|
ILLUSTRATION: LUDWIG ILIO
|
THERE should be a law that gives people the right to offer as a defence in court the argument that they may not be fit to stand trial. This is critical, especially for the mentally subnormal, who cannot, in good conscience, be held fully responsible for their actions.
As the law stands, only a judge who feels there might be grounds to suspect the accused could be of unsound mind may order an investigation to see if that is so. If the accused himself claims to be of unsound mind, however, the judge is not obliged to look into it.
Emmanuel Munisamy, 20, with an IQ of only 66, is facing eight years' jail and 24 strokes of the cane for two robberies and for hurting a police officer. Last week, on appeal, Justice V. K. Rajah ordered that he be examined to see if reformative training might be suitable for him. Since this is an ongoing case, it would be sub judice to discuss its merits.
Earlier this year, though, Justice Rajah did spare Maria Dass and Krishna Kumar - both 16, both with low IQs - jail and caning, sending them to reformative training instead.
So the luck of the draw - which judge is presiding - may 'save' some mentally subnormal criminals.
This is not good enough.
Such a sad state of affairs goes way back. For example, in August 1993, Goh Cheng Yew, 18, a mentally subnormal youth, was found guilty of molesting a woman in a lift and sentenced to six months in jail. Unfortunately for him, Section 354A(2) of the Penal Code has provided, since 1984, that caning be mandatory for assault or use of criminal force on a person with intent to outrage modesty in a lift.
Then-Chief Justice Yong Pung How dismissed his appeal and upped the penalty from one to three strokes of the cane. But later, doctors found Goh was not medically fit to be caned, so the sentence of caning was remitted.
Saved by the bell, again.
The above cases point to a glaring problem in the Criminal Procedure Code, which requires only that a judge who 'has reason to suspect' that the accused is of unsound mind 'shall...investigate' it. The judge is not required to actually look into an accused person's own claim. Because it is not mandated, a judge who feels a claim to be a ploy may choose to ignore it.
Is it fair to rely on a judge's judgment when what is at stake is really a medical issue?
What a fair law would require is that the judge asks for informed medical opinion whenever the accused claims to be mentally subnormal. After all, if the accused is really unfit to stand trial, how can he get a fair trial?
Still, all is not lost. Even if Parliament is reluctant to write both the right and the procedure suggested above into law, there is a way out.
This is, if you get the 'right' prosecutor. Since 2004, the government prosecutor can actually raise the defence of unsoundness of mind for the accused even when the latter does not. (Many are reluctant to raise the defence because few fancy indefinite detention, the 'sentence' for a crime committed by one of unsound mind.)
In appealing against the acquittal in Public Prosecutor v Boon Yu Kai John (2004), the prosecutor conceded that the perpetrator was of unsound mind as the government's own psychiatrist had testified to it. This, although John's lawyers had not raised it as a defence at all.
But what this did was to set the precedent for prosecutors to raise the defence of unsoundness of mind for the accused in future cases.
Yet why would they do so? After all, prosecutors seek to increase the sentence when they appeal against it.
The reason a prosecutor might want to raise such a defence for the accused at trial - or the convicted on appeal - is that a perpetrator of unsound mind can then be committed to the Institute of Mental Health for treatment. This would serve the public good.
Finally, there is yet another law that needs revision. According to the Mental Disorders and Treatment Act, a mentally disordered person must be 'found by due course of law to be of unsound mind and incapable of managing himself or his affairs'. This sets the bar so high that most mentally subnormal individuals will not fit the bill.
So when it comes to responsibility for criminal acts, the 'unsound mind' defence will not help except in one specific area - homicide - for which there is the provision for 'diminished responsibility' in cases where the perpetrator is of unsound mind, so his crime becomes one of culpable homicide not amounting to murder.
In all other cases, short of actual insanity, judges have no other intermediate level(s) of mental impairment to resort to. Without such alternative degrees of unsoundness of mind, prosecutors also have no leeway to charge a subnormal person with a lesser crime accordingly.
We do not know how many people may be affected by such lacunae in the law. In the West, conservative estimates hold that 3 per cent of the population are mentally impaired. Experts suggest that, since the crime rate in Singapore is about 800 per 100,000 of the population, about 700 persons with some degree of mental impairment might be passing through the justice system annually.
Seven hundred seems reason enough for Parliament to take a good look into these issues.
andyho@sph.com.sg
|
