UCR2612 – CRIMINAL LAW 1

OUTLINE: HOMICIDE

INTRODUCTION

▪ Homicide – killing of a human being – may or may not be a crime

▪ There are several types of homicide:
o Lawful homicide – legitimate killing – eg act fall under general defence
o Unlawful homicide – criminal in nature

▪ Under the Penal Code, 3 main types of homicide:

1) Murder
2) Culpable homicide not amounting to murder
3) 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.

▪ Cases, Eg:
1) THAM KAI YAU & ORS v PP [1977] 1 MLJ 174
2) Yeap Boon Hai v Public Prosecutor [2010] 2 MLJ 433
3) MICKELSON GERALD WAYNE v. PP [2021] 10 CLJ 700

▪ S.299 vs 300

Section 299 Section 300

Intention to cause death (a) Intention to cause death

Intention to cause bodily injury which is (b) Intention to cause a bodily injury which the offender
likely to cause death 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

PART1: MURDER (section 300/302 of PC)

▪ 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), s.300 PC

- 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.

PART 1A: THE SPECIAL 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
 EXCEPTION 1: Grave and sudden provocation

▪ In order to successfully raise the Exception, the are several conditions:

i. The grave and sudden provocation complained must cause the accused to lose his self-
control
ii. The provocation must proceed 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

▪ 2 main elements:

a) “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
 b) “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

▪ 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
- Tompo bin Yara v Public Prosecutor [2017] 2 MLJ 366

EXCEPTION 2: Exceeding Private Defence

▪ 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 no 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:
i. The right of private defence must have existed
ii. The right must have been exercised in good faith
iii. The defender must not have been premeditating the death of the aggressor
iv. 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

▪ Cases:

- 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: Exceeding public power

▪ 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:

i) 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

ii) The accused had acted in good faith without malice against the deceased

EXCEPTION 4: Sudden fight

▪ 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 loss 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:
i. There was a sudden fight
ii. There was no premeditation
iii. The act was committed in the heat of passion
iv. The assailant had not taken any undue advantage or acted in a cruel manner.

▪ Cases

a) 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

b) 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).

c) Jeffrey Bin Tahil v Public Prosecutor [2020] 2 MLJ 450

Even if the police report of the eye-witness, PW6, alluded to a fight having taken place
between the appellant and the deceased, in order for the defence of sudden fight to be
sustained, the defence had to show that the fight was not only sudden but that there was
no premeditation; that the fatal act was committed in the heat of passion and that the
appellant had not taken undue advantage or acted in a cruel or unusual manner. That
burden was not discharged by the appellant in this case as there was premeditation on his
part. The appellant simply had no reason to be looking for the deceased that day while
armed with a knife. His seething anger and ill-feelings towards the deceased justified the
conclusion that his act was a premeditated one. Furthermore, as per PW6’s evidence, the
appellant had acted in a cruel manner for he had continued to attack the deceased even
after the latter had fallen to the ground

d) MICKELSON GERALD WAYNE v. PP [2021] 10 CLJ 700

If all the evidence adduced at the trial had been duly considered, it would have become
plain that the case fell within exception 4 tos. 300 of the PC. There was more than sufficient
evidence of a sudden fight which emanated from a sudden quarrel between the appellant
and the deceased. There was certainly no evidence of any premeditation or pre-existing
malice by the appellant against the deceased. The death of the deceased was caused by the
appellant in the heat of passion and there was no time for passions to cool down. Although
the appellant had applied excessive force leading to her death, it could not be said that he
had acted in a cruel or unusual manner. The fight was started by the deceased and no
weapons were used. In all the circumstances of the case, the appellant was entitled to the
 benefit of exception 4 and in these circumstances, the finding and conviction of murder
could not be sustained.

EXCEPTION 5: Consent

▪ 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:
i. The consent must be unequivocal, obtained not thru threat, or misconception
ii. The victim must be above 18 years old

▪ Queen Empress v Nayamuddin

"I think the exception should be considered in applying it, first, with reference to the act
consented to or authorised and next with reference to the person or persons authorised.
And I think that as to each of these, some degree of particularity at least should appear
upon the facts proved, before the exception can be said to apply. I cannot read it as
referring to anything short of suffering the infliction of death, or running the risk of having
death inflicted, under some definite circumstances not merely of time, but of mode of
inflicting it, specifically consented to....Nor can I understand that it contemplates a consent
to the acts of persons not known or ascertained at the time of the consent being given."

▪ Cases:
o In re: Ambalathil Assainar, Accused, Appellant 1956 Cri LJ 244
the Exception failed because the victim had merely consented to being killed as one
possible solution to a difficult domestic situation.

o PP v Leong Siew Chor [2006] 3 SLR(R) 290

the Exception must not involve the choice of alternatives to which the person taking the life has
driven the other - the Exception was not applicable as the court disbelieved the accused's claim
that he and the deceased had engaged in a suicide pact
PART 2: CULPABLE HOMICIDE NOT AMOUNTING TO MURDER (section 299/304
of PC)

▪ 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

Section 304 of PC
▪ 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:
▪ Intention to cause death or bodily injury
▪ Knowledge

Elements
1. The death of a person
2. The death was caused by the act of accused
3. The accused either:
a) Intended such act to cause death or cause such bodily injury that was likely to cause
death; OR
c) Knew that such act would be likely to cause death

Cases:

1) 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.
2) Cheong Kam Kuen v Public Prosecutor [2013] 1 MLJ 15
- The evidence of the nature of the injuries sustained by the deceased was sufficient to
prove an intention on the part of the appellant to cause bodily injury to the deceased.
However, this evidence did not establish that the appellant had the intention to cause
the death of the deceased. Both the trial judge and the judges of the Court of Appeal
had not addressed themselves on the fine distinction between ss 299 and 300 of the
Code before coming to a correct conclusion. The witness had given evidence that the
deceased had suffered multiple injuries but she had also stated that apart from the
injuries to the head, the other injuries by themselves were not fatal. Based on the
evidence of the pathologist it was not proved beyond reasonable doubt that the injuries
inflicted upon the deceased were sufficient in the ordinary course of nature to cause
death. In view of the nature of the medical evidence given by SP10, the present case
would fall within the first part of s 304(a) of the Code or the lesser offence of culpable
homicide not amounting to murder

3) Herlina Trisnawati v Public Prosecutor [2008] 1 MLJ 478

- The evidence showed that the appellant had committed culpable homicide not
amounting to murder in that the act committed by the appellant was an act of causing
such bodily injury as was likely to cause death when the appellant used the pestle to hit
the deceased's head and followed up with a fight whereby she and the accused used
knives to attack each other. This would come under the first limb of s 304 of the Penal
Code

4) JENAIN SUBI v. PP [2013] 2 CLJ 92

- In determining whether the appellant had the necessary criminal intention, two
questions must be asked, ie, (i) did the appellant intend to shoot at the deceased and if
the answer is yes, the next question is (ii) by shooting at the deceased, was his intention
to cause death. If the answer to either question is in the negative, the appellant must be
acquitted of the charge. In finding the answers to these questions, it is of utmost
importance for the court to be clear on what the appellant's intention was when he
opened fire.
PART 3: CAUSING DEATH BY NEGLIGENCE (Section 304A PENAL CODE)

Introduction
▪ s.304A used to be relied upon by the prosecutor to charge road traffic offenders who had
caused death by reckless driving.
▪ However, with the enforcement of s.41 of the Road Transport Act 1987, this provision has
been regarded as redundant.
▪ s.41(1) of RTA provides a heavier punishment than s.304A:
“Any person who, by the driving of a motor vehicle on a road recklessly or at a speed or in a
manner which having regard to all the circumstances (including the nature, condition and
size of the road, and the amount of traffic which is or might be expected to be on the road)
is dangerous to the public, causes the death of any person shall be guilty of an offence and
shall on conviction be punished with imprisonment for a term of not less than two years
and not more than ten years and to a fine of not less than five thousand ringgit and not
more than twenty thousand ringgit.”

▪ S.304A - Causing death by negligence:

“Whoever causes the death of any person, by doing any rash or negligence act not
amounting to culpable homicide, shall be punished with imprisonment for a term which
may extend to two years or with fine or with both.”

Elements:
1. Whether the accused had caused the death of the deceased
2. Whether the death was caused by accused’s negligent or rash act
3. Whether accused act did not amount to culpable homicide

1) Whether the accused had caused the death of the deceased

▪ The element of causation must be proven. The act of the accused must be the causa
causans (the real, effective cause) and there should not be any causa sine qua non (an
intervening cause, though not direct, may nonetheless contribute to the loss)
▪ In order to be convicted for an offence under s.304A of PC, it must be shown that it was
accused’s act that had caused the death of the victim. The chain of causation must not be
broken by any intervening act - R v Smith

▪ Case:
i. PP v Mahfar bin Sairan (2000) 4 MLJ 791

ii. Balakrishnan S v PP [2005] 4 SLR(R) 249

iii. PP v Moo He Hong & anor [2018] 3 CLJ 662

iv. PP v Lim Cheng Chooi [1982] CLJ (Rep) 674

2) Whether the death was caused by accused’s rash or negligent act
▪ The elements of mens rea required for this offence is either ‘Rashness’ or ‘Negligence’
▪ s.304A provides for a single offence of causing death by conduct which can be described as
rash or negligent but does not fall under culpable homicide – PP v Mahfar bin Sairan (2000)
4 MLJ 791
▪ A rash conduct is to be distinguished from a negligent conduct although both relate in the
wider sense to some discrepancy in doing or omitting to do something.
▪ Rashness is considered to be more serious.
▪ Rashness is knowingly taking on reasonable risk, whereas negligence is unintentionally
taking unreasonable risk.

▪ Rashness
- Reg. v Nidamarti Nagabhushanam (1872) 7 Mad. H.C. 119
Culpable rashness – acting with the consciousness that mischievous and illegal
consequences may follow, but with the hope that they will not and often with the belief
that the actor has taken sufficient precautions to prevent their happening

- Empress v Idu Beg AIR 1881 3 ALL 776

Criminal rashness – hazarding a dangerous or wanton act with the knowledge that it is
so, and that it may cause injury, but without intention to cause injury, or knowledge that
it will probably be caused.

▪ Negligence
- Reg. v Nidamarti Nagabhushanam (1872) 7 Mad. H.C. 119
Acting without the consciousness that the illegal or mischievous effect will follow, but in
circumstances which show that the actor has not exercised the caution incumbent upon
him, and that, if he had, he would have had the consciousness.

- Empress v Idu Beg AIR 1881 3 ALL 776

Criminal negligence is the gross and culpable neglect of failure to exercise that
reasonable and proper care and precaution to guard against injury either to the public
generally or to an individual in particular, which having regard to all the circumstances
out of which the charge has arisen, it was the imperative duty of the accused person to
have adopted

▪ In other words, negligence is disregarding a risk which the accused would have recognized if
he had proper caution.

Standard of Negligence
▪ Although the fundamental difference between rashness and negligence has been relatively
decided by courts, the issue of standard of negligence required under the provision was
somehow confusing.
▪ There were at least three position taken by courts:
 i. The standard of negligence is equivalent to the English offence of manslaughter by gross
negligence – high degree of negligence beyond tortious negligence.
ii. The standard equivalent to negligence in tort cases.
iii. Intermediate standard

i) The gross negligence standard

▪ The courts have previously relied on this approach on several basis:
a. The application of English manslaughter standard clearly distinguished between civil and
criminal liabilities
b. s.304A was designed to fill the gap in the law where matters fall short of culpable homicide
which requires subjective intention or knowledge and not negligence, however gross.
▪ Although the test was applied in number of cases, it was abandoned later – Read p.262 of
textbook
▪ Cases: Cheow Keok v PP (1940) 9 MLJ 103

ii) The civil standard

▪ This approach equated the civil and criminal standards of negligence.
▪ In Woo Sing & Sim Ah Kow v R (1954) 20 MLJ 200 – the only difference between
negligence in civil and criminal offences was the standard of proof.
▪ In Lim Poh Eng v PP (1999) 1 SLR(R) 428 - The standard of negligence in criminal cases
should be the civil standard of negligence. An intermediate standard of negligence was
too elusive a concept to be workable.
▪ Cases:
- Mah Kah Yew v Public Prosecutor [1971] 1 MLJ 1
- Anthonysamy v PP (1956) MLJ 247

iii) The intermediate standard

▪ This approach is used to make a demarcation between civil and criminal law.
▪ This approach was found in Dabolkhar v King AIR (1948) PC 183 – “…although the
negligence which constitutes the offence (s.222, Tangyanika Penal Code) in these
circumstances must be of a higher degree than the negligence which give rise to a claim
for a compensation in Civil Court, it is not, in their Lordships’ opinion of so high a degree
as that which is necessary to constitute the offence of manslaughter.”
▪ Malaysian courts have clearly rejected the gross negligence standard; however, it is
unclear as to whether the civil standard or intermediate standard to be adopted - PP v
Joseph Chin Saiko [1972] 2 MLJ 129

THE TEST

▪ Currently, the test that need to be applied in determining whether one had acted
negligently is that whether or not a reasonable man in the same circumstances would have
been aware of the likelihood of damage or injury to others resulting from such conduct and
taken adequate and proper precautions to avoid causing such damage or injury
▪ Case: Adnan bin Khamis v PP (1972) MLJ 274 – the principle in Cheow Kok v PP has been
overruled
Issue: Whether the standard of proof on the prosecution on a charge under s.304A of the
Penal Code is (i) a high degree of negligence similar to that required to support a conviction
for manslaughter by negligence in England; or (ii) the same as that in any other act carried
out so rashly or negligently as to endanger human life or the safety of others where that act
was the immediate cause of death and not the remote cause

“In the first place, mere carelessness or inadvertence, without anything more, is not
enough, in our opinion, to establish guilt. An essential ingredient of all offences under the
Penal Code is mens rea; although, in the context of culpable rashness or negligence, mens
rea should not be understood as synonymous with "criminal intention" or "wicked mind".
Rather, it should be construed as connoting fault or blameworthiness of conduct. In the
second place, the fault or blameworthiness must, as in all criminal cases, be proved by the
prosecution beyond reasonable doubt – not, as in civil cases, on balance of probabilities.”

▪ The current test does not concern as to the standard of negligence required for criminal
liability

▪ Cases:
- Public Prosecutor v Kee Hang Boon [2009] 8 MLJ 245
In the court’s view, the act of the accused in ‘unintentionally and mishandling four months
old baby’ knowing fully well that he was suffering from Huntington’s disease, the effect of
which he is unable to control his movements, was a ‘rash’ act within the meaning of s 304A
of the Code. From the time the accused got hold the deceased, he must be taken to have
assumed the responsibility not to do anything rash or negligent that may cause the
deceased dropped.

- Ng So Kuen Connie v PP [2003] 3 SLR(R) 178

The test of determining whether the appellant had the requisite mens rea of rashness is a
partly objective and partly subjective test

iii) Whether accused act did not amount to culpable homicide

▪ Whilst culpable homicide requires criminal intention or knowledge, the mens rea required
to be proven under s.304A falls short of criminal intention or knowledge.
▪ The required mens rea is to establish fault or blameworthiness of conduct only
▪ Case:
- PP v. Lim Cheng Chooi [1982] CLJ 259
- PP v Mahfar bin Sairan (2000) 4 MLJ 791