Professional Documents
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Culpable Homicide and Murder
Culpable Homicide and Murder
- Though an act of killing may fall under one or more of the four limbs in Sec. 300, in
order to constitute murder, it is only necessary to establish that an act falls within only
one of the four limbs.
Tham Kai Yau: A higher degree of mens rea is essential in establishing the offence of murder.
- Whether the offence is culpable homicide or murder depends upon the degree of risk
to human life. If death is a likely result, it is culpable homicide; if it is the most probable
result, it is murder: Illustration (d) of Sec. 300
A comparison between the definitions of the limbs under Sec. 299 and 300 shows the higher
degree of mens rea that is required:
- First limb of Sec. 299 & 300(a): Though they are worded similarly (“an intention to
cause death”), a higher degree of mens rea is needed to establish the offence of
murder.
- Tham Kai Yau: Where there is an intention to kill, the offence is always murder.
- Second limb of Sec. 299: Requires only an intention to cause bodily injury likely to
cause death.
- Sec. 300(b) OR (c): There must be an intention to cause bodily injury which the
offender knows to be likely to cause death, OR an intention to cause bodily injury
sufficient in the ordinary course of nature to cause death.
- Where the offender knows that the particular person injured is likely, either
from peculiarity of constitution, immature age, or other special circumstances,
to be killed by an injury which would not ordinarily cause death, it is murder.
- Tan Cheow Bock: The unusual nature of an injury and the high degree of chance by
which it was inflicted should not exclude the formation of an intention to inflict that
particular injury within the meaning of Sec. 300(c).
Knows it is imminently dangerous that it must in all probability cause death – Sec. 300(d)
Mahfar bin Sairan: It is insufficient for the accused to merely know that some grievous hurt
would be caused to the deceased.
- The knowledge required is no less than knowledge that his act would in all probability
cause death or such bodily injury as is likely to cause death.
- The accused must know that his act was so imminently dangerous and committed in
utter disregard that death would result from such act.
The limb contemplates the doing of an imminently dangerous act to people in general and
not to a particular individual. E.g: Illustration (d) to Sec. 300.
- William Tan Cheng Eng: Where the accused drove his car recklessly and in a dangerous
manner, disregarding other users of the road, as he was chasing the car in which his
ex-girlfriend and another man rode, and as a result killed a motorcyclist. Held: The
conviction was set aside as it had to be proven that the accused knew that his act of
driving in such a manner was so imminently dangerous that it must in all probability
cause death or such bodily injury as was likely to cause death.
The limb restricts liability to only cases where there is no excuse for incurring the risk of
causing death.
- Culpable homicide with knowledge that an act is imminently dangerous will not
amount to murder where the accused has an excuse for incurring the risk.
- It means something which is a justification of the act and does not merely mitigate the
crime.
- Emperor v Dhirajia: The accused, while in panic and trying to escape her husband,
jumped down a well with her baby in her arms. The baby died and the accused was
convicted of murder. Held: On appeal, it was found that the accused’s fear and panic
was enough of an excuse to conclude that she did not know that her act would in all
probability cause the baby’s death.
- Vijayan: Where it was argued that questioning the accused’s right as a Malaysian to
live and work in Singapore followed by challenging the accused to a fight, which
resulted in the accused losing his self-control and attacking the deceased, did not
constitute grave and sudden provocation.
- Chian Swee Ong: Where the accused was charged for the murder of a foreign
prostitute, whom he had proposed to and ultimately rejected him in a humiliating
manner, it was held that the relationship between the two was at all times one of
prostitute and client, and thus, there was no reason for the accused to lose his self-
control when the prostitute refused his hand in marriage.
- Kwan Cin Cheng: When the accused met with the deceased and spoke of his suicidal
intentions, the deceased replied that the accused was useless and doubted that he
would dare to kill himself and further asserted that she was happy with her new
boyfriend and that his death would have nothing to do with her. Upon hearing this,
the accused stabbed the deceased to death. The defence of grave and sudden
provocation was established and the accused was convicted on a reduced charge of
culpable homicide not amounting to murder.
- Provocation in the form of words per se does not constitute a grave and sudden
provocation, even if the words seemed gravely provocative (Kuan Ted Fatt).
- However, a person may, by repeated or continuous verbal provocation arouse
another to a state of mind when the provocation immediately preceding the
act of killing is the last straw that breaks the offender’s self-control.
- Mohammed Yassin: Where a fight between the accused and the deceased had been
prevented, that night the accused sharpened the handle of a toothbrush and stabbed
the deceased in the neck with it the following morning. Held: The incident that
occurred the previous day did not constitute a grave and sudden provocation as there
was a cooling period of one night.
Proportionality of retaliation:
- Retaliation should not be disproportionate to the provocation.
- Ahmad Khairul Fa’ais Mat Dahlan: It is necessary to balance the degree and nature of
the provocation against the acts of violence committed by the accused.
- N Govindasamy: The appellant’s act of inflicting seven fatal wounds to the head of the
deceased was found to be disproportionate to the deceased’s conduct which affected
the appellant’s religion and conduct as a father, as well as his daughter’s honour.
Application of the reasonable man test:
- Ikau Anak Mail: It is necessary to satisfy that such acts of provocation which deprived
the accused of the power of self-control would have also deprived a reasonable man
of the same.
- Che Omar Mohd Akhir: It is not enough to show that the accused was provoked into
losing his self-control; it must be shown that the provocation by its gravity and
suddenness would cause a reasonable man to lose his self-control and induce him to
do the act.
- The reasonable man is he who has the habits, manners and feelings of the
class or community to which the accused belongs.
- In order to successfully invoke the defence, it must be proven that a reasonable, when
subjected to the same provocation would:
- Seow Khoon Kwee: The accused hid a piece of glass under a wash basin not with the
intention to kill the deceased, but for his own protection, as he knew that the
deceased had on previous occasions beaten up other prisoners. Held: There was no
premeditation on the part of the accused as a sudden fight broke out when the
deceased punched the accused’s eye. The glass was used by the accused as a weapon
against the deceased.
There was no undue advantage taken or any cruel or unusual manner:
- Where the accused resorts to the use of weapons against an unarmed person, he is
unlikely to be allowed the defence of sudden fight.
- Narayan Nair Raghavan: It is impossible to say that there was no undue
advantage when a man stabs an unarmed person who makes no threatening
gesture.
- Mohd Sulaiman: The accused was precluded from relying on the exception as it could
not be said that he had not taken undue advantage or acted in a cruel manner when
he stabbed to death an elderly man who carried no weapon and who had been
attempting to prevent him from committing theft.
Exception 5 – Consent
When the person, whose death is caused, being above 18 years old, suffers death or takes
the risk of death with his own consent.
- Consent must be voluntary and genuine; not based on a misconception of fact.
- It must be unequivocal; not merely a willingness to die.
- Ambalathil Assainar: When the deceased refused to go back to her mother’s house
and said she would rather die, the act of the accused killing her does not fall under the
exception as the deceased’s consent was not unequivocal.
- Dasrath Paswan: Where a depressed man, who informed his wife of his suicidal plans,
was asked by his wife to kill her first before killing himself. He then killed her, but was
arrested before his suicide. Held: His act of killing her falls under the exception.