IN Act 5, Scene 2 of Shakespeare’s Hamlet, Hamlet acknowledges the hurt that he has caused to childhood friend Laertes for causing the death of his father, whom he murdered by way of a mistaken identity, but he pleads madness:

What I have done,
That might your nature, honour, and exception
Roughly awake, I here proclaim was madness.
Was ’t Hamlet wronged Laertes? Never Hamlet.
If Hamlet from himself be ta’en away,
And when he’s not himself does wrong Laertes,
Then Hamlet does it not. Hamlet denies it.
Who does it, then? His madness.

Hamlet pleads that he is a victim and not an offender:

If’t be so, Hamlet is of the faction that is wronged.
His madness is poor Hamlet’s enemy.

Through the above lines, Shakespeare brings out the agony of a man having to justify his act of madness.

Hamlet’s act of causing the death of Laertes’ father would constitute culpable homicide within the definition of section 300 of the penal code for which he would be charged under section 302 of the same code for murder, but for madness or unsoundness of mind or insanity it would not be a crime.

The law is in 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.”

By its opening words “Nothing is an offence”, the section recognises an act which is not an offence. Such an act, however, must emanate from an unsound mind.

The existence of an unsound mind is therefore a sine qua non (a necessary condition without which something is not possible) to the applicability of the provision. A mere unsound mind per se, though, would not suffice. It should be to the extent that the person is incapable of knowing the nature of the said act, or that he does not stand to reason as to whether an act committed is either wrong or contrary to law.

There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law. Needless to state, the incapacity of doing the said act from an unsound mind must be present at the time of commission.

The provision is founded on the maxim actus non reum facit nisi mens sit rea – that is, an act does not constitute guilt unless done with a guilty intention. It is a fundamental principle of criminal law that there has to be an element of mens rea in forming guilt with intention.

A person of an unsound mind who is incapable of knowing the consequence of an act does not know that such an act is right or wrong. He may not even know that he has committed that act. When such is the position, he cannot be made to suffer punishment.

He stands as a victim in need of help, and therefore, cannot be charged and tried for an offence. His position is that of a child not knowing either his action or the consequence of it.

Is it any wonder that Hamlet pleads that he is a victim?

The expression “unsoundness of mind” is not defined in the penal code. The courts have, however, mainly treated this expression as equivalent to insanity, which in turn has no precise definition. It is a term used to describe varying degrees of mental disorder. So every person who is mentally diseased is not ipso facto exempted from criminal responsibility.

A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.

If a sane person is legally insane – call it unsoundness of mind or insanity or madness (as Hamlet calls it) – it is a complete defence absolving him of criminal liability. It is a defence to a criminal charge to which the person must plead not guilty. He cannot plead guilty to the charge and then say he was of unsound mind when he committed the act. That would make his plea equivocal (ambiguous, unclear, uncertain).

When an accused person pleads guilty, his plea of guilty must be unreserved, unqualified and unequivocal – section 173(b) of the criminal procedure code. The court must not accept a plea of guilty that is not unreserved, unqualified and unequivocal. This is illustrated in the case of Munandu v PP (1984) where the accused person pleaded guilty to a charge of theft of a bicycle. The magistrate accepted his plea. Before the sentence was passed, the accused person said in mitigation to the effect that he was drunk at the time and he took the bicycle by mistake. His plea of guilty was rejected by the court as it was not unequivocal.

If Hamlet were to be charged in a court for an offence, he should either plead guilty or not guilty. Should he plead guilty, he should not say that he was a victim of madness at the time of commission. In other words, if Hamlet pleads madness, he is pleading not guilty or claiming trial to the charge. He will then raise the defence of unsoundness of mind at his trial.

The above explains why Magistrate Sasha Diana Sabtu rejected the plea of guilty of Mohamad Safiq Rosli – the first man to be charged with stalking in Malaysia – and ordered a full trial to be held instead. – December 21, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.