Zaki

Issue

The issue is whether Zaki could be found liable for the offence of culpable homicide not amounting to
murder under Exception 1 to section 300 of the Penal Code and punishable under section 304(a) of the
Penal Code.

Law

To prove the culpable homicide not amounting to murder due to provocation, there are six elements
that must be fulfilled:-

1. Provocation come to the accused. The accused must not seek/ initiate the provocation. In the
case of Chong Teng v PP, the accused had gone to the market to fight with the deceased who
had allegedly enticed the accused’s wife and interfered with his daughter. The deceased died.
The court held that accused cannot go to provocation. He was guilty of murder.
2. Grave and sudden provocation. Sudden means the provocation must be unexpected. Grave
means serious, alarming and severe. In the case of PP v Kwan Chin Cheng, the accused and the
deceased were lovers for a number of years. The deceased began dating another man but
did not tell the accused. The deceased ended her relationship with the accused. The
accused arranged to meet the deceased saying that he wanted to repay some money, but
he actually wanted to beg her to resume their relationship. The respondent answered
callously that the accused was useless, doubted whether the accused dare to kill himself,
she was happy with a new boyfriend, and his death would have nothing to do with her. Upon
hearing that, the accused stabbed her to death. The accused was convicted for culpable
homicide not amounting to murder.
3. Link between provocation and killing. The accused must have killed because of loss of self-
control resulting from the provocation. In the case of PP v Koh Swee Beng, the accused claimed
he acted on provocation when a man who he treated as father was assaulted by the deceased.
The evidence showed that when he first heard about the assault, he did not lose self-
control as he has the presence of mind to arm himself with a knife. When he confronted the
deceased and the deceased used abusive language against him, he did not attack him
there and then, but told one Ah Geok to snatch tools from the deceased. He was guilty of
murder.
4. No cooling off period. There must be no cooling off period resulting the loss of the efficacy
of the provocation. A cooling off period will not satisfy the immediacy associated with
hoot-blooded impulsive killing. In Mohammed Yassin v PP, the accused punched the deceased
due to disagreement over table tennis game. Fight was however prevented. Later that
night, the accused sharpened the handle of his toothbrush. Next morning, he stabbed the
deceased to death. He was guilty of murder.
5. The retaliation is proportionate. The retaliation must be proportionate to the provocation. The
accused cannot use deadly weapon against trivial provocation. In N Govindasamy v PP, the
appellant inflicted seven fatal wounds to the deceased’s head. The deceased provoked the
appellant which affected his religion, his daughter’s honour and his conduct as a father. The
appellant had acted with gross and savage violence on an unarmed man. The retaliation was
disproportionate to the provocation given by deceased.
 6. Reasonable man test. The accused must prove that any reasonable man would have
reacted the same way he did to the provocation. In PP v Lim Eng Kiat, the accused was charged
with the murder of his wife by strangling her to death. He claimed that at the day of the killing,
the wife confessed that she committed adultery and made an insulting remark to the size of his
penis. Any ordinary person of the accused’s race, class and background would have been
provoked in similar circumstances. He was guilty of culpable homicide not amounting to
murder.

Application

For the first element, provocation come from Arni to Zaki who scolded Zaki during a dinner.

For the second element, the provocation is grave and sudden, when Arni said to Zaki that he is a useless
husband, asked divorce from him and he better die and it was not expected by Zaki.

For the third element, there is link between the provocation of Arni and her killing when Zaki loss of self-
control resulting from Arni’s provocation.

For the fourth element, there is no cooling off period as Zaki took the plate after he was angered by
what Arni said and hit Arni with the plate several times.

For the fifth element, the retaliation is proportionate as Zaki took the nearest available item to attack
Arni.

For the sixth element, put in the Zaki’s situation, a reasonable person would also lost self-control
because a husband who lost his job would get angry if the wife called him useless, better die and asked
for divorce.

Conclusion

All elements of culpable homicide not amounting to murder due to provocation may be proven against
Zaki. He may be liable and punishable under section 304(a) of the Penal Code to imprisonment which
may extend to 30 years, and shall also be liable to fine.