Public Prosecutor v BAB

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu SJ
• Judgment Date: 12 April 2016
• Neutral Citation: [2016] SGHC 61
• Plaintiff Counsel: Dwayne Lim and John Lu (Attorney-General's Chambers)
• Docket Number: Criminal Case No 41 of 2015
• Date: 12 April 2016
• Hearing Date: 07 December 2015
• Subject Matter: Criminal Law,Purposive approach,Statutory offences,Statutory Interpretation,Construction of statute,Interpretation Act,Penal Code,Literal
• Year: 2016
• Citation: [2016] SGHC 61
• Defendant Counsel: N Sudha Nair (M/s Lexcompass LLC)
• Court: High Court (Singapore)
• Published date: 20 January 2017

Kan Ting Chiu SJ:

The principal issue in this case is the meaning of s 376A(1)(b) of the Penal Code (Cap 224, 2008 Rev Ed) and the application of s 9A of the Interpretation Act (Cap 1, 1997 Rev Ed) to its construction.

A woman (“the Accused”) was charged with 21 charges for offences against a minor girl (“G”): 20 charges under s 376A(1)(b) of the Penal Code (“the provision”) — 15 of them were for using a dildo, and five for using her fingers to penetrate G’s vagina — and one charge under s 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”) for committing an obscene act on G by kissing her on the lips and licking her breasts. At the commencement of her trial, the Accused pleaded guilty to six charges under s 376A(1)(b) and to the charge under s 7(a) and she agreed to have the remaining 14 charges under s 376A(1)(b) taken into consideration for the purpose of sentencing. However, after listening to the mitigation plea and submissions on sentence and before I sentenced the Accused, a doubt whether a woman could be charged with an offence under s 376A(1)(b) arose in my mind and I directed counsel for the prosecution and the Accused to address me on this. In their written submissions, both counsel submitted that when s 376A(1)(b) is read with s 9A of the Interpretation Act and is given a purposive interpretation, a woman could be charged under s 376A(1)(b). After reading the submissions, after reading carefully the decisions of our courts and statutory interpretation and giving further thought to the question, I came to the conclusion that the provision does not cover women as offenders.

In the circumstances, the charges cannot stand even after the Accused had pleaded guilty to them. Section 228(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) obliges a court to reject a plea of guilt by an accused person who has pleaded guilty and has been convicted if his or her plea in mitigation raises any matter which materially affects “any legal condition required by law to constitute the offence charged.” The basis for this provision is clear; a conviction should not stand if no offence has been committed. The principle has to be applied further; when a court finds that an accused who has pleaded guilty is actually not guilty, the court should not act on the guilty plea, and should reject the plea whether the realisation came out of the mitigation plea or from any other circumstances. Going still further, even in a situation where an accused person has not pleaded guilty, but is convicted after trial, the court should set aside the conviction if it finds that no offence has been committed. The court has the obligation and the power to set aside the conviction as long as it is not functus officio, as it would be if it has fully disposed with the case, and has lost the ability to recall the case to rectify the defect. As I have not sentenced the Accused, I am not functus officio, and I reject the Accused’s guilty pleas to the six s 376A(1)(b) charges, set aside the convictions thereon and acquit her of them.

I shall explain my decision on the s 376A(1)(b) charges. S 376A(1) reads:

Any person (A) who –

(a) penetrates with A’s penis, the vagina, anus or mouth, as the case maybe, of a person under 16 years of age (B);

(b) sexually penetrates, with a part of A’s body (other than A’s penis) or any anything else, the vagina, or anus, as the case may be, of a person under the age of 16 years of age (B);

(c) causes a man under 16 years of age (B) to penetrate, with B’s penis, the vagina, anus or mouth, as the case may be, of another person including A; or

(d) causes a person under 16 years of age (B) to sexually penetrate, with a part of B’s body (other than B’s penis) or anything else, the vagina or anus, as the case may be of any person including A or B,

with or without B’s consent, shall be guilty of an offence.

The question

The question which I have to resolve is whether the person A in s 376A (1) (b) can be a woman. The provision is a relatively new one enacted in 2007, and the question had not been decided before. On a plain reading of (b), A is a person who has a penis which A had not used to penetrate B, and had used another part of the body or something else to do that. The reference to a person who has a penis cannot be construed to include a woman without doing violence to common sense and anatomy.

Legislative history

As the prosecution is committed to the position that the Accused can be charged under s 376A(1)(b), it is apposite to review its legislative history. This provision has a short history as criminal offences go. In 2006, the government took the unusual step of circulating a draft Penal Code (Amendment) Bill (“the draft bill”) before the actual bill (Bill 38 of 2007) was tabled in Parliament, and invited public feedback on the proposed amendments. The Ministry of Home Affairs published a Consultation Paper on the Proposed Penal Code Amendments (“the consultation paper’) which explained that the Penal Code was undergoing a review which “will bring the Penal Code up to date, and make it more effective in maintaining a safe and secure society in today’s context”.¹ In part A(ii) of the consultation paper which dealt with new offences, paragraph 22 stated:

A new offence of sexual assault by penetration would be introduced. The intention is to prosecute non-consensual penetrative sexual acts, such as oral and anal sex and using body parts (other than the penis) and objects.

The provision in the draft bill (which was to evolve through the subsequent amendment bill and then into the form of the enacted provision) is s 376A (2):

Any person (A) who –

(a) sexually penetrates, with a part of A’s body (other than A’s penis) or anything else, the vagina or anus of a person under the age of 16 years of age (B);

(b) causes a man under 16 years of age (B) to penetrate, with B’s penis, the vagina, anus or mouth of another person (C); or

(c) causes a person under 16 years of age (B) to sexually penetrate, with a part of B’s body (other than B’s penis) or anything else, the vagina or anus of A or B or of another person (C), with or without B’s or C’s consent, shall be guilty of an offence.

In the accompanying Explanatory Notes to Proposed Amendments to Penal Code Offences (“explanatory notes”) to the draft bill, paragraph 11 is of particular relevance to the issue here:

Gender neutrality

In the review, we considered whether provisions which are currently gender-specific should be amended to provide for gender neutrality.

Having considered the matter, we have decided not to take the approach that all offences should be “gender neutral”. Many of our laws remain gender specific because they reflect situations where men tend to be the aggressors e.g. rape will remain an offence that only males can commit. The offence of rape is clearly understood to be non-consensual penile penetration perpetuated by a man on a woman. Due to the anatomical differences between men and women, the offence of rape should remain an offence that can only be physically be performed by a man. If a woman has sex with a minor, she can be prosecuted under section 7 of the Children and Young Persons Act (sexual exploitation of child or young person).

However, for offences where both a man or a woman could be the aggressor, our approach is to make it gender-neutral e.g. a female could be prosecuted for using any body part or object to penetrate the anus of a male victim.

After feedback to the consultation paper was received and considered, the proposed amendments moved forward. The provision was revised when it appeared in the Penal Code (Amendment) Bill (Bill 38 of 2007). The revised version in the bill was enacted without modification as s 376A.

During the second reading of the bill, Senior Minister of State for Home Affairs Associate Professor Ho Peng Kee informed the House that:

Feedback received highlighted concerns over female sexual abuse of male minors. On further consideration, we accept that these younger male children could be exploited by older women. Consequently, we have decided to make it an offence for a woman to engage in penile penetrative sexual acts with a male minor under 16 and to have commercial sex with a male minor under 18. Section 376A will be introduced to make oral and anal sex, whether consensual or non-consensual, with a minor under 16, an offence, attracting an imprisonment term of up to 10 years or fine or both. This new offence will also cover other penetrative acts such as penile-vaginal penetration and penetration of the anus or vaginal by any part of the body or object. [emphasis added]

(Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at col 2175)

The Minister went on to say on the following day:

We look at the provisions and look whether they ought to be made gender neutral. We have stated the position in this House before that do not take the position that all our criminal offences should be gender neutral because of the psychological and physiological differences between men and women. We had feedback saying that for some offences, perhaps, a female adult predator who “exploits” a male minor should be liable, like sexual assault by penetration. And we agreed. So, that is now proposed to be the law. [emphasis added]

(Singapore Parliamentary Debates, Official Report (23 October 2007) vol 83 at cols 2440–2441) It was not explained why gender neutrality for the offender was only extended to situations involving male victims. The revised version in the bill was enacted as s 376A(1)(b) of the Penal Code with one vote against vide Act 51 of 2007. Interpretation

The literal and grammatical meaning of the provision is clear. The person A referred to is a person with a penis which was not used to penetrate another person. If the intention was that A can be a man or a woman, that...