AMOS TOH
Year 1 NUS Law

 LAST MONTH, A MAN slapped with three counts of vandalism after he was caught scribbling on a wall outside Parliament House was acquitted of all charges on the ground of unsoundness of mind. A psychiatrist from the Institute of Mental Health (IMH) reported that Koh Chan Meng had not been taking his medicine for schizophrenia regularly, triggering a relapse that caused Koh to commit the offences. According to the psychiatrist, Koh was “unable to explain the reason [for] going to Parliament House or to provide a consistent explanation of [his actions]… or his intention of doing so” (Zul Othman, “Parliament vandal acquitted as he is mentally unfit” TODAY (16 February 2009)). District Judge Roy Neighbour ordered him to be warded at the IMH indefinitely under s. 314 and s. 315 of the Criminal Procedure Code (CPC).

While the press seized on the acquittal to applaud the court’s enlightened treatment of a mentally ill offender, has anything really changed?

In truth, the defence of unsoundness of mind that Koh successfully raised rarely vindicates the rights of accused persons who are mentally ill. Under s. 84 of the Penal Code, the accused must prove, on a balance of probabilities, that his alleged mental illness prevents him from knowing the “nature of his actions”, or that they were “wrong” or “contrary to law”.

Section 84 falsely assumes that all mental illnesses deprive their sufferers of all knowledge of wrongness. In reality, the mentally ill may often commit a crime knowing that it is wrong, but without the ability to control their actions. Kleptomaniacs, for example, are vulnerable to the full charge of theft under s. 378 of the Penal Code because they can’t help but steal even though they know that stealing is “wrong or contrary to law”. Consequently, the law fails to discriminate between truly culpable offenders and those whose faculties of restraint and self-control are weakened by their illness.

In the rare instance that s. 84 is proved, the final result has been unsettling. In PP v. Boon Yu Kai John, [2004] 3 Sing. L. R 226, the accused communicated false messages to the police that someone was trying to kill his mother and was charged under the Telecommunications Act. The High Court acquitted him on the ground of unsoundness of mind. However, he was detained “in a mental hospital, prison or other suitable place of safe custody during the President’s pleasure” under s. 314 and 315 of the CPC. 

A discomfiting reality emerges because if the accused had pleaded guilty to the original charge under s. 45 of the Telecommunications Act, it is likely that he would have been given a light sentence, being a mentally impaired first-time offender.  However, having acquitted him of the crime, the court had to then impose an indefinite term of detention on the accused.

To be sure, it is well within society’s interests that mentally impaired persons who commit murder or cause grievous hurt are detained indefinitely in a mental institution for prolonged treatment. However, indefinitely detaining petty (albeit persistent) criminals like prank callers can neither serve any conceivable social good nor cure the accused’s condition.

The legal consequences that the mentally ill may face are damning. An offender who has committed petty or moderate crimes may find himself detained indefinitely in a mental facility if he successfully pleads the defence of s. 84. If he fails, he could well face a mandatory sentence of caning or imprisonment under the law. If Justice Neighbour had found Koh to be liable under s. 3 of the Vandalism Act, he would have no choice but to sentence him to at least 3 strokes of the cane. Thus, the mandatory corporal punishment imposed would fail to reflect the reduced culpability of the mentally ill offender.

Is there no viable alternative to mandatory and indefinite detention under s. 314 and s. 315 of the CPC? Allowing judicially supervised detention may mitigate s. 84’s all-or-nothing approach. Judges might worry that they will have to resort to guesswork when determining the appropriate term of detention for a mentally impaired offender. However, this can be easily resolved if judges are also allowed to discuss the duration of detention with an independent body of psychiatrists, further enlightening the sentencing process.

For offenders who persistently commit petty crimes, a discretionary term of probation would ensure that the accused gets the medical treatment required. A recent High Court pronouncement appears to support this alternative, where V K Rajah JA found that “rehabilitation [of the accused kleptomaniac] best took place outside of prison walls” and thus imposed a term of 18 months’ probation in PP v. Goh Lee Yin, [2008] 1 Sing. L. R 824.

Critics might decry the proposal as one that risks allowing offenders to roam the streets and commit anti-social acts freely. However, is this propensity something society can live with? Abraham Lincoln famously said that “mercy may bear richer fruits than strict justice” – perhaps society has to tolerate a certain level of offending by the mentally insane. It may also be more cost efficient for society to accept prank calls, stolen accessories and perhaps even wall graffiti than to feed, clothe and shelter an accused for an indefinite period of time.

The author is grateful to Professor Michael Hor for his guidance and advice.