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PP v Kwan Cin Cheng
Contract Law
Singapore Management University
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434 SINGAPORE LAW REPORTS (REISSUE) [1998] 1 SLR(R)
Public Prosecutor
v
Kw an C i n C h e ng
[1998] SGCA 10
Court of Appeal — Criminal Appeal No 8 of 1997 Yong Pung How CJ, M Karthigesu JA and L P Thean JA 19 January; 9 February 1998
Criminal Law — Offences — Murder — Whether provocation grave and sudden — Objective “reasonable man” test — Whether emotional state of mind at material time relevant in considering satisfaction of test — Whether nature of relationship between accused and deceased at material time sufficient to raise defence — Whether mere words could qualify as provocation — Whether to interfere with trial judge’s decision — Section 300 Exception 1 Penal Code (Cap 224, 1985 Rev Ed)
Facts
The respondent was charged with murdering the deceased, his former lover. After the deceased ended her relationship with the respondent, the latter arranged to meet her to beg her to resume their relationship. He brought along a knife as he planned to kill himself if she rejected him. At the meeting, when told of his suicidal thoughts, the deceased replied in a callous tone that he was “useless” and doubted if he dared to kill himself. She also said she was happy with her new boyfriend, and his death would have nothing to do with her. Upon hearing this, the respondent stabbed her to death. The trial judge held that the respondent had established a defence of grave and sudden provocation and convicted him on a reduced charge of culpable homicide not amounting to murder and sentenced him to ten years’ imprisonment. On appeal, the Prosecution accepted that the respondent had lost control upon being provoked by the deceased, but contended that the relationship between the respondent and the deceased was not close enough in law for her disclosure of another boyfriend to be grave and sudden provocation. In any case, the respondent’s reaction was not reasonable as the deceased had already ended their relationship and he should have expected callous words from her for having tricked her into meeting him with the pretext of returning her money.
Held, dismissing the appeal and enhancing the sentence to life imprisonment:
(1) There were two distinct requirements for the provocation defence: (a) a subjective requirement that the accused was deprived of his self-control by provocation; and (b) an objective requirement that the provocation should have been “grave and sudden”, involving the application of the “reasonable man” test: at [44]. (2) For the purpose of the objective test, the emotional state of the respondent’s mind at the material time, the deceased’s provocative words and
[1998] 1 SLR(R) PP v Kwan Cin Cheng 435
their effects on the respondent, the earlier events and the “mental background” they created in the respondent might be relevant: at [50]. (3) The lack of a romantic relationship between the respondent and the deceased was not decisive. There was no rule of law that mere words could not amount to grave and sudden provocation save in exceptional circumstances: at [54] to [56]. (4) The “reasonable man” test demanded only that an accused should have exercised the same degree of self-control as an ordinary person. It does not require that his act of killing was capable of being viewed as “reasonable”. In applying the test, care had to be taken not to peg the standard of self-control and the degree of provocation required at an unrealistically high level: at [65]. (5) There was no basis for interfering with the trial judge’s conclusion that the provocation here was grave and sudden and that the respondent had satisfied the “reasonable man” test: at [72].
Case(s) referred to Chan Tong v R [1960] MLJ 250 (folld) DPP v Camplin [1978] AC 705; [1978] 2 All ER 168 (folld) Glasford Phillips v The Queen [1969] 2 AC 130 (refd) Holmes v Director of Public Prosecutions [1946] AC 588 (not folld) Ithinin bin Kamari v PP [1993] 1 SLR(R) 547; [1993] 2 SLR 245 (folld) King, The v Lesbini [1914] 3 KB 1116 (refd) King, The v Palmer [1913] 2 KB 29 (not folld) Luc Thiet Thuan v The Queen [1997] AC 131; [1996] 3 WLR 45 (folld) Mancini v Director of Public Prosecutions [1942] AC 1 (refd) Mason v R (1964) 7 WIR 486 (not folld) Mat Sawi bin Bahodin v PP [1958] MLJ 189 (folld) Murgi Munda v Emperor AIR 1939 Pat 443 (not folld) Nanavati v State of Maharashtra AIR (49) 1962 SC 605 (folld) PP v Cheng Ka Leung Edmund [1987] 2 CLAS News 5 (distd) R v Birchall (1913) 109 LT 478 (not folld) R v Ellor [1920] All ER Rep 475 (not folld) R v Greening [1913] 3 KB 846; (1913) 9 Cr App R 105 (not folld) R v Morhall [1996] AC 90; [1995] 3 All ER 659 (refd) R v Rothwell (1871) 12 Cox CC 145 (not folld) Regina v Matthias Kelly (1848) 2 Car & K 814; 175 ER 342 (not folld) Vijayan v PP [1974–1976] SLR(R) 373; [1975–1977] SLR 100 (folld)
Legislation referred to Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 122(6) Penal Code (Cap 224, 1985 Rev Ed) s 300 Exception 1 Homicide Act 1957 (c 11) (UK) s 3
Francis Tseng, Jasbendar Kaur and Christina Koh (Deputy Public Prosecutors) for the appellant;
[1998] 1 SLR(R) PP v Kwan Cin Cheng 437
their relationship. She then took her television set from the flat and left. The respondent returned to Ayer Tawar.
7 A few days after 29 September 1996, the respondent telephoned the deceased and told her he was coming to Singapore to give her share of “tontine” money which amounted to a few thousand dollars.
8 The respondent returned to Singapore on the night of 3 October 1996 in a Proton car and stayed overnight in the Yung Kuang Road flat. He contacted the deceased by phone the next morning, 4 October, and they agreed to meet. He spent the rest of the morning in Johore Bahru with one Ngu Kee Watt, who also lived in the flat, to purchase spare parts for his car; they returned to the flat at about 11 that same day. He then went to the NTUC supermarket at the ground floor of the flat to purchase a knife, and again returned to the flat. After this he left the flat for a drive in his car and returned sometime after 7, whereupon he was informed by an occupant of the flat that the deceased had telephoned him. He then paged for her; when she called, they arranged to met at the ground floor of Block 66, Yung Kuang Road.
9 The deceased had been having dinner with Koh. She arrived with Koh in his lorry at the carpark of Block66 at 8. The deceased used Koh’s handphone to inform the respondent she was there. She waited for the respondent at the ground floor lift lobby of Block 66; Koh stood a short distance away as he did not want the respondent to see him with the deceased.
10 Before going downstairs, the respondent retrieved from his room the knife he had bought earlier and placed it in his trouser pocket. He met the deceased at the ground floor lift lobby. They had a short conversation. The respondent then walked towards his car in the car park in front of Block 66 and the deceased followed him. Koh followed them at a distance by walking along the ground floor corridor of Block 66. When the respondent reached his car, Koh saw him open the front driver’s side door. Koh then looked elsewhere and did not pay attention to them. A short while later, Koh heard the deceased scream and turned to see the respondent assaulting the deceased. Koh ran towards them and punched the respondent on the head, causing him to be thrown to the ground a few feet away. The respondent stood up and assumed a fighting stance; Koh did the same. The respondent then saw the deceased kneeling on the ground and ran off towards Block 66. Koh stayed with the deceased and did not chase the respondent.
11 The deceased was pronounced dead by an ambulance officer at the scene at about 9. The respondent had inflicted 14 stab wounds and two slash wounds on her with his knife. The forensic pathologist who carried out the autopsy was of the opinion that moderate force would have been needed to inflict the wounds and that seven of the stab wounds, in the upper back and chest region, were fatal wounds.
438 SINGAPORE LAW REPORTS (REISSUE) [1998] 1 SLR(R)
12 The respondent was arrested by the police on the rooftop of Block 65 at 11. The police had tracked him down by following bloodstains along the staircase of Block 66 and on the water tank on the roof of Block 66, which is connected to Block 65. The respondent was eventually found lying under some concrete slabs near the water tank on Block 65. He was found to have sustained cuts on both palms; the laceration on his left palm was more serious. The police recovered a shoe belonging to him which was floating inside the water tank on Block 65. His shirt was spotted on top of the tank but due to oversight was not recovered. Several days later, the respondent led the police to recover his belt from the top of the water tank on Block 66.
13 The knife used to stab the deceased was found by the police in the vicinity of the car park. Its blade was bent into an “L”-shape. The forensic pathologist opined that the stab wounds on the deceased could not have been inflicted with the knife while it was in this bent state.
14 A s 122(6) statement was recorded from the respondent in the early morning following his arrest, at 4 on 5 October 1996. Its admissibility was not challenged by the respondent. It stated:
The deceased has been my girlfriend for the past four years. Actually, we intended to get married soon. The deceased changed her job about two months ago and also changed her attitude towards me. After the deceased had changed her job, she found a new boyfriend at her new work place. I used to visit her at her place of work practically every day before she changed her job but she told me not to visit her every day but once a week. I bought a knife that morning. I intended to commit suicide with the knife. However, when I talked to the deceased in the evening we were unable to reconcile. We quarrelled. During which I stabbed her with the knife. But I did not intend to kill her.
The Prosecution’s case
15 The Prosecution contended that the respondent had brought the knife when meeting the deceased on 4 October 1996 because he intended to intimidate and cause harm to the deceased if she refused to resume her relationship with him. He intended to bring her to a secluded place but she refused to enter his car. He became angry with her when she refused to reconcile with him and kept asking for the return of her tontine money. He therefore stabbed her with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death.
16 The Prosecution attempted to show that the respondent was an aggressive person. Kee Bee Choon (“Kee”), the deceased’s co-worker and flatmate, testified that the respondent had a bad temper. She also said he had threatened her on the night of 7 September 1996 when he came to their flat when the deceased was absent and she refused to tell him where she had gone. Koh testified that the deceased had told him in September 1996, after
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he would see her on Wednesdays and Saturdays; on Saturdays she would stay overnight with him at his brother’s flat.
20 The events of the last days of their relationship were as follows. On the night of 6 September 1996, a Friday, she called him after 8 to tell him she was going to bed. An hour later, he called her flat and nobody answered. He kept calling until about 2, when Kee answered and told him the deceased was sleeping. He did not believe her and drove to her flat on his motorcycle, where he saw that her shoes were not outside the flat. He let himself into the flat as he had the key to the main door. Kee stayed in her room and did not come out. He then went to the corridor outside the flat and spoke to Kee through her window. Kee refused to tell him where the deceased was. He scolded her, pointing out that she was the one who had procured the deceased’s new job for her, and threatened her that he would “settle score” with her. He did so because he wanted her to reveal where the deceased was. He did not make any other threats. Kee did not tell him anything and he left. Back at his brother’s flat, he could not sleep. He got up at about 5, drove back to Yishun and kept watch outside her flat. He saw only Kee at the bus stop and not the deceased; this made him very sad as Kee and the deceased usually went to work together and he realised that the deceased must have spent the night elsewhere.
21 At 9 that morning (Saturday, 7 September 1996), the deceased called him; he met her in Jurong and they went to his brother’s flat. While sitting on his bed, she said she was prepared for him to assault or kill her; he did not know if she was serious or joking. He playfully put his hands on her neck and shook her gently and said jokingly that she should not dare him to do it. She gave the excuse that she had slept in the office and he half- believed her. They then had sex and she stayed in his flat until about 5 that evening. He saw her again the next morning (Sunday, 8 September 1996) when they again had sex; she left at about 4. On these two days, they did not discuss their relationship; he could not bring himself to confront her with his suspicions.
22 On that Sunday night at about 9, she phoned him and said she was going to bed. When he called back immediately, Kee answered and said she was sleeping; he did not believe her. Next morning (Monday, 9 September 1996) he got up early and kept watch outside her flat, and again saw only Kee waiting at the bus stop; he was very upset. Later that morning he called the deceased at her office and said he knew what she had been doing. She said she had not gone back to her flat to sleep for two or three weeks. She took urgent leave, and he fetched her from her workplace and drove to his flat. After they had sex, she told him she wished to end their relationship; she said it was not that she did not love him but her father had objected to their relationship. He had no choice but to agree. She was almost in tears and they hugged and kissed. When she said she wanted her TV back from his room, he helped her to carry it downstairs. She
[1998] 1 SLR(R) PP v Kwan Cin Cheng 441
withdrew $1000 from an OCBC ATM, using her sister’s ATM card, to pay him for Kee’s and her sister’s tontine contributions (the respondent’s mother ran a tontine fund and Kee and her sister owed the fund some moneys). She also withdrew $200 from her own account from a POSB ATM and gave it to the respondent for his transport costs back to Ayer Tawar. He returned to Ayer Tawar by taxi at about 2 that same day.
23 In Ayer Tawar, he bought a new Proton car the next day, 10 September 1996. He spent his days in Ayer Tawar driving around aimlessly, trying to avoid thinking of the deceased, and drinking at night with his friends. He tried to work for one day but found that he could not concentrate on his work. He called the deceased two or three times at her office but she seemed cold towards him, saying that she was no longer his girlfriend and did not need to talk to him. However, when he mentioned that she was owed RM4,000 from the tontine scheme, she said that she wanted the money back and he agreed to hand it back to her.
24 He returned to Singapore on the evening of 3 October 1996 in his new car. The next morning, 4 October, he wanted very much to see her so he paged her at 7. She wanted him to pay her the money at her office but he insisted that she come and see him in his brother’s flat, whereupon she said she would come in the evening to collect her money. The respondent did not in fact have the money to pay her then. He planned to sell his motorcycle on Monday, after the weekend, to raise the money to pay her. He arranged to meet her only because he missed her and wanted to beg her to come back to him.
25 He spent the rest of the morning with Ngu Kee Watt in Johore. Upon returning to his brother’s flat, he felt very upset and was afraid that she might not come back to him. He thought of committing suicide with a knife and bought two knives at the NTUC supermarket downstairs as they cost only $1 each. Back at the flat, he realised that he needed only one knife to kill himself and he threw the extra knife away. He then spent the afternoon driving to various spots such as Yishun Lake, Sembawang Garden and the seaside to recall the times he had spent with the deceased there.
26 That night at about 8, the deceased telephoned him in his brother’s flat and told him she was at the ground floor. He asked her to come up, giving her the excuse that he was having dinner and also that he wanted to introduce his new girlfriend to her; he said this to test what her response would be. He also wanted her to come upstairs as there were other people in the flat and she would not “talk nonsense”; by this he meant that she would not raise her voice and say harsh words to him. Her voice “broke” when he spoke of his new girlfriend but she wanted him to come downstairs.
27 He felt sad when going downstairs. He took his knife with him in his front trousers pocket; he intended to ask her to come back to him and if she
[1998] 1 SLR(R) PP v Kwan Cin Cheng 443
threw away the knife before reaching the stairs. In court, he was unable to explain why the knife blade was bent in an L-shape when it was recovered.
33 At the second storey of the staircase, a girl saw him and screamed. He then realised that his left hand was bleeding. He did not know how he was injured.
34 At the fifth or sixth storey, he climbed on top a parapet and wanted to jump off the building and kill himself. But he saw the roof of the NTUC supermarket a short distance below. So he continued running until he reached the topmost 21st storey. His brother’s flat was on the 19th storey but he did not think of going there.
35 At the 21st storey, he squeezed through a gap in a metal gate and reached the rooftop. He wanted to stay there until he plucked up enough courage to jump off and kill himself. He climbed up the water tank of Block 66 as he felt thirsty, but could not reach the water inside. He then climbed up the water tank of Block 65. The water looked deep; he jumped in thinking he would be drowned, but the water reached only up to his chest. In the darkness he felt a bolt on the roof of the tank and attempted to hang himself with his belt after attaching the belt buckle to the bolt; he felt giddy and lost consciousness, but the belt broke and he fell into the water. He climbed back out of the tank and attempted to hang himself with his shirt after tying it to a metal beam above, but after he lost consciousness he again fell and was awakened by the pain of hitting the ground. He then hid below some concrete slabs as he was frightened and did not dare to jump off the building. When the police found him he told them they did not have to arrest him as he wished to kill himself.
The decision below
36 With regard to the Prosecution’s allegation that the respondent had a bad temper, the trial judge noted that Kee, the deceased’s room-mate, had testified that both the deceased and the respondent had a bad temper. On the other hand, the respondent’s room-mate Ngu Kee Watt had described the respondent as a reserved and quiet person who would keep his problems to himself. The respondent himself had testified that if someone made him angry, he would simply walk away and not talk to that person. Having observed the respondent in court, the trial judge believed that Ngu’s assessment of the respondent was more accurate and that the deceased possessed a stronger personality than the respondent. He also rejected the Prosecution’s allegation that the respondent had “strangled” the deceased in September 1996. Kee had said that the deceased told her, after taking her TV set from the respondent, that he had tried to strangle her when they were in his bedroom; however, Kee also testified that the deceased had “sounded as if she was kidding” and Kee did not believe her. This was consistent with the respondent’s evidence that he had jokingly put his hands around her neck.
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37 In general, the trial judge accepted the respondent’s evidence as truthful and accurate. It was clear that the deceased and respondent had a very close and sexually-intimate relationship in the years before her death. The trial judge accepted that in August and September he was suspicious that she had another boyfriend but he did not know for a fact if she did; his evidence that she was still having sexual relations with him up till 9 September was not challenged.
38 The Prosecution’s contention that the respondent had intended, when he went downstairs from his brother’s flat, to intimidate or kill the deceased with the knife was rejected by the trial judge. The respondent had first invited her to come upstairs; his assertion that there were people in the flat was supported by the evidence of a flatmate and also by the evidence of Koh. Koh had testified that the deceased had told him, while at the ground floor lift lobby, that the respondent had asked her on the phone to come upstairs, but Koh then told her to ask the respondent to come down. Moreover, the respondent’s evidence that he had walked away from the deceased at the lift lobby, intending to go to a secluded spot to commit suicide, was supported by Koh’s testimony that he had seen him walking to his car briskly while the deceased followed behind. Other facts suggested that the respondent had not intended to kill the deceased when going downstairs to meet her: he did not stab her upon first meeting her at the lift lobby; he did not make a getaway in his car, despite the key already being in the ignition; and he did not bring his passport with him when he went downstairs to meet the deceased.
39 As for whether the respondent had been provoked, the learned judge believed that the deceased was capable of uttering and had uttered the callous words described by the respondent just before he stabbed her. Regarding the effect of these words on the respondent, he held (PP v Kwan Cin Cheng ([1]supra)):
The disclosure by the deceased of a new boyfriend she had and with whom she was happy no doubt came unexpectedly at a poignant moment when he was begging her to come back to him. The disclosure was, to my mind, a grave, sudden and catalytic one causing the accused to react immediately as he did in stabbing the deceased many, many times. I accepted the accused’s evidence that the deceased’s admission to him from her own mouth of having another boyfriend and that she was happy with him together with the other words, all heightened by her callous tone taken in all the circumstances of their long and intimate sexual relations – of living together like man and wife – and the connotation that the deceased was being sexually unfaithfully to him or potentially so by having a new boyfriend could and did cause in the accused who was deeply in love with her a sudden and temporary loss of self-control ...
40 The finding that the respondent had lost self-control was supported by the following circumstances: the numerous wounds inflicted on the
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Exception 1 of s 300, the test to be applied is, would the act or acts alleged to constitute provocation have deprived a reasonable man of his self-control and induced him to do the act which caused the death of the deceased and in applying this test it is relevant to look at and compare the act of provocation with the act of retaliation.
45 In the present appeal, the Prosecution did not dispute the trial judge’s findings of fact, and accepted that the respondent had indeed lost his self- control when provoked by the deceased. However, the Prosecution contended that the “objective” condition was not met: the provocation offered was not “grave and sudden” within the meaning of Exception 1 because a reasonable man in the respondent’s position would not have reacted as the respondent did.
46 The Prosecution argued as follows. There was no evidence to suggest that the respondent was suffering from any abnormality of mind and diminished responsibility was never raised as a defence; consequently, the fact that the respondent was possibly minded to commit suicide was irrelevant to the “reasonable man” test. The respondent had unreasonably interpreted the deceased’s words as meaning that she was happy in bed with another man. Even if the respondent had caught the deceased in bed with another man, this would have been insufficient as they were not married and were not even lovers at the material time, and their relationship then was such that it could not “in law” have amounted to grave and sudden provocation; for this last proposition the Prosecution cited a number of case authorities which will be examined below. In any case, having regard to all the circumstances, the respondent’s reaction was not “reasonable”; he could not expect any kind of fidelity from the deceased as she had already ended their relationship, and he should have expected callous words from her because he had tricked her into meeting him with the pretext of giving her tontine money.
The respondent’s emotional state at the time of provocation
47 As stated above, the Prosecution argued that diminished responsibility was never raised as a defence, and that the law requires that a “reasonable man”, not just the accused, would have been deprived of his self-control; The King v Lesbini [1914] 3 KB 1116 was cited. The gist of this submission appeared to be that the mental anguish suffered by the respondent at the material time, such as his thoughts of suicide, must be ignored in considering whether this test had been satisfied.
48 We could not agree with this submission. This court in Ithinin bin Kamari v PP ([17] supra) at [40] cited with approval Lord Diplock’s judgment in DPP v Camplin [1978] 2 All ER 168 at 175:
“The reasonable man” is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but
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in other respects sharing such of the accused’s characteristics as the jury think would affect the gravity of the provocation to him.
49 The same approach was recently taken by the Privy Council on appeal from Hong Kong in Luc Thiet Thuan v The Queen [1996] 3 WLR 45. There, the court clarified that any characteristics of the accused, including mental infirmities, could be taken into account if they affected the gravity of the provocation. However, these must be contrasted with individual peculiarities of the accused which merely affected his power of self-control but not the gravity of the provocation; such peculiarities could not be taken into account for the purposes of the objective test.
50 In the present case, we were of the view that the emotional state of mind of the respondent could properly have been taken into account. The respondent was in love with the deceased and was pleading with her to come back to him. In the words used in Camplin and Ithinin, his emotional state affected the “gravity of the provocation” by the deceased as it made her callous remarks harder to bear. Such an emotional state cannot be considered a unique “peculiarity” of the respondent which diminished his powers of self-control below that expected from the ordinary person and which should be excluded according to Luc Thiet Thuan. The learned trial judge found that the respondent was not normally an aggressive person; his emotional state at the material time was a temporary reaction to the deceased’s recent break-up with him after a long courtship, and in applying the objective test in Vijayan, the “reasonable man” must be placed in the same circumstances and background events as the respondent and hence would in all likelihood have been experiencing much the same mental anguish as the respondent’s. It would have been absurd to apply the objective test by comparing the respondent’s reaction with a hypothetical man of his age and sex but in good spirits and with no sentimental feelings for the deceased. The deceased’s provocative words could not be artificially viewed in isolation; their effects on the respondent had to be considered along with the events of the preceding days, and there is ample authority holding that earlier events and the “mental background” they created in the accused may be relevant: Mat Sawi bin Bahodin v PP [1958] MLJ 189 at 191, Chan Tong v R [1960] MLJ 250 at 251, Nanavati v State of Maharashtra AIR (49) 1962 SC 605 at 630, Vijayan v PP ([17] supra) at [23], Luc Thiet Thuan v The Queen [1996] 3 WLR 45 at 58.
51 Accordingly, we were of the view that the learned trial judge was correct in having regard to the respondent’s mental state at the time he was provoked, and that the Prosecution’s contention to the contrary was without merit.
The relationship between the respondent and the deceased
52 For its proposition that the relationship between the respondent and deceased was such that no disclosure of unfaithfulness by the deceased
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words followed by an assault or the sight of a man in adultery with the accused’s wife. Some of these categories survived into this century, as shown by the cases cited by the Prosecution. The harshness of the English common law was however legislatively mitigated by s 3 of the English Homicide Act 1957, which provided, inter alia, that mere words could amount to provocation, and that where there was evidence of provocation, the question of whether such provocation was enough to make a reasonable man react as the accused did must be left to be determined by the jury. From subsequent cases such as DPP v Camplin [1978] 2 All ER 168, it is clear that the principle in Holmes – that mere words cannot be provocation save in exceptional circumstances – is no longer part of English law. Accordingly, such questions are now judged on a case-by-case basis with regard to the circumstances in each case, and matters such as whether the accused and deceased were married, or whether the accused caught the deceased in the act of committing adultery, are no longer conclusive.
54 Moreover, we were of the view that the cited cases did not represent the law in Singapore even when they were good law in England. It is self- evident that the provocation defence in the Penal Code is not defined by reference to specific relationships between accused persons and their victims. Holmes, and the English cases preceding it, were based to a large extent on the principle that “mere words” would normally not amount to provocation, whereas the Indian Supreme Court stated unequivocally in Nanavati v State of Maharashtra AIR (49) 1962 SC 605 at 628 that this principle had never been followed in India. Nanavati was cited on this point by the Singapore Court of Appeal in Vijayan v PP ([17] supra), whereas when dealing with Holmes, the court in Vijayan omitted its principle that mere words could not amount to provocation save in exceptional circumstances. As a matter of common sense, “mere words” would in most circumstances be regarded as less provocative than, say, violent blows inflicted on an accused; but there is no rule of law in Singapore that mere words cannot amount to grave and sudden provocation save in exceptional circumstances.
55 It could of course be argued that even if the cited cases are not binding, they reflect policy considerations which courts have thought relevant in the past and to that extent should be taken into account. However, we felt that these older cases should be treated with caution. They originated from a time when English law on provocation was preoccupied with allowing an accused to defend his “honour” – hence the indulgent attitude towards the killing of persons who had physically assaulted the accused or who had committed adultery. They also contain judicial statements concerning the blameworthiness of the victims, such as the observations in Greening ([52] supra at 107 of the report) that it would be a “grave offence against the husband for the wife to commit adultery”. While the wrongfulness of a victim’s conduct may still be a relevant factor, the
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focus of the law is now on whether an accused had demonstrated sufficient self-control in the face of provocation (as will be elaborated below), and more recent cases have recognised that this is the policy underlying the objective test of the “reasonable man”. A court would not now allow a defence of provocation to succeed merely because a victim had assaulted an accused or was caught in the act of adultery; conversely, there was no reason to reject the defence in the present case simply because the deceased and respondent were not married or even lovers at the material time. As for the approach in Holmes, the English legislature has seen fit to reduce the harshness of this approach by allowing mere words to qualify as provocation, and by allowing juries to consider on the facts of each case whether the “reasonable man” test would be satisfied as long as there is evidence that the accused was provoked into losing self-control. This is again consistent with the policy behind the objective “reasonable man” test.
56 For these reasons, we were of the view that the lack of a romantic relationship between the respondent and accused at the time of the provocation could not be decisive.
The application of the “reasonable man” test
57 The Prosecution argued that the respondent had unreasonably interpreted the deceased’s words as meaning that she was happy in bed with another man when in fact their meaning was quite innocuous. Moreover, having regard to the circumstances at the material time, the respondent’s reaction to provocation was not “reasonable”; he could not expect any kind of fidelity from the deceased as she had already ended their relationship, and he should have expected callous words from her because he had tricked her into meeting him with the pretext of giving her tontine money.
58 We did not think that the respondent’s interpretation of the deceased’s words made his reaction unreasonable. It was not his evidence that it was this connotation alone which caused him to lose self-control. His evidence was that he had been upset by a number of things she said, namely:
You are useless. You are good for nothing. I don’t think you dare to kill yourself. Anyway, I already had a new boyfriend and I am very happy. Your death would have nothing to do with me.
59 He had been further upset because she said all this in a “callous” tone. In cross-examination, when asked by the Prosecution what had upset him the most, he then replied that the later sentences – that she had a new boyfriend, was happy, and his death would have nothing to do with her – had made him very upset. Upon further questioning, he said that when she said she was “very happy”, he thought that she meant she was very happy when she was in bed with the new boyfriend. The Prosecutor then suggested to him:
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63 We turn, then, to the Prosecution’s contentions that a “reasonable man” would not have reacted the same way upon hearing the words uttered by the deceased, which in our view was the crux of this appeal. Some observations on the use of the phrase “reasonable man” may be made at this stage. Elsewhere in the law, the “reasonable man” has developed as the “anthropomorphic embodiment of the standard of care required by the law” (Lord Diplock in DPP v Camplin [1978] 2 All ER 168 at 171). But as commentators – if not judges – have often pointed out, if any reasonable person would have killed in response to the provocation in question, an accused who establishes such provocation arguably deserves an acquittal instead of a conviction for culpable homicide. As the law now stands, it seems strange that a reasonable man would go so far as to kill when provoked; still less might a reasonable man be expected to kill upon being provoked by mere words or gestures. The “reasonable man” test formed no part of the provocation defence as drafted in the Penal Code. It was added by the common law as a control device to ensure that the defence would be kept within acceptable limits, and this purpose must be borne in mind when applying the test. As Lord Simon said in DPP v Camplin at 180:
The original reasons in this branch of the law were largely reasons of the heart and of common sense, not the reasons of pure juristic logic. The potentiality of provocation to reduce murder to manslaughter was, as Tindal CJ said in R v Hayward ((1833) 6 C & P 157 at p 159), “in compassion to human infirmity”. But justice and common sense then demanded some limitation: it would be unjust that the drunk man or one exceptionally pugnacious or bad-tempered or over-sensitive should be able to claim that these matters rendered him peculiarly susceptible to the provocation offered, where the sober and even- tempered man would hang for his homicide. Hence, I think, the development of the concept of the reaction of a reasonable man to the provocation offered ...
64 Lord Goff in the recent House of Lords decision of R v Morhall [1995] 3 All ER 659 said at 665:
In truth the expression “reasonable man” or “reasonable person” in this context’ can lead to misunderstanding. Lord Diplock described it in DPP v Camplin [1978] 2 All ER 168 at p 173, [1978] AC 705 at p 716 as an “apparently inapt expression”. This is because the “reasonable person test” is concerned not with ratiocination, nor with the reasonable man whom we know so well in the law of negligence (where we are concerned with reasonable foresight and reasonable care), not with reasonable conduct generally. The function of the test is only to introduce, as a matter of policy, a standard of self-control which is to be complied with if provocation is to be established in law: see DPP v Camplin [1978] 2 All ER 168 at p 173, pp 181–182, [1978] AC 705 at pp 716, 726 per Lord Diplock and Lord Simon of Glaisdale. Lord Diplock himself spoke of “the reasonable or ordinary person”, and indeed to speak of the degree of self-control attributable to the
[1998] 1 SLR(R) PP v Kwan Cin Cheng 453
ordinary person is ... perhaps more apt, and certainly less likely to mislead, than to do so with reference to the reasonable person.
65 Hence the expression “reasonable man”, though convenient, is somewhat misleading. The objective test was introduced to ensure a uniform standard of self-control, and to deny the defence to those who overreact because they are “exceptionally pugnacious and bad-tempered and over-sensitive”. The objective test demands only that the accused should have exercised the same degree of self-control as an ordinary person. It does not require that his act of killing must be somehow capable of being viewed as “reasonable”. In applying the test, care must be taken not to peg the standard of self-control and the degree of provocation required at an unrealistically high level.
66 At the trial below, the Prosecution also contended that the respondent’s reaction was disproportionate or not commensurate with the provocation offered. Such a “proportionality” requirement was a noticeable feature in English law on provocation since Mancini v Director of Public Prosecutions [1942] AC 1. However, its importance diminished after the enactment of s 3 of the Homicide Act 1957 (which, as stated earlier, provided that the question of whether a reasonable man would have reacted like the accused to the provocation must be left to the jury), and it no longer has the status of a rule of law: Glasford Phillips v The Queen [1969] 2 AC 130 at 138, per Lord Diplock. In Singapore, the “proportionality” criterion has been applied in several cases. In Vijayan ([17] supra), it was phrased as a requirement for a “reasonable relationship” between the provocation and the accused’s reaction. However, it was clear that the court viewed this as part of the test of whether the provocation was grave and sudden; the court said at [29]:
But as the test of the sufficiency of the provocation, namely, whether or not the provocation offered would have induced a reasonable man to do what the accused did, cannot be applied without comparing the provocation with the retaliation, the element of ‘reasonable relationship’ is an essential factor to be taken into consideration.
67 This court in Ithinin bin Kamari v PP ([17] supra) also held (at [35]) that the retaliation of the accused in that case had been “entirely out of proportion” to the alleged acts of provocation.
68 The “proportionality” requirement, as phrased in these and other cases, suggested that an accused is expected to tailor his retaliation to the degree of provocation even after having lost self-control. It may be argued that this is unrealistic if the accused had totally lost self-control; but this criticism overlooks the fact that the loss of self-control is a matter of degree. As Lord Diplock said in Glasford Phillips v The Queen [1969] 2 AC 130 at 137–138:
PP v Kwan Cin Cheng
Course: Contract Law
University: Singapore Management University
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