Tan Eng Hong v Attorney-General: Constitutionality of Section 377A of Penal Code
Tan Eng Hong filed an originating summons in the High Court of Singapore challenging the constitutionality of Section 377A of the Penal Code. The Attorney-General applied to strike out the summons after the charge against Tan was amended. Lai Siu Chiu J dismissed Tan's appeal, upholding the striking-out order, finding that there was no real controversy in issue as the charge had been withdrawn.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Appeal Dismissed
1.3 Case Type
Constitutional
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Challenge to the constitutionality of Section 377A of the Penal Code was struck out due to lack of real controversy after the charge was amended.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Respondent | Government Agency | Appeal Dismissed | Won | Gail Wong of Attorney-General Chambers Mohamed Faizal of Attorney-General Chambers Aedit Abdullah of Attorney-General Chambers |
| Tan Eng Hong | Appellant | Individual | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Lai Siu Chiu | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Gail Wong | Attorney-General Chambers |
| Mohamed Faizal | Attorney-General Chambers |
| Aedit Abdullah | Attorney-General Chambers |
| M Ravi | LF Violet Netto |
4. Facts
- Tan was charged under s 377A of the Penal Code.
- Tan filed an originating summons to challenge the constitutionality of s 377A.
- The Attorney-General amended the charge against Tan to one under s 294(a) of the Penal Code.
- Tan pleaded guilty to the amended charge and was fined $3,000.
- The Attorney-General applied to strike out the originating summons.
- The Assistant Registrar granted the striking-out application.
- Tan appealed against the decision of the Assistant Registrar.
5. Formal Citations
- Tan Eng Hong v Attorney-General, Originating Summons No 994 of 2010 (Registrar's Appeal No 488 of 2010), [2011] SGHC 56
6. Timeline
| Date | Event |
|---|---|
| Originating Summons No 994 of 2010 filed | |
| Charge against Tan amended to one under s 294(a) of the Penal Code | |
| Assistant Registrar granted the striking-out application | |
| Tan pleaded guilty to the amended charge | |
| Judgment reserved |
7. Legal Issues
- Constitutionality of Section 377A of the Penal Code
- Outcome: The court did not rule on the constitutionality of Section 377A, as the appeal was dismissed due to the lack of a real controversy.
- Category: Substantive
- Locus Standi in Constitutional Challenges
- Outcome: The court held that Tan had locus standi to raise the constitutional issue.
- Category: Procedural
- Related Cases:
- [1996] 1 SLR(R) 294
- Requirements for Granting Declaratory Relief
- Outcome: The court found that there was no real controversy in issue, which is a requirement for granting declaratory relief.
- Category: Procedural
- Related Cases:
- [2006] 1 SLR(R) 112
8. Remedies Sought
- Declaration that Section 377A of the Penal Code is unconstitutional
9. Cause of Actions
- Constitutional Challenge
10. Practice Areas
- Constitutional Litigation
- Criminal Appeals
- Civil Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| AG of Duchy of Lancaster v London and North Western Railway Co | Chancery Division | Yes | [1892] 3 Ch 274 | England and Wales | Cited for the principle that the burden is on the applicant to prove a very clear case for striking out pleadings. |
| Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru | High Court of Malaysia | Yes | [1995] 2 MLJ 287 | Malaysia | Cited for the principle that an action may be struck out where an aggrieved party is unable to establish locus standi. |
| Goh Koon Suan v Heng Gek Kiau | High Court of Singapore | Yes | [1990] 2 SLR(R) 705 | Singapore | Cited for the definition of a vexatious action. |
| Chee Siok Chin & Ors v Minister for Home Affairs & Anor | High Court of Singapore | Yes | [2006] 1 SLR(R) 582 | Singapore | Cited for elaborating on the 'frivolous and vexatious' ground for striking out proceedings and classifying the abuse of process ground. |
| Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and another appeal | High Court of Singapore | Yes | [2006] 1 SLR(R) 112 | Singapore | Cited for summarizing the requirements for granting declaratory relief. |
| Government of Malaysia v Lim Kit Siang | Supreme Court of Malaysia | Yes | [1988] 2 MLJ 12 | Malaysia | Cited for the principle that to possess locus standi, a plaintiff must show that he has a private right that has been infringed. |
| Boyce v Paddington Borough Council | Chancery Division | Yes | [1903] 1 Ch 109 | England and Wales | Cited for the principle regarding locus standi where a public right is involved. |
| Gouriet v Union of Post Office Workers and Others | House of Lords | Yes | [1978] AC 435 | United Kingdom | Cited for the acceptance of the Boyce v Paddington Borough Council principle regarding locus standi. |
| Chan Hiang Leng Colin & Ors v Minister for Information and the Arts | Court of Appeal of Singapore | Yes | [1996] 1 SLR(R) 294 | Singapore | Cited for the principle that any citizen can complain to the courts if there is a violation of a constitutional guarantee. |
| Eng Foong Ho and Ors v Attorney-General | Court of Appeal of Singapore | Yes | [2009] 2 SLR(R) 542 | Singapore | Cited to support the interpretation that Colin Chan did not articulate a new locus standi requirement for constitutional rights. |
| R. v Greater London Council Ex p Blackburn | Court of Appeal | Yes | [1976] 1 WLR 550 | England and Wales | Cited for the principle that locus standi should be denied to 'mere busybodies'. |
| Blackburn’s case | Court of Appeal | Yes | [1971] 1 WLR 1037 | England and Wales | Cited to express caution against politically motivated litigation. |
| Australian Conservation Foundation Incorporated v Commonwealth of Australia and Others | High Court of Australia | Yes | (1980) 146 CLR 493 | Australia | Cited for the principle that a belief that a law should be observed does not suffice to give its possessor locus standi. |
| Lo Pui Sang v Mamata Kapildev Dav and Ors (Horizon Partners Pte Ltd intervener) | High Court of Singapore | Yes | [2008] 4 SLR(R) 754 | Singapore | Cited for the interpretation of 'personal liberty' in Art 9 of the Constitution. |
| Ng Eng Ghee and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal | Court of Appeal of Singapore | Yes | [2009] 3 SLR(R) 109 | Singapore | Cited to show that the Court of Appeal did not consider the constitutional issues that the High Court had considered in Lo Pui Sang. |
| Yong Vui Kong v Public Prosecutor | Court of Appeal of Singapore | Yes | [2010] 3 SLR 489 | Singapore | Cited for the test to determine if a differentiating measure is consistent with Art 12(1) of the Constitution. |
| Nguyen Tuong Van v Public Prosecutor | High Court of Singapore | Yes | [2005] 1 SLR(R) 103 | Singapore | Cited for the test to determine if a differentiating measure is consistent with Art 12(1) of the Constitution. |
| The Russian Commercial & Industrial Bank v British Bank for Foreign Trade | House of Lords | Yes | [1921] 2 AC 438 | United Kingdom | Cited for the requirements of a real controversy. |
| Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo | High Court of Singapore | Yes | [1996] 2 SLR(R) 80 | Singapore | Cited for the primary consideration of whether there is a real contest of legal rights. |
| Leung T C William Roy v Secretary for Justice | Court of Appeal of Hong Kong | Yes | [2006] HKLRD 211 | Hong Kong | Cited for the argument that there could be adjudication on hypothetical facts, but only in exceptional cases. |
| Croome and another v State of Tasmania | High Court of Australia | Yes | (1997) 142 ALR 397 | Australia | Cited for the argument that the spectre of future prosecution was a way Tan’s rights could be said to have been infringed. |
| Union de Pequenos Agricultores v Council of the European Union | Court of Appeal | Yes | [2003] QB 893 | England and Wales | Cited for the opinion that individuals clearly cannot be required to breach the law in order to gain access to justice. |
| Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin & Ors | Court of Appeal of Singapore | Yes | [1997] 3 SLR(R) 649 | Singapore | Cited for emphasizing that a high threshold of failure must be met before a claim would be struck out. |
| The Tokai Maru | Court of Appeal of Singapore | Yes | [1998] 2 SLR(R) 646 | Singapore | Cited for the principle that a reasonable defence means one which has some chance of success when only the allegations in the pleadings are considered. |
| Drummond-Jackson v British Medical Association | Court of Appeal | Yes | [1970] 1 All ER 1094 | England and Wales | Cited for the definition of a reasonable defence. |
| Active Timber Agencies Pte Ltd v Allen & Gledhill | High Court of Singapore | Yes | [1995] 3 SLR(R) 334 | Singapore | Cited for the definition of a reasonable defence. |
| Wenlock v Moloney | Court of Appeal | Yes | [1965] 2 All ER 871 | England and Wales | Cited against minute examination of documents or facts to see if there is a reasonable defence. |
| Singapore Airlines Limited & Anor v The Inland Revenue Authority of Singapore & the Comptroller of Income Tax | High Court of Singapore | Yes | [1999] 2 SLR(R) 1097 | Singapore | Cited for the principle that declaratory orders can be sought only by persons who have a right to enforce against a defendant or by persons who say that he himself is not liable. |
| Chan Hiang Leng Colin and Others v Public Prosecutor | High Court of Singapore | Yes | [1994] 3 SLR(R) 209 | Singapore | Cited for the principle that the Subordinate Courts lack the jurisdiction to adjudicate upon constitutional matters. |
| Johari bin Kanadi and another v Public Prosecutor | High Court of Singapore | Yes | [2008] 3 SLR(R) 422 | Singapore | Cited for the principle that the discretion of the Subordinate Courts will prevent unnecessary delay and possible abuse every time a party in the proceedings purports to raise an issue of constitutional interpretation and effect. |
| Ng Chye Huey and another v Public Prosecutor | High Court of Singapore | Yes | [2007] 2 SLR(R) 106 | Singapore | Cited for the principle that jurisdictional rules are essential to the orderly conduct of litigation in our courts. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 377A | Singapore |
| Penal Code s 294(a) | Singapore |
| Constitution of the Republic of Singapore (1999 Rev Ed) Art 4 | Singapore |
| Constitution of the Republic of Singapore (1999 Rev Ed) Art 9 | Singapore |
| Constitution of the Republic of Singapore (1999 Rev Ed) Art 12 | Singapore |
| Constitution of the Republic of Singapore (1999 Rev Ed) Art 14 | Singapore |
| Rules of Court (Cap 322, R 5 2006 Rev Ed) O 15 r 16 | Singapore |
| Rules of Court O 18 r 19 | Singapore |
| Subordinate Courts Act (Cap 321, 2007 Rev Ed) s 56A | Singapore |
| Criminal Procedure Code 2010 (Act No 15 of 2010) s 430 | Singapore |
| Criminal Procedure Code 2010 s 395 | Singapore |
| Criminal Procedure Code 2010 s 429 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Section 377A
- Constitutionality
- Locus Standi
- Declaratory Relief
- Real Controversy
- Striking Out
- Abuse of Process
- Substantial Interest
- Personal Liberty
- Equal Protection
- Originating Summons
15.2 Keywords
- Section 377A
- Constitutionality
- Locus Standi
- Declaratory Relief
- Singapore
- Homosexuality
- Penal Code
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Constitutional Law | 90 |
| Locus Standi | 70 |
| Criminal Procedure | 60 |
| Declaratory relief | 60 |
| Jurisdiction | 50 |
| Administrative Law | 30 |
16. Subjects
- Constitutional Law
- Human Rights
- Criminal Law
- Civil Procedure