Court of Appeal (Putrajaya)

Defence of Unsound of Mind

Facts 1. The Appellant was charged with the murder of the Deceased under Section 302 of the Penal Code (Act 574).

2. On 24 July 2011, the Deceased with his wife (PW5), his son and his daughter were watching television in their living room.

3. Suddenly, the Appellant entered his house and stabbed him with a spear on the left side of his chest.

4. PW5 and the Deceased’s brother, PW6, testified that they saw the Appellant flee the house after the incident.  Subsequently, the Appellant was arrested by the police officer (PW8) on the same day.

5. Upon the arrest, the Appellant guided PW8 to the incident scene, where a spear (exhibit P14A) was recovered.

6. The pathologist informed that the stab wound on the left side of the Deceased’s chest was fatal, leading to hypovolemic shock, which ultimately became the cause of the Deceased’s death.

7. Additionally, the chemist confirmed through DNA profiling that the Deceased’s DNA was found on exhibit P14A.

8. At the end of the prosecution case, the learned trial judge found that prima facie case was proven against the Appellant.

9. Therefore, the learned trial judge ordered the Appellant to enter his defence.

10. In his defence, the Appellant stated that the Deceased was his superior and denied any animosity between them.

11. The Appellant further asserted that, as an employee of the oil palm plantation, he was provided with a spear for harvesting purposes.  However, he argued that he kept the spear exclusively at his workplace and did not bring it home.

12. The Appellant also denied that exhibit P14A was the spear he used for harvesting and raised the defence of unsoundness of mind.

13. Following the trial’s conclusion, the Appellant was found guilty of the charge and sentenced to death.

Issue 1.   Whether the Appellant was unsound of mind at the time of committing the murder?
Ratios 1.     Whether the Appellant was unsound of mind at the time of committing the murder?

(a)  The defence of unsoundness of mind is provided under Section 84 of Act 574.  It provides that –

“Act of a person of unsound mind

84.  Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

(b)  Section 300 of Act 574 provides that-


300.  Except in the cases hereinafter excepted, culpable homicide is murder-

a.  if the act by which the death is caused is done with the intention of causing death;

b. if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

c.  if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

d.  if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”

(c)  The legal principle of defence of unsoundness of mind is best illustrated in the Court of Appeal case of John a/k Nyumbei v Public Prosecutor [2007] 7 MLJ 206.  The Court found that, according to the provision of Section 84 of Act 574, if a person is found to be insane, the person is exempted from any criminal responsibility if it is established that the person is ‘incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to the law.’

(d) The Court further explained that Section 84 of Act 574 provides that the assessment of criminal liability must be based on the legal test rather than solely on the mental condition of the Accused as determined by the medical test.

(e) Hence, two matters need to be considered when the defence of insanity is raised in the Court, as follows:

(i) whether the accused person has successfully established, as a preliminary issue, he was of unsound mind at the time of him committing that act

(ii) if he was of unsound mind, whether he has proven that his unsoundness of mind was of a degree to satisfy one of the tests earlier mentioned ie, that the accused was incapable of knowing the nature of his act as being wrong or against the law

(f) The defence in the present case merely asserted that the Appellant had informed P14 that he was a drug addict, having consumed syabu prior to the murder.  The defence claimed that the Appellant was experiencing that he heard voices that, the deceased intended to kill him if he did not kill him first.

(g) At the time of the incident, the Appellant was not conscious of his actions.  Furthermore, evidence indicated that the Appellant had been sent for observation at the Mental Hospital, Bukit Padang, Kota Kinabalu, for almost two months.  However, the report of the observation was never disclosed to the Court, and neither the medical officer nor the psychiatrist from the hospital was called to testify regarding the Appellant’s mental state at the time of the murder.

(h) In the present appeal, the defence aimed to establish the defence of unsoundness of mind under Section 84 of Act 574 by relying solely on the testimony of the Appellant himself.  However, the Appellant was found unreliable and not a truthful witness.

(i)  In addition, the Court was of the view that although it was assumed that the defence had succeeded in establishing the preliminary issue, nevertheless, the defence still have to prove the extent of the Appellant’s unsoundness of mind that impaired or affected his cognitive abilities which caused him not capable of understanding the nature of his action, or what he was doing is wrong or against the law.

(j) There was also compelling evidence from PW5, supported by corroborative evidence that the Appellant had immediately fled from the house after stabbing the Deceased.

(k) Subsequent events indicated that the Appellant was apprehended by the workers in the bushes and handed over to PW8.

(l) The fact that the Appellant chose to run away after stabbing the Deceased and the totality of the conduct showed that he was conscious that his action was wrong at the time he committed the offence.

(m) Therefore, the Court decided that the evidence was insufficient to justify granting him exemption from criminal liability under Section 84 of Act 574.

Decision The Court of Appeal dismissed the appeal and affirmed the conviction and sentence by the High Court.
Key Take Away

1. Insanity is not merely a defence that may exempt a person from any criminal responsibility.  As such, there are some distinctions between the type of insanity which are legal insanity and medical insanity.

2. In Malaysia, the law only recognised legal insanity as provided under Section 84 of Act 574.  It simply illustrates that any person who is suffering from any mental illness is called medical insanity.

3. Nevertheless, legal insanity deals with a person who has mental illness who should also have a loss of reasoning power.  It means that that is should not be capable of knowing the nature of his act or that what he was doing is either wrong or against the law.

4. In fact, legal insanity must occurred at the time when the crime is committed.  As such, the burden of proof for unsoundness of mind lies on the Accused.


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