Private Defense v Defense of Necessity

Criminal law is a powerful instrument which has been established not only to deter crimes but
more than that to preserve the lives of human beings. Thus, Malaysian Penal Code was enacted
not only to provide punishments to the offenders but beyond that, it provides rights for the
society to defend themselves from any criminal acts against them under various types of self-
defenses. Both private defense and defense of necessity are the cornerstones of self-defense
recognized under the code. But many are trapped in the discussion on how to compare and
distinguish between both and when to apply each of them. Thus, this writing is going to delve
into a critical exploration on the similarities and differences between both types of defenses in
various aspects. The first aspect is the circumstances and conditions which commence both rights
to defense, their requirements or preconditions, nature of threats, types of interest protected
under both defenses, the extension in the application and their limitations.

First, the position of both defenses under the Malaysian Penal Code is clear though neither is
explicitly defined in the code. Private defense is governed under section 96 to 106 of the code
which covers all the preconditions, limitations and extent in the application. While defense of
necessity is established under section 81 of the code.

Second, in terms of the question on when does both rights commence? Ajaib Singh J in the case
of Public Prosecutor v Ngoi Ming Seani meticulously highlighted the prerequisites for the right
to private defense to commence:

“The right of private defence commences as soon as there is a reasonable

apprehension of danger to the body and this right continues so long as such
apprehension of danger continues”.

Thus, the existance of the right of private defense critically hinges on both the existence of
reasonable apprehension of danger and its continuance. In the case of Nachitin v State,ii the
accused failed to raise right to private defense since the apprehension of danger was no longer
exists after he left the hut. On the other hand, under section 81 of Malaysian Penal Code right to
defense of necessity commences when all three conditions fulfilled. First, when the accused was
put in a situation where he is forced to act in a criminal manner. Second, the force is due to
overwhelming and dangerous circumstances. Third, the criminal manner taken by the accused
must be in order to avoid greater evil or harm. The imminent danger which dominates the
accused must continue when the accused practices the defense. This principle has been frimly
established in the case of Sarwar v State. iii Thus, both private defense and defense of necessity
differ in how they exist but similar in the continuity of the apprehension of danger. In private
defense there is non-existence of the requirement to balance between the evil committed and the
harm overwhelmed. However, in defense of necessity, the evil avoided must be worse than what
committed by the accused.
The third material comparison between both defenses are the preconditions to the rights. For
private defense both prerequisites are highlighted in section 97(a) and section 99(3) of the code.
From section 97(a), the first precondition is the existence of offence against own body or body of
other. While the other condition highlighted in section 99(3) is that there must be no time to
recourse authority’s protection. These preconditions have been affirmed in the case of Mickelson
Gerald Wayne v PPiv where Harmindar Singh Dhaliwal FCJ has meticulously drawn the
guidelines in determining whether the right to private defense exists. Firstly, there must be an
offence against the human body (in the case of protecting own body or body of others) and
secondly, there must be no time to recourse authority’s help during the time. However, this right
is subjected to specific conditions and limitations. First, the right to defend under private defense
only arises when there is reasonable apprehension of immediate imminent harm. Second, the
infliction of harm cannot extend to what is more than necessary to avoid harm. On the other
hand, the preconditions to raise defense of necessity consists of three main elements which has
been highlighted under section 81 of the code. First, the harm must be extreme and immediate.
Second, the illegal act must be committed without any criminal intention v and lastly, the act must
be done in a good faith. These preconditions have been illustrated in the case of PP v Ali bin
Umar & Orsvi where in this case, the respondents who are Indonesian seaman was charged for
carrying tin-ore in Malaysian water without permission. The respondents raised defend of
necessity and contended that the rudder of their boat has malfunctioned and subsequently forced
them to enter into local craft in distress. The court held that, since it was necessary for the
respondents to seek shelter and save their lives by shifting their direction entering local craft, the
defense of necessity raised was allowed. Through this case, it can be understood that the defense
of necessity hinges on three conditions which are the harm must be extreme and immediate, the
act committed without criminal intention and in a good faith. Thus, the preconditions in raising
both defenses are quite similar in terms of the extreme harm and the intent of the accused not to
commit crime but merely to preserve lives.

The fourth comparison between both defenses is the nature of the threat. In general, both
defenses as mentioned above are similar in terms of the harm which must be immediate and
imminent harm. For private defense, the requirement for immediate imminent harm has been
highlighted in the case of Pendakwaraya v Marzuki Salleh vii where in this case the court has
highlighted the principle to raise private defense which consists of three requirements which
firstly, the accused must during the material time confronted with immediate necessity to avert
the impending danger which not created by him. Secondly, the danger must be present, real and
apparent and thirdly, the offence committed by the accused must be committed purely as
preventive measures and cannot go beyond that. Thus, revenge or any criminal intents are not
allowed. While under defense of necessity, the prerequisites to immediate and imminent harm
are clearly illustrated in the case of R v Dudley. viii Though in this case, the rule applied by the
court was not correspond with section 81 of the code, the elements of immediate and imminent
harm were successfully existed in this case. In this case, there are a total number of four man
including the two accused and a 17-year-old boy were cast away to the high seas. They had been
on the boat for 20 days including 8 days without food and 6 days without any water to drink.
Thus, the two accused decided to kill the 17-year-old boy and eat his flash and drink the blood to
survive. However, days after they killed the boy they got rescued and subsequently charged with
murder. The case depicts the immediate imminent harm which paramount in defense of
necessity. Thus, both defenses share a common nature of threat where both require the danger to
be immediate and imminent.

Next, in terms of the question whether the accused can exercise the right before the assailant
inflicts the harm? Both defenses allow the accused to defend themselves before the harm
suffered. This principle under both private defense and defense of necessity has been clearly
highlighted by the court in the case of Beckford v Rix and Re Fx respectively. In the case of Re F,
there was a woman who suffered mental disability since birth and has been admitted to
psychiatric hospitality when she was a teenager. Even though she was an adult woman, however
her mental capability is similar with a toddler. During in the hospital, she developed sexual
relationship with a man who also a patient in the hospital. Worried of her potency to pregnant
and subsequent effect of the pregnancy due to her incapability, the hospital sought declaration to
be exempted from the requirement to have her consent to undertake sterilization. Court granted
the declaration and considered the issue fell under the principle of necessity.

However, both defenses differ in terms of the source of the danger. According to section 96 of
the Malaysian Penal Code, the right to defend oneself under private defense emerge when there
is an ‘offence’ affecting human body or property. However, does this means that the section
exempts any accused from the right if the assailant is unsound or lack of mind capacity who their
act is not count as a crime? Thus, section 98 of the code allows any accused to raise defense
against any act committed by those who lack mental capacity to be considered as criminals
where the act if performed by normal people, it is illegal under the law. This principle was
further asserted by the court in the case of Emperor v Bahal & Othersxi where the judges clearly
drawn the line between what counts and what not under private defense. The court emphasized
that:

“It should be noted that the right of private defence in this section does not
depend on the actual criminality of the assailant. It depends instead, solely on
the wrongful or apparent wrongful character of the act attempted by the
assailant. Therefore, where a person acted in anticipation that a criminal act was
about to be committed, he was not guilty for causing injury to the assailant”.

Thus, if the offense is committed by unsound people though the offence is not a crime under the
law, the accused still can raise the defense. On the other hand, the harm under defense of
necessity need not to be caused by offence committed by the assailants. As illustrated in the case
of Re F mentioned above, the hospital had been granted the defense of necessity though the harm
has nothing to do with any criminal act.

The fifth aspect that needs to be compared is in terms of interest protected under both defenses.
Both defenses confer the right to protect both the human body and property notwithstanding
whether it belongs to the accused or any other person. Also, the accused can defend their
property or any other person’s property under both defenses. For private defense and defense of
necessity, this right has been conferred under section 97 and 81 of the code respectively.
However, both defenses differ in the extent of the act committed in defending the interests.
Section 100(a) until (f) lists out the situations in which the accused can extend his defend under
private defense until the killing of the assailant in protecting his own body or any body of others.
While for property protection, the right also extends to the act of killing the assailant for some
types of crimes against property as conferred under section 103 of the code. These crimes
include robbery, house breaking by night, mischief by fire committed on any building, vessel or
tent where the places are functioned as human dwelling or to keep property as well as theft,
house-trespass or mischief where death and grievous hurt can reasonably apprehend in such
circumstance. Thus, the question on whether the accused can kill the assailant in defending his
interests depend on these sections. On the other hand, under defense of necessity, to determine
whether the accused can extend his right to defend by killing someone, it depends on the balance
of evil approach. NC Nigam in his book defined this principle as “one is permitted to commit a
lesser evil in order to prevent a greater evil…”. xii This principle also has been further explained
in English Law Commission Working Paper (1974) which suggests that the evil avoided must be
worse that the evil committed by the accused and must be decided objectively. In the case of Ali
bin Umar, because of the harm of not entering Malaysian Sea outweigh the effect of entering it
with permission, the court allowed the defense of necessity as prescribed under section 81 of the
penal code. While in property protection, the defense cannot amount to the act of killing people
because human life is out of all proportion to the property.

As regards the element of self-preservation, private defense allowed self-preservation. This has
been clearly stated and illustrated in both section 106 and its illustration. Thus, man can defend
his life by killing other innocent people if it fulfills all the requirements under the defense. On
the other hand, self-preservation is not allowed under defense of necessity. This principle has
been laid out by Gour in Penal Law of India where he quotes “no man has a right to take
another’s life to preserve his own”. xiii Thus, if a driver faces a hurdle in the road which force him
to choose whether to hit the hurdle and kill himself or to hit another man on the road, he cannot
raise defense of necessity if he opted to hit the man to preserve his own life.

In conclusion, private defense and defense of necessity can be considered as the cornerstone in
Malaysian Penal Code. Both have similarities and differences in respects of how they
commence? Their preconditions to be fulfilled, nature of threats and interests which both
defenses protect. In order to raise defense in court, it is paramount for defense counsel to
scrutinize the differences between types of defenses in order to succeed in court. Failure to do so
can lead to the lack of conditions and requirements under the defense resulting from choosing the
wrong type of defense under the code.
i
[1982] 1 MLJ 24
ii
[1993] AIR 225
iii
(1979) Lahore 711(2) PAKISTAN
iv
[2022] 6 MLJ 118 (FC)
v
Section 81(a) of Penal Code Malaysia (Act 574)
vi
(1982) 2 MLJ 51
vii
[2004] 5 MLJ 52
viii
(1884) 14 QBD 273
ix
R (1987) 3 AER 425
x
[1990] 2 AC 1
xi
28 Allahabad 484
xii
Law of Crimes in India (1965) Vol 1, pg 75
xiii
Penal Law of India Vol 1 (7th Ed) 1961):