Just picture this: You are sleeping peacefully one night, knowing your loyal four-legged friend, Fluffy, is keeping an ever-vigilant eye on your property, when suddenly, you hear a commotion outside. Lo and behold, you see Fluffy with a man’s arms firmly clasped between his jaws. The man is a stranger and definitely has no business being on your property this late at night. So, you promptly call the police and they arrive to take the culprit away.
But just as he’s shoved into the back of the police car, he shouts over to you, “I’m going to sue you for this! You’ll be hearing from my lawyer!”
You suddenly find yourself stricken with a sense of panic. You vaguely recall the burglar’s arm bleeding as he was dragged away so your mind starts racing – “Can he REALLY sue me? Did I break any laws? WILL I GO TO JAIL?!”
Well, so here’s the long and short of it: You definitely are allowed to defend yourself, your family and your property, but only if you exert nothing more than “reasonable force”. What is deemed “reasonable” is dependent on the facts surrounding the situation.
Section 96, 97(b) and 99 of the Penal Code (in part):
This certainly brings to mind the recent news of homeowners getting into trouble with the law when housebreakers wound up dead or seriously injured as a result of getting into scuffles with the homeowners trying to prevent intruders from escaping.
Would it be the same, then, when a dog inflicts the injuries? Whether the injuries were caused by a dog or by the homeowners themselves, the homeowners will need to go through the usual process of making proper police reports regarding the incident and the police will then initiate an investigation.
But first, is your dog licensed?
The points covered in this article will be based on the assumption that your doggo has the proper permits and license. This is because having an unlicensed dog or an illegal breed of one may get you and your pet in trouble – which we won’t be covering here.
As a general rule of thumb, as long as you comply with the regulations under the relevant municipal council bylaws (depending on where you’re staying), you should be allowed to keep dogs on your premises. For instance, the Undang-undang Kecil Perlesenan Anjing dan Rumah Pembiakan Anjing (Wilayah Persekutuan Kuala Lumpur) 1991 (Pindaan) 2011 (“UUK 2011”) provides the conditions and requirements needed to be complied with by residents of Kuala Lumpur who intend to rear dogs, along with the list of restricted and banned dog breeds.
So, can you get in trouble if your dog bites a burglar?
Let’s take a step back away from the robber scenario and see this from a general perspective – how responsible you are for the safety of anyone who enters your house.
Depending on identity of the person who gets bitten, the legal outcome may very well differ. Generally, under the tort of negligence, homeowners (known as “Occupiers”) owe a duty to ensure people entering their property do not suffer any injury due to the homeowner’s negligence (this is generally known as Occupier’s Liability). This responsibility extends to 3 general classifications:
- People you invite into your property (like friends or the air-cond repairman)
- People with direct or indirect permission to enter your property (like party guests)
We know what you’re probably wondering why you need to ensure the safety of a trespasser, and we’ll get into that later in the article.
For example, if you covered a huge hole in your garden with a carpet and a visiting friend fell into it because there were no warning signs (or if you didn’t tell them), they can sue you for injuries sustained. Similarly, they could also sue you if you didn’t restrain your dog and your dog bit them. This is because you have a moral and legal obligation to ensure a person’s safety or well-being when they’re on your property, in what’s called duty of care.
Tort law is a pretty complex topic to discuss in this article, but you can read more about it in the link below:
[READ MORE: What is tort law]
So back to the topic at hand, how responsible you can be if your dog were to attack a burglar depends on whether the burglar was attacked when the crime is being committed, or if it hasn’t happened yet.
If an actual burglary was in progress, like if the burglar was already taking property from you when your dog jumped him; the situation would be a lot more clear-cut:
Sections 7(4) to 7(6) of the Minor Offences Act 1955 provide, in relation to an intruder being attacked by a dog within its owner’s premises:
What this simply means is that the situation boils down to whether this person had your permission (whether direct or implied) to be on your premises in the first place. In the case of burglars – who are obviously uninvited and definitely unwelcome – it would be rather hard for him to argue that he was in your house with your permission or for any legitimate purpose, so it would be generally unlikely that a claim for compensation (if he sues you) or criminal case (if he files a police report against you) would succeed.
Perhaps the intruder had made it as far as your car porch but your loyal canine attacked him before he could actually take any of your belongings. Say the police, after conducting their investigations, don’t find enough evidence to prove that the person entered your property with the intention to rob you. The intruder can now give any number of excuses to justify why he was on your property– he had entered to retrieve something of his that had fallen into your compound, thought he was at a friend’s house, or even that he was a repairman coming to do some odd-time repairs.
This is where the situation becomes tricky because, since the burglar was stopped before he could do any burglaring, it means that – technically – he’s not legally a burglar yet. This is where we get into the issue of trespassers, because if they’re not technically a burglar yet, can they be considered a trespasser?
The question of who can be classified a trespasser was addressed in the case of Segar Restu (M) Sdn. Bhd. v Wong Kai Chuan, where the term “trespasser” was given the following meaning:
“...who is a trespasser? In law, a trespasser is one who wrongfully enters on land in the possession of another, and has neither right nor permission to be on the land. “
Coming back to our example, this person who entered your property had obviously done so without being invited by you and you would not have even realised his presence, had it not been for the tussle with your dog. Therefore, it would be rather safe to conclude that this man was a trespasser; whatever his intentions.
This brings us to the next issue... what is your duty of care towards trespassers?
In the case of Khoo Ting Hong v Sim Guan Soon, the Malaysian Courts officially adopted the reasoning used in an earlier English case of Commissioner of Railways v McDermott, where Lord Gardiner LC explained:
”...No duty is owing to a trespasser until it becomes known either that he is present or that the presence of a trespasser is extremely likely. The duty, when it arises, is a duty of a very limited character – not to injure him wilfully, and not to behave with reckless disregard for his safety...”
This means that the degree of your duty of care towards a trespasser would be relatively lower compared to someone whom you’ve invited or given permission to use your property. It could be arguable that you would only be held responsible for the burglar’s injuries under very limited circumstances, such as if you ordered your dog to continue attacking the trespasser after he had already given up, or if you unchained your dog to chase down the trespasser as he’s running away.
Do note, however, that the duty of care owed to trespassers is not a cut-and-dried concept and the courts have been known to make adjustments to this rule under certain circumstances – particularly where the trespasser is a child or where the act of trespassing was acknowledged and accepted by the Occupier.
But in the situation presented in our example, it would seem rather unlikely that any attempt by the intruder to sue you for negligence would succeed.
But this is not an excuse to be careless with your dog!
Do note that what’s discussed in this article only applies where an intruder comes into your property and the injuries occur within the property. The same would not apply If your dog were to escape and injure someone, or if your dog were to bite someone while out on a walk with you. The consequences might be very different and you could find yourself in breach of a good many laws and bylaws. For instance, section 8 of the Minor Offences Act 1955 reads:
Section 8C of UUK 2011 (the Kuala Lumpur by-laws for dog ownership) further stipulates that any licensed dog must at all times be leashed, muzzled and fully under the control of its owner whenever it is outside its owner’s premises and that no dog is permitted to be outside its owners premises unsupervised.
Similarly, errant dog owners have been charged under Section 289 of the Penal Code which makes it an offence if you fail to sufficiently restrain or guard against any probable danger or grievous hurt to another person by any animal in your possession, with a prescribed penalty of a term of imprisonment up to six months, a fine of up to RM2,000, or both.
In previous cases of people being killed by dogs, such as that of Irishman Maurice Sullivan who was mauled to death by two mixed-breed dogs while volunteering on a farm in Penang and Yip Sun Wah, who had been bitten to death by a miniature bull terrier which had escaped from its owner’s home, the dogs involved were euthanised, and their owners slapped with fines. However, where the dog attack did not result in the death of the victim, such as in Dhiya Qairina’s case, the owner was fined but the dog was not put to sleep.
So, if you do decide to keep a dog on your premises, it is advisable that you put up warning signs on the fencing surrounding your compound and ensure that your dog is always secured and unable to escape the premises. Having sufficient warning signs regarding the presence of the dog may not only assist you in proving that you had taken reasonable steps in discharging your duty of care towards potential trespassers, but also happens to be one of the requirements laid down by the Kuala Lumpur municipal council for responsible dog ownership.