[Pendakwa Raya] v Muhammad Huzairi Bin Razali (JB-45B-2-08/2020)

The accused was charged and tried before me with two charges of murder, which are offences punishable under s. 302 of the Penal Code (the Code). The charges read as follows: - “PERTUDUHAN PERTAMA Bahawa kamu pada tarikh 12 Julai 2019 jam lebih kurang 5.50 petang bertempat di Kedai Kopi Sin Yew Yee, No. 12, Jalan Abdullah, Pekan Buloh Kasap, di dalam Daerah Segamat, di dalam Negeri Johor Darul January 27, 2025 2 Ta’zim, telah melakukan bunuh ke atas Ku Cheng Liong @ Ku Sot (No. KP: 441031-01-5197). Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan. PERTUDUHAN KEDUA Bahawa kamu pada tarikh 12 Julai 2019 jam lebih kurang 6.03 petang bertempat di Gerai Buah Durian di hadapan Kedai No. 18, Jalan Ibrahim, Pekan Buloh Kasap, di dalam Daerah Segamat, di dalam Negeri Johor Darul Ta’zim, telah melakukan bunuh ke atas Ng Wan Hong (No. KP: 581013-01-6019). Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan.”

The salient facts adduced by the prosecution can be summarised as follows: - The incident involving the 1st victim On 12 July 2019, around 5.30 pm, the deceased Ku Cheng Liong @ Ku Sot (1st victim), as his usual routine, went to Kedai Kopi Sin Yew Yee at Jalan Abdullah, Pekan Buloh Kasap, Segamat. Ong Chak Onn (PW9) saw the accused running and entering the coffee shop with a “parang”. The coffee shop is PW9’s family business. PW9 got scared seeing the accused with a “parang” and ran away. His brother, Ong Chak Seng (PW17), was in the coffee shop upstairs. Upon hearing some noise downstairs, PW17 went down the steps to see what the noise was all about. PW17 then saw the accused holding the 1st victim and stabbing him with a “parang”. The accused thereafter let go of the 1st victim, who fell to the ground. PW17 could see from the steps the entire coffee shop on the ground January 27, 2025 3 floor. PW17 identified the deceased as a regular customer of the shop for many years. PW17 also identified the accused. The incident involving the 2nd incident Soon after the 1st incident, the 2nd incident took place at a durian stall near No. 18, Jalan Ibrahim, Buloh Kasap, Segamat. Upon receiving information of an incident at the said location, Koperal Zikhri Midin (PW11) and his team rushed to the scene at a durian stall in front of Restoran Guan Kee, Pekan Buloh Kasap. Upon arrival, they saw the accused “struggling” with a Chinese man. PW11 identified the Chinese man as the deceased, Ng Wan Hong (2nd victim). PW11 also saw the 2nd victim falling to the ground during the struggle, and the accused sat on top of the 2nd victim and stabbed him in his chest with a “parang”. After that, PW11 caught hold of the accused with both hands from the back and made him fall to the ground. The 2nd victim got up to see the stab wound inflicted on him and sought assistance to be sent to a clinic. Lans Koperal Amirul Izzat (PW13) brought the 2nd victim to the clinic. PW13 was not able to fire any shots towards the accused during the moment when the accused was struggling with the 2nd victim upon considering the safety of the public surrounding the scene. Once the accused was made to fall on the ground, PW11 and his team arrested the accused and brought him into a police Land Rover to be taken to the police station. PW11 was unable to save the 2nd victim because the accused acted fast in stabbing the 2nd victim. PW13 also witnessed the accused stabbing the 2nd victim and assisted PW11 in arresting the accused. The 2nd victim was treated at January 27, 2025 4 the Klinik Kesihatan Buloh Kasap but died shortly after the initial treatment. Shee Boon Heng (PW16), the 2nd victim’s friend who was near the durian stall witnessed the accused coming towards the durian stall with a “parang”. PW16 saw the 2nd victim retreating, knocking into a chair and falling to the ground when the accused came towards him with a “parang”. PW16 also saw the accused stabbing the 2nd victim with a “parang” after he fell to the ground. Upon arriving at the police station, PW11 and his team were informed of the stabbing of the 1st victim. They then went to the Kedai Kopi Sin Yew Yee.

Dr. Haryanti Sara Azmeen (PW12) was the Pathologist who performed the post-mortem. The post-mortem report for the 1st victim was tendered as exhibit P82, and the post-mortem report for the 2nd victim was tendered as P83. The cause of death for the 1st victim was given as due to stabbed wounds to the chest with multiple incise wounds to the face. Whereas the cause of death for the 2nd victim was given as due to a stab wound to the abdomen.

The aforesaid is a summary of the case for the prosecution, upon which each ingredient of the two charges must be established by the prosecution to make out a prima facie case against the accused.

Section 180 (1) of the Criminal Procedure Code requires that after the case for the prosecution, the Court shall consider whether the January 27, 2025 5 prosecution has made out a prima facie case against the Accused, and if unrebutted or unexplained, would warrant a conviction.

In Balachandran v. PP [2005] 1 CLJ 85, Augustine Paul (as he then was) held that: - “A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal. The phrase “prima facie” is defined in similar terms in mozlet and Whiteley’s Law Dictionary 11th Edn as: A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called to answer it. A prima facie case then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side. The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. On the other hand if a prima facie case has not been made out it means that there is no material evidence which can be believed in the sense as described earlier. In order to make a finding either way the court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence has been established.”

In PP v. Mohd Radzi Bin Abu Bakar [2006] 1 CLJ 457, the duty of the Court in determining whether the burden of prima facie had been discharged was spelt out as follows: - January 27, 2025 6 “This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the Accused to enter upon his or her defence. It involves an assessment of the credibility called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the Accused's favour, then it is the duty of the court to draw the inference that is favourable to the Accused. See. Tai Chai Keh v. PP [1948] CLJU 122; [1948] 1 LNS 122; [1948-49] Supp 105; PP v. Kassim bin Soeb [1974] CLJU 116; [1974] 1 LNS 116; [1974] 1 MLJ 230. If the court, upon a maximum evaluation of the evidence placed before it at the close of the prosecution case, comes to the conclusion that a prima facie case has not been made out, it should acquit.”

In short, the test of prima facie case as propounded in the above case is stated as follows: - “Ask yourself the question. If I call upon the Accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If, the answer to that question is “yes” then a prima facie case has been made out and the defence should be called. If the answer is “No” then, a prima facie case has not been made out and the Accused should be acquitted.”

The elements of the offence of murder are found in Sections 299 and 300 of the Penal Code. Section 299 defines culpable homicide as follows: - “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide.” January 27, 2025 7

Section 300 of the Penal Code read as follows: - “Except in the cases hereinafter excepted, culpable homicide is murder:

If the act by which the death is caused is done with the intention of causing death;

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

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

If the person committing the act knows that it is imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and

commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.” [11] Therefore, in this instant case, to prove a prima facie case against the accused under Section 302 of the Penal Code, the prosecution needs to establish the following ingredients, namely: -

That Ku Chong Liong @ Ku Sot and Ng Wan Hong is dead;

That Ku Cheng Liong @ Ku Sot and Ng Wan Hong died as a result of injuries sustained by them; January 27, 2025 8

That the injuries of Ku Cheng Liong @ Ku Sot and Ng Wan Hong were caused or were the result of the act of the accused;

That in inflicting the injuries upon Ku Cheng Liong @ Ku Sot and Ng Wan Hong, the accused either: -

Caused them with the intention of causing their death; or

The accused intended to inflict the said wounds on Ku Cheng Liong @ Ku Sot and Ng Wan Hong, which he knew would be likely to cause death; or

That the accused intended to inflict the said wounds on Ku Cheng Liong @ Ku Sot and Ng Wan Hong which is sufficient in the ordinary course of nature to cause their deaths; or

That the accused knew that his act in inflicting the wounds would in all probability cause death or is likely to cause death and he had no justification for his act. ANALYSIS AND FINDING [12] The prosecution has successfully established the first and second ingredient that the 1st and 2nd victims died and their death was caused by the stab wound. In the case of the 1st victim, the stab wound was to the chest, and multiple incised wounds to the face.

An intention is a question of fact that cannot be proved by direct evidence. Inference from the evidence presented and the surrounding circumstances had to be made to determine this fact. The respondent had the opportunity to inflict injuries on the deceased. He was the last person seen with the deceased while the deceased was still alive and importantly, the respondent's conduct after the death of the deceased showed the act of covering the offence committed. The inference from the surrounding circumstances, including the fact that the deceased January 27, 2025 15 had informed PW1 and PW2 that it was the respondent who caused the bruises on her legs and thighs, showed that the respondent had the intention to inflict the injuries on the deceased. The trial judge had also made a finding of fact that it was the respondent who intentionally inflicted the fatal injuries on the deceased. The appellate court should be slow in disturbing the finding of fact of the trial judge who had the audio-video advantage.” (emphasis added) [34] Further, the Court of Appeal in Salem Brayon v. PP [2023] 1 CLJ 739 held that inferences can be drawn from the acts and conduct of an accused person as follows: - “[28] It is trite law that intention, being a mental element, may be proved by recourse to circumstantial evidence and inference from surrounding circumstances and the acts or conduct of the person causing the injuries. A person would be deemed to intend the natural consequences of his act. (See Sim Yew Thong v. Ng Loy Nam Thomas & Other Appeals [2000] 4 SLR 193, 194).” (emphasis added) Please see Mohd Azam Raja Abdullah v. PP [2015] 1 CLJ 1080. [35] On the failure to produce any DNA or fingerprints of the accused on the “parang” to link the accused, in my judgement, based on the overwhelming evidence against the accused as narrated above, I agree with the prosecution that it is not fatal. [36] Likewise, the direct evidence from eyewitnesses PW11, PW13 and PW16 at the scene of the crime near the durian stall is sufficient to prove the prosecution’s case, although no CCTV recording from the CCTV installed at the nearby building was produced. In Dilbar January 27, 2025 16 Nazarova v PP [2015] 1 LNS 926, it was held by the Court of Appeal: - “[54] As regard the non-production of the CCTV footage which learned counsel contended to be the best evidence, in the circumstances of this case, is not fatal to the prosecution’s case. The prosecution’s evidence is sufficient to prove the trafficking charge against the appellant. There is no necessity for the production of the CCTV recordings as an additional or corroborative evidence.” [37] As for the final ingredient, the prosecution relies on limb (c) under Section 300 of the Penal Code that the accused intended to inflict stab wounds on both the victims, which is sufficient in the ordinary course of nature to cause their deaths. [38] To establish this ingredient, the prosecution submits that based on the evidence adduced through the eyewitnesses on the incident of the stabbing of the first victim at the coffee shop by the accused and the second victim at the durian stall, the accused intended to inflict bodily injury to both the victims by the stab wounds. They further submit that the stab wound to the chest and multiple incised wounds to the face of the 1st victim and stab wound on the abdomen of the 2nd victim is sufficient in the ordinary course of nature to cause the death to the 1st victim and the 2nd victim as testified by the pathologist (PW12). This evidence shows that the accused intended to inflict injuries on both victims. [39] In PP v. Muhammad Khairuanuar Baharuddin (supra), the Federal Court held: - “(2) The injury that caused the death of the deceased was the injury to the head, due to blunt force trauma and it was not accidental. The injury was a kind that was sufficient in the January 27, 2025 17 course of nature to cause death. This was despite the pathologist, PW12, not mentioning specifically in his testimony that the injury on the deceased’s head was sufficient in the ordinary course of nature to cause death. The total effect of PW12’s evidence came to the said conclusion. In the result, s. 300(c) of the PC had been established by the prosecution for the offence of murder against the respondent.” (emphasis added) [40] Further, it was decided by the Federal Court in Zulkiple Mohamad v PP [2022] 1 CLJ 673 that under limb (c), what is required for the prosecution to prove is that the accused intended to inflict the injuries which were present on the victims and what kind of injury is irrelevant. According to the Federal Court: - “(1) It is irrelevant and totally unnecessary to enquire into what kind of injury the accused intended to inflict. The question is not whether the intention of the accused 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 inflict were the injuries on the deceased’s head which fractured her skull. Where the prosecution relies on cl. (c) of s. 300 of the PC, 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. In the context of the present case, proof of that intention was the appellant’s deliberate act of hitting the deceased on her head with the baseball bat, which was totally unrelated to the question whether he intended to cause injury that was sufficient to cause death in the ordinary course of nature.” (emphasis added) [41] In this circumstance, I am satisfied that the prosecution has proven the final ingredient of the offence. January 27, 2025 18 [42] Upon evaluating the entire evidence adduced by the prosecution, I find the prosecution has proven beyond a reasonable doubt that the act of killing both the victims by the deceased fell under limbs (a),

and (c) of Section 300 Penal Code. [43] Therefore, upon a maximum evaluation of the evidence at the close of the prosecution’s case and the test propounded by the Federal Court in PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457, I am satisfied that the prosecution has established a prima facie case and I called for the accused to enter his defence. DEFENCE CASE [44] The three alternatives were explained to the accused, whether he chose to remain silent, give evidence under oath or make an unsworn statement from the dock. The accused elected to give evidence under oath. [45] The accused called three witnesses, including himself, to testify on his behalf. [46] The essence of the accused's (DW1) testimony was that he does not remember the incident of killing both victims at the coffee shop and the durian stall. The accused says that he is suffering from a psychiatric illness. He also testified that he had never been to the coffee shop or the durian stall and denied killing both the victims using a “parang”. According to the accused, all he remembers is that he was in his house with his wife and children before he was arrested by the police. January 27, 2025 19 [47] The accused also had a history of addiction to “ganja”. [48] Next, the accused called Dr. Nurhana Binti Saini (DW2), the medical officer from the Muar Correctional Centre where the accused is being detained. DW2 has been seeing the accused in prison since 17.1.2024. [49] DW2 confirmed that she is not a qualified specialist in psychiatry and is not a registered psychiatrist with Kementerian Kesihatan Malaysia to diagnose patients with mental illness. [50] DW2’s evidence can briefly be summarized as follows. According to DW2, she received information about the accused from the medical officer in Sungai Udang prison, where the accused was previously detained, that the accused does not suffer from “psychotic disorder” but suffers from “Intermittent Explosive Disorder”. According to DW2, based on the information received from the medical officer in Sungai Udang prison and verbal discussions with a psychiatrist from Hospital Pakar Sultanah Fatimah, Muar, the accused was treated with psychiatric medications commencing on 21.1.2024. DW2 further testified that the accused does not suffer from any major mental illness and is under certain medication periodically for his emotional problems. DW2 also confirmed from her observation that the accused does not suffer from hallucination or delusion. [51] DW2 further testified that from her observation, the accused has a “behaviour problem” which causes him not to mix well with the other inmates. DW2 also testified that the accused was able to manage himself and keep himself clean without any problems. She said the January 27, 2025 20 accused often is anti-social and curses at other inmates, which at times is the source of fights between him and other inmates. [52] In conclusion, DW2 found the accused not to be totally insane, and his conduct is on and off, meaning when he is triggered, he acts aggressively. [53] During cross-examination by the learned DPP, DW2 once again reiterated that the accused did not suffer from any major mental illness apart from Intermittent Explosive Disorder. DW2 also said that the accused denied having any symptoms of hallucination and delusion. DW2 further said that the accused does not take his medication, and at times, the prison officers have to force him to take the medication. [54] Most importantly, when questioned by the Court, DW2 said the accused was aware of his actions and at times not able to control them. [55] The last witness that the accused called was his elder brother (DW3). According to DW3, the accused can manage himself. He has his job and his family. DW3 further testified that the accused is not totally insane and easily gets irritable. Lastly, DW3 testified that he and the family did not bring the accused treatment because he can manage his life and has a job, wife and children. [56] DW3 also testified that before the incident, the accused came to see him riding his motorcycle and asked him whether he wanted to follow him. When DW3 asked the accused where to, the accused January 27, 2025 21 answered, “pergi Pulau Babi dan Pulau Biawak”. DW3 told the accused that he had work to do on his farm and did not follow him. DUTY OF THE COURT AT THE END OF THE DEFENCE [57] In considering the defence of the accused, I am reminded that there is no burden on the part of the accused to prove his innocence. It is the duty of the Court under Section 182A of the Criminal Procedure Code to consider all the evidence before it and decide whether the prosecution has proven its case beyond reasonable doubt. [58] Section 182A (1) of the Criminal Procedure Code states that: - “At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.” [59] In Prasit Punyang v. PP [2014] 7 CLJ 392, the word “all” employed in the provision shows that: - “it is the bounden duty of the learned JC, at the conclusion of the trial, to consider all the evidence adduced before him and shall decide whether the prosecution has proved its case beyond reasonable doubt. The legislature has advisedly used the term all the evidence. The emphasis must be on the word all.” [60] Therefore, it is incumbent on the Court to consider all of the evidence adduced, including all of the defences advanced by the accused, in deliberating whether the prosecution has proved its case beyond reasonable doubt. As stated by the Federal Court in Md Zainudin bin Raujan v. PP [2013] 4 CLJ 21: - January 27, 2025 22 “At the conclusion of the trial, s. 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The defence of the accused must be considered in the totality of the evidence adduced by the prosecution, as well as in the light of the well-established principles enunciated in Mat v. Public Prosecutor [1963] CLJU 82; [1963] 1 LNS 82 with regard to the approach to be taken in evaluating the evidence of the defence.” [61] Nonetheless, the defence adduced must be credible and sound, for “reasonable doubt” excludes fanciful, whimsical or imaginary doubt. As echoed by Abdoolcader J (as he then was) in PP v. Datuk Haji Harun bin Haji Idris & Ors [1977] CLJU 92; [1977] 1 LNS 92: - ”It is not necessary for the defence to prove anything and all that is necessary for the accused to do is to give an explanation that is reasonable and throws a reasonable doubt on the case made out for the prosecution. It cannot be a fanciful or whimsical or imaginary doubt, and in considering the question as to whether a reasonable doubt has been raised, the evidence adduced by and the case for the defence must be viewed in at least some amount of light, not necessarily bright sunlight, but certainly not against the dark shadows of the night.” [62] In the Court of Appeal case of PP v. Azwan bin Abd Rahman & Ors [2015] MLJU 2004, the Court emphasized that “the phrase “reasonable doubt” excludes fanciful or imaginary doubts or stories that are so obviously conjured up so as not to be in accord with the ordinary course of nature or human conduct when viewed and appraised from the test of reasonableness”. [63] In dealing with the Defence’s case, I am also minded by the averments of his Lordship Azahar Mohamed JCA (as his Lordship January 27, 2025 23 then was) in Ali Tan bin Abdullah v. PP [2013] 4 CLJ 757; [2013] 2 MLJ 676 when he said: - “Indeed, mere denial or presenting a bare story of innocence, such as in the circumstances of the present case, cannot amount to reasonable doubt. The court's acceptance of the explanation offered by an accused person must be based upon reason and common sense, and cannot be illogical or irrational. The existence of reasonable doubt is dependent upon the totality of the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation”. [64] Further, in the case of PP v. Saimin & Ors [1971] CLJU 115; [1971] 1 LNS 115; [1971] 2 MLJ 16, Sharma J held that the falsity of the defence does not relieve the prosecution from proving its case beyond a reasonable doubt. I, therefore, bear in mind that even if I disbelieve the explanation or version of events given by the accused, I must still consider whether it raises a reasonable doubt on the case for the Prosecution. [65] Guided by the aforementioned decisions, if the Court does not accept or believe the defence raised by the accused, it must not convict but must proceed a stage further by considering whether the evidence by the defence has been sufficient to raise a reasonable doubt as to the guilt of the accused. If it does, then the accused is nevertheless entitled to an acquittal. [66] The crux of the learned counsel for the accused’s submission is that the accused suffers from an abnormality of mind, which had caused diminished responsibility or substantially impaired his mental responsibility for the offence committed. January 27, 2025 24 [67] Learned counsel for the accused submits that medical evidence adduced through DW2 and the evidence from DW3 about the accused's mental state and behaviour supports his argument. He relies on the Singapore Court of Appeal case in Chua Hwa Soon Jimmy v PP [1998] 2 SLR 22 Yong Pung How CJ after considering R v. Byrne [1960] 2 QB 396 at p. 30 stated his view on the weight that the Court ought to give to medical evidence in the following terms: - “Whether the accused was at the time of the killing suffering from any abnormality of mind in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is, no doubt, important, but the jury are entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence, if there is other material before them which in their good judgment conflicts with it and outweighs it. The aetiology of the abnormality of mind (namely, whether it arise from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence. Assuming that the jury are satisfied on a balance of probabilities, that the accused was suffering from 'abnormality of mind' from one of the causes specified in the parenthesis of the subsection, the crucial question nevertheless arises was the abnormality such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing. This is a question of degree and essentially one for the jury. Medical evidence is of course relevant but the question involves a decision not merely as to whether there was some impairment but whether such impairment can be properly be called ‘substantial’, a matter upon which juries may legitimately differ from doctors. January 27, 2025 25 Furthermore, in a case where the abnormality of mind is one which affects the accused’s self-control the step between ‘he did not resist his impulse’ and ‘he could not resist his impulse’ is... one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble the jury can only approach in a broad commonsense way. This court has repeatedly approved directions to the jury which... indicate that such abnormality as ‘substantially impairs his mental responsibility’ involves a mental state which in popular language (not that of the M’Naughten Rules) a jury would regard as amounting to partial insanity or being on the border line of insanity” [68] But in my judgement, what is pertinent to consider in cases involving defences for an accused person suffering mental illness is S 84 of the Penal Code, which defines the act of a person of unsound mind. This section reads: - “84 Act of a person of unsound mind 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.” [69] In PP v. Muhamad Suhaimi Abdul Aziz [2004] 1 CLJ 378, the Court of Appeal held that the burden and standard of proof to be discharged by the accused when a defence of insanity is raised was stated as follows: - “It is settled law that where an accused person raises the defence of insanity the burden of proof will be on him (see Juraimi bin Hussein v. PP [1998] 2 CLJ 383; PP v. Ismail bin Ibrahim [1998] 2 CLJ 213; Jusoh January 27, 2025 26 v. PP [1963] MLJ 84). The standard of proof to be discharged by the accused is on a balance of probabilities (see Rajagopal v. PP [1977] 1 MLJ 6; PP v. Nageswari [1994] 4 CLJ 419; PP v. Jong Chin Chin [1995] 4 MLJ 300.” [70] In a more recent decision in PP v. Mohd Rozani Yahaya [2025] 2 CLJ 21, for the defence of legal insanity to be applicable under Section 84 PC, the Federal Court held as follows: - “[57] Even the fact that the accused was diagnosed with schizophrenia or other mental illness does not automatically meet the threshold of legal insanity for s. 84 to be applicable (refer to Bapu @ Gajraj v. State of Rajasthan). That will only pass for medical insanity, which is insufficient for the defence of legal insanity to be applicable. The accused must prove that his unsoundness of mind was of a degree to satisfy one of the tests, namely that he was incapable of knowing the nature of the act as being wrong or against the law. We reiterate the position of the law which is trite that the defence of insanity under s. 84 of the Penal Code is concerned with the accused's responsibility at the time of commission of the offence and not with whether the accused was medically insane at that time (see PP v. Zainal Abidin Mohd Zaid [1993] 1 CLJ 147; PP v. Misbah Saat [1998] 1 CLJ 759; [1997] 3 MLJ 495).” (emphasis added) [71] Guided by the above decisions, the burden to prove legal responsibility at the time of committing the offence is on the accused, and the accused must discharge this burden on the standard of proof of balance of probabilities. [72] In Mohd Rozani (supra), the Federal Court propounded the test to determine legal insanity as follows: - January 27, 2025 27 “[46] Hence, when the defence of insanity is raised, there is a two-stage process before the defence of legal insanity is available to the accused. Firstly, there must be a finding that the accused was medically insane at the time when he committed the alleged offence. This is based on medical evaluation as explained in the earlier paragraphs of this judgment and lies with the medical expert to determine. This is not conclusive to qualify that the accused as being legally insane. To determine whether the accused is legally insane, one must proceed to the second stage, namely, whether the accused, by reason of his psychiatric condition, has lost his cognitive faculties to a degree that he is incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law. This stage is for the court to determine from the evidence adduced at trial. This is in line with the ingredients which are listed under s. 84 of the Penal Code, namely: (i) firstly, due to unsoundness of mind or mental illness at the time of commission of the act (medical requirement of mental illness); and (ii) secondly, the accused is incapable of knowing the nature of the act, or incapable of knowing that his act was wrong, or incapable of knowing that the act is contrary to law (loss of reasoning requirement). [47] Both the medical requirement of mental illness (first stage) and the loss of reasoning requirement (second stage) would constitute legal insanity, which is a complete defence. In other words, legal insanity means, at the time of the commission of the offence, the person should be suffering from mental illness and also have loss of reasoning power, which is clearly depicted in s. 84 of the Penal Code. [48] The mere abnormality of the mind or a partial delusion, irresistible impulse or compulsive behaviour of a psychopath does not accord any protection under s. 84 of the PC. The term insanity carries different meanings in January 27, 2025 28 different contexts and describes varying degrees of mental disorders. It does not mean that every person suffering from mental illness is exempted from criminal responsibility. A person who is odd, irascible, and whose brain is not quite right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or has fits of insanity at short intervals or that the behaviour is queer are insufficient to invoke the protection under section 84 of the PC. This falls under medical insanity. A court is concerned with legal insanity, and not with medical insanity. (See Bapu @ Gajraj Singh v. State of Rajasthan, Appeal (Crl) 1313 of 2006)”. (emphasis added) [73] However, I find the accused has failed to adduce evidence, let alone medical evidence, to prove the defence of legal insanity. [74] There is only a mere allegation by the accused that he was suffering from an abnormality of mind and that it had caused him to lose his cognitive faculties to a degree that he was incapable of knowing the nature of the act as being wrong or against the law. This certainly is insufficient to discharge the defence of legal insanity. [75] Guided by the above Federal Court’s decision, it’s my finding that the accused has failed to prove that he was suffering from “Intermittent Explosive Disorder”; therefore, he was medically insane at the time when he committed the alleged offence. Next, it is also my finding that the accused has failed to prove that because of his “Intermittent Explosive Disorder” condition, he had lost his cognitive faculties to a degree that he was incapable of knowing the nature of the act as being wrong or against the law. January 27, 2025 29 [76] Further, it’s my finding that DW2 is not a qualified psychiatrist who is competent to testify on the mental illness and unsoundness of mind of the accused. DW2 is not qualified to testify whether the accused had legal insanity at the time of the commission of the offence. [77] In this circumstance, DW2’s evidence does not support the defence case. [78] DW2 only first saw the accused on 17.1.2024, and she did not even know of the existence of the psychiatric report (P3) prepared by Hospital Permai for the Court. Yet DW2, in her evidence (DWS-2), commented on the state of mind of the accused on the date of the incident. DW2 is certainly not in a position to do so. [79] I also find that DW3’s evidence does not assist the accused's defence. From DW3’s evidence, it can be inferred that the accused was not suffering from any major mental illness which warranted DW3 or the family to bring the accused for treatment. The accused went about his life and had a job, wife and children. [80] Finally, coming to the evidence given by the accused. I find him to have a selective memory. His answers mainly concern the mental illness he claims to be suffering, the side effects of the medication on him and his unhappiness with being placed in Muar Correctional Centre. When the accused was asked about the place of the incident, the killing of the victims and the parang, he was quick to answer that he could not remember. However, when the accused was asked to answer about some other issues, he took his time and was slow to answer. From my observation of his demeanour and January 27, 2025 30 answers, I find the accused is aware and seems to know what to answer in his favour. [81] In conclusion, it's my finding that the accused has failed to discharge the burden to prove the defence of legal insanity on the balance of probabilities. OTHER ISSUES [82] The defence raised the issue concerning the non-production of CCTV recordings again by submitting that this has denied the accused the ability to defend himself concerning his state of mind on the date of the incident. [83] In my judgement, since there is overwhelming evidence of the accused killing both the victims, it is not necessary for the CCTV recording to be produced. Furthermore, the Investigating Officer (PW18) had already explained in his evidence why he was not able to procure the CCTV recording. [84] The defence also raised the point that the accused did not have a motive to kill both the victims. In my judgement, the motive is not needed to prove an offence of murder, but if the motive is successfully proven by the prosecution, then it would corroborate the prosecution’s case against the accused. Please see Dinishwaran Raman & Yang Lain lwn. PP & Satu Lagi Rayuan [2024] 5 CLJ 40 dan Dato’ Mokhtar Hashim & Anor. v. Public Prosecutor [1983] 2 CLJ 10. January 27, 2025 31 [85] Lastly, the defence raised the issue that the prosecution cannot rely on the Psychiatric Report prepared by Hospital Permai for the Court (P3) since they failed to call the maker to produce the same and also this has denied the defence from cross-examining the maker. [86] I find no merit in the defence argument. The reason why this report was obtained under Sections 342 and 324 of the CPC is to find out the mental state of mind of the accused at the time of his plea. [87] The “raison d’etre” of these sections was explained by the Federal Court in Hamzah Osman v. PP [2017] 7 CLJ 273 as follows: - “[8] It must be emphasised, that ss. 342 & 343 of the CPC is concerned with the mental state of mind of the appellant at the time of the plea. These aforesaid sections afford protection to an accused who is suspected of being of unsound mind and would be incapable of understanding the nature of the charges against him and the meaning and import of evidence adduced against him. The "raison d'etre" of these sections is that the mental state of the accused renders him in capable of making his defence thereby reducing his presence at the proceedings to a nullity. These sections do not apply to a situation where the accused is going to rely on a plea of insanity as a defence at the time of the commission of the offence. In our instant case a plea of insanity was never raised by the appellant. To encapsulate, we are dealing with the concept of fitness to plead, or fitness to stand trial, fitness to be tried and fitness to make defence which is the phraseology in ss. 342 and/or 343 of CPC, but which terms are used interchangeably. (See Muthurama Kesavarajah v. The Queen [1994] 4 CLJ 464; [1994] 181 CLR at p. 232 NB p. 234). [9] On the evidence, it is clear the High Court, after having investigated the fact of unsoundness of the appellant, exercised January 27, 2025 32 its powers under 342(3) and remanded the appellant for observation at Hospital Bahagia Tanjong Rambutan. We note from the notes that no Certificate of the Medical Director was forth coming nor was the same produced and or tendered in court. Apart for an oral assertion by the respondent which tantamount to a statement from the BAR table at the highest, there was clearly non-compliance with s. 342(1) of the CPC. In our view, the soundness or otherwise of the appellant to plead remained unresolved as the basis for the finding must be the certificate to state whether the appellant was fit to stand trial, although the Medical Director needed not be present in court to tender the same his certificate would be admissible. Since there was non-compliance of s. 343(1) of the CPC after a reference was made by the High Court under s. 342(1) of the CPC, in our view proceeding with the trial as was done in this case by the High Court rendered the trial a nullity.” [88] In the foregoing, upon considering all the evidence adduced in this case and that of the defence, I am satisfied that the prosecution has proven all the ingredients of the charge preferred against the accused beyond a reasonable doubt. The accused has failed to discharge the defence of insanity on the balance of probabilities and also cast reasonable doubt on the prosecution’s case. [89] Therefore, I find the accused guilty as charged and convict him accordingly. The accused is hereby sentenced to be hanged by the neck till he is dead in accordance with Section 277 of the Criminal Procedure Code. [90] In passing the death sentence, I considered the manner in which the accused went looking for his victims and the injuries inflicted on them. Firstly, he went to the coffee shop and, thereafter, he looked for another victim at a durian stall nearby. The accused inflicted January 27, 2025 33 multiple incised wounds to the face of the 1st victim and stabbed him 3 times. As for the 2nd victim, the accused sat on him and stabbed him in a public place despite being surrounded by police officers and the public. Both victims were unknown to the accused, and they were innocently murdered by the accused. [91] Having considered the Abolition of Mandatory Death Penalty Act 2023 and the submissions by both parties, I find the acts and conduct of the accused to be an exceptional case that warrants me to refrain from exercising discretion to impose an imprisonment sentence. Dated this 27th January 2025 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judge High Court of Malaya Muar Johor Darul Ta’zim Counsels: - For the Accused : Mohd Radzi Bin Yatiman For the Prosecution : Nur Sulehan binti Abd Rahman January 27, 2025 34 Solicitors: For the Accused Messrs Rahim & Lawrnee Suite No. 5, L15-05, PJX Tower No. 124-125, Tingkat 1 Jalan Sia Her Yam 85000 Segamat Johor [Ref. No.: RL/AC/CR2020/MTM/Huzairi] For the Prosecution Timbalan Pendakwa Raya Negeri Johor Pejabat Timbalan Pendakwa Raya Daerah Muar No. 9, Jalan Petrie Muar Trade Centre 84000 Muar Johor. [Ref. No.: ] Hearing Date : 27th March 2023, 16th January 2024, 25th March 2024, 23rd June 2024, 24th June 2024, 3rd July 2024, 4th July 2024, 18th August 2024, 5th September 2024, 18th September 2024, 22nd September 2024, 29th September 2024, 7th October 2024, 8th October 2024, 1st December 2024, 3rd January 2025, 20th January 2025. Decision Date : 27th January 2024