AN 18-year-old student in Terengganu spent a week in jail when he could not post bail of RM800 after he was charged with flouting the movement control order (MCO) on March 30. He was arrested when he left his home to buy a packet of instant noodles.

Three days later, two male daily-wage earners were sentenced to jail when they could not afford the court-imposed fine of RM1,000 for breaking the MCO.

According to a Chinese daily, they had gone pond-fishing to catch something to eat.

Those were among the thousands of arrests made over violations of the MCO, which subsequent fines and jail terms are largely unjustified and unnecessary, said lawyers.

A total of 9,090 people have been arrested to date for the offence, with more than 427 charged as of Monday.

Many who were jailed were first-time offenders.

The lawyers told The Malaysian Insight such stiff punishments may even be counter-productive in curbing the Covid-19 pandemic.

Jail unduly harsh

Defence Minister Ismail Sabri Yaakob raised the stakes yesterday when he announced that beginning today, those caught breaching the MCO would be remanded and charged in court.

The senior minister said this is necessary as the people appear to be taking the order lightly.

The MCO was enforced on March 18 to stop the spread of the Covid-19 infections. It has now been extended till April 28 as the number of infections rises to 4,987 with 82 deaths.

Police began issuing compound notices to offenders for violating the Prevention and Control of Infectious Diseases Act 1988 on April 8. Offenders are given two weeks to pay the RM1,000 compound, failure to do which will land them in court.

Criminal lawyer Jacky Loi said imprisoning a first-time offender is unduly harsh punishment which does not benefit society in general, especially when the government is urging social distancing to attempt to break the chain of coronavirus infections.

“I can’t see how arresting all these violators and putting them in jail, which is already crowded, can achieve that aim,” Loi told The Malaysian Insight.

“While the deterrent measures taken by the government are to ensure compliance, the number of people getting arrested seems to show that the deterrent measures are not working.

“I’m of the view that for a first-time offender, depending on the reason for violation, a verbal warning or compound will suffice to punish.

Loi echoed a concern recently raised by Prisons Department director-general Zulkifli Omar, who sent a letter to the Federal Court asking judges to stop jailing MCO offenders as overcrowded prisons are potential conditions for a Covid-19 outbreak.

Chief Justice Tengku Maimun Tuan Mat subsequently called on judges to consider the capacity of the jails when sentencing offenders, but people are still being sent to prison.

“In terms of the law on sentencing, first-time offenders should be ordered to do community service or fined instead of jailed,” said Loi.

He said the current trend of imprisoning the MCO violators appeared to be inappropriate as evidenced by the High Court’s reversals of the magistrates or sessions court jail sentences which were replaced with a fine or community service order.

Another criminal lawyer Collin Arvind Andrew advised those who have been ordered to serve time to file for a revision at the higher courts.

“For those who had been sentenced to imprisonment, they may consider filing a revision application at the High Court.

“We have also seen several successful applications at the High Court where the prison sentence was replaced with community service.”

Too poor to pay RM1,000 fine 

Andrew noted that the migrant, refugee and asylum-seeking communities could have trouble coming up with the money to pay a RM1,000 fine.

”Most of them are struggling to survive on basic necessities,” he said.

Lawyer V. Jeevaretnam said it is up to the offender to accept the compound. His firm has produced a guide on what to do when one is arrested for violating an MCO.

“If he refuses to accept the compound then the police can charge him in court where he can decide to claim trial if he thinks he is not guilty and wants to fight it out.

“However if he decides to accept the compound then he has to pay up after which he is free to go. In this case it looks like the police are firm on the compound sum of RM1,000.

“Usually, compounds can be reduced if the officer feels there are extenuating circumstances.”

Another criminal lawyer Chan Yen Hui said the compound notices do not help to encourage social distancing and that they disproportionately penalise the poor.

“Take, for example, the recent arrests of a few people who went to the market in Serdang. About 10 to 12 of them were put in a black Maria (police van). 

“There were no temperature checks and so there’s a possibility that an infected person could have spread the virus to other detainees as well as the police.

“Also, were there any assurances that the black Marias are sanitised each time they are used to transport detainees?”

Chan said that the RM1,000 compound notice would inevitably result in the poor being sent to jail in lieu of payment, leading to the emergence of new Covid-19 clusters.

“The compound notice allows 14 days for settlement. From my experience, many people would have run out of money as they have no income under the MCO.

“And when they fail to pay the compound, they will be charged in court. And because they have no money to pay the compound, they will end up in jail.

“I urge the police to use their power wisely. Give strong verbal warnings. No beatings are necessary. Malaysians are generally obedient. Arrests should only be made in very exceptional cases.” – April 15, 2020.