Tan Eng Hong v Attorney-General: Constitutionality of Section 377A Penal Code & LGBTQ Rights
In Tan Eng Hong v Attorney-General, the High Court of Singapore heard a challenge to the constitutionality of Section 377A of the Penal Code, brought by Tan Eng Hong. The Plaintiff argued that Section 377A violated Articles 9(1) and 12(1) of the Constitution. The court, Loh J, dismissed the application, finding that Section 377A was not inconsistent with Article 12(1) and that the Plaintiff's Article 9(1) rights had not been infringed.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Plaintiff's application 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, concerning gross indecency between men, was dismissed. The court found no violation of Articles 9(1) or 12(1).
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Defendant | Government Agency | Application dismissed | Won | Jeremy Yeo Shenglong of Attorney-General’s Chambers Aedit Abdullah of Attorney-General’s Chambers Sherlyn Neo Xiulin of Attorney-General’s Chambers |
| Tan Eng Hong | Plaintiff | Individual | Application dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Quentin Loh | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Jeremy Yeo Shenglong | Attorney-General’s Chambers |
| Aedit Abdullah | Attorney-General’s Chambers |
| Sherlyn Neo Xiulin | Attorney-General’s Chambers |
| M Ravi | L F Violet Netto |
4. Facts
- The Plaintiff was arrested for engaging in oral sex with another male in a public shopping mall.
- The Plaintiff was initially charged under s 377A of the Penal Code.
- The Prosecution substituted the s 377A charge with a charge under s 294(a) of the Penal Code.
- The Plaintiff pleaded guilty to the substituted charge and was fined $3,000.
- The Court of Appeal found that the Plaintiff had locus standi to challenge the constitutionality of s 377A.
- The Plaintiff argued that s 377A did not meet the minimum requirements to qualify as 'law' for the purposes of Arts 9(1) and 12(1).
5. Formal Citations
- Tan Eng Hong v Attorney-General, Originating Summons No 994 of 2010, [2013] SGHC 199
- Tan Eng Hong v Attorney-General, , [2012] 4 SLR 476
- Lim Meng Suang and another v Attorney-General, , [2013] 3 SLR 118
- Tan Eng Hong v Attorney-General, , [2011] 3 SLR 320
- Ong Ah Chuan v Public Prosecutor, , [1979]–[1980] SLR(R) 710
- Yong Vui Kong v Attorney-General, , [2011] 2 SLR 1189
- Haw Tua Tau and others v Public Prosecutor, , [1981]–[1982] SLR(R) 133
- Public Prosecutor v Taw Cheng Kong, , [1998] 2 SLR(R) 489
- Nguyen Tuong Van v Public Prosecutor, , [2005] 1 SLR(R) 103
- Yong Vui Kong v Public Prosecutor, , [2010] 3 SLR 489
- Ng Huat v Public Prosecutor, , [1995] 2 SLR(R) 66
- Chng Suan Tze v Minister for Home Affairs and others and other appeals, , [1988] 2 SLR (R) 525
6. Timeline
| Date | Event |
|---|---|
| Plaintiff and another male were arrested for engaging in oral sex. | |
| Plaintiff was charged under s 377A of the Penal Code. | |
| Plaintiff commenced proceedings challenging the constitutionality of s 377A. | |
| Defendant’s application to strike out OS 994 was allowed. | |
| Registrar’s Appeal No 488 of 2010 was dismissed by the High Court judge. | |
| Court of Appeal handed down its decision in Tan Eng Hong (Standing). | |
| OS 994 heard. | |
| Further hearing in chambers. | |
| Judgment reserved. |
7. Legal Issues
- Constitutionality of Section 377A
- Outcome: The court held that s 377A was not unconstitutional.
- Category: Substantive
- Sub-Issues:
- Violation of Article 9(1) of the Constitution
- Violation of Article 12(1) of the Constitution
- Whether s 377A fails the 'reasonable classification' test
- Natural Justice
- Outcome: The court held that the nature and/or operation of s 377A is not inconsistent with the fundamental rules of natural justice.
- Category: Substantive
- Sub-Issues:
- Whether a law which does not observe the fundamental rules of natural justice is unconstitutional
- Whether the nature and/or operation of s 377A contravenes the fundamental rules of natural justice
- Equality Before the Law
- Outcome: The court held that s 377A does not violate Article 12(1).
- Category: Substantive
- Sub-Issues:
- Intelligible differentia
- Rational relation to the object sought to be achieved
8. Remedies Sought
- Declaration that s 377A is unconstitutional
- Declaration that the Plaintiff's arrest, investigations, detention and charge under Section 377A are contrary to Article 9
9. Cause of Actions
- Constitutional Challenge
10. Practice Areas
- Constitutional Litigation
- Human Rights Law
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Tan Eng Hong v Attorney-General | Court of Appeal | Yes | [2012] 4 SLR 476 | Singapore | Established the Plaintiff's locus standi to challenge the constitutionality of s 377A and framed the issues in controversy. |
| Lim Meng Suang and another v Attorney-General | High Court | Yes | [2013] 3 SLR 118 | Singapore | The judge's decision in another application concerning the constitutionality of s 377A where the judge held that s 377A was not inconsistent with Art 12(1). |
| Karaha Bodas Co LLC v Pertamina Energy Trading Ltd | N/A | Yes | [2006] 1 SLR(R) 112 | Singapore | Cited regarding the test for locus standi. |
| Tan Eng Hong v Attorney-General | High Court | Yes | [2011] 3 SLR 320 | Singapore | The High Court dismissed the Plaintiff's appeal against the Assistant Registrar’s decision. |
| Ong Ah Chuan v Public Prosecutor | Privy Council | Yes | [1979]–[1980] SLR(R) 710 | Singapore | Cited for the principle that 'law' in Arts 9(1) and 12(1) includes fundamental rules of natural justice. |
| Yong Vui Kong v Attorney-General | Court of Appeal | Yes | [2011] 2 SLR 1189 | Singapore | Accepted the proposition that 'law' within Arts 9(1) and 12(1) must include fundamental rules of natural justice. |
| Haw Tua Tau and others v Public Prosecutor | Privy Council | Yes | [1981]–[1982] SLR(R) 133 | Singapore | Suggests that the notion of the fundamental rules of natural justice is an evolving concept. |
| Public Prosecutor v Taw Cheng Kong | N/A | Yes | [1998] 2 SLR(R) 489 | Singapore | Cited regarding the 'reasonable classification' test. |
| Nguyen Tuong Van v Public Prosecutor | N/A | Yes | [2005] 1 SLR(R) 103 | Singapore | Cited regarding the 'reasonable classification' test. |
| Yong Vui Kong v Public Prosecutor | N/A | Yes | [2010] 3 SLR 489 | Singapore | Cited regarding the 'reasonable classification' test. |
| Don John Francis Douglas Liyanage v The Queen | Privy Council | Yes | [1967] 1 AC 259 | United Kingdom | Cited as an example of legislation aimed at securing the conviction of particular individuals. |
| HJ (Iran) v Secretary of State for the Home Department and another action | UK Supreme Court | Yes | [2011] 1 AC 596 | United Kingdom | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| Vriend v Alberta | Canadian Supreme Court | Yes | [1998] 1 SCR 493 | Canada | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| Egan v Canada | Canadian Supreme Court | Yes | [1995] 2 SCR 513 | Canada | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| Leung TC William Roy v Secretary for Justice | Hong Kong Court of Appeal | Yes | [2006] 4 HKLRD 211 | Hong Kong | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| Naz Foundation v Government of NCT of Delhi and Others | High Court of Delhi | Yes | WP(C) No 7455 of 2001 | India | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| Perry v Schwarzenegger | US District Court | Yes | 704 F Supp 2d 921 | United States | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| Sunil Babu Pant and Others v Nepal Government, Office of the Prime Minister and Council of Ministers and Others | Nepalese Supreme Court | Yes | [2008] NLJLJ 262 | Nepal | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| The National Coalition for Gay and Lesbian Equality v The South African Human Rights Commission | South African Constitutional Court | Yes | (1999) 1 SA 6 | South Africa | Cited to support the proposition that homosexuality is a natural and immutable attribute. |
| Ng Huat v Public Prosecutor | High Court | Yes | [1995] 2 SLR(R) 66 | Singapore | Cited for the principle that consent was not an element of the s 377A offence. |
| Chng Suan Tze v Minister for Home Affairs and others and other appeals | Court of Appeal | Yes | [1988] 2 SLR (R) 525 | Singapore | Cited to link the Ong Ah Chuan rules prohibiting arbitrariness to the broader concept of the rule of law. |
| Korematsu v United States | US Supreme Court | Yes | 323 US 214 | United States | Cited regarding the 'strict scrutiny' test. |
| Jackson v Abercrombie | US District Court | Yes | 884 F Supp 2d 1065 | United States | The US District Court declined to declare s 23 of Art 1 of the Hawaiian Constitution, which states that “[t]he legislature shall have the power to reserve marriage to opposite-sex couples”, unconstitutional. |
| Frontiero v Richardson | US Supreme Court | Yes | 411 US 677 | United States | Cited for the definition of immutability. |
| Regents of University of California v Bakke | US Supreme Court | Yes | 438 US 265 | United States | Cited for the definition of immutability. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 18 r 19 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 377A | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 9(1) | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12(1) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 294(a) | Singapore |
| Interpretation Act (Cap 1, 2002 Rev Ed) s 9A | Singapore |
| Penal Code s 107(a) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Section 377A
- Constitutionality
- Gross Indecency
- Article 9(1)
- Article 12(1)
- Natural Justice
- Reasonable Classification
- Locus Standi
- Immutable Attribute
- Sexual Orientation
15.2 Keywords
- Section 377A
- Constitutionality
- LGBTQ
- Singapore
- Penal Code
- Human Rights
- Equality
- Discrimination
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Constitutional Law | 90 |
| Criminal Law | 70 |
| Human Sexuality | 50 |
16. Subjects
- Constitutional Law
- Criminal Law
- Human Rights
- LGBTQ Rights