Mohamad Zulkifli Ismail

Self Defence & Mohamad Zulkifli

It appears that Malaysians are up in arms about the fact that Mohamad Zulkifli Ismail, who allegedly stabbed two men who were trying to rob him at his house, was charged under Section 302 of the Penal Code for murder and under Section 326 of the Penal Code for causing grevious bodily harm.

What many do not know is that what happened to Mohamad Zulkifli is quite normative. In most cases where prima facie, there appears to be legal defences available, the defences are pleaded by the defendant whilst he/she is on trial (the exception being where there are no criminal proceedings initiated as the Attorney General exercised his discretionary power to not institute prosecution)

For the sake of parallelism, the common law defence of automatism will be examined. This defence is pleaded when the wrongful act was done “by the muscles without any control by the mind” (as per Lord Denning in Bratty v A-G of Northern Ireland)

The defendant’s lack of physical control over his/her conduct renders the conduct involuntary and “no act is punishable if it is done involuntarily” (Lord Denning in Bratty v A-G of Northern Ireland)

Thus, even in a situation where automatism appears to be a part of the facts of the case, generally, the defendant will still be charged with an offence, plead not guilty, proceed to trial, and then attempt to prove the defence

As for the defence of self defence, the statutory provisions governing it can be found in Sections 96-106 of the Penal Code. The ones relevant to Mohamad Zulkifli will be delved into below

Section 96 of the Penal Code

“Nothing is an offence which is done in the exercise of the right of private defence”

The provision would clearly absolve Mohamad Zulkifli of liability if it can be proven that he was merely exercising his right of private defence

However, the Inspector General of Police was right to say that “it is not an absolute right to kill someone who tries to rob us”

The right to private defence is very much subject to other provisions, of which we will consider accordingly

Section 97 of the Penal Code

“Every person has the right, subject to the restrictions contained in section 99, to defend – … the property … against any act which is an offence falling under the definition of … robbery …”

Based on the minimal facts we are aware of, it is apparent that section 97 would further support Mohamad Zulkifili’s case as he was protecting his house in Kampung Labohan, in Kerteh, Terengganu, from two robbers

Section 103 of the Penal Code

“The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence … occasions the exercise of the right, be an offence of … robbery …”

Section 103 is merely an extension of Section 97. In Mohamad Zulkifli’s case, his exercise of his right of private defence lead to the voluntary causing of death of the two robbers, hence, it is submitted that section 103 is the more appropriate provision to be relied upon

Section 99 of the Penal Code

This section lists out acts against which there is no right of private defence. The fourth act is the only one which bears any potential relevance to the facts of Mohamad Zulkfili’s case

“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”

This is basically an issue of proportionality. Was Mohamad Zulkifli’s exercise of his right of private defence proportional to the need to defend his property from the two robbers?

A-G’s Reference (No.2 of 1983) established that the degree of force deemed reasonable varies according to the nature and degree of the threat. Regrettably, the question cannot be answered conclusively due to the lack of facts available at the time of writing

However, as a matter of principle, if the answer to the question of proportionality is in the negative, it would mean that Mohamad Zulkifli would have no right of private defence

The people need to let the law take its due course. However, the people also need to keep an eye out on how Mohamad Zulkifli’s case progresses and it is hoped that the continuous public attention associated to the case will prevent there being a miscarriage of justice

*This article was featured in Malaysiakini, The Malaysian Insider, The Rakyat Post, Malaysia Today

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