The Old Man and the Wallet

CCTV captured a curious scene. An old man queued up at a counter of a betting centre. A man in front of him left a wallet at the counter. The old man picked it up, looked into it, and took it with him. Minutes later, He returned the wallet to a staff member of the betting centre. He stayed at the betting centre.

It turns out that after the staff member located the wallet’s owner, he complained that a few thousand dollars in cash had gone missing. However, the staff maintained that there was no cash when the wallet was returned. The police were called. They arrested the old man for theft in the betting centre as he wandered in there and never left.

As the man in his 80s was charged and brought to court, it was soon discovered that he was not well. Communication is tremendously difficult. He does not seem to understand what is happening, nor why he was arrested.

Although never diagnosed, the old man seems to have the signs and symptoms of dementia. The suspicion was confirmed as the family took him to their family doctor and urgently referred him to a specialist. There was also an attempt to negotiate with the Prosecution, but it failed to conclude.

An application was promptly made to the Magistrate for two psychiatric reports on fitness to plead or to stand trial. The reports confirmed the suspicion. The old man suffered from dementia and is unfit to be tried.

Fitness to plead (also known as fitness to stand trial) is a vital prerequisite to a fair trial. Section 75 of the Criminal Procedure Ordinance (Cap 221) is concerned with a defendant’s fitness to be tried. It does not deal with an accused’s guilt, but whether he suffered from a disability that rendered him unable to understand and meaningfully participate in the trial. In the High Court, this is a question for the jury. While in the District Court or the Magistracy, it is a question for the judge or magistrate.

Laid down in R v Pritchard (1836) 7 Car & P 303, 173 ER 135, and R v Davies (1853) 3 Car & Kir 328, 175 ER 575, the common law test for fitness consists of the following:

1. 1. 1. 1. plead to the indictment
         2. understand the course of proceedings
         3. instruct a lawyer
         4. challenge a juror, and 
         5. understand the evidence

Part IIIA of the Mental Health Ordinance (Cap 136) provided for guardianship orders in criminal proceedings. It is one of the options to dispose of the case if a person is found unfit to stand trial. Section 44A provided that, before an order can be made, reports from two psychiatrists show that:

(i) the person is mentally incapacitated to a nature or degree which warrants his reception into guardianship under this Part; and

(ii) it is necessary in the interests of the welfare of the person or for the protection of other persons that the person should be so received

Also, a report from the Director of Social Welfare is required, advising on:

(A) the suitability of an order under this section in the case of the person; and

(B) where applicable, the availability of a suitable person to be authorized … if there is an order under this section in the case of the person.

In this case, the prosecution applied for a guardianship order. Hence, two further psychiatric reports and social inquiry reports were ordered. However, the order was not recommended. After consideration, the prosecution withdrew the charge.

Note that a guardianship order should not be made unless it is the most suitable method to dispose of a case. In this case, it is not appropriate, hence the old man was absolutely discharged.

It is also interesting to note that in the United Kingdom, the issue of unfitness to plead is being reviewed by the Law Commission and the government to modernise the test to reflect current medical developments.

For lawyers, dealing with these types of cases may pose ethical issues. For example, a demented person may not be able to give instructions to the legal representative.

Persons accused of a crime with suspected mental capacity issues posed difficult questions for the legal representatives, the prosecution, and the court. These cases must be handled delicately to safeguard their interest.