A tree never hits an automobile except in self-defence.
– Woody Allen, American Film personality
Sometimes people are tempted to think that the country’s laws regarding self-defence appear to be unfair, especially after they read in the papers that a victim of a car theft was recently arrested for severely assaulting the thief.
This isn’t the first time; there were previous cases where people were arrested for ‘protecting’ themselves.
Is the law on the side of the criminals while the victims are punished for defending their properties, families or themselves? Can’t blame people if they think so!
In the latest incident in Kuching, a video clip showing a man attacking an alleged car thief went viral. Police are remanding the assaulter until July 27 for further investigation under Section 323 and Section 506 of the Penal Code for causing hurt and criminal intimidation.
Which comes to mind of a case in July 2017 when a Yemeni student in Serdang – a victim of a snatch thief – was arrested and charged in court after he knocked down the criminal with his car, killing the man instantly.
The thief fled on his motorcycle and the victim got into his car and gave chase. In the ensuing pursuit, the student caught up with the thief and crashed into his motorcycle, causing the latter to fall off his machine. He died from serious head injuries.
Police said the victim had gone beyond the limit of self-defence when he caused the death of the thief.
The law says citizen’s arrest can be made, but should not result in the death of a suspect. The student was charged under Section 304 of the Penal Code for culpable homicide not amounting to murder.
There was another case in August 2017. This time a thief was attacked for trying to steal a handphone in Kota Kinabalu. Newspaper reports said police were looking for assaulters but I am not sure what happened to the case.
Perhaps the public can’t be blamed for their negative reactions; it should be expected as the people think that it’s okay for victims to retaliate.
“Most of us react with anger when we fall victim to such thefts. If someone else has been a victim, public empathy may also turn into an emotional outburst that can result in an attack on the suspect, as has been proven in many cases when suspects are apprehended by the public.
“That is why we have cases of suspects being beaten up after being nabbed by people. However, it is our duty to explain that unless and until the law is amended, we must be guided by legislation,” says social activist Tan Sri Lee Lam Thye.
He has a point. For example, if we make a citizen’s arrest under Section 27 of the Criminal Procedure Code, we must hand over the suspect to the police and avoid actions that will inflict serious injury on the criminals.
Actions triggered by anger are not justified, as the victims may end up prosecuted.
“A martial arts exponent, for example, can use his skills to overpower a snatch thief if he is a victim, but it does not warrant him to seriously injure or kill the thief, especially if the thief is fleeing.
“There is a fine line between an act of self-defence and a criminal offence. Therefore, it is advisable for the public to be cautious about the issue of self-defence,” explains Lee.
I remember a case in Johor in 2018 when a 32-year old man was arrested for allegedly killing an armed robber who broke into his home. While you and I think that the poor chap was only defending his property and family – and obviously himself – it can easily appear as though the law sides the bad guys.
If we look carefully into Sections 96-106 of the Penal Code, we will realise that we have the right to defend ourselves – even if causes death in situations like rape, kidnapping, robbery, or arson.
This is first stated in Section 96 of the Penal Code: “Nothing is an offence which is done in the exercise of the right of private defence …”
But Section 97 regarding rights of private defence of body and property, also stresses: “Every person has a right, subject to the restrictions contained in section 99, to defend…”
While Section 96 and Section 97 simply state that we have the right to defend ourselves against harm to us and others, and our property, these rights are not absolute – there are limitations.
We can only use ‘reasonable force’ to defend yourself; but what is ‘reasonable’?
According to asklegal.my, Section 99 of the Penal Code explains acts against which there are no right of private defence (in part):
“(3) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
“(4) 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.”
Meaning, we cannot claim self-defence if we had time to seek protection (calling the police, for example) or when we used more force than necessary to ensure our safety.
Getting the opportunity to seek protection may be straightforward enough, but most of the misunderstanding comes from not using more force than necessary, or reasonable force.
Anyway, according to asklegal.my, “At the end of the day, the law has to remain objective regardless of the circumstances – if someone was killed, an investigation is required regardless of whether the victim was a robber or world-changing philanthropist.”
In the meanwhile, we just have to understand that we can’t take the law into our own hands.
