Lim Meng Suang v Attorney-General: Constitutionality of Section 377A & LGBTQ+ Rights

In Lim Meng Suang and another v Attorney-General, the Singapore High Court, presided over by Justice Quentin Loh, dismissed the plaintiffs' originating summons challenging the constitutionality of Section 377A of the Penal Code under Article 12 of the Constitution. The plaintiffs argued that Section 377A, which criminalizes acts of gross indecency between men, infringes their right to equality before the law. The court found that the law's classification based on gender had a rational relationship to the object of preserving public morality, and therefore did not violate Article 12. The court upheld the presumption of constitutionality and dismissed the plaintiffs' claim.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Claim dismissed

1.3 Case Type

Constitutional

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court upholds Section 377A of the Penal Code, finding it consistent with Article 12 of the Constitution regarding equal protection.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Attorney-GeneralDefendantGovernment AgencyClaim DismissedWon
Jeremy Yeo Shenglong of Attorney-General’s Chambers
Aedit Abdullah of Attorney-General’s Chambers
Sherlyn Neo Xiulin of Attorney-General’s Chambers
Lim Meng SuangPlaintiffIndividualClaim DismissedLost
Kenneth Chee Mun-LeonPlaintiffIndividualClaim DismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Quentin LohJudgeYes

4. Counsels

Counsel NameOrganization
Jeremy Yeo ShenglongAttorney-General’s Chambers
Aedit AbdullahAttorney-General’s Chambers
Sherlyn Neo XiulinAttorney-General’s Chambers
Peter Cuthbert LowPeter Low LLC
Indulekshmi RajeswariPeter Low LLC
Choo ZhengxiPeter Low LLC

4. Facts

  1. Mr. Lim and Mr. Chee have been in a romantic and sexual relationship for 16 years.
  2. Mr. Lim and Mr. Chee do not live together due to Mr. Lim's need to care for his aging parents.
  3. Mr. Lim's mother has shown tacit acceptance of his relationship with Mr. Chee.
  4. Mr. Chee's family accepts Mr. Lim as a close friend but is unaware of the true nature of their relationship.
  5. Mr. Lim and Mr. Chee feel they cannot be openly affectionate in public due to social stigma.
  6. Mr. Lim and Mr. Chee are apprehensive about being charged under s 377A.
  7. Mr. Lim experienced discrimination in school and the army.

5. Formal Citations

  1. Lim Meng Suang and another v Attorney-General, Originating Summons No 1135 of 2012, [2013] SGHC 73

6. Timeline

DateEvent
Magna Carta signed
US Fourteenth Amendment enacted
Criminal Law Amendment Act 1885 (UK) enacted
Oscar Wilde convicted under s 11 of the Criminal Law Amendment Act 1885
Penal Code (Amendment) Ordinance 1938 introduced in Singapore
Parliamentary debates on Penal Code (Amendment) Bill 2007
Originating Summons No 1135 of 2012 filed
Judgment reserved

7. Legal Issues

  1. Constitutionality of Section 377A
    • Outcome: The court held that Section 377A is constitutional and does not violate Article 12 of the Constitution.
    • Category: Substantive
    • Sub-Issues:
      • Discrimination based on sexual orientation
      • Infringement of Article 12 of the Constitution
      • Vagueness of 'gross indecency'
    • Related Cases:
      • [2012] 4 SLR(R) 476
  2. Locus Standi
    • Outcome: The court proceeded on the basis that the Defendant is not disputing that the Plaintiffs do have the requisite locus standi.
    • Category: Procedural

8. Remedies Sought

  1. Declaration that s 377A is inconsistent with Art 12 of the Constitution and therefore void

9. Cause of Actions

  • Constitutional Challenge

10. Practice Areas

  • Constitutional Litigation
  • Criminal Appeals

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Karaha Bodas Co LLC v Pertamina Energy Trading LtdCourt of AppealYes[2006] 1 SLR(R) 112SingaporeCited regarding the element of a real controversy in the matter of locus standi.
Tan Eng Hong v Attorney-GeneralCourt of AppealYes[2012] 4 SLR(R) 476SingaporeCited for the two-stage inquiry for the High Court to ascertain the constitutionality of s 377A under Art 12 of the Constitution.
Shri Ram Krishna Dalmia v Shri Justice SR TendolkarIndian Supreme CourtYes(1959) SCR 279IndiaCited for the principle that the Legislature is free to recognise degrees of harm.
Public Prosecutor v Taw Cheng KongCourt of AppealYes[1998] 2 SLR(R) 489SingaporeCited for the origin of the concepts of equality before the law and equal protection of the law.
Haji Harun bin Haji Idris v Public ProsecutorUnknownYes[1977] 2 MLJ 155MalaysiaCited to support the expansion of the principle of equal protection of the law to include a guarantee of substantive equality.
Public Prosecutor v Su Liang YuUnknownYes[1976] 2 MLJ 128MalaysiaCited for the dominant idea in both expressions ‘equal before the law’ and ‘equal protection of the law’ is that of equal justice.
Chiranjit Lal v Union of IndiaIndian Supreme CourtYes(1950) SCR 869IndiaCited for the proposition that every classification is in some degree likely to produce some inequality.
Malaysian Bar v Government of MalaysiaUnknownYes[1987] 2 MLJ 165MalaysiaCited for the requirement for equal protection of the law does not mean that all laws passed by a legislature must apply universally to all persons.
Ong Ah Chuan and another v Public ProsecutorPrivy CouncilYes[1979–1980] SLR(R) 710SingaporeCited for the principle that equality before the law and equal protection of the law under Art 12(1) does not mean that all persons are to be treated equally, but that all persons in like situations are to be treated alike.
Nguyen Tuong Van v Public ProsecutorCourt of AppealYes[2005] 1 SLR(R) 103SingaporeCited for the test for constitutionality under Art 12(1) has been termed the “reasonable classification” test.
Yong Vui Kong v Public Prosecutor and another matterCourt of AppealYes[2010] 3 SLR 489SingaporeCited for the test for constitutionality under Art 12(1) has been termed the “reasonable classification” test.
Ghulam Sarwar v Union of IndiaIndian Supreme CourtYes[1967] 2 SCR 271IndiaCited for the reasonable classification test.
Government of Malaysia v VR MenonUnknownYes[1990] 1 MLJ 277MalaysiaCited for the reasonable classification test.
Taw Cheng Kong v Public ProsecutorHigh CourtYes[1998] 1 SLR(R) 78SingaporeCited for the difficulties of applying the Second Limb of the reasonable classification test.
Morey v DaudUS Supreme CourtYes354 US 457United StatesCited for the complexity of modern laws.
Strauder v West VirginiaUS Supreme CourtYes100 US 303United StatesCited as an example of a statute struck down by the US Supreme Court as unconstitutional under the US Fourteenth Amendment.
Yick Wo v HopkinsUS Supreme CourtYes118 US 356United StatesCited as an example of the US Supreme Court striking down the administrative discriminatory implementation of the law against the Chinese.
Middleton v Texas Power and Light CompanyUS Supreme CourtYes249 US 152United StatesCited for the basis for the presumption of constitutionality.
Kedar Nath Bajoria Hari Ram Vaid v State of West BengalIndian Supreme CourtYesAIR 1953 SC 404IndiaCited for the legislative classification must not be arbitrary.
Yong Vui Kong v Attorney-GeneralCourt of AppealYes[2011] 2 SLR 1189SingaporeCited for the Chng Suan Tze principle.
Chan Hiang Leng Colin v Minister for Information and the ArtsCourt of AppealYes[1996] 1 SLR(R) 294SingaporeCited for the court’s duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution.
Takahashi v Fish and Game CommissionerUS Supreme CourtYes334 US 410United StatesCited for the principle that a classification may satisfy the ‘reasonable relation’ test and yet be invalid because the object sought to be achieved is itself inherently bad.
Lawrence v TexasUS Supreme CourtYes539 US 558United StatesCited for the principle that the people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts.
Ramalingam Ravinthran v Attorney-GeneralCourt of AppealYes[2012] 2 SLR 49SingaporeCited for the arbitrary enforcement of s 377A which results in an infringement of Art 12.
TPY v DZIHigh CourtYes[1997] 1 SLR(R) 843SingaporeCited for the principle that the tort of enticement was founded on an archaic concept of women as chattels, which was clearly not acceptable in modern society.
Bowers v HardwickUS Supreme CourtYes478 US 186United StatesCited for the principle that the US Constitution did not prohibit what almost all the States had done from the founding of the US until recent times, viz, make homosexual conduct a crime.
Perry v Hollingsworth9th CirYes671 F 3d 1052United StatesCited for the constitutionality of California’s Proposition 8, which bans same-sex marriage by defining “marriage” as a union between a man and a woman.
Roe v WadeUS Supreme CourtYes410 US 113United StatesCited for the principle that the decision was incorrect, with the most recent instance being at an event in Columbia Law School, where she said “[i]t’s not that the judgment was wrong, but it moved too far, too fast”.
Hirabayashi v United StatesUS Supreme CourtYes320 US 81United StatesCited for the principle that an over-inclusive classification might nevertheless satisfy the “rational relation” test.
Korematsu v USUS Supreme CourtYes323 US 214United StatesCited for the principle that an over-inclusive classification might nevertheless satisfy the “rational relation” test.
Ramakrishnan Singh v State of MysoreUnknownYesAIR 1960 Mys 338IndiaCited for the principle that an over-inclusive classification might nevertheless satisfy the “rational relation” test.
Kesava Iyegar v State of MysoreUnknownYesAIR 1956 Mys 20IndiaCited for the principle that an over-inclusive classification might nevertheless satisfy the “rational relation” test.
Annis bin Abdullah v Public ProsecutorUnknownYes[2004] 2 SLR(R) 93SingaporeCited for the principle that Singaporeans by and large did not find oral and anal sex in private between a consenting male adult and a consenting female adult offensive or unacceptable.
Don John Francis Douglas Liyanage v The QueenPrivy CouncilYes[1967] 1 AC 259United KingdomCited for the principle that legislation directed at securing the conviction of particular known individuals.
United States v Carolene Products CoUS Supreme CourtYes304 US 144United StatesCited for the strict scrutiny test.
Public Prosecutor v Tan Kuan MengHigh CourtYes[1996] SGHC 16SingaporeCited for the principle that “carnal intercourse against the order of nature” in s 377 to include fellatio.
Public Prosecutor v Kwan Kwong WengCourt of AppealYes[1997] 1 SLR(R) 316SingaporeCited for the principle that “carnal intercourse against the order of nature” in s 377 to include fellatio.
Homer A Plessy v FergusonUS Supreme CourtYes163 US 537United StatesCited for the principle that the US Supreme Court had upheld half a century earlier (see Homer A Plessy v Ferguson 163 US 537 (1896)).
Brown v Board of EducationUS Supreme CourtYes347 US 483United StatesCited for the seminal decision of Brown v Board of Education 347 US 483 (1954), which barred racial segregation in public schools and outlawed the “separate but equal” facilities for black people that the US Supreme Court had upheld half a century earlier (see Homer A Plessy v Ferguson 163 US 537 (1896)).

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Penal Code (Cap 224, 2008 Rev Ed) s 377ASingapore
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12Singapore
Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 15 r 16Singapore
Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 92 r 5Singapore
Penal Code (Cap 224, 1985 Rev Ed)Singapore
Penal Code (Cap 20, 1936 Rev Ed)Singapore
Interpretation Act (Cap 1, 2002 Rev Ed)Singapore
Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed)Singapore
Prevention of Corruption Act (Cap 241, 1993 Rev Ed)Singapore
Misuse of Drugs Act (Cap 185, 2001 Rev Ed)Singapore
Minor Offences OrdinanceSingapore
Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed)Singapore
Criminal Law Amendment Act 1885 (c 69) (UK)United Kingdom
Offences Against the Person Act 1861 (c 100) (UK)United Kingdom
Larceny Act 1861 (c 96) (UK)United Kingdom

15. Key Terms and Keywords

15.1 Key Terms

  • Section 377A
  • Article 12
  • Gross indecency
  • Homosexual conduct
  • Equal protection
  • Intelligible differentia
  • Rational relation
  • Presumption of constitutionality
  • Locus standi
  • Public morality

15.2 Keywords

  • Section 377A
  • Constitutionality
  • LGBTQ+
  • Singapore
  • High Court
  • Discrimination
  • Equal Protection
  • Sexual Orientation

17. Areas of Law

Area NameRelevance Score
Constitutional Law90
Criminal Law85
Human Sexuality30
Criminal Procedure20

16. Subjects

  • Constitutional Law
  • Human Rights
  • LGBTQ+ Rights
  • Criminal Law