‘Too much defence can be murder’

PETALING JAYA: The law says you have a right to self-defence when you encounter a criminal and even if you “accidentally” kill him.

But legal experts have cautioned that there is a fine line between self-defence and murder.

A debate has been raging both online and in the media since a man was charged in court with murder after two men allegedly tried to rob him at his home in Terengganu. He stabbed both of them and one of them died.

Criminal defence lawyer Sreekant Pillai gave a fictional example of a homeowner being attacked by a knife-wielding robber and in the struggle, stabs the intruder and kills him.

“Self-defence is about reasonable force. This could be considered reasonable force and so, self-defence,” said Sreekant.

On the flip side, he said, if you ended up stabbing him three to four times, you might not be able to get away with self-defence.

“The three to four stabbings can be construed as intent. So it could be murder,” he said.

Senior federal counsel Ishak Mohd Yusoff cited an example of someone shooting dead a man who attacked him with a small wooden plank.

In this case, the “threat” from the attacker would not be deemed severe enough for him to be shot dead.

“But if I have three children with me and you attack me with a wooden plank and I shoot you, that is self-defence.

“Because I have the fear of loss or injury to my children.

“A plank can cause real harm to a child,” he said.

Section 96 and 97 of the Penal Code outline the “right of private defence”.

Section 96 states that exercising self-defence does not count as an offence.

Section 97 states that every person has the right to defend themselves and anyone else against bodily harm or to defend their property from theft, robbery, mischief or criminal trespass.

But Section 99(4) states that there is no right to self-defence if more harm than is necessary is inflicted for the purpose of defence.

Former Bar Council chairman Ragunath Kesavan explained that courts in Malaysia would not be unreasonable when looking at fatal self-defence cases in situations like robberies.

“There have been many cases in Malaysia where the court allowed self-defence.

“In most cases, especially in break-ins, if you attack an armed intruder and the person dies, there is a presumption that there is a reasonable use of force,” he said.

However, Sreekant said it wasn’t for the public to decide whether reasonable force was used.

The discretion lies with the police and the Attorney-General’s Chambers, who have the facts with which to decide if they should charge someone for murder or not.

“So, to those who say you can’t defend yourselves, you can. It depends on how much force you use,” he said.