#OpinionArticle #court
Unfair Judgment
(13 Jun) I received a piece of news today that made me sad and angry at the same time.
A male cleaner, whose IQ is only that of a 11 year-old, was sentenced to eight months in prison for possession of detergent and a liquefied petroleum gas cylinder. Magistrate Cheung Kit-yee, who handled the case, went so far as to say that "intellectual disability is not a mitigating factor".
Firstly, the items in question do not qualify as a “Molotov cocktail”; Secondly, even if the defendant intended to make a Molotov cocktail, he did not make an actual one to injure others; Thirdly, the defendant’s IQ is only that of a 11 year-old, and is classified as an “incapacitated person (or a person with limited capacity)". Why was this not a factor of consideration when sentencing?
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Based on modern criminal theory, an offender must have a mens rea to commit a crime. Common theories of criminality assume that the offender must have sufficient mental capacity to constitute true criminal intent; If mental capacity is inadequate, the whole mens rea becomes worthy of consideration. Patients with severe mental illness may even be able to avoid imprisonment because they are "incapable of forming true intent".
Therefore, "IQ of only a 11 year-old" is definitely a factor to be considered in sentencing.
Logically, even if the judge found the case to be serious and imposed the sentence based on the "theory of prevention" (i.e. it constitutes a deterrent, prevents similar crimes from occurring, and protects the community by segregation), it does not mean that "mental capacity" is not a factor of consideration.
Moreover, the defendant genuinely needs the help and education of a special center, and a sentence alone would not prevent the defendant from repeating his actions.
Judges should exercise discretion in sentencing, taking into account the defendant's special circumstances, rather than imposing a harsh sentence.
* * * *
The verdict of Magistrate Cheung Kit-yee was hardly praiseworthy to me. The most outrageous thing is that she has, on several occasions, unconditionally accepted the police's testimonies even when they were obviously contradictory, describing the police as “truthful witnesses”. Cheung’s verdict has even been overturned by an appeal judge who said, "the handling of contradictions in the testimonies of the police officer and sergeant was rather inadequate".
In another bizarre case, a four-month jail sentence was imposed in 2018 after ruling that the prop bills for the movie, Trivisa, were counterfeit, in which Cheung claimed that a fine was insufficient to reflect the seriousness of the offence. There is really no common sense in these cases. Fortunately, the verdict was later overturned.
With these judges in Hong Kong, it is no wonder that the public has less and less confidence in the courts.
Source: Facebook
#RuleOfLaw #Judges #FailedState #incapacitatedperson #Mainlandization
Unfair Judgment
(13 Jun) I received a piece of news today that made me sad and angry at the same time.
A male cleaner, whose IQ is only that of a 11 year-old, was sentenced to eight months in prison for possession of detergent and a liquefied petroleum gas cylinder. Magistrate Cheung Kit-yee, who handled the case, went so far as to say that "intellectual disability is not a mitigating factor".
Firstly, the items in question do not qualify as a “Molotov cocktail”; Secondly, even if the defendant intended to make a Molotov cocktail, he did not make an actual one to injure others; Thirdly, the defendant’s IQ is only that of a 11 year-old, and is classified as an “incapacitated person (or a person with limited capacity)". Why was this not a factor of consideration when sentencing?
* * * *
Based on modern criminal theory, an offender must have a mens rea to commit a crime. Common theories of criminality assume that the offender must have sufficient mental capacity to constitute true criminal intent; If mental capacity is inadequate, the whole mens rea becomes worthy of consideration. Patients with severe mental illness may even be able to avoid imprisonment because they are "incapable of forming true intent".
Therefore, "IQ of only a 11 year-old" is definitely a factor to be considered in sentencing.
Logically, even if the judge found the case to be serious and imposed the sentence based on the "theory of prevention" (i.e. it constitutes a deterrent, prevents similar crimes from occurring, and protects the community by segregation), it does not mean that "mental capacity" is not a factor of consideration.
Moreover, the defendant genuinely needs the help and education of a special center, and a sentence alone would not prevent the defendant from repeating his actions.
Judges should exercise discretion in sentencing, taking into account the defendant's special circumstances, rather than imposing a harsh sentence.
* * * *
The verdict of Magistrate Cheung Kit-yee was hardly praiseworthy to me. The most outrageous thing is that she has, on several occasions, unconditionally accepted the police's testimonies even when they were obviously contradictory, describing the police as “truthful witnesses”. Cheung’s verdict has even been overturned by an appeal judge who said, "the handling of contradictions in the testimonies of the police officer and sergeant was rather inadequate".
In another bizarre case, a four-month jail sentence was imposed in 2018 after ruling that the prop bills for the movie, Trivisa, were counterfeit, in which Cheung claimed that a fine was insufficient to reflect the seriousness of the offence. There is really no common sense in these cases. Fortunately, the verdict was later overturned.
With these judges in Hong Kong, it is no wonder that the public has less and less confidence in the courts.
Source: Facebook
#RuleOfLaw #Judges #FailedState #incapacitatedperson #Mainlandization