On the law of private defence – Amer Hamzah Arshad

Published: 6 January 2016 9:26 PM

Self-preservation is the basic human instinct and is duly recognised by law. When a person is confronted with a sudden and impending danger to his person or property, the law recognises the right of the said person to defend himself or his property within certain limits.

Recently, the media was abuzz with the news of a father who was charged with murder and causing grievous bodily harm to persons whom were alleged to be robbers.


There have been countless comments, discussions and even criticisms on the Internet over the decision of the Attorney-General’s Chambers to charge the said person despite his claim that he was acting in self-defence.


Since the case is now before the court and the complete facts are not made available to be public, it is therefore improper to discuss and comments about the case as it will be unfair and may cause injustice to the relevant parties.


Be that as it may, in view of the interest that the case has garnered from the public, it is best if we could take this opportunity to understand the law and scope of self-defence or private defence (as it is known in the Malaysian Penal Code). It is hope that this brief write up will provide some basic understanding on the law of private defence.



General principles on the law pertaining to private defence


Does the law recognise the right to private-defence?


Yes, Section 96 of the Penal Code states that if a person commits an act, and the act is done in the course of exercising his private defence, then such action is not an offence. The right of private defence covers the right to defend our body and property (Section 97 of the Penal Code).


Are there any restrictions to the right to private defence?


Yes, the right to private defence has limitations and does not apply in certain circumstances. The restrictions can be seen under Section 99 of the Penal Code. The important restrictions which have to be noted are that there is no right of private defence in cases where a person has time to seek the assistance and protection of the public authorities, and that the right of private defence does not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence.


As an example, if A has time to seek the assistance and protection of the police, then A cannot take matters into his own hands.


Another example is if A’s house was broken into by B. A is able to apprehend and immobilise B, then A cannot inflict any unnecessary injury or cause death to B.



Private defence of body


If a person is protecting his body, does the right to private defence extend to causing death to the assailant or wrongdoer?


Yes, but ONLY in situations which are set under Section 100 of the Penal Code, and there are as follows:


- Where a person is being assaulted and he reasonably believes that the assault by the wrongdoer may cause death or grievous hurt to him.


- Where a person is being assaulted and the intention of the wrongdoer is to commit rape.


- Where a person is being assaulted and the intention of the wrongdoer is to gratify his unnatural lust.


- Where a person is being assaulted and the intention of the wrongdoer is to kidnap or abduct the person.


- Where a person is being assaulted and the intention of the wrongdoer to wrongfully confine the person, and the person reasonably believes that he will be unable to seek assistance from the public authorities.


ONLY in the above situations, can the death of the wrongdoer be justified in law. Therefore, if the action of the wrongdoer does not fall within the aforementioned categories, then the action of a person in causing the death of the wrongdoer can never be justified as an act of private defence.


As an example, A is being attacked with a knife or machete by B. A reasonably apprehends that the attack by B may reasonably cause death or could cause grievous hurt to him. A in the cause of defending himself caused the death of B. A commits no offence and can rely of the defence of private defence.


Another example, if C is about to be raped by B. C in the cause of defending herself caused the death of B. C commits no offence and can rely of the defence of private defence.


So, if a situation where the danger is not one of those that has been set out above, what can a person do in order to defend himself?


If the offence is not of any of the descriptions enumerated in Section 100 of the Penal Code, a person can only cause harm other than death, and this is subject to the restrictions mentioned in Section 99 of the Penal Code as discussed.


When does the right to defend our body start?


A person’s right to defend his body starts from the moment he reasonably apprehends that there is a danger to himself arising from an attempt or threat by the offender, and that such right continues as long as the person believes that the danger to himself continues.



Private defence of property


If a person is protecting his property, does the right to private defence extend to causing death to the offender?


Yes, but subject to the following conditions:


- There is no time to have recourse to the protection of the public authorities.


- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.


And can apply ONLY if the offence is an offence of any of the descriptions as set out under Section 103 of the Penal Code, namely:


(a) robbery;


(b) housebreaking by night;


(c) mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;


(d) theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised..



As an example, A’s house is being broken into by B at night. A does not have the time to seek assistance or protection from the police. A has the right to defend his property, but in defending his property, A cannot inflict any harm more than it is necessary for the purpose of the defence. The moment A is able to arrest or immobilise B, he cannot harm or cause death to B.

Another example, A is being robbed by B, and A does not have the time to seek assistance or protection from the police. A has the right to defend his property. A in the cause of defending his property from being robbed had used proportionate force but inevitably caused the death of B. A commits no offence and can rely of the defence of private defence.


So, in what situation is a person not allowed to cause death to the wrongdoer in the course of defending his property?


If the offence is theft, mischief or criminal trespass, NOT of any of the descriptions enumerated in Section 103 of the Penal Code, a person can only cause harm other than death to the offender, and subject to the restrictions mentioned in Section 99 of the Penal Code.


When does the right to defend our property start?


Section 105 of the Penal Code states:


- The right of private defence of property commences when a reasonable apprehension of danger to the property commences.


- The right of private defence of property against theft continues till the offender has effected his retreat with the property, or till assistance of the public authorities is obtained, or till the property has been recovered.


- The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death, or hurt, or wrongful restrain, or as long as the fear of instant death, or of instant hurt, or of instant personal restraint continues.


- The right of private defence of property against criminal trespass or mischief, continues as long as the offender continues in the commission of criminal trespass or mischief.

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The right of private defence of property against housebreaking by night continues as long as house-trespass which has been begun by such housebreaking continues.



Miscellaneous


What if in the course of exercising the right of private defence against a deadly assault, an innocent bystander is unavoidably harmed?


Section 106 of the Penal Code clearly states that if, in the exercise of the right of private defence against a deadly assault or an assault which reasonably causes the apprehension of death, the person who is being attacked (defender) is in a situation where he cannot effectually exercise his right without causing harm to an innocent, then the defender’s right of private defence extends to the running of that risk.


As an example, A is attacked by B who attempts to murder him. A cannot effectually exercise his right of private defence without discharging his firearm to B, and A cannot fire without risk of harming young children who are nearby. A commits no offence is by so firing he accidentally harms any of the children.



Summary


In short, based on what have been set out above, the following summary of the law pertaining to the right to private defence can be deducted:


- Self-preservation is the basic human instinct and is duly recognized by law. The law recognises the right of private defence within certain limits.


- The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger. The danger must not be the created by oneself. The right of private defence does not include an act of retaliation.


- A mere reasonable apprehension is enough to put the right of private defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if a person apprehends that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.


- The right of private defence commences as soon as a reasonable apprehension arises and continuous during the duration of such apprehension.


- It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. So each case will have to be assessed based on its own facts and circumstances.


- In private defence the force used by a person must not be wholly disproportionate or much greater than necessary for protection of the person or property.


- The Malaysian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.


- A person who is under imminent and reasonable danger of losing his life or limb may in exercise of private defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. – January 6, 2016.


* Amer Hamzah Arshad reads The Malaysian Insider.


* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.