Che Omar v Public Prosecutor [FCM]

This is what the learned High Court judge (Steve L.K. Shim J (as he then was) ) said of the appellant’s defence:

In the instant case, it is the defence contention that there was grave and sudden provocation brought about by what Maray had said to the accused when he met her at the Satok Sunday Market on the night of 2.3.96. It is, I think, not disputed that they had engaged in a conversation and that during this conversation Maray had been somewhat rude and offensive towards the accused as a result of which, the accused said he felt he had suffered “dayus” – a term which had been described by Ustadz Loling Othman Alwi, an Islamic Affairs Officer, to mean a man allowing his wife to have an illicit affair with another person, the effect of which, according to him, constituted an attack upon his credibility as a husband. Given the fact that the accused might have been angered, offended or even humiliated by what his wife Maray had said, the question is whether the defence of grave and sudden provocation is applicable in such a situation. Would a reasonable man, placed in the situation and circumstances the accused was placed, have been so provoked as to lose his self-control thereby causing him to whip out a knife and stab his wife in the manner he did? The answer would be in the negative. In my view, a man placed in the situation and circumstances the accused was placed, belonging to the same cultural, social and emotional background and holding similar traditional and religious values and beliefs, would have exercised sufficient self-restraint and a degree of tolerance. He would have faced the situation realistically and would have resorted to peaceful means of seeking a reunion with his wife who might have been led astray. He would not have taken the law into his own hands by inflicting such grave injuries on his wife with a knife. He would not have contemplated such violent and cowardly action in resolving his marital problems. The accused is not an uneducated man. He is an officer of the law, holding the rank of a lance corporal at the material time. There is nothing to indicate or suggest that he was by nature a violent and aggressive man or that he was afflicted by a history of mental or emotional problems. On the contrary, from his demeanour in court, he gave an outward impression of being a calm and collective person. 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 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 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 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 out a knife and stab his wife to death.

Whilst on the subject of the knife, let me digress for a moment and consider the allegation of the accused that he bought the knife for self-protection as he felt he was being followed by 2 men after he alighted from a bus at Satok Road, Kuching, on 2.3.96. He said it was also because he had earlier received threats through the telephone when he was in Kuala Lumpur and that he was disadvantaged by the loss of use of his right hand.

....

In short, I find his explanation of the matter to be totally untrue. In my view, he had purchased it for some dark motives which culminated in the eventual stabbing of his wife Maray. It was not for the purpose of self-protection as he alleged. Thus, on a thorough and comprehensive consideration and evaluation of the whole evidence, I am unable to find any substance or merit in the defence of grave and sudden provocation raised by the defence. It has no application on the facts and circumstances of this case ....

(a)	that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;
(b)	that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the power of such public servant;
(c)	that the provocation is not given by anything done in the lawful exercise of the right of private defence.

(i)	The offender must have done the act whilst deprived of the power of self-control.
(ii)	He must have been so deprived by reason of the provocation.
(iii)	The provocation must have been grave and sudden.
(iv)	The provocation must not have been sought by the offender.