The prosecution has filed an appeal against the High Court's decision last week to acquit a 39-year- old transgender individual of sexual penetration of a minor.
In the unusual case, Zunika Ahmad, who is biologically female but lived as a man, had pleaded guilty last year to six counts of sexual penetration of a minor and one count of sexual exploitation under the Children and Young Persons Act.
However, in an unexpected twist last Tuesday, Senior Judge Kan Ting Chiu cleared her of the sexual penetration charges after ruling that only a man can be found guilty of the offence under Section 376(A)(1)(b) of the Penal Code.
In a statement yesterday, the Attorney-General's Chambers (AGC) reiterated the prosecution's position that the provision in question was "clearly intended by Parliament to be gender-neutral".
It said that after reviewing Justice Kan's written grounds of decision, the prosecution has concluded that "an appeal is merited" against his finding that the provision does not apply to women.
The prosecution is also appealing against his decision to set aside Zunika's guilty plea and to acquit her, as well as the eight-month jail term imposed for the remaining charge of sexual exploitation.
Zunika, who passed herself off as an Indonesian man and even "married" two wives, had pleaded guilty last December to sexually abusing a girl who lived in the neighbourhood.
The girl, who cannot be identified, was aged 13 to 14 when Zunika violated her using external aids.
Justice Kan said in his grounds of decision that after accepting Zunika's plea of guilt, a doubt arose as to whether a woman can be charged with sexual penetration of a minor. Notwithstanding arguments from both prosecution and defence that the offence can apply to women, he decided to reject Zunika's plea of guilt on the six charges and acquitted her.
Section 376A(1)(b) 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 was guilty of an offence.
In his interpretation, Justice Kan said A must be a person with a penis and, therefore, cannot be a woman. He said it was beyond the court's power to interpret A to include a woman. It was up to the legislature to amend the law to make it clear that A includes a woman, if that was its intention, he said.
The AGC said the ruling on Section 376A(1)(b) is a "matter of public interest". Prosecutors had set out the legislative history of the provision and relevant legislative materials in arguing that Section 376A was clearly intended to be gender-neutral.
The prosecution had argued that an analysis of the wording of the provision in the context of the Penal Code as a whole showed it was "clearly intended to apply to both male and female accused persons".
When contacted, lawyer N. Sudha Nair said she will still represent Zunika but declined further comment.