Electric fences and spike pits - are they legal?


EXCLUSIVE

PETALING JAYA: A robber tries to break into a house in SS5, and as he scales the wall - he grips the wires of an electric fence, gets electrocuted and dies. Is the homeowner liable for anything now?

In Subang Jaya, a child falls into a homemade spike pit while climbing over a fence to pick up a football kicked into a neighbor's garden. Was the booby-trap legal?

With stories of home invasion circulating via chain mails and social media on an almost weekly basis, it is only a matter of time before a homeowner takes the adage of "my home is my castle" literally.

And according to Bar Council Human Rights Committee chairperson Andrew Khoo, that would depend on whether it is "proportional" for an electric fence to be installed.

"A response has to be proportional to the threat, you first have to ask what is the threat. And only then you can say whether the response is proportional to the threat," said Khoo.

Khoo, who also addressed the issue of home-made booby traps to keep burglars out, said that homeowners have a right to protect their home in a reasonable sense, and that proportionality was a test of reasonableness.

"You may have something to prevent people scaling your wall, but if a child gets wounded by whatever booby traps you've set while climbing in to retrieve a football accidentally kicked in your lawn, it is going to be a question for the courts as to whether you have criminally caused injury to the child," said Khoo.

Khoo said the courts would look at whether the booby trap was proportionate to a perceived threat of burglary if criminal charges were pressed against a homeowner in his example of the injured child.

He also cited the example of a child failing to see warning signs alerting passers-by that the fence was electrified.

"If the fence is within reach of a child who doesn't see the sign and runs their hands along the wall out of curiosity and gets a shock from touching the fence - the question is proportionality," he said.

Khoo said that those who install electric fences to protect their homes could face some liability if things go wrong.

"If I were someone who touched your fence while trying to pass a flyer, or if my dog gets killed running into your fence, you are looking at a lawsuit or other potential legal trouble," he added.

While acknowledging that homeowners have a right to protect their home, Khoo also said that Malaysian society was not ready for such home security measures.

"It is different if you were trying to protect an airport or a prison or an area as defined under the Prohibited Areas Act, because people will accept that as high security areas, but not private homes or residential areas," said Khoo.

Similar views were shared by criminal defence lawyer Sreekant Pillai.  "I don't think it's illegal to put spikes or glass shard on walls. But if you're talking about electric fences, there would some liability if an innocent person gets electrocuted from accidental contact with the fence," said Sreekant.

"It's like having a Rottweiler running out onto a street and biting a passerby, the dog owner would be liable. This would be different from a burglar being mauled by a guard dog protecting a house," said Sreekant.

Sreekant however cautioned the law might look at home-made booby traps differently.

"However, there is a fine line with such home defences as some rigged booby-traps could be interpreted as weapons," he said.
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