JUDGMENT

Ian H.C. Chin J:

My attention was drawn to this matter by the Senior Federal Counsel by a letter dated 8 October 1993 and I was asked to exercise my power of revision. The history of this case is as follows. On 10 August 1992 the accused Haji Sudin Bin Sube was brought before the Sessions Court to answer a charge of voluntarily causing grevious hurt by a dangerous weapon under s. 326 of the Penal Code. Since there are lessons to be learnt from this case, I will set out the charge that was preferred against the accused, viz:

Bahawa kamu, pada 13 Julai 1992, lebih kurang jam 8.00 malam, di sebuah rumah tidak bernombor, di Kampung Muhibbah Raya, di dalam Daerah Tawau, di dalam Negeri Sabah, telah menyebabkan cedera parah kepada dua orang iaitu Sanita Binti Mangkana dan Hatibe Bin Mangkana dengan menggunakan sebilah parang panjang yang mungkin menyebabkan kematian, yang mana senjata tersebut digunakan untuk menetak dan memutuskan tangan dan jari mangsa, dengan itu kamu telah melakukan kesalahan yang boleh dihukum di bawah seksyen 326 Kanun Kesiksaan.

It should be obvious to those involved in the adminis- tration of justice that the accused had been charged in one charge with two offences which are that he voluntarily caused grevious hurt to Sanita Binti Mangkana and also that he voluntarily caused grevious hurt to Hatibe Bin Mangkana, each of which should have been the subject of a separate charge but both of which could have been tried together. I would recommend the officers concerned to read Mallal's Digest, 4th Edn., Vol. 5, paras 628 to 646, which set out the cases relating to the framing of charges so that errors as that in this case can be avoided. But the learned Senior Federal Counsel is more concerned with the proceedings that took place. On the said day of 10 August 1992 the accused remained silent after the charge was read to him and this led the prosecuting officer to remark that the ''accused is mentally disturbed". The Sessions Judge then made the order that the accused ''be sent to Mental Hospital for observation for at least a month under s. 324 (iii) of the Criminal Procedure Code"; the section reads:

If not satisfied that such person is capable of making his defence, such Judge or Magistrate shall postpone the inquiry or trial and shall remand such person for a period not exceeding one month to be detained for observation in any mental hospital wheresoever in the Federation established.

I would pause here to remark that when inquiring under s. 324 of the Code, the Court is not called upon to consider or to find the accused was or was not of unsound mind at the time when the alleged offence was committed. What the Court has to inquire into is the state of mind of the accused at the time when the inquiry is being held under this section. See Mallal's Criminal Procedure, 4th Edn., at p. 511. The accused was thereafter sent to the Bukit Padang Hospital in Kota Kinabalu. This case was again mentioned on 8 September 1992 where the Sessions Judge remanded the accused at the said hospital for a further one month as requested by the doctor. It appears from the docket of this case that the Sessions Court had on 1 October 1992 received a medical report dated 23 September 1992 concerning the accused from a Dr. Surendra Kumar Jayaswal of the Bukit Padang Hospital, Kota Kinabalu, which states:

The above named was admitted to Bukit Padang Hospital, Kota Kinabalu from 12 August 1992 to 23 September 1992 for observation under warrant s. 342(3) of the Criminal Procedure Code.

2. I, Dr. Surendra Kumar Jayaswal, a psychiatrist attached to Bukit Padang Hospital, examined the above named and I am of the [opinion] that he is suffering from Schizophrenia and is of unsound mind. 3. I am also of the opinion that the above named was under influence of mental illness at the time of committing the alleged offence. 4. He is fit to plead and attend trial in Court. 5. He has been prescribed medication (Tab Haloperidol 5mg OM, 10m