Lim Meng Suang v Attorney-General: Constitutionality of Section 377A and Equal Protection
In Lim Meng Suang and another v Attorney-General and another appeal and another matter, the Singapore Court of Appeal heard appeals challenging the constitutionality of Section 377A of the Penal Code, arguing it violated Articles 9 and 12 of the Singapore Constitution. The court, led by Andrew Phang Boon Leong JA, dismissed the appeals, holding that Section 377A did not violate the Constitution. The court found that Section 377A satisfied the 'reasonable classification' test under Article 12(1) and did not fall within the scope of Article 12(2).
1. Case Overview
1.1 Court
Court of Appeal1.2 Outcome
Appeals Dismissed
1.3 Case Type
Constitutional
1.4 Judgment Type
Final Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore Court of Appeal upholds Section 377A, finding it consistent with Articles 9 and 12 of the Constitution, rejecting claims of discrimination.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Respondent | Government Agency | Appeals Dismissed | Won | Seow Zhixiang of Attorney-General’s Chambers Teo Siqi of Attorney-General’s Chambers Aedit Abdullah of Attorney-General’s Chambers Neo Xiulin Sherlyn of Attorney-General’s Chambers Jurena Chan Pei Shan of Attorney-General’s Chambers |
| Lim Meng Suang | Appellant | Individual | Appeal Dismissed | Lost | |
| Kenneth Chee Mun-Leon | Appellant | Individual | Appeal Dismissed | Lost | |
| Tan Eng Hong | Appellant | Individual | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Andrew Phang Boon Leong | Justice of Appeal | Yes |
| Belinda Ang Saw Ean | Judge | No |
| Woo Bih Li | Judge | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Seow Zhixiang | Attorney-General’s Chambers |
| Teo Siqi | Attorney-General’s Chambers |
| Aedit Abdullah | Attorney-General’s Chambers |
| Neo Xiulin Sherlyn | Attorney-General’s Chambers |
| Jurena Chan Pei Shan | Attorney-General’s Chambers |
| Deborah Barker | KhattarWong LLP |
| Ushan Premaratne | KhattarWong LLP |
| Ng Junyi | KhattarWong LLP |
| M Ravi | L F Violet Netto |
4. Facts
- Lim and Chee have been in a romantic and sexual relationship for 15 years.
- Tan was arrested for engaging in oral sex with a male partner in a public toilet.
- Section 377A criminalizes acts of gross indecency between male persons.
- Appellants argued Section 377A violates Articles 9 and 12 of the Singapore Constitution.
- The Attorney-General argued Section 377A passes the 'reasonable classification' test.
- Section 377A was introduced into the Penal Code in 1938.
- The High Court held that Section 377A did not violate the Singapore Constitution.
5. Formal Citations
- Lim Meng Suang and another v Attorney-General and another appeal and another matter, Civil Appeals Nos 54 and 125 of 2013 and Summons No 3664 of 2013, [2014] SGCA 53
- 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 and another matter, , [2010] 3 SLR 489
- Tan Eng Hong v Attorney-General, , [2012] 4 SLR 476
- Tan Eng Hong v Attorney-General, , [2013] 4 SLR 1059
- Lim Meng Suang and another v Attorney-General, , [2013] 3 SLR 118
- Ong Ah Chuan and another v Public Prosecutor, , [1979–1980] SLR(R) 710
- Malaysian Bar v Government of Malaysia, , [1987] 2 MLJ 165
- Lo Pui Sang and others v Mamata Kapilev Dave and others (Horizon Partners Pte Ltd, intervener) and other appeals, , [2008] 4 SLR(R) 754
- Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal, , [2010] 1 SLR 52
- Associated Provincial Picture Houses, Limited v Wednesbury Corporation, , [1948] 1 KB 223
- M’Alister (or Donoghue) (Pauper) v Stevenson, , [1932] AC 562
- Hedley Byrne & Co Ltd v Heller & Partners Ltd, , [1964] AC 465
- Candler v Crane, Christmas & Co, , [1951] 2 KB 164
- Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency, , [2007] 4 SLR(R) 100
- Lau Siew Kim v Yeo Guan Chye Terence and another, , [2008] 2 SLR(R) 108
- Chandran a/l Subbiah v Dockers Marine Pte Ltd (Owners of the Ship or Vessel “Tasman Mariner”, third party), , [2009] 3 SLR(R) 995
6. Timeline
| Date | Event |
|---|---|
| Section 377A introduced into Penal Code | |
| Tan Eng Hong arrested | |
| Tan Eng Hong and partner charged under Section 377A | |
| Tan Eng Hong files application challenging constitutionality of Section 377A | |
| Charges against Tan Eng Hong and partner substituted | |
| Court holds Tan Eng Hong has locus standi | |
| Lim and Chee file OS challenging constitutionality of Section 377A | |
| Tan's substantive application heard | |
| Lim and Chee's substantive application heard | |
| Judgment released in Lim Meng Suang | |
| Lim and Chee file notice of appeal | |
| Lim and Chee seek leave to amend OS | |
| Lim and Chee file Summons No 3664 of 2013 | |
| SUM 3664/2013 heard | |
| Tan files application for leave to intervene in CA 54/2013 | |
| Application for leave to intervene withdrawn | |
| Judgment released in Tan Eng Hong (substantive) | |
| Notice of appeal filed | |
| Court orders CA 54/2013 and CA 125/2013 to be heard together | |
| Respondent states it will not pursue case on locus standi | |
| Judgment reserved |
7. Legal Issues
- Constitutionality of Section 377A
- Outcome: The court held that Section 377A did not violate Articles 9 or 12 of the Singapore Constitution.
- Category: Substantive
- Related Cases:
- [1998] 2 SLR(R) 489
- [2005] 1 SLR(R) 103
- [2010] 3 SLR 489
- [2012] 4 SLR 476
- [2013] 4 SLR 1059
- [2013] 3 SLR 118
- Violation of Article 9(1)
- Outcome: The court held that Section 377A did not violate Article 9(1) of the Singapore Constitution.
- Category: Substantive
- Related Cases:
- [2012] 4 SLR 476
- [2008] 4 SLR(R) 754
- Violation of Article 12(1)
- Outcome: The court held that Section 377A did not violate Article 12(1) of the Singapore Constitution.
- Category: Substantive
- Related Cases:
- [1998] 2 SLR(R) 489
- [2005] 1 SLR(R) 103
- [2010] 3 SLR 489
- [1979–1980] SLR(R) 710
- [1987] 2 MLJ 165
- Violation of Article 12(2)
- Outcome: The court held that Section 377A did not violate Article 12(2) of the Singapore Constitution.
- Category: Substantive
8. Remedies Sought
- Declaration that Section 377A is unconstitutional
- Striking down Section 377A in toto
- Reading down Section 377A by striking out the words 'or private'
9. Cause of Actions
- No cause of actions
10. Practice Areas
- Constitutional Litigation
- Criminal Appeals
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Public Prosecutor v Taw Cheng Kong | Court of Appeal | Yes | [1998] 2 SLR(R) 489 | Singapore | Cited for the presumption of constitutionality of statutes. |
| Nguyen Tuong Van v Public Prosecutor | Court of Appeal | Yes | [2005] 1 SLR(R) 103 | Singapore | Cited for the two-step test for determining the constitutionality of a statute under Article 12. |
| Yong Vui Kong v Public Prosecutor and another matter | Court of Appeal | Yes | [2010] 3 SLR 489 | Singapore | Cited for the two-step test for determining the constitutionality of a statute under Article 12. |
| Tan Eng Hong v Attorney-General | Court of Appeal | Yes | [2012] 4 SLR 476 | Singapore | Cited for the issue of locus standi to challenge the constitutionality of Section 377A. |
| Tan Eng Hong v Attorney-General | High Court | Yes | [2013] 4 SLR 1059 | Singapore | Cited for the High Court's decision that Section 377A did not violate the Singapore Constitution. |
| Lim Meng Suang and another v Attorney-General | High Court | Yes | [2013] 3 SLR 118 | Singapore | Cited for the High Court's decision that Section 377A did not violate the Singapore Constitution. |
| Ong Ah Chuan and another v Public Prosecutor | Privy Council | Yes | [1979–1980] SLR(R) 710 | Singapore | Cited for the established test in Singapore for determining the constitutionality of a statute under Article 12, the 'reasonable classification' test. |
| Malaysian Bar v Government of Malaysia | Supreme Court | Yes | [1987] 2 MLJ 165 | Malaysia | Cited for the principle that discriminatory law is good law if it is based on 'reasonable' or 'permissible' classification. |
| Lo Pui Sang and others v Mamata Kapilev Dave and others (Horizon Partners Pte Ltd, intervener) and other appeals | Court of Appeal | Yes | [2008] 4 SLR(R) 754 | Singapore | Cited for the definition of 'personal liberty' in Article 9(1) as referring only to the personal liberty of a person from unlawful incarceration or detention. |
| Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal | Court of Appeal | Yes | [2010] 1 SLR 52 | Singapore | Cited for the court's wide discretion to allow an amendment of an OS at any stage of the proceedings. |
| Associated Provincial Picture Houses, Limited v Wednesbury Corporation | English Court of Appeal | Yes | [1948] 1 KB 223 | England and Wales | Cited for the test of unreasonableness in administrative law. |
| M’Alister (or Donoghue) (Pauper) v Stevenson | House of Lords | Yes | [1932] AC 562 | United Kingdom | Cited as an example of the courts' development of the principles of common law and equity. |
| Hedley Byrne & Co Ltd v Heller & Partners Ltd | House of Lords | Yes | [1964] AC 465 | United Kingdom | Cited as an example of the courts' development of the principles of common law and equity. |
| Candler v Crane, Christmas & Co | English Court of Appeal | Yes | [1951] 2 KB 164 | England and Wales | Cited as an example of the courts' development of the principles of common law and equity. |
| Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency | Court of Appeal | Yes | [2007] 4 SLR(R) 100 | Singapore | Cited as an example of the courts' development of the principles of common law and equity. |
| Lau Siew Kim v Yeo Guan Chye Terence and another | Court of Appeal | Yes | [2008] 2 SLR(R) 108 | Singapore | Cited as an example of the courts' development of the principles of common law and equity. |
| Chandran a/l Subbiah v Dockers Marine Pte Ltd (Owners of the Ship or Vessel “Tasman Mariner”, third party) | Court of Appeal | Yes | [2009] 3 SLR(R) 995 | Singapore | Cited as an example of the courts' development of the principles of common law and equity. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 377A | Singapore |
| Constitution of the Republic of Singapore Art 9(1) | Singapore |
| Constitution of the Republic of Singapore Art 12(1) | Singapore |
| Constitution of the Republic of Singapore Art 12(2) | Singapore |
| Constitution of the Republic of Singapore Art 4 | Singapore |
| Criminal Law Amendment Act 1885 (c 69) (UK) s 11 | United Kingdom |
| Penal Code (Cap 224, 1985 Rev Ed) | Singapore |
| Minor Offences Ordinance 1906 (No 13 of 1906) s 23 | Singapore |
| Penal Code (Amendment) Act 2007 (Act 51 of 2007) | Singapore |
| Penal Code (Cap 20, 1936 Rev Ed) s 377 | Singapore |
| Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) | Singapore |
| Penal Code (Amendment) Ordinance 1938 (No 12 of 1938) | Singapore |
| Hong Kong Criminal Law Amendment Ordinance 1901 (No 3 of 1901) s 2 | Hong Kong |
15. Key Terms and Keywords
15.1 Key Terms
- Section 377A
- Article 9
- Article 12
- Constitutionality
- Equal protection
- Reasonable classification
- Intelligible differentia
- Rational relation
- Sexual orientation
- Gross indecency
- Locus standi
- Societal morality
15.2 Keywords
- Section 377A
- Constitutionality
- Equal Protection
- Singapore
- Homosexuality
- Discrimination
- Fundamental Rights
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Constitutional Law | 90 |
| Human Rights | 60 |
| Criminal Law | 50 |
| Administrative Law | 30 |
16. Subjects
- Constitutional Law
- Criminal Law
- Human Rights
- Discrimination Law