Tiong Ing Soon V Pendakwa Raya


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[Dalam Perkara Perbicaraan Jenayah di Mahkamah Tinggi Sabah dan Sarawak di Sibu Perbicaraan Jenayah No. 45-5-2007]


Di antara


Pendakwa Raya






Tiong Ing Soon




Koram : Azahar bin Mohamed, HMR Balia Yusof bin Hj Wahi, HMR Lim Yee Lan, HMR






[1] In the High Court, Tiong Ing Soon (“the appellant”) was charged and tried for committing the murder of Soon Pek Lian (“the deceased”), an offence under section 302 of the Penal Code (“the Code”). The charge read as follows:


“That you, on or about the 25th day of August 2006, at about 1930 hrs, at Lembangan Lane, Off Central Road,


Sibu, in the district of Sibu, in the State of Sarawak, did commit murder by intentionally causing the death of one SOON PEK LIAN (F) (KPT: 821103-13-5548) by stabbing the said deceased at the chest, with a knife, and that you have thereby committed an offence punishable under section 302 of the Penal Code. ”


[2] The appellant was also charged and tried for two additional charges for causing grievous hurt under section 326 of the Code. All the three charges were tried together at one trial before the learned trial judge in the High Court at Sibu. At the end of case for the prosecution, the learned trial judge found that the prosecution had made out a prima facie case against the appellant on each of the three




charges. The learned trial judge then called upon the appellant to enter his defence. The learned trial judge at the conclusion of the trial convicted the appellant on the murder charge and sentenced him to the mandatory death penalty prescribed by the Code. Aggrieved by that decision, the appellant then appealed to this court. With regard to the two charges under section 326 of the Code, the learned trial judge had acquitted and discharged the appellant. The Public Prosecutor (“PP”) appealed to this court against the order of acquittal.


[3] When these appeals came before us, the learned Deputy Public Prosecutor withdrew the PP’s appeals against the order of acquittal and discharge of the appellant on the two charges under section 326 of the Code. Hence, the appeals were therefore struck out.


[4] We heard the appellant’s appeal, wherein at its conclusion we unanimously dismissed it. We affirmed the conviction and sentence. We now give our reasons.


[5] The brief and essential facts, as found by the learned trial judge, giving rise to the charge of murder against the appellant were as follows. Evidence showed that on 25.8.2006 at about 7.30 pm, Hii Siik Ling (“PW6”) and her daughter, Ling Siew Yin (“PW11”) were riding a




motorcycle driven by the deceased along Lembangan Lane, Sibu. PW6 then noticed that there was a plastic sheet stuck to the front tyre which made some noise. After that PW6 asked the deceased to stop the motorcycle at the site of the murder. The deceased then stopped the motorcycle. PW6 got down from the motorcycle. After checking, and as PW6 was going back to the motorcycle, she saw the appellant approaching and stabbed the deceased at the chest. In this regard, the material part of the evidence of PW6 is as follows:


“Q: What happened?


A: At first I notice that there was a plastic stuck to the front tyre


and making some noise. Then I asked my friend to stop and I go and checked. After that, when I was about to go to the motorcycle, I saw one man without any words approached and stabbed on my friend. And then, he also pulled the motorcycle down and my friend and my daughter also fall down. And then he keeps on attacking my friend with knife without any mercy.


Q: Can you describe to the court how did the man stab your




A: (Witness shown) The first one, he stabbed on her chest. After


pulled down the motorcycle, he kept stabbing my friend all over the body.




Q: Then what happened to your friend?


A: On seeing this, I tried to defend my friend by pulling the man’s


shirt from behind. At the same time, I shouted for help. Then the man turns his back and attacked me. ”


[6] The deceased succumbed to her injuries caused by the appellant and died. The forensic specialist, Dr. A. Savior Selva Suresh who performed the post-mortem on the body of the deceased had certified that the cause of death was due to stab injury to the chest by sharp cutting weapon (see exhibit P9). We will say more about this post-mortem report later on in this judgment.


[7] On the basis of the evidence mentioned above, after the conclusion of the case for the prosecution, the learned trial judge came to the finding that the prosecution had made out a prima facie case against the appellant under section 180(3) of the Criminal Procedure Code and therefore called upon the appellant to enter on his defence in respect of the offence charged.


[8] The appellant was the only witness in his own defence. On being called to make his defence, the appellant elected to make an




unsworn statement from the dock. His entire unsworn statement reads


as follows:


“Wish to tell the court that on that day I was suffering a certain kind of sickness and I cannot recall what I had done. I have no intention to kill the deceased and I request it to 304 so that would not be sentenced to death. Now I am slightly alright after being medication.


Prior to the incident I always hear a lot of voices and that caused a big headache. Also prior to the incident occasionally my mind was confused that was why I did not know what I have done. That is all. ”


[9] Before us, learned counsel for the appellant only raised one principal argument in support of the appellant’s appeal. He argued that actus reus was proved without doubt against the appellant but the mental element, mens rea was not proven. He argued that motive to kill was not proven at all and that no evidence was raised that the appellant had premeditated the murder. Learned counsel brought to our attention that in his unsworn statement, the appellant had stated that at the material time he was suffering a certain kind of mental illness. According to learned counsel, the appellant was of unsound mind when he committed the offence. Learned counsel then asked this court to quash the sentence of death and substitute it with lifelong




confinement without release at any suitable mental hospital, at the pleasure of the Governor.


[10] On the facts of the present case, we were unable to accept these submissions. In the first place, section 84 of the Code provides that 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. The salient features of the defence are that the accused must have been suffering from an unsound mind at the time of the alleged offence, which had the effect of destroying altogether his or her cognitive capacity to know the nature of the act performed or that such conduct was either wrong or contrary to law (see: Criminal Law in Malaysia and Singapore, 2nd Edition by Stanley Yeo Neil Morgan and Wing Cheong at page 680 paragraph 24.2). Unsoundness of mind is an absolute defence to a criminal charge. In our view, Mallal’s Penal Law (2002 Ed) at paragraph 84.1, page 100 accurately summed up the legal position as follows: In a case where section 84 is in issue, the following three principles of law require consideration: (i) that every person is presumed to be sane until the contrary is established; (ii) that the onus on the prosecution is not




merely to establish that the accused committed the offence but also to establish that he had the necessary mens rea to commit the offence; and (iii) that the onus of proving insanity is on the accused under section 105 of the Evidence Act 1950.


[11] On this aspect of the appellant’s defence, the learned trial judge made specific findings concerning this in his judgment as follows:


“The statement of the accused to the effect that he was suffering from some dubious mental illness by reason whereof he could not recall what he had done did not raise a reasonable doubt nor could the several mental afflictions he claimed to be suffering from raise a reasonable doubt or constitute a valid defence. ”


[12] In our judgment, on consideration of the evidence and the material available from the record of appeal, the learned trial judge was entitled to and was correct in making such a finding.


[13] The burden of proof is on the appellant to raise the defence of insanity. This issue must only be determined from the evidence in this case. The standard of proof to be discharged by the appellant is on a balance of probabilities. The burden on the appellant is not as onerous as that of prosecution (see: Juraimi bin Husin v Public




Prosecutor, Mohd Affandi bin Abdul Rahman & Anor v Public Prosecutor [1998] 1 MLJ 234, Public Prosecutor v Alang Mat Nasir [1938] MLJ 152, Public Prosecutor v Jong Chin Chin [1995] 4 MLJ 300 and Chia Chan Bah alias Chiah Ah San v The King [1938] MLJ 147). To avail the benefit of exception of legal insanity under section 84 of the Code, it must be shown not only that the appellant was of unsound mind at the time he committed the offence, but that either he was incapable of knowing the nature of the act; or incapable of knowing what he was doing was wrong or contrary to law (see: Public Prosecutor v Misbah bin Saat [1997] 3 MLJ 495). For that reason, mere suffering from certain kind of mental illness, as contended by learned counsel for the appellant, is not sufficient to prove the plea of insanity under section 84 of the Code. The significant point here is that mere eccentricity of manner of the appellant or something unaccountable in his behavior would not suffice the plea of insanity under section 84 of the Code (see: Sohoni’s Criminal Referencer 2nd Edition, page 2339).


[14] Coming back to the present case, there was no previous history of the mental condition of the appellant. There is no evidence to suggest that the appellant had an antecedent history of insanity or




mental disorder. No attempt was made by the defence to adduce clinical expert’s opinion to establish the section 84 defence. There was no medical evidence for the appellant that at the time he committed the offence, he was incapable of knowing the nature of the act. There was, therefore, no credible evidence on the record for finding that at the time when the appellant killed the deceased, he was incapable, from unsoundness of mind, of knowing that what he was doing was wrong. Hence, the appellant had failed to bring himself within the parameters of the provisions of section 84 of the Code.


[15] On the contrary, the circumstances emerging from the prosecution evidence rebutted the suggestion that the appellant must have been suffering from insanity at the relevant time. After he was arrested on the following day of the incident, the appellant was questioned by ASP Chiew Swoi Kee (PW18). As a result of the questioning, the appellant led PW18 to the front of the Sugar Bun outlet near Tanah Mas Hotel where the appellant pointed to a rubbish bin in which the appellant had thrown the knife he had used in the attack on the deceased the previous night. PW18 looked for the knife in the rubbish bin and found it there partly hidden by the rubbish inside. In our view, the conduct of the appellant cannot be expected




from a person of an unsound mind or suffering from any infirmity of mind because of his ability to give information to the police, which led to the recovery of the murder weapon. The disclosure made by the appellant to PW18, in our view, is the product of a mind uninfected by any illness or infirmity of any sort. In the circumstances, it is not open to learned counsel to argue that the appellant was not conscious and was of unsound mind when he committed the offence.


[16] We are also of the view that there is nothing to indicate that the appellant had not the necessary mens rea when he committed the offence. The appellant is presumed sane, and to possess a sufficient degree of reason to be responsible for his acts, unless proved otherwise (see: Jusoh v PP [1963] MLJ 84 and Goh Yoke v PP [1970] 1 MLJ 63). This brings us to the multiple wounds inflicted by the appellant on the deceased. The injuries found on the deceased on external examination were as follows:


(1) 12 x 5 x 5 cm incised wound over the back of right arm, 15


cm below the right shoulder and 12 cm above the back of right elbow exposing the right humerus bone and clean cut ends of muscles;




(2) 8 x 4 x 4 cm incised wound over inner aspect of fight arm, 5 cm below the right axilla and 1 cm above the medial end of previous injury;


(3) 2 x 0.7 x 5 cm punctured wound over right side chest, 9 cm below the right axilla and 9 cm from the right nipple;


(4) 10 x 3 x cavity deep stab wound (sutured wound) over the right breast, 0.5 cm below the right nipple exposing the thoracic cavity and cut ends of right side chest bones;


(5) 1.5 x 0.8 x 4 cm stab wound over left breast at the level of left nipple;


(6) 9 x 3 x 2.5 cm incised wound over front of right leg, 10 cm above the right knee; and


(7) 3.5 x 1 cm x skin deep laceration over the right sole, 5 cm from the right great toe.


[17] Looking at the ruthless and multiple injuries inflicted by the appellant on the deceased, we can only conclude that the appellant had deliberately stabbed and slashed the deceased forcefully with a




knife and in that way had acted in a cruel and merciless manner. On those facts, in our view, the brutal act of the appellant was done with the intention of causing death (see: Tham Kai Yau & ors v PP [1977] 1 MLJ 174). In the absence of any contradiction or in the absence of any credible explanation, in our judgment, this unprovoked vicious act is murder within the meaning of the first limb of section 299 and section 300(a) of the Code. We now pause to say that intention is a matter of inference to be reached on a consideration of all relevant and admissible evidence of each case, including the type of weapon that was used, the nature, location and number of injuries inflicted on the deceased and the way the injuries were inflicted (see: PP v Abdul Razak bin Dalek [2007] 2 MLJ 255 and Shamin Reza bin Abdul Samad v PP [2009] 2 MLJ 506). In the present case, the intention of the appellant of causing death is irresistibly inferred where the killing was committed in a violent manner with a knife and where extensive wounds are found on the body of the deceased (see: Tan Buck Tee v PP [1961] MLJ 176 and PP v Krishna Rao a/l Gurumurthi & Ors [2000] 1 MLJ 274). On the facts, in our view, the appellant must have intended to kill the deceased and not just to cause serious or grievous bodily injury. A person can form an intention to kill on the spur of the




moment, and without pre-planning (see: Ismail v PP [1953] MLJ 48). Likewise in the present case, in our view, how suddenly the intention of the appellant was formed at the scene of the vicious crime, the intention was to kill; that amounts to murder. That being the case, the appellant is criminally responsible for those acts which he had committed of his own free will.


[18] We are mindful of the cases, which say that the absence of motive is an important indication of insanity (see for example: Yeo Ah Seng v PP [1967] 1 MLJ 231). Nonetheless, in our judgment, on the facts of the present case, the mere fact that no motive has been proven is not by itself sufficient to establish section 84 defence or, that the appellant did not have the necessary mens rea to commit the offence.


[19] For all these reasons, the appeal was therefore dismissed. We accordingly affirmed the conviction and the death sentence passed by the learned trial judge.




Dated this day, 1st July 2013.








Court of Appeal


For the ADDellant : C.M.Sundram Messrs. C.M Sundram & Co.


For the Respondent : Yaacub bin Hj Chik Deputy Public Prosecutor Attorney General’s Chambers



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