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Right to Private Defense and Exceeding Private Defense

General Exception: sections 96 to 106 of the Penal CodeGeneral Exception: sections 96 to 106 of the Penal Code

Special exception: exception 2 to s 300 of the Penal Code Special exception: exception 2 to s 300 of the Penal Code

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Private defense

RecapRecap Difference between AR, MR and defenseDifference between AR, MR and defense Burden of proof Burden of proof

Note:Note: S. 40 (1) Except in chap. & sections referred to in (2) & S. 40 (1) Except in chap. & sections referred to in (2) &

(3)”, “offense” denotes a thing made punishable by this (3)”, “offense” denotes a thing made punishable by this codecode

S. 40 (2) In Chap. IV …. “offence” denotes a thing S. 40 (2) In Chap. IV …. “offence” denotes a thing punishable under this Code or under any other law for the punishable under this Code or under any other law for the time being in forcetime being in force

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Check-list

The kind of offense The kind of offense Check the kind of offense (person, property, whether PD extends to Check the kind of offense (person, property, whether PD extends to

causing death)causing death) Must be offense (with exceptions e.g. youth)Must be offense (with exceptions e.g. youth) TPTP V’s mistake as to whether was offenseV’s mistake as to whether was offense

Recourse to public authorities Recourse to public authorities Commencement of right to exercise PD: reasonable Commencement of right to exercise PD: reasonable

apprehension of dangerapprehension of danger Duration of the rightDuration of the right

Restrictions on how you Restrictions on how you exerciseexercise the right the right

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

97)97) Offense affecting the human bodyOffense affecting the human body Offense/attempt “theft, robbery, mischief or criminal Offense/attempt “theft, robbery, mischief or criminal

trespass”trespass”

Note: not what A thought V was doing, but what was Note: not what A thought V was doing, but what was V doing (not from A’s perspective, but perspective of V doing (not from A’s perspective, but perspective of the law”the law”

Note: PD here does not extend to causing death – Note: PD here does not extend to causing death – additional requirements s. 100, 101, 103, 104additional requirements s. 100, 101, 103, 104

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The kind of offence

Even if the V’s offense may not be an offense because of (s. Even if the V’s offense may not be an offense because of (s. 98)98) YouthYouth The want of maturity of understandingThe want of maturity of understanding Unsoundness of mindUnsoundness of mind Intoxication (lack of MR)Intoxication (lack of MR) Misconception/mistake (lack of MR)Misconception/mistake (lack of MR)

Not when V is justified e.g. exercising PD Not when V is justified e.g. exercising PD Mohd Sulaiman Mohd Sulaiman (coffee-shop break-in, V threw hot water on A, (coffee-shop break-in, V threw hot water on A,

struggle, A stabs V with screwdriver)struggle, A stabs V with screwdriver) Held: “almost ludicrous” to suggest A exercising right to PD - V Held: “almost ludicrous” to suggest A exercising right to PD - V

“doing no more than exercising his right of PD over property”“doing no more than exercising his right of PD over property”

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Third parties

Third partiesThird parties Has right to PD against assault “which reasonable Has right to PD against assault “which reasonable

causes the apprehension of death” & there is risk causes the apprehension of death” & there is risk of harm to TP (s. 107)of harm to TP (s. 107)

Can TP defend against A’s PD? Can TP defend against A’s PD?

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Reasonable mistakes

A made mistake about fact under attack? (s. A made mistake about fact under attack? (s. 79)79) ““good faith”: must be made with “due care and good faith”: must be made with “due care and

attention” (s. 52)attention” (s. 52)

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No recourse to public authorities

No PD if you had time “to have recourse to the protection of No PD if you had time “to have recourse to the protection of the public authorities” (s. 99 (3))the public authorities” (s. 99 (3))

Seow Khoon Kwee Seow Khoon Kwee (prison fight)(prison fight) Held: A was in prison – could have had recourse to protection of public Held: A was in prison – could have had recourse to protection of public

authorities authorities

Should “effectiveness” of protection be relevant? Opportunity Should “effectiveness” of protection be relevant? Opportunity to have had recourse enough? to have had recourse enough? What if the A made a mistake on opportunity to have recourse? What if the A made a mistake on opportunity to have recourse? YMC position: 20.13 --- what authority? Cf. code framer’s objectives YMC position: 20.13 --- what authority? Cf. code framer’s objectives

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Commencement of PD right

A must have reasonable apprehension of danger (s. 102, s. A must have reasonable apprehension of danger (s. 102, s. 105(1))105(1))

Standard of reasonableness: case law requires to be objective Standard of reasonableness: case law requires to be objective

Dato Balwant Singh Dato Balwant Singh (road rage, V attacks A with stick, A fires (road rage, V attacks A with stick, A fires warning shot)warning shot) Held: test of reasonable apprehension “objective test” – armed with Held: test of reasonable apprehension “objective test” – armed with

stick vs gun, injuries “superficial” – but the stick was “not an ordinary stick vs gun, injuries “superficial” – but the stick was “not an ordinary twig”, “big enough to cause person’s skull or bones to crack”twig”, “big enough to cause person’s skull or bones to crack”

““it is not the injuries already inflicted but the injury that may be it is not the injuries already inflicted but the injury that may be inflicted”inflicted”

““no obligation on the A to run away”no obligation on the A to run away”

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Commencement of right

Ya bin Daud Ya bin Daud (A chased home, A gets weapon, (A chased home, A gets weapon, confronts attackers in house compound)confronts attackers in house compound) Held: reasonable apprehension – “question of fact”Held: reasonable apprehension – “question of fact” Consider weapon used, manner of using, nature of Consider weapon used, manner of using, nature of

assault, surrounding circumstances assault, surrounding circumstances Alone, cornered, wife crying --- there was Alone, cornered, wife crying --- there was

reasonable apprehension though silat instructor, reasonable apprehension though silat instructor, younger and strongeryounger and stronger

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Commencement of right

Note that reasonable apprehension requirement – not only that Note that reasonable apprehension requirement – not only that the apprehension is reasonable, the A must actually have acted the apprehension is reasonable, the A must actually have acted under such apprehensionunder such apprehension

Cham Yang Song Cham Yang Song [2005] SGHC 142 (para. 42)[2005] SGHC 142 (para. 42) A claim V push A first, A bent to pick up specs, saw V approaching A claim V push A first, A bent to pick up specs, saw V approaching

and swung arm and swung arm Held: A stated he “did not know” whether V was going to attack – Held: A stated he “did not know” whether V was going to attack –

cannot have been under “any” reasonable apprehension of danger.cannot have been under “any” reasonable apprehension of danger. Do you think the facts support this finding? He may not have Do you think the facts support this finding? He may not have

been sure – does not mean not under “apprehension”been sure – does not mean not under “apprehension”

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Duration

PD right ends when no more reasonable apprehension of PD right ends when no more reasonable apprehension of danger danger Difference between reacting in PD vs acting for retaliation Difference between reacting in PD vs acting for retaliation

SoosaySoosay Held: when V took out knife, A kicked him & this was PD; when V Held: when V took out knife, A kicked him & this was PD; when V

disarmed no more reasonable apprehensiondisarmed no more reasonable apprehension ““objective inquiry” – now A had knife, A’s friend still thereobjective inquiry” – now A had knife, A’s friend still there

What do you think? Was this too strict? What do you think? Was this too strict? Consider that all events occurred very quicklyConsider that all events occurred very quickly consider the difference between actually being in danger and consider the difference between actually being in danger and

reasonably apprehending that you are in dangerreasonably apprehending that you are in danger

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Duration

Pre-emptive nature Pre-emptive nature

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

Dato Balwant Singh Dato Balwant Singh ““does not have to wait till he is actually attacked or does not have to wait till he is actually attacked or

inflicted with injury”inflicted with injury” BWS?BWS?

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DurationDuration What about PD for property? Commences when What about PD for property? Commences when

Robbery – as long as V “causes or attempts to cause to any Robbery – as long as V “causes or attempts to cause to any person death or hurt or wrongful restraint” and the “fear or person death or hurt or wrongful restraint” and the “fear or instant death or of instant hurt or of instant personal instant death or of instant hurt or of instant personal restraint continues”restraint continues”

Criminal trespass or mischief – as long as V “continues in Criminal trespass or mischief – as long as V “continues in the commission or criminal trespass or mischief”the commission or criminal trespass or mischief”

House-breaking – as long as “house-trespass which has House-breaking – as long as “house-trespass which has been begin by house-breaking continues”been begin by house-breaking continues”

PD for property PD for property only commences when V is doing something – not just only commences when V is doing something – not just

threat to commit the crime against property threat to commit the crime against property Not pre-emptive – must wait for V to do something Not pre-emptive – must wait for V to do something

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Duration Recovery for theftRecovery for theft

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

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

Mir Dad v Emperor Mir Dad v Emperor If either of these limbs effected – property owner no more If either of these limbs effected – property owner no more

right to pursue PD against thiefright 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 PD right – “in no case extends to the inflicting of more harm

than it is than it is necessarynecessary for the purpose of the defense” for the purpose of the defense” Objective testObjective test

doesn’t matter what A thinks doesn’t matter what A thinks But don’t weigh with golden scales But don’t weigh with golden scales

Jai Dev Jai Dev ““inappropriate to adopt tests of detached objectivity” – “should not be inappropriate to adopt tests of detached objectivity” – “should not be

weighed in golden scales”weighed in golden scales” Vijayakumar Vijayakumar [2005] SGHC 221 (para. 52)[2005] SGHC 221 (para. 52)

““one should bear in mind the difficult circumstances during a struggle 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 and that there would not be the luxury of time and calmness to think about the possible courses of action to take”about the possible courses of action to take”

““should not weigh the proportionality of A’s response on golden should not weigh the proportionality of A’s response on golden scales”scales”

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Restrictions on right to PD NecessityNecessity

Case law has interpreted this as requiring a reasonably proportionate responseCase law has interpreted this as requiring a reasonably proportionate response Case law has not interpreted this as the minimum possible response required to Case law has not interpreted this as the minimum possible response required to

avert harm (would be very strict) --- avert harm (would be very strict) --- butbut some case law in applying to the facts some case law in applying to the facts appear to advocate such a strict standard (appear to advocate such a strict standard (Soosay)Soosay)

Dato Balwant Singh Dato Balwant Singh Don’t need to “coolly reflect on his right or measure his blows before Don’t 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 defending himself”; “not bound to modulate his defense step by step before the right to defend himself can begin”right to defend himself can begin”

Can make sure that his defense is “effective”; even when V is “disarmed” but Can make sure that his defense is “effective”; even when V is “disarmed” but there is “possibility of him wrestling weapon from the defender”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 not obliged to retreat but may pursue his adversary till he finds himself out of danger”danger”

Compare Compare Balwant Singh’s Balwant Singh’s explanation with explanation with Soosay’s Soosay’s application to facts – application to facts – was was Soosay Soosay too strict?too strict?

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Restrictions on the right to PD

Reasonable necessity – what factors to look at in Reasonable necessity – what factors to look at in objective inquiry?objective inquiry? Size, weaponsSize, weapons What about the A’s emotional state? What about the A’s emotional state?

Wong Lai Fatt Wong Lai Fatt (A stabs V who attempting to rape A’s (A stabs V who attempting to rape A’s wife)wife) Held: noted that V was accompanied by 2 others; also Held: noted that V was accompanied by 2 others; also

noted “extreme provocation offered…so outrageous that noted “extreme provocation offered…so outrageous that the degree of force used …ought not to be measured in the degree of force used …ought not to be measured in delicate scales to be judged as excessive”delicate scales to be judged as excessive”

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Restrictions on the right to PD

Roshdi Roshdi V, who was bigger and stronger than A, was V, who was bigger and stronger than A, was

choking A and reaching for gun. A grabbed a choking A and reaching for gun. A grabbed a stone mortar and hit V two or three times on the stone mortar and hit V two or three times on the head killing him. V was charged with murder)head killing him. V was charged with murder)

HeldHeld:: D’s plea of private defense failed because, D’s plea of private defense failed because, by striking V more than once with the mortar, he by striking V more than once with the mortar, he had inflicted more harm than necessary contrary to had inflicted more harm than necessary contrary to s 99(4).s 99(4).

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EPDEPD

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

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Elements of EPD Soosay Soosay (elements based on wording of exception 2)(elements based on wording of exception 2)

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

than was necessary than was necessary

Note:Note: What does (b) add? You must be acting in good faith else What does (b) add? You must be acting in good faith else

your right to PD doesn’t arise. your right to PD doesn’t arise. For (d) what matters is not objective inquiry but what the A For (d) what matters is not objective inquiry but what the A

thought)thought)

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EPD EPD

What does this mean?What does this mean? Exception 2Exception 2“in the exercise in good faith“in the exercise in good faith of the right of private of the right of private

defence”defence” S. 52 “Nothing is said to be done or believed in good faith S. 52 “Nothing is said to be done or believed in good faith

which is done or believed which is done or believed without due care and attentionwithout due care and attention.”.” But if you are doing PD with due care and attention (reasonably But if you are doing PD with due care and attention (reasonably

necessary force) – you are exercising PD and not within EPDnecessary force) – you are exercising PD and not within EPD Case law e.g. Soosay: interpreted this to mean honest belief Case law e.g. Soosay: interpreted this to mean honest belief

you are exercising PDyou are exercising PD YMC: case law ignores PC s. 52 YMC: case law ignores PC s. 52

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

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Excessive PD

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

This is not recognized in the common lawThis is not recognized in the common law What is the rationale of having this defense in the What is the rationale of having this defense in the

PC?PC? YMC: notes that this should be recognized as a YMC: notes that this should be recognized as a

partial defense to preserve distinction with PD partial defense to preserve distinction with PD

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EPD in application Soosay Soosay

Right to PD Right to PD Consider why the court held that this right did not arise Consider why the court held that this right did not arise

Considering EPD Considering EPD ““We are satisfied that Soosay acted in good faith in defending We are satisfied that Soosay acted in good faith in defending

himself…” himself…” test is subjective “the use of a knife on an enraged but unarmed 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 person, in our view, cannot be justified when that person can surely be quietened by other means, for example by a few well-aimed be quietened by other means, for example by a few well-aimed punches or being subdued physically …”punches or being subdued physically …”

““The right of PD, if it is at all applicable in this case, was far 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 exceeded by Soosay and the learned trial judge was right to have rejected this defense”rejected this defense”

What did the court decide?What did the court decide?