"Can I kill my aggressor?"
Practising Self Defense in the context of Malaysian law.
“Can I kill my aggressor while defending myself? Can I be sued if I kill him involuntarily while practising self defense?“
These are some of the most frequent questions I receive during my Self Defense classes and workshops. In a rule of law, the question is totally legitimate: Public Authorities have the mission to protect citizens (Sensu Largo) and indirectly, citizens “renounce” to execute Justice themselves. No Justice vigilantes are allowed in Malaysia.
Formed as a lawyer, I did some research in the specific context of Malaysian law. Based on the Penal Code and an excellent article of VOX Malaya, a blog held by Malaysian law students from the Law Society of University of Malaya, I decide to summarise the use and the application of Self Defense in the context of Malaysian law, called Right of Private Defense, described at Section 96 to 106 of Penal Code.
I. WHAT IS THE RIGHT OF SELF DEFENSE?
According to Malaysian Law, the right of Self Defense is the right for a person who is attacked to “justify in law the right to retaliate and to mount a counter attack provided that the injury he inflicts is proportionate to the injury which he was threatened with”. It applies to the
- the right to protect oneself and others from physical harm
- the right to protect one’s property from harm (section 96 and 97 of Penal Code) .
II. PRIVATE SELF DEFENSE
“ Can I kill someone trying to kill or to rape me? “
In exercising private defence, one can retaliate to the point of causing death to the assailant when it involves;
- (a) apprehension of death
- (b) apprehension of grievous hurt
- (c) intention to rape
- (d) intention to gratify unnatural lust
- (e) intention to kidnap or abducte
- (f) intention to wrongfully confine,
when there is a reasonable apprehension of danger. "Apprehension" means "risk". This last condition is extremely important. Let's illustrate it with another question, more in accordance of our Krav Maga and Self Defense classes:
“Can I use a Gun against an aggressor holding a knife, threatening me?”
YES. The type of weapon used is not as important as the existence of a reasonable risk of death or grievous harm because a man who is assaulted is not bound to modulate his defence according to the attack, until the defender believes he is safe from danger. He is not obliged to retreat, but may pursue his aggressor until he finds himself out of danger. And if he happens to kill in the conflict, it is justifiable even if his actions might seem a little excessive to a perfectly cool bystander.
As mentioned in the VOX article, Therefore, "the question to be used in Malaysia in such cases will be whether there was a reasonable apprehension of such danger, not whether there was an actual continuing danger. The law in Malaysia gives greater latitude to a person who is attacked. He is not required to stop before there is reason to believe that the threat from the attacker is over."
III. PROTECTING A THIRD PARTY
“ Can I use all means necessary to protect my beloved ones from aggression which can lead to their death? “
Yes. In a famous case, a man was accused of murder by the Public Prosecutor (PP) after he had used a knife to kill a man who was raping his wife. The Court declared that Self Defense was justified by section 100 of the Penal Code to do so. As such, the court ordered the release of the accused (Case Wong Lai Fatt Vs. Public Prosecutor).
IV. PRIVATE DEFENSE OF PROPERTY
“ What can I do if I find a thief in my house? Can I use all means necessary to stop him to steal my properties“
Yes. Until the wrong-doer escapes and there is no danger for yourself, or your property anymore.
The right of private defense of property even extends to causing death to the wrong-doer if the offence constitutes (a) robbery (b) house breaking by night (c) mischief by fire (d) theft, mischief or house trespass. (Penal Code) These offences must reasonably cause apprehension of death or grievous hurt to the intended victim.
It is important to know when the right of self defence of property commences and ends.
(1) Danger to property – The right to private defence of property commences when there is a reasonable risk of danger to the property.
(2) Theft – The right continues until the offender escapes, or the assistance of the public authorities is obtained, or the property has been recovered.
(3) Robbery – The right continues as long as the offender causes or attempts to cause any person death, hurt, or wrongful restraint, or as long as the fear of such possibilities continues.
(4) Criminal Trespass/Mischief – The right continues as long as the offender is in the act of either trespassing or causing mischief.
(5) Housebreaking by night – The right continues as long as the act of housebreaking persists.
V. LIMITATIONS TO PRIVATE DEFENSE
In all the questions and replies mentioned above, 2 limitations have to be taken into account:
1 - Resort to The Protection of Public Authorities: no private defense can be raised when there is time to have recourse to the protection of public authorities.
A man has been condemned for murder after he killed a wrong-doer who destroyed his garden….3 days after it happened. (Case Salahuddin Orah Vs. PP). Self Defense is not the right to revenge.
2 - The restraint of proportionality: When it comes to self defence, the principle of proportionality is important and when there is no risk of death, it is unjustified for a person acting in self defence to inflict death onto an attacker, while it can be avoided.
"Self defence is not equivalent to a license to kill and should only be exercised when there are no other options available. Otherwise, the initial victim, like the perpetrator will rightfully face the full brunt of the law as an act of murder done in the throngs of passion for revenge is no less heinous than murder done for personal gain and thus must be judged similarly in the objective eyes of the law" (VOX MALAYA).
Private Defense is closer to a right to Survival than a right of Revenge! As we have been constantly advocating in our classes and workshop, one should seek to neutralise the aggressor by any means necessary rather than to eliminate him.
Do not become the monster you were previously fighting.
Don't be tempted by the DARK SIDE… or you may finish in a dark cell!
Ben Abbes Jihad.
Founder of the Jeet Academy KL
Krav Maga Instructor
Self Defense Instructor
Curious about our classes? Try one of our group or private classes around the city.
Penal Code Of Malaysia
Vox Malaya : " A citizen's guide to Self-defence"
Rakyat post - Muhamad Zulfikli - A case of Self Defense.