DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. 05-1-2004(W)
ANTARA
PENDAKWA RAYA … PERAYU
DAN
CORAM: ABDUL MALEK
AHMAD, PCA
SITI NORMA YAAKOB,
FCJ
ALAUDDIN MOHD
SHERIFF, FCJ
Saturday
25th September 1999 started off on a peaceful note for the
respondent and his family at 40 Lorong Setiapuspa 1, Bukit Damansara, Kuala
Lumpur. His wife Faizah had prepared
breakfast before going to buy provisions with the maid and their younger son
while the respondent and their other two children stayed home. On their return, the maid had assisted
Faizah to prepare lunch which they had at about 1.00 p.m.
2. Thereafter, the respondent sat at the dining table while Faizah and their younger son watched television. Their other two children were playing in the hall. After cleaning up, the maid went to take a nap in the downstairs bedroom. This peaceful atmosphere abruptly ended at about 3.00 pm when the couple’s only daughter Sarah, in tears, woke the maid up to tell her that her parents were in the downstairs bathroom and to ask her to assist her mother. The maid promptly went to look. The bathroom door was ajar and the said respondent’s back was towards her and the maid saw the respondent holding a knife facing Faizah.
3. The maid ran to the neighbour’s house when five minutes later, she saw the respondent drive off in his silver car. Back in the house, she found the children crying and Faizah sprawled face downwards in the bathroom covered with blood with a blood stained knife on the floor near her right leg. She asked Sarah to call her grandmother in Kluang to tell her of the incident which Sarah did.
4. On receiving information,
Inspector Koh Jok Tian rushed to the scene and found Faizah’s body on the
bathroom floor with the bloodstained knife near her right leg. Dr. Ong Beng Beng, a forensic pathologist,
certified that Faizah was dead and later conducted a post mortem examination
where he found her to have 26 stab wounds.
5. He found numerous defence wounds
indicating Faizah had put up a struggle.
The fatal injuries were the stab wounds to the chest which penetrated
her lungs and caused massive haemorrhage.
The stab wounds were consistent with that caused by the knife found near
her body.
6. The respondent was subsequently
charged with the murder of Faizah on 20th March 2000. He was then represented but on the adjourned
hearing date on 26th June 2000, his counsel told the court that as
the respondent’s family was unable to pay his fees, he had been discharged and
the respondent was engaging a new counsel.
7. On the next date on 5th
July 2000, the new counsel, who is the present counsel, appeared and new
hearing dates were fixed in October 2000.
However, on 9th October 2000, learned counsel informed the
court that his client wanted to make a second representation to the Attorney
General to reduce the charge. He
emphasized the fact of the tremendous impact the case would have on the
respondent’s children, who would be called as witnesses, apart from the effect
it would have on their performance in their forthcoming examinations. Since the prosecution was not ready as the
chemist was not available, the request for adjournment was granted.
8. On 6th November 2000,
the learned Deputy asked for new hearing dates to be fixed but learned counsel
told the court that the high number of stab wounds on the victim showed that
the respondent had run amok and the instructions given were that the incident
was due to hallucination. When asked why the respondent did not
complain to the doctors while in prison, the respondent remained silent.
9. On the next hearing date namely
6th December 2000, the question arose whether the respondent was fit
to plead. He replied in the negative and
when asked why, he gave no answer. The
matter was adjourned to 18th January 2001, when the learned Deputy
intimated to the court that the respondent had made another representation to
the Attorney General. On 2nd
February 2001, the learned Deputy told the court that the Attorney General had
decided that the charge be proceeded with but learned counsel produced the
psychiatrist’s report on the respondent whereupon the court adjourned the
matter for the respondent to be remanded at the Hospital Bahagia in Ulu Kinta
for observation for one month. On 15th
March 2001, the learned Deputy produced a letter from the hospital asking for
another month to conclude their examination on the respondent. On 23rd April 2001, the
respondent was certified fit to plead and new hearing dates were fixed and the
trial began on 4th August 2001.
10. After the prosecution witnesses
had given evidence, the defence elected not to make any submissions and the
learned trial Judge, holding that a prima facie case had been made out, called
upon the respondent to enter his defence.
The respondent elected to give evidence on oath.
11. In his judgment, the learned trial
Judge said:
“The defence advanced was one of unsoundness of mind at the time of the commission of the crime. In his evidence the accused said that on 25 September 1999 he was in his house. He was seated at the dining table and was feeling very, very depressed. His mind was full of negative thoughts. He then said,
“I was smoking one cigarette after
another trying to think what is going on in my thoughts. I was feeling negative about a lot of
things. Then I heard voices talking to
me directing me to do something to my wife.
It was like taking over my mind.
It was taking over control of me.
I remember going to the bathroom and breaking down the door. Then I don’t know what happened. I remember getting out of the house and
getting into my car. That is all….”
In support
of his defence the accused called as his witness one Dr. Rabaiah binti Mohd
Salleh (DW2), a psychiatrist attached to the Hospital Bahagia, Ulu Kinta. Her basic medical degree is from
Pakistan. She obtained her Masters
degree in psychiatry from the Universiti Kebangsaan Malaysia and a Diploma in
Forensic Psychiatry from the Institute of Psychiatry, University of
London. She has been a consultant
psychiatrist since 1994. She has
examined many cases of mental illness and has given evidence in Court about 10
times. On 6 February 2001 the accused
was referred to her.”.
12. In her evidence, the psychiatrist testified that she did a mental examination of the respondent which included frequent interviews, laboratory tests and a complete observation of the respondent’s actions and mannerisms. She also interviewed the respondent’s and his wife’s families as well as their working colleagues. In addition, she held clinical group discussions with the hospital director and other psychiatric experts to get a second opinion.
13. At the end of it all, the
diagnosis was that the respondent was suffering from a psychotic disease known
as a delusional disorder of the jealous type.
The other categories of delusional disorder, she added, was persecutory,
grandiose, erotomanic and mixed types.
The symptoms include auditory and visual hallucinations. The respondent’s delusion was that his wife
had been unfaithful. The psychiatrist’s
conclusion was that at the time of the incident, the respondent was of unsound
mind and did not know that his action was wrong in law.
14. The learned trial Judge went on to
say:
“The defence then closed its
case. The prosecution did not call any
evidence in rebuttal. In his submission
learned counsel for the accused said that the defence has succeeded in raising
the defence of legal insanity. He
referred to the case of Yeo Ah Seng v PP (1967) 1 MLJ 231 and said that
the absence of any motive on the part of the accused is an important indication
of unsoundness of mind. In his reply
the learned Deputy Public Prosecutor said that the prosecution had adduced
sufficient evidence of the actus reus.
With regard to mens rea he referred to the evidence of DW2 and
left the matter to the Court.”.
15. He continued by stating:
“The accused said in his evidence that
on the day in question he was feeling very depressed; his mind was full of
negative thoughts; he heard voices directing him to do something to his wife;
the voices were taking over control of him.
He remembered going to the bathroom and breaking down the door. He also remembered getting out of the house
and getting into his car. This is a
significant piece of evidence in support of the defence advanced….
However,
the accused was not cross-examined on this part of his evidence which is the
basis of his defence. There is a
general rule that failure to cross-examine a witness on a crucial part of his
evidence will amount to an acceptance of the witness’s testimony (see Wong
Swee Chin v PP (1981) 1 MLJ 20).
The mental state of the accused as described by him must therefore be
taken to have been accepted by the prosecution…..
The
cross-examination of DW2 was not directed towards a challenge of the results of
her examination of the accused. As
there was no serious challenge of the evidence of DW2 by the prosecution I
myself subjected her to some questioning in order to determine whether her
evidence could be accepted.”.
16. It is pertinent to highlight the portion of the notes in the trial where the psychiatrist was examined by the learned trial Judge:
“Court: Is it possible to ascertain a person’s mental condition for a period about 1˝ years prior to the examination?
A: I thank the Court for recognising our
difficulty. We, the psychiatrists, get
as much information as we can from as many sources as possible and that
includes interviewing both sides of the family, interviewing their colleagues,
getting detailed information from the police.
We also obtained the autopsy report from the pathologist together with
repeated questions of En Suhaimi to see the consistency of his information with
the rest of the information we get from other sources. The group discussions that we had with the
other psychiatrists includes all the psychiatrists interviewing En Suhaimi
themselves at great length. That is the
best we could do to arrive at our conclusion.
Court: Essentially your finding is based on
your interviews?
A: It is the interview plus the intensive
observation for three months. For
observation we look at his behaviour, his sleep pattern and his emotions.
Court: Is it possible for you to distinguish a
malingerer from a genuine one?
A: It is quite easy for a psychiatrist to
identify a malingerer.
-
In this case I am absolutely positive that En Muhd Suhaimi
was not malingering.
Court: Can you explain why the accused explained the events of 25.9.99 to you when in Court today he said he does not know.
A: There is something special about therapist
– patient relationship. Therefore as a
summary of all my interviews I was able to get the necessary information. One needs psychiatric skills in asking such
questions.”.
17. Before he concluded his judgment, the learned trial Judge referred to the maid’s evidence when he said:
“She also
said that the relationship between the accused and Faizah was good. Even though she had seen Faizah crying she
did not know the reason for it. However,
she had never seen the accused and Faizah quarrelling even on the day of the
incident. No other evidence was led by
the prosecution to cast any aspersions on the relationship between the two. Evidence of animosity between the two, if
any, could have been elicited from PW4 and PW7 which was not done. It must therefore be taken to mean, on the
available evidence, that the relationship between the accused and Faizah was
good. The evidence on record also shows
that the atmosphere in the home of the accused up to about one hour prior to
the incident was normal. In the
circumstances I am compelled to conclude that the accused had absolutely no
motive in killing Faizah indicating that his act was abnormal. In commenting on the absence of motive to an
offence of murder Barakbah LP said in Yeo Ah Seng v PP (1967) 1 MLJ 231
at p 233,
“Again,
although motive is not an ingredient in the offence of murder, the jury’s
attention should have been drawn to the fact that lack of motive was an
important indication of insanity …”.
In Mst
Shanti Devi v State AIR 1968 Delhi 177 it was held that generally in a case
where the sanity of the accused is called in question motivation for the crime
with which he is charged assumes unusual importance because if a serious crime
like murder is committed by a man who had absolutely no rational motive to
commit it the plea of unsoundness of mind can be more easily established than
in other cases. The absence of any
motive supports the unchallenged evidence of the accused that he was in a
disturbed state of mind at the time of the incident as described by him. DW2 had said that the accused was of unsound
mind at the time of the incident and that he did not know what he did was wrong
in law. The doctor who examined the
accused at the Kemaman Hospital on 27 September 1999 could have shed some light
on the mental state of the accused at that time. However, he was not called to testify by the prosecution. Thus there was no other evidence with which
I could have displaced the medical evidence advanced by the defence. On the contrary the nature and quality of
the evidence tendered by the prosecution lent support to the defence of
insanity.”.
18. The
conclusion of the learned trial Judge was:
“It follows that the evidence of DW2 being unchallenged with no other evidence to rebut the defence advanced a verdict contrary to the medical evidence would not be a true verdict in accordance with the evidence on record. In the upshot I held that the accused had successfully established the defence advanced on a balance of probabilities and, accordingly, I made the consequential orders.”.
19. As to the question of the defence of insanity, it is governed by section 84 of the Penal Code which reads:
“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.”.
20. On this point, the learned trial
Judge said:
“It is
settled law that where an accused person raises the defence of insanity the
burden of proof will be on him (see Juraimi bin Husin v PP (1998) 1 MLJ
537; PP v Ismail bin Ibrahim (1998) 3 MLJ 243; Jusoh v PP (1963) MLJ 84). The standard of proof to be discharged by the accused is on a
balance of probabilities (see Rajagopal v PP (1977) 1 MLJ 6; PP v
Nageswari (1994) 3 MLJ 463; PP v Jong Chin Chin (1995) 4 MLJ
300). The burden may be discharged by
the accused by adducing evidence as to his conduct at the material time or immediately
afterwards and by evidence of his mental condition and other relevant
facts. At the close of the case for the
defence I had found that the defence had successfully established the defence
of insanity on the balance of probabilities.
Accordingly, I ordered that the accused be acquitted as he was insane at
the material time and did not know that what he did was wrong in law though I
was satisfied that the act was committed by him. I therefore ordered that he be kept in safe custody in Hospital Bahagia,
Ulu Kinta pending an order from the Yang di-Pertuan Agong.”.
21. The Court of Appeal went through a number of authorities namely:
(a)
Pendakwa Raya v Zainal Abidin bin Mohd. Zaid (1993) 1
CLJ 147, which held that recording a plea of guilt by an
accused certified to be of unsound mind should be treated as a mere
irregularity which did not occasion any failure of justice;
(b)
Public Prosecutor v Misbah bin Saat (1997) 3 MLJ 495,
where the mere fact that the court had cognizance of the medical report
to indicate that at the time of the commission of the offence the accused was
of unsound mind is irrelevant at the stage when the accused is certified fit to
stand trial and he chooses to plead guilty;
(c)
Chua Hwa Soon Jimmy v PP (1998) 2 SLR 22, where it
was held that the defence of diminished responsibility must be discharged by
the defence on a balance of probabilities;
(d)
Regina v Byrne (1960) 2 QB 396, where it
was held that whether the accused was suffering from abnormality of mind and
whether the abnormality was such as substantially impaired his mental
responsibility were matters for the jury on which they were entitled to
disagree with the medical evidence, but the aetiology of the abnormality was a
matter to be determined by expert evidence;
(e)
Walton v The Queen (1978) All ER 542, where the
Privy Council held that the jury were bound to consider not only the medical
evidence but the whole of the evidence as to the facts and circumstances of the
case, including the nature of the killing, the conduct of the accused before,
at the time of and after the killing and any history of mental abnormality and
that they were entitled to conclude that on a balance of probabilities, the
plea of diminished responsibility had not been established;
(f)
Sek Kim Wah v PP (1988) 1 MLJ 348, where the
court ruled that the verdict as to abnormality of mind is plainly a finding of
fact which must be founded on all the evidence, including medical opinion and
even where such medical opinion is unchallenged, the trial judges would be
perfectly entitled to reject or differ from the opinions of the medical men, if
there are other facts on which they could do so;
(g)
R v Turner (1975) 1 All ER 70, where the
Court of Appeal in England held that an expert opinion was only necessary where
the expert could furnish the court with scientific information that was likely
to be outside the experience and knowledge of the judge or jury and the
psychiatrist’s evidence was not necessary to tell them how an ordinary person
who was not suffering from mental illness was likely to react to the stresses
and strains of life and what reliance they could place on the evidence of
someone who was not mentally disordered;
(h)
Sim Ah Song & Anor v Rex (1951) 17 MLJ 150, relating
to expert evidence in a gambling case, it was held that where expert evidence
is given to explain the nature of a document, the expert should explain its
contents by explaining the technical and unintelligible terms contained in it
and that the responsibility for the determination of every question upon which
expert evidence is called, rested upon the court and not upon the expert;
(i)
Wong Swee Chin v PP (1981) 1 MLJ 212, where it
was held that it was for the court to assess the evidence of the expert witness
and there was no evidence to show that the trial judge had incorrectly or
improperly evaluated the evidence; and
(j)
Dr. Shanmuganathan v Periasamy s/o Sithambaram Pillai
(1997) 3 MLJ 61, where it was held that the opinion of expert
witnesses was admissible in evidence and there was no requirement in law that
such evidence be corroborated;
before stating as follows:
“The legal principle that may be distilled from the authorities is that the role of an expert witness is merely to assist the court in arriving at its decision. In the final analysis the court is the final arbiter and not the expert. As a necessary corollary in giving his opinion the expert needs to give his reasons. A bare statement of an expert would not suffice.
In the present case the learned Deputy
contended that the learned Judge committed an error of law firstly, in failing
to properly evaluate the evidence of the medical expert as against the other
evidence before the court and secondly, the expert in this case in giving her
opinion did not provide any reason to support it. This the learned Deputy contended is a serious deficiency in the
testimony of the expert which the learned Judge failed to consider.
Before we proceed further we should
remind ourselves of the position of the appellate court where the judgment
under appeal is based on the findings of the facts by the trial judge. The right approach to be taken by the
appellate court is as expressed by Edgar Joseph Jr. SCJ in Yusoff bin
Kassim v. PP (1992) 2 MLJ 183 at 188 –
“Be that as it may, there is a wealth
of authority for the proposition that upon an issue depending upon oral
evidence where there is plainly perjury on the one side or the other, a Court
of Appeal ought to be greatly influenced by the opinion of the trial judge, who
has seen and heard the witnesses, except where he has failed to observe the
inconsistencies or to take account of material circumstances or
probabilities. (See for example, Khoo
Sit Hoh & Ors. v. Lim Thean Tong).
An appellate court can, therefore, in appropriate cases, act upon its
own view of the conflicting evidence.
(See Goghlan v. Cumberland and Bigsby v. Dickinson).”.
22. After dealing with the prosecution’s criticisms of the psychiatrist’s evidence, the Court of Appeal said:
“Firstly, on the evidence of the expert, DW2, we do not think it is opened to the criticisms as urged upon us by the prosecution. From the evidence of DW2 it is clear that her medical finding on the accused was made after conducting the necessary observations and after conducting interviews not only on the accused but also with the members of his family, the deceased’s family members and their friends. It is true that not all the observations and the contents of the interviews were put in evidence, but in the cross-examination DW2 did mention about the interviews which she conducted on the accused. ….
On the
question put to her by the learned Judge, viz, whether her finding is
essentially based on her interviews, she stated that it is the interviews plus
intensive observation for three months.
For observation, she told the court, they look at his behaviour, his
sleep pattern and his emotions. It is,
therefore, incorrect to say that there were no facts disclosed by DW2 in her
evidence to support her finding. On the
contrary, we find, there are ample materials before the court to support such a
finding.”.
23. The Court of Appeal also referred to the other criticisms made by the learned Deputy including that the trial Judge did not consider evidence other than the medical evidence, the crucial finding of the trial Judge that the respondent was not driven by any motive in killing his wife, the personal items recovered from the respondent, the glaring omission by both the prosecution and the defence to lead evidence on what happened to the respondent from the time he left the family home after the killing up to the time he was admitted to the Kemaman Hospital, and found no reason to disagree with the trial Judge on all these considerations.
24. In conclusion, the Court of Appeal
held:
“The learned Deputy contended that it is for the defence to explain to the court what had happened to the accused during this period. The absence of any explanation he contended cast a serious doubt on the defence case. It may be that the absence of such an explanation may cast some doubt on the defence case. But, the question is whether considering all the evidence available, the accused had successfully proved on the balance of probabilities that he was suffering from insanity at the material time. We agree with the learned trial Judge that he has succeeded in doing so.
There is
one other point. The learned Deputy had
urged upon us that in the event the Court is not with him in this appeal then,
in all fairness, this Court ought to order a retrial. With respect, we could not accede to the application of the
learned Deputy for the following reasons.
Under section 316 of the Criminal Procedure Code no doubt the appellate
courts have a discretion, in appropriate cases, to order retrials. The issue is whether it is just in the circumstances
of the present case for this Court to make such an order. For guidance we would refer to the
observation of Lord Morrison CJ, in Rex v. Howe 2 M.C. 109, at
pg. 110 which was cited with approval by Hashim Yeop A. Sani J (as he then was)
in Zahari bin Yeop Basri & Anor v. P.P. (1980) 1 MLJ 160
which reads –
“I have
grave doubt whether the power to order a re-trial is intended to be exercised
in cases where the prosecution have entirely through their own fault, failed to
present their case properly. If I
complied with this petition, it looks to me as if I should be ordering that an
acquitted person should be tried a second time, only for this reason, that the
prosecution had not used all their available armoury in launching the first
prosecution.”
In the present case we are of the view that the fault lies wholly with the prosecution in failing to call medical evidence in rebuttal. Therefore, in the circumstances we think it is unjust to order the accused to be retried. To allow such an application would be tantamount to allowing the prosecution to have a second bite at the proverbial cherry.
For the above reasons the appeal by
the prosecution is hereby dismissed and the order of the learned Judge is
accordingly affirmed.”.
25. Before us, the same issues were repeated and regurgitated by the learned Deputy but after giving our utmost consideration to the matter, we are unanimous in holding that, much as we sympathise with the family of the victim, we can find no fault with the reasoning and conclusion reached by both the High Court and the Court of Appeal.
26. We have, therefore, no other
alternative but to dismiss the appeal and to confirm the orders made by the
courts below.
Dated 19th
January 2005
(ABDUL MALEK AHMAD)
PRESIDENT
OF THE COURT OF APPEAL
MALAYSIA
Date of
Hearing: 1st
November 2004
Date of
Decision: 19th January 2005
Counsel:
Dato’ Mohd
Yusof Hj. Zainal Abiden, Senior Deputy Public Prosecutor for the appellant
Attorney-General
Chambers
Y.B. Encik
Alias Abdullah (Encik Nik Mohd Radhia bin Nik Abd. Ghani with him) for the
respondent
(Solicitors:
M/s Alias Abdullah & Co)