After Sivagangga cluster, lawyers say time to throw the book at Covid-19 quarantine breakers

Prominent criminal lawyer Datuk K. Kumaraendran said the authorities could use Section 269 of the Penal Code to charge quarantine breakers with willingly and knowingly spreading a dangerous disease. — Picture by Yusof Mat Isa

KUALA LUMPUR, Aug 8 — Authorities can pursue penalties aside from compounds for those breaching the Covid-19 mandatory quarantine, said lawyers who noted there were other applicable laws.

One such case — a permanent resident in Kedah behind the so-called Sivagangga cluster — has already forced authorities to lock down several areas in the state.

The index patient who broke his mandatory home quarantine has been identified as causing at least 40 others to be infected, some of which were third generation cases.

While acknowledging that the Prevention and Control of Infectious Diseases Act 1988 (Act 342) and its (Measures within Infected Local Areas) Regulations 2020 already provided for some punishment, the lawyers said there were more stringent laws that could be applied.

For instance, prominent criminal lawyer Datuk K. Kumaraendran said the authorities could also use Section 269 of the Penal Code to charge quarantine breakers with willingly and knowingly spreading a dangerous disease.

“This carries with it the penalty of imprisonment which may be extended to six months, a fine, or both,” he told Malay Mail when contacted.

However, he acknowledged that pursuing quarantine breakers under this law was more difficult than using Act 342, which meant it was less likely to happen.

When asked if any deaths that result from quarantine breakers’ violations would amount to culpable homicide, he agreed it could be seen that way but qualified this by saying the interpretation was “a bit far fetched”.

“To be charged under manslaughter, intention is an important ingredient of the offence. For there to be culpable homocide amounting to murder, there must be the knowledge of whether the accused was likely to do so with said intention,” he explained.

Another lawyer, Rajesh Nagarajan, cited previous cases in other countries where HIV-positive individuals intentionally spread their disease to others as possibly leading to charges of culpable homicide.

Lawyer Rajesh Nagarajan cited previous cases in other countries where HIV-positive individuals intentionally spread their disease to others as possibly leading to charges of culpable homicide. ― Picture by Choo Choy May

“It is arguable that the act of a person who knows that he/she is Covid-19 positive yet breaches the quarantine to gallivant around town is an unlawful act that puts lives in jeopardy, comparable to the example of an individual who infects another with HIV without informing them of the same.

“As such, it may be very possible for such an individual to be charged for causing death by way of culpable homicide under Section 299 of the Penal Code. However, the test here would be 'knowledge',” he said.

Under the law, culpable homicide included causing death through action committed in the knowledge that it was likely to cause death. The offence is punishable by up to 10 years’ imprisonment and a fine.

Rajesh said that if it could be proven that the quarantine breaker “knew” that spreading a deadly and infectious disease such as Covid-19 could lead to another’s death, there could be a viable case for prosecution under culpable homicide.

Yet another criminal lawyer, Datuk Geethan Ram Vincent, disagreed that deaths caused by quarantine breakers constituted culpable homicide but said authorities need not look beyond Act 342 to punish such individuals more severely.

“This is an obvious offence under Section 22(b) of the Act, which is punishable under Section 24 with a maximum of two years' imprisonment. Presently I am not aware of anyone being charged under Section 22(b).

Lawyer Datuk Geethan Ram Vincent disagreed that deaths caused by quarantine breakers constituted culpable homicide but said authorities need not look beyond Act 342 to punish such individuals more severely. — Picture by Firdaus Latif

“In my view, I think it is time the government took a tough stance and charged those who disobeyed the quarantine order, as this would be a lesson to everyone,” he said.

Section 22(b) criminalises the disobedience of “any lawful order issued by any authorized officer”, which would be self-evident with quarantine breakers.

Currently, authorities were using the Act's regulations to issue fines of RM1,000 even though the offence is also punishable by up to six months’ imprisonment.

According to Kumaraendran, Section 12 of the Act could theoretically be applicable as it stated that no person who was aware he was suffering an infectious disease should knowingly expose others to risk of infection, conduct public activities, or act in a manner that he would reasonably believe could cause others to be infected.

“However it should be noted that Part Two of the First Schedule specifically refers to the Human Immunodeficiency Virus (HIV) which was a serious concern when the Act was first passed in 1988,” he said.

To be more comprehensive, Kumaraendran suggested the government should consider amending the Act to include other infectious diseases such as Covid-19.

“Doing so would mean any who breaches Section 12 faces more severe penalties, as the first offence may lead to imprisonment not exceeding two years, a fine whose amount is at the judge's discretion, or both.

“The second offence under Section 12 and any subsequent offences may lead to imprisonment not exceeding five years. However the director-general still has the power to compound the offence should he choose to do so, instead of having to go before the court,” he said.

All three lawyers agreed that the families of any who die from Covid-19 infections caused by quarantine breakers may have a civil claim for wrongful death.

However, they all said the likelihood of success for such a lawsuit would be slim.

Kumaraendran cited several instances in the United States in recent history, where an individual who was fully aware he/she was HIV-positive, chose to have intercourse with another person who later contracted the virus.

“In such a case, the victim pursued civil remedy against the first HIV-positive person,” he said

The three legal experts said the biggest hurdle would be to establish in law that the infection came from the subject of the wrongful death suit.

“One cannot imagine that the task of 'proving' such a claim would be easy, but if one can tick the right boxes then a successful claim is indeed within reach,” Rajesh said. - malaymail