IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05-173-07/2013
FONG CHEE PING … APPELLANT
PUBLIC PROSECUTOR … RESPONDENT
[In the Matter of High Court of Malaya in Sabah and Sarawak at Miri Criminal Trial No: MYY-45-2/11-2011
Fong Chee Ping]
MOHD HISHAMUDIN BIN MD YUNUS, JCA DAVID WONG DAK WAH, JCA TENGKU MAIMUN BINTI TUAN MAT, JCA
JUDGMENT OF THE COURT
 The appellant was faced with two charges in the High Court at Miri. The first charge was for the murder of one Suzana Abol (P), KPT 871012-13-5310 (the deceased), while the second charge was for attempted suicide, offences punishable under sections 302 and 309 of the Penal Code, respectively. The offences were committed on 29.3.2011. The appellant was convicted and sentenced to death by the High Court for the first charge and was sentenced to two months imprisonment in respect of the second charge.
 We do not propose to set out the background facts of the case. Suffice to state that the deceased was a tenant at the appellant’s house and that the appellant had a crush on the deceased. PW18 and PW20 were also the tenants at the house and they had testified as to the events immediately prior and after the murder. The evidence revealed that the appellant was seen in front of the deceased’s room with the alleged murder weapon. The DNA analysis of the swabs taken from the parang and the knife showed that the profiles were mixed and contributed by at least two sources including those from the appellant and the deceased. The DNA analysis of the nail clippings with bloodstains taken from the deceased also showed a mixed profile and contributed by the appellant and the deceased.
 After his arrest, the appellant was referred to Miri Hospital for medical treatment and observation. On 12.4.2011 the appellant was sent to a psychiatric hospital i.e. Hospital Sentosa in Kuching, for psychiatric observation and treatment. The appellant was certified by
Dr Lau Kim Kah (PW5) to be capable of understanding the charge made against him and to follow court proceedings. He was certified to be fit to plead his case.
 PW10 (a pathologist) who conducted the post mortem on the deceased testified that the cause of death was due to the stab wound at the epigastric area penetrating the atrium of the heart causing right haemothorax.
 At the end of the prosecution’s case, the learned trial judge found that a prima facie had been made out where the prosecution had established-
(i) the identity and the death of the deceased;
(ii) that the deceased died from the injuries sustained by her;
(iii) that the stab wound at the upper gastric area measuring 1.5cm and 0.4cm wide was sufficient in the ordinary course of nature to cause the death of the deceased; and
(iv) that it was the appellant who had inflicted the injuries on the deceased which had caused her death.
 From the evidence of PW5, the learned trial judge found that at the material time, the appellant knew what he was doing and knew that what he was doing was wrong.
 In respect of the charge under section 309 (the offence of attempting to commit suicide), the learned trial judge had similarly found that a prima facie case had been established for the offence of
attempted suicide. The evidence revealed that the appellant had cut his own neck and stabbed his own stomach with some broken glasses and that he had sustained a 5cm x 3cm laceration wound over the right side of his neck, a 2cm x 1cm wound on the left side of the neck and a 3cm x 1cm laceration wound over the upper abdomen. All the wounds sustained by the appellant were minor and not life threatening.
 In the grounds of judgment, the learned trial judge states:-
“57. The above account of what happened, when, how and why it happened as stated in the report P40 was narrated by the Accused to PW5. The report showed that the Accused was able to recollect and narrate the incident in detail to PW5, including where he took the knife and parang, explaining why he did it and explaining the intensity of the voices he heard did not seem related to the number of ecstacy tablets he was taking. He was able to describe how he went to the deceased’s room, called out to her while knocking on the door three times and kicked open the door when she did not open the door.
58. The Accused was also able to recall and describe how he stabbed the deceased in the chest once. He was aware that he was killing the deceased and he knew that the deceased would die when stabbed with the knife. He also told PW5 that he knew it was wrong to kill someone. The evidence also showed that there were exchange of words between the Accused and the deceased. He was able to reply to the deceased by saying “Jangan tipu saya’. All these indicated that he was a sane person: see Abdul Razak Dalek v Public Prosecutor  6 CLJ 357.
65. The two interviews or conversations that the Accused had with PW13 and PW9, not very long after the incident, confirmed that the Accused understood, able to relate what happened and knew what had happened earlier that morning at the house. At the material time he knew and understood what he had done and that what he did was wrong or contrary to law. These would support the findings of PW5 that at the material time the Accused was aware of what he was doing and that he was aware that what he was doing was wrong.
66. The evidence showed that the Accused killed the deceased because he was in love with her but apparently the deceased did not show any interest in him. From exhibit P40, he denied he had any misunderstanding with the deceased. He said he liked the deceased but had never disclosed how he felt about her to the deceased. He claimed that the voices which he heard were aware that he was in love with the deceased. He said the voices intended to torture the deceased after his death. Therefore he decided to kill her first to spare her from being tortured by the voices. He blamed the voices for making him killed the deceased. The evidence based on P40 showed that these voices or hallucinations were triggered or induced by the ecstacy tablets which he took that morning.
67. Notwithstanding the voices, which he blamed for making him killed the deceased, he had a motive to kill the deceased. PW5 said that although at the material time the Accused had a disturbed mind which was induced by the tablets, the Accused still had the ability to control his actions. The evidence showed that he was able to recollect the incident clearly and was able to explain his actions. There was ample evidence that at the material time he was aware of what he did and that what he did was wrong.
69. At the end of the prosecution’s case, PW5 was the only medical expert who had interviewed, observed and examined the Accused
and had given his opinion on the state of mind of the Accused at the material time of the incident. PW5 came to the diagnosis that at the material time the Accused knew what he did and knew that what he did was wrong. There was ample evidence to support PW5’s opinion. As stated above, his opinion was corroborated by other evidence before the court.
70. At the end of the prosecution’s case, there was no other medical evidence to the contrary to show that at the material time the Accused did not know what he was doing or that he did not know what he did was wrong.
71. After subjecting the evidence of the prosecution to a maximum evaluation, the court found that the prosecution had made out a prima facie case against the Accused on both charges. I called upon the Accused to enter his defence to both charges: see s. 180 of the CPC.
 The appellant raised the defence of insanity pursuant to section 84 of the Penal Code.
 In his evidence, the appellant stated that on the day of the incident, he was hearing voices. He did not know who the voices were and the voices were controlling him. He said that he could not control himself and cannot use his judgment at that time. He admitted stabbing the deceased with a knife once on her chest but he did not know why he did that. When he kicked open the deceased’s room, he told the deceased that if she was not dead, she would suffer in future. The appellant said when he stabbed the deceased, he did not know the act of slashing and stabbing was wrong at that time. He did not regret what he did at that time but regretted his actions when he saw PW5. The appellant further gave evidence that he could not decide against the
voices as the voices were controlling him at that time. He said that he would not kill the deceased if not for the voices and that if the deceased did not die, she will suffer from torture in future and he did the act for the deceased’s own good. The intention to kill, according to the appellant, was formed because of the voices that told him to do so.
 DW2 (a Consultant Psychiatrist), an expert witness had examined the appellant and had prepared a psychiatrist report (exhibit D3). DW2 had interviewed the appellant and had gone through the appellant’s medical report in Hospital Sentosa and had also interviewed the appellant’s brother. DW2’s finding was that the appellant was suffering from amphetamine induced psychotic disorder with hallucinations. Due to this disorder the appellant was not able to control himself and was under the influence of hallucinations. According to DW2, the appellant did not know what he was doing at the time of the commission of the offence.
 On the defence, the learned trial judge said:-
“75. DW2 (Dr. Rajinder Singh) is a consultant psychiatrist and head of department at Hospital Permaisuri Bainun, Ipoh and was previously attached to Hospital Sentosa, Kuching as a psychiatrist. DW2 was requested to examine the Accused and to give his opinion on the state of mind of the Accused at the time of the incident. DW2 interviewed the Accused at Lambir Prison, Miri on 19.3.2010 with the assistance of an interpreter (DW4). Prior to the interview, on 18.3.2013, he had interviewed the eldest brother (DW3) of the Accused on the Accused background. On 20.3.2013, he went through the medical record of the Accused kept at Hospital Sentosa. DW2 then prepared his report which was tendered as exhibit D3.
76. Based on the interview, certain documents which were given to him and the medical reports of the Accused, DW2 testified that the Accused was abusing “ecstacy” which was a type of amphetamine which could damage the cells in the brain thus causing disease of the mind characterized by psychotic symptoms and abnormal behavior. He said the Accused suffered from auditory and visual hallucinations, had delusions and aggressive behavior.
77. DW2 testified that just prior to the incident or offence, the Accused was noted to be behaving in a bizarre manner and he was hearing voices telling him to kill the victim and also to harm himself. He said the Accused was following the instructions of the voices and was acting on what these voices were telling him to do. The Accused also told him that the Accused saw a vision of the dead victim after the incident. DW2 said that according to the Accused he was hearing voices for the past several days or weeks and these voices became more intense towards the time of the incident and even after the incident.
78. DW2 gave his opinion that the Accused was at the time of the offence suffering from amphetamine induced psychotic disorder with hallucinations. He testified that due to this disorder, the Accused was not able to control himself and was under the influence of hallucinations. He was of the opinion that the Accused did not know what he was doing at the time of the offence.
81. The defence of the Accused relied on the opinion of DW2 that the Accused was under the influence of hallucinations (the voices) and acted upon the hallucinations. DW2 said that the Accused therefore was not able to control himself and did not know what he was doing was wrong or contrary to law at the time of the offence (see exhibit D3). DW2 in his testimony agreed with the contents of PW5’s report
(exhibit P40), which he had studied including that the Accused suffered from substance induced psychosis, except with PW5’s opinion on the state of mind of the Accused that the Accused was at the time of the offence that he was aware of what he was doing and that he was aware that what he was doing was wrong. The prosecution submitted that the opinion of DW2 which differed from that of PW5 was not correct, should not be accepted and or should not be given any weight.
82. Based on the medical report of PW9, the medical report of PW5 and the medical report of DW2, the Accused had related to them that he had heard voices and had hallucinations over a period of time. Based on his background, the Accused and his family did not have any history of mental illness but that the Accused had consumed alcohol and drugs over a long period of time. Both PW5 and DW2 therefore came to a finding that the Accused had suffered substance induced psychosis.
86. The evidence showed that the opinion of DW2 was based on one interview only of three hours with the Accused on 19.3.2013, about two years after the incident on 29.3.2011, whereas PW5 had observed, examined and interviewed the Accused at Hospital Sentosa over a period of two months before he gave his opinion on the state of mind of the Accused in his report. Obviously PW5 had better insight on the state of mind of the Accused. As stated above, there was ample evidence of PW20, PW9 and PW13 to support the findings of PW5 that the Accused had the ability to control his actions, that he knew what he did was wrong and that what he did was contrary to law. For the reasons given in this judgment, I accepted the findings of PW5.
87. Although the Accused was diagnosed to be suffering from substance induced psychosis, from the facts and circumstances of this case the
Accused at the time of the offence had the mental capacity and was conscious of his actions. He had control over his cognitive faculties, he knew what he did was wrong and he knew what he did was contrary to law. I have considered the defence. I find that the Accused had failed on a balance of probabilities to prove that he was of unsound mind at the time he committed the offence under s. 84 of the Penal Code.”.
 The appellant was thus convicted on both charges, and sentenced accordingly. Hence the appeal before us.
 There was only one issue canvassed in the appeal, namely whether the defence of insanity under section 84 of the Penal Code had been successfully established by the defence.
 In John Nyumbei v PP  2 CLJ 509, Abdull Hamid Embong JCA (as his Lordship then was) said:-
“10. The law on unsoundness of mind as a complete defence in our criminal jurisprudence is, as was correctly submitted by learned counsel for the appellant, contained in s. 84 of the Penal Code. It states:
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.
11. This section exempts a person found to be insane of any criminal responsibility if it is found that he is “incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law” (see commentary in Ratanlal and Dirajlal’s Law of Crimes, 25th edn, p 280).
The learned authors there further commented that a person “is not protected if he knew that what he was doing was wrong, even though he did not know that it was contrary to law, and also, if he knew what he was doing was contrary to law even though he did not know that it was wrong.
12. Thus, under s. 84 Penal Code, criminality has to be determined according to that legal test and not merely by the mental state of an accused person according to the medical test.
13. There is a distinction between the notion of a legal insanity and medical insanity. Not every form of insanity exempts a person from criminal responsibility. Only legal insanity provides that exemption under s. 84 Penal Code. The specie of insanity addressed by s. 84 is the one that impairs the cognitive faculties of a person. Its nature and extent must be that to make the offender incapable of knowing the nature of his act, or that he is doing is wrong or contrary to law. The criminality of an act therefore must be determined by this test laid down in s. 84 as distinguished from the medical test (see Ratanlal and Dhirajlal’s Law of Crimes, 25 edn, p 280).”
 We bear in mind that the burden is on the appellant to prove insanity (see Juraimi bin Hussein v PP  2 CLJ 383; Baharom v PP  26 MLJ 249) and the standard of proof is on a balance of probabilities (see Goh Yoke v PP  1 MLJ 63; Rajagopal v PP  1 MLJ 6). Thus, if the appellant is able to show, either from the evidence of the prosecution or other evidence that he committed the crime but he was at that time insane, the appellant cannot be held culpable by virtue of section 84 of the Penal Code (see John Nyumbei, supra).
 PW5 agreed that the appellant was suffering from mental disorder i.e. psychosis; that auditory hallucinations are the major symptom of psychosis and that the appellant was suffering from auditory hallucinations before, during and a short while after the commission of the offence. PW5 and DW2 were thus on common ground that the appellant was having severe mental disorder i.e. psychosis. The divergent view was on whether the appellant knew what he did and that what he did to the deceased and to himself was wrong or contrary to law.
 The learned trial judge accepted the opinion of PW5 over that of DW2 on the premise that PW5 was in a better position to evaluate the mental capacity of the appellant having observed the appellant for a much longer time than DW2.
 PW5 opined that at the time of the commission of the alleged offences, the appellant was aware of what he was doing and that what he was doing was wrong. We noted from the evidence of PW5 that in coming to the said conclusion, PW5 had essentially based his findings on what the appellant had told him. The following was his explanation in re-examination (pg 90:Supp Record of Appeal Vol. 1):-
“He was able to describe in detail what he did during the incident. He was able to describe where he took the knife from, the type of knife that he was using, how he had place the knife on his left hip, how he had collected a parang while on the way to the victim’s room. He was able to give in some details how he had knocked on the door of the victim’s room and that he had entered the room by kicking opened the door. He was able to recall seeing the victim, the victim’s reaction and subsequently how he attacked the victim. He was lucid all this while and was coherent and relevant. There was
no impairment of his memory during the incident. There was however some problems with obtaining details of what happened after he had stabbed the victim. He was able to tell me what was the knife intended for. He was also able to tell me that he knew it was wrong to kill the girl but that he had done so to save the girl from being tortured or tormented after this death.
 DW2, on the other hand, was of the opinion that the appellant was not able to differentiate what is right and wrong on the day of the incident. DW2 had based his opinion not just on what the appellant had told him but on the interview he had with the appellant’s brother and on the appellant’s medical report in Hospital Sentosa. DW2 had considered that the drugs consumed by the appellant can induce auditory hallucinations if taken over a long period of time. DW2 had also taken into account the fact that prior to the incident, the appellant was behaving differently from his normal self and stated that an abnormal behaviour is one of the symptoms of psychosis.
 It was DW2’s opinion that the voices were controlling the appellant and that the appellant was deluded that if the appellant did not kill the deceased, she will be tormented after his death. Although the appellant was aware of what he was doing, the appellant did not know that what he was doing was wrong at the time of the incident as the appellant was acting on the instruction of the voices and that was why he killed the deceased. According to DW2, a psychotic person will answer according to what is going on in his mind especially if he had hallucination and delusion.
 We find that PW5 had confirmed (pg 92: Supp Record of Appeal Vol. 1) that the appellant was suffering from a severe mental disorder
i.e. psychosis at the time of the commission of the offence, as well as before and a short while after the alleged offence. PW5 had also testified that it was the appellant’s belief, after hearing the voices that the deceased will be tortured and tormented after the appellant’s death and that was the motive in killing the deceased, i.e. to spare the deceased the suffering that she will endure after the appellant’s death.
 The findings of the two experts (PW5 and DW2) that the appellant was suffering from severe mental disorder found support in the evidence of PW9 (a doctor at the Miri General Hospital) that the appellant had a history of “hearing voices” and hallucinations; that these are the features of a person suffering from psychotic problems and that psychosis is a person of unsound mind and abnormal behaviour.
 Other prosecution witnesses had also given an account on the strange or abnormal behaviour of the appellant prior to the incident. Another tenant (PW18) who was renting a room at the appellant’s house with his girlfriend had testified that when he saw the appellant at 4am on 29.3.2011, the appellant had tried to stop PW18 from entering the house by saying “You are not staying here”. PW18 testified that the appellant was not normal as the appellant could not recognise him and that the appellant looked fierce and confused. PW20 (PW18’s girlfriend) had similarly testified that the appellant looked abnormal when he was sitting and lying on the grass outside the house when she saw him at about 6.30am on the material date. According to PW20, the appellant had never behaved in such a manner before.
 PW21 (the investigating officer), who had met the appellant at the alleged crime scene and who had taken a statement from the appellant, gave evidence that the appellant had told him that the appellant had injured himself and had injured someone else. The appellant had further told PW21 that someone had asked the appellant to kill the deceased. PW21 agreed that the conduct, the appearance and the mental state of the appellant at the crime scene was consistent with the findings of the medical reports that the appellant was suffering from a severe mental disorder.
 In the light of all the above, we find sufficient evidence to accept the defence of insanity under section 84 of the Penal Code in respect of both the alleged offences of murder and attempted suicide. We find that the appellant was acting under delusion and was of unsound mind at the material time. It is our unanimous decision that the defence had established on a balance of probabilities that at the time of the commission of the acts, the appellant did not know that what he was doing was wrong or contrary to law.
 We made a finding of fact that the appellant did commit the act of causing the death of the victim, Suzana Abol, and attempted suicide; but by reason of unsoundness of mind, we order an acquittal of the appellant pursuant to section 347 of the Criminal Procedure Code. And pursuant to section 348 of the same Code, the appellant is to be kept in safe custody and under medical supervision and treatment at Hospital Sentosa, Kuching, pending the order of His Excellency the Governor of Sarawak pursuant to section 348(2) of the Code. As required by
section 348(1) we shall furnish His Excellency with a report of this
Dated 21st November 2014
(TENGKU MAIMUN BINTI TUAN MAT)
Court of Appeal, Malaysia.
For the Appellant:
Shikh Rajjish Ahmad (assigned counsel) (Ranbir Singh Sangha together with him) Messrs. Shad & Partners.
For the Respondent:
Muhamad Yasser bin Mohd Nasri Timbalan Pendakwa Raya Jabatan Peguam Negara.