April 2010
(Question 8)
Bruno is big fan of English football. While watching FIFA World Cup 2010 game between England and Germany at I-City stadium, a group of spectators supporting England were upset when Germany beat England and proceed to the semi final. Upset, when the goal scored by Lampard, the English player was declared void. The fanatic fans of England started to shout and throw bottles and canned drinks at the German supporters. Bruno started to tease the German supporters and shouted, ‘who is crueler than Adolf Hitler?’ Provoked, Holger, a German citizen attacked Bruno. The day after the incident, Bruno was found shot dead in his apartment. Investigation reveals that Holger was the suspect for the murder of Bruno.
1) Discuss the criminal liability of Holger. 2) Discuss whether Holger can claim defence of provocation in the above situation
MURDER
The parties involve are Holger as the accused and Bruno as the victim. Then, the issue here is whether Holger can be held liable for murder as define under Section 300 limb (a) of the Penal Code and punishable under Section 302 of the same code for causing the death of Bruno.
Firstly, we must determine whether this issue should be taken place under the offence of murder or culpable homicides.
The definition of murder can be said as killing of human being or causing death of human being. Types of homicide on killing of human being can be either: a) Murder under section 300 punishable under section 302; b) Culpable homicide under section 299 punishable under section 304; and c) Causing death by negligence under section 304A
It depends on the degree of mens rea that accompany the act which has to be gathered by way of indirect evidence, taking into consideration all the facts and circumstances
The distinction between both terms in the aspect of definition is culpable homicide is the causing of the death of human being. Meanwhile, murder is the killing of human being.
Culpable homicide will constitute the offence of murder when the killing of a human being is effected as defined in Section 300. As in the case of PP v Nomezam Apandy bin Abu Hassan, the court stated that in order to establish a prima facie case of murder, it is incumbent on the prosecution to prove: 1) The death of the deceased; 2) The deceased’s death was caused by injury or injuries inflicted on the deceased; 3) The accused had caused the injury or injuries which resulted in the deceased death; and the act causing the death was committed with the mens rea under section 300(a), (b), (c) and (d).
A comparison between the definitions of the various limbs of section 299 and section 300 shows the higher degree of mens rea required to constitute murder under section 300. Section 299
and Section 300 (first limb) is although the wording is in identical terms, a higher degree of mens rea is needed to establish the offence of murder. For Section 300 (2nd limb) and second part of Section 299 with second and third part of Section 300 and for the third limb, last part of both Section 299 and Section 300 of Penal Code.
In the case of Chung Kum Moey v PP, the court held that the various limbs of Section 299 and 300 are not mutually exclusive. An act of killing may fall under one or more of the limbs. For instance, an act may be done with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death and also with the knowledge that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.
In PP v Mohan Dass Ganesan , the court held that murder is an aggravated form of culpable homicide. The two offences involve the killing of a person. What distinguishes these two offences is the presence of a special mens rea which consists of four mental attitudes. Unless the offence can be said to involve at least one of such mental attitude, it cannot be murder.
In the case of Tham Kai Yau , it was held that there are 2 forms of culpable homicide not amounting to murder: (a) where the evidence is sufficient to constitute murder, but one or more of the exceptions to Section 300 apply, and (b) specified in Section 299 is present, but not the special degrees of mens rea referred to in Section 300. All cases falling within Section 300 must necessarily fall within Section 299 but all cases falling within Section 299 do not necessarily fall within Section 300.
In that case the prosecution had established that the victim died as a result of the injuries inflicted upon him, it was the accused who had inflicted such injuries and the accused had the intention to cause such bodily injury and the nature of it was that it was sufficient in the ordinary course of nature for the intended body injury to cause death. Thus, the accused was held to be guilty of murder.
In Chung Kum Moey , the court differentiate between murder and culpable homicide not amounting to murder: If an act causing death is done with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death, it comes within the third limb of Section 300 and the offence is murder; If the act is done with the intention of causing bodily injury likely to cause death, and the accused knew that this was the likely consequence, it is culpable homicide.
A higher degree of mens rea is required to justify conviction for murder. This can be seen from the wordings of Section 299 and 300.
In PP v Norazam bin Ibrahim , the court held that the accused’s intention of causing bodily injury to the deceased may be gathered from the combined act of inflicting injuries on the deceased’s head and body with a knife, the piece of wood and a rock sequentially, thereby causing serious injuries to the deceased brain bringing the act within the ambit bit of intention or knowledge as provided by Section 300 (a), (b), (c) or (d) of Penal Code.
However, to constitute murder, it is only necessary to establish that an act falls within only one of the 4 limbs of Section 300.
Section 300 defines murder as causing the death of another human being with the necessary element as stated under limb (a) to limb (d).
In determining whether Holger can be held liable, we have to see whether his acts fall within the ambit of limb (a). Limb (a) only requires an intention to kill.
In Tan Hoi Hung v PP, intention is defined as when a man is consciously shaping his conduct so as to achieving his conduct to bring out a certain event. Intention can be inferred from the facts of the case namely from (1) the nature of the injury, (2) the place of injury, (3) the method of infliction and (4) the use or nature of weapon.
In Tan Buck Tee v PP, the deceased’s body had 5 appalling wounds, wounds which penetrated to the heart and liver. In the view of the court, the wounds would have been caused by violent blows with a heavy instrument like an axe. In the absence of anything else, whoever inflicted these blows must have intended to kill the person.
In Ghazali Mat Ghani v PP, the accused shot the deceased at a close range with a rifle. The cause of death was a fatal shot in the heart. The accused was convicted of murder. On appeal, the conviction was correct as the appellant had inflicted the injury to the deceased’s heart and caused his death.
In PR v Mohd Asmadi bin Yusof, the accused intended to cause the deceased’s death based on the serious injuries inflicted on the head. There was evidence that the accused struck the deceased’s head with bricks. The court held that the violent nature of the accused’s assault and the long standing feud between the accused and the victim showed the accused’s intention was with an intention to kill.
In the case of PP v Chong Chai, the forensic medical specialist had found that the cause of the deceased’s death was a slash wound on the neck inflicted with considerable force by means of a sharp and a heavy weapon such as parang or a scythe. There was also testimony that the accused had intended to cut open the neck of the deceased by means of parang. All this was clear evidence that the acts of the accused was done with the intention of causing death under Section 300(a).
Tham Kai Yau v PP , the court look at weapons used and the number of injuries inflicted to infer the intention of the accused. In this case, the weapon used was chopper, a dangerous weapon, inflicting multiple deep incised wound, two being serious head wound. Hence, the court held that there was an intention to cause death under Section 300(a).
In Nor Hasnizam bin Ab Latiff v PP , the accused stab the victim near the heart. The court inferred from the nature of the wounds that the accused must have intended to kill the deceased within the meaning of Section 300.
However, if intention to kill was not established, the accused cannot be held guilty of murder. In the case of Ali bin Abdullah v PP , a girl of ten years was raped. She died in consequence of the rape. The court held that as the intention was to rape and there was no intention to kill, a conviction for murder could not stand.
Another cases that supported the offence of murder under Section 300 of Penal Code is in the case of Che Omar Mohd Akhir v PP, where the section 300 will be raised up if beyond reasonable doubt able to be proved that A hits B with the intention or with the knowledge to cause death.
In applying the law to the situation, Holger’s act was clearly a dangerous act as firing a gun is dangerous as it is a weapon to kill. Since he has been provoked by Bruno, a German citizen, Holger had intention and he did attacked Bruno because of Bruno’s words that were too much. Then, right after the incident, Holger must and still had intention to revenge or retaliate on what has happened before because by attacking him did not bring much effect. Thus, he intended to kill Bruno by shooting him at Bruno’s apartment. It can be said that, this issue is under murder and specifically drop under Section 300 (a) of Penal Code. It is only requires at least an intention to kill where Holger has intention to kill Bruno since Bruno has provoked him with the wording of “who is crueler than Adolf Hitler?”. This issue also satisfies all the cases related and therefore, Holger has a intention to kill Bruno by shooting him.
In conclusion, Holger may be held liable for murder as define under Section 300 limb (a) of the Penal Code and punishable under Section 302 of the same code for causing the death of Bruno.
