Dementia and Criminal Justice

Dementia and Criminal Behaviour

Dementia is a syndrome which causes a gradual deterioration in the patient’s cognitive abilities to such an extent that it will eventually affect the patient’s memory, comprehension, learning capacity and judgment. While dementia patients are often presented in the media as old people who are weak, being forgetful all the time and losing memories, this kind of portrayal is only reflecting part of the symptoms of dementia.

A growing number of studies show that dementia patients can show impaired moral judgments, poor impulse control, even paranoia and delusions, and these behavioural and psychological symptoms may lead to criminal violations. While some of the dementia patients are only caught for petty crimes like shoplifting, others may display violent or sexually disinhibited behaviour. With poorer self-control, dementia patients may react impulsively to tempting environments without consideration for the consequences. A declining cognitive capacity may also make them misinterpret the environment, which may lead to hostility or even physical violence towards the misidentified objects.

Against this background, it is hardly surprising that some dementia patients may come into contact with our criminal justice system. Since the number of dementia patients in Hong Kong is expected to increase substantially amid an ageing population crisis, it is expected that the number of dementia patients entering our criminal justice system will also increase in the future. However, whether our criminal justice system is ready for this looming problem has remained an under-researched topic.

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A Brief Overview of the Caselaw

The caselaw below provides a brief overview on how dementia patients navigate our criminal justice system.

HKSAR v. Law Kam-wing (DCCC No.459 of 2012)

The defendant was convicted on his own plea on one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance (Cap 212). The defendant (aged 82 years) and the victim (aged 85 years) were both residents of an elderly home. The defendant alleged that the victim had stolen his money, but the victim denied. A dispute arose between them. 10 days later, the defendant used a 6-inch long cutter to strike on the victim’s limbs, thereby causing injuries to his limbs.

Deputy District Judge Chainrai was furnished with two psychiatric reports. Dr Oliver Chan in his report opined that the defendant suffered from dementia and demonstrated psychotic symptoms associated with dementia. Dr Robyn Ho in her report opined that the defendant suffered from dementia of a moderate grade with delusions, that he had paranoid delusions against the victim, the staff in the elderly home as well as the police – he believed that they all tried to harm him because they were greedy. She also opined that the defendant had a propensity to violence.

Both psychiatrists recommended in-patient treatment in a secure setting as necessary for the health and safety of the defendant as well as for the safety of others and recommended the making of a hospital order under section 45 of the Mental Health Ordinance (Cap. 136) for at least 3 months. Hence, in the exercise of the powers conferred on her by section 45(1) of the Mental Health Ordinance (Cap. 136), Deputy District Judge Chainrai authorized the admission of the defendant and his detention in the Siu Lam Psychiatric Centre for a period of 3 months.

HKSAR v. Chow Lee-hung (HCCC No.480 of 2016)

The defendant, aged 87 years, faced an indictment containing one count of manslaughter and one count of wounding. The two bedridden victims were fellow residents in an elderly home. The defendant used a steel grill he removed from the floor of a bathroom to bash each of the victims in turn.

A jury was empanelled to determine whether the defendant was fit to be tried pursuant to sections 75 and 75A of the Criminal Procedure Ordinance (Cap.221). The jury by a verdict of 6 to 1 found the defendant not fit to be tried. By its verdict, the jury had found that the defendant was under a disability of the mind when he committed the acts of the offences with which he had been charged. As required under section 75A, the jury went on to determine whether the defendant did the acts of the offences charged. The jury returned a verdict of 6 to 1 that the defendant did the acts of the offences charged.

The Honourable Mr. Justice Zervos was furnished with two psychiatric reports. Dr S. H. Lui in his report diagnosed that the defendant was suffering from dementia in an advanced stage. He was of the opinion that his condition was expected to deteriorate, and more intense medical and nursing care would be required. Dr Dorothy Tang in her report diagnosed that the defendant suffered from dementia with psychotic features. She concluded that the defendant had severe cognitive impairment and the condition was not likely to improve in the near future given the progressive nature of dementia.

Both psychiatrists recommended that the defendant be committed to the Castle Peak Hospital on a hospital order for an unspecified period under section 45 of the Mental Health Ordinance (Cap. 136) where he would be subject to the review of the Mental Health Review Tribunal under the Mental Health Ordinance (Cap. 136).

The Honourable Mr. Justice Zervos was satisfied on the evidence of the two psychiatrists that it was necessary in the interests and welfare of the defendant and for the protection of others that the defendant be admitted to a mental hospital in accordance with section 76(2)(a) and Schedule 4 of the Criminal Procedure Ordinance (Cap.221). He, therefore, ordered accordingly.

HKSAR v. Tsang Kwong Shing (DCCC No.1 of 2018)

The defendant, aged 64 years, pleaded guilty to one count of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance (Cap. 212). The victim was his wife. He hit her with a hammer on the head causing a scalp laceration which required 3 stitches.

His Honour Judge Sham was furnished with two psychiatric reports. Dr. Lui in his report opined that while the defendant was suffering from vascular dementia, his memory and thinking were largely preserved and his current mental condition stable, that there was no indication of a hospital order though placement in a supervised hostel was advisable. In describing the defendant’s psychiatric history, Dr. Chan wrote in the report that the defendant was first known to the psychiatric service when he attacked his wife with a walking stick out of morbid jealousy and accused her of having extramarital affairs. He was diagnosed as having vascular dementia and was noted to have cognitive decline, irritability and paranoid ideas. Dr. Chan went on to conclude that the defendant’s current condition was stable and he did not require any in-patient psychiatric treatment. However, in the long run, he would need a supervised accommodation given the grossly irreversible nature of dementia.

His Honour Judge Sham adopted 12 months imprisonment as the starting point and reduced it to 8 months for the defendant’s plea.

newsWay Forward

The caselaw above illustrate clearly how symptoms of dementia may lead to criminal violations. They also prompt us to consider what exactly the appropriate ways are to deal with defendants suffering from dementia.

There is currently no cure for dementia. The available treatments only ameliorate some of the symptoms. Given the irreversible nature of dementia, the concept of committing a defendant suffering from dementia to a prison or an institution under the Mental Health Ordinance (Cap.136) raises important ethical and moral issues. The gradual cognitive impairment of defendants with dementia means that they will eventually forget what they have done and why they are incarcerated. Hence, the purpose of incarceration, whether punitive or rehabilitative, carries little or no meaning at all.

Furthermore, since the condition of the defendants with dementia will continue to deteriorate, it is doubtful whether prison or psychiatric facility without any dementia special care services is indeed suitable for them. The gradual loss of memory, judgment, functional abilities and health of these defendants means they require extensive medical care and attention. Hence, their needs are completely different from the younger offenders. Also, since some of them may have propensity for violence or committing predatory sexual behaviour, they also need constant supervision to avoid them from posing a risk to themselves or others.

As senior population grows, the number of old people with dementia is projected to increase as well. In order to ensure the fairness of our criminal justice system as well as the fair, just and compassionate treatment of defendants with dementia, further research and discussion in this area are urgently needed.

For example, in order to ensure early detection, treatment and care, more has to be done to raise the awareness of the general public and the legal professionals regarding the relationship between dementia and criminal behaviour. Further research may also be conducted to investigate whether forensic mental health services specifically designed for the elderly and more purpose-designed accommodation inside and outside prisons are necessary to address the multiple and complex needs of defendants with dementia. 

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Jurisdictions

Assistant Solicitor, Ng, Au Yeung & Partners

Tammy was admitted as a Solicitor in Hong Kong in July 2017. Her practice focuses on civil litigation. She also has experience in handling matters related to family law and criminal litigation.