The protection of life and property is axiomatic in every civilized society and because it is impossible for the State to do so on every occasion – as law enforcement officers cannot be omni-present -, the individual is given the right of private defence. The right of private defence legally accords to the individual the right to take reasonably necessary measures to protect themselves under special circumstances.
Notably, on the execution of the private defence provisions in the Penal Code, the Penal Code framers said “we leave it still in a very imperfect state…we are inclined to think that it must always be one of the least exact parts of every system of criminal law.” This suggests that they recognised the necessity for latent ambiguity (although this was at the expense of accuracy) to allow judges the flexibility to read and apply the provisions so as to achieve fairness in each distinct case,
However, we are of the view that the local courts have overlooked this discretion conferred upon them and instead opted for a far too restrictive (and even unreasonable) interpretation of the provisions to the extent where private defence is hardly adequate as a defence, defeating the intention of the Code framers.
The inconsistency between the judicial interpretation and the intention of the Code framers is exemplified in the interpretation of “reasonable apprehension” under ss 100 and 102 of the Penal Code. Evidently, the local courts have adopted a strict objective approach in determining “reasonable apprehension”, ignoring its inherent ambiguity. This is in contrast to the current English law which judges the nature of the danger wholly according to that of the accused’s perception (purely subjective test).
For the purpose of this paper, we will be exploring the interpretation of s 96 – 106 of the Penal Code in the local context. Our discussion aims to elaborate on the current local position on private defence and to examine its resultant adequacy. Secondly, we will look at the viability of this defence in other jurisdictions. Lastly, our group will then explore the public policy concerns and the possible reforms to the interpretation and application of private defence.
When Does Private Defence Provide Relief To An Accused In Singapore?
On the rare occasions where private defence was successfully pleaded, the cases involved were fundamentally clear-cut and relatively unambiguous, In these cases, the accused often inflicted minimal harm on the corresponding party and there was substantial evidence to prove that his act was undoubtedly a preventive measure to protect him when his life was clearly under threat.
In the case of Prosecutor v Tan Zun Yong, it was held that the accused had recourse to 97(a) of the Penal code to defend his own body against immediate harm. The accused was allowed to claim Section 97(a) as even the injured party had admitted that the accused acted in self-defence against his rising aggression. There were witnesses who had testified that the accused was at the losing end of a shoving contest with the injured party. There was also clear evidence that the incident happened when the accused had no recourse from public authorities; thus offering him a clear right to public defence under Section 99(3) of the Penal Code. It was also clear that the accused had not “inflict more harm than is necessary” as he had merely raised the hammer instead of swinging it when defending himself and had ran away immediately after causing the injury to the other party, allowing him to satisfy the criterion under section 99(4) of the Penal Code to escape liability for his actions.
It is clearly demonstrated in the above case that it is possible for an accused to successfully plead private defence in Singapore, provided that there is overwhelming and compelling evidence to prove that he has satisfied the requisite sections of the Penal Code to enact private defence.
Singapore’s Approach To Private Defence: Ascertaining The Cessation Of Danger With Reference To S 102
Singapore courts have adopted the stance that the “reasonable apprehension of danger” pertaining to Penal Code s 102 ceases the moment a weapon is dislodged from the accused, thus he is no longer entitled to the right of private defence.
In the case of PP v Asogan Rameh s/o Ramachandren & Ors, it relied on Soosay v PP to establish that “there was no continuing apprehension of danger after the deceased was disarmed, and any right of private defence was exceeded when the unarmed and outnumbered deceased was assaulted continuously.” Thus the principle asserted is that, the moment the knife was dislodged from the deceased’s hold, any reasonable apprehension of danger to the accused ceased to exist. Penal Code s 102 states that private defence of the body “commences as soon as a reasonable apprehension of danger to the body arises from an attempt or a threat to commit the offence”, and continues “as long as such apprehension of danger to the body continues.” In our opinion, discontinuance of such reasonable apprehension of danger should not be based solely on mere disarming of the assailant. The totality of the situation has to be considered, for example, the physical superiority and aggression of the assailant and whether he was attempting to repossess the weapon.
Singapore’s Approach To Private Defence: Interpretation Of “Necessary Force” In S 99(4)
Singapore courts are inclined towards adopting an objective interpretation to judge the actions of the accused with reference to ascertaining the use of necessary force in Penal Code s 99(4).
In Roshdi v PP, Karthigesu JA established that “[the appellant] did exceed his right of private defence when he struck the deceased on the head with the mortar, which, after all, is a solid and weighty object, more than once.” This is in line with Penal Code s 99(4) which states 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.” However, we believe it is unreasonable to expect the accused, in the midst of a heated struggle and facing imminent threat to life, to possess such a lucid and rational mind as to evaluate the possibilities of his next immediate response and distinguish the one that would not generate more force than required toward his assailant [emphasis added]. More often than not, the response stimulated is an instinctive one fuelled by adrenaline in the heat of strife and not pre-meditated. Thus it is unreasonable to adopt such an objective interpretation of s 99(4) to judge the actions of the accused, and the subjective state of mind of the accused should be taken into account instead. We believe that in determining reasonable apprehension of danger and the ensuing quantum of necessary force applied, some leeway should be given to the accused, so long as it is not odiously incommensurate to the actual danger faced.
Singapore’s Approach To Private Defence: The Warrant Of Recourse To State Protection
s 99 (3) of the penal code states that a right in exercising private defence is available when the victim is unable to seek recourse from public authorities.
In PP v Seow Khoon Kwee, the accused (“Seow”) was denied his right to private defence by s 99(3). The court assumed that Seow had felt threatened by the deceased on the first occasion during their scuffle, hence should have reported this fear to the prison authorities; and because he had failed to do so, his subsequent fight with the deceased disqualified him of private defence.
This section submits two reasons justifying why Seow’s failure to seek the State’s protection should not deny him of private defence:
i) Fear of possible repercussions—revenge by the deceased
After the first skirmish, Seow suspected the deceased’s resentment towards him, but not every such suspicion would command him to rush to the authorities and it may be unrealistic to require prisoners to report to the guards at the slightest fear of retaliation. Prisoners would likely only do so as a last resort, and at heightened fear, since involving officers’ help would probaby bring more unwanted attention and the possibility of revenge unto oneself. While Seow could have been presented with the opportunity to physically seek recourse from the authorities, he likely assessed that such action would not substantively provide sustainable protection from the accused, who was bigger-sized and known to be violent to the inmates.
ii) Timing and degree of reasonable apprehension of danger
Two elements are required in seeking the State’s protection: 1) time to do so, and 2) reasonable apprehension of danger. In this case, Seow could not possibly predict when the deceased might attack him, if there was any intention so; hence Seow’s level of apprehension of danger dwindled as time elapsed. Resultantly, the justification to seek official recourse would have subsided and even ceased.
It was only during the second quarrel that the apprehension of danger spiked, but at that time, the suddenness of the attack would have rendered s 99(3) inapplicable. The elements of apprehension of danger and time for recourse to the State did not coincide.
Such misjudgment on Seow’s part may not form a sufficient reason to deny him of his right to private defence.
The Malaysian High Court’s Less Restrictive Approach In Private Defence
Most of the cases involving private defence in Singapore had considered “reasonableness” in ascertaining the measures taken by the defendant in protecting himself. Contrastingly, the Malaysian High Court had on many instances decided primarily on the accused’s apprehension of the circumstances facing him at the time he committed the offence, seemingly putting aside the degree of “reasonableness” of his act of defence.
In the case of Ya Min Daud v PP, it was held that the accused had the right to use force to defend against his assailants as there was reasonable apprehension of danger when he was alone and cornered in his own compound by two pursuing assailants with dangerous weapons. Particularly, unlike many of the Singapore’s cases which ascertained the “reasonableness” in the application of force by the accused, it was held in this case that the accused possessed the right to defend his life regardless of his choice of weapon in warding off the attacks from his assailants.
While the Malaysian High Court’s decision has illustrated how the claim of private defence is less restrictive than that in Singapore, we must nevertheless be cautious in advocating for a policy which may potentially lead to the large scale acquittal of individuals who may have violated their reasonable right to private defence.
The Adequacy And The Public Policy Concerns Of Private Defence In Singapore
From the cases cited above, it is evident our local courts have adopted a restrictive approach towards the interpretation of the private defences provisions (s96 – 106 PC). The use of an objective test by the Singapore courts for qualification of an individual’s right to private defence is arguably inequitable. The stern objective stance taken by the courts in PP v Asogan Rameh s/o Ramachandren & Ors, Roshdi v PP and PP v Seow Khoon Kwee resulted vin a verdict that sits uncomfortable in the hearts of many people. Though it was recognized to be a fair finding based on well established principles, it reflected the limitations of the law in protecting individuals that might be well-meaning and “innocent”. The expectation of an individual to use a “golden scale” to consider all possible alternatives before exercising the right of self preservation in the face of attack would thus seem unnatural.
The adoption of a restrictive reading of the Penal code along with the unnatural and detached objective test would make qualification of such a defence almost impossible. The local courts’ position as illustrated in the cases above deviates from the historical purpose of the codification of the statute which was to enable self preservation. The restrictive stance of the Singapore courts in the justification of private defence arguably places a victim of an offence in a disadvantageous position. This would inadvertently render most acts of private defence excessive; thus making it difficult to successfully raise private defence. Resultantly, the rationale (of protecting the victim instead of the aggressor) behind the codification of private defence would be distorted.
A restrictive interpretation, though inequitable, has its merits as it provides certainty and social order within the community. The restrictive interpretation of the statutory provisions for the right of private defence sends a clear and consistent message with regards to the ambit of such a defence. As each individual has different rationalization processes and actions towards a specific offence, the use of a purely subjective test to ascertain the reasonableness of the action of self preservation would lead to inconsistent judgments.
The restrictive interpretation by the Singapore courts prevents the abuse of the right to private defence. This defence, if successful, provides an acquittal; and adopting a looser and purely subjective interpretation of the statute would potentially subject it to abuse. It would be absurd to acquit an individual who justifies his right of private defence wholly based on a subjective interpretation of the apprehension of danger. An apposite case is Musa Bin Yusof v PP where a (extensively) generous interpretation of s 99 (4) was adopted.
As such, a purely subjective approach would emanate that self preservation has no limit, which might result in a floodgate of private defence pleas regardless of its excessiveness.
The Way Forward
Although both the subjective and objective approaches are meritorious in their own right, our report advocates a move towards a more subjective stance, placing greater weight on the actual intention of the accused at that particular moment. This entails an analysis of first, what the accused believed, and secondly, whether or not this belief was based on reasonable grounds. It is important to note that the requirement that the accused’s belief be made on reasonable grounds does not mean a consideration of what a reasonable person would have believed, but rather, what the accused, in that particular instance, might have believed despite it not being a belief that is normally held by a reasonable person.
An emphasis on the subjective belief of the accused would therefore adequately account for his personal characteristics such as age, culture and religion.
In conclusion, the rights to private defence should be open-ended in line with its formulation. Instead of having substantive rules which limit its scope, its interpretation should provide greater leeway for a more humane approach and basis of verdict should be very much a matter of fact instead.