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15 of 15 DOCUMENTS

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)The Malayan Law
Journal Articles

2001
Volume 1

[2001] 1 MLJ cxciii; [2001] 1 MLJA 1932001 1 MLJ cxciii; 2001 1 MLJA 193

2001Article: PROVOCATION AS A DEFENCE IN MALAYSIA: A

RE-EXAMINATION OF ITS APPLICABILITYSiti Zubaidah Ismail LLM
(Birmingham), MCL (IIU), BShariah (Hons.) (Mal) Academy of Islamic Studies,
University of Malaya

[*193]

Introduction

Lawyers representing a murder accused pleading sudden and grave provocation are trapped by what seems to be
narrowly-defined provocation within Exception 1 to s 300 of the Penal Code. Undoubtedly, guilt is determined by
fitting the defendant s behaviour into categories of actus reus, mens rea and minus the excuses. Where it concerns
provocation, the challenges lie in accommodating the accused s act(s) within the deprivation of his power of
self-control. What s more, the assessment of what should be an appropriate reaction towards the alleged provocation is
based on an objective reasonable man test. In most cases, the acts of the accused are far from meeting these dual
requirements. This article examines the problems relating to fulfilling these requirements and the approach taken by the
Malaysian courts in dealing with provocation.

The workability of provocation

In order to succeed, provocation received must be both so grave and sudden in its gravity and suddenness as to not
only deprive the accused of his power of self-control, but would also deprive a (hypothetical) reasonable man of his
power of self-control.

Whether the provocation was so grave and sudden as to deprive a reasonable man of his self-control is a question of
fact which must be viewed and assessed objectively.

However, the fact remains that it is difficult to prove these two requirements. A review of some cases shows the
prevailing elements of either retaliation or premeditation. It is typical to find in those cases that both the accused and the
victim had earlier disputes and ill-feelings towards one another as appeared in Ikau anak Mail v Public Prosecutor. n1
Both the accused and the victim had divorced and subsequently disputed over the distribution of their joint property,
namely a joint bilek and a rubber plantation. Earlier on, the victim (ex-wife) seemed to acquiesce to the [*194]
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1 MLJA 193, *194; [2001] 1 MLJA 193

disposition of both properties to their adopted daughter but later changed her mind. It was for the purpose of settling this
matter that the Administrative Officer called them to his office. The victim insisted on keeping both properties but
agreed to give the rubber plantation to their child after she had come of age. When the appellant arrived he reiterated
that those two things should go to the child. Upon hearing this, the victim shouted: This is cheating. I do not want to be
cheated. The appellant then also cried out: This is not cheating. Where is the cheating? and thereupon he pulled out a
knife from his pocket and stabbed the victim twice. He also stabbed to death the victim s uncle who tried to separate
them. Following the conviction of murder (of his ex-wife) n2 the appellant appealed and brought up the issue of a
series of previous provocation by the victim: accusations of unfaithfulness and stupidity. Azmi LP (as he then was)
emphasized that history (of abuse or violence between the parties involved) was of no particular relevance to the present
provocation. What is more relevant is first: whether the defence had been successful in proving, on the balance of
probabilities, that the appellant had been suddenly deprived of the power of self-control within the requirement of the
law while committing the act and second: that the assessors had agreed objectively that a reasonable man would have
been so deprived of such power when placed in the appellant s situation.

In the quite recent case of Public Prosecutor v Awang Raduan bin Awang Bol, n3 the element of premeditation and
retaliation also prevailed. The accused was angry and uttered some expletives after being refused 50 sen by the victim.
Two hours later the accused appeared with a knife and an axe and confronted the deceased. Following an argument, he
stabbed the victim causing him multiples serious injuries which led to his death. Interestingly, it was stated that the
court found that the accused did lose his self-control as a result of what the deceased said to him. n4 The provocation
was slight , i.e., a few angry words exchanged at the scene of the offence, and this was alleged to have led him to lose
his power of self-control. However, the second requirement was negatived by the fact that a reasonable man would or
could not have been considerably deprived of the power of self-control in such a situation. The question is, who is the
reasonable man considered in this case? What are his characteristics? Or, is there any similarity or coincidence,
character-wise, between the accused and this hypothetical reasonable man? Assuming that the accused is of certain
ethnicity which is well-known for being temperamental, easily provoked by insults, rejection or humiliation, could the
assessment of a reasonable man s reaction be considered with regards to such similarity? [*195]

Most of the cases concerning provocation show that the provocation involved is more of a verbal rather than
physical nature, i.e.: challenging words, expletives, abusive or angry exchanges are some of the examples that appeared
in the two cases mentioned earlier. These words must be so grave and severe as to be capable of causing the accused to
lose his self-control. They must be more than mere anger. If the accused remains in control, no matter how severe the
provocation is, the defence does not apply.

In Mat Sawi bin Bahodin v PP, n5 the Court of Appeal, in recognizing the existence of provocation, was of the
view that the provocation received (that the dead woman scolded the appellant (including calling him names like babi
[middot] (pig)) at a time when he was in pain and his wife s coldness in dealing with his pain, making him suspect that
she was having an affair with someone else) was a matter to be viewed as a whole by the jury objectively. n6 For that
reason, the conviction of murder could not stand because, as understood from the facts of the case, the provocation
received was sufficient to deprive any man or husband of his self-control. Compare this with the later case of Ikau anak
Mail v PP n7 whereby he struck the victim following the utterance of: This is cheating, I do not want to be cheated or a
challenge: alang-alang hamun, kalau berani cucuk terus as in PP v Awang Raduan bin Awang Bol. n8 In both cases,
provocation could not apply and the conviction of murder was affirmed.

In dealing with abusive words received by the accused in the case of Ithinin bin Kamari v PP, n9 that is, puki mak
and kurang ajar (ill-mannered), the learned judges found that:
... a reasonable man belonging to the same class of society as the accused, placed in the same situation will not have
been so provoked by these words as to lose his self-control as the accused claimed he did.(Emphasis added.)
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1 MLJA 193, *195; [2001] 1 MLJA 193

It seems that from the above cases (except Mat Sawi Bahodin), verbal provocation is hardly provocation at all.

If the first essence of provocation is fulfilled, another important requirement to meet is the objective test, that is, a
reasonable man s reaction upon [*196] receiving such provocation. Even though this is the second essence in
provocation, Exception 1 of s 300 makes no mention about who a reasonable man is. n10 This means that this
requirement is not a statutory requirement but has been developed through case law. One brief explanation about this
reasonable man emerged only twelve years ago at the Supreme Court of Kota Kinabalu in the 1988 case of Lorensus
Tukan v PP n11 when Seah SCJ (as he then was) mentioned that a reasonable man is the one ... belonging to the same
class of society as the accused, placed in the situation in which the accused was placed... .This is consistent with the
Singaporean case of Vijayan v PP n12 when the court stated:
The test to be applied to ascertain the sufficiency of provocation under our law is the same as that applied under
common law. In every case, it depends on the effect of the provocative act on the ordinary man, that is, an ordinary
reasonable man belonging to the same class of society as the accused... [T]hat matter must be considered objectively...
(my italic)

The court further explained that where an accused person charged with murder relies on provocation and claims the
benefit of Exception 1 of s 300, the test to be applied is, would the act(s) alleged to constitute provocation have
deprived a reasonable man of his self-control and induced him to do the act which caused the death of the deceased. In
Lorensus Tukan, the fact that the previous court failed to acknowledge or look at the way an East Timorese might react
towards provocation had led to the success of the appeal in reducing the charge from that of murder to culpable
homicide not amounting to murder. However, the appellate court did not elaborate further on this point.

In applying this objective test, it is relevant to look at and compare the act of provocation with the act of retaliation.
Sinnathuray J and Amerjeet Singh JC in Ithinin bin Kamari v PP n13 in dealing with abusive words received by the
accused, found that a reasonable man belonging to the same class n14 as the accused, placed in the same situation will
not have been so provoked by these words as to lose his self-control as the accused claimed he did . What they found
was that:
there was no reasonable relationship or balance between the use of the abusive language referred to as a provocation
and the violent reaction of the accused [*197] in arming himself immediately and using a deadly weapon in fatally
injuring both the deceased.

This was due to the fact that the appellant s actions were inconsistent with a man who had truly lost his self-control.
The reason being that he had the presence of mind to go to the kitchen to arm himself with a knife. This was affirmed
by the Court of Appeal judge who then referred to the landmark case of DPP v Camplin n15 regarding the reasonable
man:
The reasonable man is an ordinary person of either sex not exceptionally excitable or pugnacious but possessed of
such power of self-control, as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

It appears that a reasonable man is an ordinary person, man or woman, without any peculiar characteristic that may
affect his expected power of self-control. Typically, when provocation could only arise from acts, for example the
discovery of a husband of his wife in the act of adultery, the reasonable man to look for is the well-behaved, ordinary
and adult person. However, when words alone could form the basis of provocation, it becomes necessary to look at the
relevant characteristics of the person taunted, to decide if he was provoked and to determine what degree of self-control
was required of him. n16 This direction was given by the Court of Appeal in Camplin n17 where a reasonable man to
look for is:
A person having the power of self-control to be expected of an ordinary person of the sex and age of the accused,
but in other respects sharing such of the accused s characteristics as they think would affect the gravity of the
provocation to him.
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1 MLJA 193, *197; [2001] 1 MLJA 193

Lord Diplock continued: n18

The gravity of verbal provocation may well depend on the particular characteristics or circumstances of the person
to whom the taunt or insult is addressed.

This means that, in evaluating the reasonableness of response or the gravity of provocation on the accused, what
must be considered is the effect of the words (or conduct) on a person sharing the accused s characteristics. Clearly the
question of the relevant characteristic should be [*198] taken further n19 than just the one belonging to the same class
and society as the accused . Class and society do not exclusively represent the characteristic of its member as race, age
and sex would probably do. It is time the court takes a step further to clearly define a reasonable man in the Malaysian
context rather than keep a long silence or forget about it. Otherwise, the applicability of this partial defence would be
continuously difficult, if not impossible.

Conclusion

It is still uncertain whether the approach of Camplin (youth) or Humphreys (provocation related to her
attention-seeking trait) in relating verbal provocation to the (permanent) characteristics of the accused is likely to be
applied in Malaysian courts. The English cases have established that when words alone are provocative, it has to be
negative words concerning one s characteristic or related to the circumstances of that person. Only then that verbal
provocation can be considered as grave and may pass the objective test. Nevertheless, throughout the discussion on six
reported cases, it can only be confirmed that, unless and until the provocation (words, that is!) is so grave and so
sudden, relying solely on the platform of provocation will remain an impossible option.

Perhaps the decision of Lorensus Tukan could be a starting point where other issues apart from class and society ,
such as race, age and sex might be considered in determining the appropriate reaction of a reasonable man.

Return to Text

n 1[1973] 2 MLJ 153

n 2He was also convicted of culpable homicide not amounting to murder for the death of the second
victim.

n 3[1998] 5 MLJ 460.

n 4In almost all cases where provocation was pleaded, there appears to be verbal provocation instead of
physical or other forms.

n 5[1958] 24 MLJ 189.

n 6However, the court did not mention that this was the (typical) reaction of any reasonable man facing the
same situation. In England, a husband was freed for killing his nagging wife because, from a reasonable man s
point of view (sic! Or was it from a male judge s point of view?), she had tried the patience of a saint .See the
case of Bisla Singh, Times (UK) 30 January 1992, quoted in Siti Zubaidah Ismail, see infra n 16.

n 7[1973] 2 MLJ 153.

n 8[1998] 5 MLJ 460.

n 9[1993] 2 SLR 245.

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1 MLJA 193, *198; [2001] 1 MLJA 193

n 10The only explanation available was regarding the gravity and suddenness of provocation which is a
matter of fact to be decided by the court.

n 11[1988] 1 MLJ 251. In England this (reasonable man) requirement was distinctively discussed in the
1978 case of Camplin which was considered the landmark case particularly concerning the issue of the
characteristics of a reasonable man . See [1978] 2 All ER 168. It was previously developed from the New
Zealand case of McCregor [1962] NZLR 1069 and was later followed by Newell [1980] 71 Cr App R 331.

n 12[1975] 2 MLJ 8 at 12A.

n 13[1993] 2 SLR 245.

n 14If this approach is to be used, the question one must ask is, what class are they talking about?

n 15[1978] 2 ALL ER 168 at 174, per Lord Diplock.

n 16for detailed arguments see Siti Zubaidah Ismail, Women Who Kill Their Spouses: The Effects of the
Background Factors on the Applicability of Legal Defences in English Criminal Law , LLM thesis submitted to
the University of Birmingham, England (unpublished) 1997.

n 17Because Camplin involved a 15-year old boy, therefore, the effect of provocation must be that
expected of a reasonable 15-year old boy. It would be an unreal test should youth be excluded because it will
make a reasonable man (in this case) a totally different person and rather remote from the accused.

n 18supra n l5 at p l75.

n 19see the decision (and discussion) in Morhall [1995] 3 WLR 330, Humphreys [1995] 4 All ER 1008,
Luc Thiet Thuan [1977] AC 131.

LOAD-DATE: 11/06/2009