Affray is a lesser known and lesser used criminal charge. It is known in the common vernacular as the ‘charge for fighting’.
So what is Affray?
Affray is where two or more persons fighting in a public place disturb the public peace[1]. If found guilty, persons charged with Affray can be sentenced up to six months in custody, a fine of not more than RM 1000 or both[2].
In short there are three key elements for Affray. There must be:
A. Two or more persons fighting
B. The fight happens in a public place
C. It must disturb the public peace.
And all these can be visualised with the David Fincher feature film Fight Club.
A. Two or more persons Fighting
There has to at least be two. So when Ed Norton beats himself up in a parking lot that is not Affray. Self-endangerment maybe. But not Affray.
This is important because the law on Affray encourages a person to flee rather than fight. If you are attacked, and you engage with an attacker, you are the required second person for the charge of Affray. The reasoning behind this is that if only one party is the attacker, that party would be charged with assault and/or grievous bodily harm and not affray.
Ratanlal and Dhirajlal[3] key texts states that an "affray requires two sides fighting. Passive submission by one party to a beating by the other will not do. Nor will mere howling in pain do. An answering challenge or war-cry or even an active non-violent resistance might do".
However, this aspect of the law has been arguably stretched in the High Court case of Navindran Narayanan v PP [4] where the Learned High Court judge found that the elements of affray had been set out even when the victim had not fought back and ran away to seek help. Justice Anselm Charles Fernandis argued in Navindran that:
“In this case there was clear evidence that SP3 had resisted the slashing to the extent that his left hand was severed. SP3's reaction was of a "non-violent resistance" nature. He did not passively submit[5]”
It is interesting to note that the Learned High Court Judge held that the act of raising one’s hand to resist a slash, leading to the severing of the hand, was still deemed to be an action of non-violent resistance, which allowed for a charge of affray. It would thus mean that the Malaysian Judiciary deems the victim who merely attempted to block a blow as having been involved in a fight and therefore liable to be charged for affray.
B. It occurs in a public place
For a charge of affray, the fight ought to take place in a public place. Take the example of the lovers squabble between Chairil and Rosnita[6] wherein a couple were found fighting outside on a street. There is no doubt in that the act of fighting was done in a public place.
However, the term public place may differ from time to time. Justice Lee Hun Hoe, as he was known then stated
“A place may be a public place at one time and not at other times. Thus a railway carriage is a public place while being used for the reception and conveyance of passengers, but not while it lies empty in a siding. Laugrish v. Archer [1882], 10 QBD 44 Wellard's case appears to be authority for saying that a public place would seem to include a place to which the public are accustomed to resort without being interfered with though there is no legal right to do so. Button's case would seem to suggest that a place could be a public place if at the time a substantial part of the public had access to it[7].
**This definition of public place has become the reference point for other offences involving the term public place[8].
The case of Chen Geok Lun had discussed whether a fight which took place at a ball at a hotel, in which the ball was invitation only, would be considered to have occurred in a public place. The Court held that it would be prudent for the trial judge to hear evidence if the public had access to the ball or if it was indeed restricted in access prior to dismissing a charge of affray.
In summary, unless the fight occurs in an area in which the public cannot have access to or are not accustomed to have access, it is likely to be considered an offence of Affray.
As an example, the fight clubs in Fight Club set up were underground basements or hidden away rooms in restaurants. The public or substantial part of the public could not get access to the said places. You had to be invited and there was a selective process. Therefore, it would not be a public place.
C. It must disturb the public peace
The act of affray must disturb the public peace. It derives from the nineteenth century laws on affray of which the act of fighting would be done “to the terror of the Queen’s subjects”. As long as the fight was capable of disturbing the public notion of safety and or harmony, it could be considered an affray.
This is to be contrasted with the act of watching a boxing or UFC bout. While it involves two persons fighting in a public place, it is not done to disturb the public peace. The spectators in the arena are there for the spectacle. The public peace is not disturbed by the sporting endeavour in the ring. If however the spectators got into a fight, it would then be an offence of affray as the peace of the public in the event would have been disturbed by the unplanned and non-consented act of fighting between the spectators.
Conclusion
Affray remains a paradoxical charge where the actus reus of the charge is malleable to fit the prosecution’s version of events if so required. It therefore requires our lawmakers to review of the law on affray and set out definitively the elements required for affray to avoid judicial law-making.
In any event, pending such a review, it seems difficult to run away from a charge of affray if you are unwittingly caught up in a public fight. Therefore, it is best to not be affray-ed and defend yourself if need be.
[1] Section 159 Penal Code [2] Section 160 Penal Code [3] Law of Crimes 24th Edn [4] [2018] MLRHU 733 [5] Ibid at paragraph 49 [6] https://www.malaymail.com/amp/news/malaysia/2014/06/17/court-fines-former-lovers-for-fighting-in-public/688997 [7] Public Prosecutor v Chen Geok Len & Anor [1966] 1 MLRH 103 at page 105 and 106 [8] See Lee Lye Poh v PP * Other Appeals [2020] MLRHU 1863
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