COV-AID: Criminal Law and COVID-19 with Syazana

Conversation with Lawyers: Criminal Law

1. About NUS COV-AID

COV-AID is a project by a team of dedicated law students in National University of Singapore, which aims to help the public understand laws, regulations and legal issues arising from COVID-19. COV-AID has launched a series of Conversations with Lawyers (“CWL”) with top legal practitioners across various sectors on how the pandemic affects the future of legal practice in Singapore.

2. Criminal law practice in Singapore

In the most recent series of CWL, Syazana Yahya was invited by the COV-AID team to share her perspectives on COVID-19’s impact on the practice of criminal law, access to justice, and other COVID-related criminal offences and prosecutions in Singapore.

A summary of the range of topics discussed during the CWL interview are set out as below:

  • An overview of the role of the criminal justice system in Singapore

The role of the criminal justice system in Singapore is, on one hand to protect society from crime, and to uphold law and order. On the other hand, it is to ensure that the due process is observed, as we investigate, try, and sentence accused persons.

The various actors at play; people who play a part in making sure the criminal justice system functions effectively, include the prosecution, the defence, and the court.

The role or function of the public prosecutor, essentially is to prosecute persons or entities in court, by bringing the evidence to court. In criminal law, the starting point is that the accused person is innocent. When the prosecution comes to court, their job is to displace that presumption of innocence by proving their case beyond a reasonable doubt. In recent cases, courts have described prosecutors as ministers of justice. When they come to court, their job is to achieve justice. It’s not just to convict, or to win at all costs.

There is a very common misconception that the role of defence counsel is to help bad guys get away. That’s not my job. Our job really is to make sure that the criminal justice system punishes only those who are guilty and that innocent persons are not fairly caught by the system, and if they then it’s our job to make sure that the punishment is for the correct offense and the sentence is appropriate.

That summarises the roles of the prosecution, and the defence, and how they play a part in ensuring the effectiveness of the criminal justice system.

There are four sentencing objectives that the court takes into consideration. Certain sentencing objectives will take precedence, depending on the nature or the circumstances of the offence. The four sentencing objectives are: retribution, deterrence, prevention, and rehabilitation. Depending on the nature of the offenses, different objectives will take precedence. For example, if the offense is something that is serious and there is a strong public interest in mandating a severe sentence, general deterrence will take precedence. If you have, say a young offender, a first-time offender, rehabilitation will take precedence. These are some of the considerations that the court will take into account when sentencing an offender.

For these current COVID-related crimes, deterrence is a probably the sentencing objective that will take precedence. Where an offender commits a COVID-related crime, the general interest is in preventing other people from committing similar offences. There is also the element of specific deterrent which is to prevent that offender from re-offending.

When it comes to COVID-related crimes, generally deterrence will take precedence. But when we have a young offender in the picture, for example, the case of the teenagers who sampled juice boxes in NTUC and put it back, and then the other guy recorded the incident and put it up online. That case involved two young offenders who committed a COVID-related offence but they were sentenced to probation and the reason why they were sentenced to probation was because they are young. Rehabilitation, in that case, took precedence. Different considerations will come into play when you look at the circumstances of the case.

  • Changes that the coronavirus pandemic has brought about to the everyday practice of Criminal law

It has drastically affected and changed the way we practice.

Some aspects of criminal practice which has changed since the pandemic:

First, pre-trial conferences (PTC) pre-COVID, defence counsel used to have to wait two to three hours for a PTC. Things are a lot more efficient now, that the hearings are conducted virtually. We can do our work online while waiting for PTC.

Next area is adjournments. A very good development in that, State Courts are now allowing online applications for adjournments via the Integrated Case Management System (ICMS). Defence counsel used to have to physically attend court, wait to be called, just to ask for a routine adjournment. Now, it’s so much faster because all you have to do is put up the application on ICMS and then the adjournment is granted shortly after, provided that the request is valid.

Another area, is plead guilty hearings and appeal hearings. All these are conducted virtually now. Accused persons will be in court. They will appear by zoom; us lawyers will appear virtually. We’ll make our arguments. It has created a bit of difficulty because previously when hearings are conducted physically, it was open to us lawyers to turn to our clients and seek instructions on the spot, if necessary. But now that we are in separate locations when the hearings are conducted virtually, that option is no longer open to us. But of course, it’s not an insurmountable difficulty. The court can still allow a stand down to take instructions. Another area is trials. Trials are still conducted physically most of the time. It is important for the court to examine witnesses’ demeanour when giving evidence. But section 28 of the COVID-19 Temporary Measures Act allows for an accused person or witness, to give evidence by video. This is typically used for witnesses who are overseas.

The last area is passing sentences. Recently courts have been delivering their verdict online as well. This has given rise to a rather interesting issue: recently the Supreme Court passed its first death sentence by zoom for one person known as Punithan a/l Genasan. It has been reported worldwide, in an article on an international publication titled “Malaysian man sentenced to death by a zoom call”. Some people view it as an affront to human dignity. That has raised an interesting issue. To be fair, we also had to highlight that their lawyers didn’t object to it, that’s something that has to be taken into consideration, in assessing what the humanity of this process.

Overall, it is a welcome change for us lawyers. A lot of us are very happy with the new system. The state courts are now piloting a conduct asynchronous hearing. Previously parties used to have to attend court and each of them will have to make their arguments. That has led to a lot of scheduling difficulty. Your hearing can be conducted two months down the road just because one party is unavailable. But now, with this pilot project, the idea is that the parties will provide updates on the progress of their case and seek the appropriate directions by email. The court will respond by email with the appropriate directions. If this takes off, it’s going to be another game changer and a lot of lawyers will welcome this change.

  • How law firms keep up with technological advancement that COVID-19 has accelerated

This is a start of a new era. There will be a shift in terms of how we practice, how firms handle knowledge management, how lawyers do their legal research. Legal technology is a huge and growing area to bridge that potential gap or potential inequity. The Law Society and the Ministry of Law have been very supportive in helping the smaller firms and the mid-sized firms enhance their technological capabilities, and increase their competitiveness. They are providing funding support for these firms.

  • How changes to the practice of criminal litigation has impacted certain groups of our community (such as migrant workers)

It’s not so much of changes to practice of criminal litigation. Generally, when migrant workers face criminal proceedings, the impact is seriously a lot harder, because life as a migrant accused person is very different and much farther from life as a local accused person.

We have a client, she’s a foreign domestic worker as well. She’s currently waiting for the case to go on appeal. Similar to Parti Liyani, because there’s an ongoing criminal appeal, she cannot go home, and she cannot go to work. The pandemic makes it even harder because now, she’s worried about how her family is coping overseas with the pandemic and these are not so developed countries so the impact of the pandemic there is much harder. At the same time, she can’t work to support her family at the time when the family needs resources the most, and worried about all this while she maintains her innocence.

It is very hard for her and this is similar to what we hear with the Parti Liyani’s case. For those who are not familiar with the facts: she was accused of stealing from her employers. She was convicted at the lower court and then finally acquitted on appeal. It was a four-year ordeal. Even though she was finally acquitted, at the end of the day, she has not won anything because as the criminal proceedings were ongoing, she was unable to work. It’s four years of her life wasted, and four years of unnecessary separation with the family.

Migrant accused persons face a disproportionately harder time when dealing with criminal proceedings and that crack is widened during a pandemic.

  • COVID-related criminal offences and the rise in the number of COVID-related prosecutions

Some of the past COVID-related prosecutions, for instance, the sentences that are meted out for the “Robertson Quay” incident where during circuit breaker several individuals were spotted congregating and drinking outside a restaurant. The prosecution was seeking a jail sentence for a few of these individuals and that was strongly resisted by defence counsel because it was just not supported by precedent. At that time, there was only one or two cases, where someone had been jailed for a similar offense. The defence counsel argued quite strongly against that. Ultimately, the sentence was still quite high. The reason why that offence was taken so seriously, the fact that we were in a pandemic and there was a flagrant breach of the law, that that should have been an aggravating sector. Deterrence was definitely one of the key considerations in sentencing there was at that time. A very strong public interest to deter like-minded offenders from doing something similar, specific deterrence as well. They want to deter these individuals from re-offending so these were the considerations that were at play and were the reason for the harsh sentences that were given.

  • Civil servants arrested under the Official Secrets Act and the swift action taken by the ministries in response to leaks of information

COVID-19 is a pandemic which threatens public health and safety. COVID-19 related information to the public must be delivered sensitively. If it is delivered recklessly, it has the potential to cause public alarm and can threaten social stability. That is why leaks of such COVID-related information are taken very seriously. News like these are going to create a public alarm. It is unprecedented and it has the potential to change lives drastically. The government’s swift action and the way the government takes these cases seriously, certainly helps to increase public confidence in how they handle COVID-19 as a whole.

  • Uses of the Protection from Online Falsehoods and Manipulation Act (POFMA) in the pandemic

POFMA is being actively used in this pandemic to curb the spread of alleged online falsehoods. The issue that is being debated is that, even though most people think it’s relevant, to what extent can and should POFMA be exercised?

POFMA was enacted to combat this internet phenomenon known as fake news. The purpose of is to protect society. Based on what we’ve seen overseas, online falsehoods have the potential to divide society and cause a lot of social unrest. When you have a law like this there’s always a tension between balancing the need to protect the society from misinformation versus protecting free speech and open discourse.

Sometimes, the line is not clear which is why there are ongoing cases in the Singapore Court of Appeal. Most recently, involving The Online Citizen and the Singapore Democratic Party. After this case, the court will certainly help us to shape the contours of POFMA and clarify the scope of its operation. The reason why POFMA was even enacted in the first place was that recognition that the digital age social media has the potential to bring fake news to a level that can cause a public outcry and we can see that relevance in the pandemic.

3. Conclusion

Thank you to COV-AID team for having our Syazana Yahya in the interview! Click on the link below to watch the full interview.