Section 17 of the Criminal Procedure Code which falls under PART IV: INFORMATION TO POLICE AND POWERS OF INVESTIGATION, Division 1 — Duties of police officer on receiving information about offences states:
"Procedure when arrestable offence is suspected
17.—(1) If, from information received or otherwise, a police officer has reason to suspect that an arrestable offence has been committed at any place, the police officer must, or if he is unable to attend to the case, another police officer acting in his place must —
(a) go as soon as practicable to the place to investigate the facts and circumstances of the case; and
(b) try to find the offender and, if appropriate, arrest the offender and report the case to the Public Prosecutor.
(2) Notwithstanding subsection (1) —
(a) if the police officer has reason to believe that the case is not of a serious nature, there shall be no need to go to the place to investigate the facts and circumstances of the case; or
(b) if the police officer has reason to believe that there are insufficient grounds for proceeding with the matter, he shall not do so.
(3) In each of the cases mentioned in subsection (2)(a) and (b), the police officer receiving the information shall state in his report his reason for not fully complying with subsection (1)"
.
Relation to Section 377A of the Penal Code[]
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 119 of the Penal Code
- Section 424 of the Criminal Procedure Code
References[]
Acknowledgements[]
This article was written by Roy Tan.