Public Prosecutor v Pham Ti Tuyet Mai (B-05(LB)-181-05/2016)

3.1 The respondent is a Vietnam national working in Malaysia as a waitress at a night club karaoke. She stayed with six others in a double storey house bearing address as in the charge. Her housemates are Ha Ngoc Lich (SP1), Wong Zey Hong, Dang Thi Thu Ha, Tron Diem My, Nguyen Thi Son and Huynh Thi Y (the deceased).

3.2 On the fateful day, SP1, after having breakfast, went up to her room to rest. On the way up to her room, SP1 saw the deceased was sleeping below the staircase. At that material time, SP1 saw the respondent on her way down from her room situated at the upper floor of the house.

3.3 After five minutes, SP1 heard the scream from the deceased who uttered words: “why do you want to kill me?”.

3.4 SP1 went to look what had actually happened. She saw the respondent was holding two knives in each hand. One knife was used to cut the deceased’s left neck and the other knife was used to stab at the back of the deceased repeatedly.

3.5 After seeing that, SP1 was in state of fear and returned to her room to inform the incident to Tran Diem May (“Tran”). Tran immediately called Michael Wong Ho Sang (“Michael”) for help. Michael came to the house with his brother after about 10 minutes. SP 1 went down to open the door for them. While SP1 was walking past the deceased’s body, SP1 saw the accused was sitting beside the deceased’s body which was motionless. SP1 also heard the respondent asked the deceased why was the deceased sleeping. The respondent also laughed at the deceased.

3.6 After a while, the respondent became very quiet and remained at same place but without holding any weapon.

3.7 Michael’s brother in law carried the deceased to a car. All of them, including other residents of the house, went together to Hospital Sg Long, Kajang and left the respondent alone in the house without locking the doors of the house.

3.8 The deceased was pronounced dead after 30 minutes of her arrival at the Sg. Long Hospital.

3.9 At 2.28 p.m, ASP Chay HuYan (SP2)(Investigating Officer) was informed about the deceased’s death. SP2 together with one ASP Mobin and photographer rushed to the Hospital Sg. Long.

3.10 The pathologist, Dr. Abdul Karim bin Tajudin, conducted the post mortem examination on the body of the deceased. He concluded that she died mainly due to the cut on her neck. According to the pathologist, although there were several stab wounds on the deceased’s body, the main cause of death was the cut or incised wound of her neck which had severed her carotid artery (See Post Mortem Report (Ex. P37). Finding at the end of the prosecution’s case [4] At the end of the prosecution’s case, the learned trial Judge ordered the respondent to be acquitted without her defence being called on the ground of mental disorder. [5] Being dissatisfied with the impugned order, the PP appealed to the Court of Appeal. The Court of Appeal (Mohtarudin Baki, Prasad Sandhosam Abraham and Abdul Karim Abdul Jalil JJCA) ordered that the defence of the appellant be called in accordance with the procedures specified in law. [6] Accordingly, the learned trial Judge called the respondent to enter her defence. Version of the defence [7] The respondent elected to give written unsworn statement from the dock. The respondent sets up insanity as her defence. Her version of the facts is as follows – “Nama saya Pham Ti Thuyet Mai, saya warganegara Vietnam. Umur saya 32 tahun. Saya datang ke Malaysia tahun 2012. Saya dulu bekerja sebagai pelayan di pusat hiburan. Dulu saya banyak minum arak dan ambil dadah. Saya ambil pil ‘ecstasy’. Saya selalu sakit dan rasa takut, perasaan saya selalu terganggu. Saya ada masa rasa sangat suka dan ada masa rasa sangat sedih dan takut. Saya selalu rasa macam ada orang mahu membunuh saya dan saya dalam bahaya. Saya tak boleh tahan, dan saya balik ke Vietnam untuk satu bulan bagi rawatan tradisional. Selepas satu bulan, saya rasa saya boleh balik ke Malaysia dan kerja semula. Mula-mula saya tak sakit, tapi lama-lama, saya rasa macam gangguan emosi lagi, saya perasaan bahawa saya macam dengar ada bunyi dalam kepala saya, saya selalu nangis dan tak mahu campur kawan-kawan lain. Sekali lagi, saya ambil pil ecstasy setiap malam, saya juga tak boleh tidur malam. Saya selalu bangun malam, jalan-jalan dalam rumah saya. Saya selalu mimpi macam-maam perkara yang menakutkan. Pada hari saya bunuh Huynh Thi Y, saya hanya boleh ingat, saya bangun tidur, saya dan Huynh Thi Y sudah ubah jadi hantu. Saya dengar macam-macam suara dalam kepala saya dan saya tengok, saya mesti mahu bunuh Huynh Thi Y supaya itu hantu boleh mati, dan saya perlu bunuh Huynh Thi Y untuk bukti sama ada Huynh betul-betul sudah jadi hantu. Saya masuk dapur untuk ambil dua pisau, tapi saya tidak mahu bunuh, saya jalan-jalan dalam ruang dapur dan ruang tamu. Saya sangat runsing saya dengar macam-macam suara dan lihat macam-macam orang. Saya takut, saya ada naik tangga mahu masuk bilik, tapi saya tak tahu kenapa, saya tak masuk bilik, saya turun balik, saya terus pergi dekat Huynh Thi Y dan saya tikam dia. Itu sahaja saya ingat, tapi saya selepas itu ada panggil dia supaya bangun dari tidur. Saya tengok banyak darah. Saya duduk dengan Huynh Thi Y, saya panggil dia lagi. Saya ada cakap dengan kawan lain, tolong panggil Huynh Thi Y suruh bangun mahu keluar, tapi mereka lari. Saya sehingga beberapa hari, saya tak ingat saya sudah tikam mati Huynh Thi Y. Saya jerit, nangis bila tahu dia sudah mati. Saya kawan baik dia, kami kerja di tempat yang sama dan tidur bilik yang sama. Sehingga hari ini, saya sedih dan keliru apa yang telah berlaku. Itu sahaja saya mahu cakap.”. [8] The defence called a medical doctor, Dr. Hjh. Robaiah binti Mohd. Salleh (SD2) to support the respondent’s case. Findings at the close of defence’s case [9] The learned trial Judge concluded that the respondent had successfully put forth the defence of insanity as the mental capacity of the respondent during the commission of the offence was affected by the consumption of ecstasy pills. Consequently, the respondent was incapable of knowing what she was doing was either wrong or contrary to the law during the commission of the offence. [10] The learned trial Judge found that the reasoning given by SD2 who had examined the respondent to be credible and inherently probable. [11] As we have alluded earlier, the learned trial Judge acquitted the respondent on the ground that although she had committed the act, she was incapable of knowing the nature of the act to be wrong or contrary to the law by reason of unsoundness of mind. [12] The learned trial Judge then ordered the respondent to be kept in safe custody at Hospital Bahagia, Tanjung Rambutan, Perak under section 348(1) of the CPC pending the order to be made by the Ruler under section 348(2) of the CPC. The Appeal [13] Learned DPP submitted that the evidence adduced by the defence is insufficient to establish her claim of insanity at the time she killed the deceased. [14] Learned DPP posited that since insanity is a condition of the mind, it is not susceptible of the usual means of proof. As no man can know what is going on in the mind of another, the state or condition of a person’s mind can only be measured and judged by his or her behaviour. Thus, the vagaries of the mind can only be known by means of which we read the thoughts, motives, and emotions of a person, and then determine whether the acts conform to the practice of people of sound mind. [15] Learned DPP took us through the following facts in support of her contention that the respondent was not completely of unsound mind at the time of the commission of the offence –

15.1 The exhibits such as the knife (photo as in Exh.P39(28)) used to stab the deceased’s backbone which was found in a bag (photo as in Exh.P39(27)) near the entrance (photos as in Exh.P39(25) and Exh.P39(26)) clearly showed that the respondent was deliberately trying to hide the knife. The forensic team also found a black plastic bag at the living room (photo as in Exh.P39(29)) and inside the bag there were orange mattress, black/brown blanket, blue and red/green pillows tainted with the deceased’s DNA. A reasonable inference that could made was that the respondent had attempted to eliminate evidence;

15.2 In Exh.P38 (Laporan Pemeriksaan Tempat Kejadian) under the part “19. Ulasan”, there was a mop soaked inside a pail in the kitchen. It could be inferred that the respondent had cleaned that floor as only little blood trace was found at the floor of the living room. This showed that the respondent was trying to destroy the evidence remained at the scene; and

15.3 There were six knives hidden under mattress (photos in Exh.P39(43) – (53) in PW1’s room. PW1 had explained that she did not keep the knives and had no knowledge about the existence of the knives in her room. After analysis, four of the six knives were found to have been tainted with the deceased’s DNA profiles. The act of the respondent in hiding the weapons used to kill the deceased showed that she was aware of what she was doing at the time of the commission of the offence. [16] Learned DPP further contended that establishing the insanity of an accused often requires opinion testimony which may be given by a witness who is intimately acquainted with the accused; has rational basis to conclude that the accused was insane based on his own perception; or is qualified expert, such as a psychiatrist. [17] In this connection, SD2 who examined the respondent testified as follows at pages 22 – 23, RR, Volume 2 – “TPR: Saya rujuk kepada report doktor, mukasurat 3 tadi. Dalam kesimpulan ini, setuju doktor nyatakan di sini, Cik Pham dia tidak menghadapi penyakit mental yang serius? SD2: Saya setuju bahawa saya menulis ayat ini. Saya setuju. TPR: Dan ini adalah hasil daripada pemerhatian dan juga doktor punya kajian terhadap pesakit sepanjang pesakit berada di bawah tahanan Hospital Bahagia, setuju doktor? SD2: Saya setuju bahawa saya telah menulis ayat ini tapi di sini saya mungkin terangkan. Saya perlu terangkan, Yang Arif bahawa di dalam psychology world, language orang-orang psikiatri ini apabila kita cakap penyakit mental yang serius ini kita maksud tiga penyakit yang saya cakap tadi itu. Mah: Itu maksudnya. Skizofrenia, bipolar mood disorder and depression. So, this was the message yang di tulis di sini. Iaitu bukan tiga penyakit mental yang serius. Mah: Makanya tidak menghadapi penyakit mental yang serius dalam laporan kita bermaksud bukan tiga penyakit tadi? Kita bukan cerita pasal tahap. We’re not talking about tahap serius tak serius, kan? Yang tadi itu cerita mengenai tahap. Mah: Yang saya faham tahap disoal tadi. Itu semua tahap. Mah: Yang dimaksudkan di sini bukan tahap. Bukan tiga tadi? Bukan.”. [18] Learned DPP submitted based on the expert opinion above, the respondent did not suffered serious/severe mental illness that entitled her to rely on section 84 of PC. According to learned DPP, to be exempted under this section, mere proof of mental illness alone is not enough. It should be clearly proved that –

(i) the respondent was of unsound mind;

“Credibility of SD2 The Prosecution had attempted to challenge the evidences given by SD2 and discredit her expertise. However, the Prosecution did not make any application to provide other expert witness to counter this before examination of SD2. Neither did the Prosecution call any expert evidence to rebut the evidence of SD2 at this trial.

In my considered view, this Court is entitled to accept the opinion of SD2 and D133 on its face value unless the prosecution had called another expert evidence in rebuttal to contradict her.

Essentially, the expert opinion given in evidence at this trial is a matter of fact. In this aspect, the Court could ask the relevant questions to SD2 for clarification to enable SD2 to provide cogent reason for her conclusion (See Dr. Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61). This Court is not bound by the expert opinion and could for its own opinion to form its findings.

The Prosecution also submitted that the time of examination conducted by SD2 was too long after the incident resulting the findings might be inaccurate. Be as it may, this Court would reach the same findings because the Court actually made evaluation basis by scrutinizing all the available evidences meticulously and not based on medical opinion solely.

On the issue of delay of the doctor in examining the Accused, in my opinion, this is a strong disinclination to criticise the accuracy of the medical examination due to police’s negligence. Indeed, the investigating Officer has a duty to uphold fairness towards the Accused throughout the investigation process. Hence following the arrest and statement recording, the Investigating Officer should have sent the Accused immediately to the medical doctors for examination. His failure should not be used by the Prosecution to complaint and used for the Prosecution’s advantage.

Therefore, after reading the facts together with assistance of SD2’s opinion, this Court found that reasoning given by SD2 is accepted as being credible and inherently probable.”. [29] Concerning the submission of learned DPP that the respondent was in fact capable of knowing what she was doing was either wrong or contrary to the law at the time of the commission of the offence since the respondent had tried to cover her wrongdoing by eliminating the evidence at the scene, the learned trial Judge observed at pages 30 - 31 as follows – “40. On the issue that the Accused had hidden the knife (photo as in P39(28)) in the bag (photo as in P39(27)) near the entrance (photos as in P39(25) and P39(26)) and the mattress, blanket, pillows in the black plastic bag at the living room (photo as in P39(29)), the Court found all these were purely assumptions made by the Prosecution without any evidence.

Furthermore, the mop inside the pail was not sufficient to establish that it was the Accused had used it to clean the scene since there were blood traces still remained there. The scene could have been totally cleaned if the culprit intended to wash away the evidence since there was evidence that the Accused was left alone when everybody had left for the hospital.

The averment about six knives were hidden under mattress (photos in P39(43) – (53)) in PW1’s room was unsustainable since the Prosecution had not tendered proof to confirm that it was the conduct of the Accused.

I am mindful, if the above-mentioned acts had actually been carried out by the Accused, it was the state of mind of the Accused after the incident and not during the time of the commission of the offence. Therefore, it is still relevant for the purpose of determining what was the state of mind of the accused at the time of the commission of the offence.

More importantly, this Court had taken into account that the Accused could have fled away from the scene since she was left alone in the house after the incident if the Accused knew what she was doing was contrary to law. No one can stop or hinder the Accused from running away since she was left alone in the house at that significant time.

Pursuant to the above, it can be readily decided that the Accused truly did not understand the nature of her act at the time of killing the deceased.”. [30] This Court notes that at the very first opportunity, the respondent already raised the defence of insanity and remained steadfast that she was deprived of intelligence at the time of commission of the offence. Therefore, the respondent’s defence of insanity was not a mere afterthought. [31] That, however, it is not the end of the matter. Learned DPP submitted that it was clear from the evidence adduced that it was the respondent who voluntarily consumed the ecstasy pills in large quantity. Self-induced ecstasy pills is not a defence under the law. [32] It is trite that the absence of the legally relevant capacities due to voluntary intoxication from alcohol or drugs is not considered as basis for insanity defence as stated in section 85(ii)(a) of the PC (See P.P v Mohd Nor Riza Mat Tahar [2009] 4 CLJ 691). It can only be considered as a basis for a defence when substance had been administered to the accused involuntarily. The underlying moral and legal principle for this exception is the premise that an insane should only be excused from punishment because of his or her lack of control over the presence of the mental illness and because the mental illness was brought on due to external circumstances. Thus, individuals who “voluntarily” take substance leading to the deprivation of relevant capacities should be held responsible for their actions. However, mental illness which are the direct effect of psychoactive substances such as ecstasy are considered as a basis for insanity defence under the law. [33] Before departing with this instant appeal, we must emphasise that the granting of absolution of criminal liability on the basis of insanity should be done with utmost care and circumspection as the court must keep its guard against murderers seeking to escape punishment through a plea of insanity. The case at hand, however, does not indicate that the defence of insanity was merely used as a convenient tool to evade culpability. Conclusion [34] We are satisfied that the learned trial Judge had made the correct decision based on the applicable law and the evidence adduced before him in acquitting the respondent on the ground of insanity, and in making the order under section 348(i) of the CPC. [35] Consequently, the PP’s appeal is dismissed and the decision of the learned trial Judge is affirmed. So ordered. Dated: 28th February 2018 sgd. (DATO’ SETIA MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia Counsel for the Appellant: Iswa binti Tonie Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers No. 45, Persiaran Perdana Precinct 4, 62100 Putrajaya. Counsel for the Respondent: Muhammad Rafique bin Rashid Ali Tetuan Law Practice of Rafique No. 25-3A SunwayMas Commercial Centre Jalan PJU 1/3B, 47301 Petaling Jaya Selangor.