Tan Eng Hong v. Attorney General, High Court of the Republic of Singapore (15 March 2011)
The plaintiff was originally charged with an offence under Section 377A of the Penal Code (gross indecency between males) and he challenged the constitutionality of that provision. The Section 377A charges were later dropped, however, and the plaintiff pled guilty to Section 294(a) (Obscene Acts), to which he pled guilty. However he pursued his constitutional challenge. The Attorney General requested that the constitutional challenge be struck out and the Assistant Registrar granted the application. The plaintiff then appealed to the High Court.
Whether the plaintiff had standing to challenge the law.
Constitution of Singapore, Articles 9 (liberty of the person), 12 (equal protection), and 14 (freedom of religion).
Singapore Penal Code, Sections 377A (“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years”).
Chan Hiang Leng Colin & Others v. Minister for Information and the Arts, High Court of Singapore, 1995.
Leung v. Secretary for Justice, High Court of the Hong Kong Special Administrative Region, Court of Appeal, 2006 (finding applicant had standing to challenge the law even though never charged).
Reasoning of the Court
In order to determine whether the plaintiff could challenge the constitutionality of Section 377A, it had to determine three issues: 1) whether the plaintiff had a “substantial interest” in the matter at hand and thus had locus standi to raise a constitutional issue; 2) whether a real controversy was at stake, involving an injury or violation of the plaintiff’s constitutional rights; 3) whether the plaintiff’s claim was certain to fail.
With respect to the first issue, the Court held that the plaintiff did have a substantial interest in the constitutional validity of Section 377A. Although the Court held that the case did not raise issues under Articles 9 (liberty of the person) or 14 (freedom of religion) of the Constitution, it found that the plaintiff had raised a genuine constitutional issue with regard to equal protection under the law, under Article 12. To be consistent with Article 12, the measure in Section 377 (which allowed different treatment of men who engaged in “acts of gross indecency”) had to fulfil two conditions. First, it had to be founded on an intelligible difference; secondly, it had to bear a rational relation to the objective sought. The Court found that, even if the challenged provision was founded on an intelligible difference (because it applied to “sexually-active male homosexuals”), it was arguable that a social objective could be furthered by criminalising male, but not female, same-sex intercourse.
Having determined that an Article 12 issue had been raised, the Court next had to determine whether the plaintiff’s own constitutional right to equal protection had been injured or violated. The Court held that, even if the plaintiff was no longer being charged under Section 377A, the spectre of future prosecution sufficed to conclude that the plaintiff’s rights had been infringed. This argument had already been accepted by the Hong Kong High Court in the case of Leung v. Secretary for Justice. The plaintiff therefore satisfied the substantial interest test for locus standi.
However, with regard to the second issue, whether there was a real controversy at stake, the Court found the answer to be negative because the facts had become hypothetical. There was nothing at stake for the plaintiff, who had already pleaded guilty and been convicted under another charge.
The Court also addressed the third issue of certainty of failure, and found the case not to be completely without merit. On the contrary, it raised several issues that deserved more detailed treatment, among them the question whether Article 14 encompassed sexual orientation. Therefore, it could not be assumed that, had all other criteria been met, the plaintiff’s claim was likely to fail.
Nonetheless, the Court held that the plaintiff had failed to prove that there was a real controversy in issue after the withdrawal of the charges against him. The appeal was therefore dismissed.
Tan Eng Hong v. Attorney General, High Court of the Republic of Singapore (full text of judgment, PDF)