PATRICK CHAU FOOK HENN v PUBLIC PROSECUTOR [2014] 3 MLJ 825

Court of Appeal (Putrajaya)

Private Self-Defence

1.     The Appellant, Patrick Chau, aged 36 had worked for the deceased as an administrator and accounts’ clerk and was charged for murder of the deceased pursuant to Section 302 of the Penal Code (“Act 574”).

2.     The alleged commission of crime took place on 26 September 2006 in the deceased’s car.  According to the Appellant, the deceased took the Appellant by his car to collect the Appellant’s saving bank account’s book in justifying his allegation against the Appellant that he had misappropriated the company’s fund for his personal use.

3.     The Appellant further explained that the deceased had asked him to write a confession statement inside the car as the deceased stopped by the Sri Kepayan shop lots.  The Appellant further testified that as he queried the deceased as to why he had to write it during their journey to the Appellant’s house, the deceased got angry and took out a knife and threatened to hurt and kill the Appellant.

4.     The Appellant then told the Court that the deceased had attacked him and that everything happened so fast that he could not remember everything that happened and that he may have stabbed the deceased in the struggle while he was being fearful for his life.

1.     During the trial in the High Court, the learned judge had given a proper judicial appreciation that the Appellant was indeed caught in a situation where he was entitled to his right of self-defence from harm by the deceased.

2.     The High Court made reference to the provision of law in Section 96 and 99 of Act 574 respectively provides the law for self-defence as follows:

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

&

“The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict of the purpose of defense”

3.     The High Court also referred to four (4) critical justifications highlighted in Ratanlal and Dhirajlal’s Law of Crimes (25^th Ed) as requirements for a plea of self-defence to succeed as follows:

“(a) the accused must be free from fault in bringing about the encounter;

  (b) there must be present an impending peril to life or of great bodily harm either real or so 

       apparent;

  (c) there must be no safe or reasonable mode of escape by  retreat; and

  (d) there must have been necessity of taking life.”

4.     The Court made precise observation based on the Appellant’s submission that he cannot remember the incident as it was dark and everything happened so fast and concluded that the Appellant was being evasive on the way the stab wounds were inflicted to the deceased.  The Court take the stand as follows:

“Though one would not expect the Appellant to modulate his defence step by step, nevertheless a blanket denial of not knowing how it happened it was submitted, unreasonable.  For the injuries to be inflicted on the deceased, the Appellant must have gotten control of the weapon. With the weapon in hand, he undoubtedly had the upper hand of the situation. He could have run out of the car and bolted away or take necessary step to curb the deceased’s assault (if any) without causing such severe injuries.”

5.     The Court further held by referring to the case of Public Prosecutor v Ngoi Ming Sean [1982] 1 MLJ 24 as follows:

“the right of private defence commences as soon as there is apprehension of danger to the body and this right continues so long as such apprehension of dangers continues. And, it goes without saying that the right of private defence ceases and is not available when there is no more apprehension of danger to the body. In assessing whether a private defence had been successfully pleaded by an accused, the court must consider the manner in which force was used by the accused in defending himself from attack. This is because in law the use of force is allowed only when it is absolutely necessary in self-defence”.

6.     The Court found the following against the circumstances of the Appellant:

“The justification for use of force in retaliation is available in our view only in situations where the Appellant was cornered and there is no possible way of escaping from the attack except to retaliate by using whatever necessary force that is required for the purpose of self-defence.  In this instant case, that is on appeal before us, the fact shows that the deceased has altogether 15 injuries, six of which are stab wounds and one of the stab wound is fatal because it pierced the heart of the deceased and caused massive haemorrhage resulting in death. Beside the stab wounds, the deceased had also sustained four incised wounds.”

7.     The Court also made an inference that the Appellant must have disarmed the deceased by taking over the knife that the deceased used in threatening the Appellant and that the Appellant retaliating by using the same knife.

8.     The Court is of the view that the Appellant was not in a position where he had made an attempt to get out of the car by opening the door of the car as he had successfully disarmed the Appellant by taking the knife away from the Appellant.

9.     The Court took these facts and the evidence of the wounds inflicted on the deceased and further held that that the learned judge were correct in his conclusion that the Appellant had exceeded his right of self-defence.

The Court of Appeal dismissed the appeal and affirmed against the Appellant’s conviction under Section 302 of Act 574.

1.     Self-defense is defined as the act of using justifiable force to defend oneself or those close to him from an assault or other person’s harm.

2.     Under the purview of Section 96 of Act 574, there are two scenarios where one is allowed to exercise their right of self-defence-

(a)  When one’s personal safety or the safety of another person is affected; or

(b)  When one or another person’s property is being threatened by an act (or attempted act) of theft, robbery, mischief or criminal trespass.