JUST BEAT IT!

You’re in an underground parking lot walking towards your car. It’s a few hours past lunchtime, there are a few people around. At a distance, you hear the sound of a motorbike. As you get closer to your car and reach for the keys, the sound of the motorbike grows louder, until it has now stopped behind you. The reflection on your car door’s mirror shows an adult wearing a helmet ready to swing a bat, creeping towards you in the most hostile manner imaginable.

In such a situation, there is only one of two possible modes of actions you can take. One, to scream for help and hope someone comes to the rescue before you are beaten to a pulp. Two, the more natural mode of reaction, is to defend yourself with whatever moves you can recall from watching all those Donnie Yen movies. Unfortunately, the law requires you to take the first option, as to fight back in defence could earn you a prison sentence of 6 months and a Thousand Ringgit fine.

This is because, the Malaysian Penal Code stipulates in Sections 159 and 160 that, when two or more persons, by fighting in a public place disturb the public peace, they are deemed to "commit an affray" and whoever commits and affray shall be punished with imprisonment for a term which may extend to 6 months or with a fine which may extend to One Thousand Ringgit or with both.

From the semantics of s159, three elements can be adduced to establish the crime of 'affray':

a) Fight between two or more persons

b) Such fight must be in a public place

c) The fight must disturb the public peace

Out of the above 3 elements, this discussion takes particular interest in the first element.

With regard to the first element, the fight must be between two or more persons. An affray requires two sides fighting thus, passive submission by one party to a beating by the other will not do. For the law to promote such a self-endangering response to an attack does lead to disturbing results. Even when a person is said to have only defended himself in exercise of his right of private defence, he can be deemed under the law to be guilty of participating in an affray.

This seems to be the position taken by the Malaysian Courts in the 2018 Ipoh High Court decision of Navindran Narayanan v PP. Considering the fact that Section 159 of the Malaysian Penal Code is in pari materia with Section 159 of the Indian Penal Code, India has taken the same position as far back as 1931 in the Allahabad High Court judgement of Babu Ram and Anr. vs Emperor, and maintained this position ever since.

Besides from a practical perspective, such application of the law cannot be explained from a jurisprudential standpoint as well. In appreciating the law to be a tool to establish social order through social control, it is unexplainable to deem an act of self-defence to be a crime, when such action is an immediate reaction of an attack to protect oneself. The perplexing question still remains as to what the law intends to deter by punishing the defender?

Furthermore, to make things difficult for the individual whom intended to defend himself, the Malaysian Courts seem to take a loose approach when determining the existence of a fight. An example of such leniency is illustrated in the case Joseph Che Suan v PP, decided by the Court of Appeal in 2012, whereby the Court held that pre-planning is not a requirement to prove a 'fight'. In other words, when considering the above parking lot scenario, even if you had no plans to fight the motorcyclist with a bat and any exchange of blows was purely made in the spur of the moment for self-defence, the Court would deem it to be a fight between two persons, thereby establishing the first element.

Taking these problems into consideration, the best way moving forward is for the Courts to recognise an individual's right to self defence in light of the crime stipulated in Section 159. The right of self-defence had been successfully raised in previous cases concerning serious offences such as murder. One prominent example would be the High Court's decision in PP v. Dato' Balwant Singh in 2002 where by Datuk Balwant Singh was found not guilty for a charge of murdering a despatch rider in Bangsar due to successfully raising the defence of self-defence. Thus it is only appropriate that such a defence should be allowed when considering Section 159.

As for now, while the current interpretation and application of Section 159 still stands, when confronted into getting involved in a fight at a public place, it is best to remember that old pop song and 'Just Beat It'.