Tutorial 1 Criminal Law

Name: Nur Qistina Aisyah Binti Mohd Nazaro

Student Id: 2021488276
Class: LWB04I
Course Code: LAW555

The accused a Rohingyan working in Malaysia, was convicted of murder. A few days
before the deceased was killed, the deceased’s assistance was solicited by a friend to settle
a dispute between the friends, two roommates and another person, who was a friend of the
accused. A few days later, this friend and the deceased on the latter’s request went to the
accused’s room. Deceased was in quarrelsome mood having drunk too much. At the house,
the deceased had aggressively and repeatedly challenged the accused to fight. The accused
then caught the deceased. The deceased fled and was chased by the accused. Deceased
fell. The accused started kicking the deceased twice or thrice. He then took a chopper and
stabbed between the deceased’s neck and stomach as the latter was lying on the road.

It was argued by the defense on the issue of provocation that the accused was a
Rohingyan who had no right to live and work in Malaysia; that he was living in fear that
discovery of the authorities could result in his being thrown out of Malaysia, that on the night
on question deceased had referred to this sensitive subject when he asked aggressively
challenged to accused, who has given house to Rohingyans followed by a challenge to a
fight and that this had caused the accused to lose his self-control and attacked the accused.

Discuss whether the causing of death may have fallen under the exception to S. 300.
Issue

Whether the death falls under the exception to Section 300 of the Penal Code for
grave and sudden provocation.

Law

According to Section 299 of the Penal Code, when a human being is killed as
specified in Section 300 of the Penal Code, culpable homicide constitutes the crime of
murder.

Section 300 of the Penal Code stated that, except in the cases herein excepted,
culpable homicide is a murder when (a) there is intent to cause death, (b) there is intent to
cause bodily injury, (c) the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death, and (d) the perpetrator is aware that the act is so
imminently dangerous that it must most likely result in death, or such bodily injury as is

Even though there is enough evidence to prove murder, culpable homicide won't
count as murder if the accused can show that his actions were inside the exception. Under
Section 300 of the Penal Code, there are five (5) exceptions. The exceptions include (1)
serious and unexpected provocation, (2) exceeding the scope of a person's right to
self-defense, (3) public servants acting outside their authority, (4) abrupt physical conflict,
and (5) consent. Since the problem is related to exception (1), I will limit my explanation to
that point.

With the exception of provocation, it was declared that culpable homicide is not
murder if the perpetrator, while acting without the use of self-control due to a serious or
unexpected provocation, kills the person who provoked them or accidentally kills someone
else. Three conditions must be met in order for grave and sudden provocation to be an
exception: (i) the provocation was not sought or willingly initiated by the offender; (ii) it was
not caused by an act of deference to the law; and (iii) it was not caused by an act of lawful
exercise of such public servant's authority. Five aspects of provocation must be satisfied in
the instance situation since none of the aforementioned conditions apply, making it
impossible to successfully argue against provocation.

If the provocation is serious and sudden, that is the first factor to consider. According
to the court in Che Omar bin Mohd Akhir v. PP, the provocation had to be serious and
unexpected, and by being serious and unexpected, it had to have taken the accused
person's ability to govern themselves away. Killing must be carried out under the influence of
provocation.
 The second requirement is that there must be an association between killing and
provocation. Due to the provocation-induced lack of self-control, the accused individual must
have killed. Typically, the victim will provoke the offender by acting in a provocative manner.
In PP v. Koh Swee Beng, it was determined that the accused had not been provoked
because he maintained his composure after learning of the assault.

The third component is whether a cooling period exists. It is the core of the
provocation exception. The perpetrator must have killed while losing self-control as a result
of the provocation. The appellant and the dead, both inmates at a drug rehabilitation facility,
got into an argument during a game of table tennis in Mohammed Yassin v. PP. The
appellant approached the deceased later that night and punched him. An altercation was
stopped. He killed the deceased by stabbing his neck the following morning. The judge ruled
that there hasn't been a serious or sudden provocation. The appellant had the entire night to
reflect on the situation and make a decision regarding how to respond. The cooling-off time
was long enough, and the appellant was unable to use the provocation exception.

The fourth component is the appropriateness of the reaction. Retaliation shouldn't be

out of proportion to the initial offence. N Govindasamy v. PP: The defendant was found guilty
of murder after inflicting 7 wounds on the victim's skull. According to rumours, the
deceased's offensive behaviour was directed towards the accused's daughter and religion.
Medical evidence demonstrated that the accused acted violently and in a disgusting manner.
As a result, it is not in line with the level of provocation.

The reasonable man test is the final component. It was said in the case of Ikau Anak
Mali that it is required to convince the court that a reasonable man would behave similarly to
the accused or that he would also lose control if provoked in that manner. A 12-year-old girl
insults the accused in Thirunyanam a/l P Munisamy, the deceased. The accused became
enraged and struck the dead on the forehead with a stick. It was decided that neither the
provocation nor the retaliation were appropriate.

Application

In this case, the first element is met since the dead entered the accused's room and
aggressively and repeatedly challenged the accused to a fight. According to Che Omar bin
Mohd Akhir v PP, the deceased's provocation towards the accused is so terrible and sudden
that the accused loses control and kills the deceased. In the case of PP v Koh Swee Beng,
the dead directed the provocation to fight to the accused, causing the accused to lose
control of himself, resulting in the killing. Thus, the second criterion is satisfied because the
deceased's provocation is linked to the accused's murdering conduct. The third requirement
is met because there is no cooling interval for the accused to calm down and ponder before
reacting in this case. As a result of Mohammed Yassin v PP, there is provocation if there is
insufficient cooling time. However, based on the facts of the case and the law, the accused
failed the fourth requirement of provocation. This is because, under N Govindasamy v PP,
retribution must be commensurate to the provocation. Meanwhile, in this case, the accused
used a chopper to stab the deceased, who was unable to fight or defend himself. This
demonstrates that the accuser is acting in a heinous and violent manner. As a result, it is not
commensurate to the deceased's level of provocation. Finally, there are the components of
the reasonable man test. In the case of Ikau Anak Mali, the act of killing because of the
deceased's provocation must demonstrate that any rational man, when subjected to the
same provocation as the accused, would lose self-control and retaliate in the same manner.
According to the facts of the case, the deceased was inebriated and provoked the
defendants to fight. However, not long after, the deceased escaped from the accused's
room, indicating that the deceased no longer wishes to fight the accused. However, it is the
accused who chases the deceased and repeatedly kicks the deceased after he falls. Other
rational people will cease kicking because it is absurd to fight an intoxicated person,
especially when the person is unable to defend himself. As a result, the accused has also
failed the fifth provocation element. As a result, the accused may be unable to invoke the
defence of provocation in his case.

Conclusion

In conclusion, the cause of death in this case does not fit under the exception in
Section 300 of the Penal Code. As a result, the accused's murder could not be reduced to
culpable homicide because the elements of provocation could not be completed entirely by
the accused.