Tan Seng Kee v Attorney-General and other appeals [2022] SGCA 16

Case Details

• Citation: [2022] SGCA 16
• Court: Court of Appeal of the Republic of Singapore
• Decision Date: 28 February 2022
• Coram: Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Tay Yong Kwang JCA, Steven Chong JCA
• Case Number: Civil Appeal No 54 of 2020; Civil Appeal No 55 of 2020; Civil Appeal No 71 of 2020
• Hearing Date(s): 25 January 2021
• Appellants: Tan Seng Kee (CA 54/2020); Ong Ming Johnson (CA 55/2020); Choong Chee Hong (CA 71/2020)
• Respondent: Attorney-General
• Counsel for Appellants: Ravi s/o Madasamy (Carson Law Chambers) for CA 54/2020; Eugene Singarajah Thuraisingam, Suang Wijaya, Johannes Hadi and Joel Wong En Jie (Eugene Thuraisingam LLP) for CA 55/2020; Harpreet Singh Nehal SC, Jordan Tan, Victor Leong (Audent Chambers LLC) (instructed), Choo Zheng Xi, Priscilla Chia Wen Qi and Wong Thai Yong (Peter Low & Choo LLC) for CA 71/2020
• Counsel for Respondent: Kristy Tan Ruyan SC, Hui Choon Kuen, Wong Huiwen Denise, Jeremy Yeo and Pang Ru Xue Jamie (Attorney-General’s Chambers)
• Practice Areas: Constitutional Law; Setting aside of arbitral awards

Summary

The landmark decision in [2022] SGCA 16 represents one of the most significant constitutional adjudications in the history of the Republic of Singapore. At its core, the case concerned the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed), a provision that criminalised acts of "gross indecency" between male persons. The Court of Appeal was tasked with determining whether this provision was inconsistent with Arts 9, 12, and 14 of the Constitution of the Republic of Singapore. While the court ultimately dismissed the constitutional challenges, it arrived at a profound and novel holding regarding the enforceability of the statute, predicated on a "political compromise" reached in 2007 and subsequent representations made by the Attorney-General in 2018.

The judgment is notable for its deep dive into the "Anterior Question" of whether s 377A was even enforceable in light of the government's stated policy of non-prosecution for private, consensual sexual acts between adult males. The court held that s 377A is currently unenforceable in its entirety. This unenforceability persists unless and until the Attorney-General of the day provides clear notice of an intention to reassert the right to enforce the provision proactively. This holding was rooted in the doctrine of substantive legitimate expectations, marking a rare instance where the court addressed the intersection of executive representations and statutory enforcement in a constitutional context. The court found that the 2007 political compromise—whereby the law remained on the books but would not be proactively enforced—created a legal landscape where the appellants faced no real threat of prosecution.

Doctrinally, the court reaffirmed the "reasonable classification" test for Art 12 (equality before the law), requiring both an "intelligible differentia" and a "rational relation" between that differentia and the purpose of the statute. The court also engaged extensively with the "Living Constitution" doctrine, ultimately rejecting its application in a manner that would allow the court to override the clear legislative intent of Parliament. The court emphasised that the judiciary's role is to interpret the law as it stands, rather than to legislate from the bench on matters of deeply contested social morality. By declaring the provision unenforceable but not unconstitutional, the court navigated a complex path between upholding the separation of powers and acknowledging the practical reality of the law's non-enforcement.

The broader significance of this case lies in its treatment of the "political compromise" as a legally relevant fact that shapes the exercise of prosecutorial discretion and the court's own jurisdiction. It underscores the court's preference for incremental change and its recognition of the legislature's primary role in resolving social disputes. However, by providing a judicial shield against prosecution through the finding of unenforceability, the court offered a practical remedy to the appellants while maintaining the formal validity of the statute. This "middle path" avoided the polarization of a total strike-down while ensuring that the rights of homosexual men were protected from the threat of arbitrary prosecution under an effectively dormant law.

Timeline of Events

1. 6 August 1885: The English Criminal Law Amendment Act 1885 is enacted in the United Kingdom, containing s 11 (the "Labouchere Amendment") which criminalised gross indecency between males.
2. 24 March 1938: The Penal Code (Amendment) Bill is introduced in the Straits Settlements, seeking to introduce s 377A, derived from s 11 of the 1885 UK Act.
3. 29 April 1938: The first reading of the 1938 Bill takes place.
4. 18 May 1938: The second reading of the 1938 Bill occurs, where Attorney-General Howell explains the purpose of the new section.
5. 13 June 1938: The 1938 Bill is considered in committee.
6. 30 June 1938: The 1938 Bill is passed, and s 377A is formally incorporated into the Penal Code.
7. 16 September 1963: Singapore joins Malaysia; the Constitution and existing laws continue to apply.
8. 27 August 1966: The Republic of Singapore Independence Act 1965 is passed, with retrospective effect to 9 August 1965.
9. 22 October 2007: A major debate begins in the Parliament of Singapore regarding the repeal of s 377A during the review of the Penal Code.
10. 23 October 2007: Prime Minister Lee Hsien Loong and other Members of Parliament articulate a "political compromise": s 377A will remain on the statute books but will not be proactively enforced.
11. 2 October 2018: Following the Indian Supreme Court's decision in Navtej Singh Johar, the Singapore government reiterates that s 377A will not be proactively enforced.
12. 6 October 2018: The Attorney-General’s Chambers (AGC) issues a statement confirming the non-enforcement policy for private consensual acts between adults.
13. 1 November 2018: Attorney-General Lucien Wong makes further representations regarding the exercise of prosecutorial discretion concerning s 377A.
14. 2018–2019: The appellants (Tan Seng Kee, Ong Ming Johnson, and Choong Chee Hong) file their respective Originating Summonses (OS 1176/2019, OS 1114/2018, and OS 1436/2018) in the High Court.
15. 30 March 2020: The High Court (See Kee Oon J) delivers judgment in [2020] SGHC 63, dismissing the challenges to s 377A.
16. 25 January 2021: The Court of Appeal hears the consolidated appeals (CA 54, 55, and 71 of 2020).
17. 28 February 2022: The Court of Appeal delivers its judgment in [2022] SGCA 16, dismissing the appeals but declaring s 377A unenforceable.

What Were the Facts of This Case?

The case arose from three separate constitutional challenges to s 377A of the Penal Code (Cap 224, 2008 Rev Ed). Section 377A provided: "Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years." The appellants were three individuals who identified as homosexual men and argued that the continued existence of s 377A infringed upon their fundamental rights under the Constitution.

The first appellant, Tan Seng Kee (CA 54/2020), commenced his challenge via OS 1176/2019. The second appellant, Ong Ming Johnson (CA 55/2020), filed OS 1114/2018. The third appellant, Choong Chee Hong (CA 71/2020), filed OS 1436/2018. These applications were consolidated for hearing before the High Court and subsequently before the Court of Appeal. The appellants sought various declarations, including that s 377A was inconsistent with Art 9 (liberty of the person), Art 12 (equal protection), and Art 14 (freedom of speech and expression).

A critical factual pillar of the case was the legislative history of s 377A. The provision was introduced into the Straits Settlements Penal Code in 1938. It was modeled on s 11 of the English Criminal Law Amendment Act 1885. At the time of its introduction, the then-Attorney-General of the Straits Settlements, AG Howell, explained that the section was intended to address "acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of section 377." The "unnatural offence" referred to in s 377 was buggery (anal penetration). Thus, s 377A was designed to capture a broader range of sexual conduct between men that fell short of full penetration but was nonetheless deemed "grossly indecent" by the standards of the time.

The factual matrix also included the significant political developments of 2007. During a comprehensive review of the Penal Code, Parliament engaged in a robust debate over whether s 377A should be repealed. The outcome was what the court termed a "political compromise." The government decided to retain s 377A on the statute books to reflect the moral sentiments of the conservative majority, but simultaneously committed to a policy of non-proactive enforcement. This meant that the police would not actively seek out or prosecute individuals for private, consensual sexual acts between adult males. This compromise was articulated by Prime Minister Lee Hsien Loong in Parliament on 23 October 2007, where he stated that homosexuals were "our people" and that the government would not "proactively enforce" the law.

This policy was further clarified in 2018 following the decision of the Supreme Court of India in Navtej Singh Johar & Ors v Union of India thr Secretary, Ministry of Law and Justice [2018] 10 SCC 1, which decriminalised same-sex intercourse. In response to public interest, the Singapore government and the Attorney-General (AG) made several representations. On 6 October 2018, the AGC issued a statement clarifying that the non-enforcement policy applied to private consensual acts between adults. On 1 November 2018, AG Lucien Wong stated that where the conduct was private and consensual, the "prosecutorial discretion" would be exercised in a manner consistent with the 2007 compromise. These representations became central to the Court of Appeal's analysis of the "Anterior Question" regarding the law's enforceability.

The appellants argued that despite the non-enforcement policy, the mere existence of s 377A caused them significant harm. They contended that it stigmatised them, treated them as "un-arrested criminals," and had a chilling effect on their lives and expressions of identity. They also pointed to the fact that s 377A remained a "seizable" offence under the Criminal Procedure Code, meaning the police could arrest without a warrant. The High Court judge, See Kee Oon J, had dismissed these arguments in [2020] SGHC 63, finding that the provision did not violate the Constitution. The appeals to the Court of Appeal followed, bringing these complex factual and legal issues to the highest court in the land.

What Were the Key Legal Issues?

The appeals raised several profound legal issues, which the Court of Appeal categorized into the "Anterior Question" and the "Substantive Constitutional Questions." The framing of these issues was crucial to the court's eventual disposition of the case.

1. The Anterior Question: Enforceability and Standing
The first issue was whether s 377A was enforceable in its entirety given the executive's representations. This involved determining whether the 2007 political compromise and the 2018 statements by the AG created a "substantive legitimate expectation" that homosexual men would not be prosecuted for private consensual acts. This issue was critical because if the law was unenforceable, the appellants might lack the necessary "standing" to challenge its constitutionality, as they would face no real threat of prosecution. The court had to balance the doctrine of separation of powers against the need to protect individuals from the "sword of Damocles" represented by a criminal statute.

2. Article 12: The Right to Equality and Equal Protection
The primary substantive challenge was based on Art 12(1) of the Constitution, which provides that "all persons are equal before the law and entitled to the equal protection of the law." The key legal issue here was whether s 377A was discriminatory because it targeted only male-to-male sexual conduct, while leaving female-to-female conduct and certain heterosexual conduct unregulated. This required the application of the "reasonable classification" test, which asks:

• (a) Whether the classification is based on an "intelligible differentia" (a clear distinction between those included and those excluded from the group); and
• (b) Whether that differentia has a "rational relation" to the purpose of the statute.

The court had to determine the precise "legislative purpose" of s 377A—whether it was to protect public morality generally or to target a specific "mischief" identified in 1938.

3. Article 9: The Right to Life and Personal Liberty
The appellants argued that s 377A violated Art 9(1), which states that "no person shall be deprived of his life or personal liberty save in accordance with law." The legal issue was whether "personal liberty" included a right to privacy or a right to engage in consensual sexual intimacy. Furthermore, the court had to decide if s 377A was "absurd" or "arbitrary" such that it could not be considered "law" for the purposes of Art 9. This involved a deep dive into the meaning of "gross indecency" and whether it was too vague to provide fair notice of what conduct was criminalised.

4. Article 14: Freedom of Speech and Expression
The third substantive challenge concerned Art 14, which protects the right to freedom of speech and expression. The appellants contended that s 377A effectively criminalised the expression of their sexual identity. The legal issue was whether a law criminalising physical conduct could be seen as an unconstitutional restriction on the "expression" of one's identity, and whether such a restriction was "necessary" in the interests of public order or morality.

How Did the Court Analyse the Issues?

The Court of Appeal’s analysis was exhaustive, spanning nearly 200 pages. The judgment, delivered by Sundaresh Menon CJ, began by addressing the "Anterior Question," which proved to be the most innovative part of the decision.

The Anterior Question and the Political Compromise

The court examined the 2007 political compromise in detail. It noted that Parliament had made a deliberate choice to retain s 377A while the executive committed to non-enforcement. The court observed that this compromise was not merely a political statement but had legal consequences. The court analysed the representations made by AG Wong in 2018, which stated that "the Prosecution’s position is that it will not prosecute any person for any act under s 377A where the act is committed in private and between consenting adults."

The court applied the doctrine of substantive legitimate expectations, citing SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] 3 SLR 598 and Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2014] 1 SLR 1047. It held that the AG’s representations were "clear, unambiguous and devoid of relevant qualification." Consequently, the court found that s 377A was unenforceable in its entirety in the current circumstances. As the court stated at [149]:

"we answer the Anterior Question by holding that s 377A is unenforceable in its entirety, unless and until the AG of the day provides clear notice that he, in his capacity as the PP: (a) intends to reassert his right to enforce s 377A proactively by way of prosecution; and (b) will no longer abide by the representations made by AG Wong in 2018"

This finding of unenforceability was central because it meant the appellants were not "aggrieved" in a way that would normally grant them standing to challenge the constitutionality of the law. However, the court decided to proceed with the substantive analysis anyway, given the public importance of the issues.

Article 12 and the Reasonable Classification Test

The court then turned to Art 12. It applied the two-stage "reasonable classification" test. The first stage—intelligible differentia—was easily met: s 377A clearly distinguished between males who commit acts of gross indecency with other males and all other persons. The second stage—rational relation—was the primary battleground. The court had to identify the "legislative purpose" of s 377A.

The appellants argued the purpose was to protect public morality, and that criminalising only male-to-male conduct was not rationally related to that purpose. The court, however, looked at the 1938 legislative history. It found that the specific purpose of s 377A was to "supplement s 377" by criminalising male-to-male conduct that did not involve anal penetration. The court relied on the 1938 speech by AG Howell and the derivation from s 11 of the 1885 UK Act. The court concluded that because the purpose was specifically to target male-to-male indecency, the classification (males only) was perfectly and rationally related to that narrow purpose. The court rejected the "Living Constitution" argument that the purpose should be re-evaluated in light of modern standards, holding that the court's role is to determine the purpose at the time of enactment.

Article 9 and the Scope of "Personal Liberty"

Regarding Art 9, the court followed its previous decision in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26. It reaffirmed that "personal liberty" in Art 9(1) refers only to the "freedom from an unlawful deprivation of the physical body" (i.e., freedom from arbitrary arrest and detention). It does not encompass a broader right to privacy or sexual autonomy. The court noted that while the Supreme Court of the United States in Lawrence et al v Texas 539 US 558 (2003) had found a right to privacy in "the most private human conduct," Singapore's constitutional jurisprudence remained more focused on the text and the specific historical context of the rights granted.

The court also addressed the argument that s 377A was "absurd" and thus not "law." The appellants argued that "gross indecency" was too vague. The court disagreed, holding that while the term is broad, it is not so vague as to be meaningless. It refers to conduct that a reasonable person would consider "grossly indecent" in the context of the time. The court cited Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 to emphasize that a law is only "absurd" if it is "so devoid of any rational basis that it cannot be said to be a law at all." Section 377A did not meet this high threshold.

Article 14 and Freedom of Expression

The challenge under Art 14 was also dismissed. The court held that Art 14 protects the freedom of speech and expression, which primarily concerns the communication of ideas. While some conduct can be "expressive," the court found that the sexual acts criminalised by s 377A were not the type of "expression" contemplated by Art 14. Even if they were, the court noted that Art 14(2) allows for restrictions in the interest of "public morality," and s 377A would fall within that exception.

What Was the Outcome?

The Court of Appeal dismissed all three appeals, upholding the High Court's decision that s 377A was not unconstitutional. However, the court's finding on the "Anterior Question" meant that the appellants achieved a significant practical victory: a judicial declaration that the law is currently unenforceable.

The court's final orders were as follows:

• The appeals were dismissed in terms of the constitutional challenges.
• The court declared that s 377A is unenforceable in its entirety unless and until the Attorney-General provides clear notice of an intention to reassert the right to enforce it.
• The court made no order as to costs for the proceedings both before the Court of Appeal and in the High Court.

The operative reasoning for the dismissal of the substantive challenges was summarized at [330]:

"In these unique circumstances, the thorny issues surrounding the acceptance of the doctrine of substantive legitimate expectations as part of Singapore law do not arise, but they will have to be considered in a suitable case in the future."

This paragraph is somewhat paradoxical, as the court *did* rely on the representations of the AG to find unenforceability, but it avoided making a definitive ruling on the full scope of the doctrine of substantive legitimate expectations in all areas of administrative law. Instead, it focused on the "unique circumstances" of the 2007 political compromise.

Regarding costs, the court exercised its discretion to make no order as to costs, acknowledging the public interest nature of the litigation and the fact that the appellants had succeeded on the significant point of unenforceability. As stated at [331]:

"we make no order as to costs for the proceedings both before us and in the court below."

The practical effect of the judgment was to maintain the status quo of the "political compromise" but with the added weight of a judicial decree. Homosexual men in Singapore were assured that they would not be prosecuted for private consensual acts, but the formal repeal of the law remained a matter for Parliament. (Note: Section 377A was subsequently repealed by Parliament in late 2022, following this judgment).

Why Does This Case Matter?

Tan Seng Kee v Attorney-General is a watershed moment in Singapore's legal landscape for several reasons. First, it demonstrates the Court of Appeal's commitment to the "Green Light" theory of administrative law, where the court seeks to facilitate good governance while protecting individual rights through a nuanced understanding of executive power. By holding the Attorney-General to his representations of non-enforcement, the court reinforced the principle that the executive cannot make public promises to the citizenry and then ignore them without consequence.

Second, the case clarifies the "reasonable classification" test under Art 12. By insisting that the "purpose" of a statute must be determined as of the time of its enactment, the court rejected the "Living Constitution" approach that has been adopted in other jurisdictions like Canada or India. This signals a more conservative, originalist approach to constitutional interpretation in Singapore, emphasizing that if a law is to be changed because of shifting social values, that change must come from the legislature, not the judiciary. This preserves the separation of powers and ensures that the court does not become a site for "culture wars."

Third, the judgment provides a masterclass in judicial restraint. The court was acutely aware of the deep divisions in Singaporean society regarding s 377A. By finding the law unenforceable but not unconstitutional, the court provided a "safety valve" that protected the affected minority from prosecution while respecting the legislative prerogative of the majority. This "middle path" prevented a direct confrontation between the judiciary and the legislature, which could have occurred if the court had struck down a law that Parliament had recently and explicitly voted to retain.

For practitioners, the case is a critical authority on the doctrine of substantive legitimate expectations. While the court was cautious about fully adopting the doctrine in all contexts, its application here shows that the doctrine has teeth in Singapore law, especially when the executive makes clear and unambiguous representations. It also underscores the importance of legislative history (Hansard) in constitutional litigation. The court's reliance on the 1938 and 2007 debates shows that what is said in Parliament can have direct legal consequences in the courtroom.

Finally, the case matters because it set the stage for the eventual repeal of s 377A. By declaring the law a "dead letter" in practice, the court made it easier for the government to move toward formal repeal, which happened later in 2022. The judgment provided the legal and social space for a peaceful resolution to a long-standing and contentious issue. It remains a definitive statement on the relationship between law, morality, and the role of the courts in a pluralistic society.

Practice Pointers

• Standing and the "Aggrieved" Requirement: Practitioners should note that a "real threat of prosecution" is generally required for standing in constitutional challenges to criminal statutes. However, where a law is declared unenforceable, the court may still proceed to hear the merits if the matter is of significant public interest.
• The "Reasonable Classification" Test: When challenging a law under Art 12, focus heavily on identifying the "legislative purpose" at the time of enactment. The court is unlikely to accept a "modernized" purpose that contradicts the original intent found in historical records.
• Use of Hansard: This case highlights the critical importance of researching Parliamentary debates. Statements by the Attorney-General or Ministers during the introduction of a Bill are primary evidence of the "mischief" the law was intended to address.
• Substantive Legitimate Expectations: If the executive makes a clear, unambiguous representation about how it will exercise its discretion (e.g., a policy of non-enforcement), this can be used to argue that the law is unenforceable against those who rely on that representation.
• Article 9 Limits: Do not rely on Art 9 for "privacy" or "autonomy" arguments in Singapore. The court has firmly restricted "personal liberty" to physical freedom from arrest. Such arguments are better framed under Art 12 if a discriminatory element can be found.
• The "Living Constitution" Doctrine: Be cautious when citing foreign "living constitution" cases (like those from the US or India). The Singapore Court of Appeal has expressed a strong preference for a "four walls" approach that prioritizes local context and original intent.
• Costs in Public Interest Litigation: Even if a constitutional challenge fails, the court may decline to award costs against the applicant if the case raises novel points of law or significant public interest issues.

Subsequent Treatment

The decision in Tan Seng Kee was the final judicial word on s 377A before its legislative repeal. Following the judgment, the Singapore government announced in August 2022 that it would repeal s 377A, a move that was completed in Parliament in November 2022. The court's finding of "unenforceability" was frequently cited in the subsequent Parliamentary debates as a reason why the law had become a legal anomaly. Later cases in the administrative law sphere have looked to Tan Seng Kee for guidance on the doctrine of substantive legitimate expectations, though the courts remain cautious about expanding the doctrine beyond the "unique circumstances" identified by the Court of Appeal.

Legislation Referenced

• Penal Code (Cap 224, 2008 Rev Ed), s 377A, s 377
• Penal Code (Cap 20, 1936 Rev Ed)
• Penal Code (Cap 224, 1985 Rev Ed)
• Interpretation Act (Cap 1, 2002 Rev Ed), s 9A(1), s 9A(2)(a)
• Criminal Procedure Code (Cap 68, 2012 Rev Ed)
• Prevention of Corruption Act (Cap 241, 1993 Rev Ed), s 37(1)
• Work Injury Compensation Act (Cap 354, 2009 Rev Ed)
• English Criminal Law Amendment Act 1885, s 11
• Buggery Act 1533 (c 6) (UK)
• Offences Against the Person Act 1861 (c 100) (UK), s 61
• Sexual Offences Act 1956 (UK), s 13

Cases Cited

• Referred to: Ong Ming Johnson v Attorney-General and other matters [2020] SGHC 63
• Referred to: Tan Hon Leong Eddie v Attorney-General [2021] SGHC 196
• Referred to: Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947
• Referred to: Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95
• Referred to: Wham Kwok Han Jolovan v Public Prosecutor [2021] 1 SLR 476
• Referred to: Tan Eng Hong v Attorney-General [2013] 4 SLR 1059
• Referred to: Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26
• Referred to: Tan Cheng Bock v Attorney-General [2017] 2 SLR 850
• Referred to: Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489
• Referred to: UKM v Attorney-General [2019] 3 SLR 874
• Referred to: Ramalingam Ravinthran v Attorney-General [2012] 2 SLR 49
• Referred to: Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239
• Referred to: SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] 3 SLR 598
• Referred to: Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2014] 1 SLR 1047
• Referred to: Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal [2019] 2 SLR 216
• Referred to: Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489
• Referred to: Lawrence et al v Texas 539 US 558 (2003)
• Referred to: Navtej Singh Johar & Ors v Union of India thr Secretary, Ministry of Law and Justice [2018] 10 SCC 1

Source Documents

• Original Judgment PDF (eLitigation)
• Case Summary on eLitigation