PROVOCATION

PROVOCATION

I. Introduction
Where the defendant successfully pleads provocation, he will be convicted of culpable
homicide not amounting to murder. Besides murder, provocation can also be raised as a
defence against non-fatal offences to the person (e.g. hurt, grievous hurt and criminal force).
When applied to non-fatal offences, provocation acts as a mitigating factor.

Prior to the amendments, the local courts followed the conditions read into Exception 1 in
Nanavati v State of Maharashtra [Nanavati]) (PP v Kwan Cin Cheng [Kwan Cin Cheng]):

(1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the
same class of society to which the accused belongs, and placed in the situation in which
the accused was placed, would be so provoked as to lose his self-control;
(2) In India, words or gestures may also, under certain circumstances, cause grave and
sudden provocation to an accused so as to bring his act within the Exception;
(3) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for committing the offence.
(4) The fatal blow should be clearly traced to the influence of passion arising from that
provocation and not after passion has cooled down by lapse of time, or otherwise giving
room and scope for premeditation and calculation.

Where the defendant wishes to plead the partial defence of provocation, he must
establish the following (Kwan Cin Cheng, Pathip Selvan s/o Sugumaran v PP
[Sugumaran]):

1. The defendant was subjectively deprived of his self-control by the provocation (“the
subjective test”); and
2. The provocation was objectively grave and sudden, involving the application of the
reasonable man test (“the objective test”):
a. The “reasonable man1” test involves considering whether an ordinary person
of the same gender and age as the accused, would have been so provoked as to
lose his self-control (objective). Individual peculiarities are not a factor to be
considered, unless they are relevant in the sense that it affects the gravity of
the provocation.
b. In determining whether the objective test is satisfied, regard must be given to
the test of proportionality2. In deciding if the defendant had exercised
sufficient self-control for the objective test, a relevant question is whether the
degree of loss of self-control was commensurable with the severity of the
provocation. There is no requirement for the provocation and the response to
be clinically matched; instead, the test is whether it can be said that a
1
It should be noted that the expression “reasonable man”, though convenient, is somewhat misleading – the
objective test was introduced to ensure a uniform standard of self-control, and to deny the defence to those who
overreact because they are “exceptionally pugnacious and bad-tempered and over-sensitive”. The objective test
demands only that the offender should have exercised the same degree of self-control as an ordinary person. It
does not require that his act of killing be somehow capable of being viewed as “reasonable” (PCRC Report at
287).
2
In practice, an inquiry into proportionality does little to answer the essential question of whether an ordinary
person would, upon receiving the provocation in question, have lost his self-control to that extent and reacted as
the accused did (PCRC Report at 288).

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reasonable person would have lost self-control in the situation in view of the
provocation alleged.

The test of proportionality is not a separate test to be satisfied in the

provocation defence, but a factor to be considered in determining if the
objective test is satisfied3.

[Additional Shit]
The partial defence of provocation contains both justificatory and excusatory elements. The
defence may initially have been developed on the basis of a justification. However, it slowly
began to be seen as an excuse. This was because the taking of life could not be less harmful
than the provocative conduct (which was non-fatal). The core of the provocation defence is
the defendant’s loss of self-control. Society is prepared to excuse the defendant’s frailty and
exercise compassion; this is why he is convicted of culpable homicide not amounting to
murder.

Nonetheless, there are still justificatory elements in provocation. This is evident in the types
of provocation which the law recognises When the UK enacted a new partial defence to
murder of “loss of control”, the legislature inserted a requirement to the effect that the
defendant’s loss of self-control must have been caused by things said or done “which
constituted circumstances of an extremely grave character, and caused [the defendant] to
have a justifiable sense of being wronged”. Hence, as argued by YMC, the defence of
provocation should be viewed as having both justificatory and excusatory elements (at
[29.11]).

Statutory provisions

Old Penal Code New Penal Code

Exception 1. – Culpable homicide is not Exception 1. – Culpable homicide is not
murder if the offender whilst deprived of the murder if the offender whilst deprived of the
power of self-control by grave and sudden power of self-control by grave and sudden
provocation, causes the death of the person provocation, causes the death of the person
who gave the provocation, or causes the who gave the provocation, or causes the
death of any other person by mistake or death of any other person by mistake or
accident. accident.

The above exception is subject to the The above exception is subject to the
following provisos: following provisos:
(a) that the provocation is not sought or (a) that the provocation is not sought or
voluntarily provoked by the offender as voluntarily provoked by the offender as
an excuse for killing or doing harm to an excuse for killing or doing harm to
any person; any person;
(b) that the provocation is not given by (b) that the offender did not know and had
anything done in obedience to the law, no reason to believe that the provocation
or by a public servant in the lawful was given by anything done in
obedience to the law, or by a public

3
It has been stressed that where the grave and sudden provocation is concerned, the defendant’s loss of self-
control would ex hypothesi be of an extreme degree, resulting in the killing of another person (PCRC Report at
288).

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exercise of the powers of such public servant in the lawful exercise of the
servant; powers of such public servant;
(c) that the provocation is not given by (c) that the provocation is not given by
anything done in the lawful exercise of anything done in the lawful exercise of
the right of private defence. the right of private defence.

Explanation. – Whether the provocation Explanation 1. – Whether the provocation

was grave and sudden enough to prevent the was grave and sudden enough to prevent the
offence from amounting to murder is a offence from amounting to murder is a
question of fact. question of fact, having regard to whether
an ordinary person of the same gender and
age as the offender, sharing such
Illustrations characteristics as would affect the gravity of
(a) A, under the influence of passion the provocation and placed in the same
excited by a provocation given by Z, situation as the offender, would be deprived
intentionally kills Y, Z’s child. This is of self-control by the provocation.
murder, inasmuch as the provocation
was not given by the child, and the death Explanation 2. – Grave and sudden
of the child was not caused by accident provocation may be in the form of words,
or misfortune in doing an act caused by gestures or conduct or any combination of
the provocation. words, gestures or conduct.
(b) Y gives grave and sudden provocation
to A. A, on this provocation, fires a Illustrations
pistol at Y, neither intending nor (a) A, under the influence of passion
knowing himself to be likely to kill Z, excited by a provocation given by Z,
who is near him, but out of sight. A kills intentionally kills Y, Z’s child. This is
Z. Here A has not committed murder but murder, inasmuch as the provocation
merely culpable homicide. was not given by the child, and the death
(c) A is lawfully arrested by Z, a police of the child was not caused by accident
officer. A is excited to sudden and or misfortune in doing an act caused by
violent passion by the arrest, and kills Z. the provocation.
This is murder, inasmuch as the (b) Y gives grave and sudden provocation
provocation was given by a thing done to A. A, on this provocation, fires a
by a public servant in the exercise of his pistol at Y, neither intending nor
powers. knowing himself to be likely to kill Z,
(d) A appears as a witness before Z, a who is near him, but out of sight. A kills
Magistrate. Z says that he does not Z. Here A has not committed murder but
believe a word of A’s deposition, and merely culpable homicide.
that A has perjured himself. A is moved (c) A is lawfully arrested by Z, a police
to sudden passion by these words, and officer. A is excited to sudden and
kills Z. This is murder. violent passion by the arrest, and kills Z.
(e) A attempts to pull Z’s nose. Z, in the This is murder, inasmuch as the
exercise of the right of private defence, provocation was given by a thing done
lays hold of A to prevent him from by a public servant in the exercise of his
doing so. A is moved to sudden and powers.
violent passion in consequence, and kills (d) A appears as a witness before Z, a
Z. This is murder, inasmuch as the Magistrate. Z says that he does not
provocation was given by a thing done believe a word of A’s deposition, and
in the exercise of the right of private that A has perjured himself. A is moved
defence.

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(f) Z strikes B. B is by this provocation to sudden passion by these words, and

excited to violent rage. A, a bystander, kills Z. This is murder.
intending to take advantage of B’s rage, (e) A attempts to pull Z’s nose. Z, in the
and to cause him to kill Z, puts a knife exercise of the right of private defence,
into B’s hand for that purpose. B kills Z lays hold of A to prevent him from
with the knife. Here B may have doing so. A is moved to sudden and
committed only culpable homicide, but violent passion in consequence, and kills
A is guilty of murder. Z. This is murder, inasmuch as the
provocation was given by a thing done
in the exercise of the right of private
defence.
(f) Z strikes B. B is by this provocation
excited to violent rage. A, a bystander,
intending to take advantage of B’s rage,
and to cause him to kill Z, puts a knife
into B’s hand for that purpose. B kills Z
with the knife. Here B may have
committed only culpable homicide, but
A is guilty of murder.
(g) A and Z are married to each other. A
loses self-control on Z’s provocation
and intentionally kills Z soon after the
provocation was given. Although the
provocation, when viewed in isolation,
would not amount to grave and sudden
provocation, it was the last of a series of
prolonged physical and mental abuse of
A by Z. An ordinary person in A’s
position would have lost self-control and
have done what A did. A has committed
only culpable homicide and not murder.

II. Provocative conduct

The courts have described provocation as “any annoyance or irritation, … and anything that
ruffles the temper of a man or incites passion or anger in him or causes a disturbance of the
equanimity of his mind” (R v KD John Perera [KD John Perera] at 202). The rules dictating
what constitutes provocation for the purpose of the defence can be broken down into the
following subheadings: (1) grave provocation; (2) suddenness of the provocation; (3)
cumulative provocation; (4) hearsay provocation; (5) indirect provocation; (6) misdirected
provocation; (7) verbal provocation; (8) self-induced provocation; and (9) lawful
provocation.

(1) Grave provocation

The determination of whether conduct constitutes grave provocation is an objective one and
does not depend wholly on the defendant’s subjective perceptions. However, the court will
consider the defendant’s sensitivities and personal circumstances when deciding whether the
conduct was sufficiently grave. The court will recognise a defendant’s mental or emotional
distress which may have distorted his perception of the nature of the provocation (Kwan Cin

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Cheng). However, the law does not permit the defence where the defendant’s distress was
caused by a mental disorder or abnormal personality (PP v Juminem [Juminem]).

[Evaluation]
Leader-Elliott has suggested that the better question would be to ask whether the conduct
would be regarded as a serious wrong according to the moral and cultural standards of an
ordinary law-abiding citizen of the society in which the killing occurred. The current test
gives the requirement of loss of self-control excessive weight in determining whether the
provocation was grave. The test put forth by Leader-Elliot should be adopted because it deals
directly with the issue of “grave” provocation instead of tying it to the question of whether an
ordinary person would have lost self-control. As Leader-Elliott puts it, “[i]nvocation of the
ordinary person as a measure of the offender’s response is to be distinguished from
invocation of the ordinary law-abiding person who provides an impartial and objective
measure of the victim’s wrongdoing” (Leader-Elliott, Provocation at 306). By drawing a
distinction between “grave” provocation and the issue of loss of self-control, the judge is able
to correctly determine the degree of wrongdoing exhibited by the victim. Further, by
enforcing the standard of the ordinary law-abiding citizen, the educational role of the law is
promoted. For instance, the court could rule that provocation stemming from homophobia
cannot be used to plead the Exception, even if a sizable proportion of heterosexual men may
think otherwise (YMC at [29.18]). The English legislature has already adopted such a test by
prescribing that the defendant’s loss of self-control must have been caused by things said or
done “which constituted circumstances of an extremely grave character, and caused [the
defendant] to have a justifiable sense of being wronged”. Hence, Parliament should follow
suit and amend Exception 1 so as to incorporate Leader-Elliott’s test.

There are local cases which have applied this qualified definition of “grave provocation”
(Pathip, Mohammed Ali bin Johari v PP [Johari]).

Case Facts Provoked?

Johari • The appellant claimed that he had lost his self-control as a result
of the victim, a toddler, crying incessantly.
• Dismissing the plea of provocation, the court held that it was not
morally permissible to regard the cries of a young child as
sufficiently grave provocation. The court also accepted the view
that “provocation should be regarded as much less grave by
virtue of the fact that a 19-day-old child obviously cannot be
regarded as morally responsible for the provocation constituted X
by restlessness and crying” (at [114]).
• Notably, the court did not use the criterion of whether an ordinary
person could have lost self-control to decide that the toddler’s
crying was not sufficiently grave to support the defence under
Exception 1.

(2) Suddenness of the provocation

The provocative conduct should have been “unexpected” (Pathip at [46]).

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Case Facts Provoked?

Samithamby4 • A few months prior to his killing her, the accused
discovered his wife in an act of intimacy with a male
relative. Thereafter, his wife used to scold him and order
him out of the house. On the fatal day, his wife abused the
accused by saying “you cursed fellow, you have not died
even after taking poison”. The accused then left their home
and brooded over his wife’s insulting treatment. Three Ö
hours later, he went in search of his wife and on finding
her, the accused asked why she had made the earlier
remark and when she did not reply, he stabbed her to
death.
• Allowing the plea of provocation, the court held that even
though there was a period of time between the provocative
conduct and the stabbing, the accused was “taken aback”
when he realised that his wife wanted him dead.
Somwang5 • The appellant claimed that he killed the deceased after the
latter had attacked him with a broom.
• The Court of Appeal agreed with the trial judge that there
was no fight between the deceased and the appellant.
o Even if there was, the defence of provocation
would have failed.
• There was a cooling-off period before the appellant took
the axe and went to the bathroom and used it to attack the
deceased. X
• The provocation was not so grave, by the standards of a
reasonable man, as to warrant a retaliation by the appellant
with the use of an axe.
• Such acts of retaliation by the appellant were wholly
disproportionate to the act of provocation caused by the
deceased.
• [Evaluation] As stated by the PCRC Report, it would have
been preferable for the court to assess the gravity of the
provocation with reference to a reasonable Thai since
being hit with a broom was particularly insulting to a
North-eastern Thai (at 293).

[Evaluation]
As YMC argues, the elements of “suddenness” and “gravity” of the provocation should be
considered together as this would render the overall analysis an holistic one (at [29.22]).

(3) Cumulative provocation

Illustration (g) provides that previous provocative incidents can have a cumulative effect on
the defendant such that the last incident (perhaps trivial) can become the triggering incident
causing loss of self-control. Prior to the amendments, the local courts adopted the Indian
position of recognising the concept of cumulative provocation. An example of such

4
(1971) 75 NLR 49
5
[1992] 1 SLR(R)

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cumulative provocation would be domestic killings where there was a prolonged history of
physical, emotional and mental abuse (PP v Sundarti Supriyanto [Sundarti]).

Nonetheless, just because there is a pattern of cumulative provocation does not mean that the
provocative conduct need not have been grave and sudden (Che Omar bin Mohd Akhir v PP
[Che Omar]).

Case Facts Provoked?

Sundarti • The deceased had physically and emotionally abused her
domestic maid for an extended period of time.
• The court held that this history of abuse comprised the “mental Ö
background” of the accused which was relevant to the
determination of grave provocation (at [161]).

[Evaluation]
Building on the common law, the statutory recognition of cumulative provocation (under
illustration (g)) is a step in the right direction because it allows victims of battered woman
syndrome to statutorily plead a defence of provocation. As pointed out by O’Donovan, the
courts should not overlook cases involving a “slow burn”, where there is a “gradual build up
in the powerless of feelings of anger and helplessness which eventually erupt, but not
necessarily at a moment suitable for the definition of provocation” (O’Donovan, Defences for
Women Who Kill at 225).

Under English common law at the time of the Code’s promulgation, such cases as committed
by wives were considered as acts of revenge (Duffy). However, as highlighted by
O’Donovan, such cases should not be followed because when compared with other cases
(involving males in similar or worse fact patterns) within the English common law, these
cases reveal double standards for women and men (at 224). O’Donovan builds on Lord
Morris’s example of an insult to a woman concerning her chastity (Camplin) and argues that
a woman’s unchastity is considered to be of greater concern to her husband than it is to her
(at 226). On the whole, the English common law thus appears to reflect a general lack of
respect for women and an indifference to women’s point of view.

Victims of battered woman syndrome should be allowed to plead provocation in such slow
burn cases since the history of abuse forms the “mental background” which relates to the
eventual provocative conduct (Sundarti at [161]). Hence, the legislature has improved on the
common law and taken a progressive step forward for victims of the battered woman
syndrome by illustrating that they may have a possible defence in provocation.

(4) Hearsay provocation

Hearsay provocation may be recognised if the defendant had reasonable grounds to believe
that the provocation had actually occurred (Koh Swee Beng v PP [Koh Swee Beng]).

Case Facts Provoked?

Koh Swee Beng • The appellant sought out the deceased after seeing that
his “foster” father had been assaulted and asked
whether he had assaulted him, to which the deceased
retorted that the father’s family should speak to the
appellant. Soon after, while the father’s sons were

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beating the deceased up, the appellant stabbed him to

death. X
• Even though the defence of provocation failed, the
court was prepared to regard the appellant as having
been provoked at the time when he was informed of
the assault.
o The court presumably did so because of the
subsequent events which would have attested to
the truthfulness of the information.
Gamini6 • V was an elderly villager who had the reputation of
making sexual advances on women. One evening, D
heard his wife’s cries of distress and she told him that
V had made some improper advances towards her. The
next morning, D heard the cries of his wife again and
saw V coming out of his home. This caused D to
recount the events of the previous evening. He lost his Ö
self-control and killed V with his knife.
• Accepting provocation, the court reasoned that even
though there was hearsay (i.e. wife informing D about
V’s behaviour), it was reasonable for D to have
believed his wife’s account since he heard her cries,
saw V leave his home and knew of V’s bad reputation.

[Evaluation]
Hearsay provocation has been rejected in English common law on the basis that the
defendant had to have seen the provocative conduct (R v Fisher [Fisher]). While the English
common law is rightly concerned that recognising hearsay provocation may cause
uncontrolled killings arising from mere provocation, it is equally important to understand that
there are certain forms of hearsay provocation which could have as equal an effect as if the
defendant had perceived the provocation with his own sense of sight or hearing. Further, in
cases of hearsay provocation, the third-party who provided supplied the information to the
defendant will be able to testify as to the fact of the provocation (as compared to direct
provocation, where the only evidence is the word of the defendant). In addition, there are
situations where hearsay provocation can be even graver than direct provocation (e.g.
murdering a loved one in the defendant’s absence will more readily cause a loss of self-
control as compared to a simple assault or insult done in the defendant’s presence. Finally, it
is important to note that hearsay provocation is qualified by the condition that the defendant
must have had a reasonable ground to believe that the provocation had been actually
committed by the deceased (YMC at [29.29]).

(5) Indirect provocation

Where the defendant’s deprivation of self-control was caused by provocative conduct aimed
at a third-party, the defence of provocation will be available (Indreswar Kalita v State
[Indreswar]).

(6) Misdirected provocation

6
Gamini Silva v Attorney General

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 PROVOCATION

The provocative conduct must have emanated from the deceased (PP v Abdul Razak bin
Dalek [Abdul Razak] at [88]). This requirement is reflected in the wording of Exception 1
which states that the defence operates where the defendant “causes the death of the person
who gave the provocation, or causes the death of any other person by mistake or accident”.
This requirement is also supported by illustrations (a) and (b).

Where a third-party is killed, the defendant can rely on the defence, provided that the death
was caused by mistake or accident.

In certain circumstances, the deceased may be deemed to have adopted the provocative
conduct of a third-party which was closely linked to the deceased (Tan Chun Seng v PP [Tan
Chun Seng]).

Case Facts Provoked?

Tan Chun Seng • The deceased’s partner ran away after hitting the side
window of the accused’s car with his fist. When the
defendant verbally abused the deceased, the deceased
pushed him to the ground. The defendant then picked
up a pole and struck the deceased numerous times,
killing him.
• Reiterating that Exception 1 requires the provocation to
have emanated from the deceased, Choo J went on to
agree with the reasoning of the Hong Kong Court of
Appeal decision in Ho Chun Yuen that there may be
occasions when the deceased could be regarded as
adopting the provocative conduct of a third-party X
which were closely related to the deceased.
o Choo J cited the example of V who places his
hands over the eyes of D while D was trying to
ward off Y’s blows. I
o n these circumstances, the law would regard V
as having adopted the provocative conduct of Y
towards D.
• On the facts of the case, the deceased had not adopted
his partner’s provocative conduct towards the
defendant of hitting the car window.

(5) Verbal provocation

As explicated by Explanation 2, words, gestures or conduct or any combination of words,
gestures or conduct may constitute grave provocation.

(6) Self-induced provocation

Where the provocation is “sought or voluntarily provoked by the offender as an excuse for
killing or doing harm to any person”, the defendant will not be allowed to rely on the partial
defence of provocation (proviso (a) to Exception 1).

However, the Exception is silent where the defendant merely risked being provoked. The
Privy Council in Edwards v R [Edwards] suggested the following framework (at 658) :

On principle it seems reasonable to say that –

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(1) a blackmailer cannot rely upon the predictable results of his own blackmailing conduct as
constituting provocation… and the predictable results may include a considerable degree
of hostile reaction by the person sought to be blackmailed, for instance vituperative words
or even some hostile action such as blows with a fist;
(2) but if the hostile reaction by the person sought to be blackmailed goes to extreme lengths
it might constitute sufficient provocation.

*The test of predictability is objective in nature; the question is not whether the defendant
actually foresaw the possibility of a hostile reaction approximating the victim’s conduct but
whether a reasonable person might have foreseen such a reaction.

The local courts appear to agree with the approach taken in Edwards (Tan Chun Seng).

Case Facts Provoked?

Tan Chun Seng • K’s reaction of pushing the accused to the ground was
a reasonable response to the accused rushing and
angrily shouting vulgarities at him.
• Consequently, if this was a case of the accused risking X
being provoked, K’s response was “not surprising” so
it would not amount to sufficient provocation for the
accused to kill K.

(7) Lawful provocation

Where the conduct departs from the instances specified in provisos (b) and (c), lawful
conduct can constitute provocation. Under proviso (b) and illustrations (c) and (d), lawful
conduct can constitute provocation if the offender did knew and had reason to believe that the
provocation was given by anything done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant. Under proviso (c) and illustration (e),
the defence of provocation is unavailable where the provocation comprised conduct involving
the lawful exercise of private defence.

III. Actual loss of self-control

(1) A subjective condition

The defendant must show that the provocative conduct caused him to lose self-control during
which he committed the homicidal act. It is important to note that even though the defendant
may have been deprived of self-control, he can simultaneously be able to appreciate his
conduct and be committed to killing the provoker (PP v Chua Liew Hin [Chua Liew Hin] at
[27]).

General Rules:

1) While the number of wounds inflicted on the deceased may be evidence that the
accused had lost self-control, the court must be careful to distinguish such a case from
one involving a purely revengeful vicious attack (Sundarti at [151]-[152]), Pathip at
[41]).

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2) The accused’s behaviour after the killing should have little or no bearing on whether he
had lost self-control as it is quite possible for the cathartic effect of killing the provoker
to cause the accused to quickly regain composure (Sundarti at [154], Pathip at [42]).
3) The murderous intent must not have been formed independently of the provocation.
4) If the accused did not in fact lose self-control, the defence will fail even though the trier
of fact might have thought that a reasonable person in the circumstances could have
lost self-control (Chan Kwee Fong at [111]).
5) Personal factors such as the accused’s “character, background, temperament,
idiosyncrasies or drunkenness” are matters which can be considered to support a claim
of loss of self-control (Astro at [121]).
6) An accused who has lost self-control could “be emotionally overwhelmed and offend
under conditions of extreme fear, sadness, depression or even jealousy” (Pathip at
[34]).
7) There is no need for the accused’s mind to be completely blank or for there to be
automatism to establish this defence (Pathip at [39]).

Case Facts Provoked?

Pathip • The defendant stabbed his girlfriend to death after she claimed
that he was a poorer lover compared to another man.
• Allowing the plea of provocation, the CA held that the accused
likely lost self-control as a result of the provocation and killed
his girlfriend in the heat of the moment (at [42]),
• The deceased was not only unrepentant, but also uttered the
taunting remark that the other man was a better lover than the
accused.
o Against the backdrop of the prevailing happy Ö
circumstances, it was possible that this remark
immediately precipitated the loss of his self-control.
o The accused was already crying when the taunt was
uttered.
o This heightened emotional state probably made him
even more emotional and vulnerable to loss of self-
control (at [40]).
Sundarti • After enduring abuse from her employer, the accused maid
finally stabbed the former to death, before setting fire to the
household units.
• Allowing the plea of provocation, the HC held that to inflict the
kind of injuries found on the deceased’s body, the accused had
to have been in a frenzy of sorts.
o She must have been so blind with rage that she lost all Ö
control over herself and lashed out repeatedly at the
deceased, resulting in the “haphazard” nature of the
injuries.
o The loss of self-control must have also been of such
magnitude that she was able to inflict the severe wounds
on the deceased “with tremendous force”.
o This was despite the fact that the accused was probably
drained of energy during the material time (at [151]).

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• While the manner in which a person behaved after the

commission of an offence is important, there was no definite
formula in a case of that kind (at [153]).
• It cannot be said that a particular trait or pattern of behaviour
must be observed on the part of an accused post-killing, in
order to determine whether she had lost her self-control during
the time of the killing.

(2) Nature of actual loss of self-control

Due to our limited comprehension of human consciousness and mental processes, the courts
have conventionally resorted to metaphors to describe the loss of self-control (e.g. that there
had been no time for the blood to cool and for reason to resume its seat (YMC at [29.51])).
The Singapore Court of Appeal observed that while the defendant might have “appeared at
some level of consciousness to be aware of what was happening during the killing, this did
not… mean that he did not lose self-control” (Pathip at [39]). Nonetheless, the extent of lost
self-control is still left unclear.

[Evaluation]
Loss of self-control should be linked to the mens rea requirement under s 300. The extent of
lost self-control must be that the defendant must have been “so affected by the provocation as
to form the fault element required for murder” (YMC at [29.53]). Under this approach, the
defendant’s highly charged, emotional condition must have caused the defendant’s intention.
Therefore, a premeditated murderous intent formed prior to the provocative conduct would
not constitute an actual loss of self-control. This proposition is supported in Abdul Razak,
which held that the provocation must “have destroyed the capacity for reasoning and inspired
the intention… to kill” (at [99]). Such an approach (as advocated for by YMC) is to be
favoured because it reduces the need for metaphors and injects concrete clarity into the extent
of lost self-control.

(3) “Sudden” provocation and loss of self-control

Even if there is an interval between the final triggering provocative incident and the
homicidal act by the defendant, the interval must not be so long as to alleviate the first
impulse for revenge (Koh Swee Beng at 323, Sundarti). Further, the time interval between the
first provocative incident and the homicidal act by the defendant will not matter if there was
further provocation which prevented the defendant from regaining his composure (Sundarti at
[165]).

Case Facts Provoked?

Pathip • The requirement of a “sudden” provocation had been met since
the deceased’s utterance about the accused’s unsatisfactory Ö
sexual prowess was sudden and totally unexpected (at [47]).

IV. The objective test

The defendant must next show that an ordinary person in the same or similar circumstances
would have likewise lost self-control and committed the homicidal act. The rationale of the
objective test is to ensure that everyone is held to the same standard of self-control and to
“deny the defence to persons who overreact simply because they were “exceptionally
pugnacious, bad-tempered and over-sensitive” (Lau Lee Peng v PP [Lau Lee Peng] at [30]).

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 PROVOCATION

The Court of Appeal has endorsed the DPP v Camplin [Camplin] test, which divides the
defendant’s personal characteristics into whether they affect the gravity of the provocation or
the power of self-control of a reasonable person (Pathip at [51]). The CA has further held that
the expression “reasonable person” only requires a defendant to “have exercised the same
degree of self-control as an ordinary person… [and not] … that his act of killing must be
somehow capable of being viewed as ‘reasonable’” (Kwan Cin Cheng at [65]). This position
accords with the view that while ordinary people may kill, reasonable people do not. Further,
trial judges should be careful “not to peg the standard of self-control and the degree of
provocation required at an unrealistically high level” (Kwan Cin Cheng at [65]).

(1) Characteristics affecting the gravity of the provocation

General Rules:

1) Any of the defendant’s personal characteristics which affect the gravity of the
provocation will be considered in determining whether the ordinary person would have
lost self-control and reacted in the way the defendant did (Pathip at [49]).
2) The law will generally only consider characteristics which were the basis of the
provocation (Pathip at [55]-[56]).
3) Where the defendant is from a racial or religious community unique to Singapore, the
courts will admit expert opinion regarding an unfamiliar characteristic which was the
basis of the provocation (PP v BPK [BPK] at [324]-[328]).

Case Facts Provoked?

Kwan Cin Cheng • The accused stabbed his ex-lover to death after she
expressed callous remarks towards him.
• The respondent must have been in an emotional,
vulnerable state of mind when he was begging the
deceased to return to him; the deceased’s callousness
to him, along with her disclosure that she had a new
boyfriend, would have greatly distressed him.
o The provocation was grave and sudden and
the respondent had satisfied the “reasonable
man” test (at [72]).
• Romantic and sexual relationships arouse the
strongest of human emotions. Ö
o Even assuming that the respondent reacted in
particular to his understanding that the
deceased was happy in bed with her new
boyfriend, this alone could not result in him
failing the objective test.
o It is hardly unusual for a man to be
preoccupied with the sexual fidelity of his
lover, and to assume the worst if told that she
was happily in love with someone else (at
[72]).
Pathip • The deceased had angrily ridiculed the accused by
asserting that the latter’s sexual prowess was poorer
than that of the other man and sought to justify her
infidelity on this ground.

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 PROVOCATION

o Considering the accused’s intensely

passionate feelings for the deceased and the
fact that he expected to reconcile with her and Ö
marry her, it was more probable than not that
the deceased’s taunt transported his passions
to such an extent that he entirely lost his self-
control momentarily.
o The requirement that the provocation be
“grave” was satisfied (at [61]).
Sundarti • The many separate events of abuse were actually
closely linked as they presented an overall picture of
an abusive and poor employer-employee relationship.
o This was extremely relevant to establishing
the accused’s “mental background” at the time
of the killing (at [156]).
• A series of nagging, scolding, insults, humiliation,
physical abuse and lack of food over a period of time, Ö
culminating in a quick succession of abuse on the
fateful day, would be sufficiently grave to provoke a
reasonable person in the accused’s position (at [157]).
• The “mental background” caused by the sustained
abuse suffered by the accused generated enough
tension, such that the provocative actions of the
deceased became sufficiently “grave” the moment
they occurred (at [161]).

(2) Characteristics affecting the power of self-control

The only relevant characteristics that will be considered are age and sex. Prior to the Penal
Code amendments, this was also the approach taken in Singapore common law, which
followed the English common law ruling in Camplin (Koh Swee Beng). The defendant’s
personal idiosyncrasies (Johari), intoxication (PP v Astro bin Jakaria [Astro]), unusual
pugnacity and excitability (R v Smith [Smith]) will not be recognised.

Regarding age, the local courts have followed the English common law and recognised that
youthful immaturity can affect the power of self-control of an ordinary person (Koh Swee
Beng).

Case Facts Provoked?

Sundarti • For the battered women syndrome to be proved, the accused Ö
must be suffering from a depressive condition (at [167]).

[Evaluation]
The here should be a single standard of self-control for both the sexes i.e. gender should not
be a factor when considering how it affected the power of self-control. Using gender as a
factor encourages the stereotyping of women as gentle, passive and submissive in the fact of
provocation (YMC at [29.68]). This ultimately means that when women kill, they are
portrayed as evil monsters or excessively pathological (Nicholson, Telling Tales: Gender
Discrimination, Gender Construction and Battered Women Who Kill). Our courts should
refrain from portraying women killers as “either passive and irrational or abnormally active

14
 PROVOCATION

and rational but never active and rational” (Ibid at 203). Hence, a single standard of self-
control should be adopted regardless of sex.

V. The response to the provocation

The requirement that the defendant’s retaliatory conduct should be proportionate to the
provocation is merely a factor to be considered when ascertaining if the provocation was
sufficiently grave and sudden (Kwan Cin Cheng). Such holding is welcome, considering the
fact that multiple and random blows inflicted by the defendant can actually be evidence of his
loss of self-control (Pathip at [41]).

Case Facts Provoked?

Kwan Cin Cheng • A “proportionality” criterion would be more
accurately expressed in the following terms:
o In deciding if an accused had exercised
sufficient self-control for the objective test, a
relevant question may be whether the degree
of loss of self-control was commensurate with
the severity of the provocation.
o Nonetheless, it must be recognised that where
the provocation defence is concerned, the
accused’s loss of self-control would ex
hypothesi always have been of an extreme Ö
degree, resulting in the killing of another
person.
o In practice, an inquiry into “proportionality”
does little to answer the essential question of
whether an ordinary person would, upon
receiving the provocation in question, have
lost his self-control to this extent and reacted
as the accused did (at [69]).

VI. Provocation and non-fatal offences

Provocation acts as both a partial defence as well as a mitigating factor.

Old Penal Code New Penal Code

Voluntarily causing hurt on provocation Voluntarily causing hurt on provocation
334. Whoever voluntarily causes hurt on grave 334. Whoever voluntarily causes hurt on grave
and sudden provocation, if he neither intends and sudden provocation, if he neither intends
nor knows himself to be likely to cause hurt to nor knows himself to be likely to cause hurt to
any person other than the person who gave the any person other than the person who gave the
provocation, shall be punished with provocation, shall be punished with
imprisonment for a term which may extend to 3 imprisonment for a term which may extend to 6
months, or with fine which may extend to $2500 months, or with fine which may extend to $2500
or with both. or with both.

Causing grievous hurt on provocation Causing grievous hurt on provocation

335. Whoever voluntarily causes grievous hurt 335. Whoever voluntarily causes grievous hurt
on grave and sudden provocation, if he neither on grave and sudden provocation, if he neither

15
 PROVOCATION

intends nor knows himself to be likely to cause intends nor knows himself to be likely to cause
grievous hurt to any person other than the grievous hurt to any person other than the
person who gave the provocation, shall be person who gave the provocation, shall be
punished with imprisonment for a term which punished with imprisonment for a term which
may extend to 6 years, or with fine which may may extend to 6 years, or with fine which may
extend to $10, 000, or with both. extend to $10, 000, or with both.

Explanation. - Sections 334 and 335 are subject Explanation. - Sections 334 and 335 are subject
to the same provisos as exception 1 of section to the same provisos as exception 1 of section
300. 300.

VII. Reforming the law

YMC recommends the following provision:

(1) Culpable homicide is not murder if the offender causes the death of the person who gave the
provocation, or the death of any other person by mistake or accident, if the act causing death was
done under provocation.
(2) For the purposes of subsection (1), an act causing death is an act done under provocation where –

(a) the act is the result of the offender losing self-control as a direct result of the deceased’s
conduct to such an extent that he or she formed one of the mental states for murder under s
300;
(b) the act was induced by conduct of the deceased (including grossly insulting words or
gestures) constituting grave and sudden provocation towards or affecting the accused; and
(c) the conduct of the deceased could have induced an ordinary person in the position of the
accused to have lost self-control and to have done the same or similar act as the accused did.
(3) For the purposes of subsection 2(c), the ordinary person has –
(a) the power of self-control of an ordinary person of the accused’s age, ethnic or social
background; and
(b) any of the accused’s characteristics at which the provocation was directed and which affect
the gravity of the provocation.
(4) The defence of provocation can apply even if –
(a) there was not a reasonable proportion between the act causing death and the conduct of the
deceased that induced the act;
(b) the act causing death was not an act done suddenly;
(c) the provocation consisted of a report to the accused about the conduct of the deceased
provided that the report engendered a reasonable belief that such conduct had occurred.
(d) The provocation emanated from a third-party provided it was adopted by the deceased.
(5) For the purpose of subsection (1), conduct of the deceased cannot be taken into account if –
(a) such conduct was sought or voluntarily provoked by the offender as an excuse for killing or
doing harm to any person;
(b) such conduct was a reasonably predictable result of the accused’s own conduct;
(c) such conduct was done in obedience to the law, or by a public servant in the lawful exercise
of the powers of such public servant;
(d) such conduct was performed in the lawful exercise of the right of private defence.

Explanation 1

For the purposes of subsection (2), the conduct of the deceased constituting grave provocation could
have occurred immediately before the act causing death or at any previous time.

Explanation 2

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 PROVOCATION

Provocation is “grave” when an ordinary law abiding citizen would consider that the person who gave
the provocation had done a serious wrong to the offender.

Additional Illustrations:

(f) A, while under loss of self-control induced by Z’s provocation, intentionally kills Z a short
time after the provocation was given, Although the provocation was trivial when viewed in
isolation, it was the last of a series of provocative incidents by Z towards A. Provided an
ordinary person in A’s position could have lost self-control and have done what A did, A has
committed only culpable homicide not amounting to murder.

(g) Z, who is A’s adult daughter, informs him that she intends to marry B whose ethnic
background is different from A and Z. A forbids the marriage but Z refuses to accept his
prohibition. A is provoked by Z’s disobedience and kills her. Since an ordinary law abiding
citizen would not consider Z as having done a serious wrong to A, A has committed murder.

(h) A hears from Y, a reliable witness, that Z has sexually assaulted A’s young child. A, while
in a state of lost self-control induced by the report, finds Z and kills him. Provided an
ordinary person in A’s position could have lost self-control and have done what A did, A has
committed only culpable homicide not amounting to murder.

(i) A’s eyes are covered by Y’s hands while Z is provoking A. In so doing, Y has adopted Z’s
provocation.

(j) Z provokes A into losing his self-control and inflicting multiple stab wounds causing Z’s
death. A may successfully rely on the defence of provocation even though there was no
reasonable proportion between his acts causing death and Z’s provocation.

(k) Z provokes A, a female foreign visitor, into losing her self-control and killing Z. A’s age,
sex, ethnic and social background may be attributed to the ordinary person when assessing
the gravity of the provocation provided Z’s provocation was directed at those characteristics.
However, only A’s age, ethnic and social background but not her sex may be attributed to the
ordinary person when assessing whether such a person could have lost self-control.

Retain the partial defence of grave and sudden provocation

Even though the defence has been abolished in a number of Commonwealth jurisdictions, the
PCRC recommended retaining the defence since in those jurisdictions, the mandatory
sentence of life imprisonment was not imposed for murder. In jurisdictions where murder
attracts a mandatory minimum sentence of life imprisonment, the partial defence has been
retained.

Since Singapore continues to retain the mandatory death penalty for murder and the
discretionary death penalty for other limbs of murder under s 300, it would accordingly be
difficult for provocation to apply as an ordinary mitigating factor in the sentencing
equilibrium.

Clarify that words, gestures or conduct may amount to grave provocation

The PCRC recommended making it clear that words, gestures or conduct may amount to
grave provocation because this would be consistent with Macaulay’s intent when he drafted

17
 PROVOCATION

the Indian Penal Code. Further, our courts have already recognised that both words and
conduct can amount to grave provocation; codification will add clarity to the existing law.

Clarify that cumulative provocation over a period of time may amount to grave provocation
The partial defence has been strenuously criticised for having the undesirable tendency of
excluding “slow-burn” cases involving offenders whose reaction was delayed or built up
gradually, particularly in cases involving battered women or victims of domestic violence. In
such “slow-burn” cases, the offenders (the initial victims) tend not to react with instant
violence to taunts or violence as men tend to do, as such a response may likely to lead to
more violence. Instead, such offenders tend to respond by suffering a “slow-burn” of fear,
despair and anger, which eventually erupts into the killing of their batterer, usually when he
is asleep, drunk or otherwise indisposed. An upshot of this defence is that it appears to favour
a person who responds to sudden threat/anger over a person who, over a lengthy period, has
become desensitized to danger from the batterer and who is required to wait until a knife is
uplifted, a gun is pointed, or a fist is clenched, before the apprehension of danger is deemed
reasonable.

The counter argument to this is that if the requirement for “suddenness” is removed from the
defence, cold-blooded killers who kill in a calculated manner may be excused and find
themselves able to justify the premeditated killing, when the defence was meant for actions
which were a result of passion.

This tension can be seen in Sundarti. In that case, holding that the defence of grave and
sudden provocation was made out, the trial judge found that the events of abuse over a period
of time prior to the material day went towards forming the “mental background” of the
accused at the time of the provocation, and that a reasonable maid in the position of the
accused with that “mental background” would have been so provoked by the acts of the
deceased. The trial judge found that there was no break in time or cooling period between the
events of abuse and the killing, and that the “provocation was ongoing”, and even though
there were “breathing spaces” in between, the “breathing spaces” were not so significant to
constitute a cooling-off period to put an end to the provocation.

On the one hand, academics have argued that the previous provocative incidents which
served as the setting for the main triggering provocative act strictly speaking did not
constitute provocation (Criminal Defences at [14.14]). This is due to the fact that, as its name
indicates, a strict reading of the provision requires the provocative conduct to have been
“sudden” (in the sense of being unexpected) and to have occurred within a short period of
time before the killing (Criminal Defences at [14.11]). On the other hand, it has been
contended that past provocative acts can have a “cumulative effect” with the last (and even
trivial) provocative act being viewed as the straw that broke the camel’s back.

The PCRC recommended clarifying in Exception 1 that cumulative provocation over a period
of time may amount to grave provocation. This clarification has been made through
illustration (g). It should be made clear that the partial defence should not be extended so far
as to apply to pure “slow burn” cases where there is no sudden “final straw”. The
requirements for loss of self-control and grave and sudden provocation therefore remain
intact.

While the PCRC agreed that such cases may deserve to be treated differently by the law, the
solution lay in the partial defence of diminished responsibility. However, the PCRC noted

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 PROVOCATION

that an attempt to provide for pure “slow burn” cases under this partial defence may lead to
uncertainty in the way that the defence is applied.

Further, the removal of the requirement of “suddenness” may unduly widen the defence to
cover revenge killings in circumstances other than in “slow burn” cases. The PCRC felt that
the defence of provocation has worked reasonably well in practice, including in Sundarti’s
case, and therefore did not require any further widening.

Codify the ordinary person test for grave and sudden provocation
Some academics have argued that the refusal of the common law to recognise ethnicity as a
characteristic in the “reasonable man” test is unfair to ethnic minorities in a multi-cultural
society like Singapore (Chan Wing Cheong, The Present and Future of Provocation as a
Defence to Murder in Singapore at 457-458, 461-463). The case for considering an
offender’s ethnic background in assessing his level of self-control (and not just in assessing
the gravity of the provocation) is premised on the following arguments:

(1) A person’s emotions and personality are very much molded by his customs and traditions;
(2) Recognition of an offender’s ethnic background is of particular significance especially to
new immigrants and foreign visitors who have yet to assimilate into the mainstream
culture;
(3) Recognition of the different ethnic groups’ responses to provocation will not violate any
principles of fairness and equality toward other members of society, since it may not be
fair to expect the same level of composure and temperament from all members of the
society;
(4) It is by no means an easy task for an offender to show that an ordinary person from the
same background could have lost self-control in the circumstances. If the offender’s
power of self-control is regarded as abnormal even within his own class, the peculiar
temperament is precluded from the ordinary person test; and
(5) Recognising ethnic differences underscores the “concession to human frailty” basis of the
defence, the same reason why differences in age or sex of the individual are recognised in
the test.
Somwang has been criticised on the basis that it would be better if the gravity of the
provocation was not assessed with reference to a purely hypothetical “reasonable man” but
based on the standards of a reasonable Thai or, perhaps more properly, a reasonable Thai
from the North-east of the country, given that the provocation defence was run on the basis
that being hit with a broom is particularly insulting to a North-eastern Thai.

Second, academics have argued that permitting the offender’s sex to affect the power of self-
control in the “reasonable man” test disadvantages female offenders. This is because of the
assumption that the stereotypical woman has a higher level of self-control compared to
males. Academics have also contended that our courts should avoid differentiating the
capacity for self-control according to sex, as such an approach would promote contentious
stereotyping which depict women as the gentler sex and normally passive and submissive in
the face of provocation, while men are normally active and aggressive, which may be an
overgeneralization. That said, there do not appear to be any local cases which have applied
this characteristic.

Nonetheless, the PCRC recommended that it was sufficient to codify the “ordinary person”
test as currently set out in case law, and allow the courts to shape the contours of the test over

19
 PROVOCATION

time. The current test used by the courts strikes the right balance between objectivity, and the
need to take into account relevant personal characteristics of the offender.

Amend proviso (b) to Exception 1, to insert a requirement that the offender must have had
reasonable ground to believe that the deceased-victim was a public servant who was acting
in the lawful exercise of his powers
The current proviso (b) may lead to a situation where the offender is deprived of the offence
even where he had no grounds for believing that the deceased was such a public servant.

The PCRC thus recommended amending the proviso such that an offender is only deprived of
the partial defence where there was reasonable grounds for belief that the deceased was
acting in obedience to the law or was a public servant in the lawful exercise of his powers.

VIII. Cases

Case Facts Provoked?

Pathip • The accused stabbed his girlfriend to death after she
claimed that he was a poorer lover compared to
another man.
• There was no reason to doubt that the accused
passionately loved the deceased, and had arranged for
the meeting to reconcile with rather than to harm, let
alone kill, her.
• There was no need for the accused’s mind to be
completely blank or for there to be automatism when
the deceased was stabbed to establish the defence;
while the accused appeared at some level of
consciousness to be aware of what was happening
during the killing, this did not, without more, mean
that he did not lose self-control (at [39]).
• The deceased was not only unrepentant, but also
uttered the taunting remark that the other man was a
better lover than the accused.
o Against the backdrop of the prevailing happy
circumstances, it was possible that this remark
immediately precipitated the loss of his self-
control.
o The accused was already crying when the
taunt was uttered.
o This heightened emotional state probably
made him even more emotional and
vulnerable to loss of self-control (at [40]).
• The fact that multiple injuries were inflicted in an
entirely random and frenzied manner all over the
deceased’s body suggested that the accused had
suddenly lost self-control (at [41]).
• Whether post-killing conduct can be taken into
account depends on the facts of each case. Ö

20
 PROVOCATION

o The conduct of different individuals after they

recover their composure after momentarily
losing it can vary infinitely and is contingent
upon the existence of incalculable
imponderables (at [42]).
• The history of their turbulent relationship indicated
that the accused appeared prone to lose self-control
very easily and regain it just as quickly.
o The accused likely lost self-control as a result
of the provocation and committed a crime of
passion in the heat of the moment (at [42]).
• The accused’s mental state and mental background
leading to it could be taken into account in assessing
the gravity of the provocation (at [58]).
• The accused loved the deceased passionately
although their relationship was nothing short of
tumultuous.
o He had both a possessive and obsessive
personality and was prone to emotional
outbursts (at [59]).
• The deceased’s taunt had to be viewed in the context
of her previous occasions of infidelity and the fact
that the accused had just earlier that day seen the
deceased behaving intimately with another man (at
[60]).
• The deceased had angrily ridiculed the accused by
asserting that the latter’s sexual prowess was poorer
than that of the other man and sought to justify her
infidelity on this ground.
o Considering the accused’s intensely
passionate feelings for the deceased and the
fact that he expected to reconcile with her and
marry her, it was more probable than not that
the deceased’s taunt transported his passions
to such an extent that he entirely lost his self-
control momentarily.
o The requirement that the provocation be
“grave” was satisfied (at [61]).
Kwan Cin Cheng • The accused stabbed his ex-lover to death after she
expressed callous remarks towards him.
• The court held that any characteristics of the accused,
including mental infirmities, could be taken into
account if they affected the gravity of the
provocation. However, these had to be contrasted
with individual peculiarities of the accused which
merely affected his power of self-control but not the
gravity of the provocation; such peculiarities could
not be taken into account for the purposes of the
objective test (at [49]).

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 PROVOCATION

• The emotional state of mind of the respondent could

properly be taken into account.
o The respondent was in love with the deceased
and was pleading with her to come back to
him.
o His emotional state affected the “gravity of
the provocation” by the deceased as it made
her callous remarks harder to bear.
o Such an emotional state could not be
considered a unique “peculiarity” of the
respondent which diminished his powers of
self-control below that expected from the
ordinary person and which should be excluded
(at [50]).
• The “reasonable man” must be placed in the same
circumstances and background events as the
respondent and hence would in all likelihood have
been experiencing much the same mental anguish as
the respondent (at [50]).
• The deceased’s provocative words could not be
artificially viewed in isolation; their effects on the
respondent had to be considered along with the events
of the preceding days, and there is ample authority
holding that earlier events and the “mental
background” they created in the accused may be
relevant (at [50]).
• The provocation defence is not defined by reference
to specific relationships between accused persons and
their victims (at [54]).
o There was no reason to reject the defence in Ö
the present case simply because the deceased
and respondent were not married or even
lovers at the material time (at [55]).
• One has to consider the cumulative impact of all the
deceased’s statements, not just her remark that she
was happy with her boyfriend (at [62]).
• A “proportionality” criterion would be more
accurately expressed in the following terms:
o In deciding if an accused had exercised
sufficient self-control for the objective test, a
relevant question may be whether the degree
of loss of self-control was commensurate with
the severity of the provocation.
o Nonetheless, it must be recognised that where
the provocation defence is concerned, the
accused’s loss of self-control would ex
hypothesi always have been of an extreme
degree, resulting in the killing of another
person.

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 PROVOCATION

o In practice, an inquiry into “proportionality”

does little to answer the essential question of
whether an ordinary person would, upon
receiving the provocation in question, have
lost his self-control to this extent and reacted
as the accused did (at [69]).
• The respondent must have been in an emotional,
vulnerable state of mind when he was begging the
deceased to return to him; the deceased’s callousness
to him, along with her disclosure that she had a new
boyfriend, would have greatly distressed him.
o The provocation was grave and sudden and
the respondent had satisfied the “reasonable
man” test (at [72]).
• Romantic and sexual relationships arouse the
strongest of human emotions.
o Even assuming that the respondent reacted in
particular to his understanding that the
deceased was happy in bed with her new
boyfriend, this alone could not result in him
failing the objective test.
o It is hardly unusual for a man to be
preoccupied with the sexual fidelity of his
lover, and to assume the worst if told that she
was happily in love with someone else (at
[72]).

Sentence
• The respondent had killed the deceased simply
because she had rejected him and said she was happy
with someone else; she had not physically abused him
in any way and she was completely defenseless
against his assault.
o Notwithstanding his difficult emotional
circumstances and the finding that he had not
demonstrated less self-control than an
ordinary person, such violent behaviour is
deplorable and the sentence imposed by the
trial judge was manifestly inadequate (at
[74]).
Sundarti • After enduring abuse from her employer, the accused
maid finally stabbed the former to death.
• The accused appeared to be a mild-mannered, soft-
spoken person, frail in appearance with a light frame.
At the time of the offence, she was also weak with
hunger and was involved in a violent and gruesome
encounter with the deceased (at [150]).
• To inflict the kind of injuries found on the deceased’s
body, the accused had to have been in a frenzy of
sorts.

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 PROVOCATION

o She must have been so blind with rage that

she lost all control over herself and lashed out
repeatedly at the deceased, resulting in the
“haphazard” nature of the injuries.
o The loss of self-control must have also been
of such magnitude that she was able to inflict
the severe wounds on the deceased “with
tremendous force”.
o This was despite the fact that the accused was
probably drained of energy during the
material time (at [151]).
• It is not the case that in all situations where a
deceased has suffered multiple wounds that there will
invariably be a finding of a frenzied attack (at [152]).
• While the manner in which a person behaved after the
commission of an offence is important, there was no
definite formula in a case of that kind (at [153]).
• It cannot be said that a particular trait or pattern of
behaviour must be observed on the part of an accused
post-killing, in order to determine whether she had
lost her self-control during the time of the killing.
• The acts prior to 28 May 2002 were too remote from
the killing to constitute a “sudden” provocation.
Nonetheless, these acts of abuse were still relevant to
the question of whether the provocation that was
offered was “grave” enough. Ö
o The prosecution itself conceded that the
abusive acts could still be relevant to the
“mental background” that they created in the
accused during the material time (at [155]).
• The many separate events of abuse were actually
closely linked as they presented an overall picture of
an abusive and poor employer-employee relationship.
o This was extremely relevant to establishing
the accused’s “mental background” at the time
of the killing (at [156]).
• A series of nagging, scolding, insults, humiliation,
physical abuse and lack of food over a period of time,
culminating in a quick succession of abuse on the
fateful day, would be sufficiently grave to provoke a
reasonable person in the accused’s position (at [157]).
• The “mental background” caused by the sustained
abuse suffered by the accused generated enough
tension, such that the provocative actions of the
deceased became sufficiently “grave” the moment
they occurred (at [161]).
• There were most certainly the odd moments when the
accused had a breathing space of a minute or so.
o However, the deceased would then re-ignite
the fight.

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 PROVOCATION

o The “breathing space” in between were thus

not so significant or lengthy enough to
constitute a cooling-off period sufficient to
put an end to the provocation.
o The “sudden” provocation requirement was
thus satisfied (at [165]).
• For the battered women syndrome to be proved, the
accused must be suffering from a depressive
condition (at [167]).
Somwang • The appellant claimed that he killed the deceased
after the latter had attacked him with a broom.
• The Court of Appeal agreed with the trial judge that
there was no fight between the deceased and the
appellant.
o Even if there was, the defence of provocation
would have failed.
• There was a cooling-off period before the appellant
took the axe and went to the bathroom and used it to X
attack the deceased.
• The provocation was not so grave, by the standards of
a reasonable man, as to warrant a retaliation by the
appellant with the use of an axe.
• Such acts of retaliation by the appellant were wholly
disproportionate to the act of provocation caused by
the deceased.

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