MOVING TOWARDS A MORE RESTRICTIVE APPROACH TOWARDS PRIVATE DEFENCE?

• Author: LEE KIAT SENG
• Published date: 01 December 1998
• Date: 01 December 1998
• Citation: (1998) 10 SAcLJ 231

Public Prosecutor v Asogan Ramesh s/o Ramachandren & Ors

The recent decision of the High Court in the case of Public Prosecutor v Asogan Ramesh s/o Ramachandren & Ors1 is instructive as to the recent attitude of the local courts in the manner in which they approach the general defence of private defence. If one were to study the approach of the courts in dealing with the plea in these cases, one can discern a continuation of the recent inclination of the local courts to take a narrow view of the defence.

The Facts

As a background to the tragic death of the deceased person, Saravanan Michael s/o Ramalingham, it transpires that he had a history of antagonism with the first accused. There had been a number of confrontations and altercations in various places between the two. On the fateful day, before his demise, the deceased had a busy day which ended with him having drinks with his friends, after which he took a taxicab home to his place at Block 101, Whampoa Drive.

In a parallel situation, in the wee hours of the same morning, the three accused persons and a friend, Vijiyamani s/o Tamilselvam2, were also on their way home after a night of drinking. They decided to walk the second accused home since they were near to his home when they decided that they should call it a day. They would head their separate ways home from there. As they were walking along a footpath which towards Block 99, Whampoa Drive. It was here that the third accused suddenly spotted the deceased walking towards them, presumably on his way home. The third appellant then called out to the deceased to talk to them. The deceased pelted them with vulgarities and turned tail whereupon the three accused persons gave chase. All this time, Vijay was busying relieving himself along the green fencing of a rubbish collection centre next to Block 101.

The second accused was the one who was first to catch up with the deceased. He tugged at the shirt of the deceased whereupon the deceased turned around and swung a knife at him. With this, the deceased cut the second accused’s finger who gave out a cry of pain. The first accused realised that the deceased had hurt the second accused. He got angry and lunged at the deceased. He managed to wrest control of the knife.

In the ensuing struggle, the first accused swung the knife wildly at the deceased. All this while, the two of them were still entangled together, and the knife dropped to the ground. The second accused then picked up the knife and attacked the deceased. Despite facing two assailants and being stabbed a few times by the second accused, the deceased put up a tremendous fight, managing to push and kick the second accused away a few times. However, each time the second accused recovered and charged forward again.

It was at this juncture that the third accused, who had been left behind in the chase due to his weight problem, finally caught up. He immediately picked up a discarded chair and swung at the back of the deceased, fracturing his head. At this point in time, Vijay caught up and stopped the third accused from hitting the deceased with the chair again. The three accused persons and Vijay then fled from the scene of the crime. The three accused persons were charged for and convicted of murder in the High Court and sentenced to death. They then appealed to the Court of Criminal Appeal where their appeal was dismissed.3

Both the High Court and the Court of Appeal held that all of them were to be sentenced to death by virtue of section 34 of the Penal Code, ie. since the deceased was assaulted in furtherance of the common intention of the accused persons, each of them would be liable for murder. Before the High Court, the first accused relied on the right of private defence4. This was dismissed by Kan J quite simply because the accused did not say that he was fearful for his own life or limb or that of his friends.5 Sudden fight6 was relied upon by all three accused persons. However, this was also dismissed by the court as the court was of the opinion that there was no sudden quarrel, nor could there be said to be a fight. In any event, there was no way the accused persons could deny that they had take undue advantage of the deceased being outnumbered and unarmed.7 On appeal to the Court of Appeal, the accused persons still presented arguments on section 34. They also maintained the defence of sudden fight while the second accused also brought up the special exception of provocation. All these were dismissed by the Court of Appeal.

Critique

Although the defence of private defence was dropped by the first accused by the time the case was heard on appeal, the approach of the High

Court does nonetheless give some cause for concern. Although there is no doubt the claim by the accused of private defence was unmeritorious, the reliance by Kan J on two cases which seem particularly harsh does raise some measure of alarm. To begin with, Kan J relied on Soosay v PP8 to suggest that as soon as the weapon in question changes hands, the person who is now in possession of the weapon would no longer be in reasonable apprehension of danger to himself, and, as a result, the right of private defence ceases.9 The court also relied on Karthigesu J’s opinion in the same case that once an erstwhile assailant is disarmed, even if he is enraged, he can surely be easily be subdued by means other than resort to the weapon.10 The court relied on another decision of Karthigesu JA in Roshdi v PP11 to say that even though on the facts of that case, the accused was at a great disadvantage and he was quite literally staring death in the face, he was still taken to have exceeded the right of private defence when he hit the assailant more than once on the head with a mortar.12

Weapons and Reasonable Apprehension of Danger

A few comments have to be made about the decisions which were relied on by Kan J. Soosay’s case should not be taken as conclusive authority for the proposition that once the erstwhile assailant has been relieved of the offensive weapon, all apprehension of harm would naturally come to an end. To begin with, it is not clear if the Court of Appeal had any intention to rule as a proposition of law that in a situation as the one we are concerned with, where the assailant launches an initial attack while being armed, where once the weapon changes hands and the assailant is now disarmed, the shift in the balance of power will as a rule remove any reasonable apprehension which might have initially been present. It must be noted here that the Court of Appeal in Soosay was not referred to the Malaysian cases of PP v Yeo Kim Bok13 and PP v Ngoi Ming Sean14 and thus, did not have the benefit of contemplating the effect that these cases might have on the outcome in the present case.

The question of whether dispossessing the assailant of his weapon will result in the reasonable apprehension of danger abating must depend on the particular factual matrix of the situation. It is too simplistic to suggest that, as a rule, the mere fact that the weapon has changed hands changes the complexion of things such that the initial reasonable apprehension of danger to oneself has now evaporated upon the change of the relative circumstances of the two participants in the struggle. In fact, commentators have pointed out that one is not deprived of one’s right of private defence the moment the attack ceases as when the weapon used by the attacker changes hands15.

Far from a simple reliance on whether the weapon has changed hands, what is evident in the manner in which the local courts have assessed the facts and circumstances of each case is that the mere fact that the accused was in possession of the weapon at the time when the fatal blow was struck is not the only relevant matter to be considered. It is not necessarily conclusive. Mere possession of a weapon does not, in itself, deprive the accused of the right of private defence against an assailant.16 It has also been consistently pointed out that the law relating to private defence under the Penal Code is wider than that granted under English common law:

The law in this country gives greater latitude to a person who is attacked than does the law in England. In England, if self defence

is to be successful, the attacked must attempt to...