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LAW 555

Criminal Law II
By: Lizawati, Siti Fatimah, Naimah & Hanie
Question 2

In order to establish murder, in an act of wrongful killing of another human being,

the act must be accompanied by a special degree of mens rea . Otherwise, the
offence may be culpable homicide not amounting to murder or causing death by
rash or negligent act, depending on the mens rea. Such an act may also be an
offence of culpable homicide not amounting to murder, despite sufficient evidence to
establish the offence of murder, if the accused is able to categorise his act within
any one of the exceptions to murder.

Based on the above paragraph and with reference to decided cases, discuss all of
the exceptions to murder as provided under the Penal Code. (20 marks)
Section 300 of Penal Code



Exception 1 - Grave & Sudden Provocation

Exception 2 - Exceeded the right of private defence
Exception 3 - Public Servant Exceeding his Power
Exception 4 - Sudden Fight
Exception 5 - Consent
Exception 1: Grave and
sudden Provocation

Applicable when an accused is deprived of his power of self-control by grave

and sudden provocation and causes the death.

1. Provocation must be grave and sudden to deprive the accused of the power
of self-control - Chong Teng v PP (1960)
2. There must be a link between the provocation and the killing - Koh Swee
Beng (1990)
3. No cooling period - Mohd Yassin (1994)
4. Proportionality of retaliation - AG For Ceylon and Don John Perera (1953)
and N Govindasamy V PP (1976)
Exception 2 - Exceeded the right of
private defence

applicable when an accused has exceeded what is required objectively for the
purpose of private defence but was in the position whereby he was not able to
estimate whether he has done what is required to defend himself.

1. The right of private defence arises ( S96-105 PC) - PP v Dato' Balwant Singh
2. The right has been exercised in good faith - Teoh Seng Lian (1986) v PP
3. It must not be done with an excessive harm than what is necessary for the
defence of property or the person - Soosay v PP
4. It must not be done with the intention of premeditation
Exception 3 - Public Servant
Exceeding his Power

a public servant or aiding as public servant acting for the

advancement of public justice.

1. The accused must be a public servant, which mean to advance
the public justice.
2. He is exceeding the power given by law and caused death.
3. He takes action in good faith and believe that it is lawful and
4. The act must be performed without any will-ill towards the victim -
Dakhi Singh AIR (1955).
Exception 4 - Sudden

1. sudden fight in the heat of passion upon a sudden
quarrel - SIS V State of Punjab (1973)
2. Absence of premeditation - Kirpal Singh AIR
3. No undue advantage or acted in a cruel or unusual
manner - Mohd Kunjo v PP (1978)
Exception 5 - Consent

It is not a murder when the death is caused to a person above 18

years old, who suffers death or risk of death with his own consent
(Section 90 Penal Code)

1. the consent must be voluntary and genuine consent and not
based on a misconception of fact - Poonai Fatimah (1869)
2. The consent must be unequivocal and not an expression of
willingness, to die as one possible option - Ambalathil Assainar