Homicide includes an act or an omission of a person which results in the death of another.
Image credits: http://www.ferragutlaw.com/practice-areas/homicide-cases/
Dear offender, you may not intend it, but you should see this coming.
A report from a couple of months ago on the chair-throwing incident from a flat in Pantai Dalam which had one 15-year-old boy killed in the presence of his mother had shocked the nation.
S. Sathiswaran, a Form Three student of SMK La Salle in Petaling Jaya was hit by a blue office chair believed to have been thrown from one of the upper floors of the Seri Pantai People's Housing Project (PPR) flats at 8.30pm.
The report prompted national outrage, as could be seen from local dailies and netizen’s comments pertaining the incident which calls for justice to be served while condemning the residents’ lack of civic-mindedness in littering liberally from the high up. Given the gravity of this fatal incident, the police had taken swift action. After a thorough investigation with 43 recorded statements, the case which was initially classified under Section 304 A of the Penal Code for causing death by negligence was later reclassified under Section 302 for murder.
A distinction has to be made between the offences as they carry an enormous difference regarding punishments.
This article aims to walk readers through the structure of the offence of homicide in Malaysia under the Penal Code and perhaps to comment on the possible provisions that could be applied to the offender who caused this tragedy to happen.
II. What is Homicide?
Often, we see the word ‘homicide’ being used in legal dramas (Suits!) and mass media that tend to equate it to a murder, but homicide is much wider than that. According to Black’s Law Dictionary, a homicide includes an act or an omission of a person which results in the death of another. Hence, it can be said that when one has caused another to die, it is a homicide.
There can be a lawful homicide and an unlawful homicide in law. The term lawful does not mean it is legal to cause a person’s death; it means that the homicide is either excusable or justifiable under certain situations under the law. Often, they are used as defences by the accused in court.
An excusable homicide means that the homicide can be excused at law due to the condition of the offender (either the offender is a child, of unsound minds such as an insane person, or is involuntarily under intoxication due to alcohols or drugs), accident, and in some cases where consent had been obtained from the victim.
Meanwhile, a justifiable homicide often includes a situation where a person wrongly believes that he or she is justifiable or bound by law to kill. For instance, a soldier fires at the target upon receiving the instruction from the commander. Homicide is also justified when a person has successfully shown the necessity of sacrificing one’s life to prevent greater harm to the society. Besides, in private defence, if death results, it could also be justified, provided that the person did not go overboard in protecting their own life or property.
Other than the stipulated situations, a homicide is an unlawful one. By law, the offence of criminal homicide can be broken down into different levels, according to its seriousness, guided by the Penal Code.
There are three primary homicide offences, which includes culpable homicide not amounting to murder (section 299), murder (section 300), and causing death by rashness or negligence (section 304).
The offences are classified in such a way that each of them attracts different punishment accordingly. For example, section 302 contains a mandatory death penalty as its punishment for murder while section 304 contains imprisonment as punishment as it deals with the offence of culpable homicide not amounting to murder, which is a less serious offence than murder.
III. Categorisation of the Offence of Homicide and its Importance
One may wonder, “Why going the extra miles to separate the offences, is it not easier to make everyone who is guilty of causing death to be tried for the same offence?”
Well, perhaps, the practical reason is to ease the burden of the judges, but fundamentally, a sanction is not one size fits all- a person guilty of the crime must have acted and had the state of mind towards the commission of the crime.
In court, they are called actus reus (action) and mens rea (intention) respectively.
In determining a criminal case, the judges will always look into what the offender has done (actus reus) before looking into why he or she did so (mens rea). These two elements form the basis of criminal law, and for a person to be found guilty of a criminal offence, he or she must satisfy both conditions. To give a simple example, the act of one person stabbing another with a knife is actus reus, and if he or she intends to stab, mens rea exists.
In real life, it is much harder to prove mens rea than it is for actus reus. Mens rea is more abstract than actus reus as we can hardly construe know what the offender was thinking of or had in mind at the time of the criminal act. Thus, proving mens rea has become a routine by lawyers, and it always becomes the centre of arguments in court proceedings.
Likewise, in the present situation, the actus reus is quite clear, that is, the act of throwing a chair from high up. Therefore, identifying mens rea becomes crucial as different mens rea suggests a different offence- hence a different punishment.
Therefore, before we know what offence was committed, we have to study their mens rea before concluding the offence. One way to study the mens rea is through the provisions of the Penal Code.
IV. The Possible Mens Rea
Since the police, in this case, have classified the case as a murder, the relevant law is section 300 of the Penal Code. However, we need to look into the offence of culpable homicide not amounting to murder as well. This is because all cases of murder fall under culpable homicide and, both provisions have the same mens rea requirements, so both sections need to be scrutinised together to show the difference. This explains why the police choose to charge the offender with murder instead of culpable homicide not amounting to murder.
Collating the facts of the situation from news reports, it can be argued that the relevant mens rea would be the knowledge of causing the death instead of the intention to cause the death. It is unlikely for the offender to intend to kill someone by throwing a chair, but more likely that the person was just getting rid of the chair and took the easiest way to dispose of it, while knowing well that if the chair were to hit someone, it can be fatal. The intention to kill was not present, but the question of whether the offender knew about the outcome of the action, which was death, is worth answering.
V. Overview of the Difference Between Culpable Homicide and Murder
The line between culpable homicide (s.299) and murder (s.300) is thin but identifiable. Essentially, both offences are causing death to another person. Some cases of culpable homicide will amount to murder while some will be classified as culpable homicide not amounting to murder, depending on the degree of probability or likelihood of causing death.
When death is a likely result of the act, it is culpable homicide. If death is imminent or the most probable result, it will be classified as murder.
In Tham Kai Yau v PP, the court provided for a way to differentiate both offences through mens rea. It was decided that, “Culpable homicide may not amount to murder, where the necessary degree of mens rea specified in s.299 is present, but not the special degree of mens rea referred to in s.300 of the Penal Code.” In other words, the mens rea of the accused has to reach a certain threshold to make it a murder. Otherwise, it will fall under the offence of culpable homicide not amounting to murder.
So, in our case, the Court needs to identify whether the accused has the highest level of knowledge to know that the act will undeniably cause death, to determine whether it is a murder.
VI. Difference between Knowledge Under Both Sections
Knowledge is part of the mens rea in the offence of culpable homicide in section 299 and 300 of the Penal Code.
Interestingly enough, although it is an element of mens rea, it is not defined in the Penal Code.
According to Law of Crimes in India, knowledge means the faculty of thinking. With regards to section 299 and 300 per se, knowledge is described in cases as the personal awareness of the person who commits the act.
As discussed previously, the offenders’ knowledge of the likelihood to cause death is the method to differentiate s.299 and s.300. Therefore, we will look into both sections where knowledge is an ingredient.
A. Section 299
Examining the law purely under the knowledge limbs, section 299 provides that the accused must know that the act was ‘likely to cause death’. The word likely was interpreted in its natural meaning, that is, probably and not possibly. We are not encouraged to view likely at the level of mathematical probability as knowledge is quite subjective.
To determine whether death is a probable result, the offenders’ knowledge can be inferred from the surrounding circumstances. For instance, certain questions such as “how the act was delivered?” and “would such act cause death under normal circumstances?” must be asked and considered. If the answer is positive that death is likely under normal circumstances, it is likely that the offender has the knowledge of the act and the result.
As stated in one Indian case, the offender, who kicked the abdomen of a girl which resulted in the fracture of two ribs and rupture of the spleen is presumed to have done so with knowledge that kicking with such violence was likely to cause death as no reasonable man could be ignorant of the likelihood of it causing death.
In short, there must be proof that the accused knew that the act is likely to cause death under normal circumstances.
B. Section 300
Murder is regarded to be the aggravated form of culpable homicide and to render the case a murder, it must come within the four clauses of Section 300.
S.300 (d) is the relevant clause among the four.
Under s.300(d), knowledge is said to be present when the criminal act is imminently dangerous that it must in all probability cause death or bodily injury as is likely to cause death and was committed without any excuse. Similar to s.299, the prosecution must prove that offender knows of this fact. The applicability of clause (d) is narrow in the sense that it only covers cases where there is no intention to cause the death to anyone in particular.
From the wording of this section, the offender who is charged under section 300(d) must be proven to have an almost certain awareness the risk of death that exists as a result of their actions. This means that the offender must have a higher knowledge than the situation in culpable homicide not amounting to murder regarding the consequence of the act.
Also, there is the element of “without an excuse” that needs to be fulfilled. It must be shown that the offender was not under any pressure in doing so. In Emperor v Dhirajia, a woman who was carrying her baby was under panic when she was followed by her abusive husband. She then jumped into a well, which caused her baby’s death. The court held that it could not be murder as she did it with an excuse. Therefore, the offence was mitigated from murder to culpable homicide not amounting to murder.
VII. Which Provision is More Likely to Apply Here?
We can take a look an illustration available in the Penal Code:
Illustration (d) of s.300:
“A, without any excuse, fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he has may not have had a premeditated design to kill any particular individual.”
Although in our case, the subject matter is not a cannon but a chair falling from the high ground, nevertheless the action can have a similar detrimental effect considering the momentum it gained during its descent.
In the authors’ opinion, any reasonable person would know that it would be more than just likely to cause death- it is imminently dangerous to the crowd walking outside the flat lobby, and death must in all probability happen to those who are struck by it.
Hence, it is more likely that the offender has a high level of personal knowledge that his or her action would undeniably cause death at the moment the chair was thrown out should it hit someone.
This reckless and irresponsible act will invite the operation of section 300, and will be punished under section 302 unless a strong and valid argument is put up by the defence counsel.
Knowledge plays a significant role in the offence of murder and culpable homicide. The degree of it determines which offence is more relevant. If the degree is high, that is the offender knows for certain the victim of the criminal act will most probably die; it is most likely murder and vice versa.
To conclude, the police has taken the right step in reclassifying the charge to murder. Taking this stern action into account, we hope this would galvanise a difference in the residents of the flat who has made littering a habit to be more responsible to their living environment.
Written by Danesh Ram Aggarwal and Adam Huang. Edited by Hanan Khaleeda.
 Teoh, Pei Ying, “No leads yet in PPR falling chair tragedy: Police”, New Straits Times 22 January 2018, 3 February 2018 <https://www.nst.com.my/news/crime-courts/2018/01/327745/no-leads-yet-ppr-falling-chair-tragedy-police>.
 Johan Jaaffar, “High-class lives, low-level mindsets”, The Star Online 22 January 2018 , 31 February 2018 <https://www.thestar.com.my/opinion/columnists/the-bowerbird-writes/2018/01/22/highclass-lives-lowlevel-mindsets-a-teenagers-senseless-death-reflects-our-lack-of-civicmindedness/>.
 Penal Code (Act 574).
 Faisal Asyraf,“Police waiting for DNA results to provide new leads into PPR falling chair death”, New Staits Times 24 January 2018, 1 February 2018, <https://www.nst.com.my/news/nation/2018/01/328316/police-waiting-dna-results-provide-new-leads-ppr-falling-chair-death>.
 Section 82 and 83, Penal Code.
 Section 85, Penal Code.
 Section 80, Penal Code.
 Section 87 and 88, Penal Code.
 Section 79, Penal Code.
 Section 76, Penal Code.
 Section 81, Penal Code.
 Section 96 and 99, Penal Code.
 PP v Megat Sharizat Megat Shahrur  8 CLJ 893.
 See footnote 13 above.
 PP vFang Jin Zhong  10 CLJ 628.
 See footnote 13 above.
 See footnote 15 above.
  1 MLJ 174.
 Nigam, R C , Law of Crimes in India (Vol 1),(New York: Asia Pub. House,1965).
 Tan Cheng Eng William v PP [1968-1970] SLR(R) 761.
 Behari v State AIR 1953 AII 203.
 See footnote 15 above.
 Yeo, Stanley, Morgan, N and Chan, Wing Cheong, Criminal Law in Malaysia and Singapore, Revised 2nd ed., (Singapore: Lexis Nexis,2015)
 Mohammad Shariff Abu Samah and Asidah binti Hj Mohd Ali Datin Hjh, Alman: Criminal Law in Malaysia (Petaling Jaya, Selangor: International Law Book Services,2012)
 State v Sukhdeo  Cri LJ 438.
  Cri LJ 438 (All).
 Ghelabhai Jagmalbhai Bhawad & Ors vs State of Gujarat  17 SCC 651.
 Abdul Aziz bin Mohamed Shariff v Public Prosecutor  6 MLJ 759.
 Anda v State  Cri LJ 171, SC.
 State of Andhra Pradesh v Punnayya AIR 1977 SC 45.
 AIR 1940 AII 486.