LHB v Public Prosecutor [2024] 1 MLJ 225

LHB v Public Prosecutor [2024] 1 MLJ 225

Federal Court (Putrajaya) 

Unconstitutionality of Section 498 Penal Code under Article 8(2) of the Federal Constitution

Facts of the case

1. The Appellant was charged in the Magistrate’s Court under section 498 of the Penal Code (‘the PC’). 
2. Section 498 of the PC provides that for any person to take or entice away another man’s wife (from the husband or her caretaker) with the intent of having illicit sexual intercourse, shall be punished with up to two years’ imprisonment, a fine or both.
3. The Appellant argued that the provision was unconstitutional as it violated the principle of equality under Clauses (1) and (2) of Article 8 of the Federal Constitution (‘the FC’).
4. It was contended that section 498 of the PC was archaic and discriminatory because it treated women as “chattels” (property) of their husbands. While a husband could seek prosecution for the enticement of his wife, a wife had no equivalent legal recourse if her husband was enticed away by another woman.
5. The Magistrate stayed proceedings and the High Court subsequently referred the constitutional question to the Federal Court for determination under section 84 of the Courts of Judicature Act 1964 (‘the CJA’).

1. Whether section 498 of the PC is unconstitutional on the grounds of unlawful discrimination, specifically violating the principle of equality under Clauses (1) and (2) of Article 8 of the FC.
2. Whether section 498 of the PC is a “pre-Merdeka” (existing) law or a “post-Merdeka” law, and what the legal effect would be if it were declared unconstitutional.

(1) Whether section 498 of the PC is unconstitutional on the grounds of unlawful discrimination, specifically violating the principle of equality under Clauses (1) and (2) of Article 8 of the FC.

(a) The Federal Court decided that the section 498 of the PC was found to be unconstitutional because it unlawfully discriminates solely on the ground of gender. The provision and section 132 of the Criminal Procedure Code (‘the CPC’) together make it clear that only a husband can initiate a complaint, excluding all wives from similar protection.

(b) Unlike the general equality provision in Clause (1) of Article 8, Clause (2) of Article 8 is a specific anti-discrimination clause. Discrimination on the basis of gender is only permissible if “expressly authorized” by the Constitution itself in which the Government failed to show any such authorization.

(c) The Federal Court emphasized that since the amendment of Clause (2) of Article 8 in 2001 to include “gender” as a prohibited ground of discrimination, any law that discriminates based only on gender is void unless “expressly authorized” by the Constitution itself.

(d) Clause (2) of Article 8 is a specific anti-discrimination provision. Therefore, the general “reasonable classification” test used for Clause (1) Article 8 cannot be used to validate discrimination that falls under the specific grounds (like gender) listed in Clause (2) of Article 8.

(e) The Court cited the case of Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116, which established that discrimination on grounds specified in Clause (2) of Article 8 cannot be validated by the principle of “reasonable classification” permitted under Clause (1) of Article 8.

(2) Whether section 498 of the PC is a “pre-Merdeka” (existing) law or a “post-Merdeka” law, and what the legal effect would be if it were declared unconstitutional. 

(a) The Federal Court determined that section 498  of the PC is an “existing law” (pre-Merdeka) under Article 162 because its core substance and character have remained unchanged since the Penal Code was first introduced in the Malay States long before 31 August 1957. Although the Penal Code has been revised and republished multiple times (such as in 1948 and later), these are administrative “revisions” rather than the enactment of a new law.

(b) Regarding the legal effect, because it is an “existing law,” the Court’s duty under Clause (6) of Article 162 is to “modify” it to bring it into accord with the Constitution. However, if a law is so intrinsically discriminatory that it cannot be modified without the Court essentially acting as a legislator (rewriting the offense to be gender-neutral), the only valid “modification” is to judicially repeal it. Because section 498 of the PC language is so intricately focused on the husband’s rights over the wife, it could not be judicially amended to include wives without fundamentally changing the nature of the offence.

(c) The Court referred to the case of B Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 169, regarding the Court’s power to modify existing laws and the case of Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311, which support for the principle that the Court’s declaration of unconstitutionality can have prospective effect to preserve previous completed prosecutions.

1. The Federal Court unanimously declared section 498 of the PC unconstitutional for violating Clause (2) of Article 8 of the FC.
2. The Court exercised its power under Article 162 of the FC to judicially repeal section 498 of the PC in its entirety.
3. To preserve past prosecutions that have already been completed, the Court declared that this judgment takes effect prospectively (only for future cases and ongoing proceedings).
4. The case was remitted to the High Court to make the necessary orders to give effect to this judgment regarding the ongoing proceedings in the Magistrate’s Court.

• The ruling effectively removes the crime of “enticement” from Malaysian law, acknowledging that laws treating women as property of their husbands are no longer compatible with modern constitutional values.
• The decision reinforces that Courts have a mandatory duty under Article 162 to fix or repeal pre-independence laws that conflict with the Federal Constitution, even if Parliament has not yet acted.
• The case clarifies that Clause (2) of Article 8 provides strict protection against gender-based discrimination and such laws cannot be justified by “reasonable classification” unless the Constitution expressly allows it.
• The Court’s use of prospective effect ensures that the declaration of unconstitutionality does not retroactively invalidate old convictions, maintaining legal certainty for past cases.