Defences

Both actus reus and mens rea must be present before a crime was said to have been committed. If
the accused was able to negate either the mens rea or actus reus or both in the crime, then the
accused will not be liable. The accused is not liable because he has an excuse or he has a
justification. This can be seen when the accused successfully proved any of the available
defences.

Infancy

Infancy is a defect of the understanding, and infants under the age of discretion ought not to be
punished by any criminal prosecution whatsoever. An infant is unable to distinguish between
right or wrong or between good and bad; proof of the fact that a child is under the age of liability
is an ipso facto answer to any criminal prosecution.

Section 82 of Penal Code: Nothing is an offence which is done by a child under ten years of
age.

Section 83 of Penal Code: Nothing is an offence which is done by a child above ten years of age
and under twelve, who has not attained sufficient maturity of understanding to judge the nature
and consequence of his conduct on that occasion.

Elements:
I. Above 10 years and under 12 years
II. Has not attained sufficient maturity of understanding
III. To judge the nature and consequence of his conduct

Ulla Mahapatra v The King AIR (37) 1950 Orissa 261

Facts: A child of 9 years became angry with his friends while holding a knife. He advanced
towards one of his friends uttering threatening gestures ‘I will cut you to bits’ which he actually
did and killed the friend.
Held: The entire action could only lead to one inference, namely that he did what he intended to
do and that he knew all the time that a blow with a knife would effectuate his intention. He fully
understood the nature and consequences of his conduct on that occasion and was held guilty of
murder.

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Abdul Sattar v Crown AIR (1949) Lahore 51

Facts: A number of children had broken open the locks of two shop premises and had entered
inside for the purpose of committing theft. They selected only the valuable goods and left the
less valuable or cheap ones behind.
Held: The boys were mature enough as they knew how to break the locks and were able to select
valuable goods only. Their conduct indicated that they were not suffering from immaturity of
conduct.

A v DPP [1997] Crim LR 125

Facts: The defendant took the victim to a remote place where interference from other people is
unlikely to commit an indecent assault.
Held: The defendant brought the victim to the remote place indicating that he knew what he did
was seriously wrong.

Unsoundness of Mind

Section 84 of Penal Code : Nothing is an offence which is done by a person who, at the time of
doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law.

Elements:
I. At the time of doing the at
II. By reason of unsoundness of mind
III. Incapable of knowing the nature of the act
IV. Incapable of knowing either wrong or contrary to law

At the Time of Doing the Act

Kofri Mustafar v Public Prosecutor [2011] 4 MLJ 196

The crucial time that the accused is said to be suffering from unsoundness of mind, whether
temporary or permanent, is the time of the commission of the offence.

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By Reason of Unsoundness of Mind

Azrul v PP

Facts: The appellant killed a person. Evidence showed that after he killed that person, he showed
signs of unsoundness of mind.
Held: Defence of unsoundness of mind is not applicable even though he may not have the
motive to kill. He must have had the intention to kill when he stabbed the victim.

Public Prosecutor v Muhamad Suhaimi Abdul Aziz [2005] 2 CLJ 826

Facts: The accused was charged for the murder of his wife under section 302 of the Penal Code
at their house in Kuala Lumpur. The post mortem showed that she had suffered 26 stab wounds.
Held: The psychiatrist’s conclusion was that at the time of the incident, the respondent was of
unsound mind and did not know that his action was wrong in law. Based on the defence evidence
and on prosecution’s failure to lead evidence in rebuttal, the Federal Court agreed with the trial
judge’s acquittal of the accused/respondent on the charge of murder on the ground of insanity
under section 84 of the Penal Code.

Re Pappathi Ammal (1959) Cri LJ 724

The unconscious state known as sleepwalking and somnambulism, if proved, will constitute that
unsoundness of mind attracting the application of section 84 of the Indian Penal Code.

Jusoh v Public Prosecutor [1963] MLJ 84

Facts: The appellant, who was convicted of murder, relied on the defence of unsoundness of
mind. He had run amok for no apparent reason and slashed his sister-in-law, inflicting 12 wounds
on her, and her two children to death. He then killed a complete stranger and inflicted several
injuries to two other men. A medical officer who was with the appellant two hours after the
arrest, described him as in a daze and overwhelmed with woe.
Held: There was uncontradicted evidence that at the time of the killing, the appellant was
suffering from mania which would produce in him an irresistible impulse to do what he did.
Although irresistible impulse is no defence, the type of mania from which it springs, generally
produces the consequence that the sufferer does not know what he was doing was wrong.

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Incapable of Knowing Nature of Act

Lee Ah Chye v Public Prosecutor [1963] MLJ 347

In interpreting section 84, there must be a certain state of mind – incapacity of knowing the
nature of the act or incapacity of knowing it is wrong – but in every case this must exist by
reason of unsoundness of mind.

Incapable of Knowing Wrong or Contrary to Law

Shivraj Singh v State of Madhya Pradesh 1975 Cr LJ 1458

The word ‘wrong’ cannot be taken to mean contrary to law. Both are different in nature.
Conjunctive Interpretation (Neither wrong nor contrary to law: None of which)

Geron Ali v Emperor AIR 1941 Cal 129

A conjunctive view was taken when the accused was found incapable of knowing that what he
was doing was ‘either wrong or contrary to law’ by reason of unsoundness of mind when he did
the killing.

Azro v Public Prosecutor [1962] MLJ 321

The court took a conjunctive view when it stated section 84 required that there must be
unsoundness of mind and that it must lead to one of two consequences, either that the accused is
incapable of knowing that what he was doing was either ‘wrong or contrary to law’.

Disjunctive Interpretation (“not wrong” or “not contrary to law”)

Ashiruddin Ahmed v The King (1949) Cri LJ 255

A disjunctive view was taken when in setting aside the conviction on the grounds of
unsoundness of mind, the appellant was held incapable of knowing that his act was ‘wrong’.

Jusoh v Public Prosecutor [1963] MLJ 8

A disjunctive view was taken as no mention was made of the other element ‘contrary to law’.

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Intoxication

The general rule is that intoxication shall not constitute a defence to any criminal liability.
Intoxication can happen voluntarily or without the accused’s consent, by a third party. It is
important to show that the accused was intoxicated, causing him to be insane. He did not know
that such an act was wrong or did not know what he was doing, at the time when he committed
the crime. If the defence of intoxication was successfully pleaded, then section 86(2) requires the
court to consider the state of intoxication in determining whether the accused had formed a
specific intention to commit the crime.

Suba Singh v PP

Defence of intoxication could not absolve all criminal duty, it merely lightens the sentence.

Section 85 of Penal Code: (1) Save as provided in this section and in section 86, intoxication
shall not constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged
at the time of the act or omission complained of did not know that such act or omission was
wrong or did not know what he was doing and- (a) the state of intoxication was caused without
his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time
of such act or omission.

Elements:
i. Being in a state of intoxication
ii. Malicious or negligent act of another (s.85(2)(a))
iii. Intoxication causing insane (s.85(2)(b))
iv. No knowledge at was wrong or what accused was doing

Being in a State of Intoxication

Section 86(3) of Penal Code: For the purpose of this and the preceding section “intoxication”
shall be deemed to include a state produced by narcotics or drugs.

Chan Kwee Fong v Public Prosecutor [2010] 1 MLJ 441

The effect of intoxication of an accused person can be momentary or transient or long lasting.
The court would also consider the defence in the light of conduct before and after commission of
the crime as such conduct prior to, during and after the commission of the offence is highly

5
relevant to determine the state of mind by reason of the intoxication as different people react
differently to the same blood alcohol level.

Malicious or Negligent Act of Another

Public Prosecutor v Tan Chee Kern & Satu Lagi [2002] 1 CLJ 210

The defence of intoxication under section 85(2) was held inapplicable as the accused had
voluntarily swallowed the pills which had allegedly caused his intoxication. The person who
voluntarily gets into a state of intoxication should be responsible for his actions, unless the
intoxication was caused by malicious or negligent acts of another.

Intoxication causing insanity

Public Prosecutor v Tan Chee Kern & Satu Lagi [2002] 1 CLJ 210

The accused must establish that, at the time of the act or omission, he was by reason of the
intoxication insane, temporary or otherwise.

Public Prosecutor v Kumaran Kunchi Raman [2010] 3 CLJ 220

Facts: The accused was charged for the murder of his daughter allegedly in the presence of his
wife and his son. The alleged act took place on a Sunday when the accused was at home drinking
alcohol. An argument took place between the accused, his wife and the deceased following
which, the deceased went outside of the house and sat inside their family car parked in the garage
in front of the house. The accused then told his son to fetch him some petrol as he wanted to fill
his motorcycle with petrol. On being given a small container of petrol, the accused walked to the
car with a lighter. He opened the car door, tossed petrol inside where his wife and the deceased
were seated and struck the lighter. The accused was burnt on the chest in the resulting fire but
brushed it off, the lower body of the deceased caught fire from which she later died. The car and
garage also caught fire. The defence was that the accused was drunk and that he intended to burn
red ants infesting the garage.
Held: Although there was no scientific evidence that the accused was drunk, such scientific
results are not conclusive to determine the degree of intoxication of a person. If the accused was
not temporarily insane, then it could not be explained how the accused could kill his daughter, all
because of a minor domestic row. The act of the accused was mindless and insane. Given the
evidence, there was doubt as to whether the accused in his intoxicated state could have formed
the necessary intention or knowledge to constitute the offence of murder, the accused was
acquitted but to be detained in safe custody at the pleasure of the Sultan.

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Public Prosecutor v Tan Ho Teck [1987] 2 CLJ 85

Facts: The accused, charged for murder of his brother, was at the time of the killing suffering
from delirium tremens due to acute alcoholic intoxication. As a result, he was
incapable of knowing the nature of his act or what he was doing.
Held: The court used the language of section 84 of ‘unsoundness of mind’, rather than
section 85(2)(b); and ordered that he be kept in safe custody: “We find the accused did stab and
cause the death of his brother but he was, by reason of unsoundness of mind the time incapable
of knowing the nature of his act or that what he was doing was either wrong or contrary to law.”

No Knowledge Act was Wrong or What Accused was Doing

Chan Kwee Fong v Public Prosecutor [2010] 1 MLJ 441

For intoxication to operate as a defence, the accused must prove that by reason of his
intoxication or his insanity at the time of the act or omission:
1) He did not know that such act or omission was wrong; or
2) He did not know what he was doing.

Disjunctively

Aladin v Public Prosecutor [1964] MLJ 345

Facts: The appellant, who had consumed too much alcohol at a wedding feast, later quarrelled
with one ‘O’ but was separated by his brother. Subsequently, the appellant took a parang and ran
to the wedding where he slashed several other persons including the deceased ‘O’. On his
conviction for murder, he appealed contending inter alia that when he struck the deceased, he
was temporarily insane due to intoxication.
Held: All the evidence suggested that the accused knew what he was doing. Thus, he cannot
raise this defence even though he did not know what he did was wrong.

Consent

As long as the victim consented to any act, if the act resulted in harm, it should not be considered
as a crime. Consent means consent that is freely given, not obtained by force, threats,
inducement or deception.

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Section 90 of Penal Code: A consent is not such a consent as is intended by any section of this
Code— (a) if the consent is given by a person under fear of injury, or under a misconception of
fact, and if the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception;

*Injury (s.44): any harm whatever illegally caused to any person, in body, mind, reputation or
property.

(b) if the consent is given by a person who, from unsoundness of mind or intoxication, is unable
to understand the nature and consequence of that to which he gives his consent; Or (c) unless the
contrary appears from the context, if the consent is given by a person who is under twelve years
of age.

*Exception 1: statutory rape, when the victim is below 16 years of age, regardless
of her having given consent to the act (s375(g))
*Exception 2: culpable homicide, where the victim, who must be above 18 years of
age, consents to suffer death or risk of death (s300 Exception 5)

Consent under Misconception of Fact

Pendakwa Raya v Abdul Rahman bin Mohamad [2005] 2 AMR 204

Facts: The complainant had sought treatment from the respondent who claimed to be a powerful
bomoh, for a persisting stomach ailment that seemed untreatable by conventional medicine. The
respondent was said to have convinced the complainant that sexual intercourse was a necessary
part of her treatment and that she would die without it. The respondent’s defence throughout had
been that the complainant had consented to sexual intercourse.
Held: As section 90(a) of the Penal Code provides that it would not constitute consent if the
consent is given under a misconception of fact, the conviction of the respondent was restored.

R v Clarence (1888) 22 QB 23

The consent was not vitiated by the fraud of a husband who had connection with his wife, his
concealing from her the fact that he was suffering from gonorrhoea. Stephen J: “… the only sorts
of frauds which so far destroy the effect of a woman’s consent as to convert a connection
consented to in fact into rape are frauds as to the nature of act itself, or as to the identity of the
person who does the act.

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Other provisions for Consent

Section 87 of Penal Code: Nothing, which is not intended to cause death or grievous hurt, and
which is not known by the doer to be likely to cause death or grievous hurt, is an offence by
reason of any harm which it may cause, or be intended by the doer to cause, to any person above
eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or
by reason of any harm which it may be known by the doer to be likely to cause to any such
person who has consented to take the risk of that harm.

Ngwa Shwe Kin v Emperor (1915) 30 IC 133

Facts: The deceased believed that he had rendered himself a (sharp-edged instrument) proof and
told the appellant to test his right arm after uttering some charms. The appellant cut the arm with
his da. Unfortunately, arteries were cut and the deceased’s companions were ignorant as to the
method to check arterial bleeding. The deceased bled to death.
Held: The deceased had given his consent under a misconception of fact, erroneously believing
that he was proof against da cuts. But it cannot be said that the appellant knew of this
misconception or had reason to believe that the deceased was mistaken in thinking himself
invulnerable. The appellant certainly had no intention of causing death or grievous hurt.

Section 88 of Penal Code: Nothing, which is not intended to cause death, is an offence by
reason of any harm which it may cause, or be intended by the doer to cause, or be known by the
doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has
given a consent, whether expressed or implied, to suffer that harm, or to take the risk of that
harm. Requirement of Good Faith – Section 52: Nothing is said to be done or believed in good
faith which is done or believed without due care and attention.

Sukaroo Kobiraj v Empress (1887) 14 Cal 566

Facts: The appellant, who was unskilled in surgery, operated on a man for internal piles. The
man died from haemorrhage.
Held: The element of good faith under section 88 was not satisfied as he ‘experimented’
without any knowledge of the procedure even though he had performed at least two previous
operations. Moreover, it could not be said that the deceased had accepted a risk of which he was
aware.

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Maung Ba Thaung (1925) ILR 3 Ran 661

Section 88 was applicable to cases of corporal punishment by guardians and school teachers of
children above 12 years of age based on the rationale that when a child of over 12 years goes to
school, it is assumed that the child gives an implied consent to subject himself to the discipline
and control of the school authorities.

Section 92 of Penal Code: Any act done in good faith for the benefit of that person without
consent is not an offence if it was impossible to get consent at that critical point of time.

Public Prosecutor v Dr Nadason Kanagalingam [1985] 2 MLJ 122

Facts: The accused was charged under section 312 of Penal Code for causing a woman with
child to miscarry. He relied on the exception in section 92 of Penal Code where a medical
practitioner may, in good faith, do so if he was of the opinion that the continuance of the
pregnancy would involve the mental or physical health of the pregnant woman.
Held: The accused had not given reasonable consideration and neither had he come to a
reasonable conclusion that the miscarriage was in order to save her life. There was no
indication that the life was or would be in danger if the pregnancy was allowed to continue.

R v Flattery

Facts: The victim, together with her mother went to see the ‘prisoner’ for medical advice
to cure her fits. Having told her mother that it is needed to break nature's string, without knowing
what that is, the mother consented as long as it is for her daughter’s good. The victim then went
with the ‘prisoner’ to an adjoining room and there had sexual connection with her, making feeble
resistance, believing that he was treating her medically, and performing a surgical operation.
Held: The victim, by the fraud and false representations of the prisoner, was induced and
persuaded to allow him to touch and approach her person. There is no evidence to show that the
victim knew that the prisoner was about to violate her person, but, it appears that she submitted
to what was done under the belief that the prisoner was performing a surgical operation to cure
her of her illness. Thus, the prisoner was guilty of the crime or rape and that the conviction
should be affirmed.

Duress

Section 94 of Penal Code: Except for murder, a person committed a crime out of no choice, due
to an immediate threat of instant death to his life is of no offence.

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Explanation 1 to section 94 of Penal Code:

If a person joins an organisation on his own effort which is likely to compel him to do illegal
acts, he cannot raise the defence of duress under section 94.

Mohamed Yusof bin Haji Ahmad v Public Prosecutor [1983] 2 MLJ 167

If the accused of his own accord places himself in a situation by which he became subject to
threats of another person, whether threat may have been used towards him, the provisions of this
section do not apply.

Elements of duress:
i. Threat of death
ii. Threat is of instant death
iii. Threat is directed at person of accused
iv. Menace of threat present at time of act
v. Threat is objective in character

Threat of Death

Tan Hoi Hung v Public Prosecutor [1966] 1 MLJ 288

The threat must be of death. The basis of the defence is that the accused did not do what he did
by reason of any evil mind but by reason of having been under the threat of death.

Queen-Empress v Latif Khan AIR 1895 20 Bom 394

Any threat of extreme torture or serious injury short of death will not suffice. Nothing but fear of
instant death is a defence for acts such as where a policeman tortures any one by order of his
superior. There must be reasonable fear of instant death.

Threat is of Instant Death

Tan Seng Ann v Public Prosecutor [1949] MLJ 87

Facts: The appellant and four Chinese were detained while travelling in a car. As a result of a
key found on his person, the appellant led the police to his house, unlocked the door with the key
found and pointed to the police inspector a revolver lying concealed in a cupboard. At the trial,
he stated that two men brought a small parcel requesting him to keep it for the night. When told

11
it was a revolver, he objected. In spite of his non-cooperation, they left the parcel in his house,
took him in the car when they were stopped and arrested by the police.

Held: There was nothing on record to suggest that duress was present or continuing when the
appellant went out in the car with the other men. For the defence of duress to be succeeded, it
must be imminent, extreme and persistent.

Threat is Directed at Person of Accused

The threat must be directed at the person of the accused himself. Threats to kill one’s wife,
children, parents, etc will not suffice.

Menace of Threat Present at Time of Act

Mohamed Yusof bin Haji Ahmad v Public Prosecutor [1983]

Facts: The appellant was convicted of trafficking in dangerous drugs. He claimed that he had
been forced to do so by a Thai man who had threatened him with a pistol and told him to carry
two bags of cannabis across the border into Malaysia. If he obeyed he would be paid RM400; if
he disobeyed he would be shot. In the present case, apart from being threatened by the Thai of
being shot, he also followed him on foot by keeping a distance of 20 feet or so away.
Held: There is nothing to suggest that when the appellant placed the bags on the platform and
went to purchase the ticket such duress was present or continued to be present. Although
according to the appellant the Thai was about 20 feet away on the platform when he last saw
him, the presence of four police personnel rendered the duress no longer imminent, extreme or
persistent. If an offence is completed when all danger of instant death has been removed, the
person committing the offence is not protected under the section.

Mistake of Fact

Section 76 of Penal Code: It is a defence for a person to do anything, believing in good faith due
to a mistake of fact that he is bound by law to do it.

State of West Bengal v Shew Mangal Singh (1981) 4 SCC (Cri) 782 (SC)

Facts: There was a civil disturbance and attacks were made upon a police party. The Deputy
Commissioner of Police ordered the accused, members of the police group, to open fire. Two
persons were killed and the accused were convicted of murder.

12
Held: They were acquitted on the ground that the Deputy Commissioner’s orders were justified
and the accused were bound to obey the lawful orders of their superior officers.

Section 79 of Penal Code: An act which is done by a person, under a mistake of fact, in the
belief in good faith that he is justified by law to do so is of no offence.

Abdullah v R (1954) 20 MLJ 195 (CCA, Singapore)

Facts: The accused was charged with statutory rape of the complainant who was under 14 years
of age. The appellant contended that he thought she was over 16.
Held: If the appellant believed in good faith that the complainant was over 16, it would be a case
of mistake of fact. What the law does not forbid it allows, and what a law allows is justified by
law. However, the girl is held to be ‘incapable of giving her consent’ and that the appellant was
therefore guilty of rape.

Elements of Mistake of Fact under section 79:

i. Mistake of Fact
ii. Done in Good Faith
iii. Not Mistake of Law

Mistake of Fact

Bonda Kui v King Emperor AIR 1942 Pat 64

Facts: The accused in the middle of night saw a human dancing in a state of complete nudity
with a broomstick tied on one side and a torn mat around the waist. Thinking it was an evil spirit,
the accused removed her own clothes and with repeated blows by a hatchet, fell the thing to the
ground. The ‘thing’ was actually the wife of her husband’s brother.
Held: The conviction was set aside as she was protected by section 79 that she thought that she
was, by a mistake of fact, justified in killing the deceased who she did not consider to be a
human being but a thing which devoured human beings.

Chirangi v State of Nagpur (1952) Nagpur 282

Facts: The appellant killed his son by mistake thinking he was a tiger. He was suffering from
illness causing delusion affecting his vision.
Held: If the accused had for a single moment thought that the object of his attack was his son, he
would not have successfully raised the defence. He thought that by reason of a mistake of fact
that he was justified in destroying the deceased whom he did not regard to be a human being, but

13
who, he thought, was a dangerous animal. He was therefore protected by the provisions of
section 79.

Sulong bin Nain v Public Prosecutor [1947] MLJ 138

Facts: The appellant, who was found carrying a bag which contained two hand grenades, was
charged for carrying arms under section 3(1) of the Public Order and Safety Proclamation.
At his trial, he stated that when he was arrested, he was carrying the grenades with the
intention of handing them to the police. The issue was whether a person carrying arms with a
view to handing them to the police was guilty under that section of the law.
Held: Both sections 76 and 79 only apply to mistake of fact but not mistake of law. If a person is
deliberately carrying arms to the police station, he knows what he was carrying and he is
intentionally carrying those arms. He was not under a mistake of fact of not knowing what he
was carrying. But he was under a mistake of law of not knowing that he cannot carry those arms
even if it was intended in good faith to hand them to the police. Since it is a mistake of law and
not a mistake of fact, he is not protected neither by section 76 nor section 79.

Good Faith

Section 52 of Penal Code: Good faith requires proof of due care and attention.

Public Prosecutor v Tunku Mahmood Iskandar [1977] 2 MLJ 123

To satisfy the court of good faith, a person must show that he acted wisely and that he had
reasonable grounds for believing that he ought to do what he did.

Pendakwa Raya v Wong Haur Wei [2008] 1 MLJ 170

The defence is not made unless it is shown that the accused exercised due care and attention, i.e.
it was a reasonable mistake to make.

Public Prosecutor v Teo Eng Chan & Ors [1998] 1 MLJ 670

The defence will be rejected where there is no exercise of due care and attention in committing
the mistake of fact.

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Not Mistake of Law

Pendakwa Raya v Wong Haur Wei [2008] 1 MLJ 670

Ignorance of law is not an excuse.

Public Prosecutor v Khoo Cheh Yew & Anor [1980] 2 MLJ 235

Facts: The accused persons were charged with importing pianos, which being the product of
South Africa, were then by law prohibited gods.
Held: There is an exception to the rule of ‘ignorance of law is not an excuse’. The accused could
escape liability if he could not possibly reasonably have known of the existence of the law he
had offended.

Mat Salleh v Sarah (1883) 3 Kyshe 67

Facts: The appellant was convicted of criminal trespass under section 447 of the Penal Code in
respect of the respondent’s house. The appellant entered the house and attempted to pull it down
because he thought that he had purchased it from one Samat. When the respondent protested, the
appellant threw out the apparel, crockery, breaking and smashing them, released the goats and
tore the house completely down and carried away the materials. The dispute was whether the
appellant had the right to do what he did.
Held: Although some of the acts might have been the cause of injury and annoyance to the
complainant, it was thought the appellant may reasonably be taken to have done what he did, in
pursuance of a right. It is held to be a mistake of fact, as the appellant
mistakenly thought that he has the ownership and right over the house.

Private Defence

Section 96 of Penal Code: The act of exercising the right of private defence is not an offence.

Section 97 of Penal Code: Everyone has the right to defend:

(a) body of his own or other person against any offence affecting the human body;
(b) property of his own or other person against theft, robbery, mischief or criminal trespass or
any attempt to commit such offences.

Section 99 of Penal Code: There are four restrictions in private defence:

(1) an act done by a public servant acting in good faith under colour of his office;’
(2) an act done by a person acting in good faith under directions of a public servant;
(3) when there is time to recourse to public authorities;

15
(4) cannot cause more harm than necessary for the defence.

Act of Public Servant under Colour of Office

Explanation 1 to section 99(1) of Penal Code: A person is not deprived of his right against an
act done by the public servant unless he knows or has reason to believe that the person doing the
act is a public servant.

Bhawoo Jivaji v Mulji Dayal (1888) 12 Bom 377

Facts: The accused, a police constable on duty, suspecting the complainant was carrying a stolen
cloth went to the complainant and questioned him. The accused claimed that the statement made
by the complainant was false and wanted to hold the cloth to examine it closely. The complainant
objected and assaulted the accused, then the accused scuffled the complainant and arrested him.
The complainant charged the accused for wrongful restraint and wrongful confinement.
Held: Even though there might not have been a complete basis of fact to justify a reasonable
suspicion that the cloth was stolen property – still the complainant had not right to resist the
accused when he tried to detain the cloth, as the accused was a public servant acting under colour
of his office, and his act was not one which caused the apprehension of death or grievous hurt.

Under Direction of Public Servant

Explanation 2 to Section 99(2) of Penal Code: A person is not deprived of his right unless he
knows or has reason to believe that the person doing the act is acting in the direction of a public
servant.

Time to Recourse to Authorities

PP v Ngoi Ming Sean [1982] 1 MLJ 24 (HC, Seremban, Malaysia)

Facts: The accused, a police detective, was charged with culpable homicide not amounting to
murder. An argument broke out in the toilet when the deceased claimed he was unable to urinate
while the accused was standing there. The accused showed his police authority card but the
deceased continued to be aggressive. The accused retreated to the bar but was pursued by the
deceased, whereupon he shot the deceased in the course of a struggle when “cornered” by him.
Held: There is no right of private defence when the person has time to recourse to seek the
protection of the public authorities. However, in this case, there was no way out for the accused
as he was cornered in the small space near the toilet. The assault by the deceased had indeed
assumed a dangerous form and the accused was placed in a situation of such great peril that he
had no time to think or do anything else but to fire the shot from his revolver.

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No More Harm than Necessary

PP v Ngoi Ming Sean [1982] 1 MLJ 24 (HC, Seremban, Malaysia)

Facts: Same as above.

Held: His act which caused the death of the deceased was done in the exercise of his right of
private defence and was not in excess of that right.

Public Prosecutor v Halim Din [1999] 2 CLJ 81

Facts: The deceased had been part of an anti-vice team from an Islamic Religious Council which
had, at about 2.00am, raided the house that the respondent was visiting. In trying to escape, the
respondent, a police inspector, discharged his weapon killing the deceased.
Held: Even if the defence of self defence was justifiable, the accused had exceeded the use of
reasonable force by using his gun against a man armed only with a piece of wood.

Private Defence of Person

Section 100 of Penal Code: A private defence may extends to cause death where the offence is:
(a) assault reasonably causing the apprehension that death will otherwise be the consequence; (b)
assault reasonably causing the apprehension that grievous hurt will otherwise be the
consequence; (c) assault with intention to commit rape; (d) assault with intention to gratify
unnatural lust; (e) assault with intention to kidnap or abduct; (f) assault with intention of
wrongfully confining a person under circumstances causing him to apprehend he will be unable
to have recourse to public authorities.

Musa bin Yusoff v Public Prosecutor [1953] MLJ 70

Facts: The deceased had attacked the accused with a knife. The accused managed to wrestle the
knife from the deceased and then stabbed the latter once in the chest.
Held: If the defence requires the accused to escape further injury by resorting to less violence or
running away, this would be a greater restriction on the right of private defence than the law
requires.

Public Prosecutor v Yeo Kim Bok [1971] 1 MLJ 206

Principles of private defence of the person:

1) A defender need not wait till he is actually attacked.
2) He is not obliged to run away, the law does not require a citizen to behave like a coward.

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3) A defender may pursue the aggressor. A defender is not only not obliged to retreat but he may
even pursue his enemy till he finds himself out of danger.
4) If the defender is unable to escape, he may turn around and attack.
5) A defender need not coolly reflect on his right or measure his blows. The law does not require
that the accused should have exercised a calm and cool judgement and that he should weigh his
acts on golden scales.
6) A defender can make sure that his defence is effective
7) A defender may inflict injuries on his aggressors for the purpose of defence as well as for
preventing further aggression. Even if the aggressor is disarmed, if there is a possibility of his
wrestling the weapon from the defender, the latter has a right to use violence, but of course not to
cause his death. But he can even cause death if one of the two aggressors is still armed.

Private Defence of Property

Section 103 of Penal Code: Private defence of property may extend to cause death in case of:
(a) robbery; (b) house-breaking by night; (c) mischief by fire committed on any building, tent or
vessel which 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 consequences, if such right of private defence is not exercised.

Mohd Rafi v Emperor AIR 1949 Lah 375

Facts: A party of persons including the deceased had approached the accused’s house in a
threatening manner while armed with deadly weapons. At the same time, they were shouting out
threats of setting fire to the house. The accused, who was standing in front of his house, shot and
fatally wounded the deceased at a distance of 10 to 14 feet while the man was advancing towards
him.
Held: It is almost certain that some of them at any rate were armed with deadly weapons, and
their advance in a threatening manner must undoubtedly be held to have given rise in the mind of
the accused to a reasonable apprehension that he was about to sustain grievous injury at their
hands, and it must accordingly be held that in firing his gun so as to cause fatal injuries to
Ibrahim he did not exceed the right of defence of the body.

Accident

Section 80 of Penal Code: A lawful act, done in a lawful manner, with proper care and caution
if resulted in a crime by an accident or misfortune, will not be considered as an offence.

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Elements of Accident:
i. The act was an accident or misfortune;
ii. It was a lawful act done in a lawful manner by lawful means; and
iii. The act was done with proper care and attention.

Accident or Misfortune

Ratnam v R [1937] MLJ 222

To constitute a defence, the act must be unintentional and a pure accident.

Lawful Act, Lawful Manner and Lawful Means

Jagesher v Emperor (1923) 24 Crim LJ 789

Facts: A woman interfered in a fight between her husband and the accused while carrying a baby
on her shoulder. The accused accidentally struck the baby and it died two days later from the
effect of the blow.
Held: Although the child was hit by accident, it was held the accused was not entitled to the
protection of section 80 because at the time, the principal act of the accused in beating a person
was not a lawful act.

Kong Poh Ing v PP [1977] 2 MLJ 199

Facts: The accused told her boyfriend that she wanted to commit suicide as he had betrayed her.
When she showed him a knife, he hugged her and told her not to die. He then attempted to
wrench the knife from her. They fell and he was ‘accidentally’ stabbed in the stomach.
Held: The defence of accident was allowed, as it was yet to be an unlawful act of attempting to
suicide by mere words.

Proper Care and Caution

State Government, Madhya Pradesh v Rangaswami AIR 1952 Nag 268

Facts: The respondent fired on the deceased under the impression that it was the hyena which
had been seen in the vicinity on the previous day. His companions also shared the impression. At
the time of shooting, it was raining, the sky was overcast and visibility was poor. The respondent
said he had not expected a human being to be there and the object he had aimed had a brown
covering. The deceased was wearing agunny sack at that time.

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Smith v Emperor (1925) 53 Cal 333

Facts: The accused was driving a car at night at 10 miles per hour. He entered a road which was
under repair and was closed to traffic. He ran over two coolies sleeping on the road with their
bodies completely covered up except for their faces.
Held: The accused was not guilty of causing death by rash and negligent act as it could not be
said that he should have looked out for persons making such abnormal use of the road. The
accused had no mens rea and it was therefore a pure accidental act or misfortune.

Necessity

Section 81 of Penal Code: Acts done with the knowledge that it is likely to cause harm, but
done without any criminal intention in good faith for the purpose of preventing other harm to
person or property.

Explanation to Section 81: It must be considered whether the harm to be prevented was so
imminent as to justify or excuse the risk of doing anything that is likely to cause harm.

Public Prosecutor v Ali bin Umar [1982] 2 MLJ 51

Facts: The respondents had been charged under section 49(1) of the Customs Act 1967 for
carrying tin-ore in a local craft without the permission of the Director-General of Customs. They
claimed as a defence that their boat had a broken rudder forcing them in distress to enter
Malaysian waters.
Held: Necessity justified the respondents to enter the Malaysian waters on specific reasons that
their boat was in distress due to the broken rudder. In those circumstances, it would be necessary
for the respondent to seek shelter for the safety of the boat and to preserve the lives of the crew
in such distress.

Muhammad Sarwar v State PCD (1979) Lahore 711(2)

Facts: The accused and others, in order to prevent their houses from imminent danger of being
washed away or getting submerged by flood waters, erected a retaining wall. The victims started
to demolish the wall, whereupon the accused and others attacked them.
Held: Till such time that this imminent danger to their homes continued, the accused party had
the right under section 81 in taking all such actions, which in normal circumstances would
otherwise have been illegal, to prevent their houses being washed away or getting submerged due
to accumulated rain water.

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R v Dudley and Stephens (1884) 14 QBD 273

Facts: The two accused, with a third man and a 17-year old boy, were cast away on the high seas
in an open boat, 1600 miles from land. They drifted in the two boats for 20 days. When they had
been eight days without water and fearing that they would all soon die without some sustenance,
the defendants killed the boy who was likely to die first. The men ate his flesh and drank his
blood for a few days. They were then rescued by a passing vessel and were subsequently charged
with murder.
Held: If the boy had attacked the accused and tried to kill them, it is justifiable to kill him
in private defence. However, the boy did not do anything. He was an innocent who was killed
and eaten not because of any wrongdoing on his part but simply because he was the weakest. The
defence of necessity was denied.

United States v Holmes 26 Fed Cas 360

Facts: The accused with 8 other seamen and 32 passengers were in an overcrowded lifeboat.
Fearing that the boat would sink, he threw 16 passengers overboard. The crew was directed ‘not
to part man and wife, and not to throw over any women. There were no other principles of
selection.’ The next morning, the survivors in the boat were all rescued.
Held: The case does not become ‘a case of necessity’ unless all ordinary means of self-
preservation have been exhausted. The peril must be instant, overwhelming, having no
alternative but to lose our own life, or to take the life of another person. Whether or not ‘a case of
necessity’ has arisen, or whether the law under which death has been inflicted has been exercised
as to hold the executioner harmless, cannot depend on his opinion, for no man may pass upon his
own conduct when it concerns the right and especially, when it affects the lives of others.

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