Kitson Foong said the decision must be applied to all new cases under investigation and pending cases in the lower courts.

“Deputy public prosecutors must take cognisance of the apex court ruling and withdraw the charges, failing which lawyers representing their clients could apply for the trial court to quash it,” he said.

Earlier today, a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said the offence under Section 498 of the Penal Code must be struck down as it violates the constitutional right of all persons to equality before the law.

She said the provision, a pre-Merdeka law, was incapable of modification as it would change the character of the offence.

“Therefore, the only possible means is to judicially repeal it,” Tengku Maimun said.

However, the chief justice said the apex court’s ruling could only be applied to future cases and not retrospectively.

Under the Penal Code, the act of enticing, taking away or detaining with criminal intent a married woman is an offence punishable with a jail term of up to two years or a fine, or both.

The matter arose after the Shah Alam High Court allowed a man accused of the offence to refer a constitutional question on its validity to the Federal Court.

In the case, a 54-year-old businessman was charged with the offence at the Petaling Jaya magistrates’ court in 2020 following a report lodged by the woman’s husband.

Foong said the Court of Appeal should also take cognisance of today’s ruling as it is bound by precedent.

He said on May 19 this year, the appellate court granted a former policeman leave to appeal his conviction and sentence for the offence.

The 41-year-old man had posed three questions of law, including whether Section 498 violates Articles 5(1) and 8(1) of the Federal Constitution by discriminating against men.

On March 6 last year, a magistrate in Kuala Terengganu sentenced him to six months’ jail and imposed a RM3,500 fine after finding him guilty of the offence. The court allowed him a stay of the jail term pending an appeal. He has paid the fine.

On Feb 23 this year, the High Court dismissed his appeal against the conviction but set aside his jail term and instead raised the fine to RM6,000.

Foong said the Court of Appeal would most likely set aside the conviction and sentence as the offence is wrong in law.

“The fine has to be refunded to the policeman,” he added.

Lawyer Salim Bashir said police would also have to cease all pending investigations for potential offences under Section 498 of the Penal Code.

“There is nothing to investigate following the repeal of the law by the Federal Court today,” he added.