Public Prosecutor v. Taw Cheng Kong is a landmark case decided in 1998 by the Court of Appeal of Singapore which shaped the landscape of Singapore's constitutional law. The earlier High Court decision, Taw Cheng Kong v. Public Prosecutor, was the first instance in Singapore's history that a statutory provision was struck down as unconstitutional. The matter subsequently reached the Court of Appeal when the Public Prosecutor applied for a criminal reference for two questions to be considered. The questions were:
whether section 37(1) of the ("PCA") was ultra vires the powers of the legislature on the ground that the legislature had, under section 6(3) of the , been divested of the power to legislate extraterritorially; and whether section 37(1) of the PCA was discriminatory against Singapore citizens and hence inconsistent with Article 12(1) of the (now the ).
In answering both questions in the negative, the Court of Appeal overturned the High Court's finding that the statute was unconstitutional. The Court of Appeal further clarified Singapore's stance on legislative plenary power and expounded upon Article 12(1) of the Constitution, explaining that the promise of equality does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike. Drawing on foreign case law, the Court of Appeal further outlined the test to determine if a differentiating law falls foul of Article 12.
Facts
Taw Cheng Kong ("Taw") is a Singapore citizen, and was the Regional Manager (Asia Pacific) of the Government of Singapore Investment Corporation Pte. Ltd. ("GIC"), a sovereign wealth fund. Based in Hong Kong, he had charge of equity portfolios in Hong Kong and the Philippines, and had authority to decide which companies to invest in on behalf of GIC.Taw Cheng Kong v. Public Prosecutor 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 78 at 85, para. 1, High Court (Singapore) ("Taw Cheng Kong (H.C.)").
Taw was charged with corruption in deals involving GIC and Rockefeller & Co. Inc. It was alleged that Taw, at the instigation of Kevin Lee, managing director of Rockefeller's Far East operations, had orchestrated the purchase by GIC of the Pioneer Hong Kong Fund, which was managed by Rockefeller. For each transaction, Lee was alleged to have paid Taw a sum of money.Taw Cheng Kong (H.C.), pp. 85–86, paras. 2 and 4. Taw was tried and convictedTaw Cheng Kong (H.C.), p. 87, para. 9. in the District Court of eight charges of corruption under section 6(a)Taw Cheng Kong (H.C.), p. 85, para. 3. read with section 37(1) of the Prevention of Corruption Act ("PCA"). ("PCA"). Section 6(a) of the PCA provides as follows:
Section 37(1) of the PCA states:
Taw appealed to the High Court against his conviction on two main grounds. The first involved the admissibility of evidence for his corruption, and, additionally, inconsistencies of such evidence.Taw Cheng Kong (H.C.), p. 87, para. 10. The second concerned constitutional issues. With regard to the evidential issue, the Court held that the trial judge made an error in accepting GIC's statements as admissible, and thus ordered Taw's convictions to be set aside.
Constitutional arguments before the High Court In addition, Taw (the appellant) argued, first, that section 37(1) of the PCA was unconstitutional, and, secondly, that its enactment was ultra vires the legislative power of Parliament.
Section 37(1) of the PCA is ultra vires Parliament's legislative power The appellant contended that "any law in Singapore which seeks to have extraterritorial effect is, by that virtue of that alone, unconstitutional".Taw Cheng Kong (H.C.), p. 107, para. 76. He raised instances of extraterritorial laws of Malaysia and India, but differentiated them from the Singapore position since there were express provisions in the constitutions of these jurisdictions providing for the extraterritorial reach of their legislatures, namely, Article 73(a) of the Constitution of Malaysia and Article 245(2) of the Constitution of India. Article 73(a) of the Malaysian Constitution states:
Article 245(2) of the Indian Constitution likewise provides that:
In contrast, the Singapore Constitution contains no similar provision. The appellant hence argued that "Parliament [was] bound by an inherent limitation on its powers so any legislation purporting to have extraterritorial effect must have been ultra vires the Constitution".Taw Cheng Kong (H.C.), p. 108, para. 78.
The appellant further highlighted that section 6 of the Republic of Singapore Independence Act ("RSIA"), ("RSIA"). which was enacted shortly after Singapore's independence from Malaysia, provides that Part IV of the Constitution of Malaysia ceased to have effect in Singapore. Since Part IV contains Article 73(a) – the extraterritoriality clause – the appellant argued that its exclusion meant that Singapore's Parliament was not empowered to make any law which had extraterritorial effect.Taw Cheng Kong (H.C.), p. 109, para. 81.
Section 37(1) of the PCA is discriminatory
The appellant also contended that he had been convicted under section 37(1) of the PCA which discriminated against him "as a Singapore citizen in derogation of his rights under Art 12 of the Constitution".Taw Cheng Kong (H.C.), p. 88, para. 11. Article 12(1) of the Constitution states: "All persons are equal before the law and entitled to the equal protection of the law."
The appellant's argument rested on the alleged arbitrariness of the ambit of section 37(1), in that it employed citizenship as a criterion. He alleged this was most apparent "if an offence under the Act was committed by a non-citizen or permanent resident jointly with a Singapore citizen outside Singapore", as "only the Singapore citizen could be dealt with in respect of that offence, and not the non-citizen or permanent resident".Taw Cheng Kong (H.C.), p. 88, para. 12. Hence, the appellant argued that since section 37(1) "unfairly discriminates against him on the basis of citizenship",Taw Cheng Kong (H.C.), p. 88, para. 13. it must contravene Article 12 which provides that all persons, citizens and non-citizens alike, are equal. This rendered section 37(1) void according to Article 4 of the Constitution which provides:
Holding of the High Court Parliament had no legislative power to enact section 37(1) of the PCA The High Court rendered its judgement on 9 January 1998. It accepted the appellant's assertion that Article 73(a) was an empowering provision. Hence since section 6(3) of the RSIA had clearly and unambiguously excluded Article 73(a) of the Malaysian Constitution from applying in Singapore following its independence from Malaysia, Parliament had disempowered itself from legislating extraterritorially. Applying this to the case, the Court held that Parliament had no legislative power to enact section 37(1) of the PCA.Taw Cheng Kong (H.C.), p. 109, paras. 81–82.
Section 37(1) violates the rights to equality and equal protection In interpreting Article 12 of the Constitution the High Court paid homage to, and endorsed, the approach taken in the landmark case Ong Ah Chuan v. Public Prosecutor (1980),. an appeal to the Privy Council when it was still Singapore's final court of appeal. In the case, the Privy Council held that "equality before the law and equal protection of the law require that like should be treated with like".Ong Ah Chuan [1979–1980] S.L.R.(R.) at 725, para. 35. The court further clarified that laws that differentiate between classes are valid if "the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law".Ong Ah Chuan [1979–1980] S.L.R.(R.) at 725, para. 37.
Following the approach in Ong Ah Chuan, Judge of Appeal M. Karthigesu, sitting as a judge of the High Court in Taw Cheng Kong, sought to succinctly express the reasonable classification test as a means to combat three forms of arbitrariness.Taw Cheng Kong (H.C.), p. 93, para. 29. This can be expressed as follows: Form of arbitrarinessExplanation of arbitrarinessAction to guard against form of arbitrarinessFirst form of arbitrarinessArbitrary classification: there is no discernible basis of classification. To guard against this form of arbitrariness, all persons being discriminated must share a common identifying mark which is not borne by those persons not discriminated against.Second form of arbitrarinessArbitrary treatment between persons in the same class. To guard against this form of arbitrariness, all persons falling into a particular class must be treated the same way.Third form of arbitrarinessBasis or rationale of classification is arbitrary. To guard against this form of arbitrariness, the basis of classification must bear a reasonable relationship to the object of the executive action.
High Court's test
Upon reviewing the lines of Indian and Malaysian cases before him, Karthigesu J.A. reformulated a three-stage test to determine whether a statute or section will contravene Article 12 of the Constitution.Taw Cheng Kong (H.C.), p. 94, paras. 32–33. The judge's articulation of the test, premised on "elegance and simplicity",Taw Cheng Kong (H.C.), p. 94, para. 33. sought to address the three forms of arbitrariness as mentioned above. This test is described as follows, and is fully depicted by the diagram on the right:
Stage 1. Is the law discriminatory, in the sense that it prescribes different treatment amongst individuals? Stage 2. Is the discrimination founded on intelligible differentia? ("Intelligible differentia" is defined under the first form of arbitrariness.) Stage 3. Two further questions must be posed to ensure that the law is not arbitrary: (a) Are persons falling into the same class treated equally? If all the persons in the class are equally discriminated against, and all persons not discriminated against are equally not discriminated against, then the law does not offend this second order of arbitrariness. (b) Does the basis of discrimination bear a reasonable relation to the object of the statute? To answer this question, the following inquiries have to be undertaken: (i) What is the object of the statute? (ii) Is the basis of the discrimination a reasonable means of achieving the object?
Application of the High Court's test The crux of the High Court's holding rested on stage 3(b), as illustrated in the table below.Taw Cheng Kong (H.C.), p. 96, para. 37. In analysing the constitutionality of the provision with regards to this portion of the reasonable classification test, the Court first ascertained the object of section 37(1) of the PCA. It subsequently considered if differentiation on the basis of citizenship was a reasonable means of attaining the objective.
Stage ApplicationStage 1section 37(1) of PCA is discriminatory. A person who has committed an offence under the Act will be criminally prosecuted, as compared to a person who has not. Hence the Court proceeded to the second stage.Stage 2Singapore citizenship was considered by the Court to be an intelligible differentia, and hence the law is not arbitrary as there is a discernible classification between Singapore citizens and non-citizens or permanent residents. Hence the Court proceeded to the third stage.Stages 3(a)and (b)Section 37(1) passed stage 3(a). All Singapore citizens who have committed an offence under the Act will be prosecuted, while all non-citizens or permanent residents who have similarly committed an offence of corruption will be immune. The difficulty lay in stage 3(b), namely, whether the decision of the legislature to discriminate against Singapore citizens in the matters of corruption bore a reasonable relationship or rational nexus to the object of the Act.