Tan Eng Hong v Attorney-General

Lai Siu Chiu J :

[1] This was an appeal by way of Registrar’s Appeal No 488 of 2010 (“the Appeal”) against the decision of the Assistant Registrar (“the AR”), who had struck out the Originating Summons No 994 of 2010 (“the OS”) filed by Tan Eng Hong (“Tan”) on the application of the Attorney-General (“the AG”).

[2] Tan had been jointly charged with another person in District Arrest Case No 41402 of 2010 (“DAC 41402/2010”) for an offence under s 377A (“the charge”) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). Tan subsequently filed the OS on 24 September 2010 under O 15 r 16 of the Rules of Court (Cap 322, R 5 2006 Rev Ed) (“the Rules”) to challenge the constitutionality of s 377A under the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”) as follows:

[3] On 15 October 2010, during a pre-trial conference at the Subordinate Courts, state counsel for the AG informed Tan that the charge against him had been amended to one under s 294(a) of the Penal Code (“the amended charge”). The AG then applied under Summons No 5063 of 2010 (“the striking-out application”) pursuant to O 18 r 19 of the Rules to strike out the OS. The AR granted the striking-out application on 7 December 2010 resulting in this Appeal. A week later, Tan pleaded guilty to the amended charge. He was convicted and fined $3,000.

[4] In order to determine if the AR’s decision was correct, the court needs to look at the applicable principles in three areas of law viz:

(a) striking out;

(b) locus standi and

(c) the requirements for the granting of declaratory relief.

[5] In brief, pleadings can be struck out under O 18 r 19 of the Rules on the ground that: (i) it discloses no reasonable cause of action; (ii) it is scandalous, frivolous or vexatious; (iii) it may prejudice, embarrass or delay the fair trial of the action; or (iv) it is otherwise an abuse of the process of the Court. The burden is on the applicant to prove a very clear case that one of the grounds in O 18 r 19 applies (per AG of Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274) as can be seen from the following cases:

(a) An action may be struck out under the “no reasonable cause of action” ground as being without legal basis where an aggrieved party is unable to establish locus standi (see Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287.

(b) According to Yong Pung How CJ in Goh Koon Suan v Heng Gek Kiau [1990] 2 SLR(R) 705 at [15], an action is clearly vexatious in the following situations:

In Chee Siok Chin & Ors v Minister for Home Affairs & Anor [2006] 1 SLR(R) 582 at [33] (“Chee Siok Chin”), V K Rajah J elaborated on the “frivolous and vexatious” ground:

(c) Rajah J in Chee Siok Chin also classified the abuse of process ground into four categories (at [34]):

[6] If a court cannot grant a party declaratory relief, it is arguable that the case is frivolous and vexatious, since it would have no practical value. To decide whether it can indeed do so, the court should consider the requirements for the granting of declaratory relief. In Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and another appeal [2006] 1 SLR(R) 112 at [14] (“Karaha Bodas”), Judith Prakash J summarised them as follows:

[7] There is considerable overlap between the principles relating to striking-out and the granting of declaratory relief. In the light of this, this court will address the following issues:

(d) Does the court have jurisdiction to declare s 377A of the Penal Code unconstitutional in view of the fact Tan did not come to court by way of s 56A of the Subordinate Courts Act (Cap 321, 2007 Rev Ed) (“the SCA”)?

[8] In Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 27 (“Lim Kit Siang”), the majority of the Malaysian Supreme Court ruled that to possess locus standi, a plaintiff must show that he has a private right that has been infringed. If a public right is involved, he must show that he has suffered a peculiar damage as a result of the alleged public act and that he has a genuine private interest to protect or further. In Lim Kit Siang at p 21, the majority had followed Boyce v Paddington Borough Council [1903] 1 Ch 109, which the House of Lords accepted in Gouriet v Union of Post Office Workers and Others [1978] AC 435.

[9] Tan had argued that where constitutionally guaranteed liberties are at stake, locus standi is established simply by showing sufficient interest rather than substantial interest. In support, his counsel cited Chan Hiang Leng Colin & Ors v Minister for Information and the Arts [1996] 1 SLR(R) 294 (“Colin Chan”). There, Karthigesu JA expounded:

[10] Before applying the test to the case, one must first be clear as to the proposition that Colin Chan stands for. Contrary to the submissions of Tan’s counsel, it is not immediately obvious from Karthigesu JA’s passing reference to “sufficient interest”, that he was articulating a test akin to its English counterpart. Academics Kevin Tan and Thio Li-Ann (“Tan and Thio”) have gone even further than Tan’s counsel. In Constitutional Law in Malaysia and Singapore (LexisNexis, 3 Ed, 2010) at p 551, they wrote, “Where constitutionally- guaranteed liberties are at stake, locus standi is established without the need to show sufficiency of interest” before making reference to Colin Chan.

[11] A more defensible interpretation is that Karthigesu JA was simply treating constitutional rights as being vested in every citizen. He was not articulating a new test that specifically applied to constitutional rights. Instead, he simply preferred applying the “substantial interest” test instead of the “special damage” test that is used for public rights and had ruled that the former was satisfied in Colin Chan. This interpretation was supported by the Court of Appeal’s decision in Eng Foong Ho and Ors v Attorney-General [2009] 2 SLR(R) 542 (“Eng Foong Ho”). If Colin Chan had articulated a new locus standi requirement for constitutional rights, the Court of Appeal in Eng Foong Ho might have been expected to have made reference to it. That the Court of Appeal did not do so strongly suggests Colin Chan is no authority for Tan’s proposition of a lower test of locus standi for constitutional rights. This is further supported by the Chief Justice’s speech to students from the Singapore Management University (reproduced in the article Judicial Review – From Angst to Empathy (2010) 22 SAcLJ 469 (“SMU Lecture”), where Chan Sek Keong CJ noted at para 33:

[12] In so far as the test of Tan and Thio may be taken as saying being a citizen in itself gives one locus standi, this should be rejected. Even Lord Denning, who attempted many times to liberalise the rules on locus standi in England, opined in R. v Greater London Council Ex p Blackburn [1976] 1 WLR 550 at 559 that locus standi should be denied to “mere busybodies”. To allow people to challenge an allegedly unconstitutional law simply because they are citizens is undesirable for various reasons. First, priority should be given to parties with a genuine dispute. Second, as Salleh Abas LP commented in Lim Kit Siang at p 25, a sufficiently robust threshold will ensure the courts do not adjudicate upon politically motivated litigation:

In Australian Conservation Foundation Incorporated v Commonwealth of Australia and Others (1980) 146 CLR 493 at 530, Gibbs J ruled:

Constitutional rights are not mere rhetoric for a low locus standi test of citizenship to apply.

[13] Colin Chan, therefore, should not be seen as introducing a new test of locus standi for constitutional cases. Instead, it should be interpreted as merely saying that to satisfy the “substantial interest” test, a putative litigant has to allege a violation of his constitutional rights.

[14] Regardless of which interpretation the court takes of Colin Chan, it will only be applicable if constitutional rights are involved. This necessitates investigating whether Arts 9, 12 and 14 of the Constitution are in issue.

[15] Article 9(1) states: “No person shall be deprived of his life or personal liberty save in accordance with law.” Article 9(1) is engaged only if expansive definitions are made of “life” and “personal liberty”, such that a citizen has the liberty to lead his life as he pleases. However, our courts have eschewed such wide interpretations. For example, Choo Han Teck J in Lo Pui Sang v Mamata Kapildev Dav and Ors (Horizon Partners Pte Ltd intervener) [2008] 4 SLR(R) 754 at [6] (“Lo Pui Sang”) said:

Therefore, Art 9 of the Constitution has not been triggered. It should be noted that Lo Pui Sang was overturned on appeal to the Court of Appeal. However, the Court of Appeal did not consider the constitutional issues that the High Court had considered, see Ng Eng Ghee and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal [2009] 3 SLR(R) 109 at [53].

[16] Article 12(1) reads:

According to the Court of Appeal in Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489 at [109] (applying Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103 at [70]), s 377A’s differentiating measure would be consistent with Art 12(1) only if: (a) the classification was founded on an intelligible differentia; and (b) the differentia bears a rational relation to the object sought to be achieved by the law in question. On the arguments alone, this court is of the opinion that Tan’s case does engage Art 12(1). Although s 377A is founded on an intelligible differentia (because it applies to sexually-active male homosexuals), it is arguable that there is no social objective that can be furthered by criminalising male but not female homosexual intercourse. Therefore, Colin Chan should apply.

[17] Article 14 guarantees a citizen’s freedom of speech, assembly and association. Although Tan referred to Art 14 in his Notice of Appeal, his counsel made no written submissions on this ground. Consequently, there is no necessity to address it here.

[18] Since Art 12 was involved, Colin Chan applied. Tan needed to show he had suffered an injury or violation of his constitutional rights. The AG had argued that with the charge being dropped, Tan was unable to prove his case. This was a mistaken view. While the act of prosecution itself can be a violation of one’s constitutional rights, it does not follow that a violation cannot occur without a prosecution. Karthigesu JA made this abundantly clear in Colin Chan at [13], “A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights”.

[19] There were two ways Tan’s constitutional rights may arguably have been violated. First, the presence of an unconstitutional law on the statute books may suffice. The AG had sought to distinguish Colin Chan on the basis that the parties’ rights there were violated by the ban on certain materials, as opposed to prosecution. The underlying premise – that the violation must come from a physical act – was refuted by Karthigesu JA’s following dicta in Colin Chan at [19]:

[20] The spectre of future prosecution was the second way Tan’s rights could be said to have been infringed. This argument was accepted by the High Court of Australia in Croome and another v State of Tasmania (1997) 142 ALR 397 at 402 and the Hong Kong Court of Appeal in Leung T C William Roy v Secretary for Justice [2006] HKLRD 211 at [29] (“Leung T C William Roy”), cases cited by Tan’s counsel. Therefore, Tan’s claim should not be struck out on the ground that he lacked locus standi although it can be on other grounds dealt with below.

[21] In this court’s view, Colin Chan did not introduce a new test for the litigation of constitutional rights. Nevertheless, it is arguable on the facts that Tan’s constitutional rights may have been violated. Consequently, he had satisfied the “substantial interest” test for locus standi.

[22] Lord Dunedin in The Russian Commercial & Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438, stated the following at 448:

[23] In Lim Kit Siang at p 27, Abdul Hamid CJ explained the requirement’s rationale as being rooted in the common law’s adversarial system:

[24] It is for the reason that there was no real controversy in issue here that this court affirms the decision made below and upholds the striking-out order.

[25] There was no real controversy here because while there were specific facts involving specific parties, the facts were merely hypothetical. Granted, there were identifiable parties with the “motivation of self-interest” to make the diligent preparation identified by Abdul Hamid CJ as being essential to the adversarial trial. This however is insufficient. In Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR(R) 80 at [60], Yong Pung How CJ held:

[26] Tan had relied on Leung T C William Roy to support his argument. There, the Hong Kong Court of Appeal (at [28]) accepted there could be adjudication on hypothetical facts, but only in exceptional cases. The AG sought to distinguish this case on the basis that it revolved around the International Covenant on Civil and Political Rights, which Hong Kong has incorporated into its laws. The treaty has no force of law in Singapore. There are other reasons not to follow the case:

(a) The Hong Kong court’s criterion of “exceptional cases” was vague. There is a danger that constitutional challenges may be brought willy-nilly and accepted blindly under this amorphous phrase. Of course, this may be negated if there are principled ways to carving out an exception. However, an exceptional case, by nature, cannot be defined in order to provide guidance by precedent.

(b) The Hong Kong court reasoned that access to justice can only be gained by the applicant breaking the law. It referred to the opinion of Advocate-General Jacobs in Union de Pequenos Agricultores v Council of the European Union [2003] QB 893 at [43]:

In Singapore, it is arguable that individuals are not compelled to resort to such extremes. They can request the President to refer the issue to the Constitutional Tribunal under Art 100 of the Constitution. As there is an established procedure through which guidance may be obtained in the absence of specific facts, there is no reason to relax the “real controversy” requirement in order to avoid the situation where individuals break the law in order to obtain standing. It should be noted, however, that Chan CJ’s extra-judicial view was that Art 100 of the Constitution was not intended to apply to hypothetical disputes (SMU Lecture). The basis for his view was that Art 100 was enacted in 1994 to deal with a specific dispute between organs of state. The following portion of his speech merits quotation (SMU Lecture at para 4):

(c) Further, there was nothing at stake for Tan. It bears remembering that Tan had already pleaded guilty and had been convicted under s 294 of the Penal Code. In bringing the OS, he stood to benefit from a judicial declaration that s 377A is unconstitutional while suffering no prejudice, leaving aside the matter of costs. This arguably goes against the spirit of the adversarial process where the parties’ conduct is conditioned by the possibility of gain and/or loss.

[27] Given that the charge was dropped, there are no subsisting facts upon which there can be res judicata. Hence, it may be argued that Tan’s claim has no real practical value and should therefore be struck out.

[28] The Court of Appeal in Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin & Ors [1997] 3 SLR(R) 649 at [21] emphasised that a high threshold of failure must be met before it would strike out a claim:

[29] Similarly, in The Tokai Maru [1998] 2 SLR(R) 646 at [44], the Court of Appeal held:

[30] Having a high threshold is consistent with the rationale of the striking-out procedure, that is to filter out claims where no further investigation could provide any appreciable assistance to the task of reaching a correct outcome. However, this case does not fall within the category. Tan’s case was not completely without merit, especially on the ground of Art 12. Furthermore, his case raised many novel issues that deserved more detailed treatment, for example:

(a) whether an unconstitutional law in itself can constitute an injury or violation to one’s constitutional rights; and

(b) whether Art 14 can encompass a right to express one’s homosexual sexual orientation.

[31] The AG had submitted that Tan was certain to fail given that he had no locus standi to seek a declaration that s 377A of the Penal Code contravened the Constitution. This argument was dealt with under the issue of locus standi. Here, the issue is whether the case is so weak, as gleaned from the pleadings, that it should be struck out because the result is a foregone conclusion. This threshold has not been satisfied.

[32] To grant declaratory relief, the courts have insisted that the declaration sought must be in relation to a vested right. Judith Prakash J held in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112 at [25]:

[33] Selvam J explained the reason for this requirement in Singapore Airlines Limited & Anor v The Inland Revenue Authority of Singapore & the Comptroller of Income Tax [1999] 2 SLR(R) 1097 at [23]:

[34] This requirement has been satisfied on the facts since constitutional rights are vested in each person and those of Tan had been affected. The next step is to determine whether Tan had committed an abuse of process by not referring the constitutional issue to the High Court under s 56A of the SCA.

[35] This was the last ground of the AG’s arguments that Tan’s claim should be struck out as an abuse of process. Section 56A(1) of the SCA (“s 56A(1)”) states:

[36] Before proceeding further, it should be noted that (as the AG pointed out), s 56A had been repealed since 2 January 2011 (vide s 430 of the Criminal Procedure Code 2010 (Act No 15 of 2010) (“the CPC 2010”) read with para 105(c) of the Sixth Schedule of the same Act and para 2 of the Criminal Procedure Code (Commencement) Notification 2010 (S776/2010)). The Criminal Procedure Code 2010 has an equivalent provision in s 395 of the CPC 2010. Section 56A is nevertheless applicable in the present case. The CPC 2010 has a transitional provision which is s 429 CPC 2010. Section 429(2) of the CPC 2010 provides as follows:

The “appointed day” referred to under s 429(2)(a) of the CPC 2010 is 2 January 2011 (see s 429(25), CPC 2010 read with para 2 of the Criminal Procedure Code (Commencement) Notification 2010 (S776/2010)). DAC 41402/2010 was commenced before 2 January 2011. Accordingly, the relevant provision for the court to consider is s 56A.

[37] Returning to the issue of whether avoidance of s 56A is an abuse of process, four questions should be considered. The first one is whether s 56A even applies in the first place. In Ng Chye Huey and another v Public Prosecutor [2007] 2 SLR(R) 106 the court held:

Tan had argued that s 56A did not apply because there were no existing criminal proceedings in place. That argument can be countered by the fact that criminal proceedings were ongoing at the time Tan applied to challenge the constitutionality of s 377A. Therefore, s 56A did apply.

[38] Second, even if s 56A applied, was it exclusive? In other words, was it the only means by which a constitutional question may be raised in Subordinate Court proceedings? There is no clear evidence that Parliament’s intention was for s 56A to be the exclusive mode for raising constitutional questions arising in the course of criminal proceedings in the Subordinate Courts. When debating the Subordinate Courts (Amendment) Bill, Singapore Parliamentary Debates, Official Report (13 April 1993) Vol 61 at column 132, Professor S Jayakumar had commented:

Yong Pung How CJ noted in Chan Hiang Leng Colin and Others v Public Prosecutor [1994] 3 SLR(R) 209 at [8]:

Professor Jayakumar and Yong CJ’s words only go to show why it is necessary to make a constitutional reference – because the Subordinate Courts lack the jurisdiction to adjudicate upon such matters. There was no mention that the reference procedure is exclusive.

[39] Then again, despite there being no clear evidence, it is arguable that a purposive reading of s 56A and its related case-law indicates an exclusive regime. Tay Yong Kwang J ruled in Johari bin Kanadi and another v Public Prosecutor [2008] 3 SLR(R) 422 at [9] that:

[40] This purported role of the Subordinate Courts as the gatekeeper for constitutional issues arising in its proceedings would be rendered nugatory if the s 56A regime was not mandatory and exclusive.

[41] The third question is even if s 56A is exclusive, was Tan’s error in not making a s 56A application remediable? On the one hand, O 2 r 1(3) of the Rules provides that the court is not to set aside an originating process merely on the basis that it was not the proper one. On the other hand, an approach which is too relaxed may incentivise parties to “take their chances” and not make an application under s 56A first.

[42] On the whole, it is more likely that s 56A was meant as an exclusive regime. However, it cannot be said that it is a “very clear case” that this is so. Given that a “very clear case” is a requirement for striking-out, the striking-out application cannot be granted on this ground.