Mental Illness and Malingering

By Chong Joe En

Mental illnesses are an unspoken and often unseen aspect of any society and Singapore is no exception. Studies show that at least 1 in 17 Singaporeans have suffered from depression at some point in time in their lives.This aspect of mental health often has far reaching impacts on criminality and criminal defence. Only recently, a housewife who was convicted of maid abuse had her 16 month jail-term commuted to a $15,000 fine on appeal.2  The High Court attached significant mitigating weight to her diagnosis of psychiatric problems. Indeed, this consideration of mental illness is itself encoded into section 84 of the Penal Code, which provides the defence of unsoundness of mind.

Given the pervasiveness of mental illnesses and its possibility as a criminal defence, it is not surprising that accused persons will often attempt to argue a mental health condition, whether actual or otherwise, to escape conviction or to get a reduced sentence. How then are Criminal Justice professionals, Prosecutors, criminal defence lawyers, and judges alike, distinguish between the genuine cases, and those who are merely malingering?


This was the focus of the seminar given by Dr Kenji Gwee, Senior Clinical Forensic Psychologist from the Institute of Mental Health (“IMH”) to members of the Innocence Project from the NUS Criminal Justice Club. The Innocence Project, which is a student run organisation, seeks to act as a safety net of last resort for individuals who believe they have been wrongfully convicted. Part of that process involves evaluating the veracity of the applicant’s claims, which in some cases involve possible mental illness related defences. Also invited to the seminar were stakeholders from partner organisations such as representatives from the Criminal Legal Aid Scheme of The Law Society of Singapore.

According to Dr Gwee, in the United States, an estimated 32% to 46% of the prison population have at one point in time malingered. In Singapore, accused persons may sometimes seek a diagnosis of mental illness at IMH prior to trial in an attempt to avoid or mitigate punishment for their alleged crimes. Mental illnesses are by nature varied, and run the gamut from personality disorders to substance abuse; the three most common disorders in Singapore are, in order, depression, alcoholism, and Obsessive Compulsive Disorder (OCD). In order to spot deception on the part of claimants, the interviewer must be able to spot discrepancies in the symptoms displayed by the claimants and the symptoms common to actual sufferers of the illness. This necessitates a keen understanding of the nuances and differences between various mental illnesses.


The variation in mental illnesses also precipitates different types of crimes. For instance, accused persons with Attention Deficit Hyperactive Disorder (ADHD) are more likely to have committed spontaneous offences as opposed to carefully plotted offences.

Some of the tips given by Dr Gwee to members of the Innocence Project include obtaining and cross-checking against corroborative information (such as pre-trial reports and psychiatric reports) and keeping an eye out for inconsistencies in testimony.

The pervasiveness of mental illnesses will only continue to grow. According to a survey by the IMH, an estimated one in ten Singaporeans will be stricken with mental illness in their lifetime. Given the possibility of malingering and its ramifications to the administration of criminal justice, it would be apposite to complement existing criminal law practices with an appreciation for nuances of mental illnesses.

The members of the Innocence Project would like to thank Dr Kenji Gwee and members of the Criminal Legal Aid Scheme for their illuminating presentations.


Chong Joe En, 23, is a second-year student at the National University of Singapore (Law) and a member of the current Innocence Project Core Team.


2Soh Meiyun v. PP [2014] SGHC 90,




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