Crime in the time of the Covid-19

Introduction

In a now-viral video, a ‘sovereign’ lady is seen confronting several police officers and members of the public who express concern she is not wearing a mask. Subsequently, said lady is charged for, among other things, failing to wear a mask in public. She is hauled to Court and her case is ongoing.

If it was not patently clear before, the law requires one to wear a mask in public. But what exactly are you prohibited from doing in these heady times? And what will the long arm of the criminal law do to you if you do not comply?

This article takes a look at some criminal offences associated with the pandemic – with a specific focus on health-related offences under the Covid-19 (Temporary Measures) (Control order) Regulations 2020 (“COVID Temporary Measures Regulations”).

Specific Covid-19 Offences

Masks

Let’s start with the obvious (or not so obvious). Under Regulation 3A of the Covid Temporary Measures Regulations, every individual must wear a mask at all times when the individual is not in his or her ordinary place of residence. Similarly, any child 2 years or older who is escorted by an individual must similarly be masked up.

But there are exceptions. You are legally allowed to not wear a mask when:

• You are engaging in strenuous physical exercise. So if you’re running, you can take off that mask. But not if you’re on a nice stroll through the park;
• Where you’re driving alone or where the driver and all other passengers live in the same place of residence. For example, when Dad is driving the kids to school;
• When you’re eating, drinking, or taking medication. But you probably should ensure you’re a safe distance from other people while eating;
• Whilst working and you can’t carry out your work with the mask on g. if you’re a welder or diver; and
• You are lawfully directed to do so. Therefore, if a member of the police asks you to remove your mask to ascertain your identity, you have to do so.

Q: What about face shields? When can I wear those?

A: Generally, there is no restriction for wearing a face shield over your mask. But if you wish to wear only a face shield but not the mask, you can only do so, as of 2 June 2020, if:

• If wearing the mask leads to severe medical conditions;
• If you are 12 years old or younger; or
• If you are delivering a speech, teaching, lecturing and you are standing at least one metre away from any other individual at all times.

Q: Can I take down my mask to smoke then? Since I can take down my mask while eating?

A: While all Designated Smoking Areas and smoking corners have been shut by the authorities, you may still smoke in a non-smoking prohibited area. However, you must immediately put your mask back on and ensure you comply with safe distancing measures whilst smoking.

Q: Do I have to wear my mask throughout the day at work? What if no one is around in office? It’s so uncomfortable!

A: If a tree falls in a forest and no one is around to hear it, does it make a sound? On a plain reading of the relevant regulations, you must wear a mask at all times when you are outside your home. This includes the workplace and even your office cubicle. The Ministry of Health firmly advises individuals to do so, especially if your office is open and colleagues (or others) can come in without notice.

Safe Distancing

Regulation 7 of the Covid Temporary Measures Regulations states that every individual must keep a distance of at least one metre from any other individual in any public place.

However, with effect from 15 April 2020, this regulation does not apply when you’re in a motor vehicle, mode of conveyance, or public transport – including any premises used in connection with the provision of public transport (e.g. the MRT station).

Permitted businesses and shopping centres are also legally bound to ensure safe distancing measures are abided by (e.g. ensuring orderly safe distancing for queues). In addition, such “permitted enterprises” also have to comply with measures such as allowing natural ventilation, establishing procedures and controls for assessing the health of visitors, minimizing physical interaction etc.

In addition, certain businesses are classified as non-essential and are required by law to close their premises. Failure to do so can result in fines and/or other sanctions.

Stay Home Notices and Quarantine Orders

The Infectious Diseases Act was amended to include Coronavirus Disease 2019 (aka Covid-19) as a stipulated ‘infectious disease’ and ‘dangerous infectious disease’ as of 28 February 2020.

Pursuant to these amendments, the authorities are empowered to issue legal orders, in the form of Stay Home Notices or Quarantine Orders, to isolate individuals who may have Covid-19, are suspected of having Covid-19, or have come into contact with Covid-19 patients.

Non-compliance with these legal orders may lead to prosecution under s 21A of the Infectious Diseases Act, with offenders being liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both.

Additionally, foreign employees on work passes may have their work passes revoked pursuant to s 7(4)(a) of the Employment of Foreign Manpower Act.

Social Gatherings

Until the announcement made on 15 June 2020, individuals were also prohibited from meeting other individuals not living in the same place of residence.

However, with effect from 18 June 2020 @ 11.59 p.m., groups of up to five individuals will be allowed to congregate. Similarly, food and beverage outlets will be re-open for dine-in, with limits of up to 5 people.

Covid-19 and Other Criminal Offences

While one would imagine that crime would likely go down as a result of the pandemic, the reality is that forced confinement may have resulted in a very different sort of crime.

As tragically reported by the Straits Times, from April 7 to May 6, 2020, there were 476 for offences commonly associated with family violence, a 22% increase compared with the monthly average of 389. Anecdotal evidence suggests this number is only rising.

It also appears that general criminal offences may possibly be punished more harshly, when committed together with breaches of Covid-19 regulations or where they are aggravated by the coronavirus landscape.

For example, a woman who let a customer into her salon for providing unlicensed massage services (including masturbation services) was fined a hefty $22,000 for offences under the Massage Establishments Act, in addition to a breach of Covid-19 regulations for operating a non-essential business. The learned prosecutor in that case had submitted that this was “not an archetypal case” and relied on the fact that the accused had “knowingly and deliberately breached the circuit breaker measures” in seeking a fine of between $21,000 to $23,000.

Similarly, a taxi driver was jailed for four months for posting a fake message on a Facebook group alleging that food courts and coffee shops would be closed. He further alleged supermarkets would be open only two days a week and encouraged people to stock up on food. The said taxi driver claimed he had received a text message of that import and had merely transmitted the information by making a Facebook post. Again, the learned prosecutor sought a deterrent sentence on the basis that the said taxi driver’s actions undermined the government’s efforts to reassure the public that there was no need to stockpile.

Okay, so I know what are the offences. Why are some people charged and some are not charged? Why are there people who are only fined but some are prosecuted in Court?

The answer lies with prosecutorial discretion.

A common misconception is that anyone who is caught or arrested by the police is ultimately charged or arrested in Court. An even bigger misconception is that it is the police that will decide whether a person is charged or let go.

Under Art 35(8) of the Singapore Constitution, it is the Attorney-General who has “power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.”

What this means, essentially, is that the Attorney-General’s Chambers takes the final decision on whether to charge a person for a criminal offence. While the police do play an essential role in the criminal justice process, the focus of their role is on investigating offences and recommending how to proceed against an accused person.

As each case turns on its own individual facts and circumstances, there is no definitive answer as to why (or why not) a certain course of action is taken. However, the overriding concern in prosecutorial discretion is whether any decision taken is in the public interest.

In the Covid-19 context, minor breaches of regulations are likely to result in warnings or fines. Indeed, the Covid Temporary Measures Regulations provides a legal mechanism for the authorities (e.g. safe distancing officers) to issue composition fines of $300 for a first-time offender and $1,000 for repeat offenders. Such fines can even be issued on the spot.

However, where breaches are more serious, Court prosecution may be justified. For example, where an accused person had dined with his cousin-in-law and posted about the said dinner on social media, the Ministry of Health stated that “the AGC and the MOH decided to charge [the accused] based on the facts and circumstances of the case, including the aggravating factor that [the accused] had posted about his breach of the COVID-19 regulations on social media.”

In a particularly egregious case, three men were fined and jailed after inter alia kayaking to Pulau Ubin together. The prosecution highlighted their high level of culpability as their breach of Covid-19 regulations was “purely recreational.” In addition, the offenders had been explicitly told by the authorities to leave but continued kayaking, admiring the sunset, and fishing.

It can be rationalized that very public breaches may cause alarm and/or concern amongst right-minded members of society, necessitating action to be taken by the authorities. Further, it is likely that both the Courts and prosecutors will focus on general deterrence (i.e. the theory that the threat or fear of punishment will discourage people from committing a crime).

For a further discussion of the issue, please refer to this excellent article: https://www.channelnewsasia.com/news/singapore/covid-19-coronavirus-why-some-people-not-charged-court-12811008

For the views of the present Attorney-General on prosecution in the public interest, please refer to this 2017 speech: https://www.agc.gov.sg/docs/default-source/default-document-library/singapore-law-review-annual-lecture-2017—prosecuting-in-the-public-interest.pdf

Conclusion

The Coronavirus has caused all kinds of uncertainty across various sectors and industries. If you ever find yourself charged with a Covid-19 offence, do not know what to do, or are unsure about your liabilities or rights under the law – stay safe by consulting a lawyer.