Tutorial Questions – 8

(a)

Homicide: When one human being kills another.

Types of Homicide:
(a) Lawful Homicide: A non-criminal homicide ruling usually committed in self-defence
or in defence of another. A homicide justifiable or excusable under certain situations
under the law.
(b) Unlawful Homicide: A homicide criminal in nature.

Homicide Offences Under English Law: Generally, includes murder and manslaughter. The
main difference between them is that murder requires intent whereas manslaughter does not.
Simply, the difference is the state of mind of the killer.

Homicide Offences Under the Penal Code:

1. Murder;
2. Culpable homicide not amounting to murder;
3. Causing death by rash or negligent conduct.

Actus Reus of Homicide: Causing the death of a human being.

Mens Rea of Homicide: Different for each type.

Burden of Proof of Homicide: Beyond reasonable doubt1.

5. S.300 Murder2
1. An Act
2. Done with the intention to cause death or knowledge that he is likely to cause death;
3. Death.

Actus Reus of Murder

An act that causes the death of another.

Mens Rea of Murder

Any one of the four limbs of S.300 of the Penal Code, generally intent or knowledge.

1
Woolmington v Director of Public Prosecution
2
https://www.umlawreview.com/lex-omnibus/a-guide-to-understanding-culpable-homicide
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 Differentiating the 4 Limbs Under S.300
Limb (a): Intent can be deduced where a killing is committed in a gruesome, violent, savage
manner or when extensive wounds are found on the body of a victim3. Deliberate use of
dangerous weapons leads to an irresistible deduction that their intent is to cause death4.

Limb (b): This limb requires that it is proven that the death of the victim is caused by
intentionally inflicting injuries which is fatal for a person. It must be shown that the killer
was certain that his act would result in the death of another and that the certainty came from
his knowledge of the victim’s situation or health condition5.

Limb (c): This limb requires that an injury intentionally inflicted by the killer must be
sufficient in the ordinary cause of nature to cause death6.

Limb (d): This limb requires knowledge. The killer must have known what he did would
result in death7.

Exceptions that Reduce Murder to Culpable Homicide:

(a) Grave and Sudden Provocation;
(b) Exceeding Private Defence/Self-defence;
(c) Exceeding Public Power/Within duty;
(d) Sudden Fight/Heat of the Moment;
(e) Consent/Self-Harm.

S.302 Sentence for Murder

Death.

3
Mohd Yazid Bin Hashim v PP (1999)
4
Ghazali Bin Mat Ghani v PP (1998)
5
Mohd Naki v PP (2014)
6
Mohd Isa v PP (2013); PP v Visuvanathan (1978)
7
William Tan Cheng Eng v PP (1970)
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 6. S.299 Culpable Homicide8
1. An act
2. Done with intention to cause death or knowledge that his act would cause death;
3. Death.

Actus Reus of Culpable Homicide

An act that causes the death of another.

Mens Rea of Culpable Homicide

Generally, intent or knowledge.

Difference Between Murder and Culpable Homicide: The line between culpable homicide
and murder is thin but identifiable. Both offences require an act that causes the death of
another but differ in intent and knowledge. Simply, when a death is a likely result of an act, it
is culpable homicide. If the death is imminent or a probable result, it is murder. Hence, one
must determine if a person has a high level of knowledge as to whether his act will cause
death to determine murder or culpable homicide.

Threshold of Murder and Culpable Homicide: The Mens Rea (knowledge) of a killer must
reach a certain threshold to make it a murder. Otherwise, it will fall under culpable homicide.9

Exceptions that Reduce Murder to Culpable Homicide

(a) Grave and Sudden Provocation;
(b) Exceeding Private Defence/Self-defence;
(c) Exceeding Public Power/Within duty;
(d) Sudden Fight/Heat of the Moment;
(e) Consent/Self-Harm.
8
https://www.umlawreview.com/lex-omnibus/a-guide-to-understanding-culpable-homicide
9
Tham Kai Yau v PP
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(b)

7. S.304A Causing Death by Negligence

1. An act;
2. Done with rashness or negligence;
3. Death.

Actus Reus of Causing Death by Negligence

An act that causes the death of another.10

Mens Rea of Causing Death by Negligence

Generally, rashness or negligence. Rashness and negligence are not the same thing. Rashness
refers to knowingly take on a reasonable risk. Negligence refers to unintentionally taking an
unreasonable risk.

Rashness and Negligence Under Case Law

PP v Mahfar Bin Sairan (2000): A crime in which exists rashness or negligence does
not fall under culpable homicide.

Rashness:

Reg. v Nidamarti Nagabhushanam (1872): Culpable Rashness is acting with the

consciousness that mischievous and illegal consequences may follow, but with the hope that
they will not and often with the belief that the actor has taken sufficient precautions to
prevent their happening.

Empress v Idu Beg AIR (1881): Criminal rashness is hazarding a dangerous or wanton
act with the knowledge that is so, and that it may cause injury, but without intention to cause
10
PP v Moo He Hong & Anor (2018)
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injury, or knowledge what it will be probably be caused.

Negligence:

Reg: Acting without the consciousness that the illegal or mischievous effect will follow,
but in circumstances which show that the actor has not exercised the caution incumbent upon
him, and that, if he had, he would have had the consciousness.

Empress: Criminal negligence is the gross and culpable neglect of failure to exercise
that reasonable and proper care and precaution to guard against injury either to the public
generally or to an individual in particular, which having regard to all the circumstances out of
which the charge has arisen, it was the imperative duty of the accused person to have
adopted.

Standard of Negligence: There are several positions positions taken by courts.

1 – The standard of negligence is equivalent to the English Offence of manslaughter by gross

negligence – high degree of negligence beyond tortious negligence.

2 – The standard equivalent to negligence in tort cases.

3 - Intermediate standard.

Gross Negligence Standard: The courts have relied on this approach on the basis that the
application of English manslaughter standard clearly distinguished between civil and criminal
liabilities; and that S.304A was designed to fill the gap in the law where matters fall short of
culpable homicide which requires subjective intention or knowledge and not negligence,
however gross. This test was abandoned later11.

Civil Standard: The approach equated the civil and criminal standards of negligence.

Woo Sing & Sim Ah Kow v R (1954): The only difference between negligence and
criminal offences is standard of proof.

Lim Poh Eng v PP (1999): The standard of negligence in criminal cases should be the
civil standard of negligence. An intermediate standard of negligence was too elusive a
concept to be workable.

Intermediate Standard: This approach is used to make a demarcation between civil and
criminal law12.

PP v Joseph: Malaysian courts have clearly rejected the gross negligence standard but
is unclear whether the civil standard or intermediate standard will be adopted.

11
Cheow Keok v PP
12
Dabolkhar v King AIR (1948)
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Test Applied In Malaysia: Currently, the test that need to be applied in determining whether
one had acted negligently is that whether or not a reasonable man in the same circumstances
would have been aware of the likelihood of damage or injury to others resulting from such
conduct and taken adequate and proper precautions to avoid such damage or injury13.

A crime is a wrong which affects the public or an act or omission that can be punished
under criminal law. In order a person to be criminally liable, they must have the elements of
Actus Reus which is a guilty act or omission at the time the offence was committed; Mens
Rea which is a blameworthy state of mind; and Causation which is the coincidence of Actus
Reus and Mens Rea.

In accordance to the current case, the main issue is whether Desmond is liable under
Section 299 of the Penal Code.

Under Section 299 of the Penal Code, culpable homicide not amounting to murder refers
to an act or omission; done with intention to cause death or knowledge that his act would
cause death; and results in the in the death of another. In reference to an act or an omission,
Section 33 of the Penal Code states that an act is not only a single act but also a series of
acts and omission denotes a series of omission too. This means that even if the person’s act or
omission did not directly cause the death of someone, he can still be liable under a series of
acts or omissions leading to the death.

Additionally, under Section 43 of the Penal Code, criminal omission is said to occur
when the omission is illegal or if there is a failure to act when a duty to act is imposed. Acts
that consists of illegal omissions include crimes listed under Sections 283 until 298 of the
Penal Code. Additionally, every individual has a duty to act whether it is a duty to act by a
statute; a duty to act by a contract; a duty to act by a special status relationship; a duty to act
by voluntary assumption; or a duty to act by causing a risk or harm. A case that uphold this is
that of R v Instan, where the defendant was the niece of the victim where she invited her
aunt to come stay with her but failed to take care of her and eventually the aunt died. It was
held that when a defendant assumes responsibility to care for another, the defendant would
then owe a duty of care towards the victim. Also, there is the case of R v Miller, which in
this case, the defendant was a vagrant who had spent the evening drinking before returning to
the property where he was squatting. He fell asleep with a lit cigarette in his hand, which
started a fire. The defendant woke and, seeing the fire, took no steps to extinguish it but
simply moved to sleep in a different room. Eventually the whole house caught fire, causing
over £800 worth of damage. The defendant was charged with arson. It was held that the court
concluded that as he was responsible for having created the dangerous situation, the
defendant was under a duty to take action to resolve it once he became aware of the fire. It
was not necessary that the defendant was subjectively aware of the risk of damage posed by
the fire, provided that this would be obvious to a reasonable person who troubled to turn his
mind to the matter. The defendant was therefore liable for his omission to take any steps to

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Adnand v P
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put out the fire or seek held, and was accordingly convicted of arson.

Hence, we can infer from above that the Actus Reus under 299 of the Penal Code is the
act or omission that causes the death of another as stated in the case of PP v Moo He Hong
& Anor (2018); and the Mens Rea under 299 of the Penal Code is, generally, intent or
knowledge.

In relation to the Mens Rea, Intent is not defined in the Penal Code. Cases (Bhagwant
Appaji v Kedari Kanshinath; Ram Kumar v State) have defined it as an aim or effort for
one object; or purposely doing something to achieve a particular end. Under Section 39 of
the Penal Code, foreseeing or knowing is not the same as having intent. Intent needs to be
examined based on the types of offence and circumstances of the case.

Additionally, knowledge too is not defined in the Penal Code. It’s a forceful word that
invites certainty and not mere probability. It is differentiated from reason to believe and intent
as can be seen in the case of Jai Prakash v State.
Take note, it is important to note the difference between murder and culpable homicide:
The line between culpable homicide and murder is thin but identifiable. Both offences require
an act that causes the death of another but differ in intent and knowledge. Simply, when a
death is a likely result of an act, it is culpable homicide. If the death is imminent or a
probable result, it is murder. Hence, one must determine if a person has a high level of
knowledge as to whether his act will cause death to determine murder or culpable homicide.

Hence, from above we can infer that the Mens Rea (knowledge) of a killer must reach a
certain threshold to make it a murder. Otherwise, it will fall under culpable homicide as in the
case of Tham Kai Yau v PP.

Also, the exceptions that reduce murder to culpable homicide include grave and sudden
provocation; exceeding private defence/self-defence; exceeding public power/within duty;
sudden fight/heat of the moment; and consent/self-harm. These are provided under the
“Exceptions” in Section 300 of the Penal Code.

Causation refers to when both the Actus Reus and the Mens Rea coincide. This is in order
establish a criminal liability against an accused for the crime resulting from his act or
omission to act. The types of causation include factual cause and legal cause.

Factual Cause refers to a sequence of events that results in an outcome being caused by
one or more actions or inactions. It requires proof that a person’s conduct was a necessary
condition of the consequence and it is established by proving that the consequence would not
have occurred but for a person’s conduct. It is also known as the “but for causation”.

An illustration of factual causation can be seen in several cases. In the case of R v Pagett,
if the accused had not fired first, the police officers would not have fired their weapons, and
then the hostage would not have died. In the case of R v White (1910), the accused tried to
poison his mother by putting cyanide in her drink but she died of attack and not because of
the poison. The accused cannot be liable for an offence on that consequence (murder), but he
is still liable for an attempted offence (attempted murder).
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 On the other hand, legal cause refers to a proof that a person is liable in law for whatever
happened. It requires proof that a person’s conduct was sufficiently connected to its
occurrence. It could be merely established if the said person’s conduct was an operating and
substantial (not trivial) conduct, but not necessarily the only cause of the consequence when
there are two or more legal causes of the same consequence. It is also known as the
“imputable causation”.

An illustration of legal causation can be seen in a case of R v Smith where if a person

received bayonet wounds during a fight and pierced his lung causing hemorrhage and on the
way to the hospital his friend tripped and dropped him twice. Despite given bad treatment on
arrival, the friend is still liable.

Furthermore, there is a chain of causation which is a series of events. A person will not be
liable if there is an intervening act within this series of events that breaks its chain of
causation. To be more specific, to break the chain of causation it must be shown that there is
something which disturbs the sequence of events (new cause) and it must be extraneous or
extrinsic. An accused will not be liable to have caused the result if there was an intervening
act (Novus Actus Interveniens) which is sufficient to break the chain of causation. However,
not all intervening act can break the chain of causation. The types of intervening acts include
act of a third party, act of the victim, improper medical treatment, and unforeseen natural
event.

Another area of discussion that is relevant is that of the foreseeability test. This test is
currently use and applied in order to determine whether one had acted negligently. It looks
into whether or not a reasonable man in the same circumstances would have been aware of
the likelihood of damage or injury to others resulting from such conduct and taken adequate
and proper precautions to avoid such damage or injury. This can be seen in the case of Adnan
v P.

Applying the law to the current case, …

In conclusion, …

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