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 defencebegins 200 years ago under the common
law and it`s was existence based upon concession tohuman frailty. A
successful pleading of the defence of provocation would reduce the convictionof
murder to that of culpable homicide not amounting to murder. It is also a
formal mitigatingfactor 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 willreduce 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. TheMalaysian courts are following this trend gradually. Yet
some writters critically comment on thisdevelopment
2
.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 andonly acts to reduce the conviction to manslaughter.
This is known as "voluntary manslaughter"which is considered more serious than
"involuntary manslaughter", which comprises bothmanslaughter 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
acomplete defense to the range of assault-based offenses. In the United States, the
Model PenalCode substitutes the broader standard of extreme emotional
or mental distress for thecomparatively narrower standard of
provocation. Provocation, however, is not a defenseavailable to the
civil torts of assault or battery

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Against a charge of murder in an English court, a defendant may raise a partial
defenceof 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 atthe time the defendant goes on to
kill, and the provocation itself must be of such a nature than areasonable person
would likely have acted in the same manner.If successful, provocation will
reduce the crime for which the defendant is liable tomanslaughter; which
carries a far lower sentence. It cannot, however, ever fully
dischargeliability to the extent that a defendant will walk free
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.PROVOCATION UNDER THE PENAL CODEProvocations 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 anassault and battery. In cases of homicide, it may reduce the offence
from murder tomanslaughter. But when the provocation is given for the purpose
of justifying or excusing anintended murder, and the party provoked is
killed, it is no justification. The unjust provocation bya 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 lawscompassion to human infirmity (Hayward,
1833). This rationale, which focuses on theaccuseds powers of self control,
was recognized by the authors of the Penal Code who at thesame 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 toprovocation 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
untilwe 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 theprivate 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
7
http://en.wikipedia.org/wiki/Provocation_(legal)


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deprived of the power of self-control by grave and sudden provocation, causes the
death of theperson 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 theprovocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm to any person.
Secondly, that the provocation is not given by anything in obedienceto 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 satisfiedunder the wording of
the Penal Code and as a result of judicial interpretation. The accused whomust
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
incases of self-induced provocation falling under proviso (a); if provocation is
deliberately soughtby the accused or used as an excuse for the killing, it cannot be
said that the killing wasattributable to the provocation.In the case of Chong Teng v
PP
8
, the provocation had been discussed properly wherethe facts are, the accused
had gone to the Central Market in Seremban to fight with thedeceased
who had taken away his wife. The deceased was having tea with three friends in
theSeremban Market when the appellant came up to him and stabbed him. Two
wounds wereinflicted, one of which were inflicted, one of which penetrated the
heart. The stabbing wasfollowed by a struggle and in the event the appellant
walked away leaving the deceased on theground not dead but bleeding profusely,
and while walking away was arrested by a PoliceOfficer who had been
attracted by the noise. The deceased was taken to hospital but was toofar
gone for anything useful to be done for him there and he died shortly after his
arrival. Therewere actually four eye-witnesses of the stabbing because in addition
to the deceaseds threefriends 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
nostruggle. 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
8

[1960] 1 MLJ 153



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to death. The trial Judge had summarized proviso (a) as saying The law says the
provocationmust come to you. You should not go to the provocation.In this case,
the accused had actually committed a culpable homicide which heintentionally to
kill the deceased when he stabbed the deceased without any provocation madeby
the deceased like the witnesses had been testified that there was no words passed
betweenthe parties to show that there was provocation on behalf of the
deceased. This circumstanceshows that where a person comes into the
situation as the law says not go to provocation. Theaccused had put him in a
situation where he actually provoked the deceased first until he couldnot refrain
himself to kill the deceased. Here, as has been asserted before, there was
noprovocation appeared on behalf of the deceased until the accused permitted by
law under thesaid provision which contains the said exception that his offence of
murdering would be takeninto account as a special defence.The court held
that in this present case, to bring a case within the first proviso and
sotake it out of the Exception 1 to section 300 of the Penal Code it is not sufficient
that theaccused must go to the provocation, he must go to it as an excuse for
killing. In this case theappellant on his own admission had gone to the
place with the intention of fighting thedeceased. 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 musthave given
provocation to the accused. (2) The provocation must be grave. (3) The
provocationmust be sudden. (4) The offender, by reason of the said provocation,
shall have been deprivedof his power of self-control.(5) He should have killed the
deceased during the continuance of thedeprivation of the power of self-control. (6)
The offender must have caused the death of theperson 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 providesthat 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 isthat the provocation must not be sought "as an excuse for
killing" any person. In other words tobring a case within the proviso and so
take it out of the exception it is not sufficient that theaccused must go to the
provocation, he must go to it as an excuse for killing.

3
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