HOMICIDE

UCR2612 :: CRIMINAL LAW 1

 Introduction

• Homicide – killing of a human being – may or may

not be a crime
• There are several types of homicide:
– Lawful homicide – legitimate killing – eg act fall
under general defence
– Unlawful homicide – criminal in nature
• Under the Penal Code, 3 main types of homicide:
– Murder
– Culpable homicide not amounting to murder
– Causing death by rash or negligent act
• The offences are distinguished by their required
mens rea.
• Offence of manslaughter under the common law has
a different concept as compared to culpable
homicide not amounting murder.
 Section 299 Section 300
Intention to cause death (a) Intention to cause death
Intention to cause bodily injury which is likely (b) Intention to cause a bodily injury which the
to cause death offender knows is likely to cause the death of
the person 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
Knowledge of the likelihood of 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
• It is not easy to decide whether a case should fall
under s.299 or s.300 – the wording under s.299(1)
and limb (a) of s.300 are identical
• Solution:
1. All offences under s.300 also fall under s.299
2. However, if the accused can raise one of the
Exceptions under s.300, eg. Provocation, Private
defence etc – the charge shall fall under s.299 even
though the intention was to kill
MURDER
• Under s 300, the prosecution is required to prove all
ingredients of murder:
1. Death of victim;
2. It was caused by the acts of the accused; and
3. The acts by which the death was caused falls under
the ambit of limbs (a) till (d)
• Eg: PP v Manimaran a/l Amas and Ors [2014] 10 MLJ
at pg 769
 Actus Reus

• Under s.300 of Penal Code, unlawful killing is murder if the

actus reus is causing death and the mens rea of the accused
fulfill any one of the four limbs – (a) till (d)
• Eg: Mohd Asmadi bin Yusof v PP [2011] 2 MLJ 302 - The appellant
was charged with murder when he used a brick to hit the head of the deceased.
The prosecution had successfully proved the following ingredients:
(a) that the death of the deceased had taken place;
(b) that his death had been caused by or in consequence of the act of the
appellant; and
(c) such act was done with the intention either of causing death or of causing
bodily injury sufficient in the ordinary course of nature to have caused his death.
• However, if the accused manage to plead any of the
exception provided under s.300, his charge will be reduced
from one of murder punishable under s.302 to culpable
homicide not amounting to murder punishable under s.304
 Mens rea

• A killing without proof of intention or knowledge is

not murder – eg: Hashim bin Mat Isa v PP [1950] MLJ
94.
• The limbs under (a), (b) and (c) are generally
classified as mens rea of intention whereas limb (d)
indicates knowledge
• Intention is the highest degree of mens rea and it is a
matter of inference that can be inferred from
surrounding circumstances – Tham Kai Yau v PP
• Illustration (a)
 Cases – limb (a)

• Intention can be inferred where the killing is committed in a

particularly gruesome, violent and savage manner, or when
extensive wounds are found on the body of the victim –
Mohd Yazid bin Hashim v PP [1999] 1 MLJ 545 - The injuries that
caused the deceased's death were the result of several successive blows
with a piece of wood…the nature of the deceased's head injuries which
include the fracture of her skull are ample evidence of the appellant's
intention to kill the deceased.
• Deliberate use of a dangerous weapon leads to an irresistible
inference that their intention is to cause death - Ghazali Bin
Mat Ghani v PP [1998] 2 MLJ 675
 Limb (b)

• Limb (b) requires the prosecution to prove that the death has
been caused to the victim by intentionally inflicting injuries
which has a likelihood of death.
• The term “knows” indicates that the accused was certain that
the injuries he intentionally inflicted on the victim would most
likely resulted to death
• The certainty derives from the accused knowledge of the
victim’s situation or health condition
• Illustration (b)
• Mohd Naki bin Mohd Yusuf v Public Prosecutor [2014] 6 MLJ
16 - Deceased's death was due to the injuries inflicted upon a vital part of his
body ie his head…there was clearly an intention to cause death under para (a) or
the intention to injure knowing that such act would cause death under para (b).
 Limb (c)

• Limb (c) requires that an injury intentionally inflicted by

the accused must be objectively sufficient in the ordinary
cause of nature to cause death
• Illustration (c)
• Eg: Mohd Isa bin Mohd Nor v PP [2013] 5 MLJ 227 - The
cause of death was 'stab wound to the heart' which was caused by the
appellant who stabbed the deceased with the Rambo knife in the
abdomen region. It was held that he had the intention of causing bodily
injury sufficient in the ordinary course of nature to cause death.
• PP v Visuvanathan [1978] 1 MLJ 159 – cause of the death was
due to stab wound into the heart
 Limb (d)

• Under limb (d) element of knowledge must be proven

where the accused must have known that when he did
an act it was so imminently dangerous that it would in all
probability cause death or that the bodily injury he
inflicted was likely to cause death
• Illustration (d)
• Eg: William Tan Cheng Eng v PP [1970] 2 MLJ 244
– It is not sufficient to amount to murder under s 300 for an act to be so
imminently dangerous that it must in all probability cause death. Such
an act becomes murder only if death results and 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
 PP v Kenneth Fook Mun Lee @Omar Iskandar
Lee bin Abdullah [2007] 1 MLJ 334
• …the learned trial judge found that the prosecution had made out a
prima facie case of murder under s 300(d) of the Code against the
respondent …In arriving at that decision he had extensively and
correctly appraised the law…the following ingredients of murder
under s 300(d) of the Code have been established at the conclusion
of the case for the prosecution, namely:
(a) that the respondent knew that his act of discharging the gun at
the deceased at such close quarters is so imminently dangerous
that it must in all probability cause death or such bodily injury as is
likely to cause death; and
(b) that the act of the respondent was wholly inexcusable.
• …The learned trial judge correctly observed that 'intention' is not a
necessary element in s 300(d) of the Code and all that is required to
be proved is 'knowledge' that the act is likely to cause death.
 The Exceptions

• The Exceptions under s.300 do not serve as a complete

defence but only partial
• Instead the exceptions are in the nature of “formal”
mitigation – to reduce the charge of murder to be
culpable homicide not amounting to murder
• Eg: Looi Wooi Saik v PP [1962] MLJ 337 – If the case comes
within any of these then what would otherwise have been murder is
culpable homicide not amounting to murder. These are generally called
"special exceptions" because they are special to the offence of murder.
• As a general rule, in a criminal trial, the prosecution has
the duty and burden to prove the case beyond
reasonable doubt – s.105 Evidence Act
• However, the onus to prove any fact falls under any of
the Exceptions of s.300 is not on the prosecution; instead
it is shifted to the accused to put the fact as part of his
defence
• Eg: Ikau anak Mail v PP [1973] 2 MLJ 153: “…to suceed in
a defence of grave and sudden provocation, it is
necessary in law for the defence to satisfy the court…”
• There are 5 Exceptions under s.300:
1. Grave and sudden provocation
2. Exceeding private defence
3. Exceeding public power
4. Sudden fight
5. Consent
 1) Grave and sudden provocation
• In order to successfully raise the Exception, the are several
conditions:
i. The grave and sudden provocation complained must caused the
accused to lose his self control
ii. The provocation must proceeded from the victim and not from a
third party
iii. The provocation should not have been sought or voluntarily
provoked by the offender
iv. The 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
v. The provocation is not given by someone lawfully exercising his
right to private defence
• Explanation: Whether the provocation was grave and
sudden enough to prevent the offence from amounting
to murder, is a question of fact.
• Eg: Lorensus Tukan v PP [1988] 1 MLJ 251:
– The 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 … For what a reasonable man
will do in certain circumstances depends upon the
customs, manners, way of life, traditional value, etc.
• The provocation must not only be looked at its gravity
but also to the suddenness which had deprived the
accused his power of self control
• Eg: Che Omar bin Mohd Akhir v Public Prosecutor [2007]
4 MLJ 309 - In the present case, the only provocation was
a suspicion of adultery. The provocation was gradual.
There is no such thing as gradual and accumulated
provocation that amounts to grave and sudden
provocation. Devoid of its gravity and suddenness (as in
the case here) a gradual and accumulated provocation is
not sufficient to constitute a defence under Exception 1
to s 300 of the PC
 Cases

• T Paramasparan a/l Thanigajalam v Public Prosecutor

[2012] 2 MLJ 545
• Loh Yoon Fatt v Public Prosecutor [2014] 6 MLJ 547
• Abdul Razak Dalek v. PP [2010] 6 CLJ 357
• Chian Swee Ong v. PP [2010] 5 CLJ 1
• PP v. Surbir Gole [2017] 2 CLJ 621