Gaps in Hong Kong’s criminal justice system leave the city’s vulnerable at risk
Care home sex assault charges dropped because alleged victim could not testify, puts protection in the spotlight
Some of the city’s most vulnerable care home residents are fully-grown adults, but with little or no mental capacity to defend themselves. They are children at heart, who rely heavily on their families and others including strangers to care and look out for them. And their low intellects make them easy prey for sex offenders.
So when prosecutors dropped charges against a former nursing home chief who allegedly had sex with a mentally disabled resident, it sparked widespread outrage in the community and raised the question of how much the system is doing to protect the vulnerable.
The charge against Cheung Kin-wah of Bridge of Rehabilitation Company was dropped in May. Shortly after, the Department of Justice said that was because the alleged victim was mentally unfit to testify, making conviction too unlikely to proceed. A psychiatrist had said a compulsory testimony could have harmed the alleged victim’s chance of recovery.
But the question remained: how can the next victim be protected from abuse?
Some blamed the government for prioritising other prosecutions, like those arising from political activities. That the department has reduced the size of a specialist team that deals with vulnerable witnesses from 24 to one certainly doesn’t bode well.
Before that drastic staff reduction, the team – with relevant knowledge, skills, experience and sensitivity – had grown steadily since its inception in the 1990s, from 16 specialist lawyers in 2001 to 18 in 2006 and 24 in 2008.
Former top prosecutor Grenville Cross SC, who once said the specialist team was essential for witnesses to have confidence in the criminal justice system, slammed the cut as “hugely regressive” and “short-sighted”. He said it would undermine efforts and send a negative signal to the community.
“It also suggests that the interests of vulnerable witnesses are no longer being prioritised in the way they once were,” Cross said.
He said the cut might have been the result of a lack of expertise, shortage of prosecutors or people being assigned to different cases, like public protest prosecutions, or that the implications of disbanding the team were “either overlooked or disregarded”.
The Bridge of Rehabilitation case has highlighted that the need for a dedicated team has “never been greater”, said Cross, because it is necessary to have prosecutors with specific expertise in particular areas as both crime and the law are becoming more complex.
“Obviously, if cases are given to prosecutors who are familiar with the difficulties involved in vulnerable cases and know the relevant law and practice, it saves a lot of time, and is more likely to lead to a successful outcome,” he said. “The legislation concerning vulnerable witnesses, and the related case law, can certainly be difficult to understand and needs to be carefully studied and applied, and the absence of a [team] makes the chances of mistakes occurring in prosecutions all the greater.”
But the department countered that there was no longer a practical need to maintain a dedicated team because they “actually have more and more counsel who are equipped to handle cases involving vulnerable witnesses.”
A spokeswoman said the department had enhanced training for all counsel in recent years.
The present arrangement is “currently the best way to make the best use of our growing number of counsel capable of handling such cases while ensuring consistency and standards in case-handling”, she said.
But Dr Ivan Mak Wing-chit, public awareness committee chairman at the Hong Kong College of Psychiatrists, said specialised care remained preferable, given the diverse and unique needs of each category of victims, and that a dedicated team would facilitate the transfer of skills and promote experience-sharing among a group lawyers working together.
“We should be looking into ways to enrich services,” the psychiatrist added.
Meanwhile, the department is preparing a working draft bill to consult lawyers on whether to give courts discretion in admitting hearsay evidence when victims are unfit to testify, provided it is satisfied with the reliability of such evidence.
The Law Review Commission is also consulting the public on whether there should be laws to deal with conduct involving abuse of a position of trust involving victims aged between 16 and 18.
Under a court practice direction which the judiciary understood had been fully implemented, mentally disabled people are entitled, like children, to special treatment like testifying over video link or a recording, and having a support worker accompany them while testifying.
Judges also have to ensure that barristers don’t use intimidating tactics and that there are enough breaks in the hearing.
Mak said people with moderate disabilities are more vulnerable to sexual assaults and the after-effects – like the post-traumatic stress disorder diagnosed in the alleged victim in the dropped Cheung case – are harder to detect due to their inability to express their emotions and thoughts.
Mak said asking these victims to recall the incident would need careful questioning or unorthodox methods like drawing or playing games like cards, to avoid retraumatisation.
“From the perspective of psychological health, it was a reasonable decision,” Mak said of the move to spare Cheung’s alleged victim from testifying.
City University professor Eric Chui Wing-hong, a registered social worker, said the Cheung case reflected a need for more emotional and legal support from workers experienced in communicating with mentally disabled people.
Lee Chi-yung, chairman of the Association of Parents of the Severely Mentally Handicapped, questioned whether the current system properly served justice.
He said: “Prosecutors cannot provide adequate protection without sufficient knowledge and awareness. Is it justice if that leads to the loss of rights?”
The downsized specialist team was also intended to ensure the rights of witnesses who were also victims of crime were duly protected, as set out in the department’s Victims of Crime Charter, which celebrates its 20th anniversary this year.
That charter is designed to tackle areas where the criminal justice system might not adequately address, like the interests of victims.
It spells out 11 rights for such victims including the right to proper facilities in court; to be heard; to seek protection; and to support.
But Linda Wong Sau-yung, executive director of rape crisis centre Rain Lily, said the biggest problem is that the charter is not legally binding.
She also said the bilingual charter was too vague and broad as it covers all kinds of victims, with few provisions tailored to any specific group. This, she said, makes it difficult for victims to ask for assistance or seek measures that make them feel respected and comfortable in proceedings as they may not fully understand the extent of their rights by reading the charter.
In stark contrast, Singapore offers adult witnesses with a mental age below 18 free support, coordinated and managed by the State Courts.
Courts invite witnesses to visit the court, familiarising them with the environment and its procedures. And a support volunteer accompanies them to hearings and helps them manage potential stress arising from the proceedings.
British courts are rolling out a similar system. In 2014 the UK government gave the charity Citizens Advice £24 million (HK$233.2 million) to provide home and court visits for vulnerable and intimidated witnesses.
The volunteers talk witnesses through what to expect on the day of the trial; their rights; the people who will be in court; and reasons why a trial might not go ahead. The same volunteer would offer to visit court with the vulnerable witness before the hearing, and accompany them when they testify.
Since the service started in April last year, volunteers have helped more than 178,000 witnesses, with over 3,000 staff members and volunteers in the programme.
Cross warned that in the worst case people might lose faith in the legal system.
He said victims must be able to see that the system works for them or they will not give police or prosecutors the support they need to bring offenders to justice.
“If victims’ rights aren’t respected, it can lead to an undermining of criminal justice,” he said.
“They may lose faith in the legal system and withdraw their cooperation, resulting in crimes going unsolved, in suspects avoiding prosecution, or in trials not being brought to a successful conclusion.”
Support services provided to mentally disabled people
Police are guided by the Rights of Victims and Witnesses of Crime internal code, which states that interviews with mentally disabled victims and witnesses should be recorded so videos can then be used as evidence-in-chief in criminal proceedings. The guidelines state that a relative, guardian or social worker should also accompany the victim or witness.
Hong Kong prosecutors are guided by The Victims of Crime Charter and The Statement on the Treatment of Victims and Witnesses, which set benchmarks on how victims and witnesses should be treated at every stage of criminal proceedings. Courts allow mentally disabled individuals to give testimony through live television link or video recording. A support person accompanies the victim or witness during the process.
Vulnerable witnesses are supported by a free Volunteer Support Programme, which provides court visits to allow those individuals to first familiarise themselves with the court environment and its procedures. The programme also aims to help witnesses to manage stress arising from proceedings.
Children and adults with a disability are taken to a Vulnerable Witness Room at the Attorney General’s Chambers, where a more comfortable environment, toys and items to draw with are provided in order to help them to express themselves and complete testimonies.
The United Kingdom
Vulnerable and intimidated witnesses are visited at home or a safe community location by a staff member of the Witness Support programme who talks them through what to expect during trial. The staff member would also accompany those individuals through the trial process. Following a number of pilot programmes conducted over recent years in Crown Courts, vulnerable witnesses can now be cross-examined outside of court and before trial. The UK Ministry of Justice says the scheme spares vulnerable victims and witnesses from the trauma of appearing in court and improves their ability to recall events.