents do not know that he and Mr Chee are gay. Having said that, Mr Lim describes how, over the years, his mother’s attitude has changed. There was an initial confrontation over his friendship with Mr Chee, whom he had to deny was gay, and her proscription not to do “gay things”. This then progressed to her trying to find him a wife, with his godmother’s active participation. Finally, over the last three or so years, Mr Lim says, there has been tacit, but not open, acceptance by his mother of his relationship with Mr Chee. His mother has stopped trying to match-make him and now tells his godmother to leave him alone whenever she brings up the subject of finding him a wife. His mother has also started inviting Mr Chee over for family events and even reunion dinners. Mr Lim accepts that his mother is from a different generation and does not push the issue. However, he has told his siblings as well as his elder nephews and nieces about his sexual orientation, and they have all accepted his being gay. Mr Chee has stayed overnight with Mr Lim at times and this practice has continued for some time.
[4] Mr Chee also lives with his family. In his supporting affidavit for OS 1135, he deposes that his family accepts Mr Lim as his close friend, but do not quite know the true nature of their relationship. His family, unlike Mr Lim’s family, does not go out much together, and he characterises his family’s policy as one of “don’t ask, don’t tell”. Mr Chee is silent on whether Mr Lim has ever stayed overnight at his home.
[5] Besides working together, Mr Lim and Mr Chee also go to the gym as well as for movies, window-shopping and overseas holidays together. Both Mr Lim and Mr Chee feel that they cannot be openly affectionate in public in Singapore. Mr Lim states that at most, he puts his arm around Mr Chee’s shoulder in public. Both Mr Lim and Mr Chee grew up with the knowledge that having gay sex was illegal, but, more significantly, both of them felt the social stigma of being gay as they were growing up, and this feeling of stigmatisation continues to date.
[6] Both Mr Lim and Mr Chee are also apprehensive as they have heard of male homosexuals being charged with “gross indecency” under s 377A of the current Penal Code. Mr Lim runs TheBearProject, an informal social group for “plus-sized” gay men who engage in activities like hiking, movies, potluck gatherings, museum-hopping and overseas trips. However, he is worried about getting into trouble with the authorities and claims that it will be difficult to register TheBearProject as a society as automatic approval is not granted to societies which relate to “sexual orientation”.
[7] Mr Lim says that he experienced discrimination in school and in the army, which discrimination continues till this day, although his mother no longer asks him not to be gay. Similarly, Mr Chee says that he has seen and also experienced discrimination against gay people in school, in the army and in society. Both Mr Lim and Mr Chee feel that s 377A of the current Penal Code reinforces this discrimination, and that the very existence of this provision, whether or not it is enforced, labels them as criminals. Whilst Mr Lim and Mr Chee do not live in fear every day of being arrested, they say that it is always at the back of their minds that if the authorities wanted to, they could arrest them and charge them with an offence under s 377A of the current Penal Code.
[8] On 30 November 2012, Mr Lim and Mr Chee (collectively referred to hereafter as “the Plaintiffs”) filed OS 1135 seeking, in effect, a declaration that s 377A of the current Penal Code is inconsistent with Art 12 of the Constitution, and is therefore void by virtue of Arts 4 and 162 of the Constitution. The defendant in this action, the Attorney-General (“the Defendant”), has chosen not to file any affidavits in response. I therefore take the Plaintiffs’ affidavits as the factual basis on which I shall proceed to decide this case.
[9] In this judgment, I shall be referring to both s 377A of the current Penal Code as well as its predecessor provisions in earlier editions of our Penal Code. For ease of reference, I shall use the term “s 377A” to denote s 377A of the current Penal Code and, where the context requires, the applicable predecessor provision in force at the particular point in time being discussed. I shall also use the terms “s 377” and “the now-repealed s 377” interchangeably to refer to the now-repealed s 377 of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 Penal Code”), which criminalised “carnal intercourse against the order of nature with any man, woman or animals”. As for the term “the Constitution”, it should be read as denoting either the Constitution as defined at [1] above or, where the context requires, the applicable predecessor version of the Constitution. References to “male homosexual conduct” in the context of this judgment refer to acts of “gross indecency” between males, and likewise, references to “female homosexual conduct” refer to acts of “gross indecency” between females.
Preliminary issues
Locus standi
[10] This action is brought under O 15 r 16 and O 92 r 5 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”). The first requirement which the Plaintiffs have to meet before they can bring this action is that they must have the requisite locus standi. I would have thought that this was a threshold issue to be addressed as the Plaintiffs have not been charged under s 377A; neither have they been threatened with prosecution. No State organ or officer of the law has told or warned them that they cannot have the relationship which they currently have, or that if they sleep together in Mr Lim’s family home, they will be prosecuted. No one has prohibited them from cohabiting. Indeed, in their supporting affidavits for OS 1135, the Plaintiffs candidly state that the real pressure which they experience on account of their relationship seems to have been from their respective parents, their respective families and members of society, and not from any officer of the law. This could have a possible bearing on how the court exercises its discretion to determine whether the element of a real controversy in the matter (see Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112) is satisfied.
[11] As to whether the Plaintiffs have a real interest in bringing this action and whether there has been a violation of their personal rights, I note that the Court of Appeal in Tan Eng Hong v Attorney-General [2012] 4 SLR(R) 476 (“Tan Eng Hong”) has stated at [126] that:
[12] Be that as it may, since counsel for the Defendant, Mr Aedit Abdullah SC (“Mr Abdullah SC”) from the Attorney-General’s Chambers, has not argued that the Plaintiffs do not have the requisite locus standi to bring the present proceedings, I shall proceed on the basis that the Defendant is not disputing that the Plaintiffs do have the requisite locus standi.
The requests made by the Plaintiffs’ counsel in chambers
[13] At the start of the hearing, Mr Peter Cuthbert Low (“Mr Low”), counsel for the Plaintiffs, first applied for Assistant Professor Jack Lee (“Asst Prof Lee”) from the School of Law, Singapore Management University, and Assistant Professor Lynette Chua (“Asst Prof Chua”) from the Law Faculty, National University of Singapore (“NUS”), to sit in for the hearing. Mr Low said that Asst Prof Lee and Asst Prof Chua had been engaged by his firm from the start of these proceedings, had assisted in putting the written submissions together and were part of his legal team. Mr Low also said that he might need to consult Asst Prof Lee and Asst Prof Chua over any legal points that might arise in the course of the oral submissions. Mr Low confirmed that neither Asst Prof Lee nor Asst Prof Chua held practising certificates.
[14] Mr Abdullah SC objected to Mr Low’s application, stating that Asst Prof Lee and Asst Prof Chua were not advocates and solicitors with practising certificates but merely advisors, and their presence was not necessary. Mr Abdullah SC submitted that if Mr Low wanted to consult Asst Prof Lee and Asst Prof Chua at any point during the hearing, he could always ask the court for a short break to do so. Mr Abdullah SC also submitted that in principle, Asst Prof Lee and Asst Prof Chua did not have a sufficient “interest” in OS 1135 to have the right to sit in for this hearing, which was being held in chambers. Mr Abdullah SC conceded, however, that I had the discretion to either allow or disallow Mr Low’s application.
[15] I decided to allow Asst Prof Lee and Asst Prof Chua to sit in for the hearing on the basis that they were part of Mr Low’s legal team and had assisted him with OS 1135 from the beginning as well as with the drafting of the written submissions. They were in a position akin to experts, who may be allowed to sit behind counsel in a hearing and whom counsel may, from time to time in the course of a hearing, turn to consult. Furthermore, as OS 1135 raised an important constitutional issue, I was particularly glad to have an assistant professor from each of our law schools present: although they had no speaking rights at the hearing, they could make very valuable contributions by their input through Mr Low. Indeed, I noticed many notes being passed to Mr Low by Asst Prof Lee and Asst Prof Chua during the course of the oral submissions. I additionally gave the parties a two-hour lunch adjournment after the morning’s hearing so as to enable Asst Prof Lee and Asst Prof Chua to fully discuss the afternoon’s reply submissions with Mr Low. No doubt, Mr Abdullah SC would likewise have used that long lunch adjournment to discuss his reply submissions with his colleagues.
[16] Mr Low next asked permission for Mr M Ravi (“Mr Ravi”), counsel for the plaintiff in Originating Summons No 994 of 2010 (“OS 994”), to sit in for the hearing. The plaintiff in OS 994 is likewise challenging the constitutionality of s 377A and seeks reliefs similar to those sought by the Plaintiffs in this case, but based on different facts. Upon my query, Mr Low clarified that this request was not from the Plaintiffs nor from him; instead, Mr Ravi had been outside my chambers and had asked Mr Low to make the request. As Mr Ravi represented a different client in a different case and as the proceedings before me were proceedings in chambers, Mr Ravi did not have any interest in these proceedings other than as an observer. It appeared from the correspondence exchanged between Mr Ravi and Mr Low that they had discussed the developments in their respective cases with each other. I was of the view that Mr Low was free to tell Mr Ravi what happened in chambers after the hearing of OS 1135 was over. Moreover, Mr Ravi would have his chance to present his oral submissions in OS 994 before me on another day. I accordingly ruled against his presence in chambers.
Similar proceedings
[17] OS 994 (as mentioned above at [16]) gave rise to the Court of Appeal’s judgment in Tan Eng Hong. OS 994 was initially struck out by the High Court under O 18 r 19 of the Rules on the basis that it disclosed no reasonable cause of action and/or was frivolous and/or was an abuse of the process of court. The Court of Appeal allowed the plaintiff’s appeal, holding that he had the necessary standing to seek the declarations which he sought, and gave him leave to argue his case before the High Court. The Court of Appeal said (at [184] of Tan Eng Hong):
[18] The Court of Appeal (at [185] of Tan Eng Hong) framed a two-stage inquiry for the High Court to ascertain the constitutionality of s 377A under Art 12 of the Constitution as follows:
(a) whether the classification prescribed by s 377A was founded on an intelligible differentia; and
(b) whether that differentia bore a rational relation to the object sought to be achieved by s 377A.
I approach OS 1135 accordingly.
The parties’ respective cases
The Plaintiffs’ submissions
[19] The Plaintiffs’ first argument is that s 377A is contrary to Art 12 because the equal protection afforded by Art 12(1) extends to prevent discrimination on the basis of sexual orientation.
[20] Second, the Plaintiffs contend that s 377A fails the test of legality under Art 12 because s 377A is so absurd, arbitrary and unreasonable that it cannot be considered good law. 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.
[21] The Plaintiffs’ third set of arguments addresses the two-step test set out by the Court of Appeal in Tan Eng Hong at [185] to determine the constitutionality or otherwise of an allegedly unconstitutional legislative provision (“the two-step Tan Eng Hong test”) (see [18] above). Mr Low contends that s 377A fails the first step of the test as the classification which it prescribes discloses no intelligible differentia. It also fails the second step of the test as the differentia upon which that classification is based bears no rational relation to the object of s 377A.
[22] The Plaintiffs’ fourth group of contentions centre on international and comparative jurisprudence on a growing trend outside Singapore of guarding against discrimination based on sexual orientation.
[23] Because of the Plaintiffs’ emphasis in their written and oral submissions that s 377A is contrary to Art 12(1) as it discriminates against gay or bisexual men in an arbitrary, absurd and unreasonable manner, I asked Mr Low to clarify whether this factor (viz, discrimination in an arbitrary, absurd and unreasonable manner) was to be considered separate from – ie, a third requirement in addition to – the two-step Tan Eng Hong test, or whether it was to be treated as a concept applicable to how that two-step test was to be applied. Mr Low clarified that this factor was an over-arching principle that sat above the two-step Tan Eng Hong test. Essentially, Mr Low’s position is that a “law which is so absurd or arbitrary that it could not have been contemplated by our constitutional framers as ‘law’ when they crafted the constitutional provisions protecting fundamental liberties cannot be good law”.
[24] In relation to the Plaintiffs’ submission that the classification prescribed by s 377A discloses no intelligible differentia, Mr Low makes three points. The first is that the term “gross indecency” is too vague and does not allow s 377A to be applied with certainty. The second is that the vagueness of s 377A means that the provision could conceivably be applied in a grossly over-inclusive manner. The third point is that s 377A is under-inclusive as it criminalises only male homosexual conduct and not female homosexual conduct. It is unclear how the second and third points made by Mr Low relate to whether the classification prescribed by s 377A is founded on an intelligible differentia (viz, the first step of the two-step Tan Eng Hong test), although they may be relevant to the inquiry into whether there is a rational relation between the differentia used in s 377A and the object of s 377A (viz, the second step of the two-step Tan Eng Hong test).
[25] Mr Low submits that the “main intent and purpose of [s 377A] is clear: it is to prevent homosexual acts by criminalising them”. He also posits “two other discernible objectives” of s 377A, namely, to “not cause offence and polarisation in society” and to “reflect societal conservatism and preserve family values”.
[26] Mr Low submits that the retention of s 377A has led to the polarisation of society, which is the opposite effect of what Parliament intended. With regard to the objective of reflecting societal conservatism and preserving family values, Mr Low submits that there is no evidence to suggest that criminalising homosexuality will strengthen or preserve stable family values, or that decriminalising homosexuality will have a negative impact on family values or encourage homosexuality. Mr Low further argues that s 377A is unnecessary for the maintenance of public decency and the protection of young persons in light of other gender-neutral criminal provisions in the current Penal Code which are targeted at these objectives.
The Defendant’s submissions
[27] Counsel for the Defendant, Mr Abdullah SC, submits, first, that the classification prescribed by s 377A is founded on an intelligible differentia and, second, that the differentia bears a rational relation to the object of s 377A in terms of public morality or public health.
[28] On the “intelligible differentia” point, Mr Abdullah SC states that the differentia which underlies the classification prescribed by s 377A is based on gender. Persons within the group targeted by s 377A are men committing acts of “gross indecency” with other men. Persons left out of the group are “women committing comparable acts”.
[29] On the “rational relation” point, Mr Abdullah SC submits that there are two possible objectives of s 377A, both of which would bear a rational relation to the differentia underlying the classification prescribed by that section. The first objective of s 377A is concerned with preserving public morality in relation to male homosexual conduct and signifying society’s disapproval of such conduct. According to Mr Abdullah SC, this was the purpose of s 377A when it was first introduced into our penal legislation in 1938, and this purpose was also reflected in the Parliamentary debates in October 2007 on whether or not s 377A should be repealed (“the October 2007 Parliamentary Debates”): see Singapore Parliamentary Debates, Official Report (22–23 October 2007) vol 83 at cols 2175–2305 and 2354–2445. Mr Abdullah SC also submits that the October 2007 Parliamentary Debates further posit that the retention of s 377A recognises and helps to preserve the heterosexual family as the social norm in Singapore, and is the result of a political balance decided upon by our Legislature.
[30] With respect to the alternative objective of safeguarding public health, Mr Abdullah SC argues that although this objective may not have been articulated at the inception of s 377A, it ought to be accepted as a justification for differentiation at the time of s 377A’s enactment if it is a reasonable rationale. Mr Abdullah SC then refers to various medical reports which appear to suggest that there is a higher risk of certain diseases such as anal cancer, HIV/AIDS, syphilis, gonorrhoea and chlamydia for male-male sexual acts compared to male-female and female-female sexual acts.
[31] Mr Abdullah SC also submits that the non-inclusion of female homosexual conduct in s 377A is based on a rational criterion because public morality does not target female homosexual conduct in the same way as it targets male homosexual conduct. This can be inferred from the existence of s 377A, the lack of an articulated public demand for s 377A to be repealed and the lack of governmental legislative initiatives to criminalise female homosexual acts. A possible reason for this, as submitted by Mr Abdullah SC, is that female homosexual conduct is either less prevalent or is seen as being less repugnant than male homosexual conduct. Mr Abdullah SC also submits that the non-inclusion of female homosexual conduct in s 377A shows, at most, that the classification prescribed by s 377A is under-inclusive, and under-inclusive classification cannot, without more, mean that the law has prescribed a classification which is contrary to Art 12. This is borne out of the appreciation that legislative leeway should be given to Parliament. In this regard, Mr Abdullah SC cites the Indian Supreme Court’s decision in Shri Ram Krishna Dalmia v Shri Justice SR Tendolkar (1959) SCR 279 (“Ram Krishna Dalmia”) at 296 that “the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest”.
[32] Lastly, Mr Abdullah SC submits that the court must have regard to the presumption of constitutionality, which, he says, assumes the constitutionality of the law and places the burden of proving unconstitutionality on the person alleging it. Thus, Mr Abdullah SC submits, the burden is on the Plaintiffs to prove that “either the enactment or operation of the statutory differentiation was arbitrary, or, alternatively, that it does not rest upon any reasonable basis” [emphasis in original]. The discharge of this burden usually requires proof of positive evidence of arbitrariness. This also means that the court is entitled to take the view that s 377A does not cover female homosexual conduct as Parliament has chosen not to proscribe such conduct.
My analysis
The fundamental liberties enshrined in Art 12(1)
[33] The Plaintiffs rest their arguments squarely on Art 12. They contend that s 377A offends the fundamental liberties granted by Art 12(1) and should accordingly be struck down as unconstitutional. Article 12(1) reads as follows:
[34] The oft-cited ideals enshrined in Art 12(1) are that, first, all persons are equal before the law and, second, all persons are entitled to the equal protection of the law. These twin concepts of equality before the law and equal protection of the law are well known and of considerable antiquity. Courts have traced these concepts’ origins to the Magna Carta, also called the Magna Carta Liberatum (The Great Charter of the Liberties of England), signed at Runnymede in 1215, where the King of England conceded that he was not the fount of all law and justice and introduced the idea of the supremacy of the law of the land. Thereafter, the last vestiges of the feudal system with monarchical supremacy and aristocratic privileges were swept away by the French Revolution beginning in 1789 with a reputed battle cry which included the words “Equality” and “Liberty”. It is not surprising, therefore, to find these two ideals – viz, equality before the law and equal protection of the law – enshrined in many other Constitutions. These include the Fourteenth Amendment of the US Constitution (“the US Fourteenth Amendment”) and, in particular, Art 14 of the Indian Constitution, upon which our Art 12 is obviously based. Article 14 of the Indian Constitution reads:
As can be expected, the Malaysian Constitution, from which our Constitution was drawn, has an identical provision in Art 8(1).
[35] The first principle in Art 12(1) – viz, equality before the law – comes from English common law, which prohibits special privileges in favour of any individual and mandates the equal subjection of all classes of persons to the law: see Albert Venn Dicey, Law of the Constitution (Macmillan, 10th Ed, 1959) at pp 202–203. A person’s social standing, achievements, accolades, wealth, learning and family ties are not distinguishing factors as far as the law and its application are concerned, nor do they entitle a person to any different treatment under the law.
[36] The formulation of the second principle in Art 12(1) – viz, that all persons are entitled to the equal protection of the law – comes from the US Fourteenth Amendment, which prescribes that “no state shall … deny to any person within its jurisdiction the equal protection of the laws” [emphasis added]: see Durga Das Basu, Commentary on the Constitution of India (S C Sarkar & Sons (P) Ltd, 6th Ed, 1975) at vol B, p 1. Some historical background to this provision would be helpful. The US Fourteenth Amendment was enacted in 1868, shortly after the end of the American Civil War, to counter legislation in the former Confederate States which restricted the rights of freed black slaves to own both personal and real property as well as to enter into certain kinds of contracts, and subjected them to harsher criminal penalties than whites. The US Fourteenth Amendment was necessary to redress this discrimination by making such legislation unconstitutional, and to guarantee the rights of and protect emancipated black slaves who were now also full citizens of the US just like their white counterparts: see Tan Yock Lin, “Equal Protection, Extra-Territorialiy and Self-Incrimination” (1998) 19 Sing LR 10 (“Tan Yock Lin”) at p 11. Thus, in Strauder v West Virginia 100 US 303 (1880), a statute in West Virginia which excluded blacks from serving on juries was struck down by the US Supreme Court as unconstitutional under the US Fourteenth Amendment and the conviction of a black man by an all-white jury was set aside. The equal protection clause also ensured that other races enjoyed the same civil rights that were enjoyed by whites. In Yick Wo v Hopkins 118 US 356 (1886) (“Yick Wo”), the US Supreme Court struck down not the law, which was fair and impartial on its face, but the administrative discriminatory implementation of the law against the Chinese, who were refused licences to operate their laundries in wooden buildings in San Francisco, whereas many non-Chinese secured licences to operate laundries in similar buildings. Stanley Matthews J, writing for the court, said (at 369):
The court also noted that no reason was given as to why the Chinese petitioners in Yick Wo, along with two hundred other Chinese, were denied the right to operate their laundries in wooden buildings, whilst eighty other non-Chinese were granted licences to do so. The US Supreme Court went on to rule (at 374):
[37] Professor Tan Yock Lin (“Prof Tan”) has argued in Tan Yock Lin (at p 11) that initially, the principle of equal protection of the law was restricted to being a guarantee of procedural or administrative equality, but was soon expanded to include a guarantee of substantive equality as well (citing Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155 (“Datuk Haji”)). With respect, I agree.
[38] It will be seen that equality before the law and equal protection of the law are but different aspects of the same doctrine – equal justice. The first expresses the immutable principle of equal subjection of all classes of persons to the law, and the second is the positive aspect of that principle which reaches out, when invoked, to strike down unequal laws and discriminatory administrative or executive action as unconstitutional and void.
[39] In Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 (“Taw Cheng Kong (CA)”), the Court of Appeal (at [52]–[53]) noted the origin of these twin concepts as follows:
This correctly encapsulates the origins of the US Fourteenth Amendment. One of the prime movers of the US Fourteenth Amendment was Congressman John Armor Bingham of Ohio. In one of his speeches to the House of Representatives, he emphasised that “equal protection of the laws” stemmed from Art 40 of the Magna Carta: see Cong Globe, 42nd 1st Sess Appendix, 83 (1871).
[40] It has been well said by Dr Thio Su Mien (“Dr Thio”), a former dean of the NUS Law Faculty and a prominent lawyer, in S M Huang-Thio, “Equal Protection and Rational Classification” [1963] PL 412 (“Huang-Thio”) (at p 412) that:
[41] Herein lies the paradox: it becomes evident the moment one moves from lofty ideals, which have everything to commend them, to practical implementation. As Dr Thio herself postulates, do “equal laws” connote that all laws must be equal in their application? Must all laws apply universally to all persons in all circumstances? Dr Thio’s self-evident answer (at p 413) is:
Legislatures around the world have to continually classify diverse groups and activities within their society for different purposes and different treatment in areas such as health care, welfare and immigration, just to name a few. This is clearly illustrated in issues like taxation, differences between corporations and individuals, protection of women, young children and the mentally infirm – the list is long. It is implicit from Art 12 itself that Art 12(1) does not prohibit classification in toto because it is immediately followed by two other clauses, Art 12(2) and Art 12(3), which set out, respectively, prohibited and permitted kinds of discriminatory classification:
[42] The Indian Supreme Court in Chiranjit Lal v Union of India (1950) SCR 869 (“Chiranjit Lal”) acknowledged (at 932):
Similarly, in Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128 (“Su Liang Yu”), which was cited by our Court of Appeal in Taw Cheng Kong (CA) at [53] (see [39] above), the Malaysian court said (at 129):
Prof Tan opines (see Tan Yock Lin at p 12):
[43] In Taw Cheng Kong (CA), the Court of Appeal cited (at [57]) with approval the following passage from the judgment of Salleh Abas LP (which, although a dissenting judgment, was not disputed in terms of the law applied and the approach taken) in Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165 (“Malaysian Bar”) at 166–167:
[44] It is therefore clear and important to note that Parliament, in dealing with the issues arising within and without the country, is entitled to pass laws that deal with, inter alia, the myriad of problems that arise from the inherent inequality and differences pervading society. In so dealing with specific problems and specific groups of people, it is inevitable that classification will produce inequality of varying degrees. It is now settled law that equality before the law and equal protection of the law under Art 12(1) does not mean that all persons are to be treated equally, but that all persons in like situations are to be treated alike: see, eg, Taw Cheng Kong (CA) and Ong Ah Chuan and another v Public Prosecutor [1979–1980] SLR(R) 710 (“Ong Ah Chuan”).
The “reasonable classification” test
[45] The test for constitutionality under Art 12(1) has been termed the “reasonable classification” test (see Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103 (“Nguyen”) at [70] and Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong”) at [111]). This test is well established in the common law. The Court of Appeal in Taw Cheng Kong (CA) distilled the “reasonable classification” test from the Privy Council decision of Ong Ah Chuan at [37], the Indian Supreme Court cases of Ram Krishna Dalmia and Ghulam Sarwar v Union of India [1967] 2 SCR 271, and the Malaysian cases of Datuk Haji and Government of Malaysia v VR Menon [1990] 1 MLJ 277. It also cited with approval two of the three judgments delivered in Malaysian Bar, namely, the judgment of Salleh Abas LP (see [43] above) and that of Mohamed Azmi SCJ (see Malaysian Bar at 170), quoting (inter alia) the following extract from the latter judgment (see Taw Cheng Kong (CA) at [58]):
[46] This test is the same as the two-step Tan Eng Hong test set out at [18] above, which is binding upon me. In accordance with that test, where the impugned legislation has a differentiating measure, that legislation will only be consistent with Art 12(1) if:
(a) the classification prescribed by the legislation is founded on an intelligible differentia (“the First Limb”); and
(b) the differentia bears a rational relation to the object sought to be achieved by that legislation (“the Second Limb”).
The First Limb – intelligible differentia
[47] The First Limb requires that the classification prescribed by the impugned legislation must be based on an intelligible differentia. “Intelligible” means something that may be understood or is capable of being apprehended by the intellect or understanding, as opposed to by the senses. “Differentia” is used in the sense of a distinguishing mark or character, some attribute or feature by which one is distinguished from all others. Scientifically, one talks of an attribute by which a species is distinguished from all other species of the same genus.
[48] Applying this to the present case, it is quite clear that the classification prescribed by s 377A – viz, male homosexuals or bisexual males who perform acts of “gross indecency” on another male – is based on an intelligible differentia. It is also clear from the differentia in s 377A that the section excludes male-female acts and female-female acts. There is little difficulty identifying who falls within this classification and who does not. The Court of Appeal seemed to say as much in Tan Eng Hong at [125]–[126]. In my view, the First Limb is satisfied and few can cavil with this conclusion.
The Second Limb – rational relation to the object of the legislation
[49] The Second Limb requires an ascertainment of the object or purpose of the statutory provision in question followed by a determination of whether the differentia underlying the classification prescribed by that legislation bears a rational relation to the object or purpose of the provision. Both these elements are more complex than they appear.
[50] Determining the purpose or object of a piece of legislation is not always a straightforward task, for example:
(a) What if the legislation in question or the Legislature is silent on the purpose or object of the legislation? Do we frame the purpose or object generally with regard to all the provisions of the legislation, or do we only take the section or group of sections which we are concerned with?
(b) There is sometimes a general statement explaining the need for an Act when it is first introduced in Parliament, but does that general statement always apply to the many individual and varying statutory provisions within the Act, which may be quite specific in their application and effect? The current Penal Code, with over 500 sections, is a prime example.
(c) If the legislation in question was added as an amendment, and in introducing the amendment, there was no or insufficient articulation of the purpose or object of that amendment, what purpose or object is to be ascribed to it? Should it be its own purpose or object as ascertained by the court, or the original purpose or object of the statute within which it appears when that statute was first introduced in Parliament?
(d) Is the purpose or object of a piece of legislation to be framed narrowly and/or simply, or widely and therefore more vaguely? As we shall see below from the High Court’s judgment in Taw Cheng Kong v Public Prosecutor [1998] 1 SLR(R) 78 (“Taw Cheng Kong (HC)”) and the Court of Appeal’s judgment in Taw Cheng Kong (CA), how the purpose of a piece of legislation is framed does make a difference when ascertaining whether there is a rational relation between the differentia underlying the classification prescribed by that legislation and the purpose of that legislation.
(e) What if, as here, the provision in question started out as a provision enacted in England in 1885, and was later introduced into Singapore in 1938? Assuming the purpose of the provision was expressed when it was enacted in England, do we take that original English purpose or the purpose for which the provision was introduced into Singapore in 1938? More generally, in determining the purpose or object of a local statutory provision, can we look at the Parliamentary records of the country or countries from which the provision originated?
(f) What if additionally, as in this case, substantial amendments to the 1985 Penal Code were tabled before Parliament in October 2007 but not on s 377A, although there were debates (ie, the October 2007 Parliamentary Debates (see [29] above)) on the continued retention of that section as well as a call for its repeal because of a petition submitted by a Nominated Member of Parliament (“NMP”), and no vote was ultimately taken on its possible repeal: do we ascertain or identify the object or purpose of s 377A based on the October 2007 Parliamentary Debates? What if there are differences between the purpose of s 377A as stated in 1938 when this provision was first introduced into our penal legislation and the purpose as stated during the October 2007 Parliamentary Debates: which purpose or purposes are to be adopted?
(g) What if the original purpose or object of the legislation in question is no longer valid or has ceased to exist, but there is a new and valid purpose or object which the legislation fulfils: are we permitted to substitute the new purpose or object to ascertain whether the differentia underlying the classification prescribed by that legislation bears a rational relation to this new purpose or object?
[51] When we come to the “rational relation” element, we can also face some very daunting issues. For instance:
(a) If the courts are able to ascertain a more efficient or different classification which will better achieve the purpose or object of the legislation concerned, can the courts then strike down the legislation on the basis that the differentia underlying the classification prescribed therein lacks a rational relation with the purpose or object of that legislation?
(b) What if there is significant under-classification (eg, the object or purpose of the legislation covers five different groups in society, but the legislation only singles out and affects one of the five groups): does that point to the non-existence of a rational relation between the differentia underlying the classification prescribed by the legislation and the purpose or object of that legislation?
(c) What if there is significant over-classification (eg, the object or purpose of the legislation covers two groups in society, but the legislation affects not only those two groups but five other groups as well): does that likewise point to the non-existence of a rational relation between the differentia underlying the classification prescribed by the legislation and the purpose or object of that legislation?
(1) The difficulties of applying the Second Limb: Taw Cheng Kong (HC) and Taw Cheng Kong (CA)
[52] Some of the complexities in applying the Second Limb can be illustrated by a comparison of the respective approaches taken in Taw Cheng Kong (HC) and Taw Cheng Kong (CA). In the discussion which follows (at [53]–[61] below), only the relevant aspects of these two decisions in relation to Art 12 will be considered, with the other issues raised (eg, the ultra vires doctrine and the admissibility or inconsistency of evidence) being put to one side.
[53] The accused in Taw Cheng Kong (HC), a Singapore citizen, was a regional manager of the Government of Singapore Investment Corporation (“GIC”) based in Hong Kong. He was in charge of GIC’s equity portfolios in Hong Kong and the Philippines, and had the authority to decide which companies GIC would invest in, with about S$1 billion at his disposal. He was convicted by a District Court of corruption for receiving from one Kevin Lee, a Managing Director of Rockefeller’s Far East operations, various sums of money each time GIC invested in a Pioneer Hong Kong Fund managed by Rockefeller and an “incentive fee” each time he caused GIC to purchase shares in certain companies. The accused’s conviction was based on s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA”), read together with s 37(1) thereof, which provides as follows:
[54] One of the grounds which the accused relied upon in his appeal to the High Court against his conviction and sentence by the District Court was that s 37(1) of the PCA discriminated against him as a Singapore citizen and violated his rights under Art 12(1). He contended that the criterion of citizenship in s 37(1) of the PCA was arbitrary and discriminatory, in that if a non-citizen or a Singapore permanent resident, together with a Singapore citizen, jointly committed an offence under the PCA abroad, only the Singapore citizen could be dealt with and charged, but not the non-citizen or the Singapore permanent resident.
[55] M Karthigesu JA, sitting as a High Court judge on the accused’s appeal, found that s 37(1) of the PCA was discriminatory and violated the accused’s rights under Art 12(1). He therefore held s 37(1) of the PCA to be unconstitutional, allowed the accused’s appeal and set aside his conviction and sentence. In dealing with the Second Limb (viz, whether the differentia of citizenship adopted in s 37(1) of the PCA bore a reasonable relation or rational nexus to the object of that Act), Karthigesu JA ruled:
(a) According to the relevant Parliamentary debates, the PCA was originally enacted in 1960 (as the Prevention of Corruption Ordinance 1960 (No 39 of 1960) (“the original PCA”)) to eradicate corruption from Singapore’s Civil Service (“the Singapore Civil Service”) and among fiduciaries in Singapore, and not corruption globally irrespective of national boundaries.
(b) Section 37(1) of the PCA was not part of the original PCA and was added by an amendment in 1966. It was incorrect, as a matter of statutory interpretation, to “rely on earlier material to interpret subsequent legislation as if the subsequent legislation was tailored from a retrospective standpoint … to fit seamlessly into the schematics of the original Act” (see Taw Cheng Kong (HC) at [40]), and it was important to look at the amending legislation afresh.
(c) From the Parliamentary material relating to the enactment of the original PCA in 1960 and the subsequent addition of s 37(1), it could be seen that s 37(1) was added to address acts of corruption taking place outside Singapore but affecting events within Singapore.
(d) Therefore, classification along the lines of citizenship was an unreasonable means of attaining the objective of s 37(1) of the PCA for it was both over-inclusive and under-inclusive:
(i) It was over-inclusive as it included a class of persons not originally contemplated as falling within the objective of the PCA: eg, a Singapore citizen who was now a permanent resident of and employed in a foreign country, and who received a bribe in a foreign currency from a foreign payor for an act to be done in that foreign country and not Singapore. Such a person would be guilty of a corruption offence because of s 37(1) of the PCA.
(ii) It was under-inclusive as it failed to include a class of persons who clearly fell within the mischief sought to be addressed by the PCA: eg, a Singapore permanent resident or a foreigner working in the Singapore Civil Service who took a trip outside Singapore to receive a bribe in Singapore dollars in relation to an act which he was do in Singapore. Such a person would not be caught by s 37(1) of the PCA.
(e) The Singapore permanent resident or foreigner in scenario (d)(ii) above posed a greater threat to the integrity of the Singapore Civil Service than the Singapore citizen employed abroad in scenario (d)(i) above, but only the latter, and not the former, was caught by s 37(1) of the PCA.
(f) The strength of the nexus or relation between the objective of the PCA and the differentia underlying the classification prescribed therein (viz, the differentia of citizenship) was insufficient to justify the derogation from the constitutional guarantee of equality in Art 12(1).
[56] As pointed out by Prof Tan in Tan Yock Lin (at pp 15–16), Karthigesu JA’s narrow framing of the object or purpose of the PCA was decisive. Karthigesu JA tied the objective of the PCA back to Singapore, ie, the object of the PCA was to eradicate corruption which infringed on the efficient running of the Singapore Civil Service and stem out corrupt practices amongst fiduciaries in Singapore. Since s 37(1) of the PCA was added to address acts of corruption taking place outside Singapore but affecting events within Singapore, that made the differentia employed – viz, that of citizenship – more vulnerable to failing to achieve the purpose.
[57] Following the accused’s acquittal by the High Court in Taw Cheng Kong (HC), the Attorney-General brought a criminal reference on questions of law under s 60 of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed). One of these questions was whether s 37(1) of the PCA was discriminatory against Singapore citizens and, hence, inconsistent with Art 12(1). The Court of Appeal considered the concept of equality and the tests for determining whether a statute or an executive act violated Art 12, applied those tests to s 37(1) of the PCA and answered this question in the negative. In dealing with the issues surrounding the object of the PCA and the application of the “rational relation” requirement, the following points made by the Court of Appeal (at [60]–[88] of Taw Cheng Kong (CA)) are germane:
(a) Without commenting on Karthigesu JA’s approach to statutory interpretation in ascertaining the purpose or object of the PCA and of the later enactment of s 37(1) of the PCA (see [55(b)]–[55(c)] above), the Court of Appeal looked at the preamble to the PCA, which reads: “[a]n Act to provide for the more effectual prevention of corruption”, and framed the purpose of s 37(1) of the PCA quite differently and broadly (see Taw Cheng Kong (CA) at [63]):
(a) Thus formulated, s 37(1) of the PCA was capable of capturing all corrupt acts by Singapore citizens outside Singapore while still falling within the broad purpose of controlling and suppressing corruption.
(b) The removal from the objective of the PCA of any reference to acts of corruption which had a demonstrable effect in Singapore made it immediately easier to justify the constitutionality of the differentia prescribed in s 37(1) of the PCA.
(c) The Court of Appeal also dismissed the notion that the under-inclusiveness or over-inclusiveness of s 37(1) of the PCA meant that it was unconstitutional:
(i) In the case of under-inclusiveness, Parliament had to respect international comity, which made it impractical to extend s 37(1) of the PCA to non-citizens outside of Singapore.
(ii) In the case of over-inclusiveness (viz, a Singapore citizen who was a foreign permanent resident employed in a foreign country and who received a bribe paid in foreign currency by a foreign payor for an act to be done in that foreign country), it was irrelevant to the constitutional issue of equality because s 37(1) of the PCA applied to all Singapore citizens as a class.
(b) The Court of Appeal said (at [82] of Taw Cheng Kong (CA)):
(d) The Court of Appeal (at [81] of Taw Cheng Kong (CA)) accepted that even if s 37(1) of the PCA was under-inclusive, in that it failed to capture non-citizens whose corrupt acts outside Singapore had consequences in Singapore, the overriding need to observe international comity made it impractical to extend s 37(1) of the PCA to capture non-citizens whose corrupt acts outside Singapore had consequences in Singapore. The Court of Appeal also held that it was undeniable that s 37(1) of the PCA would go some way toward capturing the corrupt acts of Singapore citizens abroad and that, itself, furthered the object of the PCA. It said (likewise at [81]):
(e) The Court of Appeal found that it was not unreasonable or irrational for s 37(1) of the PCA not to apply to the corrupt activities of Singapore permanent residents and non-citizens which took place outside Singapore.
[58] Prof Tan has made a number of comments on Taw Cheng Kong (CA) in Tan Yock Lin (at pp 15–16). The first relates to the importance of the proper framing of the object or purpose of the impugned legislation. If the true purpose of s 37(1) of the PCA and the PCA itself is not to deter the causing of harmful effects in Singapore from corruption but to deter the participation of Singaporeans in corruption, then the objection of over-inclusiveness (based on the example of the Singapore citizen who lives abroad and commits a corrupt act abroad which has no effect in Singapore) disappears because it falls within the aforesaid re-framed purpose. Prof Tan has also made the following comments (see Tan Yock Lin at pp 18–19):
(a) The Court of Appeal was wrong in dismissing over-inclusiveness as irrelevant on the ground that s 37(1) of the PCA applied to all Singapore citizens. In other words, it was incorrect of the Court of Appeal to say that since there was equality within the class targeted by s 37(1) of the PCA, the provision was fair, and the differentiation permissible. Prof Tan comments that this amounts to a tautology and, therefore, no classification would ever be over- or under-inclusive:
(b) If the under-inclusiveness of s 37(1) of the PCA is justified purely on the basis of international comity, then whilst this might explain why the citizenship criterion is sound, there would be a glaring under-inclusion in the case of the Singapore permanent resident. In Prof Tan’s view:
[59] With the greatest respect, and with due deference to the Court of Appeal in Taw Cheng Kong (CA), Prof Tan does make some valid points, the most important of which, in my view, is his criticism of the use of tautological reasoning in deciding whether or not a classification is constitutionally permissible. In this same regard, Prof Tan raised the Privy Council case of Ong Ah Chuan as another example of tautological reasoning. The question posed to the Privy Council in that case (at [32]) was whether it was inconsistent with Art 12(1) to impose a mandatory death penalty on an offender who “gratuitously supplied an addict friend with 15g of heroin from his own private store, and to inflict a lesser punishment upon a professional dealer caught selling for distribution to many addicts a total of 14.99g”. In answering this question, Lord Diplock made a number of important observations (at [33] and [35]–[37]):
[60] Lord Diplock’s judgment presents two clear strands of principles. The first strand concerns differentiation within the same class, which is always prohibited; the second concerns differentiation between two or more different classes, which is permissible if it passes the “reasonable classification” test. If we apply Prof Tan’s reasoning, it will be seen that this is, in effect, a possibly illusory distinction. Although Lord Diplock appears to have distilled two categories of cases, there is in fact only one category governed by the fundamental rule that “like should be treated alike”. This is because within Lord Diplock’s first category of differentiation (ie, differentiation within one single class), it is more often than not conceptually possible to break down the single class into smaller classes, thereby creating two or more classes. For example, returning to Taw Cheng Kong (HC) and Taw Cheng Kong (CA), Singapore citizens, Singapore permanent residents and foreigners living in Singapore can all perform corrupt acts which adversely affect the Singapore Civil Service and/or fiduciaries in Singapore. We can create one class with all three groups within it on the basis that their corrupt acts adversely affect the Singapore Civil Service and/or fiduciaries in Singapore. In such an event, we cannot discriminate within that one big class. But, we can also create two classes out of the three groups: one class that resides here, and another class that resides outside Singapore but performs corrupt acts which affect Singapore. It would then be acceptable to discriminate against one class because such discrimination would be across classes, but we are, in effect, discriminating against some of these people but not others when they were previously grouped as one big class. The same tautology is seen if we classify these persons into three classes – viz, Singapore citizens, Singapore permanent residents and foreigners living in Singapore – in which case, it is again permissible to discriminate against a particular class. Similarly, we can classify these same persons into six groups: from each of the three groups (viz, Singapore citizens, Singapore permanent residents and foreigners living in Singapore), we can divide them further into those that do acts which affect Singapore, and those that do not. We can divide them further into twelve groups if we add in the factor of where the gratification was accepted or where the bribe was made, ie, whether in Singapore or overseas.
[61] The way to avoid this tautology is to be less fixated with the idea of classes, and more focused on the fundamental rubric that “like should be treated alike”. In determining whether like persons are being treated alike, the inquiry has to be informed by the purpose of the legislation in question and its connection to the differentia underlying the classification prescribed by the challenged legislation. Speaking in the abstract of permissible discrimination between classes and impermissible discrimination within a class is not helpful.
[62] Bearing in mind the above, I now examine the object of s 377A and the issue of whether there is a rational relation between that object and the differentia underlying the classification prescribed by s 377A. I begin with the former.
(2) What is the object of s 377A?
(A) The Labouchere Amendment
[63] The Court of Appeal in Tan Eng Hong has (at [23]–[33]) comprehensively set out the legislative history of s 377 and s 377A, and there is no need to repeat the same, save to refer to it where relevant. The wording of s 377A comes from the amendment commonly known in England as “the Labouchere Amendment” (see Tan Eng Hong at [26]), which was introduced into English criminal law via s 11 of the Criminal Law Amendment Act 1885 (c 69) (UK) (“the UK 1885 Act”). The proposer of this amendment, Mr Henry Labouchere (“Mr Labouchere”), was described as a radical Liberal Party Member of Parliament (“MP”) and a banking heir who had put his money and energies into a radical, muck-raking newspaper called “Truth”. He advocated, inter alia, the abolition of the House of Lords and an end to racism, and championed the working classes, women and the dispossessed: see Douglas E Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia” (2009) 4 Asian Journal of Comparative Law 163 at p 176. The preamble to the UK 1885 Act stated that it was an Act to make further provision for, inter alia, the protection of women and girls and the suppression of brothels. Section 11 of that Act specifically focused on sexual conduct, both in public and in private, between male homosexuals and was thus not quite related to the preamble. The reasons for the enactment of the Labouchere Amendment are now a little obscure. Francis Barrymore Smith (“Smith”), in his article “Labouchere’s Amendment to the Criminal Law Amendment Bill” (1976) 17 Historical Studies 165 (“F B Smith”), states that: “[t]he question [of why the Labouchere Amendment was enacted] can never be settled convincingly. Mr Labouchere’s personal papers mostly seem to have been destroyed and the few that are known have no bearing on this episode.” At paras 106–108 of the United Kingdom Report of the Departmental Committee on Homosexual Offences and Prostitution (Cmnd 247, 1957) (“the Wolfenden Report”), the additional points emerge:
(a) Buggery and attempted buggery, wherever and with whomsoever committed, have long been criminal offences in the UK. These acts are criminal offences regardless of whether they are committed in public or in private and whether they are committed between consenting parties or non-consenting parties.
(b) The Labouchere Amendment was introduced in the late stages of a Bill to make further provision for, inter alia, the protection of women and girls and the suppression of brothels (“the 1885 Bill”). Specifically, this amendment was introduced in the House of Commons at the report stage of the 1885 Bill (ie, the 1885 Bill had already been passed by the House of Lords, where it had been introduced without any reference to “gross indecency” between males). Mr Labouchere’s reasons for introducing the amendment were recorded as follows (see Daily Debates (6August 1885) at col 1397):
(c) The Labouchere Amendment was passed by the House of Commons without any discussion on its substance, the only question raised being whether it was in order to move an amendment that dealt with a class of offence totally different from the offences contemplated by the 1885 Bill, which had already been read for the second time in the House of Commons.
(d) The Speaker of the House of Commons ruled that anything could be introduced by the leave of the House, and the Labouchere Amendment was adopted.
(e) The clause which became s 11 of the UK 1885 Act went much wider than Mr Labouchere’s stated intention as set out at sub-para (b) above, and it seems probable that the UK Parliament let it pass without the detailed consideration which such an amendment would almost certainly receive today.
(f) Lastly, s 11 of the UK 1885 Act read as follows:
It appears that the original intent behind s 11 of the UK 1885 Act was to protect any person from an indecent assault “of the kind here dealt with”, regardless of whether that person was below or above 13 years of age and whether the act in question was committed in public or in private. It was not specifically directed at criminalising male homosexual conduct. However, what was eventually passed into law was something different and more far-reaching as it made acts of “gross indecency” between males, whether in public or in private and whether or not there was consent, an offence.
[64] Although the purpose of the Labouchere Amendment and the history of its passage into the statute books may remain obscure, the implementation or enforcement of the resulting legislative provision – s 11 of the UK 1885 Act – did not. Oscar Wilde was one of those prosecuted, convicted and sentenced to two years’ imprisonment with hard labour under that provision in 1895. In convicting him and imposing the maximum sentence on him, the trial judge, Wills J, said that the maximum sentence allowed was “totally inadequate for a case such as this”, and that the case was “the worst case I have ever tried”: see F B Smith at p 171; see also “Sentencing Statement of Justice Wills” <http://law2.umkc.edu/faculty/projects/ftrials/wilde/sentence.html> (accessed 29 March 2013). What we do know of Victorian society at the time of Oscar Wilde’s trial is that society felt it a great depravity and immorality to have men like Oscar Wilde in society seducing young boys and men into leading their way of life, and felt that this kind of conduct deserved the clearest condemnation. Smith (in F B Smith at p 165) writes that “within the decade there developed in the British public a rabid detestation of male homosexuality” [emphasis added].
[65] What can be gleaned today, almost 130 years later, is that Mr Labouchere wanted to introduce legislation to protect persons above the age of 13 (as the existing law already protected those below 13) from assaults of the kind dealt with by the Labouchere Amendment, even though this proposed amendment did not quite fall within the main purposes of the 1885 Bill. Although the reason given by Mr Labouchere appeared gender-neutral, the provision that was passed clearly targeted homosexual males and applied to acts of “gross indecency” between males, whether in public or in private and whether or not there was consent. It must also be remembered in context that in the UK, it was only in 1861 (via s 61 of the Offences Against the Person Act 1861 (c 100) (UK) (“the UK 1861 Act”)) that the death penalty for the offence of buggery was replaced with life imprisonment. Further, it may well be that the phrase used by Mr Labouchere – viz, “assault[s] of the kind dealt with” – referred to sexual acts committed by male homosexuals.
(B) The Penal Code (Amendment) Ordinance 1938 (No 12 of 1938)
[66] Whilst s 11 of the UK 1885 Act was not imported into the Indian Penal Code 1860 (Act No 45 of 1860) (“the IPC”), from which our Penal Code is derived, it found its way into many of the former British colonies, including Singapore, Hong Kong, Malaysia, Gibraltar and Australia (see also the equivalent provisions in Kenya, Malawi, Zambia, Jamaica, Kiribati, Nauru and Tuvalu), where some of the corresponding provisions survive to this day. In Singapore, s 11 of the UK 1885 Act was introduced into the Penal Code (Cap 20, 1936 Rev Ed) (“the 1936 Penal Code”) by the Penal Code (Amendment) Ordinance 1938 (No 12 of 1938) (“the Howell Amendment”). As set out in Tan Eng Hong at [27], the then Attorney-General, Mr C G Howell (“AG Howell”), made the following statements in the Legislative Council on the introduction of the Howell Amendment (see Proceedings of the Legislative Council of the Straits Settlements (13 June 1938) at p B49):
[67] From this short address, it can be seen that the reasons given for the introduction of the Howell Amendment were as follows:
(a) it was “unfortunately the case” – ie, it was a regrettable state of affairs or a misfortune or an undesirable thing or state of affairs – that males were engaged in grossly indecent acts with other males;
(b) such acts had been brought to notice;
(c) at that time, such acts could be dealt with by the law only if they were committed in public;
(d) the chances of detecting such acts were small; and
(e) it was desirable to strengthen Singapore’s criminal law and bring it in line with English criminal law as well as the criminal law of other British colonies.
The purpose of s 377A’s enactment was therefore clear. The act of males engaging in grossly indecent acts with other males was to be criminalised. The prevalence of such acts was a regrettable state of affairs and was not desirable. It was necessary to strengthen the criminal law and enable it to prosecute males engaging in such grossly indecent acts even if the acts were committed in private. This was because the then prevailing law made it difficult to detect and prosecute such acts.
[68] In today’s context, three things are notable about the Howell Amendment:
(a) The proposed new section would only apply to grossly indecent acts between males. Females were not included or targeted.
(b) At the time when the Howell Amendment was enacted by the Legislative Council in 1938, Singapore had no Constitution as such nor any provisions relating to fundamental liberties. (In 1938, the Governor of the Straits Settlements (“the Governor”), Sir Shenton Thomas, ruled the Colony of Singapore as part of the Straits Settlements under Letters Patent with the assistance of the Executive Council and the Legislative Council. The Legislative Council was, in a sense, entrusted with the law-making powers of the Straits Settlements. It was composed of members of the Executive Council, the Chief Justice and representatives appointed by the Governor, with the Governor having the power of assent and the right of veto in respect of all proposed legislation: see Essays in Singapore Legal History (Kevin Y L Tan gen ed) (Marshall Cavendish Academic, Singapore Academy of Law, 2005) at pp 37–40.)
(c) The proposed new section would apply even to grossly indecent acts between males done in private.
[69] As I mentioned earlier, the original purpose of s 11 of the UK 1885 Act, from which our s 377A is derived, was admittedly a little hazy and appears to have changed from its original intention to become a more wide-reaching provision. However, by 1938, when s 11 of the UK 1885 Act was adopted locally as s 377A of the 1936 Penal Code, the purpose of the provision, although laconically expressed, was quite clear. Acts of “gross indecency” between males, whether in private or in public and whether or not there was consent, constituted criminal behaviour, and it was a criminal offence to indulge in such acts.
[70] In my judgment, the purpose or object of s 377A is that articulated by AG Howell in 1938 when he spoke in the Legislative Council and introduced the provision which later became s 377A (see [66]–[67] above). In ascertaining the purpose or object of a statutory provision, if such purpose or object is not already clear from the provision itself (which is not the case here), then in accordance with s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the Interpretation Act”), we may look to any explanatory statement in the Bill introducing the provision or to the speech made in Parliament at the second reading of that Bill. These must be the primary guideposts. The purpose of an earlier precursor of the statutory provision, especially if that precursor is a statute or subsidiary legislation from another jurisdiction, is but a secondary guidepost at best, referable for context or for elucidation when the primary guideposts are silent or unclear. Such secondary guideposts must be used with extreme caution. For instance, the Labouchere Amendment was introduced in the UK in 1885 and more than 50 years passed before s 377A was introduced into the 1936 Penal Code in Singapore. English society and norms in 1885 must have been vastly different from those prevailing in Singapore in 1938. Furthermore, our Penal Code originates from India, and not England. In this regard, Karthigesu JA’s warning in Taw Cheng Kong (HC) – viz, that statutory provisions which are inserted later in time should not necessarily be governed by or interpreted based on earlier material – is all the more apposite. Statutory provisions are sometimes adopted with modifications or undergo amendments before they are passed into law. Bills, drafts, precursors and Parliamentary speeches should not be resorted to uncritically. Looking to another jurisdiction with similar statutory provisions, which may be helpful in some cases, should also be done bearing in mind factors like possible differences in the purpose of the corresponding foreign statutory provisions, possible differences between the legislative history of that foreign jurisdiction and the legislative history of Singapore, the context of the legal system or statute within which the corresponding foreign statutory provisions are contained, as well as possible differences in that foreign jurisdiction’s society and its individual or special needs. In this case, given AG Howell’s articulation in 1938 of the purpose of the Howell Amendment, I do not think the ascertainment of the purpose of s 377A would be helped very much by looking at English sources; these sources can only be contextual background at best.
[71] When Singapore formed part of Malaysia in 1963, the Federal Constitution of Malaysia which contained Art 8 became applicable. When Singapore became an independent and sovereign nation on 9 August 1965, it adopted the Constitution, which contained Art 12 within Part IV (headed “Fundamental Liberties”). Does the fact that Singapore did not have a Constitution in 1938 in some way affect s 377A’s validity once the Constitution came into being in August 1965? The short answer is no. As noted by the Court of Appeal in Taw Cheng Kong (CA), equality before the law and equal protection of the law became part of the wider doctrine of the rule of law and were already an important part of the law of England when English law was imported into Singapore by the Second Charter of Justice in 1826. Equality before the law and equal protection of the law were therefore already part of the law of our land when s 377A was introduced in 1938. That said, no challenge as to s 377A’s validity has been made until these cases were brought.
(C) The October 2007 Parliamentary Debates
[72] The next significant event, as far as the purpose or object of s 377A is concerned, occurred in October 2007 when Parliament considered major revisions to the 1985 Penal Code through the Penal Code (Amendment) Bill 2007 (Bill 38 of 2007) (“the 2007 Bill”). The then Senior Minister of State for Home Affairs, Assoc Prof Ho Peng Kee (“Assoc Prof Ho”), made the following introduction at the 2007 Bill’s second reading (see Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at cols 2175–2176):
Assoc Prof Ho told Parliament that this comprehensive review of the 1985 Penal Code was a process which had stretched over two to three years. The Government had worked closely with the Attorney-General’s Chambers, the Ministry of Law and other Government agencies, and had taken into account legislative changes in other jurisdictions as well as comments made by judges in their judgments. The amendments before Parliament had also been refined through a robust process of public consultation, with input from members of the public, professional organisations, stakeholders of the criminal justice system, the Law Society of Singapore, the Subordinate Courts and the Singapore Academy of Law; there had also been multiple points of engagements with people from different walks of life.

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Lim Meng Suang and another v Attorney-General

Laws this judgment relies on

Grounds of decision

Introduction

The facts

Preliminary issues

Locus standi

The requests made by the Plaintiffs’ counsel in chambers

Similar proceedings

The parties’ respective cases

The Plaintiffs’ submissions

The Defendant’s submissions

My analysis

The fundamental liberties enshrined in Art 12(1)

The “reasonable classification” test

The First Limb – intelligible differentia

The Second Limb – rational relation to the object of the legislation

(1) The difficulties of applying the Second Limb: Taw Cheng Kong (HC) and Taw Cheng Kong (CA)

(2) What is the object of s 377A?

(A) The Labouchere Amendment

(B) The Penal Code (Amendment) Ordinance 1938 (No 12 of 1938)

(C) The October 2007 Parliamentary Debates