Around July 2019, there were news reports about a psychiatrist in a hospital in Petaling Jaya who sexually harassed his patient – the latter being a rape victim.[1] An article by World Of Buzz contains multiple screenshots of conversations between the psychiatrist and his patient demonstrating that the former sexually harassed the latter.[2]
The hospital received a complaint on the matter and proceeded to suspend the psychiatrist on the 6th of July 2019. Subsequently, the hospital terminated the psychiatrist’s services effective 15th July 2019.[3]
The victim lodged a police report on the 16th of July 2019[4] and after conducting its investigation, the police concluded vide letter dated 13th September 2019 that:
i) there was no substantial evidence to prove the case against the suspect; and
ii) there should be no further action.[5]
Unsurprisingly, netizens were up in arms about the police’s decision. Thankfully, on 18th October 2019, the psychiatrist was charged at the Magistrate’s Court for having insulted the modesty of his patient.[6] The offence, under Section 509 of the Penal Code, carries a maximum punishment of imprisonment for a term which may extend to five years, or fine, or both.[7]
Notwithstanding the Attorney General’s Chambers’ decision to charge the psychiatrist under the Penal Code, does the patient have any recourse from a civil law perspective?
The Tort of Sexual Harassment
In the landmark decision of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282 (‘Mohd Ridzwan’), the Federal Court recognised the existence of a tort of sexual harassment in our legal and judicial system.[8]
The elements of the tort of sexual harassment are as follows:
i) Persistent and deliberate course of unreasonable and oppressive conduct;
ii) The conduct was targeted at another person; and
iii) The conduct was calculated to cause alarm, fear and distress to the other person.[9]
The Federal Court also noted that, “… the recognisable hallmarks of sexual harassment are that they are unwelcome, taking the form of verbal and even physical, which include sexual innuendos, comments and remarks, suggestive, obscene or insulting sounds, implied sexual threats, leering, oogling, displaying offensive pictures, making obscene gestures etc. These overtures all share similar traits, in that they all have the air of seediness and cause disturbance or annoyance to the victim (short of a recognised psychiatric illness or physical harm) (see ‘The Case For legislating Harassment in Singapore’ by Goh Yihan (2014) 26 SAcLJ).”[10] (underline mine)
Though the Industrial Court has noted in a few instances that the conduct of the respective claimants could give rise to an actionable tort of sexual harassment,[11] it is regrettable that as at the time of writing, other than Mohd Ridzwan, there are no reported cases of civil suits based on the tort of sexual harassment.
From the information that has been made readily available, a strong case can be made for the patient succeeding based on the tort of sexual harassment.
The lewd whatsapp messages sent by the psychiatrist to his patient spanned a few days and was highly inappropriate considering he was engaged in his professional capacity to help the latter who was suffering from severe anxiety, depression, and insomnia.[12]
It would be difficult for the psychiatrist to argue that his messages did not have the air of seediness and did not cause disturbance or annoyance to his patient. After all, it is clear from the screenshots that the patient was uncomfortable with the lewd messages.
In Mohd Ridzwan, some of the vulgar and harassing words uttered were:
“(a) ‘Fuck you’;
(b) ‘Kalau cari husband cari yang beragama, bertanggungjawab, macam I’, ‘You kena buat sembahyang istikharah dan kalau you mimpi, you akan berjimak dengan orang tu;
(c) ‘Ingat tak seorang Cina masa di Bank dulu? Kalau you pergi meeting, you kena tebalkan muka, you kena ada strong ‘ball’’;
(d)‘Kalau you nak tahu ‘benda’ lelaki tu berfungsi ke tak ikut orang-orang tua, ikat ‘benda’ tu dekat tali. Tali tu sambungkan dengan buah kelapa. Kalau buah kelapa tu terangkat, maksudnya ‘benda’ tu ‘good’. ‘Sexual graph of a person, men after 50 is no use. Kalau 20 it shoot up. 30 graf turun. When 40, it shoots up again’;
(e) ‘F-U-C-K’ (was the appellant’s laptop password);
(f) ‘ANOTHER SOB, TYPICAL HOMEBREED’;
(g) ‘I AM BEGINNING TO HATE VERY MUCH THESE HOMEBREED, WORST THAN KHINZIR’;
(h) ‘You nak kahwin dengan I tak, I banyak duit tau’;
(i) ‘Would you prefer married man’; and
(j) ‘You ni selalu sangat sakit. You kena kahwin tau. You nak tak laki orang’.”[13]
Considering the harassing words in Mohd Ridzwan were not as severe as the messages sent by the psychiatrist in the present matter, it would be reasonable to infer that the patient has a strong case should she initiate a civil suit relying on the tort of sexual harassment.
[1] “After sacking, psychiatrist now probed by cops over sexual harassment.” Malaysiakini.com. Malaysiakini. Accessed November 13, 2019. https://www.malaysiakini.com/news/484306
[2] Fatin Imanina, “Perverted Psychiatrist at PJ Hospital Exposed For Sexually Harassing His Rape Victim Patient.” WorldOfBuzz.com. World Of Buzz. Accessed November 11, 2019. https://www.worldofbuzz.com/perverted-psychiatrist-pj-hospital-exposed-sexually-harassing-rape-victim-patient/
[3] Ibid.
[4] Sheralyn Tan, “M’sian Psychiatrist Sexually Harasses Patient & Walks Free As Police Said There’s “Not Enough Evidence”.” WorldOfBuzz.com. World of Buzz. Accessed November 11, 2019. https://www.worldofbuzz.com/malaysian-psychiatrist-sexually-harasses-patient-walks-free-as-police-said-theres-not-enough-evidence/
[5] Ibid.
[6] Sheralyn Tan, “Perverted M’sian Psychiatrist Has Finally Been Arrested & Charged Today but He Pleads NOT Guilty.” WorldOfBuzz.com. World Of Buzz. Accessed November 11, 2019.
[7] “Penal Code.” AGC.gov.my. Attorney General’s Chambers. Accessed November 11, 2019.
[8] Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, at paragraph 39
[9] Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, at paragraph 78. The Federal Court agreed with Lord Sumpton’s definition in Thomas v News Group Newspaper Ltd [2002] EMLR 78, at paragraph 30.
[10] Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, at paragraph 59
[11] For example, see Shahrin Abdul Mutalib v Worldwide Fund For Nature Malaysia [2019] 2 LNS 2233 and Mohammad Ismail v Projek Lebuhraya Usahasama Berhad [2018] 2 LNS 1908.
[12] Sheralyn Tan, “M’sian Psychiatrist Sexually Harasses Patient & Walks Free As Police Said There’s “Not Enough Evidence”.” WorldOfBuzz.com. World Of Buzz. Accessed November 11, 2019. https://www.worldofbuzz.com/malaysian-psychiatrist-sexually-harasses-patient-walks-free-as-police-said-theres-not-enough-evidence/
[13] Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, at paragraph 28
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