Introduction

Homicide
- Killing of a human being ( may/may not be a crime)
- Type of Homicide
1. Lawful homicide – legitimate killing – eg act fall under general defence
2. Unlawful homicide – criminal in nature
- In Penal Code, 3 main types of homicide
1. Murder (S300)
2. Culpable homicide not amounting to murder (S299)
3. Causing death by rash or negligent act (S304A)
- Offences – distinguished by their required MENS REA
- Offence of Manslaughter under common law has a different concept as compared to
culpable homicide not amounting to murder

Section 299 Section 300

Intention to cause death
Intention to cause bodily injury which is
likely to cause death
Knowledge of the likelihood of death
(a)Intention to cause death
(b)Intention to cause a bodily injury which
the offender knows is likely to cause the
death of the persons to whom the harm is
caused
(c)Intention to cause a bodily injury
intended to be inflicted is sufficient in the
ordinary course of nature to cause death
(d)Knowledge that the act is so imminently
dangerous that it must in all probability
cause either
i. Death or
ii. Such bodily injury as is likely to cause
death
and there is no excuse for incurring such a
risk

Difficult to decide whether a case should fall under S299/S300

- The wording under s299(1) and s300(a) are identical
o Solution
 1. All offences under S300 also fall under s299
 2. If one of the exception under s300 was raised - the charge shall fall
under s299 even though the intention was to kill

Murder
- S300 – prosecution is required to prove all ingredients of murder
 o 1. Death of Victim
o 2. It was caused by the acts of the accused ; and
o 3. The acts by which the death was caused falls under the ambit of limbs (a)
till (d)
- PP v Manimaran a/l Amas and Ors ( read full case )
o Accused persons charged for causing death.
o Deceased’s wife saw the deceased being surrounded by six Indian men armed
with parangs and there was a pool of blood near the floor where the deceased
was seated.
o Deceased died due to excessive bleeding as a result of slash wound

Actus Reus
- Section 300 of Penal code.
o Unlawful killing – murder
 Actus reus – causing death
 Mens rea – any one limb (a) till limb (d)
- Mohd Asmadi bin Yusof v PP
o He used a brick to hit the head of the deceased.
o He was charged with murder.
o Prosecution had proved
 A. Death of the deceased had taken place.
 B. His death had been caused by or in consequence of the act of the
appellant.
 C. Such act was done with the intention either or causing death or of
causing bodily injury sufficient in the ordinary course of nature to have
caused his death. (limb c )
- If accused manage to plead the exception under s300
o Reduced from s302 to s304

Mens Rea
- Killing – without intention or knowledge – not murder
o Hashim bin Mat Isa v PP
 The accused commit murder by intentionally causing the death of one
Ariffin bin Din
 Committed an offence punishable under section 302 of the Penal Code.
 The court rule that it is wrong to include the word ‘intentionally’ in a
charge of murder.
 To include the word ‘intentionally’ in a murder case is unnecessary
 May cause confusion and embarrassment, where the
prosecution, at some stage of the trial, find they have to rely for
instance on the knowledge not intention.
- Limb (a),(b) & (c) - mens rea of intention
- Limb (d) – knowledge
 - Tham Kai Yau v PP
o Intention – highest degree of mens rea
o A matter of inference that can be inferred from surrounding cricumstances

Section 300
Limb (a)
- Intention – killing is committed in a particularly savage manner, or when extensive
wounds are found on the body of the victim.
- Mohd Yazid bin Hashim v PP
o Injuries that caused the deceased’s death were the result of several successive
blows with a piece of wood.
o Nature of the deceased’s head injuries which include the fracture of her skull
are ample evidence of the A’s intention to kill the deceased.
- Ghazali Bin Mat Ghani v PP
o Accused shot the deceased at a close range with a rifle.
o Deliberate use of a dangerous weapon leads to an irresistible inference that
their intention is to cause death.
- Tan Buck Tee v PP
o Deceased’s body had 5 appalling wounds which penetrated to the heart and
liver.
o The court held that the wound would have been caused by violent blows with
a heavy instrument like axe.
o Intended to kill the person.
- PP v Mohd Asmadi bin Yusof
o Accused intended to cause the deceased’s death based on the serious injuries
inflicted on the head.
o Accused struck the deceased’s head with bricks.
o Held : Violent nature of the accused’s assault and the long standing feud
between the accused and the victim showed the accused intention was with an
intention to kill.

Limb (b)
- Prosecution – prove that the death has been caused to the victim – intentionally
inflicting injuries which a likelihood of death.
- Knows – accused certain – injuries he intentionally inflicted on the victim would most
likely resulted to death.
- Certainty derived from
o Accused knowledge of the victim’s situation or health condition
- Mohd Naki bin Mohd Yusuf v PP
o Deceased’s death – due to injuries upon the vital part of his body ie his head.
 o Clearly an intention to cause death under para (a) / Intention to injure knowing
that such act would cause death under para (b)

Limb (c)
- Injury intentionally inflicted by the accused
o Objectively sufficient in the ordinary cause of nature to cause death
- Mohd Isa bin Mohd Nor v PP
o Cause of death due to ‘stab wound to the heart’
o Stab the deceased with the Rambo knife in abdomen region
o Accused had the intention to causing bodily injury sufficient in the ordinary
course of nature to cause death.
- Yap Biew Hian v PP
o Court gave a guideline that a sufficient injury means there is a high probability
of death in such instance.
- PP v Mohd Abbas
o Accused charged with murder of a 10 years old girl
o She had been strangled while being raped by the accused
o Held : It was murder under all limbs in section 300 as the act was done by the
accused with intention, sufficient in the ordinary cause of nature to cause
death or the act known to him to be imminently dangerous that it must in all
probabilities to cause death.

Limb (d)
- Knowledge – must be proven
o Accused must have known
 The act he did was so imminently dangerous that it would in all
probability cause death or that the bodily injury he inflicted was likely
to cause death.
- PP v Kenneth Fook Mun Lee
o Accused shot a lady who refused to come out from her car.
o Accused claimed that he was drunk at that time he took the shot which hit her
vital organ
o Held :
 Accused knw that his act of discharging the gun at the deceased is so
imminently dangerous that it must in all probability cause death or
such bodily injury as is likely to cause death
 The act of the respondent was wholly inexcusable
 Intention is not necessary element in s300(d)
 What required to be proved – KNOWLEDGE that the act is
likely to cause death.
- William Tan Cheng Eng v PP
o Not sufficient to amount to murder under s300 for an act to be so imminently
dangerous that it must in all probability cause death
 o Such an act becomes murder
 Death results
 The person who commits the act knew when committing the act that it
was so imminently dangerous that it would in all probability cause
death or such bodily injury as was likely to cause death.

Exceptions
- Exception under s300 – do not serve as a complete defence – only partial
- Exception – ‘formal’ mitigation
o Reduce the charge of murder
 Become culpable homicide not amounting to murder
- Looi Wooi Saik v PP
o Appellant was convicted for the murder of a woman in contravention of
section 302 of PC.
o Question of provocation
o Special exceptions
 Special to the offence of murder
o If the case comes within any of the exception then what would otherwise have
been murder is culpable homicide not amounting to murder.
- S105 Evidence Act – in criminal trial – prosecution has the duty and burden – to
prove the case beyond the reasonable doubt.
- Onus to prove any fact falls under the exception of s300 is not on the prosecution but
on the accused as part of his defence.
- Ikau Anak Mail v PP
o Accused has a burden of prove his defence of provocation on a balance of
probabilities.
o To succeed in a defence of a grave and sudden provocation, it is necessary in
law for the defence to satisfy the court.

5 Exceptions under S300

1. Grave and sudden provocation
2. Exceeding private defence
3. Exceeding public power
4. Sudden fight
5. Consent

Grave and sudden provocation

- To successfully raise the exception, several condition :-
o Grave and sudden provocation complained must caused the accused to lose his
self control
o Provocation must proceeded from the victim and not from a third party
 o Provocation should not have been sought or voluntarily provoked by the
offender.
o Provocation is not given by someone who does something in obedience to the
law, or who is a public servant lawfully carrying out his duties.
o Provocation is not given by someone lawfully exercising his right to private
defence.
- Question of fact
o Whether the provocation was grave and sudden enough to prevent the offence
from amounting to murder.
- Lorensus Tukan v PP
o Appellant was charged with murder.
o He admitted the killing but appeared to rely on the defence of grave and
sudden provocation.
o Test of ‘grave and sudden’ provocation is
 Whether a reasonable man, belonging to the same class of society as
the accused, placed in the situation in which the accused was placed
would be so provoked as to lose his self-control… to be deemed to be a
question of fact.
 What a reasonable man will do in cirtain circumstances depends upon
the customs, manners, way of life, traditional value, etc.
- Provocation – not only gravity – suddenness – deprived the accused his power of self
control
o Che Omar bin Mohd Akhir v PP
 Provocation – suspicion of adultery
 Provocation – gradual
 Gradual and accumulated provocation X grave and sudden
provocation
 Devoid of its gravity and suddenness
 Not sufficient to constitute a defence under exception 1 to s300 of PC
o T Paramasparan a/l Thanigajalam v PP
 Accused injured his wife 64 times which in tis totality killed her.
 Accused tried to plead that the wife’s confession of infidelity provoked
him to kill her.
 Held : court rejected the defence. `
o Loh Yoon Fatt v PP
 Deceased family and accused’s family eating at same restaurant.
 After the dinner, the deceased and his family came out of the restaurant
and found that their car was blocked by accused car.
 Deceased then honked his car and the owner did not come out .
 Deceased went in the restaurant to look for car owner.
 After waiting for 10 minutes, deceased got annoyed and kicked the
accused car.
 Later, accused came out from the restaurant and was told that someone
was kicking his car.
 There was some argument between accused and deceased.
 Accused then hit the deceased’s head from behind with a metal rod.
  Deceased died a few days later at the hospital .
 Held : Exception 1 cannot applied as they were not grave and sudden
enough to deprive a reasonable man of his self-control.
 There was a cooling off period between the time the deceased was
kicking the accused’s car and the time the accused was taking out a
steering lock from his driver’s seat.
- PP v Abdul Razak Dalek
o Appellant was charged with the murder of his wife.
o It was alleged that the accused was provoked to lose his self-control by the
remarks made by the ceased that they were no longer husband and wife.
o Held : The good test to identify grave provocation is whether a reasonable
man would likely to lose his self-control .
o For sudden, it must be expected and to have occurred within a short period of
time before the killing that is instantaneous.
- Chian Swee Ong v pp
o Accused was charged under murder of a foreign prostitute whom he stabbed to
death .
o Held : The relationship between the accused and the deceased was one client
and prostitute.
 Nothing else in a mutually and emotionally binding tie with a view to
matrimony.
 No reason for him to lose self-control
 No provocation in this case. ( deceased rejected appellant’s confession
of love for her )
- PP v Surbir Gole
o Respondent was charged for murder.
o Accused stabbed the deceased and slashed his own wrist and neck.
o Deceased then died as result of injuries.
o He subjected to ill-treatment and mental torture by the deceased and he finally
lost self-control.
o Concluded that from the evidence of the accused, it was clear that he had lost
control of himself as a result of cumulative provocation by the deceased.
o The said circumstances of the incident did not show that the accused had the
intention to murder the deceased.
o Exception 1 section 300 of pc applied. Charged under s304(b) culpable
homicide not amounting to murder.