Public Prosecutor v BAB

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 06 January 2017
• Neutral Citation: [2017] SGCA 2
• Plaintiff Counsel: Kwek Mean Luck, Dwayne Lum and Tan Zhongshan (Attorney-General's Chambers)
• Docket Number: Criminal Appeal No 6 of 2016
• Date: 06 January 2017
• Hearing Date: 10 October 2016,28 September 2016
• Subject Matter: Statutory interpretation,Penal statutes
• Published date: 11 January 2017
• Defendant Counsel: N Sudha Nair and Lum Guo Rong (Lexcompass LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 2
• Year: 2017

Tay Yong Kwang JA (delivering the grounds of decision of the court): Introduction

This was an appeal by the Prosecution against the decision of the High Court Judge (“the Judge”) in Public Prosecutor v BAB [2016] 3 SLR 316. It involved the interpretation of s 376A(1)(b) of the Penal Code (Cap 224, 2008 Rev Ed), in particular, whether this provision was intended by Parliament to apply to female offenders.

The respondent, now 40 years old, is biologically a female but has lived as a male since the age of 16. It was common ground between the Prosecution and counsel for the respondent that she was suffering from Gender Dysphoria. She managed to obtain a false passport with a male name. She maintained the charade of being a male by dressing like one and wearing a dildo. She was apparently so convincing as a male that she even married two women. She fooled the two women by telling them that under the Batak culture, they were not allowed to touch or to see her penis because if they did that, she would no longer be able to have an erection. She would have sex with the two women in the dark or by using a pillow or a comforter to prevent them from looking at her uncovered private parts. The two women are not involved in any of the charges discussed below.

We now set out the background facts leading to the charges and the procedural history of this case.

Facts

The respondent suffered from Gender Dysphoria, which, according to one of the psychiatrists who examined her, was evident by her strong desire to be male. The victim, V, was a female minor who was 13 and 14 years old at the material time of the offences.

In 2011, the respondent and V became acquainted as they were neighbours, living on the same floor of flats in a public housing estate. V was unaware that the respondent was a female and believed she was a male at the material time. V frequently visited the respondent at the latter’s flat (“the flat”) after school. They began to develop feelings for each other.

In January 2012, the respondent kissed V on her cheek for the first time while they were in a taxi travelling to a family outing. In February 2012, when V was 13 years old, the respondent brought her to the kitchen of the flat and kissed her on the lips. The respondent then brought her to the master bedroom, removed her T-shirt and her brassiere before proceeding to lick her breasts and nipples. This incident in the flat formed the subject of the charge under s 7(a) of the Children and Young Person’s Act (Cap 38, 2001 Rev Ed) (“the CYPA”).

About a month later, on 16 March 2012, the respondent and V were alone in the flat. At the request of the respondent, V agreed to have sex with her. The respondent brought her to the master bedroom and proceeded to remove V’s clothes. The respondent then sexually penetrated V’s vagina with the dildo which the respondent was wearing. V was below 14 years of age then.

From March 2012, V and her siblings began to spend most of their time at the flat. They would go home from time to time during the day to shower and to get changed. They would sleep overnight at the flat but would shower, change and dress in their home every morning before leaving for their respective schools. V’s father was aware of this and allowed the situation to continue as he trusted the respondent. Both families were also on good terms at that time.

Following this, the respondent and V began engaging in sex frequently with the respondent using the dildo that she was wearing. On 9 April 2012, while V was still below 14 years of age, the respondent sexually penetrated V’s vagina with the dildo.

In December 2012, after V had turned 14 years old, the respondent sexually penetrated V’s vagina with the dildo that she was wearing. The respondent committed the same act in June 2013.

Sometime in August 2013, while they were being intimate, V began to masturbate the respondent’s “penis” through her shorts. In fact, this “penis” was the dildo that the respondent was wearing. As V masturbated the respondent, the latter used her finger to sexually penetrate V’s vagina. This happened again in September 2013.

In December 2013, the respondent felt guilty about her relationship with V and decided to end it. On 21 March 2014 at about 11pm, the respondent and V had an argument. V then told her family members about what had happened between her and the respondent. The respondent eventually went to V’s flat to apologise and admitted to having “sex” with V. She pleaded with V’s family not to report the matter to the police. After discussing with her family, V lodged a police report on 23 March 2014 stating that she had sex with the respondent, giving the respondent’s male name and describing her as a male.

The day before V lodged the police report, the respondent left Singapore for Kedah with her sister as she feared that she would be arrested. Her sister subsequently persuaded her to return to Singapore. Before they boarded the plane for the flight back, the sister informed the Singapore police who waited for them. The police arrested the respondent when she returned on 25 March 2014.

The charges

The respondent faced a total of 21 charges for offences against V. 20 charges were brought under s 376A(1)(b). Out of these 20 charges, eight were punishable under s 376A(3) because V was under 14 at the time of the offences and 12 were punishable under s 376A(2) as V was under 16 at the time of the offences. All the eight charges punishable under s 376A(3) were for sexual penetration with a dildo with V’s consent. Of the 12 charges punishable under s 376A(2), seven were for sexual penetration with a dildo with consent and five were for digital penetration with consent.

The last charge was for sexual exploitation of a young person under s 7(a) of the CYPA by kissing V on the lips and licking her breasts and nipples while she was under 14 years old (see [6] above). All 21 charges related to incidents that took place between February 2012 and December 2013.

Based on the facts set out above, the Prosecution proceeded with the following seven charges (“the proceeded charges”) against the respondent: two charges under s 376A(1)(b) punishable under s376A(3) (penetration of V’s vagina with a dildo while V was under 14 years of age); two charges under s 376A(1)(b) punishable under s376A(2) (penetration of V’s vagina with a dildo while V was under 16 years of age); two charges under s 376A(1)(b) punishable under s 376A(2) (digital penetration of V’s vagina when V was under 16 years old); and one charge under s 7(a) CYPA (kissing V on the lips and licking her breasts and nipples when V was under 14 years old).

The procedural history

The matter was fixed for hearing in the High Court on 7 December 2015. The respondent pleaded guilty to the proceeded charges and admitted to the statement of facts without qualification. She was convicted accordingly on the proceeded charges. The respondent also gave her consent for the remaining 14 charges to be taken into consideration for the purpose of sentencing. The Prosecution and the respondent, both having tendered written submissions, made their oral submissions on sentence. The Judge then reserved judgment.

On 10 February 2016, the Judge directed the parties to file written submissions to address the question whether the words “a part of A’s body (other than A’s penis)” in s 376A(1)(b) implied that A had to be a male for the purpose of s 376A(1)(b). Parties were asked to file their submissions by 19 February 2016 but were subsequently granted an extension of time to 24 February 2016. On 12 April 2016, the Judge delivered judgment.

The Judge’s decision

The Judge first dealt with the interpretation of s 376A(1)(b). He discussed the legislative history of the provision referring to the draft iterations of the provision and the relevant parliamentary debates. The Judge opined that the literal and grammatical meaning of the provision was clear and that s 376A(1)(b) applied to a person with a penis. Turning to the purpose of the provision, the Judge noted that the question of making it an offence for a woman to use a part of her body or an object to penetrate the vagina or anus of a minor was under discussion. However, he said that different views could be taken on whether the provision extended to cover female offenders. According to the Judge, the fact that the provision was passed with only one vote against may be seen as evidence that the purpose expressed in the explanatory notes to the bill and in the minister’s speeches in Parliament was adopted for the provision. However, he went on to say that the choice of words in the statute could be taken as an indication that the offence was intended to apply to men only, “on the very reasonable assumption that Parliament understands the laws it passes”.

The Judge held that since the provision had only one meaning (ie, that it applied only to male offenders), to read it in line with the legislative purpose would amount to rewriting the provision and this would be impermissible in law. As the Judge was of the view that he was not functus officio at that stage, he set aside the convictions under s 376A(1)(b) and acquitted the respondent on those six charges.

The respondent was therefore left with only the conviction under s 7(a) of the CYPA. The Judge noted that there were some mitigating factors in favour of the respondent. These included the fact that she had no antecedents and that she surrendered herself and cooperated with the police. For this charge, there was no penetration or touching of naked genitalia, the acts were consensual and there was no coercion and no severe or lasting psychological harm on V. The Judge therefore passed a sentence of eight months’ imprisonment on the respondent for this sole charge.

The submissions

The Prosecution submitted that the Judge erred in interpreting s 376A(1)(b) as...