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Wednesday, November 2, 2016, 01:36

Law proposed to protect mentally impaired people

By Dara Wang

HONG KONG - The Law Reform Commission of Hong Kong is proposing new legislation for public consultation on Tuesday to stop people who work at care homes or provide care services from engaging in sexual contact with mentally impaired people.

The proposed offenses include all sexual conduct. This is in order to make it possible to prove sexual offenses via physical evidence when the victim cannot be a witness in court, explained commission member Eric Cheung Tat-Ming.

Cheung, who is also a legal academic at the University of Hong Kong, said offenses which happen in a care home should be covered by a new law whether the mentally impaired person gave their consent or not.

The commission also proposed making the offenses applicable not only when they were committed against mentally impaired people, but also against people with mental disorders or mentally handicapped ones. This is to protect more vulnerable people, said Peter Duncan, chairman of the commission.

However, lawmaker and solicitor Holden Chow Ho-ding said the scope of the applicable groups needs further discussion, because it is difficult to determine whether or not people from these groups were mentally capable when they consented to sexual conduct.

To protect these people, the commission proposed that sexual conduct with mentally impaired people outside care homes is legal if they give their consent.

The consultation of the proposed legislations will last until Feb 10, 2017.

The government will consider barring people with sex crime records from participating in care services, said Director of Social Welfare Carol Yip Man-kuen. She made these comments during a panel meeting at the Legislative Council on Tuesday.

The moves by the commission and the government come after the government dropped a sex crime charge against Cheung Kin-wa, a former director of Bridge of Rehabilitation, who allegedly sexually assaulted a then 21-year-old woman under his care in August 2014.

The case was dropped in May as the alleged victim was medically unfit to testify. This is despite evidence of tissue paper containing Cheung’s semen and a mixture of bodily fluids from him and the alleged victim.

The case sparked an outcry in the city among concern groups and social workers. They are demanding better government supervision of private nursing homes and legal protection for the mentally impaired.

Yip suggested employing retired police officers to help strengthen inspections and identify potential hazards in private care homes. She also recommended setting up an accountability mechanism for care home managers.

Director of Public Prosecutions Keith Yeung Kar-hung told reporters on Oct 27 the government will propose overall reform on rules of hearsay evidence in criminal proceedings from the beginning of next year.

The proposal will recommend giving judges the power to admit second-hand evidence provided by someone other than a witness who is physically or mentally unfit to testify in court, explained Yeung.

The Criminal Procedure Ordinance stipulates that the complainant has to be brought to court as a witness for cross-examination, otherwise his or her video interview cannot be admitted as evidence, he added.
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