LETTER OF THE LAW
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Hong Kong must ensure equal access to justice for the mentally disabled

Recent allegations reveal how vulnerable people living in care homes can all too easily be exploited and face too many obstacles when seeking legal redress

PUBLISHED : Monday, 07 November, 2016, 4:46pm
UPDATED : Tuesday, 08 November, 2016, 5:34pm

A big public outcry erupted in Hong Kong recently over a case in which a charge of sexual assault against a former superintendent of the Bridge of Rehabilitation, a home for the mentally disabled, was dropped by the prosecution on the grounds that the victim – a 21-year-old woman with a mental age of eight – was unfit to give evidence due to post-traumatic stress.

There has been evidence that people with mental or intellectual disabilities are more likely to be subjected to sexual abuse and violence. And to get justice done, they often face more barriers than others.

Their disabilities may make it difficult for them to recall facts, describe what happened and communicate with others, and that does not include the huge psychological stress victims experience in such a situation. Others’ insensitivity, disbelief, stereotyping and dismissive attitudesare also hindering factors. In some instances, the defence takes advantage of this to challenge the credibility of the victim’s testimony.

The aim should be to uphold the right to equality and the right to fair legal proceedings, and to serve justice

The victim is trapped in a dire situation if the crime took place within a relationship of dependence when trust was abused. There have been reports that institutionalised people with mental and intellectual disabilities are more susceptible to such exploitation. Those in poorly regulated and sub-standard homes face even worse situations.

To make the justice system more accessible for the disabled, a cross-sector, comprehensive, problem-solving approach is needed. The aim should be to uphold the right to equality and the right to fair legal proceedings, and to serve justice.

Such an approach calls for a review and reform of the laws concerning vulnerable witnesses and supporting services.

The UN Convention on the Rights of Persons with Disabilities, to which Hong Kong is a signatory, offers inspiration and guidance. It demands that the dignity and equal personhood of those with disabilities be recognised and respected.

Article 13 of the convention requires the government to ensure effective access to justice for persons with disabilities on an equal basis with others, “including through the provision of procedural and age-appropriate accommodations” to facilitate their role as direct or indirect participants in all legal proceedings.

The purpose of procedural accommodations is to remove obstacles that may prevent witnesses with disabilities from accessing justice and to ensure their full capacity to testify.

Good practices and standards from other jurisdictions include the use of special investigators and professional facilitators

Appreciating the wide array of mental, intellectual and communication disabilities, individualised accommodative measures are needed. Good practices and standards from other jurisdictions include the use of special investigators and professional facilitators. Police investigation and courtroom adaptations such as modifications to the technical and ceremonial aspects and the use of video links should be considered, so long as they can facilitate communication without compromising the rights of the parties, fairness of proceedings and the substance of the rule of law.

The Law Reform Commission recently released a consultation paper on sexual offences involving children and persons with mental impairments. A number of recommendations as to substantive offences have been proposed.

Lastly, Article 13 also requires signatories to “promote appropriate training” for those working in the administration of justice. The provision does not elaborate on the meaning.

But quality training to enhance professional competence of law enforcers, lawyers, judges and forensic professionals, and the development of an ethic of care are some of the fundamentals, as many international reports have recommended.

After all, ensuring equal right of access to justice should be a concerted professional effort.

Simon Ng Tat-ming is an assistant professor and senior programme director of law at the School of Professional and Continuing Education, University of Hong Kong.