HOMICIDE (2)

UCR2612 :: CRIMINAL LAW 1

MURDER:
EXCEPTIONS

EXCEPTION 1
2 main elements:
1. Grave it is a question of fact - whether the provocation
was grave or not that a reasonable man would likely to lose
self-control as a result of such provocation? If the answer is
in the positive, then the provocation is said to be grave. Eg:
PP v. Abdul Razak Dalek [2006] 4 CLJ 129
Factors that may contribute to the gravity of the
provocation: circumstances in which the provocation was
offered, any past conduct between the parties and the
relationship of the parties themselves. Eg: Chan Kwee
Fong v. PP [2010] 3 CLJ 671

2. Sudden unexpected it has to occur within a short

period of time before the killing. eg: Chong Teng v. Public
Prosecutor [1960] 26 MLJ 153
The longer the time gap between the provocative episode
and the homicidal act, the more likely that it will be
construed that the accused had killed due to
premeditation or revenge. The issue: "Whether the
accused was still deprived of his power of self-control at
the time of the killing? Eg: Public Prosecutor v. Lim Eng
Kiat [1995] 1 MLJ 625.

 PP v. Subir Gole [2015] 3 CLJ 505

The respondent claimed that he had stabbed the deceased when he
lost control of himself as a result of cumulative provocation and that
the deceased's death was not a deliberate and premeditated
murder. The COA agreed with the trial judge decision to reduce the
original charge to one of culpable homicide not amounting to
murder under s. 304(b) of the PC

EXCEPTION 2
This Exception provides a partial defence to an accused who
had exceeded his right of private defence
Private defence is a one of General Defences under Chapter
IV which operates as a total excuse if it is successfully raised
by the accused. The defence is provided under ss. 96 to 106
of the Penal Code.
When an accused has exercised his right to private defence
beyond its limits conferred under s.99 and caused the death
of the deceased, he will not longer be qualified to plead the
defence under Chapter IV.

 Once an accused succeeded in pleading Exception 2, it will

reduce the charge of murder to be one of culpable homicide
not amounting to murder punishable under s. 304.
Conditions:
1. The right of private defence must have existed
2. The right must have been exercised in good faith
3. The defender must not have been premeditating the death
of the aggressor
4. The harm intended to be inflicted must not have exceeded
that which was necessary for the purpose of private
defence, although the actual harm inflicted was greater
than that intended

 Ommar Yacob v. PP [2015] 2 CLJ 889

Can rely on the Exception
Wong Teck Choy v. PP [2005] 3 CLJ 431
Cannot rely on the Exception

EXCEPTION 3
This Exception provides a partial defence to a public
servant who had acted in the advancement of public
justice or to those who had assisted the public servant.
Whenever these parties exceeded the powers accorded
by law and caused the death of the deceased, they can
rely on this Exception to reduce their charge to a lesser
charge.

 Conditions:
1. The death was caused whilst the accused was carrying out
duties for the advancement of public justice
Advancement of public justice includes apprehension
of criminals or suspected to involve in crimes
Eg: Dukhi Singh v State of Allahabad (1955) AIR All 379
The accused had fired a shot and killed a fireman
whom he had suspected to be an accomplice to a
suspected thief who he had just apprehended. Court
held that he can relied on Exception 3
2. The accused had acted in good faith without malice against
the deceased

EXCEPTION 4
This Exception applies to an accused who had killed the
deceased in a sudden fight
Sudden Not pre-planned and no interval between the
quarrel and the fight.
Fight There will be blows on each side. And each
subsequent blow becomes a fresh provocation
notwithstanding that only a slight blow that may have been
exchanged.
In the heat of passion" the combatants of a sudden fight
have experienced some degree of lost of self-control.

 Distinction with Exception 1: It is immaterial which party

started the provocation or initiated the first assault. Eg: Teoh
Seng Lian v PP [1986] 1 MLJ 474
However, if the accused takes undue advantage on the victim
or acts in a cruel manner cannot rely on the Exception. Eg:
Teo Boon Ann v PP [1989] 2 MLJ 321
Undue advantage" the fight started on an equal footing
between the combatants.

 Conditions:
1. There was a sudden fight
2. There was no premeditation
3. The act was committed in the heat of passion
4. The assailant had not taken any undue advantage or acted
in a cruel manner.

Cases
Chan Kwee Fong v. PP [2010] 3 CLJ 671
The accused had stabbed the deceased 4 times with a
knife. After being stabbed on the front part of his body,
the deceased ran but was chased by the accused. The
accused caught up with the deceased and again stabbed
the deceased on the back of the buttock. The accused
caused excessive loss of blood. Held: the accused had
taken advantage of the deceased and had acted in a cruel
and unusual manner

 Hainie Hamid v. PP [2003] 2 CLJ 137

The deceased was involved in a fight. The
accused, together with some others,
intervened to stop the fight. However, the fight
resulted in the accused stabbing the deceased
with a knife. Held: The trial judge had failed to
consider exception 4 to s. 300 of the PC and
COA sentenced him under s. 304(a).

EXCEPTION 5
The Exception applies when a person has been informed
that the consequences of any course of action he wishes to
take, and has been informed that it carries the risk of death,
but nevertheless he take the action or risk
Eg: deadly games, stunt etc
Condition:
1. The consent must be unequivocal, obtained not thru
threat, or misconception
2. The victim must be above 18 years old

CULPABLE HOMICIDE
NOT AMOUNTING TO
MURDER

s.299
All cases fall under s.300 must necessarily fall within s.299
but not all cases falling within s.299 will fall under s.300.
Based on the case of Tham Kai Yau & Ors v PP [1977] 1 MLJ
174 & Ramaiah v PP [1986] 1 MLJ 301: s.299 is a substantive
offence section. If the Exceptions to s.300 do not apply, it
would not mean that the facts can never be construed as
coming within the ambit of s.299 and s.304. The facts may
in law fall within the second and third limb of s.299 which in
themselves deal with the substantive offence of culpable
homicide not amounting to murder

s.304
This provision provides for the punishments of culpable
homicide not amounting to murder
The first part of s. 304 covers cases which by reason of the
exceptions are taken out of the purview of s. 300, limb (a),
(b) and (c) but otherwise would fall within it and also cases
which fall within the second part of s. 299, but not within s.
300, limb (b) and (c).
The second part of s. 304 covers cases falling within the third
part of s. 299 not falling within s. 300, limb (d).

 The punishments are distinguish based on the

types of mens rea:
(a) Intention to cause death or bodily injury
(b) Knowledge

Elements
1.
2.
3.
(a)

The death of a person

The death was caused by the act of accused
The accused either:
Intended such act to cause death or cause
such bodily injury that was likely to cause
death; OR
(b) Knew that such act would be likely to cause
death

 PP v. MEGAT SHAHRIZAT MEGAT SHAHRUR [2011] 8 CLJ

893 :
We are of the view that the learned High Court trial judge was
correct in first considering whether a prima facie case had been
made out against the respondent under s. 300 of the Penal Code.
After finding that the prosecution had failed to do so, she rightly
considered whether it fell under s. 299 of the same. There would be
no need to do so if she had found that a case had been made out
under s. 300. The applicability of s. 299 only came into question
once s. 300 had been ruled out.