Pendakwa Raya v LIM POO TECK (W-05(LB)-519-12/2021)

The charge preferred against the Respondent reads as follows: “Bahawa kamu pada tarikh 21 Februari 2020 di antara jam 6.30 petang hingga 7.00 malam di No. 2700, Jalan lndah 10, Jinjang Utara, di dalam Daerah Sentul, di dalam Wilayah Persekutuan Kuala Lumpur, telah membunuh Lim Poh Ling No KP: 820810-14- 5396 dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan."

Dr. Saramah Binti Mohd Isa (SP7) a psychiatrist specialist from Bahagia Ulu Kinta Hospital, Tanjung Rambutan, Perak Darul Ridzuan had prepared a medical report (P42) and certified that the Respondent was fit to stand trial and able to defend himself.

When the charge was read and explained to him, the Respondent claimed trial to the charge.

In support of its case, the prosecution had called eight (8) witnesses to testify against the Respondent.

At the end of the prosecution case, the learned High Court Judge acquitted and discharged the Respondent without calling on him to make his defence on the ground of unsoundness of mind.

Dissatisfied thereto, the appellant appealed against the said decision.

The case of the prosecution was well laid out by the learned trial judge in his grounds of judgment which we reproduce below: “[1] The year 2020 will always be etched in the mind of SP2 as a black mark in his life. Coming back from work, all he wishes to do was to have a relaxing evening at home.

Alas, it was not to be 21.2.2020 was the day he witnessed a brutal attack on his mother, perpetrated by none other than his own uncle, which resulted in her death.

The unfortunate incident occurred at No. 2700, Jalan lndah 10, Jinjang Utara, Sentul Kuala Lumpur which happens to be the deceased's home. The deceased was set upon from behind by the accused who then viciously slashed her using an axe.

The accused was later arrested on the same day within the vicinity of Jinjang Police Station which he entered while chasing SP2. At that time, he was brandishing an axe and a parang in both his hands.

He was later charged for an offence under section 302 Penal Code for the murder of the deceased Lim Poh Liang who happens to be his sister.

A report from University Malaya Medical Center (UMMC) certified that the accused was suffering and receiving treatment for schizophrenia, from 1995 until he defaulted in 1998.

In April 2022, after he was charged in court and upon the application of his Learned Counsel, he was sent for observation at Hospital Bahagia Ulu Kinta, Tanjung Rambutan, Perak under section 342 Criminal Procedure Code.

A medical report from the said hospital stated that the accused was fit to stand trial and appreciate the right to enter a plea. When the charge was read and explained to him, he claimed trial

The deceased body was identified by SP6 the forensic pathologist who conducted the post mortem on the deceased. SP8 the investigation officer who was present at that time also made a positive identification.

Based on P35 the post mortem report, SP2 who is the deceased's son had also identified the body as that of Lim Poh Liang, the deceased.

SP6 testified that the course of death as "multiple slash wounds to the head and neck" (Luka koyak pada kepala dan leher).

In her report (P35) at pages 3 & 4 she listed 24 injuries sustained by the deceased under the heading "KESAN PERLUKAAN DAN KECEDERAAN" and confirmed that these are not self-inflicted injuries or wounds.

According to SP6 there exist also defensive injuries indicating the deceased was trying to ward off blows from sharp objects. When shown P22(a) a parang and P23(a) an axe, SP6 confirms that they are consistent with the nature of the injuries sustained by the deceased.

SP7 a psychiatrist from the said hospital in her oral evidence and her report P42 formed an opinion that the accused:

Encik Lim Poh Teck mengidap penyakit skozofrenia dalam tahap stabil (Schizophrenia in remission).

Semasa kejadian seperti yang didakwa pada 21 Februari 2020, beliau berada dalam keadaan mental yang waras dan sedar akan sifat dan akibat daripada perbuatannya serta mampu untuk mengetahui bahawa perbuatan tersebut adalah salah dan bertentangan dari segi undang-undang.

Keadaan mental beliau telah bertambah baik dengan rawatan yang diberi dan adalah stabil pada tarikh laporan ini ditulis. Beliau layak dihadapkan ke mahkamah untuk dibicarakan serta mampu untuk membela diri. [25] SP7 went on to describe and explain various tests and interviews conducted, which led to her finding and conclusion, during the accused's period of observation at the said hospital which ran from 2.4.2021 till 18.6.2021, the date P42 was prepared. She also confirmed that Risperidone tablet was prescribed to the accused to treat him. [26] Her finding at para 23(b) was challenged by the defence. During her cross examination she agreed that Risperidone tablet was prescribed to the accused as a form of treatment for his mental illness which was diagnosed as suffering from schizophrenia. [27] SP7 further confirmed that without this treatment, the accused's condition could not be managed and thus would affect his ability to mount his defence in court. [28] SP 7 in her examination in chief concluded that the accused was capable of knowing the nature of his act as he was not confused after the incident. This is what SP 7 said: “Saya ada melihat rakaman video yang menunjukkan keadaan OKT semasa beliau sampai ke balai polis. Di mana beliau berseluar pendek dan memegang kapak dan parang di tangan beliau di mana kedua-dua alat ini digunakan oleh beliau sebelum kejadian untuk melakukan pertukangan. Menurut beliau, beliau ada membuat rumah untuk kucing di hadapan rumah sebelum mangsa masuk ke dalam rumah. Peristiwa yang berlaku semasa kejadian sehingga selepas kejadian itu juga telah diceritakan oleh anak mangsa sendiri yang merupakan saksi yang kami dapat melalui panggilan telefon. TPR: ..... Yang Arif, daripada temubual dengan Encik Lim Pao Teck dan juga saksi yang berada di situ iaitu anak tertuduh yang kami dapat, dan juga melihat daripada rakaman video tersebut, kesimpulan yang telah saya lakukan berdasarkan seksyen 84 di mana lepas kejadian beliau merasa terkejut selepas beliau berlakunya kejadian seperti didakwa itu apabila beliau ada orang lain dan mengejar mereka. Kalau ikut maklumat yang saya dapat daripada anak actually mereka mengumpan beliau untuk ikut mereka sampai ke balai polis. ltu maklumat yang saya perolehi. Sebab selepas kejadian anak ada memanggil beberapa orang kawan lagi dan mereka berlari ke balai polis jadi Encik Lim Pao Teck ikut sebab itu sampai ke balai polis. Biasanya jika seseorang individu itu mengalami gangguan mental yang teruk ataupun impact mental capacity biasanya lepas kejadian yang didakwa, mereka akan macam bingung di mana berdasarkan maklumat yang saya perolehi dan temubual OKT, sorry, dengan Encik Lim Poo Teck, didapati beliau tidak berada dalam keadaan tersebut." [29] It was on this basis that SP 7 formed an opinion that the accused was capable of knowing the nature of his act, thus her reference to section 84 Penal Code. Findings at the End of the Prosecution’s Case [8] After hearing the evidence of eight (8) prosecution witnesses and the submissions of counsel, the learned trial judge ordered the acquittal and discharge of the Respondent without calling for his defence. In his judgment, the learned trial judge stated as follows: [36] It is clear that even at this stage, the prosecution stage, the accused is relying on the defence of unsoundness of mind as provided under section 84 Penal Code. [37] The finding and conclusion of SP 7 that the accused is of a sound mind, capable of knowing the nature of the act, and knows what he is doing is wrong and contrary to law is challenged by the accused's counsel during cross examination. [38] SP7 concluded that the accused was capable of knowing the nature of his act as he was not confused after the incident based on a CCTV recording shown to her showing the accused's conduct in the vicinity of Jinjang, police station and telephone conversations she had with SP2, apart from observations and interviews conducted with the accused whilst the accused was in the hospital. [39] SP4 who was on guard duty at Jinjang police station on the date of the incident in his evidence stated that on that particular day the accused dressed only in short pants came running into the vicinity of the police station, chasing after a group of 7-8 people whilst holding a parang in his right hand and an axe in his left hand. He was acting in an aggressive and threatening manner towards them. SP4 agreed·under cross examination to the term 'mengamuk' as suggested by learned counsel, to describe the accused's condition at that time. [40] SP 7 also admitted that Risperidone tablet was prescribed to the accused as a form of treatment for his mental illness which was diagnosed as suffering from schizophrenia. SP 7 admitted, without this treatment, the accused's condition could not be managed and thus would affect his ability to mount his defence in court. [41] Prior to this incident, the accused was treated at UMMC for schizophrenia as can be seen in P41 a medical report. He was treated from 4th April 1995 until 18th December 1998 when he defaulted his appointment. [42] SP2 in his evidence stated that the accused who was staying in the same house was not home when he came back from work and the attack took place approximately 10 minutes after that when the deceased walked into the house. According to SP2 the accused suddenly attacked her from behind. He did not hear any conversation between those two prior to the attack. [43] This piece of evidence is material and relevant as SP7 alleged that during her telephone conversation with SP2, she was informed that prior to the attack, the accused was at the house, building a cat house for his cat. Both the parang and axe were used in his carpeting work. He was only wearing a short pants, without any shirt on at that time. [44] The contradiction between SP2 and SP7’s version, of what had occurred prior to the attack was never explained by either witness. It would appear that the attack on the deceased was sudden and without any provocation. [45] Since the evidence of SP 7 is her opinion, it falls upon this court to assess and scrutinize all the evidence available before accepting such opinion [46] Having scrutinized the evidence of SP 7, SP2 and SP4, as discussed above at para 37, 38, 40 - 43, and D26 a police report lodged by the deceased on 17.2.2020 stating that the accused has mental problem, I concluded that SP7’ s opinion regarding the state of mind of the accused at the time of the incident was not supported by sound premises. Therefore, I rejected that part of her opinion. [47] Based on the evidence adduced by the prosecution, oral and documentary, I find that the accused had, on the balance of probability proved that at the time of the commission of the offence he was of unsound mind and he does not know the nature of his act. [48] I am satisfied that the accused had caused such injury which lead to the death of the deceased as defined in any one of the limbs under section 302 Penal Code. [49] The accused however, based on reasons stated above, is acquitted and discharged by reason of unsoundness of mind and sent to Hospital Bahagia Ulu Kinta, Tanjung Malim, Perak for further treatment as provided under section 348 Criminal Procedure Code.” The Grounds of Appeal [9] Before us, the findings are being attacked on five (5) main grounds which the learned Deputy Public Prosecutor claimed goes to the root of the erroneous acquittal of the Respondent:-

Yang Arif Pesuruhjaya Kehakiman Mahkamah Tinggi telah terkhilaf dari segi undang-undang dan fakta apabila telah melepaskan dan membebaskan dan membebasakan Responden di akhir kes pendakwaan tanpa dipanggil untuk membela diri bagi satu pertuduhan di bawah seksyen 302 Kanun Keseksaan dan selanjutnya memerintahkan agar Responden diletakkan dalam jagaan yang selamat di Hospital Bahagia Ulu Kinta, Perak selama yang diperkenankan oleh Duli Yang Maha Mulia Sultan Kelantan menurut peruntukan seksyen 348 Kanun Tatacara Jenayah.

Yang Arif Pesuruhjaya Kehakiman Mahkamah Tinggi telah terkhilaf dari segi undang-undang dan fakta apabila di dalam penghakimannya telah memutuskan bahawanya Responden telah ada melakukan perbuatan sepertimana di dalam pertuduhan, namun telah tersalah arah apabila tidak mengarahkan Responden untuk dipanggil membela diri.

Yang Arif Pesuruhjaya Kehakiman Mahkamah Tinggi telah terkhilaf dari segi undang-undang dan fakta apabila gagal mengarahkan Responden untuk membela diri sebaliknya telah memerintahkan agar Responden diletakkan dalam jagaan menurut peruntukan seksyen 348 Kanun Tatacara Jenayah di akhir kes pendakwaan. Pembelaan yang akan diwujudkan oleh Responden iaitu berada di dalam keadaan mental yang tidak waras dan tidak sedar akan sifat dan akibat perbuatan perlu dibuktikan di akhir kes pembelaan dan bukannya di akhir kes pendakwaan.

Yang Arif Pesuruhjaya Kehakiman Mahkamah Tinggi telah terkhilaf dari segi undang-undang dan fakta apabila telah menolak segala keterangan dan bukti-bukti yang dikemukakan oleh pihak pendakwaan terutamanya keterangan daripada SP7 bahawa sajanya Responden sewaktu kejadian berada di dalam keadaan yang waras dan sedar akan sifat dan akibat perbuatannya telah membunuh simati.

Yang Arif Pesuruhjaya Kehakiman Mahkamah Tinggi telah terkhilaf dari segi undang-undang dan fakta apabila pembelaan ketidakwarasaan (insanity) dibangkitkan maka beban pembuktian terletak ke atas Responden bagi membuktikan ketidakwarasan itu selaras dengan peruntukan seksyen 105 Akta Keterangan 1950 dan Responden seharusnya dipanggil bagi membela diri bagi membuktikan pembelaan tersebut atas imbangan kebarangkalian. Kedudukan undang-undang mengenai pembelaan ketidakwarasan (defence of insanity) ini telah mantap. [10] Putting it briefly, the complaint by the Appellant arise from the finding made by the learned trial judge at the end of the prosecution’s case, where the learned trial judge on 21/12/2021 had opined regarding the issue of unsoundness of mind raised by the Respondent (see notes of proceedings at pages 193,194, Volume 19 RR: “Ini keputusan saya, ya. Jadi daripada keterangan yang telah dikemukakan, Mahkamah ini berpuashati bahawa tindakan ataupun perbuatan OKT telah menyebabkan kecederaan yang mana dalam keadaan biasa telah menyebabkan kematian terhadap Lim Poh Ling iaitu simati dalam kes ini. Rujukan kepada keterangan SP2 dan SP6. Walau bagaimanapun, Mahkamah ini berdasarkan kepada keterangan SP7, P42 dan D26, berpuashati dan mendapati bahawa tertuduh ketika kejadian tidak mempunyai mental kapasiti dan tidak mengetahui jenis perbuatan yang dikatakan menjadi kesalahan atau apa yang dilakukan olehnya adalah salah atau bertentangan dengan undang-undang iaitu elemen mens rea tertuduh telah gagal dibuktikan oleh pihak pendakwaan. Oleh itu, saya memutuskan telah gagal untuk membuktikan satu kes prima facie terhadap tertuduh. Tertuduh dengan ini dilepaskan dan dibebaskan dari pertuduhan dan selaras dengan peruntukan di bawah seksyen 348 KTJ tertuduh dengan ini dihantar ke Hospital Bahagia Ulu Kinta untuk rawatan lanjut. Semua ekshibit berbentuk dokumentari untuk simpanan Mahkamah dan lain-lain dikembalikan kepada pihak pendakwaan.” Law on Insanity [11] The distinction between legal and medical insanity has been explained by the learned authors of Ratanlal and Dhirajlal's Law of Crimes 26th edn in the following terms at p.307: “Medical insanity' and 'legal insanity'. - There is a good deal of difference between 'medical insanity' and 'legal insanity' and courts are concerned only with the legal and not the medical aspect of the matter. It is not every kind of frantic humour or something unaccountable in a men's action, that points him out to be a mad man, to be excepted from punishment. It is not mere eccentricity or singularity of manner that would suffice the plea of insanity. Abnormality of mind is not by itself sufficient to show that the accused must have acted while of unsound mind. Such exemption can be claimed only when the insane person is incapable of knowing the nature of the act or he is doing either wrong or contrary to law.” [12] In the case of PP v. Shalima Bi [2016] 2 CLJ 231, the Respondent was charged in the High Court at Johor Bahru with murder. She was alleged to have poured hot oil on the deceased, causing her death. She claimed trial to the charge and was acquitted and discharged at the close of the prosecution case without her defence being called. The learned trial judge found that no prima facie case had been established against her as she was insane at the time she committed the act. [13] Dissatisfied with the decision, the prosecution appealed to the Court of Appeal and succeeded, where upon the Respondent was ordered to enter her defence before the same judge. The learned trial judge after duly calling for her defence again acquitted and discharged her, on the same ground that she was insane at the time she committed the act. Pursuant to section 348(1) of the Criminal Procedure Code, he ordered the Respondent to be detained at the Tampoi Hospital, Johor Bahru for treatment. [14] On appeal by the Public Prosecutor, the Court of Appeal through the judgment delivered by Abdul Rahman Sebli JCA (as he then was) set aside the order of acquittal and discharge, convicted and sentenced her to death. [15] However, on appeal, the Federal Court unanimously allowed the Appellant’s appeal and reinstated the orders of the High Court. However, the apex court did not provide a written judgment. [16] Abdul Hamid Embong JCA (as he then was) in John Nyumbei v. PP [ 2007] 2 CLJ 509, writing for the Court of Appeal gave his findings regarding the defence of insanity raised by the Appellant:

The law on unsoundness of mind as a complete defence in our criminal jurisprudence is, as was correctly submitted by learned counsel for the Appellant, contained in s. 84 of the Penal Code. It states:

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.

This section exempts a person found to be insane of any criminal responsibility if it is found that he is "incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law" (see commentary in Ratanlal and Dirajlal's Law of Crimes, 25th edn, p 280). The learned authors there further commented that a person "is not protected if he knew that what he was doing was wrong, even though he did not know that it was contrary to law, and also, if he knew what he was doing was contrary to law even though he did not know that it was wrong.

Thus, under s. 84 Penal Code, criminality has to be determined according to that legal test and not merely by the mental state of an accused person according to the medical test.

There is a distinction between the notion of a legal insanity and medical insanity. Not every form of insanity exempts a person from criminal responsibility. Only legal insanity provides that exemption under s. 84 Penal Code. The specie of insanity addressed by s. is the one that impairs the cognitive faculties of a person. Its nature and extent must be that to make the offender incapable of knowing the nature of his act, or that he is doing is wrong or contrary to law. The criminality of an act therefore must be determined by this test laid down in s. 84 as distinguished from the medical test (see Ratanlal and Dhirajlal's Law of Crimes, 25 edn. p. 280). As was stated recently by this court through the judgment of Ariffin Zakaria JCA (as he then was) in PP v. Muhammad Suhaimi Abdul Aziz [2004] 1 CLJ 378: It is settled law that the defence of insanity under s. 84 is concerned with the accused's legal responsibility at the time of the alleged offence and not with whether he was medically insane at that time. See Pendakwa Raya v. Zainal Abidin bin Mat Zaid [1993] 1 CLJ 147; PP v. Misbah bin Saat [1998] 1 CLJ 759; [1997] 3 MLJ 495.

When the defence of insanity is raised the court thus needs to consider two matters, namely:

whether the accused person has successfully established, as a preliminary issue, that at the time of committing the act he was of unsound mind, and

(ii) if he was of unsound mind, whether he has proven that his unsoundness of mind was of a degree to satisfy one of the tests earlier mentioned ie, that the accused was incapable of knowing the nature of his act as being wrong or against the law. (see Ratanlal and Dhirajlal's Law of Crimes, 5th edn., p. 289 et seq).

It is also settled law that the burden of proof rests on the person who raises the defence of insanity (seeJuraimi bin Hussein v. PP [1998] 2 CLJ 383 also Baharom v. PP [1960] 1 LNS 9; [1960] 26 MLJ 249). And it is only the accused person who has this right to raise a defence of insanity. It is not open to the court or the prosecution to raise it (see PP v. Misbah bin Saat, supra).

The standard of proof upon the accused raising the defence of insanity is on a balance of probabilities, as in a civil case (Rajagopal v. PP [1976] 1 LNS 122; [1977] 1 MLJ 6, Goh Yoke v. PP [1969] 1 LNS 48; [1970] 1 MLJ 63). So, if the Appellant here is able to show, either from the prosecution or other evidence that he committed the crime but was at that time insane, he cannot be culpable by virtue of s. 84 Penal Code. [17] Similarly, the Court of Appeal through the judgment of Suriyadi Halim Omar JCA (as he then was) in Kofri Mustafar v. PP [ 2010] 9 CLJ 519, when addresing the same provision expressed the same sentiments further said: [18] Section 84 of the Penal Code legislates that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Even though the Appellant has alluded to the term 'insane' in his submission, the phrase promulgated in s. 84 is 'unsoundness of mind'. "Insanity" which speaks of 'disease of the mind', is a term used in Mc Naghten [1843] 10 Cl & Fin 200 or generally referred to as Mc Naghten's Rule. [19] Section 84 demands that: i. at the time of doing it; ii. the person by reason of unsoundness of mind; iii. is incapable of knowing; iv. the nature of the act; or v. that he is doing what is either wrong or contrary to law. [20] Two limbs entitle him to an acquittal. First, if at the time of doing the act, by reason of unsoundness of mind, he did not know the nature of the act, or if he knew the nature of the act did not know that it was either wrong or contrary to law (Criminal Law in Singapore and Malaysia Text and Materials by KL Koh, CMV Clarkson and NA Morgan). For purposes of this appeal, the crucial time of having an unsound mind therefore is at the time of the brutal attack, and not before or after the act (John Dawlat Moon [1927] 29 Cr LJ 393); [1928] AIR (P) 363). A plea of unsoundness of mind at the time of trial will not avail an accused person (Nota Ram [1866] PR No 56 of 1866; The Law of Crimes by Ratanlal, p. 165). Regardless of the other relevant prerequisites of s. 84, it is incontrovertible that unless this preliminary factor of unsoundness of mind is established first, this defence cannot prevail. [21] It is established law that the burden of proof lies on the Appellant that is if he wishes the court to believe that he was of unsound mind at the time when he committed the offence. Needless to say, this defence of unsound mind needs to be established at the earliest possible moment ie, at the prosecution's stage. This is to avoid any allegation of afterthought. [22] Under s. 105 of the Evidence Act, the legal burden is on the Appellant to establish the fact that he committed the act in a moment of unsound mind (Jayasena v. R [1970] 1 All ER 219). In an English case, Woolmington v. DPP [1935] AC 462) the court reiterated that for a defence of insanity, the legal burden of proof on the balance of probability, is placed on an accused person. Our Decision [18] The crucial issue which lies at the heart of this appeal is the order of acquittal at the end of the prosecution’s case after the learned trial judge had indeed satisfied in his finding that the Respondent had committed the act specified in the charge. Despite that finding, the learned trial judge acquitted and discharged the Appellant without his defence being called at all. With respect, learned trial judge had patently fell into error by deciding an outright acquittal. [19] Undoubtedly, his reasons for doing so was based on the considerable weight he had given to the medical testimony of SP7, SP7’s medical report (P42) and D26, the deceased Jinjang Police Report No: 3469/20 dated 17/2/2020 received in evidence in concluding that the Respondent was insane at the time he committed the act. As a result of which, the learned trial judge ordered the Respondent to be detained at the Hospital Bahagia Ulu Kinta, Tanjung Malim, Perak for further treatment as provided under section 348 Criminal Procedure Code for treatment. [20] Much had been strenuously canvassed before us by the learned counsel for both sides to this important point. The question which arises in our instant appeal is whether it was open for the learned trial judge to order the acquittal at this stage of the trial upon relying on such medical evidence standing alone before the court. [21] Having being satisfied that the offence of murder had been established by the prosecution, it is incumbent upon the learned trial judge to direct the Respondent to state his defence. Failure to do so render his ultimate decision fatally flawed. To our mind, it is premature for him to dealt with the medical situation at this stage. The learned trial judge should refrain from making decision of an acquittal at the close of the case for the prosecution. He should have continued with the trial and hear the defence version. By primarily focusing his judicial mind on SP7’s expert opinion and factual evidence as to the circumstances leading to SP2’s mother's death, which led to his conclusion thereon, the learned trial judge had fallen into a serious error of law warranting appellate intervention. [22] For the Respondent to earn an acquittal, learned trial judge armed with the facts, will have to consider and evaluate from all angles whether by reason of medical insanity, the Respondent was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law only until the end of the trial after the defence has given evidence and close its case. Unfortunately, this did not take place here. [23] For completeness, however, if the Respondent elected to remain silent and called no evidence, the court must convict him since the hypothetical position obtained pursuant to section 180 of the Criminal Procedure Code that the prosecution evidence would not and could not be challenge or rebutted, has become a reality. [24] In this context, it is pertinent to emphasise that at the prosecution stage, expert medical opinion assumed little value or significance as the question of whether the Respondent was incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law is a matter to be inferred from the proved facts and circumstances and not from expert medical opinion. Legal insanity is not for the medical witnesses to decide however eminent they may be. That onus is upon the defence and it is to satisfy the court on the balance of probabilities. It is purely a question of fact which rests upon substratum of oral evidence, the credibility of which is entirely for the learned trial judge to determine after the close of the defence’s case with the aid of the medical evidence. Conclusion [25] Having regard to all the foregoing reasons and after a careful scrutiny of the notes of proceedings of the trial and the submissions made, we unanimously allowed the Appellant appeal. The orders of acquittal and discharge is set aside. The case to be remitted to the Kuala Lumpur High Court before the same judge for continuation of the trial and the Respondent to be called to enter upon his defence. The Respondent is to be remanded in prison until trial. Date: 11 December 2023 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : Tan Guat Cheng (GC Tan & Co. (Penang)) For the Respondents : Eyu Ghim Siang (Deputy Public Prosecutor)