April 2010

(Question 8)

Bruno is big fan of English football. While watching FIFA World Cup 2010 game between England
and Germany at I-City stadium, a group of spectators supporting England were upset when
Germany beat England and proceed to the semi final. Upset, when the goal scored by Lampard, the
English player was declared void. The fanatic fans of England started to shout and throw bottles and
canned drinks at the German supporters. Bruno started to tease the German supporters and shouted,
who is crueler than Adolf Hitler? Provoked, Holger, a German citizen attacked Bruno. The day
after the incident, Bruno was found shot dead in his apartment. Investigation reveals that Holger
was the suspect for the murder of Bruno.

1) Discuss the criminal liability of Holger.

2) Discuss whether Holger can claim defence of provocation in the above situation

MURDER

The parties involve are Holger as the accused and Bruno as the victim. Then, the issue here
is whether Holger can be held liable for murder as define under Section 300 limb (a) of the Penal
Code and punishable under Section 302 of the same code for causing the death of Bruno.

Firstly, we must determine whether this issue should be taken place under the offence of
murder or culpable homicides.

The definition of murder can be said as killing of human being or causing death of human
being. Types of homicide on killing of human being can be either: a) Murder under section 300
punishable under section 302; b) Culpable homicide under section 299 punishable under section
304; and c) Causing death by negligence under section 304A

It depends on the degree of mens rea that accompany the act which has to be gathered by
way of indirect evidence, taking into consideration all the facts and circumstances

The distinction between both terms in the aspect of definition is culpable homicide is the
causing of the death of human being. Meanwhile, murder is the killing of human being.

Culpable homicide will constitute the offence of murder when the killing of a human being
is effected as defined in Section 300. As in the case of PP v Nomezam Apandy bin Abu
Hassan, the court stated that in order to establish a prima facie case of murder, it is incumbent on
the prosecution to prove: 1) The death of the deceased; 2) The deceaseds death was caused by
injury or injuries inflicted on the deceased; 3) The accused had caused the injury or injuries which
resulted in the deceased death; and the act causing the death was committed with the mens rea
under section 300(a), (b), (c) and (d).

A comparison between the definitions of the various limbs of section 299 and section 300
shows the higher degree of mens rea required to constitute murder under section 300. Section 299

and Section 300 (first limb) is although the wording is in identical terms, a higher degree of mens
rea is needed to establish the offence of murder. For Section 300 (2nd limb) and second part of
Section 299 with second and third part of Section 300 and for the third limb, last part of both
Section 299 and Section 300 of Penal Code.

In the case of Chung Kum Moey v PP, the court held that the various limbs of Section
299 and 300 are not mutually exclusive. An act of killing may fall under one or more of the limbs.
For instance, an act may be done with the intention of causing bodily injury sufficient in the
ordinary course of nature to cause death and also with the knowledge that it is so imminently
dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.

In PP v Mohan Dass Ganesan , the court held that murder is an aggravated form of
culpable homicide. The two offences involve the killing of a person. What distinguishes these two
offences is the presence of a special mens rea which consists of four mental attitudes. Unless the
offence can be said to involve at least one of such mental attitude, it cannot be murder.

In the case of Tham Kai Yau , it was held that there are 2 forms of culpable homicide not
amounting to murder: (a) where the evidence is sufficient to constitute murder, but one or more of
the exceptions to Section 300 apply, and (b) specified in Section 299 is present, but not the special
degrees of mens rea referred to in Section 300. All cases falling within Section 300 must necessarily
fall within Section 299 but all cases falling within Section 299 do not necessarily fall within Section
300.

In that case the prosecution had established that the victim died as a result of the injuries
inflicted upon him, it was the accused who had inflicted such injuries and the accused had the
intention to cause such bodily injury and the nature of it was that it was sufficient in the ordinary
course of nature for the intended body injury to cause death. Thus, the accused was held to be guilty
of murder.

In Chung Kum Moey , the court differentiate between murder and culpable homicide not
amounting to murder: If an act causing death is done with the intention of causing bodily injury
sufficient in the ordinary course of nature to cause death, it comes within the third limb of Section
300 and the offence is murder; If the act is done with the intention of causing bodily injury likely to
cause death, and the accused knew that this was the likely consequence, it is culpable homicide.

A higher degree of mens rea is required to justify conviction for murder. This can be seen
from the wordings of Section 299 and 300.

In PP v Norazam bin Ibrahim , the court held that the accuseds intention of causing
bodily injury to the deceased may be gathered from the combined act of inflicting injuries on the
deceaseds head and body with a knife, the piece of wood and a rock sequentially, thereby causing
serious injuries to the deceased brain bringing the act within the ambit bit of intention or knowledge
as provided by Section 300 (a), (b), (c) or (d) of Penal Code.

However, to constitute murder, it is only necessary to establish that an act falls within only
one of the 4 limbs of Section 300.

Section 300 defines murder as causing the death of another human being with the necessary
element as stated under limb (a) to limb (d).

In determining whether Holger can be held liable, we have to see whether his acts fall within
the ambit of limb (a). Limb (a) only requires an intention to kill.

In Tan Hoi Hung v PP, intention is defined as when a man is consciously shaping his
conduct so as to achieving his conduct to bring out a certain event. Intention can be inferred from
the facts of the case namely from (1) the nature of the injury, (2) the place of injury, (3) the method
of infliction and (4) the use or nature of weapon.

In Tan Buck Tee v PP, the deceaseds body had 5 appalling wounds, wounds which
penetrated to the heart and liver. In the view of the court, the wounds would have been caused by
violent blows with a heavy instrument like an axe. In the absence of anything else, whoever
inflicted these blows must have intended to kill the person.

In Ghazali Mat Ghani v PP, the accused shot the deceased at a close range with a rifle.
The cause of death was a fatal shot in the heart. The accused was convicted of murder. On appeal,
the conviction was correct as the appellant had inflicted the injury to the deceaseds heart and
caused his death.

In PR v Mohd Asmadi bin Yusof, the accused intended to cause the deceaseds death
based on the serious injuries inflicted on the head. There was evidence that the accused struck the
deceaseds head with bricks. The court held that the violent nature of the accuseds assault and the
long standing feud between the accused and the victim showed the accuseds intention was with an
intention to kill.

In the case of PP v Chong Chai, the forensic medical specialist had found that the cause
of the deceaseds death was a slash wound on the neck inflicted with considerable force by means
of a sharp and a heavy weapon such as parang or a scythe. There was also testimony that the
accused had intended to cut open the neck of the deceased by means of parang. All this was clear
evidence that the acts of the accused was done with the intention of causing death under Section
300(a).

Tham Kai Yau v PP , the court look at weapons used and the number of injuries inflicted
to infer the intention of the accused. In this case, the weapon used was chopper, a dangerous
weapon, inflicting multiple deep incised wound, two being serious head wound. Hence, the court
held that there was an intention to cause death under Section 300(a).

In Nor Hasnizam bin Ab Latiff v PP , the accused stab the victim near the heart. The
court inferred from the nature of the wounds that the accused must have intended to kill the
deceased within the meaning of Section 300.

However, if intention to kill was not established, the accused cannot be held guilty of murder.
In the case of Ali bin Abdullah v PP , a girl of ten years was raped. She died in
consequence of the rape. The court held that as the intention was to rape and there was no intention
to kill, a conviction for murder could not stand.

Another cases that supported the offence of murder under Section 300 of Penal Code is in
the case of Che Omar Mohd Akhir v PP, where the section 300 will be raised up if beyond
reasonable doubt able to be proved that A hits B with the intention or with the knowledge to cause
death.

In applying the law to the situation, Holgers act was clearly a dangerous act as firing a gun
is dangerous as it is a weapon to kill. Since he has been provoked by Bruno, a German citizen,
Holger had intention and he did attacked Bruno because of Brunos words that were too much.
Then, right after the incident, Holger must and still had intention to revenge or retaliate on what has
happened before because by attacking him did not bring much effect. Thus, he intended to kill
Bruno by shooting him at Brunos apartment. It can be said that, this issue is under murder and
specifically drop under Section 300 (a) of Penal Code. It is only requires at least an intention to kill
where Holger has intention to kill Bruno since Bruno has provoked him with the wording of who
is crueler than Adolf Hitler?. This issue also satisfies all the cases related and therefore, Holger has
a intention to kill Bruno by shooting him.

In conclusion, Holger may be held liable for murder as define under Section 300 limb (a) of
the Penal Code and punishable under Section 302 of the same code for causing the death of Bruno.