THE PUNISHER : Can Malaysians Take Up This Role?

On 27th December 2017, the Kuala Lumpur High Court handed down the “mandatory death sentence” on 5 men for causing the death of a suspected robber. This incident took place last year, outside an entertainment centre.

These 5 men allegedly beat up the deceased as they suspected him to be a robber. Unbeknownst to them, they would face the gallows for their impulsive act.

On 5th January 2018, a 32-year old homeowner was arrested to assist investigations into the death of a robber. Slightly different from the Kuala Lumpur High Court matter, there was no doubt on the “identity” of the robber as the robber was caught red-handed.

"Ignorantia juris non excusat" and "ignorantia legis neminem excusat"; two prevalent Latin phrases for, "ignorance of the law excuses not" and "ignorance of the law excuses no one". Two phrases that ought to be in the minds of every law-abiding citizen.

Being socio-civic minded, many individuals, encountering these two situations, would have tried to apprehend a robber at the scene of the crime; especially when their accumulative strength will overpower a single individual.

The success rate is overwhelming; we always see these alleged robbers getting apprehended at the scene of the crime – after a full blown assault by the “Punishers”. What these “Punishers” do not know is that, they would have committed an act of crime, in apprehending the robber, the way they did.

Indeed, "citizens' arrest" is enshrined in our legal system. However, its legality only extends up to the point when an arrest is made. Any physical assault is illegal and only a reasonable amount of force can be used to apprehend any individual suspected of committing a crime.

This is when problems arise. An attempt to arrest a suspected criminal can be filled with high adrenaline and is often an extremely "high-octane" moment. It is easy to vent out anger and frustration when one is attempting to arrest an individual for robbing a gold chain off an old lady whilst injuring her in the process. The "superhero" in one immediately shows its true colours and there’ll be no compassion shown.

It then begs the question; how practical is it for someone to assist in the apprehension of an individual suspected of committing crime? Is it as simple as “arresting and calling the police”?

Sections 96 and 97 of the Penal Code provides for the "right of private defence". Reasonable force may be inflicted, to defend ones safety and/or to protect the safety of those around him/her. What amounts to "reasonable force" however, is very subjective. There is no thick and fast rule as to what amounts to "reasonable force". Thus, the public ought to be vigilant in ensuring that, no excessive amount of force is inflicted.

It is important to note, the point is for one to perform "citizens' arrest"; not "public slaughter". One must always understand and accept the fact that, no individual is above the law; one must always be responsible for his/her actions. An act of murder; regardless of the justifications behind it, is still an act of murder.

One must also, never let emotions get the better of their actions. 3 out of the 5 men convicted by the Kuala Lumpur High Court were individuals with "legal" background; i.e. 1 security guard and 2 army officers. Yet, matters were taken into their own hands - what presumably started as a noble intention to apprehend a robber, turned into an act of violence in the eyes of the law.

To look at matters from the prosecution's perspective, the prerogative is always with the Public Prosecutor to decide on the relevant charge against wrongdoers. Needless to say, "with great power, comes great responsibility". The Public Prosecutor’s office, in exercising its discretion on the charge against these 5 men, ought to have proceeded on a charge for manslaughter instead; primarily because, a charge for manslaughter does not carry the mandatory death penalty.

Further, following the "Altantunya Case", the motive of the accused is not important, in order for a charge of murder to succeed. This ought not be the position of law in this country. A charge of murder carries the mandatory death sentence, upon conviction. This creates an unwanted situation where it is easier to convict an accused; thereafter, imposing the mandatory death penalty. What is reasonable and proper is that, in the absence of intention and/or motive, an accused ought to charge with manslaughter and not murder.

Needless to say, we strongly believe in giving the utmost respect and recognition to the rule of law. Regardless of the situation that one faces, do not try to take the law into your own hands. If needed, apprehend the suspect with reasonable force and immediately call the police. Society will turn into a chaos if there is no respect for the rule of law.