GROUP ASSIGNMENT

LAW 555

SEPTEMBER 2018

QUESTION 2

In order to establish murder, in an act of wrongful killing of another human being, the act
must be accompanied by a special degree of mens rea . Otherwise, the offence may be
culpable homicide not amounting to murder or causing death by rash or negligent act,
depending on the mens rea. Such an act may also be an offence of culpable homicide
not amounting to murder, despite sufficient evidence to establish the offence of murder,
if the accused is able to categorize his act within any one of the exceptions to murder.

Based on the above paragraph and with reference to decided cases, discuss all of the
exceptions to murder as provided under the Penal Code.

(20 marks)

1 | Page
Murder is a severe form of culpable homicide. But what distinguishes the two offences is the
special Mens Rea which comprises of five exceptions which stated clearly in Section 300 of the
Penal Code. When any of these five exceptions is proven, the offence is reduced from murder to
culpable homicide not amounting to murder under s304.

Exception 1: Grave and Sudden Provocation

The Exception 1 related to the deprivation of self-control on a grave and sudden provocation.
Defence of provocation is a mitigating factor which will reduce a conviction of murder to one of
culpable homicide. The rationale behind this defence is to focus on the ability of the accused of
the power of self-control but it is not a complete defence. This exception applies when an accused
is deprived of his power of self-control by grave and sudden provocation and causes the death.
In reference of R v Duffy (1949) case, the provocation can be defined as an act or series of act
by the deceased to the accused which would cause in any reasonable person and actually causes
in the accused a sudden and temporary lost of control, tendering the accused subject to passion
and to make him not the master of his own mind.

Provocation is subjected to 3 limitations before Exception 1 to Section 300 of the Penal Code can
be invoked. Firstly, the provocation must not be sought/ voluntarily provoked by the offender.
Secondly, the provocation is not anything done in obedience to the law or a public servant in the
lawful exercise of the powers of such public servant. Lastly, the provocation is not given by any-
thing done in exercising the right of private defence. In the case of Mohd Sulaiman (1994), the
court stated that the accused had illegally broken into the shop, and was in the process of com-
mitting a theft. It would be ludicrous to suggest that he might be exercising his right of self-defence
in stabbing the deceased until the deceased had poured boiling water to him. As such, the ac-
cused cannot rely on the defence of a grave and sudden provocation since provocation was given
in the exercise of the right of private defence.

To fulfil the exception of provocation, there are several elements that need to be fulfilled. The first
element is where the provocation must be grave and sudden to deprive the accused of the power
of self-control. The act of the killing must be done under provocation and the fatal blow should be
traced to the influence of passion arising from provocation. In the case of Chong Teng v PP

2 | Page
(1960), anger and loss of self-control under the circumstances was unreasonable, notwithstand-
ing the fact the accused may have paid heavily in cash for her sexual services. The accused
should have exercised the same degree of self-control as any other ordinary person in a prosti-
tute/ client environment. On another note, suddenness means recent in time. In PP V Abdul Razak
Dalek case, the word sudden involves two elements. First, the provocation must be unexpected
and secondly, the interval between the provocation and the homicide must be brief. The test of a
reasonable man in relation to provocation is that classes and background of accused himself. In
Che Omar Mohd Akhir v PP case, to determine what amounts to a grave and sudden provocation,
the court may take into account the habits, manners and feelings of the class of community to
which the accused belongs, but not the particular idiosyncracies of the accused. The second
element is there must be a link between the provocation and the killing. In this situation, an ac-
cused has caused death whilst he was deprived of the power of self-control by grave and sudden
provocation. In Koh Swee Beng (1990), the accused claimed provocation because he heard that
the deceased had assaulted someone whom he treated as his own father. At the time when he
was told of the assault, there was no sudden and grave provocation caused to the accused. The
court held that the accused did not lose his self-control when he heard of the assault but instead,
he had the presence of mind to arm himself with the knife before killing the deceased. In those
circumstances, it cannot be said that the killing was because of provocation. In Chong Teng
(1960), the accused had gone to the market to look for the deceased and to fight with him. He
claimed that he had been provoked by the deceased because the deceased has taken away his
wife sometimes ago. The court found that on the facts, the taking away of the accused’s wife
happened long ago. Even it was a provocation, it could not be said to be grave and sudden. The
third element of provocation is there must be no cooling period. Cooling period refers to the lapse
of time between the provocation and killing. In the case of Mohd Yassin (1994), the court held,
the incident did not grave and sudden, because of the accused have time to plan how to kill the
deceased, thus, no cooling period. The last element that needs to be fulfilled is the proportionality
of retaliation. The retaliation must be in proportion to the degree of provocation and vice verse.
The objective test is whether the degree of loss of self-control was commensurate with the sever-
ity of the provocation. In this circumstances, the words grave and sudden must be decided by
comparing the nature of the provocation with the retaliation. It is not possible to determine whether
the provocation is grave without considering the act which resulted from the provocation. Other-
wise, some minor provocation can be used deadly force. The principle is that the retaliation must
have some relation to the provocation. In AG For Ceylon and Don John Perera (1953), the ac-
cused shot and killed a woman together with all members of the family, following to a long period

3 | Page
of ill-will between them, as well as of threat and throwing stone by the deceased’s family. On
being charged for murder, the accused claimed he was provoked. Appeal dismissed by the court.
In N Govindasamy V PP (1976), the accused is a Hindu and was very unhappy with his daughter
who had a Muslim boyfriend. One night, the deceased went to see the girl’s father and a quarrel
started during which the accused inflicted 7 fatal wounds on the deceased and he claimed prov-
ocation. The court held that even if the conduct of the deceased was a provocation, it was not
sufficient to be grave and sudden. Moreover, the accused by inflicting 7 fatal wounds to the head
of the deceased, sufficiently had acted with gross and savage violence. Thus, the accused was
convicted of murder.

Exception 2: Exceeding the right of Private Defense

The rationale behind this Exception 2 is to give formal mitigating factor in cases where an accused
who in the initial stage exercises his right of private defence but has exceeded that power and
causes death to the person against whom he is exercising such right of defence. Exception 2 is
applicable when an accused has exceeded what is required objectively for the purpose of private
defence but was in the position whereby he was not able to estimate whether he has done what
is required to defend himself.

In Teoh Seng Lian (1986), the exercise of such right in exceeding of the power given by the law
which results in the death of the attacker does not amount to murder but only amounts to culpable
homicide not amounting to murder. There are four (4) necessary elements for invoking this ex-
ception. Firstly, the right of private defence arises ( S96-105 PC). The right of private defence
must first arise (s97) before Exception 2 can be invoked. In PP v Dato' Balwant Singh, the right
of private defence commences as soon as there is a reasonable apprehension of danger to the
body of a person and this right continues for so long as such apprehension of danger to his body
or life exists. If a person either has time to have recourse to seek protection of a public authority
or inflicts more harm than is necessary for the purpose of defending his life and limb then such a
right will no longer be available. Based on the facts of the case, the apprehension of danger that
the accused had to his body and life was reasonable as the deceased was armed with a stick that
was a thick branch, big enough to cause a person's skull or bones to crack if hit with it. Thus, the
accused was entitled to exercise his right of private defence.Secondly, the right has been exer-
cised in good faith. In this circumstances, the accused has a reasonable belief that the harm was

4 | Page
necessary (subjective) and has exercised the “due care & attention”. Under Section 52 of the
Penal Code, nothing is said to be done or believed in good faith which is done or believed without
due care and attention. In the case of Teoh Seng Lian (1986) v PP, the accused's action is in a
good faith and not amounting to murder. Thirdly, it must not be done with an excessive harm than
what is necessary for the defence of property or the person. In the case of Soosay v PP, the
appellant with his friend tried to take back the gold chain from the deceased. Therefore, a quarrel
occurred between them and the deceased threw the knife and threatened his friend. The appellant
kicks the deceased and stabbed the deceased several times. The court held that there was a right
to private defences but exceeds when the knife fell and stabbed the deceased. Lastly, it must not
be done with intention of premeditation. Pre-meditation involves an element of planning and/or
decision.

Exception 3 - Public Servant Exceeding his Power

The aim of this exception is to proffer a wider perimeter to the authorities who enforce the law. In
this exception, there are four elements involved in this defences. Firstly, the accused must be a
public servant, which mean to advance the public justice. Secondly, he is exceeding the power
given by law and caused death. Thirdly, he takes action in good faith and believe that it is lawful
and necessary. An accused person must be in good faith believe that his act is lawful under the
law and is required in order to discharge his duty as a public officer. Even if an accused acts
outside his power, this exception is still applicable to him if he believes that he acted within his
power. In order to justify the act done, an accused must prove that he believes his act is lawful
and necessary which can be determined through the facts and surrounding circumstances of each
case. And the last element is no malice. The act must be performed without any will-ill towards
the victim whereby the force that is used by a public servant must be a moderate and appropriate
according to each singular case. In Dakhi Singh AIR (1955), a suspected thief who had been
arrested by the Police Constables escaped from the running train. One of the constables pursued
him with a view to effect his re-arrest and when he was not in a position to apprehend him, he
fired at him but in that process, he hit the fireman of the engine and killed him. The court held the
case was covered by exception 3 to S 300 Penal Code as there was no ill-will between accused
and deceased, the accused was a public servant and his object was an advancement of public
justice and the accused exceeded the power given to him by law and he caused the death of the
fireman by doing an at which he in good faith believe to be lawful and necessary to the discharged
of his duty.

5 | Page
Exception 4: Sudden Fight

The fight must be sudden, without premeditation and the person who committed the offence must
have acted in anger, in the heat of passion upon a sudden quarrel. He must also not take any
undue advantage or act in a manner that is cruel. To succeed under this exception, there are
several elements need to be fulfilled.

The first element in a sudden fight in the heat of passion upon a sudden quarrel. In a sudden fight,
it does not matter who offers the first provocation or who commits the first assault. In SIS V State
of Punjab (1973) case, where words are used, it is sudden quarrel and not a sudden fight. It is
not a sudden fight when there is no use or attempted use of violence. In another case, Teoh Seng
Lian (1986), to constitute a fight, it is not necessary that weapons must be used. An ‘affray’ can
also be a fight. Even if there is only one party successful in landing a blow on his opponent. In
order to constitute a fight, it is necessary that blows be exchanged even if the blow does not hit
the target. The second element is an absence of premeditation whereby it involves an element of
planning and decision. In Kirpal Singh AIR (1951), it was stated that to constitute a premeditation
killing, it is necessary that the accused should have reflected with the view to determine whether
he should or should not kill and he should have determined to kill as a result of that reflection.
That is to say, the killing should be a predetermined killing upon consideration and not a sudden
killing made under momentary excitement or impulse of passion. Evidence of premeditation can
be furnished by formal grudges or previous threats or expression of bad feelings by acts of prep-
aration to kill, such as obtaining a deadly weapon or selecting a very dangerous weapon in pref-
erence to a less dangerous. Weapon and by the manner in which the killing was effected such as
repeated shot. A repeated shot can be construed as sufficient act of premeditation. Thirdly, no
undue advantage or acted in a cruel or unusual manner. This may be assessed primarily, by
comparing the methods of fighting. In Mohd Kunjo v PP (1978), a fight broke out between 2 per-
sons, following an argument there was a wrestling match followed by an exchange of blows. The
accused then run to the storeroom, return with an exhaust pipe and struck the deceased on his
head 3 to 4 times. Deceased dies and he was charged for murder. He claimed a sudden fight.
The court held that sudden fight did not apply because it could be difficult for the accused to show
he had not taken undue advantage or acted in a cruel and unusual manner.

6 | Page
Exception 5: Consent

The last exception is consent. It is not a murder when the death is caused to a person above 18
years old, who suffers death or risk of death with his own consent (Section 90 Penal Code). Con-
sent must be voluntary and genuine and not based on a misconception of fact. It must be une-
quivocal and not an expression of willingness – to die as one possible option. There are two
elements that need to be fulfilled under Exception 5.

First, the consent must be voluntary and genuine consent and not based on a misconception of
fact. In the case of Poonai Fatimah (1869), a snake charmer told his audience that if they were
bitten by his snake, he had an antidote. The deceased allowed himself to be bitten and then he
died. The court held Exception 5 did not apply as it was based on a misconception of fact and
there was no willing expression of consent to dies. Secondly, the consent must be unequivocal
and not an expression of willingness, to die as one possible option. In the case of Ambalathil
Assainar (1955), the wife refused to go back to her mother and said she would rather die. The
husband killed the wife and claimed consent. The court held, the Exception 5 did not apply, his
wife had not unequivocally consented to be killed.

7 | Page