Public Prosecutor v Kwan Kwong Weng

• Judgment Date: 20 February 1997
• Date: 20 February 1997
• Docket Number: Criminal Appeal No 30 of 1996
• Court: Court of Appeal (Singapore)

Public Prosecutor

Plaintiff

and

Kwan Kwong Weng

Defendant

[1997] SGCA 8

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 30 of 1996

Court of Appeal

Criminal Law–Offences–Unnatural offences–Carnal intercourse against order of nature–Whether act of fellatio constituting carnal intercourse against order of nature–Consent–Whether issue of consent relevant to conviction for act of fellatio–Section 377 Penal Code (Cap 224, 1985 Rev Ed)

The accused person and the victim worked at the same management corporation. The accused person told the victim that there was poison in her vagina which needed to be removed. The accused person told the victim that the treatment would involve the insertion of the penis with some brownish substance on it into the complainant's vagina. The victim agreed to the accused person carrying out the treatment and the accused person thereafter had sexual intercourse with the victim in a hotel. The accused person then told the victim that the treatment was not complete and would have to be repeated again. A few days later, they returned to the same hotel where they had sexual intercourse three more times. Just before the second and third times, the accused person told the victim that he had used up a lot of energy and needed to be revitalized. Accordingly, the victim agreed to and did perform fellatio on the accused person. The victim subsequently realised that she had been tricked and lodged a police report. The accused person was charged with two counts of fellatio under s 377 of the Penal Code (Cap 224, 1985 Rev Ed) (“s 377”) and diverse counts of rape, but the Prosecution withdrew the rape counts and proceeded only on the fellatio charges. At trial, the Prosecution conceded that despite the deception which was practised on the victim, she had consented to the acts of fellatio as her consent had not been vitiated. The High Court held that the fellatio in this case was not an offence under s 377 and acquitted the accused person without calling upon his defence. The Prosecution appealed against the acquittal.

Held, allowing the appeal:

(1) The Indian Penal Code was not intended to be a codification of the English criminal law as it existed when the Indian Penal Code was passed in 1860, although it might have a bias towards the principles of English criminal law of that time: at [17].

(2) The use of the words “carnal intercourse against the order of nature” in s 377 clearly indicated that the provision was intended to cover more than just the offences of sodomy and bestiality: at [17].

(3) The use of the word “carnal” instead of “sexual” in conjunction with “intercourse” in s 377 was intentional and it was to give the act a pejorative meaning and to degrade it: at [19].

(4) Any act, including fellatio, designed to bring sexual satisfaction or euphoria to a man performed on another man or a young boy, must be against the order of nature because there could be no union or coitus of the male and female sexual organs: at [25].

(5) Section 377 was an all-embracing provision covering all unnatural offences. Hence, as the section purported to cover more than one offence, it must follow that different criteria and different principles must be applicable to each individual instance of carnal intercourse against the order of nature: at [26].

(6) The only sexual intercourse in the order of nature was the coitus of the male and female sexual organs. Any other form of sexual intercourse would be carnal and against the order of nature. Hence, fellatio between a man and a woman would be carnal intercourse against the order of nature: at [28] and [29].

(7) When couples who engaged in consensual sexual intercourse willingly indulged in fellatio and cunnilingus as a stimulant to their respective sexual urges, neither act could be considered to be against the order of nature. In every other instance the act of fellatio between a man and a woman would be carnal intercourse against the order of nature and punishable under s 377: at [31].

(8) When fellatio was a substitute for natural sexual intercourse between a man and a woman capable in law of giving consent, the woman's consent to perform the act of fellatio could not save it from being an offence under s 377: at [32].

(9) In the instant matter, the concession made by the Prosecution that the complainant consented to performing fellatio was wrongly given on a mistaken view of the law. Hence, they could not be held bound by the concession. The facts clearly indicated that the victim was tricked into performing fellatio and her consent might be vitiated by s 90 of the Penal Code. Accordingly, a prima facie case was made out which if unrebutted would result in the conviction of the accused person. Hence, the appeal was allowed and the accused person called upon to make his defence: at [33] to [36].

Augustine Foong Boo Jang v PP [1990] 1 MLJ 225 (refd)

Gobindarajulu Naiker, Re 1 Weir 382 (refd)

Government v Bapoji Bhatt (1884) 94 Mysore LR 280 (not folld)

Haw Tua Tau v PP [1981-1982] SLR (R) 133; [1980-1981] SLR 73 (folld)

Khandu v Emperor (1934) 35 Cr LJ 1096 (refd)

Khanu v Emperor (1925) 26 Cr LJ 945 (refd)

Lohana Vasantlal Devehand v The State [1968] Cr LJ 1277 (folld)

PP v Tan Kuan Meng [1996] SGHC 16 (refd)

R v Olugboja [1982] QB 320 (refd)

R v Samuel Jacobs (1817) Russ & Ry 331; 168 ER 830 (refd)

Penal Code (Cap 224, 1985 Rev Ed) s 377 (consd);s 90

Chan Seng Onn, Danielle Yeow Ping Lin and Sim Yuan Meng (Deputy Public Prosecutors) for the appellant

Choy Kok Yew (K Y Choy & Co) for the respondent.

Judgment reserved.

M Karthigesu JA

(delivering the judgment of the court):

1 In this appeal we are directly confronted with the question, whether an act of fellatio performed by a woman on a man is an offence under s 377 of the Penal Code (Cap 224). The question posed in the words of s 377, in the context of this appeal, is whether the man, the respondent, by the act of fellatio has voluntarily had carnal intercourse against the order of nature with the woman, the complainant. Section 377 reads as follows:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary for the offence in this section.

It should be noted that both the sub-title and the marginal note refer to this section as “unnatural offences”. Until s 377A was added to this sub-title in 1938, s 377 was the only section under this sub-title.

2 The learned judicial commissioner who tried the respondent in the High Court held that the fellatio in this case was not an offence under s 377 and acquitted him without calling upon his defence. The Public Prosecutor now appeals against this acquittal.

3 Although the question for this court is a question of law we should nevertheless state the material facts. The complainant is a young woman aged 19 years who notwithstanding her age, her previous association with the opposite sex, (she has had two boyfriends before the incident in question) and her educational level (she is fluent in English, has passed her “O” Levels and is enrolled in a diploma course in mechanical and manufacturing engineering in the Polytechnic) was naive and gullible. She had taken on temporary work as a receptionist with a management corporation on 11 March 1996.

4 The respondent worked at the same management corporation as a plumber and handyman. He attended to residents' complaints which were referred to him by the complainant who received them in her...