The Insanity Defence in Malaysia


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 res ipsa loquitor, that is the Latin phrase for the thing speaks for 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 I’m going to prattle on here because we coming to the best part of this forum after this session – lunch! So let’s 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.

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.

Let’s 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 PP v Han John Han [2007] 1 SLR(R) 1180 Choo Han Teck J held there was 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 Rajagopal v PP [1976] said this:

In this connection we were guided by the decision of the Court of Criminal Appeal in England in the case of James Frank Rivett [1951] 34 Cr App R 87. It was held in that case that the issue is one to be 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 doesn’t 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 ‘Criminal Law in Malaysia and Singapore’ (2012) LexisNexis. I agree with this view.