The autistic youth who booed the national anthem was sentenced to jail

19 mins audio

Article/Blessing CALD Editorial；Photo/Internet

Recently, a news story drew attention to the fact that a 21-year-old autistic youth in Hong Kong was sentenced to eight weeks in prison for insulting the national anthem after he repeatedly raised his thumb upside down to make booing noises and sang an English song during the playing of the Chinese national anthem. This has led people to question the degree of protection for the disabled in Hong Kong, and whether reasoning outside the law should have been reflected in the case.

In pre-2019 Hong Kong, law enforcers seldom paid any attention to the ‘offence’ of insulting a disabled person, and most of them would just give a warning, and no one would even think of taking the case to court. No one ever thought that the case would be brought to court, and no one ever thought that a disabled person would be convicted and sentenced if the case was brought to court. The Hong Kong Government’s handling of this case today highlights the fact that Hong Kong is now a society ‘ruled by law’.

Conviction for insulting the national anthem
In June last year, during the World Women’s Volleyball League match at the Hong Kong Coliseum, an autistic and hyperactive young man, Chan Pak Ei, was accused of publicly and intentionally insulting the national anthem by booing, clenching his fists with his thumbs down, sitting down and covering his ears with both hands, and singing a song from the musical Les Misérables, ‘Do you hear the people sing? The Defendant’s behaviour at the time of the incident was videotaped by the off-duty Chief Inspector who was with him. The defendant’s behaviour during the incident was recorded by the off-duty Chief Inspector, who cautioned him that ‘I don’t like the Chinese team and the Chinese national anthem, so I just sing other songs and I don’t want to get up’.

During the trial, the defence pleaded that Chan was diagnosed with autism and Attention Deficit Hyperactivity Disorder (ADHD) when he was six years old, and that he was now remorseful and had reflected deeply on his actions and clearly understood the consequences. The defence cited an Australian case that mentally ill persons are entitled to a discounted sentence, saying that they know that their actions are wrong but do not know the seriousness of the consequences, that the deterrent effect is not applicable to mentally ill persons, and that mentally ill persons are subjected to a greater mental impact than the general public, and that it is hoped that the court would take into consideration that the defendant’s offence was short-lived and the number of people who witnessed it was small, and that he could be given a suspended sentence.

However, this plea of the defence did not have much effect on the outcome of the trial. Magistrate Lam Tze Hong said that the Defendant had no genuine remorse and did not see the basis for a suspended sentence. Moreover, the Defendant had stopped taking his medication two days before the offence, which had lowered his self-control, so this medical history did not have much impact on the deduction of his sentence. LAM agreed that the circumstances of this case were the worst amongst non-similar cases and that there was no premeditation or planning involved, but the seriousness of the charge did not mean that a sentence of non-immediate imprisonment was appropriate, even if the sentence was lower. A sentence of nine weeks’ imprisonment was set as the starting point. A discretionary deduction of one week was made on account of the Defendant’s medical condition and he was eventually sentenced to eight weeks’ imprisonment. The Defendant then lodged an application for leave to appeal and was granted bail in the sum of $8,000 pending appeal.

In his earlier ruling, Mr Lam emphasised that the event took place in an important stadium in Hong Kong, and that the singing of the national anthem was an affirmation of the national identity of the people, and an endorsement of the importance of the country, and that the singing of other songs in a loud voice during the playing of the national anthem constituted an insult, and gave the impression that the national anthem could be disregarded. The basis of this decision was not whether the Defendant was a patriot or whether he liked China or the Chinese team, but that the Defendant’s behaviour was entirely autonomous, and that he had publicly and intentionally insulted the National Anthem, undermining the dignity of the National Anthem as a national symbol and emblem, and that he had fulfilled the relevant intent in the offence of ‘insulting the National Anthem’, and he was found guilty of the offence.

Behaviour and Intent of Autistic Person
Mr Justice Lam’s analysis of the case was based on the defendant’s behaviour at the scene to determine that he had committed the offence, and from what he considered to be autonomous behaviour, he deduced that the defendant’s intention was in accordance with the ‘relevant intention’ of the charge. However, Mr Justice Lam did not have any training in psychology or psychiatry. Whether he derived the defendant’s intention from the defendant’s behaviour in accordance with the behavioural psychology of a normal human being, or with the endorsement of a professional psychologist or medical doctor, was not made clear in detail in the report of the case.

However, anyone with a little psychological training or common sense will know that it is not at all easy for an autistic person to deduce intention from personal behaviour. Moreover, in the past 20 to 30 years, most of the studies on autistic persons have focused on behavioural changes rather than on the intention of the person concerned, so I believe it is not clear whether Judge Lam’s inference on the intention of the defendant will really be endorsed by psychologists.

A judge should of course judge the intention of the offender from his behaviour, otherwise he will not be able to make a judgement in cases involving motive and intention. However, in this case, I believe the number of autistic people Judge LAM Tze-hong has come into contact with and his knowledge of autism will affect his judgement. From the judgement of this case, we can see that the logic seems to be ‘adults should be held legally responsible for breaking the law’ and ‘autistics should also be held responsible for their own behaviour’.

However, as this case involves patriotism and respect for the country, it is worthwhile for the society to discuss and pay attention to whether an autistic person, who is regarded as disabled, should be dealt with by the law alone. However, after the incident was reported, there were no alternative views in the media in Hong Kong, or social workers or psychologists who care about people with disabilities in other societies have openly expressed their different views or opinions. Is it because Hong Kong has become a ‘Hong Kong governed by the rule of law’ that they are unwilling to propose a different perspective to deal with patriotic criminal offences committed by autistic persons? Or do they all agree with Judge Lam that autistic people are just like other adults in understanding the meaning of their behaviour and bearing the criminal responsibility if they break the law? Does the indifference of these professionals reflect the changes in Hong Kong society today?

Perhaps we should try to understand this incident from a different perspective in a different society.

The Game of Law, Reason and Sentiment
Anyone can understand that emotion and reason cannot determine whether a person is guilty or not, it is the ‘law’ that can convict a person, but the ‘law’ is basic and not absolute. The law is not the highest standard of personal behaviour, but the moral standard is the standard of behaviour given to us by the society. The law also has to take into account ‘reason’ and ‘emotion’, which is why there is the saying that ‘the law is no more than a matter of human feelings’. Equality before the law is the basic principle, but there is room for interpretation on top of the principle: although it is not permissible under the law, it can be lenient under the circumstances, and even if it is necessary to transfer or prosecute according to the law (or to slow down the prosecution of a lesser degree of authority not to prosecute), the judge can still give a low degree of criminal responsibility under the circumstances and reason. For example, in this case whether the autistic person has sufficient knowledge of his own behaviour, and whether he has a clear understanding of the meaning of the national anthem? There is room for discussion.

Autism is a lifelong neurological disorder that begins in early childhood. The main characteristics of autism are unique social interactions, non-standard ways of learning, a strong interest in specific topics, a tendency to favour routine, general communication difficulties, and a special way of processing sensory information. The unique way of social interaction has led many people to explore whether the emotional world of autistic people is the same as that of other people. Therefore, it seems that experts do not have an opinion on whether autistic people have the same ability to understand patriotism and respect the national anthem and flag as other people do. What is even more worrying is that the stigma and discrimination associated with neurological differences in the community continue to hinder diagnosis, treatment, acceptance and tolerance of autistic people’s bizarre behaviours. In order to raise awareness of autism and eliminate stigma, the United Nations General Assembly has designated 2 April as World Autism Awareness Day, with the aim of helping to improve the quality of life of people with autism, so that they can lead full and meaningful lives as an integral part of society.

It is not easy to strike a balance between ‘law’ and ‘reason’ when the system will be rigid and unable to respond to individual circumstances, and social chaos when ‘reason’ is the only thing that matters and ‘reason’ is ignored. ‘Law’ and “reason” are the basis for regulating and guiding people’s behaviour, while humane considerations can enable people to make adjustments in their dealings, but the entire consideration should be based on the foundation of law and reason. If the two are more or less in line with each other, and if humane considerations are added to the equation, will not the whole society become more tolerant and harmonious? This requires the wisdom of the Judges.

The law should not be cold, and judicial work is also public work. In this case, the behaviour of the autistic young man, Chen Boiei, was indeed against the law; however, a judgement that does not take into account his personal circumstances cannot embody the highest spirit of the law – the law not only represents the way of the world and its rules, but also the hearts of the people and the human condition. On the basis of understanding the original intent of the relevant jurisprudential foundations, it would be a wiser choice to deal with the case in a lenient manner that embodies the basic intent.

Is welfare being abused?
The situation in Australia is in stark contrast to the attitude of the Chinese government towards people with disabilities. Many new immigrants from China think of people with disabilities as being wheelchair bound or visibly blind, deaf or dumb; Australia’s concept of disability is very broad, for example, people with mental illnesses, genetic disorders, physical disabilities, and even cerebral palsy, strokes, and disabilities resulting from cancer are eligible to apply for the NDIS (National Disability Insurance Scheme). However, the strong protection of the welfare system has also brought about another problem – over-diagnosis and medical treatment.

Take autism as an example, over the past 10 years, the incidence of autism has increased significantly in developed countries, and the growth rate of autism in Australia is more pronounced than in other countries with comparable economies and health systems, such as the US, Canada, and the UK, and the prevalence rate is estimated to be the highest in the world, which seems to be attributable to financial incentives generated by government policies (especially the implementation of the NDIS). Currently, the NDIS provides a great deal of support resources for people with autism, especially for children under the age of 9. The NDIS emphasises the importance of providing monetary support for services to people with disabilities as early as possible, so that they can have room for improvement and development in the future. Such a strategy, many believe, could lead to a faster than average increase in diagnosis rates. In the past, NDIS Minister Thornton has pointed out that providing NDIS support to younger children is an investment in society. However, NDIS patients and developmental delays under the age of 14 now account for more than half of the users of the NDIS programme, making the NDIS programme an avenue for parents concerned about their children’s development to seek help.

Collectively, changes in standards and increased awareness over the decades have led to more people being diagnosed, and some doctors may be substituting the diagnosis of autism for conditions that overlap with it, such as ADHD and dyslexia, so that patients can easily access basic services. Analyses of autism prevalence over the past decade show that autism prevalence has increased faster in areas where the NDIS has been rolled out, suggesting that the program has had an impact on the number of people seeking a diagnosis. the funding and services of the NDIS do support and improve the lives of many people in need, but it is questionable whether they are all being used in a practical manner, to help those who are truly in need, rather than everyone. The Australian federal government’s intention in establishing the NDIS was to help increase the independence of people with disabilities, including their participation in social and economic activities. However, from policy to practice, due to over-diagnosis and over-medication, the NDIS has been plagued by abuse, misuse and fraud. The amount of funding is now largely based on documentary evidence, and there is a mismatch between the actual needs of many people with disabilities and the funding available to them. As a result, the Australian community has invested a significant amount of resources in this area, which has caused concern in the community and has led to the NDIS, which is in urgent need of a major reform in the future, with the future still unknown.