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SCMP Reporter

A DEFENDANT with a mental age of six may be locked up in a hospital even though he is not insane and has not been convicted of any crime.

  Human rights campaigners branded yesterday's ruling by a High Court judge 'terrible and unacceptable'.

  They said the case breached the Bill of Rights.

  Yesterday Mr Justice Chan ruled that Leung Tak-choi, 40, could be sent to a psychiatric hospital or centre even though he does not need treatment.

  Mr Leung, a cleaner, was charged with four others with robbing and falsely imprisoning a nightclub hostess.

  But he was deemed unfit to stand trial after a jury heard he had an IQ of 56 and did not know how old he was.

  Mr Leung cannot read or write and spent most of his school life in the same class. After his arrest he told one doctor he was 29.

  The jury agreed it would be unfair for Mr Leung to stand trial, because he could not understand the charges against him, follow the hearing or give evidence in his defence.

  In most cases where a defendant is deemed unfit to plead it is on the grounds of insanity.

  Under the Criminal Procedure Ordinance, a defendant unfit to stand trial is automatically sent to the Correctional Services Department Psychiatric Centre or a mental hospital.

  But Dr William Greene, a psychiatrist who examined Mr Leung after his arrest, said Mr Leung did not have psychiatric problems and sending him to a hospital might do more harm than good.

  Defence lawyer Paul Loughran argued that compulsory hospital orders were inappropriate and unfair in cases such as Mr Leung's.

  'There is absurdity and injustice in making a hospital order when medical evidence is to the effect that it is unnecessary,' he said.

  Mr Loughran claimed such an order contravened the Bill of Rights because it amounted to 'arbitrary detention' and 'degrading treatment'.

  As Mr Leung had not been convicted of any offence he should not be punished by being sent to hospital.

  He said laws had been amended in England in 1991 so that defendants in a similar position could be given a supervision order or absolute discharge.

  But Andrew Bruce, for the Crown, said if Mr Leung was sent to a hospital he would be assessed and could be released if appropriate.

  Mr Justice Chan agreed the system was 'somewhat clumsy', but ruled the Criminal Procedure Ordinance did not breach the Bill of Rights.

  'A detention under the Criminal Procedure Ordinance cannot be regarded as inhuman or degrading treatment or punishment. This is in Mr Leung's interest and for his benefit so he can be examined, assessed and treated if this is necessary and possible.'    He said if guardianship were the best solution he was sure Mr Leung could be assessed and released quickly.

  But outside court, the chairman of the Hong Kong Human Rights Commission, Ho Hei-wah, said the ruling was 'ridiculous and unacceptable'.

 'It's terrible. I would agree it contravenes the Bill of Rights,' he said. 'If he has a six-year-old's mind, you should not just lock him up in hospital.

   'I think the best way would be to let him go home. He has been living with his mother for many years and she is probably the only person he trusts.'   The remaining four people charged were convicted of blackmail and false imprisonment and are due to be sentenced today.



Outrage over fate of retarded defendant