Hong Kong Criminal Law: Ted Chan examines 3 common issues involving fitness to stand trial in the July 2022 issue of Hong Kong Lawyer
Hong Kong Criminal Law
What is the prudent course of action to take when a defence lawyer detects suspicious behaviours on the client’s part that suggest unfitness to plead and stand trial? How should defence lawyers work with psychiatrists in seeking their medical opinion? Ted Chan discusses the practical approach to three common issues that may arise when the defendant’s mental capacity is called into question.
In Hong Kong, section 75 of the Criminal Procedure Ordinance (Cap.221) provides that, upon the Court receiving the written or oral evidence of not less than two registered psychiatrists and ruling that the defendant is unfit to stand trial, it would constitute a bar to his being tried. It is a procedural safeguard within the criminal justice system to protect defendants who are incapable of participating in the proceedings and contributing to their own defence, particularly when they have a mental condition or are suffering from a mental illness. In essence, as Lord Edmund-Davies said in R v. Podola (1960) 1 QB 325, “no man may be brought to trial upon any criminal charge unless and until he is mentally capable of fairly standing trial”.
If the Court is satisfied as to the defendant’s unfitness to stand trial, the Court would conduct a further inquiry under section 75A as to whether the defendant did the act or omission charged and, if so, decide which of the orders under section 76 is appropriate in final disposal of the case.
Normally, the Court intervenes only if there is a substantial question as to a defendant’s trial fitness; and it is not obliged to raise the issue in instances of a mere possibility of unfitness: R v. Keung-Sai-chung [1986] HKLR 833. This effectively places a burden on the defence lawyers to identify and raise the issue, in order to ensure procedural fairness for the defendant.
In determining whether a defendant is unfit to plead and stand trial, the Court would ask whether s/he is capable of understanding his/her trial so as to be able to:
a) Put forward any proper defence s/he might have; and
b) Challenge a juror to whom s/he might have cause to object;
c) Give instructions to lawyers. This means that s/he must be capable of telling lawyers what his/her case is and whether s/he agrees or disagrees with what the witnesses have to say; and
d) Follow the evidence.
In R v John M [2003] EWCA Crim 3452, these factors have been restated with further elaboration. The English Court of Appeal endorsed the trial judge’s direction that in order to be fit to stand trial at all, a defendant must be capable of doing six things (which are consistent with the four factors adopted in Hong Kong). The trial judge told the jury that it was therefore sufficient for the defence to persuade them on the balance of probabilities that any one of those six things was beyond the appellant’s capabilities: (a) understanding the charges; (b) deciding whether to plead guilty or not; (c) exercising his right to challenge jurors; (d) instructing solicitors and counsel; (e) following the course of the proceedings; (f) giving evidence in his/her own defence.
Certain practical issues which may arise when lawyers (i) detect suspicious behaviours which are suggestive of the defendant’s lack of fitness to plead and stand trial and (ii) work with psychiatrists in seeking their medical opinion on this issue. This article will elaborate on three selected issues and suggest steps for tackling them in a manner which safeguards the defendant’s interests.
When suspicions arise in legal conference
Solicitors are no strangers to making a preliminary assessment of a client’s mental state. This is a standard procedure for them before entering into a retainer and where the subject matter requires sound mental capacity on the client’s part (e.g., the making of a will or a power of attorney). During a conference for a criminal matter, when explaining the charge, allegations and the evidence against the defendant, the lawyers should from time to time test the defendant’s understanding. When in doubt, lawyers may invite the defendant to briefly repeat or summarise what the prosecution case entails.
R v John M also provides valuable guidance on what constitutes mental capacity during the legal conference and other stages of the criminal proceedings:
• “Instructing his solicitors and counsel”: “The defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence. It involves being able (a) to understand the lawyers’ questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishes to give. It is not necessary that his instructions should be plausible or believable or reliable, nor is it necessary that he should be able to see that they are implausible, or unbelievable or unreliable…”
• “Following the course of the proceedings”: “The defendant must be able (a) to understand what is said by the witness and by counsel in their speeches to the jury and (b) to communicate intelligibly to his lawyers any comment which he may wish to make on anything that is said by the witnesses or counsel… There is also no reason why the defendant’s solicitor’s representative should not be permitted to sit beside him in court to help with the note taking process… It is not necessary that the defendant’s comments on the evidence and counsels’ speeches should be valid or helpful to his lawyers or helpful to his case. It often happens that a defendant fails to see what is or is not a good point to make in his defence. The important thing is that he should be able to make whatever comments he wishes.”
• “Giving evidence if he wishes in his own defence”: “The defendant must be able (a) to understand the questions he is asked in the witness box, (b) to apply his mind to answering them, and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable… Nor is it necessary that the defendant should be able to remember all or any of the matters which give rise to the charges against him. He is entitled to say that he has no recollection of those events, or indeed of anything that happened during the relevant period.”
As always, solicitors should make a detailed note of the conference. Where the defendant is suspected to be incapable of understanding the advice and/or responding properly, it is all the more crucial that his reactions and responses are comprehensively recorded – especially when his speeches are unintelligible. For example, if the defendant shakes his head and makes incomprehensible sounds when asked a question by his lawyers, both the question (including the number of times that such question has been asked) and the responses should be noted. Where the defendant is legally aided, lawyers would find it useful to refer to these observations in justifying their request for psychiatric assessment.
Seeking medical opinion
Where the defendant’s mental fitness is in doubt, it is in his/her interest to be advised of the lawyers’ concern and the need to obtain medical opinion. Importantly, the defendant must give his/her consent to be assessed and understand how the conduct of his/her case would be affected.
Once an appropriate psychiatrist is identified, solicitors will no doubt have obtained the psychiatrist’s CV including his/her professional qualifications and relevant experience. The next step would be drafting a letter of instruction. In this particular context, solicitors should enclose the crucial case papers, such as the indictment/charge sheets, summary of facts, witness statements from key prosecution witnesses and, if any, the defendant’s records of interview.
Solicitors should also obtain the defendant’s medical records and ascertain his/er personal and family background (including education level, work experience, daily routine, etc). Provided that the defendant consents, lawyers may consider briefly interviewing third parties (e.g., the defendant’s family member, carer or social worker) who may reveal material facts about his/her daily life which tend to show a mental illness or disorder. With the defendant’s consent, the psychiatrist may wish to meet with these third parties. Similarly, there is nothing to prevent the court from hearing factual evidence from third parties who are familiar with the defendant’s daily life, in addition to the medical opinion from psychiatrists.
Needless to say, the letter of instructions should set out clearly that the purpose of the assessment is to ascertain the defendant’s fitness to plead and stand trial. It is advisable to also provide the psychiatrist with Chapter 7 of the “Specimen Directions In Jury Trials” (Vol. 1, 2013 edition) and the judgment of R v John M [2003] EWCA Crim 3452, which sets out the relevant legal principles in an accessible manner. The psychiatrist should be reminded to explain why the defendant is mentally fit or unfit with reference to the legal criteria. Mental fitness ultimately being a legal issue, it is not sufficient that a diagnosis of certain mental disorder or illness is made; the psychiatrist must also be able to explain clearly the basis of the diagnosis and the degree to which the metal disorder or illness has undermined the defendant’s ability to put forward a proper defence, give instructions to his lawyers, follow the evidence, etc.
Recently, in HKSAR v So Kau (transliteration) (DCCC 904/2019) (ruling to be published), upon the court’s invitation, the psychiatrists called by the defence had taken part in the defendant’s conference with Counsel. Thus, the psychiatrists had the opportunity to observe the actual interactions between the defendant and his lawyers. From the defence’s perspective, there is a two-fold advantage to this approach: first, it provides more factual materials for the psychiatrists to take into account; secondly, and more importantly, it illustrates the degree of sophistication in the legal advice and instructions in a particular case, which is also relevant in assessing the Defendant’s comprehension ability. Nonetheless, this does not substitute the need for the psychiatrists to make their own enquiries with the defendant during one-to-one consultations.
Admissibility issues during inquiry
During their testimony, solicitors or psychiatrists may need to refer to parts of the legal conference. Given this possibility, an eagle-eyed reader would be rightly concerned about the issue of admissibility of such evidence.
First, such evidence should strictly relate to matters material to the inquiry on mental fitness, such as the defendant’s response as the basis of the psychiatrists’ analysis. Nowhere should their evidence touch upon counsel’s advice on merits, for the obvious reason that these matters are irrelevant to the issue of mental fitness and thus inadmissible for the purpose of the inquiry. Lawyers should be sensitive to the possibility of giving evidence in the future and focus on exchanges with the defendant which enable an assessment for the purpose of assessing mental fitness.
Secondly, it is well established that privilege can be waived in part: Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701. Before taking this course, which implies that privilege is waived partially, consent must be sought from the defendant notwithstanding the dispute over his mental fitness. In any event, the solicitors’ evidence should be largely uncontentious as the crucial issue remains to be determined by medical evidence.
Concluding thoughts
In an inquiry into a defendant’s mental In an inquiry into a defendant’s mental fitness, the outcome depends heavily on the quality of the psychiatrists’ evidence. That, in turn, also depends on the quality of instructions and information supplied by the defendant’s lawyers. Even if the defendant is ultimately ruled to be fit to plead and stand trial, such efforts may still be relevant in the criminal trial and, in case of conviction, mitigation.
This article first appeared in the July 2022 issue of Hong Kong Lawyer – the official publication of The Law Society of Hong Kong.
| Ted Chan
Highlights of his criminal law experience include appearing as co-counsel for the Respondent in Secretary for Justice v SWS [2021] 1 HKLRD 1136, where the Court of Appeal set out the general approach to sentencing juvenile offenders. Ted is also active in family law matters. He regularly advises on and handles cases involving ancillary relief, custody, relocation applications, parentage order, etc. He has experience in dealing with intricate cases with parallel proceedings in the High Court (e.g., involving third party’s beneficial interest disputes) or Juvenile Court (e.g., involving a care/protection order), or with certain criminal elements. A qualified meditator, Ted has extensive mediating a wide range of disputes including matrimonial cases. He is the author of the article “Hong Kong Family Law: Misconduct as a ground for departing from equal division of matrimonial assets”. From 2017 to 2018, Ted was appointed as a Judicial Assistant in the Court of Final Appeal. He was responsible for conducting legal research for the judges, and preparing judicial bulletins and press summaries. Currently, Ted is a law reporter for the Hong Kong Court of Final Appeal Reports (HKCFAR) and the Hong Kong Law Reports & Digest (HKLRD). Visit Ted’s profile for more details. |
This article was first published on 25 July 2022.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.