FACULTY OF LAW

(FOL)

TRIMESTER 2, 2022 / 2023

PCC0012
INTRODUCTION TO CRIMINAL AND CONSTITUTIONAL LAW

GROUP PROJECT

TUTORIAL GROUP: T2 GROUP2

TUTOR’S NAME: LEE SOOK LING

NO. GROUP MEMBERS ID

1. PAN XIN YU 1221101590

2. OH SHI YAN 1221100495
3. TAY SZE MIN 1221100622
4. VALENTINI HAR T-NEE 1221100418
5. FLORANCE TIANG TEEN TEEN 1221100383

Assessment of Marks:

a) Content / 15 marks
b) Formatting / 3 marks
c) Compliance with the guidelines / 2 marks
Total / 20 marks
 Trimester 2, 2022/2023
PCC0012 - Introduction to Criminal and Constitutional Law
PROJECT QUESTION & GUIDELINES

QUESTIONS

“Private defence is a complete statutory defence under both Malaysian Penal Code
and English Common Law.”

Based on the statement above, examine and compare the right of private defence in
Malaysia and England. Support your answer with relevant authorities.
 Table of Contents
Introduction ..................................................................................................................................... 2
Contents ........................................................................................................................................... 3
Conclusion ..................................................................................................................................... 18
References ...................................................................................................................................... 19

1
Introduction
Criminal law encompasses a comprehensive set of rules and statutes that effectively
govern and oversee various aspects of human conduct, encompassing not only the regulation
of behaviour but also the establishment of suitable punishments and avenues for defence.
Speaking of defence under criminal law, a defence called ‘private defence’ is recognized in
Malaysian law and English law.

According to the law, using reasonable force to defend oneself, others, or property
against harm or the risk of harm caused by another person is known as "private defence." The
right to private defence allows an individual to use necessary and proportionate force to repel
the unlawful attack or threat of attack. It is a defence against criminal charges such as assault,
battery, or homicide. Broadly, people have the right to defend themselves against unlawful
attacks that threaten their rights by using force that would otherwise be prohibited.

In Malaysia, the concept of private defence permits people to use reasonable force to
protect themselves, their property, or other people from a serious assault. The right to private
defence is enshrined in Section 96 of the Penal Code1, which provides that the act done when
exercising the right or private defence is not an offence.

In England, the term "self-defence" is commonly used instead of "private defence".

However, the concept is fundamentally the same, referring to the legal right of a person to use
reasonable force not only to protect oneself, property, family, friends and even strangers from
actual danger or harm. 2The term "self-defence" is broader and includes the defence of others
as well as oneself.

In this project, we will be comparing and examining the scopes, exceptions and
limitations of the right of private defence in Malaysia and England, supported by statutory
provisions, cases and further research. Notably, we will also be using the term ‘self-defence’
by virtue of English law.

1
Penal Code (Act 574), s 96.
2
Javed, A., 'Intoxication and self-defence: a comparative study of principles of English law and Shari'ah' (PhD
thesis, University of Leeds 2004).

2
Contents
Private defence is a justification defence taken to defend one’s body or property. The
right of private defence not only for oneself but also includes one’s family, even to protect
others from being harmed by another person. However, it is important to note that not
everything that a person does to protect the body or property can raise the right of private
defence. There are a few conditions required to satisfy in order to raise private defence. There
are also some exceptions of private defence where the defence is not restricted. Private defence
rights and limits may be detailed in the statutes, such as the Malaysian Penal Code and English
Common Law, or case law established by legal precedents. What must be known is that the
scope, exceptions and limitations of private defence in both Malaysia and England vary to a
greater or lesser extent in Malaysia and England.

The scope of private defence encompasses the act of defending to protect one’s body
from external harm, in which the harm is apprehended by another individual. Section 96 of the
Malaysian Penal Code3 states that nothing is an offence when it was done in the exercise of
the right of private defence. In Malaysia, the right of private defence to the human body derives
from Section 97(1) of the Penal Code4. It provides that everyone has the right to protect their
own body and the body of another person from harm, subject to the limitations on the use of
private defence in Section 99 of the Penal Code.

It is said that as a human being, one has the right to protect his or others at all costs. In
accordance with Article 5(1) of the Federal Constitution5, by which no person may lose their
life or personal liberty except in accordance with the law. Therefore, it relates well with the use
of private defence, whereby each person has the personal liberty to protect himself or others;
unless the person has exercised excessive force, which is unlawful in accordance with the law.

In Pendakwa Raya v Foo Lean Seng 6, Foo Lean Seng, the accused, was accused of
killing Ang Kean Seng, also known as the deceased. The accused asked a witness to meet one
of his friends, therefore the witness followed the accused. A few minutes later, the accused and
his friend got into a fight. The owner then instructed the defendant and the deceased to leave
the place. The witness then saw the two of them going to the deceased's car and getting into a
physical fight. Later, the deceased fell down. The accused then raised the defence of private

3
Penal Code (Act 574), s 96.
4
Penal Code (Act 574), s 97(1).
5
Federal Constitution, a 5(1).
6
Pendakwa Raya v Foo Lean Seng [2018] 8 MLJ 823.

3
defence. The court ruled that there was no evidence of intention, but instead, there was an
apprehension of death created by the deceased with his parang, and there was no statement that
the deceased suffer from excessive force. Therefore, he was acquitted.

Unlike Malaysia, the right of private defence to the human body in England operates in
two spheres, where it derives from Section 3 of the Criminal Law Act 19677, stating that one
is permitted to employ private defence when necessary to protect or defend oneself from an
attack or to stop an attack on another person. The fundamentals of private defence are outlined
in Palmer v R8, which provides that letting an attacked individual defend himself is both good
law and common sense. He may do what is reasonably necessary, but only if it is reasonable to
do so within the law. In this approach, it is notable that one has the right to private defence as
long as it is regarded as reasonably necessary at the time.

In R v Rose9, the accused was found guilty of killing his father. The defence raised by
the accused was that at the time there was an honest belief that the killing was a necessary act
to prevent and protect his mother from serious assault. The court held that homicide is
excusable if the person kills another person for the sake of defending himself unless necessary.

In England, the right to life for a human derives from Article 2 of the Human Rights
Act10, which states that no one, including the authorities, is eligible to take away the right to
life from one, which synchronously one does not have the right to die. This also means that
force can be used as a means of protecting another person from harm, in so far it is believed
that using force is both reasonable and necessary. This is vis-à-vis Section 3 of the Criminal
Law Act 1967, where the right of private defence is guaranteed.

The commencement and continuance of private defence refers to the period of time
when the right of private defence commences and continues. In Malaysia, Section 102 of the
Penal Code11 states that the right of private defence commences when there is an apprehension
of danger to the human body, and the right of private defence continues if it proceeds to bring
harm to the person. Thus, if he happens to kill his threatening party, this is justifiable. In
England, the concept of the commencement and continuance of private defence is similar
compared to Malaysia.

7
Criminal Law Act 1967, s 3.
8
Palmer v R [1971] AC 814.
9
R v Rose [2017] EWCA Crim 1168.
10
Human Rights Act 1998, a 2.
11
Penal Code (Act 574), s 102.

4
 In Alandu A/L Santhanasamy v Public Prosecutor12, the appellant and the victim had
a quarrel and subsequently got into a fight ensued and got serious when the appellant took out
a gun and hit it on the victim’s head. The wife refused to follow the instruction of the appellant
and he stabbed the victim twice in the neck, causing the victim to die. After the incident, the
appellant threatened the wife to hide the truth and only tell the story he masterminded. However,
the wife revealed the appellant's name and he was arrested. The appellant raised Section 102
of the Penal Code as one of his defences. The court held that the appellant's attempt to rely on
this provision would likewise not be helped. The right to private defence was accessible to
guard against unlawful assault, not to hold the threatening party accountable for the crime he
committed.

Lord Morris stated in Palmer v R13 if a significant attack puts someone in immediate
danger, it might call for a quick defensive response. However, using force may be done out of
retaliation or vengeance, to settle an old score, or simply out of pure rivalry once an attack is
over and there is no longer any threat. In this instance, there shall be no continued reference to
a defence requirement.

It should also be noted that the use of force must be reasonable and not excessive. In
this context, the justification for this in this situation is that private defence is meant to protect,
not to punish or retaliate. If the private defence turns out to be excessively done, it will be
regarded as hatred and mere protection.

In Malaysia, in order to identify whether the force was reasonable or excessive, it is

vital to look into Section 100 of the Penal Code14 which states that a person can exercise
private defence if one is faced with the descriptions regarding the assault of (a) reasonable
apprehension of death, (b) reasonable apprehension of grievous hurt, (c) the intention of
committing rape, (d) the intention of gratifying unnatural lust, (e) the intention of kidnapping
or abducting, and (f) the intention of committing false imprisonment. However, if the assault
does not fall under the descriptions of Section 100 of the Penal Code, as stated in Section 101
of the Penal Code15, it will extend under the restrictions mentioned in Section 99, which will
be regarded as an excessive use of force.

12
Alandu A/L Santhanasamy v Public Prosecutor [2014] 2 MLJ 508.
13
Palmer v R [1971] AC 814.
14
Penal Code (Act 574), s 100.
15
Penal Code (Act 574), s 101.

5
 In Musa Bin Yusof v PP16, the appellant had been convicted of culpable homicide. It
was found out that the appellant was first attacked by the deceased with a piece of iron and that
by the time he struck the fatal blow, the same piece of iron has passed from the deceased’s
possessions into his own possession. The court held that as the initial attempt had been stopped,
the appellant's right to private defence had not been violated. The question was not whether
there was an actual continuing danger, but whether there was a reasonable apprehension of
danger. If this is the case, the appellant is not required to flee but instead can go after the
threatening party until he is no longer in danger. However, if this results in a fight between
them, such killing is justifiable. Therefore, this shows that there was a necessity for him to
exercise private defence.

English legislation focuses more on what is reasonable in the context of the accused's
perception of the circumstances at the time, which identifies the reasonableness of force
through the reasonable test as stated in Section 76(9) of the Criminal Justice and
Immigration Act 200817, stating that the question of whether the defendant used a reasonable
amount of force is determined by the facts, as they existed at the time and in the defendant's
opinion were reasonable. The court would ask and answer the two questions of “whether the
use of force was necessary in the circumstances” and “whether the use of force was necessary
in the circumstances”. If it was considered excessive, the court will regard this use of force as
an offence. This proves that this is more of a subjective test and relies more on the reasonable
thinking of the jury and not on the objective element unlike Malaysia, which relies on Section
100 of the Penal Code.

In Armani Da Silva v United Kingdom18, The police had to conduct a manhunt after
four suicide bombers detonated devices on the London transit system. However, officers from
London Metropolitan Service mistook the deceased for the suspect and killed him. According
to the court's case law, the question to be decided was whether the person believed that the use
of force was required and whether their belief was subjectively reasonable given the situation
at hand. The court determined that it would be difficult to believe that the belief had been held
honestly and genuinely if it had not been subjectively reasonable, or had not been supported
by subjectively sound reasons.

16
Musa Bin Yusof v PP [1953] 1 MLJ 70.
17
Criminal Justice and Immigration Act 2008, s 76(9).
18
Armani Da Silva v United Kingdom [2016] ECHR 5878/08.

6
 This point is illustrated by the case of R v Duffy19, the accused was convicted of killing
her husband. She had been a victim of domestic abuse and needed to defend herself. The court
held that the accused was not guilty of manslaughter as the defence of private defence was
upheld by the court. In this circumstance, this shows that the use of force was reasonable and
necessary.

Re-examining the Palmer v R20 case, Lord Morris said that if there has been an attack
and private defence is reasonably justified, it will be understood that a person defending
themselves cannot weigh precisely the exact measure of their defensive action. The jury's belief
that the person had only taken what he had honestly and instinctively deemed essential in a
moment of unanticipated suffering would be the strongest evidence that only reasonable action
had been taken.

In Fenning v H.M. Advocate21, an accused was charged on an indictment with theft

and murder. He lodged a special defence of private defence. However, he was found guilty of
both charges after trial. He filed an appeal after being found guilty of murder. Lord Cameron
also narrated the detailed facts of the case. He stated that if a person uses harsh excess and more
force than is necessary for his defence that cannot legally be considered private defence. As a
result, it is important to match the case's facts to the definition of private defence.

In short, the right of private defence to the human body is a vital defence in both
countries where it protects and governs human rights. The right is recognized in every legal
system and it is the primary duty of the country to preserve the life of the individuals. Therefore,
it is important for one to exercise private defence in order to protect themselves from harm.

Aside from protecting their body, the scope of private defence encompasses also the
legal right to use reasonable force to protect their property. One has the right to safeguard their
property from damage, hence the concept of private defence is typically related to property
rights. It is vital to note that private defence rules range greatly between countries and even
within jurisdictions. The private defence of Malaysia and England have similarities and
differences between them. The Penal Code of Malaysia recognises the right to private defence,
including the defence of property, by virtue of Sections 97(b) and 106 of the Penal Code. In
England, the self-defence of property is stated under Section 3 of the Criminal Law Act 1967.

19
R v Duffy [1949] 1 All ER 932.
20
Palmer v R [1971] AC 814.
21
Fenning v H.M. Advocate [1985] JC 76.

7
 Section 97(b) of the Penal Code22 stipulates that whether one's property is movable or
immovable, committing or attempting to perform any act that constitutes theft, robbery, chief,
or criminal trespass is an offence. From the standpoint of, Section 97 of the Penal Code
establishes the general right of persons to defend their own or another person's body against
offences against the human body. Furthermore, it protects property, whether one's own or that
of another from crimes.

In one of the cases in Malaysia, Public Prosecutor v Donny Kok and another23, the
accused parked his car and suddenly a car bumped into his car in the wrong lane and the
deceased came out from the car with a machete, so-called ‘parang’. To prevent harm from the
deceased against himself and his property, which is his car, the accused drove towards the
deceased. Upon the evidence, the court determined that the respondent had exercised his right
to private defence as there was a genuine fear of harm to his body and his property. The court
ruled that there was no responsibility on the accused to flee the danger and that the accused
might turn around and attack in the face of danger. The accused was acquitted.

Therefore, it is hardly remarkable that the right of private defence stated in the
Malaysian Penal Code is to protect the law and order, especially to protect an individual who
is in immediate danger from harm towards his body or property. It can be illustrated that
everyone has the right to act for their private defence. Certainly, there are limits to the exercise
of such a privilege in order to prevent its abuse, especially when it could be used as a
justification for a disproportionately violent response. To prevent the misuse right of private
defence, it is critical to set restrictions on its exercise. Individuals have the right to private
defence, but this right must be utilised in a reasonable and appropriate manner. The response
to a threat or attack should be proportionate to the level of danger encountered. Excessive or
disproportionate use of force can cause harm to others and destabilise law and order.

Meanwhile, unlike in Malaysia, In England, individuals have the right to act in self-
defence towards their property if they are in danger. Thus, property's defence is considered
under Section 3 of the Criminal Law Act of 1967 in England.

In Director of Public Prosecutions v Bayer and others 24, the defendants then went to
private land where genetically modified (GM) corn was being drilled. The defendants fastened

22
Penal Code (Act 574), s 97(b).
23
Public Prosecutor v Donny Kok and another [2021] MLJU 3097.
24
Director of Public Prosecutions v Bayer and others [2004] 1 WLR 2856.

8
themselves to drilling tractors, disrupting that activity and killing the deceased. During the trial,
the defendant claimed that their actions were lawful in order to safeguard the environment since
GM crops could cause damage to nearby property. In this situation, the respondents acted in
this manner because they were certain that the seed posed a risk to adjoining land and realised
that lawful actions would not help them as what they were doing was neither illegal nor criminal.
On the other hand, the judge ruled that the defendant's actions were acceptable in light of the
situation and were within the scope of common law private property defence.

In brief, the similarities and differences between individuals that have the right to
private defence between Malaysia and England are that both require an imminent threat or
danger for the right of private defence to be relevant. To be justified in using force to protect
one's own property, the threat must be immediate and present. The first significant distinction
between the laws of both jurisdictions is the nature of the defendant's belief in the threat. Under
English law, the defendant is merely required to have an honest belief about the danger in
question, regardless of whether or not such an honest belief is reasonable. On the other hand,
Malaysian jurisdiction requires that the defendant have a reasonable belief in the apprehension
of risk.

In Malaysia, according to Section 103 of the Penal Code25, the right to private property
defence extends to the voluntary infliction of death or other harm on the wrongdoer if the
offence, conduct of which, or attempting to commit which, necessitates the exercise of the
right., including robbery, midnight housebreaking, burglary, disorder and trespass, if there is a
possible danger of fatal injury or serious physical harm if the right of private defence is not
invoked.

In Public Prosecutor v Moo He Hong & Anor26, the deceased attempted to rob the
wife and mother of both accused at their home. The wife was harmed by the accused, and the
weapon used to inflict the damage had been retrieved. The accused apprehended, restrained
and wrestled with the deceased. Both accused claimed they were acting in private defence. The
court held that they were protected by the private defence and acquitted them. As there was no
concerted and joint action to the causing of the death of the deceased, they had no common
intention to kill him. The death of the deceased was a result of their rash act.

25
Penal Code (Act 574), s 103.
26
Public Prosecutor v Moo He Hong & Anor [2017] MLJU 1777.

9
 Therefore, under Section 103 of the Penal Code27, the cases have proved that in some
conditions, humans have the right to private defence. Robbery is one of these offences, which
involves the unauthorised acquisition of property using force or the threat of force. Another
crime is night-time housebreaking, which is defined as the illegal entry into a house or building
at night with the intent to commit a crime. Mischief also includes the intentional destruction of
another person's property. Likewise, house trespassing is defined as unauthorised entry into
another person's home with the intent to commit an infraction. Individuals have the privilege
to make their own private defence in these restricted circumstances. However, it is important
to highlight that the exercise of the right to private defence under self-protection is permissible
only if there is a credible fear of death or serious bodily harm if such a defence is not used.

In England, one of the cases is the case of R v Martin (Anthony)28, the appellant lived
alone on Bleak House, a remote property. The property and its neighbouring structures were
deteriorated and appeared to be abandoned. As a result, the farm was the target of repeated
break-ins. One day, two deceased suddenly broke into the farm at night and keep destroyed the
appellant's property. The appellant armed with a shotgun, rushed downstairs and fired randomly
at the two deceased. He shot both attackers and one of them died from a gunshot wound to the
back. The judge held that the appellant acted in self-defence as he had the intention to protect
his property in the dangerous situation and his conviction for murder was quashed.

In short, Section 103 of the Penal Code in Malaysia recognises the right to private
defence of property. Individuals in Malaysia have the right to protect their property and others
from unlawful force or immediate danger in the presence of Malaysian law. The amount of
force employed for private defence should be appropriate. However, using more force than is
reasonably necessary may result in criminal charges. The right to private defence is likewise
recognised in England, however, it is mostly based on common law rather than specific statutes.
The concept of reasonable force is critical, which indicates that a person can use force to defend
himself or others as long as the force employed is regarded as necessary and proportionate in
the circumstances.

The commencement and continuance of the right of private defence of property under
Section 105 of the Penal Code 29 Malaysia. Section 105(1) states that the right to private
defence of property begins when a reasonable apprehension of danger exists. Section 105(2)

27
Penal Code (Act 574), s 103.
28
R v Martin (Anthony) [2001] EWCA CRIM 2245.
29
Penal Code (Act 574), s 105.

10
states that after the offender retreated with the property, or until the public authorities can assist
or the property is recovered, the right to private property defence against theft remains
unaffected. Furthermore, Section 105(3) states that if the offender causes or attempts to cause
the death, injury, or unlawful confinement of any individual, or if there is a reasonable fear that
the offender will immediately kill, hurt, or restrain that person. While Section 105(4) provides
that a private right of property defence exists as long as the perpetrator continues to commit
criminal trespass or mischief and Section 105(5) states that when a housebreaking has been
initiated by a night-time trespass, the right to defend property continues while such trespass
continues.

In Salahuddin Bin Orah v Pendakwa Raya 30, the deceased’s mother asked him to
tidy up the vegetation on their field. Later, the deceased told his mother that he accidentally
pruned some vegetables that were grown near the plantation as well as they were concealed by
a bush. The appellant observed that the deceased had destroyed his crops when he returned
from fishing the next day. They had a disagreement. After that, the appellant went on to his
house and three times yelled his name. As he approached the door, the deceased opened the
door and shined his torchlight at him. The appellant was hiding a parang tucked under his left
thigh. Suddenly, the appellant grabbed the deceased's hair and sliced the deceased’s neck hard
using a parang. The issue was whether the appellant's injuries were inflicted with the intention
of causing death, which he knew was likely to cause death, or were done as his own private
defence because the deceased had destroyed his property. According to the evidence, the
appellant went to the deceased's house with a parang. The judge ruled that the appellant failed
to present his private defence.

In England R v Burns31 case, the defendant was involved with a prostitute. He drove
her to the woods in his car but chose not to complete the transaction. He motioned for her to
exit the vehicle, but she refused. He dragged her out of the car and then claimed self-defence
in response to an assault accusation. The court held that he lost because he failed to safeguard
his property from injury, and the Court of Appeal dismissed an analogy with a homeowner
guarding their home against a burglar.

Under Malaysian law, the right to private property defence includes the intentional
infliction of death or bodily damage on the perpetrator as long as the force employed is

30
Salahuddin Bin Orah v Pendakwa Raya [2015] MLJU 2158
31
R v Burns [2010] EWCA CRIM 1023.

11
proportionate to the threat faced and the defence is necessary and prompt. However, it is crucial
to emphasise, that the use of lethal force is often seen as a last resort and is only permitted
where there is a reasonable belief that it is necessary to avoid death or serious bodily harm.
While under England, the right to private property defence is generally governed by common
law principles. Individuals have the legal right to use reasonable force to defend their property
against unlawful intrusion or harm. The application of force must be proportionate to the threat,
and defence must be both prompt and necessary.

All in all, the private defence under property in Malaysia is critical in protecting
property owners' rights and interests. The legal system governing private defence is intended
of finding a balance between safeguarding people’s property rights and assuring the force used
is in a reasonable and defensible manner. Malaysia's legal system recognises property owners'
right to defend their possessions against unlawful intrusion. Property owners can use private
defence to take necessary and reasonable steps to safeguard their property and themselves from
imminent harm or danger. This right, founded on the idea of private defence is necessary for
sustaining a sense of security and fostering a fair and just society.

Aside from the scope, there are some exceptions to the right of private defence. The
right of private defence can be considered an exception when dealing with a person who has
an unsound mind. In the event of an assault by an unsound mind person, the defence of private
defence may be asserted under Section 98 of the Penal Code 32 in Malaysia. It is required to
consider the specific circumstances of the case, such as the degree of threat posed by the person
of unsound mind, the force used in response, and the nature of understanding of the individual’s
capacity and consequences of their response.

In Public Prosecutor v Jegathesan A/L Krishnan33, it provides that the court needs
to consider two matters to raise the defence of private defence against the act of a person who
is in insanity. First, it must be at the time of committing the act he was of unsound mind as a
preliminary issue. Second, it must be conducted tests earlier to prove that the accused was
incapable of knowing the nature of his actions as being wrong or against the law.

In England, one has the right to raise the defence of private defence against the act of a
person of unsound mind. A person of unsound mind is found not guilty while attacking a person

32
Penal Code (Act 574), s 98.
33
Public Prosecutor v Jegathesan A/L Krishnan [2019] MLJU 119.

12
due to unsound mind at that moment; simultaneously, the person who had been attacked can
raise private defence against the person of unsound mind.

In Cheeseman v R34, the appellant and his fellow serviceman (hereinafter referred to
as L) were drunk. When the appellant returned to his room, he found out L locked himself
inside. L was still drunk and was trashing the room. He threatened to kill L if L continue
smashing. The appellant went in to confront L, and later L was stabbed repeatedly by him.
Notably, the appellant was not armed until he went into the room. The appellant claimed that
he acted in self-defence as L was attacking him and that he believed that L would kill him if he
did not defend himself. The court rejected the assertion of the appellant that he acted in self-
defence. It was held that the defendant did not genuinely believe that it was necessary to use
force to defend himself. The appellant had completely lost control of himself due to his drunken
condition.

The next exception is that the right of private defence against a deadly assault when
there is a risk of harm to an innocent person belongs to the scope of private defence. It includes
assisting others who are in dangerous situations for defending. The defender must have a
reasonable belief that an innocent person is facing imminent harm or death, the force used must
be proportionate to the threat faced in that situation.

In Malaysia, the right to private defence against a fatal assault, when there is a threat of
injury to an innocent person, is outlined in Section 106 of the Penal Code. 35 In Public
Prosecutor v Azilah bin Hadri & Ors 36, the accused were charged with. The accused tried to
raise private defence as the victim posed a threat to their lives pursuant to S106 of the
Malaysian Penal Code. However, the trial court and the court of appeal both held that the
accused used excessive force and their defence was not valid.

In English law, the concept of proportionality still applies in such cases which means
the force used or the necessity and proportionate to the threat faced. If there is an immediate
risk of serious harm or death to oneself or an innocent person to prevent the harm, the law
allows the use of reasonable force, when it is believed to be necessary, the serious force used
is applicable. By virtue of R v Hichens37, the defendant and the complainant lived together.
The complainant’s ex came to their flat and threatened to beat the defendant. He came again

34
Cheeseman v R [2019] EWCA Crim 149.
35
Penal Code (Act 574), s 106.
36
Public Prosecutor v Azilah bin Hadri & Ors [2012] 8 MLJ 1.
37
R v Hichens [2011] EWCA Crim 1626.

13
on the next day. To stop the complainant from letting her ex in, the defendant grabbed her arm
and choked her, causing her to lose consciousness. The issue of the case was whether self-
defence extended to the use of violence against an innocent third party. The court withdraw the
appellant’s defence of self-defence, as there was no risk from the complainant and her ex, who
was not inside the flat, and the appellant could have called the police or left the flat.

In short, there are exceptions to raise private defence in certain instances. The use of
private defence towards people of unsound mind and innocent third parties are justifiable when
the danger faced is believed to be imminent.

Whether in Malaysia or in England, no one has an absolute right to raise private defence.
The application of private defence is subject to legal restrictions in order to prevent the right
of private defence from being misused. First, when the defence is used against a public servant,
there is a restricted right of private defence. In Malaysia, there are two provisions regarding
this restriction. According to Section 99(1) and (2) of the Penal Code38 39, one has no right to
private defence if they know the person whom they used the defence against is a public servant
or the person is under the order of a public servant. In another case, if the person is able to
provide authority whether in writing. But prior to that, the public servant is justified only if
they acted in good faith.

Based on English law, one can use private defence against police if the police do not
perform within the scope of their duties. 40 In Kenlin v Gardiner41, the appellants were 14
years old schoolboys while the respondents were police officers. At that time, the respondents
were in plain clothes. They saw the two appellants going from house to house and hence
thought the appellants were suspicious, although they were in fact innocent and did not behave
inappropriately. One of the respondents approached the appellants. Despite him showing his
warrant card to them, the appellants did not learn from the warrant card that the respondents
were police officers. They were scared and thought the respondents were strange men. Both
appellants tried to run away from the respondents, and later one after another being caught by
arm, they struggled and hit the respondents. The appellants were found guilty of assaulting the
police who were performing a duty.

38
Penal Code (Act 574), s 99(1).
39
Penal Code (Act 574), s 99(2).
40
Funk, T., 'Understanding the Development (and Surprising Deficiencies) of England's Storied Self-Defense
Law' (2021).
41
Kenlin and Another v Gardiner and Another [1966] 3 All ER 931.

14
 The issue of whether the appellants could exercise self-defence was raised throughout
the appeal. The judge ruled that as long as the assault wasn't justified, the appellants might use
self-defence to defend themselves. The respondents had committed a technical assault. The act
of the respondents grabbing the appellants’ arms was unlawful. Whether the respondents had
the power to arrest or not, the respondents did not catch the appellants for arresting purposes.
They detained the appellants to ask the question that would determine if it was right to arrest.

Furthermore, one should seek legal recourse and try to retreat from danger before
raising private defence. Conflict should be avoided if a retreat exists, and one should not rely
on their own power to exercise force if there are legal recourses available. In Malaysia, this can
be referred to in Section 99(3) of Malaysian the Penal Code 42 . If there is time to seek
protection from the public authorities, no one has the right to raise private defence. To illustrate,
in Public Prosecutor v Morzuki Bin Salleh 43, the accused was having a drink in a shop when
he saw the deceased, who was carrying a parang, ran towards him. The deceased straight-up
used the parang to hit the accused when he approached. The accused used the table to dodge
attacks from the deceased, and he ran towards his motorcycle. However, the deceased’s brother
(hereinafter referred to as Mohd) hit the accused with a plastic chair many times until he fell
down, causing the accused’s head and forehead to bleed. The deceased attempted to attack the
accused with the ‘parang’. The accused stabbed the deceased with a knife, causing the death of
the deceased.

The issue was whether the accused had an opportunity to obtain protection from the
public authority under Section 99(3) of the Penal Code. The court held that the accused did
not know beforehand that he would be attacked by the deceased and Mohd at the shop, and
hence he did not have the chance to run away. The accused used the knife only when the
deceased attacked him with the parang, to stop the subsequent attacks from the deceased and
Mohd. He had no energy and time to think but only to strike back to save himself. Hence, the
accused was acquitted.

There is English law pertaining to the retreat from danger. According to Section 76(6A)
of the Criminal Justice and Immigration Act 2008 44 , the possibility of one could have
retreated should be considered to determine the reasonableness of the degree of force used
during self-defence. However, the duty to retreat is not mandatory. The duty to retreat is used

42
Penal Code (Act 574), s 99(3).
43
Pendakwa Raya lwn Morzuki Bin Salleh [2004] 5 MLJ 52.
44
Criminal Justice and Immigration Act 2008, s 76(6A).

15
in determining whether it was necessary to use force and whether the force was reasonable. If
the only reasonable action is to retreat, then to do nothing or fight can be deemed as an
unreasonable force. It is notable that a person is not bound to retreat, even if they are capable
of doing so.45

In R v Julien 46 , the appellant claimed that the complainant threatened him with a
chopper and hence he threw a milk bottle towards the complainant. Despite the complainant
being wounded, he continued to threaten the defendant, so the defendant picked up a milk bottle
and an exhaust pipe to defend himself. The deputy chairman at the previous court provided that
the appellant was required to retreat before he used force in self-defence; however, the counsel
for the appellant claimed that only in circumstances of homicide is there a requirement to retreat
before using force in self-defence. The court held that one should act in a way that shows he is
not interested in engaging in a fight, and he must show that he is willing to temporise, detach,
and possibly make some physical withdrawals.

Moreover, the necessity of the force used can also be a limiting factor of the exercise
of the right of private defence. In Malaysia, one should not use more force than necessary for
the purpose of private defence. Excessive or unreasonable force is restricted if the danger can
be stopped by using lesser force. As private defence is merely for the purpose of protecting
oneself, the force used should be directly proportionate to the level of danger faced, not an act
of retaliation to the assault. According to Section 99(4) of the Penal Code 47 , in no
circumstances does the right to private defence include the ability to cause more harm than is
necessary. There is a similar provision pertaining to causing more harm than is necessary during
the exercise of the right of private defence, that is Exception 2 of Section 300 of the Penal
Code48. It provides that if one is exercising their right of private defence in good faith, and
causing the death of whom they exercise the right, without premeditation and without any
intention of doing more harm than is necessary, they are not convicted for culpable homicide.

In Enthiran a/l Rajoo v Public Prosecutor49, the deceased overnight stayed at the
appellant’s house. When the appellant woke up, he found out that the deceased was in his
daughter’s room naked and attempting to rape her. They started fighting. The appellant claimed
that the deceased hit him with a steel chair, and hence he struck the deceased once with a

45
Smith, J.C. and Hogan, B., Criminal Law (5th edn, 1983), p. 327.
46
Regina v Julien [1969] 1 WLR 839.
47
Penal Code (Act 574), s 99(4).
48
Penal Code (Act 574), s 300, Exception 2.
49
Enthiran a/l Rajoo v Public Prosecutor [2016] 1 MLJ 71.

16
hammer, rendering the deceased unconscious. The appellant threw the deceased’s body into a
ditch. However, the court later found out that the appellant had inflicted further blows upon the
deceased, causing the eventual death of the deceased. The court ruled that since the deceased
passed out after the first blow, it is not necessary to kill the deceased, and the appellant was no
longer in imminent danger of losing his life or suffering severe physical harm. In the court’s
view, he should retreat and stop hurting the deceased any further, and his act of repeatedly
hammering the deceased was meant to kill the deceased. Hence, the appellant had exceeded
the limits of the exercise of the right of his private defence.

In English law, the court will consider the reasonableness of one in circumstances that
led them to the use of force and the belief in the amount of force they used to self-defence.50
According to Criminal Justice and Immigration Act 2008 Section 76(5A) and (6)51 52, one
will be considered unreasonable if the level of force used is not proportionate, or grossly
disproportionate in a householder case, to the circumstances.

In R (Collins) v Secretary of State for Justice53, the claimant entered the defendant’s
house. Upon discovering the claimant, the defendant placed him into a headlock on the floor.
As a result of that restraint, the claimant lost consciousness and later suffered a serious injury.
The defendant genuinely believed the force used is necessary as he believed the claimant to be
a burglar, as he found his wife’s car key in the claimant’s hand. The court held that the law in
self-defence allowed a reasonable degree of force to be used against an intruder in all cases,
whether the force used is disproportionate or not. The claim was dismissed.

The extent of private defence is subject to several limitations in Malaysia and England,
to ensure the defendants will not go beyond their rights by claiming the use of private defence.
Simultaneously, one will not be convicted if they acted within the limitations of private defence.

To conclude, private defence both in Malaysia and in England plays a crucial role in
protecting one person or another. The law pertaining to private defence in both countries have
a slight difference but overall, the exercise of private defence should be reasonable within the
given circumstances. The scope, exceptions and limitations are to be considered before raising
private defence to prevent unjust and misused of the defendants.

50
Funk, T., 'Understanding the Development (and Surprising Deficiencies) of England's Storied Self-Defense
Law' (2021).
51
Criminal Justice and Immigration Act 2008, s 76(5A).
52
Criminal Justice and Immigration Act 2008, s 76(6).
53
R (Collins) v Secretary of State for Justice, [2016] QB 862.

17
Conclusion
In conclusion, the right to private defence is a crucial legal concept in criminal law as
it enables people to defend themselves, their property, and other people against harm in
circumstances where law enforcement may not be promptly or effectively able to do so. When
a person is under an immediate threat of harm and may not have time to seek out law
enforcement assistance, they can raise private defence to defend themselves. The recognition
of the right to private defence is also important for ensuring that the criminal justice system is
fair and just. It enables individuals to defend themselves against false accusations and to ensure
that they are not penalised for defending themselves or others in situations where the use of
force was necessary and proportionate. Additionally, the right to private defence can shield
vulnerable people from harm and prevent criminal activity. When criminals are aware that
potential victims might be able to defend themselves, they are less likely to try to perpetrate
crimes, making society a safer place for everyone.

18
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20