Culpable homicide and Murder

Sec. 299: Culpable homicide is the causing of death of a human being.

Sec. 300: Culpable homicide will constitute the offence of murder when the killing of a
human being is effected as defined in Sec. 300(a), (b), (c) or (d).
Nomezam Apandy: In order to establish a prima facie case of murder, the prosecution must
prove
- The death of the deceased
- The deceased’s death was caused by injuries inflicted on the deceased
- The accused had caused such injuries which resulted in the deceased’s death
- The act was committed with the mens rea under any limb of Sec. 300
Mohan Dass Ganesan: What distinguishes the offence of culpable homicide and murder is
the presence of a special mens rea which consists of four mental attitudes in the presence
of which the lesser offence becomes greater.
- Though an act of killing may fall under one or more of the four limbs in Sec. 300, in
order to constitute murder, it is only necessary to establish that an act falls within
only one of the four limbs.
Tham Kai Yau: A higher degree of mens rea is essential in establishing the offence of
murder.
- Whether the offence is culpable homicide or murder depends upon the degree of
risk to human life. If death is a likely result, it is culpable homicide; if it is the most
probable result, it is murder: Illustration (d) of Sec. 300
A comparison between the definitions of the limbs under Sec. 299 and 300 shows the higher
degree of mens rea that is required:
- First limb of Sec. 299 & 300(a): Though they are worded similarly (“an intention to
cause death”), a higher degree of mens rea is needed to establish the offence of
murder.
- Tham Kai Yau: Where there is an intention to kill, the offence is always
murder.

- Second limb of Sec. 299: Requires only an intention to cause bodily injury likely to
cause death.
- Sec. 300(b) OR (c): There must be an intention to cause bodily injury which the
offender knows to be likely to cause death, OR an intention to cause bodily injury
sufficient in the ordinary course of nature to cause death.
- Where the offender knows that the particular person injured is likely, either
from peculiarity of constitution, immature age, or other special
circumstances, to be killed by an injury which would not ordinarily cause
death, it is murder.
 - The essence is that it is culpable homicide if the bodily injury intended to be
inflicted is likely to cause death; it is murder, if such injury is sufficient in the
ordinary course of nature to cause death: Illustration (c) of Sec. 300

- Third limb of Sec. 299: The offender must have knowledge of the likelihood of death
from the act.
- Sec. 300(d): The offender must know that his act was so imminently dangerous that
it must in all probability cause death or such bodily injury as is likely to cause death.
- Where there is no intention to cause death or bodily injury

Intention to cause death – Sec. 300(a)

Tan Hoi Hung: ‘Intention’ indicates that a man is consciously shaping his conduct so as to
bring about a certain event.
- Intention to commit murder is usually inferred from the facts of the case, which
takes into consideration the nature, place, number of injuries inflicted, method of
infliction and the weapon employed.
- The intention must be to cause the death of a person and need not be to cause the
death of a particular person.
- Ismail bin Hussin: Where the accused saw a figure whom he thought was a
terrorist and fired at the man, the court held that the act amounted to
murder as the intention to cause death was still formed.
Tan Buck Tee: Where the deceased had five appalling wounds which penetrated the heart
and liver, the court was of the view that the wounds were caused by violent blows with a
heavy weapon like an axe and that whoever inflicted such wounds, intended to cause death.
Ghazali Mat Ghani: The accused shot the deceased at close range with a rifle. The cause of
death was a fatal shot in the heart. The accused was convicted of murder under Sec. 300(a).
On appeal, the conviction was upheld as the appellant had inflicted injury to the deceased’s
heart and caused his death.
Mohd Asmadi Yusof: Where the accused struck the deceased’s head with bricks, the court
took into consideration the violent nature of the assault and the long standing feud
between the individuals, which clearly showed the accused’s intention to cause death.
Where it is impossible to establish any intention to cause death, it will not constitute an
offence of murder.
- Ali bin Haji Abdullah: Where a girl of ten years old was raped and died in
consequence of it, the court held that there was no indication of any intention other
than to rape, thus a conviction of murder could not stand.
- However, amendments to the Penal Code has been made since then:
- Sec. 376(4): Whoever whilst committing rape/attempting to commit rape
causes the death of the woman shall be punished with death/imprisonment
Intention to cause bodily injury which offender knows is likely to cause death – Sec. 300(b)
The accused knows (personal/special knowledge) his act to be likely to cause the death of
the person to whom the injury was caused.
- ‘Likely’ as in Chung Kum Moey: Indicates a higher degree of certainty to justify
conviction for murder.
- Encompasses situations where the accused knows that the victim was likely to be
killed by any injury which would not ordinarily cause death such as peculiarity of
constitution, immaturity of age or other special circumstances.
- If it can be proven that the accused did not have such knowledge/know of the likely
consequence, the offence will be reduced to one of culpable homicide.
Intended injury is sufficient in the ordinary course of nature to cause death – Sec. 300(c)
Tan Cheow Bock: Under this limb, the prosecution must prove
- That the accused did an act which caused the death of the deceased
- The act was done with the intention of causing bodily injury
- The bodily injury was intended, not accidental, and was sufficient in the ordinary
course of nature to cause death.
Virsa Singh: The deceased suffered one injury caused by a spear thrust by the appellant.
- Injury is caused  What is the nature of the injury caused  Whether the injury is
found to be sufficient to cause death  There was an intention to inflict that same
injury
- It is not enough to prove that the injury was sufficient in the ordinary course of
nature, to cause death; it must be shown that the injury found is of the kind that was
intended to be inflicted.
- Whether the injury was sufficient to cause death must be inferred from the facts
about the nature of the injury and has nothing to do with the question of intention.
- Yap Biew Han: Sufficiency is the high probability of death in the ordinary course of
nature.
In determining whether the accused had the intention to inflict the injury, it is not necessary
that the accused intended to cause the detailed injuries.
- Tan Joo Cheng: Where the accused had intention to thrust the knife in the region of
the deceased’s neck, the court held that he had the necessary intention to cause a
wound in the region of the neck, and such an injury was inflicted.

- Tan Cheow Bock: The unusual nature of an injury and the high degree of chance by
which it was inflicted should not exclude the formation of an intention to inflict that
particular injury within the meaning of Sec. 300(c).
Knows it is imminently dangerous that it must in all probability cause death – Sec. 300(d)
Mahfar bin Sairan: It is insufficient for the accused to merely know that some grievous hurt
would be caused to the deceased.
- The knowledge required is no less than knowledge that his act would in all
probability cause death or such bodily injury as is likely to cause death.
- The accused must know that his act was so imminently dangerous and committed in
utter disregard that death would result from such act.
The limb contemplates the doing of an imminently dangerous act to people in general and
not to a particular individual. E.g: Illustration (d) to Sec. 300.
- William Tan Cheng Eng: Where the accused drove his car recklessly and in a
dangerous manner, disregarding other users of the road, as he was chasing the car in
which his ex-girlfriend and another man rode, and as a result killed a motorcyclist.
Held: The conviction was set aside as it had to be proven that the accused knew that
his act of driving in such a manner was so imminently dangerous that it must in all
probability cause death or such bodily injury as was likely to cause death.
The limb restricts liability to only cases where there is no excuse for incurring the risk of
causing death.
- Culpable homicide with knowledge that an act is imminently dangerous will not
amount to murder where the accused has an excuse for incurring the risk.
- It means something which is a justification of the act and does not merely mitigate
the crime.
- Emperor v Dhirajia: The accused, while in panic and trying to escape her husband,
jumped down a well with her baby in her arms. The baby died and the accused was
convicted of murder. Held: On appeal, it was found that the accused’s fear and panic
was enough of an excuse to conclude that she did not know that her act would in all
probability cause the baby’s death.

Exceptions to Sec. 300

An offence will be that of culpable homicide not amounting to murder if the accused is able
to bring his act within one of the five exceptions to Sec. 300.
Tham Kai Yau: The offence of culpable homicide not amounting to murder is committed
when:
- The special degree of mens rea under Sec. 300 sufficient to constitute murder is not
established
- There is sufficient evidence to establish murder under Sec. 300, but one or more of
the exceptions to Sec. 300 apply.
Halim bin Din: An absence of the mens rea to cause death reduced the offence from murder
to that of culpable homicide not amounting murder.
Exception 1 – Provocation
Where, the offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation, or causes the death
of any other person by mistake or accident.
The exception is subject to three provisos:
- The provocation is not sought or voluntarily provoked by the offender
- 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. In convicting him of murder, the trial judge stated that what
had happened in the market could not be provocation in that ‘the law says
the provocation must come to you. You should not go to the provocation.’
- It is not sufficient that the accused must go to the provocation; he
must go to it as an excuse for killing.
- The provocation is not given by anything done in obedience to the law or by a public
servant in the lawful exercise of powers
- The provocation is not given by anything done in the lawful exercise of private
defence
- Mohd Sulaiman: The accused broke into the coffee shop and the deceased
threw hot water on him in exercise of his right of private defence to property.
The accused retaliated by hitting the deceased and causing his death. Thus,
the exception does not apply as provocation cannot be given by anything
done in the exercise of private defence.
Subject to the non-application of the provisos (where the provisos are found inapplicable),
the courts in considering the exception have taken into consideration several factors:
Whether the provocation was grave and sudden:
- ‘Grave and sudden’: The fatal blow should be traced to the influence of passion
arising from the provocation.
- ‘Sudden’ as in Chong Teng: Recent in time; the event which had sparked the
provocation must happen almost immediately.
- In this case, an incident occurring several months earlier was not sudden.
- Abdul Razak Dalek: ‘Sudden’ involves two elements
- Provocation must be unexpected
- Planning to receive a provocation in advance in order to justify the
homicide would not make the provocation sudden.
- The interval between the provocation and the homicide should be brief
- The provocation must have immediately preceded the act.

- Vijayan: Where it was argued that questioning the accused’s right as a Malaysian to
live and work in Singapore followed by challenging the accused to a fight, which
resulted in the accused losing his self-control and attacking the deceased, did not
constitute grave and sudden provocation.
 - Chian Swee Ong: Where the accused was charged for the murder of a foreign
prostitute, whom he had proposed to and ultimately rejected him in a humiliating
manner, it was held that the relationship between the two was at all times one of
prostitute and client, and thus, there was no reason for the accused to lose his self-
control when the prostitute refused his hand in marriage.

- Kwan Cin Cheng: When the accused met with the deceased and spoke of his suicidal
intentions, the deceased replied that the accused was useless and doubted that he
would dare to kill himself and further asserted that she was happy with her new
boyfriend and that his death would have nothing to do with her. Upon hearing this,
the accused stabbed the deceased to death. The defence of grave and sudden
provocation was established and the accused was convicted on a reduced charge of
culpable homicide not amounting to murder.

- Provocation in the form of words per se does not constitute a grave and sudden
provocation, even if the words seemed gravely provocative (Kuan Ted Fatt).
- However, a person may, by repeated or continuous verbal provocation
arouse another to a state of mind when the provocation immediately
preceding the act of killing is the last straw that breaks the offender’s self-
control.

- Che Omar Mohd Akhir: A gradual and accumulated provocation is insufficient to

constitute a defence.
The link between provocation and the killing:
- KM Nanavati: The fatal blow should be clearly traced to the influence of the passion
arising from that provocation.
- Provocation that caused the loss of self-control emanates from the victim, and is
directed at the offender.
Cooling period:
- The offender must have killed while being deprived of self-control caused by the
provocation.
- There must be no cooling period resulting in the loss of efficacy of the provocation.
- A cooling period will not satisfy the principal of immediacy associated with hot-
blooded impulsive killing.

- Mohammed Yassin: Where a fight between the accused and the deceased had been
prevented, that night the accused sharpened the handle of a toothbrush and
stabbed the deceased in the neck with it the following morning. Held: The incident
that occurred the previous day did not constitute a grave and sudden provocation as
there was a cooling period of one night.
Proportionality of retaliation:
- Retaliation should not be disproportionate to the provocation.
- Ahmad Khairul Fa’ais Mat Dahlan: It is necessary to balance the degree and nature
of the provocation against the acts of violence committed by the accused.

- N Govindasamy: The appellant’s act of inflicting seven fatal wounds to the head of
the deceased was found to be disproportionate to the deceased’s conduct which
affected the appellant’s religion and conduct as a father, as well as his daughter’s
honour.
Application of the reasonable man test:
- Ikau Anak Mail: It is necessary to satisfy that such acts of provocation which
deprived the accused of the power of self-control would have also deprived a
reasonable man of the same.

- Che Omar Mohd Akhir: It is not enough to show that the accused was provoked into
losing his self-control; it must be shown that the provocation by its gravity and
suddenness would cause a reasonable man to lose his self-control and induce him to
do the act.
- The reasonable man is he who has the habits, manners and feelings of the
class or community to which the accused belongs.

- In order to successfully invoke the defence, it must be proven that a reasonable,

when subjected to the same provocation would:

- Have lost his self-control

- Che Omar Mohd Akhir: To determine what amounts to ‘grave and
sudden’ the court may take into account the habits, manners and
feelings of the community to which the accused belongs, but not the
particular idiosyncrasies of the accused.

- Retaliate in the same manner

- Abdul Razak Dalek: Where the accused was charged with the murder
of his wife by stabbing her and slitting her throat after a three month
long cooling period. Held: On the facts and circumstances, there was
no grave and sudden provocation that would have destroyed the
capacity for reasoning and inspired the intention in a reasonable man
to kill.
Exception 2 – Exceeding Right of Private Defence
Where the offender, in the exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law, and causes the death of the person
against whom he is exercising such right of defence, without premeditation and without
any intention of doing more harm than is necessary for the purpose of such defence.
- Proper exercise of self-defence by the accused would not amount to any offence.
- Teoh Seng Lian: The exercise of such right in excess of the power given by law,
which results in a person’s death, if exercised in good faith would only amount to
culpable homicide not amounting to murder.
Balbir Singh: Four conditions should be satisfied before the exception can be successfully
applied
- Accused must be free from fault in bringing about the encounter
- There must be present some impending danger to life or great bodily harm
- There must be no safe or reasonable mode of escape
- There must be a necessity for taking life
The exception will not apply if at first instance there was no right of private defence.
- Bhagwan Munjaji Pawade: The deceased approached the accused to ask why he was
arguing with the deceased’s mother, and the accused suddenly lunged forward and
gave three blows to the deceased’s head using an axe. Held: No right of private
defence had ever accrued to the appellant as the deceased was unarmed.
The exception only applies where the accused had the right of private defence but was
unable to satisfy the requirement for the right of private defence to apply because
- He caused death for an offence not listed under Sec. 100 and 103, where death may
be caused in the exercise of private defence
- He continued to exercise his right when reasonable apprehension of danger ceased
Soosay: Where a quarrel ensured, during which the deceased drew a knife and threatened
the accused’s friend. The accused kicked the deceased and the knife fell. The accused
grabbed hold of the knife and when the deceased charged at him, he stabbed the deceased
a number of times, thus causing his death.
- Although the accused acted in good faith in defending himself, the right of private
defence ceased when the knife was dislodged from the deceased’s hand. Where
there was no longer any reasonable apprehension of danger, the accused had far
exceeded his right of private defence.
Exception 3 – Public Servant Exceeding Powers
Where the accused, being a public servant or aiding a public servant, exceeds the powers
given by law and causes death by doing an act, which he, in good faith, believes to be
lawful and necessary for the due discharge of his duty as such public servant, and without
ill-will towards the person whose death was caused.
- Sec. 15(2), CPC: If a person forcibly resists the endeavour to arrest him or attempt to
evade the arrest, such officer or other person may use all means necessary to effect
the arrest.
- Sec. 15(3), CPC: The provision does not give a right to cause the death of a person
who is not accused of an offence punishable with death or life imprisonment.
Dukhi Singh: A constable pursued a suspected thief to effect his arrest, and when he was not
in a position to apprehend him, he fired at him. In the process, he hit the fireman of the
train and killed him. Held: The act fell under the exception as the constable exceeded the
powers given to him and caused the death of the fireman by doing an act which he, in good
faith, believed to be lawful and necessary to discharge his duty.

Exception 4 – Sudden fight

If the act is committed without premeditation in a sudden fight in the heat of passion, upon
a sudden quarrel, and without the accused having taken undue advantage or acted in a
cruel or unusual manner.
There must be a sudden fight:
- Atma Singh: It is not necessary that weapons should be used in the fight; an affray
can be a fight even if only one party in the fight is successful in landing a blow…
blows should be exchanged even if they do not find their target.
- A sudden quarrel can never develop into a sudden fight until there is use or
attempted use of violence on the part of one party on his opponent.
- Ramasamy Sebastian: The accused and the deceased had been arguing and
quarrelling for some time before the fatal stabbing took place.
- Mohammed Yasin: Where the appellant had planned and attacked the deceased
from behind, the situation was not one of a sudden fight.
- Under this exception, regardless of the origin of the dispute, it is the subsequent
conduct of both parties which put them on equal footing in respect of guilt that is
material.
- Ramasamy Sebastian: It is immaterial which party offers the provocation.
There must be an absence of premeditation:
- Premeditation involves an element of pre-planning. To constitute a premeditated
killing, it should be a pre-determined killing upon consideration and not a sudden
killing under the momentary excitement and impulse of passion.
 - Evidence can be furnished through grudges, previous threats and expressions of ill-
feeling, by acts of preparation to kill, and by the manner in which the killing was
committed.
- Ong Kin Hong: The court found that the appellant had committed a
premeditated assault on the deceased, intending to kill her and that he had
brought onto the premises of the association an iron rod as a weapon of
murder which he then threw into the river after he killed her.

- Seow Khoon Kwee: The accused hid a piece of glass under a wash basin not with the
intention to kill the deceased, but for his own protection, as he knew that the
deceased had on previous occasions beaten up other prisoners. Held: There was no
premeditation on the part of the accused as a sudden fight broke out when the
deceased punched the accused’s eye. The glass was used by the accused as a
weapon against the deceased.
There was no undue advantage taken or any cruel or unusual manner:
- Where the accused resorts to the use of weapons against an unarmed person, he is
unlikely to be allowed the defence of sudden fight.
- Narayan Nair Raghavan: It is impossible to say that there was no undue
advantage when a man stabs an unarmed person who makes no threatening
gesture.

- Mohd Sulaiman: The accused was precluded from relying on the exception as it
could not be said that he had not taken undue advantage or acted in a cruel manner
when he stabbed to death an elderly man who carried no weapon and who had been
attempting to prevent him from committing theft.

Exception 5 – Consent
When the person, whose death is caused, being above 18 years old, suffers death or takes
the risk of death with his own consent.
- Consent must be voluntary and genuine; not based on a misconception of fact.
- It must be unequivocal; not merely a willingness to die.

- Ambalathil Assainar: When the deceased refused to go back to her mother’s house
and said she would rather die, the act of the accused killing her does not fall under
the exception as the deceased’s consent was not unequivocal.

- Dasrath Paswan: Where a depressed man, who informed his wife of his suicidal
plans, was asked by his wife to kill her first before killing himself. He then killed her,
but was arrested before his suicide. Held: His act of killing her falls under the
exception.