1

THE BLACK MAGIC/SIHIR AS AN EVIDENTIARY TOOL: HOW CAN THE COURT IN

MALAYSIA ACCEPTS ITS ADMISSIBILITY

Ahnaf Bin Ahmad. Ahmad Affandi Bin Abdul Aziz. Mohd Alif Bin Jasni
Master of Criminal Justice
Faculty of Law
University Malaya

Abstarct

Black magic is an old human practice and sometimes defined as deception by showing
something to an audience, which is contrary to reality. In Islam, magic is defined as seeking the
help of demons to perform any harmful against somebody and called as sihir. It can be done to
any people regardless whether they are rich, poor, good people or bad people. In Malaysia,
there are so many cases of criminal and civil that got influence of black magic that been brought
to the court but due to the limited expertise on this particular area and no related provisions of
the enactment, the judge only decide the case according to the fact that can be seen. There were
some cases shows influenced of black magic but need to left behind since there was no enough
evidence to prosecute the person.

The definition of Black Magic/Sihir

In Kamus Dewan Bahasa dan Pustaka, black magic is defined as a charm or curse. While
Muhammad Mutawalli as-Sya’rawi mentioned that the word ‘sihir’ is come from the word as-
sahar which brings the meaning within the midnight and dawn. Syed Muhammad Rashid Ridha
in Tafsir al-Manar said sihir according to Arabic is hidden and the nature of sihir is eye
deceiving and make something which is not exists looks existed. According to Oxford English
Dictionary, sihir is defined as unusual act practice by sorcerers and include deal with the demon1.
Sihir among the citizen of Malaysia.

1
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. p. 1-5
 2

In Malaysia, black magic is not a new thing. Almost all Malaysian know the existence of black
magic which is practice in Malaysia. Rampant practices in black magic have led to various types
of diseases and maladies that require prompt attention and cure.

These diseases difference according to the strength of the individual who is a victim of black
magic2. Some may end up with mild attacks such as migraine, stiff neck, blurred vision, stomach
discomfort, frequent bouts of nauseas, depression and etc. Others are victim of fierce attacks
such as paralysis (from spine downwards), loss of hair, physical weakness and etc.

The practices of black magic was since long time ago when the people of the land were
influenced with the believed of animism. They believed everything on earth have their own spirit
and supernatural thing for example like animals, plants, rivers, fountains and oceans. Then, the
religion of Buddhism which were Hinayana and Mahayana came into the land and followed with
Hinduism which was Saivite. The believed of people of the land was influenced by these two
religion. Beside Malay people, Chinese, Siamese and natives people also believed on black
magic by summon the devil for medical purposes3.

But after Islam came into the land on 10 century, there was an effort to abolish the practice of
black magic on the land due to it is against the religion. Even though Islam against the practice
of black magic but the influence of black magic still strong in the heart of the people on the land.
In fact black magic also practiced by some Chinese community in Malaysia with believes of
occult practice, fengshui and premonition. In their believed, their faiths are influenced by spirits.
That is the reason they prefer to hired expertise in fengshui to predict their faith. They believed
that everything on earth mainly influenced by two sources which are Ying and Yang. Even there
are some Indian communities also practice black magic. They believe the existence of spirit like
Asura (which also known as Orges, Monsters) and Bhuta or Preta (which is ghost). The existence
of these kind of spirit is because of the incrimination which is not done properly or soul of dead
people been kill and those who commit suicide. These spirits are used sorcerers in their rituals4.

2
Ahmad Dusuki Abd Rani. n.d. Mengenalpasti Sihir. n.p. pp. 3-6
3
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. p. 168
4
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. p. 170-172
 3

In Malaysia, the 33rd Muzakarah (Conference) of the Fatwa Committee of the National Council
for Islamic Religious Affairs Malaysia held on 11th October 1993 has discussed Black
Magic/Sorcery5. The Conference decided that practising sorcery is a major sin and could lead to
polytheism. Learning it is unlawful (haram). A sorcerer who inflicts harm on another human
being has committed a major sin and is deemed as a criminal and deserved to be punished under
the qisas/hudud. The relevant authorities must provide legal provisions to punish convicted
sorcery practitioners.

Burden of proof

Section 101(1) of Evidence Act 1950 provides that whoever desires any court to give judgment
as to any legal right or liability, dependent on the existence of facts which he asserts, must prove
that those facts exist. Subsection (2) further explains that when a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person.

This section pointed out that the burden of proof is on the prosecutor, complainant or victim to
prove the case. It is clear that during the trial or criminal proceedings, the prosecutor or
complainant task is to bring the evidence to support the allegations and the burden of proof as to
any particular fact lies on that person who wishes the court to believe in its existence.

However, if a man claims that he has divorced his wife under the influenced of magic, the
burden of proof is shift on him to show that there was a 'common symptoms' on him and the
magic really caused him lost sanity sense. In a situation if a wife claimed her husband had
divorced her due to magic, then the burden of proof is on her to prove that there exists ‘common
symptoms’ on her husband and the magic really caused her husband lost sanity. The concept of
reverse onus is applicable.

Method to prosecute ‘Bomoh’ in court

5
Jabatan Kemajuan Islam Malaysia. 2012. Amalan Ilmu Hitam/Sihir. http://www.e-fatwa.gov.my/fatwa-
kebangsaan/amalan-ilmu-hitamsihir-0
 4

The process of giving and receiving evidence in court for criminal cases is a complicated process
because of the relevance of the facts presented may influence the judge's decision. Any conflict
or any reasonable doubt in the evidence given can impair the prosecution's case and could lead to
cases dropped.

The question that arises in the case relating to the prosecution of magic is how to prove a person
has been a victim of crime magic? How to prosecute the perpetrators of magic or also known as
‘bomoh’? Generally, it is probably easy to recognize shaman through their characteristics, but it
is difficult to convict someone suspected of practicing witchcraft without solid evidence because
it is uncertain and uneasy to determine whether magic has occurred or that man has sent magic in
person.

To ensure that the mechanism used in the process of giving evidence in court can be adapted to
the situation and circumstances of the case, there are five methods that can be adopted, namely;
confession, witness testimony, expert witness testimony, documentary evidence and
circumstantial evidence.

1) Confession

According to the section 17 of the Evidence Act 1950 in subsection (2), it explains that, a
confession is an admission made at any time by a person accused of an offence, stating or
suggesting the inference that he committed that offence.

Confessions, as a source of evidence, are distinguished from admissions. Whereas a confession is

a complete acknowledgement of guilt in criminal proceedings, an admission is a statement of
fact in either a civil or a criminal case. In former times the confession was considered the
ultimate form of evidence. As soon as the accused confessed—often under duress—no further
proof was required. In time, involuntary confession came to be rejected as evidence
 5

under English law, and the burden of proving that a confession was voluntary lay with the
prosecutor.6

In criminal proceedings, if the accused understands the charge was read, he is given the
opportunity either to admit or not. If the accused is sane and an adult, therefore, if he admit that
he was a sorcerer and commit crimes using magic, such confession cause legal actions to be
imposed upon him.

However, bear in mind as accordance to the section 24 of the Evidence Act 1950, where it
mentions that, a confession made by an accused person is irrelevant in a criminal proceeding if
the making of the confession appears to the court to have been caused by any inducement, threat
or promise having reference to the charge against the accused person, proceeding from a person
in authority and sufficient in the opinion of the court to give the accused person grounds which
would appear to him reasonable for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceeding against him.

Be that as it may, judge must also warn and inform the accused that anything uttered by him can
be used as evidence against him later. In the case of where the accused pleaded not guilty to the
charge which has been read out, then the accused have the right to be trial. The prosecution then
may use all the relevance evidence including testimony from victims or witnesses to establish a
prima facie case.7

In addition, this is the example in establishing a prima facie case for murder by using witchcraft.
It is important for the prosecution to prove:8
a. Death of the victim
b. Death of the victim is caused by black magic imposed on him
c. The accused used black magic which according to the expert it may caused death
d. The using of the black magic leads to the death was done maliciously (mens rea) if:
i. bewitching act was done with intent to cause death

6
http://www.britannica.com/EBchecked/topic/197308/evidence/28378/Confessions-and-admissions
7
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. p. 250
8
Ibid. p.251
 6

ii. The magic was imposed with the intention that the effect of such magic may
caused death to the victim.
iii. The accused who bewitch knows that magic is dangerous in any situation as it
may cause death or injury that may leads to death.

2) Witnesses Testimony

Section 118 of the Evidence Act 1950, reads that “all persons shall be competent to testify unless
the court considers that they are prevented from understanding the question put to them or from
giving rational answers to those questions by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind.

Explanation- A mentally disordered person or a lunatic is not incompetent to testify unless he is

prevented by his condition from understanding the question put to him and giving rational
answer to them.9

This section deals with the competency of witnesses. The section provides that all persons shall
be competent to testify except those who are:10
a. Unable to understand the questions put to them
b. Unable to give rational answers to those question due to:
i. Under age, this relates to the evidence of child witnesses and is governed by
section 133A of the Act.
ii. Extreme old age, in Ng Kwee Piow v R, the rule of prudence requiring
corroboration on the unsworn evidence of a child also extends to a person who,
although not a child, has the mental age of a child.11
iii. Disease, whether of body or mind. In regards to the disease of the body, it refers
to a physical as opposed to mental incapacity. For instance, the evidence of a
deaf-mute must be rejected if he cannot be properly understood. Thus in Chai Kor

9
Section 118 of the Evidence Act 1950
10
Augustine Paul. Evidence Practice and Procedure. 3rd edition. Malayan Law Journal Sdn Bhd. Kuala Lumpur.
2003. p. 914-915
11
[1960] MLJ 278 (CCA)
 7

v Public Prosecutor12 the evidence of a deaf-mute was excluded as he could not

be properly understood and to whom proper questions could not be put at all. It
was held that in such circumstances the witness cannot be considered as a
competent witness. While in Kee Lik Tian v Public Prosecutor, where it is alleged
that a witness has a disease of the mind the court must ascertain whether the
witness is competent to testify.13
iv. Any other cause of the same kind.

The oral testimony of witnesses competes in a sense with documentary evidence to the extent
that one may exclude or supplement the other. Under Anglo-American law, almost anyone can
be a witness, including the parties and experts; children, and convicted felons also may testify.
Grounds once used for excluding such persons as witnesses are now used only to impeach their
credibility. Continental European countries, as has been said, do not treat either the parties or
experts as competent witnesses, and they are still suspicious of interested witnesses.14

In legal matters, witness testimony is given by a person who has knowledge about the case.
The witness is asked questions by attorneys for both parties and must answer them truthfully. A
person who is giving witness testimony may have personally witnessed an event or be giving
information about a person's character. Some people asked to participate in a court proceeding
are called to give testimony due to their expertise on a particular subject. 15 Thus, a person who
has knowledge for particular incident for instances he/she sees the accused perform the
witchcraft may testify in court as a witness.

Witness testimony was accepted as one of way in proving criminal cases in the court. With this
regards, some people would be called in court as witness to give evidence. There are two
potential witnesses whose can be called in order to give testimony in court in dealing with black
magic cases which are:

a. Witness that conduct an investigation, search and arrest

12
[1965] 2 MLJ 208 (FC)
13
[1984] 1 MLJ 306 (HC)
14
http://www.britannica.com/EBchecked/topic/197308/evidence/28372/Witnesses
15
http://www.wisegeek.com/what-is-witness-testimony.htm
 8

This witness consists of investigating officer who is conducting the preliminary investigation on
the victim or supervise special investigations. Same goes to the officer who’s do a search at the
locations where crime is suspected to be carried out or a search at place where magic items be
stored, the officer who’s arrest the witch, and the officer who’s saw the confession servant
magic. Evidence presented by them can be supported by any record, document, experiments, or
recordings made during the investigation.16

b. Ordinary Witness

This witness consists of family members or acquaintances whose have knowledge about incident
that happened to the victim. Apart from that, any person who was at the scene and saw the
accused commit any act which may be deemed as practice witchcraft can also be called to
testify.17 Their evidence can be given in oral form as provided by section 59 of the Evidence Act
1950,18 where it reads that, all facts, except the contents of documents, may be proved by oral
evidence. The phrase ‘oral evidence’ means all statements which the court permits or requires to
be made before it by witnesses in relation to any matters of fact under inquiry.19

Section 60 (1) (a) of the Evidence Act 1950, further explains about oral evidence where it
provides to the individual who witnessed the incident of black magic take places can give oral
evidence relating to what he sees. This situation provides an opportunity for anyone who
witnessed the crime using witchcraft to give evidences that would be acceptable in court. For
example, if the information is in fact a hearing, the person listening to the facts could be a
witness in court.20 In addition, to strengthen the evidence, the witness also could give their
evidence in the form of a statutory declaration.

3) Expert Witness Testimony

16
http://www.wisegeek.com/what-is-witness-testimony.htm
17
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. p. 252
18
Malaysia. 1950.Evidence Act. (Act 56). Section 59
19
Augustine Paul. Evidence Practice and Procedure. 3rd edition. Malayan Law Journal Sdn Bhd. Kuala Lumpur.
2003. P. 540
20
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. pp. 252-253.
 9

Expert witnesses can be considered as an assistant to a judge in assessing the evidence produced
before them in court. Expert evidence should only be admitted if the court is not in position to
make decision on scientific fact and technical issues. Section 45, 46 and 51 of Evidence Act
1950 provides the circumstances under which the opinions of experts can be treated as relevant.

In Malaysia, if the court has to form an opinion upon a point of science, then the opinion upon
that point of a person especially skilled in such science is relevant by virtue of Section 45 of
Evidence Act 1950. This section provides that when the court has to form an opinion upon a
point of foreign law or science or art, or as to identify or genuineness of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in that foreign law, science
or art, or in questions as to identity or genuineness of handwriting or finger impressions, are
relevant facts.21 Such persons are called experts.22 This section defines the situations in which
expert evidence is admissible.

The words “science and art” in section 45 are wide enough to cover all branches of specialized
knowledge, although occasionally doubts have arisen this regard. With the advancement of
scientific and technical knowledge, there is a tendency to widen the scope of the term “science
and art”. The opinions of experts are generally admissible whenever an issue comprises a subject
of which knowledge can only be acquired by special training and experience.23

According to section 46 of Evidence Act 1950 states that facts not otherwise relevant if they
support or are inconsistent with the opinions of experts when such opinions are relevant. “Under
this section evidence, otherwise not relevant, is admissible if it corroborates or rebuts the opinion
of an expert. In support of his evidence, an expert may prove experiments, inspection and other
acts upon which his opinion is based”.24

21
Malaysia. 1950.Evidence Act. (Act 56). Section 45(1).
22
Malaysia. 1950.Evidence Act. (Act 56). Section 45(2).
23
Abhijeet Sharma. 2007. Guide to DNA Tests in Paternity Determination & Criminal Investigation. India:Wadhwa
and Company.p.44.
24
Augustine Paul. 2000. Evidence: Practice and Procedure. Kuala Lumpur: Malayan Law Journal Sdn Bhd. 2 nd
edition. p.454.
 10

While in section 51 of Evidence Act 1950 provides that whenever opinion of any living person is
relevant, the grounds of on which his opinion is based are also relevant. For instance, an expert
may give an account of experiments performed by him for the purpose of forming his opinion.
The rule admitting expert evidence is founded on necessity. Expert evidence should only be
admitted if the court is not in a position to make decision on a scientific fact. 25 Thus, expert
evidence is only admissible to furnish the court with scientific information which is unlikely to
be outside the experience and knowledge of the judge.

In applying expert evidence for criminal cases involving the use of witchcraft, there are two
categories of experts26 need to be brought before the court. Firstly, is a person who has necessary
skill in the field of forensic, and secondly, is a person who had specialized knowledge and
experience in the field of witchcraft.

In the case of R v Clarke27, the court had listed two aspects that require forensic expertise. Firstly
is a natural (biological) source such as hair, a piece of cloth, urine, blood, sperm, saliva, DNA
and finger print. The other one is non biological source such as paint, wood, foot print, glass, oil,
tire and others equipment used.

With the testimony of the expert who conducts research on these materials, chemical experts can
resolve the issue of originality or authenticity of a writing or document 28. Besides, investigators
can identify the materials used for the spell, the owner of the material, fingerprints on materials,
blood and blood type used for worship rituals and all equipment and materials related materials.
Forensic test results can also be used in proving a criminal offense; including crimes which
involved magic on the victim and at the same time it can also denied involvement of someone
who had been charged.

25
Harcharan Singh Tara. 1995. “Expert Evidence in Civil & Criminal Cases”. Malayan Law Journal Articles.
Vol.2 .p.1.
26
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. p. 254
27
[1995] 2 Cr App R 425
28
Dr. Zulfakar Ramlee Saad. 2010. Pendakwaan Jenayah Sihir: Prinsip-prinsip Pembuktian dan Akta Keterangan
Mahkamah Syariah. n.p. pp.9-10
 11

Individuals with knowledge and experience in the intricacies of magic can also be categorized as
an expert. However, not all that expertise can be adopted and recognized primarily for the
purpose of proving in court. Acknowledgment of this expertise can be made by anyone as they
believe that they have a lot of mystical experiences, rituals, and spiritual, are heavily involved in
the treatment, and a lot of skills that are considered unusual29.

In the case of Mustafah Bin Batcha lwn a. Habeeba30, the Court accepted that magic even illegal
in the sight of Islamic law but it is still practiced by the Malay community and in this case when
the husband claimed that he divorces his wife, he was under the influence of magic. Court of
Appeal considers that this fact (the man under the influence of magic) to be proved and experts
(shaman) must be called to determine the truth of the allegations.

4) Documentary Evidence

“Evidence” includes of two things. Firstly, all statements which the court permits or requires to
be made before it by witnesses in relation to matters of fact under inquiry which are called oral
evidence. Secondly, all documents produced for the inspection of the court and are called
documentary evidence31.

Section 3 of Evidence Act 1950 provides that “document” means any matter expressed,
described, or howsoever represented, upon any substance, material, thing or article, including
any matter embodied in a disc, tape, film, sound track or other device whatsoever, by means of
(a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or
representation whatsoever; (b) any visual recording (whether of still or moving images); (c) any
sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and
howsoever made, or any sounds, electronic impulses, or other data whatsoever; (d) a recording,
or transmission, over a distance of any matter by any, or any combination, of the means
mentioned in paragraph (a), (b) or (c), or by more than one of the means mentioned in

29
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. p. 255
30
JH7 (1990) 255
31
Malaysia. 1950.Evidence Act. (Act 56). Section 3.
 12

paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of
expressing, describing, or howsoever representing, that matter.

Therefore, the scope of documents includes all entries or any notes consist of spell which is
belonging to practitioners who use magic can be presented as evidence.

The video recording32 can also be used as evidence in investigating the magic and can be
evaluate by experts whether the patient was actually sick. When a patient is treated and is in an
abnormal condition, sometimes the patient's face will change and these changes may also be seen
more clearly through video technology.

5) Circumstantial Evidence

It is fascinating because an accused is brought to trial and is either convicted or acquitted as a

result of circumstances which point to his guilt or innocence; not because other people actually
saw him committing the crime or not. Any fact which shows or constitutes a motive, preparation
and previous or subsequent conduct for any fact in issue or relevant fact is relevant33.

Indication of the existence either through a string of events that occur or selected materials that
have to do with the incident could be evidence in proof of the crime in court. Circumstantial
evidence in the crime of witchcraft can exist in event as follow34:
1. The victim commits an act that causes witch to feel envy, resentment, revenge, jealousy,
anger, hate, and so on. For example, the victim was promoted, victim rejected the
marriage proposal, victims succeed in business or education, victim scolded or laying off
workers, the victim did not give equal treatment to employees and others.
2. When situation (1) happens, the accused was found, either oral or act, made a sign that is
understood by the victim as a threat to do magic, or seen ever commit any acts that have
to do with the practice of magic such as marking on the victim's house pillar, or used
32
Nor Azian bt Ab Rahman. 2010. Metodologi Pendakwaan dan Pembuktian Sihir berdasarkan Fakta Syariah dan
Sains. n.p. p. 7
33
Malaysia. 1950.Evidence Act. (Act 56). Section 8
34
Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia SB. First Edition. pp. 259-260
 13

beras kunyit (saffron rice) and sown around the victim's house, or met the witch by
carrying anything that has to do with magic.
3. When the above (2) conditions occur, the victim suddenly began to see extraordinary
things and strange such as frequently have a nightmares, seeing frightening shadows, or
strange things happen such as the discovery of bird carcasses or chicken without a head,
flies around in, and mirror house suddenly burst.
4. When the incident (4) occurred, after a few days, the victim began to show significant
changes either in terms of both physical and mental, emotional and mood, performance
and business, social and family relationships and other related.

In the civil law system, this circumstantial evidence can be adopted in a criminal conviction in
the court process and can usually be used to support the evidence of a witness or expert opinion.

Other related cases of Black Magic/Sihir

1) Juraimi Bin Husin v PP, Mohd Affandi Bin Abdul Rahman & Anor v PP35

After leaving the music business, Mona became involved in spiritual witchcraft activities and
was known to be a bomoh, a local shaman. She began offering her services to clients, mostly
from the upper-class society. She also claimed to have provided politician clients in the ruling
UMNO party with a variety of charms and talismans.

It was reported that Mazlan Idris, a state assemblyman for the constituency of Batu Talam in the
state of Pahang, wanted to boost his political career and sought the services of Mona for
assistance. Mazlan was educated in the United States and was an ambitious politician from the
ruling United Malays National Organisation (UMNO) party.

35
[1988] 1 MLJ 537
 14

At that time, Mona worked with her husband Mohamad Nor Affandi Abdul Rahman, 44, and
their assistant Juraimi Hassan, 31. Mona and her husband promised to help Mazlan by giving
him a talisman consisting of a cane and sbatmi headgear which was supposedly owned by former
Indonesian President Sukarno. Mona convinced Mazlan that he would be "invincible" if he held
the talisman. In return, Mona demanded RM 2.5 million. Mazlan paid the couple RM 500,000 as
deposit, and gave them 10 land titles as surety for the remaining RM 2 million.

An appointment was made for cleansing rituals to be performed at Mona's house. Mazlan was
told to lie on the floor face up while Mona placed flowers on him. She then told Mazlan to close
his eyes and wait for the money to "fall from the sky". Juraimi then, using an axe, chopped
Mazlan's head off. They also dismembered and partially skinned Mazlan's body. His body was
found in 18 parts buried in a storeroom near Mona's house in Pahang.

Mazlan was reported missing on July 2, 1993 after withdrawing RM 300,000 from a bank. After
the murder, Mona was reported to have been on a shopping spree where she bought a Mercedes-
Benz and had a facelift.

It was alleged that the murder occurred between 10:00 PM and 12 midnight on July 18, 1993. On
July 22, 1993, police found Mazlan's body; Mona, her husband, and Juraimi were arrested and a
highly publicized trial began. They were tried in Temerloh High Court by a 7-person jury (trial
by jury was abolished from January 1, 1995). The High Court found all three of them guilty and
sentenced them to death by hanging.
 15

From left: Mona, her assistant Juraimi Hassan, and husband Mohamad Nor Affandi Abdul Rahman had
been brought for court trial

Mona and the others filed appeals to the Federal Court and in 1999 the court dismissed their
appeals and upheld the death sentence. Finally, the three convicts sought to obtain a pardon or
clemency from the Pardons Board of Pahang, their final chance redemption. However, the board
refused to give clemency. Mona, Affandy, and Juraimi were finally hanged on November 2,
2001 at Kajang Prison. A prison official said the trio expressed no remorse at the pre-dawn
execution.

Throughout the trial, Mona exhibited strange behaviour including appearing cheerful, constantly
smiling and posing for press photographers. She dressed extravagantly with bright and colorful
designs on her dress. She also remarked, "Looks like I have many fans".
The judge then asked them if they had anything to say before he passed sentence and Affandi
and Mona replied that they would leave to the discretion of the court. He then passed the death
sentence on each of them - that they be taken from court to a recognised prison and later be
hanged till they were dead. After hearing her sentence Mona said "I am happy and thank you to
all Malaysians." She was photographed smiling as usual as she was led from the court to prison.
It was also reported that during her execution she uttered the words "aku takkan mati", meaning
"I will never die", and was still calm and smiling. 

In this trial, the first appellant has put forward a defence by saying that he was out of action
because of its consciousness hypnotized by Mona Fandey to do whatever he asked without any
objection. Even if such an element exists, but in this case, the court could not accept such
defense because there is no provision in the law. The court only focuses on aspects of the
admissibility of evidence taken from accused during the inquiry by the police.

2) Tan Mui Choo & Anor v Public Prosecutor36.

36
[1987] 1 MLJ 267
 16

The appellant in this case killed two children in barbaric ways. Adrian Lim, the husband of the
first appellant was an individual who actively involved in the practice of black magic and
sorcery. He learned black magic cult and make individual in distress, particularly women as the
victims. Within the practice of witchcraft, several of criminal and immoral activities committed
by him that has to do with black magic, which is prostitution, fraud, molesting and raping.

The murder was committed in cruelty and has satanic elements due to the practice of black
magic. This can be seen to the children who were killed. According to the facts of the case, the
second appellant was tapping the fingers of Agnes and the three of them greedily; sucking the
blood flows from the fingers of the child before they drown. Same thing was done for the next
victim of a child named Marzuki, where they accumulated the blood flowing from children's
fingers and lick it and drink the blood. In this case, the court upheld the conviction and sentence
of the appellant after finding that they really did murder deliberately without any influence of
mental illness.

From the impact and nature of the crime charged on the victim, it can be concluded that the
behavior and criminal acts while committing a crime consisted of black magic was cruel and full
of satanic nature. Court again failed to take any legal action to Adrian Lim, who had proved
practicing and using magic for criminal purposes.

3) Dato Mokhtar Bin Hashim & Anor v. PP37

In this case, Dato Mokhtar bin Hashim and Rahmat Satiman has been convicted of murdering
Dato Mohamad Taha bin Talib. According to Rahmat Satiman, he was directed by Dato Mokhtar
to find a shaman to weaken the power owned by Dato Taha. They met with a shaman known as
Lek in Skudai and have given kemenyan and sprinkled on the road normally used by Dato Taha
in order to make the victim vulnerable. They also burned kemenyan and smoked it in the
courtyard house of Taha.

37
[1983] 2 MLJ 232
 17

The judge stated that the acts done by the accused was part of the implementation of the plan in
the crime. The court failed to drag the appellant for the offense of using magic instead they just
convicted of abetting for the murder plan.

Conclusion

All in all, through the history and actual cases that have been brought to the court, one cannot
deny the existence of the black magic or witchcraft. However, since there is no specific provision
and due to the reluctance from the court in accepting this kind of evidence make the practitioner
of the witchcraft always scot-free.

Furthermore, the judges have the tendency in deciding cases involving black magic to look from
logical perspective. They are interested in the facts that can be seen, and since black magic or
witchcraft is something supernatural, therefore, in the criminal cases, the witchcraft parts are
always being ignored.

Nevertheless, based on the arguments above, it shows that, black magic also could be accepted as
evidence in court. Even there is no specific provision has been made to cover or deal with this
matter, but the admissibility of this type of evidence is actually in line which what had been
provided. It can be tally with the existing laws. Though, it is far from sufficient, at least it could
assist the judges in dealing with black magic cases and avoid the scot-free.
 18

References/Bibliography

Books/Articles

1. Mahyuddin Ismail Ph.D. 2011. Ahli Sihir ke Tali Gantung. Malaysia: PTS Millennia
SB. First Edition.
2. Augustine Paul. 2000. Evidence: Practice and Procedure. Kuala Lumpur: Malayan Law
Journal Sdn Bhd. 2nd edition.
3. Ahmad Dusuki Abd Rani. n.d. Mengenalpasti Sihir. n.p.
4. Abhijeet Sharma. 2007. Guide to DNA Tests in Paternity Determination & Criminal
Investigation. India:Wadhwa and Company.
5. Harcharan Singh Tara. 1995. “Expert Evidence in Civil & Criminal Cases”. Malayan
Law Journal Articles. Vol.2 .
6. Dr. Zulfakar Ramlee Saad. 2010. Pendakwaan Jenayah Sihir: Prinsip-prinsip
Pembuktian dan Akta Keterangan Mahkamah Syariah. n.p.
7. Nor Azian bt Ab Rahman. 2010. Metodologi Pendakwaan dan Pembuktian Sihir
berdasarkan Fakta Syariah dan Sains. n.p.
8. Dr Mahyuddin bin Ismail. ‘Bewitched’ as a Defence in cases of Divorce: An Analysis on
Shariah Perspectives and its Application in Shariah Court in Malaysia. Pahang: UMP.

Statutes/Act
 19

1. Evidence Act 1950 (Act 56)

Websites

1. Jabatan Kemajuan Islam Malaysia. 2012. Amalan Ilmu Hitam/Sihir. http://www.e-

fatwa.gov.my/fatwa-kebangsaan/amalan-ilmu-hitamsihir-0
2. http://www.britannica.com/EBchecked/topic/197308/evidence/28378/Confessions-
and-admissions
3. http://www.wisegeek.com/what-is-witness-testimony.htm