George Seah SCJ:

At the conclusion of the hearing we set aside the conviction for murder and substituted it with a conviction of culpable homicide not amounting to murder and sentenced the appellant to imprisonment for a term of fifteen years to commence as from the time of his arrest. We now give our reasons for doing so.

The appellant is an Indonesian/Timorese and was charged with the murder of Timing bin Anjal at the High Court at Labuan, Sabah. He was arrested by the police on 18 August 1982 and two days later he made a confession to a Magistrate. This confession was admitted at the trial without objection by the defence. There was no doubt whatsoever that the appellant caused the death of Timing but in his defence he appeared to rely principally on Exception 1 to s. 300 of the Penal Code, viz that he committed the offence charged whilst deprived of the power of self-control by grave and sudden provocation given by the deceased, thereby reducing the crime to one of culpable homicide not amounting to murder.

At the appeal learned Counsel for the appellant had submitted that the learned Judge had committed material contradictions in dealing with the law on provocation. A