This is the second in a series of blog posts which will touch on the defences to s 300 murder in the Penal Code. One partial defence to murder encapsulated in s 300 of the Penal Code is the defence of provocation.
Pleading a provocation defence reduces the charge from murder to culpable homicide and this defence is one Singapore criminal lawyers are well-versed in.
The relevant provision in the Penal Code is as follows:
Exception 1.—Culpable homicide 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.
Test for provocation in Singapore
Singapore courts employ a 2 stage test to deem if the test for provocation can be successfully invoked.
The test is as follows:
- The accused has to prove that he was deprived of his self-control by provocation (a subjective requirement which turns on a finding of fact); and
- The provocation should have been “grave and sudden”, involving the application of the reasonable man test (an objective requirement)
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Limb 1: Deprivation of self-control
Whether an accused person is deprived of self-control normally depends on the specific facts of each case. The court will decide if the accused had indeed lost his/her self-control as a result of the provocation he/she had been placed under.
For example, in the case of Sundarti, the court found that the nature of injuries found on the deceased strongly suggested that these were acts of a person possessed of frenzy and denuded of self-control. Moreover, the accused was able to inflict severe wounds on the deceased with tremendous force, despite the fact that she was drained of energy.
However, if the accused’s statements and actions post-murder prove that he clearly knew what he was doing and that he had a clear purpose, then it is likely that the court will find he did possess sufficient self-control.
Limb 2: Grave and sudden provocation
The court will use an objective test to determine the gravity of the provocation. If the provocation was one that the reasonable man, having the same background as the accused, would find the grave, then the provocation defence is likely to be made out.
However, the individual peculiarities of the accused that merely affected his power of self-control, but not the gravity of the provocation will not be taken into account. This is to ensure that the provocation defence is denied to people who overreact simply because they are “exceptionally pugnacious, bad-tempered and over-sensitive”.
Bars to the provocation defence
The provocation defence will not be available to the accused if it is shown that:
- that the provocation is sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person (that is, the provocation is self-induced);
- that 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;
- that the provocation is given by anything done in the lawful exercise of the right of private defence.
Penal Code provocation illustrations
- A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
- Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder but merely culpable homicide.
- A is lawfully arrested by Z, a police officer. A is excited to sudden and violent passion by the arrest and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
- A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition, and that A has perjured himself. Ais moved to sudden passion by these words, and kills Z. This is murder.
- A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays hold of Ato prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.
- 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.
 Penal Code Cap .224, 2008 (Rev. Ed)
 Public Prosecutor v Sundarti Supriyanto  SGHC 212
 Lau Lee Peng v Public Prosecutor  SGCA 13 at 
 Lau Lee Peng v Public Prosecutor  SGCA 13 at