By Daisy Cheung

I have read with great disappointment and concern reports of two recent magistrate cases dealing with the topic of mental disability.

The first involved a schoolteacher who was found guilty of assault on June 12 at the Fanling Magistrates’ Court. It was reported that the magistrate had questioned the mental state of the defendant on the basis that his testimony was full of lies, that he showed no remorse, and that his testimony about the police wanting to throw him off a bridge was so outlandish that she suspected he had both mental and personality disorder.

She further commented that she did not think his mental state was such that he could continue to teach. The defendant was remanded to Siu Lam Psychiatric Centre until June 26, where two psychiatric reports would be obtained.

judiciary high court
File photo: Holmes Chan/HKFP.

There are clearly many concerns with the magistrate’s cavalier usage of technical medical terminology (in an area in which she has no apparent expertise) and perhaps with her decision to remand the defendant to Siu Lam Psychiatric Centre on the basis of his testimony in court, but I would like to focus in particular on the unnecessarily stigmatising effect of the magistrate’s words.

First of all, anyone with courtroom experience will know that lack of remorse and testimony that appears untruthful or difficult to understand can be shared by many defendants, and that by itself, these behaviours are not indicative of mental or personality disorder.

What the magistrate is doing here is equating undesirable human behaviour with mental illness, which is incredibly stigmatising for individuals with mental disability, already one of the most vulnerable and stigmatised groups in society.

She further equates mental disorder with the inability to teach, feeding into the myth that those with mental disability are low-functioning and unable to (or should not be allowed to) contribute to society, even though many individuals living with mental illness have successful careers.

In education, the great Professor Elyn Saks of the University of South California Gould Law School, who lives with schizophrenia, comes to mind. With the media and entertainment industry already contributing significantly to the immense stigma and misconceptions about those with mental illness, this is a devastating blow to all of those who live with mental illness or care for those who live with mental illness.   

mental health
File photo: Adrian Swancar, via Unsplash.

The second case involved a janitor with mild-grade learning disability, said to have the equivalent IQ of a 11-year-old child. He pleaded guilty to possession of an offensive weapon in a public place and was sentenced to eight months’ imprisonment on 12 June 2020. It was reported that in mitigation, his learning disability was pointed out to the judge, as well as the fact that he had been bullied throughout the four months he had been on remand.

In response, the deputy principal magistrate reportedly stated that the offensive weapons involved in the case (i.e. toilet cleaner, petroleum gas and a laser pointer) could cause a certain level of damage, and that mild-grade learning disability was not a mitigating factor.

The idea that defendants with mental disability need to be treated differently is well established in the literature (and in fact in the law, as demonstrated by various defences available those with mental disability, such as the archaically-named insanity defence and diminished responsibility).

There are several reasons for this. For example, it is a well-known phenomenon that the risk of wrongful conviction is particularly acute for suspects with mental disability, both because they are more likely to become suspects due to behaviour that attracts attention, and because their demeanour tends to cause investigating officers to think that they are not telling the truth.

They are also more likely to make false admissions, because they are eager to please those in authority or because they confess compulsively.

May 27 2020 riot police
Hong Kong riot police. Photo: Studio Incendo.

Perhaps what is more relevant in this case are the ideas that (i) mental disability may reduce the offender’s culpability for the crime committed, and (ii) that offenders with mental disability are more vulnerable to suicide, self-harm and abuse in the penal system.

In relation to (i), mental disability at the time of the offence can mean that the requisite mens rea (or mental state required to commit the crime) is entirely absent, or at least that the moral culpability for the crime is lessened. If it is demonstrated that the janitor in this case does indeed have an IQ equivalent to a child, for example, questions should be raised about the extent to which he understood what he was doing.

While the fact that the janitor pleaded guilty means that mens rea is no longer at issue, the understanding of the implications of what one is doing does go to how morally culpable the offender is, and accordingly whether the disability should be considered a mitigating circumstance. In relation to (ii), reports of the janitor being bullied in his time on remand demonstrates in particular his vulnerability in the system.  

The two cases discussed here demonstrate the disappointing reality that mental disability is not taken seriously in our criminal justice system, a deficiency that has dire consequences in terms of civil rights and liberties.

As defenders of the law and of the higher values that the legal profession is often expected to espouse and to adhere to, I would hope that magistrates would consider carefully any stigmatising effects of the terminology they use, as well as the plight of defendants with mental disability in our criminal justice system.

Daisy Cheung is an Assistant Professor at the Faculty of Law at the University of Hong Kong, as well as Deputy Director of the Centre for Medical Ethics and Law. Her research interests are primarily in the areas of mental health and mental capacity law, as well as medical ethics and law more generally.

Guest contributors for Hong Kong Free Press.