At the frontiers between penal and psy discourses: judicial constructions of the mentally dis/ordered defendant in Hong Kong sentencing judgments

Thesis

Against the backdrop of manifold developments, since the beginning of the 21st century, in disability law and critical studies of psy internationally, this thesis interrogates judicial constructions of mental dis/order and the criminal offender in Hong Kong. It focuses on the site of sentencing, which has so far received limited attention in socio-legal literature on law and disability across common law jurisdictions. In particular, ‘mental disorder’ is ill-defined in Hong Kong sentencing jurisprudence, and judicial determinations of what constitutes disorder and its effects on the final sentence remain unexamined in the limited research available. While existing literature on the compulsory mental health regime in Hong Kong has found judges to defer, with little critical scrutiny, to medical professional opinion in finding mental incapacity and disorder, this thesis is the first to explore whether this judicial reliance on the clinical gaze extends to decision-making about sentencing in criminal law.

The thesis is informed by a critical discourse analysis of 300 published ‘Reasons for Sentence’ texts from 2018 to 2021. Drawing on Foucauldian theories of power and knowledge together with other postmodern studies of dis/ability, the empirical study reveals that judges do not defer uncritically to psy expertise, but rather contain, contest, and contradict the clinical gaze by paying attention to juridical and other normative contexts in pronouncing upon the defendant’s mental disorder in sentencing. Through judges’ mediation of these knowledges and discourses, the disordered defendant is constructed variously as a familial subject, a psychosocially disordered subject, and an abnormal criminal subject in the publicly justified statements of law. An outsider to the societal, clinical, and juridical norm, the individual must be normalised through all these gazes in the final sentence pronounced.

Authors: Chiu, TCU

• DOI: 10.5287/ora-5j9k6jbbw
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: mental disorder; criminal law; critical discourse analysis; sentencing; critical disability studies; Foucauldian studies; Hong Kong; mitigation
• Subjects: Law--societies, etc.; Law