If you are the type to celebrate Valentine’s Day, the dawn of “V Day” can be exciting or dreadful, depending on whether you have someone to spend it with.
For this year’s Valentine’s Day, legally speaking, your pool of potential candidates may have widened to include someone else’s spouse, due to the recent Federal Court’s decision in the case of Lai Hen Beng V. PP [2024] 1 CLJ 681 (‘Lai Hen Beng’).
The Appellant, Lai Hen Beng, a male, was charged under section 498 of the Penal Code, that is, an offence of enticing or taking away a married woman (‘Offence’). Essentially, the Appellant had fallen in love with another’s man’s wife and that is a criminal offence, at least until recently. If found guilty, one can be punished with imprisonment for a term which may extend to 2 years or with fine or with both.
Interestingly, it is not a criminal offence for a woman to entice and take away a married man!
So, the Appellant challenged the constitutionality of the Offence on the ground that the Offence violated the principle of equality governed under Article 8 of the Federal Constitution (‘FC’). The Appellant argued that the Offence discriminated against women, because an aggrieved husband can pursue any other person who had enticed his wife (under section 498), but there was no remedy to a wife whose husband is enticed by another woman.
The Federal Court held that the Offence was unconstitutional as it unlawfully discriminated against a particular gender, which violated Article 8(2) of the FC.
The court recognised that the Offence was enacted in the Victorian era when women were regarded as the personal property of men, and thus an archaic provision. The court held that in the modern era, men and women are both capable of being independent and making their own decisions concerning their love / married life and could hardly be considered as victims of enticement.
The court therefore repealed the Offence in its entirety and held that it is up to the Parliament to determine if it is necessary to enact the offence in another form to suit the modern society.
By virtue of the court’s decision, it is now no longer illegal for a man to entice a married woman and it has never been a crime for a woman to entice a married man. Be that as it may, do bear in mind that it is usually socially and morally unacceptable for anyone to entice another person’s spouse, and would almost certainly invite trouble including the possibility of a divorce.
So, who will be your date for this Valentine’s Day?
About the Author
Poon Wei Ying is a Senior Associate of XK Law who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.
