Public Prosecutor v BAB: Statutory Interpretation of Penal Code s 376A(1)(b) & Gender of Offender
In Public Prosecutor v BAB, the Court of Appeal of Singapore heard an appeal by the Prosecution against the High Court's decision regarding the interpretation of s 376A(1)(b) of the Penal Code. The respondent, a biologically female individual living as a male, was charged with multiple offences against a minor, V. The primary legal issue was whether s 376A(1)(b) applies to female offenders. The Court of Appeal allowed the appeal, holding that the provision is gender-neutral and applies to both male and female offenders. The respondent was sentenced to nine years' imprisonment for penetration of V's vagina with a dildo when she was under 14 years old, and one year for the offence under s 7(a) of the Children and Young Person's Act, to run consecutively.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Appeal Allowed
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The Prosecution appealed the High Court's decision regarding the interpretation of s 376A(1)(b) of the Penal Code, specifically whether it applies to female offenders. The Court of Appeal allowed the appeal, finding that the provision is gender-neutral.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Appellant | Government Agency | Appeal Allowed | Won | Tan Zhongshan of Attorney-General’s Chambers Dwayne Lum of Attorney-General’s Chambers Kwek Mean Luck of Attorney-General’s Chambers |
| BAB | Respondent | Individual | Conviction reinstated | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | No |
| Andrew Phang Boon Leong | Judge of Appeal | No |
| Tay Yong Kwang | Judge of Appeal | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Tan Zhongshan | Attorney-General’s Chambers |
| Dwayne Lum | Attorney-General’s Chambers |
| Kwek Mean Luck | Attorney-General’s Chambers |
| Lum Guo Rong | Lexcompass LLC |
| N Sudha Nair | Lexcompass LLC |
4. Facts
- The respondent is biologically female but has lived as a male since age 16 and suffers from Gender Dysphoria.
- The respondent obtained a false passport with a male name and maintained the charade of being male.
- The respondent married two women, deceiving them about her true gender.
- The victim, V, was a female minor who was 13 and 14 years old at the time of the offences.
- V was unaware that the respondent was female and believed she was male.
- The respondent engaged in sexual acts with V, including penetration with a dildo.
- V lodged a police report after an argument with the respondent.
5. Formal Citations
- Public Prosecutor v BAB, Criminal Appeal No 6 of 2016, [2017] SGCA 02
- Public Prosecutor v BAB, , [2016] 3 SLR 316
6. Timeline
| Date | Event |
|---|---|
| Respondent kissed V on the lips and licked her breasts and nipples. | |
| Respondent sexually penetrated V’s vagina with a dildo. | |
| Respondent sexually penetrated V’s vagina with a dildo. | |
| Respondent sexually penetrated V’s vagina with a dildo. | |
| Respondent sexually penetrated V’s vagina with a dildo. | |
| V masturbated the respondent’s “penis” through her shorts while the respondent used her finger to sexually penetrate V’s vagina. | |
| V masturbated the respondent’s “penis” through her shorts while the respondent used her finger to sexually penetrate V’s vagina. | |
| Respondent ended her relationship with V. | |
| Respondent and V had an argument; V told her family members about what had happened between her and the respondent. | |
| V lodged a police report stating that she had sex with the respondent. | |
| Respondent left Singapore for Kedah. | |
| Respondent was arrested by the police upon her return to Singapore. | |
| Hearing in the High Court. The respondent pleaded guilty to the proceeded charges. | |
| 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). | |
| Judge delivered judgment, setting aside the convictions under s 376A(1)(b) and acquitted the respondent on those six charges. | |
| Hearing date. | |
| Hearing date. | |
| Court of Appeal delivered the grounds of decision. |
7. Legal Issues
- Interpretation of s 376A(1)(b) of the Penal Code
- Outcome: The Court of Appeal held that s 376A(1)(b) is gender-neutral and applies to both male and female offenders.
- Category: Substantive
- Sub-Issues:
- Application of s 376A(1)(b) to female offenders
- Gender neutrality of penal statutes
- Related Cases:
- [2016] 3 SLR 316
8. Remedies Sought
- Criminal prosecution
- Imprisonment
9. Cause of Actions
- Sexual penetration of a minor
- Sexual exploitation of a young person
10. Practice Areas
- Criminal Appeals
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Public Prosecutor v BAB | High Court | Yes | [2016] 3 SLR 316 | Singapore | The High Court decision that was appealed against in the current judgment. |
| Moyna v Secretary of State for Work and Pensions | N/A | Yes | [2003] 4 All ER 162 | England and Wales | Cited for the principle of interpreting words in a legal provision within the context of the entire section. |
| Public Prosecutor v UI | N/A | Yes | [2008] 4 SLR(R) 500 | Singapore | Cited as a case in which abuse of trust and authority was regarded as an aggravating factor in sentencing sexual offenders. |
| Public Prosecutor v AOM | N/A | Yes | [2011] 2 SLR 1057 | Singapore | Cited as a case in which abuse of trust and authority was regarded as an aggravating factor in sentencing sexual offenders. |
| Public Prosecutor v Yap Weng Wah | High Court | Yes | [2015] 3 SLR 297 | Singapore | Cited for the proposition that abuse of trust and authority was regarded as an aggravating factor in sentencing sexual offenders and for the High Court imposing an imprisonment term of five years for fellatio on a minor who was 15 years old. |
| Mohamed Shouffee bin Adam v Public Prosecutor | N/A | Yes | [2014] 2 SLR 998 | Singapore | Cited for the proposition that the presence of multiple distinct offences over a long period is a cumulative aggravating factor which should be considered when the court decides how many imprisonment terms should run consecutively and for setting out guidelines in considering consecutive sentences. |
| AQW v Public Prosecutor | High Court | Yes | [2015] 4 SLR 150 | Singapore | Cited where the High Court considered an imprisonment term of between ten and 12 months to be the appropriate starting point for fellatio performed by or on a minor above 14 years of age who did not appear to be particularly vulnerable, without coercion or pressure and where there was no element of abuse of trust. |
| Public Prosecutor v Sim Wei Liang Benjamin | High Court | Yes | [2015] SGHC 240 | Singapore | Cited for the High Court imposing ten years’ imprisonment and ten strokes of the cane for each of the two statutory rape charges, five years’ imprisonment and two strokes of the cane for each of the two fellatio charges and 12 months’ imprisonment and two strokes of the cane for the digital-vaginal penetration charge. |
| Public Prosecutor v Ng Kean Meng Terence | High Court | Yes | [2015] SGHC 164 | Singapore | Cited where the High Court sentenced the accused to one year’s imprisonment and two strokes of the cane under s 376A(3) for an offence of digital penetration. |
| Public Prosecutor v Qiu Shuihua | High Court | Yes | [2015] SGHC 102 | Singapore | Cited where the district court imposed imprisonment terms of two months for digital-vaginal penetration and four months for penile-vaginal penetration. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 376A(1)(b) | Singapore |
| Children and Young Person’s Act (Cap 38, 2001 Rev Ed) s 7(a) | Singapore |
| Interpretation Act (Cap 1, 1997 Rev Ed) s 9A | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 307 | Singapore |
| Criminal Procedure Code s 325(2) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Gender Dysphoria
- Sexual penetration
- Minor
- Dildo
- Penal Code
- Statutory interpretation
- Gender neutrality
15.2 Keywords
- Penal Code
- Sexual Offences
- Gender
- Singapore
- Criminal Law
- Statutory Interpretation
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Sexual Offences | 95 |
| Criminal Law | 90 |
| Penal Code | 90 |
| Children and Young Persons Act | 80 |
| Statutory Interpretation | 70 |
| Criminal Procedure | 60 |
| Gender Dysphoria | 50 |
16. Subjects
- Criminal Law
- Statutory Interpretation
- Gender and Law