[Pendakwa Raya] v YOU POH KHOON (AA-45B-5-04/2019)

The critical issue before the High Court (“Court”) – was the accused insane at the time of the beheading of his father, the chopping of his father’s four limbs and the subsequent disposal of the body into the sewage tank and 25 the burying of the head and other body parts in the back garden of their home. The Charge 30 [2] The accused was charged in this Court with murder and the charge against him was as follows: S/N j9zGyp5SDku7kpcxmB52lQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 “Bahawa kamu di antara 8 Oktober 2018, jam lebih kurang 3.00 petang hingga 9 Oktober 2018, jam lebih kurang 10.30 pagi, di alamat No. 564, Khantan Baru, Chemor, Ipoh, di dalam daerah Kinta, di dalam 35 negeri Perak, telah membunuh You Su Kim, (No. KP 441111-08-5427) dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan”

He was alleged to have decapitated his father, You Su Kim, causing 40 his death and thereafter cut off the hands and legs of the deceased. He claimed trial. Capacity to Stand Trial 45 [4] The prosecution tendered a Certificate of Medical Director (P3) dated 30 January 2020 pursuant to section 343(1) of the Criminal Procedure Code (“CPC”) certified by Dr. Norhayati binti Nordin, the Director of Hospital Bahagia Ulu Kinta, Perak Darul Ridzuan that the accused is of sound mind and capable of making his defence. 50

A report by the Forensic Psychiatrist specialist, Dr. Ian Lloyd a/l Anthony who was later called as a witness (SP15) and dated 29 November 2019 was also tendered by the prosecution and marked as P4 wherein SP15 opined that after the accused had been referred to Hospital Bahagia Ulu 55 Kinta for observation three times under section 342 of CPC, the mental condition of the accused was stable and he was capable of making his defence.

The trial proceeded. 60 S/N j9zGyp5SDku7kpcxmB52lQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

At the end of the prosecution case, I found that a prima facie case had been made out and called upon the accused to enter his defence. He elected to give sworn testimony. 65

His defence was that he was insane at the time of the commission of the act; that at the time of the commission of the act or acts complained of, he was of unsound mind or by reason of intoxication, insane and that he was cutting a ghost. Reliance is placed on sections 84 and 85(2) of the Penal 70 Code, which are reproduced here: i) “Section 84 - Act of a person of unsound mind Nothing is an offence which is done by a person who, at the time of 75 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. ii) Section 85 - Intoxication when a defence 80

Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission 85 complained of did not know that such act or omission was wrong or did not know what he was doing and-

the state of intoxication was caused without his consent by the malicious or negligent act of another person; or S/N j9zGyp5SDku7kpcxmB52lQ

the person charged was by reason of intoxication insane, 90 temporarily or otherwise, at the time of such act or omission.” [9]

(a)…

(b)….

if it is done with the intention of causing bodily injury to any 400 person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;

….. (emphasis added) 405 [29] The prosecution asserted that the 0.7 meter machete (P34A) is clearly a dangerous weapon and upon it being shown to the pathologist, SP13, she testified that the injury caused to the deceased could be caused by such a weapon (NE p 193 to 194). S/N j9zGyp5SDku7kpcxmB52lQ [30] SP13 added that the force used to cut human bones would be great 410 and not slight (NE p 194). [31] The prosecution concluded by asserting (Enclosure 149 p 32, paras 2 & 3) that with the accompanying great force required to be used, it would lead to the inference that there was intention accompanying the multiple cuts 415 to cause the bodily injuries inflicted which would be sufficient in the ordinary cause of nature to cause death. And, by reason thereto, culpable homicide amounting to murder pursuant to section 300(c) of the Penal Code had been proven. References and reliance were made to: 420 i) Ratanlal and Dhirajlal’s Law of Crimes 1989 pages 1291- 1292, where the learned authors wrote; “The case is quite different when a weapon like sword is used in order to chop off or hack at a limb. The person who uses a sword or aruval 425 chopping at an arm or a leg and by so doing severs the arteries of the arm or the leg, must know that his is inflicting an injury which in the ordinary course of nature is sufficient to cause death. The offence in that case is clearly murder.” 430 ii) PP v. Sanin Othman [2011] 1 CLJ 626 (CA), where it was held; “…[19] Since it is no easy task to establish the ingredient of intention it thus has to be established by inferences arrived at from the evidence made available. The evidence before the court was more 435 than ample to establish that ingredient. To reiterate, the two injuries were caused by a dangerous instrument ie, a knife. The injuries were deep and never mere slash wounds. With such wounds, which must have required great force, it would defy logic that the respondent did S/N j9zGyp5SDku7kpcxmB52lQ not intend to kill or cause serious injury on the deceased (Tan Buck 440 Tee v. Public Prosecutor (supra).” [21] Ratanlal & Dhirajlal's Law of Crimes, 24th edn., vol 11, Bharat Law House, New Delhi had authored: 445 ...If from the intentional act of injury committed the probability of death resulting is high, the findings should be that the accused intended to cause death or injury sufficient in the ordinary course of nature to cause death and the conviction should be murder. 450 [23] A case in point is Tan Cheow Bock v. Public Prosecutor [1991] 1 LNS 37, where in the course of committing a robbery, death was inflicted on the victim, culminating in the court finding the accused person (appellant) guilty of murder. The deceased was a housewife 455 living together with other occupants whilst the appellant was a neighbour. One of the occupants of the house later found the deceased dead with a knife stuck in her mouth. The appellant admitted in evidence that he went to the deceased's house to commit robbery, but due to matters getting out of hand, thrust the knife into 460 the deceased's mouth thus causing her death. The court opined that so long as the appellant did an act which caused the death of the deceased, that the said act was done with the intention of causing bodily injury, that the injury caused was not accidental or otherwise unintentional and was sufficient in the ordinary 465 course of nature to cause death, no further requirement was demanded. With the above ingredients established, and the trial judge having found the injury was caused intentionally as opposed to an accident, the conviction of murder was affirmed. In a gist even though the episode began as a robbery, but ended as 470 a murder case, so long as the requirements of s. 300(c) of the Code S/N j9zGyp5SDku7kpcxmB52lQ are complied with, a conviction for an offence of s. 302 of the Code will follow (see also Public Prosecutor v. Tan Joo Cheng & Ors [1990] 2 CLJ 890; [1990] 3 CLJ (Rep) 891, Public Prosecutor v. Neoh Bean Chye & Anor [1974] 1 LNS 122). 475 [24] The last two matters to be resolved are his weak disposition/personality and the issue of the deceased preventing the respondent from escaping the scene of the crime which culminated in his death. On the first matter, to say that the respondent was of weak 480 disposition (as he testified that he was frightened when the deceased appeared hence his reaction) and unable to control his emotion would fly against the grain of evidence. The fact that the respondent asked certain questions followed by good evasive answers when probed by PW14, striding out of the shop to pick up a knife from his motorbike 485 after his mind to rob was made up, followed by him springing into action, merely goes to show his controlled disposition. On the second matter, in the circumstances of the case it is an absurd defence to allege that the stoic deceased was to be defaulted for impeding the escape route, with no fault to be assumed by the respondent by the 490 death. To agree to such a defence would tantamount to accrediting a murderer an escape-chute whenever death ensues in any given situation. [25] We were satisfied beyond reasonable doubt that the respondent 495 had the intention to cause bodily injury to the deceased, and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, what with the injury not caused by accident or inflicted unintentionally (s. 300(c) of the Code). PW16 in evidence had in crystalline terms testified that those wounds could 500 not have been accidentally caused (Chee Kim Seng & Anor v. Public Prosecutor [1961] 1 LNS 17). PW14's evidence also put to S/N j9zGyp5SDku7kpcxmB52lQ rest any lingering doubt as to whether the stabbings were accidental, unintentional or otherwise…”. 505 iii) Rajwant Sing v State of Kerala AIR [1966] SC 1974 at 1978, where it was held that: “…it must first be established that an injury is caused, next it must be established objectively what the nature of the injury in the ordinary 510 course of nature is. If the injury is found to be sufficient to cause death one test is satisfied.” Defence’s Submission at Close of Prosecution 515 [32] Right from the outset, the defence took the position that at the time of the event, the accused had lost his mind or was not of sound mind or by reason of intoxication brought about by [ab]use of drugs, he was insane and by reason thereto did not possess the mental ability and capacity to be aware of his act and its effect at the time of the event (Enclosure 151). 520 [33] The defence accepts that when a plea of insanity is set up, the point in time for ascertaining the state of mind of the accused is at the time when the offence was committed with reliance placed on PP v. Pham Ti Tuyet Mai [2019] 6 CLJ 325 (CA) at para [22] and PP v. Muhamad Suhaimi Abdul 525 Aziz [2004] 1 CLJ 378 at 384. [34] Premised upon a maximum evaluation of the evidence led from the prosecution’s witnesses, the defence submitted that the prosecution has failed to prove and to make out a prima facie case against the accused that 530 the accused had the intention to murder his father on the following grounds: S/N j9zGyp5SDku7kpcxmB52lQ i) although the defence accepts that under section 105 of the Evidence Act 1950 the burden of proving that by reason of unsoundness of mind he did not know the nature of the act, this burden is only a slight one and this burden can be discharged 535 by the evidence of witnesses for the prosecution as well as witnesses for the defence, see Public Prosecutor v. Mohamed Noor Jantan [1979] 2 MLJ 80 (FC) at 81 and Wong Chooi v Public Prosecutor [1967] 2 MLJ 180 (FC) at 181; ii) from the following unchallenged evidence led by the prosecution 540 it is proven that the accused was of unsound mind: a) the neighbour of the accused, SP2, knows the accused is a drug addict (NE p 17 line 503); b) the brother-in-law of the accused, SP3, testified that upon being told by the accused that he had killed his father-in- 545 law, he was not shocked because he knows that his brother-in-law has mental problems (NE p 21, lines 608 & 609); c) SP3 also testified that the accused told him during their journey back to the accused’s home on the following day 550 of the event that people disturbed him and when asked who these people were, the accused said “devils” and he (SP3) played along saying “he too” because he did not want the accused to blow a fuse (“short”) and pull his steering wheel (NE p 21, lines 623 to 630); 555 d) During cross-examination, SP3 who has known the accused for 40 years said: aa) the accused has been having mental problems for half to a year with the accused being ‘out of sorts’ and ‘suspecting this and that’; like a person 560 disturbed and possessed by the devil; and S/N j9zGyp5SDku7kpcxmB52lQ bb) the accused daydreams and hallucinates that people want to kill his son and imagines that people want to do something to his son. iii) The nephew of the accused, SP4, who is the son of SP2 gave 565 evidence, which in the main is hearsay and hence inadmissible to the effect, that: “… Tapi saya ada dengar dari orang kampung cakap bahawa pak cik saya gila” iv) One of the three sisters of the accused, SP5, said that: 570 a) something seemed to be wrong with the accused where on one occasion he could not recognise them and the accused likes to talk to himself; b) on one occasion she and her husband wanted to bring the accused to see a doctor but, on the way, when the car 575 stopped, he jumped out; and c) before their father fell ill, the accused would walk up and down the house and not recognising them. v) Another brother-in-law of the accused, SP6, testified that from the accused’s behaviour of speaking to himself and at times 580 quiet, he seemed to have mental problems occasionally like a person with problems. At the request of his father-in-law, he and his wife (SP7), brought the accused to a hospital in July 2018 but as there was no doctor then, they then took him to a clinic but were advised to take him to a hospital. When they tried to 585 take him to a hospital, the accused jumped out of the car and went home and because of this, no one was brave enough to take him to the hospital, and in any event, he was not disturbing anyone and the accused seemed directionless after his divorce with his wife. 590 S/N j9zGyp5SDku7kpcxmB52lQ vi) Another sister of the accused, SP7, testified that although her brother, the accused, did not seemed right as he liked to talk to himself, he was however, good to his father, and loved his father and his father loved him too with the accused looking after his father for more than ten years which would negate any motive 595 for the accused to assault his father. Reliance was placed upon the authority of Lee Thiam Whatt lwn Pendakwa Raya [2019] 1 LNS 1187 at para [31] (CA), where it was held: “Kami mendapati dari rekod rayuan menunjukkan fakta bahawa 600 hubungan Perayu dengan kakaknya, si mati sangat baik dan mereka saling menyayangi. Hubungan akrab dua beradik ini tidak dinafikan oleh pihak pendakwaan. Malam sebelum kejadian, Perayu tidur di rumah si mati. Tiada pergaduhan atau perselisihan faham di antara keduanya. Tiada sebarang motif dapat diletakkan kepada Perayu 605 terhadap perbuatan menyerang si mati selain daripada halusinasi yang dialami oleh Perayu iaitu kakaknya dilihat sebagai seekor harimau yang datang untuk menyerang Perayu.” vii) In P4, SP15 reported that the accused has used 610 methamphetamine, cannabis and nimetazepam and has symptoms of drug addiction. During his examination-in-chief, SP15 testified that the accused has a history of abusing methamphetamine, ecstasy, phentermine, cannabis and nimetazepam and was dependent upon methamphetamine for 615 the one year preceding the offence he was being charged with (NE p 230, lines 6810 to 6815). viii) The medical reports (P58, P59, P60, P61 and P61A) support the fact that the accused has a history of dependence on methamphetamine, ketamine, cannabis and nimetazepam 620 (E 151 para 11). S/N j9zGyp5SDku7kpcxmB52lQ Court’s Evaluation of the Evidence at the Close of the Prosecution’s Case [35] Although the defence was content to rely only upon the defence of 625 unsoundness of mind at the time of inflicting the injuries, I will still subject the evidence led by the prosecution to maximum evaluation to find whether the prosecution has made out a prima facie case for murder. [36] The Court accepts the evidence of SP3, the son-in-law of the 630 deceased that he identified the deceased as You Su Kim (IC No. 441111- 08-5427) from the body parts of the deceased including the head. This evidence was supported by the identification by the daughter of the deceased (SP5) and another son-in-law of the deceased (SP6) from the photographs taken by the late police photographer, Zamri bin Abu Hassan, 635 and that were tendered through the replacement Investigating Officer, ASP Yap Siew Cheng (SP17), of the body parts including the head of the deceased P8 (19 to 21) at the home of the deceased at 564, Khantan Baru, Chemor, Perak. 640 [37] The Court accepts the unchallenged evidence of Dr. Siti Zanariah binti Md Naziri (SP13), the Forensic Pathologist, that the death of the deceased was caused by him having been beheaded with three cuts to the head, one at the chin, another at the front of the neck and the other at the back bone of the neck C2. 645 [38] The Court finds that the horrific injuries were caused by the accused premised upon the following pieces of evidence: S/N j9zGyp5SDku7kpcxmB52lQ i) the accused’s admission to his brother-in-law (SP3) that he had 650 cut his father to death; ii) the chemist report (P23) and the testimony of the Chemist, Siti Hajar binti Hussin (SP11) that the DNA samples of both the accused and the deceased were found on the T-shirt and gloves (P31B) at the scene of the crime; 655 iii) the body parts including the head of the deceased were found where the deceased had told SP3; and iv) the exact location of the head, the hands and the legs were pointed out by the accused as can be seen in the photographs P8 (27, 28 and 29) to the arresting officer, (SP8), and the 660 Investigating Officer (SP16) who found the parts at the locations pointed out by the accused and the information obtained contemporaneously reduced into police reports (P11 and P64) respectively with both of them giving oral testimony to this effect (from SP8, NE pp 56-57, and from SP16, NE pp 246-247). 665 [39] Section 27(1) of the Evidence Act 1950 relied upon by the prosecution allows the discovery of the location of the remains of the deceased in consequence of information from the accused in the custody of a police officer (SP8) to be proved. This piece of evidence serves to confirm 670 and support the police reports made by SP8 and SP16 that their testimony is credible, see Amathevelli P Ramasamy v. PP [2009] 3 CLJ 109; [2009] 2 MLJ 367 (FC). [40] Although the information given by the accused to SP8 leading to the 675 discovery of the dismembered parts of the body including the head of the deceased does not amount to a confession, the information is evidence which has much probative value that outweighs any prejudicial effect which S/N j9zGyp5SDku7kpcxmB52lQ this Court accepts to be admissible under section 27 of the Evidence Act 1950, see Francis Anthonysamy v. Public Prosecutor [2005] 3 MLJ 389 680 (FC) and Siew Yoke Keong v. PP [2013] 4 CLJ 149; [2013] 3 MLJ 630 (FC). [41] In Siew Yoke Keong v. PP (supra), the evidence of the accused pointing out the place where the bunch of eight keys were found and later 685 pointing out the place where the key to the safe was found were held to be relevant and admissible as conduct under section 8 of the Evidence Act

Similarly, in Bala Matik v. PP [2006] 2 CLJ 229, the Court of Appeal held that the conduct of the appellant pointing to the ‘parang’ was admissible as conduct under section 8 of the Evidence Act to corroborate the 690 prosecution’s case. Section 8 provides as follows: “(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. 695

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether 700 it was previous or subsequent thereto. Explanation 1 - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements 705 under any other section of this Act. S/N j9zGyp5SDku7kpcxmB52lQ Explanation 2 - When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant." 710 [42] Wherefore, the Court had no hesitation in admitting and accepting the evidence of SP8 that the accused had pointed out to where the body parts including the head of the deceased as conduct that corroborates the prosecution’s case that the accused was the one who caused the death of 715 the deceased. [43] The Court also finds that the death was caused with the intention of causing bodily injury to You Su Kim and that the bodily injury intended to be inflicted upon him is sufficient in the ordinary course of nature to cause his 720 death, see section 300(c) of the Penal Code (supra) and Zulkiple Mohamad v. PP [2022] 1 CLJ 673, where Abdul Rahman Sebli FCJ decided as follows: “[46] The law is now settled that it is irrelevant and totally unnecessary to 725 enquire into what kind of injury the accused intended to inflict. As Vivian Bose J said in Virsa Singh, the question is not whether the accused's intention is to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. In the present case, the injuries that were proved to be present and which the appellant intended to 730 inflict were the injuries on the deceased's head which fractured her skull. [47] It is clear therefore that where the prosecution relies on cl. (c) of s. of the Penal Code, it is not required to prove intention to cause bodily injury of a kind that is sufficient in the ordinary course of nature to cause death. All 735 that is required is proof of intention to inflict the injury that is proved to be present, irrespective of whether the injury is grievous or trivial.” S/N j9zGyp5SDku7kpcxmB52lQ [44] On the assertion by the defence that the evidence led by the prosecution show that there was unsoundness of mind on the part of the accused by reason of intoxication, temporary or otherwise, and by reason 740 thereto, a prima facie case has not been made out by the prosecution, in evaluating the evidence, I bear in mind the following legal principles: i) there is a difference between the defence of unsoundness of mind under section 84 of the Penal Code and the defence of 745 insanity by reason of intoxication under subsection 85(2)(b); ii) the concept of unsoundness of mind under section 84 refers to an abnormal state of mind that covers diseases and deficiencies of the mind, both of which are permanent conditions whereas the concept of temporarily or otherwise insane by reason of 750 intoxication refers to an abnormal state of mind that can, inter alia, be transient in that he is legally insane at the time of the commission of the act under subsection 85(2)(b), see PP v. Aldwin Rojas Saz [2020] 5 CLJ 330 at paragraph [43] (CA), citing with approval the Court of Appeal authority of Singapore 755 of Tan Chor Jin v. PP [2008] 4 SLR ® 306. In PP v. Aldwin Rojas Saz (supra) the respondent was found to be legally insane at the time he killed his wife and eight-year old son by reason of intoxication; iii) if the facts tendered are such that the accused was medically 760 and legally insane at the time he committed the act or acts, the need to proceed with a full trial can be dispensed with, if both the prosecution and the defence, do not dispute that the accused was of unsound mind or insane by reason of intoxication at the time of the commission of the act or acts; 765 iv) although under section 105 of the Evidence Act 1950 the burden is on the accused to prove unsoundness of mind, it would S/N j9zGyp5SDku7kpcxmB52lQ be commendable of the prosecution to call expert medical evidence to show the mental state of the accused at the time he committed the offence instead of insisting that it was for the 770 accused to do so, if and when, his defence is called; and v) the defence of insanity is not available to an accused who was not labouring under any form of unsoundness of mind and knew that the nature of what he did was against the law, see Tiong Ing Soon v. PP [2019] 7 CLJ 341 (CA). 775 [45] The prosecution in this case do not accept that the accused was medically or legally insane at the time of the commission of the act or acts. [46] The prosecution had in fact led medical evidence to show that the 780 accused knew that the nature of what he did was against the law, whereas the defence during the prosecution’s case had raised both defences under section 84 and subsection 85(2)(b) of the Penal Code. [47] Upon giving the evidence led by the prosecution maximum evaluation 785 and in particular the following, I find that the prosecution had made out a prima facie case: i) The conduct of the accused immediately after the commission of the act or acts showed that he was rational and displayed guilt 790 when the following pieces of evidence are taken into account: a) That on 9 October 2018 after the commission of the act or acts, that he was able to drive about 100 kilometres to Parit Buntar, Perak, locate SP3’s rented home to see SP3 795 proves that his mind was stable enough to make the S/N j9zGyp5SDku7kpcxmB52lQ decision to locate and inform his brother-in-law of the commission of the act or acts; b) The testimony of Dr. Ian Lloyd a/l Anthony (SP15), a Forensic Psychiatrist Specialist since 2015, whose 800 experience and credentials were impressive with him having given evidence 16 times prior to this trial and who spends about 80 percent of his time in assessing the state of minds of the persons sent to him for assessment pursuant to sub-sections 342(4) and (5) of CPC and who 805 has been referred no less than 2000 cases including the accused. SP15 opined that for a person to be able to drive 100 kilometres will give the impression that the person’s motor coordination to manage the motor vehicle is relatively intact and if a person is able to tell another 810 person what he did would lead to the inference that his mental condition and his memory of the event in connection with what he has just done is still intact. c) The following testimony by SP15 is relevant: “Q: In your opinion Doctor, if almost immediately after the 815 event stated in the charge sheet, the patient drives 100km away and informs someone that he had committed this crime, what would be the state of his mind at that point in time? A: There are two components to these questions. The first is 820 the ability to drive 100km away would give me the impression that this person’s motor coordination to handle a motor vehicle was relatively intact. The second part is if he had informed somebody about what had happened tells me that his mental state with regards to what had just recently 825 transpired and his memory for that event was also intact.” S/N j9zGyp5SDku7kpcxmB52lQ d) After arriving at his destination, 100 kilometres away, in a manual transmission car, the accused waited at SP3’s rented home after making a telephone call to SP3 and at about 10:30 am saw SP3 and told him that he had cut 830 dead his father. This proves that the accused was able to drive a car with manual transmission, locate SP3’s home some 100 kilometres away, able to tell that he had killed his father to SP3, a person he could obviously recognise as his brother-in-law after having made a telephone call to 835 him, all of which goes to prove that he was mentally stable at a time very close to the event. e) SP15 (NE p 227, lines 6702 to 6706) gave evidence that he carried out a comprehensive observation on the accused and found that the information given by the 840 accused to be consistent throughout the period of evaluation and that the accused was able to recall consistently the offence as set out in the charge sheet. f) SP15’s testimony as set out below is telling: “Q: Doctor during the period of your examination on this 845 patient, how many separate occasions did you personally see or interview him? A: The accused was admitted in the Hospital throughout the 3 admissions for a total duration of 22 weeks and throughout this 22 week period I have examined the accused personally 850 on 51 separate occasions. Q: Doctor, what is the purpose of doing repeated interview sessions? A : The main purpose of doing repeated interview sessions is to identify the presence or absence of a mental disorder 855 and the second one is to verify the consistency of the S/N j9zGyp5SDku7kpcxmB52lQ information given by the accused with regards to the assessment of criminal responsibility, which is his delineation of the count of the alleged offence. Q: And what was your finding on the consistency of the 860 information given by the patient? A: I was of the opinion that the information given by the accused was consistent throughout the period of assessments. Q: Doctor, was the patient able to recall his memory 865 consistently as to the crime that occurred as per charge sheet provided? A: I was of the opinion that the accused had no deficits in memory of in other words his recollection of the events of the alleged offence. (NE p 226 lines 6677 to 6699) 870 The accused was able to recall his memory consistently throughout the period of assessment as to the offence as per charge sheet. (NE p 227 lines 6702 to 6706)”. g) SP15 had also taken into account the information given by 875 the relatives of the accused as evident from his testimony as follows: (NE p 228, lines 6752 to 6754) S: And you also mention that the you spoke to family members of this patient? 880 J: Yes, YA I interviewed his family members on 2 separate occasions. The 1st on the 24th of October 2018 and the 2nd time on the 31st of October 2018. S: Do you have their names Doctor? J: Yes, the names are stated in my medical report page 2 885 paragraph 4 ‘D’. S/N j9zGyp5SDku7kpcxmB52lQ S: Was there any impairment to the patient’s speech or language at the time of committing the offence? J: From my assessment of the accused I was of the opinion that especially from the corroborative history given by the 890 family, there was no speech impediment at the time of the alleged offence. (NE p 232, lines 6861 to 6865) S: Doctor, what are the type of documents or information did you have with regard to this patient during your assessments 895 on him? J: Regards to the primary source of information it was through my psychiatrist examination of the accused. This was also done in collaboration with 24 hours observations of the accused behaviour in the ward which was done through 900 CCTV monitoring as well as observation conducted around the clock by my paramedics. I was also informed by a medical report from the Psychiatry Department of Hospital Raja Permaisuri Bainun Ipoh dated the 4th of December

In addition to this I also conducted an interview with 905 the accused’s family members and this was done on 2 separate occasions. The 1st being on 24th of October 2018 and the 2nd interview with his family was done on 31st of October 2018. (NE p 225, lines 6651 to 6663) 910 h) In arriving at his conclusion that the accused was medically sound and not insane by reason of being intoxicated by drugs at the time of the commission of the acts, SP15 had taken into account the history of drug-taking by the accused as can be seen in his testimony 915 reproduced below: S/N j9zGyp5SDku7kpcxmB52lQ S: Doctor, in this case does the patient have [a] history of substance abuse such as drugs or alcohol? J: If I may refer to page 3 number 10 of my medical report, history of drug abuse, I have stated in my report that Mr You 920 has a history of abusing methamphetamine, ecstasy, phentermine, cannabis and nimetazepam and that he was dependent on methamphetamine in the 1 year preceding the index offence. S: Right when the patient was referred to you, for 925 assessment on the 22nd of October 2018, 31st October 2019 and finally on the 30th of June 2021, were there a preliminary urine tests conducted? J: Yes YA, for every case that is sent to us under Section 342 of the CPC, urine test is done upon admission and on 930 all 3 occasions his urine was tested negative for drugs. S: Doctor, can you please explain to this Court the mental examination that you carried out on this patient and its outcome? J: The mental state examination that I conducted on the 935 accused was again to determine the presence of a mental disorder and at the end of my assessment I found that the accused did not suffer nor meet any criteria for a mental disorder. S: What are the diagnostic criterias for substance 940 dependence? J: The diagnostic criteria for substance dependence in general according to either the diagnostic and statistical manual for mental disorder or the ICD test would require a person to abuse a particular drug for a period of at least 12 945 months to show signs and symptoms of craving, tolerance and withdrawal to a particular drug. S/N j9zGyp5SDku7kpcxmB52lQ S: And were these criterias present during the assessment of this patient? J: These criterias were present in the past. So therefore I 950 have made a diagnosis of past history of substance dependence. As I’ve mentioned that he was dependent on methamphetamine in the 1 year preceeding the index offence. S: But not during the assessment of this patient? 955 J: Not during the time of assessment. (NE pp 230 – 231, lines 6805 to 6836) S: Doctor, could a methamphetamine substance abuser or dependent perform daily or routine ordinary tasks such as having the full responsibility of taking care of an invalid or do 960 household chores? J: Yes. A person who is dependent on any drug for that matter or alcohol would be able to carry out his activities of daily living quite efficiently. S: Can you explain why Doctor? 965 J: A person who is dependent on drugs or alcohol may not necessarily be exhibiting any signs or symptoms of intoxication nor withdrawal from a particular substance because a person who is dependant usually requires a particular amount of drugs or alcohol to keep their 970 bodily functions maintaining at optimum or normal level. That is why the term dependence is there. So, in a state of dependence, there would not be any signs and symptoms of intoxication nor withdrawal to interfere with the person’s activities of daily living. (bold) 975 (NE pp 232 - 233, lines 6866 to 6879) S: Doctor, just now you told the Counsel there is a possibility that to be of experiencing psychotic symptoms but that S/N j9zGyp5SDku7kpcxmB52lQ doesn’t mean he cannot ascertain his surroundings, you said yes but not this case. Can you explain why? 980 J: Well YA, methamphetamines can cause psychotic symptoms in some people who abuses the drug. Not everyone who abuse methamphetamine experiences side effects of psychotic symptoms. Most people who abuse methamphetamine take it because of the pleasurable effects 985 with the euphoric feeling that comes along with it. That is why they became dependent on the drug. But if they take it for periods that are protracted or in large amounts then there are some or a portion of them who develop side effects, symptoms or psychotic symptoms; or, mainly hallucinations 990 either auditory or visual hallucinations. That was what was noted in the medical report of Hospital Raja Permaisuri Bainun Ipoh. When they made a diagnosis of substance induced psychosis this was on the 22th of June 2017 referring to psychotic symptoms as a result of 995 methamphetamine abuse. However, at the time of alleged offence from my assessment of the accused, he did not complain of any psychotic symptoms; or, at the time just before during nor after the alleged offence because it is the nature of a methamphetamine dependent. There will be 1000 times whereby a person will experience psychotic symptoms and there will be times whereby a person can go through protracted durations without experiencing any psychotic symptoms whatsoever. (NE pp 239 -240, lines 7073 to 7096) 1005 J: In this case I was of the opinion that the accused was not intoxicated at the time of alleged offence although he may have consumed methamphetamine. That by merely consuming a drug does not render a person automatically to S/N j9zGyp5SDku7kpcxmB52lQ be intoxicated. It just shows that a person is consuming a 1010 particular drug. How we decide and determine whether a person is intoxicated is based on the conduct or the behaviour of the person and this is largely done based on 3 very important domains of assessment. The 1st one being his cognition and parts of the cognition that are assessed is 1015 his orientation to time, place and person as well as his memory. So, for his cognition at the time of the alleged offence, I was of the opinion that his orientation to time, place and person and his memory was intact. There were no deficits whatsoever. The 2nd part in assessing the effects of 1020 intoxication on an individual is his motor coordination that means his movement, his gait, his ability to operate a motor vehicle. So, for his coordination I also found that his coordination was intact. The 3rd part is speech, he was able to communicate to his relative as to what had transpired just 1025 after the alleged offence and his relative was able to understand what he has told him which tells me that his speech was indeed relevant and coherent. So, these are the 3 areas of the assessment that we take into account when assessing whether a person is intoxicated with either drug, 1030 be it drugs or alcohol. Cognition, coordination as well as speech. Mah: What was he able to tell his relative? The 1st one was? J: The 1st one was cognition, his orientation as to time, place and person. He was able to tell the exact time when the 1035 offence happened, where it happened which was exactly in his own home and he was an orientated person whereby he was able to identify that there were only 2 individuals present in the house at that time which was the accused himself and the victim. 1040 S/N j9zGyp5SDku7kpcxmB52lQ S: Doctor, the question was also asked that although the accused may have been able to relate that what he had done ‘kelakuan tetapi tidak sedar akibat dan sifat kesalahan tersebut’ and you said the level of intoxication would have to be extensively severe to be unable to appreciate that. So, in 1045 your opinion can you explain in this case could there have been a level of intoxication extensively severe where he could not understand the nature and the consequences of what he has done? J: YA, referring back to the 3 domains of assessment that I 1050 just mentioned earlier his cognition, his coordination and his speech were intact and therefore he could not have been so intoxicated to the extent that he could not have been able to appreciate the nature and wrongfulness of his action. (NE pp 240- 241, lines 7105 to 7146) 1055 i) SP15 found that the accused was not suffering from depression, mania or psychosis at the time of the offence. That he was not suffering from psychosis by reason of being drunk or drugged. His orientation, cognitive faculty, concentration, memory and motor skills were intact for the 1060 period immediately before, after and at the time of the commission of the offence that he was charged with. This is evident from his testimony which is reproduced below: S: Doctor, you stated in your opinion that the patient was of sound mind at the time of the alleged offence. Can you 1065 explain to this Court how did you come to that finding? J: The patient from my assessment did not have or does not suffer from a mental disorder and I also found that he did not suffer from mental disorder at that time of the alleged offence through a retrospective assessment of his mental state. 1070 Hence, I was of the opinion that he was aware of the nature S/N j9zGyp5SDku7kpcxmB52lQ of his action and the wrongfulness and hence, he was of sound mind at the time of the alleged offence. S: Was there any impairment to the patient’s cognition with regards to orientation of time, place and person, memory, 1075 understanding at the time of committing the offence? J: From my assessment of the accused I found that his cognitive functions were intact and there were no deficits in terms of his orientation to time, place and person and there were no deficits with respect to his memory at the time of the 1080 alleged offence. (NE p 231- 232, line 6842 to 6857) S: Doctor, can you just for clarify (sic) purposes in reference to your report, can you please read to the Court paragraph 11 of the mental state examination at the time of the alleged 1085 offence. Can you please kindly read out paragraph 11 to the Court? J: Referring to paragraph 11 on page 3 of my medical report under the heading mental state examination at the time of the alleged offence, Mr You did not experience symptoms of 1090 depression, mania or psychosis at the time of the offence. He did not experience psychotic symptoms, nor exhibit disorganized psychotic behaviour as a result of drug intoxication. His cognitive faculties of orientation, attention concentration, memory speech and motor functioning were 1095 intact in the period immediately before during and after the alleged offence. (NE p 233, lines 6891 to 1902) j) Under cross examination, SP15 said that he had also taken into account the findings of the medical report of the 1100 hospital dated 8 October 2021 and 4 December 2018 that the accused had experienced substance induced S/N j9zGyp5SDku7kpcxmB52lQ psychosis but he emphasised that this took place one year before he was examined by him (SP15) and he clarified as follows: 1105 “The diagnosis according to the medical report from Hospital Raja Permaisuri Bainun Ipoh, this was when the accused had gone there to seek treatment on the 22nd of June 2017. The diagnosis that was given on him at that time was substance induced psychosis secondary to 1110 methamphetamine, amphetamine use. So, at that time what the report says is that he was experiencing psychotic symptoms as a result of abusing the drug methamphetamine.” (NE pp 235 – 236, lines 6966 to 6972) 1115 S: Jadi boleh saya katakan bila seorang berada dalam keadaan state of psychotic Doktor dah jawab tadi, maaf. Dalam kes ini saya katakan pada ketika kejadian tertuduh berada di dalam state of psychosis. Doktor boleh setuju atau tak setuju? 1120 J: From my assessment from the accused, the accused did not experience any psychotic symptoms at the time of the alleged offence. S: At the time of alleged offence? J: Yes. 1125 S: Then this is based on what Doktor punya examination tertuduh semasa dalam 3 kali tempoh pemeriksaan? J: Yes, this is my opinion and my conclusion from my assessment of the accused for the duration of 22 weeks that he was with me. 1130 S: But does your examination rule out the possibility that dia pada ketika kejadian ia disebabkan oleh the substances taken by the accused menyebabkan kehilangan kewarasan? S/N j9zGyp5SDku7kpcxmB52lQ J: Yes, I did take into account whether the accused was intoxicated at the time of the alleged offence. Naturally 1135 because he was dependent on methamphetamine at that time. So, the issue was whether he was intoxicated or not. And from my assessment I was able to determine that he was not intoxicated at that time. (NE pp 236 – 237, lines 6994 to 7014) 1140 k) Over and on top of the above, the accused told SP3, in detail of the identity of the victim, the cuts he had made to the victim, and the exact location where he had hidden the body parts wherein they were subsequently found. By him hiding the body parts shows guilt and this leads to the 1145 inference that SP3 knew the nature of his acts was wrong. The evidence of SP3 (NE p 21, lines 603 to 605) bears reproduction: “You Poh Khoon bagi tahu saya, dia potong kaki, tangan, kepala. Itu kaki, tangan dan kepala, dia tanam belakang 1150 rumah dan badan, dia buang dalam tangki tahi.” l) The accused was also able to tell the arresting officer (SP8) soon thereafter on the same day on 9 October 2018 where the body parts were. m) The forensic pathologist (SP13) testified that with such 1155 cuts made to the victim especially to the neck’s main artery and veins, a lot of blood would gush out and splash onto the body or clothes of the assailant (NE p 197, lines 5817 to 5825) and would stain the machete. However, when the accused met SP3, after having cut his father, he was 1160 normal with no blood stains, earth or dirt on him (NE p 23, line 680 to 682). I agree with the prosecution that this shows that the accused had taken the trouble to clean S/N j9zGyp5SDku7kpcxmB52lQ himself up, change his clothes just like what a rational and sane person would do after the commission of the act or 1165 acts with the view to hiding all traces of his wrongful acts. n) When he was in SP3’s car, the accused also told SP3 after he saw the police that he was scared of being arrested (NE p 23, lines 670 and 671) which further shows guilt that is, he knew that what he has done was wrong. This is 1170 further underscored by the accused trying to run away and resisting arrest according to SP8 (NE p 55 lines, 1633 to 1636). o) SP3 also testified that the accused told him that there were people disturbing him (accused) and when asked who, the 1175 accused said “devils” (NE p 21, line 625) and that when he saw the police, the accused said he has seen a person killing his son and that was why he killed that person (NE p 23, line 674). However, it is to be recalled that just after the commissions of the act or acts, the accused drove to 1180 tell SP3 that he had cut his father dead and not some devil. p) I am persuaded by the prosecution’s submission that the cuts were not done by the accused in response to a person who is attacking him. Instead, the victim was bedridden, cannot ambulate on his own as evidenced by his bedsores 1185 according to SP13 (NE p 185, lines 5474 to 5485) and wholly dependent upon the accused to move him, to bathe him and even to be cleaned up after passing motion and therefore could not be a person who could be making any attacks. In this regard, the facts of the case of Lee Thiam 1190 Watt lwn Pendakwa Raya (supra) relied upon by the accused can be easily distinguished as in that case the appellant was hallucinating that he was attacked by his S/N j9zGyp5SDku7kpcxmB52lQ sister who was seen to be a tiger which had come to attack the appellant. To put it bluntly, in this case, the accused 1195 cut off the head of a hapless person who was lying down on his bed and then proceeded to cut off the limbs. q) That the dismemberment of the other limbs was done in cold blood can be inferred from the testimony of SP13 that the other cuts were done after the victim had been 1200 decapacitated with his blood drained out as evidenced by the lack of blood at the parts where the limbs were cut. r) The dismemberment was done to facilitate the hiding of the body in a structured manner with the limbs put into a black garbage plastic bag, the head placed on a plastic 1205 sheet and buried together with the limbs and the body put into another plastic bag and thrown into the sewage tank before closing the cover. The floor of the room where the blood-stained mattress was found together with the long machete were cleaned of blood stains. All of which taken 1210 together would drive any reasonable tribunal to infer that the acts were carried out in a methodical and structured manner leading to the inference that the acts were pre-meditated and certainly not the acts of a person said to be hallucinating, insane or of unsound mind. 1215 s) Reliance by the defence on the medical report (P60) is of no assistance to the defence as there is no mention of the accused being in a state of intoxication; t) Further the reliance by defence on the medical reports in P58, P61 and P61A is also misplaced as the report in P58 1220 merely says that the accused has a history of drug dependency and did not state that the accused was intoxicated with drugs on 8 or 9 October 2018, whereas S/N j9zGyp5SDku7kpcxmB52lQ P61 and P61A says the accused tested positive for drugs on 22 June 2017 which is more than one year before the 1225 commission of the offence between 8 and 9 October 2018. Defence’s Case [48] After he was called upon to enter on his defence, the accused was 1230 informed of his right to: i) remain silent; ii) give sworn testimony, or iii) give unsworn testimony from the dock and that irrespective of whichever option he elected, that he was entitled to lead evidence on his defence. [49] The accused elected to give sworn testimony. 1235 [50] He testified that he was of unsound mind, a state brought about after his divorce with him constantly feeling suspicious leading him to take “ice” (methamphetamine). He has been taking ice for about two to three years and when he takes it, he does not know what happens. 1240 [51] On the day of the event, when asked, he testified during examination-in-chief that: “S: Pada hari yang kamu dituduh dalam Mahkamah, apa sebenarnya 1245 berlaku pada hari tersebut? J: Saya tidak tahu apa yang berlaku pada tarikh itu. Tetapi saya ada dengar orang cakap di telinga saya suruh saya pancung hantu. S: Kenapa kamu nak pancung hantu itu? J: Saya takut. Hantu itu kacau saya. Jadi saya pancung hantu itu. 1250 S: Selepas kamu pancung hantu itu, apa yang kamu buat? J: Selepas saya pancung hantu, saya terus beritahu abang ipar saya. S/N j9zGyp5SDku7kpcxmB52lQ S: Apa yang terjadi pada hantu itu selepas kamu pancung dia? J: Saya ambil hantu itu buang ke belakang rumah saya. S: Selepas kamu beritahu abang ipar kamu, apa yang berlaku? 1255 J: Selepas itu polis datang tangkap saya. Saya berasa takut. S: Bila kamu sedar hantu yang kamu potong itu sebenarnya bapa kamu? J: Bila saya sampai ke balai polis, baru saya sedar hantu itu ialah bapa saya. Masa itu saya sudah waras.” 1260 [52] The accused’s story was that he took “ice” on the day of the event, could not remember that he had used the machete (P34A) that was shown to him, could not remember that he had cut off the head first, that he has cut his father and that at times he is mentally sound and at times not. This came across during his cross-examination and the defence asserted that such a 1265 line of questioning would clearly show an acceptance by the prosecution that the accused was insane and it is a fact that he was insane. Reliance was placed on the case of PP v. Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 CLJ 215 at 337 and 365, where the Court can make an inference premised upon the manner in which the questions were put. 1270 [53] The defence took the position that the doubt that needed to be cleared was not whether at the time of the event the accused had murdered You Su Kim, instead it should be whether at the time of the commission of the act or acts, the accused had the mental capacity of knowing the nature and effect 1275 of what he was doing and that it was wrong and contrary to law. In its original language, the defence submitted (E 158 para 29): “Di dalam kes ini di hadapan Mahkamah yang Mulia ini, keraguan-keraguan yang perlu dijelaskan bukanlah samada pada ketika kejadian, 1280 Tertuduh telah membunuh You Su Kim, sebaliknya pada masa kejadian, S/N j9zGyp5SDku7kpcxmB52lQ Tertuduh mempunyai kapasiti mental untuk mengetahui dan menyedari bahawa sifat, kesan dan akibat perbuatannya adalah salah dan menyalahi undang-undang.” 1285 [54] The defence concluded by asserting that the prosecution has failed to prove the charge against the accused and that the defence has succeeded in proving on a balance of probabilities that at the time of the commission of the act, the accused did not realise and did not know the nature of the act, and that he did not know what he did was wrong and contrary to law. 1290 Prosecution’s Reply [55] The prosecution asserted that reliance by the defence on the evidence of the prosecution witnesses, SP2, SP3, SP4, SP5, SP5, SP6 and SP7 on 1295 the mental condition of the accused is misplaced as they were only giving a general opinion of previous conduct that occurred once in a while (“sekali-sekala”). In any event, these witnesses had also given evidence that the accused was normal and was able to discharge various responsibilities. 1300 [56] That the accused is a drug addict is not an issue. Instead, the critical issue is whether the accused was in a state of intoxication brought about by the influence of drugs such that he was insane at the time of killing the deceased. There is no direct evidence to this effect. 1305 [57] From the evidence of SP15 and the other independent witnesses, the accused was not mentally disturbed at the time of the commission of the act or acts and instead, he knew the nature and effect of his action and that it was wrong. S/N j9zGyp5SDku7kpcxmB52lQ [58] The prosecution placed reliance on the case of PP v. Shalima Bi 1310 [2016] 2 CLJ 231 (CA), where the defence of insanity was raised by the accused who was the second wife and who poured hot oil on the first wife causing the first wife to die due to multi organ failure resulting from major burns. In this case, Abdul Rahman Sebli JCA (now FCJ) held as follows: 1315 “[47] With due respect to the learned judge, what he had to determine was whether the respondent was insane at the time she committed the act. How the respondent behaved or conducted herself in court during the trial or at any other time unconnected or remotely connected to the act had nothing to do with that question.” 1320 [59] And the only evidence of the accused having traces of drugs in him was more than a year ago in 2017. Indeed, the prosecution conceded that their evidence as led through SP15 is that the accused has a history of drug dependency but this does not prove that the accused was legally insane at 1325 the time of inflicting the fatal cuts on his father. [60] During re-examination of SP3, SP5 and SP6 they each were unable to say whether the accused is in fact medically unsound. 1330 [61] The facts in Lee Thiam Watt lwn Pendakwa Raya (supra) and PP v. Pham Ti Tuyet Mai (supra) can be distinguished. In the former, the psychiatrist specialist (SP10) testified that the accused was clearly under the influence of drugs and was temporarily insane and did not know that what he did was contrary to law and in the latter, the psychiatrist specialist (SD2) was 1335 able to show clearly that at the time of the commission of the offence the accused was not of sound mind and did not know what he did was contrary to law. S/N j9zGyp5SDku7kpcxmB52lQ [62] On the other hand, in this case, the evidence of the Forensic Psychiatrist Specialist (SP15) who has examined the accused personally on 1340 51 separate occasions gave credible evidence that these repeated interview sessions enabled him to state categorically that the accused had no deficits in his memory and that there was absence of any mental disorder in the accused. 1345 [63] There was a motive for the murder. In Pathmanabhan a/l Nalliannen v Public Prosecutor and Other Appeals [2017] 4 CLJ 137; [2017] 3 MLJ 141, the Federal Court held that although motive is not a sine qua non and not an absolute must to prove the case of the prosecution, pursuant to section 8(1) of the Evidence Act 1950, it is a relevant fact but the absence 1350 of such evidence is not fatal to the prosecution case. [64] As for the evidence given by the accused, the prosecution repeated that his testimony is not credible for the reasons already narrated above and added that: 1355 i) The accused being able to tell when he is sane and when he is not should be construed as him “malingering”; ii) There is no explanation from him why there was a need to dispose of the body in a structured and neat manner as to 1360 amount to concealing what is said to be a ghost; iii) The following testimony of the accused under cross-examination shows that the prosecution had challenged the accused’s version, that he was lying and that he knew what he did to his father was wrong, that he knew that the police would want to 1365 arrest him, that he buried his father (the head and limbs) and threw away the body so that it cannot be seen by people and S/N j9zGyp5SDku7kpcxmB52lQ that he killed his father as can be seen from his following testimony under cross-examination: a) (NE p 12 E162 from NE p 335, lines 9907 to 9931) 1370 S: Apa yang kamu buat pada bapa kamu, kamu tahu memang salah? J: Ya, benar. S: Memang kamu tahu polis memang sudah mahu tangkap kamu? 1375 J: Ya, saya tahu. S: Kamu tanam bapa dan buang badannya supaya orang tidak nampak? J: Ya, benar. S: Saya katakan kepada kamu pada hari itu kamu memang 1380 tahu kamu memang bunuh bapa kamu? J: Masa itu saya tidak waras, saya tidak tahu apa yang saya buat. S: Saya cadangkan kamu memang waras dan tahu apa yang kamu buat dan memang kamu ingin bunuh bapa 1385 kamu? J: Saya bunuh bapa saya, semasa itu saya tidak waras. S: Beritahu dia setuju atau tidak setuju. Saya cadangkan yang kamu waras. J: Tidak setuju. 1390 S: Saya katakan kepada kamu yang kamu sudah buat dengan teliti. Kamu sudah pakai sarung tangan, buang mayat, tanam mayat supaya orang tidak nampak. Saya katakan kepada kamu, kamu telah rancang macam mana nak bunuh dan macam mana hendak buang mayat? 1395 J: Saya tidak setuju. Saya tidak tahu saya sudah bunuh bapa saya sebab hari itu saya tidak siuman. S/N j9zGyp5SDku7kpcxmB52lQ S: Jadi bila kamu siuman dan bila kamu tidak siuman. Contohnya macam tadi kamu cakap kamu siuman tetapi bila sampai di balai polis sudah jadi waras. Jadi tahu bila kamu 1400 siuman dan tidak siuman? J: Bila saya siuman dan tidak siuman, saya pun tidak berani cakap. Court’s Analysis and Findings at the end of the Defence’s Case 1405 [65] Premised upon the instructive decision of Abdul Rahman Sebli JCA (now FCJ) in PP v. Shalima Bi (supra), I find that in this case: i) the accused has no record of having been diagnosed with any 1410 mental illness; ii) there were two unsuccessful attempts to have him sent for consultation with no further attempts made thereafter; iii) it cannot be denied that the family members of the accused SP3, SP4, SP5, SP6 and SP7 were content to let the accused stay 1415 alone with the deceased, who was their father-in-law/grandfather/father, for many years up until the fateful day and despite their observations of some eccentric behaviour, they must have felt that it was safe enough for the accused to be the primary and sole caregiver for the bedridden You Su Kim; 1420 iv) although motive is not a necessary ingredient, there is the presence of motive which negates the accused’s defence of insanity and that is the accused did admit that looking after his bed-ridden father was tiring; v) the irresistible inference to be drawn from the accused being 1425 able to go about his daily routine to work as a labourer eight S/N j9zGyp5SDku7kpcxmB52lQ hours a day from Mondays to Saturdays despite having a history of drug dependence is that his drug dependence would negate intoxication by drugs as to cause temporary insanity on that fateful day especially when the evidence clearly shows that the 1430 cuts could only have been done with great force so as to behead a hapless bedridden man followed by : a) the cold-blooded dismembering of the limbs; b) the placing of the body parts in plastic bags and burying them; 1435 c) the throwing of the body into the sewage tank and placing back the cover of the sewage tank; d) the mopping and cleaning the floor of traces of blood; e) the cleaning of the long machete of blood, f) cleaning himself up and being able to drive 100 kilometres 1440 in a manual transmission car soon thereafter to his brother-in-law’s rented home, telephone his brother-in-law and recount what he did and to tell his brother-in-law where exactly he had disposed of the body parts; g) careful efforts to conceal evidence of the blood and body 1445 parts evidence rational thought, feelings of guilt and knowledge that what was done was contrary to law; and h) the accused’s DNA found on blood stains on a T-shirt and gloves found at the scene places him at the scene. vi) the accused’s conduct of showing where the body parts of the 1450 deceased to SP8 on the 9 October 2018 itself leading to the parts being discovered; vii) his fear of being arrested by the police whilst in his brother-in-law’s car and trying to run away from the police shows guilt and knowledge that what had been done was contrary to law; 1455 S/N j9zGyp5SDku7kpcxmB52lQ viii) his story given in his defence that he was beheading a ghost is contradictory to the earlier story told to his brother-in-law that people want to kill his son; and ix) his testimony of wanting to behead a ghost is wholly illogical as a ghost is commonly believed to be bloodless, already dead, 1460 without physical form and one would run away from a ghost rather than confront it. All these together with the accused’s careful attempts to hide the body parts would lead to the inference that this is a desperate afterthought bereft of any credit. 1465 [66] I am conscious that it is for the Court to determine whether the accused was legally insane and not for SP15, the Forensic Psychiatrist Specialist or any other medical expert, no matter how eminent, to determine whether the accused was insane at the time that he committed the act or acts. 1470 [67] The role of SP15 as a witness was to assist the court in arriving at a decision. [68] In the case of PP v. Muhamad Suhaimi Abdul Aziz [2004] 1 CLJ 378 1475 (CA), the medical findings on the accused by the defence’s witness DW2 was made after conducting the necessary observations and interviews for three months, not only on the accused, but also with members of his family, taking into consideration the accused’s behaviour, sleep pattern and also his emotions with ample materials laid before the Court to support a finding that 1480 he was insane at the time he stabbed his wife to death. One crucial finding made by the learned trial judge in PP v. Muhamad Suhaimi Abdul Aziz (supra) was that the accused was not driven by any motive in killing his wife. Thus, in the absence of any motive on the part of the accused in killing his S/N j9zGyp5SDku7kpcxmB52lQ wife, coupled with the unchallenged medical evidence, the accused was held 1485 to have successfully proved on a balance of probabilities that he was suffering from insanity at the material time. [69] However, in this case SP15 had examined the accused on 51 separate occasions over a 22-week period and found that the accused was able to 1490 recall his memory consistently on the crime he was accused of with no deficits in memory. I, therefore, have no hesitation in finding that the accused was mentally sound at the time of him inflicting the multiple cuts on the deceased. 1495 [70] I also find from all the evidence led by the prosecution narrated above that the accused was not legally insane at the time of the commission of the act or acts of inflicting the multiple cuts on the deceased, his father, by the accused. 1500 [71] And, to decapacitate a man, would surely cause death and amounts to murder most foul unless, he was of unsound mind or by reason of intoxication, insane temporarily or otherwise, at the time of carrying out the beheading, which I find the accused was not. 1505 Conclusion [72] Wherefore, I find that the prosecution has proved beyond reasonable doubt that the accused is guilty as charged and is therefore convicted for the same. For the avoidance of any doubt, I find that the defence has failed to 1510 raise any reasonable doubt on a balance of probabilities that the accused S/N j9zGyp5SDku7kpcxmB52lQ did not carry out the act and that at the time of him carrying out the act, he was of unsound mind or by reason of intoxication, insane temporarily or otherwise. 1515 [73] There is evidence that the deceased was bedridden requiring constant care for his needs including toiletry needs and there is also evidence by SP13 that the deceased was suffering from prostate cancer and metastasis has occurred with the cancer having spread to other organs and body structure such as the lungs, the walls of the abdomen, the omentum, as well 1520 as the mesenteric, (P53). [74] However, under the law, the one and only sentence that is to be meted out on an accused found guilty of murder is death, see section 302 of the Penal Code, and pursuant to section 277 of CPC, the accused is to be 1525 hanged by the neck till he is dead and I so order. Epilogue [75] After the sentence was handed down, this Court gave the accused an 1530 opportunity to say why the sentence of death should not be carried out. This may sound incongruous as the mandatory sentence for an accused found guilty of murder is death. However, section 281(b)(i) and (ii) of CPC requires the trial judge to put up a report in writing setting out his opinion whether there are any reasons, and, if any, what reasons there are, why the 1535 sentence of death should or should not be carried out. [76] This report is to be forwarded to the Menteri Besar of the State in which the crime was committed. Upon receiving the report, the Menteri Besar shall S/N j9zGyp5SDku7kpcxmB52lQ submit the same to the Ruler of the State who may acting in accordance with 1540 Article 42 of the Federal Constitution make such order as the Ruler may deem fit. [77] Article 42(1) of the Federal Constitution is reproduced hereunder: 1545 “ The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his 1550 State.” [78] The powers to grant pardons, reprieves and respites shall be exercisable on the advice of the Pardons Board constituted for the relevant State, see Article 42(4) of the Federal Constitution. 1555 [79] The accused made his representations which would in due course be considered and reflected in the report and subject to the appeal against the decision made herein, be handed up as is statutorily required. 1560 1565 S/N j9zGyp5SDku7kpcxmB52lQ Dated: 4 July 2022 1570 SuTiangJoo ( SU TIANG JOO ) Judicial Commissioner High Court in Malaya Ipoh, Perak 1575 For Prosecution : DPP Jean Sharmila Jesudason [Prosecution Unit, Perak State Legal Advisor 1580 Offices] For Defence : Amir Faliq bin Mohamad Jamil [Messrs Amirfaliq & Syahidah] 1585 [Notice: This Grounds of Decision is subject to official editorial revision] 1590 S/N j9zGyp5SDku7kpcxmB52lQ Headnotes 1595 Criminal law – decapacitation of deceased father followed by dismemberment of the four limbs – murder under section 302 of the Penal Code – plea of insanity and intoxication at the material time not made out on a balance of probabilities – sentenced to death by hanging by the neck till he is dead 1600 Criminal Procedure Code – section 281 (b) – requirement by the Court to put up a report to the Menteri Besar of the State in which the crime was committed if there is no appeal or if there is an appeal to the Court of Appeal, after the determination of the appeal by the Court of Appeal on why the sentence of death should or should not be carried out – accused invited to 1605 address the Court on why the sentence of death should not be carried out. 1610 S/N j9zGyp5SDku7kpcxmB52lQ