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General and
specific defences
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Module 04
General and Specific Defences

Provocation – diminished responsibility – sudden flight – mistake – accident – consent – private

defence – duress and necessity – intoxication – infancy

When is the defence of provocation available?

The defence of provocation is commonly raised as a defence to offences causing death, such as
murder, but it may also be raised for other offences. The rationale is that an accused who has lost
self-control in response to aggressive provocation is less criminally culpable.
In the case of murder, provocation works as a partial defence, which, if successfully pleaded,
reduces the offence from murder to culpable homicide: Penal Code section 300 Exception 1.
While murder carries a death penalty, culpable homicide not amounting to murder carries a
penalty of life imprisonment. Life imprisonment may extend to 30 years if the act was done with
the intention of causing death, or up 10 years if the act was done with knowledge that it was
likely to cause death, but without the intention to cause death.
For offences not causing death, the defence of provocation may be relied upon as a mitigating
factor on sentence.
To rely on provocation as a defence to murder, defence counsel must present evidence about:
• the nature of the offender’s act that caused death
• the time that elapsed between the provocation and the act which caused the death
• the offender’s conduct during the interval, and
• any other circumstances tending to show the state of the offender’s mind.
In to plead provocation successfully, the accused must satisfy the court on the balance of
probabilities that the provocation:
• was so grave and sudden that the accused had no time to reflect before committing
the impugned conduct: Penal Code s 300 Exception 1 Explanation and Illustrations

General and Specific Defences

(a)–(f); Chong Teng v PP [1960] 26 MLJ 153; Chan Kwee Fong v Public Prosecutor
[2010] 1 MLJ 441; PP v Surbir Gole [2017] 2 CLJ 621 (at paragraphs 33-39); and
Wong Ban Chong v PP [2018] 1 LNS 12.
• was not sought or self-induced: see Chong Teng, and
• has not only deprived the accused of the power of self-control, but would have also
deprived a reasonable man of the power of self-control (“reasonable man test”):
see Chan Kwee Fong v PP [2010] 1 MLJ 441; PP v Lim Eng Kiat [1995] 1 MLJ 625; Lim
Chin Chong v PP [1998] 2 SLR 794; Ikau nak Mail v PP [1973] 2 MLJ 153; and Mat
Sawi bin Bahaodin [1958] MLJ 189.
Gradual and accumulated provocation does not amount to grave and sudden provocation: Che
Omar bin Mohd Akhir v PP [2007] 4 MLJ 309.
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Since the explanation to Exception 1 states that the question whether the provocation was so
grave and sudden as to prevent the offence from amounting to murder is a question of fact,
it is important for the defence counsel to present all available evidence to the court to prove,
on the balance of probabilities, that both elements were present at the time the offence was
committed. See also Lorensus Tukan v PP [1988] 1 MLJ 251; Che Omar bin Mohd Akhir v PP
[2007] 4 MLJ 309; and PP v Surbir Gole [2017] 1 MLJ 549.

When is the defence of ‘sudden fight’ available?

The defence of sudden fight serves as a special exception to murder, which, if successfully
pleaded, reduces the conviction from murder to culpable homicide not amounting to murder:
Penal Code s 300 Exception 4.

‘Sudden Fight’ - Exception 4 to s.300 Penal Code

(Pre-Requisites to Applicability)
• Successful finding by a trial court of the applicability of Exception 4 to Section 300
of the Penal Code accords the Appellant a valid defence to the Section 302 Penal
Code offence rendering him guilty of the lesser offence under Section 304 (a) or (b)
i.e. culpable homicide not amounting to murder.
• Successful invocation of Exception 4 to Section 300 of the Penal Code necessitates
the defence to produce sufficient evidence of:
(i) proof of existence of a sudden fight;
(ii) no evidence of pre-meditation by the assailant/Appellant;
(iii) commission of the actus reus in the heat of passion;
(iv) no evidence of the Appellant/assailant having taken undue advantage or acted
in a cruel manner.
• It is immaterial who started the fight. Please refer to the following cases for in-
depth discussion on the defence: T Paramasparan Thanigajalam v PP [2012] 4 CLJ
309 (CA) per Malik JCA at [38]–[48]; SS Mujebur Rahman Mohd Sultan v PP [2012] 1
LNS 1301; and Chan Kwee Fong v PP [2010] 3 CLJ 671.
• For cases discussing the need for sufficiency of evidence please refeer to Court of
Appeal decisions in Hainie Hamid v PP [2003] 2 CLJ 137 and Mohamad Deraman
v. PP [2011] 3 CLJ 601 which effected trite law pronounced by the Privy Council
in Mohamad Kunjo v. PP [1977] 1 LNS 74 and which was endorsed by the Federal
Court in PP v. Awang Raduan Awang Bol [2005] 1 CLJ 649.
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When are the defences of mistake, accident and consent available?

Mistake
Under criminal law, there are two types of mistakes: mistake of fact and mistake of law. Mistake
of fact is recognised as a valid defence; mistake of law is not.
The Penal Code sets out two types of mistake of fact:
• where a person believes they were bound by law to do an act: Penal Code s 76
• where a person believes they were justified by law to do an act: Penal Code s 79

How to plead mistake?

In order to successfully plead mistake, the accused must prove on the balance of probabilities
that:
• the accused was induced by a mistake to commit the act complained of
• the mistake was of fact (and not of law)
• the accused acted under a mistaken belief that they were bound by law or justified
by law to commit the act complained of, and
• the mistake was believed in good faith.
“Good faith” is defined in section 52 of the Penal Code, and means that the act was done with
due care and attention. In PP v Tunku Mahmood Iskandar [1977] 2 MLJ 123 at page 124, Abdul
Hamid J noted:
“It is a settled principle that to satisfy the court of good faith, a person must show that he had
reasonable grounds for believing that he had acted advisedly and that he had reasonable grounds
for believing that he ought to do what he did.”

See also PP v Mohd Amin bin Mohd Razali [2002] 5 MLJ 406.
Section 52 of the Penal Code defines good faith as “nothing is said to be done or believed in
good faith which is done or believed without due care and attention”. It is arguable that mere

General and Specific Defences

good faith, in the sense of simple belief, is not sufficient. The belief must be reasonable and not
an absurd belief. There must be some reasonable ground for it. Good faith requires not logical
infallibility, but due care and attention. However, there can be no general standard of care and
attention applicable to all persons and under all circumstances. The standard of care and caution
must be judged according to the capacity and intelligence of the person whose conduct is in
question. It must be considered with reference to the position of the accused and circumstances
under which the accused acts. The law does not accept the same standard of care and attention
from all persons – it will vary from case to case.

Accident
Section 80 of the Penal Code states:
Nothing is an offence which is done by accident or misfortune, and without any criminal intention
or knowledge, in the doing of a lawful act in a lawful manner, by lawful means, and with proper
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care and caution.

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“Accident or misfortune” is not defined in the Penal Code. However, the court in R v Ong Choon
[1938] MLJ 227 adopted the definition of accident proposed by Sir James Stephen in his Digest
of Criminal Law (3rd ed) at p 143 where he said:
an effect is said to be accidental when the act by which it is caused is not done with the intention
of causing it, and when its occurrence as a consequence of such act is not so probable that
a person of ordinary prudence ought, under the circumstances in which it is done, to take
reasonable precautions against it.

The defence of accident or misfortune works as a general exception and is applicable to all
offences unless clearly excluded by statute. If successfully pleaded, it entitles the accused to
an acquittal. Section 80 of the Penal Code should be read together with s 105 of the Evidence
Act 1950. The particular wording in s 105 (“the court shall presume the absence of those
circumstances”) indicates that the defence has a burden to prove on the balance of probabilities
that the act (the alleged crime) was, in fact, an accident.
It is also important to bear in mind that, for the defence of accident to succeed, defence counsel
must demonstrate that the accused was doing a lawful act in a lawful manner and that it was
done with a proper care and caution.
In order to plead the defence of accident successfully, the accused must prove on the balance of
probabilities that:
• the alleged offence was the result of an accident or misfortune
• the act giving rise to the accident was not done with criminal intent or knowledge
• the said act was lawful and was performed in a lawful means, and
• the act was done with proper care and caution.
See R v Ong Choon [1938] MLJ 227; and Koh Pong Ing v PP [1977] 2 MLJ 199.

Consent
The defence of consent appears in sections 87 - 92 of the Penal Code. If successfully pleaded, the
accused will be acquitted.
Under section 90 of the Penal Code, consent cannot be given by a person who is:
• “under fear of injury, or under a misconception of fact”
• by virtue of “unsoundness of mind or intoxication, unable to understand the nature
and consequences of that” to which they give consent, or
• younger than 12 years old.
“Consent” is not defined in the Penal Code and it is open to the court to define it by turning its
mind to the factors that negate consent (above). Note that consent may be a partial defence to
murder: Penal Code section 300 Exception 5.
The defence of consent is often relied on in sexual offences, such as rape under ss 375 and 376 of
© Brickfields Asia College

the Penal Code. Sexual intercourse amounts to rape when a woman has not consented, or where
the circumstances fall within any of paras (a) - (g) of section 375 of the Penal Code. The existence
of physical force establishes lack of consent to the sexual intercourse. If a woman submits to
sexual intercourse due to fear, threat or misconception of fact, this will not mean that she has
consented. The accused will need to show that the victim/complainant, whether by her words,
actions or gestures, consented, rather than submitted due to the threat or fear.
It is also important to note that if it is a statutory rape, consent is immaterial where the girl is
under 16 years of age.
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When is the defence of private defence available and what happens if it is exceeded?
Section 96 of the Penal Code states that nothing is an offence where it is done in the exercise
of the right of private defence. This right of private defence is based on the idea that people
have the right to defend their bodies and property from any danger or attack. Private defence, if
successfully pleaded, will lead to the acquittal of the accused.
There are two categories of private defence available under the Penal Code: private defence
of a person and private defence of property. The private defence of a person is covered by
sections  97(a), 100, 101, 102 and 106 of the Penal Code. Broadly speaking, these provisions
cover:
• the rights of a person to defend their own body, and the body of another person,
against offences against the body, and
• the rights of a person to defend their own property, and the property of another
person, against any offences affecting the property.
The scope of self-defence is described and elaborated on in these provisions. The defence lawyer
should consider these provisions carefully before finalising the defence. For example, in order
to consider whether section 100 of the Penal Code (the right of private defence of the body
causing death) is an available defence, the defence lawyer would need to consider whether any
of the circumstances in section 100(s) - (g) apply. Furthermore, even if one or more of these
circumstances exist, the person claiming self-defence needs to show they had a reasonable
apprehension of danger and that the duration of the private defence and the harm inflicted was
not more than was necessary to put an end to the danger. The private defence of property is
addressed in section 97(b), 103 and 105 of the Penal Code.
In order to successfully plead this defence, the accused must use admissible evidence to prove
on the balance of probabilities that:
• the accused (that is, the defendant) was subjected to the offence: Penal Code
section 97;
• the act reasonably causes the apprehension of death or grievous hurt if done or
attempted to be done by a public servant or by the direction of a public servant:
Penal Code section 99(1) and (2)
• the accused would have resorted to the protection of the public authorities if there

General and Specific Defences

was a reasonable opportunity to do so: Penal Code section 99(3), and
• the accused inflicted no more harm than necessary: Penal Code section 99(4).
Apart from the above, the court will also look to other crucial facts, such as:
• the existence of a reasonable apprehension of danger: see PP v Ngoi Ming Sean
[1982] 1 MLJ 24; Ya bin Daud v PP [1997] 4 MLJ 322
• the duration of the right of private defence: see PP v Lee Poh Chye [1997] 4 MLJ 578,
and
• that there was no infliction of harm other than was necessary for the purpose of the
defence: see Lee Thian Beng v PP [1972] 1 MLJ 248.
For further discussion of private defence, see PP v Dato Balwant Singh [2003] 3 MLJ 395; Musa
bin Yusof v PP [1953] 19 MLJ 70; PP v Yeo Kim Bok [1971] 1 MLJ 204; and Lee Thian Beng v PP
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[1972] 1 MLJ 248 (Federal Court).

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Exceeding private defence

The plea of exceeding private defence, which appears in Exception 2 to s 300 of the Penal Code,
provides for a situation where an accused has exceeded the right of private defence permitted
to them in defending their body or property. The defence, if successfully pleaded, would reduce
the charge from murder to culpable homicide not amounting to murder (compare the general
pleas of right of private defence of person and/or property under ss 96–106 of the Penal Code).
In order to successfully plead exceeding private defence, the accused must prove on the balance
of probabilities that:
• the private defence was exercised in good faith
• no harm was inflicted other than that necessary to defend the person or property,
and
• the accused acted without premeditation or intention.
It is also necessary to bear in mind that the law does not confer a right of self-defence if the
accused invites an attack by provoking another person which then results in the death of the
other person.

When are the defences of duress and necessity available?

Duress
Generally, the defence of duress under s 94 of the Penal Code is invoked by an accused who
claims that they were subjected to threats before commission of the crime.
Duress cannot be used as a defence for murder or for offences against the state which are
punishable with death.
In order to successfully plead duress, the accused must prove on the balance of probabilities
that they:
• were threatened with death or instant death
• faced the threat directly if they did not comply
• had a reasonable apprehension that the threat would be carried out, and
• were not voluntarily or willingly exposed to the threat (by, for example, joining a
criminal group).
It has been settled law since Tan Seng Ann v PP [1949] MLJ 87 that for a plea of duress under s 94
of the Penal Code to be successful, it must be imminent, extreme and persistent at the time of
the commission of the offence. This was affirmed in Chu Tak Fai v PP [1998] 4 MLJ 246, where the
Court of Appeal referred to various English common law cases and observed that the trial court
must consider whether there was any opportunity which was reasonably open to the accused,
to render the death threat to himself ineffective, by a safe avenue of escape or by seeking police
© Brickfields Asia College

protection (note that the latter case was distinguished in Subramaniam v PP [1956] MLJ 220; and
Tan Seng Ann v PP [1949] 1 MLJ 87).
See also Mohamed Yusof bin Haji Ahmad v PP [1983] 2 MLJ 167; and Derrick Gregory v PP [1988]
2 MLJ 369.
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Necessity
The defence of necessity is derived from the legal maxim “necessitas vincit legem”, which means
“necessity overcomes the law”. In brief, necessity may be invoked when an accused argues that
it was necessary for him to commit a crime.
In their article “The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil”
(1975) 65(3) Journal of Criminal Law and Criminology 289 at 294, Edward Arnolds and Norman
Garland wrote:
Pleas of necessity, then, involve two determinations. The first is a factual determination: did the
situation as alleged by the defendant actually exist (was the ship actually in danger) and did the
defendant have any legal way out (could a friendly port have been made safely). The second is a
determination of values: whether the alternative chosen was, in itself, the lesser evil.

In most necessity cases, the question of which evil is the lesser is really not in dispute. No one in
our society seriously debates whether property may be destroyed to save human life or whether
an embargo act may be violated to keep a ship from sinking. Property is of less value than human
life. Thus the only question to be decided is the fact question: was the situation as extreme as
the defendant alleged.

In the Malaysian legal context, s 81 of the Penal Code is compatible with the defence of necessity
as in English law. In order to establish the defence of necessity, the defence must show that
the conduct by the accused was done in good faith to prevent, or avoid, harm to the person or
property of others.
In PP v Ali b Umar [1982] 2 MLJ 51, the respondent was charged under the Customs Act for
carrying tin-ore in a local craft without the permission of the Director-General of Customs.
They claimed that the rudder of their boat, which was destined to go elsewhere, had broken,
forcing them to enter Malaysian waters in distress. The court held that necessity justified the
respondents entering into Malaysian waters given these circumstances. The respondents were
justified in seeking shelter and taking active steps to preserve the lives of the crew during such
distress: see also Penal Code section 81 Explanation and Illustrations (a) and (b).
Based on section 81 of the Penal Code, the accused must prove on the balance of probabilities:
• though the act may have been done with the knowledge, the act was done without
criminal intention to cause harm

General and Specific Defences

• the act was done in good faith, and
• the act was done to prevent other harm to person or property.

When is the defence of insanity available?

The defence of insanity or unsoundness of mind is found in section 84 of the Penal Code, which
provides:
Nothing is an offence which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is
either wrong or contrary to law.

It is irrelevant that the accused was suffering from the unsoundness of mind before or after the
act. All that matters is that they were suffering unsoundness of mind at the time of the alleged
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crime. Unsoundness of mind may also include mental disability that is not the result of a disease
of the mind.
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Insanity, if successfully pleaded, leads to the acquittal of the accused. However, the law places
a heavy burden on the defence to prove that, at the time of doing the offence, the accused was
insane or suffering from an unsoundness of mind.
To establish the insanity/unsoundness of mind, the accused must prove on the balance of
probabilities that:
• at the time of committing the alleged crime, the accused was suffering from the
unsoundness of mind, and
• this unsoundness of mind negated the accused’s capacity to know/understand that
the act was wrong or contrary to law.
The question whether a defence of insanity had been made out is a matter for the court to
decide. The burden may be discharged by the accused by adducing evidence as to their conduct
at the material time or immediately afterwards, and by evidence of their mental condition and
other relevant facts: see PP v Muhamad Suhaimi Bin Abdul Aziz [2002] 5 MLJ 233. In PP v Zainal
Abidin bin Mohd Zaid [1993] 1 CLJ 147 at 286, Shanker J stated that:
“The issue as to whether an accused person was insane in the sense required by s 84 of the Penal
Code is a matter for the court. Legal insanity is not for the medical witnesses to decide however
eminent they may be. That onus is upon the defence and it is to satisfy the court on the balance
of probabilities only. It can be discharged from evidence adduced from the prosecution or from
defence witnesses. It is a lighter burden than that cast upon the prosecution who must prove the
charge beyond reasonable doubt.”

The CPC sets out the procedures where the accused is suspected to be of unsound mind:
section  342. Note that the Public Prosecutor must make an application before the court can
investigate if the accused is mentally unsound: section 342(5). Section 343 of the Criminal
Procedure Code requires the Medical Superintendent to issue a certificate as evidence of
unsoundness of mind. See also ss 344–349 of the Criminal Procedure Code; and Juraimi bin
Husin v PP [1998] 1 MLJ 537.
For further explanation of the defence and examples of cases where the defence of insanity/
unsoundness of mind has been raised, see Tiong Ing Soon v PP [2019] 7 CLJ 341; PP v Shalima Bi
[2016] 2 CLJ 231; PP v Md Masud Rana bin Md Mofiz [2010] 7 MLJ 245; PP v Muhamad Suhaimi
Bin Abdul Aziz [2002] 5 MLJ 233; Jusoh v PP [1963] MLJ 84; Azro v PP [1962] MLJ 321; and PP v
Alang Mat Nasir bin Anjang Talib [1938] MLJ 153.

When is the defence of intoxication available?

The laws governing ‘intoxication’ can be found in ss 85 and 86 of the Penal Code. Generally, the
law does not permit “intoxication” to be raised as a defence to a crime. It may only be raised by
way of defence if the accused can establish one of the exceptions provided in s 85(2)(a) or (b) of
the Penal Code:
Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at
the time of the act or omission complained of did not know that such act or omission was wrong
© Brickfields Asia College

or did not know what he was doing and –

(a) The state of intoxication was caused without his consent by the malicious or negligent
act of another person; or
(b) The person charged was by reason of intoxication insane, temporarily or otherwise, at
the time of such act or omission.
1.
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Section 86(1) of the Penal Code provides that if the defence of intoxication is established under
the first exception, the accused must be acquitted. If the defence is established under the second
exception, section 84 of the Penal Code and sections 347 - 348 of the CPC apply.
Intoxication negates the intention, or the mens rea, of the crime. Essentially, this provision deals
with the question whether, as a result of intoxication, the accused is rendered incapable of
forming the specific intention essential to commit the crime: see Mohamed Kunjo v PP [1978] 1
MLJ 51 (Privy Council); Suba Singh v PP [1962] MLJ 122; Tan Ho Teck [1988] 3 MLJ 264.
Note that intoxication is deemed to include a state produced by narcotics or drugs: Penal Code s
86(3); see also PP v Kenneth Fook Mun Lee [2007] 1 MLJ 334; PP v Mohd Nor Riza bin Mat Tahar
[2011] 2 MLJ 21; PP v Pham Ti Tuyet Mai [2019] 6 CLJ 325; and PP v Aldwin Rojas Saz [2019] 1
LNS 806.

In what circumstances can an accused plead infancy?

The rationale for a plea of infancy is to protect a child in their developmental years from the
penal consequences of their acts. “Child” is not defined in the Penal Code. However, under
section 2 of the Child Act 2001, “child” is defined as “a person under the age of eighteen years,
and in relation to criminal proceedings, means a person who has attained the age of criminal
responsibility as prescribed in section 82 of the Penal Code”.
Under section 82 of the Penal Code, no child under 10 years of age can commit a criminal offence
(that is, a child under 10 years of age lacks the capacity to commit a criminal offence).
Under section 83 of the Penal Code, a child who is over 10 years but under 12 years of age
can commit an offence, but only if the child “has attained sufficient maturity of understanding
to judge of the nature and consequence of his conduct on that occasion.” What amounts to
“sufficient maturity of understanding” is a question of fact. In a reported case in India case, Abdul
Sattar v The Crown [1949] AIR Lah 51, the accused boys (both under 12 years of age) prised open
the locks of two shops to commit theft. In one shop, they stole valuable goods, while in another
shop, they left empty-handed as they could not find anything valuable to steal. The court held
that the act of breaking the locks and the selection of valuable goods by the boys showed that
they were sufficiently mature to understand the nature and consequences of their conduct.
Note: Under section 113 of the Evidence Act there is an irrebuttable presumption of law that a

General and Specific Defences

boy under the age of 13 years is incapable of committing rape.

Points to consider

• On the defence of unsound mind/insanity, the accused’s counsel may inform the
court during the pre-trial proceedings that the accused was suffering from a mental
disability and request an order under section 342 of the Criminal Procedure Code
for the accused to be observed in a psychiatric hospital. The accused’s counsel may
tender the medical report of the accused during the prosecution case.
• Similarly, if the defence is one of provocation, or of private defence, if the accused
suffered any injury resulting from the physical altercation or provocation of the
complainant/victim and has made a police report or has a medical report pertaining
to their injuries, such a report should be tendered during the prosecution case.
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