Sathiaraj A/l Kundaiah v Pendakwa Raya (B-05(M)-369-08/2022)

The appellant was convicted and sentenced to death by the High Court for the murder of an 85 year old Chinese female (the deceased), under section 302 of the Penal Code. The appellant being dissatisfied with his conviction and sentence has appealed to this court.

The charge on which the appellant was convicted read as follows: “Bahawa kamu pada 19.9.2019 antara jam lebih kurang 11.40 pagi hingga 1.00 petang, bertempat di No. 104, Blok 1, Rumah Pangsa PKNS, Kg Tasik Tambahan, 68000 Ampang, Selangor di dalam dalam Daerah Hulu Langat, di dalam negeri Selangor Darul Ehsan, telah melakukan bunuh dengan mengakibatkan kematian terhadap Wong Chooi (No. KP: 431109-71-5436) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.”

The circumstances which led to the appellant's conviction were briefly as follows. The prosecution’s case against the appellant was based on circumstantial evidence as there were no eyewitnesses to the crime.

The unchallenged evidence led by the prosecution established that on the morning of 19 September 2019, the appellant was seen loitering in the vicinity of the PKNS flats in Ampang where the deceased lived with her son. At that time, the deceased’s son was at work. The appellant saw the deceased walking alone and followed her into her flat where he committed the most egregious and cruel acts on the deceased. He tied up the deceased’s hands at the back and pushed a piece of cloth deep into her throat to prevent her from screaming and took two blouses and wrapped them tightly around her mouth. One of the blouses had covered her nose.

The appellant then proceeded to rape and sodomise the deceased. He then ransacked the premises and took some cash and a gold chain. He left, leaving her face down on the mattress gagged and with her hands tied up. His fingerprints and DNA were found on the deceased, her clothes and in the house.

The deceased’s son returned home from work at around 5pm. When he went into his room, he noticed his cupboard was broken, whereupon, he went into the next room to check on his mother, but found her dead with her face down on the bed, bound and gagged. He telephoned the police who came and cordoned off the crime scene.

The prosecution also led evidence that at about 9 am, the next day, the appellant had gone to Yong Fong, a pawn shop in Kampung Baru Ampang, to pawn the gold chain. As the appellant did not have his identity card with him, PW10, an employee there, advised him to come back with his identity card.

The appellant then went to a restaurant nearby, where he met PW8, a lorry driver. He pleaded with PW8 to help him as he urgently needed money for the medical treatment of his child who was seriously ill. He told PW8 that the chain belonged to him. PW8 relented and followed the appellant to the pawn shop, where the gold chain was pawned for RM900.00 using PW8’s identity card. PW10 issued a receipt in PW8’s name.

The appellant was arrested by the police on 9 October 2019 at his sister’s house in Bandar Puchong Jaya, Selangor on information received. The appellant was arrested based on CCTV footage obtained from a CCTV installed by one of the residents (PW7) at the PKNS flats. The appellant was questioned and subsequently led the police to the pawn shop where the gold chain was recovered.

The medical evidence established that the deceased had died from suffocation. The pathologist (PW19) found 31 injuries on the body of the deceased. In his report, under the heading of summary and conclusions, he observed; Summary and Conclusions

The deceased was an elderly Chinese lady who was positively identified by her son as the above-named person.

There was not pathological disease or toxicology that could have caused or contributed to her death at that particular moment in time.

Post mortem examination revealed that there were cloths applied externally to the mouth and nostrils, with presence of mouth gag (baby dress) and mucus in nostrils that could obstruct the airway breathing which resulted in asphyxia. This was evidenced by petechiae haemorrhages on the eyes and the face. The body also showed multiple bruises over the face, arms, forearms and hands caused by blunt trauma. The restraint was also found at the wrists and tied at the back. Abrasions and bruised around anus and urogenital regions showed evidence of physical penetration.

Her death was consistent with suffocation. In my opinion, the cause of death was: consistent with suffocation [11] Having considered the prosecution evidence on maximum evaluation and credibility of prosecution witnesses, the trial judge found that the prosecution had established a prima facie case against the appellant on the charges preferred against him and called upon him to make his defence. Defence [12] The appellant gave his evidence on oath. In his defence, he said that he was a homeless person and has been a drug addict since the age of 14. He worked on and off as a lorry attendant. [13] According to him, on the date of the incident, he had consumed drugs that a friend had given him free of charge as it was his birthday that day. He then went to the PKNS Flats in Ampang. Whilst, sitting on the staircase at the flats, he saw the deceased come out of her flat to pray at a shrine near the staircase. As she was walking back towards her flat, he followed her inside. [14] He maintained that he had no intention to kill the deceased and had followed her in search of something of value to steal. He admitted that on entering the flat, he gagged her and bound her hands and raped and sodomised the deceased. He also maintained that he could not remember what he had done to the deceased because of the drugs he had consumed earlier. Further, he did not know that his actions would cause the death of the deceased. He relied on his s.112 statement that he had given to the police after his arrest. It was inculpatory in nature. [15] The appellant did not call any witnesses to establish his defence of intoxication. His defence was that as a result of his drug intoxication, he was insane at the time of the commission of the offence and lacked the intention to cause the death of the deceased The trial court’s decision [16] In convicting the appellant, the learned trial judge rejected his defence of drug intoxication under s.85 of the Penal Code. He held that the mere fact that the appellant was under the influence of drugs was insufficient to constitute a plausible defence of intoxication against the preponderance of evidence indicating that the appellant to be normal and conscious of his act at the time of committing the crime. The trial judge further found that on the evidence that there was nothing at all about the appellant’s conduct that day that attested to him being in a state of intoxication to such a degree that he did not know that his actions were wrong or did not know what he was doing. He held that the evidence showed the appellant was aware and knew exactly what he had done to the deceased and had even acknowledged that he had gagged her to silence her from exposing his crime. [17] The trial judge held that s.85 was not available to the appellant for two reasons. First, that self-induced intoxication was not a defence under s.85

(2)(a). Second, the defence of intoxication under s 85(2)(b) of the Penal Code was not proven i.e. there was no evidence to show that he was suffering from intoxication-induced insanity to such a degree that he did not know that his actions were wrong or did not know what he was doing. Ground of Appeal [18] Before us, counsel for the appellant raised only one ground. It is his complaint that the appellant was prejudiced as a result of the trial judge’s failure to consider the defence of insanity under s.84 of the Penal Code as no sane person would have committed the acts done by the appellant. It is argued that the trial judge ought to have on his own volition raised the defence though not relied upon by the appellant at the trial, for two main reasons; a. First, it was clear that the trial judge had from the onset reason to suspect the appellant was of unsound mind as he had pursuant to s.342 CPC referred him to a government psychiatrist for observation and the trial only proceeded when he was certified fit to stand trial; and b. Second, the admissions made by the appellant’s in his s.112 statement and evidence in court pointed to insanity; [19] It is argued that the fact that no medical evidence was led by the appellant to establish insanity does not preclude the trial judge from raising the defence of insanity when it is patently clear from the evidence led by the prosecution that the appellant was legally insane when he committed the crime. Insanity under s.84 and s.85 [20] In our view, there is a difference between insanity or unsoundness of mind under s.84 Penal Code and insanity by reason of intoxication under s.85 of the Penal Code. For convenience, we reproduce s.84, s.85, and s.86 of the Penal Code which provide as follows: s.84 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. s.85

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 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

The person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. s.86

Where the defence under subsection 85(2) is established, then in a case falling under paragraph (a) thereof the accused person shall be acquitted, and in a case falling under paragraph (b), the provisions of section 84 of this Code, section 347 and 348 of the Criminal Procedure Code [Act 593] shall apply.

Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

For the purpose of this and the preceding section intoxication” shall be deemed to include a state produced by narcotics or drugs. Whether s.84 defence established? [21] Section 84 of the Penal Code carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. However, this onus on the accused, under s. 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts. In a criminal case, the accused has only to establish his defence on a preponderance of probability, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity. [22] To rely on the defence of insanity in s.84, it is incumbent on the accused to prove that this state of mind (the state of not knowing the nature of his act or not knowing that what he was doing was wrong or contrary to law) was due to unsoundness of mind, i.e. the presence of mental disease or defect, both of which are permanent conditions. The burden of proving this defence is on the accused. Until this is established, the court shall presume the absence of soundness of mind. [23] On the other hand, insanity in section 85(2)(b) refers to intoxication-induced insanity. The accused has to prove that his state of mind was due to either drug or liquor intoxication. This means, an otherwise normal person can, after the voluntary ingestion of alcohol or drugs, become so intoxicated that he becomes legally insane i.e. that he did not know that his actions were wrong or did not know what he was doing was contrary to law. This condition of insanity is only temporary as the accused person recovers from his delusions and hallucinations after the effect of the drug or liquor intoxication has worn off. Section 85(2) provides that self-induced intoxication, whether by drugs or alcohol, cannot provide a defence to a criminal charge unless the accused becomes so intoxicated to such a degree that he did not know the nature of his act, or that his actions were wrong or contrary to law. [24] In our view, the defence of insanity under s.84 does not avail the appellant because there is no evidence that he was suffering from any mental disorder, illness or defect at the time. As s.84 does not avail him, we fail to see how there can be a duty on the trial judge to consider this defence. [25] In any event, this issue of whether the trial judge can on his own accord raise the defence of insanity has been the subject of many judicial decisions. In Ibrahim bin Mohd v Public Prosecutor [2013] 1 MLJ 768, the accused had given evidence on oath, by reading out a handwritten statement which was admitted as exh D1. In exh D1, the accused admitted killing the deceased, by carrying out 'God's mission', based on the dreams that he had and other phenomena as guidance from God. No other evidence was adduced for the accused either through cross-examination of prosecution witnesses or the examination-in-chief of the accused himself. The accused raised the issue of unsoundness of mind before the trial judge only in the course of his submission. The trial judge rejected the defence as he found that the accused was well aware of what he was doing when he plunged the knife into the deceased's chest and convicted him. The accused appealed. [26] In dismissing the appeal, this Court observed: The issue of unsoundness of mind was raised only in submission. Except for exh D1, no other evidence was adduced for the accused either through cross-examination of prosecution witnesses or the examination-in-chief of the accused himself. That being the case, such defence need not be considered: see Public Prosecutor v Misbah bin Saat [1997] 3 MLJ 495 (HC). [27] In Public Prosecutor v Misbah bin Saat (supra), the High Court held that neither the prosecution nor judge could raise the issue of insanity in s.84, if the accused has not raised the issue as a defence. In this regard, it was observed: “It should further be pointed out that the principle that only the accused has the right to raise the defence of insanity if he so wishes is so well-recognized that it has been held that neither the prosecution nor the judge could raise the issue of insanity during a trial, if the accused had not himself raised this defence. In R v Dickie [1984] 3 All ER 173, the English Court of Appeal pointed out at p 178. … we can find no precedent on which we should be inclined to rely for assuming that the prosecution has such a right. The prosecution has a positive duty to prove if it can the allegation which it makes on the indictment. It has the power if the issue is raised by the defence to rebut by its own evidence the attempt by the defence to establish insanity. It has the obligation, if it has evidence in its possession of insanity which will assist the defence to establish that the defendant was in that condition when the crime was committed, to make that evidence available to the defence in good time, so that in its discretion it may make proper use of it.” [28] It is clear from the cases discussed above that even if there is evidence pointing to unsoundness of mind or insanity before the trial judge, there is no duty on the trial judge to raise it if the accused elects not to raise it. [29] We share the trial judge’s view that s.85(2)(a) of the Penal Code was inapplicable on the facts of this case as it was clear that the consumption of drugs by the appellant leading up to the killing was completely of his own volition. The sole question for the trial judge’s consideration at the trial thus was whether the appellant was suffering from intoxication-induced insanity to such a degree that he did not know the nature of his act, or that his actions were wrong or contrary to law. In this regard in para 48, 49 and 50 of his grounds of judgment, the trial judge noted: “[48] Adalah menjadi undang-undang mantap bahawa adalah menjadi tugas pada Tertuduh untuk membuktikan mabuk sebagai pembelaan. Mahkamah Perekutuan dalam kes Abdul Aziz Mohamed Shariff v PP (2010) 5 MLJ 733 mengatakan: …To prove intoxication, it is encumbered upon the defence to adduce sufficient evidence to convince the court that this had rendered the accused incapable of forming the necessary intention or knowledge to commit the crime charged, or that ‘he was by reason of intoxication insane, temporarily of otherwise, at the time when he committed the crime. [17] The existence of evidence that: (a) the appellant had consumed a large quantity of alcohol or that it was even mixed with toddy, coupled with (b) the presence of a strong smell of alcohol, and (c) the opinions of relatives who are [2010] 6 MLJ 759 at 768 not medically qualified, that the appellant was drunk is insufficient to constitute a possible defence of intoxication against the preponderance of evidence indicating that he had intended to cause death to the deceased… [49] Adalah juga menjadi undang-undang yang mantap bahawa Mahkamah akan menilai plea mabuk (plea of intoxication) dengan menimbangkan keterangan yang ada termasuk perlakuan Tertuduh sebelum, semasa dan selepas melakukan kesalahan itu (rujuk Francis Antonysamy v PP [2005] 2 CLJ 481; Abdul Aziz bin Shariff v PP [2010] 6 MLJ 795; PP v Ramasamy a/l Sebastian [1991] 75. [50] Fakta yang menunjukkan akan perlakuan Tertuduh sebelum, semasa dan selepas kejadian adalah normal sebagaimana dari keterangan bahawa: a) Tertuduh tidak menghadapi kesukaran dalam mengingati dan menceritakan apa yang dilakukan; b) Tertuduh menyedari ia masuk ke dalam rumah Si Mati untuk mencuri; c) Tertuduh mengetahui perbuatan menutup dan mengikat mulut Si Mati untuk tujuan supaya dia tidak menjerit; d) Tertuduh mengetahui tujuan dia mengikat kedua-dua tangan Si Mati supaya Si Mati tidak dapat membuka tutupan atau ikatan kain di mulutnya. (Keterangan Tertuduh semasa disoal balas); e) Tertuduh sedar merogol dan meliwat Si Mati dan Tertuduh telah mengaku salah atas kesalahan itu; f) Perbuatan Tertuduh menyelongkar almari bagi mencari sesuatu untuk dicuri sebaik saja selepas merogol dan meliwat Si Mati dan Tertuduh menjumpai rantai emas dan telah dicuri oleh Tertuduh; g) Sebaik saja keluar dari rumah Si Mati Tertuduh memajak rantai emas dan secara sedar meminta bantuan SP8 untuk menggadaikan rantai kerana Tertuduh tidak mempunyai kad pengenalan. Tidak ada keterangan dari SP8 yang mengatakan Tertuduh dalam keadaan mabuk; dan h) Tertuduh tidak ada membawa apa-apa bukti perubatan mahupun bukti perubatan yang mungkin dia mabuk dan dalam keadaan gila (insane) buat sementara.” [30] In the light of our views above, we agree with the trial judge that there was really nothing meritorious in the appellant’s submission that the appellant was legally insane at the time of the commission of offence. It was not in dispute that the appellant had, before the incident, consumed drugs. While he was 'high' because of the effect of drugs, he was in fact conscious of the surroundings and knew what he was doing. This was clear from his evidence. On the evidence the appellant’s ability to form intent was not impaired and there was no evidence of any drug related psychotic process. The learned trial judge has correctly found the appellant guilty as charged and convicted him. Conclusion [31] As regards sentence, in light of the Abolition of Death Penalty Act (Act 846), it is now no longer mandatory for the Court to impose the death penalty to everyone convicted for murder. With the amendment brought about by the Abolition of Death Penalty Act, the new s.302 of the Penal Code confers the court the discretion to impose the death penalty or life imprisonment of 30 to 40 years with caning. It is clear that the legislative purpose of the amendment is intended to make the sentence of imprisonment of 30 to 40 years the rule for an offence of murder and to limit the sentence of death for the most horrific and most exceptional cases. [32] Counsel for the appellant submitted that the death sentence has no reformative element and urged the court to commute the death sentence to imprisonment. On the other hand, the learned deputy contended that the appellant has in a most diabolic and cruel manner, ended the life of a weak and defenceless 85-year-old woman. He pointed out that the appellant had also pleaded guilty in the sessions court to the rape and sodomy of the deceased. He submitted that this is a fit case for the imposition of death penalty on the appellant as his actions against the deceased has shocked not only the judicial conscience but even the collective conscience of the society. [33] In our view, there is no denying that the deceased had died in an extremely gruesome manner. We agree with the deputy that the depraved acts of the appellant deserved the death sentence. [34] The learned trial judge has correctly found the appellant guilty as charged and convicted him. We therefore dismissed this appeal, affirmed the conviction and death sentence imposed by the court below. Dated: 3 April 2024 -sgd- (S.M. KOMATHY SUPPIAH) Judge Court of Appeal Malaysia Putrajaya Counsel/ Solicitors For the Appellant: Encik Hasshahari bin Johari Mawi Encik Muhamad Hafizan Shafuan bin Kamaruzaman [Messrs Hasshahari & Partners] For the Respondent: Mohd Fairuz bin Johari Deputy Public Prosecutor (Attorney General’s Chambers)