High Court waves away 377A controversy

The following is an excerpt from Yawning Bread

Alex Au/

In a judgement dated 15 March 2011, High Court judge Lai Siu Chiu dismissed the first appeal relating to the constitutional challenge against Section 377A of the Penal Code. This is the law that makes “gross indecency” between two men an offence punishable by up to two years’ imprisonment. The challenge was filed by Tan Eng Hong, who was last year charged under this law after he was caught in a shopping centre toilet with another man.

Represented by M Ravi, Tan’s challenge is still at the procedural stage. Ravi intends to appeal against Justice Lai’s dismissal, so this is nowhere near the end of the story.

Readers will probably need to have the background refreshed.


The incident that resulted in two men, Tan and Chin, being caught in a shopping centre toilet was recounted in the article The 377A hide-and-seek. Both men were charged under Section 377A. On 24 September 2010, M Ravi, acting for Tan, filed an Originating Summons challenging the constitutionality of this law. Mid-October, the Attorney-General’s Chambers (AGC) withdrew the 377A charges, substituting charges under Section 294 (obscene act in public) instead.

(Section 294 carries a maximum of 3 months’ jail, a fine, or both; Section 377A carries a maximum jail term of 2 years -Editor)

On 10 November 2010, Chin pleaded guilty and was fined S$3,000. In mid December 2010, Tan too pleaded guilty to Section 294 and was likewise fined S$3,000.

However, since the constitutional challenge to Section 377A had been filed, it still needed to be dealt with on a separate track. At a hearing on 7 December 2010, the Assistant Registrar agreed with the Attorney-General’s application to strike out the case. Tan then appealed to the High Court to reverse the Assistant Registrar’s striking-out decision. The latest decision from the High Court was to affirm that striking out order.

The decision by Justice Lai

The judge framed the issue before her in terms of two main questions (there were two lesser questions):

1. Does Tan Eng Hong have locus standi? That is, is he affected by this law to have a legitimate interest in the issue?

2. Is there a real controversy that requires the court’s attention? Here, the words “real controversy” is used in a way different from ordinary language. It simply means: Is there a matter of importance to be decided by a court?

In a nutshell, the judge found that the answer to the first question was a Yes and to the second question, a No. Thus the Assistant Registrar’s striking-out decision was reaffirmed. It’s a highly technical decision, and for this post, I shall only touch on the key points in laymen’s language. The full text is archived here, thanks to M Ravi.

Locus Standi

On the first question, the court rejected the AGC’s contention that since the original 377A charge had been withdrawn, Tan had no further interest at stake. The court stuck to an established principle that “a citizen should not have to wait until he is prosecuted before he may assert his constitutional rights.”

The court also found that there is a real question as to whether Section 377A is constitutional. It reminded itself that constitutionality is to be tested on two measures: (a) whether “the classification [implied by Section 377A] was founded on an intelligible differentia”, and (b) whether “the differentia bears a rational relation” to the purpose of the law. [Note: this was better explained in the earlier post The management of gays, part 1; see the discussion about page 340.] Insofar as Section 377A criminalises male but not female homosexual intercourse, Tan’s constitutional rights, specifically in relation to Article 12(1) of the Singapore Constitution (“All persons are equal before the law and entitled to the equal protection of the law”) might be said to be called into question.

Since there is a constitutional question and Tan as a practising homosexual is at risk of being prosecuted in future (even though the previous charge was withdrawn), the court ruled that he had locus standi to launch this case.

Click here to read on.