Melbourne University Law

An even more contentious area in which ethnicity might be considered is in determining the power of self-control of the reasonable person. It is argued that people of different cultures "have already been deeply conditioned by [their] customs and traditions… [which] would have moulded his emotions and personality to such a degree that altering them in any significant manner would be extremely difficult".

Scientific understanding of human behaviour supports this14 and courts in Papau and New Guina, Western Samoa and New Zealand have recognised certain tendencies towards quicker or slower passion inherent in certain ethnicities of their countries15. This argument is particularly compelling in Singapore, where "a significant proportion of the murder cases involve foreign victims and assailants"16 and it might be fairer to the accused if the courts were to consider their racial and cultural characteristics in determining the level of self-control the accused should have shown.

However, such a concession would also perpetuate racist stereotypes such as "the emotionally volatile Latino or the particularly aggressive Vietnamise"17. The thesis was later amended to consider the response pattern of a typical person of an ethnicity, such as the length of time to cool off and the mode of retaliation18. It seems that this narrows the class of people who can rely on ethnicity affecting self-control, and thus may be considered more acceptable to the courts, who might be wary of another broad allowance since racial characteristics already affect the gravity of provocation.

PRACTICAL DIFFICULTY TO THE COURTS

However, there is practical difficulty in allowing ethnic characteristics to figure in provocation. Judges may not share the cultural heritage of the accused, and thus require expert witnesses, but the rules of evidence may restrict the presence of such a witness19. If allowed, an expert witness' testimony may not be accurate when dealing with persons who have undergone "a high degree of integration and assimilation"20 with society.

Questions may be raised as to how accurate this testimony may be when dealing with someone who has been partially integrated, for example, a foreign worker who has lived in Singapore for five years but who largely interacts with his community of foreign workers.

CONCLUSION

It is fitting that the law strives towards objectivity to achieve equality before the law. However it should not forget that equality is also in considering the differences between ethnicities. Despite the grey areas and practical difficulties, the overarching principle of incorporating racial and cultural characteristics into the defence of provocation should still be endorsed, or we risk the injustice of holding defendants to standards they might not even comprehend.

1 AIR 1962 SC 605 2 PP v. Kwan Cin Cheng [1998] 2 SLR 345 3 See footnote 4, supra, at para 48 – 50 and Lau Lee Peng v. PP [2000] 2 SLR 628 at para 29 4 Chan Wing Cheong, 'The Present and Future of Provocation as Defence to Murder in Singapore' [2001] Singapore Journal of Legal Studies 453 at 459. 5 Chan [2001], supra, at 454 6 Stanley Meng Heong Yeo, 'Ethnicity and the Objective Test in Provocation' (1987).

Melbourne University Law Review 67 at 79 7 [1992] 1 SLR 138 8 See footnote 9, supra, at 144-5: the accused was insulted when the deceased struck him with a broom, which was "the worst insult a person could inflict" in North East Thailand.