Table of Contents

Private Defense.............................................................................................................................2
Protection of own/ others body........................................................................................................2
If falls under S 100.........................................................................................................................4
If does not falls under S 100..........................................................................................................5
Protection of property...........................................................................................................................6
Private Defense
Private defense if the right to defense provided under S 96 to S 106 of PC. It is a complete
defence that absolve any guilt even where the accused has voluntarily causing death of a
person. It should be noted that this right only available to the accused who is suddenly
confronted with the immediate necessity of averting an impending danger. This means that
the danger must not of his creation.

Protection of own/ others body

The general rule for right of private defence is provided in S 96 of PC whereby it states that
nothing is an offence if a person done in order to exercise the right of private defense. In
other words, it means that if it is proved that a person has the right to private defense, he will
be acquitted.

The right to private defence is further stated in S 97(a) of PC whereby it stipulated that
everyone has a right to defend his own body, and the body of any other person, against any
offence affecting the human body as long as it does not fall within the restrictions provided in
S 99 of PC.
Thus, it is important to note that the right of private defense is subjected to those restrictions
mentioned under S 99 of PC. S 99(4) of PC provides that the right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the purpose of
defence. Hence, if the accused inflicted more harm to the victim than necessary for the
purpose of defence, he will not have the right to private defence.
S99 of PC provides that
(1) There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by a
public servant acting in good faith under colour of his office, though that act may not
be strictly justifiable by law.
(2) There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under colour of his office, though
that direction may not be strictly justifiable by law.
(3) There is no right of private defence in cases in which there is time to have
recourse to the protection of the public authorities.
(4) The right of private defence in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defence.
S 21 of PC - public servant [use for S 99(1) and S 99(2)]
S 52 of PC states that nothing is said to be done or believed in good faith which is done or
believed without due care and attention. [use for S 99(1) and S 99(2)]
PP v Seow Khoon Kwee [use for S 99(3)]
  In this case, the accused, a prisoner, had stabbed the deceased, his fellow inmate to
death in the prison. Hence, he was being charged with the offence of murder.
However, the contended that the deceased had assaulted him at the material time, and
he therefore had no choice to stab him to death.
 However, the private defence raised by the accused was rejected by the Court on the
ground that the accused had felt threatened by the day before the assault actually
happened and he would have the sufficient time to seek for protection from the prison
officers.
Jai Dev v State of Punjab AIR

 In this case, the court laid down the principle that the person who exercising the right
of private defence must consider whether the threat to his body or property is real and
immediate. If he reasonably thinks that such threat is real and immediate, he shall be
entitled to exercise private defence. Nevertheless, such person must user force
necessary for the purpose and he must stop using the force as soon as the threat has
disappeared.
R v Cumming [factors need to be considered for S 99(4)]

 In determining whether the person exercising the rights has reasonable cause of
apprehension of death or grievous hurt; or whether the person is inflicting more harm
than is necessary, the court shall take into account:
1. The relative physique of the parties
PP v Yeo Kim Bok (act was necessary, physique of parties)

 In this case, the accused was charged with the offence of culpable homicide not
amounting to murder. During the material time, the deceased, who was of bigger build
than that of accused¸ demanded payment of a loan in an aggressive manner. Later, the
deceased even picked up a knife and rush towards the accused who had nowhere to
escape. With that, the accused picked up a wooden ladle and hit the deceased which
later caused the death.
 In deciding the case, the court stated that mere threats or force against body is
sufficient to raise the right of private defence. Hence, the private defence raised by the
accused was accepted by the Court on the ground that it was reasonable to consider
that at that material time the accused was of the apprehension that the deceased, who
was of bigger build and strength, might wrest the knife from his hand and use it
against him.

2. The frame of mind and conduct of the parties

PP v Ngoi Ming Sean (act was necessary, physique of parties, conduct of parties)

 In this case, there was an argument between the accused, who was a police, and the
deceased. However, the deceased became aggressive even after the accused showed
his police authority card. Subsequently, the deceased retreated and was being chased
by the accused. In order to convince the deceased that he was a police, the accused
 took out his revolver. However, the deceased tried to get the revolver, in ensuing the
struggle, the accused fired a shot and caused the death.
 The court, after taking consideration into all the facts and circumstances, held that the
accused was in a perilous situation where he had no time to consider any other action
other than fired the deceased and the deceased was in fact physically bigger and
stronger than him. Hence, the accused’ act was necessary.
3. Type of weapon used
Roshdi v PP (act not necessary, type of weapon used)

 In this case, the deceased confronted the accused and the latter told the former that he
need more time to pay the money. The deceased later punched and kicked the accused
and the accused took a mortar. While the deceased tried to approach the accused to
take the mortar away, the accused swung it and hit the deceased’s body. Later, the
deceased chocked the accused and the accused struck several blows on the deceased’s
head which later caused death.
 The court, after taking into consideration of the circumstances, held that the accused
had applied more force than that was necessary, by hitting the deceased with the
mortar for unnecessary several times. However, it should be noted that the court in
this case had disregard the fact that the deceased was actually stronger physique than
the accused and had overpowered over the accused.

Lee Thian Beng v PP (act was not necessary)

 In this case, the appellant, a chief inspector, went into a bar. Later, some glasses were
thrown and smashed, and fragments could be found near the tables. The deceased then
came up to the appellant’s table to expostulate. However, a dispute broke out which
subsequently caused the appellant to shot the deceased to death.
 The court rejected the private defence raised by the appellant on the ground that at the
material time, the appellant could have announced to the deceased his identity and
rank to mitigate the dispute, yet he did not do as such. In addition, the fact that the
appellant shot the deceased who was physically inferior than him by using a vicious
weapon in a situation where no resort to force was necessary had also failed the right
of private defence.

4. The nature of the wound inflicted

Wong Lai Fatt v PP (act was necessary)

 In this case, the accused had fatally stabbed the deceased who was accompanied by
two men that attempted to rape his wife.
 The court accepted the private defence raised by the accused on the ground that the
fatal stab wound was necessary to prevent rape from being carried out by the
deceased. In addition, it was also found that the accused’s act of stabbing was
reasonably necessary in such circumstances.
5. Whether there was any other way of averting danger
Lee Thian Beng v PP

 The appellant, a chief inspector, went into a bar. Later, some glasses were thrown and
smashed, and fragments could be found near the tables. The deceased then came up to
the appellant’s table to expostulate. However, a dispute broke out which subsequently
caused the appellant to shot the deceased to death.
 The court rejected the private defence raised by the appellant on the ground that at the
material time, the appellant could have announced to the deceased his identity and
rank to mitigate the dispute, yet he did not do as such. In addition, the fact that the
appellant shot the deceased who was physically inferior than him by using a vicious
weapon in a situation where no resort to force was necessary had also failed the right
of private defence.

If falls under S 100

In order to determine whether a person had fall under the situation of private defence, S 100
of PC has to be referred whereby S 100 (…) provides that a person shall have the right of
private defence if he voluntary causing of death or of any other harm to the assailant under
the situation where
(a) such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying unnatural lust;
(e) an assault with the intention of kidnapping or abducting;
(f) an assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for his release.
What is consider reasonable apprehension of danger can be determine according to
reasonable man/ subjective test.
Public Prosecutor v Dato’ Balwant Singh (reasonable man test)

 In this case, the accused was hit by the deceased with a stick. Despite the accused had
fired a warning gun shot, the deceased nevertheless kept attacking him. Hence, the
accused shot him to death. The accused was being charged for murder.
 However, the court accepted the private defence raised by the accused.
 Augustne Paul J stated that in order to determine whether there is reasonable
apprehension of danger, the test to be used is objective test. Under the test, the
question that would a reasonable man had done the same thing under the same
circumstance will be determined by the Court.
  By applying the test and taking into consideration into all facts and circumstances, the
court found out that there was apprehension of death to the accused on the ground that
the stick that used to attack him was big enough to crack an individual’s skull or
bones. Hence, the accused was acquitted since a reasonable man would also have
acted in the same manner upon the apprehension.

Ya bin Daud v PP (subjective test)

 On the way home, the accused was confronted by V and P who were both armed with
sharp instrument. V and P had attacked D and caused cut on his cheek. As a result, the
accused killed V and seriously injured P. In Session Court, the accused had been
charged with culpable homicide not amounting to murder and he appealed. The High
Court allowed the appeal.
 Nik Hashim JC held that in order to determine whether there is reasonable
apprehension of danger, the test is not the reasonable test but the subjective test. The
court had to consider whether the accused had acted reasonably to apprehend the
danger, having regard to the circumstances. By applying this test, it was found that the
accused had acted upon more that reasonable apprehension of death or grevious hurt
at the hand of V and P.

(got two different tests but in slide Mohd Nor only mentioned objective test)

Also, S 102 of PC states that the right of private defence of the body commences as soon as
a reasonable apprehension of danger to the body arises from an attempt or threat to commit
the offence, though the offence may not have been committed; and it continues as long as
such apprehension of danger to the body continues.

If does not falls under S 100

S 101 of PC stated that if the offence is not of any of the descriptions enumerated in
section 100, the right of private defence of the body does not extend to the voluntary
causing of death to the assailant, but does extend, under the restrictions mentioned in section
99, to the voluntary causing to the assailant of any harm other than death.
Protection of property
The general rule for right of private defence is provided in S 96 of PC whereby it states that
nothing is an offence if a person done in order to exercise the right of private defense. In
other words, it means that if it is proved that a person has the right to private defense, he will
be acquitted.

The right to private defence is further stated in S 97(b) of PC whereby it stipulated that every
person has a right to defend the movable or immovable property of himself or of any
other person, against any act which is an offence falling under the definition of theft, robbery,
mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or
criminal trespass as long as it does not fall under the restrictions contained in section 99.
Thus, it is important to note that the right of private defense is subjected to those restrictions
mentioned under S 99 of PC. S 99(4) of PC provides that the right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the purpose of
defence. Hence, if the accused inflicted more harm to the victim than necessary for the
purpose of defence, he will not have the right to private defence.
S99 of PC provides that
(1) There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by a
public servant acting in good faith under colour of his office, though that act may not
be strictly justifiable by law.
(2) There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under colour of his office, though
that direction may not be strictly justifiable by law.
(3) There is no right of private defence in cases in which there is time to have
recourse to the protection of the public authorities.
(4) The right of private defence in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defence.
S 21 of PC - public servant [use for S 99(1) and S 99(2)]
S 52 of PC states that nothing is said to be done or believed in good faith which is done or
believed without due care and attention. [use for S 99(1) and S 99(2)]
PP v Seow Khoon Kwee [use for S 99(3)]

 In this case, the accused, a prisoner, had stabbed the deceased, his fellow inmate to
death in the prison. Hence, he was being charged with the offence of murder.
However, the contended that the deceased had assaulted him at the material time, and
he therefore had no choice to stab him to death.
 However, the private defence raised by the accused was rejected by the Court on the
ground that the accused had felt threatened by the day before the assault actually
happened and he would have the sufficient time to seek for protection from the prison
officers.
Jai Dev v State of Punjab AIR

 In this case, the court laid down the principle that the person who exercising the right
of private defence must consider whether the threat to his body or property is real and
immediate. If he reasonably thinks that such threat is real and immediate, he shall be
entitled to exercise private defence. Nevertheless, such person must user force
necessary for the purpose and he must stop using the force as soon as the threat has
disappeared.
R v Cumming [factors need to be considered for S 99(4)]

 In determining whether the person exercising the rights has reasonable cause of
apprehension of death or grievous hurt; or whether the person is inflicting more harm
than is necessary, the court shall take into account:
1. The relative physique of the parties
PP v Yeo Kim Bok (act was necessary, physique of parties)

 In this case, the accused was charged with the offence of culpable homicide not
amounting to murder. During the material time, the deceased, who was of bigger build
than that of accused¸ demanded payment of a loan in an aggressive manner. Later, the
deceased even picked up a knife and rush towards the accused who had nowhere to
escape. With that, the accused picked up a wooden ladle and hit the deceased which
later caused the death.
 In deciding the case, the court stated that mere threats or force against body is
sufficient to raise the right of private defence. Hence, the private defence raised by the
accused was accepted by the Court on the ground that it was reasonable to consider
that at that material time the accused was of the apprehension that the deceased, who
was of bigger build and strength, might wrest the knife from his hand and use it
against him.

2. The frame of mind and conduct of the parties

PP v Ngoi Ming Sean (act was necessary, physique of parties, conduct of parties)

 In this case, there was an argument between the accused, who was a police, and the
deceased. However, the deceased became aggressive even after the accused showed
his police authority card. Subsequently, the deceased retreated and was being chased
by the accused. In order to convince the deceased that he was a police, the accused
took out his revolver. However, the deceased tried to get the revolver, in ensuing the
struggle, the accused fired a shot and caused the death.
 The court, after taking consideration into all the facts and circumstances, held that the
accused was in a perilous situation where he had no time to consider any other action
other than fired the deceased and the deceased was in fact physically bigger and
stronger than him. Hence, the accused’ act was necessary.
3. Type of weapon used
Roshdi v PP (act not necessary, type of weapon used)
  In this case, the deceased confronted the accused and the latter told the former that he
need more time to pay the money. The deceased later punched and kicked the accused
and the accused took a mortar. While the deceased tried to approach the accused to
take the mortar away, the accused swung it and hit the deceased’s body. Later, the
deceased chocked the accused and the accused struck several blows on the deceased’s
head which later caused death.
 The court, after taking into consideration of the circumstances, held that the accused
had applied more force than that was necessary, by hitting the deceased with the
mortar for unnecessary several times. However, it should be noted that the court in
this case had disregard the fact that the deceased was actually stronger physique than
the accused and had overpowered over the accused.

Lee Thian Beng v PP (act was not necessary)

 In this case, the appellant, a chief inspector, went into a bar. Later, some glasses were
thrown and smashed, and fragments could be found near the tables. The deceased then
came up to the appellant’s table to expostulate. However, a dispute broke out which
subsequently caused the appellant to shot the deceased to death.
 The court rejected the private defence raised by the appellant on the ground that at the
material time, the appellant could have announced to the deceased his identity and
rank to mitigate the dispute, yet he did not do as such. In addition, the fact that the
appellant shot the deceased who was physically inferior than him by using a vicious
weapon in a situation where no resort to force was necessary had also failed the right
of private defence.

4. The nature of the wound inflicted

Wong Lai Fatt v PP (act was necessary)

 In this case, the accused had fatally stabbed the deceased who was accompanied by
two men that attempted to rape his wife.
 The court accepted the private defence raised by the accused on the ground that the
fatal stab wound was necessary to prevent rape from being carried out by the
deceased. In addition, it was also found that the accused’s act of stabbing was
reasonably necessary in such circumstances.

5. Whether there was any other way of averting danger

Lee Thian Beng v PP

 The appellant, a chief inspector, went into a bar. Later, some glasses were thrown and
smashed, and fragments could be found near the tables. The deceased then came up to
the appellant’s table to expostulate. However, a dispute broke out which subsequently
caused the appellant to shot the deceased to death.
 The court rejected the private defence raised by the appellant on the ground that at the
material time, the appellant could have announced to the deceased his identity and
 rank to mitigate the dispute, yet he did not do as such. In addition, the fact that the
appellant shot the deceased who was physically inferior than him by using a vicious
weapon in a situation where no resort to force was necessary had also failed the right
of private defence.

Also, S 103 of PC provides that a person shall have the right of private defence if he
voluntary causing of death or of any other harm to the wrongdoer, if such wrongdoer is
committing or attempt to commit:
(a) robbery;
(b) housebreaking by night;
(c) mischief by fire committed on any building, tent or vessel, which building, tent or
vessel is used as a human dwelling, or as a place for the custody of property;
(d) theft, mischief or house-trespass, under such circumstances as may reasonably
cause apprehension that death or grievous hurt will be the consequence, if such
right of private defence is not exercised.
Furthermore, S 105 of PC has provided that
(1) The right of private defence of property commences when a reasonable
apprehension of danger to the property commences.
(2) The right of private defence of property against theft continues till the offender
has affected his retreat with the property, or till assistance of the public authorities is
obtained, or till the property has been recovered.
(3) The right of private defence of property against robbery continues as long as the
offender causes or attempts to cause to any person death, or hurt, or wrongful restrain,
or as long as the fear of instant death, or of instant hurt, or of instant personal restraint
continues.
(4) The right of private defence of property against criminal trespass or mischief,
continues as long as the offender continues in the commission of criminal trespass or
mischief.
(5) The right of private defence of property against housebreaking by night
continues as long as house-trespass which has been begun by such housebreaking
continues.
Soosay v PP (objective test) (Reasonable apprehension of danger)

 In this case, when the appellant tried to retrieve some valuables from the deceased, the
deceased took out a knife and threatened the appellant. The appellant then kicked the
deceased and the knife fell. When the deceased wanted to get back the knife, the
appellant then grabbed the knife and then stabbed the deceased several times.

 The court held that in order for the right of private defence to be successfully pleaded,
the question to be determined is whether a reasonable man had done the same
thing under the same circumstance.
  By applying this test, the court rejected the right of private defence raised by the
appellant on the ground that he exceeded the right at the moment when the knife fell
and out of the possession of the deceased, but he took it then stabbed the deceased.
There was no apprehension danger to the appellant when the knife had fallen from the
deceased’s hand and even the appellant had taken possession of it.

Mohd Rafi v Emperor AIR

 In this case, there was a dispute between the accused and deceased. Later, the
deceased approached to the house of accused, shouting out threat of setting the house
on fire. In fact, the accused had neither torches nor inflammable materials in his hand.
However, the accused upon hearing the threats shot the deceased to death.
 In deciding the case, the court stated in the case of attacking against body, a mere
threat is sufficient to show reasonable apprehension of harm whereas in the case of
attacking against property there must be something beyond mere threat. Hence, it was
held that the accused was not entitled to use the right of private defence of property to
the extent of causing death on the ground that the threat made by the deceased was not
so imminent. In addition, there were also no evidence which had shown any close
proximity act done by the deceased to carry out the threat of setting his house on fire.
 However, the Court held that the accused was entitled to private defence against body.

Jai Dev v State of Punjab AIR

 In this case, the court laid down the principle that the person who exercising the right
of private defence must consider whether the threat to his body or property is real and
immediate. If he reasonably thinks that such threat is real and immediate, he shall be
entitled to exercise private defence. Nevertheless, such person must user force
necessary for the purpose and he must stop using the force as soon as the threat has
disappeared.

Cannot cause death if dos not fall under S 103

S 104 of PC stated that if the offence committed or attempt to commit is theft, mischief or
criminal trespass, not of any of the descriptions enumerated in section 103, the exercise
of the right of private defence does not extend to the voluntary causing of death, but does
extend subject to the restrictions mentioned in section 99, to the voluntary causing to the
wrongdoer of any harm other than death.