Mr Tan Eng Hong is represented by Mr M Ravi, a lawyer who is known for representing taking up constitutional law cases in Singapore. After Mr Ravi filed for the constitutional challenge months ago, subsequent to the arrest, the Attorney-General's Chambers(AGC) amended the charge to s294, for an obscene act in public. Mr Tan Eng Hong was subsequently convicted under s294, but the appeal to the High Court on the constitutionality proceeded on a different procedural track.
The AGC filed an application to strike out the constitutional law challenge, which meant that if the AGC succeeded, the Plaintiffs would not even be able to argue the merits of their case. The registrar who heard the application allowed it, saying that Mr Tan Eng, since he was no longer being prosecuted under s377A, had no standing to argue that his constitutional rights were being violated by s377A.
Mr Ravi appealed against the decision of the Registrar to the High Court. The hearing took place in February, and the judgment of the High Court has just been released.
The decision of the High Court, unlike the Registrar, has said Mr Tan Eng Hong does indeed have standing to argue that his constitutional rights have been violated. However, since he was not prosecuted, the case would be a hypothetical one, and hence there was no "real controversy" for the court to consider.
For our readers, it is important to emphasise that this is a very preliminary fight. The issue at hand is whether Mr Tan Eng's case should even be heard on its merits for the court to judge whether s377A is constitutional. It is not whether the law is constitutional, at this point. At the time of reporting, it is not clear whether Mr Ravi intends to appeal this case to the Court of Appeal. If the Court of Appeal rejects the appeal, that would mean that this case can never go forward. If they do allow it, the Plaintiffs will go back to the High Court for a proper hearing on whether s377A is constitutional.