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The Insanity Defence in Malaysia
malaysia-today.net
Original Title: The Defence of Insanity under Malaysian Law and the
problems with the current position.I delivered this talk at the recent Death
Penalty roundtable seminar held on 4 April 2014 in what I hoped was a
clear, eloquent and stylish manner.
Fahri Azzat, Loyar Burok
Insanity is a defence for most things. From the mundane not speaking
coherently, delusional, not turning up for work to the dramatic seriously
wounding or killing someone. And it is at this dramatic end that is under
discussion today. You may or may not be pleased to know that the law
presumes all of us as sane until proven otherwise. There are some
however for whom a persuasive case can be made out to prove an
exception to the rules on the grounds of , that is the Latin phrase for the thing speaks for res ipsa loquitor
itself.
I shall be answering 2 questions in my talk today:
The first is, what is the law on the defence of insanity?
The second is, what are some ways this defence can be improved?
[And I will then round off with hopefully something brilliantly insightful. After which you may rise to give me
a standing ovation. Some may passionately shout the title of my talk. Some may cry for an encore of the
first paragraph of the introduction because they like Latin. Hopeful, I admit. More likely you will be
wondering how long Im going to prattle on here because we coming to the best part of this forum after
this session - lunch! So lets start.]This part of the speech was left out because of the sombre feel that
morning.
What is the law on the defence of insanity?
Even though we use the phrase insanity, the legal term is unsoundness of mind. In practice, however, the
two are used interchangeably as I will today. The defence is found in section 84 of the Penal Code (PC),
which reads as follows:
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.
There are 3 elements to successfully raising this as a defence:
Firstly, when the offence was committed, the accused was of unsound mind/insane.
Secondly, that insanity mentally impaired the accused.
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Thirdly, it impaired him to the point that he was incapable of knowing:
the nature of his act
that what he did was wrong
that what he did was contrary to law
Before we proceed to consider the elements, I want to talk about the burden of proof. The standard of
proof for the accused to prove insanity is on a balance of probabilities. That means, looking at the facts,
he was probably insane. This is known as the civil standard of proof. As opposed to the criminal one
which would require the accused to prove his insanity beyond a reasonable doubt, a far heavier burden.
Lets deal with the first element. What is unsoundness of mind supposed to mean?
The term is not defined in the Code. The courts have not defined it either. They have taken a I know it
when I see it approach. Perhaps this is best since whether the accused was insane when he committed
the offence is a question of fact, to be decided not only in light of the clinical evidence but his conduct
before and after the event. In short the Judge must consider the whole sequence of events, which is
crucial to determining whether the accused was insane when he committed the offence.
I digress here a moment to point out that the Courts have jealously guarded its right to determine whether
the accused is insane. In [2007] 1 SLR(R) 1180 Choo Han Teck J held there was PP v Han John Han
nothing in principle preventing a court from finding unsoundness of mind as of fact without any clinical
evidence. And his Lordship would be in keeping with the tradition in England. The Malaysian Federal
Court decision of [1976] said this: Rajagopal v PP
In this connection we were guided by the decision of the Court of Criminal Appeal in England in the case
of [1951] 34 Cr App R 87. It was held in that case that the issue is one to be James Frank Rivett
determined by a jury and not by medical men of whatever eminence; and where a jury has found a
prisoner guilty despite strong evidence by medical men of the highest standing that he was insane at the
material time, the Court of Criminal Appeal will not interfere with the verdict, unless it is satisfied that no
reasonable jury could have found a verdict of guilty in the particular case.
In short, insanity is a factual finding to be made by the Judge. Reports from medical practitioners only
tends to prove, it doesnt prove it. The law is concerned only with legal insanity, not medical insanity.
One view is that unsoundness of mind is integrally connected with the cognitive incapacity described in s
84 [Cognitive means your ability to think, understand, remember and learn] A straight reading of s 84
requires the mental malfunctioning to be of such a nature and intensity as to render the accused
completely incapable of knowing the nature of his or her act or that the act was either wrong or contrary to
law. This is promulgated by Stanley Yeo, Neil Morgan and Chan Wing Cheong in their excellent textbook
(2012) LexisNexis. I agree with this view. Criminal Law in Malaysia and Singapore

When Malays adopt Chinese values

You are kafir, so what?
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Behind the veil of religion