Tutorial 4 and 5
[Link] Barry was making repairs to the roof, Ben thought it would be funny to go and frighten
Barry. Ben went up and sneaked up behind Barry and shouted “Boo”! Barry fell from the roof and
was killed. Can Ben be held liable for murdering Barry?
Answer:
Issue: Can Ben be convicted of murder when he caused Barry’s death by startling him as a prank?
Rule:
Under Section 300 of the Penal Code, culpable homicide becomes murder if:
1. The act is done with the intention to cause death (s 300(a));
2. With the intention of causing such bodily injury known to be likely to cause death (s
300(b));
3. With the intention of causing such bodily injury sufficient in the ordinary course of nature to
cause death (s 300(c));
4. With knowledge that the act is so imminently dangerous that it must in all probability cause
death (s 300(d)).
To be guilty under Section 299, the accused must cause death by an act done:
1. With the intention of causing death;
2. With the intention of causing bodily injury likely to cause death;
3. With the knowledge that the act is likely to cause death.
If death is caused by a rash or negligent act, but without such intention or knowledge, the person
may be liable under Section 304A.
Application:
Ben had no intention to cause death or bodily injury. He also could not reasonably foresee that his
act of shouting “Boo!” would likely or probably cause death. Thus: Section 300(d) does not apply,
because the act was not imminently dangerous like firing a cannon (Illustration (d) to s 300; Yeap
Boon Hai v PP [2010] 2 MLJ 433). Section 299 is not fulfilled either, as there is no knowledge or
intention that the act could cause death. However, Ben’s action may fall under Section 304A, which
punishes death caused by rash or negligent acts.
Conclusion: Ben is not liable for murder or culpable homicide, but may be criminally liable under
Section 304A for causing death through a rash or negligent act.
Teacher Answer:
Act: Frighten Barry
Mens rea: what is the aim and purpose of the frighten act: no aim to cause bodily injury and death
Knowledge?: No or he should have the knowledge or he ought to have that knowledge?
Would a reasonable man scare a person on top of the roof? -304A
2. Cherrie has been living in fear with her boyfriend for many years. He was an alcoholic and he
would beat her up for no good reason. Cherrie went to see a counsellor who advised her to move
into a home for battered women. When she told her boyfriend of her intention to move out, he beat
her up again until he was too tired. He said that he will break her legs later to prevent her from
leaving. But before that, he wanted her to cook his dinner. While she was boiling stew, she went to
the basement and searched for rat poison. Once she found, she put some into the stew, making
sure it was not too much that her boyfriend would be suspicious upon tasting it. He ate the stew
and not long after, he died due to poisoning.
Advice Cherrie on the possible criminal offences she may be charged with. Discuss both Malaysian
Law and English Law.
Issue: Can Cherrie be charged with murder for poisoning her abusive boyfriend?
Rule:
1. Section 300(a) Penal Code: Intentional killing is murder.
2. Exception 1 to Section 300: Murder is reduced to culpable homicide not amounting to
murder (CHNATM) if: There is grave and sudden provocation; The offender loses self-
control; The death is caused while under that loss of self-control .
Relevant case law:
1. PP v Surbir Gole [2017] 1 MLJ 549: Cumulative provocation is not a defence.
2. Selvaraju Mudaliar [2006] 3 MLJ 784: The cooling-off period can negate the provocation
defence.
3. Ikau Anak Mail [1973] 2 MLJ 153: Must show loss of self-control caused by the provocation.
Application: Cherrie was abused for years. Although her boyfriend had just beaten her and
threatened her again, she waited until he fell asleep; Went to the basement; Searched for poison;
Carefully added it to the stew.
This shows a calculated and premeditated act, not one done under loss of control. Courts have held
that deliberate planning negates Exception 1 (Surbir Gole). Furthermore, cumulative provocation is
not recognised under Malaysian law.
Conclusion: Cherrie is likely to be charged with murder under section 300(a) for intentional killing.
Exception 1 is unlikely to succeed.
Teachers Answer:
Intention to cause death satisfy 299 and 300(a)
Provocation: threat to break her leg, must be grave (Pass) and sudden (arguable) provocation
3. Dory went to look for Doreena who owed her money. She was armed with a gun and intended to
use it to frighten Doreena into paying her back. Upon entering Doreena’s house, Dory only saw
Doreena’s mother who was ill and frail, resting on the sofa. Dory went around the house, waving
her gun around, shouting for Doreena to come out. But Doreena was not in and Dory left. Before
she left, she broke some of the vases and plates in the house as a warning to Doreena. Shortly
after that, Doreen’s mother suffered a heart attack and died.
What can the CPS charge Dory for?
Issue: Can Dory be held criminally liable when Doreena’s mother died of a heart attack after being
frightened by Dory?
Rule:
1. Section 300(d): Murder if the act is so imminently dangerous that it must in all probability
cause death.
2. Section 299: Culpable homicide where the accused knows the act is likely to cause death.
3. Section 304A: Causing death by rash or negligent act not amounting to culpable homicide.
Case: Yeap Boon Hai v PP [2010] 2 MLJ 433 – “imminently dangerous” acts done without excuse
can amount to murder under s 300(d) .
Application: Dory entered the home with a gun, screamed, and broke items. She did not intend to
kill, nor direct any violence toward Doreena’s mother. However, her act may be seen as reckless
and threatening.
She could be liable under: Section 304A: Her reckless behaviour foreseeably endangered a
vulnerable person’s life.
Murder (s 300(d)) is unlikely, as the act was not as imminently dangerous as firing into a crowd
(Illustration d). Culpable homicide (s 299) may also be difficult to prove unless Dory knew of the
mother’s frailty.
Conclusion: Dory is unlikely to be convicted of murder. However, she may be charged under section
304A for causing death by a rash act.
Teacher answer:
Unlawful killing- determine lawful killing, private and public defence, and misadventures (break
people things and shout to frighten dorrenna = unlawful killing)
Direct intention and oblique intention to kill and GBH , no proven
Unlawful act involuntary maslaughter,
Causation: contribute significantly b.
Duty of care: dory to doreena mothers
Reckless pl,
4. Daniel and Andrew were on the roof of a building enjoying the view. For fun, they decided to
throw bottles down at the cars passing by below. The bottle smashes the windscreen of a car
causing the driver to crash the car. The driver was killed in the crash. Can Daniel and Andrew be
charged for murder or involuntary manslaughter?
Issue: Are Daniel and Andrew guilty of murder for throwing bottles that killed a driver?
Rule:
1. Section 300(d): Murder if the act is so imminently dangerous that it will likely cause death.
2. Yeap Boon Hai v PP: Act must carry practical certainty of death.
3. Section 299: Culpable homicide with knowledge that the act is likely to cause death.
Application: Throwing bottles from a rooftop at moving vehicles is: Extremely dangerous; Highly
likely to cause fatal accidents.
There was no intention to kill, but the act was done without excuse, with clear knowledge of the
danger.
This falls squarely within Section 300(d): a person is guilty of murder if they act with the knowledge
that death is probable, even without specific intent (Illustration d, Yeap Boon Hai).
Conclusion: Daniel and Andrew are likely to be guilty of murder under Section 300(d) and may face
punishment under Section 302.
5. Under the Penal Code, explain when a person can be found liable for culpable homicide not
amounting to murder.
Under the Malaysian Penal Code, a person is said to commit culpable homicide not amounting to
murder when the act of causing death falls within the ambit of section 299, but does not satisfy the
stricter requirements of section 300 which defines murder. Section 299 provides that a person
commits culpable homicide if they cause death (i) with the intention of causing death, (ii) with the
intention of causing bodily injury likely to cause death, or (iii) with the knowledge that the act is
likely to cause death. However, not every culpable homicide amounts to murder. As stated in Tham
Kai Yau v Public Prosecutor [1977] 1 MLJ 174, “all cases falling within section 300 must necessarily
fall within section 299, but not all cases under section 299 fall under section 300.” A person is
found liable for culpable homicide not amounting to murder when they commit an act that causes
death with one of the three states of mind in section 299, but without satisfying any of the four
mens rea elements required under section 300(a)–(d). Alternatively, even if the act meets the
criteria of murder under section 300, it may still be reduced to culpable homicide not amounting to
murder if one of the five exceptions listed under section 300 applies. For instance, under Exception
1, a killing committed while the offender is deprived of self-control due to grave and sudden
provocation may reduce the offence from murder to culpable homicide, provided that the
provocation was not self-induced and was sufficient to deprive an ordinary person of self-control, as
clarified in PP v Abdul Razak bin Dalek [2007] 2 MLJ 255. Other exceptions include exceeding the
right of private defence (Exception 2), exceeding legal authority as a public servant (Exception 3),
engaging in a sudden fight without premeditation (Exception 4), or when the deceased consents to
the risk of death (Exception 5). Therefore, a conviction for culpable homicide not amounting to
murder arises either when there is insufficient mens rea for murder, or when the accused is entitled
to partial defences under section 300’s exceptions, as demonstrated by the court in Tham Kai Yau,
which downgraded the charge from murder due to lack of medical evidence on the fatality of the
injuries.