Section 119 of the Penal Code (Singapore)

Section 119 of the Penal Code which falls under CHAPTER V: ABETMENT states:

"A public servant concealing a design to commit an offence which it is his duty to prevent

119. Whoever, being a public servant, intending to facilitate, or knowing it to be likely that he will thereby facilitate, the commission of an offence, the commission of which it is his duty as such public servant to prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, shall, if the offence is committed, be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both; or, if the offence is punishable with death or imprisonment for life, be punished with imprisonment for a term which may extend to 15 years, and also be liable to fine; or if the offence is not committed, shall be punished with imprisonment for a term which may extend to one-fourth part of the longest term provided for that offence, or with such fine as is provided for that offence, or with both; or, if the offence not committed is punishable with death or imprisonment for life, be punished with imprisonment for a term which may extend to 7 years, and also be liable to fine. [51/2007]"

Relation to Section 377A of the Penal Code

Section 377A of the Penal Code criminalises "any act of gross indecency" between two males, even if it is consensual and private.

Under Section 119 of Penal Code, any policeman (regarded as a public servant) who fails to prevent a crime specified under Section 377A is punishable with imprisonment for a term which may extend to one year (one-half the longest term for Section 377A).

To illustrate with an example, if a domestic worker calls the police to inform them that her adult male employer is having sex with another consenting adult male, the police are mandated by Section 119 of the Penal Code to prevent the offence from taking place. Any omission to do so will result in a criminal penalty. Section 119 criminalises the action of the police by way of failure to attend at the scene of the private place where the alleged consensual sex between consenting adult males took place. Section 119 therefore brings the spectre of criminal prosecution to the police force for not preventing the aforesaid sexual acts between consenting adult males in private captured by Section 377A.

During the Penal Code review of 2007, Parliament announced that it would adopt a policy of non-proactive enforcement of Section 377A which criminalises sex between men. This effectively renders the statute arbitrary in a way that it no longer constitutes "law" within the meaning of Article 9(1) of the Constitution of Singapore, thereby making it unconstitutional. This is because of the dictates of Section 424 of the Criminal Procedure Code (Duty to give information of certain matters) which states that the commission of such acts as mentioned under Section 377A, the intention to commit, or the knowledge of commission of such acts by others must be reported to the police. The police, in turn, are obligated under Section 17 of the Criminal Procedure Code to go to the scene of the crime as soon as possible and arrest the culprits. Failure to report these acts of male gay sex is punishable by up to 6 months' imprisonment or a fine of up to $3,000 as specified under Section 176 of the Penal Code (Omission to give notice or information to a public servant by a person legally bound to give such notice or information). Retaining Section 377A therefore doubly criminalises gay and bisexual men - on the first level, for committing acts prohibited under Section 377A and on the second level, for not reporting those acts to the authorities. As such, Section 377A, when read with Section 424 of the CPC and Section 176 of the Penal Code, infringes on the right of these men to life and liberty afforded to them under Article 9(1) of the Constitution. Section 424 of the CPC is another uncertain and inconsistent aspect of the enforcement of Section 377A since people may not be aware whether a failure to report such acts, given the Attorney-General's non-prosecution policy, constitutes a reasonable excuse not to do so. Furthermore, Section 424 obliges gay and bisexual men to report their own sexual activities or intentions to the police while also imposing an obligation on their friends, families, and even neighbours to do the same. This leads to an absurd and arbitrary application of Section 424 on openly gay and bisexual men as it may subject them to surveillance by their acquaintances as well as to the humiliating and degrading acts of enforcement mandated by the law.

On the matter of obligating healthcare workers who are public servants to report patients who violate Section 377A to the police as well under Section 119 of the Penal Code, while an affidavit filed by Dr Derrick Heng on behalf of the AG asserted that the Ministry of Health “will not require its healthcare professionals to report patients to the police if they are aware that the patient has male sex partners, or even if the patient is HIV-positive,” this was also contrary to Section 424[1]. Section 119 of the Penal Code and Section 424 of the Criminal Procedure Code render criminal the omission of healthcare professionals in the civil service, as well as in their capacity as ordinary citizens, to report their patients to the police if they are aware of the sexual acts of their gay or bisexual patients. In this regard, healthcare workers are faced with the spectre of prosecution.

In terms of the enforcement of Section 377A, the discretion vested in the Attorney-General towards the non-prosecution of sexual conduct between consenting male adults in private needs to be considered against this statutory obligation imposed on the police to investigate complaints under Section 17 of the Criminal Procedure Code. The circumstances in which the private sexual conduct between two consenting men will be investigated or prosecuted are therefore unpredictable and vague.

See also

• Section 377A of the Penal Code
• Section 176 of the Penal Code
• Section 17 of the Criminal Procedure Code
• Section 424 of the Criminal Procedure Code

References

• Penal Code, Statutes Online:[2]
• Criminal Procedure Code, Statutes Online:[3]

Acknowledgements

This article was written by Roy Tan.