Lai Hen Beng v Public Prosecutor [2024]

In the case Lai Hen Beng v Public Prosecutor [2024], the appellant was charged in the magistrate’s court under section 498 of the Penal Code, which criminalized enticing or taking away another man’s wife for illicit sexual intercourse. He argued that section 498 was unconstitutional for violating Articles 8(1) and 8(2) of the Federal Constitution, as it treated women as the property of their husbands and denied wives equal legal recourse if their husbands were enticed away. The Court unanimously held that section 498 unlawfully discriminated on the basis of gender, contrary to Article 8(2) of the Federal Constitution. The Court noted that the provision applied only to husbands and was reinforced by section 132 of the Criminal Procedure Code, which permitted prosecutions only upon a husband’s complaint. Although section 498 was a pre-Merdeka (“existing”) law, and thus could not be struck down under Article 4(1), the Court held that it could not be adapted or amended to bring it into accord with the Constitution. Instead, the Court recommended that it be judicially repealed under Article 162 of the Federal Constitution and remitted the case to the High Court for appropriate orders. Section 498 of the Penal Code was declared unconstitutional due to gender discrimination under Article 8(2). A judicial repeal was recommended under Article 162 of the Federal Constitution.