Introduction

The right to life and to live is a right that the law enshrines in its legal frameworks and is a cornerstone of the principle of justice. The law places great importance and value on protecting individuals’ right to life, and ensuring that they are protected from any harm or arbitrary deprivation of that right. When attacked, an individual is permitted to exercise their right of self defence, to protect their right to life. This article will discuss and give a clearer picture of the principle of self defence and how it applies in different situations.

When is force permitted in self defence?

- When an individual is being attacked
- When an individual believes that they are about to be attacked
- Individuals can use self defence to protect themselves
- Individuals can use self defence to protect their property
- Individuals can use self defence if they believe that it will prevent a crime

The Principle of Self Defence:

In Malaysia, Section 102 of the Penal Code highlights the principle of self defence, which states that one is only able to exercise the right of private defence when there is a reasonable apprehension of danger. This right persists, so long as the threat exists.

There are two criteria in the principle of self defence that needs to be fulfilled. Firstly, the person acting in self defence has to use force that is reasonable and proportional in the circumstances they believe themselves to be in. The second part of this is that the person has to believe it was necessary to use that force in self defence. The two key words here are ‘reasonable’ and ‘necessary’, which this article will further discuss soon.

Not only can self defence be used to defend yourself, but it can also be used to defend one’s own property. Section 103 of the Malaysian Penal Code (1) states that the right to self defence extends over property and even to the point of causing death to the assailant should their offence constitute a robbery, house breaking at night, mischief by fire, theft or trespassing. There are, however, conditions that have to be applied when using self defence to protect property, which is highlighted in Section 105 of the Penal Code. It mainly states that the individual practising self defence will not be protected by self defence laws once the assailant has fled the property. Their right to self defence only continues as long as the assailant is on their property and causes or attempts to cause anyone death, harm or if there is fear of such possibilities. Once the offender has left a person’s property, they are not permitted to run after that in pursuit of revenge under the guise of self defence. The following course of action that is left for them to take is to refer to public authorities for help.

As such, it begs the question of, how far can self defence go? Section 100 of the Malaysian Penal Code (1) states that self defence can be used up to the point of death to the attacker if the situation involves:

- Apprehension of death
- Apprehension of grievous hurt*
- Intention to rape*
- Intention to gratify unnatural lust
- Intention to kidnap or abduct
- Intention to wrongfully confine

In any other circumstances, according to section 104 of Malaysia’s Penal code, it is unacceptable for an individual to voluntarily harm an assailant up to the point of causing death.

Simply put, the principle of self-defence means that:

- “The individual acting in self defence is entitled to use force that is reasonable in the circumstances as they believe them to be” -- This means being allowed to use defence to any charge of violence up to and including the use of lethal force.
- The person acting in self defence must believe that it was necessary to use said force to defend themselves from an attack or imminent attack on themselves or others or to protect property or prevent crime.
- The amount of force used has to be reasonable in the circumstances and the dangers the person believes themselves to be in

There are two key concepts when it comes down to self defence. Necessity and reasonability, as previously mentioned. The person acting in self defence has to believe that it was absolutely necessary to use force in the circumstances that they believed themselves to be in. That being said, it does not matter if the person misinterpreted their circumstances, as long as they genuinely believed they were being threatened, they are entitled to act in self defence. For example, if an individual believes that they are about to be attacked by a man with a sword, and act in self defence against them, but only after they have defended themselves they realise that the man is actually dressed as Peter Pan with a fake sword to go along with the costume on Halloween, the reaction of acting in self defence is still valid, as long as the individual genuinely believed they were at risk of being harmed. There is an exception to this belief, and that is which the mistaken belief of being in a dangerous situation is due to voluntary intoxication (4).

Reasonability is another factor that needs to be taken into account when looking at self defence. An individual’s self defence has to be proportional to the amount of harm they believed themselves to be in. The court understands that in the heat of the moment where a person is under threat, they may not be able to have a reaction that is exactly proportional to the threat that they are facing. However, if the person had only done what they thought was necessary in the situation they believed themselves to be in, that in itself would provide a good enough defence. To give a simpler example, if you are punched in the face, the reasonable self defence would not be to strangle that person to death.

However, that example is arguable. If you believe that you are in imminent danger, because you believe that your assailant is not going to stop hurting you after throwing the first punch, and you believe that their future actions are capable of inflicting grievous bodily harm upon you, then according to the principle of self defence and Section 100 of the Malaysian Penal Code, strangling your assailant in response to their punch can be argued to be proportionate and reasonable.

One thing to bear in mind when defending self defence is that a jury will usually be told that self defence fails if the prosecution is able to prove beyond reasonable doubt that a defendant’s actions does not conform to the principles of self defence. (4)

Now, to apply our newfound knowledge of self defence, let’s look at a range of cases. First up: Regina v. Rose (1884) 15 Cox 540 (3).

The accused in Regina v. Rose was charged with the murder of his father. The defence argued that the murder only occurred because the accused genuinely believed that the murder was necessary to prevent the death of his mother by his father. With this defence, the accused was acquitted* of murder on the grounds of self defence. This case shows where the principle of self defence persisted. As required, the accused genuinely believed that the murder was necessary in order to prevent another crime from being committed. The self defence taken by the accused had been proven to be proportional to the harm he believed himself and his mother to be in, making it reasonable and proportional. Thirdly, the defendant rightfully used self defence because he was in a situation where he believed that his actions would prevent another crime, making it in line with the principles of self defence.

The next case we shall look at is Beckford v R (1988) AC 130, which shows how the principles of self defence may apply when there is an imminent threat of attack (5).

The accused in this case, had made ten petrol bombs after his shop was damaged during the Toxteth riots. He used the bombs as a defence against the rioters, in case they came back to ruin his shop and attack him. Fortunately, they never came back, but the accused was then charged with an offence of having an explosive substance in his possession with the possibility of having it for unlawful reasons. The defendant then had to prove that he was in possession of those substances and committed his act for lawful purposes. The Court of Appeal agreed that a jury might have found the use of the petrol bombs reasonable as a form of self defence against an imminent attack, and if that was the case, the defendant had the bombs for lawful purposes and would not be guilty for the offence charged. In the case of self defence, the defendant can be cleared of the offence of possessing explosive substances should they prove they did not have it for unlawful purposes.

The third case we will look at is a local Malaysian case. In Salahuddin Orah v. PP, the defendant goes beyond self defence laws and its principles, resulting in a loss for the defendant.

In Salahuddin Orah v. PP, the defendant killed their assailant and claimed that they were defending their own private property by doing so. The deceased tampered with the accused’s vegetables on his oil palm plantation, leading to an argument between them. After three days, the accused killed the deceased. The laws and principles of self defence don’t apply here as there is a gap of three days between the destruction of the vegetables and the reaction of the accused. Section 105 of Malaysia’s Penal code states that the right to self defence regarding property only applies if the accused has not left the property. In this case, the deceased had left for three days.

Conclusion

This article discussed the basic principles of self defence laws, regarding the genuine belief of a defendant that they are in danger or in imminent danger, and the necessary action they took because of their belief. This article also goes over the nuances of the Penal Code under the Malaysian context to highlight the specifics of self defence laws locally. Furthermore, this article also goes over cases where the principle of self defence persists, and where it does not, in cases regarding apprehended attacks and the right to protect property.

GLOSSARY*

1. Grievous harm - Harm that can result in permanent injuries such as the deprivation of sight of either eye, hearing of either ear, impairing powers of any member of joint, disfiguration of head or face, any hurt endangering life, or hurt that causes the victim to be (during the space of 10 days) in severe bodily pain or unable to follow his ordinary pursuits (2)
2. Acquitted - Declaring someone with a criminal charge with a verdict of ‘not guilty’, thus, setting them free.
3. Intention to rape

BIBLIOGRAPHY

1. A Citizen's Guide to Self Defence, Vox Malaysia
2. Penal Code Section 320 - Grevious Hurt
3.The Law Says That Homicide Is Excusable - Alexi
4. Self Defence Law - Good Sense
5. Self Defence Case - LawTeacher