1.

0 QUESTION 1

The issue is whether Ibrahim’s act of stabbing Murad amounted to culpable homicide or
murder.

Culpable homicide in Malaysia is defined as provided under Section 299 of the Penal
Code whereas the crime of murder in Malaysia is provided in Section 300 where it has laid
down situations where culpable homicide will be amounting to murder. Literally, it may be
said that Section 299 and Section 300 is almost similar to one another. However, in Public
Prosecutor v Mohan Dass Ganesan1, it was stated that murder is an aggravated form of
culpable homicide, and the conviction of murder comes with a higher degree of mens rea.
Mens rea can be defined as the guilty mind of the accused, which to identify the criminal
intent, substantial in determining whether the accused is guilty of the conviction or not. To
determine whether the accused’s act of killing the deceased fall under Section 299 or Section
300, the mens rea of the accused must be looked into as it is crucial to determine the degree
of mens rea. Raja Azlan Shah FJ in delivering the judgment of Tham Kai Yau v Public
Prosecutor2 stated that ‘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.’

The first limb of Section 299 is closely related to Section 300(a), where both
concerned with an act of killing which is accompanied by an intention to cause death.
Nonetheless, it is nowhere provided in the same provision on the definition of intention. In
many cases, the prosecution will be examining the facts of the case in order to determine
whether or not the intention to commit murder is present. The type, location, and the number
of injuries inflicted, the method of infliction, and the use and function of weapons used are all
factors to consider. In Tham Kai Yau v Public Prosecutor3, the intention of the accused was
identified by examining the nature of the injuries sustained and the time and place of the
incident.

The second limb of Section 299, on the other hand, linked with Section 300 (b) and
(c). Provided under Section 299 is a general wording, where an act was done with the
intention of causing such bodily injury as is likely to cause death would amount to culpable
homicide. Section 300(b) stipulated that the accused shall be guilty of murder if the act was
1
[2007] 4 MLJ 87
2
[1977] 1 MLJ 174
3
Ibid.
done with the intention to cause bodily injury as the accused has knowledge of the injury that
is likely to lead to the victim’s death. In this situation, the accused must have special
knowledge regarding the defect that the victim is suffering and uses his knowledge to inflict
injuries to the victim that will likely cause death. In normal circumstances, the injuries
inflicted on an ordinary person would not cause death and the victim died from it as a result
of his defect.

Section 300(c) further provides that an act accompanied by the intention of causing
bodily injury in which in the ordinary course of nature would lead to death would amount to
murder. The distinction of degree between Section 300(c) with Section 299 is the probability
of death as a result of the injury inflicted. In Tan Cheow Bock v Public Prosecutor 4, the
court has laid out the elements that need to be proven by the prosecution in order to convict
the accused under this section. The first element is the accused’s act must have caused the
death of the victim. The second element is the act done must with the intention to cause
bodily injury and the third element is the bodily injury must have intended, not accidental or
unintentional, and must sufficient in the ordinary course of nature in causing death. The
question that must be answered is how to measure the ‘sufficient in the ordinary course of
nature to cause death’? An injury will be considered as ‘sufficient in the ordinary course of
nature’ to result in death if ‘in the usual course, if left alone, it would do so’.5 In other words,
death would most probably result in such an act of inflicting injuries. In R v Govinda6, the
court held that the offence was not murder but rather culpable homicide not amounting to
murder. In this case, the accused knocked down his wife, put one knee on her chest and hit
her violently, resulting in massive bleeding in the brain which led her to death. The court
decided that there is no intention of causing death exists, and the bodily injury is not
sufficient in the ordinary course of nature to cause death.

The third limb of Section 299 is closely connected to Section 300(d) where it pertains
to the knowledge of the accused that his act would likely cause death. However, Section
300(d) is more detailed as it requires the accused to know his act would be so imminently
dangerous that in all probability must cause death, or have the knowledge that his act is
inevitably dangerous that will cause bodily injury and such bodily injury is likely to cause

4
[1991] 3 MLJ 404
5
State v Ghana Padhan [1979] 47 Cut LT 575. Yeo, S., Morgan, N., Chan, W. C. (2012). Criminal Law in Malaysia
and Singapore: Second Edition. Malaysia: Lexis Nexis. P 233.
6
[1877] ILR 1 Bom 342

2
death. An illustration is provided in Tan Cheng Eng William v Public Prosecutor 7 where
the prosecution argued that the accused offence falls within the ambit of Section 300(d) as he
drove his car recklessly when he saw his girlfriend in the opposite car, which had caused a
motorcyclist to be involved in the accident and died. The court, by setting aside the
conviction for murder held that the accused act of reckless driving cannot possibly be said
that he had the knowledge that his act would in most probability causes death. Within this
paragraph, it is provided with the exclusion of liability of murder if and only if the accused
has an excuse for incurring the risk. The landmark case is Emperor v Dhirajia8 where a
mother jumped into a well out of fear of her husband with her baby. As a result, the baby
died. The mother knew in all probability that her baby would be drowned and die. However,
since she feared of his husband, the court accepted it as an excuse and therefore the offence
fell under Section 299.

Applying the law to the facts of the question, Ibrahim was charged with the murder of
Murad. In order to see whether it falls within the ambit of Section 299 or Section 300, the
degree of mens rea of Ibrahim’s act must be closely examined.

The first limb of Section 299 and Section 300(a) shall be looked into. These
provisions require the accused to have the intention of causing death. Referring to the facts of
the question, Ibrahim did say that he did not intend to kill Murad as he was merely protecting
himself from Murad. By looking at the weapon used which is the broken mirror, it might be
said that he had no intention to kill him, where if he intends to do so, he might be using a
sharper weapon that will most probably kill Murad. It must also be considered that rather than
stabbing him at first instance, he slashed Murad, which may support his contention of self-
protection. Therefore, it might be said that Ibrahim’s act does not fall within the ambit of
Section 299 and Section 300(a).

Since second limb Section 299 provides a general provision, Section 300(a) shall be
discussed where the accused must have knowledge of the deceased defect and used it to cause
bodily injury that is likely to cause the death of the deceased. This section is rather unrelated
to the current question as there is no indication of Ibrahim having special knowledge of any
Murad’s defect.

7
[1968-1970] SLR(R) 761
8
AIR 1940 All 486

3
 Section 300(c) also need to be examined. The accused, while conducting the act must
have the intention of causing bodily injury that is sufficient in the ordinary course of nature
would cause death. The elements in the case of Tan Cheow Bock v Public Prosecutor also
shall be looked into. Firstly, Ibrahim has undeniably caused the death of Murad, since he died
because of the injuries inflicted by Ibrahim. Secondly, Ibrahim did have the intention to cause
bodily injury towards Murad when he slashed and stabbed Murad, since he feared that Murad
would beat him and by doing that, he may protect himself. Thirdly, Ibrahim intended to
cause the bodily injury as it was not accidental and it may be said that the stab from the piece
of glass is sufficient in the ordinary course of nature to cause death, considering that the edge
of broken glass would usually jagged and may become a knife-like weapon. Taking into
consideration of this matter, it would be sufficient enough in normal circumstances to cause
the death of someone. This is unlike the case of R v Govinda where the court deemed the act
to be not sufficient in the ordinary course of nature to cause death.

The third limb of Section 299 and Section 300(d) also must be looked into. These
provisions may not be applicable in Ibrahim’s case, considering that it requires Ibrahim to
have knowledge that his act would be imminently dangerous and, in all probability, must
cause death. Ibrahim may not know that his act of stabbing Murad is so imminently
dangerous which will most probably cause the death of Murad as a piece of glass may or may
not inflict a deadly injury towards the victim. This is similar to the case of Tan Cheng Eng
William v Public Prosecutor where although reckless driving is dangerous, he did not have
the knowledge that his act would cause the death of the motorcyclist.

In conclusion, the degree of mens rea on part of Ibrahim might be said to have fallen
within the ambit of Section 300(c) and he may be charged with murder.

4
2.0 QUESTION 2

The issue is whether Ibrahim is entitled to any defence of his offence of murder.

Under Section 300 of the Penal Code, there exist exceptions that may be applicable
that the accused may escape from his murder charge. There are five exceptions that the
accused may raise to reduce their charge from murder to culpable homicide not amounting to
murder, namely Exception 1 of provocation, Exception 2 of exceeding the right of private
defence, Exception 3 of public servant exceeding his power, Exception 4 of a sudden fight,
and Exception 5 consent.

Concerning the facts of the question, the most possible defence that may be available
is sudden fight. It is provided under Exception 4 where ‘Culpable homicide is not murder if it
is committed without premeditation in a sudden fight in the heat of the passion upon a sudden
quarrel and w/o the offender having taken undue advantage or acted in a cruel or unusual
manner.’ It is to be considered as partial defence as the murder charge will be reduced to
culpable homicide not amounting to murder, which has lesser punishment, as stipulated under
Section 304 of the Penal Code.

In order to raise the defence of sudden fight, the elements must be fulfilled. Firstly,
there must be sudden fight happened between the accused and the deceased. Secondly, there
was an absence of premeditation, where the fight must not a planned attack. Thirdly, there
was no undue advantage taken or any cruel or unusual act.

As for the first element, it is stated that there must be sudden fight. Under the Penal
Code, it is not defined as to what will amount to a sudden fight. However, the court in Chan
Kwee Fong v Public Prosecutor9 relied on the adage of ‘it takes two to make a fight’.
Furthermore, in Atma Singh10, it was held that in determining a fight, there must be an
exchange of blows between the accused and the deceased, even though they lose their target.
Illustration is provided in Herlina Trisnawati v Public Prosecutor11 where a fight happened
between the appellant (maid) and the deceased (employer). Earlier before the fight, the
appellant hit the deceased head with a pestle, with the intention that her employer could go
unconscious and that she could run away from the house as the deceased has been treating her
badly. The subsequent fight happened right after the first incident as the employer did not go

9
[2010] 1 MLJ 441 at [125]
10
AIR 1955 Punj 191
11
[2008] 1 MLJ 478

5
unconscious and instead went to the kitchen to get a big knife. The accused fought with a
small knife and later killed the deceased. The court then set aside her conviction of murder
and substituted it for culpable homicide not amounting to murder.

The second element that the accused must prove in order to raise this defence is the
absence of premeditation. The act of killing done by the accused must be without
premeditation, where pre-planning must not happen before the fight between the accused and
the deceased. In Mohamad Yassin bin Japar v Public Prosecutor12, the court has rejected
the defence of sudden fight raised by the accused, as sharpening the toothbrush before
attacking the deceased is considered to be a preparation of the attack, which is deemed to be a
planned attack. Similarly, in Public Prosecutor v Awang Radan bin Awang Bol 13, the court
held that the accused has planned the attack beforehand as he admitted that he did not
normally carry an axe and a knife, and he brought it from home just for the purpose of
attacking the deceased. Therefore, the defence of sudden fight could not be raised.

The third element that is substantial to be proven for the accused to be able to raise
this defence successfully is no undue advantage taken or any cruel or unusual manner. With
regards to this element, there are few scenarios that may arise from cases involving a sudden
fight. Firstly, both the accused and the deceased are in equal position throughout the fight.
Secondly, the deceased attacked the unarmed accused with a weapon but later the accused
acquired the said weapon and killed the deceased. Thirdly, the accused initiated the fight,
attacked the unarmed deceased with a weapon and killed him. Fourthly, where both of them
fought unarmed but later the deceased obtained a weapon and murdered him.14

In the event that the accused attacked the unarmed victim with a weapon, it would
generally be hard for the accused to raise the defence of sudden fight. However, the court will
be looking at the facts and circumstances of the case. In Public Prosecutor v Seow Khoon
Kwee15, the defence of sudden fight under Exception 4 is successfully raised by the accused.
In this case, the deceased initiated the fight by punching the accused in the eyes and trying to
assault him. The accused, out of fear for his life, stabbed the deceased with the broken glass
that he had prepared beforehand to stop him. The court allowed the defence to be raised on

12
[1994] 3 SLR(R) 17
13
[2006] 1 MLJ 332 at [337]
14
Yeo, S., Morgan, N., Chan, W. C. (2012). Criminal Law in Malaysia and Singapore: Second Edition. Malaysia:
Lexis Nexis. P 849.
15
[1988] 2 SLR(R) 310

6
the ground that he possessed the glass for his self-protection and that the deceased was
known to be a big bully and was physically larger and stronger.

Applying the law to the facts of the question, the most possible defence that may
allow Ibrahim to be excepted from the offence of murder is the defence of sudden fight,
provided under Exception 4 of Section 300. For Ibrahim to successfully raise this defence, the
elements must be fulfilled.

The first element would be the existence of sudden fight. Relying upon the case of
Chan Kwee Fong v Public Prosecutor, it might be said that there is a fight between Ibrahim
and Murad. The stance provided in Atma Singh also might be applicable as there is indeed an
exchange of blows between Ibrahim and Murad as Murad was the one who started to punch
Ibrahim, followed by Ibrahim slashing Murad several times, similar to the case of Herlina
Trisnawati v Public Prosecutor where there is the exchange of blows between the accused and
the deceased. The fight also can be said as sudden, considering that Murad approached
Ibrahim while encountering each other. Therefore, it may be presumed that the first element
to raise this defence is fulfilled.

With regards to the second element, Ibrahim must prove that there is the absence of
premeditation, where the fight that happened between him and Murad must not a planned
fight and attack. In this current situation, although Ibrahim had hidden a piece of glass under
a washbasin, it may not be said that Ibrahim is planning to attack Murad as he used that as a
protection for himself in case that Murad attacks him. Moreover, since Murad initiated the
fight, there may be in no way that Ibrahim had planned the attack as he was merely providing
self-protection of himself, unlike the case of Mohamad Yassin bin Japar v Public Prosecutor
where the accused prepared a sharpened toothbrush to attack the deceased. The case of Public
Prosecutor v Awang Radan bin Awang Bol also differs from the current situation as the
accused planned to attack the deceased by finding an axe and knife.

The third element also needs to be fulfilled by Ibrahim, where there must be no undue
advantage taken or any cruel or unusual manner in the fight. Since Ibrahim was the one with
a weapon, the fourth scenario is relatable to the current case of Ibrahim and Murad. Ibrahim
and Murad initially did not fight with any weapon as Murad was using his power fist to
punch Ibrahim on his left eye. It was later that Ibrahim acquired a weapon which was the
broken glass which he kept under the washbasin, and proceeded to slash Murad to stop him.
Normally, there is a small probability that the court would allow the accused to raise this

7
defence if the accused was against the unarmed deceased. In this current case, it might be
justifiable if Ibrahim used that weapon of broken glass against Murad is for his self-
protection as in the case of Public Prosecutor v Seow Khoon Kwee. However, the fact that
Ibrahim stabbed Murad after he retreated may result in him taking undue advantage over
Murad. Therefore, the third element may not successfully be proven by Ibrahim.

In conclusion, Ibrahim may not be able to raise the defence of sudden fight provided
under Exception 4 to Section 300. He may be able to prove that there is sudden fight
happened between them and there is no premeditation done. However, there might be undue
advantage taken in the course of the fight with Murad.

8
3.0 BIBLIOGRAPHY

Statute

Penal Code (s 299, 300)

Cases

Atma Singh AIR 1955 Punj 191

Chan Kwee Fong v Public Prosecutor [2010] 1 MLJ 441 at [125]

Emperor v Dhirajia AIR 1940 All 486

Herlina Trisnawati v Public Prosecutor [2008] 1 MLJ 478

Mohamad Yassin bin Japar v Public Prosecutor [1994] 3 SLR(R) 17

Public Prosecutor v Awang Radan bin Awang Bol [2006] 1 MLJ 332 at [337]

Public Prosecutor v Mohan Dass Ganesan [2007] 4 MLJ 87

Public Prosecutor v Seow Khoon Kwee [1988] 2 SLR(R) 310

R v Govinda [1877] ILR 1 Bom 342

State v Ghana Padhan [1979] 47 Cut LT 575

Tan Cheng Eng William v Public Prosecutor [1968-1970] SLR(R) 761

Tan Cheow Bock v Public Prosecutor [1991] 3 MLJ 404

Tham Kai Yau v Public Prosecutor [1977] 1 MLJ 174

Book

Yeo, S., Morgan, N., Chan, W. C. (2012). Criminal Law in Malaysia and Singapore: Second
Edition. Malaysia: Lexis Nexis. P 233, 849.