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Right to Private Defense and Exceeding Private Defense

General Exception: sections 96 to 106 of the Penal Code Special exception: exception 2 to s 300 of the Penal Code

Private defense

Recap

Difference between AR, MR and defense Burden of proof

Note:

S. 40 (1) Except in chap. & sections referred to in (2) & (3), offense denotes a thing made punishable by this code S. 40 (2) In Chap. IV . offence denotes a thing punishable under this Code or under any other law for the time being in force
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Check-list

The kind of offense


Check the kind of offense (person, property, whether PD extends to causing death) Must be offense (with exceptions e.g. youth) TP Vs mistake as to whether was offense

Recourse to public authorities Commencement of right to exercise PD: reasonable apprehension of danger Duration of the right Restrictions on how you exercise the right
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The kind of offense

What kind of offense can you exercise PD against (s. 97)


Offense affecting the human body Offense/attempt theft, robbery, mischief or criminal trespass

Note: not what A thought V was doing, but what was V doing (not from As perspective, but perspective of the law Note: PD here does not extend to causing death additional requirements s. 100, 101, 103, 104
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The kind of offence

Even if the Vs offense may not be an offense because of (s. 98)


Youth The want of maturity of understanding Unsoundness of mind Intoxication (lack of MR) Misconception/mistake (lack of MR)

Not when V is justified e.g. exercising PD


Mohd Sulaiman (coffee-shop break-in, V threw hot water on A, struggle, A stabs V with screwdriver) Held: almost ludicrous to suggest A exercising right to PD - V doing no more than exercising his right of PD over property
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Third parties

Third parties
Has right to PD against assault which reasonable causes the apprehension of death & there is risk of harm to TP (s. 107) Can TP defend against As PD?

Reasonable mistakes

A made mistake about fact under attack? (s. 79)

good faith: must be made with due care and attention (s. 52)

No recourse to public authorities

No PD if you had time to have recourse to the protection of the public authorities (s. 99 (3)) Seow Khoon Kwee (prison fight)

Held: A was in prison could have had recourse to protection of public authorities

Should effectiveness of protection be relevant? Opportunity to have had recourse enough?


What if the A made a mistake on opportunity to have recourse? YMC position: 20.13 --- what authority? Cf. code framers objectives

Commencement of PD right

A must have reasonable apprehension of danger (s. 102, s. 105(1)) Standard of reasonableness: case law requires to be objective Dato Balwant Singh (road rage, V attacks A with stick, A fires warning shot)

Held: test of reasonable apprehension objective test armed with stick vs gun, injuries superficial but the stick was not an ordinary twig, big enough to cause persons skull or bones to crack it is not the injuries already inflicted but the injury that may be inflicted no obligation on the A to run away

Commencement of right

Ya bin Daud (A chased home, A gets weapon, confronts attackers in house compound)
Held: reasonable apprehension question of fact Consider weapon used, manner of using, nature of assault, surrounding circumstances Alone, cornered, wife crying --- there was reasonable apprehension though silat instructor, younger and stronger

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Commencement of right

Note that reasonable apprehension requirement not only that the apprehension is reasonable, the A must actually have acted under such apprehension Cham Yang Song [2005] SGHC 142 (para. 42)

A claim V push A first, A bent to pick up specs, saw V approaching and swung arm Held: A stated he did not know whether V was going to attack cannot have been under any reasonable apprehension of danger.

Do you think the facts support this finding? He may not have been sure does not mean not under apprehension

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Duration

PD right ends when no more reasonable apprehension of danger

Difference between reacting in PD vs acting for retaliation

Soosay

Held: when V took out knife, A kicked him & this was PD; when V disarmed no more reasonable apprehension objective inquiry now A had knife, As friend still there

What do you think? Was this too strict?


Consider that all events occurred very quickly consider the difference between actually being in danger and reasonably apprehending that you are in danger
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Duration

Pre-emptive nature PD right against personal threat commences though the offense may not have been committed

Pre-emptive PD right

Dato Balwant Singh

does not have to wait till he is actually attacked or inflicted with injury

BWS?
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Duration

What about PD for property? Commences when

Robbery as long as V causes or attempts to cause to any person death or hurt or wrongful restraint and the fear or instant death or of instant hurt or of instant personal restraint continues Criminal trespass or mischief as long as V continues in the commission or criminal trespass or mischief House-breaking as long as house-trespass which has been begin by house-breaking continues

PD for property

only commences when V is doing something not just threat to commit the crime against property Not pre-emptive must wait for V to do something
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Duration

Recovery for theft

Theft: continues till offender has effected his retreat with the property or till the assistance of the public authorities is obtained or till the property has been recovered (s. 105(2))

Does any one of these limbs preclude continuance of the right?

Mir Dad v Emperor

If either of these limbs effected property owner no more right to pursue PD against thief
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Restrictions on PD exercise

PD right in no case extends to the inflicting of more harm than it is necessary for the purpose of the defense Objective test

doesnt matter what A thinks But dont weigh with golden scales

Jai Dev

inappropriate to adopt tests of detached objectivity should not be weighed in golden scales
one should bear in mind the difficult circumstances during a struggle and that there would not be the luxury of time and calmness to think about the possible courses of action to take should not weigh the proportionality of As response on golden scales

Vijayakumar [2005] SGHC 221 (para. 52)

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Restrictions on right to PD

Necessity

Case law has interpreted this as requiring a reasonably proportionate response Case law has not interpreted this as the minimum possible response required to avert harm (would be very strict) --- but some case law in applying to the facts appear to advocate such a strict standard (Soosay) Dont need to coolly reflect on his right or measure his blows before defending himself; not bound to modulate his defense step by step before the right to defend himself can begin Can make sure that his defense is effective; even when V is disarmed but there is possibility of him wrestling weapon from the defender not obliged to retreat but may pursue his adversary till he finds himself out of danger

Dato Balwant Singh

Compare Balwant Singhs explanation with Soosays application to facts was Soosay too strict?

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Restrictions on the right to PD

Reasonable necessity what factors to look at in objective inquiry?


Size, weapons What about the As emotional state?

Wong Lai Fatt (A stabs V who attempting to rape As wife)

Held: noted that V was accompanied by 2 others; also noted extreme provocation offeredso outrageous that the degree of force used ought not to be measured in delicate scales to be judged as excessive
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Restrictions on the right to PD

Roshdi
V, who was bigger and stronger than A, was choking A and reaching for gun. A grabbed a stone mortar and hit V two or three times on the head killing him. V was charged with murder) Held: Ds plea of private defense failed because, by striking V more than once with the mortar, he had inflicted more harm than necessary contrary to s 99(4).

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EPD

Exception 2.Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence, without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
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Elements of EPD

Soosay (elements based on wording of exception 2)

(a) Right to PD arose (b) Right exercise in good faith (c) Death caused without premeditation (d) Death caused without any intention of doing more harm than was necessary

Note:

What does (b) add? You must be acting in good faith else your right to PD doesnt arise. For (d) what matters is not objective inquiry but what the A thought)
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EPD

What does this mean?

Exception 2in the exercise in good faith of the right of private defence

S. 52 Nothing is said to be done or believed in good faith which is done or believed without due care and attention.

But if you are doing PD with due care and attention (reasonably necessary force) you are exercising PD and not within EPD

Case law e.g. Soosay: interpreted this to mean honest belief you are exercising PD YMC: case law ignores PC s. 52

interpret to mean you believed in good faith right to PD arose not with respect to the exercise of PD (but this also goes against the wording of exception 2 & illustration)
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Excessive PD

Special exception
S. 300, exception 2 When A exceeds what was reasonably necessary

This is not recognized in the common law


What is the rationale of having this defense in the PC? YMC: notes that this should be recognized as a partial defense to preserve distinction with PD

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EPD in application

Soosay

Right to PD

Consider why the court held that this right did not arise We are satisfied that Soosay acted in good faith in defending himself test is subjective the use of a knife on an enraged but unarmed person, in our view, cannot be justified when that person can surely be quietened by other means, for example by a few well-aimed punches or being subdued physically The right of PD, if it is at all applicable in this case, was far exceeded by Soosay and the learned trial judge was right to have rejected this defense

Considering EPD

What did the court decide?


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