In an unexpected turn of events, the High Court yesterday cleared a woman of sexual penetration of a minor, ruling that only a man can be guilty of the offences.
Senior Judge Kan Ting Chiu made the unprecedented decision in the unusual case of Zunika Ahmad, a 39-year-old transgender individual who is biologically female but lived as a man and even married two women using the bogus identity of an Indonesian man.
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, "a doubt whether a woman could be charged... under Section 376A(1)(b) arose in my mind", said the judge.
He directed both sides to submit arguments on this issue. Both prosecution and defence concluded a woman could be charged under the provision. Justice Kan disagreed.
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.
The judge said A could not therefore be a woman. "The reference to a person who has a penis cannot be construed to include a woman without doing violence to common sense and anatomy," he said.
The provision was enacted in 2007 after a review of the Penal Code. The judge noted the question of making it an offence for a woman to use a part of her body or an object to sexually penetrate a minor was in fact discussed in Parliament.
Still, the courts have held that a provision which is grammatically and literally capable of only one specific meaning should be given that interpretation.
A is a person with a penis, he said. "This is not a case where A can be read to be a man, and can also be read to be a woman." If a court were to interpret A to include a woman, it would be re-writing the law, a power the court did not have, he said.
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.
He rejected the accused's plea of guilt on the six counts, set aside the convictions and acquitted her. For the remaining charge of sexual exploitation, he set eight months' jail.
Zunika will start her sentence in six weeks. Diagnosed with gender dysphoria, she speaks, dresses and behaves like a man.
The two women Zunika married did not know their "husband" was a woman until the offences came to light. They were in court yesterday.
Her lawyer, Ms N. Sudha Nair, said her client was sorry for the offences. She said Zunika would have gender reassignment surgery upon release from prison.