It’s Christmas season! Even if you don’t celebrate Christmas, you’d be pretty familiar with Yuletide festivities like Christmas carols, Christmas trees, presents, and….. Santa Claus. Y’know, the guy who creeps into other peoples’ houses at night, secretly watching children – stuff that would sound like reason to call the cops if not for the context of it being done in Christmas cheer.
Now, most of us know that Santa (allegedly) isn’t real but, if he was, have you ever wondered how far Santa will get in Malaysia before the PDRM impounds his reindeer and slaps on the handcuffs? This was the pressing discussion at the ASKLEGAL office, so we figured we weren’t the only ones curious about this. Also we’re a site that publishes articles about the law, so our choice of festive articles is rather limited.
Just to make this credible and legit, the laws and legal (Santa) clauses are real and only applies to situations where Santa is within our borders since Malaysian law has no jurisdiction in the North Pole. A lot of assumptions have been made (such as there being no invitation to Santa to enter your house) since Santa has not responded to our letter seeking further clarification and a Nintendo Switch.
Needless to say, none of this will have any impact on you unless you’re Santa Claus or a very committed impersonator.
Imagine you’ve woken up in the middle of the night, and while going downstairs to get a glass of water, run into jolly ol’ Santa. At this point, you may interrupt his Ho-Ho-Ho with a call to nine-nine-nine because there’s a weird guy in a red suit suddenly in your house. You know he’s not there to rob you (the opposite actually) so what can he get in trouble for?
Entering your house without permission, also known as trespassing. Not just that, there are actually 2 kinds of trespass that Santa could get in trouble for!
The first is a criminal act – meaning that the authorities will press charges against Santa, and he could be slapped with a fine or imprisonment. As Santa is the type who’ll wait till even the mice in your house fall asleep before showing up, he’ll likely be charged under Section 443 of the Penal Code for lurking house-trespass:
If found guilty, Santa would be facing fine and up to 3 years in prison for his first offence, with the addition of further fines and whipping for subsequent offences.
The second kind of trespass is a civil wrongdoing, meaning you can sue Santa under tort law for Trespass to land. A tort is basically seeking compensation for a wrong that you have suffered, or what most people would call a lawsuit. Even though nothing was taken or damaged, the act of him entering your property without permission means that you’ll probably have a case… though you may need to check with your kids to make sure they didn’t send a letter inviting him into the home.
[READ MORE: What is tort law?]
But aha! Even if your kid DID send him a letter asking for a Nintendo Switch, it’s not a get-out-of-trouble free card. This is because, if your child was naughty and received a lump of coal (or anything other than a Nintendo Switch), you may still have a case as the permission to enter the house was given on the condition that Santa was bringing the Switch.
2. Housebreaking and obstruction of traffic
Unless you’re living in a colonial home in the highlands, chances are you’re not going to have a chimney for Santa’s trademark entrance and exit. This structural omission has two implications:
- Santa has to enter through a door or window
- Santa has to park his sled outside your house (since there’s no point parking on the roof)
Whether Santa decides to use a little Christmas magic or the lockpicking set that Lil’ Bobby asked for, he can be arrested under the charge of housebreaking. In fact, Section 445 of the Penal Code lists 6 different types of housebreaking that can be punished with a fine and a prison term for up to 3 years (and additional fines and whipping for subsequent offences). This also (arguably) includes a scenario in which Santa were to magically make a hole in your wall to get into the house, in the example provided under Section 445:
With no chimney, it can be assumed that Santa would have no reason to park his sleigh on your roof. Instead, it’s more logical for him to park the sleigh outside your gate or by the road to
break into enter your house. By doing so, he would be committing an offence under the Road Transport Act 1987 for obstruction by vehicle on the road:
Section 48(1) of the Road Transport Act 1987:
Basically, this section of the law makes it an offence to park your vehicle on the road in a way that causes danger, inconvenience, or becomes an obstruction to other people. If in the event Santa isn’t in your house but decides to park on your driveway regardless, the law also allows you to call the local authorities to clamp the...err… reindeer or to tow the sleigh away.
3. Enticing a married woman
Imagine if you woke up one night and decided to creep, down the stairs to have a peep, when everyone thought you were tucked in your bedroom fast asleep; imagine what a laugh it would have been, if only daddy had seen mommy kissing Santa Claus last night.
While we can’t say for sure how amused daddy would be at the sight of his wife sharing Santa’s milk and cookies, what’s certain is that the law will not be smiling down on Santa.
Particularly, he may face a charge under Section 498 of the Penal Code for enticing a married woman, which is punishable with a maximum 2-year stint in prison and/or a fine.
Section 498 of the Penal Code – Enticing or taking away or detaining with a criminal intent a married woman:
However, there may be some circumstances where Santa kissing mommy would NOT amount to enticement, such as if they were under mistletoe (tradition) or if Santa sounds a whole lot like daddy (cosplay).
4. Illegally flying into the country (Maybe)
As you know, entering any country without proper permits is a huge no-no in any country, much less flying into the country in your own personal aircraft. This doesn’t just break laws, but an unidentified aircraft entering Malaysian airspace is cause enough for a national security concern.
This also means that as long as Santa adheres to the procedures set by the Civil Aviation Authority of Malaysia (CAAM) he should be clear to enter Malaysian airspace – which may present a problem because the Civil Aviation Regulations 2016, enforced through the Civil Aviation Act 1969, provides definitions for different types of air vehicles such as airplanes:
Definition in Section 2 of the Civil Aviation Regulations 2016 (in BM only):
Unfortunately, there is no definition found for a sleigh drawn by reindeer. So does this mean that he’s going to have military jets scrambling after him the moment he enters Malaysian airspace?
Surprisingly, Santa actually has this part kinda sorted out.
Santa’s sleigh is classified as a commercial aircraft approved by and registered with the US Federal Aviation Administration – the same category as any plane carrying passengers or cargo. Santa also has a Canadian flight license (since he’s a Canadian citizen) and his sleigh is regularly inspected by the Canadian transport authorities. This means that Santa would be identifiable by Malaysian air traffic controllers when he makes the request, though whether or not such requests are made is not known.
Just so you know we’re not making this up, the information is available from a US-Canadian government project called NORAD Tracks Santa, where the North American Aerospace Defence Command (NORAD) has been tracking Santa’s sleigh – called Santa One – since 1955 through a series of satellites picking up signals from Rudolph’s nose, tracking cameras, and escorts by military jets in US and Canadian airspace.
However, where Santa may run into some problems once he arrives in Malaysia is with the Immigration Department. As he’s known to travel straight to houses, he may not be cleared by Immigration – running afoul of Section 6 of the Immigration Act 1959/63, which prohibits a non-citizen from entering Malaysia without a proper permit or clearance from the authorities. If caught, he can be considered an illegal immigrant and can (at best) be deported or (at worst) be punished with an RM10,000 fine, a maximum of 5 years in prison, a maximum of 6 rotan strokes, or a combination of the three.
Not just that, he will be in trouble for Sections 16 to 30 related to Procedure on Arrival in Malaysia, such as failing to land at an authorized airport and not having the sleigh examined by the immigration authorities. In this scenario, Santa not only faces similar punishments listed in the paragraph above, but may also have his sleigh seized by the immigration authorities under Section 49A of the Immigration Act.
5. Not reporting the entry of Rudolph. Donner, Blitzen, et. al.
Due to the choice of powering his sleigh with reindeer, Santa can get in trouble for not immediately reporting the arrival of his reindeer to the relevant authorities upon entering the country.
Section 8(1) of the Animals Act 1963 – Arrival of Animals to be reported (in part):
As a quick note, MAQIS stands for Malaysian Quarantine and Inspection Services, a department under the Ministry of Agriculture. Failure to inform them (or a relevant authority who will) the presence of any animal upon arrival results in a maximum RM10,000 fine upon conviction.
While the inner Scrooge in us may also think that Santa would for sure be on the wrong side of the recently-enforced Animal Welfare Act 2015 for overworking his reindeer, since going around the world in one night would be a rather taxing experience for even the strongest workhorse:
Section 29(1) of the Animal Welfare Act 2015 – Cruelty offences (in part):
But this actually won’t be the case as it’s proven that Santa’s sleigh and reindeer have been upgraded with NextGen technologies that not only lightens their workload, but actually improves on fuel consumption (calculated in carrots per reindeer). No animal mistreatment here, everyone.
But that’s not all the laws Santa will break!
We’re only just covered the tip of the North Pole as there are laws that we don’t have the time and space to look into, such as unpaid duties and GST on gifts and possible smuggling or illegal import of goods.
However, there is one surprising area where the law is lacking, based on one thing Santa is most known for – keeping tabs on whether a child has been naughty or nice. We would assume this would include some sort of monitoring of each child, which may amount to stalking; of which there is currently no law against (although this may be included in the Domestic Violence Act in the near future).
Oh, and one more thing –
Merry Christmas and Happy Holidays from the ASKLEGAL team!