Question:

“The law says that the provocation must come to you. You should not go to
provocation”

Explain the above statement and support your answer with decided case.

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INTRODUCTION

The doctrine of provocation in crime falls under the third category of defence known as
`partial defence`. Some writers considered it as ‘crime of passion’ 1.The history of this defence
begins 200 years ago under the common law and it`s was existence based upon concession to
human frailty. A successful pleading of the defence of provocation would reduce the conviction
of murder to that of culpable homicide not amounting to murder. It is also a formal mitigating
factor for the offences of assault, criminal force, hurt and grevious hurt. Unlike the position of
this defence under English Law, where it is only applicable as a defence for murder, which will
reduce it to manslaughter. Since its existence, this doctrine has undergone various changed.
The court in England and in India has taken a liberal approach in construing the doctrine. The
Malaysian courts are following this trend gradually. Yet some writters critically comment on this
development2.

In some common law, jurisdictions such as the United Kingdom, Canada, and several
Australian states, the defense of provocation is only available against a charge of murder and
only acts to reduce the conviction to manslaughter. This is known as "voluntary manslaughter"
which is considered more serious than "involuntary manslaughter", which comprises both
manslaughter by "unlawful act" and by criminal negligence. In some states with Criminal Codes,
such as the Australian states of Queensland and Western Australia, provocation serves as a
complete defense to the range of assault-based offenses. In the United States, the Model Penal
Code substitutes the broader standard of extreme emotional or mental distress for the
comparatively narrower standard of provocation. Provocation, however, is not a defense
available to the civil torts of assault or battery3.

DEFINITION
1
Criminal law pg. 111 Michael T Molan
2
‘Towards a liberal view on provocation’ by M. Sornarajah 2 MLJ [1985]
3
http://en.wikipedia.org/wiki/Provocation_(legal)

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 In criminal law, provocation is a possible defense by excuse or exculpation alleging a
sudden or temporary loss of control as a response to another's provocative conduct sufficient to
justify an acquittal, a mitigated sentence or a conviction for a lesser charge. Provocation can be
a relevant factor in a court's assessment of a defendant's mens rea, intention, or state of mind,
at the time of an act of which the defendant is accused4.

It is evident that the Penal code does not provide a definition of provocation, but it does
provide some indication of what the elements of the defence are. Since the Malaysian Penal
Code is in parimateria with the Indian Penal code, it is wise to observe what the authors of the
code say when they frame exception 1 to s.300 as follow:5

‘…. In general, however, we would not visit homicide committed in violent passion, which
had been suddenly provoked, with the highest penalties of the law. We think that to treat a
person guilty of such homicide, as we should treat a murder, would be a highly inexpedient
course…..’

The classic definition of provocation is that provided by Delvin J in R v Duffy6 , where he stated:

‘ provocation is some act or series of acts, done by the dead man to the accused, which
would cause in any reasonable person, and actually causes in the accused, a sudden and
temporary loss of self-control, rendering the accused so subject to passion as to make him or
her for the moment not master of his mind’

However, since 1957 the definition of provocation is a combination of the above

statements and s. 3 Homicide Act 1957. Similarly the Indian and Malaysian courts also construe
the definition with modification. The court in India and Malaysia does not make any distinction
between words and acts in the application of the doctrine of provocation. Whereas, under
English Law words alone does not entitle for this defence.

Against a charge of murder in an English court, a defendant may raise a partial defence
of provocation. The Oxford Dictionary of Law (fifth edition) summarises this defence as:
“Conduct or words causing someone to lose his self-control”. The loss of self-control must be at

4
http://en.wikipedia.org/wiki/Provocation_(legal)
5
‘Cases and materials on criminal law’ GOUR
6
[1949] l ALL ER 932n

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the time the defendant goes on to kill, and the provocation itself must be of such a nature than a
“reasonable person” would likely have acted in the same manner.
If successful, provocation will reduce the crime for which the defendant is liable to
manslaughter; which carries a far lower sentence. It cannot, however, ever fully discharge
liability to the extent that a defendant will walk free7.

PROVOCATION UNDER THE PENAL CODE

Provocations mean the act of inciting another to do something. Provocation simply,

unaccompanied by a crime or misdemeanor, does not justify the person provoked to commit an
assault and battery. In cases of homicide, it may reduce the offence from murder to
manslaughter. But when the provocation is given for the purpose of justifying or excusing an
intended murder, and the party provoked is killed, it is no justification. The unjust provocation by
a wife of her husband, in consequence of which she suffers from his ill usage, will not entitle her
to a divorce on the ground of cruelty; her remedy, in such cases, is by changing her manners.

Provocation was originally developed by the common law as an indication of the law’s
“compassion to human infirmity” (Hayward, 1833). This rationale, which focuses on the
accused’s powers of self control, was recognized by the authors of the Penal Code who at the
same time cautioned that provocation should not afford a complete defence.

The law says that the provocation must come to you and you should not go to
provocation means the law totally prohibits a person to commence a provocation upon another
person but if when a person starts a provocation upon us then we should defend ourselves until
we are permitted to kill the person who starts a provocation as our private defence.

In Malaysian Criminal Law, provocation falls under the special exceptions other than the
private and general defences as states under section 300 of Penal Code. Sometimes,
provocation seems to be a culpable homicide however it is not murder if the offender whilst
deprived of the power of self-control by grave and sudden provocation, causes the death of the
person who gave the provocation, or causes the death of any other person by mistake or
accident. However, the above exception is subject to the following provisos which firstly that the
provocation is not sought or voluntarily provoked by the offender as an excuse for killing or
7
http://en.wikipedia.org/wiki/Provocation_(legal)

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doing harm to any person. Secondly, that the provocation is not given by anything in obedience
to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly, that the provocation is not given by anything done in the lawful exercise of the right of
private defence.

To have apply of this special exception, there are various conditions need to be satisfied
under the wording of the Penal Code and as a result of judicial interpretation. The accused who
must have killed whilst deprived of self-control must result from the provocation. Consequently,
however extreme the provocation, there will be no defence if the accused actually retained self-
control. Neither will the necessary link be established between the provocation and the killing in
cases of ‘self-induced provocation” falling under proviso (a); if provocation is deliberately sought
by the accused or used as an excuse for the killing, it cannot be said that the killing was
attributable to the provocation.

In the case of Chong Teng v PP 8, the provocation had been discussed properly where
the facts are, the accused had gone to the Central Market in Seremban to fight with the
deceased who had “taken away” his wife. The deceased was having tea with three friends in the
Seremban Market when the appellant came up to him and stabbed him. Two wounds were
inflicted, one of which were inflicted, one of which penetrated the heart. The stabbing was
followed by a struggle and in the event the appellant walked away leaving the deceased on the
ground not dead but bleeding profusely, and while walking away was arrested by a Police
Officer who had been attracted by the noise. The deceased was taken to hospital but was too
far gone for anything useful to be done for him there and he died shortly after his arrival. There
were actually four eye-witnesses of the stabbing because in addition to the deceased’s three
friends it was seen by a man sitting at a neighboring table and although all four witnesses were,
as is so often the case in this country, reluctant to say a great deal as to what they actually saw,
they all agreed that prior to the stabbing no words passed between the parties and there was no
struggle. In the event the jury by a majority of five to two found the appellant guilty of murder
and the trial Judge accepted the verdict. Therefore, he was convicted of murder and sentenced
to death. The trial Judge had summarized proviso (a) as saying “The law says the provocation
must come to you. You should not go to the provocation.

In this case, the accused had actually committed a culpable homicide which he
intentionally to kill the deceased when he stabbed the deceased without any provocation made
8
[1960] 1 MLJ 153

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by the deceased like the witnesses had been testified that there was no words passed between
the parties to show that there was provocation on behalf of the deceased. This circumstance
shows that where a person comes into the situation as the law says “not go to provocation”. The
accused had put him in a situation where he actually provoked the deceased first until he could
not refrain himself to kill the deceased. Here, as has been asserted before, there was no
provocation appeared on behalf of the deceased until the accused permitted by law under the
said provision which contains the said exception that his offence of murdering would be taken
into account as a special defence.

The court held that in this present case, to bring a case within the first proviso and so
take it out of the Exception 1 to section 300 of the Penal Code it is not sufficient that the
accused must go to the provocation, he must go to it as an excuse for killing. In this case the
appellant on his own admission had gone to the place with the intention of fighting the
deceased. Therefore it did not lie in his mouth to say that any violence to him (if it was offered)
by the deceased could be described as sudden, that is unexpected.

Under this exception the following elements must be proved: (1) the deceased must
have given provocation to the accused. (2) The provocation must be grave. (3) The provocation
must be sudden. (4) The offender, by reason of the said provocation, shall have been deprived
of his power of self-control.(5) He should have killed the deceased during the continuance of the
deprivation of the power of self-control. (6) The offender must have caused the death of the
person who gave the provocation or that of any other person by mistake or accident.

By all the verdicts had been made by the trial judge, Exception 1 to section 300 provides
that culpable homicide is not murder if the offender kills while deprived of the power of self-
control by grave and sudden provocation. But this is subject to two provisos the first of which is
that the provocation must not be sought "as an excuse for killing" any person. In other words to
bring a case within the proviso and so take it out of the exception it is not sufficient that the
accused must go to the provocation, he must go to it as an excuse for killing.

The Judge explained that by reason of the first exception to section 300 of the Penal
Code what would otherwise be murder is not murder if the offender kills while deprived of the
power of self-control by grave and sudden provocation. He went on to say that even if the jury
thought that the deceased had taken away the appellant's wife and interfered with his daughter

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that could not be provocation within the meaning of the exception because it happened a long
time ago and so was not sudden. As regards what happened in the Market place on 16th
August, he said that this could not be provocation by reason of the first proviso to exception 1 to
section 300 and went on to say: "The law says the provocation must come to you. You should
not go to the provocation".

In the case of Ikau Anak Mail v PP 9 and Vijayan v PP10, the test to be applied to
ascertain the sufficiency of provocation under our law is the same as that applied under the
common law. In every case it depends on the effect of the provocative act on the ordinary man
that is an ordinary reasonable man belonging to the same class of society as the accused.

In the case of PP v Awang Raduan bin Awang Bol 11, To succeed in a defence of grave
and sudden provocation, it is necessary in law for the defence to satisfy the court that not only
by the acts of the deceased that the accused had been deprived of the power of self-control, but
such acts of provocation would also have deprived a reasonable man of the power of self-
control. If the act of retaliation is entirely out of proportion to the provocation offered, the plea of
grave and sudden provocation fails. The matter must be considered objectively and the burden
is on the accused to establish provocation on a balance of probabilities. In this case, the
accused was angry with the deceased when the deceased did not give him any money at the
coffee shop and he was also angry with the deceased on hearing what the deceased said to
him at the place of incident. Due to his anger, the accused lost his self-control. However, by the
standard of a reasonable man, what the deceased said to the accused could not amount to
grave and sudden provocation of the accused. Further, the accused must have known that the
repeated stab wounds which he inflicted on the deceased were of a kind which would likely
result in death. The means of retaliation used by the accused was an unreasonable one in the
circumstances bearing in mind what the deceased said to him and that the deceased was
unarmed. In the result, the defence of provocation failed.

However, the effect of special exception in s.300 will not continually charge the accused
with the murder but contribute the accused to lesser punishment which under s.304 of Penal
Code on Punishment for culpable homicide not amounting to murder. Only the proven on the
general exception will could escape the accused from that charge.
9
[1973] 2 MLJ 153
10
[1975] 2 MLJ 8
11
[1998] 5 MLJ 460

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 The defenses on provocation was not specified legislated to the case of murder only, it
applicable also to other cases. By that, the greater punishment can be lesser if the court
satisfies with the issues raised. They are s.334 (voluntarily causing hurt on provocation), s. 335
(voluntarily causing grevious hurt on provocation) and s. 358 (assault or criminal force on grave
and sudden provocation).

Two section earlier two sections are subject to the same provisos as Exception 1 of
section 300. Then, the last section are subject that Grave and sudden provocation will not
mitigate the punishment for an offence under this section, if the provocation is sought or
voluntarily provoked by the offender as an excuse for the offence, if the provocation is 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 or if the provocation is given by anything done in the lawful exercise of
the right of private defence.

PROVOCATION UNDER ENGLISH LAW

In 16th century England, anyone charged with murder was considered to have acted out
of malice. Murder was a serious offence, and the penalty for any murder was death. To reflect
that not all murders are the same and that not all cases warrant the death penalty, the
distinction of manslaughter emerged. This allowed the courts to take into account certain human
frailties. One such frailty involved the idea that the accused had been provoked into committing
the act, because the victim had said or done something that caused the offender to lose control
as was deemed to be the case in the instance of a "chance medley

Under s3 Homicide Act 1957, where on a charge of murder there is evidence on which the
jury can find that the person charged was provoked (whether by things done or by things said or
by both together) to lose his self-control, the question whether the provocation was enough to
make a reasonable man do as he did shall be left to be determined by the jury; and in
determining that question the jury shall take into account everything both done and said
according to the effect which, in their opinion, it would have on a reasonable man. The initial
burden is on the defence to raise sufficient evidence of provocation. As a matter of law,
the judge will then decide whether to leave the defence to the jury. This does not change
the burden of proof which, as in all criminal cases, is on the prosecution to prove the "actus
reus" and "mens rea" of the offence charged, i.e. murder. The Act changed the common

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law which had provided that provocation must be more than words alone and had to be form of
violence by the victim to the accused. This was subject to two exceptions:

1. A husband discovering his wife in the act of adultery; and

2. A father discovering someone committing sodomy on his son.12 The Act provided that
provocation can be by anything done or said without it having to be an illegal act and the
provoker and the deceased can be a third parties.13 If the accused was provoked, who
provoked him is irrelevant.

Since the doctrine of provocation was originated from the English common law, therefore it
is necessary for us to look into the application of this doctrine under English law. Under English,
the burden is on the accused to prove the following elements in order to invoke the partial
defence of provocation. Firstly, the accused must establish whether or not the accused lost his
self-control. This is a subjective test. It is a question of facts for the jury. The second stage is to
establish that the loss of self-control was ‘sudden’. The most celebrated case for this element is
the case of R v Ahluwalia 14.The appellant had been abused verbally and physically by her
husband over a number of years. He had been conducting an adulterous affair about which he
taunted her. On night in question he had argued with her and promised to give her up a beating
the following morning. After he had fallen asleep, the appellant poured petrol over him and set
him alight, causing burns and subsequently died. She was convicted for murder but on appeal,
the Court of Appeal granted a retrial. Since this case a timely delay between the act or words or
provocation and the killing does not necessarily prevent the accused to succeed under this
defence. This case has distinguished itself from the previous decision in R v Thornton15.

The third stage in the defence is to establish that a reasonable man in similar
circumstances would also have lost his self-control. Although this is an objective test, it has a
subjective element i.e. whether the reasonable man sharing the same characteristics as the
accused would have lost his self-control. This was best illustrated in the DPP v Chaplin 16.In this
case it was held that to determine whether the act in question was done under provocation or

12
Holmes v DPP [1946] AC 588
13
R v Davies [1975] QB 691
14
[1993] Crim LR 63
15
[1992] 1 ALL ER 306, the COA refuse to quash a conviction of murder although there was evidence revealed there
was a history of violent and offensive behaviour by the deceased.
16
[1978] AC 705

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not is the test of a reasonable man; a reasonable man is a person having the power of self-
control to be expected of an ordinary man of the sex and age of the accused. Finally, the
defence is to investigate whether the reasonable man who has lost his self-control might have
reacted as the accused did. This is a question of fact for the jury.

CONCLUSION

As a conclusion, the judge’s quotation says that ‘the law says that the provocation must
come to you and you should not go to provocation’ means the law totally prohibits a person to
commence a provocation upon another person but if when a person starts a provocation upon
him then he should defend himself until he is permitted to kill the person who starts a
provocation as his private defence.

On the other hand, it is still uncertain whether the approach of youth or provocation
related to her attention-seeking trait in relating verbal provocation to the permanent
characteristics of the accused is likely to be applied in Malaysian courts. The English cases
have established that when words alone are provocative, it has to be 'negative' words
concerning one's characteristic or related to the circumstances of that person. Only then that
verbal provocation can be considered as grave and may pass the objective test. Nevertheless,
throughout the discussion on reported cases, it can only be confirmed that, unless and until the
provocation is so grave and so sudden, relying solely on the platform of provocation will remain
an impossible option.Lorensus Tukan. Perhaps the decision of could be a starting point where
other issues apart from 'class and society', such as race, age and sex might be considered in
determining the appropriate reaction of a reasonable man.

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