An archaic law that resurfaced has now been sunk

PETALING JAYA: Section 498 of the Penal Code, which criminalises the act of enticing, taking away or detaining a married woman with criminal intent, was an archaic law that had long been forgotten – until 2009.

Then, in a first of its kind, a businessman was accused of enticing TV presenter and model Daphne Iking by her then-husband Ryan Chong.

Darren Choy was alleged to have enticed Iking, knowing that she was a married woman, with the intention of having sexual intercourse.

This case went all the way to the Federal Court, where among the constitutional issues they wanted to raise was whether Section 498 was an unequal law as it imposes criminal liability only on men.

However, the Federal Court later sent the case back to the Magistrate’s Court for trial, as then Chief Justice Tun Zaki Azmi said the magistrate had to decide on the facts of the matter before it could be referred to the apex court to determine constitutional issues.

The case finally ended in March 2011 with Choy being acquitted of the charge.

Choy later apologised openly in court to Chong.

Chong decided not to pursue his private summons against the former.

Yesterday, the Federal Court finally made a decision on the constitutionality of the law, after a referral by a businessman who was charged under this section in a Magistrate’s Court in 2018.

The woman’s husband had lodged a complaint.

The provision that makes it a crime for a man to “entice” a married woman was found to be unconstitutional by as it “unlawfully discriminates only on the grounds of gender”.

In the court’s ruling, Chief Justice Tun Tengku Maimun Tuan Mat said Section 498 was a pre-Merdeka law within the meaning of Article 162 of the Constitution.

She added that it is not possible for a judicial amendment for the provision as doing so would require extensive amendment to the extent of changing the character of the offence.

Section 498 provides for imprisonment of up to two years, a fine, or both.