Daphne Iking enticement trial


The date had been set for the High Court Hearing. The stupid law dating from the British colonial era might just be the proof of the laziness of the Malaysia government to review their law. Just because this archaic law is rarely invoked (so far no case has gone to a full trial), there's no plan to abolish it. Well done, Malaysia! Just continue to make fool of yourself, why don't you?!

KUALA LUMPUR: Magistrate Zaki Ashraf Zubir this morning granted an application for the unprecedented "wife-enticing" case involving celebrity Daphne Iking to be heard in the High Court.

Dec 17 was set as the new date for the High Court hearing.

The high-profile case started when Iking’s husband — Ryan Chong Yiing Yih — dragged prominent managing director Choy Khin Ming, 44, to court in a private prosecution under Section 498 of the Penal Code for "enticing or taking away or detaining with a criminal intent a married woman", in August.

Chong's lawyer Wong Kian Kheong took up the case after a deputy public prosecutor refused to take up the case as it was a private matter between husband and wife. Choy was charged with enticing Iking, knowing that she was a married woman, with the intention of having sexual intercourse.

He allegedly committed the offence at a condominium unit in Taman Tun Dr Ismail between July 2007 and September last year.

Lawyers for Choy, Akberdin Abdul Kader and Jagjit Singh, had also applied to challenge the constitutional validity of Section 498 of the Penal Code (See accompanying story).

Choy's lawyer had on Aug 26 appealed for the case to be heard by another judge other than magistrate Mohd Faizi Che Abu, who was then presiding.

They had also requested to transfer the case to the Hight Court on the grounds that Mohd Faizi had earlier heard the statement of complaint and issued the summons against Choy.

Mohd Faizi rejected the application, explaining that he had no personal knowledge of the offence and that he was only following the law to decide if there were enough reasons to issue the summons.

Coincidentally, Mohd Faizi had since been transferred, with Zaki taking over. However, the High Court will still decide on the validity of the court order granted by Mohd Faizi to enable Chong to sue Choy.

Iking, a TV presenter, host and brand ambassador, was married on Jan 27, 2007 in Bali, and gave birth to Isobel, who is now two years old.

She is separated from Chong. Lawyers had described this as a rare case that will whip up intense debate about adultery and enticement.

Holding a watching brief for Daphne is Pushpa Ratnam, Ravi Nekoo, David Mathew and Vicky Alahakone.

Lawyers to challenge Section 498

KUALA LUMPUR: Darren Choy's lawyers are challenging the constitutionality of Section 498 of the Penal Code, saying that it is an outdated law that treats women as property and is a "clear example of gender inequality".

Jagjit Singh said in court today that he had applied for the High Court to decide on seven questions posed on whether the law goes against the Federal Constitution.

Among the questions are whether Section 498 violates Article 8 of the Federal Constitution which guarantees all persons equality before the law.

He said that the law only applied to males and therefore it is gender discrimination.

"Section 498 carries an inherently unreasonable classification as it is predicated on the pre-modernistic assumption that women are mere chattels and incapable of a rational choice as to their male companionship," said Jagjit.

Jagjit said it was a pre-Merdeka law that cannot be applied and must be modified to conform to the Federal Constitution(see accompanying questions).

Jagjit and Akberdin Abdul Kader had on Dec 7 applied for the High Court to answer seven constitutional questions (see accompanying story) about the "outdated" law.

At 10.30am today, Ryan Chong's lawyer Wong Kian Kheong agreed that the defendant had the right to question the constitutionallity of the law.

"Until the issue has been settled, then there should be no other disturbances to proceed with the case," he said.

The Magistrate also allowed the proceedings to be stayed until the issue is settled in the higher courts.

The Iking case had spurred several women's rights groups, demanding that the law, said to be archaic and "demeans women", needs to be repealed.

Lawyers told Malay Mail that it comes across as a law that was framed in the “old days” when married women were enslaved to their husbands.

A crime was therefore committed when someone enticed or detained a man’s wife and “took” what was “rightfully” his violates their dignity and denies them the ability to decide for themselves.

As there is no crime of enticing a married man, there should not be a crime of enticing a married woman, the Women’s Centre for Change said.

At the Dewan Rakyat sitting in October Seputeh MP Teresa Kok had asked whether the Government had any plans to amend Section 498; to which Home Minister Datuk Seri Hishammuddin Hussein replied that the Government had no intention of abolishing the law as “it is an isolated case”.

THE CONSTITUTIONAL QUESTIONS

1. Whether Section 498 of the Penal Code is an unequal law as it imposes criminal liability on the male party only and is therefore in breach of Article 8(1) and (2) of the Federal Constitution.

2. Whether Section 498 of the Penal Code is inherently discriminatory of the male sex as it criminalizes the conduct of the male party in a joint and/or consensual actinvolving a female party, and is therefore gender discriminatory under Article 8(1) and 8(2) of the Federal Constitution.

3. Whether the targeting of the male party only for criminal liability under Section 498 of the Penal Code is an unreasonable classification for the purpose of Article 8 of the Federal Constitution and without reasonable nexus to the perceived objective of the classification.

4. Whether Section 498 carries an inherently unreasonable classification as it is predicated on the pre-modernistic assumption that women are mere chattels and incapable of a rational choice as to their male companionship

5. Whether Section 498 achieves the unreasonable object of consigning a woman to the custody of a man with whom she no longer wishes to reside or consort with as her husband.

6. Whether Section 498 is inherently violative of Art 5(1) of the Federal Constitution as it is deprives the liberty of a man in his choice of consortium or a married woman to consort with a man other then her husband.

7. Whether Section 498 of the Penal Code as a pre-Merdeka law cannot be applied without the modification to bring it in conformity with the provisions of the Federal Constitution as envisaged under Article 162(1)(b) and is therefore unenforceable.

What Section 498 of the Penal Code says

“Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.”

Section 498 is stated as “Enticing, taking away or detaining a married woman”. The ingredients of this offence are:

● any person, man or woman, must entice another woman;
● he must know that the woman is the wife of another man;
● he must entice her from the person who is in charge of her and takes care of her;
● the enticement must be within the intention that she should have illicit intercourse with another person;
● any person who conceals or detains any woman with that intent will also be punished.

From Malay Mail, "Wife enticement trial starts soon".

KUALA LUMPUR, Malaysia — A Malaysian man is facing trial for allegedly seducing another man's wife — a charge under a rarely used law that defense lawyers criticized Wednesday as archaic and tantamount to sexual discrimination.

A decades-old law dating from the British colonial era calls for a two-year prison sentence for any man who "entices away" a married woman with the intention of having sex with her.

The law was invoked for the first time since the 1980s when businessman Ryan Chong initiated a criminal case against Choy Khin Ming earlier this year. Chong accused Choy of having a 14-month affair with his wife, television celebrity Daphne Iking, between 2007 and 2008.

A Kuala Lumpur Magistrate's Court had been scheduled to hear the case Wednesday, but it was transferred to the High Court, which Choy's lawyers said was more suited to hear a case that involves complicated constitutional issues.

"The most important issue is the validity of the law itself," said Choy's lawyer, Akberdin Abdul Kader. "The law is totally archaic."

The law might be considered unconstitutional because it violates the principle of gender equality and is based on the "assumption that women are mere chattels and incapable of a rational choice as to their male companionship," according to the defense lawyers' written statement submitted to the court.

Women's rights groups in recent months have also criticized the use of the law. However, Home Minister Hishammuddin Hussein has said there were no immediate plans to abolish it because it was so rarely invoked.

The charge had only been used a few times in Malaysian history, but no case went to a full trial, Akberdin said.

Choy, a sports apparel company manager, was present in court but declined to comment. He pleaded innocent to the charge in April.

Neither Chong nor Iking attended the hearing, which has attracted wide media attention partly because of Iking's popularity as a talk show host.

Iking has reportedly separated from Chong. Choy's lawyers say she is also not currently seeing Choy, but they declined to confirm whether the two were ever in a romantic relationship.

From Google News, "Malaysian faces trial in rare seduction case".

TV personality Daphne M Iking’s enticement case has been stayed by the magistrate’s court here and will be moved to the High Court.

The stay order was granted by magistrate Zaki Asyaf Zubir today after defendant Darren Choy Khin Ming filed an application on Dec 7 to refer seven constitutional issues dealing with gender discrimination with regards to Section 498 of the Penal Code to the High Court.

Choy’s lawer Jagjit Sing said the application for a stay was also pending an appeal against a decision made by the previous magistrate, Mohd Faizi Che Abu, who had earlier rejected an application by Choy to recuse him due to legal and prejudicial issues.

Jagjit said the appeal against the decision was fixed to be heard on Dec 4 but was postponed to Dec 17 as some documents were not in the appeal record.

In reply, lawyer Wong Kean Kheong, who is representing the complainant Ryan Chong Yiing Yih, agreed with the adjournment, pending the referral to the High Court.

Wong said the magistrate’s court does not have any jurisdiction to decide on constitutional issues.

He also said the defendant had the "right to raise constitutional issues on the subject matter of the charge".

On the recusal appeal, Wong said it was no longer relevant as a new magistrate, Zaki, had taken over the case.

Corporate figure Choy, 44, faces a private summons of enticing Iking, 30, with the knowledge that she was Chong’s wife, between July 2007 and September 2008 at a unit at The Plaza, Jalan Wan Kadir 3, Taman Tun Dr Ismail.

Iking, a model, actress and TV host, and showbusiness producer Chong were married in Bali on Jan 27, 2007.

Section 498 of the Penal Code states: "Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both."

Lawyer Akbardin Abdul Kader is also representing Choy, while lawyer Ravi Nekoo is holding a watching brief for Iking.

From Sun2Surf, "Enticement case goes to High Court".

The Magistrate Court here on Wednesday ordered a stay of the hearing of a private summons involving TV personality Daphne Eleanor Iking.

Magistrate Zaki Asyraf Zubir made the order following an application by Darren Choy Khin Ming to refer to the High Court seven constitutional questions pertaining to a charge of enticement.

Choy's counsel, Jagjit Singh, applied for the stay pending a decision on the matter by the High Court and also on another appeal by Choy, against a decision by previous magistrate, Mohd Faizi Che Abu, in rejecting his application Mohd Faizi to recuse himself.

Choy had applied to recuse Mohd Faizi from hearing the case on grounds of prejudice because he was the magistrate who recorded the complaint from Iking's former husband, Ryan Chong Yiing Yih, 31.

The High Court will hear this matter on Dec 17.

Chong and Choy are embroiled in a legal battle with the former accusing Choy of "enticing or taking away or detaining with a criminal intent a married woman", a crime under Section 498 of the Penal Code.

Choy is charged with enticing Iking, knowing that she is a married woman, with the intention of having sexual intercourse at The Plaza, Jalan Wan Kadir, Taman Tun Dr Ismail here between July 2007 and September last year.

If found guilty, he can be jailed up to two years, fined or both.

The constitutional questions raised by Chong included whether Section 498 of the Penal Code was inherently discriminatory of the male sex as it only criminalised the conduct of the male in a joint and/or consensual act involving a female.

Choy also wanted the High Court to determine whether the section 498 of the Penal Code was an unequal law as it imposed liability on the male party only and was therefore in breach of Article 8 (1) and (2) of the Federal Constitution which regarded all persons are equal before the law.

Meanwhile, lawyer Wong Kian Kheong, who represented Chong, did not object to the stay of the hearing.

Iking married Ryan on Jan 27, 2007 in Bali, Indonesia. The couple has a daughter, Isobel Daniella Iking-Chong, who is now 21 months old.

From Bernama, "Magistrate Court Orders Stay Of Hearing Of Case Involving Daphne Iking".

You've got to give it to Daphne Iking for staying cool all the time.

But underneath her crazy, sexy, cool public persona, the smoking hot Malaysian TV personality admits to feeling under pressure over the excessive media attention on her "enticement case".

"I'm going through the toughest moments in my life," Daphne 'fesses up during a private chat at the newly opened Celebrity Fitness in Wangsa Walk Mall.

"It's stressful. Most people are judgmental. They love to speculate. And it can be painful. But they don't know what's going on in my marriage. But I'm not going to discuss it in public because I'm a very private person."

Begging the public (and the media) to respect her privacy, the 30-year-old has only this to offer: "I'm leaving it up to my lawyer.

"All I can say is that one is the man I'm married to. (Ryan Chong) The other one is a lovely friend (Darren Choy), who has been misunderstood."

For those in the dark, Ryan is suing Darren for 'enticing or taking away or detaining with a criminal intent a married woman', a crime under Section 498 of the Penal Code.

So, how is Daphne coping with all the stress?

"I work out a lot," says the gym buff, who is a regular at Celebrity Fitness.

"I do yoga and pilates a lot of late. It helps me to de-stress. It's also a good form of meditation for me."

There's also a lot of TLC (tender, loving, care) from her family and close friends. Not to mention an adorable two-year-old daughter, Isobel, who is her pillar of strength.

"She's been such a good girl," the doting mum beams proudly, adding "This crisis has taught me a lot about my inner strength.

"It brings me closer to God. It has also made me realise who my true friends are. I used to have a lot of party friends. But they disappeared when I hit the lowest point in my life."

But Daphne is determined to stay strong.

"It's a lot easier for me to pick myself up when I know I've got responsibilities. I've got to work hard for Isobel. She's depending on me. I've also got to work hard for my family 'coz my dad is retired already."

From Asiaone, "Daphne is stressed but staying cool".

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