Lo Pui Sang and Others v. Mamata Kapildev Dave and Others (Horizon Partners Pte Ltd, intervener) and Other Appeals [2008] SGHC 116

What happens when you are in a minority group of 20% and the law dictates that your rights may be subjugated to the decision of the majority 80% group? The instinctive reaction from a third party is probably predictable - “Of course, majority wins!”

The legal system, being conscious of notions of equality and fairness, does not always concur with the simple “majority-wins mantra” to the extent that it violates the right of the individual person to be protected by the law. The inherent vulnerability of the minority weighs heavily on the conscience of the law to warrant the institution of statutory protection in various forms: for example Sections 216 and 216(A) of the Companies Act (Cap. 50, 2006 Rev. Ed.) aimed at protecting minority shareholders; and Article 12 of the Constitution of the Republic of Singapore (1999 Rev. Ed.) which enshrines the right of all persons to equal protection by the law.

However, discrimination is definitely not taboo in the eyes of the law because it is not necessarily synonymous with inequality.

Lord Diplock in the seminal case of Ong Ah Chuan v. Public Prosecutor [1989] 1 AC 648 (”Ong Ah Chuan“) stated logically that what Article 12 of the Constitution assures the individual is the right to equal treatment with other individuals in similar circumstances [only]. Inequality can occur where the unlike are treated with like. It is also precisely through discrimination of the desirable and undesirable that our legal system is able to administer justice to meet the expectations of the people.

Therefore, where statutory provisions provide for the majority to trump the minority, the question is not whether the minority have been discriminated against, but rather, was the discrimination arbitrary and without any reasonable basis.

In this case, Mr KS Rajah, S.C. submitted on behalf of the appellants (minority shareholders) that the 80% rule in Sections 84A and 84B(1)(B) of the Land Titles (Strata) Act (Cap. 158, 1999 Rev. Ed.) are unconstitutional as they discriminated against the minority such that the majority has a choice as to where they wished to live while the minority would be deprived of that same choice.

It is submitted that Justice Choo was correct to point out that the law requires a deeper analysis than this, and the counter-arguments proffered by His Honour at paragraph 7 of his judgment to support his view that the provisions do not infringe Article 12 were persuasive. The right to equal protection under Art 12(1) must be determined from the outset and indeed, all the home owners had equal opportunity to sell their houses under the law. This means that the appellants’ argument failed at the first stage of the three-stage test for the constitutionality of discrimination under Article 12 formulated in Taw Cheng Kong v. Public Prosecutor [1998] 1 SLR 943 at [33], since the law was not discriminatory against the minority at the outset.

(Although the Singapore Court of Appeal subsequently overruled the High Court decision to strike out a statutory provision as unconstitutional, the formulation of the three-stage test remains a good expression of the test used by the courts following Ong Ah Chuan).

A differentiating factor in the legislation may not be discriminating to the people affected, depending on whether there has been a real classification from the outset. Broadly-speaking, differentiation is the modus operandi of the law and discrimination between people in different circumstances is impeccable insofar as the differentiating factor, in the words of Lord Diplock, bears a “reasonable relation to the social object of the law”.

It remains to be seen whether the minority home owners of Horizon Towers would appeal against the judgment which denied their claim of discrimination.
An Qi is a third year law student and a Senior Editor of SLR.