PRIVATE DEFENCESECTIONS 96-106PENAL CODE ACT 574

Azarith Sofia bt Aziz

Fairuz Naziha bt Mohamad

Nor Nazifah bt Ahmad Nordin

Nur Zulaikha bt Mahadzir

Siti Nurani bt Md Zahidi

Section 96-106 of the Penal Code specifies Private Defence as a right.

Discuss all the circumstances under which this right may be legally

exercised.

INTRODUCTION

1) Private defence of person or of property is recognised by the Penal Code as a general defence.

2) If successfully pleaded, private defence will acquits the accused entirely of any offence.

The provisions on private defence are conferred under Sections 96 – 106

i. Both defence of person and property (Secs 96 – 99)

ii. Defence of person (Secs 100 – 102, 106)

iii. Defence of property (Secs 103 – 105)

OBJECTIVES

• The purposes are for protecting one’s own body and property, and also another’s body and property when immediate aid from the authorities is not readily available.

• To give authority to a man to use necessary force against an assailant or wrongdoer

THE BASIS OF RIGHT TO PRIVATE DEFENCE

The law of private defence is based on two cardinal principle:

1. Everyone has the right to defend his own body and property, as also another’s body or property

2. The right cannot be applied as a pretense for justifying aggression for causing harm to another person, nor for causing more harm than is necessary to inflict for the purpose of the defence.

Right of private defence is limited in such way it cannot be converted into right of reprisal (to retaliate):

1. Munney Khan (1971)

The right of private defence should not be allowed to be pleaded or availed as a pretext for a vindictive, oppressive, or retributive purpose.

2. PP v Abdul Manap (1956)

The complainant was not entitled to private defence as the retaliation he has made was on a much larger scale and more serious that would be possibly justified.

Section 96

General provision:

Nothing is an offence which is done in the exercise of the right of private defence.

Mahandi AIR (1930) (L) 93

• Under sec 96, a person being attacked need not to run away.

• He is justified in law if he retaliates and mounts a counter-attack.

• The condition is that the injury he inflicts in self-defence to his assailants must not be disproportionate to the injury with which he is threatened.

The right provided in Section 96 is not absolute and is subject to restrictions.

Sections 97 to 105 state the limit within which

1. the right can be exercised

2. the extent the injury that can be inflicted

3. against whom these rights can be exercised.

Section 97

“Every person has the right to defend:

a) His own body…the body of any other person…

b) The property…of himself…of any other person…”

(these rights are subjected to restrictions under section 99)

Under sec 97, the right of private defence is extended to the third party:

• R v Cumming (1891)

The accused shot the deceased in order to defence the life of his friend, Dr. Middleton. He was held not guilty of culpable homicide.

• Wong Lai Fatt v Public Prosecutor

The accused had stabbed to death a man who attempted to rape his wife.

Section 98

The right of private defence exist against an act which would be an offence, but is not an offence because of:

a) Reason of youth

b) Want of maturity of understanding

c) Unsoundness of mind

d) Intoxication on the part of the person committing the offence

e) Any misconception of fact

Section 99Restriction of private defence

The exercise of private defence is subjected to provisions of section 99.

(1) by a public servant acting under colour of his office.

(2) by a person acting under directions of a public servant.

(3) when there is time to recourse to public authorities

(4) there should, in exercise of the right, the causing of no more harm than is necessary.

There is no right of private defence

i. against an act which does not reasonably cause the apprehension of death/grievous hurt

ii. if done/attempt to be done by a public servant - acting in good faith - under colour of his office- (though that act may not be strictly justifiable by law)

Bhawoo Jivaji v Mulji Dayal

Held : no right of private defence, as the accused was a public servant acting under colour of his office.

There is no right of private defence

i. against an act which does not reasonably cause the apprehension of death/grievous hurt

ii. if done/attempt to be done by the direction of a public servant

- acting in good faith - under colour of his office- (though that the direction may not be strictly justifiable by

law)

There is no right of private defence

- in which there is time to have recourse - to the protection of the public authorities.

Public Prosecutor v Morzuki Salleh

Public Prosecutor v Morzuki Salleh

First incident

Second incident

Held : when the second incident occurred the accused had no opportunity to escape. He had no other choice but to attack the deceased back. The accused had properly exercised his right of self defence.

The right of private defence - is not extended to the inflicting of more harm than it is

necessary.

eg: A hit B with his fist, and B trying to ‘defend’ himself, stabbed A with a knife that resulting death of A.

Public Prosecutor v Halim Din

the accused had exceeded the use of reasonable force by using his gun against a man armed only with a piece of wood

Section 100

“the circumstances of which the right of private defence of the body

extends to causing death”

DEATH

KIDNAPPING / ABDUCTING

WRONGFUL CONFINEMENT

RAPEGRATIFYING UNNATURAL

LUST

GRIEVOUS HURT

“Reasonable Apprehension”

Question of fact

PP v Dato Balwant Singh (No 2)

Ya Bin Daud v PP

Section 101

“ the circumstances of which the right of private defence extends to causing any harm other than

death”

Section 100

Yes

Right of private defense extend

to causing death

No

May cause any harm other than

death

Section 102

Commencement right of private defence of the body:

1) as soon as there is fear that body is in danger

2) from an attempt to commit offence

3) or threat that the offence to be committed

4) even though the offence is yet to be committed

The right persists- as long as the fear of danger to the body continued

right of private defence ceased when the apprehension ceased

Nga Chit Tin v. The King

Ram Lal Singh v. Emperor

Emperor v. Ashrafuddin

Ranjit Singh v. State

Section 103

The right of private defence of property extends to voluntarily causing death/any other harms if:

- the offences committed/attempted to commit are:

1) Robbery

2) House-breaking by night

3) Mischief by fire

4) Theft/mischief/house-trespass (there is reasonable apprehension death or grievous hurt will be consequence)

Reasonable apprehension of danger:

Defence of person – mere threat is sufficient

Defence of property – threat must be so imminent to amount to an attempt to commit offence

Mohd Rafi v Emperor

Section 104

Circumstances where right of private defence extends to causing any harm other than death

If the offences of / the attempt to commit offences of- theft, mischief or criminal trespass (offences not described in

section 103)

The right of private defences extend to voluntary causing to the wrongdoer of any harm other than death.- but does not extend to voluntary causing of death- subject to restrictrion in section 99

Mohd Rafi v Emperor

Section 105(1)

Commencement and continuance of the right of private defence of property

(1) Begins when reasonable apprehension of danger to the property commences

Reasonable apprehension of danger:

Defence of person – mere threat is sufficient

Defence of property – threat must be so imminent to amount to an attempt to commit offence

Sec 105 (2)

• The continuance of right of private defence of property against theft

(def of theft sec 378)

The right of private defence continue until the offender:

i) has effected his retreat with the property

Amar Singh v State of Rajastan

ii) assistance of the public authorities is obtained

iii) the property has been discovered

JarhaChamar v Surit Ram

Sec 105(3)

The continuance of right of private defence of property against robbery.

(def of robbery sec 390)

The right of private defence continues as long as the offender:

i) causes or attempts to cause any person death, or hurt, or wrongful restrain.

ii) the fear of instant death, or instant hurt, or of instant personal restraint.

Sec 105 (4)

The continuance of right of private defence of property against criminal trespass or mischief.

(def of criminal trespass Ssec 441)

(def of mischief Sec 425)

The right of private defence of property against continues as long as the offender continues in the commission of crime.

Sec 105(5)

The continuance of right of private defence of property against house-breaking by night

- continues as long as house-trespass which has been begun by such house-breaking continues.

Sec 106

Extend of right of private defence against a deadly assault when there is risk of harm to an innocent person

When there is an assault which reasonably causes the apprehension of death

- the defender in a situation that he can’t effectively exercise the right without risking harm to an innocent person

- his right of private defence extends to the running of that risk

(ILLUSTRATION)

CONCLUSION