Section 176 of the Penal Code (Singapore)

Section 176 of the Penal Code of Singapore states: "Omission to give notice or information to a public servant by a person legally bound to give such notice or information

176. Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with imprisonment for a term which may extend to one month, or with fine which may extend to $1,500, or with both; or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence or in order to the apprehension of an offender, with imprisonment for a term which may extend to 6 months, or with fine which may extend to $3,000, or with both.

[51/2007]

[Indian PC 1860, s. 176]"

=Relation to Section 377A of the Penal Code=

During the Penal Code review of 2007, Parliament adopted a policy of non-proactive enforcement of Section 377A which criminalises sex between men. This effectively rendered the statute arbitrary in a way that it no longer constitutes "law" within the meaning of Article 9(1) of the Constitution of Singapore, thereby making it unconstitutional. This is because of the dictates of Section 424 of the Criminal Procedure Code (Duty to give information of certain matters) which states that the commission of such acts as mentioned under Section 377A, the intention to commit, or the knowledge of commission of such acts by others must be reported to the police. Failure to do so is punishable by up to 6 months' imprisonment or a fine of up to $3,000 as specified under Section 176 of the Penal Code (Omission to give notice or information to a public servant by a person legally bound to give such notice or information). Retaining Section 377A therefore doubly criminalises gay and bisexual men - on the first level, for committing acts prohibited under Section 377A and on the second level, for not reporting those acts to the authorities. As such, Section 377A, when read with Section 424 of the CPC and Section 176 of the Penal Code, infringes on the right of these men to life and liberty afforded to them under Article 9(1) of the Constitution. Section 424 of the CPC is another uncertain and inconsistent aspect of the enforcement of Section 377A since people may not be aware whether a failure to report such acts, given the Attorney-General's non-prosecution policy, constitutes a reasonable excuse not to do so. Furthermore, Section 424 obliges gay and bisexual men to report their own sexual activities or intentions to the police while also imposing an obligation on their friends, families, and even neighbours to do the same. This leads to an absurd and arbitrary application of Section 424 on openly gay and bisexual men as it may subject them to surveillance by their acquaintances as well as to the humiliating and degrading acts of enforcement mandated by the law.

On the matter of obligating health professionals to report patients who violate Section 377A as well, while an affidavit filed by Dr Derrick Heng on behalf of the AG asserted that the Ministry of Health “will not require its healthcare professionals to report patients to the police if they are aware that the patient has male sex partners, or even if the patient is HIV-positive,” this was also contrary to Section 424. The latter renders criminal the omission of healthcare professionals in the civil service to report their patients to the police if they are aware of the sexual acts of their gay or bisexual patients. In this regard, healthcare professionals are faced with the spectre of prosecution.

In terms of the enforcement of Section 377A, the discretion vested in the Attorney-General towards the non-prosecution of sexual conduct between consenting male adults in private needs to be considered against this statutory obligation imposed on the police to investigate complaints. The circumstances in which the private sexual conduct between two consenting men would be investigated or prosecuted are unpredictable and vague.

=See also=
 * Section 377A of the Penal Code
 * Section 424 of the Criminal Procedure Code
 * Section 119 of the Penal Code

=References=
 * Penal Code, Statutes Online:
 * Criminal Procedure Code, Statutes Online:

=Acknowledgements=

This article was written by Roy Tan.