Broken Promises Part II: HIV positive man prosecuted for s377A (Singapore)

This was reported in the Straits Times on 8th May.

IN THE first case of its kind, a chef infected with HIV was charged in court yesterday with engaging in oral sex with a 16-year-old without first informing him of the risks of contracting the virus that causes Aids.Chan Mun Chiong, 43, pleaded guilty to that charge as well as to another of committing an act of gross indecency with the teen.

The Ministry of Health summons charge said he had oral sex without first telling the teenager about the HIV risk. He also failed to get him to voluntarily agree to accept that risk. The offence carries a fine of up to $10,000 or up to two years in jail, or both.

The sex charge said that the bespectacled, spiky-haired man and the boy performed the sex acts in a cubicle of a men’s toilet at the Northpoint Shopping Centre in Yishun on Sept 15 last year. For the gross indecency charge, he faces a jail term of up to two years.

Chan, who did not have a lawyer, was released on $10,000 bail. He is expected back in court today for his case to be dealt with.

He does not face stiffer penalties that were passed by Parliament last month as they had yet to go into effect.

Under amendments to the Infectious Diseases Act, those found guilty of having unprotected sex even if they do not know but have ‘reason to believe’ that they have or have been exposed to HIV can be jailed for up to 10 years and/or fined up to $50,000.

The Health Ministry has in the past investigated some cases, but no one has been prosecuted until yesterday.

One case was compounded last year. In another case, a foreigner being investigated left the country in 2005 before he could be charged.

‘Tis the season, not for merry and joy, but for news after news of institutionalized homophobia, here in Singapore. Firstly, two media providers were separately fined by the MDA for airing content deemed to be too pro-gay, barely weeks apart. Secondly, a gay sauna was unreasonably and (possibly extra-legally) raided by the police.

At that time, we thought it was already treading the line that the Prime Minister Lee Hsien Loong set down, in the parliamentary debates of 2007:

There are gay bars and clubs. They exist. We know where they are. Everybody knows where they are. They do not have to go underground. We do not harass gays. The Government does not act as moral policemen. And we do not proactively enforce section 377A on them.

(Sing. Parliamentary Debates, vol. 83, col. 2354 (23 October 2007) (Prime Minister Lee Hsien Loong)).

They promised not to harrass us, but what else can one consider the sauna raid as? A friendly visit by the friendly neighbourhood cops?

Note, the key-term in PM Lee’s speech is proactively enforce. They did not promise not to enforce, and with this, a very clever political game has been played. Firstly, as the word “proactively” slips past the consciousness, the gay community is expected to pipe down and not complain about s377A contravening their rights. But it still gives them enough latitude to take it out as and when it is convenient – like in this instance.

Clearly, non-proactive enforcement is not enough for our protection, lest anyone thought we could just sit back and go about our lives in peace. There is no telling when the Damocles sword will drop, or will start swinging back and forth dangerously instead of just hanging there.

Whether or not this man gets ultimately convicted under the Infectious Diseases Act, a matter for the judge to decide, clearly something has gone wrong in the workings of the bureacracy. An enthusiastic public prosecutor has decided it is appropriate to bring double liability for his “crime”. The vindictive crusade to punish him under the s377A as well, brings to mind an earlier case of Tan Boon Hock v Public Prosecutor [1994] 2 SLR 150. In that case, the accused was entrapped (in an anti-gay operation) and charged under s354 – a charge of outrage of modesty against the police officer who entrapped him. Such a charge defies logic, and clearly the learned Chief Justice Yong Pung How thought the same, and acquitted him of the same, opining that the police officer, in choosing to act as bait for entrapment, had consented to whatever contact they had. Perhaps it is time that we collectively come to the realisation that prosecutors should not be persecutors, and secondly, we should be wondering why the legislative stance on the sparing usage of s377A has not trickled down to the prosecution.

Indeed, any public health justification for s377A disappears in the face of the Infectious Diseases Act which explicitly serves to deter risky sexual conduct regardless of sexuality, which further makes the double liability a perplexing matter. Unless of course, the real motivation behind the double liability is to specifically deter gay men from not disclosing their status to their partners, having been classified as a high-risk group by the Ministry of Health. This stand makes for bad criminal law, bad social policy, and bad public health policy. The real way to deal with the HIV situation is education and outreach, and for a change, honest and open outreach, not slap additional fines and prison sentences.

But until our government realises that taking a paternalistic, punitive stand is about as effective as a parent placing increasingly unreasonable and strict restrictions on their children who are growing up and earning their independence, any hope for a shift in the legislative trend is misplaced.

Related Links:

PLU Media Release – Chan Mun Chiong should not have been charged under Section 377A

YawningBread – Here’s Proof: Section 377A being enforced

Broken Promises Part II: HIV positive man prosecuted for s377A (Singapore)