[2017] 2 CLJ PP v.

Surbir Gole 621

A PP v. SURBIR GOLE
FEDERAL COURT, PUTRAJAYA
SURIYADI HALIM OMAR FCJ
AHMAD MAAROP FCJ
MOHAMED APANDI ALI FCJ
B RAMLY ALI FCJ
ZAHARAH IBRAHIM FCJ
[CRIMINAL APPEAL NO: 05-315-12-2014(J)]
5 JANUARY 2017

C CRIMINAL LAW: Murder – Defence – Provocation – Gradual and accumulated

provocation – Whether could amount to grave and sudden provocation – Whether
accused lost self control – Whether accused had intention to murder deceased –
Penal Code, s. 300, Exception 1 – Whether applicable
The respondent (‘the accused’) was charged and tried at the High Court for
D
murder. The undisputed facts were that the accused had stabbed the
deceased, and then slashed his own wrist and neck. The deceased
subsequently died as a result of her injuries. The accused, who worked with
the deceased, claimed that he was subjected to ill-treatment and mental
torture by the deceased, who had been verbally abusing him for a significant
E period of time until he finally snapped and lost self-control. The trial judge
concluded that from the evidence of the accused, it was clear he had lost
control of himself as a result of the cumulative provocation by the deceased;
and that the said circumstances of the incident did not show that the accused
had the intention to murder the deceased. At the conclusion of the case, the
F High Court found that Exception 1 to s. 300 of the Penal Code applied and
the accused was consequently convicted of culpable homicide not amounting
to murder under para. 304(b) of the Penal Code and sentenced to
imprisonment for a period of ten years. The prosecution appealed against the
said decision and submitted that the trial judge had erred in finding that the
G accused had succeeded on a balance of probabilities to prove his defence of
grave and sudden provocation. The Court of Appeal was, however, of the
unanimous view that the evidence pointed to cumulative provocation and
affirmed the sentence imposed upon the accused by the High Court. The
prosecution hence appealed to this court and submitted that the Court of
Appeal had erred in finding that the accused’s act in stabbing the deceased
H
and thus causing her death was an act committed as a result of cumulative
provocation which qualified as grave and sudden provocation under
Exception 1 to s. 300 of the Penal Code.
Held (dismissing appeal; affirming order of High Court and Court of
I Appeal)
Per Zaharah Ibrahim FCJ delivering the judgment of the court:
(1) To come within Exception 1, the provocation that an accused person is
relying on must not only be grave, but must also be so sudden as to cause
the accused person to ‘lose his self-control’, and act in a spontaneous
622 Current Law Journal [2017] 2 CLJ

reaction to the grave provocation. It is the kind of suddenness that, to A

use the words in the illustrations to Exception 1 to s. 300 in the Penal
Code, ‘excited’ the accused person to ‘sudden and violent passion’ or to
‘violent rage’. (paras 37 & 38)
(2) Given the accused’s psychological stress and socio-religious
background, and given his claim that his mother was ill in Nepal and B
that he had been trying to get back his passport from the deceased to
return to Nepal, the words “ibu manakah yang telah melahirkan anak
seperti kamu ini’’ constituted grave provocation. SP2, who was at the
cashier’s counter while the deceased and the accused were at the back
portion of the shop in the storeroom, said she had heard the deceased C
asking the accused ‘kenapa you tidak pergi bungkus sekarang berapa
jam?’ After those words were spoken, SP2 said ‘saya tidak dengar apa-
apa sebelum saya dengar bunyi jeritan Tan Ai Pin (‘si mati’)’. This
suggested a time lag between those loud words and the screams, which
was sufficient time for the provocative words to be spoken. (paras 48 & D
55)
(3) SP2’s evidence was that the knife used to attack the deceased was a
brown handled fruit knife. She had seen it at the back of the shop as it
was used to open up boxes. It was reasonable to expect the knife to be
in the storeroom itself. The deceased and the accused were both in the E
storeroom when the attack started. It was also reasonable to conclude
that after the utterance of the words which gravely provoked the
accused, the accused had picked up the knife and attacked the deceased.
The manner in which the accused held the deceased, his hitting of her
head against the door, and the multitude of stab/slash wounds inflicted F
within such a short period of time on various parts of the deceased’s
body (including her face) were clearly indicative of great rage and loss
of self control. (paras 56-58)
(4) The accused’s reaction of shock when SP2 caught hold of his hand and
his reaction after the stabbing where he had tried to slash his own chin G
and wrist, showed that the accused must have temporarily lost his self
control due to the words uttered by the deceased. The most reasonable
conclusion that could be drawn from (a) the nature of the attack on the
deceased; (b) the number and locations of the deceased’s injuries; (c) the
sequence of events and the short period of time within which they took H
place; (d) the type of weapon used in relation to the location of the
incident; and (e) the accused’s reaction when SP2 caught his hand and
his reaction after that, was that the accused had attacked the deceased
whilst deprived of the power of self control as a result of grave and
sudden provocation by the deceased. Thus, Exception 1 to s. 300 of the
I
Penal Code applied in this case. (paras 61-63)
 [2017] 2 CLJ PP v. Surbir Gole 623

A Bahasa Malaysia Headnotes

Responden (‘tertuduh’) dipertuduh dan dibicarakan di Mahkamah Tinggi atas
pertuduhan membunuh. Fakta yang tidak dipertikaikan adalah tertuduh
menikam si mati, dan kemudiannya mengelar pergelangan tangan dan
lehernya sendiri. Si mati meninggal dunia akibat kecederaan yang
B dialaminya. Tertuduh, yang bekerja dengan si mati, mendakwa bahawa dia
dianiaya dan didera dari segi mental oleh si mati, yang mencacinya untuk
tempoh yang agak lama sehingga tertuduh hilang kawalan kendirinya. Hakim
bicara memutuskan dari keterangan tertuduh bahawa dia hilang kawalan
kendirinya akibat provokasi kumulatif oleh si mati; dan keadaan kejadian
C yang berlaku tidak menunjukkan tertuduh mempunyai niat untuk membunuh
si mati. Di akhir kes, Mahkamah Tinggi mendapati Pengecualian 1 s. 300
Kanun Keseksaan terpakai dan tertuduh disabitkan atas kesalahan homisid
salah yang tidak terjumlah pada membunuh di bawah perenggan 304(b)
Kanun Keseksaan dan dijatuhkan hukuman penjara selama sepuluh tahun.
D Pihak pendakwaan merayu terhadap keputusan tersebut dan menghujahkan
bahawa hakim bicara terkhilaf apabila mendapati tertuduh berjaya
membuktikan pembelaan bangkitan marah besar dan provokasi mengejut atas
imbangan kebarangkalian. Walau bagaimanapun Mahkamah Rayuan sebulat
suara berpendapat bahawa keterangan menunjukkan terdapat provokasi
kumulatif dan mengesahkan hukuman yang dijatuhkan ke atas tertuduh oleh
E
Mahkamah Tinggi. Pihak pendakwaan oleh itu merayu ke mahkamah ini dan
menghujahkan bahawa Mahkamah Rayuan khilaf dalam memutuskan
bahawa tindakan tertuduh menikam si mati dan seterusnya menyebabkan
kematiannya adalah tindakan yang dilakukan akibat provokasi kumulatif
yang berkelayakan sebagai bangkitan marah besar dan provokasi mengejut di
F
bawah Pengecualian 1 s. 300 Kanun Keseksaan.
Diputuskan (menolak rayuan; mengesahkan perintah Mahkamah Tinggi
dan Mahkamah Rayuan)
Oleh Zaharah Ibrahim HMP menyampaikan penghakiman mahkamah:
G (1) Untuk digolongkan dalam maksud Pengecualian 1, provokasi yang
dirujuk oleh tertuduh bukan hanya berat, tetapi juga mengejut sehingga
menyebabkan tertuduh ‘hilang kawalan’, dan bertindak secara spontan
terhadap provokasi berat itu. Adalah keadaan tiba-tiba yang, untuk
menggunakan ilustrasi dalam Pengecualian 1 s. 300 Kanun Keseksaan,
H ‘memberangsangkan’ tertuduh sehingga mencapai ‘keghairahan dan
keganasan secara mengejut’ atau ‘naik berang.’
(2) Mengambil kira tekanan psikologi tertuduh dan latar belakang sosio
agama dan dakwaan bahawa ibu tertuduh tidak sihat di Nepal dan
bahawa dia mencuba mendapatkan balik pasport daripada si mati supaya
I dia boleh pulang ke Nepal, perkataan-perkataan ‘ibu manakah yang telah
melahirkan anak seperti kamu ini’ menjurus kepada provokasi yang
berat. SP2, yang pada ketika itu berada di kaunter juruwang sementara
624 Current Law Journal [2017] 2 CLJ

si mati dan tertuduh berada di bahagian belakang kedai dalam bilik A

setor, menyatakan bahawa dia terdengar si mati menanyakan tertuduh
‘kenapa you tidak pergi bungkus sekarang berapa jam?’ Selepas
perkataan-perkataan itu disebut, SP2 menyatakan ‘saya tidak dengar
apa-apa sebelum saya dengar bunyi jeritan Tan Ai Pin (‘si mati’).’ Ini
mencadangkan satu susulan masa di antara perkataan-perkataan yang B
disebut dan jeritan yang berikutnya, iaitu waktu yang memadai untuk
perkataan-perkataan provokasi dituturkan.
(3) Keterangan SP2 adalah bahawa pisau yang digunakan untuk menyerang
si mati adalah sebilah pisau berwarna perang. SP2 telah melihat pisau
tersebut di bahagian belakang kedai kerana ia digunakan untuk C
membuka kotak-kotak. Adalah munasabah untuk menganggarkan pisau
itu berada dalam bilik setor. Si mati dan tertuduh kedua-duanya
berada dalam bilik setor apabila serangan bermula. Adalah juga
munasabah untuk memutuskan bahawa selepas perkataan-perkataan
yang telah memprovokasi tertuduh disebut, tertuduh mengambil D
pisau itu dan menyerang si mati. Cara tertuduh menyerang si mati,
dengan menghentak kepala si mati ke pintu, dan sejumlah besar kesan
tetakan/tikaman yang dikenakan atas si mati dalam tempoh masa yang
singkat pada beberapa bahagian badan si mati (termasuk mukanya) jelas
menunjukkan keberangan besar dan kehilangan kawalan kendiri.
E
(4) Reaksi tertuduh yang terkejut apabila SP2 memegang tangannya dan
reaksinya selepas kejadian tikaman di mana dia cuba menetak dagunya
dan pergelangan tangannya sendiri, menunjukkan bahawa tertuduh telah
hilang kawalan kendiri akibat perkataan-perkataan yang telah disebut
oleh si mati. Kesimpulan paling munasabah yang boleh dibuat adalah F
(a) sifat penyerangan terhadap si mati; (b) jumlah dan bahagian
kecederaan-kecederaan yang dialami si mati; (c) turutan peristiwa
dan tempoh masa yang singkat; (d) jenis senjata yang digunakan
berhubungan lokasi tempat kejadian itu berlaku; dan (e) reaksi tertuduh
apabila SP2 menahan tangannya dan reaksinya selepas itu, adalah
G
bahawa tertuduh menyerang si mati dalam keadaan tanpa kuasa kawalan
kendiri akibat provokasi berat dan secara tiba-tiba oleh si mati. Oleh itu,
Pengecualian 1 s. 300 Kanun Keseksaan diguna pakai dalam kes ini.
Case(s) referred to:
Che Omar Mohd Akhir v. PP [2007] 3 CLJ 281 FC (refd) H
Director of Public Prosecutions v. Camplin [1978] AC 705 (refd)
Lorensus Tukan v. PP [1988] 1 CLJ 143; [1988] 1 CLJ (Rep) 162 SC (refd)
Poovammal v. State represented by The Inspector of Police, VK Puram Police Station,
Tirunelveli District [2012 (2) Mil (CH) 482] (refd)
R v. Dutton [1979] 21 SASR 356 (refd)
Rikky Purba v. PP [2014] 3 CLJ 607 CA (refd) I
 [2017] 2 CLJ PP v. Surbir Gole 625

A Legislation referred to:

Courts of Judicature Act 1964, s. 78
Evidence Act 1950, s. 105
Penal Code, ss. 300, 304(b)
For the appellant - Mangaiarkarasi Krishnan; DPP
B For the respondent - Salim Bashir; M/s Salim Bashir Ruswiza & Co
Watching brief for the family of the deceased - Rachel Chacko
[Editor’s note: Appeal from Court of Appeal; Criminal Appeal No: J-05-49-03-2014
(affirmed).]
Reported by Suhainah Wahiduddin
C
JUDGMENT
Zaharah Ibrahim FCJ:
Introduction
D [1] The respondent (whom we will refer to as the “accused”) was charged
and tried at the High Court in Malaya at Johor Bahru on a murder charge.
[2] At the conclusion of the whole case the High Court found that
Exception 1 to s. 300 of the Penal Code applied. The accused was
consequently convicted of culpable homicide not amounting to murder under
E para. 304(b) of the Penal Code and sentenced to imprisonment for a period
of ten years.
[3] The Public Prosecutor’s appeal to the Court of Appeal was dismissed.
[4] The Public Prosecutor appealed to this court against the decision of
F the Court of Appeal.
The Charge
[5] The original charge (“charge”) against the accused was as follows:
Bahawa kamu pada 6 September 2012, jam lebih kurang 8.20 malam, di
G Kedai No. 12, Ming Ang Bakery House Sdn Bhd, Jalan Sutera 3, Taman
Sentosa, di dalam daerah Johor Bahru, dalam negeri Johor Darul Takzim,
telah melakukan bunuh dengan menyebabkan kematian ke atas TAN AI
PING (NO. KPT; 840615-01-5658), dan oleh yang demikian kamu telah
melakukan kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun
Keseksaan.
H
In The High Court
[6] The facts which are not in dispute are that on the date and at the time
and place as stated in the charge, the accused stabbed one Tan Ai Ping, and
then slashed his own wrist and neck.
I [7] Tan Ai Ping, who was bleeding profusely, became unconscious and
was taken to the Johor Specialist Hospital, Johor Bahru. Tan Ai Ping
(“deceased”) died on 7 September 2012 as a result of her injuries. Her body
was taken to Hospital Sultanah Aminah, Johor Bahru, by the police.
626 Current Law Journal [2017] 2 CLJ

[8] A post-mortem examination was conducted at Hospital Sultanah A

Aminah on the deceased by Dr Khairul Anuar bin Zainun (“SP3”). SP3
concluded that the cause of death was ‘stab wound to the chest’.
[9] At the conclusion of the case for the prosecution, the learned trial
judge found that the prosecution had proved a prima facie case against the
accused on the charge against him. He was called to enter on his defence. B

[10] The accused gave evidence from the witness stand. His defence was
that of grave and sudden provocation.
[11] The accused claimed that the deceased had been verbally abusing him
for a significant period of time. He was called ‘mad, crazy, stupid, cow and C
bastard’ every day prior to the incident on 6 September 2012 as well as on
that day itself.
[12] According to the accused, the verbal abuse on that day by the deceased
had really enraged him. He finally snapped and lost his self-control.
D
[13] The accused testified that he came to Malaysia to look for a job in
September 2011. He first worked in a restaurant in Yong Peng in Johor
owned by the same owner of Ming Ang Bakery where the stabbing incident
took place. He said he paid RM3,000 as agency fees to come to Malaysia.
[14] The accused claimed that his passport was kept by the employer. He E
had several times requested that his passport be given back to him in order
for him to return to Nepal but this was refused. Instead, he was scolded by
the deceased, and subjected to ill-treatment and mental torture by the
deceased. He was denied leave and had to work from 7am until 9pm daily.
[15] The accused claimed that he did not remember what had happened on F
the day of the incident. He had no recollection of stabbing the deceased. He
could not explain how the deceased’s blood was found on the knife and at
the scene of the incident. He also could not explain how bloodstains were
found on his hand and neck.
G
[16] The learned trial judge considered the evidence adduced throughout
the trial until its conclusion and concluded that from the evidence of the
accused it was clear he had lost control of himself as result of the cumulative
provocation by the deceased. His Lordship said that the circumstances of the
incident did not show that the accused had the intention to murder the
deceased. H

[17] His Lordship further said that the evidence of SP2 showed that the
incident happened in a short span of time, of about 5 minutes. The cause of
death, according to SP3, was one stab to the heart. The deceased did not die
immediately. For that reason, the learned trial judge concluded that the
I
element of intention to kill did not exist in this case.
 [2017] 2 CLJ PP v. Surbir Gole 627

A [18] The learned trial judge, having found that grave and sudden
provocation had been proven, held that Exception 1 to s. 300 of the Penal
Code applied. The accused was consequently convicted under para. 304(b)
of the Penal Code and sentenced to imprisonment for a period of ten years.
In The Court Of Appeal
B
[19] The sole ground of appeal by the Public Prosecutor in the Court of
Appeal was that the learned trial judge had erred in finding that the accused
had succeeded on a balance of probabilities to prove his defence of grave and
sudden provocation, the provocation being cumulative in nature.
C [20] The Public Prosecutor submitted, citing in particular the Federal
Court decision in Che Omar Mohd Akhir v. PP [2007] 3 CLJ 281, that
cumulative provocation was not a known element in the defence of grave and
sudden provocation to the charge of murder. The Court of Appeal disagreed.
[21] The Court of Appeal held:
D
[35] With respect, we disagree with that contention. The statement in the
case of Che Omar (supra) should be looked [sic] in the context of the factual
matrix of that case. It will be seen that the basic premise in the above
sentence is “In the present case, the only provocation was a suspicion in
the mind of the appellant ...”. In our view, verbal provocation (as in the
E instant appeal) may operate where there is cumulative provocation and
the immediate provocation represents the straw that breaks the camel’s
back. This involves a situation where there is a series of provocation
where the last insult may appear trivial when viewed in isolation and on
its own, but the last insult when viewed against the cumulative
provocation bring events to a boiling point. (See Mat Sawi bin Bahodin v.
F Public Prosecutor [1958] 1 MLJ 189; Public Prosecutor v. Lasakke [1964] 1 MLJ
56).
[22] The Court of Appeal referred to and followed its own decision in
Rikky Purba v. PP [2014] 3 CLJ 607, quoting the following passages from the
judgment in that case:
G
[39] Thus, in considering the question whether the appellant was actually
provoked to lose his self-control, the court is entitled to consider the
immediate act that caused death as well as all relevant circumstances
preceding or surrounding that act. The nature of the alleged provocation,
the manner in which the appellant reacted, the time which eloped between
H the provocation and the appellant’s response, previous relations between
parties, the sensitivity or otherwise of the appellant are relevant
considerations to answering the subjective question on provocation.
[40] Another important fact to be noted is that in endeavouring to
determine whether there has been “time for this passion to cool off”, a
court is not required to resort to any mathematical formula or to arrive
I
at any computation of time expressed in minutes or hour. The court must,
628 Current Law Journal [2017] 2 CLJ

however, conduct a careful circumstances [sic] of the case before it. In A

doing so, the court must seek to establish whether at the time of doing
the act which caused death the passion of the accused had cooled off.
[23] The Court of Appeal referred to the case of Poovammal v. State
represented by The Inspector of Police, VK Puram Police Station, Tirunelveli
District [2012 (2) Mil (CH) 482] in which the Madras High Court said: B

30. Under the English Criminal Law, the provocation must be grave and
also sudden. But by way of judicial thinking, the Indian Criminal Law has
gone ahead. (KM Nanavathi v. State Of Maharastra [AIR 1962 SC 605]). In
our system there is the concept of “sustained provocation”. It is
concerned with the duration of the provocation. There may be incidents/ C
occurrences, which are such that they may not make the offender
suddenly to make his outburst by his overt act. However it may be
lingering in his mind for quite sometime, torment continuously and at one
point of time erupt, make him lose his self control, make his mind to go
astray, the mind may not be under his control/command and results in
the offender committing the offence, The sustained provocation/ D
frustration nurtured in the mind of the accused reached the end of
breaking point, under that accused causes the murder of the deceased.
[24] The Court of Appeal then referred to the statement of Lord Morris in
Director of Public Prosecutions v. Camplin [1978] AC 705 at p. 721 and the
statement of Justice Cox in R. v. Dutton [1979] 21 SASR 356. Lord Morris E
and Justice Cox both observed that the actions or reactions by which the
accused person is to be judged in relation to a given provocation is that of
an ordinary person with the same background and characteristics as the
accused person.
[25] The Court of Appeal then made the following findings: F

[44] Based on the facts in the evidence, we are of the opinion the
respondent stabbed the deceased in the heat of passion unpremeditated
and in a temporary loss of self-control caused by the provocation. Prior
to the occurrence, the respondent was not armed with any weapon. The
brief interval in which the respondent went looking for a weapon was not G
significant in the circumstances of this instant appeal. At the time of
occurrence, the respondent remained deprived of self-control and stabbed
the deceased whilst so deprived. Further, there is no independent
requirement in law that there be no ‘cooling-off period’. The existence
opportunity to ‘cool-off’ between the provocative conduct and the
respondent’s response does not mean that the defence will fail (see Moffa H
v. R (1977) 138 CLR 601; R v. Kumar (2002) 5 VR 193; Pollock v. R (2010)
242 CLR 233). However, the ‘cooling-off period’ can be important
consideration in determining whether the respondent’s act was caused by
the provocative conduct, rather than caused by motives of revenge or
punishment. The prosecution did not adduce a shred of evidence from
which we could infer that there existed a grudge, hatred or revenge on I
the part of the respondent.
 [2017] 2 CLJ PP v. Surbir Gole 629

A [45] We are of the opinion that in the circumstances of this instant appeal,
the reaction of the respondent was proportionate with the provocation.
The fact that there were 43 injuries found on the deceased did not affect
the matter adversely to the respondent because a reaction to provocation
necessary [sic] involves lack of ability to exercise restraint or to judge a
situation with insight and balance. The fact that the respondent had
B injured himself after the attack revealed that the respondent was deprived
the power of self-control. Any reasonable man placed in the situation and
circumstances the respondent was placed would have acted as the
respondent did ...
[46] As regards the intention of the respondent is concerned, in the light
C of the evidence we alluded to earlier, it was clear that the incident took
place in the heat of passion. The respondent was deprived of self-control
and there was no premeditation or deliberation on the part of the
respondent to stab at the deceased. The weapon used to stab the
deceased was not carried by the respondent but picked up from the spot
...
D
[26] The Court of Appeal concluded that the learned trial judge did not err
when His Lordship reduced the murder charge against the accused to one of
culpable homicide not amounting to murder under para. 304(b) of the Penal
Code.
E [27] The Court of Appeal was “of the unanimous view that the evidence
pointed to cumulative provocation”. The conviction of the accused on the
reduced charge and the sentence imposed upon him by the High Court were
affirmed by the Court of Appeal.
Ground Of Appeal In The Federal Court
F
[28] Before us, the Public Prosecutor’s sole ground of appeal is that the
Court of Appeal had erred in finding that the accused’s act in stabbing the
deceased and thus causing her death was an act committed as a result of
cumulative provocation which qualifies as grave and sudden provocation
under Exception 1 to s. 300 of the Penal Code.
G
The Law
[29] The learned Deputy Public Prosecutor submitted before us that
Exception 1 to s. 300 of the Penal Code must be applied in accordance with,
in particular, the decision of the Federal Court in the case of Che Omar bin
H Che Akhir v. PP (supra).
[30] In Che Omar’s case, the accused’s wife left him without his knowledge,
and went back to her mother’s home in Kuching, Sarawak, taking her
daughter with her. The accused looked for her in Kuala Lumpur but could
not find her. He claimed to have received two telephone calls, four days
I apart, threatening to kill him if he went to Sarawak. The first telephone call
was received about 11 days after the wife left him. The accused went to
630 Current Law Journal [2017] 2 CLJ

Kuching some 18 days later to look for the wife. He could not find her at A
her kampung. He bought a knife, as he claimed two men were following him.
He found the wife later at her mother’s stall at the Jalan Satok Sunday Market
in Kuching. At the time PW7 was also at the stall. She answered him rudely
when he asked why he treated him that way. The accused asked his wife
twice about PW7. She replied that he was “my man”. That statement was B
repeated by the wife. The accused then stabbed his wife several times as her
answer made him feel “dayus”. She died as a result of the stab wounds.
[31] In dealing with the defence of the accused in Che Omar’s case, the
learned trial judge in that case said:
C
Furthermore, this is a case where it is reasonable to say that if there was
provocation, this would or could conceivably have emerged or
commenced from the time the accused discovered that his wife Maray
had surreptitiously left their matrimonial home in Kuala Lumpur for
Kuching with their child. It is quite probable that this provocation was
further fueled by his suspicion that his wife Maray was perhaps having an D
affair with another man when he received the threatening telephone calls
from Kuching. His subsequent actions, upon his arrival in Kuching on
2,3.96 in conducting what amounted to a stake-out of the stall owned by
his mother-in-law at the Satok Sunday Market, were symptomatic of an
attempt not merely to locate his wife Maray but also of a desire to confirm
and fortify his suspicion of her infidelity. That suspicion appeared to have E
been further reinforced when he saw his wife with another man Awang
Jamaluddin PW7 at the stall and later when his wife told him, in reference
to PW7, that he was her man.
From the series of events which I have highlighted above, it would seem
that the provocation, which the accused alleged to have suffered, was a
F
gradual one, It was not sudden, even if it could be accepted that the
accused had eventually become offended on being told by his wife that
PW7 was her man, I am of course of the view that such an offensive
rebuttal would not have prompted or caused a reasonable man, placed in
the position and circumstances the accused was placed, to become so
provoked as to lose his self-control thereby causing him to suddenly whip G
out a knife and stab his wife to death.
[32] On appeal, the Federal Court explained that the determination of
whether a given provocation is grave and sudden is made on the evaluation
of facts. The court said:
[22] In the present case, the only provocation was suspicion in the mind H
of the appellant that the deceased was unfaithful to him when she
referred to PW7 as “He is my man”. What was found by the learned trial
judge was that the provocation was gradual. He was right. To our minds,
there is no such thing as gradual and accumulated provocation that
amounts to grave and sudden provocation. Devoid of its gravity and
I
suddenness (as in the case here) a gradual and accumulated provocation
 [2017] 2 CLJ PP v. Surbir Gole 631

A is not sufficient to constitute a defence under Exception 1 to s. 300 of the

PC. The provocative acts of the deceased were not capable of constituting
provocation sufficient to reduce the charge of murder to culpable
homicide not amounting to murder. Further, the brutal retaliation by the
appellant was not proportionate to the provocation. We agree with the
learned trial judge that a reasonable man placed in the situation and
B circumstances the appellant was placed would not have acted as the
appellant did.
[23] We agree with the Court of Appeal that the learned trial judge was
correct in his approach on the defence of grave and sudden provocation
in line with what had been stated in Lorensus Tukan, supra. In our
C judgment, the learned trial judge had fully considered the evidence relied
on by the appellant on the defence of grave and sudden provocation
[33] In the case of Lorensus Tukan v. PP [1988] 1 CLJ 143; [1988] 1 CLJ
(Rep) 162, referred to by the Federal Court in Che Omar’s case, Seah SCJ,
in delivering the judgment of the Supreme Court, said:
D
The test of ‘grave and sudden’ provocation is whether a reasonable man,
belonging to the same class of society as the accused, placed in the
situation in which the accused was placed would be so provoked as to lose
his self-control (see Nanavati v. State of Maharashtra AIR 1962 SC 605, 530).
[34] It appears to us that the term “cumulative provocation” used or
E referred to in the High Court and the Court of Appeal in this case, and the
cases referred to or cited in both courts, was used in relation to a series of
provocations each of which is not by itself grave. It is only when all the
provocations in the series are accumulated that the sum total of them
becomes grave provocation.
F
[35] We believe that Che Omar’s case has made the legal position clear with
regard to cumulative provocation of the nature described in para. 34 above.
We ought to be reminded that the defence of “cumulative provocation” does
not exist in our criminal law, and therefore we are not persuaded that it is
a permissible defence to s. 300 of the Penal Code. Only the defence of grave
G and sudden provocation is specifically provided for in Exception 1 to s. 300
in the Penal Code. We are not inclined to agree to any departure from the
established law.
[36] We wish to reiterate, however, that provocation to an accused person
that is ordinarily and by itself not grave may be grave enough to fall within
H
Exception 1 to s. 300 when, after all the circumstances of the case before and
during that provocation are taken into consideration, it can be concluded that
“a reasonable man, belonging to the same class of society as the accused,
placed in the situation in which the accused was placed would be so
provoked as to lose his self-control”.
I
632 Current Law Journal [2017] 2 CLJ

[37] To be able to come within Exception 1, the provocation that an A

accused person is relying on must not only be grave, but must also be so
sudden as to cause the accused person to “lose his self-control”, and act in
spontaneous reaction to the grave provocation.
[38] It is the kind of suddenness that, to use the words in the illustrations
to Exception 1 to s. 300 in the Penal Code, “excited” the accused person to B
“sudden and violent passion” or to “violent rage”.
[39] Ultimately, however, whether the provocation is grave and sudden is
a question of fact.
Evaluation Of Facts C

[40] According to s. 105 of the Evidence Act 1950, the burden of proving
that Exception 1 to s. 300 of the Penal Code, that is that the act of stabbing
the deceased was precipitated by grave and sudden provocation, is upon the
accused. The accused has to prove not only that the provocation was grave
but that it came suddenly. D

[41] As mentioned above, in his evidence, the accused testified that he had
been constantly mistreated by the deceased by the use of harsh and abusive
words.
[42] A few days before the date of the incident, according to the accused, E
the abusive words became worse.
[43] The accused said he was especially under great strain on the day of the
incident as he was given different tasks, which confused him, and as a result
he was scolded by the deceased in the morning of the day of the incident.
However, the accused claimed that he did not remember what was said to F
him by the deceased. He also claimed to have no recollection of taking the
knife and stabbing the deceased or of injuring himself.
[44] SP2’s evidence was that the deceased had merely asked the accused,
in a loud voice just a few minutes prior to the incident, why he had not
G
packed the food. This happened after the deceased had gone to the toilet,
come out of the toilet and washed her hands.
[45] However, in answer to a question by the court, the accused said that
when the deceased uttered the words “ibu manakah yang telah melahirkan
anak seperti kamu ini”, he could not take it as his mother was ill in Nepal. H
The prosecution did not apply to cross-examine the accused after that answer
was given in response to the court’s question.
[46] The learned trial judge considered those words to be the “climax” to
the series of provocations that the accused had to endure. The Court of
Appeal agreed with that finding. I
 [2017] 2 CLJ PP v. Surbir Gole 633

A [47] The accused had clearly been under psychological stress especially due
to the deceased’s constant loud-voiced scolding. That by itself however
would not have caused the accused to attack the deceased as he admitted that
he was already used to it. Something else must have caused the accused to
attack the deceased. That something else must be the words “ibu manakah
B yang telah melahirkan anak seperti kamu ini”, uttered by the deceased.
[48] In our considered view, given the accused’s psychological stress and
socio-religious background, and given his claim that his mother was ill in
Nepal and that he had been trying to get back his passport to return to Nepal,
the words “ibu manakah yang telah melahirkan anak seperti kamu ini”
C constituted grave provocation. In fact, SP4 gave evidence that the accused
had expressed to him about the accused’s concern about his mother, wife and
children who had no one looking after them in Nepal.
[49] We are aware that SP2 gave evidence that she only heard the deceased
asking the accused in a loud voice “kenapa you tidak pergi bungkus sekarang
D jam berapa?” However, SP2 also admitted that she was at the cashier’s
counter while the deceased and the accused were at the back portion of the
shop, in the storeroom. Quite obviously SP2 would not be able to hear the
words spoken to the accused by the deceased if not spoken in the deceased’s
customary loud voice.
E
[50] A CCTV recording was tendered into court and marked as exh. P26.
According to the CCTV recording, at 8.07pm, the accused was still at the
cashier’s counter with SP2. He was then seen going towards the washing up
area. He then went into the storeroom. This was while the deceased was in
the toilet. Then the deceased’s loud question which SP2 heard. SP2 did not
F hear anything else. Shortly after, at 8.10pm, by SP2’s estimation, came the
deceased’s screams and the deceased was seen running out at 8.11pm. In
other words, merely 3 minutes had elapsed between the time the accused was
still at the cashier’s counter and the deceased’s screams was heard by SP2.
[51] The evidence of SP4 on the images seen on the CCTV was that when
G
the deceased was in the toilet, the accused was seen going to the place for
washing hands and “masukkan sesuatu di bahagian belakang badannya”. The
accused was then seen going towards the storeroom.
[52] No evidence was led as to what was the “sesuatu” that the accused
H placed at his back, or even if he in fact placed something at his back.
[53] The learned trial judge did not touch on this part of SP4’s evidence.
Quite obviously, the learned trial judge who had the advantage of viewing
the CCTV recording, was satisfied that the accused did not place a knife at
his back. We do not have that advantage. Neither did the Court of Appeal.
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634 Current Law Journal [2017] 2 CLJ

[54] The Court of Appeal appeared to have concluded that the accused had A
gone looking for a weapon. However, as can be seen from para. 46 of the
Court of Appeal’s judgement reproduced above, the Court of Appeal
concluded that the knife used to attack the deceased was “picked up from the
spot”.
[55] If the accused had indeed been looking for a weapon and was waiting B
in the storeroom for the deceased in order to attack her, he would surely have
done so immediately upon the deceased entering the storeroom. Yet, SP2
heard the deceased asking the accused “kenapa you tidak pergi bungkus
sekarang jam berapa?” After those words were spoken, SP2 said “saya tidak
dengar apa-apa sebelum saya dengar bunyi jeritan Tan Ai Pin”. To our C
minds, this suggested a time lag between those loud words and the screams.
Sufficient time, in our view, for the provocative words to be spoken.
[56] SP2’s evidence was that the knife used to attack the deceased was a
brown-handled fruit knife. She had seen it at the back of the shop. It was used
to open up boxes. In our view, it was reasonable to expect the knife to be D
in the storeroom itself. The deceased and the accused were both in the
storeroom when the attack started. It was also reasonable to conclude that
after the utterance of the words which gravely provoked the accused, the
accused picked up the knife and attacked the deceased.
E
[57] We took note of SP2’s evidence that she saw the accused holding the
deceased by her hair with one hand and hitting the deceased’s head against
the door, while the other hand was stabbing/slashing her. We also took note
of the fact that while the fatal wound was the one stab to the chest, the
deceased suffered 42 other stab/slash wounds.
F
[58] In our considered view, the manner in which the accused held the
deceased, his hitting of her head against the door, and the multitude of stab/
slash wounds inflicted within such a short period of time on various parts of
the deceased’s body (including her face) are clearly indicative of great rage
and loss of self-control.
G
[59] SP2 testified that when she saw what the accused was doing to the
deceased, she caught hold of the accused’s hand which was holding the knife,
and asked him why he was doing that. SP2 said the accused “begitu
terperanjat” when she held his hand.
[60] After the stabbing, it was the deceased who ran out of the shop. The H
accused, according to SP2, remained at the same spot, still holding the knife.
SP2 later saw the accused slash his own chin and wrist. SP4 and the police
found him lying down inside the shop near the corridor beside the kitchen.
[61] The accused’s reaction of shock when SP2 caught hold of his hand and
I
his reaction after the stabbing, in our view, show that the accused must have
temporarily lost his self-control due to the words uttered by the deceased.
 [2017] 2 CLJ PP v. Surbir Gole 635

A [62] In our considered view, the most reasonable conclusion that can be
drawn from:
(a) the nature of the attack on the deceased;
(b) the number and locations of the deceased’s injuries;
B (c) the sequence of events and the short period of time within which they
took place;
(d) the type of weapon used in relation to the location of the incident; and
(e) the accused’s reaction when SP2 caught his hand and his reaction after
C that,
is that the accused attacked the deceased whilst deprived of the power of self
control as a result of grave and sudden provocation by the deceased.
Decision
D [63] Based on our findings as discussed above, we are unanimous in our
view that Exception 1 to s. 300 of the Penal Code applies in this case.
[64] We therefore dismiss this appeal and affirm the order of the High
Court and Court of Appeal and the sentence passed by the High Court.
E [65] This judgment is delivered under s. 78 of the Courts of Judicature Act
1964 as one of the members of the panel has retired.