COVID-19 court cases: Why have some people not been charged?

COVID-19 court cases: Why have some people not been charged?

State Courts 05
File photo of the State Courts in Singapore (Photo: Jeremy Long)

SINGAPORE: In the past few months, a slew of people have turned up in the courts to be charged and fined or jailed for their offences related to breaking COVID-19 regulations.

Some of the cases have since prompted questions on social media from readers, with some asking why the accused in specific cases were charged, while other people mentioned were not.

These include: A man who was fined in court for meeting his cousin-in-law for an illegal dinner gathering, with action against his cousin-in-law not mentioned in court papers; and a woman who was fined for breaching COVID-19 regulations by letting a man into her home for massage and masturbation services, but with court documents not identifying the man nor stating any potential action against him.

Other cases that raised such questions on why some people have not been charged include the case of a woman who was charged with going to see her boyfriend during the "circuit breaker" period. Her boyfriend was not charged alongside her. 

The Robertson Quay incident, where groups of people were photographed gathering near the area, resulted in seven people being charged, but several readers left comments on why only seven were charged despite more being pictured in viral photos.

In response to CNA's questions, the Attorney-General's Chambers (AGC) said that every case is assessed based on its own facts and circumstances.

"The prosecution will take into account a variety of factors, including the severity of the breach and the culpability of the offender," said a spokesperson.

BREACHES CONDUCTED IN FULL VIEW OF PUBLIC: AGC

"For instance, breaches committed in full view of the public and which deliberately defy the law are considered particularly egregious. Not only do they cause public alarm, they also mock and belittle the efforts of those who abide by the law." 

The Ministry of Health (MOH), the agency behind the Infectious Diseases Act and the COVID-19 regulations, shed light on one specific case: The one of Francis Soh Seng Chye, who was fined S$4,500 last month for visiting his cousin-in-law Lye Bao Ru for a dinner gathering when it was prohibited.

READ: 'Illegal gathering, so what': Man fined for having dinner with cousin-in-law during circuit breaker

MOH told CNA: "The AGC and the MOH decided to charge Soh based on the facts and circumstances of the case, including the aggravating factor that Soh had posted about his breach of the COVID-19 regulations on social media."

The ministry spokesperson added that Lye was given a composition offer of S$300 for her breach.

This offer refers to a composition fine, a sum that is paid out of court and differs from a fine imposed on someone by a court.

Minister for the Environment and Water Resources Masagos Zulkifli, whose ministry fronts the enforcements for breaches of safe distancing measures, announced on Apr 11 that those caught breaking the rules will be fined S$300 immediately, referring to composition fines.

Tighter measures announced later that month meant that repeat offenders would be given composition fines of S$1,000, or prosecuted in court if it is an "egregious" or particularly bad case.

WHY WEREN'T THE SEX WORKER'S CLIENTS CHARGED?

Lawyer Chooi Jing Yen, a partner at Eugene Thuraisingam LLP, gave possible reasons for why the client in the case of Cheng Fengzhao has not been charged.

Cheng was fined S$7,000 earlier this month for letting a 51-year-old man into her condominium unit during the circuit breaker period for massage and masturbation services.

READ: Woman fined for letting man into her home during circuit breaker for massage and masturbation

However, there was no mention in court papers of the man's name or whether he will be charged. Such details of another man and another sex worker at the scene were not provided, either.

"The procurement of sex services is not illegal," said Mr Chooi. "Prostitution is in fact legal in Singapore. The nuance is in the prohibitions surrounding this."

"This has always been an inherent tension in our legislation. For example, pimping or living off the earnings of a prostitute, running a brothel, forcing someone into prostitution and trafficking women and girls for the purposes of prostitution are all illegal under the Women's Charter," he said, adding that businesses offering massage services must be licensed under the Massage Establishments Act.

"This explains why (Cheng) was not charged for sex work. Of course, a separate offence may be made out if she had entered Singapore based on a work permit or employment pass that they would be doing other work, but this would be an immigration or employment offence, not a sex offence," he said.

Cheng had come to Singapore on a work permit for a waitressing job, but never went for this job, the court heard.

Mr Chooi said the procurement of sex services in itself is not illegal, but if the customers knew that the provider of such services would have to breach safe-distancing regulations in order to provide them, they would arguably have committed an offence of abetment.

Commenting on the case of Robertson Quay, where seven people were charged for gathering there and flouting COVID-19 regulations despite more being pictured at the scene, Mr Chooi said that more egregious offenders may be charged and the others not, in AGC's exercise of its prosecutorial discretion.

Prosecutorial discretion refers to the AGC's power to decide who to prosecute, when to prosecute and how to prosecute. This power comes from the Constitution, where Article 35(8) states: The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence."

In plain terms, this means that AGC decides who to charge and who not to charge.

A FORMER DPP COMMENTS ON HOW PROSECUTION DECISIONS ARE MADE

Lawyer Marshall Lim, a former deputy public prosecutor and deputy senior state counsel who was at AGC for eight years, explained that prosecution decisions are made only after a careful consideration of each case's full facts and circumstances.

"Such decisions are always made in the public interest," said Mr Lim, who is now a defence lawyer at Invictus Law Corporation. 

"It is important to appreciate that the 'public interest' is not necessarily aligned with public opinion, even if widely held, concerning any particular case."

Asked to define "public interest", Mr Lim pointed to a 2017 speech by Attorney-General Lucien Wong, which stated that prosecuting in the public interest means four things: Prosecutions are conducted in the name of the public; offences are prosecuted for the good of the public; proceedings are conducted according to values expected by the public; and action is taken in the eye of the public.

"This necessarily means that some offences may not be prosecuted and may be dealt with through other avenues, for example, administrations of warnings, if the prosecution assesses that it is not in the public interest to initiate court prosecution," said Mr Lim.

The attorney-general also said in his 2017 speech at the Singapore Law Review Lecture that what public interest is and how prosecutorial action interacts with it is a complex topic.

"Reasonable people often disagree on what the public interest requires in any particular situation. These disagreements only get stronger in difficult cases," he said. "For example, where the behaviour of the accused evokes a visceral emotion, like anger or sympathy. Or where there is a clash of moral ideologies."

While stressing that public interest permeates all the decisions the prosecution makes, Mr Wong said "it is not quite possible to make a definitive statement" which will apply to all cases on what the public interest requires.

"It has to be assessed, case by case with skill, wisdom, legal acuity and compassion," he said, adding that determining what is in the public interest is a matter on which they have robust debates within the AGC every single day.

OTHER FACTORS SUCH AS AN OFFENDER'S PERSONAL CIRCUMSTANCES

Mr Chooi gave another view on why some people may not be charged.

"There may also be other factors such as each offender’s personal circumstances or reasons for offending, which the AGC may or may not take into account in deciding whether to charge that particular offender," he said. 

"This again, is the exercise of prosecutorial discretion. Sometimes, we may see it as compassion."

One other factor, he said, is whether the police have gathered enough evidence to ensure a successful prosecution in the view of the AGC.

"Sometimes, there may be prima facie evidence of an offence being committed, but it may not be strong enough depending on what the defence is," he said. "In such cases, prosecutorial discretion may be exercised to divert resources towards more clear-cut cases."

"In truth, millions of people flout millions of laws every day, in some way or another, whether regulatory or otherwise," said Mr Chooi. "Not every breach needs to be prosecuted. Prosecutorial discretion acts as a filter to avoid overburdening the state with prosecutions, and the courts with cases."

AGC said it would like to remind the public that there are "serious repercussions for breaching the heightened safe distancing measures which were put in place to safeguard public health". 

"Everyone should comply with the prevailing measures, and cooperate with public officers tasked with assisting the public and enforcing the regulations," said the spokesperson.

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Source: CNA/ll

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