SINGAPORE, Nov 21 — Despite having tested positive for the human immunodeficiency virus (HIV), a sex worker did not disclose his condition to clients and even had unprotected sex with an acquaintance.
Today, Mohamad Fazni Mohamad Azini, 38, was sentenced to three years and three months’ jail after pleading guilty to one charge under the Infectious Diseases Act for engaging in sexual activity with another person without disclosing his HIV infection.
He faced four other charges under the same Act — two of which he had been convicted of after a trial in July. The other two charges were taken into consideration during sentencing.
Under the Act, it is unlawful for an individual with the acquired immunodeficiency syndrome (Aids) or HIV to engage in any sexual activity with another person without informing them of the risk of contracting the virus or having the other person voluntarily accept the risk.
Fazni has filed an appeal against the trial convictions and sentence.
Gag order on offender lifted
District Judge Marvin Bay rescinded an earlier gag order prohibiting the publication of Fazni’s name. The victims still cannot be named under a gag order.
He said that the only basis for extending the scope of a gag order to include an offender’s identity would be that the disclosure of his identity would lead to the identification of the victims or witnesses.
However, considering that the majority of the victims had met Fazni on only one occasion, the judge was persuaded that it would be highly unlikely that the identity of the victims would be disclosed from revealing Fazni’s identity.
Unprotected sex while HIV-positive
Sometime in November 2018, Fazni contacted one of the victims through social media platform Instagram where the two agreed to meet up for sex.
Prosecutor Andre Tan from the Ministry of Health (MOH) said that the two met at night at Fazni’s workplace, where the man asked Fazni if he was “clean”, that is to say, whether Fazni was infected with HIV or not.
When Fazni replied that he was “clean”, the two had unprotected sex.
Before the sexual activity, Fazni did not inform the man of the risk of contracting HIV from him and did not obtain the man’s voluntary agreement to accept that risk.
Investigations later revealed that Fazni’s HIV viral load was high due to his poor compliance with his HIV medication.
HIV viral load refers to the number of viral particles that is found in each millilitre of blood.
Fazni’s high viral load created a greater risk of transmission to his sexual partners.
In February 2019, the man tested positive for HIV and confronted Fazni via text messaging.
Fazni eventually admitted that he had HIV.
Tan said that the victim’s infection, however, was not a direct result from sex with Fazni but did not disclose any other details.
The authorities began an investigation after a victim notified MOH on June 27 in 2019 that he had been allegedly infected with HIV by Fazni.
Court documents did not disclose if the informant was the same victim who had unprotected sex with Fazni.
Worked as a sex worker
At the time of the offences, Fazni worked as a transgender streetwalker in the Geylang area where he offered sexual services to men for between S$50 (RM174) and S$350.
Even though he was HIV-positive, Fazni did not inform any of his male customers about his HIV status, which he had known about since being diagnosed in October 2007.
In June 2018, Fazni had unprotected sex with one client, and the following month had protected sex with another client. These offences were the basis for the two charges for which he was convicted in July.
During his trial for those two charges, the defence argued that Fazni’s undetectable or extremely low HIV viral load at the time would not have been deemed realistically able to transmit the virus to another person.
This meant that there was no risk of HIV transmission to notify the victims about, the defence said.
However, the prosecution argued that in order for the victims to voluntarily agree to accept the risk of transmission, they would first have to know if such a risk existed.
Deterrent sentence is necessary
In sentencing, the judge said that deterrence is essential to emphatically drive home the message that any failure by a person with HIV to inform his or her intended sexual partner could carry profound and life-changing consequences.
He added that it would also be important to underscore the message that the intended partner’s right to choose whether to accept the risk of transmission was “sacrosanct” and non-negotiable.
This right cannot be set aside by the mere fact of a low or even undetectable viral count, the judge said.
For each charge of engaging in any sexual activity without disclosing that he is HIV-positive, Fazni could have been jailed for up to 10 years or fined up to S$50,000, or both. — TODAY