JUDGMENT

Noor Hayati Mat J:

Introduction

[1] This Originating Summons (OS) was filed pursuant to ss 52, 54, and 58 of the Mental Health Act 2001 (MHA), for an inquiry to be held into the mental state of the Defendant.

[2] An inquiry was conducted, and I allowed the application. The Defendant now appeals to the Court of Appeal, and below are my grounds of judgment.

Background Of The Case

[3] plaintiff is the eldest son of the Defendant and a director of Sencomax Construction Group Sdn Bhd (Sencomax). Defendant is his father, aged 75.

[4] The Defendant had previously initiated a suit bearing case No BA-22NCVC-102-03/2020 (Suit 102) against Sencomax seeking recovery of RM1.5 million, representing funds allegedly loaned by him for the purchase of a Cold Milling Machine, which was allegedly disposed of without his consent.

[5] On 28 March 2022, Sencomax had applied to amend its defence in Suit 102 to the effect that the Defendant had suffered from a mental health issue since 2016. Following this amendment, the burden was imposed upon Sencomax to prove in Suit 102 that the Defendant indeed suffered from mental health issues since that period.

[6] The filing of this OS was predicated on the assertion that the Defendant had suffered a progressive deterioration in his cognitive capability since 2016 or prior thereto, presenting a prima facie case that the Defendant was mentally disordered and unable to manage himself and his affairs.

[7] The reliefs prayed for included the determination of the period during which the Defendant had been mentally disordered and whether he possessed the capacity to give instructions to his counsel to act on his behalf.

[8] For the purpose of examining the state of Defendant's mental health and providing a report pursuant to s 54 of the MHA, the Plaintiff sought the appointment of Dr Bharathi Vengadasalam (Dr Bharathi), a Consultant Psychiatrist from Pantai Medical Hospital, Kuala Lumpur, to prepare the medical report.

[9] In resisting the application, the Defendant at the earliest juncture of this proceeding filed a striking out application (encl 9) asserting that this application was merely a tactical manoeuvre to gather evidence to substantiate Sencomax's Defence in Suit 102 and maintained that he was mentally stable and capable of giving instructions to his counsel.

[10] However, that application was dismissed, and the Court proceeded on 26 October 2022 to allow the inquiry to be conducted. The Defendant is directed to undergo a psychiatric evaluation by Dr Bharathi.

[11] The Plaintiff asserted that Dr Bharathi was a Court -appointed psychiatric expert, but the Defendant disputed and stated that she was merely the Plaintiff's nominee and that the order did not explicitly confer Court appointment, thus preserving his discretion to seek an alternative specialist.

[12] To support his claim of mental stability, the Defendant relied on opposing medical evidence through a report dated 25 November 2021 from Dr Isa Bin Mohd Hasan (Pusat Perubatan Universiti Malaya), which stated that the Defendant did not exhibit any depressive, psychotic, manic, or hypomanic symptoms as rebuttal evidence.

[13] In furtherance of that, the Defendant filed a Notice of Application (Enclosure 45), seeking leave to rely on an assessment conducted by Professor Dr Mohamad Hussain bin Habil of the University Malaya Specialist Centre. Professor Dr Mohamad Hussain bin Habil subsequently examined the Defendant on 28 March 2023, and his psychiatric report, dated 15 April 2023, concluded that the Defendant suffered from no mental disorder. The Defendant argued that the existence of such conflicting reports, especially those finding him mentally capable, should negate the necessity for an inquiry.

[14] Enclosure 45 was dismissed on 18 January 2024, as I am of the view that both parties should follow the Court order dated 26 October 2022, and the Defendant would still have the opportunity to produce any rebuttal argument at the inquiry proceeding.

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