MALAYSIA

IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING

CRIMINAL CASE NO. KCH-45B-1/7-2017

BETWEEN

PUBLIC PROSECUTOR …. COMPLAINANT

AND

ULIN ANAK BLUKOK ….. ACCUSED

JUDGMENT

Introduction

[1] The accused was charged with the murder of three family members on 22nd
January 2017. The charges were tried jointly. For sake of convenience, I shall
set out below the three charges against the accused:

First Charge

That you, on January 22, 2017 between 3.00 pm and 3.30 pm, at Rumah Kampung
Tumuk, Batu 8 Jalan Matang, in the District of Kuching, in the State of Sarawak, did
commit murder of one Muhamad Joe ak Gindi (NRIC: 931125-13-6901), and that you
thereby had committed an offence punishable under Section 302 of the Penal Code
Act ( Act 574).

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 Second Charge

That you, on January 22, 2017 between 3.00 pm and 3.30 pm, at Rumah Kampung
Tumuk, Batu 8 Jalan Matang, in the District of Kuching, in the State of Sarawak, did
commit murder of one Daud bin Abdullah (NRIC:470612-13-5819) and that you
thereby had committed an offence punishable under Section 302 of the Penal Code
Act ( Act 574).

Third Charge

That you, on January 22, 2017 between 3.00 pm and 3.30 pm, at Rumah Kampung
Tumuk, Batu 8 Jalan Matang, in the District of Kuching, in the State of Sarawak, did
commit murder of one Noraini binti Abdullah, and that you thereby had committed an
offence punishable under Section 302 of the Penal Code Act ( Act 574).

[2] The prosecution called a total of 14 witnesses. The prosecution led evidence
to prove that the accused killed the victims by slashing them with a parang and
then setting fire to the premises in which their bodies were found. The evidence
of the crucial eyewitnesses may be summarized as follows.

[3] The victims in the three charges are an elderly couple and their grandson in
law. The elderly couple are Daud bin Abdullah (victim in the second charge)
and Noraini binti Abdullah (victim in the third charge). They lived in Kampung
Tumug, Mile 8, Jalan Matang. Their son and daughter in law (P.W. 13 and P.W.
12) lived in an adjoining house. The children of P.W. 13 and P.W. 12 also lived
in the said house. The victim in the first charge is Muhamad Joe ak Gindi. He is
the son in law of P.W. 13 and P.W. 12 and the grandson in law of the deceased
elderly victims. Muhamad Joe ak Gindi also lived in the adjoining house with
his in laws.

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[4] P.W. 13 told the court that on the day in question he was making a fish trap
in the living room of the house. The accused who is known to his family entered
the house with a parang and swung it at him. P.W. 13 attempt to avoid it but he
was slashed at the elbow. The accused then attempted to slash the top of his
head. His son in law, Muhamad Joe ak Gindi came to his aid but the parang hit
his neck instead. The accused then struck Muhamad Joe ak Gindi twice above
the waist with the parang. P.W. 13 took the opportunity to escape to his
parents’ house next door. He ran towards the kitchen and then ran past the
bushes behind the house to seek help. He was seriously injured and was
hospitalized for two months.

[5] P.W. 12 who is the wife of P.W. 13 witnessed the brutal attack on her
husband and her son-in-law. When the accused went out of the house to pursue
her husband, she brought her daughter who is the wife of Muhamad Joe ak
Gindi (P.W. 10) and two children to the kitchen to escape through the backdoor.

[6] P.W. 11 is the elder son of P.W. 12 and P.W. 13. When he saw the accused
attacking his father and brother in law with a parang, he quickly pushed his
sister inside a room and locked it from inside. He then jumped out of the
window and got out of the house. It was then that he saw the accused slashing
his grandmother (Noraini binti Abdullah) who was at the top of the staircase
outside her house. His grandmother collapsed after she was struck with the
parang. He saw the accused slashing his grandmother twice. He said the
accused then went to the kitchen of his grandparents’ house. He heard him
switching on the stove. Then he saw the accused entering the living room and
burning the sofa cushion. He said his bedridden grandfather was inside the
house that time.

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[7] P.W. 10 who is the sister of P.W. 11 gave similar evidence. Her husband is
the deceased victim Muhamad Joe ak Gindi. She said that on the day and time
in question, she was in the house with her family members. Her mother shouted
that somebody had entered the house with a parang. Then her brother (P.W. 10)
pushed her into room and locked the door. However, from the window she saw
the accused slashing her grandmother with a parang. After that her mother
(P.W. 12) opened the kitchen door to let her escape from the house. As she ran
with her mother, her younger brother and daughter to the kitchen door, she saw
her husband lying on the floor in the living room. He was not breathing that
time and was bleeding profusely. While taking refuge at a neighbour’s house,
she heard the sound of a gas explosion. The house was ablaze after that.

[8] The investigating officer (P.W. 14) of the case said that his team found three
burnt bodies at the crime scene. He said the bodies are that of the victims in the
three charges as they were positively identified by family members. The bodies
were recovered from two houses that were gutted by fire.

[9] P.W. 3 (Dr. Norliza binti Ibrahim) who is a government pathologist

performed the post mortem examination on all the three victims. In respect of
the victim in the first charge (Muhamad Joe ak Gindi), she found that the body
was so charred that she could not ascertained the cause of death. However, she
opined that the victim died before the fire started. This is because she did not
find any soot in the larynx, trachea and major airways of the victim. The body
of the victim in the second charge was also charred by the fire. She could not
determine the cause of death. However, she could not detect soot in the major
airways of the deceased. Therefore, she opined that the victim died before the
fire started. In respect of the victim in the third charge (Noraini binti Abdullah),
P.W. 3 said that the body was also charred but she found an irregular slash
wound on her back. The wound cut the underlying muscle up to the right
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scapula and the T2 vertebrae body (chest back bone). She also did not detect
soot in the major airways of the victim. She concluded that the cause of death
was blood exsanguination due to sharp force trauma.
[10] P.W. 5 who is a qualified fire investigator from the Fire Department
examined the cause of the fire at the two houses in question. He opined that the
fire started in the living room of the elderly victims. He said that the source of
ignition was a lighter and based on the evidence of P.W. 11, he concluded that
the act of burning the furniture cushion in the living room started the fire.

[11] The accused was arrested by P.W. 4 (Insp Mohd Rafi bin Mohamad Jaraee)
on the day in question at about 6.50 p.m. He was in his hut which is situated in
the jungle area near Jalan FAC Matang, Padawan. At the time of his arrest, he
held a parang in his hand. The parang was sent for DNA analysis. P.W. 8 (Rina
bt Mohd Nawi) who is a Scientific Officer from the Chemistry Department
carried out DNA analysis. The DNA profile developed from the stains found on
the parang matched the DNA profile of the victim in the third charge (Noraini
binti Abdullah).

Whether prima facie case?

[12] The elements of the offence of murder are found in sections 299 and 300 of
the Penal Code. Section 299 defines culpable homicide as follows:

Whoever causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide.

[13] Section 300 reads as follows:

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 Except in the cases hereinafter excepted, culpable homicide is murder-
(a) if the act by which the death is caused is done with the intention of
causing death;
(b) if it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the
harm is caused;

(c) if it is done with the intention of causing bodily injury to any person,
and the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or

(d) if the person committing the act knows that it is imminently dangerous
that it must in all probability cause death, or such bodily injury as is
likely to cause death, and commits such act without any excuse for
incurring the risk of causing death, or such injury as aforesaid.

[14] The prosecution must adduce credible evidence in respect of the following
elements to establish a conviction:

1. That the three victims died.

2. That the accused caused their deaths.
3. That the act of the accused in causing the said deaths came within
the ambit of any one the four circumstances enumerated in section
300(a) - (d) of the Penal Code.

[15] The test of a prima facie case is whether the prosecution had adduced
credible evidence to prove each ingredient of the offence which if unrebutted or
unexplained would warrant a conviction (section 180 of the Criminal Procedure
Code).

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[16] In the case of PP v. Mohd. Radzi bin Abu Bakar [2006] 1 CLJ 457, the test
of a prima facie case is stated as follows:

“..Ask yourself the question: If I now call upon the accused to make his
defence and he elects to remain silent am I prepared to convict him on the
evidence now before me? If the answer to that question is "Yes", then a prima
facie case has been made out and the defence should be called. If the answer
is "No" then, a prima facie case has not been made out and the accused should
be acquitted”.

I shall now consider whether the prosecution had adduced credible evidence
that supported the elements of the charge.

Identity of victims

[17] In my opinion, the prosecution has tendered irrefutable evidence to prove

that the charred bodies recovered from the two houses in question belonged to
Muhamad Joe bin Abdullah, Daud Bin Abdullah and Noraini Bin Abdullah who
are the victims in the three charges.

[18] P.W. 13 told the court that Daud Bin Abdullah who is his father was in the
house at the material time. His father was paralysed from the waist down and
was confined to his bed. P.W. 13 said that the accused attacked him and his son
in law (Muhamad Joe bin Abdullah) with a parang. His son in law collapsed to
the floor after that. P.W. 12 also witnessed the attack on Muhamad Joe bin
Abdullah. P.W. 11 said that the accused entered the second house after
attacking his father, brother in law (Muhamad Joe bin Abdullah) and
grandmother (Noraini Bin Abdullah) and set the sofa cushion in the living room

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on fire. P.W. 11 and his sister (P.W. 10) saw the accused slashing Noraini Bin
Abdullah with a parang at the staircase of the second house. P.W. 11 said that
his elderly grandmother collapsed after the savage attack on her. P.W. 10 also
noticed that her husband, Muhamad Joe bin Abdullah was lying on the floor
when she escaped from the house. She said he was bleeding badly and was not
breathing. Thus, two victims, i.e. Muhamad Joe bin Abdullah and Noraini Bin
Abdullah were seen collapsing at the two houses after being attacked by the
accused. The other victim, although not seen by the witnesses at the material
time, was believed to have remained in his room as he was bedridden. Soon
after that, both houses were engulfed in a fire. No other person or persons were
seen going into or coming out of the said two houses around that time or were
reported missing afterwards. The investigating officer and the pathologist
testified that despite the charred condition of the bodies, family members still
manage to identify the said three victims. In the premises, I am satisfied that the
identity of the victims had been proven by the prosecution.

Whether accused caused their deaths?

[19] Three witnesses (P.W. 11, P.W. 12 and P.W. 13) testified that the accused
slashed the neck of Muhamad Joe bin Abdullah with a parang. P.W. 12 said
that the accused also struck the victim twice on the waist with the same parang.
His evidence is corroborated by P.W. 11 and P.W. 13. P.W. 10 said that she saw
her husband on the floor. He was bleeding badly and not breathing. As his body
was badly burnt by the time of the post mortem, the pathologist could not
determine the cause of death. However, she said that Muhamad Joe bin
Abdullah died before the fire started as soot was not detected in his major
airways.

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[20] The pathologist gave details of her professional qualifications and her
lengthy experience in conducting autopsies. She has testified numerous times in
court and I have no reason to doubt her expertise. In this case, she gave a good
reason why she opined that the victims had died before the fire started. Soot
was not detected in the airways and therefore she presumed they had died
before the fire started. Her opinion evidence is also supported by the testimony
of some of the eyewitness. They had seen two of the victims, i.e. Muhamad Joe
bin Abdullah and Noraini bin Abdullah being attacked brutally with a parang
by the accused prior to the blaze that gutted the two houses in question. In
respect of the Noraini bin Abdullah, the pathologist was able to determine that
she died of blood exsanguination caused by sharp force trauma. The prosecution
also adduced compelling corroborative DNA evidence to support their case that
it was the accused who launched the attack on the family members who lived in
the said two houses. When the accused was arrested, he held a parang in his
hand. The DNA profile developed from one of the blood stains on the parang
matched the DNA profile of Noraini bin Abdullah.

[21] In respect of the fire, P.W. 11 gave credible evidence that he was able to
see the accused setting the sofa in the living room of his grandparents’ house on
fire. It may well be that P.W. 11 agreed during cross-examination that he did
not see the accused switching on the gas stove in the kitchen as contended by
counsel for the accused. He only heard the sound of switching on of the stove.
But he also said that he saw through the glass sliding door the accused returning
to the living room and setting the sofa on fire. I see no reason to doubt his
evidence. P.W. 11 was right outside the house that time.

[22] The evidence that his grandfather (Daud Bin Abdullah) lived in the house
and was bedridden was unchallenged. His body was so badly burnt that the
pathologist could not ascertain the cause of death. However, she had also said
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that he died before the fire started. Therefore, although no eyewitness saw the
accused attacking Daud Bin Abdullah with a parang, it can be inferred that the
accused had caused his death. No one else was in the house at the material time.
The accused alone had gone on rampage attacking the occupants of both houses.
At any rate, even if it is assumed that the cause of death of Daud Bin Abdullah
was the fire and not the parang attack, the unassailable evidence of P.W. 11 is
that the taccused started it. Therefore, the accused had caused his death as well.

[23] To recapitulate, the opinion evidence of the pathologist taken together with
the sworn testimony of the P.W. 11, P.W. 12 and P.W. 12 that I recounted
above leads to the irresistible inference that it was the accused who caused the
deaths of the said three victims. I must add that I have no reason to disbelieve
the evidence of the eyewitnesses in this case. They are victims of a horrendous
crime committed against their family members and therefore would have no
reason to lie in order to frame an innocent man.

Whether the act of the accused came within section 300(a) to (d) of the Penal
Code?

[24] The element of intention or knowledge which is commonly referred to as

the mens rea element is an essential ingredient of the offence of murder. Section
300(a) to (d) requires either the element of intention or knowledge. Thus a bare
killing would not amount to murder (see Hashim Bin Mat Isa v Public
Prosecutor [1950] MLJ 94).

[25] Intention or knowledge is a matter of inference. In the instant case, it is not

known if the initial parang attack on Joe bin Abdullah caused his death. His
body were too charred for the pathologist to ascertain the cause of death.
However, eyewitness had said that the accused had swung his parang at the
vital parts of his victims, i.e. the head and the neck. They saw the victim
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collapsing helplessly to the ground. The pathologist testified that the cause of
death in respect of Noraini bin Abdullah was sharp force trauma. Soon after
that, the accused started a fire in the house. Thus, the accused would have
known that his acts of slashing the victims with a parang and starting a fire
would in all probability cause their deaths. As for Daud bin Abdullah who was
bedridden, the accused would have known in all probability that he would die in
the fire as well. Therefore, the act of the accused in causing the death of the
victims would certainly come at least under the fourth limb of section 300 of the
Penal Code in addition to the other three limbs as well.

[26] For all the above reasons, after conducting a maximum evaluation of the
evidence, I was satisfied that the prosecution had established a prima facie case
against the accused in respect of all three charges in question. I called upon him
to enter his defence accordingly.

The defence

[27] The accused elected to give evidence on oath. He called only one witness
to support his evidence, i.e. the government psychiatrist who treated him when
he was sent for observation to hospital for three months by the court.

[28] In his sworn evidence, the accused did not deny killing the victims and
setting the two houses on fire. However, he spoke of his encounters and
conversation with “shadows”. At first, he said that he was acquainted with P.W.
13 (Hassan bin Daud). He said that he had a good relationship with P.W. 13. He
sat down with P.W. 13 on several occasions to drink alcohol. But P.W. 13’s
mother (Noraini binti Abdullah) did not like him. Later, he said that P.W. 13
and others he was acquainted with in the village were not real people but were
actually “shadows”. He said the “shadow of Hassan” asked him to leave his

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house or else he will be killed. He then said that the “shadows” in his dreams
did all sort of things. Later, he said that it was not a dream but that the people
looked like shadows to him.

[29] He also said that his mother who had died when he was six years old asked
him to come “home” if nobody liked him. In respect of the day in question, he
said he wandered in front of the victims’ houses. He recalled that P.W. 13’s
mother (Noraini bt Abdullah) told him that if he still wanted to drink alcohol
with P.W. 13, it is better for him (the accused) to kill all the family members.
She said the same thing on the day in question. It was the third time that she had
said that. This is the reason he launched the attack on the family with a parang
and set their houses on fire. His evidence on this matter is as follows:

[30] During cross-examination, he repeated that he killed the victims in

question. His reason was that it was because P.W. 13’s mother told him to do
so. He agreed with the suggestion of the Deputy Public Prosecutor that he knew
that it was wrong in law to do so. But he said that he lost patience with P.W.
13’s mother who told him can kill them all if he still wanted to bring P.W. 13
out to drink alcohol. He said that he has no other friends in that area apart from

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P.W. 13, P.W. 11 and Muhamad Joe ak Gindi (deceased). His evidence on this
point is as follows:

A:

[31] The only other witness for the defence was Dr. Chhoa Keng Hong. He is a
qualified government psychiatrist attached to Hospital Sentosa in Kuching. His
expertise was not questioned by the learned Deputy Public Prosecutor (DPP).
He treated the accused when he was under observation at the hospital for three
months. He tendered his psychiatric report. It was marked as D2. He said when
he examined the accused, he found that he was aware of the nature of his act
and that he knew what he was doing was wrong. At first, to a question by
counsel for the accused, he agreed that the finding was not in relation to the
time of incident. The exchange between D.W. 2 and counsel for the accused is
as follows:

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[32] Later during questioning by the learned DPP, D.W. 2 corrected himself and
said that his finding on the mental condition of the accused refers to the time of
the index offence as well. He said the finding was based on the history provided
by the accused pertaining to the time of the offence, evidence provided by the
police as well as the series of psychological assessment that he conducted. It is
captured in the following answer he gave during cross-examination by the
learned DPP:

[33] To a question by the court, D.W. 2 said that the accused was of sound mind
at the time of the commission of the offence.

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Whether any burden on the accused at the end of the case?

[34] In our system of law, there is generally no burden upon the accused to
prove his innocence. At the conclusion of the trial, the Court shall consider all
the evidence adduced before it and shall decide whether the prosecution has
proved its case beyond reasonable doubt. Even if the court disbelieves the
accused person or his witnesses, it is duty bound to ask the question whether
such defence has raised a reasonable doubt on the whole of the prosecution’s
case (see Mat v PP [1963] 1 MLJ 263). In the premises, in order to earn an
acquittal at the close of defence, the only burden cast on the accused is to raise a
reasonable doubt as to his guilt.

[35] However, the accused bears the evidentiary burden of proving the
circumstances that may bring his defence within one of the general exceptions
in the Penal Code. Section 105 of the Evidence Act 1950 is in the following
terms:

When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the general exceptions in the Penal
Code, or within any special exception or proviso contained in any other part of the
same Code, or in any law defining the offence, is upon him, and the Court shall
presume the absence of those circumstances.

[36] For example, the burden of proof rests on the accused if he raises the
defence of insanity under section 84 of the Penal Code (see John a/k Nyumbei v
PP [2007] 7 MLJ 206, Juraimi bin Hussin v Public Prosecutor [1988] 1 MLJ
537 and Baharom v Public Prosecutor [1960] MLJ 249). The standard of proof
is on a balance of probabilities. With these directions in mind, I shall proceed to
consider the defence of the accused.

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[37] In the instant case, after the accused was called to enter his defence, he did
not dispute the actus reus element of the offence. He admitted killing the
victims and burning down the two houses. The only defence that he proffered
was the defence of insanity afforded by section 84 of the Penal Code 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.

[38] I shall now refer to some well-known authorities that considered the
defence of insanity. The determination of legal insanity is exclusively under the
purview of the court. Shankar J in PP v Zainal Abidin bin Mohd Zaid [1993] 1

CLJ 147, at page 149 said as follows:

The issue as to whether an accused person was insane in the sense required by s
84 of the Penal Code is a matter for the court. 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 only. It
can be discharged from evidence adduced from the prosecution or from
defence witnesses. It is a lighter burden than that cast upon the prosecution
who must prove the charge beyond reasonable doubt.

[39] The Court of Appeal in the case of John a/k Nyumbei v PP (supra) drew a
clear distinction between medical insanity and legal insanity in the following
passage:

13. 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

16
 responsibility. Only legal insanity provides that exemption under s 84 Penal
Code. The specie of insanity addressed by s 84 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 (25th Ed) p 280).

[40] The recommended approach to be adopted by the trial court is stated in the
following passage of the judgment of the Court of Appeal in the above-
mentioned case:

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

(i) 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 i.e. 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 Ed) p 289

et seq).

[41] The above-mentioned approach was quoted with approval and re-stated in
the more recent Court of Appeal case of Ting Ing Soon v PP [2019] 7 CLJ 341.

Medical insanity

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[42] As I said earlier, the accused did not dispute causing the deaths of the
victims in question. He claimed that he was acquainted with the “shadows” of
people in the village. However, his initial reference to P.W. 13 and the others
were not in terms of “shadows” but real people. Only after sometime, he said
they are all “shadows”.

[43] It is crucial to note that the accused did not say that he did not know the
nature of his act that he perpetrated on the day in question. He even said that he
attacked the family members in question because P.W. 13’s mother (Noraini bt
Abdullah) was not happy that he brought P.W. 13 out to drink alcohol and that
she said he (the accused) might as well kill them all if he persisted in doing so.
The accused said that on the day in question, the P.W. 13’s mother said the
same thing. He admitted losing his patience that day. The accused also said that
he was aware that it was legally wrong to kill. He said as follows during cross-
examination:

Q: Do you know what killing is?

A: Make them die.

Q: Do you know that killing people is wrong under the law?

A: Yes.

Q: But why you still killed them?

A: Because I lost my patience.

Q: You lost your patience on what Hassan’s mother said to you, is that correct?

A: Because she ever told me that for one and two times I can still be patient, but
for the third time which was on the day of incident, I cannot stand it anymore.

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 Because Hassan’s mother stopped me from bringing Hassan for alcoholic
drinks. (emphasis supplied)

[44] It is apparent that the accused’s testimony to support his purported insanity
defence is unconvincing. He claimed to have dealt with “shadows” but he was
not consistent about it. He also referred to them as real people especially P.W.
13 with whom he wanted to go out for drinks. He was annoyed that P.W. 13’s
mother (Noraini binti Abdullah) disapproved. He knew the nature of his act, i.e.
the act of killing. He even agreed that he knew that it is against the law. He was
aware that he caused the deaths in question. He was aware that he burned down
the houses in question. It appears that his act in causing the deaths in question is
an act of retaliation against P.W. 13’s disapproval of her son (P.W. 13) going
out with him to consume alcoholic drinks.

[45] The medical evidence that the accused tendered showed that he suffered
some psychotic illness. The accused was arrested on 17th January 2017, i.e. the
same day that the victims died. He was brought for a three-month observation
period to Hospital Sentosa on 13th September 2017 pursuant to a court order.
D.W. 2, a qualified government psychiatrist told the court that throughout his
detention at the hospital, he was interviewed and assessed by a number of
psychiatrist and medical officers including himself. In his report, he stated that
the accused told him that he had been hearing voices since the age of six.
However, he was never sought mental health treatment prior to the incident in
question although he had been treated for other ailments. On the day of
admission, he said that the accused was coherent and his cognitive function was
intact although there was formal thought disorder. He stated in his report that
there was some psychotic disorder such as the delusion of misidentification of
police officers as his friends. D.W. 2 diagnosed him as suffering from a
delusional disorder. He explained in his report the nature of the delusional
disorder that the accused suffered from as follows:

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 10.2.1 Mr Ulin is suffering from Delusional Disorder. Delusional disorder is a
psychotic disorder characterized by beliefs that are held with strong conviction
despite evidence disproving it. Despite the more common presentation is
predominantly delusion, mood symptoms and perceptual disturbances like
auditory and visual hallucination can occur during the course of illness. During
the index offence, even though he was suffering from the mental illness, he was
in the state of mind as he was aware of the nature of his act that what he was
doing was wrong and punishable by law.

[46] Thus, D.W. 2 had given evidence of medical insanity that afflicted the
accused. This is the first stage of the inquiry. As stated by the authorities that I
cited above, proof of insanity is not enough to absolve one of punishment for a
crime. The second stage of the inquiry for the court would be whether the
medical insanity that afflicted the accused rendered him incapable of knowing
the nature of his act or that he is doing what is either wrong or contrary to law.
This is well stated in paragraph 13 of the judgment in John a/k Nyumbei v PP
(supra) that I quoted earlier. It is a question of fact for the court to determine. I
note that D.W. 2 addressed this issue in paragraph 10.2.1 of his Psychiatric
Report and in his court testimony. D.W. 2 stated that the accused knew the
nature of his act and that he knew also that it was wrong and that it was against
the law. But for avoidance of doubt, I direct myself that this issue is solely for
the court to determine on the evidence and not the psychiatrist.

[47] As I noted earlier, in his oral testimony, the accused told the court in clear
terms that he knew the nature of his act and that he knew that what he was
doing was either wrong or contrary to law. In fact, his testimony on this point is
consistent with the history he gave D.W. 2 at the hospital. He gave reasons for
his act. He was angry with P.W. 13’s mother for attempting to prevent him from
going out for a drink with her son and that was the reason he launched the brutal

20
attack on the family. This also means that he was aware of the nature of his act
at the time he committed it. Therefore, he had motive and purpose for his act.
Whilst absence of motive may indicate unsoundness of mind, presence of
motive on the other hand may indicate the converse. In short, it was the not
mindless act of a mad man who did not know what he was doing.

[48] The conduct of the accused after attacking the victims and setting fire to
their houses also shows that he was aware of the nature of his act or that he was
doing what is either wrong or contrary to law. He took the parang and ran away
to his hut which is located near the jungle. He only surrendered when a team of
armed policemen came to his hut.

[49] For all the above reasons, I am satisfied that despite some evidence of
medical insanity, the accused clearly knew that nature of his act and also knew
that what he did was wrong or contrary to law. In other words, the mental
illness he suffered from did not impair his cognitive functions to the extent that
he was rendered incapable of knowing the nature of his act or not knowing what
he was doing what was either wrong or contrary to law. Therefore, he is not
absolved from legal responsibility for his actions under section 84 of the Penal
Code. In the premises, he failed to prove the defence of insanity on a balance of
probabilities.

Conclusion

[50] The accused admitted killing the victims in the three charges. The only
defence was the defence of insanity which he failed to prove. I also find that the
accused has not cast a reasonable doubt on the whole of the prosecution’s case
for any other reason. I therefore found that the prosecution proved its case
beyond reasonable doubt. I found the accused guilty as charged and I convicted

21
him. The only sentence provided for murder is death. I sentenced the accused to
death by being hanged by the neck until he is dead in accordance with section
277 of the Criminal Procedure Code.

Dated 10th September 2019.

…sgd……

(RAVINTHRAN PARAMAGURU)
Judge
High Court
Kuching, Sarawak

Date of Delivery of Decision : 19.06.2019

Date of Hearing : 02.08.2017

10.11.2017
13.12.2017
21.12.2017
14.03.2018
25.04.2018
15.05.2018
29.06.2018
12.07.2018
24.07.2018
19.09.2018

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 25.09.2018
29.10.2018
31.10.2018
27.11.2018
10.12.2018
24.01.2019
29.01.2019
18.02.2019
03.06.2019
14.03.2019
03.05.2019

For The Complainant : DPP Mohd Fillanny bin Siji together with
DPP Ronie Entili ; Attorney General
Chambers

For The Accused : Mr. Wit Malang ; Wit & Co. Advocate

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