Malaysia's Insanity Defence: Why It Rarely Works, and "Winning" Still Means Being Locked Up

In January 2024, Mohamad Safiq Rosli became the first person charged under Malaysia's new anti-stalking law, after sending a photographer three messages on X professing his love for her — the tail end of what she said was close to a decade of unwanted contact. A forensic psychiatrist testified Safiq had schizophrenia, and that his delusions made him genuinely believe they were in a relationship. The court agreed he could not understand what he was doing was wrong, and found him not guilty.

He did not go home that day. He was sent to Hospital Bahagia Ulu Kinta in Tanjung Rambutan, Perak, and ordered detained there "at His Majesty's pleasure", with no release date attached.

That's the part most people miss about what's commonly called the "insanity defence" in Malaysia. It exists. It occasionally succeeds. And when it does, the accused doesn't walk free — they can end up deprived of their liberty longer than a prison sentence would have run, with no end date at all.

1. What Section 84 Actually Says

The Penal Code (Act 574) doesn't use the word "insanity" at all. Section 84 reads: "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."

Malaysian courts have never fixed a precise medical definition of "unsoundness of mind" — it's deliberately left open so judges apply it case by case, weighing psychiatric evidence and conduct together. The section only covers cognitive failure: not knowing what you were doing, or not knowing it was wrong. Section 84 doesn't cover someone who knew an act was wrong but felt unable to stop themselves — an "irresistible impulse" alone isn't a defence, however genuine the condition.

2. Where This Law Comes From: The M'Naghten Rules

Section 84 traces back to an 1843 English case with nothing to do with Malaysia. Daniel M'Naghten, suffering persecutory delusions, tried to kill British Prime Minister Robert Peel and shot his secretary, Edward Drummond, instead. He was acquitted on grounds of insanity, which caused enough outrage that the House of Lords set out formal rules for the defence — the M'Naghten Rules, built around whether the accused understood the nature and wrongness of the act.

When British India, and later British Malaya, codified their criminal law, the Indian Penal Code of 1860 wrote that cognitive test directly into what became Section 84. Malaysia, Singapore and India still run on close variants of it. Malaysia is still applying a test for the human mind that a 19th-century court invented before psychiatry existed as a medical specialty, and Malaysian academic commentary has repeatedly flagged this as overdue for review, without any amendment following.

3. Who Has to Prove It, and How High the Bar Is

Normally, the prosecution proves your guilt beyond reasonable doubt. Section 84 flips part of that. The law presumes every accused person sane, and it's the accused who must prove unsoundness of mind, on a balance of probabilities, under Section 105 of the Evidence Act 1950.

In practice that means psychiatric assessment, medical records, and evidence of how you behaved before, during and after the act — planning or fleeing tends to undercut a claim of unsoundness of mind, while disorganised or delusional behaviour tends to support it. In John Nyumbei v Public Prosecutor [2007] 7 MLJ 206, the Court of Appeal upheld a murder conviction despite evidence of a "psychotic disorder", because the examining psychiatrist also found the accused lucid and "in contact with reality" close to the relevant period — unsoundness of mind was not proven at the time of the act itself, the only moment that matters. A diagnosis covering weeks or months isn't proof of what was happening in someone's mind at the precise moment of the offence, and that gap is where many cases are won or lost.

4. Why the Defence Fails More Often Than It Succeeds

Malaysian courts, including in the Shalima Bi case below, have said plainly that the test under Section 84 is "a legal test and not a medical test." Judges, not psychiatrists, make the final call.

That produces some counterintuitive results. In Lee Ah Chye v PP [1963] MLJ 347, a claim of hallucinating a snake was rejected for lack of medical support. In PP v Rozman bin Jusoh & Anor (1995), the court held a low IQ alone doesn't amount to unsoundness of mind. Having a genuine, documented mental illness is not the same as meeting the legal test — the question is always whether, at that specific moment, the accused's mind could grasp the nature or wrongness of the act. There's no published success rate for Section 84 in Malaysia, but legal commentary consistently describes success as the exception, and courts have held they should consider unsoundness of mind even where the defence lawyer doesn't raise it (PP v Ismail bin Ibrahim, 1998).

5. If It Succeeds, You're Not Free — You're Detained "At His Majesty's Pleasure"

Where a court finds unsoundness of mind at the time of the offence, Section 347 of the Criminal Procedure Code requires the judgment to record that finding and state whether the accused actually did the act — the difference between "he didn't do it" and "he did it, but wasn't criminally responsible."

Section 348 then takes over. A successful unsoundness-of-mind defence isn't an acquittal in the way most people picture it — it converts a criminal trial into an indefinite civil commitment. The accused is ordered into "safe custody", almost always at a psychiatric hospital, held "during the pleasure" of the Agong (Federal Territories) or the state Ruler or Yang di-Pertua Negeri (states). That's exactly what happened to Safiq Rosli: found not criminally responsible, then sent straight to Hospital Bahagia Ulu Kinta with no discharge date fixed.

6. How Long Do People Actually Stay Locked Up?

There is no sentence, no statutory maximum, and no automatic release date attached to a Section 348 order. Interviewed by Malay Mail after the Safiq Rosli case, Universiti Malaya criminologist Dr Haezreena Begum Abdul Hamid put it bluntly: "How long will they stay in a mental hospital? This we don't know." Former Malaysian Bar president Salim Bashir Bhaskaran said such individuals "may still be detained for the rest of their lives in a mental hospital."

Release requires medical certification that the person has recovered and no longer poses a danger, and ultimately sits with the Agong or the relevant Ruler's discretion. There's no fixed term and no guaranteed exit — legal practitioners themselves say nobody can tell a family in advance how long detention will last. Hospital Bahagia Ulu Kinta, the country's oldest psychiatric hospital (opened 1911 as the Federal Asylum in Tanjung Rambutan), is one of a handful of government hospitals gazetted for forensic assessment and custody, and as of early 2024 had well over 1,000 warded patients, including a dedicated male forensic ward running supervised work programmes for around 48 long-stay patients.

7. Unsound Mind at the Time of the Offence vs Unfit to Stand Trial

These get confused constantly, but they're answered at different stages by different tests. CPC Sections 342 to 345 ask whether an accused is fit to be tried right now — can they understand the charge and instruct a lawyer. If a court suspects otherwise, it can remand the person for psychiatric observation and postpone the trial. Section 84, by contrast, is decided only after a full trial, asking what was happening in the accused's mind at the time the offence was committed — potentially months or years earlier.

Being "fit to stand trial" today and being "of unsound mind" when the offence happened are two separate legal questions, decided at different stages, and answering one tells you nothing about the other. In an ongoing 2025 school stabbing case now being tried in 2026, a psychiatric assessment at Hospital Bahagia Ulu Kinta found the accused, a minor, fit to stand trial — which says nothing about what the trial itself must still determine about his state of mind at the time of the act.

8. How This Has Actually Played Out in Malaysian Courts

The clearest illustration of how unsettled this area can get is Public Prosecutor v Shalima Bi. The accused, with a documented history of severe psychotic depression and electroconvulsive therapy dating back to 2004, attacked her husband's first wife with hot oil, causing serious burns. The High Court acquitted her on grounds of unsoundness of mind. The Court of Appeal disagreed, found only a personality disorder, convicted her and imposed the death sentence. The Federal Court then reinstated the acquittal, holding she had indeed been of unsound mind at the time. Three courts looked at the same psychiatric history and reached three different conclusions, with a life hanging on which one was final.

Not every case is that dramatic, but the defence has succeeded elsewhere on strong, consistent evidence — in PP v Muhammad Suhaimi Abdul Aziz [2004] 1 CLJ 378, psychiatric evidence of unsoundness of mind in the killing of the accused's wife went unrebutted by the prosecution. What links successful cases is documented medical history stretching back before the offence, not a diagnosis produced afterwards.

What to actually do

If a family member has just been arrested and has a history of mental illness:

• Tell the investigating officer and the duty lawyer immediately, ideally in writing, and ask early for a psychiatric referral.
• Gather medical records, hospital admissions and medication history now — evidence close to the offence carries more weight than anything reconstructed later.
• Get a criminal lawyer involved early; Section 84 cases are specialist, evidence-heavy litigation.

If the case has been charged and is ongoing:

• The court can order assessment at a gazetted hospital under CPC Section 342 — Hospital Bahagia Ulu Kinta and several state hospitals do this work.
• A finding of "unfit to stand trial" only pauses the case; it doesn't decide guilt.
• Ask whether the lawyer is running a fitness-to-plead argument, a Section 84 defence, or both — they rest on different evidence.

If a family member has been found of unsound mind and is now detained:

• Ask the hospital's forensic team what the review process looks like, and what "recovery" needs to look like on paper.
• A petition for release goes through medical certification and the Agong or relevant Ruler's discretion — a lawyer can help prepare this.
• This can be a long wait, sometimes years. Get support for yourself too — Talian HEAL 15555 supports families, not just patients.

On cost: The Legal Aid Department (Jabatan Bantuan Guaman) and the National Legal Aid Foundation (Yayasan Bantuan Guaman Kebangsaan) provide free or subsidised lawyers for accused people who can't afford one, including serious criminal cases. The Malaysian Bar's Legal Aid Centre (+603-2050 2050) can point you to your nearest centre. Court-ordered assessment is usually free; a private second opinion costs money but can strengthen a case.