SINGAPORE - The Court of Appeal on Wednesday (Sept 28) overturned the earlier ruling of a High Court judge that only a man can be found guilty of the offence of sexual penetration of a minor.
"Section 376A(1)(b) is gender-neutral and is capable of applying to a female offender," said Chief Justice Sundaresh Menon, delivering the decision of the three-judge court, which also includes Judges of Appeal Andrew Phang and Tay Yong Kwang.
The court will issue detailed written grounds at a later date.
The decision came after prosecutors appealed against Senior Judge Kan Ting Chiu's decision in April to acquit Zunika Ahmad, a 39-year-old transgender individual who is biologically female but lived as a man, of six charges of sexual penetration of a minor.
Zunika pleaded guilty last December to six counts of sexual penetration under Section 376A(1)(b) of the Penal Code and one count of sexual exploitation under the Children and Young Persons Act.
She admitted committing these acts on an underage girl between 13 and 14 years old, who lived in the neighbourhood, using external aids.
But after she pleaded guilty, Justice Kan ruled that, based on the wording of the provision, only a man can be found guilty of the offence.
The provision states that "any person (A) who sexually penetrates, with a part of A's body (other than A's penis) or anything else", a person under the age of 16 is guilty of an offence. It covers sexual penetration that is not rape.
Justice Kan said A, as referred to in the law, is a person with a penis and therefore could not be a woman.
The judge said the "better course" was to leave it to the legislature to amend the provision to make it clear that A includes a woman, if that was indeed the intention.
However, the prosecution appealed against his decision.
On Wednesday, Second Solicitor-General Kwek Mean Luck argued that Parliament had clearly intended the provision to protect minors against sexual penetration, regardless of the sex of the offender.
The apex court agreed that the lower court had erred in his interpretation of the provision.
Zunika's conviction was reinstated. Sentencing was adjourned to Oct 10.
