Archive of Court of Appeal judgment in Tan Seng Kee v AG, 28 February 2022

IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

[2022] SGCA 16

Civil Appeal No 54 of 2020

Between Tan Seng Kee ... Appellant

And Attorney-General ... Respondent

In the matter of Originating Summons No 1176 of 2019

Between Tan Seng Kee ... Plaintiff

And Attorney-General ... Defendant

Civil Appeal No 55 of 2020

Between Ong Ming Johnson ... Appellant

And Attorney-General ... Respondent

In the matter of Originating Summons No 1114 of 2018

Between Ong Ming Johnson ... Plaintiff

And Attorney-General ... Defendant

Civil Appeal No 71 of 2020

Between Choong Chee Hong ... Appellant

And Attorney-General ... Respondent

In the matter of Originating Summons No 1436 of 2018

Between Choong Chee Hong ... Plaintiff

And Attorney-General ... Defendant

Tan Seng Kee v Attorney-General and other appeals

[2022] SGCA 16

Court of Appeal — Civil Appeals Nos 54, 55 and 71 of 2020

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Tay Yong Kwang JCA and Steven Chong JCA

25 January 2021

28 February 2022 Judgment reserved.

Sundaresh Menon CJ (delivering the judgment of the court):

=Introduction=

1 These appeals concern the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev  Ed)  (referred  to  hereafter  as  “s 377A” and “the  PC” respectively),  an  issue  which  is  before  this  court  not  for  the  first  time. The appellants contend that s 377A is unconstitutional by reason of its inconsistency with Arts 9,  12  and/or  14  of  the  Constitution  of  the  Republic  of  Singapore (1985 Rev Ed,  1999 Reprint) (“the Constitution”). Although s 377A  is  a  law that, on its face, purports to do no more than prohibit particular sexual acts, its penalty and  purpose  carry  more  profound  consequences,  touching  upon  “the most private human conduct” and  often  in  the  context  of  the  most  private relationships (see Lawrence et al v Texas 539 US 558 (2003) at 567). Yet, for a law that  has  come  to  be  intensely  personal  to  many  for  what  it  means  both practically and  symbolically,  it  has  also  assumed  an  exceedingly  public dimension. What rights the appellants claim to be fundamental, others view as controversial; what is to the appellants deeply personal and even definitive of their identity,  others  regard  as  offensive. On both  sides  of  this  divide,  the continued existence  of  s 377A  in  our  statute  books  has  taken  on  particular importance because of what it is thought to signify. (For completeness, we note that the current s 377A of the Penal Code 1871  (2020 Rev Ed) (“the Revised PC”) is in pari materia with s 377A of the PC,  which was the version of the provision that was in force at the time of the appellants’ respective applications and the subject of the present constitutional challenges. Likewise, the  present Arts 9,  12  and  14  of  the  Constitution  of  the  Republic  of  Singapore  1965 (2020 Rev Ed) (“the Revised Constitution”) are  in  pari  materia  with  the corresponding  Articles  of  the  Constitution  that  were  in  force  at  the  material time.  Our  judgment  is  thus  equally  applicable  to  the  current  s 377A  of  the Revised PC and Arts 9, 12 and 14 of the Revised Constitution.)

2 Before  delving  into  the  questions  that  these  appeals  present,  we  first clarify the scope of these appeals, beginning with what they are not about. They are not about whether s 377A should be retained or repealed, that being a matter beyond our  remit. Nor are  they  about  the  moral  worth  of  homosexual individuals. In the  words  of  our  Prime  Minister,  Mr Lee  Hsien Loong (“the Prime Minister”), homosexual individuals are “part  of  our  society”  and  “our kith and  kin”  (see  Singapore  Parliamentary  Debates,  Official  Report (23 October  2007)  vol 83  (“the  23 October  2007  Debates”) at  col 2398  (Lee Hsien Loong,  Prime  Minister  and  Minister  for  Finance)). They are  also  not about the fundamental nature of sexual orientation (whether immutable or not), which is an extra-legal question well beyond the purview of the courts.

3 What,  then,  are  these  appeals  about? The deceptively  easy  answer  – namely, whether  s 377A  is  inconsistent  with  the  Constitution  –  belies  the underlying complexity of the issues that are before us. Section 377A has long been a  lightning  rod  for  polarisation,  in  large  part  because  it  raises  a  wider question, which admits of no ready answers, of how a State can best maintain harmony between  different  communities  with  deeply  held,  and  sometimes conflicting, views  on  important  issues  of  moral  conscience. As the  socio-political debate over s 377A continues, the balance between various interests in society  grows  more  delicate,  and  the  need  to  create  space  for  peaceful  co-existence too becomes more pressing.

4 One  may  well  ask  whether  litigation  is,  in  fact,  the  optimal  way  to resolve such differences. Politics seems the more obvious choice than litigation for debating  and  resolving  highly  contentious  societal  issues. At the  heart  of politics lies the project of democratic engagement, as politicians aim to persuade voters by appealing to hearts and minds. Litigation, on the other hand, is “not a consultative or  participatory  process”  but  “an  appeal  to  law”  (see  Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books Ltd, 2019) (“Trials of the State”) at p 65). The single biggest advantage of the political process  –  in  fact,  its  raison d’être  –  is  its  ability  to  accommodate divergent interests  and  opinions  (see  likewise  Trials  of  the  State  at  p 65). However sub-optimally  some  may  think  politics  performs  that  function,  the courts can  never  discharge  that  function  simply  because  it  is  not  their constitutional role to mediate such differences in society. And this is so for good reason, because  litigation  is  a  zero-sum,  adversarial  process  with  win-lose outcomes. The political  process,  in  contrast,  seeks  to  mediate  –  it  strives  for compromises and consensus in which no one side has to lose all.

5 The  forum  in  which  we  resolve  sincere  disagreements  over  issues  of moral conscience matters for at least three reasons. First, the political process is by nature more suited for the resolution of such issues. The courts deal with the retrospective adjudication  of  rights  and  liabilities  arising  out  of  past  events, whereas politics  aims  to  forge  consensus  amongst  individuals  with  different (and often  conflicting)  interests  in  order  to  create  policies  to  govern  future conduct (see Sundaresh Menon, “Executive Power: Rethinking the Modalities of Control”, Annual Herbert L Bernstein Lecture in Comparative Law delivered at Duke University School of Law on 1 November 2018, 29 Duke J Comp & Int’l L 277 (2019) (“the Bernstein Lecture”) at 300). As such, it is Parliament, and not  the  courts,  that  is  best  placed  to  devise  a  pluralistic  vision  that accommodates divergent interests.

6 Second,  even  those  who  place  a  higher  premium  on  outcomes  than processes have  every  reason  to  be  invested  in  having  social  controversies resolved by  robust  public  debate  rather  than  by  litigation. One need  only consider the outsized consequences of the decision of the Supreme Court of the United States in Roe v Wade 410 US 113 (1973) (“Roe v Wade”) to comprehend this point. In the  1970s,  state  legislatures  in  the  United  States  seemed  to  be leaning  towards  the  gradual  liberalisation  of  abortion  statutes. However, that process was abruptly disrupted by the Supreme Court’s decision in Roe v Wade in 1973, in which the court held that the Due Process Clause in the Fourteenth Amendment to the United States Constitution provided a “right to privacy” that protected a pregnant woman’s right to choose whether to have an abortion. It has been suggested that by short-circuiting the process of democratic, organic change, Roe v Wade “stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures”, thereby deferring stable settlement of what has now become an intractable issue (see Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade”  63 N C L Rev 375  (1985)  at  381). Nearly 50 years  later,  the ramifications of that decision continue to reverberate in the legal challenges that are still being brought against it, and in how prominently it continues to feature in the public examination of candidates for appointment to the Supreme Court.

7 Third,  the  courts  risk  a  diminution  in  their  legitimacy  if  they  are perceived as having overstepped their boundaries. This risk may materialise if the courts  wade  into  matters  that  call  for  resolution  by  discussion,  consensus and debate, rather than by a judgment handed down by a court. It can only be injurious to public confidence in the courts if polycentric matters are not debated and resolved by the many but summarily adjudicated by the few. Accordingly, judicial restraint  should  be  prioritised  in  the  face  of  disagreements  that  stem from incommensurable conceptions of the good.

8 In  the  final  analysis,  certain  issues  call  for  continued  discussion  and open-ended resolutions,  rather  than  win-lose  outcomes  recorded  in  a  court judgment. Of course, some may disagree. The appellants point to 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,  and  contend  that  the  time  has  come  for  us  likewise  to declare  s 377A  unconstitutional. However, one  cannot  look  to  developments abroad without  first  appreciating  the  exceptional  situation  in  Singapore. The merits of  retaining  s 377A  were  subject  to  robust  and  lengthy  debate  in Parliament  in  2007,  culminating  in  a  uniquely  Singaporean  resolution:  a political compromise in which s 377A would be retained because it was thought to bear  important  symbolic  weight  for  the  conservative  mainstream  in Singapore. Exceptionally, this  was  on  the  basis  that  s 377A  would  not  be proactively enforced, so as to accommodate our homosexual kith and kin. To our knowledge, no other country has struck a similar political compromise in respect of laws resembling s 377A. 9 The  aforesaid  political  compromise  was  conceived  with  the  express intention of  accommodating  divergent  interests,  avoiding  polarisation  and facilitating incremental  change. Its purpose  was  to  keep  s 377A  as  a  matter within the democratic space. There are consequences in removing issues of such profound public and moral significance from the realm of democratic decision. As Chief Justice John Roberts pithily put it in Obergefell v Hodges 576 US 644 (2015) at 710, “[c]losing debate tends to close minds”. 10 Importantly, the political compromise on s 377A that was forged in 2007 and that has been upheld since then has radically altered the complexion of this provision, in terms of both its constitutionality and its consequences for those whom it  might  affect. Any discussion  on  the  constitutionality  of  s 377A therefore cannot  ignore  the  terms,  the  purpose  and  the  consequences  of  this political compromise. =The role of the court=

11 As  the  appeals  before  us  raise  matters  of  searing  socio-political controversy, we think it especially important for us, first, to characterise the role of the court correctly. It is incontrovertible that the doctrine of the separation of powers is  part  of  the  basic  structure  of  the  Westminster  constitutional  model that Singapore  adopts. Constitutions based  on  the  Westminster  model incorporate this doctrine so as to diffuse state power amongst different organs of State (see Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 (“Mohammad Faizal bin Sabtu”) at [11]–[12]). It follows from this doctrine that the court must refrain from trespassing onto what is properly the territory of Parliament.

12 However, as we observed in Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95 (“Saravanan”) at [154] and Wham Kwok Han Jolovan v Public Prosecutor [2021] 1 SLR 476 (“Jolovan Wham”) at [26], that is not to say that Parliament’s actions are presumptively constitutional. The doctrine of the separation of powers is premised on the notion that the Judiciary, the Executive and the Legislature are co-equal branches. It follows that the court will not defer to the other branches where the constitutionality or legality of a measure or statutory provision is challenged in legal proceedings. Indeed, any such deference would be contrary to the doctrine of the separation of powers and would portend the institutional irrelevance of the court. As each organ of State has its own role and space (see Jolovan Wham at [27]), the focus should be on  whether  a  particular  issue  falls  within  the  institutional  sphere  of  a particular  organ  of  State  and  whether  any  action  taken  within  that  sphere  is constitutionally permissible. It goes without saying that in deciding whether a law or measure is constitutional, the court is concerned only with legal matters, and extra-legal considerations are beyond its purview.

13 Counsel  for  the  Attorney-General  (“the AG”),  Ms Kristy  Tan SC (“Ms Tan”), contends that whether s 377A should be repealed is a matter that falls within Parliament’s constitutional role. She acknowledges, however, that while the court cannot evaluate the policy merits of s 377A, it may determine the constitutionality of that provision. We agree. In our judgment, the legality of the political compromise that was struck in 2007 as regards s 377A similarly falls within the court’s institutional sphere. The fact that an impugned action is of a political nature or has socio-political significance does not, in and of itself, mean that the legality or constitutionality of that action cannot be assessed by the court  –  in  fact,  quite  the  contrary. The inherently  political  nature  of  the compromise reached on s 377A does not preclude the existence or application of legal standards against which its legality or constitutionality can be judged.

14 That said, it is equally important to note that the law is not and cannot be the continuation of politics by other means. The court is not a front-runner for social  change  or  an  architect  of  social  policy,  and  the  consequences  may well be dire if it were otherwise (see [6] above). It hence bears reiterating that any judicial  ruling  in  respect  of  s 377A  ought  to  concern  only  its  legality  or constitutionality  and  cannot  extend  to  the  policy  merits  or  socio-political desirability of retaining or repealing s 377A. After all, the role of the court is not to design policy but simply to “say what the law is” (see Marbury v Madison 5 US 137 (1803) at 177).

15 In  summary,  the  doctrine  of  the  separation  of  powers  calls  for  each branch to  respect  the  institutional  space  and  legitimate  prerogatives  of  the others. While this  means  that  each  branch  should  not  intrude  upon  the institutional space that properly belongs to the other branches, it also means that each branch must be allowed to exercise fully and fairly the powers it has been allocated (see the Bernstein Lecture at 303). In that light, we turn to the facts of the present appeals. =The background facts=

16 We  begin  by  setting  out  the  relevant  background  to  these  appeals. Section 377A was enacted by the Legislative Council of the Straits Settlements (“the Legislative  Council”)  in  1938  by  way  of  s 3  of  the  Penal  Code (Amendment) Ordinance 1938 (SS Ord No 12 of 1938) (“the 1938 Penal Code (Amendment) Ordinance”), and provides as follows:

Outrages on decency
377A. 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.

17 On  22 October  2007,  a  petition  to  repeal  s 377A  was  presented  to Parliament. Although no vote was taken on that petition, s 377A was debated extensively in  Parliament  during  the  second  reading  of  the  Penal  Code (Amendment) Bill  (Bill  No 38/2007)  (“the 2007  Penal  Code  (Amendment) Bill”):  see  Singapore  Parliamentary  Debates,  Official  Report  (22 and 23 October  2007)  vol 83. For ease  of  reference,  we  hereafter  denote  these debates collectively  as  “the  s 377A  Debates”. Of especial  note  is  that  while s 377A was retained, the Prime Minister made clear that this was on the terms that it would not be proactively enforced (see the 23 October 2007 Debates at col 2402). In his  speech  during  the  s 377A  Debates,  the  Prime  Minister emphasised the  need  to  forge  a  consensus  gradually  and  stated  that  the Government had  decided to “keep the status quo on section 377A”  (see  the 23 October 2007 Debates at col 2405). 18 The issue of the constitutionality of s 377A first came before our courts in Tan Eng Hong v Attorney-General [2013] 4 SLR 1059, in which the  High Court held that s 377A was constitutional and did not offend Arts 9 and 12 of the Constitution. That decision was upheld on appeal in Lim Meng Suang and another v  Attorney-General  and  another  appeal  and  another  matter  [2015] 1 SLR 26 (“Lim Meng Suang (CA)”). In the intervening years since our decision in Lim  Meng  Suang (CA),  s 377A  has  remained  a  controversial  and  socially divisive issue, with calls both for and against its repeal intensifying in recent years.

19 Amidst  the  ongoing  discussion  on  the  retention  or  repeal  of  s 377A, Attorney-General Mr Lucien  Wong SC (“AG Wong”), in his capacity as the Public Prosecutor (“the PP”), clarified  in  2018  the  prosecutorial  policy  in respect  of  offences  falling  under  that  provision. In a  press  release  dated 2 October 2018 (“the 2018 AGC Press Release”), AG Wong acknowledged the Government’s position that “the Police will not proactively enforce [s 377A], for instance by conducting enforcement raids” (see para 3 of  the  2018 AGC Press Release). He clarified, however, that the police would investigate reported offences under  s 377A  if  the  surrounding  circumstances  so  warranted  (for instance,  if  minors  were  involved). He concluded  by  stating  (at  para 6  of  the 2018 AGC Press Release): ... In the case of section 377A, where the conduct in question was between two consenting adults in a private place, the PP had, absent other factors, taken the position that prosecution would not be in the public interest. This remains the position today. AG Wong reiterated this position in a letter published under his name in  The Straits Times  on  6 October  2018  (“the 2018 Straits  Times  article”). These statements contemplate  the  non-prosecution  of  a  subset  of  acts  that  may  be caught under s 377A, namely, sexual acts between two consenting adult men in private (“the Subset”). =The proceedings below=

20 Against  those  background  facts,  we  provide  an  overview  of  the proceedings below.

21 The  three  appellants  are  homosexual  men. The appellant  in CA/CA 54/2020 (“CA 54”), Dr Tan Seng Kee (“Dr Tan”), is a medical doctor and LGBT  (lesbian,  gay,  bisexual  and  transgender)  activist. The appellant  in CA/CA 55/2020  (“CA 55”),  Mr Ong  Ming  Johnson  (“Mr Ong”),  is  an international  disc  jockey,  while  the  appellant  in  CA/CA 71/2020  (“CA 71”), Mr Choong Chee Hong (“Mr Choong”), is a  former  executive  director  of Oogachaga Counselling and Support.

22 The appellants each filed an application challenging the constitutionality of s 377A on the basis that it violates Arts 9, 12 and/or 14 of the Constitution (referred to  hereafter  as “Art 9”, “Art 12”  and “Art 14” respectively). They sought declaratory relief and/or the voiding of s 377A to the extent of any such inconsistency with the Constitution. =The appellants’ arguments=

23 In the proceedings below, counsel for Mr Choong, Mr Harpreet Singh Nehal SC (“Mr Singh”), focused on the proper interpretation of s 377A and the alleged unconstitutionality  of  that  provision  under  Arts 12  and  14. His submissions on  the  proper  interpretation  of  s 377A  were  twofold. First, he contended  that  s 377A,  properly  construed,  criminalises  only  commercial sexual activity  between  men  (meaning  male  prostitution)  and  not  private consensual sex  acts  of  a  non-commercial  nature. Second, he  highlighted  that when s 377A  was  enacted  in  1938,  penetrative  sex  acts  were  already criminalised as the offence of “carnal intercourse against the order of nature” under s 377 of the Penal Code (Cap 20, 1936 Rev Ed) (referred to hereafter as “s 377” and  “the  1936 PC”  respectively),  which  remained  an  operative provision until its repeal in 2007. He argued that s 377A was only intended to criminalise sex acts that were not already offences under s 377 – namely, non-penetrative sex acts. 24 As to the alleged unconstitutionality of s 377A, Mr Singh submitted that the provision  fails  the “reasonable classification” test and  therefore  violates Art 12 because  there  is  no  rational  relation  between  its  legislative  object  (of curbing male prostitution) and its differentia (which was asserted to be gay and bisexual  men). He also  proposed  that  the  court  adopt  a  proportionality-based test in place of the “reasonable classification” test for the purposes of assessing the constitutionality  of  a  statutory  provision  under  Art 12. Additionally, he argued that s 377A is inconsistent with Art 14 because it curtails the expression of love and closeness through consensual acts of sexual intimacy between men, and therefore unlawfully derogates from the constitutional right to freedom of expression.

25 Counsel  for  Mr Ong,  Mr Eugene  Singarajah  Thuraisingam (“Mr Thuraisingam”), primarily argued that s 377A is inconsistent with Art 9(1) because it is absurd and arbitrary in criminalising individuals by reason of their sexual identity. In this regard, he sought to establish the immutability of sexual orientation by adducing affidavit evidence from various experts. According to Mr Thuraisingam, the  expert  evidence  discloses  a  scientific  consensus  that sexual orientation  is  immutable  and  is  not  caused  or  influenced  by  socio-environmental  factors. He further  contended  that  s 377A  violates  Art 12  not only because  there  is  no  rational  relation  between  its  differentia  (namely, male-male  sex  acts)  and  its  legislative  object  (namely,  the  expression  of disapprobation of either gross indecency or homosexuality in general), but also because it lacks an intelligible differentia to begin with.

26 Counsel  for  Dr Tan,  Mr Ravi s/o Madasamy (“Mr Ravi”),  broadly focused on the absurdity and arbitrariness of retaining s 377A in the light of the Government’s avowed position that s 377A would not be proactively enforced where conduct falling within the Subset (as defined at [19] above) is concerned. He also aligned himself with Mr Singh’s and Mr Thuraisingam’s submissions that s 377A falls afoul of Arts 9, 12 and 14. =The High Court’s decision=

27 The High Court judge (“the Judge”) found that s 377A did not violate Arts 9, 12 and/or 14. He therefore dismissed all three applications brought by the appellants:  see  Ong  Ming  Johnson  v  Attorney-General  and  other  matters [2020] SGHC 63 (“the Judgment”).

28 The  Judge  first  sought  to  interpret  s 377A  by  applying  the  three-step framework for statutory interpretation set out in  Tan Cheng Bock v Attorney-General  [2017]  2 SLR 850 (“Tan  Cheng  Bock”). Under the  first  step  of  that framework (“the Tan  Cheng  Bock  framework”),  the  Judge  found  that  the ordinary meaning of the words “gross indecency with another male person” in s 377A was  sufficiently  wide  to  cover  both  penetrative  and  non-penetrative sexual activity between men. He also found that the language of s 377A did not connote any  limitation  to  only  activities  involving  male  prostitution  (see  the Judgment at [94]). 29 Under the second and third steps of the Tan Cheng Bock framework, the Judge examined  the  extraneous  material  adduced  by  the  appellants. The extraneous material comprised legislative material relating to the enactment of s 377A in 1938 that had been considered by this court in Lim Meng Suang (CA), as well as new extraneous material that was before the court for the first time. The Judge  found  that  the  new  extraneous  material  was,  strictly  speaking, irrelevant for the purposes of statutory interpretation under the Tan Cheng Bock framework because  it  failed  to  meet  the  requisite  standard  of  relevance  and reliability (see  the  Judgment  at  [52]). Nonetheless, out  of  an  abundance  of caution,  he  proceeded  to  consider  all  the  extraneous  material  that  was  before him.

30 The Judge found that while the problem of male prostitution had caused the British colonial administration much consternation, there was no mention of male prostitution in any of the relevant legislative material. It therefore could not be inferred that male prostitution was the only mischief that had necessitated the introduction  of  s 377A. Further, the  fact  that  a  more  precise  legislative solution was not crafted to specifically tackle the problem of male prostitution, even though  this  could  easily  have  been  done,  suggested  that  s 377A  was intended to be of broader application (see the Judgment at [112] and [137]). The new extraneous material did not change his view (see the Judgment  at [113], [118], [145] and [146]). 31 As for the argument that s 377A was only intended to criminalise non-penetrative  sex  acts  between  men,  the  Judge  acknowledged  that  prior  to  the enactment of  s 377A,  penetrative  sex  between  men,  whether  in  public  or  in private,  was  already  criminalised  under  s 377  (see  the  Judgment  at  [107]). Moreover, s 23 of the Minor Offences Ordinance 1906 (SS Ord No 13 of 1906) (referred to  hereafter  as  “s 23” and “the  MOO” respectively)  criminalised, among other things, indecent behaviour in public (see the Judgment at [103]). The gap in the criminal legislation prior to the introduction of s 377A in 1938 was hence that non-penetrative sexual activity between men in private was not criminalised under either s 377 or s 23 (see the Judgment at [108]). 32 However, the relevant legislative material showed that s 377A was not intended to  deal  only  with  non-penetrative  sexual  activity  between  men  in private. Part of the legislative material referred only to the need to supplement s 377, whereas  another  part  spoke  only  of  the  need  to  supplement  s 23. The legislative material, read holistically, militated in favour of the conclusion that s 377A broadened  the  scope  hitherto  covered  by  s 377  by  covering  not  only penetrative sex, but also other (less serious) acts of “gross indecency” between men (see the Judgment at [131]–[133]). The Judge was of the view that the new extraneous material  did  not  undermine  his  conclusion,  which  was  the  very conclusion that  we  had  arrived  at  in  Lim  Meng  Suang (CA)  at  [134]  (see  the Judgment at [134] and [144]). This interpretation of s 377A (as covering both penetrative and  non-penetrative  sex  acts)  also  accorded  with  the  ordinary meaning of “gross indecency” as ascertained by the Judge under the first step of the Tan Cheng Bock framework (see the Judgment at [109]–[110]). As for Mr Singh’s argument that s 377A did  not  cover  penetrative  sex  acts  because s 377 already covered such conduct, the Judge observed that the PC contained numerous examples  of  overlapping  offences  (see  the  Judgment  at  [130]). He thus held that s 377A overlapped with both s 23 and s 377, and that there was no legislative intent to exclude any such overlap (see the Judgment at [146(c)]).

33 In  rejecting  the  argument  that  s 377A  was  intended  to  deal  only  with non-penetrative sexual  activity  between  men  in  private,  the  Judge  also  noted that s 377A was based on s 11 of the English Criminal Law Amendment Act 1885 (c 69) (referred to hereafter as “s 11 (UK)” and “the 1885 UK Act” respectively), which was invoked to prosecute offences involving sodomy (see the Judgment at [44], [49] and [97]). He observed that the use of s 11 (UK) was not confined  to  cases  involving  male  prostitutes  nor  to  cases  involving  non-penetrative  sex  acts  (see  the  Judgment  at  [123]). The Judge  ultimately concluded that  the  legislative  purpose  of  s 377A  was  “to  safeguard  public morals generally” (see the Judgment at [146(d)]). Section 377A furthered this legislative purpose  by  demonstrating  society’s  moral  disapproval  of  male homosexual sex  acts  and  by  enabling  the  enforcement  and  prosecution  of  all forms of  gross  indecency  between  men  (see  the  Judgment  at  [146(d)],  [181], [189], [191] and [298]). 34 The Judge noted that, as a matter of stare decisis, he remained bound by this court’s holdings in Lim Meng Suang (CA) as to the purpose and scope of s 377A. However, even  if  he  were  not  so  bound,  and  even  after  taking  into account the new extraneous material put forth by the appellants, he found no reason to depart from those holdings (see the Judgment at [143], [144], [305] and [306]).

35 Turning  to  the  constitutional  challenge  to  s 377A  under  Art 12,  the Judge held  that  s 377A  had  an  intelligible  differentia  under the “reasonable classification” test as it  targeted  homosexual  sex  acts  between  men. This differentia could not be said to be unintelligible because distinctions were drawn between men and women in other areas of Singapore law (see the Judgment at [171]–[174] and  [178]). There was  also  a  rational  relation  between  this differentia and  the  object  sought  to  be  achieved  by  s 377A,  which  was  the safeguarding of public morals generally (see the Judgment at [146(d)], [179]– [181] and [189]). 36 The Judge rejected the appellants’ arguments that s 377A was both over-inclusive and under-inclusive (see the Judgment at [183]–[194]). He held that there was a complete  coincidence between the  differentia in s 377A  (namely, acts  of  gross  indecency  between  men)  and  the  legislative  object  that  s 377A sought to achieve (namely, “the criminalisation of male homosexual conduct to safeguard public morals generally and reflect societal morality”: see  the Judgment  at  [189]). Consequently, he  held  that  there  was  a  rational  relation between the differentia in and the object of s 377A and that s 377A satisfied the “reasonable classification” test (see the Judgment at [194]). The Judge was of the view that, in any event, he was bound by this court’s finding in Lim Meng Suang (CA) that s 377A is not contrary to Art 12 (see the Judgment at [164]). 37 The Judge also rejected  the suggestion that the court ought to adopt a higher  standard  of  scrutiny  in  the  form  of  a  proportionality-based  test  when assessing the constitutionality of a statutory provision under Art 12. His primary reason was that such a test would necessarily involve reviewing the legitimacy of the object of the statutory provision in question, which would entail the risk of the court acting like a “mini-legislature” (see the Judgment at [216]). 38 In respect of the constitutional challenge to s 377A under Art 14(1)(a), the Judge applied the Tan Cheng Bock framework to interpret the meaning and scope of the phrase “freedom of ... expression” as  used  in  that  Article. He acknowledged that the plain meaning of the term “expression” did not rule out the possibility  of  sexual  intercourse  being  a  form  of  expression  (see  the Judgment at [244]). However, he noted that the marginal note to Art 14, which formed part  of  the  relevant  context  in  interpreting  Art 14(1)(a),  made  no mention of freedom of expression as a free-standing right (see the Judgment at [245]–[246]). This suggested to him that the right to freedom of expression was “something relating to or falling within  the  right  to  freedom  of  speech  ie  the verbal communication of an idea, opinion or belief” (see the Judgment at [246]). Applying the  ejusdem  generis  principle  of  statutory  interpretation,  the  Judge found that the ordinary meaning of the term “expression”, when read together with the term “speech”, “necessarily point[ed]  towards  some  form  of  verbal communication” (see the Judgment at [247] and [249]). He therefore held that the right  to  freedom  of  expression  could  not  be  divorced  from  the  right  to freedom of speech (see the Judgment at [249]).

39 Although the appellants contended that such a reading would render the term “expression” in Art 14(1)(a) otiose, the Judge considered that there ought to be some allowance for surplusage or redundancy, given the “long history and borrowed phraseology” of Art 14(1)(a) (see the Judgment at [252]–[255]). His view was reinforced by the Report of the Constitutional Commission (27 August 1966) (Chairman:  Wee  Chong  Jin CJ)  (“the  1966  Constitutional  Commission Report”), which omitted any mention of an independent, free-standing right to freedom  of  expression  when  considering  the  predecessor  to  Art 14(1)(a)  (see the Judgment at [258]–[259]). 40 As for the appellants’ argument that sexual acts between consenting adult men  conveyed  meaning  (such  as  love  and  affection)  and  were  thus  a protected form of expression, the Judge accepted that acts of physical intimacy might, in certain circumstances, serve as the means through which meaning was conveyed. He emphasised,  however,  that  the  right  to  freedom  of  expression under Art 14(1)(a) had to be understood in its proper context – namely, that it was encompassed within the right to freedom of speech. He also noted that an expansive reading  of  the  right  to  freedom  of  expression  could  lead  to  absurd outcomes (see the Judgment at [261]–[263]).

41 Having  found that the term “expression” was encompassed within  the term “speech”, which he took to mean “the verbal communication of an idea, opinion or  belief”,  the  Judge  held  that  Art 14(1)(a)  did  not  afford  a constitutional  right  to  engage  in  male  homosexual  sex  acts  as  a  form  of “expression” (see the Judgment at [246] and [265]). 42 In  respect  of  the  constitutional  challenge  to  s 377A  under  Art 9,  the Judge was unconvinced that the scientific evidence before him pointed to any definitive conclusion  on  the  immutability  of  sexual  orientation. Instead, he found that the changeability and causes of sexual orientation remained highly controversial and  were  extra-legal  arguments  that  did  not  come  within  the proper purview of the courts (see the Judgment at [273], [277] and [279]). 43 The  Judge  also  rejected  Mr Thuraisingam’s  contention  that  s 377A criminalised a person on the basis of his sexual identity. Apart from the fact that there was  no  conclusive  scientific  evidence  to  show  that  homosexuality  was immutable and/or  solely  caused  by  biological  factors,  an  individual’s sexual identity was  simply  not  an  element  of  the  offence  under  s 377A. Sexual orientation in  and  of  itself  was  completely  irrelevant  under  s 377A:  a heterosexual  man  could  equally  be  prosecuted  under  that  provision  (see  the Judgment  at  [281]–[282]). The Judge  was  further  of  the  view  that Mr Thuraisingam were effectively advocating the recognition of an unqualified constitutional right to “personal liberty” on the basis of a person’s homosexual identity. He rejected that submission because unenumerated rights could not be specifically protected,  and  because  many  constitutional  rights  were  qualified and not absolute (see the Judgment at [283]). 44 The Judge went on to consider the appellants’ arguments pertaining to the AG’s  stated  policy  that  s 377A  would  not  be  proactively  enforced. In his view, the appellants’ real objection concerned that policy of non-enforcement rather than the inherent constitutionality of s 377A. These were, according to the Judge,  separate  and  distinct  issues:  the  manner  in  which  a  provision  was enforced, even if arbitrary, could not, without more, result in the provision itself being rendered unconstitutional (see the Judgment at [287]). In any case, the AG had provided some guidance (through the 2018 AGC Press Release) on when the police would investigate possible offences under s 377A (see the Judgment at [288]). The Judge further held that the non-enforcement of s 377A was not incompatible with  ss 424  and  17  of  the  Criminal  Procedure  Code  (Cap 68, 2012 Rev Ed) (“the CPC”). He reasoned that given the AG’s avowed stance that it would  not  ordinarily  be  in  the  public  interest  to  prosecute  sexual  activity between consenting adult men in private, there was no real risk of anyone being held liable  for  failing  to  report  such  activity,  even  though  s 424  of  the  CPC imposed an  obligation  to  do  so  (see  the  Judgment  at  [285]  and  [291]). In the same vein, even though the police were required under s 17(1) of the CPC to investigate suspected offences under s 377A, they retained the discretion under s 17(2) of the CPC to not do so (see the Judgment at [292]).

45 For the foregoing reasons, the Judge held that s 377A was constitutional and dismissed all three applications brought by the appellants. =The parties’ cases on appeal=

The appellant’s case in CA 71
46 The heart of Mr Singh’s case on appeal lies in the proper interpretation of s 377A. Mr Singh maintains  that  s 377A  was  only  intended  to  cover  non-penetrative sex acts between men. According to him, the extraneous material as well as  the  architecture  of  and  the  language  used  in  the  PC  show  that  the offences under ss 377A and 377 were intended to be strictly non-overlapping. He also  reiterates  that  the  true  mischief  targeted  by  s 377A  was  male prostitution.

47 Additionally, Mr Singh submits that s 377A violates Art 12 on several levels:

(a) First, both men and women can commit acts of gross indecency. However, s 377A  does  not  criminalise  female-female  acts  of  gross indecency, whether  in  private  or  in  public,  or,  for  that  matter,  male-female  acts  of  gross  indecency. Section 377A is  thus  severely  under-inclusive and falls afoul of Art 12. (b) Second,  s 377A  is  also  over-inclusive  because  it  criminalises private sex  acts  in  the  interest  of  safeguarding  public  morality. The AG’s and the Government’s general stance of not enforcing s 377A in respect of private sex acts shows that the criminalisation of such acts does not further the object of safeguarding public morality generally. (c) Third,  the  Judge  erred  in  finding  that  there  was  a  complete coincidence between  the  differentia  in  and  the  legislative  object  of s 377A. According to  Mr Singh, the Judge’s finding  is  premised  on characterising  the  legislative  object  of  s 377A  in  a  manner  which includes the very differentia of that provision. He contends that framing the legislative  object  of  s 377A  in  such  a  circular  manner  effectively denudes Art 12 of any real force. At the  hearing  before  us,  Mr Singh  and  his  co-counsel,  Mr Jordan  Tan (“Mr Tan”), focused on the arguments summarised at [46], [47(a)] and [47(c)] above.

48 It will be recalled that, in the proceedings below, Mr Singh propounded the adoption  of  a  proportionality-based  test  in  place  of  the  “reasonable classification” test for the purposes of determining whether a statutory provision violates Art 12 (see [24] above). On appeal, he initially advocated the adoption of an “intermediate scrutiny” test to evaluate whether a statutory provision that discriminates on the basis of sex (such as s 377A) passes muster under Art 12. This test requires that the impugned sex-based differentia serve an “important state interest” [emphasis  in  original  omitted]  and be “substantially related” [emphasis in  original  omitted]  to  serving  that  interest. However, Mr Singh subsequently revised  his  position. In an  aide  memoire  tendered  to  us  at  the hearing, he urged us to adopt a test of “substantial connection” instead. Under this test,  where  a  statutory  provision  discriminates  on  the  basis  of  sex,  there must be  a  “substantial connection”,  and  not  merely  a “rational relation”, between that  differentia  and  the  legislative  purpose  of  the  provision. The “intermediate scrutiny” test and the “substantial connection” test are similar, save that  the  latter  does  not  require  that  the  impugned  sex-based  differentia serve an important state interest.

49 Mr Singh adds that the Judge erred in interpreting the term “expression” in Art 14(1)(a)  restrictively  to  mean  “some  form  of  verbal  expression” [emphasis in original omitted]. He avers that acts of sexual intimacy clearly fall within the ambit of Art 14(1)(a) as they are “a fundamentally important form of personal expression”. Accordingly, he  submits  that  s 377A  impermissibly derogates from  the  constitutional  right  to  freedom  of  expression  under Art 14(1)(a).

50 In  the  final  analysis,  Mr Singh  submits  that  s 377A  must  either  be construed  in  a  manner  consistent  with  the  Constitution  or  be  declared unconstitutional and struck down.

The appellant’s case in CA 55
51 Mr Thuraisingam  submits  that  the  expert  evidence  adduced  in  the proceedings below shows, on a balance of probabilities, that sexual orientation cannot be  wilfully  changed  and  is  not  influenced  by  socio-environmental factors. In view of this, he argues that s 377A exposes a class of persons to the risk of incarceration on account of their sexual identity while failing to advance any compelling object. He therefore contends that s 377A is “absurd” (per Yong Vui Kong  v  Public  Prosecutor  and  another  matter  [2010]  3 SLR 489 (“Yong Vui Kong (MDP)”)  at  [16])  and,  consequently,  not “law” for  the  purposes  of Art 9(1).

52 According to Mr Thuraisingam, s 377A violates Art 9(1) for two further reasons:

(a) First, s 377A is “arbitrary” (per Yong Vui Kong (MDP) at [16]) because there  is  no  evidence  of  any  rational,  logical  or  coherent differentia between  male  and  female  homosexual  intimacy. Mr Thuraisingam also adopts Mr Singh’s arguments that: (i) there is no rational relation between the differentia in and the object of s 377A; and (ii) the Judge erred in framing the object of s 377A as “the safeguarding of public  morals  through  the  criminalising  of  [male  homosexual] conduct” [emphasis added] (see the Judgment at [191]).

(b) Second,  s 377A  is  contrary  to  the  rule  of  law. The 2018 AGC Press Release states that the police will not “proactively enforce” s 377A and that  it  will  not  ordinarily  be  in  the  public  interest  to  prosecute consensual sexual conduct between adult men in private. It also states, however, that the police may investigate complaints of offences under s 377A. Hence, a man who engages in conduct amounting to an offence under s 377A cannot reasonably foresee whether he will be investigated and/or prosecuted for such conduct, which is inconsistent with the rule of law.

53 For  the  foregoing  reasons,  Mr Thuraisingam’s position  is  that  s 377A cannot be interpreted consistently with the Constitution, nor can the purportedly unconstitutional portions of s 377A be severed to “save” the remaining portions. Consequently, s 377A must be voided in its entirety.

The appellant’s case in CA 54
54 Mr Ravi’s position is that s 377A should be declared void. As a general observation, Mr Ravi  places  greater  weight  on  the  legislative  intention underpinning the  retention  of  s 377A  in  2007  than  on  the  legislative  purpose behind its  enactment  in  1938. While he  acknowledged  that  the  relevant parliamentary intention  is  usually  to  be  discerned  as  at  the  time  the  statutory provision in  question  was  enacted,  he  submitted  during  the  hearing  that  the legislative purpose of a statutory provision could change over time and that any new legislative  purpose  could  be  taken  into  account  when  interpreting  that provision.

55 Although  Mr Ravi  argued  in  his  written  submissions  that  s 377A violates Arts 9,  12  and  14,  he  focused  on  three  main  points  in  his  oral submissions. First, he  submitted  that  the  differentia  in  s 377A  is  necessarily unintelligible because  the  s 377A  Debates  evince  an  express  legislative intention for s 377A to be “legally untidy and ambiguous”. Second, he argued that the  s 377A  Debates  suggest  that  the  legislative  purpose  underlying  the retention of  s 377A  was  to  discourage  gay  rights  advocacy  while accommodating homosexual individuals in society. Assuming that was indeed the relevant  legislative  purpose,  there  is  no  rational  relation  between  that purpose and the differentia in s 377A (namely, male homosexual acts). Third, he contended  that  the AG’s  and  the  Government’s stance of not  enforcing s 377A has generated considerable legal uncertainty. According to Mr Ravi, not only is there ambiguity as to the interplay between s 377A and s 424 of the CPC, there is also uncertainty as to whether public servants and laypersons are legally bound under ss 119 and 176 of the PC respectively to report the commission of a s 377A  offence. He submitted  that  such  arbitrariness  and  uncertainty  go towards  the  very  constitutionality  of  s 377A  and  are  not  merely  issues  of administrative law.

The respondent’s case
56 Counsel for the AG, Ms Tan, makes five key arguments as regards the constitutionality of s 377A. 57 First, Ms Tan contends that the text and the context of s 377A, as well as the relevant extraneous material, show that s 377A covers both penetrative and non-penetrative sex acts and is not limited to sexual activity involving male prostitution.

58 Second,  and  relatedly,  Ms Tan  argues  that  s 377A  satisfies  the “reasonable classification” test. In this regard, she submits that the legislative purpose of s 377A should be discerned only at the time of its enactment in 1938. She emphasised, especially in her oral submissions, that the legislative purpose of s 377A at that time was to express societal disapproval of male-male sex acts specifically; this legislative purpose could be discerned principally from the text of s 377A,  which  criminalises  only  male-male  acts  of  gross  indecency. Accordingly, s 377A  satisfies  the  “reasonable  classification”  test  and  is consistent with Art 12. 59 Third, Ms Tan submits that the scientific evidence is inconclusive as to the  causes  and  the  alleged  immutability  of  sexual  orientation. She further contends that  the  court  is  not  the  proper  forum  to  determine  such  extra-legal issues of scientific controversy.

60 Fourth, Ms Tan argues that s 377A does not violate Art 9. According to her, Dr Tan and Mr Ong, the appellants in CA 54 and CA 55 respectively, are inviting this  court  to  read  a  substantive  unenumerated  right  of  sexual  liberty, identity or  privacy  into  the  Constitution. Article 9, however,  only  protects procedural rights,  and  there  is  no  room  to  read  unenumerated  rights  into  the Constitution. Ms Tan also  submits  that  the  very  premise  of  Dr Tan’s and Mr Ong’s contention that s 377A is “absurd” or “arbitrary” is erroneous to begin with because s 377A does not criminalise sexual orientation in and of itself. She further stresses that the non-enforcement of s 377A can have no bearing on its constitutionality.

61 Finally, Ms Tan adopts the Judge’s finding that s 377A does not violate Art 14 because  the  acts  criminalised  under  s 377A  do  not  concern  speech  or expression  within  the  meaning  of  Art 14(1)(a). She also  submits  that,  in  any event, Art 14(2)(a), which permits restrictions on the right to freedom of speech and expression  in  the  interest  of  public  morality  (among  other  things),  is squarely engaged by s 377A.

=The issues to be determined=

62 Based on the parties’ written submissions, the overarching question in these appeals is whether s 377A is inconsistent with Arts 9, 12 and/or 14 and, hence, unconstitutional to the extent of any such inconsistency. To this end, five main issues arise for our consideration:

(a) whether sexual orientation is immutable;

(b) the proper interpretation of s 377A;

(c) whether s 377A violates Art 9;

(d) whether s 377A violates Art 14; and

(e) whether s 377A violates Art 12.

63 It will be readily apparent that aside from Mr Ravi, counsel (and, for that matter, the Judge) did not place much weight on the s 377A Debates that took place in  2007. However, as  we  mentioned  earlier  at  [10]  above,  the constitutionality of s 377A cannot be assessed shorn of the political compromise that was  struck  in  2007  and  upheld  in  the  ensuing  years. Given that representations were made by the Government and, subsequently, by AG Wong to the effect that s 377A would not be proactively enforced, it would be entirely artificial to ignore that fact and to analyse the constitutionality of s 377A as if this provision  were  liable  to  be  enforced  in  the  same  manner  as  any  other provision of the PC. Significantly, the representations made by the Government and AG Wong would have a practical impact on the lives of homosexual men, which cannot be disregarded.

64 Hence, quite apart from whether s 377A is constitutionally valid in the abstract, the  more  relevant  and  perhaps  more  critical  question  is  whether  the political compromise on s 377A is legally relevant – and, if so, what its precise legal consequences are. We therefore address this issue first before considering the issues outlined at [62] above.

=The general policy of non-enforcement of s 377A= The political  package:  the  political  compromise  forged  by  the  Government and the representations made by AG Wong

65 A political compromise on s 377A was struck in 2007, although, as we explain below, it may not have had immediate legal effect. Section 377A was retained in  our  statute  books,  but  on  the  express  basis  that  it  would  not  be proactively  enforced. The rationale  behind  this  political  compromise  was explained in  the  speeches  of  the  Prime  Minister  and  the  other  Members  of Parliament (“MPs”) during the s 377A Debates. 66 This  political  compromise  may  well  have  informed  the  prosecutorial policy on  s 377A  in  the  years  that  followed. The PP’s exercise  of  his prosecutorial discretion  is,  after  all,  informed  by  the  public  interest,  and  the Prime Minister’s ministerial statement is the pre-eminent source from which the prevailing public policy may be discerned (see UKM v Attorney-General [2019] 3 SLR 874 (“UKM”) at  [141]). However, the  aforesaid  political  compromise took on a new legal significance in 2018, when AG Wong articulated a general policy of not prosecuting s 377A offences. The political compromise forged in 2007 and  AG Wong’s representations  in  2018  (as  mentioned  at  [8]  and  [19] above respectively) collectively form the political package surrounding s 377A today. While one might argue that prosecutorial discretion is to be exercised by the AG of  the  day  (such  that  AG Wong’s representations would not fetter the PP’s prosecutorial discretion), AG Wong’s representations are of legal significance and we elaborate on this below. 67 In  our  judgment,  it  would  be  contrived  and  unrealistic  to  ignore  the totality of the political package when assessing the legality of s 377A. This is because the political package has, in effect, significantly altered both the way in which s 377A practically affects the lives of homosexual men and what the provision means  in  Singapore  today. As we  made  clear  to  the  parties,  in particular, to Mr Singh:

Menon, CJ: At the end of the day ... the legislative act that we ended  up  with  in  2007  in  relation  to Section 377A  was,  I  think---if  I  could  put  it  in these terms, it was a political compromise. It was what you  described  as  a  difficult  balance. ... I don’t think  it’s  right  to  assess  [section] 377A, whatever its meaning is, without reference to the reality of  that  political  compromise. In other words, we shouldn’t be looking at [section] 377A and its  constitutionality  today,  I  suggest  to  you, ignoring the  fact  that  undertakings  have  been given in  Parliament  and  subsequently  by [AG Wong]  in  relation  to  whether  it  will  be enforced  or  not  ... We need  to  factor  into  the equation the  entirety,  the  package  as  it  exists. [emphasis added]

68 The parties (apart from Mr Thuraisingam) agreed at the hearing that the constitutionality of  s 377A  could  not  be  divorced  from  the  political  package. Mr Tan noted  that  it  was “not  controversial” that the political  package  forms part of  the  relevant  legal  framework  that  informs  our  assessment  of  whether s 377A is  constitutional. Mr Singh likewise  acknowledged  that  “[t]he  [c]ourt cannot take a blinkered approach and ignore what happened in 2007”. In the same vein, Ms Tan conceded that we ought to “look at the context in which the constitutionality of [s 377A] is being challenged”. Moreover, in analysing how the political package has affected the constitutionality of s 377A under Art 12, she effectively intimated that the political package could and did have a bearing on whether s 377A is constitutional. Although Mr Thuraisingam questioned the relevance of  the  political  package  to  the  present  appeals,  there  was  an  air  of unreality  in  the  approach  that  he  urged  us  to  adopt,  namely,  to  assess  the constitutionality of  s 377A  in  total  disregard  of  the  political  package. As we have  already  mentioned,  the  political  package  has  rendered  s 377A  radically different in meaning and significance from any other provision of the PC. The precise terms  and  the  legal  consequences  of  the  political  package  thus  merit careful consideration.

69 For the avoidance of doubt, this section of the judgment is not concerned with the purpose behind the enactment of s 377A in 1938, but rather, the equally important purpose behind its retention in 2007. This is because, in the uniquely Singaporean context of the political compromise on s 377A, what is referred to as “Parliament’s intention” where this provision is concerned is informed by the purpose behind  not  only  its  enactment,  but  also  its  retention. A proper understanding of  the  political  package  is  therefore  critical  in  ascertaining  the true parliamentary intent behind the retention of s 377A.

=The political compromise forged by the Government in 2007= 70 On 22 October 2007, Nominated MP Mr Siew Kum Hong presented a parliamentary  petition  for  the  repeal  of  s 377A  (“the Petition”). The Petition contended that s 377A was an unconstitutional derogation from the guarantee of equality  and  the  equal  protection  of  the  law  set  out  in  Art 12(1). The then Leader of the House moved a motion to have the Petition referred to Parliament for consideration at the second reading of the 2007 Penal Code (Amendment) Bill, so that matters in the Petition could be “thoroughly and properly debated, discussed and decided by Parliament” (see Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (“the 22 October 2007 Debates”) at col 2122).

71 By  way  of  background,  a  comprehensive  review  of  the  Penal  Code (Cap 224, 1985 Rev Ed) (“the 1985 PC”) had taken place prior to the s 377A Debates. Following extensive public consultations and deliberation amongst the Ministers, the Government decided not to repeal  s 377A and “to leave things be” (see the 23 October 2007 Debates at col 2397). Consequently, s 377A was considered in the context of a petition rather than as part of a Bill; the MPs were not asked  to  vote  on  the  Petition  and  did  not  do  so. That said,  s 377A  was debated rigorously  and  at  length  during  the  s 377A  Debates,  arguably  to  the point of  overshadowing  Parliament’s  key  agenda  then,  which  was  the amendment of the 1985 PC. 72 As  the  head  of  the  Government,  the  Prime  Minister  addressed Parliament during  the  s 377A  Debates. He explained  that  the  Government would maintain the status quo by retaining but not proactively enforcing s 377A. This was because the Government took the view that a delicate balance had to be struck between accepting homosexual individuals as part of our society and respecting the more traditional views of mainstream society (see also UKM at [204]–[205]).

73 Early in his speech, the Prime Minister put forth the Government’s views on homosexuality, which he regarded as being reflective of the views of most Singaporeans. He stated as follows (see the 23 October 2007 Debates at cols 2397–2398):

Let me, today, focus on the policy issue – what we want the law to be,  and  explain  our  thinking,  our  considerations,  why  we came to this conclusion. I would ask these questions: what is our attitude  towards  homosexuality? ‘Our’, meaning  the Government’s attitude  and  Singaporeans’  attitude  too. How should these  attitudes  and  these  values  be  reflected  in  our legislation?

Many Members  have  said  this,  but  it  is  true  and  it  is  worth saying again. Singapore is basically a conservative society. The family is the basic building block of our society. It has been so and, by policy, we have reinforced this and we want to keep it so. And by ‘family’ in Singapore, we mean one man one woman, marrying, having children and bringing up children within that framework of a stable family unit. ... I acknowledge that not everybody fits into this mould. Some are single, some have more colourful lifestyles, some are gay. But a heterosexual stable family is a social norm. It is what we teach in schools. It is also what parents want their children to see as their children grow up, to set their expectations and encourage them to  develop  in  this  direction. I think  the  vast  majority  of Singaporeans want to keep it this way. They want to keep our society like this, and so does the Government. 74 At  the  same  time,  the  Prime  Minister  took  pains  to  reiterate  that  the purpose of retaining s 377A was not to discriminate against homosexual men, who are “part of our society” and “our kith and kin” (see the 23 October 2007 Debates at  col 2398;  see  also  [2]  above). Recognising that “[t]hey, too, must have a place in this society, and they, too, are entitled to their private lives” (see the 23 October 2007 Debates at col 2399), the Prime Minister explained  how the Government ensured that homosexual men had a place in our society (see the 23 October 2007 Debates at col 2401):

There are gay bars and clubs. They exist. We know where they are. Everybody knows where they are. They do not have to go underground. We do not harass gays. The Government does not act as  moral  policemen. And we  do  not  proactively  enforce section 377A on  them. [emphasis added  in  italics  and  bold italics]

75 The  Prime  Minister  reiterated  the  Government’s  stance  of  not proactively enforcing s 377A later in his speech as follows (see the 23 October 2007 Debates at col 2402):

... We have retained it over the years. So, the question is: what do we want to do about it now? Do we want to do anything about it now? If we retain it, we are not enforcing it proactively. Nobody has argued for it to be enforced very vigorously in this House. If we abolish  it,  we  may  be  sending  the  wrong  signal  that  our stance has  changed,  and  the  rules  have  shifted. [emphasis added]

76 The retention of s 377A while not proactively enforcing it was aimed at striking  a “balance” between “uphold[ing] a stable society  with  traditional, heterosexual family values” and allowing “space for homosexuals to live their lives and  contribute  to  the  society” (see  the  23 October  2007  Debates  at cols 2399–2340). The Prime  Minister  cautioned  that  repealing  s 377A  might send “the wrong signal that our stance has changed, and the rules have shifted” (see the 23 October 2007 Debates at col 2402). Forcing the issue could foreclose any possibility of reaching “an agreement within Singapore society”, because “[p]eople who are presently willing to live and let live will get polarised and no views will change” (see the 23 October 2007 Debates at col 2405). The Prime Minister concluded his speech by stating: “we have ... been right to adapt, to accommodate homosexuals  in  our  society,  but  not  to  allow  or  encourage activists to champion gay rights as they do in the West” (see the  23 October 2007 Debates at col 2407).

77 Many  of  these  points  about  the  political  compromise  on  s 377A  were reiterated in  the  speeches  of  other  MPs,  including  that  of  the  then  Senior Minister of State for Home Affairs, Assoc Prof Ho Peng Kee, who moved the 2007 Penal Code (Amendment) Bill to its second reading (see the 22 October 2007 Debates at cols 2175–2202).

78 Reading  the  s 377A  Debates  as  a  whole,  it  is  apparent  to  us  that  the debates did not concern the purpose of enacting s 377A in 1938, the scope of s 377A at the time of its enactment, or its differentia. Nor was the Government’s position informed by any of those matters. Rather, it is abundantly clear that the Government was focused on reaching a socio-political compromise that would balance various competing interests and accommodate differing perspectives on homosexuality. The political compromise that was eventually put forth by the Government and endorsed by Parliament (as summarised at [65] above) was a conscious and  considered  decision  made  after  intense  deliberation  (see  the 23 October 2007 Debates at cols 2397 and 2401–2405). 79 In deciding to “leave things be”  (see  the  23 October  2007  Debates  at col 2397),  it  did  not escape the Government’s attention that doing  so  would generate “legal untidiness and ambiguity” (see the 23 October 2007 Debates at col 2405). The Prime  Minister  addressed  this  directly  by  explaining  that maintaining the  status  quo,  while  unsatisfactory,  was  preferable  to  risking societal division  over  s 377A. In his words, “[i]t is better to accept the legal untidiness and ambiguity. It works, do not disturb it” (see likewise  the 23 October 2007 Debates at col 2405).

80 We have laid out the Prime Minister’s speech in some detail because it is  legally  significant  in  two  respects. First, it  is  an  express  articulation  of  the public policy and the public interest in respect of s 377A – namely, the need to balance conflicting  views  on  homosexuality  in  Singapore  (see  [76]  and  [78] above). As was  held  in  UKM  (at  [137]),  the  three  main  criteria  for  assessing whether any  material  bears  out  an  alleged  public  policy  are  authority,  clarity and relevance. In our view, the Prime Minister’s speech fulfils all three criteria. The public policy espoused in the Prime Minister’s speech is relevant because it pertains  specifically  to  s 377A. It is  also  clear  and  emanates  from  a constitutionally  authoritative  source  –  the  Prime  Minister’s parliamentary speech, delivered  in  his  official  capacity  as  the  head  of  the  Government  (see UKM at [138], [141] and [142]).

81 Second,  the Prime Minister’s speech set out  the  prevailing position in terms that homosexual men were not being and would not be harassed because s 377A would not be proactively enforced (see [74] above). We note, however, that the  Prime  Minister  did  not  specify  what  he  meant  in  saying  that  s 377A would not be “proactively” enforced. This is a point that we return to later at [99] below.

=AG Wong’s representations in 2018= 82 While the Prime Minister’s speech  during  the  s 377A  Debates  is undoubtedly  important,  it  must  be  borne  in  mind  that  ministerial  statements about the general non-enforcement of s 377A, even those by the Prime Minister himself, do not have the force of law and do not bind the PP, who exercises his prosecutorial discretion independently (see Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan Eng Hong (Standing)”) at [181]). In practice, however, we expect that the PP of the day, in exercising his prosecutorial discretion when dealing with  s 377A  offences,  would  have  taken  into  account  the  Prime Minister’s speech, which is an authoritative expression of the public policy and public interest on this matter.

83 A major development in this narrative, which significantly affected the political package, was AG Wong’s issuance of the 2018 AGC Press Release and the 2018 Straits Times article. Significantly, they post-date this court’s decision in Lim  Meng  Suang (CA)  and  are  being  considered  by  this  court  for  the  first time.

84 On 2 October 2018, AG Wong issued the 2018 AGC Press Release. We reproduce its most salient portions below:

3 The Government’s position on section 377A is that the Police will not proactively enforce this provision, for instance by conducting enforcement  raids. However, if  there  are  reports lodged by persons of offences under section 377A, for example, where minors  are  exploited  and  abused,  the  Police  will investigate. 4 Where the Police conducts investigations into an offence under section 377A, the Police will decide whether or not there is sufficient basis to refer the case to the PP. It will then be for the PP to  determine  whether  to  prosecute. In doing  so,  the PP exercises  his  independent  discretion  on  whether  to  charge  the offender, solely on the basis of his assessment of the facts, the law, and the public interest. While the PP is entitled to consider public policies in exercising his discretion, these do not fetter the exercise of prosecutorial discretion.

5 These fundamental principles have been repeatedly affirmed by past and present Attorneys-General and have also been recognised and respected by the Government and Parliament. As an  illustration,  in  2008,  the  (then)  Deputy Prime Minister  and  Minister  for  Home  Affairs,  Mr Wong  Kan Seng, explained that in the case of an offender who had been charged under section 377A of the Penal Code, a police report was lodged by a 16-year[-]old male who had oral sex with the suspect. The Police referred the case to the PP after completing investigations, and  ‘[t]he [PP]  decided  to  charge  the  accused under section 377A after taking into account all the facts and circumstances of the case, including the complainant’s age and the fact that the offence had taken place in a public toilet’. The Minister also made clear that: ‘... for any report disclosing an offence, [the] Police will place the evidence before the [PP] for a decision as to whether or not to proceed with prosecution.’ [emphasis added in italics and bold italics] 85 AG Wong  emphasised  that  the PP  exercises  his  independent  and constitutionally protected discretion when deciding whether to prosecute a case involving an offence under s 377A. He concluded by providing the following guideline on  how  the PP  would  exercise  his  prosecutorial  discretion  in  this regard:

6 ... In the case of section 377A,  where  the  conduct  in question was between two consenting adults in a private place, the PP had,  absent  other  factors,  taken  the  position  that prosecution would not be in the public interest. This remains the position today. 86 The 2018 AGC Press Release was swiftly followed by the 2018 Straits Times article four days later on 6 October 2018. There, AG Wong expressed the Government’s and  the PP’s  “respective  longstanding  approaches  to Section 377A cases” [emphasis added] in the following terms:

(a) First,  “the  Government’s  position  that  the  police  will  not proactively enforce Section 377A with respect to private acts had been made public since at least 2006”. (b) In  addition,  the PP  had  “consistently  taken  the  position  that, absent other  factors,  prosecution  under  Section 377A  would  not  be  in the public interest where the conduct was between two consenting adults in a  private  place”  [emphasis  added]. AG Wong reiterated  that  this prosecutorial policy had existed “when Mr [V K] Rajah [SC] was the PP and remains so today”. Before us, Ms Tan confirmed  that  the PP  still maintains the general position of not proactively enforcing s 377A and that this position is broadly in line with what was set out in Parliament in 2007.

87 The  2018 Straits  Times  article  also  referred  to  a  2008  case  which AG Wong had mentioned in the 2018 AGC Press Release, and which involved an offender who had been charged under s 377A for performing oral sex on a minor in a public place. AG Wong highlighted that that case “illustrate[d] the Government’s and  the  [PP’s]  respective  longstanding  approaches  to Section 377A cases” and showed that these approaches were aligned. 88 In our judgment, AG Wong’s statements are legally significant in three respects. First, they  contain  guidelines  on  the  exercise  of  prosecutorial discretion in  relation  to  s 377A  offences,  which  is  a  matter  within  the PP’s purview. These guidelines, in substance, constitute representations that s 377A will generally not be enforced in cases of sexual conduct between consenting adult men in private (that is to say, acts falling within the Subset as defined at [19] above).

89 Second, these guidelines and the policy stance they embody are broadly aligned with  the  public  policy  and  public  interest  expressed  by  the  Prime Minister during  the  s 377A  Debates. AG Wong was,  however,  specifically concerned with the enforcement of s 377A by way of prosecution. In that sense, he appears to have been addressing an issue distinct from, although related to, enforcement in the sense of police investigations (see [74] above). This much is evident from  para 6  of  the  2018 AGC  Press  Release,  where  AG Wong  stated that “[t]he Police’s exercise of its enforcement or investigative powers should ... not be conflated or confused with the PP’s exercise of discretion to commence prosecution”. 90 Third,  AG Wong  stated  that  the PP’s position  was  consistent  with  the Government’s stance  that  s 377A  would  not  be  proactively  enforced. Paragraph 5 of  the  2018 AGC  Press  Release  explicitly  states  that  the fundamental principles  pertaining  to  the PP’s exercise of his  prosecutorial discretion in relation to s 377A offences “have been repeatedly affirmed by past and present Attorneys-General and have also been recognised and respected by the Government and Parliament”. This seeming alignment of positions was later reiterated in  the  2018 Straits  Times  article. We add  that  the PP’s  position,  as enunciated by AG Wong, is aligned with not only that of the Government but also that of Parliament, given that Parliament chose to retain s 377A in 2007. =A summary of the political reality surrounding s 377A=

91 To summarise, it is evident from the political backdrop to the retention of s 377A  that  the  constitutionality  of  the  provision  cannot  be  assessed  in  a vacuum, a point which both Mr Singh (as well as his co-counsel, Mr Tan) and Ms Tan conceded. In our judgment, the political reality surrounding s 377A can be encapsulated in three points. 92 First, although s 377A was retained in our statute books, this was on the terms that  it  would  not  be  proactively  enforced. The Government’s evident unwillingness to  repeal  s 377A  signals  its  assessment  that  society  has  yet  to adequately integrate the  opposing views of mainstream conservatives and  the homosexual community,  as  well  as  its  awareness  that  our  multi-racial, multi-lingual and  multi-religious  community  remains  vulnerable  along  such fault lines. The Government  was  especially  cognisant  that  forcing  the  issue would polarise  those  who  are  “presently willing to live and let live”  (see  the 23 October 2007 Debates at col 2405; see also [76] above).

93 Second, the purpose behind the retention of s 377A in 2007 says nothing about the reason(s) for its enactment in 1938. Instead, the retention of s 377A was directed at addressing a deeply divisive socio-political issue in a pragmatic way. The decision not to repeal s 377A was a legislative one that was informed not by the purpose behind the enactment of the provision some seven decades earlier, but by the Government’s objective of striking an optimal compromise between competing  interests  in  our  society  and  accommodating  differing perspectives on homosexuality (see [78] above). 94 Third, and flowing from our previous point, the purpose of the political compromise on  s 377A  that  was  reached  in  2007  and  elaborated  on  by AG Wong in 2018 was to strike a careful balance between the opposing interests of various groups. The retention of s 377A served to accommodate the views of the more conservative segments of society, while the caveat that s 377A would not be proactively enforced served to accommodate the interests of homosexual individuals and to allow them to live their lives in as full a space as is presently possible (see [76] above). The Government was clearly seeking to calibrate the pace at  which  the  complex  issue  of  whether  s 377A  should  be  retained  or repealed  was  resolved. In this  regard,  a  measured  pace  with  a  degree  of accommodation was seen as the optimal course for Singapore. 95 Returning to the point we made at [67] above, we reiterate that it would be artificial  and  unrealistic  to  ignore  the  profound  implications  of  these considered legislative  and  executive  actions  when  assessing  the  legality  of s 377A. It is  also  common  ground  between  most  of  the  parties  that  the representations made by AG Wong in 2018 cannot be said to be devoid of any legal force or effect. Ms Tan acknowledged at various points during the hearing that if the PP were to institute a prosecution under s 377A today, the affected individual may well choose to bring an administrative law challenge premised on something akin to a substantive legitimate expectation. Similarly, Mr Singh did not suggest that AG Wong’s representations were of no legal effect; he in fact implicitly conceded that the need to give “practical effect and permanence” to these  representations  was  of  utmost  relevance. Instead, his  real  contention was that  these  representations  were  insufficient  to  insulate  homosexual  men from the threat of prosecution.

=The uncertainties arising from the political package= 96 Although a key tenet of the political package was that s 377A would not be “proactively” enforced,  there  remains  some  uncertainty  as  to  whether homosexual men may be liable to prosecution under s 377A, and if so,  when they may be so liable. In broad terms, the contours of the political package give rise to three important issues. 97 First, any representations operate in the present and do not bind future Governments or  AGs,  or  even  the  current  Government  and  AG Wong. The Executive’s discretion to determine policy remains unfettered, and it can change its policy  in  respect  of  the  enforcement  of  s 377A. Similarly, AG Wong  or  a future  AG  may  choose  to  exercise  the  prosecutorial  discretion  in  relation  to s 377A  offences  differently,  given  that  Art 35(8)  of  the  Constitution  vests the AG with “power, exercisable  at  his  discretion,  to  institute,  conduct  or discontinue any proceedings for any offence” [emphasis added]. Indeed, it has been made clear by the AG himself that “no binding assurance could be given that no future prosecutions would ever be brought under s 377A” [emphasis in original] (see Tan Eng Hong (Standing) at [181]–[182]). This gives rise to the possibility that  homosexual  men  may  face  the  threat  of  prosecution  under s 377A in the future.

98 This point  was advanced in Mr Choong’s affidavit and  raised by both Mr Singh and Mr Thuraisingam in their oral submissions. It was also accepted by Ms Tan,  whose  response  was  simply  that  any  such  retraction  of  the AG’s policy of not prosecuting s 377A offences generally might be grounds for a fresh constitutional challenge. If AG Wong  or  a  future  AG  were  to  resile  from  the prosecutorial policy  on  s 377A  that  is  currently  in  place  to  give  effect  to  the political compromise  that  was  forged  in  2007,  or  if  the  Government  were  to change the stance encapsulated in that political compromise, the space presently accorded to homosexual men to live freely without interference may be eroded. In other words, the representations made by the Government and AG Wong as to the general non-enforcement of s 377A are only of practical effect until their maker chooses  not  to  abide  by  them,  a  precarity  which  has  been  likened  to “[h]aving a gun put to your head and not pulling the trigger” (see the 23 October 2007 Debates at col 2405).

99 Second, there is some uncertainty as to both the scope and the source of any  legal  protection  from  prosecution  under  s 377A. During the  s 377A Debates, the  Prime  Minister  made  clear  that  the  Government  does  not “proactively enforce” s 377A. This would  suggest  to  a  layperson  that  s 377A will generally not be enforced. However, while the AG’s general stance of non-enforcement (in the sense of non-prosecution) broadly dovetails with that of the Government (see  above  at  [89]),  there  might  be  some  gaps  between  their respective positions. This is  unsurprising:  the  Prime  Minister  was  making  a policy statement in Parliament on behalf of the Government, whereas AG Wong was effectively providing the general public with guidelines on the exercise of the prosecutorial  discretion  in  relation  to  s 377A  offences. AG Wong was therefore rather  more  specific  in  stating  that  only  a  certain  category  of  acts caught by  s 377A,  namely,  sexual  conduct  between  consenting  adult  men  in private,  would  generally  not  be  prosecuted  under  that  provision. The Prime Minister’s speech understandably did not go into such detail. 100 On  top  of  the  ambiguity  as  to  the  scope  of  legal  protection  from prosecution under s 377A, the source of any such legal protection is also murky. We first  note  that  the  expressed  intention  of  Parliament,  as  well  as  the Government’s position as set out in the Prime Minister’s speech during the s 377A Debates,  are  clearly  matters  which  the PP  will  take  into  account  in exercising his prosecutorial discretion in cases involving s 377A offences (see para 2  of  the  2018 AGC  Press  Release). As we  observed  at  [80]  above,  the Prime Minister’s speech in Parliament is an express articulation of the public policy and the public interest in this politically charged area of law. Since the PP is guided by the public interest when exercising his prosecutorial discretion, it is unsurprising  that  AG Wong’s representations in 2018 are broadly aligned with the position set out in the Prime Minister’s speech. However, the source of any legal  protection  from  prosecution  under  s 377A  is  uncertain,  given  that statements by the Government do not bind the PP’s exercise of his prosecutorial discretion. In this  regard,  it  is  pertinent  that  AG Wong  stated  in  no  uncertain terms that “[w]hile the PP is entitled to consider public policies in exercising his discretion,  these  do  not  fetter the exercise of prosecutorial discretion” [emphasis added] (see para 4 of the 2018 AGC Press Release).

101 AG Wong’s  position  is,  of  course,  legally  sound. As we  mentioned above, the PP’s exercise of  his  prosecutorial  discretion  is  protected  under Art 35(8) of  the  Constitution. This prosecutorial  function  is  completely insulated from  all  other  parts  of  the  Executive  and  is  constitutionally  vested solely in  the AG  (in  his  capacity  as  the PP),  leaving  him  with  full  power  to decide  on  all  matters  concerning  the  institution,  conduct  and  termination  of prosecutions. It is  a  matter  of  settled  law  that  the PP  makes  all  prosecutorial decisions without  interference  from  other  parts  of  the  Executive  and  that  his decisions can only be challenged on limited grounds such as unconstitutionality and abuse  of  prosecutorial  power  (see  Ramalingam  Ravinthran  v  Attorney-General  [2012]  2 SLR 49 (“Ramalingam”) at [17], citing Law  Society  of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 at [149]).

102 In  our  judgment,  because  of  the AG’s  exclusive  constitutional responsibility for prosecutions (in his capacity as the PP), it is his position, and not the Government’s or Parliament’s, which  is  material  for  our  purposes. Absent AG Wong’s express  representations  in  2018,  which  cohered  with  the political compromise  on  s 377A  that  was  reached  in  2007,  it  would  not  have been legally  possible  to  limit  the PP’s prosecutorial  discretion  in  relation  to s 377A offences by reference to that political compromise only. As the PP acts independently of  the  other  parts  of  the  Executive  when  exercising  his prosecutorial discretion, he is not bound by the statements of Ministers, even those of the Prime Minister, as to how the Government or its officials will act (see Tan  Hon  Leong  Eddie  v  Attorney-General  [2021]  SGHC  196  at  [29]). Subject to the limited grounds of judicial review laid out in Ramalingam at [17], only the AG (in his capacity as the PP) can decide how his office will act and, more significantly,  craft  a  policy  regarding  how  his  office  will  act  in  certain circumstances. In examining  the  legal  consequences  of  the  political  package, therefore, it  is  AG Wong’s representations in 2018 as to the  general  non-enforcement  of  s 377A  that  are  material. According to  AG Wong,  those representations were intended to be aligned with the Government’s position as expressed by the Prime Minister during the s 377A Debates. 103 This brings us to the third issue, which concerns the ambiguity as to how the political  package  affects  the  enforcement  of  other  laws,  a  point  which Mr Ravi stressed in both his oral and his written submissions. 104 The  Prime  Minister  himself  noted  in  his  speech  that  the  political compromise pertaining to s 377A was legally untidy. Among other things, the political package as a whole leaves it unclear how other laws will be applied or enforced. This was foreshadowed during the s 377A Debates by the then  MP for  Bishan-Toa  Payoh,  Mr Hri  Kumar  Nair,  who  said:  “... in the  long  run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the Code” (see the 22 October 2007 Debates at cols 2287–2288). The difficulties presented by the political package can be illustrated with reference to three discrete statutory provisions: s 424 of the CPC and ss 119 and 176 of the PC. 105 Section 424 of the CPC provides as follows:

=Duty to give information of certain matters=

424. Every  person  aware  of  the  commission  of  or  the intention of any other person to commit any arrestable offence punishable under  [s 377A]  of  the  Penal  Code  (Cap. 224) ... shall,  in  the  absence  of  reasonable  excuse,  the  burden  of proving which shall lie upon the person so aware, immediately give information  to  the  officer  in  charge  of  the  nearest  police station or to a police officer of the commission or intention. 106 As for ss 119 and 176 of the PC, they state as follows:

A public servant concealing a design to commit an offence which it is his duty to prevent

119. Whoever, being a public servant, intending to facilitate, or knowing  it  to  be  likely  that  he  will  thereby  facilitate,  the commission of an offence, the commission of which it is his duty as such public servant to prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or  makes  any  representation  which  he  knows  to  be false respecting such design, shall, if the offence is committed, be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both; or, if the offence is  punishable  with  death  or  imprisonment  for  life,  be punished  with  imprisonment  for  a term  which may  extend  to 15 years,  and  also  be  liable  to  fine;  or  if  the  offence  is  not committed, shall  be  punished  with  imprisonment  for  a  term which may  extend  to  one-fourth  part  of  the  longest  term provided for  that offence,  or  with  such  fine  as  is  provided  for that offence,  or  with  both;  or,  if  the  offence  not  committed  is punishable  with  death  or  imprisonment  for  life,  be  punished with imprisonment for a term which may extend to 7 years, and also be liable to fine.

...

Omission to give notice or information to public servant by person legally bound to give such notice or information 176.—(1) A person who, being legally bound to give any notice or to furnish information on any subject to any public servant, as such,  intentionally  omits  to  give  such  notice  or  to  furnish such information  in  the  manner  and  at  the  time  required  by law, shall —

(a) in  the  case  of  an  individual,  be  punished  with imprisonment for  a  term  which  may  extend  to one month, or with fine which may extend to $1,500, or with both; or

(b) in any other case, be punished with fine which may extend to $10,000.

(2) If the notice or information required to be given respects the commission of  an  offence,  or  is  required  for  the  purpose  of preventing  the  commission  of  an  offence  or  in  order  to  the apprehension of  an  offender,  any  person  who  is  guilty  of  an offence under subsection (1) shall —

(a) in  the  case  of  an  individual,  be  punished  with imprisonment for a term which may extend to 6 months, or with fine which may extend to $5,000, or with both; or

(b) in any other case, be punished with fine which may extend to $10,000. 107 There remains uncertainty as to whether individuals who are aware of the actual or intended  commission of conduct  amounting to an offence under s 377A are obliged to report this to the police under s 424 of the CPC, absent a reasonable excuse. It is similarly questionable whether a public servant (such as a police  officer)  who  knows  that  such  conduct  is  likely  to  be  committed  is legally  bound  under  s 119  of  the  PC  to  disclose  the  existence  of  a  design  to commit such conduct. We note that the voluntary concealment of information relating to the existence  of a design to commit an offence  under s 377A  may attract an imprisonment term of up to one year (this being half the maximum term of imprisonment provided for under s 377A). Further, unlike s 424 of the CPC, s 119 of the PC does not provide for a defence of reasonable excuse. It is also uncertain whether individuals are legally bound under s 176(2) of the PC to provide  public  servants  with  notice  or  information  for  the  purpose  of preventing the commission of a s 377A offence or apprehending a person who has committed  such  an  offence. AG Wong did  not  expressly  deal  with  these points when making his representations in 2018, but this is unsurprising given that these points were only ancillary to the thrust of his representations. 108 The  question  thus  remains  open  as  to  whether,  despite  AG Wong’s representations, the legal duties under ss 119 and 176 of the PC and s 424 of the CPC continue to apply in relation to conduct that might amount to an offence under s 377A, or whether this would be so only where the conduct involves acts committed in public and/or with a minor. Despite AG Wong’s intention to set out a  prosecutorial  policy  in  relation  to  s 377A  that  is  congruent  with  the Government’s policy  stance  and  articulation  of  the  public  interest  (as summarised at [80] and [92]–[94] above), some gaps remain, although there is nothing to suggest that these gaps were intentional or deliberate. 109 In these circumstances, the legal framework that is based on the political compromise forged in 2007, as elaborated on by AG Wong in 2018, leaves the legal status  of  s 377A  uncertain  in  some  ways. Such uncertainty  leaves homosexual men unable to plan their lives adequately as they do not know, with reasonable certainty,  how  s 377A  will  be  applied  or  enforced. This is undesirable from a rule of law perspective: after all, it is a fundamental tenet of the rule of law that the law must be capable of guiding the conduct of those that it binds (see Tom Bingham, The Rule of Law (Penguin Books, 2011) at pp 91– 95). The need  for  certainty  is  heightened  by  the  fact  that  s 377A  not  only concerns matters as intensely private as acts of sexual intimacy, but also carries the threat of substantial punishment (of imprisonment for a term of up to two years). Even if  prosecutions  are  not  instituted  under  s 377A,  this  still  leaves open the question of possible liability under ss 119 and 176 of the PC and s 424 of the CPC. 110 These rule of law concerns do not, however, lead to the conclusion that the political package should be discarded. Rather, given the signal importance of the political compromise on s 377A that was struck in 2007, the court should strive to honour and give legal effect to that compromise as far as practicable. In our judgment, there are two key reasons why the political package should be upheld (with any unintended gaps filled, if necessary), rather than jettisoned. 111 First, the political  package was clearly intended  to assure homosexual men that they have a place in our society and that they would not be “harass[ed]” despite the  retention  of  s 377A. It is  difficult  to  reconcile  the  publication  of AG Wong’s representations in 2018 with any other view. Discarding the political package would mean depriving homosexual men of the legally binding assurance that  they  can  live  freely  in  Singapore,  without  harassment  or interference. 112 Second,  Parliament  made  a  deliberate  and  considered  choice  to  retain s 377A as part of the political package. If the political package can be upheld so as to  give  legal  effect  to  the Government’s  avowed  position  and  the PP’s prosecutorial policy  on  s 377A  offences  (which  is  broadly  aligned  with  the Government’s  stance),  then  the  court  should  strive  to  do  so,  albeit  with  the necessary finetuning to make it legally workable. To choose instead to embark on an arid legal analysis driven by the attempt to establish the motivations of the colonial  draftsmen,  while  ignoring  the  far  more  current  debates  and resolutions of our Parliament and our Government, would be to miss the forest for the  trees. However, we  are  not  thereby  incorporating  what  is  called  the “living tree” doctrine (see Henrietta Muir Edwards and others v The Attorney- General of Canada and others [1930] AC 124), or any other doctrine akin to it, in the interpretation of our Constitution or statutes. Rather, the interpretation of s 377A as  informed  by  Parliament’s intention to retain the  provision  is necessitated  by  the  unique  circumstances  in  which  the  political  package  was arrived at.

113 We  emphasise  again  that  we  are  concerned  with  the  enforcement  of s 377A only in the sense of prosecution and not in any other sense (such as, for example, the conduct of police investigations). This is because some acts that are captured by s 377A may well constitute other offences (see below at [137]). As the exact offence that has been committed will often not be apparent at the outset of  investigations,  law  enforcement  agencies  cannot  and  should  not  be constrained from investigating any reports of suspected offences. 114 To  consider  how  the  political  package  may  be  given  legal  effect,  it  is helpful to reiterate its main features, which are as follows:

(a) Section 377A  was  not  repealed  in  2007  because  Parliament judged that it was undesirable to do so then (and presumably continues to hold  this  view). Repealing s 377A  might  signal  a  change  of  the Legislature’s stance,  which  could  in  turn  polarise  the  community  and deepen social schisms, something that we can ill afford as a nation.

(b) The question of when it might be appropriate to repeal s 377A is self-evidently one of policy that the Legislature and the Executive are best placed to decide through the public forum of democratic discourse.

(c) At the same time, as an accommodation of our homosexual kith and kin, s 377A would not be proactively enforced by the Executive.

(d) The Government’s position in 2007 was animated by the desire to ensure that homosexual individuals would not be harassed and could live freely within the space afforded to them. What follows from this is the need to ensure that homosexual individuals do not face unreasonable legal risks that might be regarded as giving rise to a sense of harassment or curtailing their ability to live peacefully in our society.

(e) At the same time, the accommodation of homosexual individuals (by not proactively enforcing s 377A) was not intended  to expand the space that they had been afforded. Any such expansion is a matter for Parliament to decide in the light of societal trends.

(f) While the Prime Minister left open the meaning of “proactive” enforcement, it seems possible to infer that private consensual sex acts between male adults (that is to say, acts falling within the Subset) would generally fall  outside  the  ambit  of  enforcement. On the  other  hand, homosexual conduct  in  public  or  involving  minors  would  not  be insulated from enforcement. It should be noted that conduct amounting to offences under s 377A may also be prohibited under other laws.

115 It  seems  to  us  that  these  were  the  essential  features  of  the  political package that AG Wong’s representations in 2018 and the guidelines contained therein sought to give effect to. =The doctrine of substantive legitimate expectations= 116 As  we  have  noted,  the  parties  mostly  agree  that  AG Wong’s representations must  be  of  some  legal  effect  and  that  the  constitutionality  of s 377A  cannot  be  analysed  in  complete  disregard  of  those  representations. Therefore, before we consider the constitutionality of s 377A under Arts 9, 12 and 14,  it  is  incumbent  upon  us  to  resolve  the  anterior  question  of  the  basis upon which AG Wong’s representations may be said to possess legal force and the precise legal effect and consequences of those representations (“the Anterior Question”).

117 In our judgment, the exceptional circumstances surrounding the general non-enforcement of  s 377A  call  for  a  limited  recognition  of  the  doctrine  of substantive  legitimate  expectations  as  the  basis  for  imbuing  AG Wong’s representations with legal force.

118 In the sections that follow, we first examine the treatment of this doctrine in Singapore before explaining why a limited recognition of this doctrine is both permissible and warranted in the specific context of s 377A.

A brief overview of the doctrine
119 The  classic  exposition  of  the  doctrine  of  substantive  legitimate expectations can be found in Regina v Inland Revenue Commissioners, Ex parte MFK Underwriting  Agents  Ltd  [1990]  1 WLR  1545  at  1568–1569,  where Bingham LJ (as he then was) stated:

... So if,  in  a  case  involving  no  breach  of  statutory  duty,  the [public authority] makes an agreement or representation from which it cannot withdraw without substantial unfairness to the [individual] who has relied on it, that may found a successful application for judicial review.

... If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair  if  the  authority  were  permitted  to  follow  a  different course to the detriment of one who entertained the expectation, particularly if he acted on it. ... [emphasis added]

This same passage was subsequently cited in the seminal decision of the United Kingdom Supreme  Court  in  In  the  matter  of  an  application  by  Geraldine Finucane for Judicial Review (Northern Ireland) [2019] UKSC 7 (“Finucane”) at [55].

120 In  SGB Starkstrom  Pte  Ltd  v  Commissioner  for  Labour  [2016]  3 SLR 598 (“Starkstrom”), we distilled  the  essence  of  the  doctrine  of  substantive legitimate expectations in the following terms (at [41]): ... [T]he doctrine  of  substantive  legitimate  expectations seeks, in  essence,  to  bind  public  authorities  to representations,  whether  made  by  way  of  an  express undertaking or  by  way  of  past  practice  or  policy,  about how these  authorities  will  exercise  their  powers  or otherwise  act  in  the  future,  in  circumstances  where  a representation has been made by the authority in question and relied on by the plaintiff to his detriment. As Lord Woolf put it in [R v North and East Devon Health Authority, ex parte Coughlan [2001]  QB  213] (at  [56]),  the  question  concerns  the response of  the  court  when  confronted  with  a  member  of  the public who  has  a  legitimate  expectation  as  to  how  he  will  be treated  by  a  public  body  and  that  body  wishes  to  treat  him otherwise than in accordance with that expectation. Similarly, in C F Forsyth, ‘The Provenance and Protection of Legitimate Expectations’ (1988) 47(2) CLJ 238 at 239, the learned author explained that  ‘[t]he  judicial  motivation  for  seeking  to  protect [legitimate] expectations  is  plain:  if  the  executive  undertakes, expressly or by past practice, to behave in a particular way the subject expects  that  undertaking  to  be  complied  with’  ... [emphasis in original in italics; emphasis added in bold italics] 121 The doctrine of substantive legitimate expectations has evolved over the years and has been adopted and adapted in various common law jurisdictions (see Finucane  at  [62]  for  the  most  recent  restatement  of  the  doctrine  in  the United Kingdom; see also the seminal decision of the Hong Kong Court of Final Appeal in Ng Siu Tung & Others v Director of Immigration (2002) 5 HKCFAR 1  at  [91]–[98]  and  [101]–[104],  which  was  recently  followed  in  U Storage Group Ltd v Director of Fire Services [2020] HKCFI 2114 at [113] and [115]– [117]).

122 However, the doctrine has not been uniformly well-received. In Canada, legitimate expectations operate only as a facet of procedural fairness and cannot give rise  to  substantive  rights  (see  Agraira  v  Canada  (Public  Safety  and Emergency Preparedness) [2013] 2 SCR 559 at [97] and, more recently, Dabao v Investigation Committee of the Saskatchewan Registered Nurses’ Assn [2020] SKQB 242 at [33]). In Australia, the terminology of legitimate expectations has fallen out of favour, having been described by the High Court of Australia as “apt to  mislead”,  “unsatisfactory”  and  “superfluous  and  confusing”  (see Minister for Immigration and Border Protection v WZARH and Another (2015) 326 ALR 1 (“WZARH”) at [28],  citing  South Australia v O’Shea  (1987) 163 CLR 378 at 411 and 417 as well as Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [55]). The High Court of Australia has gone so far as to say that even though administrative decision-makers must ensure procedural fairness to those affected by their decisions, “[t]he ‘legitimate expectation’ of a person ... does not provide a basis for determining whether procedural fairness should be accorded to  that  person  or  for  determining  the  content  of  such  procedural fairness” (see WZARH at [30]). The court further warned (likewise at  [30] of WZARH) that recourse to the doctrine is “both unnecessary and unhelpful” and “may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”. The decision  in WZARH was recently followed in Bell v Native Title Registrar [2021] FCA 229 at [74].

The uncertain status of the doctrine in Singapore
123 This  court  has  yet  to  rule  definitively  that  the  doctrine  of  substantive legitimate expectations is part of Singapore law. To explain this, it is necessary for us to refer to two cases in detail. The first is the High Court’s decision in Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2014] 1 SLR 1047 (“Chiu Teng”), in which it was held for the first time that the doctrine applied in Singapore. The second is our decision in Starkstrom, where we highlighted the difficulties in accepting the doctrine as part of Singapore law and deferred resolution of the matter to a suitable occasion in the future. 124 In Chiu Teng, the applicant sought to invoke the doctrine of substantive legitimate expectations to compel the Singapore Land Authority (“SLA”) to act in accordance  with  its  representations  as  to  how  it  would  calculate  the differential premium  payable  for  state  leases. The SLA  had  published  two circulars and  maintained  a  website  with  information  on  how  the  applicable differential premiums would be calculated. On that basis, the applicant argued that the  SLA  should  not  be  permitted  to  act  in  a  manner  contrary  to  the legitimate expectations that its representations had allegedly engendered. 125 Following a comprehensive review of the positions in Australia, Hong Kong, the United Kingdom and Canada, the High Court held (at [119]) that “the doctrine of  legitimate  expectation  should  be  recognised  in  our  law  as  a stand-alone  head  of  judicial  review  and  substantive  relief  should  be  granted under the  doctrine subject to certain safeguards”. Those safeguards  were enumerated as follows (likewise at [119]): (a) The  applicant  must  prove  that  the  statement  or representation made by the public authority was unequivocal and unqualified[:]

(i) if  the  statement  or  representation  is  open  to  more than one  natural  interpretation,  the  interpretation applied by the public authority will be adopted; and

(ii) the presence of a disclaimer or non-reliance clause would cause  the  statement  or  representation  to  be qualified.

(b) The  applicant  must  prove  [that]  the  statement  or representation was made by someone with actual or ostensible authority to do so on behalf of the public authority. (c) The  applicant  must  prove  that  the  statement  or representation  was  made  to  him  or  to  a  class  of  persons  to which he clearly belongs.

(d) The applicant must prove that it was reasonable for him to rely on the statement or representation in the circumstances of his case:

(i) if  the  applicant  knew  that  the  statement  or representation was made in error and chose to capitalise on the error, he will not be entitled to any relief;

(ii) similarly,  if  he  suspected  that  the  statement  or representation was made in error and chose not to seek clarification when he could have done so, he will not be entitled to any relief;

(iii) if there is reason and opportunity to make enquiries and the applicant did not, he will not be entitled to any relief.

(e) The applicant must prove that he did rely on the statement or representation and that he suffered a detriment as a result.

(f) Even if all the above requirements are met, the court should nevertheless not grant relief if: (i) giving  effect  to  the  statement  or  representation  will result in a breach of the law or the State’s international obligations;

(ii) giving effect to the statement or representation will infringe the  accrued  rights  of  some  member  of  the public;

(iii) the public authority can show an overriding national or public interest which justifies the frustration of the applicant’s expectation.

126 The High Court considered that it was “eminently within the powers of the judiciary”  to  uphold  legitimate  expectations  (at  [113]),  and  explained  the normative reasons  for  accepting  the  doctrine  of  substantive  legitimate expectations as part of Singapore law as follows (at [112]): If private  individuals  are  expected  to  fulfil  what  they  have promised, why should a public authority be permitted to renege on its  promises  or  ignore  representations  made  by  it? If an individual or a corporation makes plans in reliance on existing publicised representations  made  by  a  public  authority,  there appears no reason in principle why such reliance should not be protected.

On the  facts,  however,  the  High  Court  held  that  there  were  no  grounds  for invoking the doctrine.

127 Two and a half years after the decision in Chiu Teng, we considered the doctrine of substantive legitimate expectations in Starkstrom. That case arose from a serious workplace accident suffered by one of the appellant’s employees, whose injuries  rendered  him  mentally  incapacitated. The employee’s brother brought a  claim  for  statutory  compensation  under  the  Work  Injury Compensation Act (Cap 354, 2009 Rev Ed) (“the WICA”) on the employee’s behalf in May 2010, even though he had yet to be appointed as the employee’s deputy then. The claim  was  accepted  by  the  Commissioner  for  Labour (“the Commissioner”), who was the respondent in the proceedings,  and a notice of assessment was issued pursuant to s 24(2) of the WICA. The employee’s brother subsequently sought  to withdraw  the  claim. He contended  that  the  claim  was legally invalid because he had only been appointed as the employee’s deputy in August 2012,  after  the  claim  had  been  brought. The Commissioner  initially maintained that the claim was valid but subsequently decided that it was invalid and that  the  notice  of  assessment  had  been  issued  in  error. The appellant commenced judicial review proceedings to quash the Commissioner’s eventual decision that the notice of assessment was a nullity for having been issued in error. It argued  that  it  had  a  substantive  legitimate  expectation  that  the  claim brought by the employee’s brother was valid and ought to be upheld. 128 We  concluded  that  the  doctrine  of  substantive  legitimate  expectations was inapplicable on the facts of the case because the dispute was between two private individuals, rather than between a public authority and an individual (at [42]). Additionally, the  Commissioner  had  not  made  any  actionable representations that  engaged  the  doctrine  (at  [46],  [47]  and  [49]). In making these findings,  we  assumed,  without  deciding,  that  the  doctrine  was  part  of Singapore law (at [41]). This was because it was unnecessary for us to either affirm or  overrule  Chiu  Teng  as  to  the  existence  of  the  doctrine  as  part  of Singapore law. Nonetheless, we made the following important observations: (a) First, the court’s role in a judicial review application is a limited one that concerns “a review of the decision-making process, as opposed to the merits of the decision” [emphasis in original] (at [56]). This flows from the  doctrine  of  the  separation  of  powers,  the  need  to  uphold Parliament’s intention (as expressed in statute) to vest certain powers in the Executive and pragmatic concerns over institutional competence (at [58]). (b) Second,  recognising  the  doctrine  of  substantive  legitimate expectations as  part  of  Singapore  law  would  represent  “a  significant departure from  [the]  current  understanding  of  the  scope  and  limits  of judicial review”. That would potentially change the understanding of the courts’ role in undertaking judicial review of administrative or executive actions, and  could  cause  the  courts  to  redefine  their  approach  to  the doctrine of the separation of powers as well as the relative roles of the judicial and the executive branches (at [59]).

(c) Third, the doctrine has not been uniformly well-received across common law jurisdictions (at [60]). We have already noted this at [122] above.

(d) Fourth,  if  the  doctrine  were  to  result  in  the  grant  of  additional protection to private individuals in relation to public authorities, it would entail more  searching  scrutiny  of  executive  action,  beyond  the traditional heads of judicial review (namely, irrationality, illegality and procedural impropriety). This might result in the court having to weigh private interests  against  public  interests,  which  would,  in  turn,  raise questions regarding  the  separation  of  powers  and  institutional competence (at [62]). 129 We  expressed  the view that “the  difficulties  inherent  in  accepting  the doctrine of  [substantive]  legitimate  expectations  in  Singapore  should  not  be underestimated” (at [60]), and outlined a list of thorny issues that “remain[ed] to be determined” should the issue of incorporating the doctrine into our law arise in the future (at [61]): (a) Would  the  doctrine  of  substantive  legitimate  expectations require the courts to review the substantive merits of executive action as  opposed  to  questions  of  process  and  of  legality  and jurisdiction?

(b) If so, can this be reconciled with the doctrine of separation of powers where the judiciary would be engaging in reviewing the merits of a given executive action?

(c) Is  it  properly  within  the  province  of  the  courts  to  hold  a public authority bound to a position, even when that authority has decided  that  it  wished  to  change  its  policy  stance  on  a matter that is within the realm of its constitutional domain? [emphasis in original]

130 We  then  concluded  by  framing  the  central  question  arising  from  the issues listed in the above passage as follows (at [62]): ... [T]he crux of the issue is not likely to be whether there are sound reasons  for  protecting  legitimate  expectations,  but rather, which  body  should  decide  whether  the  particular expectation in  question  is  to  prevail  over  the  countervailing interest that may be at stake; specifically, should that balancing exercise be a matter for the court or the Executive? ... [emphasis in original]

131 In  the  years  following  Starkstrom,  our  courts  have  continued  to  leave open the question whether the doctrine of substantive legitimate expectations is or should be part of Singapore law (see Kardachi, Jason Aleksander v Attorney-General [2020] 2 SLR 1190 at [56]–[57] and Tan Liang Joo John v Attorney-General [2020] 5 SLR 1314 at [61]–[62]).

A limited recognition of the doctrine in the context of s 377A
132 In  that  light,  we  return  to  the  expectations  of  homosexual  men  that s 377A will generally not be enforced in the context of acts falling within the Subset. The reasons  why  these  expectations  merit  legal  protection  have  been canvassed at [111]–[112] above and we do not propose to repeat them. Instead, we explain why a limited recognition of the doctrine of substantive legitimate expectations is appropriate in the unique circumstances surrounding the general non-enforcement of  s 377A  and  serves  as  the  basis  for  imbuing  the representations made  by  AG Wong  in  2018  with legal  force. In doing  so,  we also provide our answer to the Anterior Question as framed at [116] above. To be clear, we recognise that AG Wong’s representations were made to a class of persons (namely,  homosexual  men)  rather  than  to  any  particular  individual. While some of the early jurisprudence on the doctrine of substantive legitimate expectations arose out of circumstances in which a public authority made certain representations to  an  individual  (see  [119]  above),  we  consider  that  a representation made to a general class of persons may in principle give rise to a specific  individual’s legitimate  expectation,  as  long  as  that  individual  is uncontroversially a member of the class of persons to whom the representation was made. 133 Nevertheless, our  recognition of the doctrine of substantive legitimate expectations is  an  extremely  limited  one  and  is  shaped  by  two  fundamental considerations. First, in the specific context of s 377A, a failure to recognise the legal effect of AG Wong’s representations may expose some individuals to the grave threat of prosecution and the attendant deprivation of liberty. In the light of the severe repercussions that might follow if AG Wong’s representations are not accorded legal effect, there is a strong impetus for recognising the doctrine of substantive  legitimate  expectations  –  albeit  to  a  limited  extent  –  in  this specific context.

134 Second,  and  more  importantly,  the  circumstances  surrounding  the general policy of not enforcing s 377A are exceptional. A decision was made in Parliament to strike a balance by preserving the legislative status quo on a vexed area of  socio-political  policy  while  accommodating  the  concerns  of  those directly affected by the legislation in question. This was done in order to avoid driving an irrevocable wedge within our diverse society. The first part of that balance, namely, the decision not to repeal s 377A, was effected by Parliament. What we are now concerned with is the second part of that balance, namely, the proper contouring of the accommodation that has been extended to homosexual men, which  is  well  within  our  ambit  to  determine. This issue  has  not  been judicially considered  because,  as  we  have  explained,  AG Wong’s representations post-date  our  decision  in  Lim  Meng  Suang (CA). In our judgment, by  invoking  the  doctrine  of  substantive  legitimate  expectations  in these  unique  circumstances,  we  would  be  upholding  the  public  interest  in maintaining the legislative status quo along the lines delineated by Parliament in 2007 and affirmed by AG Wong in 2018. Such an approach would also be consistent with avoiding a precipitous resolution of the issue of whether or not s 377A should be removed from our statute books, which Parliament itself had eschewed in 2007. 135 Recognising the doctrine of substantive legitimate expectations in these specific circumstances would, most atypically, neither offend the doctrine of the separation of  powers  nor  require  us  to  review  the  substantive  merits  of  the political package. On the  contrary,  in  giving  effect  to  the  expectations  of homosexual men that s 377A will generally not be enforced in respect of acts falling within  the  Subset,  the  court  would  be  giving  effect  to  the  political compromise on s 377A, as articulated during the s 377A Debates and reiterated by AG Wong in articulating the prosecutorial policy on s 377A. Critically, our holding would not constrain any future legislative or executive action regarding s 377A. In particular, there is no suggestion that the PP has acted or intends to act in a way contrary to the expectations that have been generated. 136 There  is  also  no  issue  of  a  possible  encroachment  on  the PP’s prosecutorial discretion. As the  institution,  conduct  and  termination  of prosecutions lie within the exclusive domain of the AG (acting in his capacity as  the PP),  it  would  ordinarily  be  inappropriate  for  the  court  to  restrict  or interfere  with  that  discretion  by  reference  only  to  the  Prime  Minister’s parliamentary speech. Indeed, as was noted in Chiu Teng at [119(f)(i)], even if the doctrine of substantive legitimate expectations were part of Singapore law, it may not be invoked if doing so would result in a breach of the law. As it turns out, however, after our decision in Lim Meng Suang (CA), AG Wong published his office’s prosecutorial policy on s 377A, which was expressed to give effect to the public policy reflected in the Prime Minister’s speech during the s 377A Debates. Hence, and  most  exceptionally,  giving  effect  to  the  legitimate expectations that have arisen as a result of the political package does not risk curtailing the PP’s prosecutorial discretion or offending  the  doctrine  of  the separation of powers. Furthermore, it certainly does not entail the court having to evaluate the merits of the positions adopted by AG Wong or, for that matter, by the Prime Minister. 137 We make two further points concerning the implications of our giving effect to  AG Wong’s representations  in  the  specific  context  of  s 377A. First, s 377A covers a broad range of conduct, including conduct that is indisputably objectionable and deserving of legal sanction, such as the abuse of male minors or acts of gross indecency in public. AG Wong made clear in 2018 that it would not normally be in the public interest to institute prosecutions under s 377A in cases involving  two  consenting  adult  men  who  engage  in  sexual  activity  in private. That leaves no question that it would sometimes be in the public interest to prosecute conduct that might be caught by s 377A but does not involve sexual acts between  consenting  adult  men  in  private. Such conduct  includes,  for example, sexual conduct involving minors and/or occurring in a public place. However, as  much  as  such  conduct  is  objectionable,  it  would  also  be  caught under more targeted (and, by and large, gender-neutral) legislative provisions. For example,  indecent  behaviour  in  public  is  prohibited  under  s 20  of  the Miscellaneous Offences (Public Order and Nuisance) Act 1906 (2020 Rev Ed) and s 294 of the Revised PC, while sexual acts involving minors are prohibited under provisions such as ss 376A to 376C of the Revised PC. Nothing in this judgment constrains  the PP’s  freedom  and  ability,  even  now,  to  institute prosecutions under other laws in respect of such objectionable conduct. Ms Tan accepted this at the hearing. 138 Second, there is nothing at present to suggest that AG Wong wishes to depart  from  the  position  that  he  articulated  in  2018. It is  clear,  however,  that AG Wong or a future AG cannot be prevented from changing that position in the future (see [97] above). While any potential change in the AG’s position is not an  issue  before  us,  it  seems  to  us  that,  in  such  an  event,  what  would  be required  as  a  matter  of  fairness  is  that  the AG  provides,  in  clear  and unambiguous terms,  reasonable  notice  of  his  intention  to  resile  from  the representations previously promulgated by AG Wong in 2018. 139 This  follows  from  the  notion  that  adequate  notification  of  a  relevant change in policy destroys any expectation founded upon an earlier policy (see H W R Wade &  C F Forsyth,  Administrative  Law  (Oxford  University  Press, 11th Ed, 2014) at p 454), as illustrated by the Privy Council’s decision in Fisher v Minister of Public Safety and Immigration and Others (No 2) [1999] 2 WLR 349. In  that  case,  the  appellant,  who  had  been  convicted  of  murder  and sentenced to death, submitted a petition to the Inter-American Commission on Human Rights (“the IACHR”) to obtain its views on whether the carrying out of his  death  sentence  would  be  a  violation  of  his  human  rights. The Privy Council rejected the appellant’s argument that he had a legitimate expectation that he  would  not  be  executed  pending  the  IACHR’s consideration  of  his petition. The Privy Council found (at 356E) that even if the appellant originally had such  a  legitimate  expectation,  that  expectation  could  not  survive  the Bahamas Government’s  letters  of  2  and  30 January  1998  informing  his solicitors that  the  Bahamas  Government  would  wait  until  no  later  than 15 February 1998 for the IACHR’s decision on his petition. 140 Drawing together the points raised above, it is permissible to recognise the doctrine  of  substantive  legitimate  expectations  in  the  specific  context  of s 377A. On the  present  facts,  such  a  move  will  not  engage  the  thorny  issues raised in Starkstrom at [61]. In particular, we reiterate that our finding does not entail a substantive review of the merits of the political package or offend the doctrine of  the  separation  of  powers. In giving  effect  to  the  legitimate expectations arising  from  AG Wong’s representations, we are doing  no  more than giving effect to the political package that the other constitutional actors – namely, the AG and the Government – have crafted in tandem. Furthermore, the circumstances that obtain in respect of s 377A are unique for the reasons set out at [134]–[136]  above. As these  highly  unusual  circumstances  will  hardly,  if ever, manifest themselves in other contexts, we are satisfied that the doctrine of substantive legitimate expectations should be recognised to the limited extent warranted by the present context. For the avoidance of doubt, we do not, by this judgment, import  the  doctrine  into  Singapore  law  in  any  wider  context. We leave that  matter  open  for  consideration  on  a  future  occasion  when  it  is necessary for us to make a determination and when we have had the full benefit of counsel’s submissions. 141 For the doctrine of substantive legitimate expectations to be successfully invoked, it is not enough that an expectation is found to exist – the expectation must also be legitimate and worthy of legal protection. In this regard, we agree broadly with the analytical framework that was set out in Chiu Teng at [119] (see [125]  above). We have  also  outlined  why  we  think  the  expectations  of homosexual men that s 377A will generally not be enforced in respect of acts falling within the Subset are legitimate and deserve legal protection. However, a question  remains  as  to  whether  an  expectation  merits  legal  protection  only when it has been detrimentally relied upon. 142 In Chiu Teng, the High Court held (at [119(e)]) that an applicant had to establish  detrimental  reliance  in  order  to  invoke  the  doctrine  of  substantive legitimate expectations. The need to prove detrimental reliance has, however, been doubted  in  a  series  of  cases  in  the  United  Kingdom  (see  Lord Kerr’s leading judgment in Finucane at [62], [70] and [72]; Lloyd Jones LJ’s opinion in Regina (Patel) v General Medical Council [2013] 1 WLR 2801 (“Patel”) at [84]; Lord Hoffmann’s opinion in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] 4 All ER 1055 at [60]; Schiemann LJ’s opinion in Regina (Bibi) v Newham London Borough Council [2002] 1 WLR 237 at [31] and [55]; and Peter Gibson LJ’s opinion in Regina v Secretary  of  State  for  Education  and  Employment,  Ex  parte  Begbie  [2000] 1 WLR 1115 (“Begbie”) at 1124B–1124D). 143 Even  if  detrimental  reliance  is  not  an  element  of  the  doctrine  of substantive legitimate expectations, it may be relevant in at least two ways, as stated in Begbie at 1124C–1124D. First, it may evidence the existence or extent of an expectation. Second, it may be relevant to a public authority’s decision whether to revoke a representation that forms the basis of an expectation. We add that  detrimental  reliance  may  also  be  an  important  consideration  in determining the weight to be accorded to an expectation and, accordingly, where the balance of fairness lies (see Patel at [84]). 144 It is not necessary for us to come to a final view on whether detrimental reliance is  an  essential  element  of  the  doctrine  of  substantive  legitimate expectations. Even if it is, there can be no question that homosexual men would have detrimentally relied on AG Wong’s representations – at least, by engaging in consensual  homosexual  sexual  activity  in  private  with  the  expectation  that they would not be prosecuted for such conduct. As a general point, the reliance that individuals place on guidelines on the exercise of prosecutorial discretion, such as those that AG Wong’s representations constitute, cannot be understated. It is  precisely  because  individuals  detrimentally  rely  on  such  prosecutorial guidelines that in Regina (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) [2010] 1 AC 345, the House of Lords held  (at  396)  that  the  Director  of  Public  Prosecutions  had  to  provide  a more  detailed  explanation  of  the  factors  that  he  would  consider  in  deciding whether to prosecute offences of assisted suicide. Hence, regardless of whether detrimental reliance  is  an  element  of  the  doctrine  of  substantive  legitimate expectations, we  are  satisfied  that  recourse  may  be  had  to  the  doctrine  to  the limited extent set out in this judgment.

Application of the doctrine on the facts
145 We  turn  to  examine  the  extent  to  which  the  doctrine  of  substantive legitimate expectations applies in this case. To begin, we highlight the following statements made by AG Wong in 2018:

(a) In para 6 of the 2018 AGC Press Release:

... In the  case  of  section 377A,  where  the  conduct  in question was between two consenting adults in a private place, the PP  had,  absent  other  factors,  taken  the position that  prosecution  would  not  be  in  the  public interest. This remains  the  position  today. [emphasis added]

(b) In the 2018 Straits Times article: The PP has consistently taken the position that, absent other factors,  prosecution  under  Section 377A  would not be  in  the  public  interest  where  the  conduct  was between two  consenting  adults  in  a  private  place. [emphasis added]

146 In our judgment, the legitimate expectation engendered by AG Wong’s representations is  that  the PP  will  not  prosecute  conduct  falling  within  the Subset under s 377A. We explain why with reference to the considerations set out in Chiu Teng at [119].

147 The  import  of  AG Wong’s representations is  that  s 377A  will  not  be enforced in respect of conduct falling within the Subset. There is no doubt that these representations were made by a person with actual authority to do so: they were made by AG Wong in his official capacity as the AG, in which capacity he exercised  the  powers  and  office  of  the PP.  These  representations  were publicly promulgated and, pertinently, were made less than a month after the filing of  the  first  of  the  three  related  originating  summonses  from  which  the present appeals  stem. Furthermore, AG Wong’s representations  are  legally significant, not  least  because  they  constitute  guidelines  on  how  the PP  will exercise his prosecutorial discretion in relation to s 377A offences. Indeed, and as we have already noted, the parties largely acknowledge the legal significance of these  representations. Finally, giving  effect  to  the  legitimate  expectation engendered by these representations, subject to the reservation noted at [138] above, will  not  result  in  a  breach  of  the  law  or  of  Singapore’s international obligations. Nor is  there  any  indication  that  giving  effect  to  this  legitimate expectation will infringe the accrued rights of any member of the public, or that this legitimate expectation is somehow outweighed by an overriding national or public interest.

=Our answer to the Anterior Question=

148 To  recapitulate,  the  parties  largely  agree  that  the  political  package  – specifically, the representations made by AG Wong in 2018 – has a bearing on the constitutionality  of  s 377A,  and  that  these  representations  are  legally significant. We have  identified  the  doctrine  of  substantive  legitimate expectations as  the  basis  on  which  these  representations  can  be  said  to  have legal force,  albeit  to  the  limited  extent  to  which  we  have  recognised  that doctrine. The final  question  that  remains  is  whether  the  intent  underlying AG Wong’s representations would be  sufficiently  realised  if  we  confined ourselves to the legitimate expectation identified at [146] above, namely, that the PP will not prosecute conduct falling within the Subset under s 377A. 149 We preface our decision on this point by stressing that we are relying on the doctrine of substantive legitimate expectations only in so far as the Anterior Question (as framed at [116] above) is concerned. With this in mind, 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 as to the prosecutorial policy that applies to conduct falling within the Subset. In holding as we do, we do not overlook the difficulty of the issues that were raised in Starkstrom.

150 It naturally flows from our holding that prosecutions under provisions such as ss 119 and 176 of the PC should not be instituted where the underlying offence is one under s 377A. In the same vein, offences under s 424 of the CPC should not be prosecuted where the “arrestable offence” (as statutorily defined) is one under s 377A. However, nothing in our holding affects the right of the police to investigate all conduct, including any conduct falling within the Subset and/or amounting to an offence under s 377A (see [113] above). Nor does our holding constrain the PP’s right to prosecute conduct falling outside the Subset where such conduct violates any other law, or impact the duties applicable to others arising,  for  instance,  from  their  awareness  of  or  participation  in  such conduct, whether actual or intended. 151 One might question why s 377A should be held to be unenforceable in its entirety even though the actual expectation that has arisen is only to the effect that no  prosecutions  will  be  brought  in  respect  of  conduct  falling  within  the Subset (see [146] above). To this end, we first highlight that our finding is of modest consequence  since  it  remains  the  prerogative  of  the AG  of  the  day  to decide  and  declare  that  he  will  no  longer  follow  the  prosecutorial  policy articulated by AG Wong in 2018. Further, to the extent that the protection we accord somewhat  exceeds  the  precise  ambit  of  AG Wong’s representations, there is nothing to indicate that the additional aspects covered by our order runs contrary to AG Wong’s actual intentions as the PP. Rather, it seems that they were simply  not  within  his  focus  at  the  time  (see  [107]  above). If we  are mistaken on this, as we have just noted, it remains open to AG Wong to indicate with reasonable  notice  that  he  does  after  all  intend  to  exercise  the AG’s prosecutorial prerogative  in  relation  to  the  additional  matters  covered  by  our holding. Until such time, our holding would have the effect of:

(a) providing  homosexual  men  with  the  full  measure  of accommodation contemplated by the Government and expressed by the Prime Minister during the s 377A Debates; (b) minimising the prevailing legal untidiness and avoiding most of the uncertainties that would persist if we were to adopt a more restricted solution, as we explain at [152] below; and

(c) preserving the legislative status quo on s 377A and reserving the matter of  its  retention  or  repeal  for  further  consideration  by  the Government and Parliament at an appropriate time. 152 It follows that our holding is not legally insignificant. Instead, it gives legal effect to AG Wong’s representations without importing the uncertainties that would otherwise continue to plague homosexual men (see [97]–[100] and [103]–[108] above). Such uncertainties are fundamentally antithetical to the rule of law, as we earlier noted (see [109] above). It will also be recalled that a central tenet of the Government’s position was the desire to  ensure  that  homosexual men could live peacefully, free from harassment, in our society. As we alluded to at  [114(d)]  above,  the  legal  uncertainties  that  homosexual  men  would continue to face unless s 377A is held to be unenforceable in its entirety (subject to the qualifications set out at [149]–[150] above) might fairly be regarded as giving rise  to  a  sense  of  harassment,  and  must  therefore  be  minimised  if  the political package  is  to  be  given  full  legal  effect. Our finding  therefore  gives practical legal  effect  to  both  the  political  compromise  on  s 377A  that  the Government struck  in  2007  and  the  legitimate  expectation  engendered  by AG Wong’s representations. 153 Given our finding that the legal effect of AG Wong’s representations is that s 377A may not be enforced in its entirety unless and until the AG of the day signals a change in the prosecutorial policy, the appellants cannot be said to face any real and credible threat of prosecution under this provision at this time. It follows that there is in fact no controversy and, at present, no threat of any violation  of  their  rights  under  Arts 9,  12  and  14  (see  Tan  Eng  Hong (Standing) at [112]). The appellants hence do not have standing to mount the present constitutional challenges against s 377A. Although we nevertheless set out below  our  views  on  the  constitutional  issues  that  they  have  raised,  we emphasise  that  our  analysis  of  those  issues  is  purely  obiter  since  they  do  not arise for our determination in these appeals. 154 We  end  this  section  by  reiterating  that  our  recourse  to  the  doctrine  of substantive legitimate expectations should be regarded as wholly exceptional – necessitated only  by  the  imperative  of  according  legal  effect  to  AG Wong’s representations, and a consequence of the congruent positions of Parliament, the Government and the AG. Section 377A has not been repealed, but neither can it be enforced. 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.

=Whether sexual orientation is immutable=

155 We  now  consider  Mr Thuraisingam’s and Mr Ravi’s  argument  on  the immutability of sexual orientation. Relying on the expert evidence adduced in the proceedings  below,  they  argue  that  sexual  orientation  cannot  be  wilfully changed and is not caused or influenced by socio-environmental factors. On this basis, they  submit  that  s 377A  effectively  criminalises  a  class  of  persons  for their sexual  identity  and  is  thus  absurd  and  not “law” within  the  meaning  of Art 9(1).

156 Despite Mr Thuraisingam’s best efforts to persuade us otherwise, we are not satisfied that it is properly within the court’s remit to decide whether sexual orientation is  immutable. It bears  emphasising  that  Dr Tan  and  Mr Ong,  the appellants in CA 54 and CA 55 respectively, are not urging the court to find that their sexual  orientation  is  immutable. Rather, they  are  urging  us  to  hold  that sexual orientation is immutable as a matter of general scientific fact. This is not a holding that we are entitled to make, for the court is concerned not with the laws of nature but with man-made laws to govern society. 157 As  was  stated  in  Mohammad  Faizal  bin  Sabtu  at  [27],  the  judicial function:

... is premised on the existence of a controversy either between a State and one or more of its subjects, or between two or more subjects of  a  State. The judicial  function  entails  the  courts making a  finding  on  the  facts  as  they  stand,  applying  the relevant law  to  those  facts  and  determining  the  rights  and obligations of the parties concerned for the purposes of governing their relationship for the future. ... [emphasis added]

The court’s role, put simply, is to pronounce the rights of the parties inter se. However, the scientific question which Dr Tan and Mr Ong have brought before us is not confined to their legal rights or the dispute at hand, and instead  has wide-ranging implications  across  society. Moreover, the  question  whether sexual orientation is immutable calls for the application of the scientific method; it is not a question amenable to judicial resolution, having regard to the limited methods, tools or standards that are properly at our disposal (see Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal [2019] 2 SLR 216 at [60] and [65]). 158 Before us, Mr Thuraisingam indicated that he was seeking “recognition of just one small point: [c]an sexual orientation be voluntarily changed or not?” Although he submitted that this was “a very narrow question”, we respectfully disagree. The breadth  of  the  question  framed  by  Mr Thuraisingam  raises  an alarm  and  quite  clearly  indicates  that  the  question  is  in  fact  an  extra-legal scientific matter beyond the court’s purview. We reiterate that the court is only equipped to make findings of fact that pertain specifically to the case brought before it, and not to make sweeping pronouncements of scientific fact. 159 In any event, it is unnecessary for us to decide whether sexual orientation is immutable because this question is not determinative of  whether s 377A is constitutional. As Mr Thuraisingam acknowledged before us, even if we were to find that sexual orientation cannot be changed as a matter of volition, it would not necessarily follow that s 377A must be unconstitutional. Any argument to the effect  that  the  Government  can  never  regulate  against  immutable characteristics would  run  into  obvious  difficulties;  indeed,  Mr Thuraisingam disavowed any suggestion that he was mounting such an argument. To briefly illustrate why  any  such  argument  would  be  plainly  untenable,  the  scientific literature on  paedophilia  suggests,  to  some  extent,  that  paedophilia  may  be genetic and that paedophilic attractions may be immutable. Yet, no one would deem laws which criminalise sex with minors, such as ss 375(1)(b) and 376A(1) of the Revised PC, absurd or unconstitutional on the basis that they criminalise paedophiles for their identity. Similarly, kleptomania is a condition that, to some degree, may not be susceptible to volitional change, but there is simply no basis for asserting that laws which criminalise theft (such as ss 379  and 380 of  the Revised PC) are absurd and therefore not “law” within the meaning of Art 9(1). Whether sexual  orientation  is  immutable  thus  has  little  bearing  in  the  final analysis on whether s 377A falls afoul of Art 9(1). 160 We therefore decline to make a finding on whether sexual orientation is immutable. Consequently, there  is  no  need  for  us  to  delve  into  the  expert evidence adduced  by  the  parties. We only  add  that  we  were  not  particularly impressed by the quality of the expert evidence adduced on both sides. Among other things,  the  experts  appeared  to  conflate  sexual  attraction  with  sexual behaviour at  various  points  and  at  times  used  the  term  “choice”  rather imprecisely when discussing sexual orientation. =The proper interpretation of s 377A=

The applicable law on statutory interpretation
161 We turn now to the proper interpretation of s 377A. The starting point in statutory interpretation is s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the IA”),  which  mandates  a  purposive  approach  to  statutory interpretation. Section 9A(2)(a) of the IA provides that the court may consider extraneous material to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision. Pursuant to s 9A(2)(b) of the IA, extraneous material may be used to ascertain the meaning of a provision only if the provision is ambiguous or obscure, or if the ordinary meaning conveyed by the text of the provision, taking into account the statutory context and  the legislative purpose  of  the  written  law,  leads  to  a  manifestly  absurd  or unreasonable result. 162 The parties agree that s 377A should be interpreted with reference to the Tan Cheng Bock framework, which is as follows (see Tan Cheng Bock at [37]): (a) First,  the  court  should  ascertain  the  possible  interpretations  of the  provision  in  question,  having  regard  not  just  to  the  text  of  the provision but also to the context of that provision within the written law as a whole.

(b) Second,  the  court  should  ascertain  the  legislative  purpose  or object of the statute.

(c) Third, the court should  compare the possible interpretations of the text against the purposes or objects of the statute.

163 Mr Singh’s submissions  on  the  proper  interpretation  of  s 377A  are twofold. First, he argues that s 377A was intended to cover only non-penetrative sex acts  and  not  penetrative  sex  acts  as  well,  as  the  latter  were  already criminalised under  s 377  when  s 377A  was  enacted  in  1938. He submits  that while a “superficial linguistic interpretation of the words ‘grossly indecent’” [emphasis in original omitted] might lead one to conclude that penetrative sex acts fall within the scope of s 377A, a purposive interpretation of that provision would yield the opposite conclusion. Mr Singh further contends that no purpose would have been served in having s 377A criminalise penetrative sex acts when s 377 already punished the same conduct more harshly. Moreover, when s 377A was enacted  in  1938,  the  Legislative  Council  could  not  have  anticipated  the eventual repeal of s 377 such that there would have been a need for s 377A to overlap with  s 377  as  a  fallback. He thus  urges  us  to  find  that  s 377A  was intended to criminalise only acts of gross indecency between men that did not amount to unnatural offences under s 377, such that s 377A would not extend to penetrative sex acts.

164 Mr Singh’s  second  argument,  which  Mr Ravi  adopts,  is  that  the legislative purpose of s 377A was to suppress male prostitution. In this regard, he relies  on  extraneous  material  to  illustrate  that  the  colonial  authorities  had been vexed by the problem of rampant male prostitution in the period leading up to the enactment of s 377A. Mr Singh submits that since the real mischief targeted by s 377A was male prostitution, the provision is over-inclusive in its criminalisation of non-commercial sex acts and therefore violates Art 12. 165 Before  considering  Mr Singh’s arguments  and  interpreting  s 377A  in accordance  with  the  Tan  Cheng  Bock  framework,  we  observe  in  passing  that these arguments  are  internally  inconsistent. According to  Mr Singh,  the extraneous material that he has put forth suggests a concern with curbing male prostitution. If we were to accept that interpretation of the extraneous material, the suppression of male prostitution, by way of the enactment of s 377A, must surely entail the criminalisation of penetrative sex acts. However, the contextual interpretation of  s 377A  that  Mr Singh  urges  us  to  adopt  suggests  that  this provision was not concerned with penetrative sex acts at all. Apart from the fact that these  conclusions  are  contradictory,  neither  of  them  seems  to  us  to  be correct, as we explain below.

The first stage of the Tan Cheng Bock framework
166 The first stage of the Tan Cheng Bock framework requires us to ascertain the possible interpretations of s 377A, having regard to its text and its context within the written law (that is to say, the PC) as a whole. To recapitulate, s 377A provides as follows:

Outrages on decency
377A. 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. [emphasis added]

167 In  our  judgment,  the  only  possible  interpretation  of  the  words  “gross indecency” is one that: (a) includes penetrative sex acts; and (b) is not limited to male  prostitution. On a  plain  reading,  the  term  “gross indecency” cannot sensibly be limited to non-penetrative sex acts and must extend to penetrative sex acts. We echo  our  observation  in  Lim  Meng  Suang (CA)  (at  [133])  that “[a]ny other interpretation would be illogical since it cannot be denied that acts of penetrative sex constitute the most serious instances of the possible acts of ‘gross indecency’” [emphasis in original]. Nor is the ordinary meaning of the term “gross indecency” limited to male prostitution – nothing in the language of s 377A suggests such a meaning. Had Parliament intended to significantly circumscribe s 377A by excluding penetrative sex acts or non-commercial sex acts from the acts of gross indecency criminalised thereunder, one would have expected Parliament to have done so expressly.

168 We pause here to address Mr Singh’s submission that the “written law” that should be considered at the first stage of the Tan Cheng Bock framework includes the MOO. He argues that s 377A should be interpreted in the context of both  s 23  of  the  MOO  and  s 377,  and  that  such  an  interpretation unambiguously points  to  the  conclusion  that  s 377A  excludes  penetrative  sex acts. With respect, this submission flies in the face of our decision in Tan Cheng Bock, which made it clear (at [37(a)]) that only the statute in which the provision in question is contained (in this case, the PC) constitutes relevant context at the first stage. The MOO might become relevant, if at all, at the second stage – that is to say, when ascertaining the legislative purpose or object of the PC. We add that the references in ss 9A(1) and 9A(2) of the IA to “the interpretation of a provision of a written law” [emphasis added] also make it clear that the “written law” that is  relevant  at  the  first  stage  of  the  Tan  Cheng  Bock  framework  is confined to the statute in which the provision in question is contained. 169 Mr Singh’s reliance on s 377 to interpret s 377A at the first stage of the Tan Cheng Bock framework is, with respect, similarly misplaced. While s 377A should be interpreted with regard to not only its text but also its context within the PC,  s 377  was  repealed  in  2007. In other  words,  the  PC  that  forms  the relevant context when interpreting s 377A today excludes s 377. 170 Having regard to the text of s 377A and its context within the PC as a whole, we conclude that the ordinary meaning of  the term  “gross indecency” unambiguously includes  penetrative  sex  acts  and  is  not  limited  to  male prostitution. With this in mind, we turn to the second and third stages of the Tan Cheng Bock framework.

The second and third stages of the Tan Cheng Bock framework
171 The second stage of the Tan Cheng Bock framework requires the court to ascertain the legislative purpose or object of the specific provision in question (namely, s 377A) and of the part of the statute (in this case, the PC) in which the provision is situated. The court then moves to the third stage and compares the possible interpretations of the provision against the purpose or object of the relevant part  of  the  statute. An interpretation  which  furthers  the  purpose  or object of the written text should be preferred to an interpretation which does not (see Tan Cheng Bock at [37(c)] and [54(c)]).

172 We  emphasise  that  the  legislative  purpose  or  object  of  a  statutory provision should  ordinarily  be  gleaned  from  the  text  of  the  provision  in  its statutory context. Primacy ought to be accorded to the text of the provision and its statutory context over any extraneous material (see Tan Cheng Bock at [43] and [54(c)(ii)]).

173 Section 377A criminalises acts of “gross indecency” between “male person[s]”. The broad  way  in  which  s 377A  is  framed  militates  against Mr Singh’s arguments that it criminalises only non-penetrative sex acts and that it was  targeted  at  male  prostitution  (see  also  [167]  above). Furthermore, although s 377A  is  listed  under  the  section  headed  “Sexual offences”  in Chapter XVI of the PC (which covers “Offences affecting the human body”), it is  situated  between  the  offences  of  sexual  penetration  of  a  corpse  and  sexual penetration with  a  living  animal. What the  latter  offences  criminalise  are  not assaults on bodily integrity per se, but the affronts to societal morality that the prohibited acts  constitute. This suggests  that  the  legislative  purpose  of  the specific part of the PC in which s 377A is situated is to uphold public morality. Based on the text and the context of s 377A, we agree with the Judge that the legislative purpose of s 377A was likewise to safeguard public morals (see the Judgment at [146(d)]). The extraneous material before us did not persuade us otherwise, for the reasons that we explain below. =A preliminary observation on the extraneous material before us= 174 Before  analysing  the  extraneous  material  before  us,  we  make  the preliminary observation that this material is of limited relevance and utility for two reasons. First, since we have found that the plain meaning of the term “gross indecency” clearly includes penetrative sex acts  and  is  not  limited  to  acts involving male prostitution (see [167] and [170] above), the extraneous material can only be used to confirm, and not to  alter or  supplant, that plain meaning (see s 9A(2)(a) of the IA and Tan Cheng Bock at [47]–[51]). As we emphasised in Tan  Cheng  Bock  at  [50],  purposive  interpretation  is  not  an  excuse  for rewriting a  statute;  judicial  interpretation  is  generally  confined  to  giving  a statutory provision a meaning that its language can bear. It is for this reason that extraneous material may be used to ascertain the meaning of a provision where the provision is ambiguous or obscure (see s 9A(2)(b)(i) of the IA), but not to override the  express  language  of  the  provision,  save  in  the  very  limited circumstances identified in s 9A(2)(b)(ii) of the IA.

175 We  highlighted  this  point  to  Mr Singh  at  the  hearing. In response,  he argued  that  it  was  ambiguous  whether  s 377A  was  intended  to  overlap  with s 377 and,  consequently,  whether  s 377A  criminalises  both  penetrative  and non-penetrative sex acts. On that basis, he contended that it was permissible to consider the extraneous material in order to ascertain the meaning of s 377A. 176 With respect, it is untenable for Mr Singh to argue, on the one hand, that s 377A was  clearly  intended  to  criminalise  only  non-penetrative  sex  acts between men (as he did in his written submissions), and to contend, on the other hand, that recourse to extraneous material is permissible because of the apparent ambiguity as to whether s 377A was intended to cover both penetrative and non-penetrative sex acts (as he did in his oral submissions). These two positions are mutually exclusive. It seemed to us that Mr Singh’s primary position was the former and that the latter position was only adopted to admit extraneous material to vary the plain meaning of s 377A. In our view, any ambiguity in the ordinary meaning of s 377A is more imagined than real. As we pointed out to Mr Singh, in order to find the ambiguity in the meaning of s 377A that he contended for, one would have to find that a possible interpretation of s 377A, based on  the express language  of  the  provision,  is  that  the  provision  covers  only non-penetrative sex  acts. If that  were  so,  the  extraneous  material  could  then arguably assist the court when it compares the various possible interpretations of the text of s 377A. That, however, is not the case. Indeed, the plain language of s 377A pulls in the very opposite direction, as we have shown. 177 Second, it appears to us that the court should be especially cautious when relying on  extraneous  material  in  cases  such  as  the  present  that  involve legislation pre-dating s 9A of the IA. Section 377A was enacted at a time when recourse to  extraneous  material,  whether  legislative  or  non-legislative,  would have been  wholly  unthinkable  when  discerning  the  legislative  purpose  of  a statutory  provision. Put another  way,  if  a  person  had  been  prosecuted  for sodomy under s 377A in 1938 or even in the decades thereafter, he would not have been in a position to challenge that prosecution by adducing extraneous material to dispute the legislative purpose of s 377A. Not only was at least some of such material unavailable until its declassification many years later, it was surely also  beyond  the  contemplation  of  the  Legislative  Council  in  1938  that such material,  which  pre-dated  the  enactment  of  s 9A  of  the IA  and  the introduction of the Tan Cheng Bock framework, could even be relied upon to ascertain the  legislative  purpose  of  s 377A. The fine-grained  analysis  of extraneous  material  is  therefore  entirely  artificial  in  the  context  of  legislation that pre-dates  the  legislative  amendments  and  legal  framework  that  permit recourse to extraneous material in the first place. It follows that non-legislative extraneous material is of even more limited utility (if any at all) to the task at hand, which is to ascertain the legislative purpose of s 377A. 178 Quite apart from the caution that we have just raised, there is  another reason why non-legislative material, in particular, would generally be unhelpful in shedding  light  on  the parliamentary  intention  behind  a  statutory  provision. We echo the observations made in Tan Cheng Bock (at [52] and [54(c)(iv)]) that in deciding  whether  to  consider  extraneous  material  at  all  (and,  if  so,  what weight to place on it), the relevant considerations are: (a) whether the material is clear and unequivocal; (b) whether it discloses the mischief targeted by or the legislative intention  underlying  the  statutory  provision  in  question;  and (c) whether it is directed at the very point of statutory interpretation in dispute. These considerations naturally mean that the court is primarily concerned with legislative material  when  it  undertakes  the  task  of  ascertaining  Parliament’s intention in  enacting  a  statutory  provision,  a  point  that  the  Judge  highlighted (see the Judgment at [52]).

The extraneous material
179 Despite the limited relevance of the extraneous material before us, we nonetheless  proceed  to  analyse  that  material,  which  Mr Singh  relies  on  to buttress  his  arguments  that  s 377A  criminalises  only  non-penetrative  sex  acts and that its legislative purpose was to combat male prostitution. We reiterate the inconsistency in  these  positions,  which  we  have  already  explained  at  [165] above. The extraneous material comprises: (a) the  speech  made  by  Attorney-General C G Howell (“AG Howell”) in the Legislative Council on 13 June 1938, in moving the Penal Code (Amendment) Bill that was published on 29 April 1938 (“the 1938  Penal  Code  (Amendment)  Bill”) to its second  reading (“AG Howell’s speech”);

(b) the  section  in  the  1938  Penal  Code  (Amendment)  Bill  titled “Objects and Reasons” (“the Objects and Reasons”); (c) the Annual Reports on the Organisation and Administration of the Straits Settlements Police and on the State of Crime (“Annual Crime Reports”) for the years 1934 to 1938; (d) an  addendum  of  unknown  provenance  (“the Addendum”)  to  a 1940  report  titled “Prosecutions, The Malayan ‘Sexual Perversion’ cases” from  the  local  authorities  to  Sir G Gater,  Permanent  Under-Secretary of State for the Colonies (“the Malayan Prosecutions Memo”); (e) a  report  dated  24 March  1938  from  Sir Shenton  Thomas,  the Governor and  High  Commissioner  of  the  Straits  Settlements,  to  the Secretary of  State  for  the  Colonies,  concerning  the  resignation  of  one Mr H Moses from service (“the Moses Report”); and

(f) the minutes of the Executive Council meeting  held on 18 May 1938 (“the ECM minutes”).

180 We  first  examine  the  legislative  extraneous  material,  namely, AG Howell’s speech and the Objects and Reasons. It should  be  noted  at  the outset that these items were considered at length in Lim Meng Suang (CA), in which we concluded that s 377A was not limited to non-penetrative sex acts nor to male prostitution. Having reconsidered this material, we remain of the same view.

(1) AG Howell’s speech and the Objects and Reasons 181 The relevant portion of AG Howell’s speech reads as follows: With regard to clause 4, it is unfortunately the case that acts of the nature described have been brought to notice. As the law now stands, such acts can only be dealt with, if at all, under the Minor Offences Ordinance, and then only if committed in public. Punishment under the Ordinance is inadequate and the chances of detection are small. It is desired, therefore, to strengthen the law and  to  bring  it  into  line  with  English  Criminal  Law,  from which this clause is taken ... [emphasis added] 182 The “clause 4” referred to in the above extract was cl 4 of the 1938 Penal Code (Amendment)  Bill,  which  introduced  s 377A  into  the  1936 PC. AG Howell’s speech also refers to  the  inadequate  punishment  provided  for under the  MOO. It is  undisputed  that  this  was  a  reference  to  the  punishment prescribed by s 23 of the MOO, which read as follows: Any person who is found drunk and incapable of taking care of himself, or  is  guilty  of  any  riotous,  disorderly  or  indecent behaviour, or of persistently soliciting or importuning for immoral purposes in  any  public  road  or  in  any  public  place  or  place  of public amusement or resort, or in the immediate vicinity of any Court or of any public office or police station or place of worship, shall be  liable  to  a  fine  not  exceeding  twenty  dollars,  or  to imprisonment of either description for a term which may extend to fourteen days, and on a second or subsequent conviction to a fine not exceeding twenty-five dollars or to imprisonment of either description for a term which may extend to three months. [emphasis added in italics and bold italics]

183 Under  s 23,  a  first-time  offender  was  liable  to  a  fine  not  exceeding 20 dollars or  an  imprisonment  term  of  up  to  14 days,  while  a  repeat  offender was liable to a fine not exceeding 25 dollars or an imprisonment term of up to three months. Section 23 criminalised (among other things) indecent behaviour and persistently soliciting or importuning for immoral purposes, but only if such conduct took place in public. We note that, on a plain reading of s 23, indecent behaviour and persistently soliciting or importuning for immoral purposes were distinct and separate offences. This was what was held in Lim Meng Suang (CA) (at [132]) and we see no reason to depart from that holding. 184 In his speech, AG Howell stated that “[a]s the law now stands, such acts can only be dealt with, if at all, under the [MOO], and then only if committed in public”. What is apparent is that s 377A was intended to target acts that were, at least in some circumstances, already offences under s 23. The enactment of s 377A therefore appeared to have been aimed at extending the acts that were prohibited under  s 23  to  acts  in  private,  and  at  enhancing  the  then  applicable penalties. The question  that  remains  is  which  acts  (that  were  already criminalised  under  s 23)  s 377A  was  meant  to  target:  (a) indecent  behaviour; (b) persistently soliciting or importuning for immoral purposes; or (c) both. 185 To  answer  this,  we  need  to  consider  AG Howell’s intimation of the Legislative Council’s desire to “bring [the law] into line with English Criminal Law”. It is  undisputed  that  the  “English  Criminal  Law”  referred  to  by AG Howell was s 11 (UK) of the 1885 UK Act, which criminalised acts of gross indecency between  men  and  from  which  cl 4  of  the  1938  Penal  Code (Amendment) Bill was derived. Section 11 (UK) read as follows:

Outrages on decency
. Any male person who, in public or private, commits, or is  a  party  to  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  guilty  of  a misdemeanor, and being convicted thereof shall be liable at the discretion of  the  court  to  be  imprisoned  for  any  term  not exceeding two years, with or without hard labour. [emphasis added]

Section 11 (UK) criminalised  acts  of  gross  indecency  between  men,  whether committed in  public  or  in  private. In contrast,  s 23  of  the  MOO  criminalised indecent behaviour (among other things), but only if such behaviour occurred in public. Section 377A was therefore intended to “strengthen the law [in the Straits Settlements]  and to bring it into line with English Criminal Law” by criminalising  acts  of  gross  indecency  between  men,  whether  committed  in public  or  in  private. It is  for  this  reason  that  s 377A  largely  replicates  the language of s 11 (UK).

186 We agree with the Judge that, given the articulated legislative intent to bring the law in the Straits Settlements “into line with English Criminal Law”, the Legislative  Council  intended  for  all  acts  of  gross  indecency  that  were covered by s 11 (UK) to fall within the scope of s 377A, such that a consistent set of laws would govern all such conduct in the United Kingdom and its then colony, Singapore  (see  the  Judgment  at  [121]). This, then,  begs  the  question whether s 11 (UK) criminalised both penetrative and non-penetrative sex  acts or only non-penetrative sex acts – a question that does not lend itself to any easy answers, given that the purpose of s 11 (UK) remains obscure. 187 As  was  noted  in  Lim  Meng  Suang (CA)  at  [117],  there  was  no parliamentary  debate  on  the  substance  of  s 11 (UK)  prior  to  its  enactment. Section 11 (UK) was introduced at the eleventh hour in the House of Commons during a late-night debate at the report stage of the Criminal Law Amendment Bill 1885,  with  few  MPs  in  attendance  (see  United  Kingdom,  House  of Commons,  Parliamentary  Debates  (6 August  1885)  vol 300  at  cols 1397–1398  (Mr Henry  Labouchere,  MP  for  Northampton),  (accessed 21 February 2022). It had nothing to do with the general purpose of the  1885  UK  Act,  which  was  stated  in  the  preamble  to  the  Act  to be “the Protection  of  Women  and  Girls,  the  suppression  of  brothels,  and  other purposes”. The legislative purpose of s 11 (UK) is therefore none too clear. 188  In the absence of direct or clear evidence as to the legislative purpose of s 11 (UK), the Judge relied on three pieces of extraneous material to discern that purpose.  These  were:  (a) the  case  of  The  King  v  Barron  [1914]  2 KB  570 (“Barron”); (b) the transcripts of and other reference material relating to Oscar Wilde’s trials; and  (c) the  United  Kingdom  Report  of  the  Committee  on Homosexual Offences and Prostitution (Cmnd 247, 1957) (Chairman: Sir John Wolfenden) (“the Wolfenden Report”) (see the Judgment at [122]–[128]). 189 We deal first with Barron, a case in which the appellant was indicted on a charge of gross indecency under s 11 (UK) in respect of an offence involving sodomy. The Judge  inferred  from  the  use  of  s 11 (UK)  to  prosecute  offences involving sodomy, in cases such as Barron, that the scope of the provision went beyond non-penetrative  sex  acts  and  male  prostitution  (see  the  Judgment  at [123]–[125]). With respect, we disagree with the Judge in so far as we are not inclined to rely on Barron to ascertain the legislative purpose of s 11 (UK) and, in turn, that of s 377A. We take this position for two reasons.

190 First, as we mentioned earlier (see [172] above), the legislative purpose of a  statutory  provision  should  ordinarily  be  discerned  from  its  text  and  its context within the written law in which it is contained. While regard may be had to relevant extraneous material, case law as decided by the Judiciary should be scrutinised with utmost care to ascertain whether it in fact sheds any light on the Legislature’s intention in  enacting  the  statutory  provision  in  question. The possibility that  the  courts  in  the  United  Kingdom  interpreted  s 11 (UK)  in  a manner that was in fact inconsistent with the legislative intention underlying its enactment cannot  be  precluded. Moreover, because  the  way  in  which  the prosecuting authorities  deployed  s 11 (UK)  may  not  necessarily  have corresponded to the legislative intention behind its enactment, we are unwilling to place weight on cases such as Barron in deciphering the legislative purpose of s 11 (UK).

191 Second, even if we were to accept that the courts’ interpretation of a statutory provision may, in some cases, be of use in illuminating the legislative purpose of  that  provision,  it  bears  emphasising  that  Barron  concerned  a different  statute  and  one  of  unclear  pedigree  –  namely,  s 11 (UK),  and  not s 377A. While AG Howell’s speech suggests an endeavour to bring the law in the Straits Settlements into line with that in England, the reasons for such an endeavour by  the  Legislative  Council  may  be  quite  different  from  why s 11 (UK) was introduced in England. The same point was underscored in Lim Meng Suang (CA) at [118], where we highlighted that s 377A had been enacted some 53 years  after  the  inception  of  s 11 (UK)  in  England. The treatment  of s 11 (UK) in Barron is therefore of no assistance to our present inquiry into the legislative purpose of s 377A.

192 We  add  that,  in  any  event,  Barron  appears  to  contradict  Mr Singh’s position that s 11 (UK) and, hence, s 377A criminalise only non-penetrative sex acts. The appellant in Barron had previously been indicted for sodomy and had been acquitted. He was then indicted for committing an act of gross indecency on the  same  facts  as  those  upon  which  the  indictment  for  sodomy  had  been founded. His plea  of  autrefois  acquit  was  overruled,  whereupon  he  pleaded guilty to the gross indecency charge. Thereafter, he appealed on the basis that the judge had erred in rejecting his plea of autrefois acquit. 193 The English Court of Criminal Appeal dismissed the appeal. The court started from the premise (at 574) that the principle of autrefois acquit did not permit a person to be twice in peril of being convicted of the same offence. It then noted (at 576) that the appellant could not have been convicted of gross indecency at  the first trial. It also observed that “sodomy involves gross indecency and something else”, and that penetration was an essential element of sodomy but not of gross indecency. Finally, it concluded that the offence to which the  appellant  had  pleaded  guilty  at  the  second  trial  (namely,  gross indecency) was not the same as that of which he had been acquitted at the first trial (namely, sodomy).

194 It is unclear to us why the appellant could not have been convicted of gross  indecency  at  the  first  trial  despite  having  been  acquitted  of  sodomy. Mr Singh argues  that  this  was  because  the  offences  of  sodomy  and  gross indecency did  not  overlap;  therefore,  the  jury  could  not  have  convicted  the appellant of  gross  indecency  at  the  first  trial  on  the  facts  upon  which  his indictment for sodomy had been founded. This, however, is incorrect. As we noted above, the English Court of Criminal Appeal held that “sodomy involves gross indecency  and something else”  [emphasis  added]. In our  view,  this suggests that the two offences overlap and that sodomy is an aggravated form of gross indecency. On the other hand, Ms Tan submits that the reason why the jury could not have convicted the appellant of gross indecency at the first trial is a jurisdictional rule at common law that two indictments cannot be the subject of the  same  trial. The arguments  proffered  by  the  parties  do  not  provide particularly strong  support  either  way. Instead, what  is  crucial  is  that  the appellant was convicted of gross indecency at the second trial, on the very same facts which underpinned his indictment for sodomy at the first trial. This shows beyond peradventure  that  penetrative  sex  acts  could  constitute  acts  of  gross indecency under  s 11 (UK),  and  we  see  no  reason  why  the  position  under s 377A should be any different. 195 As regards the transcripts of and other reference material pertaining to Oscar Wilde’s trials,  we  first  note  that  none  of  the  counsel  for  the  appellants rely on this material. The Judge observed that Wilde faced multiple charges of gross indecency  under  s 11 (UK),  and  that  evidence  of  his  having  committed sodomy was adduced in relation to some of those charges. While the first trial against Wilde resulted in a hung jury, he was convicted at the second trial of seven counts of gross indecency. For much the same reasons as those stated at [190]–[191] above, we decline to place any weight on the material relating to Wilde’s trials. Indeed, Mr Singh himself submits that this material is irrelevant in determining the scope of s 11 (UK). 196 In any event, while the juries in both of Wilde’s trials did not provide any reasons for their decisions, what is clear is that at least two of Wilde’s seven convictions for gross indecency were based on his having committed sodomy, rather than any non-penetrative sex acts, with one Charles Parker. The material relating to Wilde’s trials, much like Barron, thus confirms that penetrative sex acts could amount to acts of gross indecency under s 11 (UK). This undermines Mr Singh’s argument that s 377A criminalises only non-penetrative sex acts. 197 We turn next to the Wolfenden Report. This report was prepared by the Departmental Committee  on  Homosexual  Offences  and  Prostitution  (“the Wolfenden  Committee”),  which  was  formed  by  the  United  Kingdom Government to  comprehensively  review  homosexual  offences  in  the  United Kingdom and to recommend legislative changes. In particular, the Wolfenden Committee considered arguments for and against the abolition of the offence of gross indecency. It observed (at para 104 of the Wolfenden Report) that gross indecency was “not defined by statute”  but  “appear[ed]  ... to cover  any  act involving sexual indecency between two male persons”, an observation that the Judge adopted (see the Judgment at [122]). 198 Ms Tan highlights the Wolfenden Committee’s observation (at para 105 of the Wolfenden Report) that the offence of gross indecency usually took one of three  forms,  one  of  which  was  “oral-genital  contact”,  meaning  penetrative oral sex. In other  words,  s 11 (UK)  appeared  to  cover  penetrative  sex  acts. Ms Tan adds that the Wolfenden Report does not cite the suppression of male prostitution as  a  reason  for  the  retention  of  the  offence  of  gross  indecency, which puts paid to any suggestion that the purpose of s 377A was limited to the curbing of male prostitution. 199 According to Mr Singh, however, the Wolfenden Report shows that the offence of gross indecency (under s 11 (UK)) did not overlap with the offence of sodomy; accordingly, s 377A does not overlap with s 377. His argument can be summarised as follows: (a) Paragraph 107  of  the  Wolfenden  Report  states  that  s 11 (UK) “merely extended  to  homosexual  indecencies  other  than  buggery  the law which previously applied to buggery” [emphasis added in italics and bold italics]. Mr Singh contends  that  this  paragraph  shows  that s 11 (UK) was not intended to cover sodomy. (b) Buggery, which was originally criminalised under the Buggery Act 1533 (c 6) (UK) and later criminalised as sodomy under s 61 of the Offences Against the Person Act 1861 (c 100) (UK) (“the UK OAPA”), meant anal penetration only; it did not include oral penetration. The fact that the Wolfenden Report states that gross indecency under s 11 (UK) covered oral-genital contact, but omits to state that it covered sodomy, shows that sodomy and gross indecency were non-overlapping offences. (c) The  fact  that  s 11 (UK)  covered  oral  penetration  does  not buttress Ms Tan’s case. Although sodomy (under s 61 of the UK OAPA) meant anal  penetration  only,  s 377  had  been  interpreted  to  cover  both oral penetration  and  sodomy  by  the  time  s 377A  was  enacted. As mentioned, sodomy (under s 61 of the UK OAPA) and gross indecency (under s 11 (UK)) were non-overlapping offences since only the latter covered oral penetration. In the same vein, the offences under ss 377 and 377A did not overlap – only the former covered oral penetration.

200 Curiously,  neither  Mr Singh  nor  Ms Tan  referred  to  the  following paragraphs of the Wolfenden Report, which we find enlightening: 88. Other  arguments  of  a  more  general  kind  have  ... been adduced in  favour  of  the  retention  of  buggery  as  a  separate offence. It is urged that there is a long and weighty tradition in our law that this, the ‘abominable crime’ (as earlier statutes call it), is in its nature distinct from other forms of indecent assault or gross indecency ...

... 92.  It will be observed that the scale of penalties proposed in the  preceding  paragraph  increases  the  maximum  penalty that can at present be imposed for acts of gross indecency other than buggery  committed  by  a  man  over  twenty-one  with  a consenting partner below that age. ... ... 106.  Buggery and attempted buggery have long been criminal offences, wherever  and  with  whomsoever  committed;  but,  in England  and  Wales  at  least,  other  acts  of  gross  indecency committed in  private  between  consenting  parties  first  became criminal offences in 1885. Section 11 of the [the 1885 UK Act] contained the  provisions  now  re-enacted  in  Section 13  of  the Sexual Offences Act, 1956. [emphasis added]

The aforesaid  paragraphs  of  the  Wolfenden  Report  speak  with  one  voice  – buggery and attempted buggery were acts of gross indecency, which explains the reference to s 11 (UK) criminalising “other” acts of gross indecency. In the same vein, para 88 of the Wolfenden Report discusses whether there was even a need  to  retain  buggery  as  a  separate  offence  when  it  was  but  one  of  many forms of  indecent  assault  or  gross  indecency. The Wolfenden  Report  thus confirms that the acts of gross indecency criminalised under s 11 (UK) include penetrative sex acts such as buggery (or, in other words, sodomy). 201 It appears that Mr Singh misunderstood the sentence in para 107 of the Wolfenden Report – namely, that s 11 (UK) “merely extended to homosexual indecencies other than buggery the law which previously applied to buggery” [emphasis added in italics and bold italics] – to mean that s 11 (UK) covered acts of  gross  indecency  except  for  buggery  (see  [199(a)]  above). On the contrary, it is clear from our foregoing analysis that the Wolfenden Committee intended to convey that s 11 (UK) was a widening provision. Section 11 (UK) expanded the law which had previously applied to buggery by creating a wider offence that criminalised both buggery and acts of gross indecency falling short of buggery (which had not hitherto been criminalised). Furthermore, and unlike what Mr Singh suggests, it is immaterial that s 11 (UK) did not explicitly cover sodomy. There was simply no such need because sodomy could simultaneously be a  stand-alone  offence  under  s 61  of  the  UK  OAPA  and  fall  under  the  less serious but wider offence of gross indecency under s 11 (UK). 202 We note that the Wolfenden Report states (at para 105) that the offence of gross indecency under s 11 (UK) “usually [took] one of three forms: either ... mutual masturbation; or ... some form of intercrural contact; or oral-genital contact”. Although the last of these is a form of penetrative sex, nothing much turns on  this. Simply put,  the  fact  that  the  offence  of  gross  indecency  under s 11 (UK) “usually” assumed the form of these sex acts does not mean that that was invariably or necessarily the case, or that the offence did not or could not extend to other forms of penetrative and non-penetrative sex acts. Hence, even though Ms Tan and Mr Singh each submitted on the significance of the fact that s 11 (UK) appeared  to  cover  oral  penetration,  we  place  little  weight  on  those submissions.

203 In  summary,  while  we  are  unable  to  draw  a  firm  conclusion  as  to  the legislative purpose  of  s 11 (UK),  there  is  on  balance  more  support  for  the position that the provision covered penetrative sex acts. Before us, the parties did not  expend  much  energy  or  time  on  the  legislative  purpose  and  proper interpretation of s 11 (UK). We thus say no more on s 11 (UK), beyond noting that nothing in the foregoing analysis alters our finding that s 377A covers both penetrative and non-penetrative sex acts.

204 We  next  examine  the  Objects  and  Reasons,  which,  according  to Mr Singh,  show  that  s 377A  criminalises  only  non-penetrative  sex  acts. The relevant part of the Objects and Reasons reads as follows: Clause 4 introduces  a  new  section  based  on  section 11  of  the Criminal Law Amendment Act 1885 (48 and 49 Vict. c 69). The section makes punishable acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of section 377 of the [1936 PC]. [emphasis added]

Section 377 criminalised penetrative sex acts, whether committed in public or in private, and whether consensual or non-consensual. Mr Singh argues that it is “crystal clear” from the Objects and Reasons that s 377A does  not  cover penetrative sex acts, which fell within the scope of s 377 instead. 205 We respectfully disagree. In our view, the Objects and Reasons do not lead inexorably to the conclusion that Mr Singh contends for. The Objects and Reasons state that s 377A “makes punishable acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of section 377”. Acts of gross indecency could, however, be made punishable in two  ways:  (a) by  creating  a  new  offence  which  criminalised  only  non-penetrative sex acts (such that there would be no overlap between ss 377 and 377A); or (b) by creating a new offence that covered both penetrative and non-penetrative sex acts (such that penetrative sex acts would be covered by both ss 377  and  377A). The plain  language  of  both  the  Objects  and  Reasons  and s 377A itself is wide enough to support conclusion (b), and there is nothing to suggest that what the Legislative Council intended was conclusion (a). 206 Further, if s 377A was intended to cover only non-penetrative sex acts, as Mr Singh submits, AG Howell’s allusion to the need to supplement s 23 of the MOO  would  be  puzzling. Mr Singh’s argument  would  mean  that  the Legislative Council had intended to supplement s 23 – which criminalised both penetrative and non-penetrative sex acts in public (as indecent behaviour) – by criminalising only non-penetrative sex acts committed in public or in private, to the exclusion  of  penetrative  sex  acts  committed  in  private. Even though penetrative sex acts committed in private were already offences under s 377 at the time that s 377A was enacted, AG Howell spoke of the need to supplement s 23 without  referring  to  s 377  at  all. The fact  that  penetrative  sex  acts committed in private were already criminalised under s 377 therefore does not entail the  conclusion  that  s 377A  was  intended  to  criminalise  only  non-penetrative  sex  acts  committed  in  private:  AG Howell  simply  highlighted  the need to supplement s 23, without suggesting that any overlap with s 377 was to be avoided. 207 We  also  note  that  while  AG Howell’s speech referred  to  the  need  to supplement the MOO, the Objects and Reasons speak of the need to supplement s 377. However, any  inconsistency  between  AG Howell’s speech and the Objects and  Reasons,  in  so  far  as  they  referred  to  the  need  to  supplement different statutes,  is  more  apparent  than  real. Turning first  to  AG Howell’s speech, it will be recalled that s 23 criminalised “indecent behaviour” (which would include,  among  other  things,  penetrative  sex  acts),  but  only  if  such behaviour occurred  in  public. Section 377A was  thus  intended  to  supplement s 23 by criminalising acts of gross indecency committed in private. The Objects and Reasons, on the other hand, articulate a need to supplement s 377, which criminalised penetrative  sex,  whether  committed  in  public  or  in  private. Section 377A therefore  simultaneously  supplemented  s 377  by  criminalising acts of gross indecency which fell short of penetrative sex. Read harmoniously, AG Howell’s speech and the Objects and Reasons support the construction that s 377A was  intended  to  criminalise  both  penetrative  and  non-penetrative  sex acts, whether committed in public or in private. This was also the conclusion which was reached in Lim Meng Suang (CA), and which we reaffirm:

134 ... [Section] 377A broadened the scope hitherto covered by s 377 to cover not only penetrative sex but also other (less serious) acts of ‘gross indecency’ committed between males. ... [A]cts of  penetrative  sex  are  the most serious  instances  of  the possible acts of ‘gross indecency’. ... 135 Returning to the comparison between s 377A and s 23 [of the  MOO],  s 377A  was  ... broader in  scope  than  s 23 inasmuch as  s 377A covered ‘grossly indecent’ acts between males in private as well. Such an analysis would explain why [AG] Howell referred to the need to supplement the [MOO] in his speech to the Straits Settlements Legislative Council ... and is in fact supported by the reference by [AG] Howell himself (in the same speech) to the need to capture acts which were committed in private as well (which acts, he pointed out, were not captured by the [MOO] as s 23 only covered acts committed in public). It would also explain why [AG] Howell further referred (as, indeed, did the  Objects  and  Reasons  ...) to the fact that s 377A  was based on  English  law  –  specifically,  on  [s 11 (UK)],  which (despite the lack of clarity as to its precise origins) has always been perceived as a provision having general application. 136 We  think  that  the  analysis  just  set  out  is  the  most persuasive because  it  resolves  what  appears  to  be  an inconsistency  (or  even  a  contradiction)  between  [AG] Howell’s Legislative Council speech ... on the one hand and the Objects and Reasons  ... on the other. But, if that be the case (ie, if s 377A was indeed meant to supplement s 377), it would then follow that  s 377A  itself  ought  to  be  given  the  same  general application as s 377, and – contrary to the Appellants’ argument – should not be confined only to male prostitution. [emphasis in original]

208 Mr Ravi claims that the acts that “[could] only be dealt with, if at all, under the [MOO], and then only if committed in public”, which AG Howell’s speech referred  to,  concerned  only  prostitution. According to  Mr Ravi,  since s 23 of the MOO criminalised acts of prostitution in public, “[t]he clear intention was for section 377A to strengthen the Police’s ability to deal with all forms of prostitution by criminalising private instances of male prostitution as well”. He therefore asserts  that  s 377A  was  enacted  to  suppress  male  prostitution. However, this assertion blatantly ignores the fact that s 23 criminalised not only persistently soliciting or importuning for immoral purposes, but also indecent behaviour, which  was  a  separate  and  distinct  offence  (see  [183]  above). To establish which limb of s 23 it was that s 377A aimed to strengthen, one must consider AG Howell’s express reference (in the very same speech) to the Legislative Council’s desire to bring the law in the Straits Settlements “into line with English Criminal Law”. As we have noted, the “English Criminal Law” that AG Howell spoke of was a reference to s 11 (UK) (see [185] above). While the origins and legislative purpose of s 11 (UK) are obscure, there is no evidence at all  to  suggest  that  it  criminalised  only  homosexual  sex  acts  with  male prostitutes. Indeed, none of the appellants has submitted any material to support such a proposition. 209 Mr Ravi’s argument is also  plainly  inconsistent  with  AG Howell’s speech. It is clear from AG Howell’s speech that s 377A was aimed at (among other things) extending the acts prohibited under s 23 of the MOO from public to private  acts,  but  in  respect  of  the  same  type  of  acts. On Mr Ravi’s case, however, the  acts  purportedly  targeted  by  s 377A  were  commercial  sex  acts between men, whereas the acts prohibited under s 23 were indecent behaviour and persistently  soliciting  or  importuning  for  immoral  purposes. Put another way, if  Mr Ravi’s  argument  were  accepted,  the acts that “[could] ... be dealt with, if at all, under the [MOO]” and the acts proscribed by s 377A would have been incongruent, contrary to AG Howell’s indications. Our interpretation, in contrast, coheres with AG Howell’s speech: the prohibited conduct under s 23 that AG Howell  alluded  to  was  indecent  behaviour,  while  the  acts  prohibited under s 377A were acts of gross indecency. Both provisions targeted penetrative and non-penetrative  sex  acts  between  men,  whether  of  a  commercial  or  non- commercial nature. Where they  differed  was  that  the  former  prohibited  only public acts, whereas the latter covered both public and private acts. 210 We add that neither AG Howell’s speech nor the Objects and Reasons even allude to male prostitution, which fortifies our conclusion that s 377A is a provision of general application and that acts of “gross indecency” encompass more than homosexual sex acts with male prostitutes.

(2) The 1934 to 1938 Annual Crime Reports

211 Having considered AG Howell’s speech and the Objects and Reasons, neither of  which  provide  a  compelling  case  for  Mr Singh’s and Mr Ravi’s position, we move on to the non-legislative extraneous material, beginning with the 1934  to  1938  Annual  Crime  Reports. We first  highlight  that  the  1936  to 1938  Annual  Crime  Reports  were  previously  considered  by  this  court  in  Lim Meng Suang (CA) (at [125]–[127] and [142]). The 1934 and 1935 Annual Crime Reports, however,  were  not  before  us  in  Lim  Meng  Suang (CA). Mr Singh submits that the 1934 to 1938 Annual Crime Reports, when viewed in totality, illustrate that male prostitution was a problem which only emerged in the period leading up to the passage of the 1938 Penal Code (Amendment) Bill, and which that Bill was intended to address by introducing s 377A into the 1936 PC. 212 As a preliminary matter, we are of the view that little weight should be placed on the Annual Crime Reports. As we emphasised in Tan Cheng Bock (at [52]), not all extraneous material that can potentially touch on the purpose of the  legislative  provision  in  question  is  relevant. The Annual  Crime  Reports, which were prepared by the Straits Settlements police, may well have set out the social and/or historical backdrop to the introduction of s 377A, but they were not targeted at the specific issue of the legislative intention underlying s 377A (see Tan Cheng Bock at [52(c)] and [54(c)(iv)]).

213 Be  that  as  it  may,  we  nonetheless  examine  the  1934  to  1938  Annual Crime Reports individually for completeness. Quite to the contrary of the point which Mr Singh and Mr Ravi sought to demonstrate, the 1934 and 1935 Annual Crime Reports  only  mention  female  prostitution  (under  the  heading  “Social Services”) and omit any mention of male prostitution. Male prostitution is first mentioned in passing under the heading “Social Services” in the 1936 Annual Crime Report, as follows: Social Services ... 40.  Prostitutes  are  no  longer  to  be  found  soliciting  in numbers or street parades; they find it more profitable to go to amusement  parks,  cafes,  dancing  places  and,  generally speaking, no  exception  can  be  taken  to  their  behaviour. Singapore, a port and a town combined, is not free from the very low type  of  prostitute. The lewd  activities  of  these  have  been sternly suppressed. Male prostitution  was  also  kept  in check, as and when encountered. [emphasis added in bold italics] 214 The  1937  Annual  Crime  Report  likewise  discusses  male  prostitution, albeit under the heading “Public Morals”: Public Morals

36. ... Soliciting in public was kept in check, a difficult and unpleasant type of work and one requiring ceaseless supervision.

... 38. The fact that the Police are not the deciding authorities in matters  of  public  morals  is  often  overlooked. The duty  of  the Police is to suppress offences. Offences against public decency are defined in the laws of the land. The presence of prostitutes on the  streets  is  no  offence. An offence  is  committed  only  if  a woman persistently solicits to the annoyance of a member of the public. The public  have  not  yet  come  forward  to  give  evidence that she does so. It would seem that in Singapore the concourse of East and West is alone responsible for such publicity as has been given to a state of affairs similar to that in Europe, where it passes almost unnoticed.

39. Widespread  existence  of  male  prostitution  was discovered and reported to the Government whose orders have been carried out.

A certain  amount  of  criticism  based  probably  upon  too little knowledge  of  the  actual  facts,  has  been  expressed against a policy the object of which is to stamp out this evil. Sodomy is a penal offence; its danger to adolescents is obvious; obvious  too,  is  the  danger  of  blackmail,  the demoralising effect  on  disciplined  forces  and  on  a  mixed community which  looks  to  the  Government  for  wholesome governing. [emphasis added in italics and bold italics]

215 Male prostitution similarly features in the 1938 Annual Crime Report, again under the heading “Public Morals”: PUBLIC MORALS

45. The  duty  of  the  Police  in  safeguarding  public  morals  is limited to enforcing the law. The slightest deviation from such a policy, in this matter more than in any other, would lead to the risk of very serious persecution or connivance. The law of the Colony is  based  on  the  law  of  the  United  Kingdom,  and  that human nature  is  not  subject  to  climatic  variations  is  well proved by a visit to, for instance, Jermyn Street, the dock area of Southampton, or street corners at Woolwich or Sandhurst at the recognised hours. The only difference is to be found in the text of  the  law  in  the  words  ‘persistently’  solicits. The courts have to be satisfied on this point by evidence independent of the Police. This evidence  has  not  been  forthcoming  in  the  city  of Singapore.

46. Action  against  the  local  brothels  —  2  women  living together — was continued, but rapid changes of addresses and fines of $1 make matters difficult. 47. Action  was  taken  against  pimps  and  traffickers whenever evidence was forthcoming. 48. Male  prostitution  and  other  forms  of  beastliness were stamped out as and when opportunity occurred. [emphasis added in italics and bold italics]

216 Mr Singh  submits  that  the  problem  of  male  prostitution  assumed noticeable urgency just before the enactment of s 377A, as can be seen from the 1937 Annual Crime Report. He further highlights that the passage of s 377A in the Legislative  Council  was  underway  when  that  report  was  published  on 30 June  1938. He thus  submits  that  s 377A  must  have  been  introduced  to address  the  specific  concern  of  male  prostitution,  and  not  to  criminalise  all sexual conduct between men. We first observe that Mr Singh’s submission runs into the  difficulty  that  there  is  nothing  in  any  of  the  references  to  male prostitution in  any  of  the  relevant  Annual  Crime  Reports  to  suggest  that  the authorities felt hampered by a lack of legislative tools to deal with this issue. On the contrary,  it  appears  that  the  issue  was  being  dealt  with  effectively  as  and when it arose.

217 Aside from this, we consider with respect, that the 1934 to 1938 Annual Crime Reports  do  not  show  that  s 377A  was  intended  to  have  the  limited purpose of curbing male prostitution. We make two observations in this regard. First, it  is  evident  from  the  1937  and  1938  Annual  Crime  Reports  that  male prostitution was  discussed  in  the  context  of  (and,  indeed,  under  the  heading) “Public Morals”. Furthermore, these two  reports  elaborate  on  how  female prostitution was  an  affront  to  public  morals,  and  raise  male  prostitution  only fleetingly as  part  of  a  broad  discussion  on  how  prostitution  could  undermine public morals  (see  [214]–[215]  above). In other  words,  the  1937  and  1938 Annual Crime  Reports  intimate  an  anxiety  over  the  threat  that  prostitution, whether male or female, posed to public morals. They are hence consistent with s 377A having  the  wider  legislative  purpose  of  safeguarding  public  morality, which was  the  legislative  purpose  found  by  the  Judge  (see  the  Judgment  at [146(d)])  and  affirmed  by  us  (see  [173]  above),  rather  than  the  narrower legislative purpose of combatting male prostitution specifically.

218 Second,  our  finding  that  s 377A  is  of  general  application  is  entirely consistent with  the  1934  to  1938  Annual  Crime  Reports. Since the  plain meaning of the phrase “act[s] of gross indecency” in s 377A encompasses sex acts (whether penetrative or non-penetrative) between men in general (see [167] and [170] above), acts relating to male prostitution would also be captured under s 377A, thereby alleviating the concerns over male prostitution that were raised in the  1936  to  1938  Annual  Crime  Reports. This was  also  the  conclusion reached in  Lim  Meng  Suang (CA)  (at  [142]). In our  view,  the  1934  and  1935 Annual Crime Reports, which are before us for the first time, do not affect that conclusion.

(3) The Addendum to the Malayan Prosecutions Memo, the Moses Report and the ECM minutes

219 We now deal with the remaining extraneous material, which comprises: (a) the Addendum to the Malayan Prosecutions Memo; (b) the Moses Report; and (c) the ECM minutes.

220 Mr Singh relies on the Addendum to the Malayan Prosecutions Memo to bolster his case that s 377A was introduced to address the specific problem of male prostitution. The Malayan Prosecutions Memo was declassified by the United Kingdom Government in 2016. In summary, the Addendum depicts the unsatisfactory state  of  affairs  regarding  the  prosecution,  dismissal  and/or removal from the Malayan Civil Service of civil servants who faced disciplinary action. It begins with an observation of an “outbreak” of “cases of this nature” in Malaya “[a]t the beginning of 1938” before detailing the cases of two colonial officials, Mr Reeves and Mr Rivaz. Mr Reeves had been strongly suspected of associating with “catamites”, which  Mr Singh  submitted  was  a  reference  to male prostitutes. Mr Reeves was charged under Colonial Regulation 68, but as none of  the  charges  against  him  could  be  proved,  he  was  not  dismissed  or removed  from  the  Malayan  Civil  Service. Mr Rivaz too  faced  charges  under Colonial Regulation 68. It was noted in the Addendum that “the charges against Mr. Rivaz have  recently,  by  an  amendment  of  the  law,  been  made  offences under the  [1936 PC]”. Unlike Mr Reeves, Mr Rivaz  was  dismissed  from  the Malayan Customs  Service  as  a  number  of  charges  against  him  were  proved. Mr Singh submits that s 377A was clearly introduced to address the “outbreak” of male  prostitution  and  the  problem  of  civil  servants  patronising  male prostitutes.

221 As for the Moses Report, which was sent by Sir Shenton Thomas, the Governor and High Commissioner of the Straits Settlements, to the Secretary of State for the Colonies, it details the circumstances that led to the resignation of one Mr H Moses, a “European Warder” at the Straits Settlements Prisons, from service. In essence, Mr Moses had been arrested in a hotel room while naked in bed with “two known catamites” and had been charged with attempted sodomy thereafter. According to one of the arresting officers, Mr Moses had admitted that if not for the police’s intervention, he would have committed the offence of sodomy. Mr Singh argues  that  the  Moses  Report,  like  the  Addendum  to  the Malayan Prosecutions Memo, illustrates that the legislative purpose of s 377A was to combat male prostitution. 222 In our view, the Addendum to the Malayan Prosecutions Memo and the Moses Report  are  irrelevant  to  begin  with  and  should  not  be  considered. As non-legislative material, they do not and could not possibly disclose anything about the legislative intention underlying s 377A, and are thus not directed at the specific point of statutory interpretation in dispute (see Tan Cheng Bock at [52(c)] and [54(c)(iv)]). 223 In  any  event,  both  these  pieces  of  extraneous  material  hardly  suggest that the legislative object of s 377A was solely to combat male prostitution. The Addendum to  the  Malayan  Prosecutions  Memo  provides  no  more  than  a snapshot of two instances of colonial civil servants associating with “catamites”. It cannot be surmised from these two instances that s 377A was introduced to deal only  with  cases  involving “catamites”,  even  if  we  assume  that  that  term indeed refers to male prostitutes. Further, even if the enactment of s 377A did criminalise the  private  conduct  that  Mr Rivaz  had  engaged  in,  it  is  simply untenable to say that such conduct was in breach of that provision only because he had engaged in it in the company of male prostitutes. Likewise, the Moses Report elaborates  on  a  single  case  of  a  colonial  civil  servant  engaging  in homosexual sex acts with “catamites”. This can  hardly  constitute  a  basis  for discerning the Legislative Council’s intention in enacting s 377A.

224 The  ECM minutes  are  the  last  piece  of  extraneous  material  that Mr Singh seeks to rely on. They pertain to the Executive Council meeting held on 18 May  1938,  shortly  before  the  1938  Penal  Code  (Amendment)  Bill  was passed, and detail the Executive Council’s deliberations over a memorandum by the police on “sexual perversion”. The salient portions of the minutes read as follows:

Council agrees that the Bill to amend the [1936 PC], which has already been  read  a  first  time,  should  be  taken  through  its second and final readings at the next meeting of the Legislative Council.

Council further agrees that in moving the second reading the Attorney-General should explain that the clause relating to such offences is designed to make penal certain practices which are already punishable in other countries (which he will name) but have not hitherto been made punishable in this country. It is pointed out by the Attorney-General that the act of sodomy is already  an  offence  under  the  Penal  Code  whereas  the practices against which the new law is aimed are not, at present, offences  against  the  law;  and  therefore  that  no person  can  be  prosecuted  for  such  practices  until  the amending Bill is passed, unless, of course, the act constitutes an offence against public decency in which case prosecution can take place under the [MOO].

The Attorney-General points out also that the amending law will not have retrospective effect.

In the circumstances, it appears to Council that no warning to persons who  are  at  present  suspected  is  necessary  even  if  it were practicable, and Council advises accordingly. [emphasis added in italics and bold italics] It is apparent from the date and the contents of the ECM minutes that “the Bill to amend the [1936 PC]” and “the clause relating to such offences” refer to the 1938 Penal Code (Amendment) Bill and cl 4 thereof respectively. According to Mr Singh, the ECM minutes reveal that s 377A was intended to deal with only non-penetrative sexual activity between men in private, that being the conduct which had not been criminalised as at 18 May 1938. He therefore argues that the Legislative Council did not intend the offences under ss 377 and 377A to overlap. 225 The  ECM minutes  pertain  to  the  1938  Penal  Code  (Amendment)  Bill and what  AG Howell  was  to  say  in  his  speech  to  the  Legislative  Council  in moving the second reading of that Bill. As Mr Singh notes, nine out of the ten members present  at  the  Executive  Council  meeting  on  18 May  1938  were members of the Legislative Council. Most importantly, the ECM minutes shed light on the legislative intention underlying s 377A and touch on the very point of statutory  interpretation  in  dispute  (see  Tan  Cheng  Bock  at  [52]  and [54(c)(iv)]). We are therefore of the view that the ECM minutes merit greater consideration than  the  other  non-legislative  extraneous  material  that  we  have examined above.

226 Based  on  the  ECM minutes,  it  may  be  argued,  as  Mr Singh  does,  that s 377A was aimed not at sodomy, which had already been criminalised prior to 1938, but at practices which were not offences then. As at 18 May 1938, no one could be prosecuted for the “practices” which s 377A targeted unless the act in question constituted  an  offence  against  public  decency,  in  which  case prosecution under s 23 of the MOO would be possible. 227 On this reading, the ECM minutes would seem to suggest that s 377A was intended  to  supplement  the  then  existing  law  by  criminalising  non-penetrative sex acts between men in private, which were the only form of sexual conduct between men that had not already been criminalised as at 18 May 1938. Had s 377A  been  intended  to  cover  both  penetrative  and  non-penetrative  sex acts, the  statement  in  the  ECM minutes  that “the practices against which the new law is aimed are not, at present, offences against the law” [emphasis added] might not  make  sense  since  penetrative  sex  acts  between  men  were  already criminalised as sodomy under s 377. For the same reason, if penetrative sex acts fell within  the  scope  of  s 377A,  the  statement  in  the  ECM minutes that “no person can be prosecuted for such practices until the amending Bill is passed, unless ... the act constitutes an offence against public decency in which case prosecution can take place under the [MOO]” [emphasis added] would also be inexplicable. The ECM minutes  further  elaborate  that  “the clause relating to such offences” – that is to say, cl 4 of the 1938 Penal Code (Amendment) Bill (which introduced  s 377A  into  the  1936 PC)  –  was  intended  to  criminalise “certain practices” which “[had] not  hitherto  been  made  punishable  in  this country” [emphasis added]. Once again, only non-penetrative sex acts between men in private had not been made punishable as at 18 May 1938. This might also explain  the  clarification  in  the  ECM minutes  that  “the  amending  law”, namely, the 1938 Penal Code (Amendment) Ordinance (see [16] above), would apply only prospectively and not retrospectively. On the other hand, as we note below, there is another perspective, which is that the enactment of s 377A might well have been aimed at non-penetrative sex acts between males in private, but even so, it does not necessarily follow that the section was intended to apply to only such acts. We will return to this shortly. 228 If s 377A was indeed intended to criminalise only non-penetrative sex acts between men in private, as the ECM minutes might appear on one reading to suggest,  that  would  support  Mr Singh’s argument  that  the  offences  under ss 377 and  377A  were  not  intended  to  overlap. There are,  however,  two difficulties that stand in the way. We first reiterate the point we made at [177] above concerning the particular need for caution when resorting to extraneous material to discern the legislative intent underlying legislation that pre-dates the enactment of s 9A of the IA, which is the provision that permits recourse to such material in the first place. The danger is accentuated in the present context – to the extent that there was an express articulation of the legislative intent that led to the  enactment  of  s 377A,  it  is  to  be  found  in  AG Howell’s speech and the Objects and Reasons. For the reasons we have set out at considerable length at [181]–[207] above,  these  two  pieces  of  extraneous  material  simply  do  not support Mr Singh’s contention. 229 The ECM minutes detail the deliberations of the Executive Council as to what AG Howell was to say at the second reading of the 1938 Penal Code (Amendment) Bill. The artificiality of  the  interpretive  exercise  that  Mr Singh urges us to embark on is compounded when he contends that we should have regard to  the  ECM minutes  because  they  ostensibly  show  that  AG Howell’s speech was intended to convey a meaning that the text of that speech does not itself bear, in order then to construe the text of s 377A in a way that its language does not support. Mr Singh’s suggestion is even more untenable given that at the time s 377A was enacted, it would have been unthinkable for the court to have had  regard  to  any  such  extraneous  material. Whether a  second  reading speech is made in the expectation that it will inform the court’s understanding of the relevant legislation will inevitably have a bearing on the contents of that speech. 230 We  return  here  to  the  point  we  alluded  to  earlier. In considering  the ECM minutes, the same points that have been made in relation to AG Howell’s speech and the Objects and Reasons, as summarised above, have to be weighed in the  balance. As we  have  already  pointed  out,  the  fact  that  cl 4  of  the 1938 Penal Code (Amendment) Bill may have been “aimed” at non-penetrative sex acts between men in private, because that category of male homosexual sex acts had not hitherto been criminalised, does not mean that the clause could not or did  not  also  cover  other  male  homosexual  sex  acts. Whether the  eventual enactment (that is to say, s 377A) did or did not extend beyond non-penetrative sex acts between men in private depends ultimately on its text, and nothing in the ECM minutes changes the analysis we have set out.

231 This leads to our second point: for the reasons  explained at [161]  and [174] above,  the  ECM minutes  cannot  vary  the  ordinary  meaning  of  s 377A, which unambiguously includes both penetrative and non-penetrative sex acts. 232 One  may  ask  whether  there  is  any  real  value  in  considering  the ECM minutes if  they  can  only  be  used  to  confirm  the  ordinary  meaning conveyed by  the  text  of  s 377A,  even  if  they  call  that  ordinary  meaning  into question (see s 9A(2)(a) of the IA). The limited use of extraneous material under s 9A(2)(a) of the IA was expressly considered in Tan Cheng Bock, where  we explained:

49 ... [E]ven though extraneous material referred to under s 9A(2)(a) alone  cannot  alter  the  outcome  of  a  decision,  it  is useful for demonstrating the soundness – as a matter of policy – of that outcome. ...

50 It  also  bears  mentioning  that  extraneous  material cannot be used ‘to give a statute a sense which is contrary to its express text’ (Seow Wei Sin v PP [2011] 1 SLR 1199 at [21]), save perhaps in the very limited circumstances identified in s 9A(2)(b)(ii)  of  the IA ... This echoes the broader principle that the proper function of the judge when applying s 9A of the IA  is  to  interpret  a  given  statutory  provision. Although purposive  interpretation  is  an  important  and powerful tool, it is not an excuse for rewriting a statute ... The authority to alter the text of a statute lies with Parliament, and judicial interpretation is generally confined to giving the text  a  meaning  that  its  language  can  bear. Hence, purposive interpretation must be done with a view toward determining a provision’s or statute’s purpose and object ‘as reflected by and in harmony with the express wording of the legislation’: PP v Low Kok Heng [2007] 4 SLR(R) 183 at [50]. [emphasis in  original  omitted;  emphasis  added  in  italics  and bold italics]

233 In Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 (“Low Kok Heng”) at [50]–[52], which is cited in the above extract from Tan Cheng Bock, the High  Court  stressed  (at  [50])  the  need  for  the  court  to  assiduously  guard against rewriting a statute in the name of adopting a purposive approach: ... [A] purposive approach to interpretation ... should not be construed as being necessarily at odds with a literal reading of a statutory  provision  –  a  purposive  interpretation  simply requires one  to  approach  the  literal  wording  of  a  statutory provision bearing  in  mind  the  overarching  and  underlying purpose of that provision as reflected by and in harmony with the express wording of the legislation. [emphasis in original] 234 Hence, even if the ECM minutes might arguably lend some support to Mr Singh’s argument that s 377A was aimed exclusively at non-penetrative sex acts between men in private, that interpretation is ultimately at odds with the express language of s 377A and is therefore inadmissible. Our role is to interpret s 377A as enacted and not the ECM minutes, and there is no question that acts of “gross indecency” include penetrative sex acts. Moreover, and  as  we  have already emphasised, it would be especially fanciful for us to accord any more weight to the ECM minutes when recourse to extraneous material would have been inconceivable at the time s 377A was enacted.

=Our conclusion on the proper interpretation of s 377A=

235 To  conclude,  the  legislative  purpose  of  s 377A  was  not  to  stamp  out male prostitution  but  to  safeguard  public  morals  generally. This was  also  the conclusion that  we  arrived  at  in  Lim  Meng  Suang (CA)  (at  [141]–[143])  after considering all  the  then  available  extraneous  material. The new  extraneous material before  us  does  not  displace  that  finding. The legislative  purpose  of s 377A  –  namely,  the  safeguarding  of  public  morals  generally  –  is  also consonant with  the  legislative  purpose  of  the  part  of  the  PC  in  which  that provision is situated (see [173] above). Furthermore, the ordinary meaning of the phrase  “gross indecency” (as  held  at  [167]  and  [170]  above)  is  perfectly consistent with and, in fact, furthers the legislative purpose of s 377A. It follows that there  is  simply  no  basis  for  preferring  Mr Singh’s  and  Mr Ravi’s interpretation of “gross indecency” over the plain meaning of that phrase. =Whether s 377 violates Art 9=

236 In  that  light,  we  now  address  Mr Ravi’s  and  Mr Thuraisingam’s argument that s 377A violates Art 9.

237 As  a  preliminary  matter,  we  reiterate  our  finding  at  [149]  above  that s 377A is currently unenforceable in its entirety. The effect of this is that the appellants do  not  face  any  real  and  credible  threat  of  prosecution  under  this provision at this time (see Tan Eng Hong (Standing) at [112], which we referred to at [153] above). There is hence no basis for Dr Tan and Mr Ong to invoke Art 9, and  the  question  of  whether  s 377A  is  consistent  with  Art 9  is  moot.

Nonetheless, we consider the parties’ arguments on this issue for completeness. Our view,  albeit  in  obiter,  is  that  the  Art 9  constitutional  challenge  is unmeritorious. Section 377A does  not  deprive  a  person  of  “life  or  personal liberty” in a sense that is caught by Art 9(1); nor can s 377A be said to be so absurd that it does not constitute a valid law for the purposes of Art 9(1). 238 Article 9(1) provides as follows:

Liberty of the person

9.—(1) No person shall be deprived of his life or personal liberty save in accordance with law. ... 239 To succeed in their Art 9 constitutional challenge, Dr Tan and Mr Ong must show  that  (see  Yong  Vui  Kong  v  Public  Prosecutor  [2015]  2 SLR  1129 (“Yong Vui Kong (Caning)”) at [14]): (a) s 377A  deprives  or  threatens  to  deprive  them  of  their  right  to “life or personal liberty” in a sense that is caught by Art 9(1); and

(b) s 377A is not a valid law for the purposes of Art 9(1) and is thus an unlawful deprivation of “life or personal liberty”.

240 Mr Thuraisingam  and  Mr Ravi  advance  overlapping  arguments  in support of their position that s 377A violates Art 9(1). These arguments largely target the  validity  of  s 377A  as  a  law  that  deprives  a  person  of  his  personal liberty.

241 Mr Thuraisingam makes three principal arguments on this front. First, he contends that s 377A is “absurd” because it exposes a class of persons to the risk of  incarceration  on  account  of  their  sexual  identity  without  a  good  and compelling reason. Second, he submits that s 377A is “arbitrary” because it fails the “reasonable classification” test. Third, he argues that s 377A is “contrary to the rule of law” because individuals who engage in conduct prohibited under that provision cannot reasonably foresee the legal consequences of their actions. He submits that although the 2018 AGC Press Release  suggests that reported cases of conduct falling within the Subset (as defined at [146] above) will be investigated but will likely not  be prosecuted, it remains unclear if  and when such cases  will  result  in  prosecution. Mr Ravi aligns  himself  with Mr Thuraisingam and adds that the ambiguity surrounding the enforcement of s 377A generates  uncertainty  as  to  how  other  statutory  provisions,  such  as ss 119 and 176 of the PC and s 424 of the CPC, ought to be construed. 242 The “arbitrariness” argument will be dealt with in the context of the “reasonable classification” test when we consider the  Art 12  constitutional challenge. As for the rule of law concerns, these have been dealt with by way of our limited recognition of the doctrine of substantive legitimate expectations in the specific context of s 377A. We therefore focus on the claim that s 377A is absurd, which we analyse by reference to the following sub-issues:

(a) whether s 377A deprives a person of “life or personal liberty” in a sense that is caught by Art 9(1); and (b) whether s 377A is “absurd” such that it is not a valid law for the purposes of Art 9(1). =Whether s 377A deprives a person of “life or personal liberty” in a sense that is caught by Art 9(1)=

243 Mr Thuraisingam  and  Mr Ravi  implicitly  urge  us  to  recognise  that sexual identity or, specifically, their clients’ homosexual identity, falls within the “life or personal liberty” that Art 9(1) protects. This is most evident from their following arguments:

(a) Mr Thuraisingam  submits  that “deprivation of life or personal liberty on the ground of identity can only ever be justified in the very rare case  that  doing  so  is  necessary  to  advance  a  compelling  state interest” [emphasis in original omitted; emphasis added in italics].

(b) Mr Ravi  takes  the  position  that  s 377A criminalises a person’s sexual identity and argues that:

... [T]he ability  to  engage  in  private,  consensual  sexual physical intimacy with a person to whom one is sexually attracted is a fundamental aspect of a person’s agency and identity,  irrespective  of  sexual  orientation. ... Expression of  sexual  orientation  through  sexual behaviour is inextricably linked to a person’s ability to live a  life  unrestricted  by  absurd  or  arbitrary restrictions. ... [emphasis added]

244 In  our  judgment,  these  arguments  must  be  rejected  because  the deprivation of personal liberty that s 377A may engender does not fall within the scope of protection afforded by Art 9(1). 245 It is well established that unenumerated substantive rights cannot be read into the  Constitution. The reasons  for  this  were  set  out  in  detail  in  Yong  Vui Kong (Caning) as follows: 73 ... In our judgment, where a right cannot be found in the  Constitution  (whether  expressly  or  by  necessary implication), the courts do not have the power to create such a right  out  of  whole  cloth  simply  because  they  consider  it  to  be desirable  or  perhaps  to put  in  terms that  might  appear  to  be more  principled, to  be part  of  natural  law. We note  that  even among natural  law  theorists,  there  is  no  consensus  on  what natural law requires of judges. ... 75 Further,  reading  unenumerated  rights  into  the Constitution would  entail  judges  sitting  as  a  super-legislature  and  enacting  their  personal  views  of  what  is just  and  desirable  into  law,  which  is  not  only undemocratic but  also  antithetical  to  the  rule  of  law. In our judgment therefore, there is no basis for reading rights into the Constitution on the basis of natural law, and we reject the Appellant’s arguments under this rubric. [emphasis in original in italics; emphasis added in bold italics]

These holdings  have  been  repeatedly  cited  and  affirmed  in  our  local jurisprudence (see, for example, Chijioke Stephen Obioha v Public Prosecutor [2017] 1 SLR  1  at  [14]  and  Daniel  De  Costa  Augustin  v  Attorney-General [2020] 2 SLR 621 (“Daniel De Costa”) at [8]). 246 The right to express one’s sexual identity, even in private, is evidently not an  express  constitutional  right. Nor is  it  a  right  that  can  be  found  in  the Constitution, either as a matter of construing the Constitution in its entirety or as a matter of necessary implication (see Daniel De Costa at [9]). It is therefore impermissible to  construe  the  unenumerated  right to express one’s sexual identity as a right that attracts constitutional protection under Art 9(1). 247 Protection  under  Art 9(1)  cannot  extend  to  the  protection  of  sexual identity for another reason – the words “life or personal liberty” in Art 9(1) refer only to  freedom  from  unlawful  deprivation  of  life  and  unlawful  detention  or incarceration. Such a  restrictive  reading  of  Art 9(1)  is  supported  by  the  text, structure and history of the provision.

248 We first analyse the text and structure of Art 9(1). Article 9(1) and the other five sub-Articles in Art 9 all provide procedural safeguards in respect of the arrest  and  detention  of  persons. Article 9(2) refers  to  the  common  law prerogative writ  of  habeas  corpus;  Art 9(3) provides for an arrested person’s right to  counsel  and  right  to  be  informed  of  the  grounds  of  his  arrest;  and Art 9(4) requires  that  an  arrested  person  be  produced  before  a  magistrate “without unreasonable delay” and, in any case,  within 48 hours. Articles 9(5) and 9(6) contain exceptions to the rights guaranteed to an arrested person. We echo the  holding  in  Lim  Meng  Suang (CA)  (at  [46])  that,  reading  Art 9  as  a whole, “the phrase ‘life or personal liberty’ in Art 9(1) refers only to a person’s freedom from  an  unlawful  deprivation  of  life  and  unlawful  detention  or incarceration”. 249 This interpretation of “life or personal liberty” is confirmed by the history of Art 9(1). Article 9 is derived from Art 5(1) of the Constitution of the Federation of Malaya (“the 1957 Malayan Constitution”). The 1957 Malayan Constitution laid the foundation for the Constitution of Malaysia that came into effect when Malaysia (comprising the Federation of Malaya, Singapore, Sabah and Sarawak)  was  formed  on  16 September  1963  (“the  1963  Malaysian Constitution”), and Art 5(1) of the latter was subsequently adopted in Singapore as Art 9(1) (see also Lim Meng Suang (CA) at [47] and Yong Vui Kong (MDP) at [61]–[63]). 250 The  1957  Malayan  Constitution  was  drafted  with  advice  from  the Federation of  Malaya  Constitutional  Commission  chaired  by  Lord Reid (“the Reid Commission”), which had been appointed to make recommendations for a constitution  for  an  independent  Federation  of  Malaya  (see  Report  of  the Federation  of  Malaya  Constitutional  Commission  1957  (11 February  1957) (“the Reid Commission Report”) at para 1). The Reid Commission stated that Part II of the draft constitution, which was headed “Fundamental Liberties”, was intended to “define and guarantee certain fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life” (see the Reid Commission Report at para 161). It went on to elucidate the meaning of “personal liberty” as follows (see the Reid Commission Report at para 162):

Our recommendations  afford  means  of  redress,  readily available to  any  individual,  against  unlawful  infringements  of personal  liberty  in  any  of  its  aspects. We recommend  (Art. 5) provisions against  detention  without  legal  authority  of  a magistrate,  slavery  or  forced  labour  (but  not  against compulsory  service)  which  apply  to  all  persons  (Art. 6);  and provisions against banishment, exclusion from the Federation and restriction  of  freedom  of  movement  which  apply  only  to citizens of the Federation (Art. 9). ... [emphasis added]

It is  clear  from  that  extract  that the Reid Commission regarded “personal liberty” in “any of its aspects” as relating to freedom from physical limitations to the person, which might take the form of detention without lawful authority, slavery, forced labour, banishment or restrictions on the freedom of movement. 251 Art 5(1) of the 1957 Malayan Constitution was, in turn, based on Art 21 of the  Constitution  of  India  (“the Indian Constitution”). While Art 21  of  the Indian Constitution provided that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law” [emphasis added], Art 5(1) of the 1957 Malayan Constitution stated that “[n]o person shall be deprived  of  his  life  or  personal  liberty  save  in  accordance  with  law” [emphasis added]. There is, however, no indication that the Reid Commission intended for Art 5(1) to be accorded a wider interpretation than Art 21. Indeed, the fact  that  Arts 5(2)  to  5(4)  protected  the  procedural  rights  of  persons who had been arrested and detained suggests that Art 5(1) was similarly limited and procedural in  nature. It follows  that  Art 9(1),  which  is  identical  to  Art 5(1), should also be construed narrowly. 252 Thus, the text, structure and history of Art 9(1) mandate that the words “life or personal  liberty” be interpreted restrictively to refer  to  only  freedom from unlawful  deprivation  of  life  and  unlawful  detention  or  incarceration. It follows that these words do not encompass the freedom to express one’s sexual identity, and therefore that s 377A does not deprive a person of “life or personal liberty” in a sense that is caught by Art 9(1). Given this conclusion, it is strictly unnecessary for us to consider the argument that s 377A is “absurd” such that it does not  constitute  a  valid  law  for  the  purposes  of  Art 9(1). Nonetheless, we address this issue in the next section for completeness. =Whether s 377A is “absurd” and hence  not  a  valid  law  for  the  purposes  of Art 9(1)=

The meaning of “law” and “in accordance with law”
253 Under Art 2(1) of the Constitution, “law” is defined as including:

... [W]ritten law and any legislation of the United Kingdom or other enactment  or  instrument  whatsoever  which  is  in operation in Singapore and the common law in so far as it is in operation  in  Singapore  and  any  custom  or  usage  having  the force of law in Singapore ...

The term “written law” is similarly defined in Art 2(1) as “this Constitution and all Acts and Ordinances and subsidiary legislation for the time being in force in Singapore”.

254 Section 377A is prima facie “written law” and thus “law” as defined in Art 2(1) of the Constitution. However, Art 9(1) does not justify all legislation that deprives a person of his life or personal liberty (see Yong Vui Kong (MDP) at [16] and [75]). The words “in accordance with law” under Art 9(1) have been interpreted to go beyond formal validity (in the sense of a valid enactment by the Legislature) to incorporate the following requirements:

(a) A  statute  must  comply  with  the  fundamental  rules  of  natural justice, which  are  procedural  rights  aimed  at  securing  a  fair  trial  (see Yong Vui Kong (Caning) at [64]).

(b) A  statute  cannot  be  colourable  legislation,  such  as  legislation directed at  securing  the  conviction  of  particular  individuals  (see  Yong Vui Kong (MDP) at [16]).

(c) A  statute  cannot  be  absurd  or  arbitrary  (see  Yong  Vui Kong (MDP) at [16]).

(d) A statute cannot be contrary to the rule of law (see Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”) at [96]–[99]).

Whether s 377A is “absurd”
255 Before examining the parties’ arguments on whether s 377A is “absurd” such that it is not a valid law, it is necessary to first examine what the concept of “absurdity” entails.

(1) The test of “absurdity” 256 To  recapitulate,  Mr Thuraisingam’s  and  Mr Ravi’s  arguments  on “absurdity” rest on the notion that s 377A criminalises individuals on the basis of an immutable facet of their identity. These arguments necessarily assume that the test of “absurdity” has substantive content. Mr Thuraisingam made  this point explicitly by stating as follows: ... ‘Absurd’ cases are a residual category, meant to capture legislation that is so abhorrent that no reasonable person can contemplate such legislation as being morally justified ...

257 Although  Mr Thuraisingam  does  not  set  out  an  exhaustive  list  of “absurd” legislation, he contends that “one category of self-evidently ‘absurd’ legislation, is legislation that criminalises a class of persons for their identity, for no compelling interest” [emphasis in original in italics; emphasis added in bold italics]. This is, in  our  view,  a  substantive  test  predicated  on  a  moral  or value judgment.

258 On  the  other  hand,  Ms Tan  argues  that the test of “absurdity” only protects rights to a fair process – in other words, procedural rights. She submits that the test of “absurdity” should not and does not protect substantive rights for the following reasons: (a) First, the Court of Appeal held in Yong Vui Kong (MDP) (at [80]) that the requirement that a law must not be “absurd” does not include or imply a requirement that it must be “fair, just and reasonable”. Such a requirement would require the court to intrude into the legislative sphere and engage in policy-making, which the court should refrain from doing, particularly as it is ill-equipped to make value judgments on polycentric matters.

(b) Second,  Mr Thuraisingam  and  Mr Ravi  have  not  provided  any viable standard by which the court can judge a law to be so absurd as to be unconstitutional.

259 We agree with Ms Tan that the test of “absurdity” is procedural in nature and is intended to secure the right to a fair process in the context of a possible deprivation of  life  or  personal  liberty. An example  of  a  statute  that  would  be “absurd” by this yardstick is one that cannot be understood or complied with. It would be impossible to make a defence to any charge under such a statute, and it would thus be “absurd” to deprive a person of life or personal liberty on this basis. This understanding of “absurdity” also aligns with how our courts have interpreted the words “life or personal liberty” in Art 9(1) (see [247] and [252] above).

260 In Singapore, the notion that the “absurdity” of a statutory provision may arise for consideration in the context of Art 9(1) can be traced to the words of Lord Diplock at the hearing of Ong Ah Chuan v Public Prosecutor [1981] 1 AC 648 (“Ong Ah Chuan”). His Lordship specifically asked (at 659) the prosecutor whether he was contending that, “provided a statute is an Act of the Singapore Parliament[,] then  however  unfair  or  absurd  or  oppressive  it  may  be[,]  it  is justified  by  article 9(1) of the Constitution” [emphasis added]. When the prosecutor answered that he was not advancing such an argument, and that it was in any event unnecessary for him to do so, Lord Diplock replied (likewise at 659): “Their Lordships cannot accept that because they will have to deal with the point. They are not disposed to find that article 9(1) justifies all legislation whatever its nature.” However,  their  Lordships  did  not  elaborate  in  their judgment on the type of “absurd” legislation that might fall afoul of Art 9(1). 261 The  concept  of “absurdity” was revisited by our courts in Yong  Vui Kong (MDP). Crucially, this  concept  was  considered  in  the  context  of  our seeking to explain what the Privy Council in Ong Ah Chuan had in mind during the oral exchange cited above. We suggested in obiter (at [16]) that: ... Perhaps, the Privy Council had in mind colourable legislation which purported to enact a ‘law’ as generally understood (ie, a legislative rule of general application), but which in effect was a legislative judgment,  that  is  to  say,  legislation  directed  at securing  the  conviction  of  particular  known  individuals  ... or legislation of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being  ‘law’  when  they  crafted  the  constitutional  provisions protecting fundamental liberties (ie, the provisions now set out in Pt IV of the Singapore Constitution). [emphasis added] 262 Relying on the dicta emphasised in the above passage, Mr Thuraisingam argues that an “absurd” law refers to legislation that is so abhorrent that no reasonable person  can  contemplate  it  as  being  morally  justified  (see  [256] above). We do  not  think  that  the  aforesaid  dicta  in  Yong  Vui  Kong (MDP) supports Mr Thuraisingam’s submission. 263 First, we reiterate that the aforesaid dicta in Yong Vui Kong (MDP) was obiter and was issued in the context of our attempt to  explain what the Privy Council had meant during an oral exchange with the prosecutor at the hearing of Ong Ah Chuan. Furthermore, the concept of “absurdity” was not explored in Yong Vui Kong (MDP) as it was not a live issue before us. Although that case concerned the issue of what amounted to “law” or being “in accordance with law” for the purposes of Art 9(1), we did not explain the concept of “absurdity” or indicate whether it had any substantive content. Instead, we focused on the appellant’s submission that a substantive test of whether an impugned law was “fair, just and reasonable” ought to  be  applied  to  determine  if  that  law  was constitutional under Art 9(1) (see Yong Vui Kong (MDP) at [78]–[79]).

264 Second, in Yong Vui Kong (MDP), this court expressly rejected (at [80]) a substantive “fair, just and reasonable” test  as  the  criterion  for  assessing  the constitutionality of an impugned law under Art 9(1). This was because such a test would  trespass  onto Parliament’s territory and impermissibly  require  the court to engage in policy-making. This court further observed (likewise at [80]) that even  in  Ong  Ah  Chuan,  the  Privy  Council  had  only  held  that,  for  the purposes of Art 9(1), any law depriving a person of his life or personal liberty had to be consistent with the “fundamental principles of natural justice”. In other words, the Privy Council did not lay down a separate test of “absurdity” in its judgment in  Ong  Ah  Chuan. There is  thus  no  basis  for  Mr Thuraisingam  to suggest that Yong Vui Kong (MDP) permits judicial scrutiny of the substantive content of an impugned law in an Art 9(1) constitutional challenge. As Ms Tan aptly points out, our courts have repeatedly clarified that “the fundamental rules of natural  justice  referred  to  by  the  Privy  Council  in  Ong  Ah  Chuan  ... [a]re ‘procedural rights  aimed at securing a fair trial’”  [emphasis  added]  (see  Kho Jabing  v  Public  Prosecutor  [2016]  3 SLR  135  at  [109]  and  Yong  Vui Kong (Caning) at [62]–[64]).

265 For the reasons set out above, we are satisfied that the test of “absurdity” is procedural in nature and does not permit the court to examine the substantive content of s 377A. It follows that s 377A is self-evidently not “absurd”. Neither Mr Ravi nor  Mr Thuraisingam  has  suggested  that  s 377A  infringes  any procedural rights, which are rights meant to ensure a fair trial. (2) Section 377A is not substantively “absurd”

266 Be  that  as  it  may,  we  engage  with  Dr Tan’s and Mr Ong’s  case  at  its highest. For the  sake  of  argument,  we  adopt  Mr Thuraisingam’s  test  of “absurdity” – namely, that an impugned law is not “law” if it is so abhorrent that no  reasonable  person  can  contemplate  it  as  being  morally  justified  (see above at [256]). Even so, we do not agree that s 377A is “absurd”. 267 First, even if we were to accept that sexual orientation is immutable, this alone does  not  render  s 377A  “absurd” such  that  it  is  not  a  valid  law. As we explained at [159] above, the argument that the Government can never regulate against immutable characteristics is clearly unsustainable. 268 Second, many reasonable people do in fact see s 377A as being morally justified, as  is  evident  from  the  s 377A  Debates. Numerous parliamentarians spoke up  in  favour  of  retaining  s 377A,  often  on  the  ground  of  safeguarding societal morality and with the recognition that a sizable segment of our society regards homosexual  behaviour  as  unacceptable. We reproduce  three  excerpts from the s 377A Debates by way of examples: Assoc Prof Ho Peng Kee (Senior Minister of State for Home Affairs) ... Public feedback  on  this  issue  has  been  emotional, divided and  strongly  expressed  with  the  majority  calling for its  retention. Sir, Singaporeans  are  still  a  largely conservative society. The majority  find  homosexual behaviour offensive and unacceptable. ...

Ms Indranee Rajah (MP for  Tanjong Pagar)

... [T]he public  reaction  has  shown  that  the  majority  of Singaporeans  do  not  agree  with  or  accept  homosexual behaviour. I think  it  will  be  fair  to  say  that  most Singaporeans do  not  want  to  see  somebody  jailed  for homosexual practices, but most would definitely not want to see any public demonstration of the conduct. They may be prepared to tolerate it if it is done in private, but they do not wish to see it in public and, very importantly, they do not wish to have their children see it in public. Then, of course, the argument comes, ‘OK, fine, if we do not do it in public, what if we just do it in private?’ And that is where the signalling  concern  comes  in,  because  people  are concerned about the impact that a repeal of section 377A would send. Mr Ong Kian Ming (MP for Tampines)

... Although a vocal segment of society has garnered much support for  the  repeal  of  section 377A,  the  majority  of Singaporeans  have  unequivocally  rejected  these  cries  to decriminalise homosexuality. The overwhelming sentiment of Singaporeans  is  that  they  are  not  prepared  to compromise  their  conservative  family  values  by  opening up to  alternative  sexual  behaviour,  nor  allowing  it  to permeate  across  time  honoured  boundaries  into  the conventional family sanctity.

These views  can  hardly  be  dismissed  as  absurd  by  any  reasonable  measure. Rather, it might be said that these views and the views of the present appellants reflect competing  notions  of  what  is  thought  to  be  right  and  good. For the reasons outlined above, including those mentioned at [4]–[7], the courts should be wary of choosing between them, save to the extent that this follows from the application of specific legal principles.

269 To sum up, s 377A does not deprive a person of his personal liberty in a sense  that  is  caught  by  Art 9(1). In any  case,  s 377A  cannot  be  said  to  be  so “absurd” as to fail  to  constitute  a  valid  law  for  the  purposes  of  Art 9(1). For these reasons, we agree with the Judge that s 377A does not violate Art 9(1).

=Whether s 377A violates Art 14=

270 In  our  judgment,  the  constitutional  challenge  under  Art 14  by  Dr Tan and Mr Choong is equally unmeritorious because the constitutional protection afforded under Art 14(1)(a) does not extend to acts of sexual intimacy. Again, we emphasise that our observations on this are strictly obiter since a finding on whether s 377A  is  constitutional  under  Art 14(1)(a)  is  unnecessary  for  the determination of these appeals. 271 Article 14  provides  for,  among  other  rights,  the  right  to  freedom  of speech and expression. It is apposite to set out Art 14 in full: Freedom of speech, assembly and association

14.—(1) Subject to clauses (2) and (3) —

(a) every citizen of Singapore has the right to freedom of speech and expression;

(b) all citizens of Singapore have the right to assemble peaceably and without arms; and

(c) all  citizens  of  Singapore  have  the  right  to  form associations.

(2) Parliament may by law impose — (a) on  the  rights  conferred  by  clause (1)(a),  such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations  with other  countries,  public  order  or morality  and  restrictions  designed  to  protect  the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;

(b) on  the  right  conferred  by  clause (1)(b),  such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof or public order; and

(c) on  the  right  conferred  by  clause (1)(c),  such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, public order or morality. (3) Restrictions on the right to form associations conferred by clause (1)(c) may also be imposed by any law relating to labour or education. [emphasis added in italics and bold italics] 272 It may be recalled that the Judge did not think that the right to freedom of expression could be divorced from the right to freedom of speech (see  the Judgment at [249]; see also [38] above). He thus held that “the term ‘expression’ must be  understood  in  its  ordinary  meaning  to  relate  to  freedom  of  speech encompassing matters of verbal communication of an idea, opinion or belief” (see the Judgment at [255]). 273 Mr Singh  and  Mr Ravi  advance  two  main  arguments  in  relation  to Art 14(1)(a).

274 First, focusing on the proper construction of the words “freedom of ... expression” in Art 14(1)(a), they argue that the Judge erred in interpreting those words in an unnecessarily restrictive manner: (a) Mr Singh argues that, on a plain reading of the words “freedom of speech and expression”, the term “expression” should not be seen as surplusage. He thus  submits  that  the  Judge  erred  in  confining  the meaning of  the  term  “expression”  to  “some  form  of  verbal communication” (see the Judgment at [249]). He further contends that Art 14(1)(a) should  be  interpreted  generously  such  that  acts  of  sexual intimacy, which  are  “a  fundamentally  important  form  of  personal expression”, constitute  a  form  of  protected  “expression”  under Art 14(1)(a). In Mr Singh’s words, consensual acts of sexual intimacy convey meaning as they are “the most intimate expressions of love and personal closeness”. (b) Mr Ravi aligns himself with Mr Singh’s position. He rejects the Judge’s findings that the word “expression” in Art 14(1)(a) is surplusage and that “expression” refers to verbal expression only. In his view, an interpretation  of  Art 14(1)(a)  that  avoids  construing  the  term “expression” as surplusage should be preferred. He further submits that Parliament must  have  intended  to  protect  non-verbal  modes  of expression  such  as  consensual  sex,  whether  between  homosexual  or heterosexual individuals.

275 Second,  Mr Ravi  argues  that  s 377A  infringes  the  right  to  freedom  of speech by creating a chilling effect on gay rights advocacy. 276 As we see it, the core questions that must be answered are how the word “expression” in Art 14(1)(a) should  be  interpreted  and,  accordingly,  whether the constitutional  protection  afforded  under  Art 14(1)(a)  extends  to  acts  of sexual intimacy. We analyse Mr Singh’s and Mr Ravi’s arguments according to the following sub-issues:

(a) What  is  the  width  and  scope  of  the  protection  afforded  under Art 14(1)(a)?

(b) Does  s 377A  infringe  the  right  to  freedom  of  speech  and expression?

The width and scope of the protection afforded under Art 14(1)(a) 277 In  considering  the  width  and  scope  of  the  protection  afforded  under Art 14(1)(a), the central inquiry concerns the proper interpretation of the word “expression” as used in that provision, an analysis which once again calls for the application of the Tan Cheng Bock framework (see [162] above). 278 As  the  Judge  recognised,  a  plain  reading  of the words “freedom of speech and expression” can give rise to a wide range of interpretations (see the Judgment at [243]–[244]). The ordinary meaning of the term “speech” is any form of  communication  expressed  in  the  form  of  words,  whether  spoken  or written. The dispute here centres on the term “expression”, which  is  usually regarded as being wider in scope than the term “speech”. The term “expression” can encompass  any  means  of  conveying  meaning,  opinions,  beliefs  or  ideas, whether with or without the use of language. We agree with the Judge that the plain and ordinary meaning of the word “expression” in the abstract does not rule out the possibility of sexual intercourse being a form of expression (see the Judgment at [244]). 279 However,  having  regard  to  the  context  of  Art 14(1)(a)  in  the Constitution, it is clear to us that the primary right protected thereunder is that of “freedom of speech” and not “freedom of expression”. This can be gleaned from the  marginal  note  to  Art 14. The marginal  note  omits  any  mention  of “freedom  of expression” and focuses solely on “freedom of speech”. Even though the meaning of a statutory provision must  ultimately be gleaned from the statutory  language  as  well  as  the  context  of  the  provision,  it  is  well established that marginal notes can be used as an aid to statutory interpretation (see Tee Soon Kay v Attorney-General [2007] 3 SLR(R) 133 at [41]). While a marginal note  is  not  meant  to  provide  a  comprehensive  and  fully  accurate summary of  the  provisions  that  it  covers,  it  provides  a  brief  indication  of  the content of those provisions (see Diggory Bailey & Luke Norbury, Bennion on Statutory Interpretation (LexisNexis, 7th Ed, 2017) at section 16.7) and forms part of the relevant context within which those provisions should be interpreted. 280 The marginal note to Art 14 reads: “Freedom of speech, assembly and association”. The constitutional  freedoms  reflected  in  the  marginal  note correspond, in order, to the three sub-clauses of Art 14(1). The marginal note indicates the main subject matter of each of these sub-clauses, namely: speech, assembly and  association. It can  also  be  observed  from  the  wording  of Arts 14(1)(a), 14(1)(b) and 14(1)(c) that these sub-clauses qualify, restrict and describe the  nature  of  the  broad  rights  listed  in  the  marginal  note. This is,  in itself, a pattern of statutory interpretation. To be more precise, what is at play is the noscitur a sociis principle of construction, which provides that “words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context” (see Public Prosecutor v Lam Leng Hung and others [2018] 1 SLR 659 (“Lam Leng Hung”) at [107]–[108], citing the House of Lords’ decision in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461). 281 By way of illustration, even though Art 14(1)(b)  sets out  “the right to assemble  peaceably  and  without  arms”,  the  marginal  note  simply  refers  to “[f]reedom of ... assembly”. The core constitutional right protected under Art 14(1)(b) is thus the right to freedom of assembly; the phrase “peaceably and without arms”, as used in  Art 14(1)(b),  qualifies  the  right  to  freedom  of assembly and describes the nature of that right. Similarly, Art 14(1)(c) qualifies and describes the nature of the constitutional right to freedom of association by clarifying that what is protected is the right to “form associations” [emphasis added].

282 While the term “expression” is ordinarily seen as being broader in scope than the term “speech”, there is no mention of the right to freedom of expression as a free-standing right in the marginal note to Art 14. This suggests that the term “expression”  was  not  meant  to  unilaterally  expand  the  scope  of Art 14(1)(a) beyond the right to freedom of speech. On the contrary, applying the noscitur a sociis principle to Art 14(1)(a), the term  “expression” assumes the ancillary  function  of  qualifying  and  describing  the  fundamental  right enshrined in Art 14(1)(a) – which is, as the marginal note to Art 14 indicates, the right to freedom of speech. Although this means that the term “expression” as used in Art 14(1)(a) has a more restrictive meaning than its literal or usual meaning, this conclusion is hardly aberrant and is simply the result of applying the well-established principle of noscitur a sociis (see Lam Leng Hung at [110]). 283 Having  similarly  observed  that  the  marginal  note  to  Art 14  makes  no mention of the right to freedom of expression as a free-standing right, the Judge concluded that that right was “contemplated as something relating to or falling within the right to freedom of speech” (see the Judgment at [246]). We prefer to see the word “expression” as giving colour to the term “speech” (see Lam Leng Hung at [109]). 284 The  upshot  of  our  analysis  is  that  Art 14(1)(a)  protects  the  right  to freedom of speech – that is to say, any form of communication that is expressed in words, whether spoken or written – that conveys meaning, opinions, beliefs or ideas. Since acts of sexual intimacy are not “speech” to begin with, the Art 14 constitutional challenge to s 377A is without merit. 285 Aside from the marginal note to Art 14, there is another reason why the term “expression” in Art 14(1)(a) must be interpreted restrictively (as stated at [282] above) and not in its usual broad sense (namely, any means of conveying meaning, opinions, beliefs or ideas, whether with or without the use of language: see [278] above). An expansive reading of the term “expression” would make it extremely difficult to delimit the acts that are constitutionally protected under Art 14(1)(a). Virtually any  act  that  purports  to  convey  meaning,  opinions, beliefs or ideas, even an act amounting to a sexual offence (such as necrophilia or bestiality),  could  claim  protection  under  Art 14(1)(a)  as  a  form  of “expression”. Such a  plainly  absurd  result  would  be  contrary  to  the well-established canon  of  statutory  interpretation  that  Parliament  does  not legislate with  the  intention  of  producing  unworkable  or  impracticable  results (see Tan Cheng Bock at [38]). 286 In response to this, Mr Ravi argues that heinous acts such as necrophilia or bestiality would justify derogation from the right to freedom of speech and expression, ostensibly  on  the  ground  of  public  morality  under  Art 14(2)(a). Accepting this  for  the  sake  of  argument,  it  should  nonetheless  be  noted, however, that Art 14(2)(a) lists the grounds on which Parliament may restrict “the rights conferred by [Art 14(1)(a)]” [emphasis added]. The absurdity thus lies in the recognition that acts such as necrophilia and bestiality do fall within “the rights conferred by [Art 14(1)(a)]”, albeit that those rights may be lawfully curtailed in this context. As Parliament must be presumed not to have intended such an  absurd  result,  there  is  good  reason  to  prefer  a  more  restrictive interpretation of  the term “expression”,  as  used  in  Art 14(1)(a),  than  what Mr Singh and Mr Ravi argue for. 287 Mr Ravi further contends that the potentially untrammelled scope of the right to  freedom  of  speech  and  expression  can  be  reined  in  by  adopting  the following test:  acts  of  non-violent  expression  are  only  protected  under Art 14(1)(a) in so far as they are “performed to convey a meaning” [emphasis in original  omitted],  and  whether  a  particular  act  fulfils  this  description  is  a question to be decided on the facts of each case. In proposing this test, he draws inspiration from the majority judgment in the Supreme Court of Canada case of Irwin Toy Ltd v Québec (Attorney General) [1989] 1 SCR 927 (“Irwin Toy”). 288 Mr Ravi’s proposed solution, however, does little to reduce the potential expansiveness of  the  right  to  freedom  of  speech  and  expression  that  would follow from his interpretation of Art 14(1)(a). In Irwin Toy, the majority of the court held (at [53]) that: ... The precise and complete articulation of what kinds of activity promote  [the  principles  underlying  freedom  of expression] is, of course, a matter for judicial appreciation to be developed on a case by case basis. But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and  human  flourishing. [emphasis added  in italics and bold italics]

289 The problem is that almost any act can be said to convey some kind of meaning  and  to  relate  to  the  pursuit  of  truth,  participation  in  the  community, individual self-fulfilment or human flourishing. We therefore reiterate that the term “expression” in Art 14(1)(a) should be interpreted as a qualifier of the right to freedom of speech. Consequently, Art 14(1)(a) protects the right to freedom of speech – that is to say, any form of communication that is expressed in words, whether spoken or written – that conveys  meaning, opinions, beliefs or  ideas (see [284] above).

290 Having  interpreted  the  term  “expression” in Art 14(1)(a)  at  the  first stage of the Tan Cheng Bock framework, we now turn to the second stage of that framework,  which  calls  for  the  legislative  purpose  of  Art 14(1)(a)  to  be discerned. For the  reasons  set  out  at  [279]–[289]  above,  we  consider  that  the legislative purpose of Art 14(1)(a) is the protection of free speech. This is also confirmed by the extraneous material. 291 Of  relevance  in  this  regard  is  the  1966  Constitutional  Commission Report, which  we  referred  to  at  [39]  above. This report  was  prepared  by  the Constitutional Commission chaired by then Chief Justice Wee Chong Jin. The Constitutional Commission was appointed to look into, among other things, the protection of minority rights in Singapore and the provisions that ought to be entrenched in the then version of the Constitution after Singapore had become a sovereign republic. This is an important document concerning the fundamental liberties presently protected under Part IV of the Constitution because several recommendations contained  therein  were  accepted  by  the  Government. Paragraph 26 of  the  1966  Constitutional  Commission  Report  stated  that  the Constitutional Commission was: ... in  the  first  place  concerned  ... with inquiring  into  the fundamental rights and freedoms a citizen of this Republic and an individual whether a citizen or not living here now enjoys, the manner  in  which  his  enjoyment  of  these  rights  and freedoms is protected and what recourse he has to the Courts for the enforcement of these rights. ... [emphasis added] 292 In respect of Art 14, the 1966 Constitutional Commission Report stated (at para 37) as follows:

We recommend the retention of Article 10 of the Constitution of Malaysia [meaning the 1963 Malaysian Constitution as defined at [249]  above]  and  that  it  should  be  written  into  the Constitution of  Singapore. This Article  gives  every  citizen  the right to freedom of speech, assembly and association. [emphasis added]

The abovementioned Art 10 of the 1963 Malaysian Constitution subsequently became the present-day Art 14. 293 We  note  that  the  italicised  words  in  the  above  passage  mirror  the marginal note  to  Art 14(1)(a). This indicates  that  the  marginal  note  was  a considered  and  accurate  reflection  of  the  core  right  protected  by  each  of  the three sub-clauses  of  Art 14(1),  thereby  fortifying  our  interpretation  of Art 14(1)(a).

294 To  sum  up,  given  our  finding  that  the  focus  of  Art 14(1)(a)  is  on  the right to freedom of speech, the Art 14 constitutional challenge to s 377A must proceed from  the  premise  that  the term “speech”  includes  acts  of  gross indecency. However, such  acts  are  not  “speech”  to  begin  with;  in  any  event, extending the protection afforded under Art 14(1)(a) to acts of gross indecency would generate  an  absurd  result  that  could  not  have  been  intended  by  the constitutional draftsmen. On these  grounds,  we  consider  that  the  Art 14 constitutional challenge must fail.

Whether s 377A has a chilling effect on gay rights advocacy
295 We  turn  to  Mr Ravi’s argument  that  s 377A  infringes  the  right  to freedom of speech under Art 14(1)(a) by creating a chilling effect on gay rights advocacy (see [275] above). Mr Ravi contends that the criminalisation of sexual acts between men creates a climate that is hostile to the discussion of anything LGBT-related, thereby  stymieing  gay  rights  advocacy. In our  judgment, Mr Ravi’s argument must be rejected for three reasons. 296 First, the mere fact that a particular cause or activity is presently illegal does not in and of itself generate a chilling effect that  stifles advocacy of the prohibited cause or activity. Gay rights activism and advocacy continue to exist in Singapore in a variety of forms, an example being the highly publicised Pink Dot Singapore event that is held annually. 297 Second, while gay rights advocates may face challenges in their work, it is likely that their difficulties stem in large part from general societal attitudes, as opposed to the continued retention of s 377A in particular. In other words, any chilling effect on gay rights advocacy that may currently exist has not been shown to be attributable to s 377A specifically.

298 Third, the claim that s 377A has a chilling effect on gay rights advocacy is really an extra-legal argument made under the guise of an alleged violation of Art 14(1)(a). What Mr Ravi is essentially arguing is that the striking down of s 377A would promote gay rights advocacy. Such an argument goes towards the socio-political desirability  of  retaining  or  repealing  s 377A,  which  is  not  a matter that can be properly considered by the court. 299 In summary, s 377A does not engage the right to freedom of speech and expression protected under Art 14(1)(a). We therefore see no merit in the Art 14 constitutional challenge. =Whether s 377A violates Art 12=

300 Finally,  we  turn  to  Mr Ravi’s  and  Mr Singh’s  contention  that  s 377A fails the “reasonable classification” test and thus falls afoul of Art 12. In this section, we  will  also  address  Mr Thuraisingam’s argument that s 377A  is “arbitrary” and hence in violation of Art 9(1) (see [241] above). We stress once again that our observations below are purely obiter.

The structure of Art 12
301 We  begin  our  analysis  by  examining  the  structure  of  Art 12. Articles 12(1) and 12(2) provide as follows:

Equal protection
12.—(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only  of  religion, race,  descent  or  place  of  birth  in  any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition,  holding  or  disposition  of  property  or  the establishing or carrying on of any trade, business, profession, vocation or employment.

... 302  Article 12(1)  provides  for  equality  before  the  law  and  the  equal protection of the law for all persons. As noted in Lim Meng Suang (CA) at [90], Art 12(1) is framed at a very general level and is in the nature of a declaratory statement of principles.

303 The rights enshrined in Art 12(1) are so fundamental and basic that the court should eschew any approach that renders Art 12(1) toothless. This means that while Parliament has a wide ambit to legislate, there is no presumption that every differentiating measure that it enacts bears a rational relation to the object sought to  be  achieved. Such a  presumption  of  constitutionality  under  Art 12 would be impermissible because “relying on a presumption of constitutionality to meet  an  objection  of  unconstitutionality  would  entail  presuming  the  very issue which is being challenged” (see Saravanan at [154]). 304 In  contrast  to  Art 12(1),  Art 12(2)  is  less  open-ended. This is unsurprising  given  that  Art 12(2)  specifies  the  exclusive  grounds  on  which discrimination against  Singaporean  citizens  is  absolutely  barred,  namely: religion, race,  descent  and  place  of  birth. The grounds  specified  in  Art 12(2) indicate the  types  of  diversities  that  have  been  deemed  worthy  of  greater constitutional protection,  thereby  reflecting  the  ethno-religious,  pluralistic community that  the  Constitution  is  designed  to  sustain:  see  Thio  Li-Ann,  A Treatise  on  Singapore  Constitutional  Law  (Academy  Publishing,  2012)  at para 13.009.

The “reasonable classification” test
305 The  established  test  for  assessing  whether  a  statutory  provision  is constitutional under Art 12 is the “reasonable classification” test (see Lim Meng Suang (CA) at [60] and Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489  (“Taw  Cheng  Kong (CA)”)  at  [54]  and  [58]). Under this  test,  a  statutory provision which  prescribes  a  differentiating  measure  will  be  consistent  with Art 12(1) only if: (a) the classification prescribed by the provision is founded on an intelligible differentia; and (b) that differentia bears a rational relation to the object sought to be achieved by the provision. We refer to these as the first and second limbs of the “reasonable classification” test respectively. The “reasonable classification” test is  also  the  applicable  test  for  determining whether a  law  is “arbitrary” and hence  in  contravention  of  Art 9(1)  (see Prabagaran at [93]).

306 The “reasonable classification” test rests  on  the  notion  that  like  cases should, in  broad  terms,  be  treated  alike. The underlying  rationale  behind  this test was explained in Saravanan as follows (at [153]):

Article 12(1) ... is concerned with equality of treatment, and embodies the principle that ‘like should be compared with like’ ... It prohibits individuals ‘within a single class’ from receiving different punitive  treatment,  but  it  ‘does  not  forbid discrimination in  punitive  treatment  between  one  class  of individuals and another class in relation to which there is some difference in  the  circumstances  of  the  offence  that  has  been committed’ ... It is permissible to group individuals into classes as long as the grouping is based on intelligible differentia that bear a  rational  or  reasonable  connection  to  the  object  of  the impugned legislation ... This test, which is commonly known as the ‘reasonable classification’ test, was affirmed in [Lim Meng Suang (CA)] ...

307 However, the fundamental rubric that “like cases should, in broad terms, be treated alike” does not inform us of the level of abstraction at which individuals should  be  grouped  into  classes  so  that  the  legitimacy  of  the differential treatment  in  question  may  be  properly  assessed  (see  Lim  Meng Suang  and  another  v  Attorney-General  [2013]  3 SLR  118  (“Lim  Meng Suang (HC)”) at  [60]). In other words, the maxim that “like cases  should  be treated alike” alone  cannot guide the practical application of the “reasonable classification” test. For this reason, we turn to examine how this test has been applied in  the  case  law,  focusing  on  the  approaches  adopted  in  Lim  Meng Suang (CA) and, more recently, Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809 (“Syed Suhail”).

The Lim Meng Suang (CA) approach
308 The nature and function of the “reasonable classification” test were considered at length in Lim Meng Suang (CA), in which the court characterised the test as one that serves the “minimal threshold function of requiring logic and coherence in  the  [statutory  provision]  concerned” [emphasis in original]  (at [66]).

309 It will be recalled that the first limb of the “reasonable classification” test requires  that  the  classification  prescribed  by  the  statutory  provision  in question  be  based  on  an  intelligible  differentia. The court  emphasised  in  Lim Meng Suang (CA) (at [65]) that this requirement was “a relatively low threshold that ought  to  avoid  any  consideration  of  substantive  moral,  political  and/or ethical issues  because  these  issues  are  potentially  (and  in  most  instances, actually)  controversial” [emphasis in original]. The court  also  acknowledged that on  this  understanding  of  the “reasonable classification” test, a  statutory provision would “very seldom” [emphasis in original] fail to pass muster under the first  limb  of  the  test,  which  set  out  only  a  “threshold  legal  criterion” [emphasis in original]. Citing Lim Meng Suang (HC) at [47], the court held in Lim Meng  Suang (CA)  (at  [65])  that  the  first  limb  of  the  “reasonable classification” test calls for nothing more than that the relevant differentia “be understood or  [be]  capable  of  being  apprehended  by  the  intellect  or understanding, as opposed to by the senses”. 310 However, the court  caveated in  Lim Meng Suang (CA) (at [67]) that a differentia which is capable of being understood or apprehended by the intellect or understanding may nevertheless “still be unintelligible to the extent that it is so unreasonable as to be illogical and/or incoherent” [emphasis in original]. In this regard,  the  illogicality  and/or  incoherence  must  be “so extreme that no reasonable person would ever contemplate the differentia concerned as being functional as [an] intelligible differentia” [emphasis in original]. 311 As for the second limb of the “reasonable classification” test, it was noted in  Lim  Meng  Suang (CA)  (at  [68])  that  what  this  limb  required  was  “a rational relation” [emphasis in original]  between  the  differentia  embodied  in and  the  legislative  object  of  the  statutory  provision  in  question. Further, “the requisite rational  relation  will  –  more  often  than  not  –  be  found”, not least because a  perfect  relation  or  complete  coincidence  is  not  required  (see  Lim Meng  Suang (CA)  at  [68]). That said,  the  court  ultimately  held  in  Lim  Meng Suang (CA) (at  [153])  that  there  was  “a  complete  coincidence” [emphasis in original]  between  the  differentia  embodied  in  and  the  legislative  object  of s 377A. While the  court  did  not  explicitly  articulate  the  legislative  object  of s 377A,  it  appeared  to have adopted the first instance judge’s finding  that s 377A was  intended  to  criminalise  male  homosexual  conduct  owing  to  the perceived undesirability of such conduct (see Lim Meng Suang (CA) at [24] and [27]). Given how  the  legislative  object  of  s 377A  was  framed  in  Lim  Meng Suang (CA), it  is  unsurprising  that  the  court  went  on  to  find  a  complete coincidence between  that  legislative  object  and  the  differentia  embodied  in s 377A.

312 In  Lim  Meng  Suang (CA),  the  court  also  considered  (at  [114])  the hypothetical example  of  a  law  banning  all  women  from  driving. The court suggested that  it  would  be  at  least  arguable  that  such  a  law  would  not  pass muster under the “reasonable classification” test, chiefly because the differentia embodied in that law might be illogical and/or incoherent under the first limb of the test. Moreover, the court thought it to be at least arguable that there might not be  a  rational  relation  between  the  differentia  embodied  in  and  the  object sought to be achieved by such a law – unless the object of the law was precisely to ban all women from driving. The court indicated, however, that if that were the case,  one  would  have  to  return  to  the  question  whether  the  differentia embodied in such a law was illogical and/or incoherent under the first limb of the “reasonable classification” test. Therefore, under the Lim Meng Suang (CA) approach, such a law would arguably fail both limbs of the test. Comparison of the Lim Meng Suang (CA) and the Syed Suhail approaches 313 Since  the  decision  in  Lim  Meng  Suang (CA),  another  approach  to  the application of the “reasonable classification” test has emerged in our decision in Syed  Suhail. This was  a  case  concerning  administrative  review  of  an executive action, rather than constitutional review of a statutory provision. As will be discussed below, there are two main differences between the Lim Meng Suang (CA) and the Syed Suhail approaches, namely:

(a) whether, albeit in an extreme minority of cases, as suggested in Lim Meng Suang (CA), the first limb of the “reasonable classification” test permits consideration of the reasonableness (or lack thereof) of the differentia embodied in the statutory provision in question; and

(b) the level of scrutiny to which the impugned statutory provision is subject,  having  regard  to  its  correctly  identified  object  and  its relationship with the differentia employed. 314 Before delving into these differences, we consider first the commonality in the  two  approaches. This lies  in  the  first  limb  of  the  “reasonable classification” test, in so far as it serves the purpose of ensuring that there is a differentia that is capable of being assessed for legality under the second limb of the test. In Lim Meng Suang (CA), we explained (at [64]) why the first limb of the test necessarily operates prior to the second limb: if there is no intelligible differentia to  begin  with,  then  there  is  no  intelligible  differentia  that  can  be assessed  against  the  legislative  object  of  the  statutory  provision  in  question. Similarly, in Syed Suhail, we described (at [62]) the differential criterion as “an analytical tool used to isolate the purported rationale for differential treatment, so that  its  legitimacy  may  then  be  assessed  properly”  [emphasis  added]. The Lim Meng Suang (CA) and the Syed Suhail approaches are thus aligned to the extent that,  under  both  approaches,  the  first  limb  of  the  “reasonable classification” test is concerned with ensuring that the differentia embodied in the statutory  provision  in  question  is  one  that  can  be  assessed  against  the legislative object of that provision. This objective of the first limb of the test is realised under  the  Lim  Meng  Suang (CA)  approach  by  requiring  that  the differentia in question be capable of being understood or apprehended by the intellect or understanding; and under the Syed Suhail approach, by identifying the purported criterion for the differential treatment in question. 315 The  first  main  difference  between  the  Lim  Meng  Suang (CA)  and  the Syed Suhail approaches lies in whether, in extreme cases, the first limb of the “reasonable classification” test permits consideration of the reasonableness (or lack thereof) of the differentia embodied in the statutory provision concerned.

Under the Lim Meng Suang (CA) approach, the validity of a differentia may be called into question under the first limb of the “reasonable classification” test in extreme cases where the differentia is “so unreasonable as to be illogical and/or incoherent” [emphasis in original] (at [67]). Although this line from Lim Meng Suang (CA) contains the words “illogical” and “incoherent”, it is evident that the court was ultimately concerned with the reasonableness (or lack thereof) of a differentia, albeit only in extreme cases. 316 In this regard, we refer to the hypothetical example of a law banning all women from driving, which was raised in Lim Meng Suang (CA) at [114] and which we  referred  to  at  [312]  above. It will  be  recalled  that  the  court  in  Lim Meng Suang (CA) thought it arguable that such a law might fail the first limb of the “reasonable classification” test because the differentia embodied in that law might be “so unreasonable as to be illogical and/or incoherent” [emphasis in original] (at [67]). We return to this example at [319] below.

317 It therefore seems to us that, under the Lim Meng Suang (CA) approach, whether a differentia is “so unreasonable as to be illogical and/or incoherent” [emphasis in original omitted] goes beyond whether that differentia is capable of being understood or apprehended by the intellect or understanding. After all, a differentia that is so unreasonable that it fails the first limb of the “reasonable classification” test may  nonetheless  be  capable  of  being  so  understood  or apprehended. Instead, in  so  far  as  such  extreme  cases  are  concerned,  the question whether a differentia is “so unreasonable as to be illogical and/or incoherent” [emphasis in original omitted] inherently entails a judgment on the reasonableness (or lack thereof) of that differentia. 318 In  contrast,  under  the  Syed  Suhail  approach,  the  first  limb  of  the “reasonable classification” test is never concerned with the reasonableness (or lack thereof) of the differentia in question, even in cases where the differentia is extremely unreasonable. As we mentioned at [314] above, under the Syed Suhail approach, the first limb of the “reasonable classification” test is only concerned with identifying the purported criterion for the differential treatment in question. It is  only  at  the  second  limb  of  the  test  that  the  court  considers  “whether the differential treatment  [is]  reasonable”  [emphasis  added]  (see  Syed  Suhail  at [61]). In the  context  of  a  challenge  to  the  constitutionality  of  a  statutory provision under Art 12, the relevant inquiry under the second limb is whether the differential treatment bears “a sufficient rational relation to ... the object of the statutory provision” (see  likewise  Syed  Suhail  at  [61]). Hence, under  the Syed Suhail  approach,  a  grossly  unreasonable  differentia  of  the  kind contemplated in Lim Meng Suang (CA) at [67] would fail the second but not the first limb of the “reasonable classification” test. 319 Here, we return to the hypothetical example of a law banning all women from driving  (see  [312]  and  [316]  above). As we  mentioned  earlier,  it  was suggested in Lim Meng Suang (CA) at [114] that such a law might fail the first limb of the “reasonable classification” test as its differentia could plausibly be said to  be  so  patently  illogical  and/or  incoherent  that  “no  reasonable  person would ever contemplate [it] as being functional as [an] intelligible differentia” [emphasis in original] (see Lim Meng Suang (CA) at [67]). However, one would likely reach  a  different  conclusion  if  one  were  to  apply  the  Syed  Suhail approach. Under this approach, the first limb of the “reasonable classification” test is, in all cases, concerned only with identifying the purported criterion for the differential treatment in question. In so far as this hypothetical example is concerned, the  purported  criterion  for  differential  treatment  is  readily ascertainable – namely, gender. Hence, under the Syed Suhail approach, a law banning all  women  from  driving  would  likely  fail  the  “reasonable classification” test not because  the  gender-based  differentia  embodied  in  that law is  so  illogical  and/or  incoherent  that  it  fails  the  first  limb  of  the  test,  but because the differentia bears no rational  relation to any conceivable object of that law under the second limb of the test. In other words, under the Syed Suhail approach, such  a  law  would  fail  the  second  limb  of  the  “reasonable classification” test, even  though  it  would  be  found  to  have  an  intelligible differentia under the first limb of the test.

320 As against this, it might be argued that a law banning all women from driving might  not  necessarily  fail  the  second  limb  of  the  “reasonable classification” test under the Syed Suhail approach. In this regard, it might be said that if the object of that law is precisely to ban all women from driving, there would  be  a  complete  coincidence  between  the  gender-based  differentia embodied in  and  the  object  of  that  law. The rebuttal  to  this  argument  lies  in framing the object of  a law that is challenged under Art 12 at the appropriate level of generality, a point that we discuss in greater detail at [322]–[324] below. For now, it suffices for us to highlight that framing a ban on all women from driving as the very object of a law would be tantamount to saying that the object of that law is to introduce the differentia that it embodies – which is circular in reasoning. Put another way, the level of generality at which the object of a law is pitched would effectively be determined by the differentia embodied in that law, and there would necessarily be a perfect relation between the differentia and the object of that law. Given that the Syed Suhail approach is averse to the application of the “reasonable classification” test in any manner that renders it purely formalistic  (see  [325]–[327]  below),  it  would  be  impermissible,  under that approach, to frame the object of a law banning all women from driving as precisely that – to ban all women from driving. 321 To reiterate the first key difference between the Lim Meng Suang (CA) and the  Syed  Suhail  approaches,  a  differentia  that  is  patently  unreasonable would arguably fail both limbs of the “reasonable classification” test under the Lim Meng Suang (CA) approach; but, applying the Syed Suhail approach, such a differentia would likely fail the second limb of the test. If the identification of the differentia embodied in a statutory provision is simply meant to “isolate the purported rationale [or criterion] for differential treatment” (see Syed Suhail at [62]), then the court should not read more into the first limb of the “reasonable classification” test. It should be noted, however, that to the limited extent that the Lim  Meng  Suang (CA)  approach  incorporates  (under  the  first  limb  of  the “reasonable classification” test) a substantive evaluation of the reasonableness of the differentia in question, that approach overlaps substantially with the Syed Suhail approach  (albeit  under  the  second  limb  of  the  test). Indeed, in  the example considered at [312], [316] and [319] above, both approaches result in the same conclusion that a law banning all women from driving would violate Art 12.

322 To  appreciate  the  second  area  of  difference  between  the  Lim  Meng Suang (CA) and the Syed Suhail approaches, we must first consider the second limb of the “reasonable classification” test under the Syed Suhail approach in some detail. Since the second limb pertains to whether there is a rational relation between the differentia embodied in and the legislative object of an impugned statutory provision,  a  key  issue  that  merits  consideration  is  the  level  of specificity at which the legislative object ought to be pitched. The “paramount importance” of properly framing the legislative object of a statutory provision was underscored in Tan Cheng Bock at [39]. Referring to the minority judgment in Attorney-General v Ting Choon Meng and another appeal [2017] 1 SLR 373 at [60], we highlighted (likewise at [39]) that “[c]asting the legislative purpose differently or  at  different  levels  of  generality  may  result  in  varying  and  even conflicting interpretations”. If one were to articulate the legislative object of a statutory provision in whatever terms would support one’s desired interpretation of the provision, the “reasonable classification” test could be reduced to nothing more than an exercise in legal formalism. 323 The importance of pitching the legislative object of a statutory provision at the appropriate level of generality is evident from the contrasting decisions reached by  the  High  Court  and  this  court  in  Taw  Cheng  Kong  v  Public Prosecutor [1998]  1 SLR(R)  78  (“Taw  Cheng  Kong (HC)”)  and  Taw  Cheng Kong (CA) respectively  (see  the  discussion  of  both  cases  in  Lim  Meng Suang (HC) at [52]–[60]). The statutory provision under consideration in both cases was s 37(1) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA”), which provided that a Singapore citizen  who  committed  an offence under the PCA in any place outside Singapore could be dealt with in respect of the offence as if it had been committed in Singapore. In Taw Cheng Kong (HC) at [51], the High Court construed the legislative object of the PCA narrowly as the eradication of corruption from the Singapore civil service and among fiduciaries  in  Singapore  (see  Taw  Cheng  Kong (HC)  at  [51]). This precipitated the  High  Court’s  finding  that  the  differentia  of  citizenship embodied in s 37(1) of the PCA did not bear a reasonable nexus to the legislative object of the PCA. In contrast, we framed the legislative object of the PCA much more broadly  as  the  control  and  suppression  of  corruption,  including  extra-territorial corruption (see Taw Cheng Kong (CA) at [63]). On this basis, we went on to  conclude  that  there  was  a  rational  relation  between  the  differentia  of citizenship in s 37(1) of the PCA and the legislative object of that statute. 324 The present appeals likewise illustrate how casting the legislative object of a  statutory  provision  differently  may  well  yield  different  results  under  the “reasonable classification” test. If one were to frame the legislative object of s 377A  as  the  expression  of  societal  disapproval  of  male-male  sex  acts,  as Ms Tan asserts, there would necessarily be a perfect coincidence between the differentia embodied in and the legislative object of s 377A. On the other hand, if one  were  to  cast  the  legislative  object  of  s 377A  more  broadly  as  the expression of  societal  disapproval  of  homosexual  conduct  in  general  or  the safeguarding of public morality generally, that would strengthen the case that s 377A falls afoul of the “reasonable classification” test. In this setting, s 377A would appear  to  be  under-inclusive  because  it  does  not  criminalise  female-female  homosexual  conduct,  for  instance. One could  then  conclude  that  the differentia embodied  in  s 377A  (namely,  male-male  sex  acts)  lacks  a  rational relation to the legislative object of reflecting societal disapproval of homosexual conduct in general or safeguarding public morality generally. The framing of the legislative object of a statutory provision could, of course, cut both ways. For example, if Dr Tan and Mr Choong had been able to argue successfully in their respective  appeals  that  the  legislative  object  of  s 377A  is  targeted specifically at  male  prostitution  only,  they  might  have  succeeded  in  showing that as s 377A applies to categories outside the narrow category just mentioned (namely, male  prostitution),  it  is  over-inclusive  and,  hence,  unconstitutional under Art 12.

325 It has been frequently noted that there need not be a “perfect relation” or a “complete coincidence” between the differentia embodied in  and  the legislative object  of  a  statutory  provision  in  order  for  the  second  limb  of  the “reasonable classification” test to  be  satisfied  (see,  for  instance,  Lim  Meng Suang (CA) at [68], which we referred to at [311] above). But the Syed Suhail approach emphasises  that  while  that  relationship  need  not  be  perfect,  it  also must not be so tenuous as to be incapable of withstanding scrutiny. This is so for two reasons: (a) the nature of the rights at stake; and (b) the constitutional role of the court.

326 First, equality before the law and the equal protection of the law are such fundamental rights  that  the  court  should  shun  the “austerity of tabulated legalism” when applying the “reasonable classification” test, so that individuals can enjoy the “full measure” of their Art 12 rights (see Ong Ah Chuan at 670). Second, whether a statutory provision breaches Art 12 is a matter for the court’s determination. If the “reasonable classification” test were too diluted, that would undermine the court’s constitutional role in safeguarding individuals’ Art 12 rights. The court should therefore be chary of construing or applying the “reasonable classification” test in a manner that effectively denudes Art 12 of real force. 327 This brings us to the second key difference between the Lim Meng Suang (CA) and the Syed Suhail approaches. In Syed Suhail, this court recognised (at [63]) that when applying the “reasonable classification” test, the context  can affect how stringently a statutory provision should be scrutinised. Syed Suhail concerned a prisoner who was facing imminent execution. He sought leave to commence judicial review proceedings against his impending execution based on, among other grounds, the scheduling of his execution before that of other prisoners who  had  been  sentenced  to  death  ahead  of  him. This court  held  (at [63]) that:

When applying  [the  ‘reasonable  classification’]  test,  the  court would have due regard to the nature of the executive action in question. Since the present case was concerned with a decision which was  necessarily  taken  on  an  individual  rather  than  a broad-brush basis, and one which affected the appellant’s life and liberty to the gravest degree, the court had to be searching in its scrutiny. ... [emphasis added]

In contrast, the “reasonable classification” test was described in Lim Meng Suang (at [66]) as one that serves the “minimal threshold function of requiring logic and coherence in the [statutory provision] concerned” [emphasis  in original]. 328 In summary, the Lim Meng Suang (CA) and the Syed Suhail approaches to the “reasonable classification” test differ in two key respects. First, the first limb of the “reasonable classification” test assumes greater significance under the Lim Meng Suang (CA) approach, albeit only in cases where the differentia in question  is  so  illogical  and/or  incoherent  that  no  reasonable  person  would ever contemplate it as being capable of functioning as an intelligible differentia (at [67]). In contrast,  under  the  Syed  Suhail  approach,  the  reasonableness  (or lack thereof) of a differentia falls to be considered only under the second limb of the “reasonable classification” test. Second, the  Syed  Suhail  approach contemplates a  higher  level  of  scrutiny  when  evaluating  whether  a  statutory provision satisfies  the  “reasonable  classification”  test,  particularly  if  the provision has  a  significant  bearing on an individual’s life and liberty. In contrast, under  the  Lim  Meng  Suang (CA)  approach,  the  “reasonable classification” test is of a “threshold nature” and is only meant to sift out laws which are “patently illogical and/or incoherent” (see Lim Meng Suang (CA) at [70]–[71]). For the avoidance of doubt, the Syed Suhail approach does not afford the court an open-ended mandate to evaluate legislation on the basis of its policy preferences, for that would be outside its constitutional role. This is something we have  repeatedly  and  consistently  emphasised. Indeed, and  correlatively, there might  even  be  a  difference  when  considering  statutory  provisions  as compared to executive action for compatibility with Art 12. 329 Given our finding at [149] above that s 377A is currently unenforceable in its  entirety,  it  is  unnecessary  for  us  to  decide  whether  the  Lim  Meng Suang (CA) approach  or  the  Syed  Suhail  approach  to  the  “reasonable classification” test should be preferred. We have set out the broad differences between these  two  approaches  and  consider  that  this  issue  merits  further reflection on a suitable occasion in the future. =Conclusion=

330 As  we  have  repeatedly  emphasised,  the  court  cannot  take  a  blinkered approach to the political reality surrounding s 377A and the implications of this context on the constitutionality of the provision. The political compromise on s 377A that  was  struck  by  the  Government  in  2007  was  later  echoed  and elaborated on  by  AG Wong  in  2018. AG Wong’s representations  have engendered legitimate expectations which deserve legal protection so that the political compromise on s 377A may be properly upheld. We have held that to give full  effect  to  the  political  compromise  and,  in  turn,  AG Wong’s representations in  a  legally  acceptable  manner,  the  entirety  of  s 377A  is unenforceable 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 as to the prosecutorial policy that applies to  conduct  falling  within  the  Subset. Having answered  the  Anterior Question in  this  way,  it  is  unnecessary  for  us  to  address  the  constitutional questions raised by the appellants. They do not face any real and credible threat of prosecution under s 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision. 331 Given the unusual nature of these proceedings, the important questions of public interest that were raised and the findings that we have arrived at, we make no order as to costs for the proceedings both before us and in the court below. The usual consequential orders will apply.

Sundaresh Menon

Chief Justice

Andrew Phang Boon Leong

Justice of the Court of Appeal

Judith Prakash

Justice of the Court of Appeal

Tay Yong Kwang

Justice of the Court of Appeal

Steven Chong

Justice of the Court of Appeal Ravi s/o Madasamy (Carson Law Chambers) for the appellant in Civil Appeal No 54 of 2020;

Eugene Singarajah Thuraisingam, Suang Wijaya, Johannes Hadi and Joel Wong En Jie (Eugene Thuraisingam LLP) for the appellant in Civil Appeal No 55 of 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 the appellant in Civil Appeal No 71 of 2020;

Certified True Copy

Senior Manager

Office of the Chief Justice

Supreme Court Singapore

Tan Seng Kee v AG [2022] SGCA 16

Kristy Tan Ruyan SC, Hui Choon Kuen, Wong Huiwen Denise, Jeremy Yeo and Pang Ru Xue Jamie (Attorney-General’s Chambers) for the respondent in Civil Appeals Nos 54, 55 and 71 of 2020. =See also=
 * Section 377A of the Penal Code (Singapore)

=References=
 * The original document in PDF format may be downloaded here:

=Acknowledgements=

This article was archived by Roy Tan.