I WRITE to voice my strong objections to Mr Justice Woo's decision to halt a rape trial in order to spare the woman, who has mild mental retardation and hearing and speech impairment, the ordeal of being cross-examined further by defence counsel. Sad as it may be, the court decision is an indicator of the lack of knowledge about disability, and, perhaps, more importantly, the failure of the justice system in ensuring the legal rights of people with disabilities in the courtrooms of Hong Kong. The case sets a dangerous precedent for all rape cases, and clearly demonstrates the rigidity of the legal procedures which are unable to meet the particular needs of persons with disabilities. The suffering of the individual - the very reason for stopping the prosecution - should be the prime force in pursuing justice to the end. Few victims of rape would not feel distressed. And all victims with disabilities face additional difficulties. But instead of facing the challenge and helping the individual to cope with the stress of cross-examination, the court took an easy way out anddismissed the case. Who would not feel anguish after being questioned for four days? A recent court case in the United Kingdom can serve as an appropriate example in which flexibility can result in a fairer trial. The victim was allowed to give evidence behind a screen and lawyers and judges removed their wigs and gowns in order to create a less intimidating atmosphere. This case, which resulted in a conviction, illustrates that given allowances for disability and support to the individual, justice can be found. In Hong Kong, it is important to note that the case in question is not uncommon. In cases where the victim is a person with mental retardation, justice is very often not done simply because the defendant is not prosecuted. This may stand from an assumed inability of the victim to testify. In reality, most adults with mild mental retardation are competent to stand trial or to testify, particularly when appropriate and adequate assistance is given. Defendants with mental retardation might be in a further disadvantaged position because of the inability to ''instruct'' counsel. Since the existing machinery may not be able to protect them adequately from possible exploitation, new devices such as a ''Special Court'' need to be implemented in order to ensure that justice is done. Although many courts have made adjustments to the needs of people with hearing impairment and visual impairment, they have not made adjustments formally with respect to the defendant or plaintiff with mental retardation. In order to ensure that justice is done, I recommend the following: A component of mental retardation be part of the in-service and pre-service training programme for all members of the judiciary; Design a set of legal procedures to be followed by judges and other relevant personnel when dealing with people with disabilities; In the long run, the Government should set up a special court, like the juvenile court which deals with minors, to handle cases concerning persons with mental retardation, regardless of whether they are defendants or plaintiffs; A programme to train the defendant or plaintiff with mental retardation in courtroom proceedings. Dealing with the criminal justice system can be a problem for the average person but for some individuals with mental retardation the system is hopelessly confusing. There seems to be a general failure of the legal procedure to recognise the special problems of these individuals. The blatant disregard for human differences must not continue. DR JOHN W.L. TSE Chairman Hong Kong Down's Syndrome Association
