However, the Federal Court ordered Khiew Bu Poh, 50, to be retried as the trial judge had made an “incurable mistake” of sending him for psychiatric observation in the midst of the prosecution’s case.
Judge Abdul Rahman Sebli, who chaired a three-member bench, said the notes of proceedings showed that Khiew’s lawyer had made an application at the commencement of the trial in 2017.
Rahman, who sat with judges Zabariah Mohd Yusof and Rhodzariah Bujang, said the trial judge had acted erroneously by proceeding with the trial, during which 11 prosecution witnesses were called, before making a decision on the application.
He said the judge should have alerted himself and acted as required by the law.
“The error is not mere irregularity but an illegality. The appeal is allowed and the conviction is set aside,” he said.
Rahman said a medical certificate from the Hospital Bahagia director was also not produced.
He said the case would be remitted to the High Court in Kuala Lumpur to be heard by a new judge.
The bench also fixed March 17 for mention of the case.
Khiew had been convicted of murdering Wong Fong Sing, 48, at a business premises on Jalan Pelaga in Taman Cheras, Kuala Lumpur, at 6.12am on Aug 19, 2016.
The High Court sentenced him to death in 2019 and the Court of Appeal affirmed the conviction the following year.
He is said to have fired several gunshots at Wong from close range within 13 seconds as captured by a closed-circuit television camera in the premises.
Earlier, lawyer Hisyam Teh Poh Teik submitted that an application was made under Section 342 of the Criminal Procedure Code to send the accused for psychiatric evaluation.
“He (the trial judge) reserved his decision on the application and delivered a ruling after 11 witnesses had taken the stand,” he said, adding that the correct approach would have been to make a decision before the trial started.
Hisyam, who was assisted by Nik Mohamed Ikhwan Nik Mahamud, said a retrial should be ordered should the bench accept that there was a procedural failure.
Deputy public prosecutor Aslinda Ahad submitted that sections 342 and 343 of the CPC were immaterial in this case because the accused was fit to stand for trial and capable of making his defence.