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Mr Tan Eng Hong, 49 year-old, represented by civil rights lawyer M Ravi was granted a high court hearing to challenge the constitutionality of Section 377A of Singapore's penal code. This move came after a ruling by the Court of Appeal on Tuesday 21 August 2012 that Mr Tan has locus standi (legal standing) to pursue the case.

Mr Tan was arrested and initially charged with S377A for having oral sex with another man at a public toilet in CityLink Mall on March 9, 2010. A constitutional challenge on the legality of S377A by Mr Tan ensued--but the charge was then amended to Section 294A of the penal code on October 15, 2010, to state that he had committed an obscene act in a public place. Both men pleaded guilty to the amended charge but Mr Tan decided to proceed with the constitutional challenge application.

The Attorney General has sought to strike out the application on grounds that Mr Tan has no standing since he was not charged under S377A and that there is no controversy in S377A.

The application was struck out on December 7, 2010 by the Assistant Registrar on the grounds that Mr Tan has no locus standi and that it would be an abuse of the court process.

The latest ruling by the Court of Appeal overturns this earlier ruling. The Court of Appeal, comprising Judges of Appeal Andrew Phang and V K Rajah, and Judge Judith Prakash, said in their 106-page judgement that they found an arguable case on the constitutionality of S377A of the penal code that merits a proper hearing. This decision was made on the following two points:

1. Mr Tan was at the outset arrested, investigated, detained and charged exclusively under Section 377A. The judges surmise that this raises the issue as to whether Mr Tan's initial detention and prosecution were in accordance with the law.

2. There is a real and credible threat of prosecution under S377A. Notably, the judges acknowledged that S377A in its current form extends to private consensual sexual conduct between adult males. They said in their judgement that "this provision affects the lives of a not insignificant portion of our community in a very real and intimate way."

"The constitutionality or otherwise of Section 377A is thus of real public interest. We also note that Section 377A has other effects beyond criminal sanctions," the judges added.'s social commentator Ted Young sounds a note of cautionary optimism in the latest ruling, "The way the judgement is worded definitely sounds positive but we should remain cautiously optimistic given that there is little precedent for the local courts to overrule an existing legal provision."

When asked whether the fact that the incident arises from a sex act in a public toilet detracts from the moral standing of the case, Ted Young said, "For the longest time, the local authorities have been able to use S377A as they wish as a catch-all provision for all sorts of so-called sexual crimes between men be it public sex, under-aged sex, or whatever that sticks. It's time that such unchecked authority be given a full legal scrutiny."

With this move, not merely the plaintiff but all gay Singaporeans are given our day in court.


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